SYMANTEC CORPORATION
2004 EQUITY INCENTIVE PLAN
As Adopted by the Board on
July 20, 2004
and as amended thereafter
1.
Purpose. The purpose of this Plan is to provide incentives
to attract, retain and motivate eligible persons whose present and
potential contributions are important to the success of the
Company, its Parent, Subsidiaries and Affiliates, by offering them
an opportunity to participate in the Company’s future
performance through awards of Options, Stock Appreciation Rights,
Restricted Stock Units, and Restricted Stock Awards. Capitalized
terms not defined in the text are defined in
Section 25.
2. Shares
Subject to the Plan.
2.1
Number of Shares Available. Subject to Sections 2.2 and
18, the total number of Shares reserved and available for grant and
issuance pursuant to this Plan will be one hundred eight million
(108,000,000) Shares plus up to fifty-five million four hundred
thousand (55,400,000) shares subject to awards granted under the
Company’s 1996 Equity Incentive Plan that cancel, forfeit
(e.g., upon the Participant’s Termination) or otherwise
expire by their terms on or following the adoption of this
Plan.
Any
award other than an Option or a SAR shall reduce the number of
Shares available for issuance under this Plan by two Shares for
every Share issued. Subject to Sections 2.2 and 18, Shares
that: (a) are subject to issuance upon exercise of an Option
but cease to be subject to such Option for any reason other than
exercise of such Option; (b) are subject to an Award granted
hereunder but are forfeited or are repurchased by the Company at
the original issue price; or (c) are subject to an Award that
otherwise terminates without Shares being issued will again be
available for grant and issuance in connection with future Awards
under this Plan. The following Shares may not again be made
available for future grant and issuance as Awards under the Plan:
(i) Shares that are withheld to pay the exercise or purchase price
of an Award or to satisfy any tax withholding obligations in
connection with an Award, (ii) Shares not issued or delivered
as a result of the net settlement of an outstanding Option or SAR
or (iii) shares of the Company’s Common Stock
repurchased on the open market with the proceeds of an Option
exercise price. At all times the Company shall reserve and keep
available a sufficient number of Shares as shall be required to
satisfy the requirements of all outstanding Awards granted under
this Plan.
2.2
Adjustment of Shares. In the event that the number of
outstanding Shares is changed by a stock dividend,
recapitalization, stock split, reverse stock split, subdivision,
combination, reclassification or similar change in the capital
structure of the Company without consideration or there is a change
in the corporate structure (including, without limitation, a
spin-off), then (a) the number of Shares reserved for issuance
under this Plan, (b) the Exercise Prices of and number of
Shares subject to outstanding Options, (c) the number of
Shares that may be granted pursuant to Section 3 below, and
(d) the Purchase Price and number of Shares subject to other
outstanding Awards, including Restricted Stock Awards, will be
proportionately adjusted, subject to any required action by the
Board or the stockholders of the Company and compliance with
applicable securities laws; provided, however, that
fractions of a Share will not be issued but will be rounded down to
the nearest whole Share, and may be replaced by a cash payment
equal to the Fair Market Value of such fraction of a Share, as
determined by the Committee.
3.
Eligibility. ISOs (as defined in Section 5 below) may
be granted only to employees (including officers and directors who
are also employees) of the Company or of a Parent or Subsidiary of
the Company. All other Awards may be granted to employees,
officers, directors, consultants, independent contractors and
advisors of the Company or any Parent, Subsidiary or Affiliate of
the Company; provided such consultants, contractors and
advisors render bona fide services not in connection with the offer
and sale of securities in a capital-raising transaction. No person
will be eligible to receive more than 2,000,000 Shares in any
calendar year under this Plan, pursuant to the grant of Awards
hereunder, of which no more than 400,000 Shares shall be covered by
Awards of Restricted Stock and Restricted Stock Units, other than
new employees of the Company or of a Parent or Subsidiary of the
Company (including new employees who are also officers and
directors of the Company or any Parent or Subsidiary of the
Company), who are eligible to receive up to a maximum of 3,000,000
Shares in the calendar year in which they commence their
employment, of which no more than 600,000 Shares shall be covered
by Awards of
Restricted
Stock and Restricted Stock Units. For purposes of these limits
only, each Restricted Stock Unit settled in Shares (but not those
settled in cash), shall be deemed to cover one Share. A person may
be granted more than one Award under this Plan.
4.1
Committee Authority. This Plan will be administered by the
Committee or by the Board acting as the Committee. Subject to the
general purposes, terms and conditions of this Plan, and to the
direction of the Board, the Committee will have full power to
implement and carry out this Plan. Without limitation, the
Committee will have the authority to:
(a) construe
and interpret this Plan, any Award Agreement and any other
agreement or document executed pursuant to this Plan;
(b) prescribe,
amend and rescind rules and regulations relating to this Plan or
any Award;
(c) select
persons to receive Awards;
(d) determine
the form and terms of Awards;
(e) determine
the number of Shares or other consideration subject to
Awards;
(f) determine
whether Awards will be granted singly, in combination with, in
tandem with, in replacement of, or as alternatives to, other Awards
under this Plan or any other incentive or compensation plan of the
Company or any Parent, Subsidiary or Affiliate of the
Company;
(g) grant
waivers of Plan or Award conditions;
(h) determine
the vesting, exercisability and payment of Awards;
(i) correct
any defect, supply any omission or reconcile any inconsistency in
this Plan, any Award or any Award Agreement;
(j) amend
any Award Agreements executed in connection with this
Plan;
(k) determine
whether an Award has been earned; and
(l) make
all other determinations necessary or advisable for the
administration of this Plan.
4.2
Committee Discretion. Any determination made by the
Committee with respect to any Award will be made in its sole
discretion at the time of grant of the Award or, unless in
contravention of any express term of this Plan or Award, at any
later time, and such determination will be final and binding on the
Company and on all persons having an interest in any Award under
this Plan. To the extent permitted by applicable laws, the
Committee may delegate to one or more officers of the Company the
authority to grant an Award under this Plan to Participants who are
not Insiders of the Company.
4.3
Section 162(m), Rule 16b-3 and Stock Exchange
Requirements. If two or more members of the Board are Outside
Directors, the Committee will be comprised of at least two
(2) members of the Board, at least two (2) of whom are
Outside Directors. To the extent desirable to qualify transactions
hereunder as exempt under Rule 16b-3 promulgated under the
Exchange Act (“ Rule 16b-3 ”), Awards to
officers and directors shall be made by the entire Board or a
Committee of two or more “non-employee directors”
within the meaning of Rule 16b-3. In addition, the Plan will
be administered in a manner that complies with any applicable
Nasdaq Global Select Market or stock exchange listing
requirements.
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5.
Options. The Committee may grant Options to eligible persons
and will determine whether such Options will be Incentive Stock
Options within the meaning of the Code (“ISOs”)
or Nonqualified Stock Options (“NQSOs”), the
number of Shares subject to the Option, the Exercise Price of the
Option (subject to Section 5.4 below), the circumstances upon
and the period during which the Option may be exercised, and all
other terms and conditions of the Option, subject to the
following:
5.1
Form of Option Grant. Each Option granted under this Plan
will be evidenced by an Award Agreement which will expressly
identify the Option as an ISO or an NQSO (“Stock Option
Agreement”), and will be in such form and contain such
provisions (which need not be the same for each Participant) as the
Committee may from time to time approve, and which will comply with
and be subject to the terms and conditions of this Plan. To the
extent that any Option designated as an ISO in the Award Agreement
fails to qualify as such under applicable law, it shall be treated
instead as a NQSO.
5.2
Date of Grant. The date of grant of an Option will be the
date on which the Committee makes the determination to grant such
Option, unless a later date is otherwise specified by the Committee
at the time it acts to approve the grant. The Stock Option
Agreement and a copy of this Plan will be delivered to the
Participant within a reasonable time after the granting of the
Option.
5.3
Exercise Period. Options will be exercisable within the
times or upon the events determined by the Committee as set forth
in the Stock Option Agreement governing such Option; provided,
however, that no Option will be exercisable after the
expiration of ten (10) years from the date the Option is
granted; and provided further that no ISO granted to a person who
directly or by attribution owns more than ten percent (10%) of the
total combined voting power of all classes of stock of the Company
or of any Parent or Subsidiary of the Company (“Ten
Percent Stockholder”) will be exercisable after the
expiration of five (5) years from the date the ISO is granted.
The Committee also may provide for the exercise of Options to
become exercisable at one time or from time to time, periodically
or otherwise (including, without limitation, the attainment during
a Performance Period of performance goals based on Performance
Factors), in such number of Shares or percentage of Shares as the
Committee determines.
5.4
Exercise Price. The Exercise Price of an Option will be
determined by the Committee when the Option is granted and may not
be less than 100% of the Fair Market Value of the Shares on the
date of grant; provided that the Exercise Price of any ISO
granted to a Ten Percent Stockholder will not be less than 110% of
the Fair Market Value of the Shares on the date of grant. Payment
for the Shares purchased may be made in accordance with
Section 10 of this Plan.
5.5
Method of Exercise. Options may be exercised only by
delivery to the Company of a written or electronic notice or
agreement of stock option exercise (the “Exercise
Agreement” ) in a form approved by the Committee (which
need not be the same for each Participant), stating the number of
Shares being purchased, the restrictions imposed on the Shares
purchased under such Exercise Agreement, if any, and such
representations and agreements regarding Participant’s
investment intent and access to information and other matters, if
any, as may be required or desirable by the Company to comply with
applicable securities laws, together with payment in full of the
Exercise Price for the number of Shares being purchased and all
applicable withholding taxes.
5.6
Termination. Notwithstanding the exercise periods set forth
in the Stock Option Agreement, exercise of an Option will always be
subject to the following:
(a) If
the Participant is Terminated for any reason except death or
Disability, then the Participant may exercise such
Participant’s Options only to the extent that such Options
are vested and exercisable upon the Termination Date no later than
three (3) months after the Termination Date (or such shorter
or longer time period not exceeding five (5) years as may be
determined by the Committee, with any exercise beyond three
(3) months after the Termination Date deemed to be an NQSO),
but in any event, no later than the expiration date of the
Options.
(b) If
the Participant is Terminated because of Participant’s death
or Disability (or the Participant dies within three (3) months
after a Termination other than because of Participant’s death
or disability), then Participant’s Options may be exercised
only to the extent that such Options are vested and
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exercisable by
Participant on the Termination Date and must be exercised by
Participant (or Participant’s legal representative or
authorized assignee) no later than twelve (12) months after
the Termination Date (or such shorter or longer time period not
exceeding five (5) years as may be determined by the
Committee, with any such exercise beyond (a) three
(3) months after the Termination Date when the Termination is
for any reason other than the Participant’s death or
Disability, or (b) twelve (12) months after the
Termination Date when the Termination is for Participant’s
death or Disability, deemed to be an NQSO), but in any event no
later than the expiration date of the Options.
5.7
Limitations on Exercise. The Committee may specify a
reasonable minimum number of Shares that may be purchased on any
exercise of an Option, provided that such minimum number
will not prevent Participant from exercising the Option for the
full number of Shares for which it is then exercisable.
5.8
Limitations on ISOs. The aggregate Fair Market Value
(determined as of the date of grant) of Shares with respect to
which ISOs are exercisable for the first time by a Participant
during any calendar year (under this Plan or under any other
incentive stock option plan of the Company or any Affiliate, Parent
or Subsidiary of the Company) will not exceed $100,000. If the Fair
Market Value of Shares on the date of grant with respect to which
ISOs are exercisable for the first time by a Participant during any
calendar year exceeds $100,000, then the Options for the first
$100,000 worth of Shares to become exercisable in such calendar
year will be ISOs and the Options for the amount in excess of
$100,000 that become exercisable in that calendar year will be
NQSOs. In the event that the Code or the regulations promulgated
thereunder are amended after the Effective Date of this Plan to
provide for a different limit on the Fair Market Value of Shares
permitted to be subject to ISOs, such different limit will be
automatically incorporated herein and will apply to any Options
granted after the effective date of such amendment.
5.9
Modification, Extension or Renewal. The Committee may
modify, extend or renew outstanding Options and authorize the grant
of new Options in substitution therefor, provided that
(a) any such action may not, without the written consent of a
Participant, impair any of such Participant’s rights under
any Option previously granted; (b) any outstanding ISO that is
modified, extended, renewed or otherwise altered will be treated in
accordance with Section 424(h) of the Code; and (c) notwithstanding
anything to the contrary elsewhere in the Plan, the Company is
subject to Section 21.2 below with respect to any proposal to
reprice outstanding Options.
5.10
No Disqualification. Notwithstanding any other provision in
this Plan, no term of this Plan relating to ISOs will be
interpreted, amended or altered, nor will any discretion or
authority granted under this Plan be exercised, so as to disqualify
this Plan under Section 422 of the Code or, without the
consent of the Participant affected, to disqualify any ISO under
Section 422 of the Code.
6.
Non-Employee Director Equity Awards .
6.1
Types of Awards . All Awards other than ISOs may be granted
to non-employee directors under this Plan. Awards granted pursuant
to this Section 6 may be automatically made pursuant to a
policy adopted by the Board (as such policy may be amended from
time to time by the Board) or made from time to time as determined
in the discretion of the Board, or, if the authority to grant
Awards to non-employee directors has been delegated by the Board,
the Committee.
6.2
Eligibility . Awards granted pursuant to this Section 6
shall be granted only to non-employee directors. Any non-employee
director, including without limitation any non-employee director
who is appointed as a member to the Board, will be eligible to
receive an Award under this Section 6.
6.3
Vesting, Exercisability and Settlement . Except as set forth
in Section 18, Awards granted pursuant to Section 6 shall
vest, become exercisable and be settled as determined by the Board
or, if the authority to make such determinations has been delegated
by the Board, the Committee. With respect to Options and SARs, the
exercise price of such Award granted to non-employee directors
shall not be less than the Fair Market Value of the Shares at the
time such Award is granted.
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7.
Restricted Stock Awards. A Restricted Stock Award is an
offer by the Company to issue to an eligible person Shares that are
subject to restrictions. The Committee will determine to whom an
offer will be made, the number of Shares the person may be issued
or purchase, the Purchase Price (if any), the restrictions to which
the Shares will be subject, and all other terms and conditions of
the Restricted Stock Award, subject to the following:
7.1
Restricted Stock Agreement. All purchases under a Restricted
Stock Award will be evidenced by a written agreement (the “
Restricted Stock Agreement ”), which will be in
substantially a form (which need not be the same for each
Participant) that the Committee shall from time to time approve,
and will comply with and be subject to the terms and conditions of
the Plan. A Participant can accept a Restricted Stock Award only by
signing and delivering to the Company the Restricted Stock
Agreement, and full payment of the Purchase Price (if any) and all
applicable withholding taxes, at such time and on such terms as
required by the Committee. If the Participant does not accept the
Restricted Stock Award at such time and on such terms as required
by the Committee, then the offer of the Restricted Stock Award will
terminate, unless the Committee determines otherwise.
7.2
Purchase Price. The Purchase Price (if any) for a Restricted
Stock Award will be determined by the Committee, and may be less
than Fair Market Value on the date the Restricted Stock Award is
granted. Payment of the Purchase Price must be made in accordance
with Section 10 of this Plan and as permitted in the
Restricted Stock Agreement, and in accordance with any procedures
established by the Company.
7.3
Terms of Restricted Stock Awards. Restricted Stock Awards
will be subject to all restrictions, if any, that the Committee may
impose. These restrictions may be based on completion of a
specified period of service with the Company and/or upon completion
of the performance goals as set out in advance in the Restricted
Stock Agreement, which shall be in such form and contain such
provisions (which need not be the same for each Participant) as the
Committee shall from time to time approve, and which will comply
with and be subject to the terms and conditions of this Plan. Prior
to the grant of a Restricted Stock Award, the Committee shall:
(a) determine the nature, length and starting date of any
Performance Period for the Restricted Stock Award; (b) select
performance criteria, including if the Award is intended to qualify
as “performance-based compensation” under Code Section
162(m) from among the Performance Factors, to be used to measure
performance goals, if any; and (c) determine the number of
Shares that may be awarded to the Participant. For Restricted Stock
Awards intended to comply with the requirements of Section 162(m)
of the Code, the performance goals will be determined at a time
when the achievement of the performance goals remains substantially
uncertain and shall otherwise be administered in a manner that
complies with the requirements under that statute. Performance
Periods may overlap and a Participant may participate
simultaneously with respect to Restricted Stock Awards that are
subject to different Performance Periods and having different
performance goals and other criteria.
7.4
Termination During Vesting or Performance Period. Restricted
Stock Awards shall cease to vest immediately if a Participant is
Terminated during the vesting period or Performance Period
applicable to the Award for any reason, unless the Committee
determines otherwise, and any unvested Shares subject to such
Restricted Stock Awards shall be subject to the Company’s
right to repurchase such Shares or otherwise to any forfeiture
condition applicable to the Award, as described in Section 14
of this Plan, if and as set forth in the applicable Restricted
Stock Agreement.
8.
Restricted Stock Units . A Restricted Stock Unit (or RSU) is
an award covering a number of Shares that may be settled in cash,
or by issuance of those Shares (which may consist of Restricted
Stock). A RSU may be awarded for past services already rendered to
the Company, or any Affiliate, Parent or Subsidiary of the Company
pursuant to an Award Agreement (the “ RSU Agreement
”) that will be in such form (which need not be the same for
each Participant) as the Committee will from time to time approve,
and will comply with and be subject to the following:
8.1
Terms of RSUs . RSUs may vary from Participant to
Participant and between groups of Participants, and may be based
upon the achievement of the Company, Affiliate, Parent or
Subsidiary and/or individual performance factors or upon such other
criteria as the Committee may determine. The Committee will
determine all terms of each RSU including, without limitation: the
number of Shares subject to each RSU, the time or times during
which each RSU shall vest and the RSU be settled, the consideration
to be distributed on such settlement, and the effect on each RSU of
its holder’s Termination. A RSU may be awarded upon
satisfaction of such performance goals as are set out in advance in
the Participant’s individual Award Agreement (the
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“
Performance RSU Agreement ”) that will be in such form
(which need not be the same for each Participant) as the Committee
will from time to time approve, and will comply with and be subject
to the terms and conditions of this Plan. If the RSU is being
earned upon the satisfaction of performance goals pursuant to a
Performance RSU Agreement, then the Committee will:
(a) determine the nature, length and starting date of any
Performance Period for each RSU; (b) select performance
criteria, including if the Award is intended to qualify as
“performance-based compensation” under Code Section
162(m) from among the Performance Factors, to be used to measure
performance goals, if any; and (c) determine the number of
Shares deemed subject to the RSU. For RSUs intended to comply with
the requirements of Section 162(m) of the Code, the performance
goals will be determined at a time when the achievement of the
performance goals remains substantially uncertain and shall
otherwise be administered in a manner that complies with the
requirements under that statute. Prior to settlement of any RSU
earned upon the satisfaction of performance goals pursuant to a
Performance RSU Agreement, the Committee shall determine the extent
to which such RSU has been earned. Performance Periods may overlap
and Participants may participate simultaneously with respect to
RSUs that are subject to different Performance Periods and
different performance goals and other criteria. The number of
Shares may be fixed or may vary in accordance with such performance
goals and criteria as may be determined by the Committee. The
Committee may adjust the performance goals applicable to the RSUs
to take into account changes in law and accounting or tax rules and
to make such adjustments as the Committee deems necessary or
appropriate to reflect the impact of extraordinary or unusual
items, events or circumstances to avoid windfalls or
hardships.
8.2
Form and Timing of Exercise . The portion of a RSU being
settled may be paid currently or on a deferred basis with such
interest or dividend equivalent, if any, as the Committee may
determine. Payment may be made in the form of cash or whole Shares
or a combination thereof, either in a lump sum payment or in
installments, all as the Committee will determine.
9. Stock
Appreciation Rights . A Stock Appreciation Right (or SAR) is an
award that may be exercised for cash or Shares (which may consist
of Restricted Stock), having a value equal to the value determined
by multiplying the difference between the Fair Market Value on the
date of settlement over the Exercise Price and the number of Shares
with respect to which the SAR is being settled. A SAR may be
awarded for past services already rendered to the Company, or any
Parent or Subsidiary of the Company pursuant to an Award Agreement
(the “ SAR Agreement ”) that will be in such
form (which need not be the same for each Participant) as the
Committee will from time to time approve, and will comply with and
be subject to the following:
9.1
Terms of SARs . SARs may vary from Participant to
Participant and between groups of Participants, and may be based
upon the achievement of the Company, Parent or Subsidiary and/or
individual performance factors or upon such other criteria as the
Committee may determine. The Committee will determine all terms of
each SAR including, without limitation: the number of Shares deemed
subject to each SAR, the time or times during which each SAR may be
settled, the consideration to be distributed on settlement, and the
effect on each SAR of its holder’s Termination. The Exercise
Price of a SAR will be determined by the Committee when the SAR is
granted and may not be less than 100% of the Fair Market Value of
the Shares on the date of grant. A SAR may be awarded upon
satisfaction of such performance goals as are set out in advance in
the Participant’s individual Award Agreement (the “
Performance SAR Agreement ”) that will be in such form
(which need not be the same for each Participant) as the Committee
will from time to time approve, and will comply with and be subject
to the terms and conditions of this Plan. If the SAR is being
earned upon the satisfaction of performance goals pursuant to a
Performance SAR Agreement, then the Committee will:
(a) determine the nature, length and starting date of any
Performance Period for each SAR; (b) select performance
criteria, including if the Award is intended to qualify as
“performance-based compensation” under Code Section
162(m) from among the Performance Factors, to be used to measure
performance goals, if any; and (c) determine the number of
Shares deemed subject to the SAR. Prior to exercise of any SAR
earned upon the satisfaction of performance goals pursuant to a
Performance SAR Agreement, the Committee shall determine the extent
to which such SAR has been earned. Performance Periods may overlap
and Participants may participate simultaneously with respect to
SARs that are subject to different Performance Periods and
different performance goals and other criteria. The number of
Shares may be fixed or may vary in accordance with such performance
goals and criteria as may be determined by the Committee. The
Committee may adjust the performance goals applicable to the SARs
to take into account changes in law and accounting or tax rules and
to make such adjustments as the Committee deems necessary or
appropriate to reflect the impact of extraordinary or unusual
items, events or circumstances to avoid windfalls or hardships.
Notwithstanding anything to the contrary elsewhere in the Plan, the
Company is subject to Section 21.2 below with respect to any
proposal to
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reprice
outstanding SARs. The term of a SAR shall be ten (10) years
from the date the SAR is awarded or such shorter term as may be
provided in the Award Agreement.
9.2
Form and Timing of Settlement . The portion of a SAR being
settled may be paid currently or on a deferred basis with such
interest or dividend equivalent, if any, as the Committee may
determine. Payment may be made in the form of cash or whole Shares
or a combination thereof, either in a lump sum payment or in
installments, all as the Committee will determine.
10.
Payment for Share Purchases. Payment for Shares purchased
pursuant to this Plan may be made in cash, by check or by wire
transfer or, where expressly approved for the Participant by the
Committee and where permitted by law:
(a) by
cancellation of indebtedness of the Company to the
Participant;
(b) by
surrender of shares that either: (1) have been owned by
Participant for more than six (6) months and have been paid
for within the meaning of SEC Rule 144 (and, if such shares
were purchased from the Company by use of a promissory note, such
note has been fully paid with respect to such shares); or
(2) were obtained by Participant in the public
market;
(c) cashless
“net exercise” arrangement pursuant to which the
Company will reduce the number of Shares issued upon exercise by
the largest whole number of Shares having an aggregate Fair Market
Value that does not exceed the aggregate exercise price; provided
that the Company shall accept a cash or other payment from the
Participant to the extent of any remaining balance of the exercise
price not satisfied by such reduction in the number of whole Shares
to be issued;
(d) by
waiver of compensation due or accrued to the Participant for
services rendered;
(e) with
respect only to purchases upon exercise of an Option, and provided
that a public market for the Company’s stock exists, through
a “same day sale” commitment from the Participant and a
broker-dealer that is a member of the Financial Industry Regulatory
Authority (a “FINRA Dealer” ) whereby the
Participant irrevocably elects to exercise the Option and to sell a
portion of the Shares so purchased to pay for the Exercise Price
and any applicable withholding obligations, and whereby the FINRA
Dealer irrevocably commits upon receipt of such Shares to forward
the Exercise Price directly to the Company;
(f) by
such other consideration and method of payment as permitted by the
Committee and applicable law; or
(g) by
any combination of the foregoing.
11.1
Withholding Generally. It shall be a condition to the grant
of an Award under this Plan that the Participant satisfy any tax
withholding or similar obligations applicable to the Award that may
be legally imposed upon the Participant. Whenever Awards are to be
granted or Shares are to be issued in satisfaction of Awards
granted under this Plan, the Participant shall make such
arrangements as the Company may require to remit to the Company an
amount sufficient to satisfy federal, state, local, or foreign
withholding tax requirements prior to the delivery of any Award
Agreement or certificate or certificates for Award Shares.
Whenever, under this Plan, payments in satisfaction of Awards are
to be made in cash, such payment will be net of an amount
sufficient to satisfy federal, state, and local withholding tax
requirements.
11.2
Stock Withholding. When, under applicable tax laws, a
Participant incurs tax liability in connection with the grant,
exercise or vesting of any Award that is subject to tax withholding
and the Participant is obligated to pay the Company the amount
required to be withheld, the Committee may allow the Participant to
satisfy the minimum withholding tax obligation by electing to have
the Company withhold from the Shares to be issued that number of
Shares having a Fair Market Value equal to the minimum amount
required to be withheld,
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determined on
the date that the amount of tax to be withheld is to be determined
(the “Tax Date” ). All elections by a
Participant to have Shares withheld for this purpose will be made
in writing in a form and during a period acceptable to the
Committee.
12.
Privileges of Stock Ownership; Voting and Dividends. Except
to the extent that the Committee grants an RSU that entitles the
Participant to credit for dividends paid on Award Shares prior to
the date such Shares are issued to the Participant (as reflected in
the RSU Agreement), no Participant will have any of the rights of a
stockholder with respect to any Shares until the Shares are issued
to the Participant. After Shares are issued to the Participant, the
Participant will be a stockholder and have all the rights of a
stockholder with respect to such Shares, including the right to
vote and receive all dividends or other distributions made or paid
with respect to such Shares; provided, that if such Shares
are restricted stock, then any new, additional or different
securities the Participant may become entitled to receive with
respect to such Shares by virtue of a stock dividend, stock split
or any other change in the corporate or capital structure of the
Company will be subject to the same restrictions as the restricted
stock; provided, further, that the Participant will have no
right to retain such stock dividends or stock distributions with
respect to Shares that are repurchased at the Participant’s
original Purchase Price or otherwise forfeited to the
Company.
13.
Transferability. Awards granted under this Plan, and any
interest therein, will not be transferable or assignable by
Participant, and may not be made subject to execution, attachment
or similar process, otherwise than by will or by the laws of
descent and distribution or as consistent with the specific Plan
and Award Agreement provisions relating thereto. All Awards shall
be exercisable: (i) during the Participant’s lifetime,
only by (A) the Participant, or (B) the
Participant’s guardian or legal representative; and
(ii) after Participant’s death, by the legal
representative of the Participant’s heirs or
legatees.
14.
Restrictions on Shares. At the discretion of the Committee,
the Company may reserve to itself and/or its assignee(s) in the
Award Agreement a right to repurchase a portion of or all Shares
that are not vested held by a Participant following such
Participant’s Termination at any time specified after the
Participant’s Termination Date, for cash and/or cancellation
of purchase money indebtedness, at the Participant’s original
Exercise Price or Purchase Price, as the case may be.
Alternatively, at the discretion of the Committee, Award Shares
issued to the Participant for which the Participant did not pay any
Exercise or Purchase Price may be forfeited to the Company on such
terms and conditions as may be specified in the Award Agreement.
All certificates for Shares or other securities delivered under
this Plan will be subject to such stock transfer orders, legends
and other restrictions as the Committee may deem necessary or
advisable, including restrictions under any applicable federal,
state or foreign securities law, or any rules, regulations and
other requirements of the SEC or any stock exchange or automated
quotation system upon which the Shares may be listed or
quoted.
15.
Escrow; Pledge of Shares. To enforce any restrictions on a
Participant’s Shares, the Committee may require the
Participant to deposit all certificates representing Shares,
together with stock powers or other instruments of transfer
approved by the Committee, appropriately endorsed in blank, with
the Company or an agent designated by the Company to hold in escrow
until such restrictions have lapsed or terminated, and the
Committee may cause a legend or legends referencing such
restrictions to be placed on the certificates.
16.
Exchange and Buyout of Awards. The Committee may, at any
time or from time to time, authorize the Company, with the consent
of the respective Participants, to issue new Awards in exchange for
the surrender and cancellation of any or all outstanding Awards.
This Section shall not be construed to defeat the requirements of
Section 21.2 with respect to any proposed repricing of Options
or SARs.
17.
Securities Law and Other Regulatory Compliance. An Award
will not be effective unless such Award is in compliance with all
applicable federal and state securities laws, rules and regulations
of any governmental body, and the requirements of any stock
exchange or automated quotation system upon which the Shares may
then be listed or quoted, as they are in effect on the date of
grant of the Award and also on the date of exercise or other
issuance. Notwithstanding any other provision in this Plan, the
Company will have no obligation, and no liability for failure, to
issue Shares or deliver certificates for Shares under this Plan
prior to: (a) obtaining any approvals from governmental
agencies that the Company determines are necessary or advisable;
and/or (b) completion of any registration or other
qualification of such Shares under any state or federal law or
ruling of any governmental body that the Company determines to be
necessary or advisable. The Company will be under no
8
obligation to
register the Shares with the SEC or to effect compliance with the
registration, qualification or listing requirements of any state
securities laws, stock exchange or automated quotation system, and
the Company will have no liability for any inability or failure to
do so.
18.
Corporate Transactions.
18.1
Assumption or Replacement of Awards by Successor. In the
event of (a) a dissolution or liquidation of the Company,
(b) a merger or consolidation in which the Company is not the
surviving corporation ( other than a merger or consolidation
with a wholly-owned subsidiary, a reincorporation of the Company in
a different jurisdiction, or other transaction in which there is no
substantial change in the stockholders of the Company or their
relative stock holdings and the Awards granted under this Plan are
assumed, converted or replaced by the successor corporation, which
assumption will be binding on all Participants), (c) a merger
in which the Company is the surviving corporation but after which
the stockholders of the Company (other than any stockholder which
merges (or which owns or controls another corporation which merges)
with the Company in such merger) cease to own their shares or other
equity interests in the Company, (d) the sale of substantially
all of the assets of the Company, or (e) any other transaction
which qualifies as a “corporate transaction” under
Section 424(a) of the Code wherein the stockholders of the Company
give up all of their equity interest in the Company ( except
for the acquisition, sale or transfer of all or substantially all
of the
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