Exhibit 10.1
Stanley, Inc.
Amended and
Restated
2006 Omnibus incentive
Compensation Plan
SECTION 1.
Purpose. The purpose of this Stanley, Inc. 2006
Omnibus Incentive Compensation Plan is to promote the interests of
Stanley, Inc., a Delaware corporation (the
“Company”), and its stockholders by (a) attracting
and retaining exceptional directors, officers, employees and
consultants (including prospective directors, officers, employees
and consultants) of the Company and its Affiliates (as defined
below) and (b) enabling such individuals to participate in the
long-term growth and financial success of the Company.
SECTION 2.
Definitions. As used herein, the following terms shall
have the meanings set forth below:
“Affiliate” means
(a) any entity that, directly or indirectly, is controlled by,
controls or is under common control with, the Company and
(b) any entity in which the Company has a significant equity
interest, in either case as determined by the Committee. For
purposes of granting Options or SARs, an entity may not be
considered an Affiliate unless the Company holds a
“controlling interest” in such entity, where the term
“controlling interest” has the same meaning as provided
in Treasury Regulation 1.414(c)-2(b)(2)(i), provided that the
language “at least 50 percent” is used instead of
“at least 80 percent” and, provided further, that
where granting of Options or SARs is based upon a legitimate
business criteria, the language “at least
20 percent” is used instead of “at least
80 percent” each place it appears in Treasury
Regulation 1.414(c)-2(b)(2)(i).
“Award” means any award
that is permitted under Section 6 and granted under the
Plan.
“Award Agreement” means
any written agreement, contract or other instrument or document,
including any document delivered electronically or posted on the
Company’s intranet, evidencing any Award, which may, but need
not, require execution or acknowledgment by a
Participant.
“Board” means the Board
of Directors of the Company.
“Cash Incentive Award”
shall have the meaning specified in Section 6(f).
“Change of Control”
shall (a) have the meaning set forth in an Award Agreement or
(b) if there is no definition set forth in an Award Agreement,
mean the occurrence of any of the following events, not including
any events occurring prior to or in connection with the initial
public offering of Shares (including the occurrence of such initial
public offering):
(i) during any period of
24 consecutive months, individuals who were directors of the
Company at the beginning of such period (the “Incumbent
Directors”) cease at any time during such period for any
reason to constitute a majority of the Board; provided that any
individual becoming a director subsequent to the beginning of such
period whose election, or nomination for election, by the
Company’s stockholders was approved by a vote of at least a
majority of the Incumbent Directors shall be deemed to be an
Incumbent Director, except that any such individual whose initial
assumption of office occurs as a result of an actual or threatened
proxy contest with respect to election or removal of directors or
other actual or threatened solicitation of proxies or consents by
or on behalf of any “person” (as such term is used in
Section 13(d) of the Exchange Act) (each, a
“Person”), other than the management of the Company or
the Board, shall be deemed to not be an Incumbent
Director;
(ii) the consummation of
(A) a merger, consolidation, statutory share exchange or
similar form of corporate transaction involving (x) the
Company or (y) any of its subsidiaries, but in the case of
this clause (y) only if Company Voting Securities (as
defined below) are issued or issuable in connection with such
transaction (each of the transactions referred to in this
clause (A), a “Reorganization”) or (B) a sale
or other disposition of all or substantially all the assets of the
Company to a person that is not an Affiliate of the Company (a
“Sale”), in each case, if such
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Reorganization or Sale requires the
approval of the Company’s stockholders under the law of the
Company’s jurisdiction of organization (whether such approval
is required for such Reorganization or Sale or for the issuance of
securities in such Reorganization or Sale), unless, immediately
following such Reorganization or Sale, (1) all or
substantially all the persons who were the “beneficial
owners” (as such term is defined in Rule 13d-3 under the
Exchange Act) of the securities eligible to vote for the election
of the Board (“Company Voting Securities”) outstanding
immediately prior to the consummation of such Reorganization or
Sale beneficially own, directly or indirectly, more than 50% of the
combined voting power of the then outstanding voting securities of
the corporation or other entity resulting from such Reorganization
or Sale (including a corporation or other entity that as a result
of such transaction directly or indirectly owns the Company or all
or substantially all the Company’s assets) (the
“Continuing Company”) in substantially the same
proportions as their ownership, immediately prior to the
consummation of such Reorganization or Sale, of the outstanding
Company Voting Securities (excluding any outstanding voting
securities of the Continuing Company that such beneficial owners
hold immediately following the consummation of such Reorganization
or Sale as a result of their ownership prior to such consummation
of voting securities of any corporation or other entity (other than
the Company) involved in or forming part of such Reorganization or
Sale), (2) no Person (excluding (x) any employee benefit
plan (or related trust or fiduciary) sponsored or maintained by the
Company or its Affiliates and (y) the Company and its
Affiliates) beneficially owns, directly or indirectly, 20% or more
of the combined voting power of the outstanding voting securities
of the Continuing Company immediately following the consummation of
such Reorganization or Sale and (3) immediately following the
consummation of such Reorganization or Sale, at least a majority of
the members of the board of directors (or equivalent body) of the
Continuing Company are Incumbent Directors;
(iii) the stockholders of
the Company approve a plan of complete liquidation or dissolution
of the Company, unless such liquidation or dissolution is part of a
transaction or series of transactions described in
paragraph (ii) above that does not otherwise constitute a
Change of Control; or
(iv) any Person or
“group” (as used in Section 14(d)(2) of the
Exchange Act) (excluding (x) any employee benefit plan (or
related trust or fiduciary) sponsored or maintained by the Company
or its Affiliates and (y) the Company and its Affiliates)
becomes the beneficial owner, directly or indirectly, of Company
Voting Securities representing 20% or more of the combined voting
power of the then outstanding Company Voting Securities; provided,
however, that, for purposes of this subparagraph (iv), no
acquisition of Company Voting Securities (x) directly from the
Company or (y) by any employee benefit plan (or related trust
or fiduciary) sponsored or maintained by the Company or its
Affiliates shall constitute a Change of Control.
“Code” means the
Internal Revenue Code of 1986, as amended from time to time, and
the regulations promulgated thereunder.
“Committee” means the
compensation committee of the Board, or such other committee of the
Board as may be designated by the Board from time to time to
administer the Plan.
“Exchange Act” means the
Securities Exchange Act of 1934, as amended, or any successor
statute thereto.
“Exercise Price” means
(a) in the case of Options, the price specified in the
applicable Award Agreement as the price-per-Share at which Shares
may be purchased pursuant to such Option or (b) in the case of
SARs, the price specified in the applicable Award Agreement as the
reference price-per-Share used to calculate the amount payable to
the Participant.
“Fair Market Value”
means: (a) with respect to any property other than Shares, the
fair market value of such property determined by such methods or
procedures as shall be established from time to time by the
Committee; and (b) with respect to the Shares, as of any date,
(i) the closing market price
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of the Shares (A) as reported by the NYSE
for such date, or (B) if the Shares are listed on any other
national stock exchange, as reported on the stock exchange
composite tape for securities traded on such stock exchange for
such date, or with respect to each of clauses (A) and
(B), if there were no sales on such date, on the closest preceding
date on which there were sales of Shares, or (ii) in the event
there shall be no public market for the Shares on such date, the
fair market value of the Shares as determined in good faith by the
Committee in such a manner as to comply with Code
Section 409A.
“Incentive Stock Option”
means an option to purchase Shares from the Company that
(a) is granted under Section 6 and (b) is intended
to qualify for special Federal income tax treatment pursuant to
Sections 421 and 422 of the Code, as now constituted or
subsequently amended, or pursuant to a successor provision of the
Code, and which is so designated in the applicable Award
Agreement.
“Independent Director”
means a member of the Board who is neither (a) an employee of
the Company nor (b) an employee of any Affiliate, and who, at
the time of acting, is a “Non-Employee Director” under
Rule 16b-3.
“IRS” means the Internal
Revenue Service or any successor thereto and includes the staff
thereof.
“Nonqualified Stock
Option” means an option to purchase Shares from the Company
that (a) is granted under Section 6 and (b) is not an
Incentive Stock Option.
“NYSE” means the New
York Stock Exchange or any successor thereto.
“Option” means an
Incentive Stock Option or a Nonqualified Stock Option or both, as
the context requires.
“Participant” means any
director, officer, employee or consultant (including any
prospective director, officer, employee or consultant) of the
Company or its Affiliates who is eligible for an Award under
Section 5 and who is selected by the Committee to receive an
Award under the Plan or who receives a Substitute Award pursuant to
Section 4(c).
“Performance Compensation
Award” means any Award designated by the Committee as a
Performance Compensation Award pursuant to
Section 6(i).
“Performance Criteria”
means the criterion or criteria that the Committee shall select for
purposes of establishing a Performance Goal for a Performance
Period with respect to any Performance Compensation Award under the
Plan.
“Performance Formula”
means, for a Performance Period, the one or more objective formulas
applied against the relevant Performance Goal to determine, with
regard to the Performance Compensation Award of a particular
Participant, whether all, a portion or none of the Award has been
earned for the Performance Period.
“Performance Goal”
means, for a Performance Period, the one or more goals established
by the Committee for the Performance Period based upon the
Performance Criteria.
“Performance Period”
means the one or more periods of time as the Committee may select
over which the attainment of one or more Performance Goals will be
measured for the purpose of determining a Participant’s right
to and the payment of a Performance Compensation Award.
“Performance Unit” means
an Award under Section 6(e) that has a value set by the
Committee (or that is determined by reference to a valuation
formula specified by the Committee or the Fair Market Value of
Shares), which value may be paid to the Participant by delivery of
such property as the Committee shall determine, including without
limitation, cash or Shares, or any combination thereof, upon
achievement of such Performance Goals during the relevant
Performance Period as the Committee shall establish at the time of
such Award or thereafter.
“Plan” means this
Stanley, Inc. Amended and Restated 2006 Omnibus Incentive
Compensation Plan, as in effect from time to time.
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“Restricted Share” means
a Share delivered under the Plan that is subject to certain
transfer restrictions, forfeiture provisions and/or other terms and
conditions specified herein and in the applicable Award
Agreement.
“RSU” means a restricted
stock unit Award that is designated as such in the applicable Award
Agreement and that represents an unfunded and unsecured promise to
deliver Shares, cash, other securities, other Awards or other
property in accordance with the terms of the applicable Award
Agreement.
“Rule 16b-3” means
Rule 16b-3 as promulgated and interpreted by the SEC under the
Exchange Act or any successor rule or regulation thereto as in
effect from time to time.
“SAR” means a stock
appreciation right Award that represents an unfunded and unsecured
promise to deliver Shares, cash, other securities, other Awards or
other property equal in value to the excess, if any, of the Fair
Market Value per Share over the Exercise Price per Share of the
SAR, subject to the terms of the applicable Award
Agreement.
“SEC” means the
Securities and Exchange Commission or any successor thereto and
shall include the staff thereof.
“Shares” means shares of
common stock of the Company, $0.01 par value, or such other
securities of the Company (a) into which such shares shall be
changed by reason of a recapitalization, merger, consolidation,
split-up, combination, exchange of shares or other similar
transaction or (b) as may be determined by the Committee
pursuant to Section 4(b).
“Subsidiary” means any
entity in which the Company, directly or indirectly, possesses 50%
or more of the total combined voting power of all classes of its
stock.
“Substitute Awards”
shall have the meaning specified in Section 4(c).
SECTION 3.
Administration. (a) Composition of
Committee. The Plan shall be administered by the
Committee, which shall be composed of one or more directors, as
determined by the Board; provided that after the date of the
consummation of the initial public offering of Shares, to the
extent necessary to comply with the rules of the NYSE and
Rule 16b-3 and to satisfy any applicable requirements of
Section 162(m) of the Code and any other applicable laws
or rules, the Committee shall be composed of two or more directors,
all of whom shall be Independent Directors and all of whom shall
(i) qualify as “outside directors” under
Section 162(m) of the Code and (ii) meet the
independence requirements of the NYSE.
(b) Authority of
Committee.
(i) Subject to the terms
of the Plan and applicable law, and in addition to other express
powers and authorizations conferred on the Committee by the Plan,
the Committee shall have sole and plenary authority to administer
the Plan, including, but not limited to, the authority to
(i) designate Participants, (ii) determine the type or
types of Awards to be granted to a Participant,
(iii) determine the number of Shares to be covered by, or with
respect to which payments, rights or other matters are to be
calculated in connection with, Awards, (iv) determine the
terms and conditions of any Awards, (v) determine the vesting
schedules of Awards and, if certain performance criteria must be
attained in order for an Award to vest or be settled or paid,
establish such performance criteria and certify whether, and to
what extent, such performance criteria have been attained,
(vi) determine whether, to what extent and under what
circumstances Awards may be settled or exercised in cash, Shares,
other securities, other Awards or other property, or canceled,
forfeited or suspended and the method or methods by which Awards
may be settled, exercised, canceled, forfeited or suspended,
(vii) determine whether, to what extent and under what
circumstances cash, Shares, other securities, other Awards, other
property and other amounts payable with respect to an Award shall
be deferred either automatically or at the election of the holder
thereof or of the Committee, (viii) interpret, administer,
reconcile any inconsistency in, correct any default in and supply
any omission in, the Plan and any instrument or
agreement
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relating to, or Award made under,
the Plan, (ix) establish, amend, suspend or waive such
rules and regulations and appoint such agents as it shall deem
appropriate for the proper administration of the Plan,
(x) accelerate the vesting or exercisability of, payment for
or lapse of restrictions on, Awards, (xi) amend an outstanding
Award or grant a replacement Award for an Award previously granted
under the Plan if, in its sole discretion, the Committee determines
that (A) the tax consequences of such Award to the Company or
the Participant differ from those consequences that were expected
to occur on the date the Award was granted or
(B) clarifications or interpretations of, or changes to, tax
law or regulations permit Awards to be granted that have more
favorable tax consequences than initially anticipated,
(xii) modify Awards to eligible individuals who are foreign
nationals or are individuals who are employed outside the United
States to recognize differences in local law, tax policy or custom,
and (xiii) make any other determination and take any other
action that the Committee deems necessary or desirable for the
administration of the Plan.
(ii) Without limiting the
generality of the foregoing, the Committee may determine to retain
the right in an Award Agreement to cause a forfeiture of the gain
realized by a Participant on account of actions taken by the
Participant in violation or breach of or in conflict with any
employment agreement, non-competition agreement, any agreement
prohibiting solicitation of employees or clients of the Company or
any Affiliate thereof or any confidentiality obligation with
respect to the Company or any Affiliate thereof or otherwise in
competition with the Company or any Affiliate thereof, to the
extent specified in such Award Agreement applicable to the
Participant.
(c) Committee
Decisions. Unless otherwise expressly provided in the
Plan, all designations, determinations, interpretations and other
decisions under or with respect to the Plan or any Award shall be
within the sole and plenary discretion of the Committee, may be
made at any time and shall be final, conclusive and binding upon
all persons, including the Company, any Affiliate, any Participant,
any holder or beneficiary of any Award and any stockholder. All
authority delegated to the Committee pursuant to this Plan may be
exercised, in its sole discretion, by the Board.
(d) Indemnification.
No member of the Board, the Committee or any employee of the
Company (each such person, a “Covered Person”) shall be
liable for any action taken or omitted to be taken or any
determination made in good faith with respect to the Plan or any
Award hereunder. Each Covered Person shall be indemnified and held
harmless by the Company against and from (i) any loss, cost,
liability or expense (including attorneys’ fees) that may be
imposed upon or incurred by such Covered Person in connection with
or resulting from any action, suit or proceeding to which such
Covered Person may be a party or in which such Covered Person may
be involved by reason of any action taken or omitted to be taken
under the Plan or any Award Agreement and (ii) any and all amounts
paid by such Covered Person, with the Company’s approval, in
settlement thereof, or paid by such Covered Person in satisfaction
of any judgment in any such action, suit or proceeding against such
Covered Person; provided that the Company shall have the right, at
its own expense, to assume and defend any such action, suit or
proceeding, and, once the Company gives notice of its intent to
assume the defense, the Company shall have sole control over such
defense with counsel of the Company’s choice. The foregoing
right of indemnification shall not be available to a Covered Person
to the extent that a court of competent jurisdiction in a final
judgment or other final adjudication, in either case not subject to
further appeal, determines that the acts or omissions of such
Covered Person giving rise to the indemnification claim resulted
from such Covered Person’s bad faith, fraud or willful
criminal act or omission or that such right of indemnification is
otherwise prohibited by law or by the Company’s Certificate
of Incorporation or Bylaws. The foregoing right of indemnification
shall not be exclusive of any other rights of indemnification to
which Covered Persons may be entitled under the Company’s
Certificate of Incorporation or Bylaws, as a matter of law, or
otherwise, or any other power that the Company may have to
indemnify such persons or hold them harmless.
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(e) Delegation of Authority
to Senior Officers. The Committee may delegate, on such
terms and conditions as it determines in its sole and plenary
discretion, to one or more senior officers of the Company the
authority to make grants of Awards to officers (other than
executive officers), employees and consultants of the Company and
its Affiliates (including any prospective officer, employee or
consultant) and all necessary and appropriate decisions and
determinations with respect thereto.
(f) Awards to Independent
Directors. Discretionary Awards to Independent Directors
shall be administered only by the Committee (consisting solely of
Independent Directors) and may not be subject to discretion of or
determination by the Company’s management.
SECTION 4. Shares
Available for Awards; Other Limits. (a) Shares
Available. Subject to adjustment as provided in
Section 4(b), the aggregate number of Shares that may be
delivered pursuant to Awards granted under the Plan shall be
4,500,000, all of which may be delivered pursuant to Incentive
Stock Options granted under the Plan. If, after the effective date
of the Plan, any Award granted under the Plan is forfeited, or
otherwise expires, terminates or is canceled without the delivery
of Shares, then the Shares covered by such forfeited, expired,
terminated or canceled Award shall again become available to be
delivered pursuant to Awards under the Plan. If Shares issued upon
exercise, vesting or settlement of an Award, or Shares owned by a
Participant (which are not subject to any pledge or other security
interest), are surrendered or tendered to the Company in payment of
the Exercise Price of an Award or any taxes required to be withheld
in respect of an Award, in each case, in accordance with the terms
and conditions of the Plan and any applicable Award Agreement, such
surrendered or tendered Shares shall again become available to be
delivered pursuant to Awards under the Plan; provided, however,
that in no event shall such Shares increase the number of Shares
that may be delivered pursuant to Incentive Stock Options granted
under the Plan. Subject to adjustment as provided in
Section 4(b), (i) the maximum aggregate number of Shares
with respect to which Awards may be granted to any Participant in
any fiscal year of the Company shall be 1,000,000, provided that
such number of Shares does not reflect, and shall automatically be
adjusted to take into account any stock distribution or stock split
that occurs in connection with the initial public offering of
Shares, and (ii) the maximum aggregate amount of cash and
other property (valued at its Fair Market Value) other than Shares
that may be paid or delivered pursuant to Awards under the Plan to
any Participant in any fiscal year of the Company shall be
$3,000,000.
(b) Adjustments for Changes
in Capitalization and Similar Events. In the event that
the Committee determines that any dividend or other distribution
(whether in the form of cash, Shares, other securities or other
property), recapitalization, stock split, reverse stock split,
reorganization, merger, consolidation, split-up, spin-off,
combination, repurchase or exchange of Shares or other securities
of the Company, issuance of warrants or other rights to purchase
Shares or other securities of the Company, or other similar
corporate transaction or event affects the Shares such that an
adjustment is determined by the Committee in its discretion to be
appropriate or desirable, then the Committee may (i) in such
manner as it may deem equitable or desirable, adjust any or all of
(A) the number of Shares or other securities of the Company
(or number and kind of other securities or property) with respect
to which Awards may be granted, including (1) the aggregate
number of Shares that may be delivered pursuant to Awards granted
under the Plan, as provided in Section 4(a) and
(2) the maximum number of Shares or other securities of the
Company (or number and kind of other securities or property) with
respect to which Awards may be granted to any Participant in any
fiscal year of the Company and (B) the terms of any outstanding
Award, including (1) the number of Shares or other securities
of the Company (or number and kind of other securities or property)
subject to outstanding Awards or to which outstanding Awards relate
and (2) the Exercise Price with respect to any Award,
(ii) if deemed appropriate or desirable by the Committee, make
provision for a cash payment to the holder of an outstanding Award
in consideration for the cancelation of such Award, including, in
the case of an outstanding Option or SAR, a cash payment to the
holder of such Option or SAR in consideration for the cancelation
of such Option or SAR in an amount equal to the excess,
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if any, of the Fair Market Value (as of a date
specified by the Committee) of the Shares subject to such Option or
SAR over the aggregate Exercise Price of such Option or SAR and
(iii) if deemed appropriate or desirable by the Committee,
cancel and terminate any Option or SAR having a per Share Exercise
Price equal to, or in excess of, the Fair Market Value of a Share
subject to such Option or SAR without any payment or consideration
therefor.
(c) Substitute Awards.
Awards may, in the discretion of the Committee, be granted
under the Plan in assumption of, or in substitution for,
outstanding awards previously granted by the Company or any of its
Affiliates or a company acquired by the Company or any of its
Affiliates or with which the Company or any of its Affiliates
combines (“Substitute Awards”). The number of Shares
underlying any Substitute Awards shall be counted against the
aggregate number of Shares available for Awards under the Plan;
provided, however, that Substitute Awards issued in connection with
the assumption of, or in substitution for, outstanding awards
previously granted by an entity that is acquired by the Company or
any of its Affiliates or with which the Company or any of its
Affiliates combines shall not be counted against the aggregate
number of Shares available for Awards under the Plan; provided
further, however, that Substitute Awards issued in connection with
the assumption of, or in substitution for, outstanding stock
options intended to qualify for special tax treatment under
Sections 421 and 422 of the Code that were previously granted
by an entity that is acquired by the Company or any of its
Affiliates or with which the Company or any of its Affiliates
combines shall be counted against the aggregate number of Shares
available for Incentive Stock Options under the Plan.
(d) Sources of Shares
Deliverable Under Awards. Any Shares delivered pursuant
to an Award may consist, in whole or in part, of authorized and
unissued Shares or of treasury Shares.
SECTION 5.
Eligibility. Any director, officer, employee or
consultant (including any prospective director, officer, employee
or consultant) of the Company or any of its Affiliates shall be
eligible to be designated a Participant.
SECTION 6. Awards.
(a) Types of Awards. Awards may be made
under the Plan in the form of (i) Options, (ii) SARs,
(iii) Restricted Shares, (iv) RSUs, (v) Performance
Units, (vi) Cash Incentive Awards and (viii) other
equity-based or equity-related Awards that the Committee determines
are consistent with the purpose of the Plan and the interests of
the Company. Awards may be granted in tandem with other Awards. No
Incentive Stock Option (other than an Incentive Stock Option that
may be assumed or issued by the Company in connection with a
transaction to which Section 424(a) of the Code applies)
may be granted to a person who is ineligible to receive an
Incentive Stock Option under the Code.
(b) Options.
(i) Grant. Subject to the provisions of the
Plan, the Committee shall have sole and plenary authority to
determine the Participants to whom Options shall be granted, the
number of Shares to be covered by each Option, whether the Option
wil
