EXHIBIT 10.1
Steven Madden, Ltd. 2006 Stock Incentive Plan,
Amended and Restated Effective May 22, 2009
TABLE OF CONTENTS
i
EXHIBIT A
STEVEN MADDEN, LTD.
2006 STOCK INCENTIVE PLAN
(Amended and Restated Effective May 22,
2009)
ARTICLE I
PURPOSE
The
purpose of this Plan is to enhance the profitability and value of
the Company for the benefit of its stockholders by enabling the
Company to offer Eligible Employees, Consultants and Non-Employee
Directors cash and stock based incentives in the Company to
attract, retain and reward such individuals and strengthen the
mutuality of interests between such individuals and the
Company’s stockholders.
This
Plan, in the form set forth herein, is effective as of the
Restatement Date (as defined in Article XVII) and is an amendment
and restatement of the Steve Madden, Ltd. 2006 Stock Incentive
Plan, as amended (the “Initial Plan”), which was
initially effective March 10, 2006.
ARTICLE II
DEFINITIONS
For
purposes of this Plan, the following terms shall have the following
meanings:
2.1 “
Acquisition Event ” means a merger or consolidation in which the
Company is not the surviving entity, any transaction that results
in the acquisition of all or substantially all of the
Company’s outstanding Common Stock by a single person or
entity or by a group of persons and/or entities acting in concert,
or the sale or transfer of all or substantially all of the
Company’s assets.
2.2 “
Affiliate ” means each of the following: (a) any
Subsidiary; (b) any Parent; (c) any corporation, trade or
business (including, without limitation, a partnership or limited
liability company) which is directly or indirectly controlled 50%
or more (whether by ownership of stock, assets or an equivalent
ownership interest or voting interest) by the Company; (d) any
corporation, trade or business (including, without limitation, a
partnership or limited liability company) which directly or
indirectly controls 50% or more (whether by ownership of stock,
assets or an equivalent ownership interest or voting interest) of
the Company; and (e) any other entity in which the Company or
any of its Affiliates has a material equity interest and which is
designated as an “Affiliate” by resolution of the
Committee; provided that the Common Stock
subject to any Award constitutes
“service recipient stock” for purposes of Section 409A
of the Code or otherwise does not subject the Award to Section 409A
of the Code.
2.3 “
Appreciation Award ” means any Award under this Plan of any Stock
Option, Stock Appreciation Right or Other Stock-Based Award,
provided that such Other Stock-Based Award is based on the
appreciation in value of a share of Common Stock in excess of an
amount equal to at least the Fair Market Value of the Common Stock
on the date such Other Stock-Based Award is granted.
2.4 “
Award ” means any award under this Plan of any Stock
Option, Stock Appreciation Right, Restricted Stock, Performance
Share, Other Stock-Based Award or Performance-Based Cash Awards.
All Awards shall be granted by, confirmed by, and subject to the
terms of, a written agreement executed by the Company and the
Participant.
2.5 “
Board ” means the Board of Directors of the
Company.
2.6 “
Cause ” means with respect to a Participant’s
Termination of Employment or Termination of Consultancy from and
after the date hereof, the following: (a) in the case where there
is no employment agreement, consulting agreement, change in control
agreement or similar agreement in effect between the Company or an
Affiliate and the Participant at the time of the grant of the Award
(or where there is such an agreement but it does not define
“cause” (or words of like import)), termination due to:
(i) a Participant’s conviction of, or plea of guilty or nolo
contendere to, a felony; (ii) perpetration by a Participant of an
illegal act, or fraud which could cause significant economic injury
to the Company; (iii) continuing willful and deliberate failure by
the Participant to perform the Participant’s duties in any
material respect, provided that the Participant is given notice and
an opportunity to effectuate a cure as determined by the Committee;
or (iv) a Participant’s willful misconduct with regard to the
Company that could have a material adverse effect on the Company;
or (b) in the case where there is an employment agreement,
consulting agreement, change in control agreement or similar
agreement in effect between the Company or an Affiliate and the
Participant at the time of the grant of the Award that defines
“cause” (or words of like import), “cause”
as defined under such agreement; provided, however, that with
regard to any agreement under which the definition of
“cause” only applies on occurrence of a change in
control, such definition of “cause” shall not apply
until a change in control actually takes place and then only with
regard to a termination thereafter. With respect to a
Participant’s Termination of Directorship,
“cause” means an act or failure to act that constitutes
cause for removal of a director under applicable Delaware
law.
2.7 “
Change in Control ” has the meaning set forth in Section
13.2.
2.8 “
Change in Control Price ” has the meaning set forth in Section
13.1.
2.9 “
Code ” means
the Internal Revenue Code of 1986, as amended. Any reference to any
section of the Code shall also be a reference to any successor
provision and any Treasury Regulation promulgated
thereunder.
2.10 “
Committee ”
means a committee or subcommittee of the Board appointed from time
to time by the Board, which committee or subcommittee shall consist
of two or more non-employee directors, each of whom shall be (i) a
“non-employee director” as defined in Rule
16b-
2
3; (ii) to the extent required by
Section 162(m) of the Code, an “outside director” as
defined under Section 162(m) of the Code; and (iii) an
“independent director” as defined under NASD Rule
4200(a)(15) or such other applicable stock exchange rule. To the
extent that no Committee exists that has the authority to
administer this Plan, the functions of the Committee shall be
exercised by the Board. If for any reason the appointed Committee
does not meet the requirements of Rule 16b-3 or Section 162(m) of
the Code, such noncompliance shall not affect the validity of
Awards, grants, interpretations or other actions of the
Committee.
2.11 “
Common Stock ” means the Common Stock, $0.0001 par value per
share, of the Company.
2.12 “
Company ” means Steven Madden, Ltd., a Delaware
corporation, and its successors by operation of law.
2.13 “
Consultant ” means any natural person who provides bona fide
consulting or advisory services to the Company or its Affiliates
pursuant to a written agreement, which are not in connection with
the offer and sale of securities in a capital-raising
transaction.
2.14 “
Disability ” means with respect to a Participant’s
Termination, a permanent and total disability as defined in Section
22(e)(3) of the Code. A Disability shall only be deemed to occur at
the time of the determination by the Committee of the Disability.
Notwithstanding the foregoing, for Awards that are subject to
Section 409A of the Code, Disability shall mean that a Participant
is disabled under Section 409A(a)(2)(C)(i) or (ii) of the
Code.
2.15 “
Effective Date ” means the effective date of this Plan as defined
in Article XVII.
2.16 “
Eligible Employees ” means each employee of the Company or an
Affiliate.
2.17 “
Exchange Act ” means the Securities Exchange Act of 1934, as
amended. Any references to any section of the Exchange Act shall
also be a reference to any successor provision.
2.18 “
Fair Market Value ” means, unless otherwise required by any
applicable provision of the Code or any regulations issued
thereunder, as of any date and except as provided below, the
closing price reported for the Common Stock on the applicable date:
(a) as reported on the principal national securities exchange in
the United States on which it is then traded or The Nasdaq Stock
Market; or (b) if not traded on any such national securities
exchange or The Nasdaq Stock Market, as quoted on an automated
quotation system sponsored by the National Association of
Securities Dealers, Inc. or if the Common Stock shall not have been
reported or quoted on such date, on the first day prior thereto on
which the Common Stock was reported or quoted. If the Common Stock
is not traded, listed or otherwise reported or quoted, then Fair
Market Value means the fair market value of the Common Stock as
determined by the Committee in good faith in whatever manner it
considers appropriate taking into account the requirements of
Section 422 of the Code or Section 409A of the Code, as applicable.
For purposes of the grant of any Award, the applicable date shall
be the trading day immediately prior to the date on which the Award
is granted. For purposes of the exercise of any Award, the
applicable date shall be the date a notice of exercise is received
by the Committee or, if not a day on which the applicable market is
open, the next day that it is open.
3
2.19 “
Family Member ” means “family member” as defined in
Section A.1.(5) of the general instructions of Form S-8, as may be
amended from time to time.
2.20 “
GAAP ” has
the meaning set forth in Section 11.2(c)(ii).
2.21 “
Incentive Stock Option ” means any Stock Option awarded to an Eligible
Employee of the Company, its Subsidiaries and its Parent (if any)
under this Plan intended to be and designated as an
“Incentive Stock Option” within the meaning of Section
422 of the Code.
2.22 “
Non-Employee Director ” means a director of the Company who is not an
active employee of the Company or an Affiliate.
2.23 “
Non-Qualified Stock Option ” means any Stock Option awarded under this Plan
that is not an Incentive Stock Option.
2.24 “
Other Stock-Based Award ” means an Award under Article X of this Plan that
is valued in whole or in part by reference to, or is payable in or
otherwise based on, Common Stock, including, without limitation, a
restricted stock unit or an Award valued by reference to an
Affiliate.
2.25 “
Parent ” means any parent corporation of the Company
within the meaning of Section 424(e) of the Code.
2.26 “
Participant ” means an Eligible Employee, Non-Employee
Director or Consultant to whom an Award has been granted pursuant
to this Plan.
2.27 “
Performance-Based Cash Award ” means a cash Award under Article XI of this Plan
that is payable or otherwise based on the attainment of certain
pre-established performance goals during a Performance
Period.
2.28 “
Performance Period ” means the duration of the period during which
receipt of an Award is subject to the satisfaction of performance
criteria, such period as determined by the Committee in its sole
discretion.
2.29 “
Performance Share ” means an Award made pursuant to Article IX of
this Plan of the right to receive Common Stock or cash of an
equivalent value at the end of a specified Performance
Period.
2.30 “
Person ” means any individual, corporation, partnership,
limited liability company, firm, joint venture, association,
joint-stock company, trust, incorporated organization, governmental
or regulatory or other entity.
2.31 “
Plan ” means
this Steven Madden, Ltd. 2006 Stock Incentive Plan, as amended from
time to time.
2.32 “
Reference Stock Option ” has the meaning set forth in Section
7.1.
4
2.33
“ Restricted Stock ” means an Award of shares of Common Stock under
this Plan that is subject to restrictions under Article
VIII.
2.34 “
Restriction Period ” has the meaning set forth in Subsection
8.3(a).
2.35 “
Retirement ” means a voluntary Termination of Employment at
or after age 65 or such earlier date after age 50 as may be
approved by the Committee, in its sole discretion at the time of
grant or thereafter provided that the exercise of such discretion
does not make the applicable Award subject to Section 409A of the
Code, except that Retirement shall not include any Termination with
or without Cause. With respect to a Participant’s Termination
of Directorship, Retirement means the failure to stand for
reelection or the failure to be reelected on or after a Participant
has attained age 65 or, with the consent of the Board, provided
that the exercise of such discretion does not make the applicable
Award subject to Section 409A of the Code, before age 65 but after
age 50.
2.36 “
Rule 16b-3 ” means Rule 16b-3 under Section 16(b) of the
Exchange Act as then in effect or any successor
provision.
2.37 “
Section 162(m) of the Code ” means the exception for performance-based
compensation under Section 162(m) of the Code and any applicable
Treasury regulations thereunder.
2.38 “
Section 409A of the Code ” means the nonqualified deferred compensation
rules under Section 409A of the Code and any applicable Treasury
regulations thereunder.
2.39 “
Securities Act ” means the Securities Act of 1933, as amended and
all rules and regulations promulgated thereunder. Any reference to
any section of the Securities Act shall also be a reference to any
successor provision.
2.40 “
Stock Appreciation Right ” means the right pursuant to an Award granted
under Article VII. A Tandem Stock Appreciation Right shall mean the
right to surrender to the Company all (or a portion) of a Stock
Option in exchange for cash or a number of shares of Common Stock
(as determined by the Committee, in its sole discretion, on the
date of grant) equal to the difference between (a) the Fair
Market Value on the date such Stock Option (or such portion
thereof) is surrendered, of the Common Stock covered by such Stock
Option (or such portion thereof), and (b) the aggregate
exercise price of such Stock Option (or such portion thereof). A
Non-Tandem Stock Appreciation Right shall mean the right to receive
cash or a number of shares of Common Stock (as determined by the
Committee, in its sole discretion, on the date of grant) equal to
the difference between (i) the Fair Market Value of a share of
Common Stock on the date such right is exercised, and (ii) the
aggregate exercise price of such right, otherwise than on surrender
of a Stock Option.
2.41 “
Stock Option ” or “ Option ” means
any option to purchase shares of Common Stock granted to Eligible
Employees, Non-Employee Directors or Consultants granted pursuant
to Article VI.
2.42 “
Subsidiary ” means any subsidiary corporation of the Company
within the meaning of Section 424(f) of the Code.
5
2.43 “
Ten Percent Stockholder ” means a person owning stock possessing more than
10% of the total combined voting power of all classes of stock of
the Company, its Subsidiaries or its Parent.
2.44 “
Termination ” means a Termination of Consultancy, Termination
of Directorship or Termination of Employment, as
applicable.
2.45 “
Termination of Consultancy ” means: (a) that the Consultant is no longer
acting as a consultant to the Company or an Affiliate; or (b) when
an entity which is retaining a Participant as a Consultant ceases
to be an Affiliate unless the Participant otherwise is, or
thereupon becomes, a Consultant to the Company or another Affiliate
at the time the entity ceases to be an Affiliate. In the event that
a Consultant becomes an Eligible Employee or a Non-Employee
Director upon the termination of his or her consultancy, unless
otherwise determined by the Committee, in its sole discretion, no
Termination of Consultancy shall be deemed to occur until such time
as such Consultant is no longer a Consultant, an Eligible Employee
or a Non-Employee Director. Notwithstanding the foregoing, the
Committee may, in its sole discretion, otherwise define Termination
of Consultancy in the Award agreement or, if no rights of a
Participant are reduced, may otherwise define Termination of
Consultancy thereafter.
2.46 “
Termination of Directorship ” means that the Non-Employee Director has ceased
to be a director of the Company; except that if a Non-Employee
Director becomes an Eligible Employee or a Consultant upon the
termination of his or her directorship, his or her ceasing to be a
director of the Company shall not be treated as a Termination of
Directorship unless and until the Participant has a Termination of
Employment or Termination of Consultancy, as the case may
be.
2.47 “
Termination of Employment ” means: (a) a termination of employment (for
reasons other than a military or personal leave of absence granted
by the Company) of a Participant from the Company and its
Affiliates; or (b) when an entity which is employing a
Participant ceases to be an Affiliate, unless the Participant
otherwise is, or thereupon becomes, employed by the Company or
another Affiliate at the time the entity ceases to be an Affiliate.
In the event that an Eligible Employee becomes a Consultant or a
Non-Employee Director upon the termination of his or her
employment, unless otherwise determined by the Committee, in its
sole discretion, no Termination of Employment shall be deemed to
occur until such time as such Eligible Employee is no longer an
Eligible Employee, a Consultant or a Non-Employee Director.
Notwithstanding the foregoing, the Committee may, in its sole
discretion, otherwise define Termination of Employment in the Award
agreement or, if no rights of a Participant are reduced, may
otherwise define Termination of Employment thereafter.
2.48 “
Transfer ” means: (a) when used as a noun, any direct or
indirect transfer, sale, assignment, pledge, hypothecation,
encumbrance or other disposition (including the issuance of equity
in a Person), whether for value or no value and whether voluntary
or involuntary (including by operation of law), and (b) when used
as a verb, to directly or indirectly transfer, sell, assign,
pledge, encumber, charge, hypothecate or otherwise dispose of
(including the issuance of equity in a Person) whether for value or
for no value and whether voluntarily or involuntarily (including by
operation of law). “Transferred” and
“Transferrable” shall have a correlative
meaning.
6
ARTICLE III
ADMINISTRATION
3.1
The Committee . This Plan shall be administered and interpreted
by the Committee.
3.2
Grants of Awards .
The Committee shall have full authority to grant, pursuant to the
terms of this Plan, to Eligible Employees, Consultants and
Non-Employee Directors: (i) Stock Options, (ii) Stock
Appreciation Rights, (iii) Restricted Stock,
(iv) Performance Shares; (v) Other Stock-Based Awards,
and (vi) Performance-Based Cash Awards. In particular, the
Committee shall have the authority:
|
|
|
|
|
|
(a)
|
to select the Eligible Employees,
Consultants and Non-Employee Directors to whom Awards may from time
to time be granted hereunder;
|
|
|
|
|
|
|
(b)
|
to determine whether and to what
extent Awards, or any combination thereof, are to be granted
hereunder to one or more Eligible Employees, Consultants or
Non-Employee Directors;
|
|
|
|
|
|
|
(c)
|
to determine the number of shares
of Common Stock to be covered by each Award granted
hereunder;
|
|
|
|
|
|
|
(d)
|
to determine the terms and
conditions, not inconsistent with the terms of this Plan, of any
Award granted hereunder (including, but not limited to, the
exercise or purchase price (if any), any restriction or limitation,
any vesting schedule or acceleration thereof, or any forfeiture
restrictions or waiver thereof, regarding any Award and the shares
of Common Stock relating thereto, based on such factors, if any, as
the Committee shall determine, in its sole discretion);
|
|
|
|
|
|
|
(e)
|
to determine whether, to what
extent and under what circumstances grants of Options and other
Awards under this Plan are to operate on a tandem basis and/or in
conjunction with or apart from other awards made by the Company
outside of this Plan;
|
|
|
|
|
|
|
(f)
|
to determine whether and under
what circumstances a Stock Option may be settled in cash, Common
Stock and/or Restricted Stock under Section 6.3(d);
|
|
|
|
|
|
|
(g)
|
to determine whether, to what
extent and under what circumstances Common Stock and other amounts
payable with respect to an Award under this Plan shall be deferred
either automatically or at the election of the Participant in any
case, in a manner intended to comply with, Section 409A of the
Code;
|
7
|
|
|
|
|
|
(h)
|
to determine whether a Stock
Option is an Incentive Stock Option or Non-Qualified Stock
Option;
|
|
|
|
|
|
|
(i)
|
to determine whether to require a
Participant, as a condition of the granting of any Award, to not
sell or otherwise dispose of shares acquired pursuant to the
exercise of an Award for a period of time as determined by the
Committee, in its sole discretion, following the date of the
acquisition of such Award; and
|
|
|
|
|
|
|
(j)
|
to set the performance criteria
and the Performance Period with respect to any Award for which the
grant, vesting or payment of such Award is conditioned upon the
attainment of specified performance criteria and to certify the
attainment of any such performance criteria; provided , that
with regard to any Award that is intended to comply with Section
162(m) of the Code, the applicable performance criteria shall be
based on one or more of the performance goals set forth in Exhibit
A hereto (“Performance Goals”).
|
3.3
Guidelines .
Subject to Article XIV hereof, the Committee shall, in its sole
discretion, have the authority to adopt, alter and repeal such
administrative rules, guidelines and practices governing this Plan
and perform all acts, including the delegation of its
responsibilities (to the extent permitted by applicable law and
applicable stock exchange rules), as it shall, from time to time,
deem advisable; to construe and interpret the terms and provisions
of this Plan and any Award issued under this Plan (and any
agreements relating thereto); and to otherwise supervise the
administration of this Plan. The Committee may, in its sole
discretion, correct any defect, supply any omission or reconcile
any inconsistency in this Plan or in any agreement relating thereto
in the manner and to the extent it shall deem necessary to
effectuate the purpose and intent of this Plan; provided ,
that with regard to any provision of this Plan or any agreement
relating thereto that is intended to comply with Section 162(m) of
the Code, any such action by the Committee shall be permitted only
to the extent such action would be permitted under Section 162(m)
of the Code. The Committee may, in its sole discretion, adopt
special guidelines and provisions for persons who are residing in
or employed in, or subject to, the taxes of, any domestic or
foreign jurisdictions to comply with applicable tax and securities
laws of such domestic or foreign jurisdictions. This Plan is
intended to comply with the applicable requirements of Rule 16b-3
and with respect to Awards intended to be
“performance-based,” the applicable provisions of
Section 162(m) of the Code, and this Plan shall be limited,
construed and interpreted in a manner so as to comply
therewith.
3.4
Decisions Final .
Any decision, interpretation or other action made or taken in good
faith by or at the direction of the Company, the Board or the
Committee (or any of its members) arising out of or in connection
with this Plan shall be within the absolute discretion of all and
each of them, as the case may be, and shall be final, binding and
conclusive on the Company and all employees and Participants and
their respective heirs, executors, administrators, successors and
assigns.
3.5
Procedures . If
the Committee is appointed, the Board shall designate one of the
members of the Committee as chairman and the Committee shall hold
meetings, subject to the
8
By-Laws of the Company, at such
times and places as it shall deem advisable, including, without
limitation, by telephone conference or by written consent to the
extent permitted by applicable law. A majority of the Committee
members shall constitute a quorum. All determinations of the
Committee shall be made by a majority of its members. Any decision
or determination reduced to writing and signed by all the Committee
members in accordance with the By-Laws of the Company shall be
fully effective as if it had been made by a vote at a meeting duly
called and held. The Committee shall keep minutes of its meetings
and shall make such rules and regulations for the conduct of its
business as it shall deem advisable.
3.6
Designation of Consultants/Liability .
|
|
|
|
|
|
(a)
|
The Committee may, in its sole
discretion, designate employees of the Company and professional
advisors to assist the Committee in the administration of this Plan
and (to the extent permitted by applicable law and applicable
exchange rules) may grant authority to officers to grant Awards
and/or execute agreements or other documents on behalf of the
Committee.
|
|
|
|
|
|
|
(b)
|
The Committee may, in its sole
discretion, employ such legal counsel, consultants and agents as it
may deem desirable for the administration of this Plan and may rely
upon any opinion received from any such counsel or consultant and
any computation received from any such consultant or agent.
Expenses incurred by the Committee or the Board in the engagement
of any such counsel, consultant or agent shall be paid by the
Company. The Committee, its members and any person designated
pursuant to sub-section (a) above shall not be liable for any
action or determination made in good faith with respect to this
Plan. To the maximum extent permitted by applicable law, no officer
of the Company or member or former member of the Committee or of
the Board shall be liable for any action or determination made in
good faith with respect to this Plan or any Award granted under
it.
|
3.7
Indemnification .
To the maximum extent permitted by applicable law and the
Certificate of Incorporation and By-Laws of the Company and to the
extent not covered by insurance directly insuring such person, each
officer or employee of the Company or any Affiliate and member or
former member of the Committee or the Board shall be indemnified
and held harmless by the Company against any cost or expense
(including reasonable fees of counsel reasonably acceptable to the
Committee) or liability (including any sum paid in settlement of a
claim with the approval of the Committee), and advanced amounts
necessary to pay the foregoing at the earliest time and to the
fullest extent permitted, arising out of any act or omission to act
in connection with the administration of this Plan, except to the
extent arising out of such officer’s, employee’s,
member’s or former member’s fraud. Such indemnification
shall be in addition to any rights of indemnification the officers,
employees, directors or members or former officers, directors or
members may have under applicable law or under the Certificate of
Incorporation or By-Laws of the Company or any Affiliate.
Notwithstanding anything else herein, this indemnification will not
apply to the actions or determinations made by an individual with
regard to Awards granted to him or her under this Plan.
9
ARTICLE IV
SHARE LIMITATION
4.1
Shares .
|
|
|
|
|
|
(a)
|
General Limitations
. The aggregate number of shares of
Common Stock that may be issued or used for reference purposes or
with respect to which Awards may be granted under this Plan shall
not exceed 4,064,000 shares (subject to any increase or decrease
pursuant to Section 4.2), which may be either authorized and
unissued Common Stock or Common Stock held in or acquired for the
treasury of the Company or both. Any shares of Common Stock that
are subject to Awards that are not Appreciation Awards shall be
counted against this limit as 1.78 shares for every share granted.
If any Appreciation Award granted under this Plan expires,
terminates, is cancelled or is forfeited for any reason, the number
of shares of Common Stock underlying any such Award shall again be
available for the purpose of Awards under this Plan and added back
to the aggregate maximum limit. If any Awards that are not
Appreciation Awards granted under this Plan to a Participant
expire, terminate, are cancelled or are forfeited for any reason,
1.78 shares of Common Stock shall again be available for the
purposes of Awards under this Plan and added back to the aggregate
maximum limit. If a Tandem Stock Appreciation Right or a Limited
Stock Appreciation Right is granted in tandem with an Option, such
grant shall only apply once against the maximum number of shares of
Common Stock which may be issued under this Plan. The number of
shares of Common Stock available for the purpose of Awards under
this Plan shall be reduced by (i) the total number of Stock Options
or Stock Appreciation Rights exercised, regardless of whether any
of the shares of Common Stock underlying such Awards are not
actually issued to the Participant as the result of a net
settlement, (ii) any shares of Common Stock used to pay any
exercise price or tax withholding obligation with respect to any
Award and (iii) any shares of Common Stock repurchased by the
Company on the open market with the proceeds of an Stock Option
exercise price.
|
|
|
|
|
|
|
(b)
|
Individual Participant
Limitations .
|
|
|
|
|
|
|
|
(i) The
maximum number of shares of Common Stock subject to any Award of
Stock Options, Stock Appreciation Rights or shares of Restricted
Stock for which the grant of such Award or the lapse of the
relevant Restriction Period is subject to the attainment of
Performance Goals in accordance with Section 8.3(a)(ii) herein
which may be granted under this Plan during any fiscal year of the
Company to each Eligible Employee or Consultant shall be 600,000
shares per type of Award (which shall be subject to any further
increase or decrease pursuant to Section 4.2), provided that the
maximum number of shares of Common Stock for
|
10
|
|
|
|
|
|
|
all types of Awards does not
exceed 750,000 (which shall be subject to any further increase or
decrease pursuant to Section 4.2) with respect to any fiscal year
of the Company. If a Tandem Stock Appreciation Right is granted or
a Limited Stock Appreciation Right is granted in tandem with a
Stock Option, it shall apply against the Eligible Employee’s
or Consultant’s individual share limitations for both Stock
Appreciation Rights and Stock Options.
|
|
|
|
|
|
|
|
(ii) The
maximum number of shares of Common Stock subject to any Award of
Stock Options (other than Incentive Stock Options), Stock
Appreciation Rights, Performance Shares or Other Stock-Based Awards
which may be granted under this Plan during any fiscal year of the
Company to each Non-Employee Director shall be 150,000 shares per
type of Award (which shall be subject to any further increase or
decrease pursuant to Section 4.2), provided that the maximum number
of shares of Common Stock for all types of Awards does not exceed
200,000 (which shall be subject to any further increase or decrease
pursuant to Section 4.2) with respect to any fiscal year of the
Company, provided further, that, effective on the date of the
Company’s 2009 annual stockholders’ meeting, in no
event shall the aggregate grant of Awards to Non-Employee Directors
granted on and after such date exceed 10% (when combined with the
10% limitation set forth in Sections 8.3(a)(iii), 9.2(f), and
10.2(d) of this Plan) of the total number of shares of Common Stock
reserved for Awards under this Plan. If a Tandem Stock Appreciation
Right is granted or a Limited Stock Appreciation Right is granted
in tandem with a Stock Option, it shall apply against the
Non-Employee Director’s individual share limitations for both
Stock Appreciation Rights and Stock Options.
|
|
|
|
|
|
|
|
(iii) There
are no annual individual Eligible Employee or Consultant share
limitations on Restricted Stock for which the grant of such Award
or the lapse of the relevant Restriction Period is not subject to
attainment of Performance Goals in accordance with Section
8.3(a)(ii) hereof.
|
|
|
|
|
|
|
|
(iv) The
maximum number of shares of Common Stock subject to any Award of
Performance Shares which may be granted under this Plan during any
fiscal year of the Company to each Eligible Employee or Consultant
shall be 300,000 (which shall be subject to any further increase or
decrease pursuant to Section 4.2) with respect to any fiscal year
of the Company. Each Performance Share shall be referenced to one
share of Common Stock and shall be charged against the available
shares under this Plan at the time the unit value measurement is
converted to a referenced number of shares of Common Stock in
accordance with Section 9.1.
|
11
|
|
|
|
|
|
|
(v) The
maximum payment under any Performance-Based Cash Award payable with
respect to any fiscal year of the Company and for which the grant
of such Award is subject to the attainment of Performance Goals in
accordance with Section 11.2(c) herein which may be granted under
this Plan with respect to any fiscal year of the Company to each
Eligible Employee or Consultant shall be $10,000,000.
|
|
|
|
|
|
|
|
(vi) The
individual Participant limitations set forth in this Section 4.1(b)
shall be cumulative; that is, to the extent that shares of Common
Stock for which Awards are permitted to be granted to an Eligible
Employee or a Consultant during a fiscal year are not covered by an
Award to such Eligible Employee or Consultant in a fiscal year, the
number of shares of Common Stock available for Awards to such
Eligible Employee or Consultant shall automatically increase in the
subsequent fiscal years during the term of the Plan until
used.
|
|
|
|
|
|
4.2
Changes .
|
|
|
|
|
|
|
(a)
|
The existence of this Plan and
the Awards granted hereunder shall not affect in any way the right
or power of the Board or the stockholders of the Company to make or
authorize (i) any adjustment, recapitalization, reorganization or
other change in the Company’s capital structure or its
business, (ii) any merger or consolidation of the Company or any
Affiliate, (iii) any issuance of bonds, debentures, preferred or
prior preference stock ahead of or affecting the Common Stock, (iv)
the dissolution or liquidation of the Company or any Affiliate, (v)
any sale or transfer of all or part of the assets or business of
the Company or any Affiliate or (vi) any other corporate act or
proceeding.
|
|
|
|
|
|
|
(b)
|
Subject to the provisions of
Section 4.2(d), if there shall occur any such change in the capital
structure of the Company by reason of any stock split, reverse
stock split, stock dividend, subdivision, combination or
reclassification of shares that may be issued under the Plan, any
recapitalization, any merger, any consolidation, any spin off, any
reorganization or any partial or complete liquidation, or any other
corporate transaction or event having an effect similar to any of
the foregoing (a “ Section 4.2 Event ”), then
(i) the aggregate number and/or kind of shares that thereafter may
be issued under the Plan, (ii) the number and/or kind of shares or
other property (including cash) to be issued upon exercise of an
outstanding Award or under other Awards granted under the Plan,
(iii) the purchase price thereof, and/or (iv) the individual
Participant limitations set forth in Section 4.1(b) (other than
those based on cash limitations) shall be appropriately adjusted.
In addition, subject to Section 4.2(d), if there shall occur any
change in the capital structure or the business of the Company that
is not a Section 4.2 Event (an “ Other Extraordinary
Event ”), including by reason of any extraordinary
dividend (whether cash or stock), any conversion, any adjustment,
any issuance of
|
12
|
|
|
|
|
|
|
any class of securities
convertible or exercisable into, or exercisable for, any class of
stock, or any sale or transfer of all or substantially all the
Company’s assets or business, then the Committee, in its sole
discretion, may adjust any Award and make such other adjustments to
the Plan. Any adjustment pursuant to this Section 4.2 shall be
consistent with the applicable Section 4.2 Event or the applicable
Other Extraordinary Event, as the case may be, and in such manner
as the Committee may, in its sole discretion, deem appropriate and
equitable to prevent substantial dilution or enlargement of the
rights granted to, or available for, Participants under the Plan.
Any such adjustment determined by the Committee shall be final,
binding and conclusive on the Company and all Participants and
their respective heirs, executors, administrators, successors and
permitted assigns. Except as expressly provided in this Section 4.2
or in the applicable Award agreement, a Participant shall have no
rights by reason of any Section 4.2 Event or any Other
Extraordinary Event.
|
|
|
|
|
|
|
(c)
|
Fractional shares of Common Stock
resulting from any adjustment in Awards pursuant to Section 4.2(a)
or (b) shall be aggregated until, and eliminated at, the time of
exercise by rounding-down for fractions less than one-half and
rounding-up for fractions equal to or greater than one-half. No
cash settlements shall be made with respect to fractional shares
eliminated by rounding. Notice of any adjustment shall be given by
the Committee to each Participant whose Award has been adjusted and
such adjustment (whether or not such notice is given) shall be
effective and binding for all purposes of this Plan.
|
|
|
|
|
|
|
(d)
|
In the event of an Acquisition
Event, the Committee may, in its sole discretion, terminate all
outstanding and unexercised Stock Options or Stock Appreciation
Rights or any Other Stock Based Award that provides for a
Participant elected exercise effective as of the date of the
Acquisition Event, by delivering notice of termination to each
Participant at least 20 days prior to the date of consummation of
the Acquisition Event, in which case during the period from the
date on which such notice of termination is delivered to the
consummation of the Acquisition Event, each such Participant shall
have the right to exercise in full all of his or her Stock Options
or Stock Appreciation Rights that are then outstanding (without
regard to any limitations on exercisability otherwise contained in
the Award agreements), but any such exercise shall be contingent on
the occurrence of the Acquisition Event, and, provided that, if the
Acquisition Event does not take place within a specified period
after giving such notice for any reason whatsoever, the notice and
exercise pursuant thereto shall be null and void.
|
|
|
|
|
|
|
If an Acquisition Event occurs
but the Committee does not terminate the outstanding Awards
pursuant to this Section 4.2(d), then the provisions of Section
4.2(b) and Article XIII shall apply.
|
13
4.3
Minimum Purchase Price . Notwithstanding any provision of this Plan to
the contrary, if authorized but previously unissued shares of
Common Stock are issued under this Plan, such shares shall not be
issued for a consideration that is less than as permitted under
applicable law.
ARTICLE V
ELIGIBILITY – GENERAL REQUIREMENTS FOR AWARDS
5.1
General Eligibility . All Eligible Employees, Consultants,
Non-Employee Directors and prospective employees and consultants
are eligible to be granted Awards, subject to the terms and
conditions of this Plan. Eligibility for the grant of Awards and
actual participation in this Plan shall be determined by the
Committee in its sole discretion.
5.2
Incentive Stock Options . Notwithstanding anything herein to the
contrary, only Eligible Employees of the Company, its Subsidiaries
and its Parent (if any) are eligible to be granted Incentive Stock
Options under this Plan. Eligibility for the grant of an Incentive
Stock Option and actual participation in this Plan shall be
determined by the Committee in its sole discretion.
5.3
General Requirement . The vesting and exercise of Awards granted to
a prospective employee or consultant are conditioned upon such
individual actually becoming an Eligible Employee or
Consultant.
ARTICLE VI
STOCK OPTIONS
6.1
Options . Stock
Options may be granted alone or in addition to other Awards granted
under this Plan. Each Stock Option granted under this Plan shall be
of one of two types: (a) an Incentive Stock Option or
(b) a Non-Qualified Stock Option.
6.2
Grants . The
Committee shall, in its sole discretion, have the authority to
grant to any Eligible Employee (subject to Section 5.2) Incentive
Stock Options, Non-Qualified Stock Options, or both types of Stock
Options. The Committee shall, in its sole discretion, have the
authority to grant Non-Qualified Stock Options to any Consultant or
Non-Employee Director. To the extent that any Stock Option does not
qualify as an Incentive Stock Option (whether because of its
provisions or the time or manner of its exercise or otherwise),
such Stock Option or the portion thereof which does not qualify
shall constitute a separate Non-Qualified Stock Option.
6.3
Terms of Options .
Options granted under this Plan shall be subject to the following
terms and conditions and shall be in such form and contain such
additional terms and conditions, not inconsistent with the terms of
this Plan, as the Committee, in its sole discretion, shall deem
desirable:
|
|
|
|
|
|
(a)
|
Exercise Price
. The exercise price per share of
Common Stock subject to a Stock Option shall be determined by the
Committee at the time of grant,
|
14
|
|
|
|
|
|
|
provided that the per share
exercise price of a Stock Option shall not be less than 100% (or,
in the case of an Incentive Stock Option granted to a Ten Percent
Stockholder, 110%) of the Fair Market Value of the Common Stock at
the time of grant.
|
|
|
|
|
|
|
(b)
|
Stock Option Term
. The term of each Stock Option
shall be fixed by the Committee, provided that no Stock Option
shall be exercisable more than seven (7) years after the date the
Option is granted; and provided further that the term of an
Incentive Stock Option granted to a Ten Percent Stockholder shall
not exceed five (5) years.
|
|
|
|
|
|
|
(c)
|
Exercisability
. Stock Options shall be exercisable
at such time or times and subject to such terms and conditions or
as shall be determined by the Committee at grant. If the Committee
provides, in its discretion, that any Stock Option is exercisable
subject to certain limitations (including, without limitation, that
such Stock Option is exercisable only in installments or within
certain time periods), the Committee may waive such limitations on
the exercisability at any time at or after grant in whole or in
part (including, without limitation, waiver of the installment
exercise provisions or acceleration of the time at which such Stock
Option may be exercised), based on such factors, if any, as the
Committee shall determine, in its sole discretion. In the event
that a written employment agreement between the Company and a
Participant provides for a vesting schedule that is more favorable
than the vesting schedule provided in the form of Award Agreement,
the vesting schedule in such employment agreement shall govern,
provided that such agreement is in effect on the date of grant and
applicable to the specific Award.
|
|
|
|
|
|
|
(d)
|
Method of Exercise
. Subject to whatever installment
exercise and waiting period provisions apply under subsection (c)
above, to the extent vested, Stock Options may be exercised in
whole or in part at any time during the Option term, by giving
written notice of exercise to the Company specifying the number of
shares of Common Stock to be purchased. Such notice shall be in a
form acceptable to the Company and shall be accompanied by payment
in full of the purchase price as follows: (i) in cash or by check,
bank draft or money order payable to the order of the Company; (ii)
solely to the extent permitted by applicable law, if the Common
Stock is traded on a national securities exchange, the Nasdaq Stock
Market or quoted on a national quotation system sponsored by the
National Association of Securities Dealers, and the Committee
authorizes, through a procedure whereby the Participant delivers
irrevocable instructions to a broker reasonably acceptable to the
Committee to deliver promptly to the Company an amount equal to the
purchase price; or (iii) on such other terms and conditions as may
be acceptable to the Committee (including, without limitation, the
relinquishment of Stock Options or by payment in full or
in
|
