Terex Corporation
2009 Omnibus Incentive
Plan
Effective May 14, 2009
Contents
|
Article 1.
Establishment, Purpose, and Duration
|
1
|
|
Article 3.
Administration
|
7
|
|
Article 4. Shares
Subject to This Plan and Maximum Awards
|
9
|
|
Article 5.
Eligibility and Participation
|
11
|
|
Article 6. Stock
Options
|
11
|
|
Article 7. Stock
Appreciation Rights
|
14
|
|
Article 8.
Restricted Stock and Restricted Stock Units
|
15
|
|
Article 9.
Performance Units/Performance Shares
|
16
|
|
Article 10.
Cash-Based Awards and Other Stock-Based Awards
|
17
|
|
Article 11.
Transferability of Awards and Shares
|
18
|
|
Article 12.
Performance Measures
|
18
|
|
Article 13.
Nonemployee Director Awards
|
20
|
|
Article 14.
Dividend Equivalents
|
20
|
|
Article 15.
Beneficiary Designation
|
20
|
|
Article 16. Rights
of Participants
|
21
|
|
Article 17. Change
of Control
|
21
|
|
Article 18.
Disability
|
22
|
|
Article 20.
Amendment and Termination
|
22
|
|
Article 21.
Withholding
|
23
|
|
Article 22.
Successors
|
23
|
|
Article 23. General
Provisions
|
24
|
Terex Corporation
2009 Omnibus Incentive Plan
Article 1. Establishment,
Purpose, and Duration
1.1
Establishment . Terex Corporation, a Delaware corporation
(hereinafter referred to as the “Company”), establishes
an incentive compensation plan to be known as the Terex Corporation
2009 Omnibus Incentive Plan (hereinafter referred to as the
“Plan”), as set forth in this document. This Plan
permits the grant of Nonqualified Stock Options, Incentive Stock
Options, Stock Appreciation Rights, Restricted Stock, Restricted
Stock Units, Performance Shares, Performance Units, Cash-Based
Awards, and Other Stock-Based Awards. This Plan shall become
effective upon stockholder approval (the “Effective
Date”) and shall remain in effect as provided in Section 1.3
hereof.
1.2 Purpose
of This Plan . The purpose of this Plan is to provide a means
whereby Employees, Directors, and Third-Party Service Providers of
the Company develop a sense of proprietorship and personal
involvement in the development and financial success of the
Company, and to encourage them to devote their best efforts to the
business of the Company, thereby advancing the interests of the
Company and its stockholders. A further purpose of this Plan is to
provide a means through which the Company may attract able
individuals to become Employees or serve as Directors or
Third-Party Service Providers of the Company and to provide a means
whereby those individuals upon whom the responsibilities of the
successful administration and management of the Company are of
importance can acquire and maintain stock ownership, thereby
strengthening their concern for the welfare of the Company. The
Company intends that certain compensation payable under this Plan
will constitute “qualified performance-based
compensation” under Section 162(m) of the Code. This Plan
shall be administratively interpreted and construed in a manner
consistent with such intent.
1.3 Duration
of This Plan . Unless sooner terminated as provided herein,
this Plan shall terminate ten (10) years from the Effective Date.
After this Plan is terminated, no Awards may be granted but Awards
previously granted shall remain outstanding in accordance with
their applicable terms and conditions and this Plan’s terms
and conditions.
Article 2.
Definitions
Whenever used in this Plan, the
following terms shall have the meanings set forth below, and when
the meaning is intended, the initial letter of the word shall be
capitalized.
2.1 “
Affiliate ” shall mean any corporation or other entity
(including, but not limited to, a partnership or a limited
liability company) that is affiliated with the Company through
stock or equity ownership or otherwise, and is designated as an
Affiliate for purposes of this Plan by the Committee.
2.2 “ Annual
Award Limit ” or “ Annual Award Limits
” have the meaning set forth in Section 4.3.
2.3 “
Award ” means, individually or collectively, a grant
under this Plan of Nonqualified Stock Options, Incentive Stock
Options, Stock Appreciation Rights, Restricted Stock, Restricted
Stock Units, Performance Shares, Performance Units, Cash-Based
Awards, or Other Stock-Based Awards, in each case subject to the
terms of this Plan.
2.4 “ Award
Agreement ” means either: (a) a written or electronic
agreement entered into by the Company and a Participant setting
forth the terms and provisions applicable to an Award granted under
this Plan, including any amendment or modification thereof, or (b)
a written or electronic statement issued by the Company to a
Participant describing the terms and provisions of such Award,
including any amendment or modification thereof.
2.5 “
Beneficial Owner ” or “ Beneficial
Ownership ” shall have the meaning ascribed to such terms
in Rule 13d-3 of the General Rules and Regulations under the
Exchange Act.
|
|
2.6
|
“
Board ” or “ Board of Directors ”
means the board of directors of the Company.
|
2.7 “
Cash-Based Award ” means an Award, denominated in
cash, granted to a Participant as described in Article
10.
|
|
2.8
|
" Cause " shall mean:
|
|
|
(a)
|
Willful, substantial and continued failure to
perform duties;
|
|
|
(b)
|
Willful engagement in conduct that is
demonstrably and materially injurious to the Company; or
|
|
|
(c)
|
Entry by a court or quasi-judicial governmental
agency of the United States or a political subdivision thereof of
an order barring an Employee from serving as an officer or director
of a public company.
|
For the purposes of clauses, (a) and
(b) of this definition, no act or failure to act shall be deemed
"willful" (x) if caused by a Disability or (y) unless done, or
omitted to be done, not in good faith or without reasonable belief
that such act or omission was in the best interest of the
Company.
2.9 " Change
in Control ”shall be deemed to have occurred if the
conditions set forth in any one of the following paragraphs shall
have been satisfied:
(i) any
person or group (as described in regulations under Section 409A of
the Code) is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company (not including in the
securities beneficially owned by such person any securities
acquired directly from the Company) representing
(A) more than 50% or more of the
combined voting power of the Company's then outstanding securities,
excluding any person or group who becomes such a Beneficial Owner
in connection with transactions described in clauses (x), (y) or
(z) of paragraph (iii) below and excluding the acquisition by a
person or group holding more than 50 percent of such voting power
or
(B) 30 percent or more of the
combined voting power of Terex’s then outstanding securities
during any twelve-month period;
(ii) there
is a change in the composition of the Board of Directors of the
Company occurring during any twelve month period, as a result of
which fewer than a majority of the directors are Incumbent
Directors (“ Incumbent Directors ” shall mean
directors who either (x) are members of the Board as of the date of
this Agreement or (y) are elected, or nominated for election, to
the Board with the affirmative votes of at least a majority of the
Incumbent Directors at the time of such election or nomination);
or
(iii) there
is consummated, in any transaction or series of transactions during
a twelve-month period, a complete liquidation or dissolution of the
Company or a merger, consolidation or sale of all or substantially
all of the Company’s assets (collectively, a “
Business Combination ”) other than a Business
Combination after which (x) the stockholders of the Company own
more than 50 percent of the common stock or combined voting power
of the voting securities of the company resulting from the Business
Combination, (y) at least a majority of the board of directors of
the resulting corporation were Incumbent Directors and (z) no
individual, entity or group (excluding any corporation resulting
from the Business Combination or any employee benefit plan of such
corporation or of the Company) becomes the Beneficial Owner of 35
percent or more of the combined voting power of the securities of
the resulting corporation, who did not own such securities
immediately before the Business Combination.
This definition of “Change in
Control” is intended to comply with the definition of
“Change in Control” under Code Section 409A. For
purposes of this Section 2.9, any of the events described above
shall in any case constitute a "change in the ownership or
effective control" of the Company or a "change in the ownership of
a substantial portion of the assets" of the Company, in each case,
within the meaning of Code Section 409A in order to be a
“Change in Control” hereunder.
For purposes of this Section 2.9,
the rules of Code Section 318(a) and the regulations issued
thereunder shall be used to determine stock ownership.
2.10 “ Code ”
means the U.S. Internal Revenue Code of 1986, as amended from time
to time or any successor statute thereto. For purposes of this
Plan, references to sections of the Code shall be deemed to include
references to any applicable regulations thereunder and any
successor or similar provision.
2.11 “ Committee
” means the Compensation Committee of the Board or a
subcommittee thereof, or any other committee designated by the
Board to administer this Plan. The members of the Committee shall
be appointed from time to time by and shall serve at the discretion
of the Board. Each member of the Committee shall be a Nonemployee
Director and an Outside Director, except that if the Board
determines that (i) the Plan cannot or need not satisfy the
requirements of Rule 16b-3 of the Exchange Act (such that grants of
Awards are not or need not be exempt from Section 16(b) of the
Exchange Act), then there may be less than two members of the
Committee, and the members of the Committee need not be Nonemployee
Directors or (ii) they no longer want the Plan to comply with the
requirements of Section 162(m) of the Code and the regulations
thereunder, or the Plan need not comply with such requirements,
then there may be less than two members of the Committee and the
members of the Committee need not be Outside Directors. If the
Committee does not exist or cannot function for any reason, the
Board may take any action under the Plan that would otherwise be
the responsibility of the Committee.
2.12 “ Company ”
means Terex Corporation, a Delaware corporation, and any successor
thereto as provided in Article 20 herein.
2.13 “ Covered
Employee ” means any Employee who is or may become a
“Covered Employee,” as defined in Code Section
162(m).
|
|
2.14
|
“
Director ” means any individual who is a member of the
Board of Directors.
|
2.15 “
Disability ”means, subject to an examination as
specified by the Committee, a Participant's inability to engage in
any substantial gainful activity because of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted, or can be expected to last,
for a continuous period of twelve (12) months or longer.
|
|
2.16
|
“Dividend
Equivalents” has the meaning set forth in
Section 3.2(i).
|
|
|
2.17
|
“
Effective Date ” has the meaning set forth in Section
1.1.
|
2.18 “ Employee
” means any individual performing services for the Company,
an Affiliate, or a Subsidiary and designated as an employee of the
Company, a Subsidiary or an Affiliate on the payroll records
thereof. An Employee shall not include any individual during any
period he or she is classified or treated by the Company,
Affiliate, or Subsidiary as an independent contractor, a
consultant, or any employee of an employment, consulting, or
temporary agency or any other entity other than the Company,
Affiliate, or Subsidiary, without regard to whether such individual
is subsequently determined to have been, or is subsequently
retroactively reclassified as a common-law employee of the Company,
Affiliate, or Subsidiary during such period. An individual shall
not cease to be an Employee in the case of: (a) any leave of
absence approved by the Company or (b) transfers between locations
of the Company or between the Company, any Affiliates, or any
Subsidiaries. Neither service as a Director nor payment of a
Director’s fee by the Company shall be sufficient to
constitute "employment" by the Company.
2.19 “ Exchange Act
” means the Securities Exchange Act of 1934, as amended from
time to time, or any successor act thereto.
2.20 “ Extraordinary
Items ” means (a) extraordinary, unusual, and/or
nonrecurring items of gain or loss; (b) gains or losses on the
disposition of a business; (c) changes in tax or accounting
regulations or laws; or (d) the effect of a merger or
acquisition.
|
|
2.21
|
“ Fair
Market Value ” or “ FMV ”
means:
|
|
|
(a)
|
If the Shares are
listed or admitted to trading on a securities exchange registered
under the Exchange Act, the "Fair Market Value" of a Share as of a
specified date shall mean the per Share closing price of the Shares
for the date as of which Fair Market Value is being determined (or
if there was no reported closing price on such date, on the last
preceding date on which the closing price was reported) on the
principal securities exchange on which the Shares are listed or
admitted to trading.
|
|
|
(b)
|
If the Shares are
not listed or admitted to trading on any such exchange but are
listed as a national market security on the NASDAQ Stock Market,
Inc. ("NASDAQ"), traded in the over-the-counter market or listed or
traded on any similar system then in use, the Fair Market Value of
a Share shall be the last sales price for the date as of which the
Fair Market Value is being determined (or if there was no reported
sale on such date, on the last preceding date on which any reported
sale occurred) reported on such system. If the Shares are not
listed or admitted to trading on any such exchange, are not listed
as a national market security on NASDAQ and are not traded in the
over-the-counter market or listed or traded on any similar system
then in use, but are quoted on NASDAQ or any similar system then in
use, the Fair Market Value of a Share shall be the average of the
closing high bid and low asked quotations on such system for the
Shares on the date in question.
|
|
|
(c)
|
In the event
Shares are not publicly traded at the time a determination of their
value is required to be made hereunder, the price of a Share as
determined by the Committee in its sole discretion by
application of a reasonable valuation method . The Committee
may, in its sole discretion, seek the advice of outside experts in
connection with any such determination.
|
2.22 “ Full-Value
Award ” means an Award other than in the form of an ISO,
NQSO, or SAR, and which is settled by the issuance of
Shares.
|
|
2.23
|
“ Grant
Date ” means the date an Award is granted to a
Participant pursuant to the Plan.
|
2.24 “ Grant Price
” means the price established at the time of grant of an SAR
pursuant to Article 7, used to determine whether there is any
payment due upon exercise of the SAR.
2.25 “ Incentive Stock
Option ” or “ ISO ” means an Option to
purchase Shares granted under Article 6 to an Employee and that is
designated as an Incentive Stock Option that is intended to meet
the requirements of Code Section 422 or any successor
provision.
2.26 “ Insider ”
shall mean an individual who is, on the relevant date, an officer
or Director of the Company, or a Beneficial Owner of more than ten
percent (10%) of any class of the Company’s equity securities
that is registered pursuant to Section 12 of the Exchange Act, as
determined by the Board in accordance with Section 16 of the
Exchange Act.
2.27 “ Nonemployee
Director ” means a Director who is a “Non-Employee
Director” within the meaning of Rule 16b-3(b)(3)(i) of the
Exchange Act.
2.28 “ Nonemployee
Director Award ” means any NQSO, SAR, or Full-Value Award
granted, whether singly, in combination, or in tandem, to a
Participant who is a Nonemployee Director pursuant to such
applicable terms, conditions, and limitations as the Board or
Committee may establish in accordance with this Plan.
2.29 “ Nonqualified Stock
Option ” or “ NQSO ” means an Option
that is not intended to meet the requirements of Code Section 422,
or that otherwise does not meet such requirements.
2.30 “ Option ”
means an Incentive Stock Option or a Nonqualified Stock Option, as
described in Article 6.
2.31 “ Option Price
” means the price at which a Share may be purchased by a
Participant pursuant to an Option.
2.32 “ Other Stock-Based
Award ” means an equity-based or equity-related Award not
otherwise described by the terms of this Plan, granted pursuant to
Article 10.
2.33 “Outside
Director” is a
Director who is an “outside director” within the
meaning of Section 162(m)(4)(C)(i) of the Code.
2.34 “ Participant
” means any eligible individual as set forth in Article 5 to
whom an Award is granted.
2.35 “ Performance-Based
Compensation ” means compensation under an Award that is
intended to satisfy the requirements of Code Section 162(m) for
certain performance-based compensation paid to Covered Employees.
Notwithstanding the foregoing, nothing in this Plan shall be
construed to mean that an Award which does not satisfy the
requirements for performance-based compensation under Code Section
162(m) does not constitute performance-based compensation for other
purposes, including Code Section 409A.
2.36 “ Performance
Measures ” mean measures as described in Article 12 on
which the performance goals are based and which are approved by the
Company’s stockholders pursuant to this Plan in order to
qualify Awards as Performance-Based Compensation.
2.37 “ Performance
Period ” means the period of time during which the
performance goals must be met in order to determine the degree of
payout and/or vesting with respect to an Award.
2.38 “ Performance
Share ” means an Award under Article 9 herein and subject
to the terms of this Plan, denominated in Shares, the value of
which at the time it is payable is determined as a function of the
extent to which corresponding performance criteria have been
achieved.
2.39 “ Performance
Unit ” means an Award under Article 9 herein and subject
to the terms of this Plan, denominated in units, the value of which
at the time it is payable is determined as a function of the extent
to which corresponding performance criteria have been
achieved.
2.40 “ Period of
Restriction ” means the period when Restricted Stock or
Restricted Stock Units are subject to a substantial risk of
forfeiture (based on the passage of time, the achievement of
performance goals, or upon the occurrence of other events as
determined by the Committee, in its discretion), as provided in
Article 8.
|
|
2.41
|
“
Plan ” means the Terex Corporation 2009 Omnibus
Incentive Plan.
|
2.42 “ Plan Year
” means the Company’s fiscal year which begins January
1 and ends December 31.
2.43 “ Prior Plans
” means the Terex Corporation 2000 Incentive Plan and the
1996 Terex Corporation Long Term Incentive Plan, as
amended.
|
|
2.44
|
“
Restricted Stock ” means an Award granted to a
Participant pursuant to Article 8.
|
2.45 “ Restricted Stock
Unit ” means an Award granted to a Participant pursuant
to Article 8, except no Shares are actually awarded to the
Participant on the Grant Date.
|
|
2.46
|
“SEC”
means the United
States Securities and Exchange Commission.
|
|
|
2.47
|
“
Share ” means a share of common stock of the Company,
no par value per share.
|
2.48 “ Stock Appreciation
Right ” or “ SAR ” means an Award,
designated as an SAR, pursuant to the terms of Article 7
herein.
2.49 “ Subsidiary
” means any corporation or other entity, whether domestic or
foreign, in which the Company has or obtains, directly or
indirectly, an interest of more than fifty percent (50%) by reason
of stock ownership or otherwise.
2.50 “ Third-Party Service
Provider ” means any consultant, agent, advisor, or
independent contractor who renders services to the Company, a
Subsidiary, or an Affiliate that: (a) are not in connection with
the offer and sale of the Company’s securities in a capital
raising transaction, and (b) do not directly or indirectly promote
or maintain a market for the Company’s securities.
Article 3.
Administration
3.1
General . The Committee shall be responsible for
administering this Plan, subject to this Article 3 and the other
provisions of this Plan. The Committee may employ attorneys,
consultants, accountants, agents, and other individuals, any of
whom may be an Employee, and the Committee, the Company, and its
officers and Directors shall be entitled to rely upon the advice,
opinions, or valuations of any such individuals. All actions taken
and all interpretations and determinations made by the Committee
shall be final and binding upon the Participants, the Company, and
all other interested individuals.
3.2
Authority of the Committee . Subject to any express
limitations set forth in the Plan, the Committee shall have full
and exclusive discretionary power and authority to take such
actions as it deems necessary and advisable with respect to the
administration of the Plan including, but not limited to, the
following:
|
|
(a)
|
To determine from
time to time which of the persons eligible under the Plan shall be
granted Awards, when and how each Award shall be granted, what type
or combination of types of Awards shall be granted, the provisions
of each Award granted (which need not be identical), including the
time or times when a person shall be permitted to receive Shares
pursuant to an Award, and the number of Shares subject to an
Award;
|
|
|
(b)
|
To construe and
interpret the Plan and Awards granted under it, and to establish,
amend, and revoke rules and regulations for its administration. The
Committee, in the exercise of this power, may correct any defect,
omission, or inconsistency in the Plan or in an Award Agreement, in
a manner and to the extent it shall deem necessary or expedient to
make the Plan fully effective;
|
|
|
(c)
|
To approve forms
of Award Agreements for use under the Plan;
|
|
|
(d)
|
To determine Fair
Market Value of a Share in accordance with Section 2.21 of the
Plan;
|
|
|
(e)
|
To amend the Plan
or any Award Agreement as provided in the Plan;
|
|
|
(f)
|
To adopt subplans
and/or special provisions applicable to stock awards regulated by
the laws of a jurisdiction other than and outside of the United
States. Such subplans and/or special provisions may take precedence
over other provisions of the Plan, but unless otherwise superseded
by the terms of such subplans and/or special provisions, the
provisions of the Plan shall govern;
|
|
|
(g)
|
To authorize any
person to execute on behalf of the Company any instrument required
to effect the grant of a stock award previously granted by the
Committee or the Board;
|
|
|
(h)
|
To determine
whether Awards will be settled in Shares of common stock, cash, or
in any combination thereof;
|
|
|
(i)
|
To determine
whether Awards will be adjusted for Dividend Equivalents, with
“Dividend Equivalents” meaning a credit, made at the
discretion of the Committee, to the account of a Participant in an
amount equal to the cash dividends paid on one Share for each Share
represented by an Award held by such Participant; provided,
however, that Options and SARs may not be adjusted for Dividend
Equivalents;
|
|
|
(j)
|
To establish a
program whereby Participants designated by the Committee may reduce
compensation otherwise payable in cash in exchange for Awards under
the Plan;
|
|
|
(k)
|
To authorize a
program permitting eligible Participants to surrender outstanding
Awards in exchange for newly granted Awards;
|
|
|
(l)
|
To impose such
restrictions, conditions, or limitations as it determines
appropriate as to the timing and manner of any resales by a
Participant or other subsequent transfers by the Participant of any
Shares, including, without limitation: (i) restrictions under an
insider trading policy and (ii) restrictions as to the use of a
specified brokerage firm for such resales or other transfers;
and
|
|
|
(m)
|
To provide,
either at the time an Award is granted or by subsequent action,
that an Award shall contain as a term thereof, a right, either in
tandem with the other rights under the Award or as an alternative
thereto, of the Participant to receive, without payment to the
Company, a number of Shares, cash, or a combination thereof, the
amount of which is determined by reference to the value of
Shares.
|
3.3
Delegation . The Committee may delegate to one or more of
its members or to one or more officers of the Company or any
Subsidiary or Affiliate or to one or more agents or advisors such
administrative duties or powers as it may deem advisable, and the
Committee or any individuals to whom it has delegated duties or
powers as aforesaid may employ one or more individuals to render
advice with respect to any responsibility the Committee or such
individuals may have under this Plan. The Committee may, by
resolution, authorize one or more Directors or officers, in
accordance with applicable law, of the Company to do one or both of
the following on the same basis as can the Committee: (a) designate
Employees to be recipients of Awards; (b) determine the size of any
such Awards; provided, however, (i) the Committee shall not
delegate such responsibilities to any such Director or officer for
Awards granted to an Employee who is considered an Insider or whose
compensation is subject to Section 162(m) of the Code; and (ii) the
Director(s) or officer(s) shall report periodically to the
Committee regarding the nature and scope of the Awards granted
pursuant to the authority delegated.
Article 4. Shares Subject to This
Plan and Maximum Awards
4.1 Number
of Shares Authorized and Available for Awards . The number of
Shares authorized and available for Awards under the Plan shall be
determined in accordance with the following provisions:
|
|
(a)
|
Subject to
adjustment as provided in Section 4.4 of the Plan, the maximum
number of Shares available for issuance under the Plan shall be
3,000,000 shares, plus (i) the number of Shares remaining available
for issuance under the Prior Plans that are not subject to
outstanding Awards as of the Effective Date, and (ii) the number of
Shares subject to Awards outstanding under the Prior Plans as of
the Effective Date but only to the extent that such outstanding
Awards are forfeited, expire, or otherwise terminate without the
issuance of such Shares.
|
|
|
(b)
|
The maximum
number of Shares that may be issued pursuant to ISOs under the Plan
shall be 3,000,000.
|
4.2 Share
Usage . Shares covered by an Award shall be counted as used
only to the extent they are actually issued. Any Shares related to
Awards under this Plan or under the Prior Plans that terminate by
expiration, forfeiture, cancellation, or otherwise without the
issuance of the Shares, or are settled in cash in lieu of Shares,
or are exchanged with the Committee’s permission, prior to
the issuance of Shares, for Awards not involving Shares, shall be
available again for grant under this Plan. Moreover, if the Option
Price of any Option granted under this Plan or the tax withholding
requirements with respect to any Award granted under this Plan are
satisfied by tendering Shares to the Company (by either actual
delivery or by attestation), the tendered Shares shall again be
available for grant under this Plan. Furthermore, if an SAR is
exercised and settled in Shares, the difference between the total
Shares exercised and the net Shares delivered shall again be
available for grant under this Plan, with the result being that
only the number of Shares issued upon exercise of an SAR is counted
against the Shares available for issuance under the Plan. The
Shares available for issuance under this Plan may be authorized and
unissued Shares or treasury Shares.
4.3 Annual
Award Limits . Unless and until the Committee determines that
an Award to a Covered Employee shall not be designed to qualify as
Performance-Based Compensation, the following limits (each an
“Annual Award Limit” and, collectively, “Annual
Award Limits”), as adjusted pursuant to Sections 4.4 and
20.2, shall apply to grants of such Awards under this
Plan:
|
|
(a)
|
Options and
SARs :
The maximum aggregate number of Shares subject to Options and SARs
granted to any one Participant in any one Plan Year shall be
750,000.
|
|
|
(b)
|
Restricted
Stock and Restricted Stock Units : The maximum aggregate
number of Shares subject to Restricted Stock and Restricted Stock
Units granted to any one Participant in any one Plan Year shall be
750,000.
|
|
|
(c)
|
Performance
Units : The maximum aggregate
amount awarded or credited with respect to Performance Units to any
one Participant in any one Plan Year in respect of any performance
period may not exceed $20,000,000, determined as of the date of
grant.
|
|
|
(d)
|
Performance
Shares : The maximum aggregate
number of Performance Shares that a Participant may receive in any
one Plan Year in respect of any performance period shall be 750,000
Shares, determined as of the date of grant.
|
|
|
(e)
|
Cash-Based
Awards : The maximum aggregate
amount awarded or credited with respect to Cash-Based Awards to any
one Participant in any one Plan Year in respect of any performance
period may not exceed $20,000,000, determined as of the date of
grant.
|
|
|
(f)
|
Other
Stock-Based Awards : The maximum aggregate
amount awarded or credited with respect to Other Stock-Based Awards
to any one Participant in any one Plan Year in respect of any
performance period may not exceed 750,000 Shares, determined as of
the date of grant.
|
4.4
Adjustments in Authorized Shares . Adjustment in authorized
Shares available for issuance under the Plan or under an
outstanding Award and adjustments in Annual Award Limits shall be
subject to the following provisions:
|
|
(a)
|
In the event of
any corporate event or transaction (including, but not limited to,
a change in the Shares of the Company or the capitalization of the
Company) such as a merger, consolidation, reorganization,
recapitalization, separation, partial or complete liquidation,
stock dividend, stock split, reverse stock split, split up,
spin-off or other distribution of stock or property of the Company,
combination of Shares, exchange of Shares, dividend in-kind, or
other like change in capital structure or distribution (other than
normal cash dividends) to stockholders of the Company, or any
similar corporate event or transaction, the Committee, in order to
prevent dilution or enlargement of Participants’ rights under
this Plan, shall substitute or adjust, as applicable, the number
and kind of Shares that may be issued under this Plan or under
particular forms of Awards, the number and kind of Shares subject
to outstanding Awards, the Option Price or Grant Price applicable
to outstanding Awards, the Annual Award Limits, and other value
determinations applicable to outstanding Awards, provided that the
Committee, in its sole discretion, shall determine the methodology
or manner of making such substitution or adjustment.
|
|
|
(b)
|
The Committee, in
its sole discretion, may also make appropriate adjustments in the
terms of any Awards under this Plan to reflect such changes or
distributions described in Section 4.4(a).
|
|
|
(c)
|
The determination
of the Committee as to the foregoing adjustments, if any, shall be
conclusive and binding on Participants under this Plan.
|
|
|
(d)
|
Subject to the
provisions of Article 18 and notwithstanding anything else herein
to the contrary, without affecting the number of Shares reserved or
available hereunder, the Committee may authorize the issuance or
assumption of benefits under this Plan in connection with any
merger, consolidation, acquisition of property or stock, or
reorganization upon such terms and conditions as it may deem
appropriate, subject to compliance with the rules under Code
Sections 422 and 424, as and where applicable.
|
Article 5. Eligibility and
Participation
5.1
Eligibility . Individuals eligible to participate in this
Plan include all Employees, Directors, and Third-Party Service
Providers.
5.2 Actual
Participation . Subject to the provisions of this Plan, the
Committee may, from time to time, select from all eligible
individuals, those individuals to whom Awards shall be granted and
shall determine, in its sole discretion, the nature of any and all
terms permissible by law and the amount of each Award.
Article 6. Stock
Options
6.1 Grant of
Options . Subject to the terms and provisions of this Plan,
Options may be granted to Employees and Directors in such number,
and upon such terms, and at any time and from time to time as shall
be determined by the Committee, in its sole discretion.
6.2 Award
Agreement . Each Option grant shall be evidenced by an Award
Agreement that shall specify the Option Price, the maximum duration
of the Option, the number of Shares to which the Option pertains,
the conditions upon which an Option shall become vested and
exercisable, and such other provisions as the Committee shall
determine which are not inconsistent with the terms of this
Plan.
6.3 Option
Price . The Option Price for each grant of an Option under this
Plan shall be determined by the Committee in its sole discretion
and shall be specified in the Award Agreement; provided, however,
the Option Price must be at least equal to one hundred percent
(100%) of the FMV of a Share as of the Option’s Grant
Date.
6.4 Term of
Options . Each Option granted to a Participant shall expire at
such time as the Committee shall determine at the time of grant;
provided, however, no Option shall be exercisable later than the
tenth (10th) anniversary date of its grant.
6.5 Exercise
of Options . Options granted under this Article 6 shall be
exercisable at such times and be subject to such restrictions and
conditions as the Committee shall in each instance approve, which
terms and restrictions need not be the same for each grant or for
each Participant.
6.6
Payment . Options granted under this Article 6 shall be
exercised by the delivery of a notice of exercise to the Company or
an agent designated by the Company in a form specified or accepted
by the Committee, or by complying with any alternative procedures
which may be authorized by the Committee, setting forth the number
of Shares with respect to which the Option is to be exercised,
accompanied by full payment for the Shares. A condition of the
issuance of the Shares as to which an Option shall be exercised
shall be the payment of the Option Price. The Option Price of any
exercised Option shall be payable to the Company in accordance with
one of the following methods:
|
|
(a)
|
In cash or its
equivalent;
|
|
|
(b)
|
By tendering
(either by actual delivery or attestation) previously acquired
Shares having an aggregate Fair Market Value at the time of
exercise equal to the Option Price;
|
|
|
(c)
|
By a cashless
(broker-assisted) exercis
|
