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EXHIBIT
99.1
AMENDED AND
RESTATED
2002 LONG-TERM INCENTIVE
PLAN
(Amended and Restated as
of January 1, 2005)
1. Purpose and Effect
of the Plan . This Long-Term Incentive Plan (the
“Plan”) is intended to promote the interests of AirTran
Holdings, Inc., a Nevada corporation (the “Company”)
and its stockholders by linking the personal interests of its
employees, officers, consultants, independent contractors and
directors to the Company’s shareholders and by providing such
persons with an incentive for outstanding performance. The Plan is
also intended to aid the Company in competing with other
enterprises for the services of new executives and key employees
needed to help insure continued success of the Company.
Accordingly, the Plan permits the grant of incentive awards from
time to time to selected employees and officers, directors,
independent contractors and consultants.
2. Effective Date; Term
of Plan . The Plan became effective on January 23, 2002,
the date it was approved by the Board. The Plan was approved by the
shareholders of the Company on May 15, 2002. This amendment and
restatement of the Plan (“Amendment and Restatement”)
is being adopted by the Board and submitted for approval by the
shareholders of the Company effective January 1, 2005 in order to
comply with the provisions of Code Section 409A and to make other
modifications. The changes made by this Amendment and Restatement
(other than deletion of the repricing provisions formerly contained
in Section 4.C(xiv)) shall apply only to the portion of any Awards
which are earned or vested after December 31, 2004, except that
this Amendment and Restatement shall also apply to other portions
of the Awards to the extent they become subject to the requirements
of Code Sections 409A and compliance with such change is necessary
to satisfy Code Section 409A. In the discretion of the Committee,
Awards may be made to Covered Employees which are intended to
constitute qualified performance-based compensation under Code
Section 162(m). The Plan shall expire on January 23, 2012, unless
sooner terminated as provided in Section 25 hereof.
3. Definition of
Terms . In addition to words and terms that may be defined
elsewhere in the Plan, the following words and terms as used in the
Plan shall have the following meanings unless the context or use
fairly indicates another or different meaning or intent, which
definitions shall be equally applicable to both the singular and
plural forms of such words and terms.
A. “Award” shall
mean any Option, Stock Appreciation Right, Restricted Stock Award,
Performance Share Award or Other Stock-Based Award, or any other
right or interest relating to Stock or cash, granted to a
Participant under the Plan.
B. “Award
Agreement” shall mean any written agreement, contract, notice
to Participant or other instrument or document evidencing an
Award.
C. “Board” shall
mean the board of directors of the Company.
D. A “Change of
Control” will be deemed to have occurred with respect to an
Award in the event that, after the grant of such Award, any of the
following events shall have occurred:
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(i) |
Any Person, or Persons acting together that would constitute a
“group” (a “Group”), for purposes of
Section 13(d) of the Securities Exchange Act of 1934 as from time
to time amended, (the “Exchange Act”) together with any
Affiliates or Associates of such Affiliates (as defined in Rule
1b-2 promulgated under the Exchange Act) thereof (other than any
employee stock ownership plan), beneficially owns 30% or more of
the total voting power of all classes of voting stock of the
Company; |
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(ii) |
Any Person or Group, together with any Affiliates or Associates
thereof, succeeds in having a sufficient number of its nominees
elected to the Board such that such nominees, when added to any
existing director remaining on the Board after such election who is
an Affiliate or Associate of such Person or Group, will constitute
a majority of the Board; |
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(iii) |
There occurs any transaction, or series of related
transactions, and the beneficial owners of the voting stock of the
Company immediately prior to such transaction (or series) do not,
immediately after such transaction (or series) beneficially own
voting stock representing more than 50% of the voting power of all
classes of voting stock of the Company (or in the case of a
transaction (or series) in which another entity becomes a successor
to the Company, of the successor entity); or, |
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(iv) |
The Company shall cease to own a majority of the capital stock
of AirTran Airways, Inc. |
E. “Code” shall
mean the Internal Revenue Code of 1986, as amended from time to
time, and the regulations and official guidance issued
thereunder.
F. “Committee”
shall have the meaning set forth in Section 4 hereof.
G. “Common Stock”
shall mean the common stock of the Company, $.001 par value per
share.
H. “Company”
shall mean AirTran Holdings, Inc., a Nevada corporation.
I. “Covered
Employee” shall mean a covered employee as defined in Code
Section 162(m)(3), provided that no employee shall be a Covered
Employee until the deduction limitations of Code Section 162(m) are
applicable to the Company and any reliance period under Code
Section 162(m) has expired.
J. “Disability”
shall mean any permanent and total disability as defined in the
Company’s long-term disability plan; provided that, in the
case of an ISO or if the Company does not then maintain a long-term
disability plan, “Disability” shall mean permanent and
total disability as defined in Code Section 22(e)(3). The date of
any Disability shall be deemed to be the day following the last day
the Participant performed services for the Company.
K. “Effective
Date” shall have the meaning set forth in Section 2
hereof.
L. “Employee”
shall mean any employee of the Company or its Parent or any
Subsidiary, including officers or directors of the Company or its
Parent or any Subsidiary who are employees of the Company or its
Parent or any Subsidiary.
M. “Fair Market
Value” shall mean the fair market value of a share of Common
Stock on a particular date determined as follows. In the event the
Company’s Common Stock is listed upon an established stock
exchange, Fair Market Value shall be deemed to be the closing price
of the Company’s Common Stock on such stock exchange on such
date or, if no sale of the Company’s Common Stock shall have
been made on any stock exchange on that day, the Fair Market Value
shall be determined as such price for the next preceding day upon
which a sale shall have occurred. In the event the Company’s
Common Stock is not listed upon an established exchange, the Fair
Market Value on such date shall be determined by the
Committee.
N. “Incentive Stock
Option” or “ISO” shall mean any Option under this
Plan which is intended to be an incentive stock option under Code
Section 422.
O. “Non-Employee
Directors” shall mean members of the Company’s Board
who (i) are not current employees of the Company, (ii) are not
former employees of the Company currently receiving compensation
for prior services (other than pursuant to a tax qualified
retirement plan), (iii) have not been an officer of the Company and
(iv) do not receive remuneration, directly or indirectly, from the
Company in any capacity other than as a member of the
Board.
P.
“Non-Employees” shall mean any consultant or other
independent contractor providing bona fide services to the Company
or a member of the Board who is not an employee of the
Company.
Q. “Non-Qualified Stock
Option” or “NQSO” shall mean any Option granted
under this Plan which is not intended to qualify as an incentive
stock option under Code Section 422.
R. “Option” shall
mean a stock option, whether an ISO or NQSO, granted under Section
7 hereof.
S. “Option Price”
shall mean the purchase price of a Share of Common Stock under an
Option.
T. “Other Stock-Based
Award” shall mean a right, granted to a Participant under
Section 11 hereof, that relates to or is valued by reference to
Stock or other Awards relating to Stock.
U. “Parent” shall
mean any corporation which at the time qualifies as a parent of the
Company under the definition of “parent corporation”
contained in Code Section 424(e).
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V. “Participant”
shall mean an Employee or Non-Employee to whom an Award is granted
under the Plan.
W. “Performance Share
Award” shall mean a right granted to a Participant under
Section 9 hereof, to receive Stock, the payment of which is
contingent upon achieving certain performance goals established by
the Committee.
X. “Plan” shall
mean the AirTran Holdings, Inc. 2002 Long-Term Incentive Plan, as
amended from time to time.
Y. “Restricted Stock
Award” shall mean Stock granted to a Participant under
Section 10 hereof that is subject to certain restrictions and to
risk of forfeiture.
Z. “SAR” or
“Stock Appreciation Right” shall mean an award as set
forth in Section 8 hereof.
AA. “SEC” shall
mean the Securities and Exchange Commission.
BB. “Shares”
shall represent the shares of Common Stock in the Company that may
be acquired by exercise of Options or other Awards granted
hereunder.
CC. “Stock” shall
mean the Common Stock of the Company and such other securities of
the Company as may be substituted for Stock pursuant to Section 13
hereof.
DD. “Subsidiary”
shall mean any corporation, limited liability company, partnership
or other entity of which a majority of the outstanding voting stock
or voting power is beneficially owned directly or indirectly by the
Company. Notwithstanding the above, with respect to an Incentive
Stock Option, Subsidiary shall have the meaning set forth in Code
Section 424(f).
4.
Administration . The Plan shall be administered by a
Committee (the “Committee”) consisting of not less than
two members all of whom shall be Non-Employee Directors.
A. The Committee shall be
appointed by the Board from its membership. Until such time as the
Committee is appointed, the Compensation Committee of the Board (if
there is one, otherwise, the entire Board) shall serve as the
Committee. The members of the Committee shall serve at the pleasure
of the Board, which shall have the power, at any time and from time
to time, to remove members from the Committee or to add members
thereto. Vacancies on the Committee, however caused, shall be
filled by the Board.
B. Except as provided in
Section 6, members of the Committee shall not include any person
who, during the one (1) year preceding the date on which such
member is first appointed to the Committee and during the time he
serves on the Committee, has been granted or awarded equity
securities or options therefor under this Plan or any other plan of
the Company or any of its affiliates.
C. The Committee may
interpret the Plan, prescribe, amend and rescind any rules and
regulations necessary or appropriate for the administration of the
Plan and make such other determinations and take such other action
as it deems necessary or desirable for the administration of the
Plan and the protection of the Company except as otherwise reserved
to the Board or the stockholders of the Company. Without limiting
the generality of the foregoing, the Committee, in its discretion,
may treat all or any part of any period during which a Participant
is on military duty or on an approved leave of absence from the
Company as a period of employment of such Participant by the
Company for purposes of accrual of his rights under his Award. In
addition, subject to the terms of the Plan, the Committee shall
have the specific authority to take the following
actions:
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(i) |
Designate Participants; |
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(iii) |
Determine the type or types of Awards to be granted to each
Participant; |
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(iv) |
Determine the number of Awards to be granted and the number of
shares of Stock to which an Award shall relate; |
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(v) |
Determine the terms and conditions of any Award granted under
the Plan, including but not limited to the exercise price, grant
price or purchase price, any restrictions or limitations on the
Award, any schedule for lapse or forfeiture restrictions or
restrictions on the exercisability of an award, and accelerations
or waivers thereof, based in each case on such considerations as
the Committee in its sole discretion shall determine; |
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(vi) |
Determine whether, to what extent, and under what circumstances
an Award may be settled in, or the exercise price of an Award may
be paid in, cash, Stock, other Awards or other property, or an
Award may be canceled, forfeited or surrendered; |
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(vii) |
Accelerate the vesting or lapse of restrictions of any
outstanding Award, based in each case on such considerations as the
Committee in its sole discretion determines; |
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(viii) |
Prescribe the form of each Award Agreement, which need not be
identical for each Participant; |
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(ix) |
Decide all other matters that must be determined in connection
with an Award; |
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(x) |
Require a minimum holding period between the grant and exercise
of any Option or other Award, determine that the Awards granted to
a Participant may be exercised only in installments and specify
such conditions precedent to the exercise of any Award as the
Committee may deem advisable; |
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(xi) |
Establish, adopt or revise any rules and regulations as it may
deem necessary or advisable to administer the Plan; |
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(xii) |
Make all other decisions and determinations that may be
required under the Plan or as the Committee deems necessary or
advisable to administer the Plan; and |
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(xiii) |
Amend the Plan or, with the consent of any adversely affected
Participant, any Award Agreement. |
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(xiv) |
The Company shall not cancel any Award, and in consideration
therefor issue to the Participant a new Award for any equivalent or
lesser number of Shares, and at a lesser exercise
price. |
Notwithstanding the foregoing, during
any period in which the Compensation Committee of the Board is not
serving as the Committee, the authority of the Committee with
respect to the matters described in clauses (i) through (iv) of
this Paragraph 4C shall be limited to making recommendations to
such Compensation Committee, and the final determinations with
respect to such matters shall be made by the Compensation
Committee.
D. No member of the Committee
shall be liable for any action taken or omitted or determination
made in good faith with respect to the Plan or any Award granted
under the Plan.
E. Any interpretation,
determination or other action made or taken by the Committee (or
the Compensation Committee of the Board as described above) with
respect to the Plan, any Awards granted under the Plan, and any
Award Agreements applicable to such Awards shall be final, binding
and conclusive on all parties.
5. Shares Subject to
Plan .
A. Authorized Shares .
Subject to adjustment as provided in Section 13 hereof, the
aggregate number of shares of Stock reserved and available for
Awards or which may be used to provide a basis of measurement for
or to determine the value of an Award (such as with a Stock
Appreciation Right or Performance Share Award) shall be 7,500,000
shares (which amount consists of 5,000,000 shares originally
authorized under the Plan and approved by the Company’s
stockholders on May 15, 2002 plus an additional 2,500,000 shares
approved by the Company’s stockholders on May 17, 2005). No
separate limit shall apply to ISOs or to Awards other than Options.
As a result, the number of ISOs that may be granted under this Plan
shall not exceed 7,500,000 and the number of Awards (other than
Options) that may be granted under this Plan shall not exceed
7,500,000. However, the aggregate number of Options (including
exercised Options) plus Awards (other than Options) that may be
outstanding at any one time under the Plan shall not exceed
7,500,000. The maximum number of Options or Stock Appreciation
Rights that may be granted to any one Employee in any calendar year
shall not exceed 1,500,000.
B. Lapsed Awards . To
the extent that an Award is canceled, terminates, expires, is
forfeited, or lapses for any reason, any shares of Stock subject to
the Award will again be available for the grant of an Award under
the Plan. In addition, shares subject to other Awards settled in
cash (if any) will be available for the grant of an Award under the
Plan. Substitute Awards issued in the course of acquisition of
another company shall also be excluded in determining the number of
Options or Awards outstanding. If the Option Price of any Option
granted under the Plan is satisfied by tendering shares of Stock to
the Company (whether by actual delivery, by attestation or by the
withholding of shares issued on exercise of the Option), only the
number of shares of Stock issued net of the shares of Stock
tendered shall be deemed delivered for purposes of determining the
maximum number of shares of Stock available for delivery under the
Plan.
C. Stock Distributed .
Any Stock distributed pursuant to an Award may consist, in whole or
in part, of authorized and unissued Stock, treasury Stock or Stock
purchased on the open market.
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6. Eligibility
. Awards may be granted to those Employees and Non-Employees
selected by the Committee in its sole discretion from time to time
who have and exercise key management functions for the Company or
who discharge other responsibilities important to the success of
the Company. Notwithstanding anything to the contrary in this Plan,
an Award may be granted to a director who is a member of the
Committee if otherwise exempt from Section 16(b) of the Securities
Exchange Act of 1934 pursuant to Regulation Section 240.16b-3, SEC
interpretations thereof or any subsequently promulgated rule or
regulation. The granting of an Award to any Participant shall
neither entitle such Participant to, nor disqualify such
Participant from, participation in any future Awards.
7. Stock
Options .
A. Grant of Options .
The Committee shall have the authority, subject to the terms of the
Plan, to: (a) determine and designate from time to time those
Employees and Non-Employees to whom Options are to be granted; (b)
determine the number of Shares subject to each Option; (c)
determine the duration of the exercise period for any Option; (d)
determine the conditions to be met (if any) prior to the
exercisability of any Options; (e) determine that the Options
granted to a Participant may be exercised only in installments; and
(f) specify such other terms and conditions of each Option as the
Committee in its sole discretion deems advisable. The date of grant
of an Option under the Plan will be the date on which the Option is
awarded by the Committee.
B. Terms and Conditions of
Options . Each Option shall be evidenced by an Award Agreement
which shall contain such terms and conditions consistent with the
provisions of the Plan as may be approved by the Committee. Each
such Award Agreement shall state whether the Option evidenced
thereby is intended to be an ISO or an NQSO. Each Option granted
under the Plan shall be subject to such terms and conditions as
follows:
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(i) |
Terms of ISOs. ISOs granted hereunder shall be subject to the
terms and conditions contained in subparagraphs (ii)-(ix) below and
to such other terms and conditions as the Committee may deem
appropriate; provided, however, that no Option that is intended to
qualify as an ISO shall be subject to any condition that is
inconsistent with the provisions of Code Section 422(b). In the
event that any condition imposed hereunder on an Option intended to
qualify as an ISO is at any time determined by the Internal Revenue
Service or a court of competent jurisdiction to be inconsistent
with Code Section 422, then such Option shall be deemed to have
been granted without such condition and such Option shall continue
in effect under such remaining terms and conditions as may be
applicable as if the invalid condition had not been
included. |
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(ii) |
Option Period. Each ISO Award Agreement shall specify the
period during which the ISO thereunder is exercisable (which shall
not exceed ten years from the date of grant) and shall provide that
the ISO shall expire at the end of such period. |
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(iii) |
Option Price. The Option Price per share shall be determined by
the Committee at the time any ISO is granted and shall not be less
than one hundred percent (100%) of the Fair Market Value of a share
of Common Stock on the day that the ISO is granted. Such price
shall be subject to adjustment as provided in Section
13. |
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(iv) |
Ten Percent Stockholders. ISOs shall not be granted to any
Employee who, immediately before the ISO is granted, owns stock
possessing more than ten percent (10%) of the total combined voting
power of all classes of stock of the Company or of its Parent or
Subsidiary; provided, however, that this prohibition shall not
apply if at the time such ISO is granted the Option Price is at
least one hundred ten percent (110%) of the Fair Market Value of
the Common Stock and such ISO is not exercisable after the
expiration of five (5) years from the date such ISO is
granted. |
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(v) |
Limit on Incentive Stock Options. To the extent the aggregate
Fair Market Value of the shares (valued at the time of grant in
accordance with subparagraph (iii) above) with respect to which
ISOs (determined without regard to this subparagraph (v)) are
exercisable for the first time by any individual during any
calendar year (under all incentive stock option plans of the
Company and any Parent and Subsidiary) exceeds $100,000, such ISOs
in excess of $100,000 shall be treated as Options which are NQSOs.
This subparagraph (v) shall be applied by taking ISOs into account
in the order in which they were granted. |
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(vi) |
Termination of Employment other than as a Result of Death or
Disability. Except as otherwise provided in Section 12K hereof, an
ISO of any Participant who shall cease to be an Employee other than
as a result of his death or Disability shall be exercisable only to
the extent exercisable on the date of termination of employment
(i.e., to the extent vested) and must be exercised on or before the
Option expiration date specified in the applicable Award Agreement
but in no event |
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later than the date that is
three (3) months following the date of termination of employment.
To the extent any ISO is not exercisable on the date of termination
of employment, (i.e., to the extent not vested) such ISO shall
terminate on the date of termination of employment. To the extent
any ISO is not exercised within the time period provided, such ISO
shall terminate as of the date of expiration of such time period.
Nothing in the Plan shall be construed as imposing any obligation
on the Company to continue the employment of any Participant or
shall interfere or restrict in any way the rights of the Company to
discharge any Employee at any time for any reason whatsoever, with
or without cause.
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(vii) |
Termination of Employment as a Result of Death or Disability.
In the event of the death or Disability of the Participant while
employed by Company, the personal representative of the Participant
(in the event of his death) or the Participant (in the event of his
Disability) may, subject to the provisions hereof and before the
date (the “Option Termination Date”) specified in the
ISO Award Agreement, which date is not later than the earlier of
the ISOs expiration date or the expiration of one (1) year after
the date of such death or Disability, exercise the ISO granted to
such Participant to the same extent the Participant might have
exercised such ISO on the date of his death or Disability, but,
unless otherwise provided in the ISO Award Agreement, not further
or otherwise. To the extent any ISO is not, and does not in
accordance with the terms of the Award Agreement become,
exercisable as of the date of the death or Disability of a
Participant, such ISO shall terminate on the date of death or
Disability. To the extent any ISO is not exercised within the time
period provided, such ISO shall terminate as of the date of
expiration of such time period. |
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(viii) |
Period to Exercise Option. Any IS |
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