Exhibit 10.2
AMENDED AND
RESTATED
GLOBAL HYATT
CORPORATION
LONG-TERM INCENTIVE
PLAN
ARTICLE 1.
HISTORY AND
PURPOSE
The Global Hyatt Corporation
Long-Term Incentive Plan was originally adopted by Global Hyatt
Corporation, a Delaware corporation (the “ Company
”) effective February 14, 2006 as a means of assisting
the Company in attracting and retaining qualified non-employee
directors, executive and other key employees and to promote the
success of the Company by providing certain non-employee directors,
executives and other key employees of the Company with a shared
interest in increasing the value of the Company and sustaining its
growth. The Global Hyatt Corporation Long-Term Incentive Plan as
amended by the First Amendment thereto effective November 13,
2007 is referred to herein as the “ Original Plan
”. The following is an amendment and restatement of the
Original Plan in the form of this Amended and Restated Global Hyatt
Corporation Long-Term Incentive Plan (the “ Plan
”), which is intended to (i) expand the types of awards
that may be granted under the terms of the Plan, (ii) expand
the individuals to whom awards under the Plan may be granted, and
(iii) to provide greater flexibility in the terms and
conditions of awards that may be granted under the Plan.
ARTICLE 2.
DEFINITIONS AND
CONSTRUCTION
Wherever the following terms are
used in the Plan they shall have the meanings specified below,
unless the context clearly indicates otherwise. The singular
pronoun shall include the plural where the context so
indicates.
2.1 “ Administrator
” shall mean the entity that conducts the general
administration of the Plan as provided in Article 11. With
reference to the duties of the Committee under the Plan which have
been delegated to one or more persons pursuant to
Section 11.6, or which the Board has assumed, the term
“Administrator” shall refer to such person(s) unless
the Committee or the Board has revoked such delegation or the Board
has terminated the assumption of such duties.
2.2 “ Award ”
shall mean an Option, a Restricted Stock award, a Restricted Stock
Unit award, a Performance Award, a Dividend Equivalent award, a
Deferred Stock award, a Stock Payment award or a Stock Appreciation
Right, which may be awarded or granted under the Plan
(collectively, “ Awards ”).
2.3 “ Award Agreement
” shall mean any written notice, agreement, terms and
conditions, contract or other instrument or document evidencing an
Award, including, without limitation, through electronic medium,
which shall contain such terms and conditions with respect to an
Award as the Administrator shall determine consistent with the
Plan.
2.4 “ Board ”
shall mean the Board of Directors of the Company.
2.5 “ Change in Control
” shall mean the date the Family Business Units or members of
the Pritzker Family cease to own, directly or indirectly,
securities representing (a) at least twenty percent
(20%) of the total voting power represented by securities of
the Company (or its corporate parent) and (b) a larger
percentage of the total voting power represented by securities of
the Company than is owned, directly or indirectly, by any other
person or group of related persons, as defined in Sections 13(d)
and 14(d) of the Exchange Act. In addition, if a Change in Control
constitutes a payment event with respect to any Award which
provides for the deferral of compensation and is subject to
Section 409A of the Code, then such transaction or event
triggering clause (a) or (b) of this Section 2.5
with respect to such Award must also constitute a “change in
control event,” as defined in Treasury Regulation
§1.409A-3(i)(5) to the extent required by Section 409A.
The Administrator may make such modifications to the definition of
“Change in Control” as it determines appropriate
following an IPO or Rule 144 Offering or such other business
condition as the Administrator deems necessary and appropriate. The
Administrator shall have full and final authority, which shall be
exercised in its discretion, to determine conclusively whether a
Change in Control of the Company has occurred and the date of the
occurrence of such Change in Control and any incidental matters
relating thereto.
2.6 “ Code ”
shall mean the Internal Revenue Code of 1986, as amended from time
to time.
2.7 “ Committee ”
shall mean the Compensation Committee of the Board, or another
committee or subcommittee of the Board, appointed as provided in
Section 11.1.
2.8 “ Common Stock
” shall mean the common stock of the Company, par value $0.01
per share.
2.9 “ Company ”
shall mean Global Hyatt Corporation a Delaware
corporation.
2.10 “ Consultant
” shall mean any consultant or adviser to the Company or of
any Subsidiary that qualifies as a consultant under the applicable
rules of the Securities and Exchange Commission for registration of
shares on a Form S-8 Registration Statement.
2.11 “ Deferred Stock
” shall mean a right to receive Common Stock awarded under
Section 8.4.
2.12 “ Director ”
shall mean a member of the Board, or as applicable, a member of the
board of directors of a Subsidiary.
2.13 “ Dividend
Equivalent ” shall mean a right to receive the equivalent
value (in cash or Common Stock) of dividends paid on Common Stock,
awarded under Section 8.2.
2.14 “ DRO ”
shall mean a domestic relations order as defined by the Code or
Title I of the Employee Retirement Income Security Act of 1974, as
amended from time to time, or the rules thereunder.
2.15 “ Effective Date
” shall mean the date this Plan is approved by the Board,
subject to approval of the Plan by the Company’s
stockholders.
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2.16 “ Eligible
Individual ” shall mean any person who is an Employee, a
Consultant or a Non-Employee Director, as determined by the
Committee.
2.17 “ Employee ”
shall mean any officer or other employee (as defined in accordance
with Section 3401(c) of the Code) of the Company or of any
Subsidiary.
2.18 “ Equity
Restructuring ” shall mean a nonreciprocal transaction
between the Company and its stockholders, such as a stock dividend,
stock split, spin-off, rights offering or recapitalization through
a large, nonrecurring cash dividend, that affects the number or
kind of shares of Common Stock (or other securities of the Company)
or the share price of Common Stock (or other securities) and causes
a change in the per share value of the Common Stock underlying
outstanding Awards.
2.19 “ Exchange Act
” shall mean the Securities Exchange Act of 1934, as amended
from time to time.
2.20 “ Family Business
Unit ” shall mean any business entity owned or controlled
directly or indirectly by or for the benefit of members of the
Pritzker Family.
2.21 “ Greater Than 10%
Stockholder” shall mean an individual then owning (within
the meaning of Section 424(d) of the Code) more than 10% of
the total combined voting power of all classes of stock of the
Company or any Subsidiary or parent corporation thereof (as defined
in Section 424(e) of the Code).
2.22 “ Holder ”
shall mean a person who has been granted an Award.
2.23 Incentive Stock Option
” shall mean an Option that is intended to qualify as an
incentive stock option and conforms to the applicable provisions of
Section 422 of the Code.
2.24 “ IPO ”
shall mean the initial sale of shares by the Company to the general
public pursuant to a registration statement filed with and declared
effective by the Securities and Exchange Commission under the
federal securities laws.
2.25 “ Non-Employee
Director ” shall mean a Director who is not an
Employee.
2.26 “ Non-Qualified Stock
Option ” shall mean an Option that is not intended to be
an Incentive Stock Option.
2.27 “ Option ”
shall mean a right to purchase shares of Common Stock at a
specified exercise price, granted under Article 5. An Option shall
be either a Non-Qualified Stock Option or an Incentive Stock
Option; provided , however , that Options granted to
Non-Employee Directors and Consultants shall be Non-Qualified Stock
Options.
2.28 “ Original Plan
” shall mean the Global Hyatt Long-Term Incentive Plan as in
effect prior to the Effective Date.
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2.29 “ Performance
Award ” shall mean a cash bonus award, stock bonus award,
performance award or incentive award that is paid in cash, Common
Stock or a combination of both, awarded under
Section 8.1.
2.30 “ Plan ”
shall mean this Amended and Restated Global Hyatt Corporation
Long-Term Incentive Plan, as it may be further amended or restated
from time to time.
2.31 “ Pritzker Family
” shall mean all of the lineal descendants of Nicholas J.
Pritzker (deceased) and all of their respective spouses and former
spouses and children.
2.32 “ Restricted Stock
” shall mean Common Stock awarded under Article 7 that is
subject to certain restrictions and may be subject to risk of
forfeiture or repurchase.
2.33 “ Restricted Stock
Units ” shall mean the right to receive Common Stock
awarded under Section 8.5.
2.34 “ Rule 144
Offering ” shall mean an offering of the securities of
the Company (or its corporate parent) to the public that satisfies
the requirements of Rule 144 under the Securities Act or in a
private placement of securities similar in form and content to an
offering that would satisfy Rule 144.
2.35 “ Securities Act
” shall mean the Securities Act of 1933, as
amended.
2.36 “ Share Value
” shall mean, as of any given date, the fair market value of
a share of Common Stock determined as follows:
(a) If the Common Stock is listed on
any established stock exchange (such as the New York Stock
Exchange, the NASDAQ Global Market and the NASDAQ Global Select
Market) or national market system, the Share Value shall be the
closing sales price for a share of Common Stock as quoted on such
exchange or system for such date or, if there is no closing sales
price for a share of Common Stock on the date in question, the
closing sales price for a share of Common Stock on the last
preceding date for which such quotation exists, as reported in
The Wall Street Journal or such other source as the
Administrator deems reliable;
(b) If the Common Stock is regularly
quoted by a recognized securities dealer but closing sales prices
are not reported, the Share Value shall be the mean of the high bid
and low asked prices for such date or, if there are no high bid and
low asked prices for a share of Common Stock on such date, the high
bid and low asked prices for a share of Common Stock on the last
preceding date for which such information exists, as reported in
The Wall Street Journal or such other source as the
Administrator deems reliable; or
(c) If the Common Stock is neither
listed on an established stock exchange or a national market system
nor regularly quoted by a recognized securities dealer, the Share
Value shall be the determined by the Administrator in its
discretion based upon either:
(i) an appraisal as of the most
recent Valuation Date. Such appraisal is intended to reflect a
reasonable valuation of the Company as contemplated by Treasury
Regulation §1.409A-1(b)(5)(iv)(B)(2)(i), or any successor
thereto. As such, the appraisal shall be made by a qualified
independent firm designated by the Administrator, which firm is of
a national reputation and has relevant
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experience in performing such valuations. The
appraisal firm shall use valuation principles and methods
substantially similar to those used in the appraisals historically
performed for the Company in 2007, including, but not limited to,
those related to enterprise value and the absence of any discount
for lack of marketability or minority interest, or of any premium
for control; or
(ii) the price paid for each share
of Common Stock in a transaction between a willing buyer and a
willing seller, neither under compulsion to buy or sell; provided,
however, that transactions between the Company and any Family
Business Unit or member of the Pritzker Family shall not be
considered for this purpose.
2.37 “ Stock Appreciation
Right ” means a right granted pursuant to Article 9 to
receive a payment equal to the excess of the Share Value of a
specified number of shares of Common Stock on the date the Stock
Appreciation Right is exercised over an exercise price set forth in
the applicable Award Agreement.
2.38 “ Stock Payment
” shall mean (a) a payment in the form of shares of
Common Stock, or (b) an option or other right to purchase
shares of Common Stock, as part of a bonus, deferred compensation
or other arrangement, awarded under Section 8.3.
2.39 “ Subsidiary
” means any entity (other than the Company), whether domestic
or foreign, in an unbroken chain of entities beginning with the
Company if each of the entities other than the last entity in the
unbroken chain beneficially owns, at the time of the determination,
securities or interests representing more than fifty percent
(50%) of the total combined voting power of all classes of
securities or interests in one of the other entities in such
chain.
2.40 “ Substitute Award
” shall mean an Award granted under the Plan upon the
assumption of, or in substitution for, outstanding equity awards
previously granted by a company or other entity in connection with
a corporate transaction, such as a merger, combination,
consolidation or acquisition of property or stock; provided
, however , that in no event shall the term
“Substitute Award” be construed to refer to an award
made in connection with the cancellation and repricing of an Option
or Stock Appreciation Right.
2.41 “ Termination of
Service ” shall mean,
(a) As to a Consultant, the time
when the engagement of a Holder as a Consultant to the Company or a
Subsidiary is terminated for any reason, with or without cause,
including, without limitation, by resignation, discharge, death or
retirement, but excluding a termination where there is a
simultaneous commencement of employment with the Company or any
Subsidiary.
(b) As to a Non-Employee Director,
the time when a Holder who is a Non-Employee Director ceases to be
a Director for any reason, including, without limitation, a
termination by resignation, failure to be elected, death or
retirement, but excluding: (i) a termination where there is
simultaneous employment by the Company (or a Subsidiary) of such
person and (ii) a termination which is followed immediately by
such Holder becoming a Consultant.
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(c) As to an Employee, the time when
the employee-employer relationship between a Holder and the Company
or any Subsidiary is terminated for any reason, including, without
limitation, a termination by resignation, discharge, death,
disability or retirement; but excluding: (i) a termination
where there is an immediate reemployment or continuing employment
of a Holder by the Company or any Subsidiary, (ii) a
termination which is followed immediately by such Holder becoming a
Consultant, (iii) a termination where the former employee
continues as a Non-Employee Director, and (iv) at the
discretion of the Administrator, a termination which results in a
temporary severance of the employee-employer
relationship.
(d) The Administrator, in its
discretion, shall determine the effect of all matters and questions
relating to Termination of Service, including, without limitation,
the question of whether a Termination of Service resulted from a
discharge for cause. and all questions of whether particular leaves
of absence constitute Termination of Service; provided ,
however , that, with respect to Incentive Stock Options,
unless the Administrator otherwise provides in the terms of the
Award Agreement or otherwise, a leave of absence, change in status
from an employee to an independent contractor or Non-Employee
Director or other change in the employee-employer relationship
shall constitute a Termination of Service if, and to the extent
that such leave of absence, change in status or other change
interrupts employment for the purposes of Section 422(a)(2) of
the Code and the then applicable regulations and revenue rulings
under said Section. For purposes of the Plan, a Holder’s
employee-employer relationship or consultancy relations shall be
deemed to be terminated in the event that the Subsidiary employing
or contracting with such Holder ceases to remain a Subsidiary
following any merger, sale of stock or other corporate transaction
or event (including, without limitation, a spin-off).
2.42 “ Valuation Date
” shall mean the immediately preceding December 31 or a
date after such December 31 as the Administrator shall declare
to be a Valuation Date in order to update the Share Value to
reflect events subsequent to such December 31 that may
materially affect the Share Value.
ARTICLE 3.
SHARES SUBJECT TO THE
PLAN
3.1 Number of Shares
.
(a) Subject to Section 12.2 and
Section 3.1(b) the aggregate number of shares of Common Stock
which may be issued or transferred pursuant to Awards under the
Plan is 13,750,000.
(b) To the extent that an Award
terminates, expires, is settled in cash or lapses for any reason
without the delivery of shares to the Holder, then any shares of
Common Stock subject to such Award shall again be available for the
grant of an Award pursuant to the Plan. Any shares of Common Stock
tendered or withheld to satisfy the grant or exercise price or tax
withholding obligation pursuant to any Award shall again be
available for the grant of an Award pursuant to the Plan. Any
shares of Common Stock repurchased by the Company at the same price
paid by the Holder so that such shares are returned to the Company
will again be available for Awards. To the extent permitted by
applicable law or any exchange rule, shares of Common Stock issued
in assumption
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of, or in substitution for, any outstanding
awards of any entity acquired in any form of combination by the
Company or any Subsidiary shall not be counted against shares of
Common Stock available for grant pursuant to the Plan. The payment
of Dividend Equivalents in cash in conjunction with any outstanding
Awards shall not be counted against the shares available for
issuance under the Plan. Notwithstanding the provisions of this
Section 3.1(b), no shares of Common Stock may again be
optioned, granted or awarded if such action would cause an
Incentive Stock Option to fail to qualify as an incentive stock
option under Section 422 of the Code.
3.2 Stock Distributed . Any
Common Stock distributed pursuant to an Award may consist, in whole
or in part, of authorized and unissued Common Stock or treasury
Common Stock.
ARTICLE 4.
GRANTING OF AWARDS
4.1 Participation. The
Administrator may, from time to time, select from among all
Eligible Individuals, those to whom an Award shall be granted and
shall determine the nature and amount of each Award, consistent
with the requirements of the Plan; provided, however, that Awards
may not be granted to any Eligible Individual who is eligible for
future awards under the Global Hyatt Deferred Incentive Plan.
Although, Awards may not be granted each year to Eligible
Individuals, once an Eligible Individual has been granted an Award
they will be considered a Holder and a participant in this Plan
until all Awards held by such Eligible Individual are exercised,
paid out or otherwise terminated.
4.2 Award Agreement . Each
Award shall be evidenced by an Award Agreement. Award Agreements
evidencing Incentive Stock Options shall contain such terms and
conditions as may be necessary to meet the applicable provisions of
Section 422 of the Code.
4.3 Limitations Applicable to
Section 16 Persons . Notwithstanding any other provision
of the Plan, the Plan, and any Award granted or awarded to any
individual who is then subject to Section 16 of the Exchange
Act, shall be subject to any additional limitations set forth in
any applicable exemptive rule under Section 16 of the Exchange
Act (including, without limitation, any amendment to Rule 16b-3 of
the Exchange Act) that are requirements for the application of such
exemptive rule. To the extent permitted by applicable law, the Plan
and Awards granted or awarded hereunder shall be deemed amended to
the extent necessary to conform to such applicable exemptive
rule.
4.4 At-Will Employment .
Nothing in the Plan or in any Award Agreement hereunder shall
confer upon any Holder any right to continue in the employ of, or
as a Director or Consultant for, the Company or any Subsidiary, or
shall interfere with or restrict in any way the rights of the
Company and any Subsidiary, which rights are hereby expressly
reserved, to discharge any Holder at any time for any reason
whatsoever, with or without cause, except to the extent expressly
provided otherwise in a written agreement between the Holder and
the Company or any Subsidiary.
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4.5 Foreign Holders .
Notwithstanding any provision of the Plan to the contrary, in order
to comply with the laws in other countries in which the Company and
its Subsidiaries operate or have Employees, Non-Employee Directors
or Consultants, or in order to comply with the requirements of any
foreign stock exchange, the Administrator, in its discretion, shall
have the power and authority to: (a) determine which
Subsidiaries shall be covered by the Plan; (b) determine which
Eligible Individuals outside the United States are eligible to
participate in the Plan; (c) modify the terms and conditions
of any Award granted to Eligible Individuals outside the United
States to comply with applicable foreign laws or listing
requirements of any such foreign stock exchange; (d) establish
subplans and modify exercise procedures and other terms and
procedures, to the extent such actions may be necessary or
advisable (any such subplans and/or modifications shall be attached
to the Plan as appendices); provided , however , that
no such subplans and/or modifications shall increase the share
limitations contained in Section 3.1; and (e) take any
action, before or after an Award is made, that it deems advisable
to obtain approval or comply with any necessary local governmental
regulatory exemptions or approvals or listing requirements of any
such foreign stock exchange. Notwithstanding the foregoing, the
Administrator may not take any actions hereunder, and no Awards
shall be granted, that would violate the Code, the Exchange Act,
the Securities Act or any other securities law or governing statute
or any other applicable law.
ARTICLE 5.
GRANTING OF
OPTIONS
5.1 Granting of Options to
Eligible Individuals . The Administrator is authorized to grant
Options to Eligible Individuals from time to time, in its
discretion, on such terms and conditions as it may determine
consistent with the Plan.
5.2 Qualification of Incentive
Stock Options . No Incentive Stock Option shall be granted to
any person who is not an Employee. No person who qualifies as a
Greater Than 10% Stockholder may be granted an Incentive Stock
Option unless such Incentive Stock Option conforms to the
applicable provisions of Section 422 of the Code. Any
Incentive Stock Option granted under the Plan may be modified by
the Administrator, with the consent of the Holder, to disqualify
such Option from treatment as an “incentive stock
option” under Section 422 of the Code. To the extent
that the aggregate fair market value of stock with respect to which
“incentive stock options” (within the meaning of
Section 422 of the Code, but without regard to
Section 422(d) of the Code) are exercisable for the first time
by a Holder during any calendar year under the Plan, and all other
plans of the Company and any Subsidiary or parent corporation
thereof (as defined in Section 424(e) of the Code), exceeds
$100,000, the Options shall be treated as Non-Qualified Stock
Options to the extent required by Section 422 of the Code. The
rule set forth in the preceding sentence shall be applied by taking
Options and other “incentive stock options” into
account in the order in which they were granted and the fair market
value of the Common Stock shall be determined as of the time the
respective Options were granted.
5.3 Option Exercise Price .
The exercise price per share of Common Stock subject to each Option
shall be set by the Administrator, but shall not be less than 100%
of the Share Value on the date the Option is granted (or, as to
Incentive Stock Options, on the date the Option is modified,
extended or renewed for purposes of Section 424(h) of the
Code). In addition, in the case of
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Incentive Stock Options granted to a Greater
Than 10% Stockholder, such price shall not be less than 110% of the
Share Value on the date the Option is granted (or the date the
Option is modified, extended or renewed for purposes of
Section 424(h) of the Code).
5.4 Option Term . The term of
each Option shall be set by the Administrator in its discretion;
provided , however , that the term shall not be more
than ten (10) years from the date the Option is granted, or
five (5) years from the date an Incentive Stock Option is
granted to a Greater Than 10% Stockholder. The Administrator shall
determine the time period, including, without limitation, the time
period following a Termination of Service, during which the Holder
has the right to exercise the vested Options, which time period may
not extend beyond the term of the Option term. Except as limited by
requirements of Section 409A or Section 422 of the Code
and regulations and rulings thereunder, the Administrator may
extend the term of any outstanding Option, and may extend the time
period during which vested Options may be exercised, in connection
with any Termination of Service of the Holder, and may amend any
other term or condition of such Option relating to such a
Termination of Service.
5.5 Option Vesting
.
(a) The period during which the
right to exercise, in whole or in part, an Option vests in the
Holder shall be set by the Administrator and the Administrator may
determine that an Option may not be exercised in whole or in part
for a specified period after it is granted. Such vesting may be
based on service with the Company or any Subsidiary, or any other
criteria selected by the Administrator. At any time after grant of
an Option, the Administrator may, in its discretion and subject to
whatever terms and conditions it selects, accelerate the period
during which an Option vests.
(b) No portion of an Option which is
unexercisable at Termination of Service shall thereafter become
exercisable, except as may be otherwise provided by the
Administrator either in the Award Agreement or by action of the
Administrator following the grant of the Option.
5.6 Substitute Awards .
Notwithstanding the foregoing provisions of this Article 5 to the
contrary, in the case of an Option that is a Substitute Award, the
price per share of the shares subject to such Option may be less
than the Share Value per share on the date of grant,
provided , that the excess of: (a) the aggregate Share
Value (as of the date such Substitute Award is granted) of the
shares subject to the Substitute Award, over (b) the aggregate
exercise price thereof does not exceed the excess of: (x) the
aggregate fair market value (as of the time immediately preceding
the transaction giving rise to the Substitute Award, such fair
market value to be determined by the Administrator) of the shares
of the predecessor entity that were subject to the grant assumed or
substituted for by the Company, over (y) the aggregate
exercise price of such shares.
5.7 Substitution of Stock
Appreciation Rights . The Administrator may provide in the
Award Agreement evidencing the grant of an Option that the
Administrator, in its discretion, shall have the right to
substitute a Stock Appreciation Right for such Option at any time
prior to or upon exercise of such Option; provided , that
such Stock Appreciation Right shall be exercisable with respect to
the same number of shares of Stock for which such substituted
Option would have been exercisable.
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ARTICLE 6.
EXERCISE OF
OPTIONS
6.1 Partial Exercise . An
exercisable Option may be exercised in whole or in part. However,
an Option shall not be exercisable with respect to fractional
shares and the Administrator may require that, by the terms of the
Option, a partial exercise be with respect to a minimum number of
shares.
6.2 Manner of Exercise . All
or a portion of an exercisable Option shall be deemed exercised
upon delivery of all of the following to the Secretary of the
Company, or such other person or entity or in such manner as
designated by the Administrator, or his, her or its office, as
applicable:
(a) A written notice complying with
the applicable rules established by the Administrator stating that
the Option, or a portion thereof, is exercised. The notice shall be
signed by the Holder or other person then entitled to exercise the
Option or such portion of the Option;
(b) Such representations and
documents as the Administrator, in its discretion, deems necessary
or advisable to effect compliance with all applicable provisions of
the Securities Act and any other federal, state or foreign
securities laws or regulations. The Administrator may, in its
discretion, also take whatever additional actions it deems
appropriate to effect such compliance including, without
limitation, placing legends on share certificates and issuing
stop-transfer notices to agents and registrars;
(c) In the event that the Option
shall be exercised pursuant to Section 10.3 by any person or
persons other than the Holder, appropriate proof of the right of
such person or persons to exercise the Option; and
(d) Full payment of the exercise
price and applicable withholding taxes to the Company for the
shares with respect to which the Option, or portion thereof, is
exercised, in a manner permitted by Sections 10.1 and
10.2.
6.3 Notification Regarding
Disposition . The Holder shall give the Company prompt notice
of any disposition of shares of Common Stock acquired by exercise
of an Incentive Stock Option which occurs within (a) two years
from the date of granting (including, without limitation, the date
the Option is modified, extended or renewed for purposes of
Section 424(h) of the Code) such Option to such Holder, or
(b) one year after the transfer of such shares to such
Holder.
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ARTICLE 7.
AWARD OF RESTRICTED
STOCK
7.1 Award of Restricted Stock
.
(a) The Administrator is authorized
to grant Restricted Stock to Eligible Individuals. The
Administrator shall determine the terms and conditions, including,
without limitation, the restrictions applicable to each award of
Restricted Stock, consistent with the Plan, and may impose such
conditions on the issuance of such Restricted Stock as it deems
appropriate.
(b) The Administrator shall
establish the purchase price, if any, and form of payment for
Restricted Stock; provided , however , that such
purchase price shall be no less than the par value of the Common
Stock to be purchased, unless otherwise permitted by applicable
state law. In all cases, legal consideration shall be required for
each issuance of Restricted Stock.
7.2 Rights as Stockholders .
Subject to Section 7.4, and further subject to the
restrictions in the relevant Award Agreement, upon issuance of
Restricted Stock, the Holder shall have, unless otherwise provided
by and in the discretion of the Administrator, all the rights of a
stockholder with respect to said shares; provided ,
however , that, in the discretion of the Administrator, any
extraordinary distributions with respect to the Common Stock shall
be subject to the restrictions set forth in
Section 7.3.
7.3 Restrictions . All shares
of Restricted Stock (including, without limitation, any shares
received by Holders thereof with respect to shares of Restricted
Stock as a result of stock dividends, stock splits or any other
form of recapitalization) shall, in the terms of each individual
Award Agreement, be subject to such restrictions and vesting
requirements as the Administrator shall provide. Such restrictions
may include, without limitation, restrictions concerning voting
rights and transferability and such restrictions may lapse
separately or in combination at such times and pursuant to such
circumstances or based on such criteria as selected by the
Administrator, including, without limitation, criteria based on the
Holder’s duration of employment, directorship or consultancy
with the Company, Company performance, individual performance or
other criteria selected by the Administrator. By action taken after
the Restricted Stock is issued, the Administrator may, on such
terms and conditions as it may determine to be appropriate,
accelerate the vesting of such Restricted Stock by removing any or
all of the restrictions imposed by the terms of the Award
Agreement. Restricted Stock may not be sold or encumbered until all
restrictions are terminated or expire.
7.4 Repurchase or Forfeiture of
Restricted Stock . If no price was paid by the Holder for the
Restricted Stock, upon a Termination of Service the Holder’s
rights in unvested Restricted Stock then subject to restrictions
shall lapse, and such Restricted Stock shall be surrendered to the
Company without consideration. If a price was paid by the Holder
for the Restricted Stock, upon a Termination of Service, the
Company shall have the right to repurchase from the Holder the
unvested Restricted Stock then subject to restrictions at a cash
price per share equal to the price paid by the Holder for such
Restricted Stock or such other amount as may be
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specified in the Award Agreement The
Administrator in its discretion may provide that in the event of
certain events, including, without limitation, a Change in Control,
the Holder’s death, retirement or disability or any other
specified Termination of Service or any other event, the
Holder’s rights in unvested Restricted Stock shall not lapse,
such Restricted Stock shall vest and, if applicable, the Company
shall not have a right of repurchase.
7.5 Evidence of Issuance of
Restricted Stock . Restricted Stock granted pursuant to the
Plan may be evidenced in such manner as the Administrator shall
determine, including electronically. Any certificates issued, or
book entries evidencing shares of Restricted Stock must include an
appropriate legend referring to the terms, conditions, and
restrictions applicable to such Restricted Stock, and the Company
may, in its discretion, retain physical possession of any stock
certificate until such time as all applicable restrictions
lapse.
7.6 Section 83(b)
Election . If a Holder makes an election under
Section 83(b) of the Code to be taxed with respect to the
Restricted Stock as of the date of transfer of the Restricted Stock
rather than as of the date or dates upon which the Holder would
otherwise be taxable under Section 83(a) of the Code, the
Holder shall be required to deliver a copy of such election to the
Company promptly after filing such election with the Internal
Revenue Service.
ARTICLE 8.
AWARD OF PERFORMANCE AWARDS,
DIVIDEND EQUIVALENTS, DEFERRED
STOCK, STOCK PAYMENTS, RESTRICTED
STOCK UNITS
8.1 Performance Awards
.
(a) The Administrator is authorized
to grant Performance Awards to any Eligible Individual. The value
of Performance Awards may be linked to any one or more of the
performance criteria as determined by the Administrator, in each
case on a specified date or dates or over any period or periods
determined by the Administrator. In making such determinations, the
Administrator shall consider (among such other factors as it deems
relevant in light of the specific type of award) the contributions,
responsibilities and other compensation of the particular Eligible
Individual. Performance Awards may be paid in cash, shares of
Common Stock, or both, as determined by the
Administrator.
(b) Without limiting
Section 8.1(a), the Administrator may grant Performance Awards
to any Eligible Individual in the form of a cash bonus payable upon
the attainment of objective performance goals which are established
by the Administrator, in each case on a specified date or dates or
over any period or periods determined by the
Administrator.
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8.2 Dividend Equivalents .
Dividend Equivalents may be granted by the Administrator based on
dividends declared on the Common Stock, to be credited as of
dividend payment dates during the period between the date an Award
is granted to a Holder and the date such Award vests, is exercised,
is distributed or expires, as determined by the Administrator. Such
Dividend Equivalents shall be converted to cash or additional
shares of Common Stock by such formula and at such time and subject
to such limitations as may be determined by the
Administrator.
8.3 Stock Payments . Stock
Payments may be granted by the Administrator to Eligible
Individuals. The number or value of shares of any Stock Payment
shall be determined by the Administrator and may be based upon any
criteria selected by the Administrator, including, without
limitation, service to the Company or any Subsidiary. Stock
Payments may, but are not required to be made in lieu of base
salary, bonus, fees or other cash compensation otherwise payable to
such Eligible Individual.
8.4 Deferred Stock . Deferred
Stock awards may be granted by the Administrator to Eligible
Individuals. The number of shares of Deferred Stock shall be
determined by the Administrator and may be based on such criteria,
including, without limitation, service to the Company or any
Subsidiary, as the Administrator selects, in each case on a
specified date or dates or over any period or periods determined by
the Administrator. Common Stock underlying a Deferred Stock award
will not be issued until the Deferred Stock award has vested,
pursuant to a vesting schedule or other conditions or criteria set
by the Administrator. Unless otherwise provided by the
Administrator, a Holder of Deferred Stock shall have no rights as a
Company stockholder with respect to such Deferred Stock until such
time as the Award has vested and the Common Stock underlying the
Award has been issued to the Holder.
8.5 Restricted Stock Units .
The Administrator is authorized to make grants of Restricted Stock
Units to Eligible Individuals, on such terms and conditions as
determined by the Administrator. The Administrator shall specify
the date or dates on which the Restricted Stock Units shall become
fully vested and nonforfeitable, and may specify such conditions to
vesting as it deems appropriate, including, without limitation,
service to the Company or any Subsidiary, in each case on a
specified date or dates or over any period or periods, as the
Administrator determines. The Administrator shall specify, or
permit the Holder to elect, the conditions and dates upon which the
shares of Common Stock underlying the Restricted Stock Units which
shall be issued, which dates shall not be earlier than the date as
of which the Restricted Stock Units vest and become nonforfeitable
and which conditions and dates shall be subject to compliance with
Section 409A of the Code. On the distribution dates, the
Company shall issue to the Holder one unrestricted, fully
transferable share of Common Stock for each vested and
nonforfeitable Restricted Stock Unit.
8.6 Term . The term of a
Performance Award, Dividend Equivalent award, Deferred Stock award,
Stock Payment award and/or Restricted Stock Unit award shall be set
by the Administrator in its discretion.
8.7 Exercise or Purchase
Price . The Administrator may establish the exercise or
purchase price of a Performance Award, shares of Deferred Stock,
shares distributed as a Stock Payment award or shares distributed
pursuant to a Restricted Stock Unit award; provided ,
however , that value of the consideration shall not be less
than the par value of a share of Common Stock, unless otherwise
permitted by applicable state law.
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8.8 Exercise upon Termination of
Service . A Performance Award, Dividend Equivalent award,
Deferred Stock award, Stock Payment award and/or Restricted Stock
Unit award is exercisable or distributable only while the Holder is
an Employee, Director or Consultant, as applicable. The
Administrator, however, in its discretion may provide that the
Performance Award, Dividend Equivalent award, Deferred Stock award,
Stock Payment award and/or Restricted Stock Unit award may be
exercised or distributed subsequent to a Termination of Service in
certain events, including, without limitation, a Change in Control,
the Holder’s death, retirement or disability or any other
specified Termination of Service.
ARTICLE 9.
AWARD OF STOCK APPRECIATION
RIGHTS
9.1 Granting of Stock
Appreciation Rights to Eligible Individuals .
(a) The Administrator is authorized
to grant Stock Appreciation Rights to Eligible Individuals from
time to time, in its discretion, on such terms and conditions as it
may determine consistent with the Plan.
(b) A Stock Appreciation Right shall
entitle the Holder (or other
