Exhibit 10.1
FLUOR CORPORATION 2008
EXECUTIVE PERFORMANCE INCENTIVE PLAN
SECTION 1. Purpose of
Plan
The
purpose of this “Fluor Corporation 2008 Executive Performance
Incentive Plan” (the “Plan”) of Fluor
Corporation, a Delaware corporation, is to enable the Company, as
defined in Section 2.2(a)(ii) hereof, to attract, retain
and motivate its officers, executives, management and other key
personnel, and to further align the interests of such persons with
those of the shareholders of the Company, by providing for or
increasing their proprietary interest in the Company.
SECTION 2. Administration
of the Plan
2.1
Composition of Committee . The Plan shall be administered
by the Organization and Compensation Committee of the Board of
Directors of the Company and/or by the Board of Directors of the
Company or another committee of the Board of Directors of the
Company, as appointed from time to time by the Board of Directors
(any such administrative body, the “Committee”). The
Board of Directors shall fill vacancies on, and may remove from or
add members to, the Committee. The Committee shall act pursuant to
a majority vote or unanimous written consent. If an award granted
under the Plan (an “Award”) is intended to satisfy the
conditions of Section 162(m)(4)(C) of the Internal
Revenue Code of 1986, as amended (the “Code”), then
approval of such grant shall be required to be made solely by
Committee members who are an “outside director” as
described in the Treasury regulations under Section 162(m).
Notwithstanding the foregoing, with respect to any Award that is
not intended to satisfy the conditions of Rule 16b-3 under the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”) or Code Section 162(m)(4)(C), the Committee may
appoint one or more separate committees (any such committee, a
“Subcommittee”) composed of one or more directors of
the Company (who may but need not be members of the Committee) or
officers of the Company who may but need not be members of the
Board of Directors of the Company and may delegate to any such
Subcommittee(s) the authority to grant Awards, as defined in
Section 5.1 hereof, under the Plan to employees, to determine
all terms of such Awards, and/or to administer the Plan or any
aspect of it; provided, however, that if the Subcommittee is
composed of one or more officers of the Company who are not members
of the Board of Directors of the Company, the resolution so
authorizing such Subcommittee shall specify the total number of
Awards (if any) such Subcommittee may award pursuant to such
delegated authority, and any such Award shall be subject to the
form of award agreement theretofore approved by the Committee. Any
action taken by a Subcommittee within the scope of such delegation
shall be deemed for all purposes to have been taken by the
Committee. The Committee hereby designates the Secretary of the
Company and the head of the Company’s human resource function
to assist the Committee in the administration of the Plan and
execute agreements evidencing Awards made under this Plan or other
documents entered into under this Plan on behalf of the Committee
or the Company. In addition, the Committee may designate other
Company employees to assist the Committee in the administration of
the Plan, and may grant authority to such persons to execute
agreements evidencing Awards made under this Plan or other
documents entered into under this Plan on behalf of the Committee
or the Company.
2.2
Powers of the Committee . Subject to the express
provisions of this Plan, the Committee shall be authorized and
empowered to do all things necessary or desirable in connection
with the administration of this Plan with respect to the Awards
over which such Committee has authority, including, without
limitation, the following:
(a)
to prescribe, amend and rescind rules and regulations relating
to this Plan and to define terms not otherwise defined herein;
provided that, unless the Committee shall specify otherwise, for
purposes of this Plan: (i) the term “fair market
value” shall mean, as of any date, the closing price per
share at which the Shares (as defined in Section 3.1 hereof)
are sold in the regular way on the New York Stock Exchange or, if
no Shares are traded on the New York Stock Exchange on the date in
question, then for the next preceding date for which Shares are
traded on the New York Stock Exchange; and (ii) the term
“Company” shall mean Fluor Corporation and its
subsidiaries and affiliates, unless the context otherwise
requires.
(b)
to determine which persons are Eligible Employees (as defined in
Section 4 hereof), to which of such Eligible Employees, if
any, Awards shall be granted hereunder, to make Awards under the
Plan and to determine the terms of such Awards and the timing of
any such Awards;
(c)
to determine the number of Shares subject to Awards and the
exercise or purchase price of such Shares;
(d)
to establish and verify the extent of satisfaction of any
performance goals applicable to granting Awards;
(e)
to prescribe and amend the terms of the agreements or other
documents evidencing Awards made under this Plan (which need not be
identical);
(f)
to determine the extent to which adjustments are required pursuant
to Section 12 hereof;
(g)
to interpret and construe this Plan, any rules and regulations
under the Plan and the terms and conditions of any Award granted
hereunder, and to make exceptions to any such provisions in good
faith and for the benefit of the Plan, Participants (as defined in
Section 4 hereof) and the Company;
(h)
to approve corrections in the documentation or administration of
any Award; and
(i)
to make all other determinations deemed necessary or advisable for
the administration of the Plan.
2.3
Determinations of the Committee . All decisions,
determinations and interpretations by the Committee or the Board of
Directors regarding the Plan shall be final and binding on all
Eligible Employees and Participants, as defined in Section 4
hereof. The Committee or the Board of Directors, as applicable,
shall consider such factors as it deems relevant, in its sole and
absolute discretion, to making such decisions, determinations and
interpretations including, without limitation, the recommendations
or advice of any officer of the Company or Eligible Employee and
such attorneys, consultants and accountants as it may
select.
SECTION 3. Stock Subject
to Plan
3.1
Aggregate Limits . Subject to adjustment as
provided in Section 12, at any time, the aggregate number of
shares of the Company’s common stock, $0.01 par value
(“Shares”), issued pursuant to all Awards (including
all ISOs (as defined in Section 5.1 hereof)) granted under
this Plan shall not exceed 5,500,000 (number of shares), plus the
number of Shares subject to awards outstanding as of May 7,
2008 (the date of the Annual Shareholder’s Meeting) under the
Company’s 2000 Executive Performance Incentive Plan, the
Company’s 2001 Key Employee Performance Incentive Plan and
the Company’s 2003 Executive Performance Incentive Plan
(collectively, the “Prior Plans”) but which shares are
not thereafter issued upon exercise or settlement of such awards;
provided that the aggregate limit of the total number of Shares
that may be issued under this Plan shall be further reduced by an
additional three-quarters ( 3 /
4 ) of a
Share for each Share issued upon settlement of an Award granted in
terms of Shares under the Plan other than as a Stock Option or
Stock Appreciation Right. The Shares to be utilized in the Plan may
be either Shares reacquired by the Company, including Shares
purchased in the open market, or authorized but unissued
Shares.
3.2
Code Section 162(m) Limits . The aggregate
number of Shares subject to Stock Options or Stock Appreciation
Rights granted under this Plan during any calendar year to any one
Eligible Employee shall not exceed 750,000. The aggregate number of
Shares issuable with respect to any Restricted Stock
Awards,
Incentive
Awards denominated in Shares or Stock Unit Awards (other than
Shares issued or issuable upon exercise of Options or Stock
Appreciation Rights) granted under this Plan during any calendar
year to any one Eligible Employee shall not exceed 250,000.
Notwithstanding anything to the contrary in the Plan, the foregoing
limitations shall be subject to adjustment under Section 12
only to the extent that such adjustment will not affect the status
of any Award intended to qualify as “performance based
compensation” under Code Section 162(m).
3.3
Issuance of Shares . For purposes of Section 3.1,
the aggregate number of Shares issued under this Plan at any time
shall equal only the number of Shares actually issued upon exercise
or settlement of an Award. Notwithstanding the foregoing, Shares
subject to an Award under the Plan (or an award under any of the
Prior Plans) may not again be made available for issuance under
this Plan if such Shares are: (i) Shares that were subject to
a Stock Option or Stock Appreciation Right and were not issued upon
the net settlement or net exercise of such Award, (ii) Shares
used to pay the exercise price of a Stock Option, (iii) Shares
delivered to or withheld by the Company to pay the withholding
taxes related to an Award, or (iv) Shares repurchased on the
open market with the proceeds of a Stock Option exercise. Shares
subject to Awards that have been canceled, expired, forfeited or
otherwise not issued under an Award and Shares subject to Awards
settled in cash shall not count as Shares issued under this
Plan.
SECTION 4. Persons
Eligible Under Plan
Any
person who is (i) an employee of the Company (within the
meaning of Section 303A.08 of the New York Stock Exchange
Listed Company Manual) and who also is an officer, key employee or
member of the Executive Management Team (“EMT”),
(ii) a prospective employee of the Company who is to be an
officer, key employee or member of the EMT, (iii) a consultant
to the Company, or (iv) an advisor of the Company (each, an
“Eligible Employee”) shall be eligible to be considered
for the grant of Awards. For purposes of this Plan, the Chairman of
the Board’s status as an employee shall be determined by the
Board of Directors. For purposes of determining eligibility for
Awards, the term “Eligible Employee” shall also include
a former Eligible Employee or any person (including any estate) who
is a beneficiary of a former Eligible Employee. A
“Participant” is any Eligible Employee to whom an Award
has been made and any person (including any estate) to whom an
Award has been assigned or transferred pursuant to
Section 11.1.
SECTION 5. Plan
Awards
5.1
Award Types . The Committee, on behalf of the Company, is
authorized under this Plan to enter into certain types of
arrangements with Eligible Employees and to confer certain benefits
to them (“Awards”). The following types of Awards are
authorized under the Plan if granted according to the terms and
conditions of the Plan: Stock Option (including Incentive Stock
Options), Restricted Stock, Incentive and Stock Unit. These
authorized types of Awards are defined as follows:
Stock Option
Award: A Stock Option is a right granted under
Section 6 of this Plan to purchase a specified number of
Shares at a specified exercise price, at such times, and on such
other terms and conditions as are specified in or determined
pursuant to the document(s) evidencing the Award (the
“Option Agreement”). Stock Options intended to qualify
as Incentive Stock Options (“ISOs”) pursuant to Code
Section 422 and Stock Options that are not intended to qualify
as ISOs (“Non-Qualified Stock Options” or
“NQSOs”) may be granted.
Stock Appreciation Right
Award: A Stock Appreciation Right is a right
granted pursuant to Section 7 of this Plan that entitles the
Participant to receive, in cash or Shares or a combination thereof,
as determined by the Committee, value equal to or otherwise based
on the excess of (i) the fair market value of a specified
number of Shares at the time of exercise over (ii) the
exercise price of the right, as established by the Committee on the
date of grant, and on such other terms and conditions as are
specified in or determined pursuant to the
document(s) evidencing the Award (the “Stock
Appreciation Right Agreement”).
Restricted Stock
Award: A Restricted Stock Award is an award of
Shares made under Section 8 of this Plan, the grant, issuance,
retention and/or vesting of which is subject to such performance
and other conditions as are expressed in the
document(s) evidencing the Award (the “Restricted Stock
Agreement”).
Incentive Award:
An Incentive Award is a bonus opportunity awarded under
Section 9 of this Plan pursuant to which a Participant may
become entitled to receive an amount payable either in cash, Shares
or other property based on satisfaction of such performance
criteria as are specified in the document(s) evidencing the
Award (the “Incentive Bonus Agreement”).
Stock Unit Award:
A Stock Unit Award is an award of a right to receive the
fair market value of a specified number of Shares made under
Section 10 of this Plan, the grant, issuance price, retention
and/or vesting of which is subject to such performance and other
conditions as are expressed in the document(s) evidencing the
Award (the “Stock Unit Agreement”).
5.2
Grants of Awards . An Award may consist of one or two or
more Award types made in any combination or in the
alternative.
SECTION 6. Stock Option
Awards
The
Committee may grant a Stock Option or provide for the grant of a
Stock Option, in the discretion of the Committee or automatically
upon the occurrence of specified events previously established by
the Committee including, without limitation, the achievement of
performance goals, the satisfaction of an event or condition within
the control of the recipient of the Award, within the control of
others or not within any person’s control.
6.1
Option Agreement . Each Option Agreement shall contain
provisions regarding (a) the number of Shares which may be
issued upon exercise of the Stock Option, (b) the purchase
price of the Shares and the means of payment for the Shares,
(c) the term of the Stock Option, (d) such terms and
conditions of exercisability as may be determined by the Committee,
(e) any restrictions on the transfer of the Stock Option,
(f) forfeiture provisions, and (g) such further terms and
conditions, consistent with the Plan as may be determined by the
Committee. Option Agreements evidencing ISOs shall contain such
terms and conditions as may be necessary to comply with the
applicable provisions of Code Section 422.
6.2
Stock Option Price . The purchase price per Share of the
Shares subject to each Stock Option granted under the Plan shall
equal or exceed 100% of the fair market value of such Stock on the
date the Stock Option is granted, except that the Committee may
specifically provide that the exercise price of a Stock Option may
be higher or lower in the case of a Stock Option granted to
employees of a company acquired by the Company in assumption and
substitution of options held by such employees at the time such
company is acquired. The assumption and substitution of options
shall not result in discounted options subject to
Section 409A.
6.3
Stock Option Term . The “term” of each Stock
Option granted under the Plan, including any ISOs, shall be stated
in the Option Agreement but may not exceed ten (10) years from
the date of its grant.
6.4
Stock Option Vesting . Stock Options granted under the
Plan shall be exercisable at such time and in such manner prior to
the expiration of the Stock Option’s term as determined in
the sole discretion of the Committee and evidenced in the terms of
the Option Agreement. The Committee shall have the right to make
the timing of the ability to exercise any Stock Option granted
under the Plan subject to such performance requirements as deemed
appropriate by the Committee. At any time after the grant of a
Stock Option, the Committee may, in its sole discretion, reduce or
eliminate any restrictions surrounding any Participant’s
right to exercise all or part of the Stock Option, limited by the
fact that a Stock Option shall first become exercisable upon
satisfaction of such performance requirements as deemed appropriate
by the Committee but in no case shall such Stock Option become
fully exercisable prior to the twelfth (12th) month following its
date of grant, other than as a result of the Participant’s
death, disability or termination of employment, or a change of
control of the Company.
6.5
Option Exercise.
(a) Partial
Exercise. An exercisable Stock Option may be
exercised in whole or in part. However, a Stock Option shall not be
exercisable with respect to fractional Shares and the Committee may
require, by the terms of the Option Agreement, that any partial
exercise must be for a minimum number of whole Shares.
(b) Manner of Exercise . An
exercisable Stock Option shall be deemed exercised (in whole or in
part) only upon delivery to the Company representative designated
by the Committee all of the following: (i) a notice of
exercise (in such form as the Committee authorizes) specifying the
number of Shares to be purchased by the Participant;
(ii) payment or provision for payment of the exercise price
(in compliance with Section 6.5(c) hereof) for such
number of Shares; (iii) such representations and documents as
the Committee, in its sole discretion, deems necessary or advisable
to effect compliance with all applicable provisions of the
Securities Act of 1933, as amended, and any other Federal, state or
foreign securities laws or regulations; (iv) in the event that
the Stock Option shall be exercised pursuant to Section 11.1
by any person or persons other than the Participant, appropriate
proof of the right of such person or persons to exercise the
Option; and (v) such representations and documents as the
Committee, in its sole discretion, deems necessary or advisable to
provide for tax withholding. Unless provided otherwise by the
Committee, no Participant shall have any right as a shareholder
with respect to any Shares purchased pursuant to any Stock Option
until the registration of Shares in the name of the Participant,
and no adjustment shall be made for dividends (ordinary or
extraordinary, whether in cash, securities or other property) or
distributions or other rights for which the record date is prior to
the date such Shares are so registered.
(c) Payment of Exercise Price
. To the extent authorized by the Committee, the exercise
price of a Stock Option may be paid at the time established by the
terms of the Option Agreement or at the time of exercise of the
Stock Option in one or more of the following methods: (i) cash
or certified or cashiers’ check; (ii) shares of Company
capital stock that have been held by the Participant for such
period of time as the Committee may specify; (iii) other
property deemed acceptable by the Committee; (iv) a reduction
in the number of Shares or other property otherwise issuable
pursuant to such Stock Option; or (v) any combination of
(i) through (iv).
6.6
No Repricing without Stockholder Approval. Other than in
connection with a change in the Company’s capitalization (as
described in Section 12) the exercise price of a Stock Option
may not be reduced without stockholder approval (including
canceling previously awarded Stock Options and regranting them with
a lower exercise price).
SECTION 7. Stock
Appreciation Right Awards
Stock Appreciation Rights may be granted to
Participants from time to time either in tandem with or as a
component of other Awards granted under the Plan (“tandem
Stock Appreciation Rights”) or not in conjunction with other
Awards (“freestanding Stock Appreciation Rights”) and
may, but need not, relate to a specific Stock Option granted under
Section 6. The provisions of Stock Appreciation Rights need
not be the same with respect to each grant or each recipient. Any
Stock Appreciation Right granted in tandem with an Award may be
granted at the same time such Award is granted or at any time
thereafter before exercise or expiration of such Award. All
freestanding Stock Appreciation Rights shall be granted subject to
the same terms and conditions applicable to Stock Options as set
forth in Section 6
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