Exhibit 10.7
NYMEX HOLDINGS,
INC.
2006 OMNIBUS LONG-TERM INCENTIVE
PLAN
Amended and Restated as of
December 31, 2008
NYMEX Holdings, Inc., a Delaware
corporation (the “Company”), sets forth herein the
terms of its 2006 Omnibus Long-Term Incentive Plan (the
“Plan”) as amended December 31, 2008 as
follows:
1. PURPOSE
The Plan is intended to enhance the
Company’s and its Affiliates’ (as defined herein)
ability to attract and retain highly qualified officers, directors
and key employees, and to motivate such officers, directors and key
employees to serve the Company and its Affiliates and to expend
maximum effort to improve the business results and earnings of the
Company, by providing to such persons an opportunity to acquire or
increase a direct proprietary interest in the operations and future
success of the Company. To this end, the Plan provides for the
grant of stock options, stock appreciation rights, restricted
stock, restricted stock units, unrestricted stock and cash awards.
Any of these awards may, but need not, be made as performance
incentives to reward attainment of annual or long-term performance
goals in accordance with the terms hereof. Stock options granted
under the Plan may be non-qualified stock options or incentive
stock options, as provided herein.
2. DEFINITIONS
For purposes of interpreting the
Plan and related documents (including Award Agreements), the
following definitions shall apply:
2.1.
“Affiliate” means any company or other trade or business
that “controls,” is “controlled by” or is
“under common control” with the Company within the
meaning of Rule 405 of Regulation C under the Securities Act,
including, without limitation, any Subsidiary.
2.2. “Annual Incentive
Award” means an
Award made subject to attainment of performance goals (as described
in Section 13) over a performance period of one
(1) year.
2.3.
“Award” means
a grant of an Option, Stock Appreciation Right, Restricted Stock,
Restricted Stock Unit or cash award under the Plan.
2.4. “Award
Agreement” means a
written agreement between the Company and a Grantee, or notice from
the Company to a Grantee, that evidences and sets out the terms and
conditions of an Award.
2.5.
“Board” means
the Board of Directors of the Company.
2.6.
“Cause” means, as determined by the Board and unless
otherwise provided in an applicable agreement with the Company or
an Affiliate at or before the Grant Date: (i) engaging in any
act, or failing to act, or misconduct that is injurious to the
Company or its Affiliates; (ii) gross negligence or willful
misconduct in connection with the performance of duties;
(iii) conviction of a criminal offense (other than minor
traffic offenses); (iv) fraud, embezzlement or
misappropriation of funds or property of the Company or an
Affiliate; (v) material breach of any term of any employment,
consulting or other services, confidentiality, intellectual
property or non-competition agreements, if any, between the Service
Provider and the Company or an Affiliate; (vi) the entry of an
order duly issued by any regulatory agency (including federal,
state and local regulatory agencies and self-regulatory bodies)
having jurisdiction over the Company or an Affiliate requiring the
removal from any office held by the Service Provider with the
Company or prohibiting a Service Provider from participating in the
business or affairs of the Company or any Affiliate; or
(vii) the revocation or threatened
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revocation of any of the Company’s or an
Affiliate’s government licenses, permits or approvals, which
is primarily due to the Service Provider’s action or inaction
and such revocation or threatened revocation would be alleviated or
mitigated in any material respect by the termination of the Service
Provider’s Services.
2.7. “Change in
Control” shall have
the meaning set forth in Section 15.2.
2.8.
“Code” means
the Internal Revenue Code of 1986, as now in effect or as hereafter
amended.
2.9.
“Committee” means the Compensation Committee of the Board,
or such other committee as determined by the Board. The
Compensation Committee of the Board may, in its discretion,
designate a subcommittee of its members to serve as the Committee
(to the extent the Board has not designated another person,
committee or entity as the Committee) or to cause the Committee to
(i) consist solely of persons who are “Nonemployee
Directors” as defined in Rule 16b-3 issued under the Exchange
Act, (ii) consist solely of persons who are Outside Directors,
or (iii) satisfy the applicable requirements of any stock
exchange on which the Common Stock may then be listed.
2.10.
“Company” means NYMEX Holdings, Inc., a Delaware
corporation, or any successor corporation.
2.11. “Common Stock”
or “Stock” means a share of common stock of the Company,
par value $0.01 per share.
2.12. “Covered
Employee” means a
Grantee who is a “covered employee” within the meaning
of Section 162(m)(3) of the Code as qualified by
Section 13.4 herein.
2.13.
“Disability” means as determined by the Board and unless
otherwise provided in an applicable agreement with the Company or
an Affiliate at or before the Grant Date, the Grantee is unable to
perform each of the essential duties of such Grantee’s
position by reason of a medically determinable physical or mental
impairment which is potentially permanent in character or which can
be expected to last for a continuous period of not less than 12
months; provided, however, that, with respect to rules
regarding expiration of an Incentive Stock Option following
termination of the Grantee’s Service, Disability has the
meaning as set forth in Section 22(e)(3) of the
Code.
2.14. “Effective
Date” means
,
2006.
2.15. “Exchange
Act” means the
Securities Exchange Act of 1934, as now in effect or as hereafter
amended.
2.16. “Fair Market
Value” of a share
of Common Stock as of a particular date shall mean (1) if the
Common Stock is listed on a national securities exchange, the
closing or last price of the Common Stock on the composite tape or
other comparable reporting system for the applicable date, or if
the applicable date is not a trading day, the trading day
immediately preceding the applicable date, or (2) if the
shares of Common Stock are not then listed on a national securities
exchange or national market system, or the value of such shares is
not otherwise determinable, such value as determined by the Board
in good faith in its sole discretion (but in any event not less
than fair market value within the meaning of Section 409A);
notwithstanding the foregoing, the Fair Market Value of a share of
Common Stock for purposes of determining Awards with a Grant Date
as of the Company’s initial public offering shall be the
price per share of Common Stock set in the final prospectus for
such initial public offering.
2.17. “Family
Member” means a
person who is a spouse, former spouse, child, stepchild,
grandchild, parent, stepparent, grandparent, niece, nephew,
mother-in-law, father-in-law, son-in-law, daughter-in-law, brother,
sister, brother-in-law, or sister-in-law, including adoptive
relationships, of the applicable individual, any person sharing the
applicable individual’s household (other than a tenant or
employee), a trust in which any one or more of these persons have
more than fifty percent of the beneficial interest, a foundation in
which any one or more of these persons (or the applicable
individual) control the management of assets, and any other entity
in which one or more of these persons (or the applicable
individual) own more than fifty percent of the voting
interests.
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2.18. “Grant
Date” means, as
determined by the Board, the latest to occur of (i) the date
as of which the Board approves an Award, (ii) the date on
which the recipient of an Award first becomes eligible to receive
an Award under Section 6 hereof, or (iii) such other date
as may be specified by the Board in the Award Agreement.
2.19.
“Grantee” means a person who receives or holds an Award
under the Plan.
2.20. “Incentive Stock
Option” means an
“incentive stock option” within the meaning of
Section 422 of the Code, or the corresponding provision of any
subsequently enacted tax statute, as amended from time to
time.
2.21. “Non-qualified Stock
Option” means an
Option that is not an Incentive Stock Option.
2.22.
“Option” means an option to purchase one or more shares
of Stock pursuant to the Plan.
2.23. “Option
Price” means the
exercise price for each share of Stock subject to an
Option.
2.24. “Outside
Director” means a
member of the Board who is not an officer or employee of the
Company or an Affiliate, determined in accordance with the
requirements of Section 162(m) of the Code.
2.25. “Performance
Award” means an
Award made subject to the attainment of performance goals (as
described in Section 13) over a performance period of up to
ten (10) years.
2.26.
“Plan” means
this NYMEX Holdings, Inc. 2006 Omnibus Long-Term Incentive
Plan .
2.27. “Purchase
Price” means the
purchase price for each share of Stock pursuant to a grant of
Restricted Stock.
2.28. “Reporting
Person” means a
person who is required to file reports under Section 16(a) of
the Exchange Act.
2.29. “Restricted
Stock” means shares
of Stock, awarded to a Grantee pursuant to Section 10
hereof.
2.30. “Restricted Stock
Unit” means a
bookkeeping entry representing the equivalent of shares of Stock,
awarded to a Grantee pursuant to Section 10 hereof.
2.31. “SAR Exercise
Price” means the
per share exercise price of a SAR granted to a Grantee under
Section 9 hereof.
2.32. “Section
409A” shall mean
Section 409A of the Code and all formal guidance and
regulations promulgated thereunder.
2.33. “Securities
Act” means the
Securities Act of 1933, as now in effect or as hereafter
amended.
2.34. “Separation from
Service” means a
termination of Service by a Service Provider, as determined by the
Board, which determination shall be final, binding and conclusive;
provided if any Award governed by Section 409A is to be
distributed on a Separation from Service, then the definition of
Separation from Service for such purposes shall comply with the
definition provided in Section 409A.
2.35.
“Service” means service as a Service Provider to the
Company or an Affiliate. Unless otherwise stated in the applicable
Award Agreement, a Grantee’s change in position or duties
shall not result in interrupted or terminated Service, so long as
such Grantee continues to be a Service Provider to the Company or
an Affiliate.
2.36. “Service
Provider” means an
employee, officer or director of the Company or an
Affiliate.
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2.37. “ Stock Appreciation Right” or
“SAR” means a right granted to a Grantee under
Section 9 hereof.
2.38.
“Subsidiary” means any “subsidiary corporation”
of the Company within the meaning of Section 424(f) of the
Code.
2.39. “Termination
Date” means the
date upon which an Option shall terminate or expire, as set forth
in Section 8.3 hereof.
2.40. “Ten Percent
Stockholder” means
an individual who owns more than ten percent (10%) of the
total combined voting power of all classes of outstanding stock of
the Company, its parent or any of its Subsidiaries. In determining
stock ownership, the attribution rules of Section 424(d) of
the Code shall be applied.
3. ADMINISTRATION OF THE
PLAN
3.1. General.
The Board shall have such powers and
authorities related to the administration of the Plan as are
consistent with the Company’s certificate of incorporation
and bylaws and applicable law. The Board shall have the power and
authority to delegate its responsibilities hereunder to the
Committee, which shall have full authority to act in accordance
with its charter, and with respect to the authority of the Board to
act hereunder, all references to the Board shall be deemed to
include a reference to the Committee, to the extent such power or
responsibilities have been delegated. Except as specifically
provided in Section 13 or as otherwise may be required
by applicable law, regulatory requirement or the certificate of
incorporation or the bylaws of the Company, the Board shall have
full power and authority to take all actions and to make all
determinations required or provided for under the Plan, any Award
or any Award Agreement, and shall have full power and authority to
take all such other actions and make all such other determinations
not inconsistent with the specific terms and provisions of the Plan
that the Board deems to be necessary or appropriate to the
administration of the Plan. The interpretation and construction by
the Board of any provision of the Plan, any Award or any Award
Agreement shall be final, binding and conclusive. Without
limitation, the Board shall have full and final authority, subject
to the other terms and conditions of the Plan, to:
(i) designate Grantees;
(ii) determine the type or types of
Awards to be made to a Grantee;
(iii) determine the number of shares
of Stock to be subject to an Award;
(iv) establish the terms and
conditions of each Award (including, but not limited to, the Option
Price of any Option, the nature and duration of any restriction or
condition (or provision for lapse thereof) relating to the vesting,
exercise, transfer, or forfeiture of an Award or the shares of
Stock subject thereto, and any terms or conditions that may be
necessary to qualify Options as Incentive Stock
Options);
(v) prescribe the form of each Award
Agreement; and
(vi) amend, modify, or supplement
the terms of any outstanding Award including the authority, in
order to effectuate the purposes of the Plan, to modify Awards to
foreign nationals or individuals who are employed outside the
United States to recognize differences in local law, tax
policy, or custom.
Notwithstanding the foregoing, no
amendment or modification may be made to an outstanding Option or
SAR that (i) causes the Option or SAR to become subject to
Section 409A, (ii) reduces the Option Price or SAR
Exercise Price, either by lowering the Option Price or SAR Exercise
Price or by canceling the outstanding Option or SAR and granting a
replacement Option or SAR with a lower Option Price or SAR Exercise
Price or (iii) would be treated as a repricing under the rules
of the exchange upon which the Company’s Stock trades,
without, with respect to item (i), the Grantee’s written
prior approval, and with respect to items (ii) and (iii),
without the approval of the stockholders of the Company, provided,
that, appropriate adjustments may be made to outstanding Options
and SARs pursuant to Section 15 .
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The Company may retain the right in
an Award Agreement to cause a forfeiture of the gain realized by a
Grantee on account of actions taken by the Grantee in violation or
breach of or in conflict with any employment agreement,
non-competition agreement, any agreement prohibiting solicitation
of employees or clients of the Company or any Affiliate thereof or
any confidentiality obligation with respect to the Company or any
Affiliate thereof or otherwise in competition with the Company or
any Affiliate thereof, to the extent specified in such Award
Agreement applicable to the Grantee. Furthermore, the Company may
annul an Award if the Grantee is terminated for Cause as defined in
the applicable Award Agreement or the Plan, as applicable. The
grant of any Award may be contingent upon the Grantee executing the
appropriate Award Agreement.
3.2. Deferral
Arrangement.
The Board may permit or require the
deferral of any Award payment into a deferred compensation
arrangement, subject to such rules and procedures as it may
establish and in accordance with Section 409A, which may
include provisions for the payment or crediting of interest or
dividend equivalents, including converting such credits into
deferred Stock units.
3.3. No Liability.
No member of the Board or of the
Committee shall be liable for any action or determination made in
good faith with respect to the Plan, any Award or Award
Agreement.
3.4. Book Entry.
Notwithstanding any other provision
of this Plan to the contrary, the Company may elect to satisfy any
requirement under this Plan for the delivery of stock certificates
through the use of book-entry.
4. STOCK SUBJECT TO THE
PLAN
Subject to adjustment as provided in
Section 15 hereof, the maximum number of shares of
Stock available for issuance under the Plan shall be 4,300,000. All
such shares of Stock available for issuance under the Plan shall be
available for issuance pursuant to Incentive Stock Options.
Notwithstanding any provision to the contrary, no more than
1,433,333 shares of Stock available for issuance under the Plan
shall be available for issuance as Restricted Stock or Restricted
Stock Units. Stock issued or to be issued under the Plan shall be
authorized but unissued shares; or, to the extent permitted by
applicable law, issued shares that have been reacquired by the
Company.
The Board may adopt reasonable
counting procedures to ensure appropriate counting, avoid double
counting (as, for example, in the case of tandem or substitute
awards) and make adjustments in accordance with
Section 15 . If the Option Price of any Option granted
under the Plan, or if pursuant to Section 16.3 the
withholding obligation of any Grantee with respect to an Option or
other Award, is satisfied by tendering shares of Stock to the
Company (by either actual delivery or by attestation) or by
withholding shares of Stock, the number of shares of Stock issued
net of the shares of Stock tendered or withheld shall be deemed
delivered for purposes of determining the maximum number of shares
of Stock available for delivery under the Plan. To the extent that
an Award under the Plan is canceled, expired, forfeited, settled in
cash, settled by issuance of fewer shares than the number
underlying the Award, or otherwise terminated without delivery of
shares to the Grantee, the shares retained by or returned to the
Company will be available under the Plan; and shares that are
withheld from such an Award or separately surrendered by the
Grantee in payment of any exercise price or taxes relating to such
an Award shall be deemed to constitute shares not delivered to the
Grantee and will be available under
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the Plan. In addition, in the case of any Award
granted in assumption of or in substitution for an award of a
company or business acquired by the Company or a Subsidiary or
Affiliate or with which the Company or a Subsidiary or Affiliate
combines, shares issued or issuable in connection with such
substitute Award shall not be counted against the number of shares
reserved under the Plan.
5. EFFECTIVE DATE, DURATION AND
AMENDMENTS
5.1. Term.
The Plan shall be effective as of
the Effective Date and shall terminate automatically as of the
first meeting of stockholders at which directors are to be elected
that occurs after the close of the third calendar year following
the calendar year in which the initial public offering occurs
unless the Plan is approved by the stockholders of the Company
prior to such meeting but subsequent to the Effective Date. In the
event that the Plan is approved by the stockholders during the time
prescribed in the preceding sentence, then the Plan shall terminate
automatically on the ten (10) year anniversary of the
Effective Date and may be terminated on any earlier date as
provided in Section 5.2 .
5.2. Amendment and Termination of
the Plan.
The Board may, at any time and from
time to time, amend, suspend, or terminate the Plan as to any
Awards which have not been made. An amendment shall be contingent
on approval of the Company’s stockholders to the extent
stated by the Board, required by applicable law or required by
applicable stock exchange listing requirements. No Awards shall be
made after termination of the Plan. No amendment, suspension, or
termination of the Plan shall, without the consent of the Grantee,
impair rights or obligations under any Award theretofore
awarded.
6. AWARD ELIGIBILITY AND
LIMITATIONS
6.1. Service
Providers.
Subject to this
Section 6 , Awards may be made to: (i) any Service
Provider, including any Service Provider who is an officer or
director of the Company or of any Affiliate, as the Board shall
determine and designate from time to time in its discretion and
(ii) any Outside Director.
6.2. Successive
Awards.
An eligible person may receive more
than one Award, subject to such restrictions as are provided
herein.
6.3. Stand-Alone, Additional,
Tandem, and Substitute Awards.
Awards may, in the discretion of the
Board, be granted either alone or in addition to, in tandem with,
or in substitution or exchange for, any other Award or any award
granted under another plan of the Company, any Affiliate, or any
business entity to be acquired by the Company or an Affiliate, or
any other right of a Grantee to receive payment from the Company or
any Affiliate. Such additional, tandem, and substitute or exchange
Awards may be granted at any time. If an Award is granted in
substitution or exchange for another Award, the Board shall have
the right to require the surrender of such other Award in
consideration for the grant of the new Award. The Board shall have
the right, in its discretion, to make Awards in substitution or
exchange for any other award under another plan of the Company, any
Affiliate, or any business entity to be acquired by the Company or
an Affiliate. In addition, Awards may be granted in lieu of cash
compensation, including in lieu of cash amounts payable under other
plans of the Company or any Affiliate, in which the value of Stock
subject to the Award is equivalent in value to the cash
compensation (for example, Restricted Stock Units or Restricted
Stock).
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7. AWARD AGREEMENT
Each Award shall be evidenced by an
Award Agreement, in such form or forms as the Board shall from time
to time determine. Without limiting the foregoing, an Award
Agreement may be provided in the form of a notice which provides
that acceptance of the Award constitutes acceptance of all terms of
the Plan and the notice. Award Agreements granted from time to time
or at the same time need not contain similar provisions but shall
be consistent with the terms of the Plan. Each Award Agreement
evidencing an Award of Options shall specify whether such Options
are intended to be Non-qualified Stock Options or Incentive Stock
Options, and in the absence of such specification such options
shall be deemed Non-qualified Stock Options.
8. TERMS AND CONDITIONS OF
OPTIONS
8.1. Option Price.
The Option Price of each Option
shall be fixed by the Board and stated in the related Award
Agreement. The Option Price of each Option shall be at least the
Fair Market Value on the Grant Date of a share of Stock;
provided, however, that (a) in the event that a Grantee
is a Ten Percent Stockholder as of the Grant Date, the Option Price
of an Option granted to such Grantee that is intended to be an
Incentive Stock Option shall be not less than 110 percent of the
Fair Market Value of a share of Stock on the Grant Date, and
(b) with respect to Awards made in substitution for or in
exchange for awards made by an entity acquired by the Company or an
Affiliate, the Option Price does not need to be at least the Fair
Market Value on the Grant Date. In no case shall the Option Price
of any Option be less than the par value of a share of
Stock.
8.2. Vesting.
Subject to Section 8.3
hereof, each Option shall become exercisable at such times and
under such conditions (including without limitation performance
requirements) as shall be determined by the Board and stated in the
Award Agreement. For purposes of this Section 8.2 ,
fractional numbers of shares of Stock subject to an Option shall be
rounded down to the next nearest whole number.
8.3. Term.
Each Option shall terminate, and all
rights to purchase shares of Stock thereunder shall cease, upon the
expiration of eight years from the Grant Date, or under such
circumstances and on such date prior thereto as is set forth in the
Plan or as may be fixed by the Board and stated in the related
Award Agreement (the “Termination Date”); provided,
however, that in the event that the Grantee is a Ten Percent
Stockholder, an Option granted to such Grantee that is intended to
be an Incentive Stock Option at the Grant Date shall not be
exercisable after the expiration of five years from its Grant
Date.
8.4. Separation from
Service.
Except as otherwise provided in an
Award Agreement, if a Grantee’s employment with or service as
a director of the Company or Affiliate terminates for any reason
other than Cause, (i) Options granted to such Grantee, to the
extent that they are exercisable at the time of such termination,
shall remain exercisable for a period of not more than 90 days
after such termination (one year in the case of termination by
reason of death or Disability), on which date they shall expire,
and (ii) Options granted to such Grantee, to the extent that
they were not exercisable at the time of such termination, shall
expire on the date of such termination. In the event of the
termination of a Grantee’s employment or service for Cause,
all outstanding Options granted to such Grantee shall expire on the
date of such termination. Notwithstanding the foregoing, no Option
shall be exercisable after the expiration of its term.
8.5. Limitations on Exercise of
Option.
Notwithstanding any other
