Attached files
| file | filename |
|---|---|
| 8-K - SUNEDISON, INC. | v181843_8k.htm |
| EX-99.3 - SUNEDISON, INC. | v181843_ex99-3.htm |
| EX-99.2 - SUNEDISON, INC. | v181843_ex99-2.htm |
| EX-99.4 - SUNEDISON, INC. | v181843_ex99-4.htm |
| EX-99.7 - SUNEDISON, INC. | v181843_ex99-7.htm |
| EX-99.5 - SUNEDISON, INC. | v181843_ex99-5.htm |
| EX-99.6 - SUNEDISON, INC. | v181843_ex99-6.htm |
Exhibit
99.1
MEMC
ELECTRONIC MATERIALS, INC.
2010
EQUITY INCENTIVE PLAN
|
1.
|
Purpose
|
The
purpose of this MEMC Electronic Materials, Inc. 2010 Equity Incentive Plan is to
promote the interests of the Company and its stockholders by providing the
directors, key employees and consultants of the Company and its Subsidiaries
with an appropriate incentive to encourage them to continue in the service and
employ of the Company or Subsidiary and to improve the growth and profitability
of the Company. The opportunity so provided is intended to foster in
such individuals a strong incentive to put forth maximum effort for the
continued success and growth of the Company and its Subsidiaries, to aid in
retaining individuals who put forth such efforts, and to assist in attracting
the best available individuals in the future.
|
2.
|
Definitions
|
When used
herein, the following terms shall have the meaning set forth below:
2.1 “Award” shall mean an Option,
a Performance Unit Award, a Restricted Stock Award, or a grant of
Shares.
2.2 “Board” means the Board of
Directors of the Company.
2.3 “Cause” means, when
used in connection with the termination of a Participant’s Employment, the
termination of the Participant’s Employment by the Company or any Subsidiary
which Employs such Participant on account of (i) the failure of the
Participant to make a good faith effort to substantially perform his duties
hereunder (other than any such failure due to the Participant’s Total
Disability) or Participant’s insubordination with respect to a specific
directive of the Participant’s supervisor or officer to which the Participant
reports directly or indirectly; (ii) Participant’s dishonesty, gross
negligence in the performance of his duties hereunder or engaging in willful
misconduct, which in the case of any such gross negligence, has caused or is
reasonably expected to result in direct or indirect material injury to the
Company or any of its Subsidiaries; (iii) breach by Participant of any
material provision of any other written agreement with the Company or any of its
Subsidiaries or material violation of any Company policy applicable to
Participant; or (iv) Participant’s commission of a crime that constitutes a
felony or other crime of moral turpitude or fraud. If, subsequent to
Participant’s termination of employment hereunder for other than Cause, it is
determined in good faith by the Company that Participant’s employment could have
been terminated for Cause hereunder, Participant’s employment shall, at the
election of the Company, be deemed to have been terminated for Cause
retroactively to the date the events giving rise to Cause
occurred.
1
Exhibit
99.1
2.4 “Change in Control” means the
occurrence of any of the following events: (i) any sale, lease, exchange or
other transfer (in one transaction or a series of related transactions) of all
of the assets of the Company to any Person or group of related persons for
purposes of Section 13(d) of the Exchange Act (a “Group”), together with any
affiliates thereof; (ii) the approval by the holders of capital stock of the
Company of any plan or proposal for the liquidation or dissolution of the
Company; (iii) any Person or Group shall become the beneficial owner (within the
meaning of Section 13(d) of the Exchange Act), directly or indirectly, of shares
representing more than 40% of the aggregate voting power of the issued and
outstanding stock entitled to vote in the election of directors, managers or
trustees (the “Voting Stock”) of the Company and such Person or Group actually
has the power to vote such shares in any such election; (iv) the replacement of
a majority of the Board of Directors of the Company over a two-year period from
the directors who constituted the Board of Directors of the Company at the
beginning of such period, and such replacement shall not have been approved by a
vote of at least a majority of the Board of Directors of the Company then still
in office who either were members of such Board of Directors at the beginning of
such period; (v) any Person or Group shall have acquired the power to elect a
majority of the members of the Board of Directors of the Company; or (vi) a
merger or consolidation of the Company with another entity in which holders of
the Common Stock of the Company immediately prior to the consummation of the
transaction hold, directly or indirectly, immediately following the consummation
of the transaction, 50% or less of the common equity interest in the surviving
corporation in such transaction.
2.5 “Code” means the Internal
Revenue Code of 1986, as amended, and the regulations and other guidance
promulgated thereunder.
2.6 “Committee” means the members
of the Board's Compensation Committee who are "non-employee directors" as
defined in Rule 16b-3(b)(3)(i) promulgated under the Securities Exchange Act of
1934, as amended, as it exists on the effective date of the Plan or as
subsequently amended or interpreted and who are “outside directors” within the
meaning of Section 162(m) of the Code and the regulations
thereunder.
2.7 “Company” means MEMC
Electronic Materials, Inc., a Delaware corporation.
2.8 “EBITDA” means the Company’s
consolidated earnings before interest, taxes, depreciation and amortization, as
derived from the Company’s audited financial statements as the sum of operating
income plus depreciation and amortization, as calculated by the
Committee.
2.9 “Eligible Employee” means any
employee, director or consultant who, in the judgment of the Committee, should
be eligible to participate in this Plan due to the services they perform on
behalf of the Company or a Subsidiary.
2.10 “Employment” means employment
with the Company or any Subsidiary, service as a director of the Company and
service as a consultant for the Company or any Subsidiary. “Employee” and “Employed”, when used
herein, shall have correlative meanings.
2.11
“Fair Market
Value” means, as of any date, the closing price of one share of Common
Stock, as reported on the New York Stock Exchange for such date or such national
securities exchange as may be designated by the Board.
2
Exhibit
99.1
2.12 “Good Reason” means, within
the two year period following a Change in Control, (i) a material diminution in
a Participant’s duties and responsibilities other than a change in such
Participant’s duties and responsibilities that results from becoming part of a
larger organization following a Change in Control, (ii) a decrease in a
Participant’s base salary, bonus opportunity or benefits other than a decrease
in benefits that applies to all employees of the Employer or its Subsidiaries
otherwise eligible to participate in the affected plan, or (iii) a relocation of
a Participant’s primary work location more than 50 miles from the work location
immediately prior to the Change in Control, without written consent; provided that, within fifteen
days following the occurrence of any of the events set forth herein, the
Participant shall have delivered written notice to the Company of his intention
to terminate his employment for Good Reason, which notice specifies in
reasonable detail the circumstances claimed to give rise to the Participant’s
right to terminate his employment for Good Reason, and the Company shall not
have cured such circumstances within fifteen days following the Company’s
receipt of such notice.
2.13 “Grantee” means a person to
whom an Award is made.
2.14 “Incentive Stock Option” or
“ISO” means an Option awarded under the Plan which meets the requirements of
Section 422 of the Code and the regulations thereunder.
2.15 “Inducement Award” means an
Award granted to a Prospective Employee as an incentive to become an Employee
and that is forfeitable if such individual does not become an Employee within
the period of time designated by the Committee.
2.16 “Non-Employee Director” means
a director of the Company who is not also an employee of the Company or any
Subsidiary.
2.17 “Non-Qualified Stock Option”
or “NQSO” means an Option awarded under the Plan, which is not an
ISO.
2.18 “Option” means the right to
purchase, at a price, for a Term, under conditions, and for cash or other
considerations fixed by the Committee in accordance with the Plan, and subject
to such other limitations and restrictions as the Plan and the Committee impose,
a number of Shares specified by the Committee. An Option may be
either an ISO or an NQSO or a combination thereof.
2.19 “Participant” shall mean an
Eligible Employee or a Prospective Employee to whom a grant of an Award under
the Plan has been made, and, where applicable, shall include permitted
transferees pursuant to Section 9 hereof.
2.20 “Performance Unit Award”
means an award tied to selected performance criteria. Performance
Unit Awards will provide for payment of an award in Shares, as determined by the
Committee, if performance goals are achieved over specified performance
periods.
2.21 “Person” means an individual,
partnership, corporation, limited liability company, unincorporated
organization, trust or joint venture, or a governmental agency or political
subdivision thereof.
2.22
“Plan” means this MEMC
Electronic Materials, Inc. 2010 Equity Incentive Plan.
3
Exhibit
99.1
2.23 “Predecessor Plan” means the
MEMC Electronic Materials, Inc. 2001 Equity Incentive Plan.
2.24 “Prospective Employee” means
any individual to whom the Committee wishes to grant an Inducement Award as an
incentive to become an employee.
2.25 “Restricted Stock Award”
means the grant of a right to receive, at a time or times fixed by the Committee
in accordance with the Plan, and subject to such other limitations and
restrictions as the Plan and the Committee impose, the number of Shares
specified by the Committee.
2.26 “Right of First Refusal” means
the right of the Company to be given the opportunity to repurchase Shares
awarded under the Plan at their then Fair Market Value prior to such Shares
being offered for sale to any other party. This right shall apply to
any Shares awarded under the Plan under terms and conditions established by the
Committee at the time of Award, and shall apply to all Grantees and their
guardians, legal representatives, joint tenants, tenants in common, heirs or
Successors.
2.27 “Shares” means shares of the
Company's common stock or, if by reason of the adjustment provisions hereof any
rights under an Award under the Plan pertain to any other security, such other
security.
2.28 “Specified Employee” means any
Company employee that the Company determines is a Specified Employee within the
meaning of Section 409A of the Code.
2.29 “Subsidiary” means any
business, whether or not incorporated, in which the Company, at the time an
Award is granted to an employee thereof, or in other cases, at the time of
reference, owns directly or indirectly not less than 50% of the equity
interest.
2.30 “Successor” means the legal
representative of the estate of a deceased Grantee or the person or persons who
shall acquire the right to exercise an Option, or to receive Shares issuable in
satisfaction of a Restricted Stock Award, by bequest or inheritance or by reason
of the death of the Grantee, as provided in accordance with Section 10
hereof.
2.31 “Term” means the period during
which a particular Option may be exercised or the period during which the
restrictions placed on a Restricted Stock Award are in effect.
2.32 “Total Disability” means total
disability as defined under the Company’s or any Subsidiary’s group insurance
plan covering total disability. In the absence of such insurance plan the
Committee shall make such determination.
|
3.
|
Administration
of the Plan
|
3.1 The
Plan shall be administered by the Committee, which shall be comprised of no
fewer than two members of the Board who shall be appointed from time to time by
the Board. The Committee may delegate its authority to grant Awards
to a subcommittee of such Committee. In the absence of a Committee,
the Board shall function as the Committee for all purposes under the Plan, and
to the extent that the Board so acts, references in this Plan to the Committee
shall refer to the Board as applicable. In addition, the Committee,
in its discretion, may delegate its authority to grant Awards to a director, an
officer or committee of officers of the Company, subject to reasonable limits
and guidelines established by the Committee at the time of such
delegation.
4
Exhibit
99.1
3.2 The
Committee shall have plenary authority, subject to the provisions of the Plan,
to determine when and to whom Awards shall be granted, the Term of each Award,
the number of Shares covered by the Award, and all other terms or conditions of
the Award. The Committee may grant such additional benefits in
connection with any Award as it deems appropriate. The number of
Shares, the Term, the other terms and conditions of a particular kind of Award
and any additional benefits granted in connection with any Award need not be the
same, even as to Awards made at the same time. The Committee's
actions in granting Awards, in setting their terms and conditions, and in
granting any additional benefits in connection with any Award, shall be
conclusive on all persons.
3.3 The
Committee shall have the sole responsibility for construing and interpreting the
Plan, for establishing and amending such rules and regulations as it deems
necessary or desirable for the proper administration of the Plan, and for
resolving all questions arising under the Plan. Any decision or
action taken by the Committee arising out of, or in connection with, the
construction, administration, interpretation and effect of the Plan and of its
rules and regulations shall be conclusive and binding upon all Grantees,
Successors, and all other persons.
3.4 The
Committee shall regularly inform the Board of its actions with respect to all
Awards under the Plan and the terms and conditions of such Awards in a manner,
at such times, and in such form as the Board may reasonably
request.
3.5 The
performance criteria for Awards made to any "covered employee" (as defined in
Section 162(m) of the Code), and which are intended to qualify as
“performance-based compensation” (as defined in Section 162(m) of the Code),
shall consist of objective tests established by the Committee based on one or
more of the indicators of performance described in Section 7.2.
3.6 No
member of the Committee or the Board shall be liable for any action or
determination made in good faith with respect to this Plan or any
Award. To the full extent permitted by law, the Company shall
indemnify and hold harmless each person made or threatened to be made a party to
any civil or criminal action or proceeding by reason of the fact that such
person, or such person’s testator or intestate, is or was a member of the
Committee.
|
4.
|
Eligibility
|
Awards
may be made under the Plan to Eligible Employees or Prospective Employees of the
Company or a Subsidiary. In making a determination concerning the
granting of Awards to Eligible Employees or Prospective Employees, the Committee
may take into account the nature of the services they have rendered or that the
Committee expects they will render, their present and potential contributions to
the success of the business, the number of years of effective service they are
expected to have and such other factors as the Committee in its sole discretion
shall deem relevant.
5
Exhibit
99.1
|
5.
|
Shares
Subject to Plan
|
Subject to adjustment as provided in
Section 19 below, the aggregate number of Shares which may be issued pursuant to
Awards under this plan is (i) 15,000,000 plus (ii) the number of Shares
authorized for issuance and available for awards under the Predecessor Plan on
December 31, 2010. Shares described in clause (ii) above include Shares which,
immediately prior to the Effective Date, were authorized for issuance under the
Predecessor Plan and either (x) were not subject to then outstanding awards or
(y) were subject to then outstanding awards that subsequently expire, are
canceled or otherwise terminate unexercised for any reason. The
Shares so issued may be unreserved Shares held in the treasury however acquired
or Shares which are authorized but unissued. For purposes of determining the
number of Shares issued under the Plan, no Shares shall be deemed issued until
they are actually delivered to a Grantee or such other person described in
Section 9. Shares covered by Awards that either wholly or partly are
not earned, or that expire or are forfeited, cancelled or terminated shall be
available for future issuance of Awards. Shares used to pay
the exercise price of Options and Shares withheld to pay taxes shall not be
recycled to the Share pool for the Plan.
|
6.
|
Granting
of Options to Eligible Employees
|
6.1 Subject
to the terms of the Plan, the Committee may from time to time grant Options to
Eligible Employees; provided, however, that an ISO may only be granted to an
employee of the Company or a Subsidiary.
6.2 The
aggregate Fair Market Value (as determined on the date of grant) of ISO Awards
to an individual Grantee and exercisable for the first time during any calendar
year shall not exceed $100,000.
6.3 The
purchase price of each Share subject to Options shall be fixed by the Committee,
which shall be specified in the Stock Option Grant Agreement, but shall not be
less than the Fair Market Value of a share of Common Stock on the Grant Date;
provided, however, that
such price may not be less than the minimum price required by law. Except as
otherwise provided in Section 19, in no event may an Option be repriced or
exchanged for any consideration without shareholder approval.
6.4 Notwithstanding
any provision in this Plan to the contrary, the minimum purchase price of an ISO
Award shall be 110% of Fair Market Value with respect to Grantees who at the
time of Award are deemed to own 10% or more of the voting power of the Company
as defined by the Code.
6.5 Each
Option shall expire and all right to purchase Shares thereunder shall cease on
the date fixed by the Committee, which subject to the terms of the Plan, shall
not be later than the tenth anniversary of the date on which the Option was
granted.
6.6 Notwithstanding
any provision in this Plan to the contrary, ISO awards shall expire and all
rights to purchase Shares thereunder shall cease no later than the fifth
anniversary of the date on which the Option was granted with respect to Grantees
who at the time of Award are deemed to own 10% or more of the voting power of
the Company as defined by the Code.
6
Exhibit
99.1
6.7 Each
Option shall become exercisable at the time, and for the number of Shares, fixed
by the Committee. Except to the extent otherwise provided in or
pursuant to Sections 10 and 11, no Option granted to employees shall become
exercisable as to any Shares during the first six months after the date on which
the Option was granted; provided, however, that,
unless otherwise provided in a Participant’s Award agreement or the Committee
determines otherwise at a later date, if within the two year period following a
Change in Control the Participant’s Employment is terminated by the Company or
its Subsidiary without Cause or by the Participant for Good Reason, all
outstanding Options held by such Participant shall become immediately vested as
of the effective date of the termination of such Participant’s
Employment.
6.8 Subject
to the terms of the Plan, the Committee may make all or any portion of Option
Shares subject to a Right of First Refusal for any period of time set by the
Committee at the time of Award.
6.9
Each Option granted under this Section 6 shall be evidenced by an agreement with
the Company which shall contain the terms and provisions set forth herein and
shall otherwise be consistent with the provisions of the Plan.
|
7.
|
Grant
of Performance Unit Awards to Eligible
Employees
|
7.1 The
Committee may designate Eligible Employees as Grantees of Performance Unit
Awards and shall establish performance periods under the Performance Unit
Awards, provided that the total value of the awards (determined as of the date
of grant) covered by all Performance Unit Awards granted to a “covered employee”
(as defined in Section 162(m) of the Code) with respect to a performance period
shall not exceed 1% of EBITDA for the Company and its Subsidiaries on a
consolidated basis for the three fiscal years immediately preceding the grant;
provided, further that
the total value of the awards (determined as of the date of grant) covered by
all Performance Unit Awards granted to all “covered employees” (as defined in
Section 162(m) of the Code) as a group with respect to a performance period
shall not exceed 2% of EBITDA for the Company and its Subsidiaries on a
consolidated basis for the three fiscal years immediately preceding the
grant.
7.2 The
Committee shall establish indicators of performance applicable to the relevant
performance period, subject to the terms of Section 8.6
hereof. Indicators of performance are utilized to determine the
amount and timing of Performance Unit Awards, and may vary between performance
periods and different Performance Unit Awards. The indicators of performance
shall be one or more of the following: the Company's pretax income, net income,
earnings per Share, revenue, expenses, return on assets, return on equity,
return on investment, return on capital, net profit margin, operating profit
margin, cash flow, total stockholder return, capitalization, liquidity, results
of customer satisfaction surveys, quality, safety, productivity, cost management
or process improvement or any combination of the foregoing as the Committee
approves. Such performance goals may be determined solely by reference to the
performance of the Company, a Subsidiary, or a division or unit of any of the
foregoing, or based upon comparisons of any of the indicators of performance
relative to other companies. The Committee may also exclude the impact of any
event or occurrence which the Committee determines should appropriately be
excluded such as, for example, a restructuring or other nonrecurring charge, an
event either not directly related to the operations of the Company or not within
the reasonable control of the Company's management, or a change in accounting
standards required by U. S. generally accepted accounting
principles.
7
Exhibit
99.1
7.3 Subject
to the terms of the Plan, the Committee may make downward adjustments in
Performance Unit Awards to Grantees.
7.4 At
the time of making grants of Performance Unit Awards, the Committee shall
establish such terms and conditions as it shall determine applicable to such
Awards. The number of Shares paid in settlement of the Performance Unit Awards
shall be determined based on the Fair Market Value of Shares on the date of
settlement of the Performance Unit Awards.
7.5 Subject
to applicable restrictions under Section 162(m) of the Code, the Committee shall
determine the extent to which an Employee shall participate in a partial
performance period because of becoming eligible to be a Grantee after the
beginning of such performance period.
7.6 In
the event a Grantee is involuntarily terminated without Cause or terminates
employment due to death, Total Disability or retirement (as determined by the
Committee), after completing at least 50% of the performance period for an
Award, such Grantee shall be entitled to a pro rata portion of the Award if the
indicators of performance are met at the time of termination, payable at the end
of the applicable performance period in accordance with the terms of the
applicable Performance Unit Awards. Notwithstanding the foregoing, no
payment shall be made to a Specified Employee pursuant to this Section 7.6 until
the first day of the seventh month following the date on which the Specified
Employee has a separation from service within the meaning of Code Section
409A.
|
8.
|
Grant
of Restricted Stock Awards to Eligible
Employees
|
8.1 Subject
to the terms of the Plan, the Committee may also grant Eligible Employees
Restricted Stock Awards.
8.2 The
terms and conditions of such Awards, including restrictions on transfer or on
the ability of the Grantee to make elections with respect to the taxation of the
Award without the consent of the Committee, shall be determined by the
Committee. Except as provided in or pursuant to Sections 10 and 11,
no such restrictions shall lapse earlier than the first, or later than the
tenth, anniversary of the date of the Award.
8
Exhibit
99.1
8.3 The
Committee may establish terms and conditions under which the Grantee of a
Restricted Stock Award shall be entitled to receive a credit equivalent to any
dividend payable with respect to the number of Shares which, as of the record
date for such dividend, have been awarded but not delivered to him or
her. Any such dividend equivalents shall be paid to the Grantee of
the Restricted Stock Award either (1) at such specified time or upon such fixed
schedule during the period when the Shares are being held by the Company
pursuant to the terms of the Restricted Stock Award, or (2) at the time the
Shares to which the dividend equivalents apply are delivered to the
Grantee. For purposes of Code Section 409A, all dividends are treated
as earnings that are separate from the right to the other amounts deferred under
the Plan for purposes of designating the time and form of Plan payments,
pursuant to 26 CFR §1.409A-3(e). Any arrangement for the payment of
dividend equivalents shall be terminated if, under the terms and conditions
established by the Committee, the right to receive Shares being held pursuant to
the terms of the Restricted Stock Award shall lapse.
8.4 Subject
to the terms of the Plan, the Committee may make all or any portion of Shares
awarded under a Restricted Stock Award subject to a Right of First Refusal for
any period of time set by the Committee at the time of Award.
8.5 The
Committee may adopt and apply rules to ensure compliance with tax withholding
requirements, including, but not limited to, the retention of a sufficient
number of restricted shares upon which restrictions have lapsed to pay such
tax.
8.6 All
Restricted Stock Awards and Performance Unit Awards shall have a vesting period
of at least three (3) years (or one (1) year in the case of Restricted Stock
Awards or Performance Unit Awards with restrictions based solely on achievement
of performance goals), except that the Committee may provide in the applicable
Award agreement for vesting of the applicable Award on a pro rata basis during
the vesting period and/or that the vesting period for any Award may otherwise be
shortened only: (i) in the event of the Participant’s death, Total Disability,
or termination of Employment in connection with a Change in Control, pursuant to
Section 11; (ii) in the event of the Participant’s termination of Employment by
the Company without Cause or by the Participant for Good Reason; or (iii) in any
other circumstance; provided, however, that the number of Shares subject to
Awards granted pursuant to this clause (iii) does not exceed five percent (5%)
of the number of Shares authorized for grant under this Plan.
|
9.
|
Non-Transferability
of Rights
|
No rights
under any Award shall be transferable otherwise than by will or the laws of
descent and distribution. Notwithstanding the foregoing, to the extent allowed
by Rule 16b-3 or any successor rule promulgated under the Securities Exchange
Act of 1934, as amended from time to time, as then applicable to the Company's
benefit plans, the Committee may permit an NQSO to be transferred to a member or
members of the Grantee’s immediate family, or to a trust for the benefit for
such immediate family member(s) or a partnership, limited liability company, or
similar entity in which such immediate family member(s) comprise the majority
partners or equity holders. For purposes of this provision, a
Grantee’s immediate family shall mean the Grantee's spouse, children and
grandchildren.
|
10.
|
Death
or Termination of Employment of
Employees
|
10.1 Subject
to the provisions of the Plan, the Committee may make such provisions concerning
exercise or lapse of Options on death or termination of employment as it shall,
in its discretion, determine. No such provision shall extend the Term
of an Option, nor shall any such provision permit an Option to be exercised
prior to six months after the date on which it was granted, except in the event
of death or termination by reason of disability.
9
Exhibit
99.1
10.2 Subject
to the provisions of the Plan and pursuant to the Code, no ISO shall be
exercisable as an ISO after the date which is three months following a Grantee's
termination of employment for any reason other than disability or death, or
twelve months following a Grantee's termination of employment by reason of
disability. Following a Grantee's death, the executor, administrator
or other person acquiring an ISO by bequest or inheritance or by reason of the
death of the Grantee may exercise it at any time during its remaining Term,
provided the deceased Grantee was an employee either at the time of his death or
within three months prior to death.
10.3 The
effect of death or termination of employment on Shares issued or issuable
pursuant to any Restricted Stock Awards and on cash payable pursuant to a
Performance Unit Award shall be as stated in the Award.
10.4 Transfers
of employment between the Company and a Subsidiary, or between Subsidiaries,
shall not constitute termination of employment for purposes of any
Award. The Committee may specify in the terms and conditions of an
Award, whether any authorized leave of absence or absence for military or
government service or for any other reason shall constitute a termination of
employment for purposes of the Award and the Plan.
|
11.
|
Provisions
Relating to Termination of the Company's Separate
Existence
|
The
Committee may provide that in the event the Company experiences a Change in
Control, any and all Options granted under the Plan shall be immediately
exercisable in full, any or all Restricted Stock Awards made under the Plan
shall be immediately payable in full, and any award agreement with respect to a
Performance Unit Award will terminate and be of no further force and the amounts
payable thereunder in such event shall be as specified in the award
agreement.
|
12.
|
Writings
Evidence Awards
|
Each
Award granted under the Plan shall be evidenced by a writing which may, but need
not, be in the form of an agreement to be signed by the Grantee. The
writing shall set forth the nature and size of the Award, its Term, the other
terms and conditions thereof, other than those set forth in the Plan, and such
other information as the Committee directs. Acceptance of any
benefits of an Award by the Grantee shall be conclusively presumed to be an
assent to the terms and conditions set forth therein, whether or not the writing
is in the form of an agreement to be signed by the Grantee.
|
13.
|
Exercise
of Rights Under Awards
|
13.1 A
person entitled to exercise an Option may do so by delivery of a written notice
to that effect specifying the number of Shares with respect to which the Option
is being exercised and any other information the Committee may
prescribe.
10
Exhibit
99.1
13.2 In
the case of an exercise of an Option, the notice shall be accompanied by payment
in full for the purchase price of any Shares to be purchased with such payment
being made by either of the following methods, unless explicitly precluded
pursuant to the terms of the instrument evidencing grant of the
Award: (i) in cash; (ii) in Shares having a Fair Market Value
equivalent to the purchase price of such Option; (iii) in a combination thereof;
(iv) by means of a cashless exercise pursuant to the cashless exercise program
offered by the Company (if any, and to the extent allowed by law); or (v) in the
case of an exercise of a NQSO, by means of a net exercise. In the
event of a net exercise of a NQSO, the person entitled to exercise the NQSO
shall receive the number of Shares equal to the aggregate number of Shares being
purchased upon exercise less the number of Shares having a Fair Market Value
equal to the aggregate purchase price of the Shares as to which the NQSO is
being exercised. No Shares shall be issued upon exercise of an Option
until full payment has been made therefore.
13.3 Upon
exercise of an Option, or grant of a Restricted Stock Award but before a
distribution of Shares in satisfaction thereof, the Grantee may request in
writing that the Shares to be issued in satisfaction of the Award be issued in
the name of the Grantee or the Grantee and another person as joint tenants with
right of survivorship or as tenants in common.
13.4 If
a Right of First Refusal has been required for some or all of the Shares
applicable to an Option, or Restricted Stock Award, the Grantee shall be
required to acknowledge in writing his or her understanding of such Right of
First Refusal and the legend which shall be placed on the certificates for such
Shares.
13.5 All
notices or requests provided for herein shall be delivered to the Senior Vice
President (or Vice President) of Human Resources of the Company.
13.6 Notwithstanding
anything in this Plan to the contrary, if a person is entitled to receive Shares
upon exercise, settlement, or other payment based upon an Award, any fractional
portion of such Shares to which such person is entitled shall, instead of being
paid as fractional Share, be paid in cash in an amount equal to the fractional
portion of such Shares multiplied by the Fair Market Value of a Share on the
date of payment.
|
14.
|
Effective
Date of the Plan and Duration
|
14.1 The
Plan shall become effective on February 21, 2010 (the “Effective Date”), subject
to approval within one (1) year thereafter by the Company's
stockholders.
14.2 No
Awards may be granted under the Plan on or after February 21, 2020 although the
terms of any Award may be amended at any time prior to the end of its Term in
accordance with the Plan.
|
15.
|
Date
of Award
|
The date
of an Award shall be the date on which the Committee’s determination to grant
such Award is final, or such later date as shall be specified by the
Committee. The Award shall be documented within a reasonable period
of time following the date of the Award.
11
Exhibit
99.1
|
16.
|
Shareholder
Status
|
No person
shall have any rights as a stockholder by virtue of the grant of an Award under
the Plan except with respect to Shares actually issued to that
person.
|
17.
|
Postponement
of Exercise
|
The
Committee may postpone any exercise of an Option or the distribution of any
portion of a Restricted Stock Award or the grant of Shares for such time as the
Committee, in its discretion, may deem necessary in order to permit the Company
(i) to effect or maintain registration of the Plan or the Shares issuable upon
the exercise of an Option or distributable in satisfaction of a Restricted Stock
Award or pursuant to a grant of Shares under the Securities Act of 1933, as
amended, or the securities laws of any applicable jurisdiction, (ii) to permit
any action to be taken in order to comply with restrictions or regulations
incident to the maintenance of a public market for its Shares, or (iii) to
determine that such Shares and the Plan are exempt from such registration or
that no action of the kind referred to in (i) or (ii) above needs to be taken.
The Company shall not be obligated by virtue of any terms and conditions of any
Award or any provision of the Plan to recognize the exercise of an Option or to
sell or issue shares in violation of the Securities Act of 1933 or the law of
any government having jurisdiction thereof. Any such postponement
shall not extend the Term of an Option nor shorten the Term of any restriction
attached to any Restricted Stock Award. Neither the Company nor its
directors or officers shall have any obligation or liability to any Grantee, to
the Grantee's Successor or to any other person with respect to any Shares with
respect to which the Option shall lapse because of such postponement or as to
which issuance under a Restricted Stock Award was delayed.
|
18.
|
Termination,
Suspension or Modification of Plan or
Awards
|
The Board
may at any time terminate, suspend or modify the Plan, except that the Board
shall not, without authorization of the Company’s stockholders in accordance
with the requirements of Section 14 hereof, effect any change (other than
through adjustment for changes in capitalization as herein provided)
which:
18.1 increases
the aggregate number of Shares for which Awards may be granted;
18.2 lowers
the minimum Option price;
18.3 lengthens
the maximum period during which an Option may be exercised;
18.4
disqualifies any member of the Committee from being a "non-employee
director" as defined in Rule 16b-3(b)(3)(i) promulgated under the Securities
Exchange Act of 1934, as amended;
18.5 changes
the class of employees eligible to receive Awards; or
18.6 extends
the period of time during which Awards may be granted.
12
Exhibit
99.1
No
termination, suspension or modification of the Plan shall adversely affect any
right acquired by any Grantee or any Successor under an Award granted before the
date of such termination, suspension or modification, unless such Grantee or
Successor shall consent; but it shall be conclusively presumed that any
adjustment for changes in capitalization as provided for herein does not
adversely affect any such right. Except as described above, the
Committee may amend the Plan and any Award granted under the Plan as the
Committee deems necessary or appropriate to comply with Section 409A of the
Code.
|
19.
|
Adjustment
for Changes in Capitalization
|
19.1
Increase or Decrease in
Issued Shares Without Consideration. Subject to any required
action by the stockholders of the Company, in the event of any increase or
decrease in the number of issued shares of Common Stock resulting from a
subdivision or consolidation of shares of Common Stock or the payment of an
extraordinary stock dividend (but only on the shares of Common Stock), or any
other increase or decrease in the number of such shares effected without receipt
of consideration by the Company, the Committee shall make such adjustments with
respect to the number of shares of Common Stock subject to the Awards, the
exercise price per share of Common Stock, as the Committee may consider
appropriate to prevent the enlargement or dilution of rights.
19.2 Certain
Mergers. Subject to any required action by the stockholders of
the Company, in the event that the Company shall be the surviving corporation in
any merger or consolidation (except a merger or consolidation as a result of
which the holders of shares of Common Stock receive securities of another
corporation), the Awards outstanding on the date of such merger or consolidation
shall pertain to and apply to the securities that a holder of the number of
shares of Common Stock subject to any such Award would have received in such
merger or consolidation (it being understood that if, in connection with such
transaction, the stockholders of the Company retain their shares of Common Stock
and are not entitled to any additional or other consideration, the Awards shall
not be affected by such transaction).
19.3 Certain Other
Transactions. In the event of (i) a dissolution or liquidation
of the Company, (ii) a sale of all or substantially all of the Company’s assets,
(iii) a merger or consolidation involving the Company in which the Company is
not the surviving corporation or (iv) a merger or consolidation involving the
Company in which the Company is the surviving corporation but the holders of
shares of Common Stock receive securities of another corporation and/or other
property, including cash, the Committee shall, in its absolute discretion, have
the power to:
(A) provide
for the exchange of any Award outstanding immediately prior to such event
(whether or not then exercisable) for an award with respect to, as appropriate,
some or all of the property for which the stock underlying such Award is
exchanged and, incident thereto, make an equitable adjustment, as determined by
the Committee, in the exercise price of the Options, if applicable, or the
number of shares or amount of property subject to the Award or, if appropriate,
provide for a cash payment to the Participants in partial consideration for the
exchange of the Awards as the Committee may consider appropriate to prevent
dilution or enlargement of rights;
13
Exhibit
99.1
(B) cancel,
effective immediately prior to the occurrence of such event, any Award
outstanding immediately prior to such event (whether or not then exercisable or
vested), and in full consideration of such cancellation, pay to the Participant
to whom such Award was granted an amount in cash, for each share of Common Stock
subject to such Award, equal to: (x) with respect to an Option, the excess of
(1) the fair market value of securities and property (including cash) received
by the holder of a share of Common Stock as a result of such event over (2) the
Exercise Price of such Option; (y) with respect to Restricted Stock,
the value, as determined by the Committee in its absolute discretion, of the
securities and property (including cash) received by the holder of a share of
Common Stock as a result of such event; and (z) with respect to a Performance
Unit, the value, as determined by the Committee in its absolute discretion, of
the securities and property (including cash) received by the holder of a share
of Common Stock as a result of such event, but only to the extent such
cancellation and payment does not violate Code Section 409A, or
(C) provide
for any combination of (A) or (B).
19.4 Other Changes. In
the event of any change in the capitalization of the Company or a corporate
change other than those specifically referred to in Sections 9(a), (b) or (c)
hereof, the Committee shall make such adjustments in the number and class of
shares subject to Awards outstanding on the date on which such change occurs
and, if applicable, in the per-share exercise price of each such Option, as the
Committee may, in its absolute discretion, consider appropriate to prevent
dilution or enlargement of rights.
19.5 No Other
Rights. Except as expressly provided in this Plan or the Award
Agreements evidencing the Awards, the Participants shall not have any rights by
reason of (i) any subdivision or consolidation of shares of Common Stock or
shares of stock of any class, (ii) the payment of any dividend, any increase or
decrease in the number of shares of Common Stock, or (iii) shares of stock of
any class or any dissolution, liquidation, merger or consolidation of the
Company or any other corporation. Except as expressly provided in
this Plan or the Award Agreements evidencing the Awards, no issuance by the
Company of shares of Common Stock or shares of stock of any class, or securities
convertible into shares of Common Stock or shares of stock of any class, shall
affect, and no adjustment by reason thereof shall be made with respect to, the
number of shares of Common Stock subject to an Award or, if applicable, the
exercise price of any Option.
|
20.
|
Delivery
of Shares in Lieu of Cash Incentive
Awards
|
20.1 Any
employee otherwise eligible for an Award under the Plan who is eligible to
receive a cash incentive payment from the Company under any management incentive
plan may make application to the Committee in such manner as may be prescribed
from time to time by the Committee, to receive Shares from the Plan in lieu of
all or any portion of such cash payment.
20.2 The
Committee may in its discretion honor such application by delivering Shares from
the Plan to such employee equal in Fair Market Value to that portion of the cash
payment otherwise payable to the employee under such incentive plan for which a
Share delivery is to be made in lieu of cash payment.
20.3 Any
Shares delivered to employees under the Plan in lieu of cash incentive payments
shall come from the aggregate number of Shares authorized for use by the Plan
and shall not be available for any other Awards under the Plan.
14
Exhibit
99.1
|
21.
|
Non-Uniform
Determination
|
The
Committee's determination under the Plan including, without limitation,
determination of the persons to receive Awards, the form, amount and type of
Awards, the terms and provisions of Awards and the written material evidencing
such Awards, the grant of additional benefits in connection with any Award, and
the granting or rejecting of applications for delivery of Shares in lieu of cash
bonus or incentive payments need not be uniform and may be made selectively
among otherwise Eligible Employees, whether or not such employees are similarly
situated.
|
22.
|
Taxes
|
The
Company may withhold amounts necessary to satisfy its tax withholding
obligations with respect to Awards. The Company may withhold Shares
received upon exercise of an Award in order to satisfy its withholding
obligations with respect to Awards.
|
23.
|
Tenure
|
An
employee's right, if any, to continue in the employ of the Company or a
Subsidiary shall not be affected by the fact that he or she has been granted an
Award. At the sole discretion of the Committee, an employee
terminated for Cause may be required to forfeit all of his or her rights under
the Plan, except as to Options already exercised and Restricted Stock Awards on
which restrictions have already lapsed.
|
24.
|
Application
of Proceeds
|
The
proceeds received by the Company from the sale of its Shares under the Plan
shall be used for general corporate purposes.
|
25.
|
Other
Actions
|
Nothing
in the Plan shall be construed to limit the authority of the Company to exercise
its corporate rights and powers, including the right to grant options for proper
corporate purposes otherwise than under the Plan to any person, firm,
corporation, association or other entity, or to grant options to, or assume
options of, any person in connection with the acquisition, by purchase, lease,
merger, consolidation or otherwise, of all or any part of the business and
assets of any person, firm, corporation, association or other
entity.
|
26.
|
Governing
Law
|
The Plan
and all determinations made and action taken pursuant hereto shall be governed
by and construed in accordance with the laws of the state of Delaware, without
regard to the principles of conflicts of law which might otherwise
apply.
ADOPTED,
pursuant to resolution of the Board of Directors this 21st day of February, 2010.
|
By
|
/s/ Bradley D. Kohn
|
|
|
Secretary
|
15