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8-K - FORM 8-K - Coeur Mining, Inc. | v56159e8vk.htm |
Exhibit 10.1
AMENDED
AND RESTATED
2003 LONG-TERM INCENTIVE PLAN
OF
COEUR DALENE MINES CORPORATION
(Amended and Restated Effective May 11, 2010)
2003 LONG-TERM INCENTIVE PLAN
OF
COEUR DALENE MINES CORPORATION
(Amended and Restated Effective May 11, 2010)
ARTICLE 1.
ESTABLISHMENT,
PURPOSE, AND DURATION
1.1 Establishment of the
Plan. Coeur dAlene Mines Corporation, an
Idaho corporation (hereinafter referred to as the
Company), establishes an incentive compensation plan
to be known as the Coeur dAlene Mines Corporation 2003
Long-Term Incentive Plan (hereinafter referred to as the
Plan), as set forth in this document.
The Plan permits the grant of Nonqualified Stock Options,
Incentive Stock Options, Stock Appreciation Rights
(SARs), Restricted Stock, Restricted Stock Units,
Performance Shares, Performance Units, Cash-Based Awards, and
Stock-Based Awards.
The Plan became effective May 20, 2003 (the Effective
Date) and was amended effective May 26, 2009 to
reflect adjustments relating to the Companys
one-for-ten
reverse stock split of its common stock. The Board approved this
amendment and restatement of the Plan on March 1, 2010 to
(a) allow awards under the Plan to the Companys
non-employee directors, (b) increase the number of shares
available for grant under the Plan and (c) make other
administrative changes. This amendment and restatement of the
Plan will become effective upon approval by the Companys
stockholders (the date of such approval the Restatement
Effective Date); provided that if such approval by the
Companys stockholders is not obtained, this amendment and
restatement of the Plan shall be void. The Plan shall remain in
effect as provided in Section 1.3 hereof.
1.2 Purpose of the Plan. The
purpose of the Plan is to promote the success and enhance the
value of the Company by linking the personal interests of the
Participants to those of the Companys shareholders, and by
providing Participants with an incentive for outstanding
performance.
The Plan is further intended to provide flexibility to the
Company in its ability to motivate, attract, and retain the
services of Participants upon whose judgment, interest, and
special effort the successful conduct of its operation is
largely dependent.
1.3 Duration of the Plan. The Plan
commenced as of the Effective Date, as described in
Section 1.1 herein, and shall remain in effect, subject to
the right of the Committee or the Board of Directors to amend or
terminate the Plan at any time pursuant to Article 16
herein, until the tenth anniversary of the Restatement Effective
Date. Termination of the Plan will not affect the rights and
obligations of the Participants and the Company arising under
Awards theretofore granted and then in effect.
ARTICLE 2.
DEFINITIONS
Whenever used in the Plan, the following terms shall have the
meaning set forth below, and when the meaning is intended, the
initial letter of the word shall be capitalized.
(a) Affiliate shall have the meaning
ascribed to such term in
Rule 12b-2
of the General Rules and Regulations of the Exchange Act.
(b) Award means, individually or
collectively, a grant under this Plan of NQSOs, ISOs, SARs,
Restricted Stock, Restricted Stock Units, Performance Shares,
Performance Units, Cash-Based Awards, or Stock-Based Awards.
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(c) Award Agreement means either
(i) an written agreement or other instrument entered into
by the Company and each Participant setting forth the terms and
provisions applicable to Awards granted under this Plan; or
(ii) a statement issued by the Company to a Participant
describing the terms and provisions of such Award.
(d) Beneficial Owner shall have the
meaning ascribed to such term in
rule 13d-3
of the General Rules and Regulations under the Exchange Act.
(e) Board or Board of
Directors means the Board of Directors of the Company.
(f) Cash-Based Award means an Award
granted to a Participant as described in Article 10 herein.
(g) Cause means: (i) fraud,
misrepresentation, theft, or embezzlement; (ii) intentional
violation of laws involving moral turpitude or which is
materially injurious to the Company; or (iii) willful and
continued failure by the Participant substantially to perform
his or her duties with the Company or its subsidiaries (other
than failure resulting from the Participants incapacity
due to physical or mental illness), after a demand for
substantial performance is delivered to the Participant by the
President or the Chairman of the Board of the Company, which
demand specifically identifies the manner in which the
Participant has not substantially performed his or her duties.
(h) Change in Control shall mean any of
the following events: (i) any organization, group, or
person (Person) (as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of
1934, as amended) (the Exchange Act) is or becomes
the Beneficial Owner (as defined in
Rule 13d-3
under the Exchange Act), directly or indirectly, of securities
of the Company representing thirty-five percent (35%) or more of
the combined voting power of the then outstanding securities of
the Company; or (ii) during any two (2) year period, a
majority of the members of the Board serving at the date of
approval of this Plan by shareholders is replaced by Directors
who are not nominated and approved by the Board; or
(iii) the Company shall be combined with or acquired by
another company and the Board shall have determined, either
before such event or thereafter, by resolution, that a Change in
Control will or has occurred; provided, however, that no such
determination shall be made if such transaction results in at
least 50% of the assets or voting securities of the Company
being Beneficially Owned, directly or indirectly, by all or
substantially all of the Persons who were the Beneficial Owners
of the outstanding voting securities of the Company prior to
such transaction in substantially the same proportions as their
Beneficial Ownership prior to such transaction
(i) Code means the U.S. Internal
Revenue Code of 1986, as amended from time to time, or any
successor thereto.
(j) Committee means the Compensation
Committee of the Board of Directors. The members of the
Committee shall be appointed from time to time by and shall
serve at the discretion of the Board.
(k) Company means Coeur dAlene
Mines Corporation, an Idaho corporation, and any successor
thereto as provided in Article 18 herein.
(l) Covered Employee means a Participant
who is a covered employee, as defined in
Section 162(m) of the Code and the regulations promulgated
under Section 162(m) of the Code, or any successor statute.
(m) Director means any individual who is
a member of the Board of Directors of the Company.
(n) Disabled If an Award becomes subject
to the requirements of Article 13, the term
Disabled shall be defined as such term is defined
under Section 409A of the Code.
(o) Employee means any employee of the
Company, its Affiliates,
and/or its
Subsidiaries. Directors who are not otherwise employed by the
Company, its Affiliates,
and/or its
Subsidiaries shall not be considered Employees under this Plan.
Individuals described in the first sentence of this definition
who are foreign nationals or are employed outside of the United
States, or both, are considered to be Employees and may be
granted
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Awards on the terms and conditions set forth in the Plan, or on
such other terms and conditions as may, in the judgment of the
Committee, be necessary or desirable to further the purpose of
the Plan.
(p) Exchange Act means the Securities
Exchange Act of 1934, as amended from time to time, or any
successor act thereto.
(q) Fair Market Value or
FMV means a price that is based on the
opening, closing, actual, high, low, or average selling prices
of a Share on the New York Stock Exchange (NYSE) or
other established stock exchange (or exchanges) on the
applicable date, the preceding trading day, the next succeeding
trading day, or an average of trading days, as determined by the
Committee in its discretion. Such definition of FMV shall be
specified in the Award Agreement and may differ depending on
whether FMV is in reference to the grant, exercise, vesting, or
settlement or payout of an Award. If, however, the accounting
standards used to account for equity awards granted to
Participants are substantially modified subsequent to the
Effective Date of the Plan, the Committee shall have the ability
to determine an Awards FMV based on the relevant facts and
circumstances. If Shares are not traded on an established stock
exchange, FMV shall be determined by the Committee based on
objective criteria.
(r) Fiscal Year means the year
commencing on January 1 and ending December 31 or other time
period as approved by the Board.
(s) Freestanding SAR means an SAR that
is granted independently of any Options, as described in
Article 7 herein.
(t) Grant Price means the price at which
a SAR may be exercised by a Participant, as determined by the
Committee and set forth in Section 7.1 herein.
(u) Incentive Stock Option or
ISO means an Option to purchase Shares
granted under Article 6 herein and that is designated as an
Incentive Stock Option and is intended to meet the requirements
of Section 422 of the Code, or any successor provision.
(v) Insider shall mean an individual who
is, on the relevant date, an officer, Director, or more than ten
percent (10%) Beneficial Owner of any class of the
Companys equity securities that is registered pursuant to
Section 12 of the Exchange Act, as determined by the Board
in accordance with Section 16 of the Exchange Act.
(w) Non-employee Director means a
Director who is not an Employee.
(x) Non-employee Director Award means
any Award granted to a Participant who is a Non-employee
Director pursuant to such applicable terms, conditions, and
limitations as the Board or Committee may establish in
accordance with this Plan.
(y) Nonqualified Stock Option or
NQSO means an Option to purchase Shares,
granted under Article 6 herein, which is not intended to be
an Incentive Stock Option or that otherwise does not meet such
requirements.
(z) Option means an Incentive Stock
Option or a Nonqualified Stock Option, as described in
Article 6 herein.
(aa) Option Price means the price at
which a Share may be purchased by a Participant pursuant to an
Option, as determined by the Committee.
(bb) Participant means an Employee or
Non-employee Director who has been selected to receive an Award
or who has an outstanding Award granted under the Plan.
(cc) Performance-Based Compensation
means compensation under an Award that is granted in order
to provide remuneration solely on account of the attainment of
one or more preestablished, objective performance goals under
circumstances that satisfy the requirements of
Section 162(m) of the Code.
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(dd) Performance Measures means measures
as described in Article 11, the attainment of which may
determine the degree of payout
and/or
vesting with respect to Awards to Covered Employees that are
designated to qualify as Performance-Based Compensation.
(ee) Performance Period means the period
of time during which the performance goals must be met in order
to determine the degree of payout
and/or
vesting with respect to an Award.
(ff) Performance Share means an Award
granted to a Participant, as described in Article 9 herein.
(gg) Performance Unit means an Award
granted to a Participant, as described in Article 9 herein.
(hh) Period of Restriction means the
period when Awards are subject to forfeiture based on the
passage of time, the achievement of performance goals,
and/or upon
the occurrence of other events as determined by the Committee,
at its discretion.
(ii) Prior Plan means the Coeur
dAlene Mines Corporation 2005 Non-employee Directors
Equity Incentive Plan.
(jj) Restricted Stock means an Award of
Shares granted to a Participant pursuant to Article 8
herein.
(kk) Restricted Stock Unit means an
Award granted to a Participant pursuant to Article 8 herein.
(ll) Shares means the Shares of common
stock of the Company.
(mm) Stock Appreciation Right or
SAR means an Award, designated as an SAR,
pursuant to the terms of Article 7 herein.
(nn) Stock-Based Award means an Award
granted pursuant to the terms of Section 10.5 herein.
(oo) Subsidiary means any corporation,
partnership, joint venture, limited liability company, or other
entity (other than the Company) in an unbroken chain of entities
beginning with the Company if each of the entities other than
the last entity in the unbroken chain owns at least fifty
percent (50%) of the total combined voting power in one of the
other entities in such chain.
(pp) Tandem SAR means an SAR that is
granted in connection with a related Option pursuant to
Article 7 herein, the exercise of which shall require
forfeiture of the right to purchase a Share under the related
Option (and when a Share is purchased under the Option, the
Tandem SAR shall similarly be cancelled) or an SAR that is
granted in tandem with an Option but the exercise of such Option
does not cancel the SAR, but rather results in the exercise of
the related SAR.
ARTICLE 3.
ADMINISTRATION
3.1 General. The Committee shall be
responsible for administering the Plan. The Committee may employ
attorneys, consultants, accountants, and other persons, and the
Committee, the Company, and its officers and Directors shall be
entitled to rely upon the advice, opinions, or valuations of any
such persons. All actions taken and all interpretations and
determinations made by the Committee shall be final, conclusive,
and binding upon the Participants, the Company, and all other
interested parties.
3.2 Authority of the Committee. The
Committee shall have full and exclusive discretionary power to
interpret the terms and the intent of the Plan and to determine
eligibility for Awards and to adopt such rules, regulations, and
guidelines for administering the Plan as the Committee may deem
necessary or proper. Such authority shall include, but not be
limited to, selecting Award recipients, establishing all Award
terms and conditions and, subject to Article 16, adopting
modifications and amendments, or subplans to the Plan or any
Award Agreement, including without limitation, any that are
necessary to comply with the laws of the countries in which the
Company, its Affiliates,
and/or its
Subsidiaries operate.
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3.3 Delegation. The Committee may
delegate to one or more of its members or to one or more
officers of the Company, its Affiliates
and/or its
Subsidiaries, or to one or more agents or advisors such
administrative duties as it may deem advisable, and the
Committee or any person to whom it has delegated duties as
aforesaid may employ one or more persons to render advice with
respect to any responsibility the Committee or such person may
have under the Plan. Except with respect to Awards to Insiders,
the Committee may, by resolution, authorize one or more officers
of the Company to do one or both of the following:
(a) designate Employees (but not officers
and/or
Non-employee Directors) of the Company, its Affiliates,
and/or its
Subsidiaries to be recipients of Awards; and (b) determine
the size of the Award; provided, however, that the resolution
providing such authorization sets forth the total number of
Awards such officer or officers may grant.
ARTICLE 4.
SHARES SUBJECT
TO THE PLAN AND MAXIMUM AWARDS
4.1 Number of Shares Available for
Awards. Subject to adjustment as provided in
Section 4.2 herein, the number of Shares hereby reserved
for issuance to Participants under the Plan shall be four
million (4,000,000), plus any Shares subject to outstanding
awards under the Prior Plan as of the Effective Date that on or
after such date cease for any reason to be subject to such
awards (other than by reason of exercise or settlement of the
awards to the extent they are exercised for or settled in vested
and nonforfeitable Shares). Any Shares issued pursuant to
Options or Stock Appreciation Rights under this Plan shall be
counted against this limit on a
one-for-one
basis and any Shares issued pursuant to Awards under this Plan
other than Options or Stock Appreciation Rights shall be counted
against this limit as 1.5 shares for every one Share issued
pursuant to such Award. Up to four million (4,000,000) of the
reserved Shares may be used as ISOs.
For purposes of Section 4.1, 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. Any Shares related to Awards which terminate by
expiration, forfeiture, cancellation, or otherwise without the
issuance of such Shares, are settled in cash in lieu of Shares,
or are exchanged with the Committees permission for Awards
not involving Shares, shall be available again for grant under
the Plan. Notwithstanding the foregoing, Shares subject to an
Award may not again be made available for issuance under the
Plan if such Shares are: (i) Shares that were subject to a
stock-settled Stock Appreciation Right and were not issued upon
the net settlement or net exercise of such Stock Appreciation
Right, (ii) Shares delivered to or withheld by the Company
to pay the exercise price of an Option, (iii) Shares
delivered to or withheld by the Company to pay the withholding
taxes related an Award, or (iv) Shares repurchased on the
open market with the proceeds of an Option exercise. Any Shares
that again become available for grant pursuant to this
Section 4.1 shall be added back as one Share if such shares
were subject to Options or Stock Appreciation Rights granted
under the Plan or options or stock appreciation rights granted
under the Prior Plan, and as 1.5 Shares if such shares were
subject to Awards other than Options or Stock Appreciation
Rights granted under the Plan or subject to awards other than
options or stock appreciation rights granted under the Prior
Plan. The Shares available for issuance under the Plan may be
authorized and unissued Shares or treasury Shares.
Unless and until the Committee determines that an Award to a
Covered Employee shall not be designed to qualify as
Performance-Based Compensation, the following limits
(Award Limits) shall apply to grants of such Awards
under the Plan:
(a) Options. The maximum aggregate number
of Shares that may be granted in the form of Options, pursuant
to any Award granted in any one Fiscal Year to any one Employee
shall be sixty thousand (60,000).
(b) SARs. The maximum aggregate number of
Shares that may be granted in the form of Stock Appreciation
Rights, pursuant to any Award granted in any one Fiscal Year to
any one Employee shall be sixty thousand (60,000).
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(c) Restricted Stock/ Restricted Stock
Units. The maximum aggregate grant with respect
to Awards of Restricted Stock/Restricted Stock Units granted in
any one Fiscal Year to any one Employee shall be sixty thousand
(60,000) Shares.
(d) Performance Shares/ Performance
Units. The maximum aggregate Award of Performance
Shares or Performance Units that an Employee may receive in any
one Fiscal Year shall be sixty thousand (60,000) Shares, or
equal to the value of sixty thousand (60,000) Shares determined
as of the date of vesting or payout, as applicable.
(e) Cash-Based Awards. The maximum
aggregate amount awarded or credited with respect to Cash-Based
Awards to any one Employee in any one Fiscal Year may not exceed
one million two hundred thousand dollars ($1,200,000) determined
as of the date of vesting or payout, as applicable.
(f) Stock Awards. The maximum aggregate
grant with respect to Awards of Stock-Based Awards in any one
Fiscal Year to any one Employee shall be sixty thousand (60,000)
Shares.
(g) Non-employee Director Awards. The
maximum aggregate grant with respect to all Awards granted in
any one Fiscal Year to any one Non-employee Director shall be
six thousand (6,000) Shares.
4.2 Adjustments in Authorized
Shares. In the event of any corporate event or
transaction (including, but not limited to, a change in the
Shares of the Company or the capitalization of the Company) such
as a merger, consolidation, reorganization, recapitalization,
separation, stock dividend, stock split, reverse stock split,
split up, spin-off, or other distribution of stock or property
of the Company, combination of securities, exchange of
securities, dividend in kind, or other like change in capital
structure or distribution (other than normal cash dividends) to
shareholders of the Company, or any similar corporate event or
transaction, the Committee, in its sole discretion, in order to
prevent dilution or enlargement of Participants rights
under the Plan, shall substitute or adjust, in an equitable
manner, as applicable, the number and kind of Shares that may be
issued under the Plan, the number and kind of Shares subject to
outstanding Awards, the Option Price or Grant Price applicable
to outstanding Awards, the Award Limits, the limit on issuing
Awards other than Options granted with an Option Price equal to
at least the FMV of a Share on the date of grant or Stock
Appreciation Rights with a Grant Price equal to at least the FMV
of a Share on the date of grant, and other value determinations
applicable to outstanding Awards.
Appropriate adjustments shall also be made by the Committee in
the terms of any Awards under the Plan to reflect such changes
or distributions and to modify any other terms of outstanding
Awards on an equitable basis, including modifications of
performance goals and changes in the length of Performance
Periods. The determination of the Committee as to the foregoing
adjustments, if any, shall be conclusive and binding on
Participants under the Plan.
Subject to the provisions of Article 15 and any applicable
law or regulatory requirement, without affecting the number of
Shares reserved or available hereunder, the Committee may
authorize the issuance, assumption, substitution, or conversion
of Awards under this Plan in connection with any merger,
consolidation, acquisition of property or stock, or
reorganization, upon such terms and conditions as it may deem
appropriate. Additionally, the Committee may amend the Plan, or
adopt supplements to the Plan, in such manner as it deems
appropriate to provide for such issuance, assumption,
substitution, or conversion, all without further action by the
Companys shareholders.
ARTICLE 5.
ELIGIBILITY
AND PARTICIPATION
5.1 Eligibility. Individuals
eligible to participate in the Plan include all Employees and
Non-employee Directors.
5.2 Actual Participation. Subject
to the provisions of the Plan, the Committee may from time to
time, select from all eligible Employees and Non-employee
Directors, those to whom Awards shall be granted and shall
determine the nature and amount of each Award.
6
ARTICLE 6.
STOCK OPTIONS
6.1 Grant of Options. Subject to
the terms and provisions of the Plan, Options may be granted to
Participants in such number, and upon such terms, and at any
time and from time to time as shall be determined by the
Committee. In addition, ISOs may not be granted following the
ten (10) year anniversary of the Boards adoption of
this amendment and restatement, which is May 11, 2020.
6.2 Award Agreement. Each Option
grant shall be evidenced by an Award Agreement that shall
specify the Option Price, the duration of the Option, the number
of Shares to which the Option pertains, the conditions upon
which an Option shall become vested and exercisable, and such
other provisions as the Committee shall determine which are not
inconsistent with the terms of the Plan. The Award Agreement
also shall specify whether the Option is intended to be an ISO
or a NQSO.
6.3 Option Price. The Option Price
for each grant of an Option under this Plan shall be determined
by the Committee and shall be specified in the Award Agreement;
provided, however, that in no event shall the Option Price be
less than one hundred percent (100%) of the FMV of the Shares on
the date of grant.
6.4 Duration of Options. Each
Option granted to a Participant shall expire at such time as the
Committee shall determine at the time of grant; provided,
however, no Option shall be exercisable later than the tenth
(10th) anniversary date of its grant. Notwithstanding the
foregoing, for Options granted to Participants outside the
United States, the Committee has the authority to grant Options
that have a term greater than ten (10) years.
6.5 Exercise of Options. Options
granted under this Article 6 shall be exercisable at such
times and be subject to such restrictions and conditions as the
Committee shall in each instance approve, which need not be the
same for each grant or for each Participant.
6.6 Payment. Options granted under
this Article 6 shall be exercised by the delivery of a
written notice of exercise to the Company, setting forth the
number of Shares with respect to which the Option is to be
exercised, accompanied by full payment for the Shares.
The Option Price upon exercise of any Option shall be payable to
the Company in full either: (a) in cash or its equivalent;
(b) by tendering (either by actual delivery or attestation)
previously acquired Shares having an aggregate FMV at the time
of exercise equal to the total Option Price; (c) by
withholding from the Shares otherwise issuable upon exercise of
the Option an number of Shares having an aggregate FMV at the
time of exercise equal to the total Option Price; (d) by a
combination of (a) and (b); or (e) any other method
approved by the Committee in its sole discretion.
The Committee also may allow cashless exercise as permitted
under the Federal Reserve Boards Regulation T,
subject to applicable securities law restrictions, or by any
other means which the Committee determines to be consistent with
the Plans purpose and applicable law.
Subject to Section 6.7 and any governing rules or
regulations, as soon as practicable after receipt of a written
notification of exercise and full payment, the Company shall
deliver to the Participant, Share certificates or evidence of
book entry Shares, in an appropriate amount based upon the
number of Shares purchased under the Option(s).
Unless otherwise determined by the Committee, all payments under
all of the methods indicated above shall be paid in United
States dollars.
6.7 Restrictions on Share
Transferability. The Committee may impose such
restrictions on any Shares acquired pursuant to the exercise of
an Option granted under this Article 6 as it may deem
advisable, including, without limitation, requiring the
Participant to hold the Shares acquired pursuant to exercise for
a specified period of time, restrictions under applicable
federal securities laws, under the requirements of any stock
exchange or market upon which such Shares are then listed
and/or
traded, and under any blue sky or state securities laws
applicable to such Shares.
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6.8 Termination of Employment. Each
Participants Award Agreement shall set forth the extent to
which the Participant shall have the right to exercise the
Option following termination of the Participants
employment with the Company, its Affiliates,
and/or its
Subsidiaries. Such provisions shall be determined in the sole
discretion of the Committee, shall be included in the Award
Agreement entered into with each Participant, need not be
uniform among all Options issued pursuant to this
Article 6, and may reflect distinctions based on the
reasons for termination.
6.9 Transferability of Options.
(a) Incentive Stock Options. No ISO
granted under the Plan may be sold, transferred, pledged,
assigned, or otherwise alienated or hypothecated, other than by
will or by the laws of descent and distribution. Further, all
ISOs granted to a Participant under this Article 6 shall be
exercisable during his or her lifetime only by such Participant.
(b) Nonqualified Stock Options. Except as
otherwise provided in a Participants Award Agreement, no
NQSO granted under this Article 6 may be sold, transferred,
pledged, assigned, or otherwise alienated or hypothecated, other
than by will or by the laws of descent and distribution.
Further, except as otherwise provided in a Participants
Award Agreement, all NQSOs granted to a Participant under this
Article 6 shall be exercisable during his or her lifetime
only by such Participant.
6.10 Notification of Disqualifying
Disposition. The Participant will notify the
Company upon the disposition of Shares issued pursuant to the
exercise of an ISO. The Company will use such information to
determine whether a disqualifying disposition as described in
Section 421(b) of the Code has occurred.
6.11 Prohibition on Repricing Without Shareholder
Approval. Notwithstanding any provision in this
Plan to the contrary, other than in connection with an
adjustment under Section 4.2, without the prior approval of
the Companys shareholders, Options issued under the Plan
will not be repriced, replaced, or regranted through
cancellation in exchange for cash, other Awards, or a new Option
or SAR at a reduced exercise or base price, by lowering the
exercise price of a previously granted Option, or otherwise.
ARTICLE 7.
STOCK
APPRECIATION RIGHTS
7.1 Grant of SARs. Subject to the
terms and conditions of the Plan, SARs may be granted to
Participants at any time and from time to time as shall be
determined by the Committee. The Committee may grant
Freestanding SARs, Tandem SARs, or any combination of these
forms of SARs.
Subject to the terms and conditions of the Plan, the Committee
shall have complete discretion in determining the number of SARs
granted to each Participant and, consistent with the provisions
of the Plan, in determining the terms and conditions pertaining
to such SARs.
The SAR Grant Price for each grant of a Freestanding SAR shall
be determined by the Committee and shall be specified in the
Award Agreement; provided, however, that in no event shall the
SAR Grant Price be less than one hundred percent (100%) of the
FMV of the Shares on the date of grant. The Grant Price of
Tandem SARs shall be equal to the Option Price of the related
Option.
7.2 SAR Agreement. Each SAR Award
shall be evidenced by an Award Agreement that shall specify the
Grant Price, the term of the SAR, and such other provisions as
the Committee shall determine.
7.3 Term of SAR. The term of an SAR
granted under the Plan shall be determined by the Committee, in
its sole discretion, and except as determined otherwise by the
Committee and specified in the SAR Award Agreement, no SAR shall
be exercisable later than the tenth (10th) anniversary date of
its grant. Notwithstanding the foregoing, for SARs granted to
Participants outside the United States, the Committee has the
authority to grant SARs that have a term greater than ten
(10) years.
7.4 Exercise of Freestanding
SARs. Freestanding SARs may be exercised upon
whatever terms and conditions the Committee, in its sole
discretion, imposes upon them.
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7.5 Exercise of Tandem SARs. Tandem
SARs may be exercised for all or part of the Shares subject to
the related Option upon the surrender of the right to exercise
the equivalent portion of the related Option. A Tandem SAR may
be exercised only with respect to the Shares for which its
related Option is then exercisable.
Notwithstanding any other provision of this Plan to the
contrary, with respect to a Tandem SAR granted in connection
with an ISO: (a) the Tandem SAR will expire no later than
the expiration of the underlying ISO; (b) the value of the
payout with respect to the Tandem SAR may be for no more than
one hundred percent (100%) of the difference between the Option
Price of the underlying ISO and the FMV of the Shares subject to
the underlying ISO at the time the Tandem SAR is exercised; and
(c) the Tandem SAR may be exercised only when the FMV of
the Shares subject to the ISO exceeds the Option Price of the
ISO.
7.6 Payment of SAR Amount. Upon the
exercise of an SAR, a Participant shall be entitled to receive
payment from the Company in an amount determined by multiplying:
(a) The difference between the FMV of a Share on the date
of exercise over the Grant Price; by
(b) The number of Shares with respect to which the SAR is
exercised.
At the discretion of the Committee, the payment upon SAR
exercise may be in cash, in Shares of equivalent value, in some
combination thereof, or in any other manner approved by the
Committee at its sole discretion. The Committees
determination regarding the form of SAR payout shall be set
forth in the Award Agreement pertaining to the grant of the SAR.
7.7 Termination of Employment. Each
Award Agreement shall set forth the extent to which the
Participant shall have the right to exercise the SAR following
termination of the Participants employment with the
Company, its Affiliates,
and/or its
Subsidiaries. Such provisions shall be determined in the sole
discretion of the Committee, shall be included in the Award
Agreement entered into with Participants, need not be uniform
among all SARs issued pursuant to the Plan, and may reflect
distinctions based on the reasons for termination.
7.8 Nontransferability of
SARs. Except as otherwise provided in a
Participants Award Agreement, no SAR granted under the
Plan may be sold, transferred, pledged, assigned, or otherwise
alienated or hypothecated, other than by will or by the laws of
descent and distribution. Further, except as otherwise provided
in a Participants Award Agreement, all SARs granted to a
Participant under the Plan shall be exercisable during his or
her lifetime only by such Participant.
7.9 Other Restrictions. The
Committee shall impose such other conditions
and/or
restrictions on any Shares received upon exercise of an SAR
granted pursuant to the Plan as it may deem advisable. This
includes, but is not limited to, requiring the Participant to
hold the Shares received upon exercise of an SAR for a specified
period of time.
7.10 Prohibition on Repricing SARs Without
Shareholder Approval. Notwithstanding any
provision in this Plan to the contrary, other than in connection
with an adjustment under Section 4.2, without the prior
approval of the Companys shareholders, SARs issued under
the Plan will not be repriced, replaced, or regranted through
cancellation in exchange for cash, other Awards, or a new Option
or SAR at a reduced exercise or base price, by lowering the
exercise price of a previously granted SAR, or otherwise.
ARTICLE 8.
RESTRICTED
STOCK AND RESTRICTED STOCK UNITS
8.1 Grant of Restricted Stock or Restricted Stock
Units. Subject to the terms and provisions of the
Plan, the Committee, at any time and from time to time, may
grant Shares of Restricted Stock
and/or
Restricted Stock Units to Participants in such amounts, as the
Committee shall determine. Restricted Stock Units shall be
similar to Restricted Stock except that no Shares are actually
awarded to the Participant on the date of grant.
9
8.2 Restricted Stock or Restricted Stock Unit
Agreement. Each Restricted Stock
and/or
Restricted Stock Unit grant shall be evidenced by an Award
Agreement that shall specify the Period(s) of Restriction, the
number of Shares of Restricted Stock or the number of Restricted
Stock Units granted, and such other provisions as the Committee
shall determine.
8.3 Transferability. Except as
provided in this Article 8, the Shares of Restricted Stock
and/or
Restricted Stock Units granted herein may not be sold,
transferred, pledged, assigned, or otherwise alienated or
hypothecated until the end of the applicable Period of
Restriction established by the Committee and specified in the
Award Agreement (and in the case of Restricted Stock Units until
the date of delivery or other payment), or upon earlier
satisfaction of any other conditions, as specified by the
Committee, in its sole discretion, and set forth in the Award
Agreement. All rights with respect to the Restricted Stock
and/or
Restricted Stock Units granted to a Participant under the Plan
shall be available during his or her lifetime only to such
Participant.
8.4 Other Restrictions. The
Committee shall impose such other conditions
and/or
restrictions on any Shares of Restricted Stock or Restricted
Stock Units granted pursuant to the Plan as it may deem
advisable including, without limitation, a requirement that
Participants pay a stipulated purchase price for each Share of
Restricted Stock or each Restricted Stock Unit, restrictions
based upon the achievement of specific performance goals,
time-based restrictions on vesting following the attainment of
the performance goals, time-based restrictions, restrictions
under applicable federal or state securities laws, or any
holding requirements or sale restrictions placed on the Shares
by the Company upon vesting of such Restricted Stock or
Restricted Stock Units.
To the extent deemed appropriate by the Committee, the Company
may retain the certificates representing Shares of Restricted
Stock in the Companys possession until such time as all
conditions
and/or
restrictions applicable to such Shares have been satisfied or
lapse.
Except as otherwise provided in this Article 8, Shares of
Restricted Stock covered by each Restricted Stock Award shall
become freely transferable by the Participant after all
conditions and restrictions applicable to such Shares have been
satisfied or lapse, and Restricted Stock Units shall be paid in
cash, Shares, or a combination of cash and Shares as the
Committee, in its sole discretion shall determine.
8.5 Certificate Legend. In addition
to any legends placed on certificates pursuant to
Section 8.4 herein, each certificate representing Shares of
Restricted Stock granted pursuant to the Plan may bear a legend
such as the following:
The sale or other transfer of the shares of stock represented by
this certificate, whether voluntary, involuntary, or by
operation of law, is subject to certain restrictions on transfer
as set forth in the Coeur dAlene Mines Corporation 2003
Long-Term Incentive Plan, and in the associated Restricted Stock
Award Agreement. A copy of the Plan and such Restricted Stock
Award Agreement may be obtained from the Coeur dAlene
Mines Corporation.
8.6 Voting Rights. To the extent
permitted or required by law, as determined by the Committee,
Participants holding Shares of Restricted Stock granted
hereunder may be granted the right to exercise full voting
rights with respect to those Shares during the Period of
Restriction. A Participant shall have no voting rights with
respect to any Restricted Stock Units granted hereunder.
8.7 Dividends and Other
Distributions. During the Period of Restriction,
Participants holding Shares of Restricted Stock or Restricted
Stock Units granted hereunder may, if the Committee so
determines, be credited with dividends paid with respect to the
underlying Shares or dividend equivalents while they are so held
in a manner determined by the Committee in its sole discretion.
The Committee may apply any restrictions to the dividends or
dividend equivalents that the Committee deems appropriate. The
Committee, in its sole discretion, may determine the form of
payment of dividends or dividend equivalents, including cash,
Shares, Restricted Stock, or Restricted Stock Units.
8.8 Termination of Employment. Each
Award Agreement shall set forth the extent to which the
Participant shall have the right to retain Restricted Stock
and/or
Restricted Stock Units following termination
10
of the Participants employment with the Company, its
Affiliates,
and/or its
Subsidiaries. Such provisions shall be determined in the sole
discretion of the Committee, shall be included in the Award
Agreement entered into with each Participant, need not be
uniform among all Shares of Restricted Stock or Restricted Stock
Units issued pursuant to the Plan, and may reflect distinctions
based on the reasons for termination.
8.9 Section 83(b)
Election. The Committee may provide in an Award
Agreement that the Award of Restricted Stock is conditioned upon
the Participant making or refraining from making an election
with respect to the Award under Section 83(b) of the Code.
If a Participant makes an election pursuant to
Section 83(b) of the Code concerning a Restricted Stock
Award, the Participant shall be required to file promptly a copy
of such election with the Company.
ARTICLE 9.
PERFORMANCE
SHARES AND PERFORMANCE UNITS
9.1 Grant of Performance Shares and Performance
Units. Subject to the terms of the Plan,
Performance Shares
and/or
Performance Units may be granted to Participants in such amounts
and upon such terms, and at any time and from time to time, as
shall be determined by the Committee.
9.2 Value of Performance Shares and Performance
Units. Each Performance Share shall have an
initial value equal to the FMV of a Share on the date of grant.
Each Performance Unit shall have an initial value that is
established by the Committee at the time of grant. The Committee
shall set performance goals in its discretion which, depending
on the extent to which they are met, will determine the value
and/or
number of Performance Shares/ Performance Units that will be
paid out to the Participant.
9.3 Earning of Performance Shares and Performance
Units. Subject to the terms of this Plan, after
the applicable Performance Period has ended, the holder of
Performance Shares/ Performance Units shall be entitled to
receive payout on the value and number of Performance Shares/
Performance Units earned by the Participant over the Performance
Period, to be determined as a function of the extent to which
the corresponding performance goals have been achieved.
Notwithstanding the foregoing, the Company has the ability to
require the Participant to hold the Shares received pursuant to
such Award for a specified period of time.
9.4 Form and Timing of Payment of Performance
Shares and Performance Units. Payment of earned
Performance Shares/ Performance Units shall be as determined by
the Committee and as evidenced in the Award Agreement. Subject
to the terms of the Plan, the Committee, in its sole discretion,
may pay earned Performance Shares/Performance Units in the form
of cash or in Shares (or in a combination thereof) equal to the
value of the earned Performance Shares/ Performance Units at the
close of the applicable Performance Period. Any Shares may be
granted subject to any restrictions deemed appropriate by the
Committee. The determination of the Committee with respect to
the form of payout of such Awards shall be set forth in the
Award Agreement pertaining to the grant of the Award.
9.5 Dividends and Other
Distributions. At the discretion of the
Committee, Participants holding Performance Shares may be
entitled to receive dividend equivalents with respect to
dividends declared with respect to the Shares. Such dividends
may be subject to the accrual, forfeiture, or payout
restrictions as determined by the Committee in its sole
discretion. Notwithstanding anything herein to the contrary,
dividend equivalents in respect of Performance Shares will only
be paid to Participants upon the actual attainment of the
performance goals to which the corresponding Performance Shares
are subject.
9.6 Termination of Employment. Each
Award Agreement shall set forth the extent to which the
Participant shall have the right to retain Performance Shares
and/or
Performance Units following termination of the
Participants employment with the Company, its Affiliates,
and/or its
Subsidiaries. Such provisions shall be determined in the sole
discretion of the Committee, shall be included in the Award
Agreement entered into with each Participant, need not be
uniform among all Awards of Performance Shares or Performance
Units issued pursuant to the Plan, and may reflect distinctions
based on the reasons for termination.
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9.7 Nontransferability. Except as
otherwise provided in a Participants Award Agreement,
Performance Shares/ Performance Units may not be sold,
transferred, pledged, assigned, or otherwise alienated or
hypothecated, other than by will or by the laws of descent and
distribution. Further, except as otherwise provided in a
Participants Award Agreement, a Participants rights
under the Plan shall be exercisable during his or her lifetime
only by such participant.
ARTICLE 10.
CASH-BASED
AWARDS AND STOCK-BASED AWARDS
10.1 Grant of Cash-Based
Awards. Subject to the terms of the Plan,
Cash-Based Awards may be granted to Participants in such amounts
and upon such terms, and at any time and from time to time, as
shall be determined by the Committee.
10.2 Value of Cash-Based
Awards. Each Cash-Based Award shall have a value
as may be determined by the Committee. The Committee may
establish performance goals in its discretion. If the Committee
exercises its discretion to establish performance goals, the
number
and/or value
of Cash-Based Awards that will be paid out to the Participant
will depend on the extent to which the performance goals are met.
10.3 Earning of Cash-Based Awards. Subject to
the terms of this Plan, the holder of Cash-Based Awards shall be
entitled to receive payout on the number and value of Cash-Based
Awards earned by the Participant, to be determined as a function
of the extent to which applicable performance goals, if any,
have been achieved.
10.4 Form and Timing of Payment of Cash-Based
Awards. Payment of earned Cash-Based Awards shall
be as determined by the Committee and as evidenced in the Award
Agreement. Subject to the terms of the Plan, the Committee, in
its sole discretion, may pay earned Cash-Based Awards in the
form of cash or in Shares (or in a combination thereof) that
have an aggregate FMV equal to the value of the earned
Cash-Based Awards. Such Shares may be granted subject to any
restrictions deemed appropriate by the Committee. The
determination of the Committee with respect to the form of
payout of such Awards shall be set forth in the Award Agreement
pertaining to the grant of the Award.
10.5 Stock-Based Awards. The
Committee may grant other types of equity-based or
equity-related Awards (including the grant or offer for sale of
unrestricted Shares) in such amounts and subject to such terms
and conditions, as the Committee shall determine. Payment of
earned Stock-Based Awards shall be as determined by the
Committee and as evidenced in the Award Agreement. Such Awards
may entail the transfer of actual Shares to Participants, or
payment in cash or otherwise of amounts based on the value of
Shares and may include, without limitation, Awards designed to
comply with or take advantage of the applicable local laws of
jurisdictions other than the United States. The determination of
the Committee with respect to the form of payout of such Awards
shall be set forth in the Award Agreement pertaining to the
grant of the Award.
10.6 Termination of
Employment. Each Award Agreement shall set forth
the extent to which the Participant shall have the right to
receive Cash-Based Awards and Stock-Based Awards following
termination of the Participants employment with the
Company, its Affiliates,
and/or its
Subsidiaries. Such provisions shall be determined in the sole
discretion of the Committee, shall be included in the Award
Agreement entered into with each Participant, need not be
uniform among all Awards of Cash-Based Awards and Stock-Based
Awards issued pursuant to the Plan, and may reflect distinctions
based on the reasons for termination.
10.7 Nontransferability. Except as
otherwise provided in a Participants Award Agreement,
Cash-Based Awards and Stock-Based Awards may not be sold,
transferred, pledged, assigned, or otherwise alienated or
hypothecated, other than by will or by the laws of descent and
distribution. Further, except as otherwise provided in a
Participants Award Agreement, a Participants rights
under the Plan shall be exercisable during the
Participants lifetime only by the Participant.
12
ARTICLE 11.
PERFORMANCE
MEASURES
Unless and until the Committee proposes for shareholder vote and
the shareholders approve a change in the general Performance
Measures set forth in this Article 11, the performance
goals upon which the payment or vesting of an Award to a Covered
Employee that is intended to qualify as Performance-Based
Compensation shall be limited to the following Performance
Measures:
(a) Earnings per share (actual or targeted growth);
(b) Economic valued added (EVA);
(c) Net income after capital costs;
(d) Net income (before or after taxes);
(e) Return measures (including return on average assets,
return on capital, return on equity, or cash-flow return
measures);
(f) Stock price (including growth measures and total
shareholder return);
(g) Expense targets;
(h) Margins;
(i) Production levels;
(j) Cash cost per ounce of production;
(k) Earnings before interest, tax, depreciation, and
amortization;
(l) Capital budget targets;
(m) Budget target measures;
(n) Earnings before interest and taxes (EBIT);
(o) Revenue;
(p) Cash flow (including operating cash flow);
(q) Reserve replacement; and
(r) Resource levels.
Any Performance Measure(s) may be used to measure the
performance of the Company as a whole or any business unit of
the Company or any combination thereof, as the Committee may
deem appropriate, or any of the above Performance Measures as
compared to the performance of a group of comparator companies,
or published or special index that the Committee, in its sole
discretion, deems appropriate, or the Company may select
Performance Measure (f) above as compared to various stock
market indices. The Committee also has the authority to provide
for accelerated vesting of any Award based on the achievement of
performance goals pursuant to the Performance Measures specified
in this Article 11.
The Committee may provide in any such Award that any evaluation
of performance may include or exclude any of the following
events that occurs during a Performance Period: (a) asset
write-downs; (b) litigation or claim judgments or
settlements; (c) the effect of changes in tax laws,
accounting principles, or other laws or provisions affecting
reported results; (d) any reorganization and restructuring
programs; (e) extraordinary nonrecurring items as described
in Accounting Principles Board Opinion No. 30
and/or in
managements discussion and analysis of financial condition
and results of operations appearing in the Companys annual
report to shareholders for the applicable year;
(f) acquisitions or divestitures; and (g) foreign
exchange gains and losses. To the extent such inclusions or
exclusions affect Awards to Covered Employees, they shall be
prescribed in a form that meets the requirements of Code
Section 162(m) for deductibility.
13
Performance Measures for Awards that are designed to qualify as
Performance-Based Compensation shall be established within the
time periods required by Code Section 162(m) and the
achievement of such Performance Measures shall be certified by
the Committee to the extent required by Code Section 162(m).
Awards that are designed to qualify as Performance-Based
Compensation, and that are held by Covered Employees, may not be
adjusted upward. The Committee shall retain the discretion to
adjust such Awards downward.
In the event that applicable tax
and/or
securities laws change to permit Committee discretion to alter
the governing Performance Measures without obtaining shareholder
approval of such changes, the Committee shall have sole
discretion to make such changes without obtaining shareholder
approval. In addition, in the event that the Committee
determines that it is advisable to grant Awards that shall not
qualify as Performance-Based Compensation, the Committee may
make such grants without satisfying the requirements of Code
Section 162(m).
ARTICLE 12.
BENEFICIARY
DESIGNATION
A Participants beneficiary is the person or
persons entitled to receive payments or other benefits or
exercise rights that are available under the Plan in the event
of the Participants death. A Participant may designate a
beneficiary or change a previous beneficiary designation at any
time by using forms and following procedures approved by the
Committee for that purpose. If no beneficiary designated by the
Participant is eligible to receive payments or other benefits or
exercise rights that are available under the Plan at the
Participants death the beneficiary shall be the
Participants estate.
Notwithstanding the provisions above, the Committee may in its
discretion, after notifying the affected Participants, modify
the foregoing requirements, institute additional requirements
for beneficiary designations, or suspend the existing
beneficiary designations of living Participants or the process
of determining beneficiaries under this Article 12, or
both. If the Committee suspends the process of designating
beneficiaries on forms and in accordance with procedures it has
approved pursuant to this Article 12, the determination of
who is a Participants beneficiary shall be made under the
Participants will and applicable state law.
ARTICLE 13.
DEFERRALS
AND SHARE SETTLEMENTS
13.1 General. Notwithstanding any
other provision under the Plan, the Committee may permit or
require a Participant to defer such Participants receipt
of the payment of cash or the delivery of Shares with respect to
the lapse or waiver of restrictions with respect to Restricted
Stock or Restricted Stock Units or the satisfaction of any
requirements or performance goals with respect to Performance
Shares, Performance Units, Cash-Based Awards, or Stock-Based
Awards. If any such deferral election is required or permitted,
the Committee shall, in its sole discretion, establish rules and
procedures for such payment deferrals. Notwithstanding anything
herein to the contrary, in no event will any deferral of the
delivery of Shares or any other payment with respect to any
Award be allowed if the Committee determines, in its sole
discretion, that the deferral would result in the imposition of
the additional tax under Section 409A(a)(1)(B) of the Code.
No Award shall provide for deferral of compensation that does
not comply with Section 409A of the Code, unless the Board,
at the time of grant, specifically provides that the Award is
not intended to comply with Section 409A of the Code. The
Corporation shall have no liability to a Participant, or any
other party, if an Award that is intended to be exempt from, or
compliant with, Section 409A of the Code is not so exempt
or compliant or for any action taken by the Board.
14
13.2 Deferral
and/or
Distribution Elections. The following rules shall
apply to any deferral
and/or
distribution elections (Elections) that may be
permitted or required by the Committee to be made in regard to
an Award:
(a) All Elections must be in writing and specify the amount
of the Award being deferred, as well as the time and form of
distribution as permitted by this Plan;
(b) All Elections shall be made by the end of the
Participants taxable year prior to the year in which
services commence for which an Award would otherwise be granted
to the individual; provided, however, that if the Award
qualifies as performance-based compensation for
purposes of Section 409A of the Code, then the deferral
election can be made no later than six (6) months prior to
the end of the performance period; and
(c) Elections shall continue in effect until a written
election to revoke or change such Election is received by the
Company, except that a written election to revoke or change such
Election with respect to an Award granted in the future, must be
made prior to the beginning of the calendar year for which such
Election is to be effective.
13.3 Subsequent Elections. This
Plan permits a subsequent election to delay the distribution or
change the form of distribution of an Award deferred pursuant to
Section 13.2; however, such subsequent election shall
comply with the following requirements:
(a) Such subsequent election may not take effect until at
least twelve (12) months after the date on which the
subsequent election is made;
(b) In the case of a subsequent election related to a
distribution of an award not described in Sections 13.4(b),
13.4(c), or 13.4(f), such subsequent election must result in a
delay of distribution for a period of not less than five
(5) years from the date such distribution would otherwise
have been made; and
(c) Any subsequent election related to a distribution
pursuant to Section 12.5(d) shall not be made less than
twelve (12) months prior to the date of the first scheduled
payment under such distribution.
13.4 Distributions Pursuant to Deferral
Elections. Any Award deferred under this Plan
(and subject to the 409A rules) may not be distributed earlier
than:
(a) The Participants separation from service (as
determined by the Secretary of the United States Treasury);
(b) The date the Participant becomes Disabled;
(c) Death;
(d) A specified time (or pursuant to a fixed schedule)
specified in the Election as of the date of the deferral of such
Award;
(e) To the extent provided by the Secretary of the United
States Treasury, a change in control as defined under Code
Section 409A; or
(f) The occurrence of an Unforeseeable
Emergency as defined under Code Section 409A.
Notwithstanding anything else herein to the contrary, to the
extent that a Participant is a Specified Employee
(as defined in Section 409A(a)(2)(B)(i) of the Code) of the
Company, no distribution pursuant to Section 12.5(a) of any
deferred amounts may be made before six (6) months after
such Participants date of separation from service, or, if
earlier, the date of the Participants death.
13.5 Unforeseeable Emergency. The
Committee shall have the authority to alter the timing or manner
of payment of deferred amounts in the event that a Participant
establishes, to the satisfaction of the Committee, the
occurrence of an Unforeseeable Emergency. In such event, the
amount(s) distributed with respect to such Unforeseeable
Emergency cannot exceed the amounts necessary to satisfy such
Unforeseeable Emergency plus amounts necessary to pay taxes
reasonably anticipated as a result of such distribution(s),
after taking into
15
account the extent to which such hardship is or may be relieved
through reimbursement or compensation by insurance or otherwise
or by liquidation of the Participants assets (to the
extent the liquidation of such assets would not itself cause
severe financial hardship). Furthermore, to the extent the
Committee agrees an Unforeseeable Emergency has occurred for a
Participant, the Committee may, in its sole discretion:
(a) Authorize the cessation of deferrals by such
Participant under this Plan; or
(b) Provide that, subject to the above requirements, all,
or a portion, of any previous deferrals by the Participant shall
immediately be paid in a lump-sum payment; or
(c) Provide for such other payment schedule as deemed
appropriate by the Committee under the circumstances
The occurrence of an Unforeseeable Emergency shall be judged and
determined by the Committee. The Committees decision with
respect to whether an Unforeseeable Emergency has occurred and
the manner in which, if at all, the payment of deferrals to the
Participant shall be altered or modified, shall be final,
conclusive, and not subject to approval or appeal.
13.6 Disabled.
(a) A Participant may elect one or both of the following
forms of distribution for his or her deferral(s) distributable
by reason of the Participant becoming Disabled: (i) a
single distribution, or (ii) a distribution in
approximately equal annual installments over a period of either
five (5) or ten (10) years. The deferral(s) of a
Participant who fails or refuses to elect a method of
distribution upon becoming Disabled shall be paid in a single
sum.
(b) A distribution payable by reason of a Participant
becoming Disabled shall be paid (in the case of a single
distribution) or commence to be paid (in the case of annual
installments) as soon as practicable following the date the
Participant becomes Disabled.
13.7 Death. If a Participant dies
before complete distribution of his or her deferral(s) under
this Plan has occurred, the Participants undistributed
deferrals shall commence to be distributed to his or her
beneficiary under the distribution method for death elected by
the Participant as soon as administratively possible following
receipt by the Committee of satisfactory notice and confirmation
of the Participants death. The deferral(s) of a
Participant who fails or refuses to elect a method of
distribution upon death shall be paid in a single distribution.
13.8 No Acceleration of
Distributions. Notwithstanding anything to the
contrary herein, this Plan does not permit the acceleration of
the time or schedule of any distribution under this Plan, except
as provided by Section 409A of the Code
and/or the
Secretary of the United States Treasury.
ARTICLE 14.
RIGHTS OF
PARTICIPANTS
14.1 Employment. Nothing in the
Plan or an Award Agreement shall interfere with or limit in any
way the right of the Company, its Affiliates,
and/or its
Subsidiaries to terminate any Participants employment or
other service relationship at any time, nor confer upon any
Participant any right to continue in the capacity in which he or
she is employed or otherwise serves the Company, its Affiliates,
and/or its
Subsidiaries.
Neither an Award nor any benefits arising under this Plan shall
constitute part of an employment contract with the Company, its
Affiliates,
and/or its
Subsidiaries and, accordingly, subject to Articles 3 and
16, this Plan and the benefits hereunder may be terminated at
any time in the sole and exclusive discretion of the Committee
without giving rise to liability on the part of the Company, its
Affiliates,
and/or its
Subsidiaries for severance payments.
For purposes of the Plan, transfer of employment of a
Participant between the Company, its Affiliates,
and/or its
Subsidiaries shall not be deemed a termination of employment.
Additionally, the Committee shall have the ability to stipulate
in a Participants Award Agreement that a transfer to a
company that is spun-off from the Company shall not be deemed a
termination of employment with the Company for purposes of the
Plan until the Participants employment is terminated with
the spun-off company.
16
14.2 Participation. No Participant
shall have the right to be selected to receive an Award under
this Plan, or, having been so selected, to be selected to
receive a future Award.
14.3 Rights as a Shareholder. A
Participant shall have none of the rights of a shareholder with
respect to Shares covered by any Award until the Participant
becomes the record holder of such Shares.
ARTICLE 15.
CHANGE IN
CONTROL
Upon the occurrence of a Change in Control, unless otherwise
specifically prohibited under applicable laws, or by the rules
and regulations of any governing governmental agencies or
national securities exchanges, or unless the Committee shall
determine otherwise in the Award Agreement:
(a) Any and all Options and SARs granted hereunder shall
become immediately exercisable; additionally, if a
Participants employment is terminated for any other reason
except Cause within twelve (12) months of such Change in
Control, the Participant shall have until the earlier of:
(i) twelve (12) months following such termination
date; or (ii) the expiration of the Option or SAR term, to
exercise any such Option or SAR;
(b) Any Period of Restriction for Restricted Stock and
Restricted Stock Units granted hereunder that have not
previously vested shall end, and such Restricted Stock and
Restricted Stock Units shall become fully vested;
(c) The target payout opportunities attainable under all
outstanding Awards which are subject to achievement of any of
the Performance Measures specified in Article 11, or any
other performance conditions or restrictions that the Committee
has made the Award contingent upon, shall be deemed to have been
earned as of the effective date of the Change in Control, and
such Awards treated as follows:
(i) The vesting of all such Awards denominated in Shares
shall be accelerated as of the effective date of the Change in
Control, and there shall be paid out to Participants a pro rata
number of Shares based upon an assumed achievement of all
relevant targeted performance goals and upon the length of time
within the Performance Period, if any, that has elapsed prior to
the Change in Control. The Committee has the authority to pay
all or any portion of the value of the Shares in cash.
(ii) All such Awards denominated in cash shall be paid pro
rata to Participants with the proration determined as a function
of the length of time within the Performance Period, if any,
that has elapsed prior to the Change in Control, and based on an
assumed achievement of all relevant targeted performance goals.
(d) Subject to Article 16, herein, the Committee shall
have the authority to make any modifications to the Awards as
determined by the Committee to be appropriate before the
effective date of the Change in Control.
ARTICLE 16.
AMENDMENT,
MODIFICATION, SUSPENSION, AND TERMINATION
16.1 Amendment, Modification, Suspension, and
Termination. Subject to Section 6.11, the
Committee or Board may, at any time and from time to time,
alter, amend, modify, suspend, or terminate the Plan in whole or
in part. No amendment of the Plan shall be made without
shareholder approval if shareholder approval is required by law,
regulation, or stock exchange rule.
16.2 Adjustment of Awards Upon the Occurrence of
Certain Unusual or Nonrecurring Events. The
Committee may make adjustments in the terms and conditions of,
and the criteria included in, Awards in recognition of unusual
or nonrecurring events (including, without limitation, the
events described in Section 4.2 hereof) affecting the
Company or the financial statements of the Company or of changes
in applicable laws, regulations, or accounting principles,
whenever the Committee determines that such adjustments are
appropriate in order to prevent unintended dilution or
enlargement of the benefits or potential benefits intended to be
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made available under the Plan. The determination of the
Committee as to the foregoing adjustments, if any, shall be
conclusive and binding on Participants under the Plan.
16.3 Awards Previously
Granted. Notwithstanding any other provision of
the Plan to the contrary, no termination, amendment, suspension,
or modification of the Plan shall adversely affect in any
material way any Award previously granted under the Plan,
without the written consent of the Participant holding such
Award.
ARTICLE 17.
WITHHOLDING
17.1 Tax Withholding. The Company
shall have the power and the right to deduct or withhold, or
require a Participant to remit to the Company, an amount
sufficient to satisfy federal, state, and local taxes, domestic
or foreign (including the Participants FICA obligation),
required by law or regulation to be withheld with respect to any
taxable event arising or as a result of this Plan.
17.2 Share Withholding. With
respect to withholding required upon the exercise of Options or
SARs, upon the lapse of restrictions on Restricted Stock or
Restricted Stock Units, or upon the achievement of performance
goals related to Performance Shares, or any other taxable event
arising as a result of Awards granted hereunder, Participants
may elect, subject to the approval of the Committee, to satisfy
the withholding requirement, in whole or in part, by having the
Company withhold Shares having a FMV of a Share on the date the
tax is to be determined equal to the tax that could be imposed
on the transaction, except that the amount of tax shall not
exceed the minimum statutory total tax that could be imposed on
the transaction. All elections shall be irrevocable, made in
writing, and signed by the Participant, and shall be subject to
any restrictions or limitations that the Committee, in its sole
discretion, deems appropriate.
ARTICLE 18.
SUCCESSORS
All obligations of the Company under the Plan with respect to
Awards granted hereunder, shall be binding on any successor to
the Company, whether the existence of such successor is the
result of a direct or indirect purchase, merger, consolidation,
or otherwise, of all or substantially all of the business
and/or
assets of the Company.
ARTICLE 19.
GENERAL
PROVISIONS
19.1 Forfeiture Events. The
Committee may specify in an Award Agreement that the
Participants rights, payments, and benefits with respect
to an Award shall be subject to reduction, cancellation,
forfeiture, or recoupment upon the occurrence of certain
specified events, in addition to any otherwise applicable
vesting or performance conditions of an Award. Such events shall
include, but shall not be limited to, termination of employment
for Cause, violation of material Company, Affiliate,
and/or
Subsidiary policies, breach of noncompetition, confidentiality,
or other restrictive covenants that may apply to the
Participant, or other conduct by the Participant that is
detrimental to the business or reputation of the Company, its
Affiliates,
and/or its
Subsidiaries.
19.2 Legend. The certificates for
Shares may include any legend that the Committee deems
appropriate to reflect any restrictions on transfer of such
Shares.
19.3 Delivery of Title. The Company
shall have no obligation to issue or deliver evidence of title
for Shares issued under the Plan prior to:
(a) Obtaining any approvals from governmental agencies that
the Company determines are necessary or advisable; and
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(b) Completion of any registration or other qualification
of the Shares under any applicable national or foreign law or
ruling of any governmental body that the Company determines to
be necessary or advisable.
19.4 Investment
Representations. The Committee may require each
Participant receiving Shares pursuant to an Award under this
Plan to represent and warrant in writing that the Participant is
acquiring the Shares for investment and without any present
intention to sell or distribute such Shares.
19.5 Employees Based Outside of the United
States. Notwithstanding any provision of the Plan
to the contrary, in order to comply with the laws in other
countries in which the Company, its Affiliates,
and/or its
Subsidiaries operate or have Employees, the Committee, in its
sole discretion, shall have the power and authority to:
(a) Determine which Affiliates and Subsidiaries shall be
covered by the Plan;
(b) Determine which Employees outside the United States are
eligible to participate in the Plan;
(c) Modify the terms and conditions of any Award granted to
Employees outside the United States to comply with applicable
foreign laws;
(d) Establish subplans and modify exercise procedures and
other terms and procedures, to the extent such actions may be
necessary or advisable. Any subplans and modifications to Plan
terms and procedures established under this Section 19.5 by
the Committee shall be attached to this Plan document as
appendices; and
(e) Take any action, before or after an Award is made that
it deems advisable to obtain approval or comply with any
necessary local government regulatory exemptions or approvals.
Notwithstanding the above, the Committee may not take any
actions hereunder, and no Awards shall be granted, that would
violate the Exchange Act, the Code, any securities law, or
governing statute or any other applicable law.
19.6 Uncertificated Shares. To the
extent that the Plan provides for issuance of certificates to
reflect the transfer of Shares, the transfer of such Shares may
be effected on a noncertificated basis, to the extent not
prohibited by applicable law or the rules of any stock exchange.
19.7 Unfunded Plan. Participants
shall have no right, title, or interest whatsoever in or to any
investments that the Company, its Affiliates,
and/or its
Subsidiaries may make to aid it in meeting its obligations under
the Plan. Nothing contained in the Plan, and no action taken
pursuant to its provisions, shall create or be construed to
create a trust of any kind, or a fiduciary relationship between
the Company, its Affiliates,
and/or its
Subsidiaries and any Participant, beneficiary, legal
representative, or any other person. To the extent that any
person acquires a right to receive payments from the Company,
its Affiliates,
and/or its
Subsidiaries under the Plan, such right shall be no greater than
the right of an unsecured general creditor of the Company. All
payments to be made hereunder shall be paid from the general
funds of the Company and no special or separate fund shall be
established and no segregation of assets shall be made to assure
payment of such amounts except as expressly set forth in the
Plan. The Plan is not intended to be subject to ERISA.
19.8 No Fractional Shares. No
fractional Shares shall be issued or delivered pursuant to the
Plan or any Award. The Committee shall determine whether cash,
Awards, or other property shall be issued or paid in lieu of
fractional Shares or whether such fractional Shares or any
rights thereto shall be forfeited or otherwise eliminated.
ARTICLE 20.
LEGAL
CONSTRUCTION
20.1 Gender and Number. Except
where otherwise indicated by the context, any masculine term
used herein also shall include the feminine, the plural shall
include the singular, and the singular shall include the plural.
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20.2 Severability. In the event any
provision of the Plan shall be held illegal or invalid for any
reason, the illegality or invalidity shall not affect the
remaining parts of the Plan, and the Plan shall be construed and
enforced as if the illegal or invalid provision had not been
included.
20.3 Requirements of Law. The
granting of Awards and the issuance of Shares under the Plan
shall be subject to all applicable laws, rules, and regulations,
and to such approvals by any governmental agencies or national
securities exchanges as may be required. The Company shall
receive the consideration required by law for the issuance of
Awards under the Plan.
The inability of the Company to obtain authority from any
regulatory body having jurisdiction, which authority is deemed
by the Companys counsel to be necessary to the lawful
issuance and sale of any Shares hereunder, shall relieve the
Company of any liability in respect of the failure to issue or
sell such Shares as to which such requisite authority shall not
have been obtained.
20.4 Securities Law Compliance. The
Company may use reasonable endeavors to register Shares allotted
pursuant to the exercise of an Award with the United States
Securities and Exchange Commission or to effect compliance with
the registration, qualification, and listing requirements of any
national or foreign securities laws, stock exchange, or
automated quotation system. With respect to Insiders,
transactions under this Plan are intended to comply with all
applicable conditions of
Rule 16b-3
or its successors under the Exchange Act. To the extent any
provision of the Plan or action by the Committee fails to so
comply, it shall be deemed null and void, to the extent
permitted by law and deemed advisable by the Committee.
20.5 Governing Law. The Plan and
each Award Agreement shall be governed by the laws of the State
of Idaho, excluding any conflicts or choice of law rule or
principle that might otherwise refer construction or
interpretation of the Plan to the substantive law of another
jurisdiction. Unless otherwise provided in the Award Agreement,
recipients of an Award under the Plan are deemed to submit to
the exclusive jurisdiction and venue of the federal or state
courts of Idaho, to resolve any and all issues that may arise
out of or relate to the Plan or any related Award Agreement.
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