Attached files
file | filename |
---|---|
8-K - GARMIN LTD | v188974_8k.htm |
EX-3.2 - GARMIN LTD | v188974_ex3-2.htm |
EX-3.1 - GARMIN LTD | v188974_ex3-1.htm |
EX-10.4 - GARMIN LTD | v188974_ex10-4.htm |
EX-10.8 - GARMIN LTD | v188974_ex10-8.htm |
EX-10.3 - GARMIN LTD | v188974_ex10-3.htm |
EX-99.1 - GARMIN LTD | v188974_ex99-1.htm |
EX-10.9 - GARMIN LTD | v188974_ex10-9.htm |
EX-10.5 - GARMIN LTD | v188974_ex10-5.htm |
EX-10.6 - GARMIN LTD | v188974_ex10-6.htm |
EX-10.7 - GARMIN LTD | v188974_ex10-7.htm |
EX-10.1 - GARMIN LTD | v188974_ex10-1.htm |
Exhibit
10.2
Garmin
Ltd.
2000
Equity Incentive Plan
as
amended and restated on June 27, 2010
Page
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Table
of Contents
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Article
1. Establishment, Objectives and Duration
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1
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1.1.
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Establishment
of the Plan
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1
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1.2.
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Objectives
of the Plan
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1
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1.3.
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Duration
of the Plan
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1
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Article
2. Definitions
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1
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Article
3. Administration
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7
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3.1.
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Board
and Committee
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7
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3.2.
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Powers
of the Board
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7
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Article
4. Shares Subject to the Plan
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9
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4.1.
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Number
of Shares Available
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9
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4.2.
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Adjustments
in Authorized Shares
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10
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Article
5. Eligibility and General Conditions of Awards
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10
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5.1.
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Eligibility
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10
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5.2.
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Grant
Date
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10
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5.3.
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Maximum
Term
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10
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5.4.
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Award
Agreement
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11
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5.5.
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Restrictions
on Share Transferability
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11
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5.6.
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Termination
of Affiliation
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11
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5.7.
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Nontransferability
of Awards
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14
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Article
6. Stock Options
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14
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6.1.
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Grant
of Options
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14
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6.2.
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Award
Agreement
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14
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6.3.
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Option
Price
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15
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6.4.
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Grant
of Incentive Stock Options
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15
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6.5.
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Exercise
of Options.
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16
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Article
7. Stock Appreciation Rights
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16
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7.1.
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Grant
of SARs
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16
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7.2.
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Exercise
of SARs
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17
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7.3.
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Payment
of SAR Benefit
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17
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Article
8. Restricted Shares
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17
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8.1.
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Grant
of Restricted Shares
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17
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8.2.
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Award
Agreement
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17
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8.3.
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Consideration
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17
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8.4.
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Effect
of Forfeiture
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18
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8.5.
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Escrow;
Legends
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18
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-i-
Article
9. Performance Units and Performance Shares
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18
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9.1.
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Grant
of Performance Units and Performance Shares
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18
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9.2.
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Value/Performance
Goals
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18
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9.3.
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Payment
of Performance Units and Performance Shares
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18
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9.4.
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Form
and Timing of Payment of Performance Units and Performance
Shares
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18
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Article
10. Bonus Shares and Deferred Shares
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19
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10.1.
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Bonus
Shares
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19
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10.2.
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Deferred
Shares
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19
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Article
11. Beneficiary Designation
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19
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Article
12. Deferrals
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19
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Article
13. Rights of Employees
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20
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13.1.
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Employment
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20
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13.2.
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Participation
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20
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Article
14. Amendment, Modification, and Termination
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20
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14.1.
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Amendment,
Modification, and Termination
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20
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14.2.
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Adjustments
Upon Certain Unusual or Nonrecurring Events
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20
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14.3.
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Awards
Previously Granted
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20
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Article
15. Withholding
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20
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15.1.
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Mandatory
Tax Withholding
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20
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15.2.
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Notification
under Code Section 83(b)
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21
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Article
16. Equity Incentive Plans of Foreign Subsidiaries
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21
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Article
17. Additional Provisions
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21
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17.1.
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Successors
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21
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17.2.
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Gender
and Number
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21
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17.3.
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Severability
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21
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17.4.
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Requirements
of Law
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21
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17.5.
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Securities
Law Compliance
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22
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17.6.
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No
Rights as a Shareholder
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22
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Nature
of Payments
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22
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17.8.
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Governing
Law
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23
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-ii-
Garmin
Ltd.
2000
Equity Incentive Plan
Article
1. Establishment, Objectives and Duration
1.1. Establishment of the
Plan. Garmin Ltd., a Swiss corporation (the “Company”), hereby
establishes the incentive compensation plan to be known as the Garmin Ltd. 2000
Equity Incentive Plan (the “Plan”). The Plan was adopted by the Board of
Directors of Garmin Ltd., a Cayman Islands company ("Garmin Cayman") on October
20, 2000, and was approved by the shareholders of such company on October 24,
2000. The Plan is effective as of November 1, 2000 (the “Effective
Date”). The Plan was amended and restated on June 27, 2010 following the
redomestication transaction on June 27, 2010 pursuant to which the shares of
Garmin Cayman were exchanged for shares of the Company and the Company became
the public holding company of Garmin Cayman and its subsidiaries.
1.2. Objectives of the
Plan. The Plan is intended to allow employees of the Company
and its Subsidiaries to acquire or increase equity ownership in the Company, or
to be compensated under the Plan based on growth in the Company’s equity value,
thereby strengthening their commitment to the success of the Company and
stimulating their efforts on behalf of the Company, and to assist the Company
and its Subsidiaries in attracting new employees and retaining existing
employees. The Plan is also intended to optimize the profitability and growth of
the Company through incentives which are consistent with the Company’s goals; to
provide incentives for excellence in individual performance; and to promote
teamwork.
1.3. Duration of the
Plan. The Plan shall commence on the Effective Date and shall
remain in effect, subject to the right of the Board to amend or terminate the
Plan at any time pursuant to Article 14 hereof, until all Shares subject to it
shall have been purchased or acquired according to the Plan’s
provisions.
Article
2. Definitions
Whenever
used in the Plan, the following terms shall have the meanings set forth
below:
2.1. “Article” means an
Article of the Plan.
2.2. “Award” means Options,
Restricted Shares, Bonus Shares, Deferred Shares, SARs, Performance Units or
Performance Shares granted under the Plan.
2.3. “Award Agreement”
means a written agreement by which an Award is evidenced.
2.4. “Beneficial Owner” has
the meaning specified in Rule 13d-3 of the SEC under the Exchange
Act.
2.5. “Board” means the
Board of Directors of the Company.
2.6. “Bonus Shares” means
Shares that are awarded to a Grantee without cost and without restrictions in
recognition of past performance (whether determined by reference to another
employee benefit plan of the Company or otherwise) or as an incentive to become
an employee of the Company or a Subsidiary.
2.7. “Cause” means, unless
otherwise defined in an Award Agreement,
(a) a
Grantee’s conviction of, plea of guilty to, or plea of nolo contendere to a
felony or other crime that involves fraud, dishonesty or moral
turpitude,
(b) any
willful action or omission by a Grantee which would constitute grounds for
immediate dismissal under the employment policies of the Company or the
Subsidiary by which Grantee is employed, including but not limited to
intoxication with alcohol or illegal drugs while on the premises of the Company
or any Subsidiary, or violation of sexual harassment laws or the internal sexual
harassment policy of the Company or the Subsidiary by which Grantee is employed,
irrespective of whether the applicable law would allow an immediate dismissal in
these cases,
(c) a
Grantee’s habitual neglect of duties, including but not limited to repeated
absences from work without reasonable excuse, or
(d) a
Grantee’s willful and intentional material misconduct in the performance of his
duties that results in financial detriment to the Company or any
Subsidiary;
provided, however, that for
purposes of clauses (b), (c) and (d), Cause shall not include any one or more of
the following: bad judgment, negligence or any act or omission believed by the
Grantee in good faith to have been in or not opposed to the interest of the
Company (without intent of the Grantee to gain, directly or indirectly, a profit
to which the Grantee was not legally entitled). A Grantee who agrees to resign
his from affiliation with the Company or a Subsidiary in lieu of being
terminated for Cause may be deemed to have been terminated for Cause for
purposes of this Plan.
2.8. “Change of Control”
means, unless otherwise defined in an Award Agreement, any one or more of the
following:
(a) any
Person other than (i) a Subsidiary, (ii) any employee benefit plan (or any
related trust) of the Company or any of its Subsidiaries or (iii) any Excluded
Person, becomes the Beneficial Owner of 25% or more of the shares of the Company
representing 25% or more of the combined voting power of the Company (such a
person or group, a “25% Owner), except
that (i) no Change of Control shall be deemed to have occurred solely by reason
of such beneficial ownership by a corporation with respect to which both more
than 70% of the common shares of such corporation and Voting Securities
representing more than 70% of the aggregate voting power of such corporation are
then owned, directly or indirectly, by the persons who were the direct or
indirect owners of the shares of the Company immediately before such acquisition
in substantially the same proportions as their ownership, immediately before
such acquisition, of the shares of the Company, as the case may be and (ii) such
corporation shall not be deemed a 25% Owner; or
-2-
(b) the
Incumbent Directors (determined using the Effective Date as the baseline date)
cease for any reason to constitute at least a majority of the directors of the
Company then serving; or
(c) approval
by the shareholders of the Company of a merger, reorganization, consolidation,
or similar transaction, or a plan or agreement for the sale or other disposition
of all or substantially all of the consolidated assets of the Company or a
resolution of dissolution of the Company (any of the foregoing transactions, a
“Reorganization
Transaction”) which, based on information included in the proxy and other
written materials distributed to the Company’s stockholders in connection with
the solicitation by the Company of such shareholder approval, is not expected to
qualify as an Exempt Reorganization Transaction; or
(d) the
consummation by the Company of a Reorganization Transaction that for any reason
fails to qualify as an Exempt Reorganization Transaction as of the date of such
consummation, notwithstanding the fact that such Reorganization Transaction was
expected to so qualify as of the date of such shareholder approval.
The
definition of “Change of Control” may be amended at any time prior to the
occurrence of a Change of Control, and such amended definition shall be applied
to all Awards granted under the Plan whether or not outstanding at the time such
definition is amended, without requiring the consent of any
Grantee. Notwithstanding the occurrence of any of the foregoing
events, (a) a Change of Control shall be deemed not to have occurred with
respect to any Section 16 Person if such Section 16 Person is, by
agreement (written or otherwise), a participant on such Section 16 Person's
own behalf in a transaction which causes the Change of Control to occur,
(b) an IPO shall not be deemed to be a Change of Control, and (c) a Change
of Control shall not occur with respect to a Grantee if, in advance of such
event, the Grantee agrees in writing that such event shall not constitute a
Change of Control.
2.9. “Change of Control
Value” means the Fair Market Value of a Share on the date of a Change of
Control.
2.10. “Code” means the
Internal Revenue Code of 1986, as amended from time to time, and regulations and
rulings thereunder. References to a particular section of the Code include
references to successor provisions of the Code or any successor
statute.
2.11. “Committee” has the
meaning set forth in Article 3.
2.12. “Company” has the
meaning set forth in Section 1.1.
2.13. “Deferred Shares”
means Shares that are awarded to a Grantee on a deferred basis pursuant to
Section 10.2.
2.14. “Disability” means a
permanent and total disability, within the meaning of Code Section 22(e)(3), as
determined by the Board in good faith, upon receipt of medical advice from one
or more individuals, selected by the Board, who are qualified to give
professional medical advice.
-3-
2.15. “Effective Date” has
the meaning set forth in Section 1.1.
2.16. “Eligible Person”
means any employee (including any officer) of the Company or any Subsidiary,
including any such employee who is on an approved leave of absence or has been
subject to a disability which does not qualify as a Disability.
2.17. “Exchange Act” means
the Securities Exchange Act of 1934, as amended. References to a particular
section of the Exchange Act include references to successor
provisions.
2.18. “Excluded Person”
means any Person who, along with such Person's Affiliates and Associates (as
such terms are defined in Rule 12b-2 of the General Rules and Regulations under
the Exchange Act) is the Beneficial Owner of 15% or more of the Shares
outstanding as of the Effective Date.
2.19. “Exempt Reorganization
Transaction” means a Reorganization Transaction which results in the
Persons who were the direct or indirect owners of the outstanding shares of the
Company immediately before such Reorganization Transaction becoming, immediately
after the consummation of such Reorganization Transaction, the direct or
indirect owners of both more than 70% of the then-outstanding common shares of
the Surviving Corporation and Voting Securities representing more than 70% of
the aggregate voting power of the Surviving Corporation, in substantially the
same respective proportions as such Persons’ ownership of the shares of the
Company immediately before such Reorganization Transaction.
2.20. “Fair Market Value”
means (A) with respect to any property other than Shares, the fair market value
of such property determined by such methods or procedures as shall be
established from time to time by the Board, and (B) with respect to Shares, as
of any date other than the IPO Date, the average of the high and low trading
prices on such date on the NASDAQ National Market System (or, if no sale of
Shares was reported for such date, on the next preceding date on which a sale of
Shares was reported), (i) if the Shares are not listed on the NASDAQ NMS, the
average of the high and low trading prices of the Shares on such date on the New
York Stock Exchange Composite Transactions Tape (or, if no sale of Shares was
reported for such date, on the next preceding date on which a sale of Shares was
reported), (ii) if the Shares are not listed on the NASDAQ NMS or the New York
Stock Exchange, the average of the high and low trading prices of the Shares on
such other national exchange on which the Shares are principally traded or as
reported by the NASDAQ Stock Market, or similar organization, or if no such
quotations are available, the average of the high bid and low asked quotations
in the over-the-counter market; in either case for such date (or if no such
transactions in Shares were reported for such date, on the next preceding date
on which a sale of Shares was reported); or (iii) in the event that there shall
be no public market for the Shares, the fair market value of the Shares as
determined by the Board. Solely as of the IPO Date, Fair Market Value
of a Share is the price to the public pursuant to the form of final prospectus
used in connection with the IPO, as indicated on the cover page of such
prospectus or otherwise.
2.21. “Freestanding SAR”
means an SAR that is granted independently of any other Award.
-4-
2.22. “Good Reason” means
any action by the Company or the Subsidiary employing a Grantee which results in
any of the following without the Grantee’s consent: (a) a material
diminution or other material adverse change in the Grantee’s position, authority
or duties, (b) requiring the Grantee to be based at any office or location more
than 50 miles from the location where he or she was previously based; (c) a
material diminution in the Grantee’s compensation in the aggregate, other than a
diminution applicable to all similarly situated employees.
2.23. “Grant Date” has the
meaning set forth in Section 5.2.
2.24. “Grantee” means an
individual who has been granted an Award.
2.25. “including” or “includes” mean
“including, without limitation,” or “includes, without limitation”,
respectively.
2.26. “Incumbent Directors”
means, as of any specified baseline date, individuals then serving as members of
the Board who were members of the Board as of the date immediately preceding
such baseline date; provided that any
subsequently-appointed or elected member of the Board whose election, or
nomination for election by shareholders of the Company or the Surviving
Corporation, as applicable, was approved by a vote or written consent of a
majority of the directors then comprising the Incumbent Directors shall also
thereafter be considered an Incumbent Director, unless the initial assumption of
office of such subsequently-elected or appointed director was in connection with
(i) an actual or threatened election contest, including a consent solicitation,
relating to the election or removal of one or more members of the Board,
(ii) a “tender offer” (as such term is used in Section 14(d) of the
Exchange Act), or (iii) a proposed Reorganization Transaction.
2.27. "IPO" means an initial
public offering of Shares as contemplated in the registration statement on Form
S-1 filed by the Company with the Securities and Exchange Commission on
September 11, 2000.
2.28. "IPO Date" means the
effective date of the underwriting agreement between the Company and the
underwriters of the IPO.
2.29. “Option” means an
option granted under Article 6 of the Plan, including an incentive stock
option.
2.30. “Option Price” means
the price at which a Share may be purchased by a Grantee pursuant to an
Option.
2.31. “Option Term” means
the period beginning on the Grant Date of an Option and ending on the expiration
date of such Option, as specified in the Award Agreement for such Option and as
may, consistent with the provisions of the Plan, be extended from time to time
by the Board prior to the expiration date of such Option then in
effect.
2.32. “Performance Period”
has the meaning set forth in Section 9.2.
2.33. “Performance Share” or
“Performance
Unit” has the meaning set forth in Article 9.
-5-
2.34. “Period of
Restriction” means the period during which the transfer of Restricted
Shares is limited in some way (based on the passage of time, the achievement of
performance goals, or upon the occurrence of other events as determined by the
Board) or the Shares are subject to a substantial risk of forfeiture, as
provided in Article 8.
2.35. “Person” shall have
the meaning ascribed to such term in Section 3(a)(9) of the Exchange Act and
used in Sections 13(d) and 14(d) thereof, including a “group” as defined in
Section 13(d) thereof.
2.36. “Plan” has the meaning
set forth in Section 1.1.
2.37. “Reorganization
Transaction” has the meaning set forth in Section 2.7(c).
2.38. “Required Withholding”
has the meaning set forth in Article 15.
2.39. “Restricted Shares”
means Shares that are subject to transfer restrictions and are subject to
forfeiture if conditions specified in the Award Agreement applicable to such
Shares are not satisfied.
2.40. “Rule 16b-3” means
Rule 16b-3 promulgated by the SEC under the Exchange Act, together with any
successor rule, as in effect from time to time.
2.41. “SAR” means a stock
appreciation right.
2.42. “SEC” means the United
States Securities and Exchange Commission, or any successor
thereto.
2.43. “Section” means,
unless the context otherwise requires, a Section of the Plan.
2.44. “Section 16 Person”
means a person who is subject to obligations under Section 16 of the
Exchange Act with respect to transactions involving equity securities of the
Company.
2.45. “Share” means a share,
CHF 10 par value, of the Company.
2.46. “Strike Price” of any
SAR shall equal, for any Tandem SAR (whether granted at the same time as or
after the grant of the related Option), the Option Price of such Option, or for
any other SAR, 100% of the Fair Market Value of a Share on the Grant Date of
such SAR; provided that
the Board may specify a higher Strike Price in the Award Agreement.
2.47. “Subsidiary” means
with respect to any Person (a) any corporation of which more than 50% of the
Voting Securities are at the time, directly or indirectly, owned by such Person,
and (b) any partnership or limited liability company in which such Person has a
direct or indirect interest (whether in the form of voting power or
participation in profits or capital contribution) of more than 50%.
2.48. “Substitute Option”
has the meaning set forth in Section 6.3.
-6-
2.49. “Surviving
Corporation” means the corporation resulting from a Reorganization
Transaction or, if Voting Securities representing at least 50% of the aggregate
voting power of such resulting corporation are directly or indirectly owned by
another corporation, such other corporation.
2.50. “Tandem SAR” means an
SAR that is granted in connection with a related Option, the exercise of which
shall require cancellation of the right to purchase a Share under the related
Option (and when a Share is purchased under the related Option, the Tandem SAR
shall similarly be canceled).
2.51. “Termination of
Affiliation” occurs on the first day on which an individual is for any
reason no longer providing services to the Company or any Subsidiary in the
capacity of an employee, or with respect to an individual who is an employee of
a Subsidiary, the first day on which such Subsidiary ceases to be a
Subsidiary.
2.52. “Voting Securities” of
a corporation means securities of such corporation that are entitled to vote
generally in the election of directors, but not including any other class of
securities of such corporation that may have voting power by reason of the
occurrence of a contingency.
Article
3. Administration
3.1. Board and
Committee. Subject to Article 14, and to Section 3.2, the Plan
shall be administered by the Board, or a committee of the Board appointed by the
Board to administer the Plan (“Plan Committee”). To the extent the Board
considers it desirable for transactions relating to Awards to be eligible to
qualify for an exemption under Rule 16b-3 after the IPO, the Plan Committee
shall consist of two or more directors of the Company, all of whom qualify as
“non-employee directors” within the meaning of Rule 16b-3. To the extent
the Board considers it desirable for compensation delivered pursuant to Awards
to be eligible to qualify for an exemption from the limit on tax deductibility
of compensation under Section 162(m) of the Code after the IPO, the Plan
Committee shall consist of two or more directors of the Company, all of whom
shall qualify as “outside directors” within the meaning of Code Section
162(m). The number of members of the Plan Committee shall from time
to time be increased or decreased, and shall be subject to such conditions,
including, but not limited to having exclusive authority to make certain grants
of Awards or to perform such other acts, in each case as the Board deems
appropriate to permit transactions in Shares pursuant to the Plan to satisfy
such conditions of Rule 16b-3 or Code Section 162(m) as then in
effect.
Any
references herein to “Board” are, except as the context requires otherwise,
references to the Board or the Plan Committee, as applicable.
3.2. Powers of the
Board. Subject to the express provisions of the Plan, the
Board has full and final authority and sole discretion as follows:
(a) taking
into consideration the reasonable recommendations of management, to determine
when, to whom and in what types and amounts Awards should be granted and the
terms and conditions applicable to each Award, including the Option Price, the
Option Term, the benefit payable under any SAR, Performance Unit or Performance
Share, and whether or not specific Awards shall be granted in connection with
other specific Awards, and if so whether they shall be exercisable cumulatively
with, or alternatively to, such other specific Awards;
-7-
(b) to
determine the amount, if any, that a Grantee shall pay for Restricted Shares,
whether and on what terms to permit or require the payment of cash dividends
thereon to be deferred, when Restricted Shares (including Restricted Shares
acquired upon the exercise of an Option) shall be forfeited and whether such
shares shall be held in escrow;
(c) to
construe and interpret the Plan and to make all determinations necessary or
advisable for the administration of the Plan;
(d) to
make, amend, and rescind rules relating to the Plan, including rules with
respect to the exercisability and nonforfeitability of Awards upon the
Termination of Affiliation of a Grantee;
(e) to
determine the terms and conditions of all Award Agreements (which need not be
identical) and, with the consent of the Grantee, to amend any such Award
Agreement at any time, among other things, to permit transfers of such Awards to
the extent permitted by the Plan; provided that the consent of
the Grantee shall not be required for any amendment which (A) does not adversely
affect the rights of the Grantee, or (B) is necessary or advisable (as
determined by the Board) to carry out the purpose of the Award as a result of
any new or change in existing applicable law;
(f) to
cancel, with the consent of the Grantee, outstanding Awards and to grant new
Awards in substitution therefor;
(g) to
accelerate the exercisability (including exercisability within a period of less
than six months after the Grant Date) of, and to accelerate or waive any or all
of the terms and conditions applicable to, any Award or any group of Awards for
any reason and at any time, including in connection with a Termination of
Affiliation;
(h) subject
to Section 5.3, to extend the time during which any Award or group of Awards may
be exercised;
(i) to
make such adjustments or modifications to Awards to Grantees who are working
outside the United States as are advisable to fulfill the purposes of the Plan
or to comply with applicable local law, and to authorize foreign Subsidiaries to
adopt plans as provided in Article 16;
(j) to
delegate to any member of the Board or committee of Board members such of its
powers as it deems appropriate, including the power to sub-delegate, except that
only a member of the Board of Directors of the Company (or a committee thereof)
may grant Awards from time to time to specified categories of Eligible Persons
in amounts and on terms to be specified by the Board; provided that after the
IPO, no such grants shall be made other than by the Board of Directors of the
Company or the Committee to individuals who are then Section 16 Persons or other
than by the Committee to individuals who are then or are deemed likely to become
a “covered employee” within the meaning of Code Section 162(m);
-8-
(k) to
delegate to officers, employees or independent contractors of the Company
matters involving the routine administration of the Plan and which are not
specifically required by any provision of this Plan of to be performed by the
Board of Directors of the Company;
(l) to
delegate its duties and responsibilities under the Plan with respect to foreign
Subsidiary plans, except its duties and responsibilities with respect to Section
16 Persons, and (A) the acts of such delegates shall be treated hereunder as
acts of the Board and (B) such delegates shall report to the Board
regarding the delegated duties and responsibilities;
(m) to
impose such additional terms and conditions upon the grant, exercise or
retention of Awards as the Board may, before or concurrently with the grant
thereof, deem appropriate, including limiting the percentage of Awards which may
from time to time be exercised by a Grantee; and
(n) to
take any other action with respect to any matters relating to the Plan for which
it is responsible.
All
determinations on any matter relating to the Plan or any Award Agreement may be
made in the sole and absolute discretion of the Board, and to the fullest extent
permitted by the applicable law all such determinations of the Board shall be
final, conclusive and binding on all Persons. To the fullest extent permitted by
the law no member of the Board shall be liable for any action or determination
made with respect to the Plan or any Award.
Article
4. Shares Subject to the Plan
4.1. Number of Shares
Available.
(a) Plan
Limit. Subject to Section 4.3 and to adjustment as provided in
Section 4.2, the number of Shares hereby reserved for delivery under the Plan is
3,500,000. The number of Shares over which SARs may be granted is
350,000. The number of Shares over which Performance Units may be
granted is 175,000. The maximum number of Shares that may be
delivered as Restricted Shares is 35,000, and the maximum number of Bonus Shares
that may be awarded is 35,000. If any Shares subject to an Award
granted hereunder are forfeited or an Award or any portion thereof otherwise
terminates or is settled without the issuance of Shares, or in the case of SARs
and Performance Units, without the payment of cash, the Shares subject to such
Award, to the extent of any such forfeiture, termination or settlement, shall
again be available for grant under the Plan. If any Shares are withheld for the
payment of taxes related to an Award, such Shares, to the extent of any such
withholding, shall again be available or shall increase the number of Shares
available, as applicable, for grant under the Plan. The Board may from time to
time determine the appropriate methodology for calculating the number of Shares
issued pursuant to the Plan.
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(b) Individual
Limit. No Grantee may be granted Options, Restricted Shares,
Bonus Stock or Deferred Shares, Performance Units or Performance Shares in
Shares, or any combination thereof, an aggregate number of Shares under the Plan
that exceeds 400,000 Shares in any 5-year period. In any 5-year
period, no Grantee may receive SARs, Performance Units or Performance Shares
relating to more than 100,000 Shares under the Plan. If a previously
granted Option, SAR, Performance Unit or Performance Share is forfeited,
canceled or repriced, such forfeited, canceled or repriced Option, SAR,
Performance Share or Performance Unit, as the case may be, shall continue to be
counted against the maximum number of Shares, SARs, Performance Units or
Performance Shares that may be delivered to any Grantee over the life of the
Plan.
4.2. Adjustments in
Shares. In the event that the Board determines that any
dividend or other distribution (whether in the form of cash, Shares, other
securities, or other property), recapitalization, share split, reverse share
split, subdivision, consolidation or reduction of capital, reorganization,
merger, scheme of arrangement, split-up, spin-off or combination involving the
Company or repurchase or exchange of Shares or other rights to purchase Shares
or other securities of the Company, or other similar corporate transaction or
event that occurs at any time after the IPO Date affects the Shares such that
any adjustment is determined by the Board to be appropriate in order to prevent
dilution or enlargement of the benefits or potential benefits intended to be
made available under the Plan, then the Board shall, in such manner as it may
deem equitable, adjust any or all of (i) the number and type of Shares (or other
securities or property of the Company or any Person that is a party to a
Reorganization Transaction with the Company) with respect to which Awards may be
granted, (ii) the number and type of Shares (or other securities or
property of the Company or any Person that is a party to a Reorganization
Transaction with the Company) subject to outstanding Awards, and (iii) the grant
or exercise price with respect to any Award or, if deemed appropriate, make
provision for a cash payment to the holder of an outstanding Award or the
substitution of other property for Shares subject to an outstanding Award; provided, that the number of
Shares subject to any Award denominated in Shares shall always be a whole
number.
Article
5. Eligibility and General Conditions of
Awards
5.1. Eligibility. The
Board may grant Awards to any Eligible Person, whether or not he or she has
previously received an Award.
5.2. Grant
Date. The Grant Date of an Award shall be the date on which
the Board grants the Award or such later date as specified by the Board in the
Award Agreement.
5.3. Maximum
Term. Subject to the following proviso, the Option Term or
other period during which an Award may be outstanding shall not extend more than
10 years after the Grant Date, and shall be subject to earlier termination
as herein specified; provided, that any deferral
of a cash payment or of the delivery of Shares that is permitted or required by
the Board pursuant to Article 12 may, if so permitted or required by the Board,
extend more than 10 years after the Grant Date of the Award to which the
deferral relates.
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5.4. Award
Agreement. To the extent not set forth in the Plan, the terms
and conditions of each Award (which need not be the same for each grant or for
each Grantee) shall be set forth in an Award Agreement.
5.5. Restrictions on Share
Transferability. The Board may include in the Award Agreement
such restrictions on any Shares acquired pursuant to the exercise or vesting of
an Award as it may deem advisable, including restrictions under applicable
federal securities laws.
5.6. Termination of
Affiliation. Except as otherwise provided in an Award
Agreement (including an Award Agreement as amended by the Board pursuant to
Section 3.2), and subject to the provisions of Section 14.1, the extent to which
the Grantee shall have the right to exercise, vest in, or receive payment in
respect of an Award following Termination of Affiliation shall be determined in
accordance with the following provisions of this Section 5.6.
(a) For
Cause. If a Grantee has a Termination of Affiliation for
Cause:
(i) the
Grantee's Restricted Shares and Deferred Shares that are forfeitable immediately
before such Termination of Affiliation shall automatically be forfeited on such
date, subject in the case of Restricted Shares to the provisions of Section 8.4
regarding repayment of certain amounts to the Grantee;
(ii) the
Grantee’s Deferred Shares that were vested immediately before such Termination
of Affiliation shall promptly be settled by delivery to such Grantee of a number
of unrestricted Shares equal to the aggregate number of such vested Deferred
Shares, and
(iii) any
unexercised Option or SAR, and any Performance Share or Performance Unit with
respect to which the Performance Period has not ended immediately before such
Termination of Affiliation, shall terminate effective immediately upon such
Termination of Affiliation.
(b) On Account of Death or
Disability. If a Grantee has a Termination of Affiliation on
account of death or Disability:
(i) the
Grantee's Restricted Shares that were forfeitable immediately before such
Termination of Affiliation shall thereupon become nonforfeitable;
(ii) the
Grantee’s Deferred Shares that were forfeitable immediately before such
Termination of Affiliation shall thereupon become nonforfeitable and the Company
shall, unless otherwise provided in an Award Agreement, promptly settle all
Deferred Shares, whether or not forfeitable, by delivery to the Grantee (or,
after his or her death, to his or her personal representative or beneficiary
designated in accordance with Article 11) of a number of unrestricted Shares
equal to the aggregate number of the Grantee’s Deferred Shares;
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(iii) any
unexercised Option or SAR, whether or not exercisable immediately before such
Termination of Affiliation, shall be fully exercisable and may be exercised, in
whole or in part, at any time up to one year after such Termination of
Affiliation (but only during the Option Term) by the Grantee or, after his or
her death, by (A) his or her personal representative or the person to whom the
Option or SAR, as applicable, is transferred by will or the applicable laws of
descent and distribution, or (B) the Grantee's beneficiary designated in
accordance with Article 11; and
(iv) the
benefit payable with respect to any Performance Share or Performance Unit with
respect to which the Performance Period has not ended immediately before such
Termination of Affiliation on account of death or Disability shall be equal to
the product of the Fair Market Value of a Share as of the date of such
Termination of Affiliation or the value of the Performance Unit specified in the
Award Agreement (determined as of the date of such Termination of Affiliation),
as applicable, multiplied successively by each of the following:
(1) a
fraction, the numerator of which is the number of months (including as a whole
month any partial month) that have elapsed since the beginning of such
Performance Period until the date of such Termination of Affiliation and the
denominator of which is the number of months (including as a whole month any
partial month) in the Performance Period; and
(2) a
percentage determined by the Committee that would be earned under the terms of
the applicable Award Agreement assuming that the rate at which the performance
goals have been achieved as of the date of such Termination of Affiliation would
continue until the end of the Performance Period, or, if the Board elects to
compute the benefit after the end of the Performance Period, the Performance
Percentage, as determined by the Board, attained during the Performance
Period.
(c) Change of Control
Period. If a Grantee has a Termination of Affiliation during
the period (“Change of Control Period”) commencing on a Change of Control and
ending on the first anniversary of the Change of Control, which Termination of
Affiliation is initiated by the Company or a Subsidiary other than for Cause, or
initiated by the Grantee for Good Reason, then
(i) the
Grantee’s Restricted Shares that were forfeitable shall thereupon become
nonforfeitable;
(ii) the
Grantee’s Deferred Shares that were forfeitable shall thereupon become
nonforfeitable and the Company shall immediately settle all Deferred Shares,
whether or not previously forfeitable, by delivery to such Grantee of a number
of unrestricted Shares equal to the aggregate number of the Grantee’s Deferred
Shares;
(iii) any
unexercised Option or SAR, whether or not exercisable on the date of such
Termination of Affiliation, shall thereupon be fully exercisable and may be
exercised, in whole or in part for three months following such Termination of
Affiliation; and
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(iv) the
Company shall immediately pay to the Grantee, with respect to any Performance
Share or Performance Unit with respect to which the Performance Period has not
ended as of the date of such Termination of Affiliation, a cash payment equal to
the product of (A) in the case of a Performance Share, the Change of
Control Value or (B) in the case of a Performance Unit, the value of the
Performance Unit specified in the Award Agreement, as applicable, multiplied
successively by each of the following:
(1) a
fraction, the numerator of which is the number of whole and partial months that
have elapsed between the beginning of such Performance Period and the date of
such Termination of Affiliation and the denominator of which is the number of
whole and partial months in the Performance Period; and
(2) a
percentage equal to a greater of (x) the target percentage, if any, specified in
the applicable Award Agreement or (y) the maximum percentage, if any, that would
be earned under the terms of the applicable Award Agreement assuming that the
rate at which the performance goals have been achieved as of the date of such
Termination of Affiliation would continue until the end of the Performance
Period.
(d) Any Other
Reason. If a Grantee has a Termination of Affiliation for any
reason other than for Cause, death or Disability, and other than under the
circumstances described in Section 5.6(c), then:
(i) the
Grantee's Restricted Shares and Deferred Shares, to the extent forfeitable
immediately before such Termination of Affiliation, shall thereupon
automatically be forfeited, subject in the case of Restricted Shares to the
provisions of Section 8.4 regarding repayment of certain amounts to the
Grantee;
(ii) the
Grantee’s Deferred Shares that were not forfeitable immediately before such
Termination of Affiliation shall promptly be settled by delivery to the Grantee
of a number of unrestricted Shares equal to the aggregate number of the
Grantee’s vested Deferred Shares;
(iii) any
unexercised Option or SAR, to the extent exercisable immediately before such
Termination of Affiliation, shall remain exercisable in whole or in part for
three months after such Termination of Affiliation (but only during the Option
Term) by the Grantee or, after his or her death, by (A) his or her personal
representative or the person to whom the Option or SAR, as applicable, is
transferred by will or the applicable laws of descent and distribution, or (B)
the Grantee's beneficiary designated in accordance with Article 11;
and
(iv) any
Performance Shares or Performance Units with respect to which the Performance
Period has not ended as of the date of such Termination of Affiliation shall
terminate immediately upon such Termination of Affiliation.
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5.7. Nontransferability of
Awards.
(a) Except
as provided in Section 5.7(c) below, each Award, and each right under any Award,
shall be exercisable only by the Grantee during the Grantee’s lifetime, or, if
permissible under applicable law, by the Grantee’s guardian or legal
representative.
(b) Except
as provided in Section 5.7(c) below, no Award (prior to the time, if applicable,
Shares are issued in respect of such Award), and no right under any Award, may
be assigned, alienated, pledged, attached, sold or otherwise transferred or
encumbered by a Grantee otherwise than by will or by the laws of descent and
distribution (or in the case of Restricted Shares, to the Company) and any such
purported assignment, alienation, pledge, attachment, sale, transfer or
encumbrance shall be void and unenforceable against the Company or any
Subsidiary; provided,
that the designation of a beneficiary shall not constitute an assignment,
alienation, pledge, attachment, sale, transfer or encumbrance.
(c) To
the extent and in the manner permitted by the Board, and subject to such terms
and conditions as may be prescribed by the Board, a Grantee may transfer an
Award to (a) a child, stepchild, grandchild, parent, stepparent, grandparent,
spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law,
son-in-law, daughter-in-law, brother-in-law, or sister-in-law of the Grantee,
(including adoptive relationships), (b) any person sharing the Grantee’s
household (other than a tenant or employee), (c) a trust in which persons
described in (a) or (b) have more than 50% of the beneficial interest, (d) a
foundation in which persons described in (a) or (b) or the Grantee own more than
50% of the voting interests; provided such transfer is not for
value. The following shall not be considered transfers for
value: (i) a transfer under a domestic relations order in settlement
of marital property rights; and (ii) a transfer to an entity in which more than
50% of the voting interests are owned by persons described in (a) or (b) above
or the Grantee, in exchange for an interest in that entity.
Article
6. Stock Options
6.1. Grant of
Options. Subject to the terms and provisions of the Plan,
Options may be granted to any Eligible Person in such number, and upon such
terms, and at any time and from time to time as shall be determined by the
Board. Without limiting the generality of the foregoing, the Board may grant to
any Eligible Person, or permit any Eligible Person to elect to receive, an
Option in lieu of or in substitution for any other compensation (whether payable
currently or on a deferred basis, and whether payable under this Plan or
otherwise) which such Eligible Person may be eligible to receive from the
Company or a Subsidiary, which Option may have a value (as determined by the
Board under Black-Scholes or any other option valuation method) that is equal to
or greater than the amount of such other compensation.
6.2. Award
Agreement. Each Option grant shall be evidenced by an Award
Agreement that shall specify the Option Price, the Option Term, the number of
shares to which the Option pertains, the time or times at which such Option
shall be exercisable and such other provisions as the Board shall
determine.
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6.3. Option
Price. The Option Price of an Option under this Plan shall be
determined by the Board, and shall the higher of 100% of the Fair Market Value
of a Share on the Grant Date or 100 % of the par value of a Share; provided, however, that any
Option (“Substitute Option”) that is (x) granted to a Grantee in connection
with the acquisition (“Acquisition”), however effected, by the Company of
another corporation or entity (“Acquired Entity”) or the assets thereof,
(y) associated with an option to purchase shares of stock or other equity
interest of the Acquired Entity or an affiliate thereof (“Acquired Entity
Option”) held by such Grantee immediately prior to such Acquisition, and
(z) intended to preserve for the Grantee the economic value of all or a
portion of such Acquired Entity Option, may be granted with such Option Price as
the Board determines to be necessary to achieve such preservation of economic
value.
6.4. Grant of Incentive Stock
Options.
(a) At
the time of the grant of any Option to an Eligible Person who is an employee of
the Company or a Subsidiary, the Board may designate that such option shall be
made subject to additional restrictions to permit it to qualify as an "incentive
stock option" under the requirements of Section 422 of the
Code. Any option designated as an incentive stock
option:
(i) shall not be granted to
a person who owns shares (including shares treated as owned under Section 424(d)
of the Code) possessing more than 10% of the total combined voting power of all
classes of shares of the Company;
(ii) shall be for a term of
not more than 10 years from the Grant Date, and shall be subject to earlier
termination as provided herein or in the applicable Award
Agreement;
(iii) shall not have an
aggregate Fair Market Value (determined for each incentive stock option at its
Grant Date) of Shares with respect to which incentive stock options are
exercisable for the first time by such Grantee during any calendar year (under
the Plan and any other employee stock option plan of the Grantee's employer or
any parent or Subsidiary thereof ("Other Plans")), determined in accordance with
the provisions of Section 422 of the Code, which exceeds $100,000 (the "$100,000
Limit");
(iv) shall, if the aggregate
Fair Market Value of a Share (determined on the Grant Date) with respect to the
portion of such grant which is exercisable for the first time during any
calendar year ("Current Grant") and all incentive stock options previously
granted under the Plan and any Other Plans which are exercisable for the first
time during a calendar year ("Prior Grants") would exceed the $100,000 Limit, be
exercisable as follows:
(A) the portion of the
Current Grant which would, when added to any Prior Grants, be exercisable with
respect to Shares which would have an aggregate Fair Market Value (determined as
of the respective Grant Date for such options) in excess of the $100,000 Limit
shall, notwithstanding the terms of the Current Grant, be exercisable for the
first time by the Grantee in the first subsequent calendar year or years in
which it could be exercisable for the first time by the Grantee when added to
all Prior Grants without exceeding the $100,000 Limit; and
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(B) if, viewed as of the
date of the Current Grant, any portion of a Current Grant could not be exercised
under the preceding provisions of this Subsection (iv) during any calendar year
commencing with the calendar year in which it is first exercisable through and
including the last calendar year in which it may by its terms be exercised, such
portion of the Current Grant shall not be an incentive stock option, but shall
be exercisable as a separate Option at such date or dates as are provided in the
Current Grant;
(v) shall be granted within
10 years from the earlier of the date the Plan is adopted or the date the
Plan is approved by the shareholders of the Company;
(vi) shall require the
Grantee to notify the Board of any disposition of any Shares issued pursuant to
the exercise of the incentive stock option under the circumstances described in
Section 421(b) of the Code (relating to certain disqualifying
dispositions), within 10 days of such disposition; and
(vii) shall by its terms not
be assignable or transferable other than by will or the laws of descent and
distribution and may be exercised, during the Grantee's lifetime, only by the
Grantee; provided, however, that the Grantee may, to the extent provided in the
Plan in any manner specified by the Board, designate in writing a beneficiary to
exercise his incentive stock option after the Grantee's death.
Notwithstanding
the foregoing, the Board may, without the consent of the Grantee, at any time
before the exercise of an option (whether or not an incentive stock option),
take any action necessary to prevent such option from being treated as an
incentive stock option.
6.5. Exercise of
Options. Options shall be exercised by the delivery of a
written notice of exercise to the Manager of Benefits of the Company or the
Subsidiary by whom the Grantee is or was most recently employed, setting forth
the number of Shares with respect to which the Option is to be exercised,
accompanied by full payment for the Shares as instructed by the Board or,
subject to the approval of the Board pursuant to procedures approved by the
Board, (i) through the sale of the Shares acquired on exercise of the Option
through a broker-dealer to whom the Grantee has submitted an irrevocable notice
of exercise and irrevocable instructions to deliver promptly to the Company the
amount of sale or loan proceeds sufficient to pay for such Shares, together
with, if requested by the Company, the amount of federal, state, local or
foreign withholding taxes payable by Grantee by reason of such exercise, or (ii)
through simultaneous sale through a broker of Shares acquired on exercise, as
permitted under Regulation T of the Federal Reserve Board.
The
exercise of an Option shall require cancellation of a number of related Tandem
SARs equal to the number of Shares with respect to which the Option is
exercised.
Article
7. Stock Appreciation Rights
7.1. Grant of
SARs. Subject to the terms and conditions of the Plan, SARs
may be granted to any Eligible Person at any time and from time to time as shall
be determined by the Board. The Board may grant Freestanding SARs, Tandem SARs,
or any combination thereof. Each grant of an SAR shall be evidenced
by an Award Agreement, which shall specify the number of SARs granted to each
Grantee (subject to Article 4), the Strike Price thereof, and, consistent with
the other provisions of this Article 7 and of the Plan, such other terms and
conditions pertaining to such SARs as the Board may determine. Tandem
SARs shall expire no later than the expiration of the underlying
Option.
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7.2. Exercise of
SARs. SARs shall be exercised by the delivery of a written
notice of exercise to the Company, setting forth the number of Shares over which
the SAR is to be exercised. Tandem SARs (a) may be exercised with
respect to 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;
(b) may be exercised only with respect to the Shares for which its related
Option is then exercisable; and (c) may be exercised only when the Fair Market
Value of the Shares subject to the Option exceeds the Option Price of the
Option. The value of the payment with respect to the Tandem SAR may
be no more than 100% of the difference between the Option Price of the
underlying Option and the Fair Market Value of the Shares subject to the
underlying Option at the time the Tandem SAR is exercised.
7.3. Payment of SAR
Benefit. Upon exercise of an SAR, the Grantee shall be
entitled to receive payment from the Company in an amount determined by
multiplying:
(a) the
excess of the Fair Market Value of a Share on the date of exercise over the
Strike Price;
by
(b) the
number of Shares with respect to which the SAR is exercised;
provided that the Board may
provide in the Award Agreement that the benefit payable on exercise of an SAR
shall not exceed such percentage of the Fair Market Value of a Share on the
Grant Date as the Board shall specify. As determined by the Board, the payment
upon SAR exercise may be in cash, in Shares which have an aggregate Fair Market
Value (as of the date of exercise of the SAR) equal to the amount of the
payment, or in some combination thereof, as set forth in the Award
Agreement.
Article
8. Restricted Shares
8.1. Grant of Restricted
Shares. Subject to the terms and provisions of the Plan, the
Board, at any time and from time to time, may grant Restricted Shares to any
Eligible Person in such amounts as the Board shall determine.
8.2. Award
Agreement. Each grant of Restricted Shares shall be evidenced
by an Award Agreement, which shall specify the Period(s) of Restriction, the
number of Restricted Shares granted, and such other provisions as the Board
shall determine. The Board may impose such conditions or restrictions
on any Restricted Shares as it may deem advisable, including restrictions based
upon the achievement of specific performance goals (Company-wide, divisional,
Subsidiary or individual), time-based restrictions on vesting or restrictions
under applicable securities laws.
8.3. Consideration. The
Board shall determine the amount, if any, that a Grantee shall pay for
Restricted Shares. Such payment shall be made in full by the Grantee
before the delivery of the shares and in any event no later than 10 business
days after the Grant Date for such shares.
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8.4. Effect of
Forfeiture. If Restricted Shares are forfeited, and if the
Grantee was required to pay for such shares or acquired such Restricted Shares
upon the exercise of an Option, the Grantee shall resell such Restricted Shares
to the Company at a price equal to the lesser of (x) the amount paid by the
Grantee for such Restricted Shares, or (y) the Fair Market Value of a Share
on the date of such forfeiture. The Company shall pay to the Grantee the
required amount as soon as is administratively practical.
8.5. Escrow. The
Board may provide that any Restricted Shares (x) shall be held (together with an
assignment executed in blank by the Grantee) in escrow by an escrow agent or (y)
secured in an analogous manner pursuant to the Swiss Federal Book Entry
Securities Act, as the case may be, until such Restricted Shares become
nonforfeitable or are forfeited.
Article
9. Performance Units and Performance Shares
9.1. Grant of Performance Units
and Performance Shares. Subject to the terms of the Plan,
Performance Units or Performance Shares may be granted to any Eligible Person in
such amounts and upon such terms, and at any time and from time to time, as the
Board shall determine. Each grant of Performance Units or Performance
Shares shall be evidenced by an Award Agreement which shall specify the terms
and conditions applicable to the Performance Units or Performance Shares, as the
Board determines.
9.2. Value/Performance
Goals. Each Performance Unit shall have an initial value that
is established by the Board at the time of grant. Each Performance Share shall
have an initial value equal to the Fair Market Value of a Share on the date of
grant. The Board shall set performance goals which, depending on the extent to
which they are met, will determine the number or value of Performance Units or
Performance Shares that will be paid to the Grantee. For purposes of this
Article 9, the time period during which the performance goals must be met shall
be called a “Performance Period.”
9.3. Payment of Performance Units
and Performance Shares. Subject to the terms of this Plan,
after the applicable Performance Period has ended, the holder of Performance
Units or Performance Shares shall be entitled to receive a payment based on the
number and value of Performance Units or Performance Shares earned by the
Grantee over the Performance Period, determined as a function of the extent to
which the corresponding performance goals have been achieved.
If a
Grantee is promoted, demoted or transferred to a different business unit of the
Company during a Performance Period, then, to the extent the Board determines
appropriate, the Board may adjust, change or eliminate the performance goals or
the applicable Performance Period as it deems appropriate in order to make them
appropriate and comparable to the initial performance goals or Performance
Period.
9.4. Form and Timing of Payment
of Performance Units and Performance Shares. Payment of earned
Performance Units or Performance Shares shall be made in a lump sum following
the close of the applicable Performance Period. The Board may cause earned
Performance Units or Performance Shares to be paid in cash or in Shares (or in a
combination thereof) which have an aggregate Fair Market Value equal to the
value of the earned Performance Units or Performance Shares at the close of the
applicable Performance Period. Such Shares may be granted subject to any
restrictions deemed appropriate by the Board. The form of payout of such Awards
shall be set forth in the Award Agreement pertaining to the grant of the
Award.
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As
determined by the Board, a Grantee may be entitled to receive any dividends
declared with respect to Shares which have been earned in connection with grants
of Performance Units or Performance Shares but not yet distributed to the
Grantee. In addition, a Grantee may, as determined by the Board, be entitled to
exercise his or her voting rights with respect to such Shares.
Article
10. Bonus Shares and Deferred Shares
10.1. Bonus
Shares. Subject to the terms of the Plan, the Board may grant
Bonus Shares to any Eligible Person, in such amount and upon such terms and at
any time and from time to time as shall be determined by the Board.
10.2. Deferred
Shares. Subject to the terms and provisions of the Plan,
Deferred Shares may be granted to any Eligible Person in such amounts and upon
such terms, and at any time and from time to time, as shall be determined by the
Board. The Board may impose such conditions or restrictions on any
Deferred Shares as it may deem advisable, including time-vesting restrictions
and deferred payment features. The Board may cause the Company to establish a
grantor trust to hold Shares subject to Deferred Share Awards. Without limiting
the generality of the foregoing, the Board may grant to any Eligible Person, or
permit any Eligible Person to elect to receive, Deferred Shares in lieu of or in
substitution for any other compensation (whether payable currently or on a
deferred basis, and whether payable under this Plan or otherwise) which such
Eligible Person may be eligible to receive from the Company or a
Subsidiary.
Article
11. Beneficiary Designation
Each
Grantee under the Plan may, from time to time, name any beneficiary or
beneficiaries (who may be named contingently or successively) to whom any
benefit under the Plan is to be paid in case of the Grantee’s death before he or
she receives any or all of such benefit. Each such designation shall revoke all
prior designations by the same Grantee, shall be in a form prescribed by the
Company, and will be effective only when filed by the Grantee in writing with
the Company during the Grantee’s lifetime. In the absence of any such
designation, benefits remaining unpaid at the Grantee’s death shall be paid to
the Grantee’s estate.
Article
12. Deferrals
The Board
may permit or require a Grantee to defer receipt of the payment of cash or the
delivery of Shares that would otherwise be due by virtue of the exercise of an
Option or SAR, the lapse or waiver of restrictions with respect to Restricted
Shares, the satisfaction of any requirements or goals with respect to
Performance Units or Performance Shares, the grant of Bonus Shares or the
expiration of the deferral period for Deferred Shares. If any such deferral is
required or permitted, the Board shall establish rules and procedures for such
deferrals.
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Article
13. Rights of Employees
13.1. Employment. Nothing
in the Plan shall interfere with or limit in any way the right of the Company to
terminate any Grantee’s employment at any time, nor confer upon any Grantee the
right to continue in the employ of the Company.
13.2. Participation. No
employee shall have the right to be selected to receive an Award, or, having
been so selected, to be selected to receive a future Award.
Article
14. Amendment, Modification, and Termination
14.1. Amendment, Modification, and
Termination. Subject to the terms of the Plan, the Board of
Directors of the Company may at any time and from time to time, alter, amend,
suspend or terminate the Plan in whole or in part without the approval of the
Company’s shareholders, except to the extent the Board of Directors of the
Company determines it is desirable to obtain approval of the Company’s
shareholders, to retain eligibility for exemption from the limitations of Code
Section 162(m), to have available the ability for Options to qualify as ISOs, to
comply with the requirements for listing on any exchange where the Company’s
Shares are listed, or for any other purpose the Board of Directors of the
Company deems appropriate.
14.2. Adjustments Upon Certain
Unusual or Nonrecurring Events. The Board may make adjustments
in the terms and conditions of Awards in recognition of unusual or nonrecurring
events (including the events described in Section 4.2) affecting the Company or
the financial statements of the Company or of changes in applicable laws,
regulations, or accounting principles, whenever the Board determines that such
adjustments are appropriate in order to prevent dilution or enlargement of the
benefits or potential benefits intended to be made available under the
Plan.
14.3. Awards Previously
Granted. Notwithstanding any other provision of the Plan to
the contrary (but subject to Section 2.8 and Section 14.2), no termination,
amendment 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
Grantee of such Award.
Article
15. Withholding
15.1. Mandatory Tax
Withholding.
(a) Whenever
under the Plan, Shares are to be delivered upon exercise or payment of an Award
or upon Restricted Shares becoming nonforfeitable, or any other event with
respect to rights and benefits hereunder, the Company shall be entitled to
require (x) that the Grantee remit an amount in cash sufficient to satisfy
all federal, state, local, foreign tax and social tax withholding
requirements related thereto (“Required Withholding”), (y) the withholding
of such Required Withholding from compensation otherwise due to the Grantee or
from any Shares or other payment due to the Grantee under the Plan or
(z) any combination of the foregoing.
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(b) Any
Grantee who makes a disqualifying disposition of an incentive stock option
granted under the Plan or who makes an election under Section 83(b) of the Code
shall remit to the Company an amount sufficient to satisfy all resulting
Required Withholding; provided that, in lieu of or
in addition to the foregoing, the Company shall have the right to withhold such
Required Withholding from compensation otherwise due to the Grantee or from any
Shares or other payment due to the Grantee under the Plan.
15.2. Notification under Code
Section 83(b). If the Grantee, in connection with the exercise
of any Option, or the grant of Restricted Shares, makes the election permitted
under Section 83(b) of the Code to include in such Grantee’s gross income in the
year of transfer the amounts specified in Section 83(b) of the Code, then such
Grantee shall notify the Company of such election within 10 days of filing the
notice of the election with the Internal Revenue Service, in addition to any
filing and notification required pursuant to regulations issued under
Section 83(b) of the Code. The Board may, in connection with the grant of
an Award or at any time thereafter prior to such an election being made,
prohibit a Grantee from making the election described above.
Article
16. Equity Incentive Plans of Foreign
Subsidiaries
The Board
may authorize any foreign Subsidiary to adopt a plan for granting Awards
("Foreign Equity Incentive Plan"). All awards granted under such
Foreign Equity Incentive Plans shall be treated as grants under the
Plan. Such Foreign Equity Incentive Plans shall have such terms and
provisions as the Board permits not inconsistent with the provisions of the Plan
and which may be more restrictive than those contained in the
Plan. Awards granted under such Foreign Equity Incentive Plans shall
be governed by the terms of the Plan except to the extent that the provisions of
the Foreign Equity Incentive Plans are more restrictive than the terms of the
Plan, in which case such terms of the Foreign Equity Incentive Plans shall
control.
Article
17. Additional Provisions
17.1. 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
or assets of the Company.
17.2. 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.
17.3. Severability. If
any part of the Plan is declared by any court or governmental authority to be
unlawful or invalid, such unlawfulness or invalidity shall not invalidate any
other part of the Plan. Any Section or part of a Section so declared to be
unlawful or invalid shall, if possible, be construed in a manner which will give
effect to the terms of such Section or part of a Section to the fullest extent
possible while remaining lawful and valid.
17.4. 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 stock exchanges as may be
required. Notwithstanding any provision of the Plan or any Award, Grantees shall
not be entitled to exercise, or receive benefits under, any Award, and the
Company shall not be obligated to deliver any Shares or other benefits to a
Grantee, if such exercise or delivery would constitute a violation by the
Grantee or the Company of any applicable law or regulation.
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17.5. Securities Law
Compliance.
(a) If
the Board deems it necessary to comply with any applicable securities law, or
the requirements of any stock exchange upon which Shares may be listed, the
Board may impose any restriction on Shares acquired pursuant to Awards under the
Plan as it may deem advisable. All Shares transferred under the Plan pursuant to
any Award or the exercise thereof shall be subject to such stop transfer orders
and other restrictions as the Board may deem advisable under the rules,
regulations and other requirements of the SEC, any stock exchange upon which
Shares are then listed, any applicable securities law. If so requested by the
Company, the Grantee shall represent to the Company in writing that he or she
will not sell or offer to sell any Shares unless a registration statement shall
be in effect with respect to such Shares under the Securities Act of 1993 or
unless he or she shall have furnished to the Company evidence satisfactory to
the Company that such registration is not required.
(b) If
the Board determines that the exercise of, or delivery of benefits pursuant to,
any Award would violate any applicable provision of securities laws or the
listing requirements of any stock exchange upon which any of the Company’s
equity securities are then listed, then the Board may postpone any such exercise
or delivery, as applicable, but the Company shall use all reasonable efforts to
cause such exercise or delivery to comply with all such provisions at the
earliest practicable date.
17.6. No Rights as a
Shareholder. A Grantee shall not have any rights as a
shareholder with respect to the Shares (other than Restricted Shares) which may
be deliverable upon exercise or payment of such Award until such shares have
been delivered to him or her. Restricted Shares, whether held by a Grantee or in
escrow by an escrow agent, shall confer on the Grantee all rights of a
shareholder of the Company, except as otherwise provided in the Plan or Award
Agreement. Unless otherwise determined by the Board at the time of a grant of
Restricted Shares, any cash dividends that become payable on Restricted Shares
shall be deferred and, if the Board so determines, reinvested in additional
Restricted Shares. Except as otherwise provided in an Award Agreement, any share
dividends and deferred cash dividends issued with respect to Restricted Shares
shall be subject to the same restrictions and other terms as apply to the
Restricted Shares with respect to which such dividends are issued. The Board may
provide for payment of interest on deferred cash dividends.
17.7. Nature of
Payments. Awards shall be special incentive payments to the
Grantee and shall not be taken into account in computing the amount of salary or
compensation of the Grantee for purposes of determining any pension, retirement,
death or other benefit under (a) any pension, retirement, profit-sharing,
bonus, insurance or other employee benefit plan of the Company or any Subsidiary
or (b) any agreement between (i) the Company or any Subsidiary and (ii) the
Grantee, except as such plan or agreement shall otherwise expressly
provide.
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17.8. Data Protection. The
Board, the Plan Committee and any other person or entity empowered by the Board
or the Plan Committee to administer the Plan may process, store, transfer or
disclose personal data of the Grantees to the extent required for the
implementation and administration of the Plan. The Board, the Plan Committee and
any other person or entity empowered by the Board or the Plan Committee to
administer the Plan shall comply with any applicable data protection
laws.
17.9. Governing
Law. The Plan shall be construed in accordance with and
governed by the laws of the State of Kansas other than its laws respecting
choice of law.
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