Attached files
file |
filename |
S-1 - IVDESK HOLDINGS, INC. | ivdesks-1vfinal1132014.txt |
EX-3.7 - IVDESK HOLDINGS, INC. | ex3ii.2bylawsivdeskmn.txt |
EX-3.4 - IVDESK HOLDINGS, INC. | ex3i.4artofamendname.txt |
EX-10.9 - IVDESK HOLDINGS, INC. | ex10.9ingwersennote.txt |
EX-10.5 - IVDESK HOLDINGS, INC. | ex10.5kellyagr.txt |
EX-10.7 - IVDESK HOLDINGS, INC. | ex10.7xpartnersnote.txt |
EX-5.1 - IVDESK HOLDINGS, INC. | ex5.1.txt |
EX-3.2 - IVDESK HOLDINGS, INC. | ex3i.2certofcorrectde.txt |
EX-10.1 - IVDESK HOLDINGS, INC. | ex10.1assetpurchaseagr.txt.txt |
EX-10.8 - IVDESK HOLDINGS, INC. | ex10.8hilldalenote.txt |
EX-10.6 - IVDESK HOLDINGS, INC. | ex10.6polakowskiagr.txt.txt |
EX-10.11 - IVDESK HOLDINGS, INC. | ex10.11polakowskinote.txt |
EX-21.1 - IVDESK HOLDINGS, INC. | ex21.1.txt |
EX-10.2 - IVDESK HOLDINGS, INC. | ex10.2fivexagr.txt.txt |
EX-10.4 - IVDESK HOLDINGS, INC. | ex10.4sorensonagr.txt |
EX-10.3 - IVDESK HOLDINGS, INC. | ex10.3bignallagr.txt.txt |
EX-3.3 - IVDESK HOLDINGS, INC. | ex3i.3artofincmn.txt |
EX-3.1 - IVDESK HOLDINGS, INC. | ex3i.1certofincde.txt |
EX-3.6 - IVDESK HOLDINGS, INC. | ex3ii.1bylawsivdesk.txt |
EX-10.10 - IVDESK HOLDINGS, INC. | ex10.10sorensonnote.txt |
EX-3.5 - IVDESK HOLDINGS, INC. | ex3i.5artofamendadd.txt |
EX-23.2 - IVDESK HOLDINGS, INC. | ex23.2.txt |
EXHIBIT 4.1
IVDESK HOLDINGS, INC.
2012 OMNIBUS STOCK INCENTIVE PLAN
1. Purpose and Effective Date.
(a) Purpose. The IVDesk Holdings, Inc. Omnibus Stock Incentive Plan has
several complementary purposes: (i) to promote the growth and success
of the Company by linking a significant portion of participant
compensation to the increase in value of the Company's common stock;
(ii) to attract and retain top quality, experienced executives and key
employees by offering a competitive incentive compensation program;
(iii) to reward innovation and outstanding performance as important
contributing factors to the Company `s growth and progress; (iv) to
align the interests of executives, key employees, directors and
consultants with those of the Company's shareholders by reinforcing
the relationship between participant rewards and shareholder gains
obtained through the achievement by plan participants of short-term
objectives and long-term goals; and (iv) to encourage executives, key
employees, directors and consultants to obtain and maintain an equity
interest in the Company.
(b) Effective Date. This Plan will become effective, and Awards may be
granted under this Plan on the date that the Plan is approved by the
Company's shareholders.
2. Definitions. Capitalized terms used in this Plan have the following
meanings:
(a) "10% Stockholder" means an Eligible Employee who, as of the date an
ISO is granted to such individual, owns more than ten percent (10%) of
the total combined voting power of all classes of Stock then issued by
the Company or a Subsidiary corporation.
(b) "Administrator" means the Board of Directors or the Committee with
respect to Participants who are Eligible Employees and Consultants.
(c) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 under the Exchange Act.
Notwithstanding the foregoing, for purposes of determining those
individuals to whom an Option or Stock Appreciation Right may be
granted, the term "Affiliate" means any entity that, directly or
through one or more intermediaries, is controlled by, controls, or is
under common control with the Company within the meaning of Code
Sections 414(b) or (c); provided that, in applying such provisions,
the phrase "at least 20 percent" shall be used in place of "at least
80 percent" each place it appears therein.
(d) "Award" means a grant of Options, Stock Appreciation Rights,
Performance Shares, Performance Units, Restricted Stock, Restricted
Stock Units, Deferred Stock Rights, Dividend Equivalent Units, or any
other type of award permitted under the Plan.
(e) "Board" means the Board of Directors of the Company.
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(f) "Cause" means, except as otherwise determined by the Administrator and
set forth in an Award agreement, such act or omission by a Participant
as is determined by the Administrator to constitute cause for
termination, including but not limited to any of the following: (i)
dishonesty, fraud, material and deliberate injury or attempted injury,
in each case related to the Company or its business, (ii) any unlawful
or criminal activity of a serious nature, (iii) any willful breach of
duty or habitual neglect of duty or (iv) any breach of any applicable
non-competition or employment agreement with the Company to which
Participant is a party or by which Participant is bound.
(g) "Change of Control" means a change of control of the Company, as that
term is will be deemed to have occurred, solely for purposes of this
Plan, if the conditions set forth in any one of the following
paragraphs are satisfied (provided the transaction does not constitute
a going private transaction under Rule 13e-3(a)(3) of the Securities
Exchange Act of 1934, as amended):
(i) any Person becomes the Beneficial Owner, directly or indirectly,
of securities of the Company representing more than 50% of the
total fair market value or combined voting power of the Company's
then outstanding stock excluding, at the time of their original
acquisition, from the calculation of securities beneficially
owned by such Person, any securities acquired directly from the
Company or its Affiliates or in connection with a transaction
described in clause (a) of paragraph (iii) below; provided,
however, that if any such Person already was the Beneficial Owner
of 30% or more of such stock, any increase in such ownership will
not be a Change in Control; or
(ii) individuals who at the date hereof constitute the Board and any
new director (other than a director whose initial assumption of
office is in connection with an actual or threatened election
contest, including but not limited to a consent solicitation,
relating to the election of directors of the Company) whose
appointment or election by the Board or nomination for election
by the Company's shareholders was approved or recommended by a
vote of at least two-thirds (2/3) of the directors then still in
office who either were directors at the Award Date or whose
appointment, election or nomination for election was previously
so approved or recommended, cease for any reason to constitute a
majority thereof during any 12-month period; or
(iii)there is consummated a merger or consolidation of the Company or
any Affiliate with any other company, other than (a) a merger or
consolidation that would result in the voting stock of the
Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted
into voting stock of the surviving entity or any parent thereof),
in combination with the ownership of any trustee or other
fiduciary holding stock under an employee benefit plan of the
Company or any Affiliate, at least 50% of the combined voting
power of the voting stock of the Company or such surviving entity
or parent thereof outstanding immediately after such merger or
consolidation, or (b) a merger or consolidation effected to
implement a recapitalization of the Company (or similar
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transaction) in which no Person is or becomes the Beneficial
Owner, directly or indirectly, of securities of the Company
representing 50% or more of the combined voting power of the
Company's then outstanding stock; or
(iv) there is consummated an agreement for the sale or disposition by
the Company of all or substantially all the Company's assets,
other than a sale or disposition by the Company of all or
substantially all of the Company's assets to (a) an entity, at
least 50% of the total fair market value or combined voting power
of the voting securities of which are directly or indirectly
owned by shareholders of the Company in substantially the same
proportions as their ownership of the Company stock or voting
stock immediately before such sale; (b) a Person who is the
Beneficial Owner, directly or indirectly, of securities of the
Company representing more than 50% of the total fair market value
or combined voting power of the Company's then outstanding stock;
or (c) any other Person or entity that is treated as a related
person under the Code Section 409A regulations concerning a
change in ownership of a corporation's assets.
Notwithstanding the foregoing, with respect to an Award that is
considered deferred compensation subject to Code Section 409A,
the definition of "Change of Control" shall be amended and
interpreted in a manner that allows the definition to satisfy the
requirements of a change of control under Code Section 409A
solely for purposes of determining the timing of payment of such
Award.
(f) "Code" means the Internal Revenue Code of 1986, as amended. Any
reference to a specific provision of the Code includes any successor
provision and the regulations promulgated under such provision.
(g) "Committee" means the Compensation Committee of the Board (or a
successor committee with the same or similar authority).
(h) "Company" means IVDesk Holdings, Inc., a Delaware corporation, or any
successor thereto.
(i) "Consultant" means a person or entity rendering services to the
Company or an Affiliate other than as an employee of any such entity
or a Director.
(j) "Deferred Stock Right" means the right to receive Stock or Restricted
Stock at some future time.
(k) "Director" means a member of the Board, and "Non-Employee Director"
means a Director who is not also an employee of the Company or its
Subsidiaries.
(l) "Disability" means, except as otherwise determined by the
Administrator and set forth in an Award agreement: (i) with respect to
an ISO, the meaning given in Code Section 422(e)(3), and (ii) with
respect to all other Awards, a physical or mental incapacity which
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qualifies an individual to collect a benefit under a long term
disability plan maintained by the Company, or such similar mental or
physical condition which the Administrator may determine to be a
disability, regardless of whether either the individual or the
condition is covered by any such long term disability plan. The
Administrator shall make the determination of Disability and may
request such evidence of disability as it reasonably determines.
(m) "Dividend Equivalent Unit" means the right to receive a payment, in
cash or Shares, equal to the cash dividends or other distributions
paid with respect to a Share.
(n) "Eligible Employee" means a key managerial, administrative or
professional employee of the Company or an Affiliate who is in a
position to make a material contribution to the continued profitable
growth and long term success of the Company or an Affiliate.
(o) "Exchange Act" means the Securities Exchange Act of 1934, as amended.
Any reference to a specific provision of the Exchange Act includes any
successor provision and the regulations and rules promulgated under
such provision.
(p) "Fair Market Value" means, per Share on a particular date the price
determined by the Administrator consistent with the requirements of
Code Section 422.
(q) "Incentive Stock Option" or "ISO" mean an Option that meets the
requirements of Code Section 422.
(r) "Option" means the right to purchase Shares at a stated price for a
specified period of time.
(s) "Participant" means an individual selected by the Administrator to
receive an Award.
(t) "Performance Awards" means a Performance Share and Performance Unit,
and any Award of Restricted Stock, Restricted Stock Units, or Deferred
Stock Rights the payment or vesting of which is contingent on the
attainment of one or more Performance Goals.
(u) "Performance Goals" means any goals the Administrator establishes that
relate to one or more of the following with respect to the Company or
any one or more of its Subsidiaries, Affiliates or other business
units. As to each Performance Goal, the relevant measurement of
performance shall be computed in accordance with generally accepted
accounting principles, if applicable; provided that, the Administrator
may, at the time of establishing the Performance Goal(s), exclude the
effects of (i) extraordinary, unusual and/or non-recurring items of
gain or loss, (ii) gains or losses on the disposition of a business,
(iii) changes in tax regulations or laws, or (iv) the effect of a
merger or acquisition. Where applicable, the Performance Goals may be
expressed, without limitation, in terms of attaining a specified level
of the particular criterion or the attainment of an increase or
decrease (expressed as absolute numbers or a percentage) in the
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particular criterion or achievement in relation to a peer group or
other index. The Performance Goals may include a threshold level of
performance below which no payment will be made (or no vesting will
occur), levels of performance at which specified payments will be paid
(or specified vesting will occur), and a maximum level of performance
above which no additional payment will be made (or at which full
vesting will occur).
(v) "Performance Shares" means the right to receive Shares (including
Restricted Stock) to the extent Performance Goals are achieved.
(w) "Performance Unit" means the right to receive a payment valued in
relation to a unit that has a designated dollar value or the value of
which is equal to the Fair Market Value of one or more Shares, to the
extent Performance Goals are achieved.
(x) "Person" has the meaning given in Section 3(a)(9) of the Exchange Act,
as modified and used in Sections 13(d) and 14(d) thereof.
(y) "Plan" means this IVDesk Holdings, Inc. 2012 Omnibus Stock Incentive
Plan, as may be amended from time to time.
(z) "Restriction Period" means the length of time established relative to
an Award during which the Participant cannot sell, assign, transfer,
pledge or otherwise encumber the Stock or Stock Units subject to such
Award and at the end of which the Participant obtains an unrestricted
right to such Stock or Stock Units.
(aa) "Restricted Stock" means a Share that is subject to a risk of
forfeiture or restrictions on transfer, or both a risk of forfeiture
and restrictions on transfer.
(bb) "Restricted Stock Unit" means the right to receive a payment equal to
the Fair Market Value of one Share.
(cc) "Retirement" means, except as otherwise determined by the
Administrator and set forth in an Award agreement, (i) with respect to
Participants who are Eligible Employees or Consultants, termination of
employment or service from the Company and its Affiliates (for other
than Cause) on or after attainment of age fifty-five (55) and
completion of ten (10) years of service with the Company and its
Affiliates, including any service for Focused Solutions Consulting,
Inc. and (ii) with respect to Director Participants, the Director's
removal (for other than Cause), or resignation or failure to be
re-elected (for other than Cause) on or after "retirement" as defined
in the Company's retirement policy for Non-Employee Directors.
(dd) "Section 16 Participants" means Participants who are subject to the
provisions of Section 16 of the Exchange Act.
(ee) "Share" means a share of Stock.
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(ff) "Stock" means the Common Stock of the Company, par value of $0.0001
per share.
(gg) "Stock Appreciation Right" or "SAR" means the right to receive a
payment equal to the appreciation of the Fair Market Value of a Share
during a specified period of time.
(hh) "Subsidiary" means any corporation or limited liability company
(except that is treated as a partnership for U.S. income tax purposes)
in an unbroken chain of entities beginning with the Company if each of
the entities (other than the last entity in the chain) owns stock or
equity interests possessing more than fifty percent (50%) of the total
combined voting power of all classes of stock or equity interests in
one of the other entities in the chain.
3. Administration.
(a) Administration. In addition to the authority specifically granted to
the Administrator in this Plan, the Administrator has full
discretionary authority to administer this Plan, including but not
limited to the authority to: (i) interpret the provisions of this
Plan; (ii) prescribe, amend and rescind rules and regulations relating
to this Plan; (iii) correct any defect, supply any omission, or
reconcile any inconsistency in any Award or agreement covering an
Award in the manner and to the extent it deems desirable to carry this
Plan into effect; and (iv) make all other determinations necessary or
advisable for the administration of this Plan. All Administrator
determinations shall be made in the sole discretion of the
Administrator and are final and binding on all interested parties.
Notwithstanding any provision of the Plan to the contrary, the
Administrator shall have the discretion to grant an Award with any
vesting condition, any Restriction Period or any performance period if
the Award is granted to a newly hired or promoted Participant, or
accelerate the vesting, Restriction Period or performance period of an
Award, in connection with a Participant's death, disability,
Retirement or termination by the Company without Cause. Any action by
the Administrator to accelerate or otherwise amend an Award for
reasons other than Retirement, death, Disability or a termination by
the Company without Cause, or in connection with a Change of Control,
shall include application of a commercially reasonable discount to the
compensation otherwise payable to reflect the value of the accelerated
payment.
Notwithstanding the above statement or any other provision of the
Plan, once established, the Administrator shall have no discretion to
increase the amount of compensation payable under an Award that is
intended to be performance-based compensation under Code Section
162(m), although the Administrator may decrease the amount of
compensation a Participant may earn under such an Award.
(b) Delegation to Other Committees or Officers. To the extent applicable
law permits, the Board may delegate to another committee of the Board
or to one or more officers of the Company, or the Committee may
delegate to one or more officers of the Company, any or all of their
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respective authority and responsibility as an Administrator of the
Plan. If the Board or the Committee has made such a delegation, then
all references to the Administrator in this Plan include such other
committee or one or more officers to the extent of such delegation.
(c) Indemnification. The Company will indemnify and hold harmless each
member of the Board and the Committee, and each officer or member of
any other committee to whom a delegation under Section 3(b) has been
made, as to any acts or omissions with respect to this Plan or any
Award to the maximum extent that the law and the Company's by-laws
permit.
4. Eligibility. The Administrator may designate any of the following as a
Participant from time to time, to the extent of the Administrator's
authority: any Eligible Employee, any Consultant or any Director, including
a Non-Employee Director. The Administrator's granting of an Award to a
Participant will not require the Administrator to grant an Award to such
individual at any future time. The Administrator's granting of a particular
type of Award to a Participant will not require the Administrator to grant
any other type of Award to such individual.
5. Types of Awards. Subject to the terms of this Plan, the Administrator may
grant any type of Award to any Participant it selects, but only employees
of the Company or a Subsidiary may receive grants of incentive stock
options. Awards may be granted alone or in addition to, in tandem with, or
in substitution for any other Award (or any other award granted under
another plan of the Company or any Affiliate).
6. Shares Reserved under this Plan.
(a) Plan Reserve. Subject to adjustment as provided in Section 16, an
aggregate of 2,500,000 Shares are reserved for issuance under this
Plan. The Shares reserved for issuance may be either authorized and
unissued Shares or shares reacquired at any time and now or hereafter
held as treasury stock.
(b) Replenishment of Shares Under this Plan. The aggregate number of
Shares reserved under Section 6(a) shall be depleted by the number of
Shares with respect to which an Award is granted. A full-value award
includes Restricted Stock, Restricted Stock Units, Performance Shares,
Performance Units (valued in relation to a Share), Deferred Stock
Rights and any other similar Award under which the value of the Award
is measured as the full value of a Share, rather than the increase in
the value of a Share. If, however, an Award lapses, expires,
terminates or is cancelled without the issuance of Shares or the
payment of other compensation under the Award, or if Shares are
forfeited under an Award, or if Shares are issued under any Award and
the Company subsequently reacquires them pursuant to rights reserved
upon the issuance of the Shares, then such Shares shall be recredited
to the Plan's reserve (in the same number as they depleted the
reserve) and may again be used for new Awards under this Plan.
Notwithstanding the foregoing, in no event shall the following Shares
be recredited to the Plan's reserve: Shares tendered in payment of the
exercise price of an Option; Shares withheld to satisfy federal, state
or local tax withholding obligations; and Shares purchased by the
Company using proceeds from Option exercises.
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7. Options. Subject to the terms of this Plan, the Administrator will
determine all terms and conditions of each Option, including but not
limited to:
(a) Whether the Option is an "incentive stock option" which meets the
requirements of Code Section 422, or a "nonqualified stock option"
which does not meet the requirements of Code Section 422;
(b) The number of Shares subject to the Option;
(c) The date of grant, which may not be prior to the date of the
Administrator's approval of the grant;
(d) The exercise price, which may not be less than the Fair Market Value
of the Shares subject to the Option as determined on the date of
grant; provided that an incentive stock option granted to a 10%
Stockholder must have an exercise price at least equal to 110% of the
Fair Market Value of the Shares subject to the Option as determined on
the date of grant;
(e) The terms and conditions of exercise; provided that, subject to the
provisions of Sections 12 and 16, provided further that if the
aggregate Fair Market Value of the Shares subject to the Option (as
determined on the date of grant of such Option) that become
exercisable during a calendar year exceed $100,000, then such Option
shall be treated as a nonqualified stock option to the extent such
$100,000 limitation is exceeded.
(f) The term; provided that each Option must terminate no later than ten
(10) years after the date of grant and each incentive stock option
granted to a 10% Stockholder must terminate no later than five (5)
years after the date of grant.
In all other respects, the terms of any incentive stock option should
comply with the provisions of Code section 422 except to the extent
the Administrator determines otherwise. If an Option that is intended
to be an incentive stock option fails to meet the requirements
thereof, the Option shall automatically be treated as a nonqualified
stock option to the extent of such failure.
Subject to the terms and conditions of the Award, vested Options may
be exercised, in whole or in part, by giving notice of exercise to the
Company in such manner as the Company may prescribe. This notice must
be accompanied by payment in full of the exercise price in cash or by
use of such other instrument as the Administrator may agree to accept.
Payment of the exercise price, applicable withholding taxes due upon
exercise of the Option, or both may be made in the form of Stock
already owned by the Participant, which Stock shall be valued at Fair
Market Value on the date the Option is exercised. A Participant who
elects to make payment in Stock may not transfer fractional shares or
shares of Stock with an aggregate Fair Market Value in excess of the
Option exercise price plus applicable withholding taxes. A Participant
need not present Stock certificates when making payment in Stock, so
long as other satisfactory proof of ownership of the Stock tendered is
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provided (e.g., attestation of ownership of a sufficient number of
shares of Stock to pay the exercise price). The Administrator shall
have the discretion to authorize or accept payment by other forms or
methods or to establish a cashless exercise program, all within such
limitations as may be imposed by the Plan or any applicable law.
8. Stock Appreciation Rights. Subject to the terms of this Plan, the
Administrator will determine all terms and conditions of each SAR,
including but not limited to:
(a) Whether the SAR is granted independently of an Option or relates to an
Option;
(b) The number of Shares to which the SAR relates;
(c) The date of grant, which may not be prior to the date of the
Administrator's approval of the grant;
(d) The grant price, provided that the grant price shall not be less than
the Fair Market Value of the Shares subject to the SAR as determined
on the date of grant;
(e) The terms and conditions of exercise or maturity;
(f) The term, provided that each SAR must terminate no later than ten (10)
years after the date of grant; and
(g) Whether the SAR will be settled in cash, Shares or a combination
thereof.
If an SAR is granted in relation to an Option, then unless otherwise
determined by the Administrator, the SAR shall be exercisable or shall
mature at the same time or times, on the same conditions and to the
extent and in the proportion, that the related Option is exercisable
and may be exercised or mature for all or part of the Shares subject
to the related Option. Upon exercise of any number of SAR, the number
of Shares subject to the related Option shall be reduced accordingly
and such Option may not be exercised with respect to that number of
Shares. The exercise of any number of Options that relate to an SAR
shall likewise result in an equivalent reduction in the number of
Shares covered by the related SAR.
9. Performance and Stock Awards. Subject to the terms of this Plan, the
Administrator will determine all terms and conditions of each award of
Restricted Stock, Restricted Stock Units, Deferred Stock Rights,
Performance Shares or Performance Units, including but not limited to:
(a) The number of Shares and/or units to which such Award relates;
(b) Whether, as a condition for the Participant to realize all or a
portion of the benefit provided under the Award, one or more
Performance Goals must be achieved during such period as the
Administrator specifies;
(c) The period of restriction with respect to Restricted Stock or
Restricted Stock Units and the period of deferral for Deferred Stock
Rights;
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(d) The performance period for Performance Awards (which, subject to the
provisions of Sections 12 and 16, must be at least one year);
(e) With respect to Performance Units, whether to measure the value of
each unit in relation to a designated dollar value or the Fair Market
Value of one or more Shares; and
(f) With respect to Restricted Stock Units and Performance Units, whether
to settle such Awards in cash, in Shares, or a combination thereof.
During the time Restricted Stock is subject to the Period of
Restriction, the Participant shall have all of the rights of a
shareholder with respect to the Restricted Stock, except the
Participant shall not have the right to vote such Stock and, unless
the Administrator shall otherwise provide, shall not have the right to
receive dividends paid with respect to such Stock.
Except as otherwise provided in the Plan, at such time as all
restrictions applicable to an Award of Restricted Stock, Deferred
Stock Rights or Restricted Stock Units are met and the Restriction
Period expires, ownership of the Stock subject to such restrictions
shall be transferred to the Participant free of all restrictions
except those that may be imposed by applicable law; provided that if
Restricted Stock Units are paid in cash, said payment shall be made to
the Participant after all applicable restrictions lapse and the
Restriction Period expires.
10. Dividend Equivalent Units. Subject to the terms of this Plan, the
Administrator will determine all terms and conditions of each award of
Dividend Equivalent Units, including but not limited to whether: (a) such
Award will be granted in tandem with another Award; (b) payment of the
Award be made currently or credited to an account for the Participant which
provides for the deferral of such amounts until a stated time; and (c) the
Award will be settled in cash or Shares; provided that Dividend Equivalent
Units may be granted only in connection with a "full value" Award as
defined in Section 6(c).
11. Other Stock-Based Awards. Subject to the terms of this Plan, the
Administrator may grant to Participants other types of Awards, which shall
be denominated or payable in, valued in whole or in part by reference to,
or otherwise based on, Shares, either alone or in addition to or in
conjunction with other Awards, and payable in Stock or cash. Without
limitation, such Award may include the issuance of shares of unrestricted
Stock, which may be awarded in payment of director fees, in lieu of cash
compensation, in exchange for cancellation of a compensation right, as a
bonus, or upon the attainment of Performance Goals or otherwise, or rights
to acquire Stock from the Company. The Administrator shall determine all
terms and conditions of the Award, including but not limited to, the time
or times at which such Awards shall be made, and the number of Shares to be
granted pursuant to such Awards or to which such Award shall relate;
provided that any Award that provides for purchase rights shall be priced
at 100% of Fair Market Value on the date of the Award.
12. Effect of Termination on Awards. Except as otherwise provided by the
Administrator in an Award Agreement or, subject to Section 3(a), as
determined by the Administrator at the time of termination of a
Participant's service:
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(a) Termination of Employment or Service. If a Participant's service with
the Company and its Affiliates as an employee or Director ends for any
reason other than (i) a termination for Cause, (ii) Retirement, (iii)
death or (iv) Disability, then:
(i) Any outstanding Options or SARs, to the extent otherwise
exercisable on the date such Participant's service ends, shall be
exercisable no later than ninety (90) days following the
Participant's termination date or, if earlier, the expiration
date of the Option or SAR. At the conclusion of such ninety (90)
day period, all such Options and SARs then unexercised shall be
forfeited.
(ii) All other Awards made to the Participant, to the extent not then
earned or paid to the Participant, shall terminate no later than
the Participant's last day of employment, or service as a
Director.
(b) Retirement of Corporate Officer or Director. Upon Retirement of a
Participant who is then a Board-appointed corporate officer or a
Director:
(i) Any outstanding Options or SARs shall remain outstanding (and
shall continue to vest in accordance with the terms of the Award
as if the Participant had continued in employment or service)
until the earlier of the expiration date of the Award and the
fifth anniversary of such Participant's Retirement date;
provided, however, that such extension shall result in the
conversion of an incentive stock option to a nonqualified stock
option to the extent required under the Code.
(ii) All Restricted Stock, Restricted Stock Units and Deferred Stock
Rights (that are not Performance Awards) outstanding on the
Participant's Retirement date shall be immediately vested, and
any other terms and conditions applicable to such Awards shall be
deemed to have lapsed or otherwise been satisfied. Payment for
all such Awards shall be made to the Participant in either
unrestricted shares of Stock or cash, depending on the payment
terms applicable to such Award.
(iii)All Performance Awards outstanding on the Participant's
Retirement date shall be paid in either unrestricted shares of
Stock or cash, as the case may be, following the end of the
performance period and based on achievement of the Performance
Goals established for such Awards, as if the Participant had not
retired.
(c) Retirement of Other Participants. Upon Retirement of a Participant not
covered by Section 12(b):
(i) Any Options and SARs exercisable on such Participant's Retirement
date shall be exercisable no later than ninety (90) days
following such date or, if earlier, the expiration date of the
Option or SAR. At the end of such ninety (90) day period, all
Options and SARs then unexercised shall be forfeited.
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(ii) All Restricted Stock, Restricted Stock Units and Deferred Stock
Rights (that are not Performance Awards) shall vest on a prorated
basis, based on the portion of the restriction or deferral
period, as applicable, which the Participant has completed at the
time of Retirement and any other terms and conditions applicable
to such Awards shall be deemed to have lapsed or otherwise been
satisfied.
(iii)All Performance Awards outstanding on the Participant's
Retirement date shall be paid in either unrestricted shares of
Stock or cash, as the case may be, following the end of the
performance period and based on achievement of the Performance
Goals established for such Awards, as if the Participant had not
retired, but prorated based on the portion of the performance
period which the Participant has completed at the time of
Retirement.
(d) Death of Participant. If a Participant dies during employment with the
Company and its Affiliates or while a Director:
(i) All outstanding Options and SARS shall be exercisable by the
Participant's estate or the person who has acquired the right to
exercise such Awards by bequest or inheritance. The Participant's
estate, or any person who succeeds to the Participant's benefits
under the Plan, shall have up to twelve (12) months following the
date of the Participant's death, or if earlier the expiration
date of the Option or SAR, to exercise any outstanding Options or
SARs to the same extent the Participant would have been entitled
to exercise said Options or SARs on the date of death. At the end
of said twelve (12) month period, all Options and SARs then
unexercised shall be forfeited.
(ii) All restrictions on all outstanding Awards of Restricted Stock or
Restricted Units (that are not Performance Awards) shall be
deemed to have lapsed on a prorated basis based on the portion of
the Restriction Period which the Participant has completed on the
date of death.
(iii)All outstanding Deferred Stock Rights (that are not Performance
Awards) shall be vested on a prorated basis based on the portion
of the deferral period which the Participant has completed on the
date of death.
(iv) All Performance Awards outstanding on the date of the
Participant's death shall be paid in either unrestricted shares
of Stock or cash, as the case may be, following the end of the
performance period and based on achievement of the Performance
Goals established for such Awards, as if the Participant had not
died, but prorated based on the portion of the performance period
which the Participant has completed at the time of death.
(e) Disability of Participant. If a Participant's employment with the
Company and its Affiliates or service as a Director ends due to a
Disability, then:
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(i) The Participant shall have up to twelve (12) months, or if
earlier the expiration date of the Option or SAR, to exercise any
outstanding Options or SARs to the same extent the Participant
would have been entitled to exercise said Options or SARs as of
the date the Disability determination is effective. At the end of
said twelve (12) month period all Options or SARs then
unexercised shall be forfeited.
(ii) All restrictions applicable to an outstanding Award of Restricted
Stock or Restricted Units (that are not Performance Awards) shall
be deemed to have lapsed on a prorated basis, based on the
portion of the Restriction Period the Participant completed as of
the date of Disability.
(iii)All outstanding Deferred Stock Rights (that are not Performance
Awards) shall be vested on a prorated basis based on the portion
of the deferral period which the Participant completed on the
date of Disability.
(iv) All Performance Awards outstanding on the date of the
Participant's Disability shall be paid in either unrestricted
shares of Stock or cash, as the case may be, based on the degree
to which the Participant had attained the applicable Performance
Goals as of the date of such Participant's Disability.
(f) Termination for Cause. If a Participant's employment with the Company
and its Affiliates or service as a Director is terminated for Cause,
all Awards and grants of every type, whether or not then vested, shall
terminate no later than the Participant's last day of employment. The
Administrator shall have discretion to determine whether this Section
12(f) shall apply, whether the event or conduct at issue constitutes
Cause for termination and the date on which Awards to a Participant
shall terminate.
(g) Consultants and Other Stock-Based Awards. The Administrator shall have
the discretion to determine, at the time an Award is made, the effect
of the termination of service of a Consultant on Awards held by such
individual, and the effect on Other Stock-Based Awards of the
Participant's termination of employment or service with the Company
and its Affiliates.
13. Transferability.
(a) Restrictions on Transfer. Awards are not transferable other than by
will or the laws of descent and distribution, unless and to the extent
the Administrator allows a Participant to designate in writing a
beneficiary to exercise the Award or receive payment under an Award
after the Participant's death or transfer an Award as provided in
subsection (b).
(b) Permitted Transfers. If allowed by the Administrator, a Participant
may transfer the ownership of some or all of the vested or earned
Awards granted to such Participant, other than incentive stock options
to (i) the spouse, children or grandchildren of such Participant (the
"Family Members"), (ii) a trust or trust established for the exclusive
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benefit of such Family Members, or (iii) a partnership in which such
Family Members are the only partners. Any such transfer shall be
without consideration and shall be irrevocable. No Award so
transferred may be subsequently transferred, except by will or
applicable laws of descent and distribution. The Administrator may
create additional conditions and requirements applicable to the
transfer of Awards. Following the allowable transfer of a vested
Option, such Option shall continue to be subject to the same terms and
conditions as were applicable to the Option immediately prior to the
transfer. For purposes of settlement of the Award, delivery of Stock
upon exercise of an Option and the Plan's Change of Control
provisions, however, any reference to a Participant shall be deemed to
refer to the transferee.
14. Termination and Amendment of Plan; Amendment, Modification or Cancellation
of Awards.
(a) Term of Plan. Unless the Board earlier terminates this Plan pursuant
to Section 14(b), this Plan will terminate on the earlier of the date
all Shares reserved for issuance have been issued or November 30,
2018.
(b) Termination and Amendment. The Board or the Committee may amend,
alter, suspend, discontinue or terminate this Plan at any time,
subject to the following limitations:
(i) the Board must approve any amendment of this Plan to the extent
the Company determines such approval is required by: (A) action
of the Board, (B) applicable corporate law, or (C) any other
applicable law;
(ii) shareholders must approve any amendment of this Plan to the
extent the Company determines such approval is required by: (A)
Section 16 of the Exchange Act, (B) the Code, (C) the listing
requirements of any principal securities exchange or market on
which the Shares are then traded, or (D) any other applicable
law; and
(iii)shareholders must approve any of the following Plan amendments:
(A) an amendment to materially increase any number of Shares
specified in Section 6(a), 6(b) or the limits set forth in
Section 6(d) (except as permitted by Section 16), (B) an
amendment to expand the group of individuals that may become
Participants, or (C) an amendment that would diminish the
protections afforded by Section 14(e) or that would materially
change the minimum vesting and performance requirements of an
Award as required in the Plan.
(c) Amendment, Modification or Cancellation of Awards. Except as provided
in Section 14(e) and subject to the requirements of this Plan, the
Administrator may modify, amend or cancel any Award; or waive any
restrictions or conditions applicable to any Award or the exercise of
the Award, provided that any modification or amendment that materially
diminishes the rights of the Participant, or the cancellation of the
Award, shall be effective only if agreed to by the Participant or any
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other person(s) as may then have an interest in the Award, but the
Administrator need not obtain Participant (or other interested party)
consent for the adjustment or cancellation of an Award pursuant to the
provisions of Section 16 or the modification of an Award to the extent
deemed necessary to comply with any applicable law, the listing
requirements of any principal securities exchange or market on which
the Shares are then traded, or to preserve favorable accounting or tax
treatment of any Award for the Company. Notwithstanding the foregoing,
unless determined otherwise by the Administrator, any such amendment
shall be made in a manner that will enable an Award intended to be
exempt from Code Section 409A to continue to be so exempt, or to
enable an Award intended to comply with Code Section 409A to continue
to so comply.
(d) Survival of Authority and Awards. Notwithstanding the foregoing, the
authority of the Board and the Administrator under this Section 14 and
to otherwise administer the Plan will extend beyond the date of this
Plan's termination. In addition, termination of this Plan will not
affect the rights of Participants with respect to Awards previously
granted to them, and all unexpired Awards will continue in force and
effect after termination of this Plan except as they may lapse or be
terminated by their own terms and conditions.
(e) Repricing and Backdating Prohibited. Notwithstanding anything in this
Plan to the contrary, and except for the adjustments provided in
Section 16, neither the Administrator nor any other person may
decrease the exercise price for any outstanding Option or SAR after
the date of grant nor allow a Participant to surrender an outstanding
Option or SAR to the Company as consideration for the grant of a new
Option or SAR with a lower exercise price. In addition, the
Administrator may not make a grant of an Option or SAR with a grant
date that is effective prior to the date the Administrator takes
action to approve such Award.
(f) Code Section 409A. The provisions of Code Section 409A are
incorporated herein by reference to the extent necessary for any Award
that is subject to Code Section 409A to comply therewith.
15. Taxes.
(a) Withholding. In the event the Company or an Affiliate of the Company
is required to withhold any Federal, state or local taxes or other
amounts in respect of any income recognized by a Participant as a
result of the grant, vesting, payment or settlement of an Award or
disposition of any Shares acquired under an Award, the Company may
deduct (or require an Affiliate to deduct) from any payments of any
kind otherwise due the Participant cash, or with the consent of the
Administrator, Shares otherwise deliverable or vesting under an Award,
to satisfy such tax obligations. Alternatively, the Company may
require such Participant to pay to the Company, in cash, promptly on
demand, or make other arrangements satisfactory to the Company
regarding the payment to the Company of the aggregate amount of any
such taxes and other amounts. If Shares are deliverable upon exercise
or payment of an Award, the Administrator may permit a Participant to
satisfy all or a portion of the Federal, state and local withholding
tax obligations arising in connection with such Award by electing to
(a) have the Company withhold Shares otherwise issuable under the
Award, (b) tender back Shares received in connection with such Award
or (c) deliver other previously owned Shares; provided that the amount
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to be withheld may not exceed the total minimum federal, state and
local tax withholding obligations associated with the transaction to
the extent needed for the Company to avoid an accounting charge. If an
election is provided, the election must be made on or before the date
as of which the amount of tax to be withheld is determined and
otherwise as the Administrator requires. In any case, the Company may
defer making payment or delivery under any Award if any such tax may
be pending unless and until indemnified to its satisfaction.
(b) No Guarantee of Tax Treatment. Notwithstanding any provisions of the
Plan, the Company does not guarantee to any Participant or any other
Person with an interest in an Award that (i) any Award intended to be
exempt from Code Section 409A shall be so exempt, (ii) any Award
intended to comply with Code Section 409A or Code Section 422 shall so
comply, (iii) any Award shall otherwise receive a specific tax
treatment under any other applicable tax law, nor in any such case
will the Company or any Affiliate indemnify, defend or hold harmless
any individual with respect to the tax consequences of any Award.
(c) Participant Responsibilities. If a Participant shall dispose of Stock
acquired through exercise of an ISO within either (i) two (2) years
after the date the Option is granted or (ii) one (1) year after the
date the Option is exercised (i.e., in a disqualifying disposition),
such Participant shall notify the Company within seven (7) days of the
date of such disqualifying disposition. In addition, if a Participant
elects, under Code Section 83, to be taxed at the time an Award of
Restricted Stock (or other property subject to such Code section) is
made, rather than at the time the Award vests, such Participant shall
notify the Company within seven (7) days of the date the Restricted
Stock subject to the election is awarded.
16. Adjustment Provisions; Change of Control.
(a) Adjustment of Shares. If: (i) the Company shall at any time be
involved in a merger or other transaction in which the Shares are
changed or exchanged; (ii) the Company shall subdivide or combine the
Shares or the Company shall declare a dividend payable in Shares,
other securities or other property; (iii) any other event shall occur,
which, in the case of this clause; (iv) in the judgment of the Board
or Committee necessitates an adjustment to prevent dilution or
enlargement of the benefits or potential benefits intended to be made
available under this Plan, then the Administrator shall, in such
manner as it may deem equitable to prevent dilution or enlargement of
the benefits or potential benefits intended to be made available under
this Plan, adjust as applicable: (A) the number and type of Shares
subject to this Plan (including the number and type of Shares
described in Sections 6(a), (b) and (d)) and which may after the event
be made the subject of Awards; (B) the number and type of Shares
subject to outstanding Awards; (C) the grant, purchase, or exercise
price with respect to any Award; and (D) to the extent such discretion
does not cause an Award that is intended to qualify as
performance-based compensation under Code Section 162(m) to lose its
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status as such, the Performance Goals of an Award. In each case, with
respect to Awards of incentive stock options, no such adjustment may
be authorized to the extent that such authority would cause this Plan
to violate Code Section 422(b).
Without limitation, in the event of any reorganization, merger,
consolidation, combination or other similar corporate transaction or
event, whether or not constituting a Change of Control (other than any
such transaction in which the Company is the continuing corporation
and in which the outstanding Stock is not being converted into or
exchanged for different securities, cash or other property, or any
combination thereof), the Administrator may substitute, on an
equitable basis as the Administrator determines, for each Share then
subject to an Award and the Shares subject to this Plan (if the Plan
will continue in effect), the number and kind of shares of stock,
other securities, cash or other property to which holders of Stock are
or will be entitled in respect of each Share pursuant to the
transaction.
Notwithstanding the foregoing, in the case of a stock dividend (other
than a stock dividend declared in lieu of an ordinary cash dividend)
or subdivision or combination of the Shares (including a reverse stock
split), if no action is taken by the Administrator, adjustments
contemplated by this subsection that are proportionate shall
nevertheless automatically be made as of the date of such stock
dividend or subdivision or combination of the Shares.
(b) Issuance or Assumption. Notwithstanding any other provision of this
Plan, and without affecting the number of Shares otherwise reserved or
available under this Plan, in connection with any merger,
consolidation, acquisition of property or stock, or reorganization,
the Administrator may authorize the issuance or assumption of awards
under this Plan upon such terms and conditions as it may deem
appropriate.
(c) Change of Control. Unless provided otherwise in an Award agreement, in
the event of a Change of Control:
(i) Each Option or SAR that is then held by a Participant who is
employed by or in the service of the Company or an Affiliate
shall become immediately and fully vested, and, unless otherwise
determined by the Board or Committee, all Options and SARs shall
be cancelled on the date of the Change of Control in exchange for
a cash payment equal to the excess of the Change of Control price
of the Shares covered by the Option or SAR that is so cancelled
over the purchase or grant price of such Shares under the Award;
(ii) Restricted Stock, Restricted Stock Units and Deferred Stock
Rights (that are not Performance Awards) that are not then vested
shall vest;
(iii)All Performance Awards that are earned but not yet paid shall be
paid, and all Performance Awards for which the performance period
has not expired shall be cancelled in exchange for a cash payment
equal to the amount that would have been due under such Award(s)
if the Performance Goals (as measured at the time of the Change
of Control) were to continue to be achieved at the same rate
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through the end of the performance period, or if higher, assuming
the target Performance Goals had been met at the time of such
Change of Control; and
(iv) All Dividend Equivalent Units that are not vested shall vest and
be paid in cash, and all other Awards that are not vested shall
vest and if an amount is payable under such vested Award, such
amount shall be paid in cash based on the value of the Award.
If the value of an Award is based on the Fair Market Value of a Share,
Fair Market Value shall be deemed to mean the per share Change of
Control price. The Administrator shall determine the per share Change
of Control price paid or deemed paid in the Change of Control
transaction.
Except as otherwise expressly provided in any agreement between a
Participant and the Company or an Affiliate, if the receipt of any
payment by a Participant under the circumstances described above would
result in the payment by the Participant of any excise tax provided
for in Section 280G and Section 4999 of the Code, then the amount of
such payment shall be reduced to the extent required to prevent the
imposition of such excise tax.
17. Miscellaneous.
(a) Other Terms and Conditions. The grant of any Award may also be subject
to other provisions (whether or not applicable to the Award granted to
any other Participant) as the Administrator determines appropriate,
including, without limitation, provisions for:
(i) the payment of the purchase price of Options by delivery of cash
or other Shares or other securities of the Company (including by
attestation) having a then Fair Market Value equal to the
purchase price of such Shares, or by delivery (including by fax)
to the Company or its designated agent of an executed irrevocable
option exercise form together with irrevocable instructions to a
broker-dealer to sell or margin a sufficient portion of the
Shares and deliver the sale or margin loan proceeds directly to
the Company to pay for the exercise price;
(ii) restrictions on resale or other disposition of Shares; and
(iii)compliance with federal or state securities laws and stock
exchange requirements.
(b) Employment and Service. The issuance of an Award shall not confer upon
a Participant any right with respect to continued employment or
service with the Company or any Affiliate, or the right to continue as
a Director. Unless determined otherwise by the Administrator, for
purposes of the Plan and all Awards, the following rules shall apply:
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(i) a Participant who transfers employment between the Company and
its Affiliates, or between Affiliates, will not be considered to
have terminated employment;
(ii) a Participant who ceases to be a Non-Employee Director because he
or she becomes an employee of the Company or an Affiliate shall
not be considered to have ceased service as a Non-Employee
Director with respect to any Award until such Participant's
termination of employment with the Company and its Affiliates;
(iii)a Participant who ceases to be employed by the Company or an
Affiliate and immediately thereafter becomes a Non-Employee
Director, a non-employee director of an Affiliate, or a
consultant to the Company or any Affiliate shall not be
considered to have terminated employment until such Participant's
service as a director of, or consultant to, the Company and its
Affiliates has ceased; and
(iv) a Participant employed by an Affiliate will be considered to have
terminated employment when such entity ceases to be an Affiliate.
Notwithstanding the foregoing, for purposes of an Award that is
subject to Code Section 409A, if a Participant's termination of
employment or service triggers the payment of compensation under
such Award, then the Participant will be deemed to have
terminated employment or service upon his or her "separation from
service" within the meaning of Code Section 409A.
(c) No Fractional Shares. No fractional Shares or other securities may be
issued or delivered pursuant to this Plan, and the Administrator may
determine whether cash, other securities or other property will be
paid or transferred in lieu of any fractional Shares or other
securities, or whether such fractional Shares or other securities or
any rights to fractional Shares or other securities will be canceled,
terminated or otherwise eliminated.
(d) Unfunded Plan. This Plan is unfunded and does not create, and should
not be construed to create, a trust or separate fund with respect to
this Plan's benefits. This Plan does not establish any fiduciary
relationship between the Company and any Participant or other person.
To the extent any person holds any rights by virtue of an Award
granted under this Plan, such rights are no greater than the rights of
the Company's general unsecured creditors.
(e) Requirements of Law. The granting of Awards and the issuance of Shares
in connection with an Award are subject to all applicable laws, rules
and regulations and to such approvals by any governmental agencies or
national securities exchanges as may be required. Notwithstanding any
other provision of this Plan or any award agreement, the Company has
no liability to deliver any Shares under this Plan or make any payment
unless such delivery or payment would comply with all applicable laws
and the applicable requirements of any securities exchange or similar
entity, and unless and until the Participant has taken all actions
required by the Company in connection therewith. The Company may
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impose such restrictions on any Shares issued under the Plan as the
Company determines necessary or desirable to comply with all
applicable laws, rules and regulations or the requirements of any
national securities exchanges.
(f) Governing Law. This Plan, and all agreements under this Plan, will be
construed in accordance with and governed by the laws of the State of
Delaware, without reference to any conflict of law principles. Any
legal action or proceeding with respect to this Plan, any Award or any
award agreement, or for recognition and enforcement of any judgment in
respect of this Plan, any Award or any award agreement, may only be
heard in a "bench" trial, and any party to such action or proceeding
shall agree to waive its right to a jury trial.
(g) Limitations on Actions. Any legal action or proceeding with respect to
this Plan, any Award or any award agreement, must be brought within
one year (365 days) after the day the complaining party first knew or
should have known of the events giving rise to the complaint.
(h) Construction. Whenever any words are used herein in the masculine,
they shall be construed as though they were used in the feminine in
all cases where they would so apply; and wherever any words are used
in the singular or plural, they shall be construed as though they were
used in the plural or singular, as the case may be, in all cases where
they would so apply. Title of sections are for general information
only, and this Plan is not to be construed with reference to such
titles.
(i) Severability. If any provision of this Plan or any award agreement or
any Award (i) is or becomes or is deemed to be invalid, illegal or
unenforceable in any jurisdiction, or as to any person or Award, or
(ii) would disqualify this Plan, any award agreement or any Award
under any law the Administrator deems applicable, then such provision
should be construed or deemed amended to conform to applicable laws,
or if it cannot be so construed or deemed amended without, in the
determination of the Administrator, materially altering the intent of
this Plan, award agreement or Award, then such provision should be
stricken as to such jurisdiction, person or Award, and the remainder
of this Plan, such award agreement and such Award will remain in full
force and effect.
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