exv4w7
Exhibit 4.7
IMATION CORP.
2011 STOCK
INCENTIVE PLAN
Section 1. Purpose.
The purpose of the Plan is to promote the interests of the
Company and its stockholders by aiding the Company in attracting
and retaining employees, officers, consultants, independent
contractors, advisors and non-employee Directors capable of
assuring the future success of the Company, to offer such
persons incentives to put forth maximum efforts for the success
of the Companys business and to compensate such persons
through various stock-based arrangements and provide them with
opportunities for stock ownership in the Company, thereby
aligning the interests of such persons with the Companys
stockholders.
Section 2. Definitions.
As used in the Plan, the following terms shall have the meanings
set forth below:
(a) Affiliate shall mean (i) any
entity that, directly or indirectly through one or more
intermediaries, is controlled by the Company and (ii) any
entity in which the Company has a significant equity interest,
in each case as determined by the Committee.
(b) Award shall mean any Option, Stock
Appreciation Right, Restricted Stock, Restricted Stock Unit,
Dividend Equivalent, Performance Award, Stock Award or Other
Stock-Based Award granted under the Plan.
(c) Award Agreement shall mean any
written agreement, contract or other instrument or document
evidencing an Award granted under the Plan. An Award Agreement
may be in an electronic medium and need not be signed by a
representative of the Company or the Participant. Each Award
Agreement shall be subject to the applicable terms and
conditions of the Plan and any other terms and conditions (not
inconsistent with the Plan) determined by the Committee.
(d) Board shall mean the Board of
Directors of the Company.
(e) Change in Control shall have the
meaning ascribed to such term in an Award Agreement, or any
other applicable employment, severance or change in control
agreement between the Participant and the Company; provided,
however, that no Award shall contain a definition of Change in
Control that has the effect of accelerating the exercisability
of any Award or the lapse of restrictions relating to any Award
upon (i) the commencement of a tender offer, (ii) the
announcement or shareholder approval of (rather than
consummation of) any reorganization, merger or consolidation of,
or sale or other disposition of all or substantially all of the
assets of, the Company or (iii) the acquisition of less
than twenty percent (20%) of the Companys then outstanding
shares of Common Stock or the combined voting power of the
Companys then outstanding voting securities.
(f) Code shall mean the Internal Revenue
Code of 1986, as amended from time to time, and any regulations
promulgated thereunder.
(g) Committee shall mean the
Compensation Committee of the Board or any successor committee
of the Board designated by the Board to administer the Plan. The
Committee shall be comprised of not less than such number of
Directors as shall be required to permit Awards granted under
the Plan to qualify under
Rule 16b-3,
and each member of the Committee shall be a Non-Employee
Director within the meaning of
Rule 16b-3
and an outside director within the meaning of
Section 162(m). The Company expects to have the Plan
administered in accordance with the requirements for the award
of qualified performance-based compensation within
the meaning of Section 162(m).
(h) Company shall mean Imation Corp., a
Delaware corporation, or any successor corporation.
(i) Director shall mean a member of the
Board.
(j) Dividend Equivalent shall mean any
right granted under Section 6(d) of the Plan.
(k) Eligible Person shall mean any
employee, officer, consultant, independent contractor, advisor
or non-employee Director providing services to the Company or
any Affiliate whom the Committee determines to be an Eligible
Person. An Eligible Person must be a natural person.
(l) Exchange Act shall mean the
Securities Exchange Act of 1934, as amended.
(m) Fair Market Value shall mean, with
respect to any property (including, without limitation, any
Shares or other securities), the fair market value of such
property determined by such methods or procedures as shall be
established from time to time by the Committee. Notwithstanding
the foregoing, unless otherwise determined by the Committee, the
Fair Market Value of Shares on a given date for purposes of the
Plan shall be the closing sale price of the Shares on the New
York Stock Exchange as reported in the consolidated transaction
reporting system on such date or, if such Exchange is not open
for trading on such date, on the most recent preceding date when
such Exchange is open for trading.
(n) Incentive Stock Option shall mean an
option granted under Section 6(a) of the Plan that is
intended to meet the requirements of Section 422 of the
Code or any successor provision.
(o) Non-Qualified Stock Option shall
mean an option granted under Section 6(a) of the Plan that
is not intended to be an Incentive Stock Option.
(p) Option shall mean an Incentive Stock
Option or a Non-Qualified Stock Option.
(q) Other Stock-Based Award shall mean
any right granted under Section 6(g) of the Plan.
(r) Participant shall mean an Eligible
Person designated to be granted an Award under the Plan.
(s) Performance Award shall mean any
right granted under Section 6(e) of the Plan.
(t) Performance Goal shall mean one or
more of the following performance goals, either individually,
alternatively or in any combination, applied on a corporate,
subsidiary, division, business unit or line of business basis:
sales, revenue, costs, expenses, earnings (including one or more
of net profit after tax, gross profit, operating profit,
earnings before interest and taxes, earnings before interest,
taxes, depreciation and amortization and net earnings), earnings
per share, earnings per share from continuing operations,
operating income, pre-tax income, operating income margin, net
income, margins (including one or more of gross, operating and
net income margins), returns (including one or more of return on
actual or proforma assets, net assets, equity, investment,
capital and net capital employed), stockholder return (including
total stockholder return relative to an index or peer group),
stock price, market capitalization, economic value added, cash
generation, cash flow, unit volume, working capital, market
share, cost reductions and strategic plan development and
implementation. Such goals may reflect absolute entity or
business unit performance or a relative comparison to the
performance of a peer group of entities or other external
measure of the selected performance criteria. To the extent
consistent with Section 162(m), the Committee may
appropriately adjust any evaluation of performance under such
goals to exclude the effect of certain events, including, but
not limited to, any of the following events: asset write-downs;
litigation or claim judgments or settlements; changes in tax
law, accounting principles or other such laws or provisions
affecting reported results; severance, contract termination and
other costs related to exiting certain business activities;
acquisitions; and gains or losses from the disposition of
businesses or assets or from the early extinguishment of debt.
(u) Person shall mean any individual or
entity, including a corporation, partnership, limited liability
company, association, joint venture or trust.
(v) Plan shall mean this Imation Corp.
2011 Stock Incentive Plan, as amended from time to time.
(w) Qualifying Termination shall have
the meaning ascribed to it in any applicable Award Agreement,
and, if not defined in any applicable Award Agreement, shall
mean termination of employment under circumstances that, in the
judgment of the Committee, warrant acceleration of the
exercisability of Options or Stock Appreciation Rights or the
lapse of restrictions relating to Restricted Stock, Restricted
Stock Units or other Awards under the Plan. Without limiting the
generality of the foregoing, a Qualifying Termination may apply
to large scale terminations of employment relating to the
disposition or divestiture of business or legal entities or
similar circumstances.
(x) Restricted Stock shall mean any
Share granted under Section 6(c) of the Plan.
(y) Restricted Stock Unit shall mean any
unit granted under Section 6(c) of the Plan evidencing the
right to receive a Share (or a cash payment equal to the Fair
Market Value of a Share) at some future date.
(z) Rule 16b-3
shall mean
Rule 16b-3
promulgated by the Securities and Exchange Commission under the
Exchange Act or any successor rule or regulation.
(aa) Section 162(m) shall mean
Section 162(m) of the Code, or any successor provision, and
the applicable Treasury Regulations promulgated thereunder.
(bb) Section 409A shall mean
Section 409A of the Code, or any successor provision, and
applicable Treasury Regulations and other applicable guidance
thereunder.
(cc) Shares shall mean shares of Common
Stock, par value of $0.01 per share, of the Company or such
other securities or property as may become subject to Awards
pursuant to an adjustment made under Section 4(c) of the
Plan.
(dd) Specified Employee shall mean a
specified employee as defined in Code Section 409A(a)(2)(B)
or applicable proposed or final regulations under Code
Section 409A.
(ee) Stock Appreciation Right shall mean
any right granted under Section 6(b) of the Plan.
(ff)Stock Award shall mean any Share granted under
Section 6(f) of the Plan.
Section 3. Administration.
(a) Power and Authority of the
Committee. The Plan shall be administered by
the Committee. Subject to the express provisions of the Plan and
to applicable law, the Committee shall have full power and
authority to: (i) designate Participants;
(ii) determine the type or types of Awards to be granted to
each Participant under the Plan; (iii) determine the number
of Shares to be covered by (or the method by which payments or
other rights are to be calculated in connection with) each
Award; (iv) determine the terms and conditions of any Award
or Award Agreement, including any terms relating to the
forfeiture of any Award and the forfeiture, recapture or
disgorgement of any cash, Shares, other securities, other
Awards, other property and other amounts payable with respect to
any Award; (v) amend the terms and conditions of any Award
or Award Agreement, provided, however, that, except as otherwise
provided in Section 4(c) hereof, the Committee shall not
reprice, adjust or amend the exercise price of Options or the
grant price of Stock Appreciation Rights previously awarded to
any Participant, whether through amendment, cancellation and
exchange for cash or another Award, a replacement grant, or any
other means; (vi) accelerate the exercisability of any
Award or the lapse of restrictions relating to any Award;
(vii) determine whether, to what extent and under what
circumstances Awards may be exercised in cash, Shares, other
securities, other Awards or other property, or canceled,
forfeited or suspended; (viii) determine whether, to what
extent and
under what circumstances cash, Shares, other securities, other
Awards, other property and other amounts payable with respect to
an Award under the Plan shall be deferred either automatically
or at the election of the holder of the Award or the Committee;
(ix) interpret and administer the Plan and any instrument
or agreement, including any Award Agreement, relating to the
Plan; (x) establish, amend, suspend or waive such rules and
regulations and appoint such agents as it shall deem appropriate
for the proper administration of the Plan; (xi) make any
other determination and take any other action that the Committee
deems necessary or desirable for the administration of the Plan;
and (xii) adopt such modifications, rules, procedures and
subplans as may be necessary or desirable to comply with
provisions of the laws of
non-U.S. jurisdictions
in which the Company or an Affiliate may operate, including,
without limitation, establishing any special rules for
Affiliates, Eligible Persons or Participants located in any
particular country, in order to meet the objectives of the Plan
and to ensure the viability of the intended benefits of Awards
granted to Participants located in such
non-United
States jurisdictions. Unless otherwise expressly provided in the
Plan, all designations, determinations, interpretations and
other decisions under or with respect to the Plan or any Award
or Award Agreement shall be within the sole discretion of the
Committee, may be made at any time and shall be final,
conclusive and binding upon any Participant, any holder or
beneficiary of any Award or Award Agreement, and any employee of
the Company or any Affiliate.
(b) Delegation. The Committee may
delegate its powers and duties under the Plan to one or more
Directors (including a Director who is also an officer of the
Company) or a committee of Directors, subject to such terms,
conditions and limitations as the Committee may establish in its
sole discretion; provided, however, that the Committee shall not
delegate its powers and duties under the Plan (i) with
regard to officers or directors of the Company or any Affiliate
who are subject to Section 16 of the Exchange Act or
(ii) in such a manner as would cause the Plan not to comply
with the requirements of Section 162(m). In addition, the
Committee may authorize one or more officers of the Company to
grant Options under the Plan, subject to the limitations of
Section 157 of the Delaware General Corporation Law;
provided, however, that such officers shall not be authorized to
grant Options to officers or directors of the Company or any
Affiliate who are subject to Section 16 of the Exchange Act.
(c) Power and Authority of the Board of
Directors. Notwithstanding anything to the
contrary contained herein, the Board may, at any time and from
time to time, without any further action of the Committee,
exercise the powers and duties of the Committee under the Plan,
unless the exercise of such powers and duties by the Board would
cause the Plan not to comply with the requirements of
Section 162(m).
Section 4. Shares Available
for Awards.
(a) Shares Available. Subject
to adjustment as provided in Section 4(c) of the Plan, the
aggregate number of Shares that may be issued under all Awards
under the Plan shall be 4,500,000. Shares to be issued under the
Plan may be authorized but unissued Shares, treasury shares or
Shares acquired in the open market or otherwise. If an Award
terminates or is forfeited or cancelled without the issuance of
any Shares, or if any Shares covered by an Award or to which an
Award relates are not issued for any other reason, then the
number of Shares counted against the aggregate number of Shares
available under the Plan with respect to such Award, to the
extent of any such termination, forfeiture, cancellation or
other event, shall again be available for granting Awards under
the Plan. If Shares of Restricted Stock are forfeited or
otherwise reacquired by the Company prior to vesting, whether or
not dividends have been paid on such Shares, then the number of
Shares counted against the aggregate number of Shares available
under the Plan with respect to such Award of Restricted Stock,
to the extent of any such forfeiture or reacquisition by the
Company, shall again be available for granting Awards under the
Plan. Shares that are withheld in full or partial payment to the
Company of the purchase or exercise price relating to an Award
or in connection with the satisfaction of tax obligations
relating to an Award shall not be available for granting Awards
under the Plan.
(b) Accounting for Awards. For
purposes of this Section 4, if an Award entitles the holder
thereof to receive or purchase Shares, the number of Shares
covered by such Award or to which such Award relates shall be
counted on the date of grant of such Award against the aggregate
number of Shares available for granting Awards under the Plan.
For Stock Appreciation Rights settled in Shares upon exercise,
the aggregate number of Shares with respect to which the Stock
Appreciation Right is exercised, rather than the number of
Shares actually issued upon exercise, shall be counted against
the number of Shares available for Awards under the Plan. Awards
that do not entitle the holder thereof to receive or purchase
Shares and Awards that are settled in cash shall not be counted
against the aggregate number of Shares available for Awards
under the Plan.
(c) Adjustments. In the event that
any dividend or other distribution (whether in the form of cash,
Shares, other securities or other property), recapitalization,
stock split, reverse stock split, reorganization, merger,
consolidation,
split-up,
spin-off, combination, repurchase or exchange of Shares or other
securities of the Company, issuance of warrants or other rights
to purchase Shares or other securities of the Company or other
similar corporate transaction or event affects the Shares such
that an adjustment is necessary in order to prevent dilution or
enlargement of the benefits or potential benefits intended to be
made available under the Plan, then the Committee 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
other property) that thereafter may be made the subject of
Awards, (ii) the number and type of Shares (or other
securities or other property) subject to outstanding Awards,
(iii) the purchase or exercise price with respect to any
Award and (iv) the limitations contained in
Section 4(d) of the Plan.
(d) Award Limitations Under the Plan.
(i) Section 162(m) Limitation for Certain Types
of Awards. No Eligible Person may be granted
Options, Stock Appreciation Rights or any other Award or Awards
under the Plan, the value of which Award or Awards is based
solely on an increase in the value of the Shares after the date
of grant of such Award or Awards, for more than
500,000 Shares (subject to adjustment as provided in
Section 4(c) of the Plan) in the aggregate in any calendar
year.
(ii) Section 162(m) Limitation for Performance
Awards. The maximum amount payable pursuant
to all Performance Awards to any Participant in the aggregate in
any calendar year shall be $2,000,000 in value, whether payable
in cash, Shares or other property. This limitation does not
apply to any Award subject to the limitation contained in
Section 4(d)(i) of the Plan.
(iii) Plan Limitation on Awards Other Than Options
and Stock Appreciation Rights. No more than
1,100,000 Shares, subject to adjustment as provided in
Section 4(c) of the Plan, shall be available under the Plan
for issuance pursuant to grants of Awards other than Options and
Stock Appreciation Rights; provided, however, that if any Awards
other than Options and Stock Appreciation Rights terminate or
are forfeited or cancelled without the issuance of any Shares or
if Shares subject to any Awards other than Options and Stock
Appreciation Rights are forfeited or otherwise reacquired by the
Company prior to vesting, whether or not dividends have been
paid on such Shares, then the Shares subject to such
termination, forfeiture, cancellation or reacquisition by the
Company shall again be available for grants of Awards other than
Options and Stock Appreciation Rights for purposes of this
limitation on grants of such Awards. Awards other than Options
and Stock Appreciation Rights that do not entitle the holder
thereof to receive or purchase Shares, and Awards other than
Options and Stock Appreciation Rights that are settled in cash,
shall not be counted against the aggregate number of Shares
available for Awards other than Options and Stock Appreciation
Rights pursuant to this Section 4(d)(iii).
(iv) Limitation on Awards Granted to Non-Employee
Directors. Directors who are not also
employees of the Company or an Affiliate may not be granted
Awards in the aggregate for more than 1,000,000 Shares
available for Awards under the Plan, subject to adjustment as
provided in Section 4(c) of the Plan.
Section 5. Eligibility.
Any Eligible Person shall be eligible to be designated a
Participant. In determining which Eligible Persons shall receive
an Award and the terms of any Award, the Committee may take into
account the nature of the services rendered by the respective
Eligible Persons, their present and potential contributions to
the success of the Company or such other factors as the
Committee, in its discretion, shall deem relevant.
Notwithstanding the foregoing, an Incentive Stock Option may
only be granted to full-time or part-time employees (which term
as used herein includes, without limitation, officers and
Directors who are also employees), and an Incentive Stock Option
shall not be granted to an employee of an Affiliate unless such
Affiliate is also a subsidiary corporation of the
Company within the meaning of Section 424(f) of the Code or
any successor provision. Further, notwithstanding the foregoing,
Options and Stock Appreciation Rights shall not be granted to an
Eligible Person providing direct services to an Affiliate unless
the Company has a controlling interest in such
Affiliate within the meaning of Treas. Reg. Sec.
1.409A-1(b)(5)(iii)(E)(1).
Section 6. Awards.
(a) Options. The Committee is
hereby authorized to grant Options to Eligible Persons with the
following terms and conditions and with such additional terms
and conditions not inconsistent with the provisions of the Plan
as the Committee shall determine:
(i) Exercise Price. The purchase
price per Share purchasable under an Option shall be determined
by the Committee and shall not be less than 100% of the Fair
Market Value of a Share on the date of grant of such Option;
provided, however, that the Committee may designate a per share
exercise price below Fair Market Value on the date of grant
(A) to the extent necessary or appropriate, as determined
by the Committee, to satisfy applicable legal or regulatory
requirements of a foreign jurisdiction, with any such Option
grant counting toward the maximum limit stipulated in
Section 4(d)(iii) or (B) if the Option is granted in
substitution for a stock option previously granted by an entity
that is acquired by or merged with the Company or an Affiliate.
(ii) Option Term. The term of each
Option shall be fixed by the Committee but shall not be longer
than 10 years from the date of grant.
(iii) Time and Method of
Exercise. The Committee shall determine the
time or times at which an Option may be exercised in whole or in
part and the method or methods by which, and the form or forms
(including, without limitation, cash, Shares, other securities,
other Awards or other property, or any combination thereof,
having a Fair Market Value on the exercise date equal to the
applicable exercise price) in which, payment of the exercise
price with respect thereto may be made or deemed to have been
made.
(b) Stock Appreciation Rights. The
Committee is hereby authorized to grant Stock Appreciation
Rights to Eligible Persons subject to the terms of the Plan and
any applicable Award Agreement. A Stock Appreciation Right
granted under the Plan shall confer on the holder thereof a
right to receive upon exercise thereof the excess of
(i) the Fair Market Value of one Share on the date of
exercise (or, if the Committee shall so determine, at any time
during a specified period before or after the date of exercise)
over (ii) the grant price of the Stock Appreciation Right
as specified by the Committee, which price shall not be less
than 100% of the Fair Market Value of one Share on the date of
grant of the Stock Appreciation Right. Subject to the terms of
the Plan and any applicable Award Agreement, the grant price,
term, methods of exercise, dates of exercise, methods of
settlement and any other terms and conditions of any Stock
Appreciation Right shall be as determined by the Committee. The
Committee may impose such conditions or restrictions on the
exercise of any Stock Appreciation Right as it may deem
appropriate.
(c) Restricted Stock and Restricted Stock
Units. The Committee is hereby authorized to
grant Awards of Restricted Stock and Restricted Stock Units to
Eligible Persons with the following terms
64
and conditions and with such additional terms and conditions not
inconsistent with the provisions of the Plan as the Committee
shall determine:
(i) Restrictions. Shares of
Restricted Stock and Restricted Stock Units shall be subject to
such restrictions as the Committee may impose (including,
without limitation, any limitation on the right to vote a Share
of Restricted Stock or the right to receive any dividend or
other right or property with respect thereto), which
restrictions may lapse separately or in combination at such time
or times, in such installments or otherwise, as the Committee
may deem appropriate. The minimum vesting period of such Awards
shall be one year from the date of grant. Notwithstanding the
foregoing, the Committee may permit acceleration of vesting of
such Awards in the event of the Participants death,
disability or retirement or a Change in Control of the Company.
(ii) Issuance and Delivery of
Shares. Any Restricted Stock granted under
the Plan shall be issued at the time such Awards are granted and
may be evidenced in such manner as the Committee may deem
appropriate, including book-entry registration or issuance of a
stock certificate or certificates, which certificate or
certificates shall be held by the Company. Such certificate or
certificates shall be registered in the name of the Participant
and shall bear an appropriate legend referring to the
restrictions applicable to such Restricted Stock. Shares
representing Restricted Stock that is no longer subject to
restrictions shall be delivered to the Participant promptly
after the applicable restrictions lapse or are waived. In the
case of Restricted Stock Units, no Shares shall be issued at the
time such Awards are granted. Upon the lapse or waiver of
restrictions and the restricted period relating to Restricted
Stock Units evidencing the right to receive Shares, such Shares
shall be issued and delivered to the holder of the Restricted
Stock Units.
(iii) Forfeiture. Except as
otherwise determined by the Committee, upon a Participants
termination of employment or resignation or removal as a
Director (in either case, as determined under criteria
established by the Committee) during the applicable restriction
period, all Shares of Restricted Stock and all Restricted Stock
Units held by the Participant at such time shall be forfeited
and reacquired by the Company; provided, however, that the
Committee may, when it finds that a waiver would be in the best
interest of the Company, waive in whole or in part any or all
remaining restrictions with respect to Shares of Restricted
Stock or Restricted Stock Units.
(d) Dividend Equivalents. The
Committee is hereby authorized to grant Dividend Equivalents to
Eligible Persons under which the Participant shall be entitled
to receive payments (in cash, Shares, other securities, other
Awards or other property as determined in the discretion of the
Committee) equivalent to the amount of cash dividends paid by
the Company to holders of Shares with respect to a number of
Shares determined by the Committee. Subject to the terms of the
Plan and any applicable Award Agreement, such Dividend
Equivalents may have such terms and conditions as the Committee
shall determine. Notwithstanding the foregoing, the Committee
may not grant Dividend Equivalents to Eligible Persons in
connection with grants of Options or Stock Appreciation Rights
to such Eligible Persons.
(e) Performance Awards. The
Committee is hereby authorized to grant to Eligible Persons
Performance Awards which are intended to be qualified
performance-based compensation within the meaning of
Section 162(m). A Performance Award granted under the Plan
may be payable in cash or in Shares (including, without
limitation, Restricted Stock). Performance Awards shall, to the
extent required by Section 162(m), be conditioned solely on
the achievement of one or more objective Performance Goals, and
such Performance Goals shall be established by the Committee
within the time period prescribed by, and shall otherwise comply
with the requirements of, Section 162(m). Subject to the
terms of the Plan and any applicable Award Agreement, the
Performance Goals to be achieved during any performance period,
the length of any performance period, the amount of any
Performance Award granted, the amount of any payment or transfer
to be made pursuant to any Performance Award and any other terms
and conditions of any Performance Award shall be determined by
the Committee. The Committee shall also certify in writing that
such Performance
Goals have been met prior to payment of the Performance Awards
to the extent required by Section 162(m).
(f) Stock Awards. The Committee is
hereby authorized to grant to Eligible Persons Shares without
restrictions thereon, as deemed by the Committee to be
consistent with the purpose of the Plan. Subject to the terms of
the Plan and any applicable Award Agreement, such Stock Awards
may have such terms and conditions as the Committee shall
determine.
(g) Other Stock-Based Awards. The
Committee is hereby authorized to grant to Eligible Persons such
other Awards that are denominated or payable in, valued in whole
or in part by reference to, or otherwise based on or related to,
Shares (including, without limitation, securities convertible
into Shares), as are deemed by the Committee to be consistent
with the purpose of the Plan. The Committee shall determine the
terms and conditions of such Awards, subject to the terms of the
Plan and the Award Agreement. Shares, or other securities
delivered pursuant to a purchase right granted under this
Section 6(g), shall be purchased for consideration having a
value equal to at least 100% of the Fair Market Value of such
Shares or other securities on the date the purchase right is
granted. The consideration paid by the Participant may be paid
by such method or methods and in such form or forms (including,
without limitation, cash, Shares, other securities, other Awards
or other property, or any combination thereof), as the Committee
shall determine.
(h) General.
(i) Consideration for
Awards. Awards may be granted for no cash
consideration or for any cash or other consideration as may be
determined by the Committee or required by applicable law.
(ii) Awards May Be Granted Separately or
Together. Awards may, in the discretion of
the Committee, be granted either alone or in addition to, in
tandem with or in substitution for any other Award or any award
granted under any other plan of the Company or any Affiliate.
Awards granted in addition to or in tandem with other Awards or
in addition to or in tandem with awards granted under any other
plan of the Company or any Affiliate may be granted either at
the same time as or at a different time from the grant of such
other Awards or awards.
(iii) Forms of Payment under
Awards. Subject to the terms of the Plan and
of any applicable Award Agreement, payments or transfers to be
made by the Company or an Affiliate upon the grant, exercise or
payment of an Award may be made in such form or forms as the
Committee shall determine (including, without limitation, cash,
Shares, other securities, other Awards or other property, or any
combination thereof), and may be made in a single payment or
transfer, in installments or on a deferred basis, in each case
in accordance with rules and procedures established by the
Committee. Such rules and procedures may include, without
limitation, provisions for the payment or crediting of
reasonable interest on installment or deferred payments or the
grant or crediting of Dividend Equivalents with respect to
installment or deferred payments.
(iv) Term of Awards. The term of
each Award shall be for a period not longer than 10 years
from the date of grant.
(v) Limits on Transfer of
Awards. Except as otherwise provided in this
Section 6(h)(v), no Award (other than a Stock Award) and no
right under any such Award shall be transferable by a
Participant other than by will or by the laws of descent and
distribution. The Committee may establish procedures as it deems
appropriate for a Participant to designate a Person or Persons,
as beneficiary or beneficiaries, to exercise the rights of the
Participant and receive any property distributable with respect
to any Award in the event of the Participants death. The
Committee, in its discretion and subject to such additional
terms and conditions as it determines, may permit a Participant
to transfer a Non-Qualified Stock Option to any family
member (as such term is defined in the General
Instructions to
Form S-8
(or any successor to such Instructions or such Form) under the
Securities Act of 1933, as amended) at any time that such
Participant holds such Option, provided that such transfers may
not be for value (i.e., the transferor may not receive any
consideration therefor) and the family member may not make any
subsequent transfers other than by will or by the laws of
descent
and distribution. Each Award under the Plan or right under any
such Award shall be exercisable during the Participants
lifetime only by the Participant (except as provided herein or
in an Award Agreement or amendment thereto relating to a
Non-Qualified Stock Option) or, if permissible under applicable
law, by the Participants guardian or legal representative.
No Award (other than a Stock Award) or right under any such
Award may be pledged, alienated, attached or otherwise
encumbered, and any purported pledge, alienation, attachment or
encumbrance thereof shall be void and unenforceable against the
Company or any Affiliate.
(vi) Restrictions; Securities Exchange
Listing. All Shares or other securities
delivered under the Plan pursuant to any Award or the exercise
thereof shall be subject to such restrictions as the Committee
may deem advisable under the Plan, applicable federal or state
securities laws and regulatory requirements, and the Committee
may cause appropriate entries to be made or legends to be placed
on the certificates for such Shares or other securities to
reflect such restrictions. If the Shares or other securities are
traded on a securities exchange, the Company shall not be
required to deliver any Shares or other securities covered by an
Award unless and until such Shares or other securities have been
admitted for trading on such securities exchange.
(vii) Section 409A
Provisions. Notwithstanding anything in the
Plan or any Award Agreement to the contrary, to the extent that
any amount or benefit that constitutes deferred
compensation to a Participant under Section 409A of
the Code and applicable guidance thereunder is otherwise payable
or distributable to a Participant under the Plan or any Award
Agreement solely by reason of the occurrence of a Change in
Control or due to the Participants disability or
separation from service (as such term is defined
under Section 409A), such amount or benefit will not be
payable or distributable to the Participant by reason of such
circumstance unless the Committee determines in good faith that
(i) the circumstances giving rise to such Change in
Control, disability or separation from service meet the
definition of a change in ownership or control, disability or
separation from service, as the case may be, in
Section 409A(a)(2)(A) of the Code and applicable proposed
or final regulations, or (ii) the payment or distribution
of such amount or benefit would be exempt from the application
of Section 409A by reason of the short-term deferral
exemption or otherwise. Any payment or distribution that
otherwise would be made to a Participant who is a Specified
Employee (as determined by the Committee in good faith) on
account of separation from service may not be made before the
date which is 6 months after the date of the Specified
Employees separation from service (or if earlier, upon the
Specified Employees death) unless the payment or
distribution is exempt from the application of Section 409A
by reason of the short-term deferral exemption or otherwise.
Section 7. Amendment
and Termination; Corrections.
(a) Amendments to the Plan. The
Board may amend, alter, suspend, discontinue or terminate the
Plan at any time; provided, however, that, notwithstanding any
other provision of the Plan or any Award Agreement, prior
approval of the stockholders of the Company shall be required
for any amendment to the Plan that:
(i) requires stockholder approval under the rules or
regulations of the Securities and Exchange Commission, the New
York Stock Exchange, The NASDAQ Stock Market LLC or any other
securities exchange that are applicable to the Company;
(ii) increases the number of shares authorized under the
Plan as specified in Section 4(a) of the Plan;
(iii) increases the number of shares subject to the
limitations contained in Sections 4(d)(i), (iii) and
(iv) of the Plan or the dollar amount subject to the
limitation contained in Section 4(d)(ii) of the Plan;
(iv) permits repricing of Options or Stock Appreciation
Rights which is prohibited by Section 3(a)(v) of the Plan;
(v) permits the award of Options or Stock Appreciation
Rights at a price less than 100% of the Fair Market Value of a
Share on the date of grant of such Option or Stock Appreciation
Right, contrary to the provisions of Sections 6(a)(i) and
6(b)(ii) of the Plan; and
(vi) would cause Section 162(m) to become unavailable
with respect to the Plan.
(b) Amendments to Awards. Subject
to the provisions of the Plan, the Committee may waive any
conditions of or rights of the Company under any outstanding
Award, prospectively or retroactively. Except as otherwise
provided in the Plan, the Committee may amend, alter, suspend,
discontinue or terminate any outstanding Award, prospectively or
retroactively, but no such action may adversely affect the
rights of the holder of such Award without the consent of the
Participant or holder or beneficiary thereof. The Company
intends that Awards under the Plan shall satisfy the
requirements of Section 409A to avoid any adverse tax
results thereunder, and the Committee shall administer and
interpret the Plan and all Award Agreements in a manner
consistent with that intent. If any provision of the Plan or an
Award Agreement would result in adverse tax consequences under
Section 409A, the Committee may amend that provision (or
take any other action reasonably necessary) to avoid any adverse
tax results and no action taken to comply with Section 409A
shall be deemed to impair or otherwise adversely affect the
rights of any holder of an Award or beneficiary thereof.
(c) Correction of Defects, Omissions and
Inconsistencies. The Committee may correct
any defect, supply any omission or reconcile any inconsistency
in the Plan or in any Award or Award Agreement in the manner and
to the extent it shall deem desirable to implement or maintain
the effectiveness of the Plan.
Section 8. Income
Tax Withholding.
In order to comply with all applicable federal, state, local or
foreign income tax laws or regulations, the Company may take
such action as it deems appropriate to ensure that all
applicable federal, state, local or foreign payroll,
withholding, income or other taxes, which are the sole and
absolute responsibility of a Participant, are withheld or
collected from such Participant. In order to assist a
Participant in paying all or a portion of the applicable taxes
to be withheld or collected upon exercise or receipt of (or the
lapse of restrictions relating to) an Award, the Committee, in
its discretion and subject to such additional terms and
conditions as it may adopt, may permit the Participant to
satisfy such tax obligation by (a) electing to have the
Company withhold a portion of the Shares otherwise to be
delivered upon exercise or receipt of (or the lapse of
restrictions relating to) such Award with a Fair Market Value
equal to the amount of such taxes or (b) delivering to the
Company Shares other than Shares issuable upon exercise or
receipt of (or the lapse of restrictions relating to) such Award
with a Fair Market Value equal to the amount of such taxes. The
election, if any, must be made on or before the date that the
amount of tax to be withheld is determined.
Section 9. General
Provisions.
(a) No Rights to Awards. No
Eligible Person, Participant or other Person shall have any
claim to be granted any Award under the Plan, and there is no
obligation for uniformity of treatment of Eligible Persons,
Participants or holders or beneficiaries of Awards under the
Plan. The terms and conditions of Awards need not be the same
with respect to any Participant or with respect to different
Participants.
(b) Award Agreements. No
Participant shall have rights under an Award granted to such
Participant unless and until an Award Agreement shall have been
duly executed on behalf of the Company and, if requested by the
Company, signed by the Participant, or until such Award
Agreement is delivered and accepted through any electronic
medium in accordance with procedures established by the Company.
(c) No Rights of
Stockholders. Except with respect to
Restricted Stock and Stock Awards, neither a Participant nor the
Participants legal representative shall be, or have any of
the rights and privileges of, a stockholder of the Company with
respect to any Shares issuable upon the exercise or payment of
any Award, in whole or in part, unless and until the Shares have
been issued.
(d) No Limit on Other Compensation Plans or
Arrangements. Nothing contained in the Plan
shall prevent the Company or any Affiliate from adopting or
continuing in effect other or additional compensation plans or
arrangements, and such plans or arrangements may be either
generally applicable or applicable only in specific cases.
(e) No Right to Employment or
Directorship. The grant of an Award shall not
be construed as giving a Participant the right to be retained as
an employee of the Company or any Affiliate, or a Director to be
retained as a Director, nor will it affect in any way the right
of the Company or an Affiliate to terminate a Participants
employment at any time, with or without cause. In addition, the
Company or an Affiliate may at any time dismiss a Participant
from employment free from any liability or any claim under the
Plan or any Award, unless otherwise expressly provided in the
Plan or in any Award Agreement.
(f) Governing Law. The internal
law, and not the law of conflicts, of the State of Delaware,
shall govern all questions concerning the validity, construction
and effect of the Plan or any Award, and any rules and
regulations relating to the Plan or any Award.
(g) Severability. If any provision
of the Plan or any Award is or becomes or is deemed to be
invalid, illegal or unenforceable in any jurisdiction or would
disqualify the Plan or any Award under any law deemed applicable
by the Committee, such provision shall 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
Committee, materially altering the purpose or intent of the Plan
or the Award, such provision shall be stricken as to such
jurisdiction or Award, and the remainder of the Plan or any such
Award shall remain in full force and effect.
(h) No Trust or
Fund Created. Neither the Plan nor any
Award shall create or be construed to create a trust or separate
fund of any kind or a fiduciary relationship between the Company
or any Affiliate and a Participant or any other Person. To the
extent that any Person acquires a right to receive payments from
the Company or any Affiliate pursuant to an Award, such right
shall be no greater than the right of any unsecured general
creditor of the Company or any Affiliate.
(i) No Fractional Shares. No
fractional Shares shall be issued or delivered pursuant to the
Plan or any Award, and the Committee shall determine whether
cash shall be paid in lieu of any fractional Share or whether
such fractional Share or any rights thereto shall be canceled,
terminated or otherwise eliminated.
(j) Headings. Headings are given
to the Sections and subsections of the Plan solely as a
convenience to facilitate reference. Such headings shall not be
deemed in any way material or relevant to the construction or
interpretation of the Plan or any provision thereof.
Section 10. Effective
Date of the Plan; Effect on Prior Plan.
The Plan shall be subject to approval by the stockholders of the
Company at the annual meeting of stockholders of the Company to
be held on May 4, 2011 and the Plan shall be effective as
of the date of such stockholder approval. On and after the date
of stockholder approval of the Plan, no awards shall be granted
under the Companys 2005 Stock Incentive Plan, but all
outstanding awards previously granted under the 2005 Stock
Incentive Plan shall remain outstanding in accordance with the
terms thereof.
Section 11. Term
of the Plan.
The Plan shall terminate at midnight on May 3, 2021, unless
terminated before then by the Board. Awards may be granted under
the Plan until the earlier to occur of termination of the Plan
or the date on which all Shares available for Awards under the
Plan have been purchased or acquired; provided, however, that
Incentive Stock Options may not be granted following the
10-year
anniversary of the Boards adoption of the Plan. As long as
any Awards are outstanding under the Plan, the terms of the Plan
shall govern such Awards.