exv10w1
Exhibit 10.1
CORRECTIONS CORPORATION OF AMERICA
AMENDED AND RESTATED 2008 STOCK INCENTIVE PLAN
SECTION 1. PURPOSE.
This plan shall be known as the Corrections Corporation of America Amended and Restated 2008
Stock Incentive Plan (the Plan). The purpose of the Plan is to promote the interests of
Corrections Corporation of America, a Maryland corporation (the Company), its Subsidiaries and
its stockholders by (i) attracting and retaining key officers, employees, and directors of, and
consultants to, the Company and its Subsidiaries and Affiliates; (ii) motivating such individuals
by means of performance-related incentives to achieve long-range performance goals; (iii) enabling
such individuals to participate in the long-term growth and financial success of the Company; (iv)
encouraging ownership of stock in the Company by such individuals; and (v) linking their
compensation to the long-term interests of the Company and its stockholders. With respect to any
awards granted under the Plan that are intended to comply with the requirements of
performance-based compensation under Section 162(m) of the Code, the Plan shall be interpreted in
a manner consistent with such requirements.
SECTION 2. DEFINITIONS.
As used in the Plan, the following terms shall have the meanings set forth below:
Affiliate shall mean (i) any entity that, directly or indirectly, is controlled by the
Company, (ii) any entity in which the Company has a significant equity interest, (iii) an affiliate
of the Company, as defined in Rule 12b-2 promulgated under Section 12 of the Exchange Act, and (iv)
any entity in which the Company has at least twenty percent (20%) of the combined voting power of
the entitys outstanding voting securities, in each case as designated by the Board as being a
participating employer in the Plan.
Award shall mean any Option, Stock Appreciation Right, Restricted Share Award, Restricted
Share Unit, Performance Award, Other Stock-Based Award or other award granted under the Plan,
whether singly, in combination or in tandem, to a Participant by the Committee (or the Board)
pursuant to such terms, conditions, restrictions and/or limitations, if any, as the Committee (or
the Board) may establish or which are required by applicable legal requirements.
Award Agreement shall mean any written agreement, contract or other instrument or document
evidencing any Award, which may, but need not, be executed or acknowledged by a Participant.
Board shall mean the Board of Directors of the Company.
Change in Control shall mean, unless otherwise defined in the applicable Award Agreement,
any of the following events:
(1) any person or entity, including a group as defined in Section 13(d)(3) of the
Exchange Act, other than the Company or a wholly-owned subsidiary thereof or any employee
benefit plan of the Company or any of its Subsidiaries, becomes the beneficial owner of the
Companys securities having 35% or more of the combined voting power of the then outstanding
securities of the Company that may be cast for the election of directors of the Company
(other than as a result of an issuance of securities initiated by the Company in the
ordinary course of business);
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(2) as the result of, or in connection with, any cash tender or exchange offer, merger
or other business combination or contested election, or any combination of the foregoing
transactions, less than a majority of the combined voting power of the then outstanding
securities of the Company or any successor company or entity entitled to vote generally in
the election of the directors of the Company or such other corporation or entity after such
transaction are held in the aggregate by the holders of the Companys securities entitled to
vote generally in the election of directors of the Company immediately prior to such
transaction;
(3) during any period of two (2) consecutive years, individuals who at the beginning of
any such period constitute the Board cease for any reason to constitute at least a majority
thereof, unless the election, or the nomination for election by the Companys shareholders,
of each Director of the Company first elected during such period was approved by a vote of
at least two-thirds (2/3rds) of the Directors of the Company then still in office who were
(i) Directors of the Company at the beginning of any such period, and (ii) not initially (a)
appointed or elected to office as result of either an actual or threatened election and/or
proxy contest by or on behalf of a Person other than the Board, or (b) designated by a
Person who has entered into an agreement with the Company to effect a transaction described
in (i) or (ii) above or (iv) or (v) below;
(4) a complete liquidation or dissolution of the Company; or
(5) the sale or other disposition of all or substantially all of the assets of the
Company to any Person (other than a transfer to a Subsidiary).
Code shall mean the Internal Revenue Code of 1986, as amended from time to time.
Committee shall mean a committee of the Board composed of not less than two Non-Employee
Directors, at least two of whom shall be (i) a non-employee director for purposes of Exchange Act
Section 16 and Rule 16b-3 thereunder, (ii) an outside director for purposes of Section 162(m) and
the regulations promulgated under the Code, and each of whom shall be independent within the
meaning of the listing standards of the New York Stock Exchange. To the extent that compensation
realized in respect of Awards is intended to be performance based under Section 162(m) of the
Code and the Committee is not comprised solely of individuals who are outside directors within
the meaning of Section 162(m) of the Code, the Committee may from time to time delegate some or all
of its functions under the Plan to a committee or subcommittee composed of members that meet the
relevant requirements.
Consultant shall mean any consultant to the Company or its Subsidiaries or Affiliates.
Covered Officer shall mean at any date (i) any individual who, with respect to the previous
taxable year of the Company, was a covered employee of the Company within the meaning of Section
162(m); provided, however, that the term Covered Officer shall not include any such individual
who is designated by the Committee, in its discretion, at the time of any Award or at any
subsequent time, as reasonably expected not to be such a covered employee with respect to the
current taxable year of the Company or the taxable year of the Company in which the applicable
Award will be paid or vested, and (ii) any individual who is designated by the Committee, in its
discretion, at the time of any Award or at any subsequent time, as reasonably expected to be such a
covered employee with respect to the current
taxable year of the Company or with respect to the taxable year of the Company in which any
applicable Award will be paid or vested.
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Director shall mean a member of the Board.
Disability shall mean, unless otherwise defined in the applicable Award Agreement, a
disability that would qualify as a total and permanent disability under the Companys then current
long-term disability plan.
Employee shall mean a current or prospective officer or employee of the Company or of any
Subsidiary or Affiliate.
Exchange Act shall mean the Securities Exchange Act of 1934, as amended from time to time.
Fair Market Value with respect to the Shares, shall mean, for purposes of a grant of an
Award as of any date, (i) the closing sales price of the Shares on the New York Stock Exchange, or
any other such exchange or market as is the principal trading market for the Shares, on such date,
or in the absence of reported sales on such date, the closing sales price on the immediately
preceding date on which sales were reported or (ii) in the event there is no public market for the
Shares on such date, the fair market value as determined, in good faith and by the reasonable
application of a reasonable valuation method, by the Board or Committee in its sole discretion, and
for purposes of a sale of a Share as of any date, the actual sales price on that date.
Incentive Stock Option shall mean an option to purchase Shares from the Company that is
granted under Section 6 of the Plan and that is intended to meet the requirements of
Section 422 of the Code or any successor provision thereto.
Non-Qualified Stock Option shall mean an option to purchase Shares from the Company that is
granted under Sections 6 or 10 of the Plan and is not intended to be an Incentive
Stock Option.
Non-Employee Director shall mean a member of the Board who is not an officer or employee of
the Company or any Subsidiary or Affiliate.
Option shall mean an Incentive Stock Option or a Non-Qualified Stock Option.
Option Price shall mean the purchase price payable to purchase one Share upon the exercise
of an Option.
Other Stock-Based Award shall mean any Award granted under Sections 9 or 10
of the Plan.
Participant shall mean any Employee, Director, Consultant or other person who receives an
Award under the Plan.
Performance Award shall mean any Award granted under Section 8 of the Plan.
Person shall mean any individual, corporation, partnership, limited liability company,
association, joint-stock company, trust, unincorporated organization, government or political
subdivision thereof or other entity.
Restricted Share shall mean any Share granted under Sections 7 or 10 of the
Plan.
Restricted Share Unit shall mean any unit granted under Sections 7 or 10 of
the Plan.
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Retirement shall mean a Participants termination of employment in accordance with the
provisions of the Corrections Corporation of America 401(k) Savings and Retirement Plan on or after
such Participants Normal Retirement Date, as defined in such plan.
SEC shall mean the Securities and Exchange Commission or any successor thereto.
Section 16 shall mean Section 16 of the Exchange Act and the rules promulgated thereunder
and any successor provision thereto as in effect from time to time.
Section 162(m) shall mean Section 162(m) of the Code and the regulations promulgated
thereunder and any successor provision thereto as in effect from time to time.
Shares shall mean shares of common stock, $0.01 par value per share, of the Company.
Stock Appreciation Right or SAR shall mean a stock appreciation right granted under
Sections 6 or 10 of the Plan that entitles the holder to receive, with respect to
each Share encompassed by the exercise of such SAR, the amount determined by the Committee and
specified in an Award Agreement. In the absence of such a determination, the holder shall be
entitled to receive, with respect to each Share encompassed by the exercise of such SAR, the excess
of the Fair Market Value on the date of exercise over the Fair Market Value on the date of grant.
Subsidiary shall mean any Person (other than the Company) of which a majority of its voting
power or its equity securities or equity interest is owned directly or indirectly by the Company.
Substitute Awards shall mean Awards granted solely in assumption of, or in substitution for,
outstanding awards previously granted by a company acquired by the Company or with which the
Company combines.
SECTION 3. ADMINISTRATION.
3.1 Authority of Committee. The Plan shall be administered by the Committee, which shall be
appointed by and serve at the pleasure of the Board; provided, however, with respect to Awards to
Non-Employee Directors, all references in the Plan to the Committee shall be deemed to be
references to the Board. Subject to the terms of the Plan and applicable law, and in addition to
other express powers and authorizations conferred on the Committee by the Plan, the Committee shall
have full power and authority in its discretion to: (i) designate Participants; (ii) determine the
type or types of Awards to be granted to a Participant; (iii) determine the number of Shares to be
covered by, or with respect to which payments, rights or other matters are to be calculated in
connection with Awards; (iv) determine the timing, terms, and conditions of any Award; (v)
accelerate the time at which all or any part of an Award may be settled or exercised; (vi)
determine whether, to what extent, and under what circumstances, Awards may be settled or exercised
in cash, Shares, other securities, other Awards or other property, or canceled, forfeited or
suspended and the method or methods by which Awards may be settled, exercised, canceled, forfeited
or suspended; (vii) 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
shall be deferred either automatically or at the election of the holder thereof or of the
Committee; (viii) interpret and administer the Plan and any instrument or agreement relating to, or
Award made under, the Plan; (ix) except to the extent prohibited by Section 6.2 or any
other provision of the Plan, amend or modify the terms of any Award at or after grant with or
without the consent of the holder of the Award; (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; and (xi) make any other determination and take any other action that the Committee
deems necessary or desirable for the administration of the Plan, subject to the exclusive authority
of the Board under Section 14 hereunder to amend or terminate the Plan. The exercise of an
Option or
receipt of an Award shall be effective only if an Award Agreement shall have been duly
executed and delivered on behalf of the Company following the grant of the Option or other Award.
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3.2 Committee Discretion Binding. Unless otherwise expressly provided in the Plan, all
designations, determinations, interpretations, and other decisions under or with respect to the
Plan or any Award shall be within the sole discretion of the Committee, may be made at any time and
shall be final, conclusive, and binding upon all Persons, including the Company, any Subsidiary or
Affiliate, any Participant and any holder or beneficiary of any Award.
3.3 Delegation. Subject to the terms of the Plan, the Committees charter and applicable law,
the Committee may delegate to one or more officers or managers of the Company or of any Subsidiary
or Affiliate, or to a Committee of such officers or managers, the authority, subject to such terms
and limitations as the Committee shall determine, to grant Awards to or to cancel, modify or waive
rights with respect to, or to alter, discontinue, suspend or terminate Awards held by Participants
who are not officers or directors of the Company for purposes of Section 16 or who are otherwise
not subject to such Section.
SECTION 4. SHARES AVAILABLE FOR AWARDS.
4.1 Shares Available. Subject to the provisions of Section 4.2 hereof, the stock to
be subject to Awards under the Plan shall be the Shares of the Company and the maximum aggregate
number of Shares with respect to which Awards may be granted under the Plan shall be 18,000,000,
which includes 6,000,000 Shares initially authorized under the 2008 Corrections Corporation of
America 2008 Stock Incentive Plan, adjusted for a two for one stock split in July 2007, plus an
additional 12,000,000 Shares authorized pursuant to this amendment and restatement. Each Share
subject to an Option or SAR shall reduce the aggregate number of Shares with respect to which
Awards may be granted by one Share. For Awards granted prior to the date on which the Stockholders
of the Company approve this amendment and restatement, each Share issued pursuant to a Restricted
Share Award, Restricted Share Unit Award, Performance Award or Other Stock-Based Award (including
any dividends or dividend equivalents payable in Shares with respect to such Awards prior to the
vesting of such Awards), if the amounts payable thereunder will be determined by reference to the
full value of a Share, shall reduce the aggregate number of Shares with respect to which Awards may
be granted by three Shares. For Awards granted on or after the date on which the Stockholders of
the Company approve this amendment and restatement, each Share issued pursuant to a Restricted
Share Award, Restricted Share Unit Award, Performance Award or Other Stock-Based Award (including
any dividends or dividend equivalents payable in Shares with respect to such Awards prior to the
vesting of such Awards), if the amounts payable thereunder will be determined by reference to the
full value of a Share, shall reduce the aggregate number of Shares with respect to which Awards may
be granted by 2.25 Shares. Notwithstanding the foregoing and subject to adjustment as provided in
Section 4.2 hereof, no Participant may receive Options or SARs under the Plan in any
calendar year that, taken together, relate to more than 300,000 Shares. If, after the effective
date of the Plan, any Shares covered by an Award granted under this Plan, or to which such an Award
relates, are forfeited, or if such an Award otherwise terminates, expires unexercised, is settled
in cash or is canceled, then the Shares covered by such Award, or to which such Award relates, or
the number of Shares otherwise counted against the aggregate number of Shares with respect to which
Awards may be granted, to the extent of any such forfeiture, termination, expiration, cash
settlement or cancellation, shall again become Shares with respect to which Awards may be granted
in accordance with the formula described above. Notwithstanding the foregoing and anything
contained herein to the contrary, (i) the gross number of Shares issued pursuant to an Award that
is not later forfeited, terminated, expired, settled in cash or canceled shall be deducted from the
total number of Shares available for grant under this Plan, (ii) any SARs to be settled in Shares
shall be counted in full against the number of Shares available for issuance under the Plan,
regardless of the number of Shares issued upon the settlement of the SARs, and (iii) Shares that
are canceled, tendered or withheld in payment of all or part of the Option Price or exercise price
of an Award or in satisfaction of withholding tax obligations, and Shares that are
reacquired with cash tendered in payment of the Option Price or exercise price of an Award, shall
not be included in or added to the number of Shares available for grant under the Plan, in each
case in accordance with the formula described above.
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4.2 Adjustments. In the event that any unusual or non-recurring transactions, including an
unusual or non-recurring dividend or other distribution (whether in the form of an extraordinary
cash dividend, dividend of 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, then the Committee shall in an equitable and proportionate
manner (and, as applicable, in such equitable and proportionate manner as is consistent with
Sections 422 and 409A of the Code and the regulations thereunder and with Section 162(m) of the
Code) either: (i) adjust any or all of (1) the aggregate number of Shares or other securities of
the Company (or number and kind of other securities or property) with respect to which Awards may
be granted under the Plan; (2) the number of Shares or other securities of the Company (or number
and kind of other securities or property) subject to outstanding Awards under the Plan, provided
that the number of Shares subject to any Award shall always be a whole number; (3) the grant or
exercise price with respect to any Award under the Plan; and (4) the limits on the number of Shares
or Awards that may be granted to Participants under the Plan in any calendar year; (ii) provide for
an equivalent award in respect of securities of the surviving entity of any merger, consolidation
or other transaction or event having a similar effect; or (iii) make provision for a cash payment
to the holder of an outstanding Award.
4.3 Substitute Awards. Any Shares issued by the Company as Substitute Awards in connection
with the assumption or substitution of outstanding grants from any acquired corporation shall not
reduce the Shares available for Awards under the Plan.
4.4 Sources of Shares Deliverable Under Awards. Any Shares delivered pursuant to an Award may
consist, in whole or in part, of authorized and unissued Shares or of issued Shares which have been
reacquired by the Company.
SECTION 5. ELIGIBILITY.
Any Employee, Director or Consultant shall be eligible to be designated a Participant;
provided, however, that Non-Employee Directors shall only be eligible to receive Awards granted
consistent with Section 10.
SECTION 6. STOCK OPTIONS AND STOCK APPRECIATION RIGHTS.
6.1 Grant. Subject to the provisions of the Plan including, without limitation, Section
3.3 above and other applicable legal requirements, the Committee shall have sole and complete
authority to determine the Participants to whom Options and SARs shall be granted, the number of
Shares subject to each Award, the exercise price and the conditions and limitations applicable to
the exercise of each Option and SAR. An Option may be granted with or without a related SAR. A
SAR may be granted with or without a related Option. The grant of an Option or SAR shall occur
when the Committee by resolution, written consent or other appropriate action determines to grant
such Option or SAR for a particular number of Shares to a particular Participant at a particular
Option Price or Grant Price, as the case may be, or such later date as the Committee shall specify
in such resolution, written consent or other appropriate action. The Committee shall have the
authority to grant Incentive Stock Options, and to grant Non-Qualified Stock Options. In the case
of Incentive Stock Options, the terms and conditions of such grants shall be subject to and comply
with Section 422 of the Code, as from time to time amended, and any regulations implementing such
statute. A person who has been granted an Option or SAR under this Plan may be granted additional Options or
SARs under the Plan if the Committee shall so determine; provided, however, that to the extent the
aggregate Fair Market Value (determined at the time the Incentive Stock Option is granted) of the
Shares with respect to which all Incentive Stock Options are exercisable for the first time by an
Employee during any calendar year (under all plans described in of Section 422(d) of the Code of
the Employees employer corporation and its parent and Subsidiaries) exceeds $100,000, such Options
shall be treated as Non-Qualified Stock Options.
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6.2 Price. The Committee in its sole discretion shall establish the Option Price at the time
each Option is granted. Except in the case of Substitute Awards, the Option Price of an Option may
not be less than one hundred percent (100%) of the Fair Market Value of the Shares with respect to
which the Option is granted on the date of grant of such Option. Except with respect to Substitute
Awards, SARs may not be granted at a price less than the Fair Market Value of a Share on the date
of grant. Notwithstanding the foregoing and except as permitted by the provisions of Section
4.2 and Section 14 hereof, the Committee shall not have the power to (i) amend the
terms of previously granted Options or SARs to reduce the Option Price of such Options or the grant
price of such SARs, or (ii) cancel such Options or SARS and grant substitute Options or SARs with a
lower Option Price than the canceled Options or a lower grant price than the canceled SARs.
6.3 Term. Subject to the Committees authority under Section 3.1 and the provisions
of Section 6.6, each Option and SAR and all rights and obligations thereunder shall expire
on the date determined by the Committee and specified in the Award Agreement. The Committee shall
be under no duty to provide terms of like duration for Options or SARs granted under the Plan.
Notwithstanding the foregoing and except as provided in Section 6.4(a) hereof, no Option or
SAR shall be exercisable after the expiration of ten (10) years from the date such Option or SAR
was granted.
6.4 Exercise.
(a) Each Option and SAR shall be exercisable at such times and subject to such terms and
conditions as the Committee may, in its sole discretion, specify in the applicable Award Agreement
or thereafter. The Committee shall have full and complete authority to determine, subject to
Section 6.6 herein, whether an Option or SAR will be exercisable in full at any time or
from time to time during the term of the Option or SAR, or to provide for the exercise thereof in
such installments, upon the occurrence of such events and at such times during the term of the
Option or SAR as the Committee may determine. The Committee may provide, at or after grant, that
the period of time over which an Option, other than an Incentive Stock Option, or SAR may be
exercised shall be automatically extended if on the scheduled expiration of such Award, the
Participants exercise of such Award would violate applicable securities law; provided, however,
that during the extended exercise period the Option or SAR may only be exercised to the extent such
Award was exercisable in accordance with its terms immediately prior to such scheduled expiration
date; provided further, however, that such extended exercise period shall end not later than thirty
(30) days after the exercise of such Option or SAR first would no longer violate such laws.
(b) The Committee may impose such conditions with respect to the exercise of Options or
SARs, including without limitation, any relating to the application of federal, state or
foreign securities laws or the Code, as it may deem necessary or advisable. The exercise of
any Option granted hereunder shall be effective only at such time as the sale of Shares
pursuant to such exercise will not violate any state or federal securities or other laws.
(c) An Option or SAR may be exercised in whole or in part at any time, with respect to
whole Shares only, within the period permitted thereunder for the exercise thereof, and
shall be exercised by written notice of intent to exercise the Option or SAR, delivered to
the Company at its
principal office, and payment in full to the Company at the direction of the Committee of
the amount of the Option Price for the number of Shares with respect to which the Option is
then being exercised.
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(d) Payment of the Option Price shall be made (i) in cash or cash equivalents, (ii) at
the discretion of the Committee, by transfer, either actually or by attestation, to the
Company of unencumbered Shares previously acquired by the Participant valued at the Fair
Market Value of such Shares on the date of exercise (or next succeeding trading date, if the
date of exercise is not a trading date), together with any applicable withholding taxes,
such transfer to be upon such terms and conditions as determined by the Committee, (iii) by
a combination of such cash (or cash equivalents) and such Shares, or (iv) at the discretion
of the Committee and subject to applicable securities laws, by (A) delivering a notice of
exercise of the Option and simultaneously selling the Shares thereby acquired, pursuant to a
brokerage or similar agreement approved in advance by proper officers of the Company, using
the proceeds of such sale as payment of the Option Price, together with any applicable
withholding taxes or (B) withholding Shares otherwise deliverable to the Participant
pursuant to the Option having an aggregate Fair Market Value at the time of exercise equal
to the total Option Price together with any applicable withholding taxes, subject to
Section 15.5. Until the optionee has been issued the Shares subject to such
exercise, he or she shall possess no rights as a stockholder with respect to such Shares.
(e) At the Committees discretion, the amount payable as a result of the exercise of an
SAR may be settled in cash, Shares or a combination of cash and Shares. A fractional Share
shall not be deliverable upon the exercise of a SAR but a cash payment will be made in lieu
thereof.
6.5 Ten Percent Stock Rule. Notwithstanding any other provisions in the Plan, if at the time
an Option is otherwise to be granted pursuant to the Plan, the optionee or rights holder owns
directly or indirectly (within the meaning of Section 424(d) of the Code) Shares of the Company
possessing more than ten percent (10%) of the total combined voting power of all classes of Stock
of the Company or its parent or Subsidiary or Affiliate corporations (within the meaning of Section
422(b)(6) of the Code), then any Incentive Stock Option to be granted to such optionee or rights
holder pursuant to the Plan shall satisfy the requirement of Section 422(c)(5) of the Code, and the
Option Price shall be not less than one hundred ten percent (110%) of the Fair Market Value of the
Shares of the Company, and such Option by its terms shall not be exercisable after the expiration
of five (5) years from the date such Option is granted.
6.6 Transferability of Options. Except as provided in this Section 6.6, no Options or
SARs shall be (i) transferable otherwise than by will or the laws of descent and distribution, or
(ii) exercisable during the lifetime of the Participant by anyone other than the Participant.
Non-Qualified Stock Options granted to a Participant may be transferred by such Participant to a
permitted transferee (as defined below), provided that (i) such Non-Qualified Stock Options shall
be fully vested; (ii) there is no consideration for such transfer (other than receipt by the
Participant of interest in an entity that is a permitted transferee); (iii) the participant (or
such Participants estate or representative) shall remain obligated to satisfy all income or other
tax withholding obligations associated with the exercise of such Non-Qualified Stock Options; (iv)
the Participant shall notify the Company in writing prior to such transfer and disclose to the
Company the name and address of the permitted transferee and the relationship of the permitted
transferee to the Participant; and (v) such transfer shall be effected pursuant to transfer
documents in a form approved by the Company. A permitted transferee may not further assign or
transfer any such Non-Qualified Stock Options otherwise than by will or the laws of descent and
distribution. Following the transfer of Non-Qualified Stock Options to a permitted transferee,
such Nonqualified Options shall continue to be subject to the same terms and conditions that
applied to them prior to their transfer by the Participant, except that they shall be exercisable
by the permitted transferee to whom such transfer was made rather than by the transferring
Participant. For the purposes of the Plan,
the term permitted transferee means, with respect to a Participant, (i) any child, stepchild,
grandchild, parent, stepparent, grandparent, spouse, sibling, mother-in-law, father-in-law,
son-in-law, daughter-in-law, brother-in-law or sister-in-law of the Participant, including adoptive
relationships, and (ii) a trust, partnership or other entity in which the Participant or the
persons described in clause (i) above have more than fifty percent of the beneficial interest.
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SECTION 7. RESTRICTED SHARES AND RESTRICTED SHARE UNITS.
7.1 Grant.
(a) Subject to the provisions of the Plan and other applicable legal requirements, the
Committee shall have sole and complete authority to determine the Participants to whom
Restricted Shares and Restricted Share Units shall be granted, the number of Restricted
Shares and/or the number of Restricted Share Units to be granted to each Participant, the
duration of the period during which, and the conditions under which, the Restricted Shares
and Restricted Share Units may be forfeited to the Company, and the other terms and
conditions of such Awards; provided, however, that no grant of Restricted Shares or
Restricted Share Unites shall vest in full prior to the third anniversary of the date of
such grant. The Restricted Share and Restricted Share Unit Awards shall be evidenced by
Award Agreements in such form as the Committee shall from time to time approve, which
agreements shall comply with and be subject to the terms and conditions provided hereunder
and any additional terms and conditions established by the Committee that are consistent
with the terms of the Plan.
(b) Each Restricted Share and Restricted Share Unit Award made under the Plan shall be
for such number of Shares as shall be determined by the Committee and set forth in the Award
Agreement containing the terms of such Restricted Share or Restricted Share Unit Award.
Such agreement shall set forth a period of time during which the grantee must remain in the
continuous employment (or other service-providing capacity) of the Company in order for the
forfeiture and transfer restrictions to lapse. If the Committee so determines, the
restrictions may lapse during such restricted period in installments with respect to
specified portions of the Shares covered by the Restricted Share or Restricted Share Unit
Award. The Award Agreement may also, in the discretion of the Committee, set forth
performance or other conditions under which restrictions on the Shares may lapse or that
will subject the Shares to forfeiture and transfer restrictions, including by reference to
those performance goals enumerated in Section 11 hereof. The Committee may, at its
discretion, waive all or any part of the restrictions applicable to any or all outstanding
Restricted Share and Restricted Share Unit Awards.
7.2 Delivery of Shares and Transfer Restrictions.
(a) At the time of a Restricted Share Award, a certificate representing the number of
Shares awarded thereunder shall be registered in the name of the grantee. Such certificate
shall be held by the Company or any custodian appointed by the Company for the account of
the grantee subject to the terms and conditions of the Plan, and shall bear such a legend
setting forth the restrictions imposed thereon as the Committee, in its discretion, may
determine. The foregoing to the contrary notwithstanding, the Committee may, in its
discretion, provide that a Participants ownership of Restricted Shares prior to the lapse
of any transfer restrictions or any other applicable restrictions shall, in lieu of such
certificates, be evidenced by a book entry (i.e., a computerized or manual entry) in the
records of the Company or its designated agent in the name of the Participant who has
received such Award, and confirmation and account statements sent to the Participant with
respect to such book-entry Shares may bear the restrictive legend referenced in the
preceding sentence. Such records of the Company or such agent shall, absent manifest error,
be binding on all
Participants who receive Restricted Share Awards evidenced in such manner. The holding of
Restricted Shares by the Company or such an escrow holder, or the use of book entries to
evidence the ownership of Restricted Shares, in accordance with this Section 7.2(a),
shall not affect the rights of Participants as owners of the Restricted Shares awarded to
them, nor affect the restrictions applicable to such shares under the Award Agreement or the
Plan, including the transfer restrictions.
9
(b) Unless otherwise provided in the applicable Award Agreement, the grantee shall have
all rights of a stockholder with respect to the Restricted Shares, including the right to
receive dividends and the right to vote such Shares, subject to the following restrictions:
(i) the grantee shall not be entitled to delivery of the stock certificate until the
expiration of the restricted period and the fulfillment of any other restrictive conditions
set forth in the Award Agreement with respect to such Shares; (ii) none of the Shares may be
sold, assigned, transferred, pledged, hypothecated or otherwise encumbered or disposed of
during such restricted period or until after the fulfillment of any such other restrictive
conditions; and (iii) except as otherwise determined by the Committee at or after grant, all
of the Shares shall be forfeited and all rights of the grantee to such Shares shall
terminate, without further obligation on the part of the Company, unless the grantee remains
in the continuous employment of the Company for the entire restricted period in relation to
which such Shares were granted and unless any other restrictive conditions relating to the
Restricted Share Award are met. Restricted Share Units shall be subject to similar transfer
restrictions as Restricted Share Awards, except that no Shares are actually awarded to a
Participant who is granted Restricted Share Units on the date of grant, and such Participant
shall have no rights of a stockholder with respect to such Restricted Share Units until the
restrictions set forth in the applicable Award Agreement have lapsed. Unless otherwise
provided in the applicable Award Agreement, any Shares, any other securities of the Company
and any other property (except for cash dividends) distributed with respect to the Shares
subject to Restricted Share Awards shall be subject to the same restrictions, terms and
conditions as such restricted Shares.
7.3 Termination of Restrictions. At the end of the restricted period and provided that any
other restrictive conditions of the Restricted Share Award are met, or at such earlier time as
otherwise determined by the Committee, all restrictions set forth in the Award Agreement relating
to the Restricted Share Award or in the Plan shall lapse as to the restricted Shares subject
thereto, and a stock certificate for the appropriate number of Shares, free of the restrictions and
restricted stock legend, shall be delivered to the Participant or the Participants beneficiary or
estate, as the case may be Restricted Share Units shall be subject to similar transfer restrictions
as Restricted Share Awards, except that no Shares are actually awarded to a Participant who is
granted Restricted Share Units on the date of grant, and such Participant shall have no rights of a
stockholder with respect to such Restricted Share Units until the restrictions set forth in the
applicable Award Agreement have lapsed).
7.4 Payment of Restricted Share Units. Each Restricted Share Unit shall have a value equal to
the Fair Market Value of a Share. Restricted Share Units shall be paid in cash, Shares, other
securities or other property, as determined in the sole discretion of the Committee, upon the lapse
of the restrictions applicable thereto, or otherwise in accordance with the applicable Award
Agreement. The applicable Award Agreement will specify whether a Participant will be entitled to
receive dividend equivalent rights in respect of Restricted Stock Units at the time of any payment
of dividends to stockholders on Shares. If the applicable Award Agreement specifies that a
Participant will be entitled to receive dividend equivalent rights, (i) the amount of any such
dividend equivalent right shall equal the amount that would be payable to the Participant as a
stockholder in respect of a number of Shares equal to the number of Restricted Stock Units then
credited to the Participant, (ii) any such dividend equivalent right shall be paid in accordance
with the Companys payment practices as may be established from time to time and as of the date on
which such dividend would have been
10
payable in respect of outstanding Shares (and in accordance with Section 409A of the Code with regard to Awards subject thereto); provided, that no
dividend equivalents shall be paid on unvested Restricted Share Units until such Restricted Share
Units have vested. Except as otherwise determined by the Committee at or after grant, Restricted
Share Units may not be sold, assigned, transferred, pledged, hypothecated or otherwise encumbered
or disposed of, and all Restricted Share Units and all rights of the grantee to such Restricted
Share Units shall terminate, without further obligation on the part of the Company, unless the
grantee remains in continuous employment of the Company for the entire restricted period in
relation to which such Restricted Share Units were granted and unless any other restrictive
conditions relating to the Restricted Share Unit Award are met.
SECTION 8. PERFORMANCE AWARDS.
8.1 Grant. The Committee shall have sole and complete authority to determine the Participants
who shall receive a Performance Award, which shall consist of a right that is (i) denominated in
cash or Shares (including but not limited to Restricted Shares and Restricted Share Units), (ii)
valued, as determined by the Committee, in accordance with the achievement of such performance
goals during such performance periods as the Committee shall establish, and (iii) payable at such
time and in such form as the Committee shall determine.
8.2 Terms and Conditions. Subject to the terms of the Plan and any applicable Award
Agreement, the Committee shall determine the performance goals to be achieved during any
performance period, the length of any performance period, the amount of any Performance Award and
the amount and kind of any payment or transfer to be made pursuant to any Performance Award, and
may amend specific provisions of the Performance Award; provided, however, that such amendment may
not adversely affect existing Performance Awards made within a performance period commencing prior
to implementation of the amendment. No Performance Award shall have a term in excess of ten (10)
years.
8.3 Payment of Performance Awards. Performance Awards may be paid in a lump sum or in
installments following the close of the performance period or, in accordance with the procedures
established by the Committee, on a deferred basis. Termination of employment prior to the end of
any performance period, other than for reasons of death or Disability, will result in the
forfeiture of the Performance Award, and no payments will be made. Except as otherwise provided in
Section 11 hereof, the Committee may, in its discretion, waive any performance goals and/or
other terms and conditions relating to a Performance Award. A Participants rights to any
Performance Award may not be sold, assigned, transferred, pledged, hypothecated or otherwise
encumbered or disposed of in any manner, except by will or the laws of descent and distribution,
and/or except as the Committee may determine at or after grant.
SECTION 9. OTHER STOCK-BASED AWARDS.
The Committee shall have the authority to determine the Participants who shall receive an
Other Stock-Based Award, which shall consist of any right that is (i) not an Award described in
Sections 6 or 7 above and (ii) an Award of Shares or an Award 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 deemed by the Committee to
be consistent with the purposes of the Plan. Subject to the terms of the Plan and any applicable
Award Agreement, the Committee shall determine the terms and conditions of any such Other
Stock-Based Award. No Other Stock-Based Award shall have a term in excess of ten (10) years.
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SECTION 10. NON-EMPLOYEE DIRECTOR AWARDS.
10.1 The Board may provide that all or a portion of a Non-Employee Directors annual retainer,
meeting fees and/or other awards or compensation as determined by the Board, be payable (either
automatically or at the election of a Non-Employee Director) in the form of Non-Qualified Stock
Options, Restricted Shares, Restricted Share Units and/or Other Stock-Based Awards, including
unrestricted Shares. The Board shall determine the terms and conditions of any such Awards,
including the terms and conditions which shall apply upon a termination of the Non-Employee
Directors service as a member of the Board, and shall have full power and authority in its
discretion to administer such Awards, subject to the terms of the Plan and applicable law.
10.2 Subject to applicable legal requirements, the Board may also grant Awards to Non-Employee
Directors pursuant to the terms of the Plan, including any Award described in Sections 6,
7 and 9 above.
SECTION 11. PROVISIONS APPLICABLE TO COVERED OFFICERS AND PERFORMANCE AWARDS.
11.1 Notwithstanding anything in the Plan to the contrary, unless the Committee determines
that a Performance Award to be granted to a Covered Officer should not qualify as
performance-based compensation for purposes of Section 162(m), Performance Awards granted to
Covered Officers shall be subject to the terms and provisions of this Section 11.
Accordingly, unless otherwise determined by the Committee, if any provision of the Plan or any
Award Agreement relating to such an Award does not comply or is inconsistent with Section 162(m),
such provision shall be construed or deemed amended to the extent necessary to conform to such
requirements, and no provision shall be deemed to confer upon the Committee discretion to increase
the amount of compensation otherwise payable to a Covered Officer in connection with any such Award
upon the attainment of the performance criteria established by the Committee.
11.2 The Committee may grant Performance Awards to Covered Officers based solely upon the
attainment of performance targets related to one or more performance goals selected by the
Committee from among the goals specified below. For the purposes of this Section 11,
performance goals shall be limited to one or more of the following Company, Subsidiary, operating
unit, business segment or division financial performance measures:
|
(a) |
|
earnings before interest, taxes, depreciation and/or
amortization; |
|
|
(b) |
|
operating income or profit; |
|
|
(c) |
|
operating efficiencies; |
|
|
(d) |
|
return on equity, assets, capital, capital employed or
investment; |
|
|
(e) |
|
net income; |
|
|
(f) |
|
earnings per share; |
|
|
(g) |
|
utilization; |
|
|
(h) |
|
net investment income; |
|
|
(i) |
|
gross profit; |
|
|
(j) |
|
loan loss ratios; |
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|
(k) |
|
stock price or total stockholder return; |
|
|
(l) |
|
net asset growth; |
|
|
(m) |
|
debt reduction; |
|
|
(n) |
|
strategic business objectives, consisting of one or more
objectives based on meeting specified cost targets, business expansion goals and
goals relating to acquisitions or divestitures; or |
|
|
(o) |
|
any combination thereof. |
Each goal may be expressed on an absolute and/or relative basis, may be based on or otherwise
employ comparisons based on internal targets, the past performance of the Company or any
Subsidiary, operating unit, business segment or division of the Company and/or the past or current
performance of other companies, and in the case of earnings-based measures, may use or employ
comparisons relating to capital, stockholders equity and/or Shares outstanding, or to assets or
net assets. Subject to Section 11.4, the Committee may appropriately adjust any evaluation
of performance under criteria set forth in this Section 11.2 to exclude any of the
following events that occurs during a performance period: (i) asset impairments or write-downs,
(ii) litigation or claim judgments or settlements, (iii) the effect of changes in tax law,
accounting principles or other such laws or provisions affecting reported results, (iv) accruals
for reorganization and restructuring programs, (v) any extraordinary non-recurring items as
described in Financial Accounting Standard 144 and/or in managements discussion and analysis of
financial condition and results of operations appearing in the Companys annual report to
stockholders for the applicable year, (vi) the effect of adverse governmental or regulatory action,
or delays in governmental or regulatory action; provided, that the Committee commits to make any
such adjustments within the 90 day period set forth in Section 11.4 hereof, (vii) any event
either not directly related to the operations of the Company or not within the reasonable control
of the Companys management, or (viii) any other similar item selected by the Committee in its sole
discretion.
11.3 With respect to any Covered Officer, the maximum annual number of Shares in respect of
which all Performance Awards may be granted under Section 8 of the Plan is 300,000 and the
maximum amount of all Performance Awards that are settled in cash and that may be granted under
Section 8 of the Plan in any year is $3,500,000.
11.4 To the extent necessary to comply with Section 162(m), with respect to grants of
Performance Awards, no later than 90 days following the commencement of each performance period (or
such other time as may be required or permitted by Section 162(m) of the Code), the Committee
shall, in writing, (1) select the performance goal or goals applicable to the performance period,
(2) establish the various targets and bonus amounts which may be earned for such performance
period, and (3) specify the relationship between performance goals and targets and the amounts to
be earned by each Covered Officer for such performance period. Following the completion of each
performance period, the Committee shall certify in writing whether the applicable performance
targets have been achieved and the amounts, if any, payable to Covered Officers for such
performance period. In determining the amount earned by a Covered Officer for a given performance
period, subject to any applicable Award Agreement, the Committee shall have the right to reduce
(but not increase) the amount payable at a given level of performance to take into account
additional factors that the Committee may deem relevant in its sole discretion to the assessment of
individual or corporate performance for the performance period.
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SECTION 12. TERMINATION OF EMPLOYMENT.
The Committee shall have the full power and authority to determine the terms and conditions
that shall apply to any Award upon a termination of employment with the Company, its
Subsidiaries and Affiliates, including a termination by the Company, by a Participant
voluntarily, or by reason of death, Disability or Retirement, and may provide such terms and
conditions in the Award Agreement or in such rules and regulations as it may prescribe.
SECTION 13. CHANGE IN CONTROL.
The Committee may specify in the applicable Award Agreement at or after grant, or otherwise by
resolution prior to a Change in Control, that all or a portion of the outstanding Awards shall
vest, become immediately exercisable or payable and have all restrictions lifted upon a Change
in Control.
SECTION 14. AMENDMENT AND TERMINATION.
14.1 Amendments to the Plan. The Board may amend, alter, suspend, discontinue or terminate
the Plan or any portion thereof at any time; provided that no such amendment, alteration,
suspension, discontinuation or termination shall be made without stockholder approval if (a) such
approval is necessary to comply with any tax or regulatory requirement for which or with which the
Board deems it necessary or desirable to comply or (b) if such amendment, alteration, suspension,
discontinuation or termination constitutes a material revision to the Plan. For the purpose of the
foregoing, a material revision shall be deemed to include (but shall not be limited to): (i) a
material increase in the number of shares subject to the Plan under Section 4; (ii) an expansion of
the types of Awards under the Plan; (iii) a material expansion of the class of employees, directors
or other participants eligible to participate in the Plan; (iv) a material extension of the term of
the Plan; (v) a material change to the method of determining the Option Price under the Plan; and
(vi) an amendment to Section 6.2 of the Plan. A material revision shall not include any revision
that curtails rather than expands the scope of the Plan.
14.2 Amendments to Awards. Subject to the restrictions of Section 6.2, the Committee
may waive any conditions or rights under, amend any terms of or alter, suspend, discontinue, cancel
or terminate, any Award theretofore granted, prospectively or retroactively; provided that any such
waiver, amendment, alteration, suspension, discontinuance, cancellation or termination that would
materially and adversely affect the rights of any Participant or any holder or beneficiary of any
Award theretofore granted shall not to that extent be effective without the consent of the affected
Participant, holder or beneficiary.
14.3 Adjustments of Awards Upon the Occurrence of Certain Unusual or Nonrecurring Events. The
Committee is hereby authorized to make equitable and proportionate adjustments in the terms and
conditions of, and the criteria included in, Awards in recognition of unusual or nonrecurring
events (and shall make such adjustments for events described in Section 4.2 hereof)
affecting the Company, any Subsidiary or Affiliate, or the financial statements of the Company or
any Subsidiary or Affiliate, or of changes in applicable laws, regulations or accounting
principles.
14.4 Section 409A Compliance. No Award (or modification thereof) shall provide for deferral
of compensation that does not comply with Section 409A of the Code unless the Committee, at the
time of grant, specifically provides that the Award is not intended to comply with Section 409A of
the Code. Notwithstanding any provision of this Plan to the contrary, if one or more of the
payments or benefits received or to be received by a Participant pursuant to an Award would cause
the Participant to incur any additional tax or interest under Section 409A of the Code, the
Committee may reform such provision to maintain to the maximum extent practicable the original
intent of the applicable provision without violating the provisions of Section 409A of the Code,
including applying the appropriate definitions to terms whose meanings in this Plan differ from
those set forth in Section 409A of the Code and the Regulations thereunder, if necessary for
payments hereunder to be permissible payments under Section
409A of the Code.
14
SECTION 15. GENERAL PROVISIONS.
15.1 Limited Transferability of Awards. Except as otherwise provided in the Plan, no Award
shall be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by a
Participant, except by will or the laws of descent and distribution. No transfer of an Award by
will or by laws of descent and distribution shall be effective to bind the Company unless the
Company shall have been furnished with written notice thereof and an authenticated copy of the will
and/or such other evidence as the Committee may deem necessary or appropriate to establish the
validity of the transfer.
15.2 Dividend Equivalents. In the sole and complete discretion of the Committee, an Award
(excluding Options and SARs) may provide the Participant with dividends or dividend equivalents,
payable in cash, Shares, other securities or other property on a current or deferred basis. All
dividend or dividend equivalents which are not paid currently may, at the Committees discretion,
accrue interest, be reinvested into additional Shares, or, in the case of dividends or dividend
equivalents credited in connection with Performance Awards, be credited as additional Performance
Awards and paid to the Participant if and when, and to the extent that, payment is made pursuant to
such Award.
15.3 No Rights to Awards. No Person shall have any claim to be granted any Award, and there
is no obligation for uniformity of treatment of Participants or holders or beneficiaries of Awards.
The terms and conditions of Awards need not be the same with respect to each Participant.
15.4 Share Certificates. All certificates for Shares or other securities of the Company or
any Subsidiary or Affiliate delivered under the Plan pursuant to any Award or the exercise thereof
shall be subject to such stop transfer orders and other restrictions as the Committee may deem
advisable under the Plan or the rules, regulations and other requirements of the SEC or any state
securities commission or regulatory authority, any stock exchange or other market upon which such
Shares or other securities are then listed, and any applicable Federal or state laws, and the
Committee may cause a legend or legends to be put on any such certificates to make appropriate
reference to such restrictions.
15.5 Withholding. A Participant may be required to pay to the Company or any Subsidiary or
Affiliate and the Company or any Subsidiary or Affiliate shall have the right and is hereby
authorized to withhold from any Award, from any payment due or transfer made under any Award or
under the Plan, or from any compensation or other amount owing to a Participant the amount (in
cash, Shares, other securities, other Awards or other property) of any applicable withholding or
other tax-related obligations in respect of an Award, its exercise or any other transaction
involving an Award, or any payment or transfer under an Award or under the Plan and to take such
other action as may be necessary in the opinion of the Company to satisfy all obligations for the
payment of such taxes. Without limiting the generality of the foregoing, the Committee may in its
discretion permit a Participant to satisfy or arrange to satisfy, in whole or in part, the tax
obligations incident to an Award by: (a) electing to have the Company withhold Shares or other
property otherwise deliverable to such Participant pursuant to the Award (provided, however, that
the amount of any Shares so withheld shall not exceed the amount necessary to satisfy required
federal, state local and foreign withholding obligations using the minimum statutory withholding
rates for federal, state, local and/or foreign tax purposes, including payroll taxes, that are
applicable to supplemental taxable income) and/or (b) tendering to the Company Shares owned by such
Participant (or by such Participant and his or her spouse jointly) and purchased or held for the
requisite period of time as may be required to avoid the Companys or the Affiliates or
Subsidiaries incurring an adverse accounting charge, based, in each case, on the Fair Market Value
of the Shares on the payment date as determined by the Committee. All such elections shall be
irrevocable, made in writing, signed by the Participant, and shall be subject to any restrictions
or limitations that the Committee, in its sole discretion, deems appropriate.
15
15.6 Award Agreements. Each Award hereunder shall be evidenced by an Award Agreement that
shall be delivered to the Participant and may specify the terms and conditions of the Award and any
rules applicable thereto. In the event of a conflict between the terms of the Plan and any Award
Agreement, the terms of the Plan shall prevail. The Committee shall, subject to applicable law,
determine the date an Award is deemed to be granted. The Committee or, except to the extent
prohibited under applicable law, its delegate(s) may establish the terms of agreements or other
documents evidencing Awards under this Plan and may, but need not, require as a condition to any
such agreements or documents effectiveness that such agreement or document be executed by the
Participant, including by electronic signature or other electronic indication of acceptance, and
that such Participant agree to such further terms and conditions as specified in such agreement or
document. The grant of an Award under this Plan shall not confer any rights upon the Participant
holding such Award other than such terms, and subject to such conditions, as are specified in this
Plan as being applicable to such type of Award (or to all Awards) or as are expressly set forth in
the agreement or other document evidencing such Award.
15.7 No Limit on Other Compensation Arrangements. Nothing contained in the Plan shall prevent
the Company or any Subsidiary or Affiliate from adopting or continuing in effect other compensation
arrangements, which may, but need not, provide for the grant of Options, Restricted Shares,
Restricted Share Units, Other Stock-Based Awards or other types of Awards provided for hereunder.
15.8 No Right to Employment. The grant of an Award shall not be construed as giving a
Participant the right to be retained in the employ of the Company or any Subsidiary or Affiliate.
Further, the Company or a Subsidiary or Affiliate may at any time dismiss a Participant from
employment, free from any liability or any claim under the Plan, unless otherwise expressly
provided in an Award Agreement.
15.9 No Rights as Stockholder. Subject to the provisions of the Plan and the applicable Award
Agreement, no Participant or holder or beneficiary of any Award shall have any rights as a
stockholder with respect to any Shares to be distributed under the Plan until such person has
become a holder of such Shares. Notwithstanding the foregoing, in connection with each grant of
Restricted Shares hereunder, the applicable Award Agreement shall specify if and to what extent the
Participant shall not be entitled to the rights of a stockholder in respect of such Restricted
Shares.
15.10 Governing Law. The validity, construction and effect of the Plan and any rules and
regulations relating to the Plan and any Award Agreement shall be determined in accordance with the
laws of the State of Tennessee without giving effect to conflicts of laws principles.
15.11 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 as to any Person or Award, 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 the applicable laws, or if it cannot be
construed or deemed amended without, in the determination of the Committee, materially altering the
intent of the Plan or the Award, such provision shall be stricken as to such jurisdiction, Person
or Award and the remainder of the Plan and any such Award shall remain in full force and effect.
15.12 Other Laws. The Committee may refuse to issue or transfer any Shares or other
consideration under an Award if, acting in its sole discretion, it determines that the issuance or
transfer of such Shares or such other consideration might violate any applicable law or regulation
(including applicable non-U.S. laws or regulations) or entitle the Company to recover the same
under Exchange Act Section 16(b), and any payment tendered to the Company by a Participant, other
holder or beneficiary in connection with the exercise of such Award shall be promptly refunded to
the relevant Participant, holder or beneficiary.
16
15.13 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 Subsidiary or 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 Subsidiary or Affiliate pursuant to an
Award, such right shall be no greater than the right of any unsecured general creditor of the
Company or any Subsidiary or Affiliate.
15.14 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, other securities or other
property shall be paid or transferred in lieu of any fractional Shares or whether such fractional
Shares or any rights thereto shall be canceled, terminated or otherwise eliminated.
15.15 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 16. TERM OF THE PLAN.
16.1 Effective Date. The Plan shall generally be effective for Awards granted hereunder as of
January 1, 2008, and will amend and restate the previous plan as set forth herein effective as of
May 12, 2011 provided it has been approved by the Board and by the Companys stockholders.
Notwithstanding the foregoing, the Committee may, in its sole discretion, grant cash-based
Performance Awards to Participants for the 2007 fiscal year, based upon the applicable provisions
of Sections 8 and 11 hereof, prior to January 1, 2008, subject to the approval of the Plan by the
Board and by the Companys stockholders and provided that any payment for such cash-based
Performance Awards only be made after January 1, 2008.
16.2 Expiration Date. No new Awards shall be granted under the Plan after the tenth
anniversary of the Effective Date. Unless otherwise expressly provided in the Plan or in an
applicable Award Agreement, any Award granted hereunder may, and the authority of the Board or the
Committee to amend, alter, adjust, suspend, discontinue or terminate any such Award or to waive any
conditions or rights under any such Award shall, continue after the tenth anniversary of the
Effective Date.
17