EX-4.1
Exhibit 4.1
QUORUM HEALTH CORPORATION
2016 STOCK
AWARD PLAN
The purpose of this Plan is to strengthen Quorum Health
Corporation, a Delaware corporation (the “Company”), and its Subsidiaries by providing a retention tool and an incentive to its and their employees, officers, consultants and directors and thereby encouraging them to devote their abilities
and industry to the success of the Company’s and its Subsidiaries’ business enterprises. It is intended that this purpose be achieved by extending to employees (including future employees who have received a formal written offer of
employment), officers, consultants and directors of the Company and its Subsidiaries an added long-term incentive for high levels of performance and unusual efforts through the grant of Incentive Stock Options, Non-qualified Stock Options, Stock
Appreciation Rights, Performance Units, Performance Shares, Share Awards, Restricted Stock and Restricted Stock Units (as each term is herein defined).
For purposes of the Plan:
2.1 “Affiliate” means any entity, directly or indirectly, controlled by, controlling or under common control with the Company or any
corporation or other entity acquiring, directly or indirectly, all or substantially all the assets and business of the Company, whether by operation of law or otherwise.
2.2 “Agreement” means the written agreement between the Company and a Grantee evidencing the grant of an Award and setting forth the
terms and conditions thereof.
2.3 “Award” means a grant of Options, Restricted Stock, Restricted Stock Units, Stock
Appreciation Rights, a Performance Award, a Share Award or any or all of them.
2.4 “Board” means the Board of Directors of the
Company.
2.5 “Cause” means, except as otherwise set forth herein or in an applicable Award Agreement,
(a) in the case of a Grantee whose employment with the Company or a Subsidiary is subject to the terms of an employment agreement between such
Grantee and the Company or Subsidiary, which employment agreement includes a definition of “Cause”, the term “Cause” as used in this Plan or any Agreement shall have the meaning set forth in such employment agreement during the
period that such employment agreement remains in effect; and
(b) in all other cases, (i) intentional failure to perform reasonably
assigned duties, (ii) dishonesty or willful misconduct in the performance of duties, (iii) involvement in a transaction in connection with the performance of duties to the Company or any of its Subsidiaries which transaction is adverse to
the interests of the Company or any of its Subsidiaries and which is engaged in for personal profit or (iv) willful violation of any law, rule or regulation in connection with the performance of duties (other than traffic violations or similar
offenses); provided, however, that following a Change in Control clause (i) of this Section 2.6(b) shall not constitute “Cause.”
2.6 “Change in Capitalization” means any increase or reduction in the number of Shares,
or any change (including, but not limited to, in the case of a spin-off, dividend or other distribution in respect of Shares, a change in value) in the Shares or exchange of Shares for a different number or kind of shares or other securities of the
Company or another corporation, by reason of a reclassification, recapitalization, merger, consolidation, reorganization, spin-off, split-up, issuance of warrants or rights or debentures, stock dividend, stock split or reverse stock split, cash
dividend, property dividend, extraordinary cash dividend, combination or exchange of shares, repurchase of shares, change in corporate structure or otherwise.
2.7 A “Change in Control” shall mean the occurrence of any of the following, unless otherwise determined by the Committee in an
applicable Agreement or other written agreement approved by the Committee:
(a) An acquisition (other than directly from the Company) of
any voting securities of the Company (the “Voting Securities”) by any “Person” (as the term person is used for purposes of Section 13(d) or 14(d) of the Exchange Act), immediately after which such Person has “Beneficial
Ownership” (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of more than fifty percent (50%) of the then outstanding Shares or the combined voting power of the Company’s then outstanding Voting Securities;
provided, however, that in determining whether a Change in Control has occurred pursuant to this Section 2.8(a), Shares or Voting Securities which are acquired in a “Non-Control Acquisition” (as hereinafter defined)
shall not constitute an acquisition which would cause a Change in Control. A “Non-Control Acquisition” shall mean an acquisition by (i) an employee benefit plan (or a trust forming a part thereof) maintained by (A) the Company or
(B) any corporation or other Person the majority of the voting power, voting equity securities or equity interest of which is owned, directly or indirectly, by the Company (for purposes of this definition, a “Related Entity”),
(ii) the Company or any Related Entity, or (iii) any Person in connection with a “Non-Control Transaction” (as hereinafter defined);
(b) The individuals who, as of the Effective Date, are members of the Board (the “Incumbent Board”), cease for any reason to
constitute at least a majority of the members of the Board or, following a Merger (as hereinafter defined) which results in a Parent Corporation (as hereinafter defined), the board of directors of the ultimate Parent Corporation; provided, however,
that if the election, or nomination for election by the Company’s common stockholders, of any new director was approved by a vote of at least two-thirds of the Incumbent Board, such new director shall, for purposes of this Plan, be considered a
member of the Incumbent Board; provided further, however, that no individual shall be considered a member of the Incumbent Board if such individual initially assumed office as a result of the actual or threatened solicitation of
proxies or consents by or on behalf of a Person other than the Board (a “Proxy Contest”) including by reason of any agreement intended to avoid or settle any Proxy Contest; or
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(c) The consummation of:
(i) A merger, consolidation or reorganization with or into the Company or in which securities of the Company are issued (a
“Merger”), unless such Merger is a “Non-Control Transaction.” A “Non-Control Transaction” shall mean a Merger where:
(A) the stockholders of the Company immediately before such Merger own directly or indirectly immediately following such
Merger at least fifty percent (50%) of the combined voting power of the outstanding voting securities of (x) the corporation resulting from such Merger (the “Surviving Corporation”), if fifty percent (50%) or more of the
combined voting power of the then outstanding voting securities of the Surviving Corporation is not Beneficially Owned, directly or indirectly, by another Person (a “Parent Corporation”), or (y) if there is one or more than one Parent
Corporation, the ultimate Parent Corporation; and
(B) the individuals who were members of the Incumbent Board immediately
prior to the execution of the agreement providing for such Merger constitute at least a majority of the members of the board of directors of (x) the Surviving Corporation, if there is no Parent Corporation, or (y) if there is one or more
than one Parent Corporation, the ultimate Parent Corporation;
(ii) A complete liquidation or dissolution of the Company;
or
(iii) 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 Related Entity or under conditions that would constitute a Non-Control Transaction with the disposition of assets being regarded as a Merger for this purpose or the distribution to the Company’s stockholders of the stock of a
Related Entity or any other assets).
Notwithstanding the foregoing, (A) a Change in Control shall not be deemed to occur solely
because any Person (the “Subject Person”) acquired Beneficial Ownership of more than the permitted amount of the then outstanding Shares or Voting Securities as a result of the acquisition of Shares or Voting Securities by the Company
which, by reducing the number of Shares or Voting Securities then outstanding, increases the proportional number of shares Beneficially Owned by the Subject Persons, provided that if a Change in Control would occur (but for the operation of this
sentence) as a result of the acquisition of Shares or Voting Securities by the Company, and after such share acquisition by the Company, the Subject Person becomes the Beneficial Owner of any additional Shares or Voting Securities which increases
the percentage of the then outstanding Shares or Voting Securities Beneficially Owned by the Subject Person, then a Change in Control shall occur, and (B) unless otherwise provided in the applicable Agreement, with respect to any Award
constituting a “deferral of compensation” subject to Section 409A of the Code, solely for purposes of determining the timing of a payment pursuant to the Agreement, a Change in Control shall mean a “change in the ownership”
of the Company, a “change in the effective control” of the Company, or a “change in the ownership of a substantial portion of the assets” of the Company as such terms are defined in Section 1.409A-3(i)(5) of the Treasury
Regulations.
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If a Grantee’s employment is terminated by the Company without Cause prior to the date of a
Change in Control but the Grantee reasonably demonstrates that the termination (A) was at the request of a third party who has indicated an intention or taken steps reasonably calculated to effect a change in control or (B) otherwise arose
in connection with, or in anticipation of, a Change in Control which has been threatened or proposed, such termination shall be deemed to have occurred after a Change in Control for purposes of this Plan provided a Change in Control shall actually
have occurred.
2.8 “Code” means the Internal Revenue Code of 1986, as amended.
2.9 “Committee” means a committee, as described in Section 3.1, appointed by the Board from time to time to administer the Plan
and to perform the functions set forth herein.
2.10 “Company” means Quorum Health Corporation.
2.11 “Director” means a director of the Company.
2.12 “Disability” means:
(a) in the case of a Grantee whose employment with the Company or a Subsidiary is subject to the terms of an employment agreement between such
Grantee and the Company or Subsidiary, which employment agreement includes a definition of “Disability”, the term “Disability” as used in this Plan or any Agreement shall have the meaning set forth in such employment agreement
during the period that such employment agreement remains in effect;
(b) in the case of a Grantee to whom Section 2.12(a) does not
apply and who participates in the Company’s long-term disability plan, if any, the term “Disability” as used in such plan; or
(c) in all other cases, a physical or mental infirmity which impairs the Grantee’s ability to perform substantially all his or her duties
for a period of ninety-one (91) consecutive days.
2.13 “Division” means any of the operating units or divisions of the
Company designated as a Division by the Committee.
2.14 “Dividend Equivalent Right” means a right to receive all or some
portion of the cash dividends that are or would be payable with respect to Shares, as determined by the Committee; provided, that subject to Section 12, no Dividend Equivalent Rights shall be granted with respect to unexercised Options or Stock
Appreciation Rights.
2.15 “Eligible Individual” means any of the following individuals who is designated by the Committee as
eligible to receive Awards subject to the conditions set forth herein: (a) any Director or Employee, (b) any individual to whom the Company or a Subsidiary has extended a formal, written offer of employment, or (c) any consultant or
advisor of the Company or a Subsidiary.
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2.16 “Employee” means any person, including an officer (whether or not also a Director)
in the regular full-time employment of the Company or any of its Subsidiaries, but excludes, in the case of an Incentive Stock Option, an employee of any Subsidiary that is not a “subsidiary corporation” of the Company as defined in Code
Section 424(f).
2.17 “Exchange Act” means the Securities Exchange Act of 1934, as amended.
2.18 “Fair Market Value” means, unless otherwise determined by the Committee, the closing price of the relevant security as reported
on the composite tape of New York Stock Exchange issues (or if, at the date of determination, the security is not so listed or if the principal market on which it is traded is not the New York Stock Exchange, such other reporting system as shall be
selected by the Committee) on the relevant date, or if no sale of the security is reported for that date, the next preceding day for which there is a reported sale. In the event that Fair Market Value of a security cannot be determined in the manner
described above, the Fair Market Value shall be the value established by the Board in good faith.
2.19 “Good Reason” shall
mean, unless otherwise provided in an Agreement, the occurrence after a Change in Control of any of the following events or conditions with respect to a Grantee:
(a) a change in the Grantee’s status, title, position or responsibilities (including reporting responsibilities) which, in the
Grantee’s reasonable judgment, represents an adverse change from the Grantee’s status, title, position or responsibilities as in effect immediately prior thereto; the assignment to the Grantee of any duties or responsibilities which, in
the Grantee’s reasonable judgment, are inconsistent with the Grantee’s status, title, position or responsibilities; or any removal of the Grantee from or failure to reappoint or reelect the Grantee to any of such offices or positions,
except in connection with the termination of the Grantee’s employment for Disability, Cause, as a result of the Grantee’s death or by the Grantee other than for Good Reason;
(b) a reduction in the Grantee’s annual base salary below the amount as in effect immediately prior to the Change in Control;
(c) the relocation of the offices of the Grantee’s place of employment to a location more than twenty-five (25) miles from the
location of such employment immediately prior to such Change in Control, or requiring the Grantee to be based anywhere other than such offices, except to the extent the Grantee was not previously assigned to a principal location and except for
required travel on business to the extent substantially consistent with the Grantee’s business travel obligations at the time of the Change in Control;
(d) the failure to pay to the Grantee any portion of the Grantee’s current compensation or to pay to the Grantee any portion of an
installment of deferred compensation under any deferred compensation program of the Company or any of its Subsidiaries in which the Grantee participated, within seven (7) days of the date such compensation is due;
(e) the failure to (A) continue in effect (without reduction in benefit level, and/or reward opportunities) any material compensation or
employee benefit plan in which the Grantee was participating immediately prior to the Change in Control, unless a substitute or
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replacement plan has been implemented which provides substantially identical compensation or benefits to the Grantee or (B) provide the Grantee with compensation and benefits, in the
aggregate, at least equal (in terms of benefit levels and/or reward opportunities) to those provided for under each other compensation or employee benefit plan, program and practice in which the Grantee was participating immediately prior to the
Change in Control; or
(f) the failure of the Company to obtain from its successors or assigns the express assumption and agreements
required under Section 13 hereof.
Any event or condition described in Section 2.19(a), (b), (c), (d), or (f) which occurs at any time
prior to the date of a Change in Control and (A) which occurred after the Company entered into a definitive agreement, the consummation of which would constitute a Change in Control or (B) which the Grantee reasonably demonstrates was at
the request of a third party who has indicated an intention or has taken steps reasonably calculated to effect a Change in Control, shall constitute Good Reason for purposes of this Agreement, notwithstanding that it occurred prior to a Change in
Control.
2.20 “Grantee” means a person to whom an Award has been granted under the Plan.
2.21 “Grant Price” means the price established at the time of a grant of a Stock Appreciation Right used to determine whether there
is any payment due upon exercise of the Stock Appreciation Right.
2.22 “Incentive Stock Option” means an Option satisfying the
requirements of Section 422 of the Code and designated by the Committee as an Incentive Stock Option.
2.23 “Non-employee
Director” means a Director who is not an Employee.
2.24 “Non-qualified Stock Option” means an Option which is not an
Incentive Stock Option.
2.25 “Option” means a Non-qualified Stock Option, an Incentive Stock Option or either or both of them.
2.26 “Optionee” means a person to whom an Option has been granted under the Plan.
2.27 “Outside Director” means a director of the Company who is an “outside director” within the meaning of
Section 162(m) of the Code and the regulations promulgated thereunder.
2.28 “Parent” means any corporation which is a
parent corporation within the meaning of Section 424(e) of the Code with respect to the Company.
2.29 “Performance Awards”
means Performance Units, Performance Shares or either or both of them.
2.30 “Performance-Based Compensation” means any Award
that is intended to constitute “qualified performance based compensation” within the meaning of Section 162(m)(4)(C) of the Code and the regulations promulgated thereunder.
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2.31 “Performance Cycle” means the time period specified by the Committee at the time
Performance Awards are granted during which the performance of the Company, a Subsidiary or a Division will be measured.
2.32
“Performance Objectives” has the meaning set forth in Section 9.
2.33 “Performance Shares” means Shares issued
or transferred to an Eligible Individual under Section 9.
2.34 “Performance Units” means performance units granted to an
Eligible Individual under Section 9.
2.35 “Plan” means this Quorum Health Corporation 2016 Stock Award Plan, as amended
and restated from time to time.
2.36 “Restricted Stock” means Shares issued or transferred to an Eligible Individual pursuant
to Section 8.1.
2.37 “Restricted Stock Unit” means rights granted to an Eligible Individual under Section 8.2
representing a number of hypothetical Shares.
2.38 “Share Award” means an Award of Shares granted pursuant to Section 10.
2.39 “Shares” means shares of the Common Stock of the Company, par value $.01 per share, and any other securities into which
such shares are changed or for which such shares are exchanged.
2.40 “Stock Appreciation Right” means a right to receive all or
some portion of the increase in the value of the Shares as provided in Section 6 hereof.
2.41 “Subsidiary” means
(i) except as provided in subsection (ii) below, any corporation which is a subsidiary corporation within the meaning of Section 424(f) of the Code with respect to the Company, and (ii) in relation to the eligibility to receive
Awards other than Incentive Stock Options and continued employment for purposes of Awards (unless the Committee determines otherwise), any entity, whether or not incorporated, in which the Company directly or indirectly owns 50% or more of the
outstanding equity or other ownership interests.
2.42 “Successor Corporation” means a corporation, or a Parent or Subsidiary
thereof within the meaning of Section 424(a) of the Code, which issues or assumes a stock option in a transaction to which Section 424(a) of the Code applies.
2.43 “Ten-Percent Stockholder” means an Eligible Individual, who, at the time an Incentive Stock Option is to be granted to him or
her, owns (within the meaning of Section 422(b)(6) of the Code) stock possessing more than ten percent (10%) of the total combined voting power of all classes of stock of the Company, a Parent or a Subsidiary.
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3.1 The Committee. The Plan shall be administered by the
Committee, which shall hold meetings at such times as may be necessary for the proper administration of the Plan. The Committee shall keep minutes of its meetings. If the Committee consists of more than one (1) member, a quorum shall consist of
not fewer than two (2) members of the Committee and a majority of a quorum may authorize any action. Any decision or determination reduced to writing and signed by a majority of all of the members of the Committee shall be as fully effective as
if made by a majority vote at a meeting duly called and held. The Committee shall consist of at least one (1) Director and may consist of the entire Board; provided, however, that (A) with respect to any Award granted to an Eligible
Individual who is subject to Section 16 of the Exchange Act, the Committee shall consist of at least two (2) Directors each of whom shall be a “non-employee director” within the meaning of Rule 16b-3 promulgated under the
Exchange Act and (B) to the extent necessary for any Option or Award intended to qualify as Performance-Based Compensation to so qualify, the Committee shall consist of at least two (2) Directors, each of whom shall be an Outside Director.
For purposes of the preceding sentence, if any member of the Committee fails to qualify as either a non-employee director (within the meaning of subsection (A) above) or an Outside Director, but recuses himself or herself or abstains from
voting with respect to a particular action taken by the Committee, then the Committee, with respect to that action, shall be deemed to consist only of the members of the Committee who have not recused themselves or abstained from voting. Subject to
applicable law, the Committee may delegate its authority under the Plan to any other person or persons.
3.2 Limitation of
Liability. No member of the Committee shall be liable for any action, failure to act, determination or interpretation made in good faith with respect to this Plan or any transaction hereunder. The Company hereby agrees to indemnify each member
of the Committee for all costs and expenses and, to the extent permitted by applicable law, any liability incurred in connection with defending against, responding to, negotiating for the settlement of or otherwise dealing with any claim, cause of
action or dispute of any kind arising in connection with any actions in administering this Plan or in authorizing or denying authorization to any transaction hereunder.
3.3 Certain Powers. Subject to the express terms and conditions set forth herein, the Committee shall have the power from time to time
to:
(a) determine those Eligible Individuals to whom Options shall be granted under the Plan and the number of such Options to be
granted, prescribe the terms and conditions (which need not be identical) of each such Option, including the exercise price per Share, the vesting schedule and the duration of each Option, and make any amendment or modification to any Option
Agreement consistent with the terms of the Plan;
(b) select those Eligible Individuals to whom Awards other than Options shall be granted
under the Plan, determine the number of Shares in respect of which each Award is granted, the terms and conditions (which need not be identical) of each such Award, and make any amendment or modification to any Award Agreement consistent with the
terms of the Plan;
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(c) construe and interpret the Plan and the Awards granted hereunder, establish, amend and revoke
rules and regulations for the administration of the Plan, including, but not limited to, correcting any defect or supplying any omission, or reconciling any inconsistency in the Plan or in any Agreement, in the manner and to the extent it shall deem
necessary or advisable, including so that the Plan and the operation of the Plan comply with Rule 16b-3 under the Exchange Act, the Code to the extent applicable and other applicable law, and otherwise make the Plan fully effective. Without limiting
the Committee’s authority under this Plan, but subject to any express limitations herein, the Committee shall have the authority to accelerate the exercisability or vesting of an Award, to extend the term or waive early termination provisions
of an Award (subject to the maximum ten-year term under Section 5.3), and to waive the Company’s rights with respect to an Award or restrictive conditions of an Award (including forfeiture conditions), in any case in such circumstances as
the Committee deems appropriate. All decisions and determinations by the Committee in the exercise of this power shall be final, binding and conclusive upon the Company, its Subsidiaries, the Grantees, and all other persons having any interest
therein;
(d) determine the duration and purposes for leaves of absence which may be granted to a Grantee on an individual basis without
constituting a termination of employment or service for purposes of the Plan;
(e) exercise its discretion with respect to the powers and
rights granted to it as set forth in the Plan; and
(f) generally, exercise such powers and perform such acts as are deemed necessary or
advisable to promote the best interests of the Company with respect to the Plan.
3.4 Delegation. The Committee may delegate to one
or more officers of the Company the authority to grant Awards to Eligible Individuals (other than to himself or herself) and/or determine the number of Shares subject to each Award (by resolution that specifies the total number of Shares subject to
the Awards that may be awarded by the officer and the terms of any such Awards), provided that such delegation is made in accordance with the Delaware General Corporation Law and with respect to Awards that are not intended to qualify as
Performance-Based Compensation and that are not made to executive officers of the Company covered by Rule 16b-3 under the Exchange Act.
| 4. |
Shares Subject to the Plan; Grant Limitations. |
4.1 Shares Subject to the
Plan. The maximum number of Shares that may be made the subject of Awards granted under the Plan is 4,700,000 Shares. The Company shall reserve for the purposes of the Plan, out of its authorized but unissued Shares or out of Shares held
in the Company’s treasury, or partly out of each, such number of Shares as shall be determined by the Board.
4.2 Grant
Limitations. The following grant limitations shall apply when making Awards pursuant to the Plan:
(a) In any calendar year, no
Eligible Individual may be granted Awards in the aggregate in respect of more than 1,000,000 Shares,
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(b) In any calendar year, no Non-Employee Director may be granted Awards in the aggregate in
respect of more than 100,000 Shares, and the maximum grant date fair value of all Awards granted during any calendar year to a single Non-Employee Director shall not exceed $1,000,000, and
(c) In no event shall more than an aggregate of 100,000 Shares be issued upon the exercise of Incentive Stock Options granted under the Plan.
4.3 Fungible Plan Design. Upon the granting of an Award, the number of Shares available under Section 4.1 for the granting of
further Awards shall be reduced as follows:
(a) In connection with the granting of an Option or a Stock Appreciation Right to be settled
in Shares, the number of Shares shall be reduced by the number of Shares in respect of which the Award is granted or denominated, regardless of the actual number of Shares issued upon settlement of the Award.
(b) In connection with the granting of an Award in the form of Restricted Stock (including Restricted Stock Units), Performance Awards
(including Shares issued in respect to Performance Awards), and other Awards that are granted as “full value awards” shall reduce the number of shares that may be the subject to Awards under the Plan by 1.5 Shares for each Share subject to
such an Award.
4.4 Shares Returned to the Plan. Whenever any outstanding Award or portion thereof expires, is canceled, is
forfeited, is settled in cash or is otherwise terminated for any reason without having been exercised or payment having been made in respect of the Award (or such portion thereof to which the expiration, forfeiture, cash settlement or other
termination occurs), the Shares allocable to the expired, canceled, forfeited, cash-settled or otherwise terminated portion of the Award may again be the subject of Awards granted hereunder. With regard to Awards referred to in Section 4.3(b),
for each Share subject to an Award that is cancelled, forfeited, settled in cash or other otherwise terminated as provided in the foregoing sentence, 1.5 Shares may again be the subject of Awards under the Plan. Notwithstanding the foregoing, the
following events shall not result in any increase in Shares available for issuance of Awards under the Plan or such Shares again becoming available for issuance of Awards:
(a) Withholding of Shares to pay the exercise price or Withholding Taxes on any Award,
(b) The excess of the number of Shares subject to any stock-settled Stock Appreciation Rights over the number of Shares actually issued in
settlement thereof,
(c) Tendering of Shares to pay for Option exercise prices or Withholding Taxes (i.e., net settlement of Shares), and
(d) The purchase of Shares on the open market as a result of Option exercises.
4.5 Minimum Vesting Period. Unless otherwise determined by the Committee, in no event shall an Award to a Participant other than a
Non-Employee Director and not subject to performance-based conditions have a vesting schedule resulting in such Award vesting in full
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prior to the third anniversary of the grant date. For purposes of clarity, this restriction will not prohibit any Award from having partial vesting dates prior to the third anniversary of the
grant date in accordance with a proportionate vesting schedule determined at the discretion of the Committee, so long as such Award does not vest in full prior to the third anniversary of the grant date.
| 5. |
Option Grants for Eligible Individuals. |
5.1 Authority of Committee.
Subject to the provisions of the Plan, the Committee shall have full and final authority to select those Eligible Individuals who will receive Options, and the terms and conditions of the grant to such Eligible Individuals shall be set forth in an
Agreement. Incentive Stock Options may be granted only to Eligible Individuals who are employees of the Company or any Subsidiary.
5.2
Exercise Price. The purchase price or the manner in which the exercise price is to be determined for Shares under each Option shall be determined by the Committee and set forth in the Agreement; provided, however, that the
exercise price per Share under each Non-qualified Stock Option and each Incentive Stock Option shall not be less than 100% of the Fair Market Value of a Share on the date the Option is granted (110% in the case of an Incentive Stock Option granted
to a Ten-Percent Stockholder).
5.3 Maximum Duration. Options granted hereunder shall be for such term as the Committee shall
determine, provided that an Incentive Stock Option shall not be exercisable after the expiration of ten (10) years from the date it is granted (five (5) years in the case of an Incentive Stock Option granted to a Ten-Percent Stockholder)
and a Non-qualified Stock Option shall not be exercisable after the expiration of ten (10) years from the date it is granted; provided, however, that unless the Committee provides otherwise, an Option (other than an Incentive Stock Option) may,
upon the death of the Optionee prior to the expiration of the Option, be exercised for up to one (1) year following the date of the Optionee’s death even if such period extends beyond ten (10) years from the date the Option is
granted. The Committee may, subsequent to the granting of any Option, extend the term thereof, but in no event shall the term as so extended exceed the maximum term provided for in the preceding sentence.
5.4 Vesting. Subject to Section 5.10, each Option shall become exercisable in such installments (which need not be equal) and at
such times as may be designated by the Committee and set forth in the Agreement. To the extent not exercised, installments shall accumulate and be exercisable, in whole or in part, at any time after becoming exercisable, but not later than the date
the Option expires. The Committee may accelerate the exercisability of any Option or portion thereof at any time.
5.5 Deferred
Delivery of Option Shares. The Committee may, in its discretion, permit Optionees to elect to defer the issuance of Shares upon the exercise of one or more Non-qualified Stock Options granted pursuant to the Plan. The terms and conditions of
such deferral shall be determined at the time of the grant of the Option or thereafter and shall be set forth in the Agreement evidencing the Option.
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5.6 Limitations on Incentive Stock Options. To the extent that the aggregate Fair Market
Value (determined as of the date of the grant) of Shares with respect to which Incentive Stock Options granted under the Plan are exercisable by an Optionee for the first time during any calendar year exceeds $100,000, such Incentive Stock Options
shall be treated as Non-qualified Stock Options. In applying the limitation in the preceding sentence in the case of multiple Option grants, Options which were intended to be Incentive Stock Options shall be treated as Non-qualified Stock Options
according to the order in which they were granted such that the most recently granted Options are first treated as Non-qualified Stock Options.
5.7 Non-Transferability. No Option shall be transferable by the Optionee otherwise than by will or by the laws of descent and
distribution or, in the case of an Option other than an Incentive Stock Option, pursuant to a domestic relations order (within the meaning of Rule 16a-12 promulgated under the Exchange Act), and an Option shall be exercisable during the lifetime of
such Optionee only by the Optionee or his or her guardian or legal representative. Notwithstanding the foregoing, the Committee may set forth in the Agreement evidencing an Option (other than an Incentive Stock Option), at the time of grant or
thereafter, that the Option may be transferred to members of the Optionee’s immediate family, to trusts solely for the benefit of such immediate family members, to entities described in Section 501(c)(3) of the Code and to partnerships in
which such family members, trusts and/or such exempt entities are the only partners, and for purposes of this Plan, a transferee of an Option shall be deemed to be the Optionee. For this purpose, immediate family means the Optionee’s spouse,
parents, children, stepchildren and grandchildren and the spouses of such parents, children, stepchildren and grandchildren. The terms of an Option shall be final, binding and conclusive upon the beneficiaries, executors, administrators, heirs and
successors of the Optionee.
5.8 Method of Exercise. The exercise of an Option shall be made by a written notice delivered in
person or by mail to the Secretary of the Company at the Company’s principal executive office, specifying the number of Shares to be exercised and, to the extent applicable, accompanied by payment therefor and otherwise in accordance with the
Agreement pursuant to which the Option was granted, or by such other methods as may be provided by the Committee. The exercise price for any Shares purchased pursuant to the exercise of an Option shall be paid in either of the following forms
(a) cash or (b) the transfer, either actually or by attestation, to the Company of Shares owned by the Optionee prior to the exercise of the Option, such transfer to be upon such terms and conditions as determined by the Committee or
(c) a combination of cash and the transfer of Shares; provided, however, that the Committee may determine at any time that the exercise price shall be paid only in cash. In addition, Options may be exercised through a registered
broker-dealer or directly with the Company pursuant to such cashless exercise procedures which are, from time to time, deemed acceptable by the Committee. Any Shares transferred to the Company as payment of the exercise price under an Option shall
be valued at their Fair Market Value on the day of exercise of such Option. If requested by the Committee, the Optionee shall deliver the Agreement evidencing the Option to the Secretary of the Company who shall endorse thereon a notation of such
exercise and return such Agreement to the Optionee. The Committee shall determine the extent to which fractional Shares may be issued.
5.9 Rights of Optionees. No Optionee shall be deemed for any purpose to be the owner of any Shares subject to any Option unless and
until (a) the Option shall have been exercised pursuant to the terms thereof, (b) the Company shall have issued and delivered Shares
12
to the Optionee, and (c) the Optionee’s name shall have been entered as a stockholder of record on the books of the Company or otherwise evidenced by a “book entry” (i.e., a
computerized or manual entry) in the records of the Company or its designated agent. Thereupon, the Optionee shall have full voting, dividend and other ownership rights with respect to such Shares, subject to such terms and conditions as may be set
forth in the applicable Agreement.
5.10 Effect of Change in Control. Section 13(b) shall control the treatment of any Options
outstanding at the time of a Change in Control. Except as otherwise provided by the Committee, any Options that are exercisable as of a Change in Control shall remain exercisable for a period ending not before the earlier of (x) the six
(6) month anniversary of the Change in Control or (y) the expiration of the stated term of the Option.
| 6. |
Stock Appreciation Rights. |
The Committee may in its discretion, either alone or
in connection with the grant of an Option, grant Stock Appreciation Rights in accordance with the Plan, the terms and conditions of which shall be set forth in an Agreement. If granted in connection with an Option, a Stock Appreciation Right shall
cover the same Shares covered by the Option (or such lesser number of Shares as the Committee may determine) and shall, except as provided in this Section 6, be subject to the same terms and conditions as the related Option.
6.1 Time of Grant. A Stock Appreciation Right may be granted (a) at any time if unrelated to an Option, or (b) if related to
an Option, either at the time of grant or at any time thereafter during the term of the Option.
6.2 Stock Appreciation Right Related
to an Option.
(a) Exercise. A Stock Appreciation Right granted in connection with an Option shall be exercisable at such time
or times and only to the extent that the related Option is exercisable, will not be transferable except to the extent the related Option may be transferable, and will have a Grant Price equal to the exercise price of the related Option. A Stock
Appreciation Right granted in connection with an Incentive Stock Option shall be exercisable only if the Fair Market Value of a Share on the date of exercise exceeds the exercise price specified in the related Incentive Stock Option Agreement. In no
event shall a Stock Appreciation Right related to an Option have a term of greater than ten (10) years.
(b) Amount Payable.
Upon the exercise of a Stock Appreciation Right related to an Option, the Grantee shall be entitled to receive an amount determined by multiplying (i) the excess of the Fair Market Value of a Share on the date of exercise of such Stock
Appreciation Right over the Grant Price of the Stock Appreciation Right, by (ii) the number of Shares as to which such Stock Appreciation Right is being exercised. Notwithstanding the foregoing, the Committee may limit in any manner the amount
payable with respect to any Stock Appreciation Right by including such a limit in the Agreement evidencing the Stock Appreciation Right at the time it is granted.
(c) Treatment of Related Options and Stock Appreciation Rights Upon Exercise. Upon the exercise of a Stock Appreciation Right granted
in connection with an Option, the Option shall be canceled to the extent of the number of Shares as to which the Stock
13
Appreciation Right is exercised, and upon the exercise of an Option granted in connection with a Stock Appreciation Right, the Stock Appreciation Right shall be canceled to the extent of the
number of Shares as to which the Option is exercised or surrendered.
6.3 Stock Appreciation Right Unrelated to an Option. The
Committee may grant to Eligible Individuals Stock Appreciation Rights unrelated to Options. Stock Appreciation Rights unrelated to Options shall contain such terms and conditions as to exercisability (subject to Section 6.7), vesting and
duration as the Committee shall determine, but in no event shall they have a term of greater than ten (10) years. The Committee shall establish the Grant Price at the time each Stock Appreciation Right unrelated to an Option is granted, which
shall not be less than the Fair Market Value of a Share on the date the Stock Appreciation Right is granted. Upon exercise of a Stock Appreciation Right unrelated to an Option, the Grantee shall be entitled to receive an amount determined by
multiplying (a) the excess of the Fair Market Value of a Share on the date of exercise of such Stock Appreciation Right over the Grant Price of the Stock Appreciation Right, by (b) the number of Shares as to which the Stock Appreciation
Right is being exercised. Notwithstanding the foregoing, the Committee may limit in any manner the amount payable with respect to any Stock Appreciation Right by including such a limit in the Agreement evidencing the Stock Appreciation Right at the
time it is granted.
6.4 Non-Transferability. No Stock Appreciation Right shall be transferable by the Grantee otherwise than by
will or by the laws of descent and distribution or pursuant to a domestic relations order (within the meaning of Rule 16a-12 promulgated under the Exchange Act), and such Stock Appreciation Right shall be exercisable during the lifetime of such
Grantee only by the Grantee or his or her guardian or legal representative; provided, that the Committee may provide limited transferability provisions with respect to Stock Appreciation Rights similar to those described in Section 5.7. The
terms of such Stock Appreciation Right shall be final, binding and conclusive upon the beneficiaries, executors, administrators, heirs and successors of the Grantee.
6.5 Method of Exercise. Stock Appreciation Rights shall be exercised by a Grantee by a written notice delivered in person or by mail to
the Secretary of the Company at the Company’s principal executive office, specifying the number of Shares with respect to which the Stock Appreciation Right is being exercised, or by any other method permitted by the Committee. If requested by
the Committee, the Grantee shall deliver the Agreement evidencing the Stock Appreciation Right being exercised and the Agreement evidencing any related Option to the Secretary of the Company who shall endorse thereon a notation of such exercise and
return such Agreement to the Grantee.
6.6 Form of Payment. Payment of the amount determined under Sections 6.2(b) or 6.3 may be
made in the discretion of the Committee solely in whole Shares in a number determined at their Fair Market Value on the date of exercise of the Stock Appreciation Right, or solely in cash, or in a combination of cash and Shares. Unless otherwise
determined by the Committee, if the amount payable in Shares results in a fractional Share, payment for the fractional Share will be made in cash.
6.7 Effect of Change in Control. Section 13(b) shall control the treatment of any Stock Appreciation Rights outstanding at the
time of a Change in Control. Except as otherwise
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provided by the Committee, any Stock Appreciation Rights that are exercisable as of a Change in Control shall remain exercisable for a period ending not before the earlier of (x) the six
(6) month anniversary of the Change in Control or (y) the expiration of the stated term of the Stock Appreciation Right.
| 7. |
Limitations on Repricing. |
Notwithstanding anything in the Plan to the contrary,
except as permitted or required by the provisions of Sections 12 or 13 hereof, the Committee shall not have the power to (i) lower the Option Price of an Option after it is granted, (ii) lower the Grant Price of a Stock Appreciation Right
after it is granted, (iii) cancel an Option when the exercise price thereof exceeds the Fair Market Value of the underlying Shares in exchange for cash or another Award or grant substitute Options with a lower exercise price than the cancelled
Options, (iv) cancel a Stock Appreciation Right when the Grant Price exceeds the Fair Market Value of the underlying Shares in exchange for cash or another Award, or (v) take any other action with respect to an Option or Stock Appreciation
Right that would be treated as a repricing under the rules and regulations of the principal securities exchange on which the Shares are traded, in each case without the approval of the Company’s stockholders.
| 8. |
Restricted Stock and Restricted Stock Units. |
8.1 Restricted Stock. The
Committee may grant Awards to Eligible Individuals of Restricted Stock, which shall be evidenced by an Agreement between the Company and the Grantee. Each Agreement shall contain such restrictions, terms and conditions as the Committee may, in its
discretion, determine and (without limiting the generality of the foregoing) such Agreements may require that an appropriate legend be placed on Share certificates, if any. The Committee may, in its discretion, provide that a Participant’s
ownership of Restricted Stock 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 Stock Awards evidenced in such manner. Awards of Restricted Stock shall be subject to
the terms and provisions set forth below in this Section 8.1.
(a) Rights of Grantee. Subject to the foregoing provisions
concerning book entry issuance, Shares of Restricted Stock granted pursuant to an Award hereunder shall be issued in the name of the Grantee as soon as reasonably practicable after the Award is granted provided that the Grantee has executed an
Agreement evidencing the Award, the appropriate blank stock powers and, in the discretion of the Committee, an escrow agreement and any other documents which the Committee may require as a condition to the issuance of such Shares. If a Grantee shall
fail to execute the Agreement evidencing a Restricted Stock Award, or any documents which the Committee may require within the time period prescribed by the Committee at the time the Award is granted, the Award shall be null and void. At the
discretion of the Committee, Shares issued in connection with a Restricted Stock Award shall be deposited together with the stock powers with an escrow agent (which may be the Company) designated by
15
the Committee. Unless the Committee determines otherwise and as set forth in the Agreement, upon delivery of the Shares to the escrow agent, the Grantee shall have all of the rights of a
stockholder with respect to such Shares, including the right to vote the Shares and to receive all dividends or other distributions paid or made with respect to the Shares.
(b) Non-Transferability. Until all restrictions upon the Shares of Restricted Stock awarded to a Grantee shall have lapsed in the
manner set forth in Section 8.1(c), such Shares shall not be sold, transferred or otherwise disposed of and shall not be pledged or otherwise hypothecated other than pursuant to the laws of descent and distribution.
(c) Lapse of Restrictions.
(i) Generally. Restrictions upon Shares of Restricted Stock awarded hereunder shall lapse at such time or times and on
such terms and conditions as the Committee may determine. The Agreement evidencing the Award shall set forth any such restrictions.
(ii) Effect of Change in Control. Section 13(b) shall control the treatment of any Shares of Restricted Stock then
outstanding in the event of a Change in Control.
(d) Treatment of Dividends. At the time an Award of Shares of Restricted Stock is
granted, the Committee may, in its discretion, determine that the payment to the Grantee of dividends, or a specified portion thereof, declared or paid on such Shares by the Company shall be (a) deferred until the lapsing of the restrictions
imposed upon such Shares and (b) held by the Company for the account of the Grantee until such time. In the event that dividends are to be deferred, the Committee shall determine whether such dividends are to be reinvested in Shares (which
shall be held as additional Shares of Restricted Stock) or held in cash. If deferred dividends are to be held in cash, there may be credited at the end of each year (or portion thereof) interest on the amount of the account at the beginning of the
year at a rate per annum as the Committee, in its discretion, may determine. Payment of deferred dividends in respect of Shares of Restricted Stock (whether held in cash or as additional Shares of Restricted Stock), together with interest accrued
thereon, if any, shall be made upon the lapsing of restrictions imposed on the Shares in respect of which the deferred dividends were paid, and any dividends deferred (together with any interest accrued thereon) in respect of any Shares of
Restricted Stock shall be forfeited upon the forfeiture of such Shares.
(e) Delivery of Shares. Upon the lapse of the restrictions
on Shares of Restricted Stock, the Committee shall cause a stock certificate to be delivered to the Grantee with respect to such Shares, free of all restrictions hereunder (or, in the case of book entry Shares, such restrictions and legend shall be
removed from the confirmation and account statements delivered to the Participant or the Participant’s beneficiary or estate, as the case may be, in book-entry form).
8.2 Restricted Stock Units. The Committee may grant to Eligible Individuals Awards of Restricted Stock Units, which shall be evidenced
by an Agreement. Each such Agreement shall contain such restrictions, terms and conditions as the Committee may, in its discretion, determine. Awards of Restricted Stock Units shall be subject to the terms and provisions set forth below in this
Section 8.2.
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(a) Payment of Awards. Each Restricted Stock Unit shall represent the right of a Grantee
to receive a payment upon vesting of the Restricted Stock Unit or on any later date specified by the Committee equal to the Fair Market Value of a Share as of the date the Restricted Stock Unit was granted, the vesting date or such other date as
determined by the Committee at the time the Restricted Stock Unit was granted. The Committee may, at the time a Restricted Stock Unit is granted, provide a limitation on the amount payable in respect of each Restricted Stock Unit and may provide for
Dividend Equivalent Rights with respect to such Award; provided, that no Dividend Equivalent Rights shall be paid except to the extent the underlying Restricted Stock Unit is paid or settled. The Committee may provide for the settlement of
Restricted Stock Units in cash or with Shares having a Fair Market Value equal to the payment to which the Grantee has become entitled.
(b) Non-Transferability. Until all restrictions upon Restricted Stock Units awarded to a Grantee shall have lapsed in the manner set
forth in this Section 8.2, such Restricted Stock Units shall not be sold, transferred or otherwise disposed of and shall not be pledged or otherwise hypothecated other than pursuant to the laws of descent and distribution.
(c) Effect of Change in Control. Section 13(b) shall control the treatment of any Restricted Stock Units then outstanding in the
event of a Change in Control.
9.1 Performance Units. The Committee, in its discretion, may
grant Awards of Performance Units to Eligible Individuals, the terms and conditions of which shall be set forth in an Agreement between the Company and the Grantee; provided that no Eligible Individual may be granted Performance Awards in the
aggregate in respect of more than 1,000,000 Shares with respect to any calendar year. Contingent upon the attainment of specified Performance Objectives within the Performance Cycle, Performance Units represent the right to receive payment as
provided in Section 9.1(b) of (i) the Fair Market Value of a Share on the date the Performance Unit was granted, the date the Performance Unit became vested or any other date specified by the Committee or (ii) a percentage (which may
be more than 100%) of the amount described in clause (i) depending on the level of Performance Objective attainment; provided, however, that the Committee may at the time a Performance Unit is granted specify a maximum amount payable in
respect of a vested Performance Unit. Each Agreement shall specify the number of Performance Units to which it relates, the Performance Objectives which must be satisfied in order for the Performance Units to vest and the Performance Cycle within
which such Performance Objectives must be satisfied. At the time a Performance Unit is granted, the Committee may provide for Dividend Equivalent Rights with respect to such Award; provided, that no Dividend Equivalent Rights shall be paid except to
the extent the underlying Performance Unit is paid or settled.
(a) Vesting and Forfeiture. Subject to Sections 9.3(c) and 9.4, a
Grantee shall become vested with respect to the Performance Units to the extent that the Performance Objectives set forth in the Agreement are satisfied for the Performance Cycle.
17
(b) Non-Transferability. Until all restrictions upon Performance Units awarded to a
Grantee shall have lapsed in the manner set forth in this Section 9.1, such Performance Units shall not be sold, transferred or otherwise disposed of and shall not be pledged or otherwise hypothecated other than pursuant to the laws of descent
and distribution.
(c) Payment of Awards. Subject to Section 9.3(c), payment to Grantees in respect of vested Performance
Units shall be made as soon as practicable after the last day of the Performance Cycle to which such Award relates unless the Agreement evidencing the Award provides for the deferral of payment, in which event the terms and conditions of the
deferral shall be set forth in the Agreement. Subject to Section 9.4, such payments may be made entirely in Shares valued at their Fair Market Value, entirely in cash, or in such combination of Shares and cash as the Committee in its discretion
shall determine at any time prior to such payment, provided, however, that if the Committee in its discretion determines to make such payment entirely or partially in Shares of Restricted Stock, the Committee must determine the extent to
which such payment will be in Shares of Restricted Stock and the terms of such Restricted Stock at the time the Award is granted.
9.2
Performance Shares. The Committee, in its discretion, may grant Awards of Performance Shares to Eligible Individuals, the terms and conditions of which shall be set forth in an Agreement between the Company and the Grantee. Awards of
Performance Shares shall be subject to the following terms and provisions:
(a) Rights of Grantee. The Committee shall provide at
the time an Award of Performance Shares is made the time or times at which the actual Shares represented by such Award shall be issued in the name of the Grantee; provided, however, that no Performance Shares shall be issued until the Grantee
has executed an Agreement evidencing the Award, the appropriate blank stock powers and, in the discretion of the Committee, an escrow agreement and any other documents which the Committee may require as a condition to the issuance of such
Performance Shares. If a Grantee shall fail to execute the Agreement evidencing an Award of Performance Shares, the appropriate blank stock powers and, in the discretion of the Committee, an escrow agreement and any other documents which the
Committee may require within the time period prescribed by the Committee at the time the Award is granted, the Award shall be null and void. At the discretion of the Committee, Shares issued in connection with an Award of Performance Shares shall be
deposited together with the stock powers with an escrow agent (which may be the Company) designated by the Committee. Alternatively, the Committee may, in its discretion, provide that Performance Shares shall be evidenced by the book entry
procedures set forth in Section 8.1. Except as restricted by the terms of the Agreement, upon delivery of the Shares to the escrow agent, or the book entry of such Shares, the Grantee shall have, in the discretion of the Committee, all of the
rights of a stockholder with respect to such Shares, including the right to vote the Shares and to receive all dividends or other distributions paid or made with respect to the Shares.
(b) Non-Transferability. Until any restrictions upon the Performance Shares awarded to a Grantee shall have lapsed in the manner set
forth in Section 9.2(c) or 9.4, such Performance Shares shall not be sold, transferred or otherwise disposed of and shall not be pledged or otherwise hypothecated other than pursuant to the laws of descent and distribution, nor shall they be
delivered to the Grantee . The Committee may also impose such other restrictions and conditions on the Performance Shares, if any, as it deems appropriate.
18
(c) Lapse of Restrictions. Subject to Sections 9.3(c) and 9.4, restrictions upon
Performance Shares awarded hereunder shall lapse and such Performance Shares shall become vested at such time or times and on such terms, conditions and satisfaction of Performance Objectives as the Committee may, in its discretion, determine at the
time an Award is granted.
(d) Treatment of Dividends. The payment to the Grantee of dividends declared or paid on Shares
represented by an Award of Performance Shares which have been issued by the Company to the Grantee shall be deferred until the lapsing of the restrictions imposed upon such Performance Shares and held by the Company or its agent for the account of
the Grantee until such time. The Committee shall determine whether such dividends are to be reinvested in shares of Stock (which shall be held as additional Performance Shares) or held in cash. If deferred dividends are to be held in cash, there may
be credited at the end of each year (or portion thereof) interest on the amount of the account at the beginning of the year at a rate per annum as the Committee, in its discretion, may determine. Payment of deferred dividends in respect of
Performance Shares (whether held in cash or in additional Performance Shares), together with interest accrued thereon, if any, shall be made upon the lapsing of restrictions imposed on the Performance Shares in respect of which the deferred
dividends were paid, and any dividends deferred (together with any interest accrued thereon) in respect of any Performance Shares shall be forfeited upon the forfeiture of such Performance Shares.
(e) Delivery of Shares. Upon the lapse of the restrictions on Performance Shares awarded hereunder, the Committee shall cause a stock
certificate to be delivered to the Grantee with respect to such Shares, free of all restrictions hereunder, or in the case of book entry Shares, such restrictions and legend shall be removed from the confirmation and account statements delivered to
the Participant or the Participant’s beneficiary or estate, as the case may be, in book entry form.
9.3 Performance
Objectives.
(a) Establishment. Performance Objectives for Performance Awards may be expressed in terms of (i) earnings
per Share, (ii) net revenue, (iii) adjusted EBITDA (iv) Share price, (v) pre-tax profits, (vi) net earnings, (vii) return on equity or assets, (viii) operating income, (ix) EBITDA margin, (x) EBITDA
margin improvement, (xi) bad debt expense, (xii) cash receipts, (xiii) uncompensated care expense, (xiv) days in net revenue in net patient accounts receivable, (xv) gross income, (xvi) net income (before or after
taxes), (xvii) cash flow; (xviii) gross profit, (xix) gross profit return on investment, (xx) gross margin return on investment, (xxi) gross margin; (xxii) operating margin, (xxiii) working capital,
(xxiv) earnings before interest and taxes, (xxv) return on capital, (xxvi) return on invested capital, (xxvii) revenue growth, (xxviii) annual recurring revenues, (xxix) recurring revenues, (xxx) total shareholder
return, (xxxi) economic value added, (xxxii) specified objectives with regard to limiting the level of increase in all or a portion of the Company’s bank debt or other long-term or short-term public or private debt or other similar
financial obligations of the Company, which may be calculated net of cash balances and/or other offsets and adjustments as may be established by the Committee in its sole discretion, (xxxiii) reduction in operating expenses, or
19
(xxxiv) any combination of the foregoing. Performance Objectives may be in respect of the performance of the Company, any of its Subsidiaries, any of its Divisions or any combination
thereof. Performance Objectives may be absolute or relative (to prior performance of the Company or to the performance of one or more other entities or external indices) and may be expressed in terms of a progression within a specified range. The
Performance Objectives with respect to a Performance Cycle shall be established in writing by the Committee by the earlier of (x) the date on which a quarter of the Performance Cycle has elapsed or (y) the date which is ninety
(90) days after the commencement of the Performance Cycle, and in any event while the performance relating to the Performance Objectives remain substantially uncertain.
(b) Effect of Certain Events. At the time of the granting of a Performance Award, or at any time thereafter, in either case to the
extent permitted under Section 162(m) of the Code and the regulations thereunder without adversely affecting the treatment of the Performance Award as Performance-Based Compensation, the Committee may provide for the manner in which performance
will be measured against the Performance Objectives (or may adjust the Performance Objectives) to reflect the impact of specified corporate transactions, accounting or tax law changes, items that are unusual in nature or infrequently occurring,
other extraordinary or nonrecurring events or any other event either not directly related to the operations of the Company or not within the reasonable control of the Company’s management.
(c) Determination of Performance. Prior to the vesting, payment, settlement or lapsing of any restrictions with respect to any
Performance Award that is intended to constitute Performance-Based Compensation made to a Grantee who is subject to Section 162(m) of the Code, the Committee shall certify in writing that the applicable Performance Objectives have been
satisfied to the extent necessary for such Award to qualify as Performance Based Compensation.
9.4 Effect of Change in Control.
Section 13(b) shall control the treatment of any Performance Units then outstanding in the event of a Change in Control.
The Committee may grant a Share Award to any Eligible Individual
on such terms and conditions as the Committee may determine in its sole discretion. Share Awards may be made as additional compensation for services rendered by the Eligible Individual or may be in lieu of cash or other compensation to which the
Eligible Individual is entitled from the Company.
| 11. |
Effect of a Termination of Employment. |
The Agreement evidencing the grant of
each Award shall set forth the terms and conditions applicable to such Award upon a termination or change in the status of the employment of the Grantee by the Company, a Subsidiary or a Division (including a termination or change by reason of the
sale of a Subsidiary or a Division), which shall be as the Committee may, in its discretion, determine at the time the Award is granted or thereafter.
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| 12. |
Adjustment Upon Changes in Capitalization. |
In the event of a Change in
Capitalization, the Committee shall conclusively determine the appropriate adjustments to (i) the maximum number and class of Shares or other stock or securities with respect to which Awards may be granted under the Plan, (ii) the number
and class of Shares or other stock or securities which are subject to outstanding Awards granted under the Plan and the exercise price therefor, if applicable, and (iii) the Performance Objectives.
Any such adjustment in the Shares or other stock or securities (a) subject to outstanding Incentive Stock Options (including any
adjustments in the exercise price) shall be made in such manner as not to constitute a modification as defined by Section 424(h)(3) of the Code and only to the extent permitted by Sections 422 and 424 of the Code or (b) subject to
outstanding Awards that are intended to qualify as Performance-Based Compensation shall be made in such a manner as not to adversely affect the treatment of the Awards as Performance-Based Compensation. In addition, (a) no adjustment to any
Award that is not subject to Section 409A of the Code shall be made in a manner that would subject the Award to Section 409A of the Code and (b) any adjustment to an Award that is subject to Section 409A of the Code shall be made
only in a manner and to the extent permitted by Section 409A of the Code. If, by reason of a Change in Capitalization, a Grantee of an Award shall be entitled to, or an Optionee shall be entitled to exercise an Option with respect to, new,
additional or different shares of stock or securities of the Company or any other corporation, such new, additional or different shares shall thereupon be subject to all of the conditions, restrictions and performance criteria which were applicable
to the Shares subject to the Award or Option, as the case may be, prior to such Change in Capitalization.
| 13. |
Effect of Certain Transactions; Effect of Change in Control. |
(a) Effect of
Certain Transactions. Subject to Sections 5.10, 6.7, 8.2(b) and 9.4 or as otherwise provided in an Agreement, in the event of (a) the liquidation or dissolution of the Company or (b) a merger or consolidation of the Company (a
“Transaction”), the Plan and the Awards issued hereunder shall continue in effect in accordance with their respective terms, except that following a Transaction either (i) each outstanding Award shall be treated as provided for in the
agreement entered into in connection with the Transaction or (ii) if not so provided in such agreement, each Grantee shall be entitled to receive in respect of each Share subject to any outstanding Awards, as the case may be, upon exercise of
any Option or Stock Appreciation Right or payment or transfer in respect of any Award, the same number and kind of stock, securities, cash, property or other consideration that each holder of a Share was entitled to receive in the Transaction in
respect of a Share; provided, however, that such stock, securities, cash, property, or other consideration shall remain subject to all of the conditions, restrictions and performance criteria which were applicable to the Awards prior to such
Transaction. For the avoidance of doubt, the Committee may, without the consent of any Grantee, provide for the cancellation of outstanding Awards in connection with a Transaction in exchange for the payment in cash or property equal in value to the
Fair Market Value of the Shares underlying such Awards, less, in the case of Options (and Stock Appreciation Rights), the aggregate exercise price (or Grant Price) thereof; provided that Options with an aggregate exercise price that is equal
to or in excess of the aggregate Fair Market Value of the Shares underlying such Options, and Stock Appreciation Rights whose Grant Price is equal to or in excess of the Fair Market Value of a
21
Share to which such Stock Appreciation Rights relate, may be cancelled in connection with such Transaction without any consideration being paid in respect thereof. The treatment of any Award as
provided in this Section 13(a) shall be conclusively presumed to be appropriate for purposes of Section 12.
(b) Effect of
Change in Control. Notwithstanding any other provision of the Plan to the contrary, in the event of a Change in Control, the following provisions of this Section 13(b) shall apply except to the extent an Award Agreement provides for a
different treatment (in which case the Award Agreement shall govern and this Section 13(b) shall not be applicable):
(i) If and to the extent that outstanding Awards under the Plan (A) are assumed by the successor corporation (or affiliate
thereto) or continued or (B) are replaced with equity awards that preserve the existing value of the Awards at the time of the Change in Control and provide for subsequent payout in accordance with a vesting schedule and Performance Objectives,
as applicable, that are the same or more favorable to the Participants than the vesting schedule and Performance Objectives applicable to the Awards, then all such Awards or such substitutes thereof shall remain outstanding and be governed by their
respective terms and the provisions of the Plan, subject to Section 13(b)(iv) below.
(ii) If and to the extent that
outstanding Awards under the Plan are not assumed, continued or replaced in accordance with Section 13(b)(i) above, then upon the Change in Control the following treatment (referred to as “Change-in-Control Treatment”) shall apply to
such Awards: (A) outstanding Options and Stock Appreciation Rights shall immediately vest and become exercisable; (B) the restrictions and other conditions applicable to outstanding Restricted Shares, Restricted Stock Units and Stock
Awards, including vesting requirements, shall immediately lapse; such Awards shall be free of all restrictions and fully vested; and, with respect to Restricted Stock Units, shall be payable immediately in accordance with their terms or, if later,
as of the earliest permissible date under Code Section 409A; and (C) outstanding Performance Awards granted under the Plan shall immediately vest and shall become immediately payable in accordance with their terms as if the Performance
Objectives have been achieved at the target performance level.
(iii) If and to the extent that outstanding Awards under
the Plan are not assumed, continued or replaced in accordance with Section 13(b)(i) above, then in connection with the application of the Change-in-Control Treatment set forth in Section 13(b)(ii) above, the Board may, in its sole
discretion, provide for cancellation of such outstanding Awards at the time of the Change in Control in which case a payment of cash, property or a combination thereof shall be made to each such Grantee upon the consummation of the Change in Control
that is determined by the Board in its sole discretion and that is at least equal to the excess (if any) of the value of the consideration that would be received in such Change in Control by the holders of the Company’s securities relating to
such Awards over the exercise or purchase price (if any) for such Awards (except that, in the case of an Option or Stock Appreciation Right, such payment shall be limited as necessary to prevent the Option or Stock Appreciation Right from being
subject to the additional tax under Code Section 409A).
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(iv) If and to the extent that (A) outstanding Awards are assumed, continued
or replaced in accordance with Section 13(b)(i) above and (B) a Grantee’s employment with, or performance of services for, the Company or any of its Subsidiaries or successors is terminated by the Company or such Subsidiary or
successor for any reasons other than Cause or by such Grantee for Good Reason, in each case, within the two-year period commencing on the Change in Control, then, as of the date of such Participant’s termination, the Change-in-Control Treatment
set forth in Section 13(b)(ii) above shall apply to all assumed or replaced Awards of such Participant then outstanding.
(v) Outstanding Options or Stock Appreciation Rights that are assumed, continued or replaced in accordance with
Section 13(b)(i) may be exercised by the Grantee in accordance with the applicable terms and conditions of such Award as set forth in the applicable Agreement or elsewhere; provided, however, that Options or Stock Appreciation Rights that
become exercisable in accordance with Section 13(b)(iv) may be exercised until the expiration of the original full term of such Option or Stock Appreciation Right notwithstanding the other original terms and conditions of such Award, to the
extent allowed without such Option or Stock Appreciation Right becoming subject to the additional tax under Code Section 409A).
Following the required registration of any equity security of
the Company pursuant to Section 12 of the Exchange Act:
(a) The Plan is intended to comply with Rule 16b-3 promulgated under the
Exchange Act and the Committee shall interpret and administer the provisions of the Plan or any Agreement in a manner consistent therewith. Any provisions inconsistent with such Rule shall be inoperative and shall not affect the validity of the
Plan.
(b) Unless otherwise expressly stated in the relevant Agreement, each Option, Stock Appreciation Right and Performance Award
granted under the Plan is intended to be Performance-Based Compensation. The Committee shall not be entitled to exercise any discretion otherwise authorized hereunder with respect to such Awards if the ability to exercise such discretion or the
exercise of such discretion itself would cause the compensation attributable to such Awards to fail to qualify as Performance-Based Compensation.
(c) To the extent that any legal requirement of Section 16 of the Exchange Act or Section 162(m) of the Code as set forth in the
Plan ceases to be required under Section 16 of the Exchange Act or Section 162(m) of the Code, that Plan provision shall cease to apply.
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| 15. |
Termination and Amendment of the Plan or Modification of Awards. |
15.1 Plan
Amendment or Termination. The Plan shall terminate on the day preceding the tenth anniversary of the Effective Date and no Award may be granted thereafter. The Board may sooner terminate the Plan and the Board may at any time and from time to
time amend, modify or suspend the Plan; provided, however, that:
(a) no such amendment, modification, suspension or termination
shall impair or adversely alter any Awards theretofore granted under the Plan, except with the written consent of the Grantee, nor shall any amendment, modification, suspension or termination deprive any Grantee of any Shares which he or she may
have acquired through or as a result of the Plan; and
(b) to the extent necessary under any applicable law, regulation or exchange
requirement with which the Committee determines it is necessary or desirable for the Company to comply, no amendment shall be effective unless approved by the stockholders of the Company in accordance with applicable law, regulation or exchange
requirement.
15.2 Modification of Awards. No modification of an Award shall adversely alter or impair any rights or obligations
under the Award without the written consent of the Grantee, as the case may be.
| 16. |
Non-Exclusivity of the Plan. |
The adoption of the Plan by the Board shall not be
construed as amending, modifying or rescinding any previously approved incentive arrangement or as creating any limitations on the power of the Board to adopt such other incentive arrangements as it may deem desirable, including, without limitation,
the granting of stock options otherwise than under the Plan, and such arrangements may be either applicable generally or only in specific cases.
| 17. |
Limitation of Liability. |
As illustrative of the limitations of liability of the
Company, but not intended to be exhaustive thereof, nothing in the Plan shall be construed to:
(a) give any person any right to be
granted an Award other than at the sole discretion of the Committee;
(b) give any person any rights whatsoever with respect to Shares
except as specifically provided in the Plan;
(c) limit in any way the right of the Company or any Subsidiary to terminate the employment
of any person at any time; or
(d) be evidence of any agreement or understanding, expressed or implied, that the Company will employ any
person at any particular rate of compensation or for any particular period of time.
| 18. |
Regulations and Other Approvals; Governing Law. |
18.1 Governing Law.
Except as to matters of federal law, the Plan and the rights of all persons claiming hereunder shall be construed and determined in accordance with the laws of the State of Delaware without giving effect to conflicts of laws principles thereof.
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18.2 Other Laws. The obligation of the Company to sell or deliver Shares with respect to
Awards granted under the Plan shall be subject to all applicable laws, rules and regulations, including all applicable federal and state securities laws, and the obtaining of all such approvals by governmental agencies as may be deemed necessary or
appropriate by the Committee. The Board may make such changes as may be necessary or appropriate to comply with the rules and regulations of any government authority, or to obtain for Eligible Individuals granted Incentive Stock Options the tax
benefits under the applicable provisions of the Code and regulations promulgated thereunder. Each Award is subject to the requirement that, if at any time the Committee determines, in its discretion, that the listing, registration or qualification
of Shares issuable pursuant to the Plan is required by any securities exchange or under any state or federal law, or the consent or approval of any governmental regulatory body is necessary or desirable as a condition of, or in connection with, the
grant of an Award or the issuance of Shares, no Awards shall be granted or payment made or Shares issued, in whole or in part, unless listing, registration, qualification, consent or approval has been effected or obtained free of any conditions as
acceptable to the Committee.
18.3 Securities Matters. Notwithstanding anything contained in the Plan or any Agreement to the
contrary, in the event that the disposition of Shares acquired pursuant to the Plan is not covered by a then current registration statement under the Securities Act of 1933, as amended (the “Securities Act”), and is not otherwise exempt
from such registration, such Shares shall be restricted against transfer to the extent required by the Securities Act and Rule 144 or other regulations thereunder. The Committee may require any individual receiving Shares pursuant to an Award
granted under the Plan, as a condition precedent to receipt of such Shares, to represent and warrant to the Company in writing that the Shares acquired by such individual are acquired without a view to any distribution thereof and will not be sold
or transferred other than pursuant to an effective registration thereof under the Securities Act or pursuant to an exemption applicable under the Securities Act or the rules and regulations promulgated thereunder. Any certificates evidencing any
such Shares shall be appropriately amended or have an appropriate legend placed thereon to reflect their status as restricted securities as aforesaid.
18.4 Compliance With Section 409A. All Awards granted under the plan are intended either not to be subject to Section 409A of
the Code or, if subject to Section 409A of the Code, to be administered, operated and construed in compliance with Section 409A of the Code and any guidance issued thereunder. Notwithstanding this or any other provision of the Plan to the
contrary, the Committee may amend the Plan or any Award granted hereunder in any manner, or take any other action, that it determines, in its sole discretion, is necessary, appropriate or advisable to cause the Plan or any Award granted hereunder to
comply with Section 409A and any guidance issued thereunder. In the event that it is reasonably determined by the Board or Committee that, as a result of Section 409A of the Code, payments in respect of any Award under the Plan may not be
made at the time contemplated by the terms of the Plan or the relevant Agreement, as the case may be, without causing the Participant holding such Award to be subject to taxation under Section 409A of the Code, the Company will make such
payment on the first day that would not result in the Participant incurring any tax liability under Section 409A of the Code; which, if the Participant is a “specified employee” within the meaning of the Section 409A, generally
shall be the first day following the six-month period beginning on the date of Participant’s termination of employment. Any such action, once taken, shall be deemed to be effective from the earliest date necessary to avoid a violation of
Section 409A and shall be
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final, binding and conclusive on all Eligible Individuals and other individuals having or claiming any right or interest under the Plan. Although the Company intends to administer the Plan so
that Awards will be exempt from, or will comply with, the requirements of Section 409A of the Code, the Company does not warrant that any Award under the Plan will qualify for favorable tax treatment under Section 409A of the Code or any
other provision of federal, state, local or foreign law. The Company shall not be liable to any Participant for any tax, interest, or penalties that Participant might owe as a result of the grant, holding, vesting, exercise, or payment of any Award
under the Plan.
19.1 Forfeiture and Clawback Provisions. Pursuant to its
general authority to determine the terms and conditions applicable to Awards granted under the Plan, the Committee shall have the right to provide, in an Award Agreement, or to require a Participant to agree by separate written or electronic
instrument at or after grant, that all Awards (including any proceeds, gains or other economic benefit actually or constructively received by the Participant upon any receipt or exercise of any Award or upon the receipt or resale of any Shares
underlying the Award) will be subject to repayment or reimbursement to the extent set forth in any recoupment or clawback provisions which may be included in any such Agreement or separate instrument. In addition, without limiting the foregoing, any
Award granted pursuant to this Plan shall be subject to repayment or reimbursement by the Participant to the Company (i) to the extent that the Participant becomes subject to any recoupment or clawback policy hereafter adopted by the Company,
including any such policy adopted by the Company to comply with the requirements of any applicable laws, rules or regulations, including pursuant to final SEC rules under the Dodd-Frank Wall Street Reform and Consumer Protection Act, or (ii) to
the extent provided under any applicable laws which impose mandatory recoupment, under circumstances set forth in such applicable laws, including the Sarbanes-Oxley Act of 2002.
19.2 Multiple Agreements. The terms of each Award may differ from other Awards granted under the Plan at the same time or at some other
time. The Committee may also grant more than one Award to a given Eligible Individual during the term of the Plan, either in addition to, or in substitution for, one or more Awards previously granted to that Eligible Individual.
19.3 Beneficiary Designation. Each Grantee may, from time to time, name one or more individuals (each, a “Beneficiary”) to
whom any benefit under the Plan is to be paid or who may exercise any rights of the Grantee under any Award granted under the Plan in the event of the Grantee’s death before he or she receives any or all of such benefit or exercises such
Option. Each such designation shall revoke all prior designations by the same Grantee, shall be in a form prescribed by the Company, and will be effective only when filed by the Grantee in writing with the Company during the Grantee’s lifetime.
In the absence of any such designation, benefits remaining unpaid at the Grantee’s death and rights to be exercised following the Grantee’s death shall be paid to or exercised by the Grantee’s estate.
19.4 Withholding of Taxes.
(a) At such times as an Optionee or Grantee recognizes taxable income in connection with the receipt of Shares or cash hereunder (a
“Taxable Event”), the Optionee or
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Grantee shall pay to the Company an amount equal to the federal, state and local income taxes and other amounts as may be required by law to be withheld by the Company in connection with the
Taxable Event (the “Withholding Taxes”) prior to the issuance, or release from escrow, of such Shares or the payment of such cash. The Company shall have the right to deduct from any payment of cash to an Optionee or Grantee an amount
equal to the Withholding Taxes in satisfaction of the obligation to pay Withholding Taxes. The Committee may provide in an Agreement evidencing an Award at the time of grant or thereafter that the Optionee or Grantee, in satisfaction of the
obligation to pay Withholding Taxes to the Company, may elect to have withheld a portion of the Shares issuable to him or her pursuant to the Award having an aggregate Fair Market Value equal to the Withholding Taxes. In the event Shares are
withheld by the Company to satisfy any obligation to pay Withholding Taxes, such Shares shall be retired and cancelled and shall not thereafter be available to grant an Award with respect thereto. In determining the procedures by which Shares will
be withheld for Withholding Taxes, to the extent required to avoid the Company’s incurring an adverse accounting charge, the amount of any Shares so withheld shall not exceed the amount necessary to satisfy Withholding Taxes determined 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.
(b) If an Optionee makes a disposition, within the meaning of Section 424(c) of the Code and regulations promulgated thereunder, of any
Share or Shares issued to such Optionee pursuant to the exercise of an Incentive Stock Option within the two-year period commencing on the day after the date of the grant or within the one-year period commencing on the day after the date of transfer
of such Share or Shares to the Optionee pursuant to such exercise, the Optionee shall, within ten (10) days of such disposition, notify the Company thereof, by delivery of written notice to the Company at its principal executive office.
19.5 Effective Date. The effective date of this Plan shall be April 1, 2016 (the “Effective Date”), subject only to the
approval by the holders of a majority of the securities of the Company entitled to vote thereon, in accordance with the applicable laws.
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