(a) Purpose. Six
Flags Entertainment Corporation, a Delaware corporation (the Company) hereby
establishes this equity-based incentive compensation plan to be known as the Six
Flags Entertainment Corporation Long-Term Incentive Plan (the Plan),
for the following purposes: (i) to enhance the Companys ability to
attract highly qualified personnel; (ii) to strengthen its retention
capabilities; (iii) to enhance the long-term performance and competitiveness of the Company; and (iv) to align the interests of Plan
participants with those of the Companys shareholders.
(b) Effective Date. This
Plan shall become effective on the effective date of the Companys Modified Fourth Amended Joint Plan of Reorganization Under
Chapter 11 of the Bankruptcy Code (Plan of Reorganization), dated as of April 1,
2010, as the same may be further amended or modified (Effective Date).
Terms in the Plan and any Appendix that begin with an initial capital
letter have the defined meaning set forth in Appendix I
or elsewhere in this Plan, in either case unless the context of their use
clearly indicates a different meaning.
(d) Effect on Other Plans, Awards,
and Arrangements. This Plan is not intended to affect and shall
not affect any stock options, equity-based compensation, or other benefits that
the Company or its Affiliates may have provided, or may separately provide in
the future, pursuant to any agreement, plan, or program that is independent of
Incorporated by reference and thereby part of the Plan are the terms set
forth in the following appendices:
2. Types of Awards. The Plan permits the granting of the following types
of Awards according to the Sections of the Plan listed here:
Restricted Share Units (RSUs), and Unrestricted Shares
Deferred Share Units
3. Shares Available for
(a) Generally, subject to Section 13 below, a
total of 4,833,333 Shares shall be available for issuance under the Plan as of
the Effective Date, and if and to the extent the Delayed Draw
Equity Purchase (as defined in the Plan of
Reorganization) is consummated, up to 149,956 additional Shares shall be
available for issuance under the Plan. At
least one-third of the total Shares available for issuance under the Plan shall
be subject to grants of Restricted Shares or Restricted Share Units and the
remainder of the Shares available for issuance under the Plan shall be subject
to Awards other than Restricted Shares or Restricted Share Units. The Shares deliverable pursuant to Awards shall
be authorized but unissued Shares, or Shares that the Company otherwise holds
in treasury or in trust.
(b) Replenishment; Counting of
Shares. Any Shares reserved for Plan Awards will again
be available for future Awards if the Shares for any reason will never be
issued to a Participant or Beneficiary pursuant to an Award (for example, due
to its settlement in cash rather than in Shares, or the Awards forfeiture,
cancellation, expiration, or net settlement without the issuance of Shares). Further, and to the extent permitted under
Applicable Law, the maximum number of Shares available for delivery under the
Plan shall not be reduced by any Shares issued under the Plan through the settlement,
assumption, or substitution of outstanding awards or obligations to grant
future awards as a condition of the Companys or an Affiliates acquiring
another entity. On the other
hand, Shares that a Person owns and tenders in payment of all or part of the
exercise price of an Award or in satisfaction of applicable Withholding Taxes shall
not increase the number of Shares available for future issuance under the Plan. Awards settled in cash will not count against
the maximum number of Shares issuable under the Plan.
(c) ISO Share Reserve. The number of Shares that are available for ISO Awards shall
not exceed 3,000,000 Shares (as adjusted pursuant to Section 13 of the
Plan, and as determined in accordance with Code Section 422).
(a) General Rule. Subject
to the express provisions of the Plan, the Committee shall determine from the
class of Eligible Persons those Persons to whom Awards may be granted. Each Award shall be evidenced by an Award
Agreement that sets forth its Grant Date and all other terms and conditions of
the Award, that is signed on behalf of the Company (or delivered by an
authorized agent through an electronic medium), and that, if required by the
Committee, is signed by the Eligible Person as an acceptance of the Award. The grant of an Award shall not obligate the Company or
any Affiliate to continue the employment or service of any Eligible Person, or
to provide any future Awards or other remuneration at any time thereafter.
(b) Option and SAR Limits per Person. During
the term of the Plan, no Participant may receive Options and SARs that relate
to more than 50% of the maximum number of Shares issuable under the Plan as of
its Effective Date, as such number may be adjusted pursuant to Section 13(a) below.
(c) Replacement Awards.
Subject to Applicable Law (including any associated shareholder approval
requirements), the Committee may, in its sole discretion and upon such terms as
it deems appropriate, require as a condition of the grant of an Award to a
Participant that the Participant, with the Participants consent, surrender for
cancellation some or all of the Awards or other grants that the Participant has
received under this Plan or otherwise.
An Award conditioned upon such surrender may or may not be the same type
of Award, may cover the same (or a lesser or greater) number of Shares as such
surrendered Award, may have other terms that are determined without
regard to the terms or conditions of such surrendered
Award, and may contain any other terms that the Committee deems
appropriate. However, neither the Company
nor the Committee shall, without shareholder approval, either (a) allow
for a repricing within the meaning of federal securities laws applicable to
proxy statement disclosures, or (b) cancel an outstanding Option or SAR whose
exercise price is greater than Fair Market Value at the time of cancellation
for the purpose of reissuing the Option or SAR to the Participant at a lower
exercise price or granting a replacement award of a different type.
5. Stock Options.
(a) Grants. Subject to the special rules for ISOs set forth
in the next paragraph, the Committee may grant Options to Eligible Persons
pursuant to Award Agreements setting forth terms and conditions that are not
inconsistent with the Plan, that may be immediately exercisable or that may
become exercisable in whole or in part based on future events or conditions, that
may include vesting or other requirements for the right to exercise the Option,
and that may differ for any reason between Eligible Persons or classes of
Eligible Persons, provided in all instances
(i) the exercise price for Shares subject to
purchase through exercise of an Option shall not be less than 100% of the Fair Market Value of the underlying Shares on the Grant
(ii) no Option shall be exercisable for a term
ending more than ten years after its Grant Date.
(b) Special ISO Provisions.
The following provisions shall control any grants of Options that are
denominated as ISOs.
The Committee may grant ISOs only to Employees (including officers who
are Employees) of the Company or an Affiliate that is a parent corporation or
subsidiary corporation within the meaning of Code Section 424.
(ii) Documentation. Each
Option that is intended to be an ISO must be designated in the Award Agreement
as an ISO, provided that any Option
designated as an ISO will be a Non-ISO to the extent the Option fails to meet
the requirements of Code Section 422.
In the case of an ISO, the Committee shall determine on the Date of
Grant the acceptable methods of paying the exercise price for Shares, and it
shall be included in the applicable Award Agreement.
(iii) $100,000 Limit.
To the extent that the aggregate Fair Market Value of Shares with
respect to which ISOs first become exercisable by a Participant in any calendar
year (under this Plan and any other plan of the Company or any Affiliate)
exceeds U.S. $100,000, such excess Options shall be treated as Non-ISOs. For purposes of determining whether the U.S.
$100,000 limit is exceeded, the Fair Market Value of the Shares subject to an
ISO shall be determined as of the Grant Date.
In reducing the number of Options treated as ISOs to meet the U.S.
$100,000 limit, the most recently granted
Options shall be
reduced first. In the event that Code Section 422
is amended to alter the limitation set forth therein, the limitation of this
paragraph shall be automatically adjusted accordingly.
(iv) Grants to 10% Holders.
In the case of an ISO granted to an Employee who is a Ten Percent Holder
on the Grant Date, the ISOs term shall not exceed five years from the Grant
Date, and the exercise price shall be at least 110% of the Fair Market Value of
the underlying Shares on the Grant Date.
In the event that Code Section 422 is amended to alter the
limitations set forth therein, the limitation of this paragraph shall be
automatically adjusted accordingly.
(v) Substitution of Options. In
the event the Company or an Affiliate acquires (whether by purchase, merger, or
otherwise) all or substantially all of outstanding capital stock or assets of
another corporation or in the event of any reorganization or other transaction
qualifying under Code Section 424, the Committee may, in accordance with
the provisions of that Section, substitute ISOs for ISOs previously granted under
the plan of the acquired company provided (A) the excess of the aggregate
Fair Market Value of the Shares subject to an ISO immediately after the
substitution over the aggregate exercise price of such shares is not more than
the similar excess immediately before such substitution, and (B) the new
ISO does not give additional benefits to the Participant, including any
extension of the exercise period.
(vi) Notice of Disqualifying Dispositions.
By executing an ISO Award Agreement, each Participant agrees to notify
the Company in writing immediately after the Participant sells, transfers or
otherwise disposes of any Shares acquired through exercise of the ISO, if such
disposition occurs within the earlier of (A) two years of the Grant Date,
or (B) one year after the exercise of the ISO being exercised. Each Participant further agrees to provide
any information about a disposition of Shares as may be requested by the
Company to assist it in complying with any applicable tax laws.
(c) Method of Exercise. Each
Option may be exercised, in whole or in part (provided
that the Company shall not be required to issue fractional shares) at any time
and from time to time prior to its expiration, but only pursuant to the terms
of the applicable Award Agreement, and subject to the times, circumstances and
conditions for exercise contained in the applicable Award Agreement. Exercise shall occur by delivery of both written
notice of exercise to the secretary of the Company, and payment of the full
exercise price for the Shares being purchased.
The methods of payment that the Committee may in its discretion accept
or commit to accept in an Award Agreement include:
(i) cash or check payable to the Company (in
(ii) other Shares that (A) are owned by
the Participant who is purchasing Shares pursuant to an Option, (B) have a Fair
Market Value on the date of surrender equal to the aggregate exercise price of
the Shares as to which the Option is being exercised, (C) are all, at
the time of such
surrender, free and clear of any and all claims, pledges, liens and
encumbrances, or any restrictions which would in any manner restrict the
transfer of such shares to or by the Company (other than such restrictions as
may have existed prior to an issuance of such Shares by the Company to such
Participant), and (D) are duly endorsed for transfer to the Company;
(iii) a net exercise by surrendering to the Company Shares otherwise receivable
upon exercise of the Option;
(iv) a cashless exercise program, pursuant to
which a Participant may elect to concurrently provide irrevocable instructions (A) to
such Participants broker or dealer to effect the immediate sale of the
purchased Shares and remit to the Company, out of the sale proceeds available
on the settlement date, sufficient funds to cover the exercise price of the
Option plus all applicable taxes required to be withheld by the Company by
reason of such exercise, and (B) to the Company to deliver the
certificates for the purchased Shares directly to such broker or dealer in
order to complete the sale; or
(v) any combination of the foregoing methods
Company shall not be required to deliver Shares pursuant to the exercise of an
Option until the Company has received sufficient funds to cover the full
exercise price due and all applicable Withholding Taxes required by reason of
Notwithstanding any other
provision of the Plan to the contrary, no Participant who is a Director or an executive
officer of the Company within the meaning of Section 13(k) of the
Exchange Act shall be permitted to make payment with respect to any Awards
granted under the Plan, or continue any extension of credit with respect to
such payment with a loan from the Company or a loan arranged by the Company in
violation of Section 13(k) of the Exchange Act.
(d) Exercise of an Unvested Option. The
Committee in its sole discretion may allow a Participant to exercise an unvested
Option, in which case the Shares then issued shall be Restricted Shares having
analogous vesting restrictions to the unvested Option.
(e) Termination of Continuous Service. The
Committee may establish and set forth in the applicable Award Agreement the
terms and conditions on which an Option shall remain exercisable, if at all,
following termination of a Participants Continuous Service. The Committee may waive or modify these
provisions at any time. To the extent
that a Participant is not entitled to exercise an Option at the date of his or
her termination of Continuous Service, or if the Participant (or other person
entitled to exercise the Option) does not exercise the Option to the extent so
entitled within the time specified in the Award Agreement or below (as
applicable), the Option shall terminate and the Shares underlying the
unexercised portion of the Option shall revert to the Plan and become available
for future Awards.
following provisions shall apply to the extent an Award Agreement does not
specify the terms and conditions upon which an Option shall terminate when
there is a termination of a Participants Continuous Service:
for terminating Continuous Service
Option Termination Date
(I) By the Company
for Cause, or what would have been Cause if the Company had known all of the
Termination of the Participants
Continuous Service, or when Cause first existed if earlier.
(II) Disability of
Within one year after termination of the Participants Continuous
of the Participant after age 60 with five
years or more of Continuous Service.
Within one year after termination of the Participants Continuous
(IV) Death of the
Participant during Continuous Service or within 90 days
Within one year after termination of the Participants Continuous Service.
(V) Other than due
to Cause or the Participants Disability, Retirement, or Death.
Within 90 days after
termination of the Participants Continuous Service.
If there is a Securities and Exchange Commission
blackout period (or a Committee-imposed blackout period) that prohibits the
buying or selling of Shares during any part of the ten day period before the
expiration of any Option based on the termination of a Participants Continuous
Service (as described above), the period for exercising the Options shall be
extended until ten days beyond when such blackout period ends. Notwithstanding any provision hereof or
within an Award Agreement, no Option shall ever be exercisable after the
expiration date of its original term as set forth in the Award Agreement.
(a) Grants. The Committee may grant SARs to Eligible Persons
pursuant to Award Agreements setting forth terms and conditions that are not
inconsistent with the Plan; provided
(i) the exercise price for the Shares subject
to each SAR shall not be less than 100%of the Fair Market Value of the underlying
Shares on the Grant Date;
(ii) no SAR shall be exercisable for a term
ending more than ten years after its Grant Date; and
(iii) each SAR shall, except to the extent an
SAR Award Agreement provides otherwise, be subject to the provisions of Section 5(e) relating
to the effect of a termination of Participants Continuous Service with SAR
being substituted for Option.
(b) Settlement. Subject to the Plans terms, an SAR shall entitle the
Participant, upon exercise of the SAR, to receive Shares having a Fair Market
Value on the date of exercise equal to the product of the number of Share as to
which the SAR is being exercised, and the excess of (i) the Fair Market
Value, on such date, of the Shares covered by the exercised SAR, over (ii) an
exercise price designated in the SAR Award Agreement. Notwithstanding the foregoing, an SAR Award
Agreement may limit the total settlement value that the Participant will be
entitled to receive upon the SARs exercise, and may provide for settlement
either in cash or in any combination of cash or
Shares that the Committee may authorize pursuant to an
Award Agreement. If, on the date on
which an SAR or portion thereof is to expire, the Fair Market Value exceeds the
per Share exercise price of such SAR, then the SAR shall be deemed exercised
and the Participant will be entitled to receive the settlement proceeds
otherwise payable had the Participant affirmatively exercised the SAR on that
(c) SARs related to Options.
The Committee may grant SARs either concurrently with the grant of an
Option or with respect to an outstanding Option, in which case the SAR shall
extend to all or a portion of the Shares covered by the related Option, and
shall have an exercise price that is not less than the exercise price of the
related Option. An SAR shall entitle the
Participant who holds the related Option, upon exercise of the SAR and
surrender of the related Option, or portion thereof, to the extent the SAR and
related Option each were previously unexercised, to receive payment of an
amount determined pursuant to Section 6(b) above. Any SAR granted in tandem with an ISO will
contain such terms as may be required to comply with the provisions of Code Section 422.
(d) Effect on Available Shares. At each time of a exercise of an SAR that is settled
in Shares, only those Shares that are issued or delivered in settlement of the
exercise shall be counted against the number of Shares available for Awards
under the Plan; provided that the number of
Shares that are issued or delivered pursuant to the exercise of an SAR shall
not exceed the number of Shares specified in the Award Agreement as being
subject to the SAR Award.
7. Restricted Shares, RSUs,
and Unrestricted Share Awards.
(a) Grant. The Committee may grant Restricted Share, RSU, or
Unrestricted Share Awards to Eligible Persons, in all cases pursuant to Award
Agreements setting forth terms and conditions that are not inconsistent with
the Plan. The Committee shall establish
as to each Restricted Share or RSU Award the number of Shares deliverable or
subject to the Award (which number may be determined by a written formula), and
the period or periods of time (the Restriction Period)
at the end of which all or some restrictions specified in the Award Agreement shall
lapse, and the Participant shall receive unrestricted Shares (or cash to the
extent provided in the Award Agreement) in settlement of the Award. Such
restrictions may include, without limitation, restrictions concerning voting
rights and transferability, and such restrictions may lapse separately or in
combination at such times and pursuant to such circumstances or based on such
criteria as selected by the Committee, including, without limitation, criteria
based on the Participants duration of employment, directorship or consultancy
with the Company, individual, group, or divisional performance criteria,
Company performance, or other criteria selection by the Committee. The
Committee may make Restricted Share and RSU Awards with or without the
requirement for payment of cash or other consideration. In addition, the Committee may grant Awards
hereunder in the form of Unrestricted Shares which shall vest in full upon the Grant
Date or such other date as the Committee may determine or which the Committee
may issue pursuant to any program under which one or more Eligible Persons
(selected by the Committee in its sole discretion) elect to pay for such Shares
or to receive Unrestricted Shares in lieu of cash bonuses that would otherwise
(b) Vesting and Forfeiture. The Committee shall set forth, in an Award Agreement
granting Restricted Shares or RSUs, the terms and conditions under which the
Participants interest in the Restricted Shares or the Shares subject to RSUs
will become vested and non-forfeitable.
Except as set forth in the applicable Award Agreement
or as the Committee otherwise determines, upon termination of a Participants Continuous
Service for any reason, the Participant shall forfeit his or her Restricted
Shares and RSUs to the extent the Participants interest therein has not vested
on or before such termination date; provided
that if a Participant purchases Restricted Shares and forfeits them for any
reason, the Company shall return the purchase price to the Participant to the
extent either set forth in an Award Agreement or required by Applicable Laws.
(c) Certificates for Restricted
Shares. Unless otherwise provided in an Award Agreement, the
Company shall hold certificates representing Restricted Shares and dividends (whether
in Shares or cash) that accrue with respect to them until the restrictions
lapse, and the Participant shall provide the Company with appropriate stock
powers endorsed in blank. The Participants failure to provide such stock
powers within ten days after a written request from the Company shall entitle
the Committee to unilaterally declare a forfeiture of all or some of the
Participants Restricted Shares.
(d) Section 83(b) Elections.
A Participant may make an election under Code Section 83(b) (the
Section 83(b) Election) with
respect to Restricted Shares. A
Participant who has received RSUs may, within ten days after receiving the RSU
Award, provide the Committee with a written notice of his or her desire to make
Section 83(b) Election with respect to the Shares subject to such
RSUs. The Committee may in its
discretion convert the Participants RSUs into Restricted Shares, on a
one-for-one basis, in full satisfaction of the Participants RSU Award. The Participant may then make a Section 83(b) Election
with respect to those Restricted Shares; provided that the Participants Section 83(b) Election
will be invalid if not filed with the Company and the appropriate U.S. tax
authorities within 30 days after the Grant Date of the RSUs replaced by the
(e) Deferral Elections for RSUs. To
the extent specifically provided in an Award Agreement, a Participant may
irrevocably elect, in accordance with Section 8 below, to defer the
receipt of all or a percentage of the Shares that would otherwise be
transferred to the Participant upon the vesting of an RSU Award provided the
election is made on or before the 30th day following the Grant Date of the RSU
Award and at least 12 months in advance of the earliest date the RSU Award
could vest. If the Participant makes
this election, the Company shall credit the Shares subject to the election, and
any associated Shares attributable to Dividend Equivalent Rights attached to
the Award, to a DSU account established pursuant to Section 8 below on the
date such Shares would otherwise have been delivered to the Participant
pursuant to this Section.
(f) Issuance of Shares upon Vesting.
As soon as practicable after vesting of a Participants Restricted
Shares (or of the right to receive Shares underlying RSUs), the Company shall
deliver to the Participant, free from vesting restrictions, one Share for each
surrendered and vested Restricted Share (or deliver one Share free of the
vesting restriction for each vested RSU), unless an Award Agreement provides
otherwise and subject to Section 11 regarding Withholding Taxes. No fractional Shares shall be distributed,
and cash shall be paid in lieu thereof.
(a) Elections to Defer.
The Committee may make DSU awards to Eligible Persons who are Directors,
Consultants, or members of a select group of management or highly compensated
Employees (within the meaning of ERISA) pursuant to Award Agreements
(regardless of whether or not there is a deferral of the Eligible Persons
compensation), and may permit select Eligible
Persons to irrevocably elect, on a form provided by
and acceptable to the Committee (the Election Form),
to forego the receipt of cash or other compensation (including the Shares
deliverable pursuant to any RSU Award) and in lieu thereof to have the Company
credit to an internal Plan account a number of DSUs having a Fair Market Value
equal to the Shares and other compensation deferred. These credits will be made at the end of each
calendar quarter (or other period determined by the Committee) during which
compensation is deferred. In general,
subject to Section 7(e) regarding deferral of Restricted Shares and
Restricted Share Units and to Section 9(e) regarding deferral of
Performance Awards, Election Forms must be submitted to the Committee no later
than December 31st of the calendar year preceding the calendar year in
which the Eligible Person first performs the services that are attributable to
the compensation being deferred.
Notwithstanding the foregoing, any Eligible Person who first becomes
eligible to defer compensation under the Plan and is not eligible to defer or
otherwise accrue an amount of deferred compensation under any other plan or
arrangement that (i) is maintained by the Company or any other Affiliate
that would be considered a single employer with the Company pursuant to Code
Sections 414(b) or 414(c) and (ii) constitutes a single plan
under Treasury Regulation §1.409A-1(c)(2)(A), may submit his or her Election Form to
the Committee no later than 30 days after the date the Eligible Person first
becomes eligible to defer compensation under the Plan; however, the Election Form may
relate only to compensation that is to be paid for services performed after the
date the Election Form is submitted to the Committee. The Committee may reject any Election Form that
it determines in its sole discretion does not satisfy the requirements of this
paragraph. The Committee may
unilaterally make Awards in the form of Deferred Share Units, regardless of
whether or not the Participant foregoes other compensation.
Unless an Award Agreement expressly provides otherwise, each Participant
shall be 100% vested at all times in any Shares subject to DSUs.
(c) Issuances of Shares. Unless
an Award Agreement expressly provides otherwise, the Company shall settle a
Participants DSU Award, by delivering one Share for each DSU, in five
substantially equal annual installments that are issued before the last day of
each of the five calendar years that end after the date on which the
Participant incurs a separation from service within the meaning of Treasury
Regulations §1.409A-1(h) and as further described in Section 8(e) hereof
(Separation from Service), subject to
(i) the Participants right to elect a
different form of distribution, only on a form provided by and acceptable to the
Committee, that permits the Participant to select any combination of a lump sum
and annual installments that are triggered by, and completed within ten years
following, the last day of the Participants Separation from Service, and
(ii) the Companys acceptance of the
Participants distribution election form executed at the time the Participant
elects to defer the receipt of cash or other compensation pursuant to Section 8(a),
provided that the Participant may
change a distribution election through any subsequent election that (A) the
Participant delivers to the Company at least one year before the date on which
distributions are otherwise scheduled to commence pursuant to the Participants
initial distribution election, and (B) defers the commencement of
distributions by at least five years from the originally scheduled distribution
Fractional shares shall
not be issued, and instead shall be paid out in cash
in this Plan or an Award Agreement to the contrary, if, at the time of the
Participants Separation from Service, the Participant is a specified employee
(within the meaning of Section 409A of the Code and Treasury Regulation Section 1.409A-1(i)),
the Company will not pay or provide any Specified Benefits (as defined
herein) during the six-month period beginning after the date of the Participants
Separation from Service (the 409A Suspension Period). In the event of a Participants death, however,
the Specified Benefits shall be paid to the Participants Beneficiary without
regard to the 409A Suspension Period.
For purposes of this Plan, Specified Benefits are any portion of the
Participants DSU Award that would be subject to Section 409A additional
taxes if the Company were to pay it on account of the Participants Separation
from Service. Within 14 calendar days
after the end of the 409A Suspension Period, the Participant shall be paid a
lump-sum payment equal to any Specified Benefits delayed during the 409A
(d) Emergency Withdrawals.
In the event that a Participant suffers an unforeseeable emergency
within the contemplation of this Section, the Participant may apply to the Committee
for an immediate distribution of all or a portion of the Participants DSUs. The unforeseeable emergency must result from
a sudden and unexpected illness or accident of the Participant, the Participants
spouse, or a dependent (within the meaning of Code Section 152) of the
Participant, casualty loss of the Participants property, or other similar
extraordinary and unforeseeable conditions beyond the control of the
Participant. The Committee shall, in its
sole and absolute discretion, determine whether a Participant has a qualifying
unforeseeable emergency, may require independent verification of the emergency,
and may determine whether or not to provide the Participant with cash or
Shares. Examples of purposes which are
not considered unforeseeable emergencies include post-secondary school expenses
or the desire to purchase a residence.
In no event will a distribution be made to the extent the unforeseeable
emergency could be relieved through reimbursement or compensation by insurance
or otherwise, or by liquidation of the Participants nonessential assets to the
extent such liquidation would not itself cause a severe financial
hardship. The amount of any distribution
hereunder shall be limited to the amount necessary to relieve the Participants
unforeseeable emergency plus amounts necessary to pay taxes reasonably
anticipated as a result of the distribution.
The number of Shares subject to the Participants DSU Award shall be
reduced by any Shares distributed to the Participant and by a number of Shares
having a Fair Market Value on the date of the distribution equal to any cash
paid to the Participant pursuant to this Section. For all DSUs granted to Participants who are
U.S. taxpayers, the term unforeseeable emergency shall be interpreted in
accordance with Code Section 409A.
(e) Separation from Service.
For purposes of this Section 8, a Participant incurs a Separation
from Service when the Participant ceases to perform services for the Company
and any entity that would be considered a single employer with the Company
under Code section 414(b) or 414(c) (but modified by substituting 50
percent for 80 percent each place it appears in Code section 1563(a)(1), (2) and
(3), for purposes of Code section 414(b), and each plan it appears in Treas.
Reg. § 1.414(c)-2, for purposes of Code section 414(c)) (collectively Employer)
for any reason. A Separation from
Service will be deemed to occur if the Employer and the Participant reasonably
anticipate that the Participant shall perform no further services (whether as
an employee or an independent contractor) or that the level of bona fide services the Participant will perform in the
future (whether as an employee or an independent contractor) will permanently
decrease to no more than 20 percent of the average level of bona fide services performed (whether as an employee or
independent contractor) over the immediately preceding 36-month period. A Participant on an
authorized, bona fide leave
of absence shall experience a Separation from Service on the first day of the
seventh (7th) month of such leave, unless the Participants right to
reemployment with an Employer is provided either by statute or contract. A leave of absence constitutes a bona fide leave of absence only if there is a reasonable
expectation that the Participant will return to perform services for the
Employer. For purposes of the 36-month
period described above, (a) a Participant who is on a paid bona fide leave of absence is treated as providing bona fide services at a level of equal to the level of
services that the Participant would have been required to perform to receive
the compensation paid during the leave of absence, and (b) unpaid bona fide leaves of absence are disregarded.
9. Performance and
(a) Performance Units.
Subject to the limitations set forth in paragraph (b) hereof, the
Committee may in its discretion grant Performance Awards, including Performance
Units to any Eligible Person, including Performance Unit Awards that (i) have
substantially the same financial benefits and other terms and conditions as
Options, SARs, RSUs, or DSUs, but (ii) are settled only in cash. All Awards hereunder shall be made pursuant
to Award Agreements setting forth terms and conditions that are not inconsistent
with the Plan.
Compensation Awards. Subject to the limitations set forth in this Section,
the Committee may, at the time of grant of a Performance Unit, designate such
Award as a Performance Compensation Award
(payable in cash or Shares) in order that such Award constitutes, and has terms
and conditions that are designed to qualify as, qualified performance-based
compensation under Code Section 162(m).
With respect to each such Performance Compensation Award, the Committee
shall establish, in writing within the time required under Code Section 162(m),
a Performance Period, Performance Measure(s), and Performance Formula(e) (each such
term being defined below). Once
established for a Performance Period, the Performance Measure(s) and
Performance Formula(e) shall not be amended or otherwise modified to the
extent such amendment or modification would cause the compensation payable
pursuant to the Award to fail to constitute qualified performance-based
compensation under Code Section 162(m).
A Participant shall be eligible to receive payment in
respect of a Performance Compensation Award only to the extent that the
Performance Measure(s) for such Award is achieved and the Performance
Formula(e) as applied against such Performance Measure(s) determines
that all or some portion of such Participants Award has been earned for the
Performance Period. As soon as
practicable after the close of each Performance Period, the Committee shall
review and certify in writing whether, and to what extent, the Performance
Measure(s) for the Performance Period have been achieved and, if so,
determine and certify in writing the amount of the Performance Compensation
Award to be paid to the Participant and, in so doing, may use negative
discretion to decrease, but not increase, the amount of the Award otherwise
payable to the Participant based upon such performance
(c) Limitations on Awards.
The maximum Performance Award and the maximum Performance Compensation
Award that any one Participant may receive for any one Performance Period,
without regard to time of vesting or exercisability, shall not together exceed 750,000
Shares, as adjusted pursuant to Section 13 below (or, for Performance
Units to be settled in cash, U.S. $5,000,000).
Any amounts earned in excess of these limitations, if any, will be
deferred until the first
taxable year in which the Committee reasonably
anticipates that the Companys tax deduction for such amounts will not be disallowed
under Code Section 162(m).
(i) Performance Formula
means, for a Performance Period, one or more objective formulas or standards
established by the Committee for purposes of determining whether or the extent
to which an Award has been earned based on the level of performance attained or
to be attained with respect to one or more Performance Measure(s). Performance Formulae may vary from
Performance Period to Performance Period and from Participant to Participant
and may be established on a stand-alone basis, in tandem or in the alternative.
(ii) Performance Measure
means one or more of the following selected by the Committee to measure the
performance of the individual Participant, the Company or of an Affiliate or a
division, department, park, region or function of the Company or any Affiliate
in which the Participant is employed for a Performance Period, whether in
absolute or relative terms (including, without limitation, terms relative to a
peer group or index): basic, diluted, or
adjusted earnings per share; sales or revenue; earnings before interest, taxes,
and other adjustments (in total or on a per share basis); basic or adjusted net
income; returns on equity, assets, capital, revenue or similar measure;
economic value added; working capital; total shareholder return; expenses, cash
flow, margin, attendance, and product development, product market share,
licensing, mergers, acquisitions, sales of assets of Affiliates or business
units. Each such measure shall be, to
the extent applicable, determined in accordance with generally accepted
accounting principles as consistently applied by the Company (or such other
standard applied by the Committee) and, if so determined by the Committee, and
in the case of a Performance Compensation Award, to the extent permitted under
Code Section 162(m), adjusted to omit the effects of extraordinary items,
gain or loss on the disposal of a business segment, unusual or infrequently
occurring events and transactions and cumulative effects of changes in
accounting principles, or other events or circumstances that render the
Performance Measures unsuitable.
Performance Measures may vary from Performance Period to Performance
Period and from Participant to Participant, and may be established on a
stand-alone basis, in tandem or in the alternative.
(iii) Performance Period
means one or more periods of time (of not less than one fiscal year of the
Company), as the Committee may designate, over which the attainment of one or
more Performance Measure(s) will be measured for the purpose of
determining a Participants rights in respect of an Award.
(e) Deferral Elections. At
any time prior to the date that is both at least six months before the close of
a Performance Period with respect to a Performance Award and at which time
vesting or payment is substantially uncertain to occur, the Committee may
permit a Participant who is a member of a select group of management or highly
compensated employees (within the meaning of ERISA) to irrevocably elect, on a
form provided by and acceptable to the Committee, to defer the receipt of all
or a percentage of the cash or Shares that would otherwise be transferred to
the Participant upon the vesting of such Award.
If the Participant makes this election, the cash or
Shares subject to the election, and any associated
interest and dividends, shall be credited to an account established pursuant to
Section 8 hereof on the date such cash or Shares would otherwise have been
released or issued to the Participant pursuant to this Section.
10. Dividend Equivalent Rights. The
Committee may grant Dividend Equivalent Rights to any Eligible Person, and may
do either pursuant to an Award Agreement that is independent of any other
Award, or through a provision in another Award (other than an Option or SAR)
that Dividend Equivalent Rights attach to the Shares underlying the Award. For example, and without limitation, the
Committee may grant a Dividend Equivalent Right in respect of each Share
subject to a Restricted Stock Award, Restricted Stock Unit Award, Deferred
Stock Unit, or Performance Share Award.
(a) Nature of Right. Each
Dividend Equivalent Right shall represent the right to receive amounts based on
the dividends declared on Shares as of all dividend payment dates during the
term of the Dividend Equivalent Right as determined by the Committee. Unless otherwise determined by the Committee,
a Dividend Equivalent Right shall expire upon termination of the Participants
Continuous Service, provided that a Dividend Equivalent Right that is granted
as part of another Award shall expire only when the Award is settled or
(b) Settlement. Unless
otherwise provided in an Award Agreement, Dividend Equivalent Rights shall be paid
out on the (i) on the date dividends are paid to the Companys
shareholders if the Award occurs on a stand-alone basis, and (ii) on the
vesting or later settlement date for another Award if the Dividend Equivalent
Right is granted as part of it. Payment
of all amounts determined in accordance with this Section shall be in
Shares, with cash paid in lieu of fractional Shares, provided that the
Committee may instead provide in an Award Agreement for cash settlement of all
or part of the Dividend Equivalent Rights. Only the Shares actually issued pursuant to
Dividend Equivalent Rights shall count against the limits set forth in Section 3
(c) Other Terns. The
Committee may impose such other terms and conditions on the grant of a Dividend
Equivalent Right as it deems appropriate in its discretion as reflected by the
terms of the Award Agreement. The Committee may establish a program under which
Dividend Equivalent Rights may be granted in conjunction with other Awards. The Committee may also authorize, for any
Participant or group of Participants, a program under which the payments with
respect to Dividend Equivalent Rights may be deferred pursuant to the terms and
conditions determined under Section 9 above.
11. Taxes; Withholding.
(a) General Rule.
Participants are solely responsible and liable for the satisfaction of
all taxes and penalties that may arise in connection with Awards including
without limitation any taxes or penalties arising under Code Section 409A, and
neither the Company, any Affiliate, nor any of their employees, directors, or
agents shall have any obligation to mitigate, indemnify, or to otherwise hold
any Participant harmless from any or all of such taxes. The Companys obligation to deliver Shares
(or to pay cash) to Participants pursuant to Awards is at all times subject to
their prior or coincident satisfaction of all required Withholding Taxes. Except to the extent otherwise either
provided in an Award Agreement or thereafter authorized by the Committee, the
Company or any Affiliate will satisfy required Withholding Taxes that the
Participant has not otherwise arranged to settle before the due date thereof
(i) first from withholding the cash otherwise
payable to the Participant pursuant to the Award;
(ii) then by withholding and cancelling the
Participants rights with respect to a number of Shares that (A) would
otherwise have been delivered to the Participant pursuant to the Award, and (B)
have an aggregate Fair Market Value equal to the Withholding Taxes (such
withheld Shares to be valued on the basis of the aggregate Fair Market Value
thereof on the date of the withholding); and
(iii) finally, withholding the cash otherwise
payable to the Participant by the Company.
number of Shares withheld and cancelled to pay a Participants Withholding
Taxes will be rounded up to the nearest whole Share sufficient to satisfy such
taxes, with cash being paid to the Participant in an amount equal to the amount
by which the Fair Market Value of such Shares exceeds the Withholding Taxes.
(b) U.S. Code Section 409A. To the extent that the Committee determines
that any Award granted under the Plan is subject to Code Section 409A, the
Award Agreement evidencing such Award shall incorporate the terms and
conditions required by Code Section 409A.
To the extent applicable, the Plan and Award Agreements shall be
interpreted in accordance with Code Section 409A and Department of Treasury
regulations and other interpretive guidance issued thereunder, including
without limitation any such regulations or other guidance that may be issued
after the Effective Date.
Notwithstanding any provision of the Plan to the contrary, the Committee
may adopt such amendments to the Plan and the applicable Award Agreement or
adopt other policies and procedures (including amendments, policies and
procedures with retroactive effect), or take any other actions, that the
Administrator determines are necessary or appropriate (i) to exempt the Award
from Code Section 409A and/or preserve the intended tax treatment of the
benefits provided with respect to the Award, or (ii) to comply with the
requirements of Code Section 409A and related Department of Treasury guidance
and thereby avoid the application of any penalty taxes under such Section.
(b) U.S. Code Section 280G.
If any accelerated vesting, benefits or payments received or realized by
a Participant pursuant to an Award either alone or together with other
vesting, benefits or payments that the Participant
receives or realizes or is then entitled to receive or realize from the Company
or any of its affiliates would constitute an excess parachute payment within
the meaning of Section 280G of the Code, the accelerated vesting, benefits or
payments provided to the Participant under the Award will be reduced by
reducing the amount of accelerated vesting, benefits or payments payable to the
Participant to the extent necessary so that no
portion of the Participants accelerated vesting, benefits or payments will be
subject to the excise tax imposed by Section 4999 of the Code and any
corresponding and/or applicable state law provision. Notwithstanding the foregoing, a reduction
will be made under the previous sentence only if, by reason of that reduction,
the Participants net after tax benefit exceeds the net after tax benefit he or
she would realize if the reduction were not made. For purposes of this paragraph, net after
tax benefit means the sum of (i) the total amount received or realized by the
Participant pursuant to the Award that would constitute a parachute payment
within the meaning of Section 280G of the Code, plus (ii) all other accelerated
vesting, payments or benefits that the Participant receives or realizes or is
then entitled to receive or realize from the Company and any of its affiliates
that would constitute a parachute payment within the meaning of Section 280G
of the Code and any corresponding and applicable state law provision, less (iii)
the amount of federal and state income taxes payable with respect to the
payments or benefits described in (i) and (ii) above calculated at the maximum
marginal individual income tax rate for each year in which payments or benefits
are realized by the Participant (based upon the rate in effect for that year as
set forth in the Code at the time of the first receipt or realization of the
foregoing), less (iv) the amount of excise taxes imposed with respect to the
payments or benefits described in (i) and (ii) above by Section 4999 of the
Code and any corresponding and applicable state law provision.
(d) Unfunded Tax Status.
The Plan is intended to be an unfunded plan for incentive
compensation. With respect to any
payments not yet made to a Person pursuant to an Award, nothing contained in
the Plan or any Award Agreement shall give the Person any rights that are
greater than those of a general creditor of the Company or any Affiliate, and a
Participants rights under the Plan at all times constitute an unsecured claim
against the general assets of the Company for the collection of benefits as
they come due. Neither the Participant
nor the Participants duly-authorized transferee or Beneficiaries shall have
any claim against or rights in any specific assets, Shares, or other funds of
12. Non-Transferability of
Except as set forth in this Section, or as otherwise approved by the
Committee, Awards may not be sold, pledged, assigned, hypothecated, transferred
or disposed of in any manner other than by will or by the laws of descent or
distribution. The designation of a death
Beneficiary by a Participant will not constitute a transfer. An Award may be exercised, during the
lifetime of the holder of an Award, only by such holder, by the duly-authorized
legal representative of a holder who is Disabled, or by a transferee permitted
by this Section.
(b) Limited Transferability Rights.
Committee may in its discretion provide in an Award Agreement that an Award in
the form of a Non-ISO, Share-settled SAR, Restricted Shares, or Performance
Shares may be transferred to a Permitted Transferee (as defined below), subject
to the following terms and conditions and such other terms and conditions as
the Committee may provide in the Award Agreement: (i) an Award transferred to a Permitted
Transferee shall not be assignable or transferable by the Permitted Transferee
other than by will or the laws of descent and distribution; (ii) an Award
transferred to a Permitted Transferee shall continue to be subject to all
the terms and conditions of the Award as applicable to
the Participant (other than the ability to further transfer the Award); and (iii)
the Participant and the Permitted Transferee shall execute any and all documents
requested by the Committee, including, without limitation documents to (A) confirm
the status of the transferee as a Permitted Transferee, (B) satisfy any
requirements for an exemption for the transfer under applicable federal, state
and foreign securities laws, (C) satisfy any tax withholding and reporting
requirements associated with the Award and (D) evidence the transfer. For purposes of this Section 12(b), Permitted
Transferee shall mean, with respect to a Participant, any family member
of the Participant, as defined under the instructions to use of the Form S-8
Registration Statement under the Securities Act, or any other transferee
specifically approved by the Committee after taking into account any state,
federal, local or foreign tax and securities laws applicable to transferable
(c) Death. In the event of the death of a Participant,
any outstanding Awards issued to the Participant shall automatically be
transferred to the Participants Beneficiary (or, if no Beneficiary is
designated or surviving, to the person or persons to whom the Participants rights
under the Award pass by will or the laws of descent and distribution).
13. Change in Capital Structure; Change in Control; Etc.
(a) Changes in Capitalization. The Committee shall equitably adjust the number of
Shares covered by each outstanding Award, and the number of Shares that have
been authorized for issuance under the Plan but as to which no Awards have yet
been granted or that have been returned to the Plan upon cancellation,
forfeiture, or expiration of an Award, as well as the exercise or other price
per Share covered by each such outstanding Award, to reflect any increase or
decrease in the number of issued Shares resulting from a stock-split, reverse
stock-split, stock dividend, combination, recapitalization or reclassification
of the Shares, merger, consolidation, change in form of organization, or any
other increase or decrease in the number of issued Shares effected without
receipt of consideration by the Company.
In the event of any such transaction or event, the Committee may (and
shall if the Company is not the surviving entity or the Shares are otherwise no
longer outstanding) provide in substitution for any or all outstanding Awards
under the Plan such alternative consideration (including cash or securities of
any surviving entity) as it may in good faith determine to be equitable under
the circumstances and may require in connection therewith the surrender of all
Awards so replaced. In any case, such
substitution of cash or securities shall not require the consent of any person
who is granted Awards pursuant to the Plan.
Except as expressly provided herein, or in an Award Agreement, if the
Company issues for consideration shares of stock of any class or securities
convertible into shares of stock of any class, the issuance shall not affect,
and no adjustment by reason thereof shall be required to be made with respect
to the number or price of Shares subject to any Award.
(b) Dissolution or Liquidation. In the event of the dissolution or
liquidation of the Company other than as part of a Change of Control, each
Award will terminate immediately prior to the consummation of such dissolution
or liquidation, subject to the ability of the Committee to exercise any
discretion authorized in the case of a Change in Control.
(c) Change in Control. In the event of a Change in Control but subject to the
terms of any Award Agreements or employment-related agreements between the
Company or any Affiliates and any Participant, each outstanding Award shall be
assumed or a substantially equivalent award shall be substituted by the
surviving or successor company or a parent or subsidiary of such successor
company (in each case, the Successor
Company) upon consummation of the transaction. Notwithstanding the foregoing, instead of
having outstanding Awards be assumed or replaced with equivalent awards by the
Successor Company, the Committee may in its sole and absolute discretion and
authority (and where so stated shall), without obtaining the approval or
consent of the Companys shareholders or any Participant with respect to his or
her outstanding Awards, take one or more of the following actions (with respect
to any or all of the Awards, and with discretion to differentiate between
individual Participants and Awards for any reason):
(i) (A) to the extent required pursuant to
the terms of an employment agreement between the Company and a Participant that
was in effect on or as of the Effective Date, or (B) if an Award is not assumed
or substituted by the Successor Company or the stock or securities to be subject
to any Award that would be so assumed or substituted is not publicly traded on
an established securities market (excluding any transaction where the Successor
Company is a subsidiary of a parent corporation whose shares or securities are publicly
traded on an established securities market and the assumed or substituted Awards
are subject to such shares or securities in the parent corporation), the
Committee may (and shall with respect to Awards granted pursuant to any
employment agreement that was filed in connection with the Plan of
Reorganization) accelerate the vesting
of such Awards so that Awards shall fully vest (and, to the extent applicable,
become fully exercisable) immediately prior to consummation of the Change in
Control (or, if earlier and applicable, a record date necessary for the Companys
shareholders of record to receive the consideration payable in connection with
the Change in Control) as to the Shares that otherwise would have been unvested
and provide that repurchase rights of the Company with respect to Shares issued
pursuant to an Award shall lapse as to the Shares subject to such repurchase
(ii) arrange or otherwise provide for the
payment of cash or other consideration to Participants in exchange for the
satisfaction and cancellation of outstanding vested Awards (with the Committee
determining the amount payable to each Participant based on the fair market
value, on the date of the Change in Control, of the Award being cancelled, based
on any reasonable valuation method selected by the Committee and, if the
consideration payable to the Company or its shareholders in connection with the
Change in Control is all cash, vested Options and SARs that have a per Share
exercise price greater than the Fair Market Value per Share immediately prior
to the consummation of the Change in Control may be cancelled for zero
(iii) except as forth in clause (i) of Section 13(c),
terminate all or some unvested Awards upon the consummation of the
transaction. To the extent that an Award
is not exercised prior to consummation of a transaction in which the Award is
not being assumed or substituted, such Award shall terminate upon such
(iv) make such other modifications,
adjustments or amendments to outstanding Awards or this Plan as the Committee
deems necessary or appropriate, subject however to the terms of Section 13
Notwithstanding the above and unless provided otherwise
in an Award Agreement or in an employment agreement with the Participant, in
the event a Participant is Involuntarily Terminated on or within 12 months (or other
period set forth in an Award Agreement) following a Change in
Control, then any Award that is assumed or substituted
pursuant to this Section above shall accelerate and become fully vested (and
become exercisable in full in the case of Options and SARs), and any repurchase
right applicable to any Shares shall lapse in full. The acceleration of vesting and lapse of
repurchase rights provided for in the previous sentence shall occur immediately
prior to the effective date of the Participants Involuntary Termination,
unless an Award Agreement provides otherwise.
14. Termination, Rescission
and Recapture of Awards.
(a) Each Award under the Plan is intended to
align the Participants long-term interests with those of the Company. Accordingly, the Company may terminate any
outstanding, unexercised, unexpired, unpaid, or deferred Awards (Termination), rescind any
exercise, payment or delivery pursuant to the Award (Rescission),
or recapture any Shares (whether restricted or unrestricted) or proceeds from
the Participants sale of Shares issued pursuant to the Award (Recapture),
if the Participant does not comply with the conditions of subsections (b), (c),
and (e) hereof (collectively, the Conditions).
(b) A Participant shall not, without the
Companys prior written authorization, disclose to anyone outside the Company,
or use in other than the Companys business, any proprietary or confidential
information or material, as those or other similar terms are used in any
applicable patent, confidentiality, inventions, secrecy, or other agreement
between the Participant and the Company with regard to any such proprietary or
confidential information or material.
(c) Pursuant to any agreement between the
Participant and the Company with regard to intellectual property (including but
not limited to patents, trademarks, copyrights, trade secrets, inventions,
developments, improvements, proprietary information, confidential business and
personnel information), a Participant shall promptly disclose and assign to the
Company or its designee all right, title, and interest in such intellectual
property, and shall take all reasonable steps necessary to enable the Company
to secure all right, title and interest in such intellectual property in the
United States and in any foreign country.
(d) Upon exercise, payment, or delivery of
cash or Common Stock pursuant to an Award, the Participant shall certify on a
form acceptable to the Company that he or she is in compliance with the terms
and conditions of the Plan and, if a severance of Continuous Service has
occurred for any reason, shall state the name and address of the Participants
then-current employer or any entity for which the Participant performs business
services and the Participants title, and shall identify any organization or
business in which the Participant owns a greater-than-five-percent equity
(e) If the Company determines, in its sole
and absolute discretion, that (i) a Participant has violated any of the
Conditions, (ii) a Participant has breached any non-competition, non-solicitation,
conflict of interest or duty of loyalty covenant in any written employment-related
agreement between the Participant and the Company, or (iii) to the extent a
Participant does not have an employment-related agreement with the Company with
the covenants described in clause (ii) and the Participant during his or her
Continuous Service, or within one year after its
termination for any reason (x) has rendered services to or otherwise directly
or indirectly engaged in or assisted, any organization or business that, in the
judgment of the Company in its sole and absolute discretion, is or is working
to become competitive with the Company; (y) has solicited any non-
administrative employee of the Company to terminate
employment with the Company; or (z) has engaged in activities which are
materially prejudicial to or in conflict with the interests of the Company, including
any breaches of fiduciary duty or the duty of loyalty, then the Company may, in
its sole and absolute discretion, impose a Termination, Rescission, and/or
Recapture with respect to any or all of the Participants relevant Awards,
Shares, and the proceeds thereof.
(f) Within ten days after receiving notice
from the Company of any such activity described in Section 14(e) above, the
Participant shall deliver to the Company the Shares acquired pursuant to the
Award, or, if Participant has sold the Shares, the gain realized, or payment
received as a result of the rescinded exercise, payment, or delivery; provided, that if the Participant
returns Shares that the Participant purchased pursuant to the exercise of an
Option (or the gains realized from the sale of such Common Stock), the Company
shall promptly refund the exercise price, without earnings, that the
Participant paid for the Shares. Any
payment by the Participant to the Company pursuant to this Section shall be
made either in cash or by returning to the Company the number of Shares that
the Participant received in connection with the rescinded exercise, payment, or
delivery. It shall not be a basis for
Termination, Rescission or Recapture if after termination of a Participants
Continuous Service, the Participant purchases, as an investment or otherwise,
stock or other securities of such an organization or business, so long as (i) such
stock or other securities are listed upon a recognized securities exchange or
traded over-the-counter, and (ii) such investment does not represent more than
a five percent (5%) equity interest in the organization or business.
(g) Notwithstanding the foregoing provisions
of this Section, the Company has sole and absolute discretion not to require
Termination, Rescission and/or Recapture, and its determination not to require
Termination, Rescission and/or Recapture with respect to any particular act by
a particular Participant or Award shall not in any way reduce or eliminate the
Companys authority to require Termination, Rescission and/or Recapture with
respect to any other act or Participant or Award. Nothing in this Section shall be construed to
impose obligations on the Participant to refrain from engaging in lawful
competition with the Company after the termination of employment that does not
violate subsections (b), (c), or (e) of this Section, other than any
obligations that are part of any separate agreement between the Company and the
Participant or that arise under Applicable Law.
(h) All administrative and discretionary
authority given to the Company under this Section shall be exercised by the
most senior human resources executive of the Company or such other person or
committee (including without limitation the Committee) as the Committee may
designate from time to time.
(i) If any provision within this Section is
determined to be unenforceable or invalid under any Applicable Law, such
provision will be applied to the maximum extent permitted by Applicable Law,
and shall automatically be deemed amended in a manner consistent with its
objectives and any limitations required under Applicable Law.
15. Recoupment of Awards. Unless otherwise specifically provided in an Award
Agreement, and to the extent permitted by Applicable Law, the Committee may in
its sole and absolute discretion, without obtaining the approval or consent of
the Companys shareholders or of any Participant, require that any Participant
reimburse the Company for all or any portion of any Awards granted under this
Plan (Reimbursement), or the Committee
may require the Termination or Rescission of, or the Recapture associated with,
any Award, if and to the extent
(a) the granting, vesting, or payment of such
Award was predicated upon the achievement of certain financial results that
were subsequently the subject of a material financial restatement;
(b) in the Committees view the Participant either
benefited from a calculation that later proves to be materially inaccurate, or engaged
in fraud or misconduct that caused or partially caused the need for a material
financial restatement by the Company or any Affiliate; and
(c) a lower granting, vesting, or payment of
such Award would have occurred based upon the conduct described in clause (b) of
In each instance, the Committee will,
to the extent practicable and allowable under Applicable Laws, require
Reimbursement, Termination or Rescission of, or Recapture relating to, any such
Award granted to a Participant; provided that the Company will not seek
Reimbursement, Termination or Rescission of, or Recapture relating to, any such
Awards that were paid or vested more than three years prior to the first date of
the applicable restatement period.
16. Relationship to other
Benefits. No payment pursuant to the Plan shall be
taken into account in determining any benefits under any pension, retirement,
savings, profit sharing, group insurance, welfare or other benefit plan of the
Company or any Affiliate except to the extent otherwise expressly provided in
writing in such other plan or an agreement thereunder.
17. Administration of the Plan.
The Committee shall administer the Plan in accordance with its terms,
provided that the Board may act in lieu of the Committee on any matter. The Committee shall hold meetings at such
times and places as it may determine and shall make such rules and regulations
for the conduct of its business as it deems advisable. In the absence of a duly appointed Committee,
the Board shall function as the Committee for all purposes of the Plan.
(a) Committee Composition.
The Board shall appoint the members of the Committee. If and to the
extent permitted by Applicable Law, the Committee may authorize one or more
executive officers to make Awards to Eligible Persons other than
themselves. The Board may at any time
appoint additional members to the Committee, remove and replace members of the
Committee with or without Cause, and fill vacancies on the Committee however caused.
(b) Powers of the Committee.
Subject to the provisions of the Plan, the Committee shall have the
authority, in its sole discretion:
(i) to grant Awards and to determine Eligible
Persons to whom Awards shall be granted from time to time, and the number of
Shares, units, or dollars to be covered by each Award;
(ii) to determine, from time to time, the Fair
Market Value of Shares;
(iii) to determine, and to set forth in Award
Agreements, the terms and conditions of all Awards, including any applicable
exercise or purchase price, the installments and conditions under which an
Award shall become vested (which may be based on performance), terminated,
expired, cancelled, or replaced, and the circumstances for vesting acceleration
or waiver of forfeiture restrictions, and other restrictions and limitations;
(iv) to approve the forms of Award Agreements
and all other documents, notices and certificates in connection therewith which
need not be identical either as to type of Award or among Participants;
(v) to construe and interpret the terms of
the Plan and any Award Agreement, to determine the meaning of their terms, and
to prescribe, amend, and rescind rules and procedures relating to the Plan and
(vi) to the extent consistent with the
purposes of the Plan and without amending the Plan, to modify, to cancel, or to
waive the Companys rights with respect to any Awards, to adjust or to modify
Award Agreements for changes in Applicable Law, and to recognize differences in
foreign law, tax policies, or customs;
(vii) in the event that the Company
establishes, for itself or using the services of a third party, an automated
system for the documentation, granting, settlement, or exercise of Award, such
as a system using an internet website or interactive voice response, to
implement paperless documentation, granting, settlement, or exercise of Awards
by a Participant may be permitted through the use of such an automated system;
(viii) to make all interpretations and to take
all other actions that the Committee may consider necessary or advisable to
administer the Plan or to effectuate its purposes.
Subject to Applicable Law
and the restrictions set forth in the Plan, the Committee may delegate
administrative functions to individuals who are Directors or Employees.
(d) Local Law Adjustments and
Sub-plans. To facilitate the making of any grant of an
Award under this Plan, the Committee may adopt rules and provide for such
special terms for Awards to Participants who are located within the United
States, foreign nationals, or who are employed by the Company or any Affiliate
outside of the United States of America as the Committee may consider necessary
or appropriate to accommodate differences in local law, tax policy or custom. Without limiting the foregoing, the Company
is specifically authorized to adopt rules and procedures regarding the
conversion of local currency, taxes, withholding procedures and handling of
stock certificates which vary with the customs and requirements of particular
countries. The Company may adopt
sub-plans and establish escrow accounts and trusts, and settle Awards in cash
in lieu of shares, as may be appropriate, required or applicable to particular
locations and countries.
by Committee. Unless
otherwise established by the Board or in any charter of the Committee, a
majority of the Committee shall constitute a quorum and the acts of a majority
of the members present at any meeting at which a quorum is present, and acts
approved in writing by all members of the Committee in lieu of a meeting, shall
be deemed the acts of the Committee.
Each member of the Committee is entitled to, in good faith, rely or act
upon any report or other information furnished to that member by an officer or
other employee of the Company or any Affiliate, the Companys independent
certified public accounts, or any executive compensation consultant or other
professional retained by the Company to assist in the administration of the
(d) Deference to Committee
Determinations. The Committee shall have the discretion to
interpret or construe ambiguous, unclear, or implied (but omitted) terms in any
fashion it deems to
be appropriate in its sole discretion, and to make any
findings of fact needed in the administration of the Plan or Award
Agreements. The Committees prior
exercise of its discretionary authority shall not obligate it to exercise its
authority in a like fashion thereafter.
The Committees interpretation and construction of any provision of the
Plan, or of any Award or Award Agreement, and all determination the Committee
makes pursuant to the Plan shall be final, binding, and conclusive. The validity of any such interpretation,
construction, decision or finding of fact shall not be given de novo review if
challenged in court, by arbitration, or in any other forum, and shall be upheld
unless clearly made in bad faith or materially affected by fraud.
(e) No Liability; Indemnification.
Neither the Board nor any Committee member, nor any Person acting at the
direction of the Board or the Committee, shall be liable for any act, omission,
interpretation, construction or determination made in good faith with respect
to the Plan, any Award or any Award Agreement.
The Company and its Affiliates shall pay or reimburse any member of the
Committee, as well as any Director, Employee, or Consultant who in good faith
takes action on behalf of the Plan, for all expenses incurred with respect to
the Plan, and to the full extent allowable under Applicable Law shall indemnify
each and every one of them for any claims, liabilities, and costs (including
reasonable attorneys fees) arising out of their good faith performance of
duties on behalf of the Plan. The
Company and its Affiliates may, but shall not be required to, obtain liability
insurance for this purpose.
expenses of administering the Plan shall be borne jointly and severally by the
Company and its Affiliates.
18. Modification of Awards and
Substitution of Options. Within the limitations of the Plan, the
Committee may modify an Award to accelerate the rate at which an Option or SAR
may be exercised, to accelerate the vesting of any Award, to extend or renew
outstanding Awards, to accept the cancellation of outstanding Awards to the
extent not previously exercised, or to make any change that the Plan would
permit for a new Award. However,
neither the Company nor the Committee shall, without shareholder approval,
either (a) allow for a repricing within the meaning of federal securities
laws applicable to proxy statement disclosures, or (b) cancel an outstanding
Option or SAR whose exercise price is greater than Fair Market Value at the
time of cancellation for the purpose of reissuing the Option or SAR to the
Participant at a lower exercise price or granting a replacement award of a
different type. Notwithstanding the foregoing, no modification
of an outstanding Award may materially and adversely affect a Participants
rights thereunder unless either (i) the Participant provides written consent to
the modification, (ii) the amendment is required by Applicable Law or (iii) before
a Change in Control, the Committee determines in good faith that the
modification is not materially adverse to the Participant.
19. Plan Amendment and
Termination. The Board may amend or terminate the Plan as
it shall deem advisable; plan amendments shall be subject to approval of the
Companys shareholders to the extent the Board determines such approval is
required by Applicable Laws. A
termination or amendment of the Plan shall not materially and adversely affect
a Participants rights under an Award previously granted to him or her, unless
the Participant consents in writing to such termination or amendment or, the
case of an amendment, the amendment is required by Applicable Law. Furthermore, neither the Company nor the
Committee shall, without shareholder approval, either (a) allow for a
repricing within the meaning of federal securities laws applicable to proxy
statement disclosures, or (b) cancel an outstanding Option or SAR whose
exercise price is greater
than Fair Market Value at the time of
cancellation for the purpose of reissuing the Option or SAR to the Participant
at a lower exercise price or granting a replacement award of a different type.
20. Term of Plan.
If not sooner terminated by the Board, this Plan shall terminate at the
close of business on the date ten years after its effective date as determined
under Section 1(b) above. No Awards
shall be made under the Plan after its termination.
21. Governing Law.
The terms of this Plan shall be governed by the laws of the State of
Delaware, within the United States of America, without regard to the States
conflict of laws rules.
22. Laws and Regulations.
(a) General Rules. This Plan, the granting of Awards, the exercise of
Options and SARs, and the obligations of the Company hereunder (including those
to pay cash or to deliver, sell or accept the surrender of any of its Shares or
other securities) shall be subject to all Applicable Law. In the event that any Shares are not
registered under any Applicable Law prior to the required delivery of them
pursuant to Awards, the Company may require, as a condition to their issuance
or delivery, that the persons to whom the Shares are to be issued or delivered
make any written representations and warranties (such as that such Shares are
being acquired by the Participant for investment for the Participants own
account and not with a view to, for resale in connection with, or with an
intent of participating directly or indirectly in, any distribution of such
Shares) that the Committee may reasonably require, and the Committee may in its
sole discretion include a legend to such effect on the certificates
representing any Shares issued or delivered pursuant to the Plan.
(b) Black-out Periods. Notwithstanding any contrary terms within the Plan or
any Award Agreement, the Committee shall have the absolute discretion to impose
a blackout period on the exercise of any Option or SAR, as well as the
settlement of any Award, with respect to any or all Participants (including
those whose Continuous Service has ended) to the extent that the Committee
determines that doing so is either desirable or required in order to comply with
applicable securities laws.
23. No Shareholder Rights.
Neither a Participant nor any transferee or Beneficiary of a Participant
shall have any rights as a shareholder of the Company with respect to any
Shares underlying any Award until the date of issuance of a share certificate
to such Participant, transferee, or Beneficiary for such Shares in accordance
with the Companys governing instruments and Applicable Law. Prior to the issuance of Shares or Restricted
Shares pursuant to an Award, a Participant shall not have the right to vote or
to receive dividends or any other rights as a shareholder with respect to the
Shares underlying the Award (unless otherwise provided in the Award Agreement
for Restricted Shares), notwithstanding its exercise in the case of Options and
SARs. No adjustment will be made for a
dividend or other right that is determined based on a record date prior to the
date the stock certificate is issued, except as otherwise specifically provided
for in this Plan or an Award Agreement.
As used in the Plan, the following terms have the
meanings indicated when they begin with initial capital letters within the Plan:
means, with respect to any Person, any other Person that directly or indirectly
controls or is controlled by or under common control with such Person. For the purposes of this definition, control,
when used with respect to any Person, means the possession, direct or indirect,
of the power to direct or cause the direction of the management and policies of
such Person or the power to elect directors, whether through the ownership of
voting securities, by contract or otherwise; and the terms affiliated, controlling
and controlled have meanings correlative to the foregoing.
Applicable Law means the legal
requirements relating to the administration of options and share-based plans
under any applicable laws of the United States, any other country, and any
provincial, state, or local subdivision, any applicable stock exchange or
automated quotation system rules or regulations, as such laws, rules,
regulations and requirements shall be in place from time to time.
means any award made pursuant to the Plan, including awards made in the form of
an Option, an SAR, a Restricted Share, a RSU, an Unrestricted Share, a DSU, a Performance
Award, or Dividend Equivalent Rights, or any combination thereof, whether alternative
Agreement means any written document setting forth the terms of
an Award that has been authorized by the Committee. The Committee shall
determine the form or forms of documents to be used, and may change them from
time to time for any reason.
Beneficiary means the person or
entity designated by the Participant, in a form approved by the Company, to
exercise the Participants rights with respect to an Award or receive payment or
settlement under an Award after the Participants death.
Board means the Board of Directors
of the Company.
means (unless a different meaning is set forth in the Participants Award
Agreement or employment agreement with the Company in which case that
definition shall apply) (A) a Participants willful
and continuing failure (except where due to physical or mental incapacity) to
substantially perform his or her duties, which is not remedied within fifteen
(15) days after receipt of written notice from the Company specifying such
failure; (B) a Participants willful malfeasance or gross neglect in the
performance of his or her duties resulting in material harm to the Company; (C)
a Participants conviction of, or plea of guilty or nolo contendere to,
a felony or a misdemeanor involving moral turpitude; (D) the commission by a
Participant of an act of fraud or embezzlement against the Company or any
Affiliate; or (E) a Participants willful material breach of any material
provision of the Participants employment agreement with the Company, if any,
(as determined in good faith by the Board) which is not remedied within fifteen
(15) days after (I) receipt of written
from the Company specifying such breach and (II) the opportunity to appear
before the Board. For purposes of the
preceding sentence, no act or failure to act by the Participant shall be
considered willful unless done or omitted to be done by the Participant in
bad faith or without reasonable belief that the Participants action or
omission was in the best interests of the Company.
Change in Control means: (A) any person
(as such term is used in Sections 13(d) and 14(d)(2) of the Exchange Act, but
excluding (x) any employee benefit plan of the Company and (y) any Permitted
Holder), is or becomes the beneficial owner (as defined in Rules 13d-3 and
13d-5 under the Exchange Act, except that a person shall be deemed to have beneficial
ownership of all shares that any such person has the right to acquire, whether
such right is exercisable immediately or only through the passage of time),
directly or indirectly, of more than thirty-five percent (35%) of the voting
stock of the Company; (B) any
transaction, including without limitation any merger, consolidation, tender
offer or other transaction (whether effected by the Company or by any other
person) or any action (such as a deregistration or delisting of the securities
of the Company) taken by the Company or any of its affiliates, the result of
which is, in either case, that (1) the Company is no longer a reporting company
under the Exchange Act, or (2) the Company Stock is no longer listed on a
national securities exchange; (C) at any time, the
Continuing Directors (as defined below) cease for any reason to constitute at
least a majority of the Board; (D) a direct or indirect sale or other transfer
of all or substantially all of the assets of the Company and its Subsidiaries,
taken as a whole, or (E) any merger, consolidation or like business combination
or reorganization of the Company, the consummation of which would result in
either (x) the occurrence of any event described in clause (A) above, or (y) the
voting securities of the Company outstanding immediately prior to the consummation
of such merger, consolidation or like business combination or reorganization
not representing (either by remaining outstanding or by being converted into
voting securities of the applicable surviving or other entity) more than fifty
percent (50%) of the combined voting power of the voting securities of the
Company or such surviving or other entity outstanding immediately after such
merger, consolidation or like business combination or reorganization; provided,
however, that the consummation of the transactions contemplated by the Plan of
Reorganization shall not be deemed to constitute a Change in Control as of
the Effective Date.
Code means the Internal Revenue
Code of 1986, as amended.
Committee means the Compensation Committee of the Board
or its successor, provided that the term Committee
the Board when acting at any time in lieu of the Committee, (ii) with respect to
any decision involving an Award intended to satisfy the requirements of Code Section
162(m), a committee consisting of two or more Directors of the Company who are outside
directors within the meaning of Code Section 162(m), and (iii) with respect to
any decision relating to a Reporting Person, a committee consisting of solely
of two or more Directors who are disinterested within the meaning of Rule 16b-3.
means Six Flags Entertainment Corporation, a Delaware corporation; provided that in the event the
Company reincorporates to another jurisdiction, all references to the term Company
shall refer to the Company in such new jurisdiction.
Company Stock means common stock, $0.025
par value, of the Company. In the event
of a change in the capital structure of the Company affecting the common stock
(as provided in
Section 13), the Shares resulting from such a change
in the common stock shall be deemed to be Company Stock within the meaning of
means any person (other than an Employee or Director), including an advisor,
who is engaged by the Company or any Affiliate to render services and is
compensated for such services.
Continuing Directors shall mean, as of any date
of determination, any member of the Board who (i) was a member of the Board on the
Effective Date or (ii) was nominated for
election or elected to the Board with the approval of a majority of the
Continuing Directors who were members of the Board at the time of such
nomination or election.
Service means a Participants period of service in the absence
of any interruption or termination, as an Employee, Director, or
Consultant. Continuous Service shall not
be considered interrupted in the case of:
(i) sick leave; (ii) military leave; (iii) any other leave of absence
approved by the Committee, provided
that such leave is for a period of not more than 90 days, unless reemployment
upon the expiration of such leave is guaranteed by contract or statute, or
unless provided otherwise pursuant to Company policy adopted from time to time;
(iv) changes in status from Director to advisory director or emeritus status;
or (iv) transfers between locations of the Company or between the Company and
its Affiliates. Changes in status
between service as an Employee, Director, and a Consultant will not constitute
an interruption of Continuous Service if the individual continues to perform
bona fide services for the Company. The Committee shall have the discretion
to determine whether and to what extent the vesting of any Awards shall be
tolled during any paid or unpaid leave of absence; provided, however, that in
the absence of such determination, vesting for all Awards shall be tolled
during any such unpaid leave (but not for a paid leave).
Share Units or DSUs mean
Awards pursuant to Section 8 of the Plan.
means a member of the Board, or a member of the board of directors of an
Disabled means for an ISO, the
Participant is disabled within the meaning of Code section 22(e)(3) and for any
other Award means a condition under which a Participant
(a) is unable to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be expected to last
for a continuous period of not less than 12 months, or
(b) is, by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or can be expected to last for a continuous period of not less than 12
months, receiving income replacement benefits for a period of not less than three
months under an accident or health plan covering employees of the Company.
Equivalent Rights means Awards pursuant to Section 10 of the
Plan, which may be attached to other Awards.
Person means any Consultant, Director, or Employee and includes
non-Employees to whom an offer of employment has been or is being extended.
means any person whom the Company or any Affiliate classifies as an employee
(including an officer) for employment tax purposes, whether or not that
classification is correct. The payment
by the Company of a directors fee to a Director shall not be sufficient to
constitute employment of such Director by the Company.
Employer means the Company and
each Subsidiary and Affiliate that employs one or more Participants.
the Securities Exchange Act of 1934, as amended.
Fair Market Value means the fair
market value of the Company Stock as of such date based on the then prevailing
prices of the Company Stock on the New York Stock Exchange, the American Stock
Exchange, NASDAQ or such other stocks exchange as the Company Stock is then
listed for trading (and, if none, as determined by the Committee in good faith
based on relevant facts and circumstances).
Grant Date means the later of (i) the
date designated as the Grant Date within an Award Agreement, and (ii) date on
which the Committee determines the key terms of an Award, provided
that as soon as reasonably practical thereafter the Committee or its authorized
delegate both notifies the Eligible Person of the Award and enters into an
Award Agreement with the Eligible Person.
For Awards granted on or immediately after the Effective Date, the order
of the Bankruptcy court confirming the Companys Plan of Reorganization shall be
deemed to constitute the date on which the Committee determines the key terms
of such Awards.
Stock Option (or ISO)
means, an Option that qualifies for favorable income tax treatment under Code Section
termination of a Participants Continuous Service under the following
circumstances occurring on or after a Change in Control: (i) termination without Cause by the Company
or an Affiliate or successor thereto, as appropriate; or (ii) voluntary
termination by the Participant within one year following (A) a material
reduction in the Participants job responsibilities, provided
that neither a mere change in title alone nor reassignment to a
substantially similar position shall constitute a material reduction in job
responsibilities; (B) an involuntary relocation of the Participants work site
to a facility or location more than 60 miles from the Participants principal
work site at the time of the Change in Control; or (C) a material reduction in
Participants total cash compensation, other than as part of an reduction by a
substantially similar percentage in the total cash compensation of all other
similarly-situated Employees or Directors, as applicable.
Non-ISO means an Option not intended to qualify
as an Incentive Stock Option, as designated in the applicable Award Agreement.
Option means a right to purchase
Company Stock granted under the Plan, at a price determined in accordance with
Participant means any Eligible
Person who holds an outstanding Award.
Awards mean Awards granted pursuant to Section 9.
Unit means an Award granted pursuant to Section 9(a) of the
Plan which may be paid in cash, in Shares, or such combination of cash and
Shares as the Committee in its sole discretion shall determine.
Permitted Holders shall have the meaning set
forth in the Exit Facility (as defined in the Plan of Reorganization) as in
effect on the Effective Date.
means any natural person, association, trust, business trust, cooperative,
corporation, general partnership, joint venture, joint-stock company, limited
partnership, limited liability company, real estate investment trust,
regulatory body, governmental agency or instrumentality, unincorporated
organization or organizational entity.
means this Six Flags Entertainment Corporation Long-Term Incentive Plan.
and Rescission have the meaning set
forth in Section 14 of the Plan.
has the meaning set forth in Section 15 of the Plan.
an Employee, Director, or Consultant who is subject to the reporting
requirements set forth under Rule 16b-3.
Restricted Share means a Share of Company
Stock awarded with restrictions imposed under Section 7.
Restricted Share Unit or RSU means a right granted to a
Participant to receive Shares or cash upon the lapse of restrictions imposed
under Section 7.
Retirement means a Participants
termination of employment after age 60.
Rule 16b-3 means Rule 16b-3 promulgated under the
Exchange Act, as amended from time to time, or any successor provision.
SAR or Share
Appreciation Right means a right to receive amounts awarded
under Section 6.
means a share of Common Stock of the Company, as adjusted in accordance with Section
13 of the Plan.
Subsidiary of the Company shall mean:
any corporation of which the Company owns, directly or indirectly, more than
fifty percent (50%) of the voting stock
Percent Holder means a person who owns (within the meaning of
Code Section 422) stock representing more than ten percent (10%) of the
combined voting power of all classes of stock of the Company.
Shares mean Shares (without restrictions) awarded pursuant to Section
7 of the Plan.
Taxes means the aggregate minimum amount of federal, state,
local and foreign income, payroll and other taxes that the Company and any
Affiliates are required to withhold in connection with any Award.
SIX FLAGS ENTERTAINMENT
LONG-TERM INCENTIVE PLAN
As approved by the
Court on April 30,