Attached files
file | filename |
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S-1/A - FORM S-1/A - Molycorp, Inc. | d70469a2sv1za.htm |
EX-23.1 - EX-23.1 - Molycorp, Inc. | d70469a2exv23w1.htm |
EX-5.1 - EX-5.1 - Molycorp, Inc. | d70469a2exv5w1.htm |
EX-10.6 - EX-10.6 - Molycorp, Inc. | d70469a2exv10w6.htm |
EX-10.9 - EX-10.9 - Molycorp, Inc. | d70469a2exv10w9.htm |
EX-10.1 - EX-10.1 - Molycorp, Inc. | d70469a2exv10w1.htm |
EX-21.1 - EX-21.1 - Molycorp, Inc. | d70469a2exv21w1.htm |
EX-10.5 - EX-10.5 - Molycorp, Inc. | d70469a2exv10w5.htm |
EX-10.4 - EX-10.4 - Molycorp, Inc. | d70469a2exv10w4.htm |
EX-23.5 - EX-23.5 - Molycorp, Inc. | d70469a2exv23w5.htm |
EX-10.10 - EX-10.10 - Molycorp, Inc. | d70469a2exv10w10.htm |
EX-10.14 - EX-10.14 - Molycorp, Inc. | d70469a2exv10w14.htm |
EX-10.13 - EX-10.13 - Molycorp, Inc. | d70469a2exv10w13.htm |
EX-10.11 - EX-10.11 - Molycorp, Inc. | d70469a2exv10w11.htm |
EX-10.16 - EX-10.16 - Molycorp, Inc. | d70469a2exv10w16.htm |
EX-10.12 - EX-10.12 - Molycorp, Inc. | d70469a2exv10w12.htm |
Exhibit 10.15
MOLYCORP, INC.
2010 Equity and Performance Incentive Plan
1. Purpose. The purpose of the 2010 Equity and Performance Incentive Plan is to attract and
retain directors, officers and other employees of Molycorp, Inc., a Delaware corporation, and its
Subsidiaries and to provide to such persons incentives and rewards for superior performance.
2. Definitions. As used in this Plan,
(a) Appreciation Right means a right granted pursuant to Section 5 or Section 9 of this
Plan, and will include both Tandem Appreciation Rights and Free-Standing Appreciation Rights.
(b) Base Price means the price to be used as the basis for determining the Spread upon the
exercise of a Free-Standing Appreciation Right and a Tandem Appreciation Right.
(c) Board means the Board of Directors of the Company and, to the extent of any delegation
by the Board to a committee (or subcommittee thereof) pursuant to Section 14 of this Plan, such
committee (or subcommittee).
(d) Code means the Internal Revenue Code of 1986, as amended from time to time.
(e) Common Stock means the Common Stock, par value $0.001 per share, of the Company or any
security into which such Common Stock may be changed by reason of any transaction or event of the
type referred to in Section 12 of this Plan.
(f) Company means Molycorp, Inc., a Delaware corporation, and its successors.
(g) Date of Grant means the date specified by the Board on which a grant of Option Rights,
Appreciation Rights, Performance Shares, Performance Units or other awards contemplated by Section
10 of this Plan, or a grant or sale of Restricted Stock, Restricted Stock Units, or other awards
contemplated by Section 10 of this Plan, will become effective (which date will not be earlier than
the date on which the Board takes action with respect thereto).
(h) Director means a member of the Board of Directors of the Company.
(i)
Effective Date means June 9, 2010.
(j) Evidence of Award means an agreement, certificate, resolution or other type or form of
writing or other evidence approved by the Board that sets forth the terms and conditions of the
awards granted. An Evidence of Award may be in an electronic medium, may
be limited to notation on the books and records of the Company and, unless otherwise
determined by the Board, need not be signed by a representative of the Company or a Participant.
(k) Exchange Act means the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder, as such law, rules and regulations may be amended from time to time.
(l) Free-Standing Appreciation Right means an Appreciation Right granted pursuant to Section
5 or Section 9 of this Plan that is not granted in tandem with an Option Right.
(m) Incentive Stock Options means Option Rights that are intended to qualify as incentive
stock options under Section 422 of the Code or any successor provision.
(n) Management Objectives means the measurable performance objective or objectives
established pursuant to this Plan for Participants who have received grants of Performance Shares
or Performance Units or, when so determined by the Board, Option Rights, Appreciation Rights,
Restricted Stock, Restricted Stock Units, dividend credits or other awards pursuant to this Plan.
Management Objectives may be described in terms of Company-wide objectives or objectives that are
related to the performance of the individual Participant or of the Subsidiary, division,
department, region or function within the Company or Subsidiary in which the Participant is
employed. The Management Objectives may be made relative to the performance of one or more other
companies or subsidiaries, divisions, departments, regions or functions within such other
companies, and may be made relative to an index or one or more of the performance objectives
themselves.
If the Board determines that a change in the business, operations, corporate structure or
capital structure of the Company, or the manner in which it conducts its business, or other events
or circumstances render the Management Objectives unsuitable, the Board may in its discretion
modify such Management Objectives or the related level or levels of achievement, in whole or in
part, as the Board deems appropriate and equitable.
(o) Market Value per Share means as of any particular date the closing sale price of a share
of Common Stock as reported on the New York Stock Exchange or, if not listed on such exchange, on
any other national securities exchange on which the Common Stock is listed. If the Common Stock is
not traded as of any given date, the Market Value per Share means the closing price for a share of
Common Stock on the principal exchange on which the Common Stock is traded for the immediately
preceding date on which the Common Stock is traded. If there is no regular public trading market
for the Common Stock, the Market Value per Share shall be the fair market value of a share of
Common Stock as determined in good faith by the Board. The Board is authorized to adopt another
fair market value pricing method, provided such method is stated in the Evidence of Award, and is
in compliance with the fair market value pricing rules set forth in Section 409A of the Code.
(p) Non-Employee Director means a person who is a Non-Employee Director of the Company
within the meaning of Rule 16b-3 of the Securities and Exchange Commission promulgated under the
Exchange Act.
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(q) Optionee means the optionee named in an Evidence of Award evidencing an outstanding
Option Right.
(r) Option Price means the purchase price payable on exercise of an Option Right.
(s) Option Right means the right to purchase Common Stock upon exercise of an option granted
pursuant to Section 4 or Section 9 of this Plan.
(t) Participant means a person who is selected by the Board to receive benefits under this
Plan and who is at the time an officer or other key employee of the Company or any one or more of
its Subsidiaries, or who has agreed to commence serving in any of such capacities within 90 days of
the Date of Grant, and will also include each non-employee Director who receives Common Stock or an
award of Option Rights, Appreciation Rights, Restricted Stock, Restricted Stock Units or other
awards under this Plan. The term Participant shall also include any person who provides services
to the Company or a Subsidiary that are substantially equivalent to those typically provided by an
employee.
(u) Performance Period means, in respect of a Performance Share or Performance Unit, a
period of time established pursuant to Section 8 of this Plan within which the Management
Objectives relating to such Performance Share or Performance Unit are to be achieved.
(v) Performance Share means a bookkeeping entry that records the equivalent of one share of
Common Stock awarded pursuant to Section 8 of this Plan.
(w) Performance Unit means a bookkeeping entry awarded pursuant to Section 8 of this Plan
that records a unit equivalent to $1.00 or such other value as is determined by the Board.
(x) Plan means this Molycorp, Inc. 2010 Equity and Performance Incentive Plan, as may be
amended from time to time.
(y) Restricted Stock means Common Stock granted or sold pursuant to Section 6 or Section 9
of this Plan as to which neither the substantial risk of forfeiture nor the prohibition on
transfers has expired.
(z) Restriction Period means the period of time during which Restricted Stock Units are
subject to restrictions, as provided in Section 7 or Section 9 of this Plan.
(aa) Restricted Stock Unit means an award made pursuant to Section 7 or Section 9 of this
Plan of the right to receive Common Stock or cash at the end of a specified period.
(bb) Spread means the excess of the Market Value per Share on the date when an Appreciation
Right is exercised, or on the date when Option Rights are surrendered in payment of the Option
Price of other Option Rights, over the Option Price or Base Price provided for in the related
Option Right or Free-Standing Appreciation Right, respectively.
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(cc) Subsidiary means a corporation, company or other entity (i) more than 50 percent of
whose outstanding shares or securities (representing the right to vote for the election of
directors or other managing authority) are, or (ii) which does not have outstanding shares or
securities (as may be the case in a partnership, joint venture or unincorporated association), but
more than 50 percent of whose ownership interest representing the right generally to make decisions
for such other entity is, now or hereafter, owned or controlled, directly or indirectly, by the
Company except that for purposes of determining whether any person may be a Participant for
purposes of any grant of Incentive Stock Options, Subsidiary means any corporation in which at
the time the Company owns or controls, directly or indirectly, more than 50 percent of the total
combined voting power represented by all classes of stock issued by such corporation.
(dd) Tandem Appreciation Right means an Appreciation Right granted pursuant to Section 5 or
Section 9 of this Plan that is granted in tandem with an Option Right.
3. Shares Available Under the Plan.
(a) Maximum Shares Available Under Plan.
(i) | Subject to adjustment as provided in Section 12 of this Plan, the number of shares of Common Stock that may be issued or transferred (A) upon the exercise of Option Rights or Appreciation Rights, (B) in payment of Restricted Stock and released from substantial risks of forfeiture thereof, (C) in payment of Restricted Stock Units, (D) in payment of Performance Shares or Performance Units that have been earned, (E) as awards to Non-Employee Directors, (F) as awards contemplated by Section 10 of this Plan, or (G) in payment of dividend equivalents paid with respect to awards made under the Plan, will not exceed in the aggregate the sum of (1) 5% of the number of shares of Common Stock outstanding immediately prior to the Companys consummation of an initial public offering of Common Stock pursuant to a registration statement filed with the Securities and Exchange Commission under the Securities Act of 1933 (an IPO), giving effect to the conversion of all of the outstanding shares of the Companys Class A Common Stock and Class B Common Stock into Common Stock immediately prior to the consummation of the IPO, plus (2) 5% of the aggregate number of shares of Common Stock sold by the Company in the IPO, including, without limitation, any shares of Common Stock sold by the Company pursuant to the over-allotment option granted to the underwriters in the IPO (clauses (1) and (2), the Initial Available Shares). | ||
(ii) | Shares of Common Stock covered by an award granted under the Plan shall not be counted as used unless and until they are actually issued and delivered to a Participant and, therefore, the total number of shares of Common Stock available under the Plan as of a given date shall not be reduced by any Common Stock relating to prior awards that have expired or have been forfeited or cancelled, and upon payment in cash of the |
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benefit provided by any award granted under the Plan, any shares of Common Stock that are covered by that award will be available for issue or transfer hereunder. Notwithstanding anything to the contrary contained herein: (A) if shares of Common Stock are tendered or otherwise used in payment of the Option Price of an Option Right, the total number of shares of Common Stock covered by the Option Right being exercised shall count against the aggregate plan limit described above and (B) shares of Common Stock withheld by the Company to satisfy the tax withholding obligation shall count against the aggregate plan limit described above. In the event that the Company repurchases Common Stock with Option Right proceeds, those shares of Common Stock will not be added to the aggregate plan limit described above. If, under this Plan, a Participant has elected to give up the right to receive compensation in exchange for Common Stock based on fair market value, such shares of Common Stock will not count against the aggregate plan limit described above. |
(b) Plan Limits. Notwithstanding anything in this Section 3, or elsewhere in this Plan, to
the contrary, and subject to adjustment as provided in Section 12 of this Plan, the aggregate
number of shares of Common Stock actually issued or transferred by the Company upon the exercise of
Incentive Stock Options will not exceed the number of Initial Available Shares;
4. Option Rights. The Board may, from time to time and upon such terms and conditions as it
may determine, authorize the granting to Participants of options to purchase Common Stock. Each
such grant may utilize any or all of the authorizations, and will be subject to all of the
requirements contained in the following provisions:
(a) Each grant will specify the number of shares of Common Stock to which it pertains subject
to the limitations set forth in Section 3 of this Plan.
(b) Each grant will specify an Option Price per share, which may not be less than the Market
Value per Share on the Date of Grant.
(c) Each grant will specify whether the Option Price will be payable (i) in cash or by check
acceptable to the Company or by wire transfer of immediately available funds, (ii) by the actual or
constructive transfer to the Company of Common Stock owned by the Optionee (or other consideration
authorized pursuant to Section 4(d)) having a value at the time of exercise equal to the total
Option Price, (iii) by a combination of such methods of payment, or (iv) by such other methods as
may be approved by the Board.
(d) To the extent permitted by law, any grant may provide for deferred payment of the Option
Price from the proceeds of sale through a bank or broker on a date satisfactory to the Company of
some or all of the shares to which such exercise relates.
(e) Successive grants may be made to the same Participant whether or not any Option Rights
previously granted to such Participant remain unexercised.
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(f) Each grant will specify the period or periods of continuous service by the Optionee with
the Company or any Subsidiary that is necessary before the Option Rights or installments thereof
will become exercisable. A grant of Option Rights may provide for the earlier exercise of such
Option Rights in the event of the retirement, death or disability of a Participant, or a change of
control, as may be defined in an Evidence of Award.
(g) Any grant of Option Rights may specify Management Objectives that must be achieved as a
condition to the exercise of such rights.
(h) Option Rights granted under this Plan may be (i) options, including, without limitation,
Incentive Stock Options, that are intended to qualify under particular provisions of the Code, (ii)
options that are not intended so to qualify, or (iii) combinations of the foregoing. Incentive
Stock Options may only be granted to Participants who meet the definition of employees under
Section 3401(c) of the Code.
(i) No grant of Option Rights may be accompanied by a tandem award of dividend equivalents or
provide for dividends, dividend equivalents or other distributions to be paid on such Option
Rights.
(j) The exercise of an Option Right will result in the cancellation on a share- for-share
basis of any Tandem Appreciation Right authorized under Section 5 of this Plan.
(k) No Option Right will be exercisable more than 10 years from the Date of Grant.
(l) The Board reserves the discretion at or after the Date of Grant to provide for the
availability of a loan at the exercise of an Option Right.
(m) Each grant of Option Rights will be evidenced by an Evidence of Award. Each Evidence of
Award shall be subject to the Plan and shall contain such terms and provisions as the Board may
approve.
5. Appreciation Rights.
(a) The Board may, from time to time and upon such terms and conditions as it may determine,
authorize the granting (i) to any Optionee, of Tandem Appreciation Rights in respect of Option
Rights granted hereunder, and (ii) to any Participant, of Free-Standing Appreciation Rights. A
Tandem Appreciation Right will be a right of the Optionee, exercisable by surrender of the related
Option Right, to receive from the Company an amount determined by the Board, which will be
expressed as a percentage of the Spread (not exceeding 100 percent) at the time of exercise.
Tandem Appreciation Rights may be granted at any time prior to the exercise or termination of the
related Option Rights; provided, however, that a Tandem Appreciation Right awarded
in relation to an Incentive Stock Option must be granted concurrently with such Incentive Stock
Option. A Free-Standing Appreciation Right will be a right of the Participant to receive from the
Company an amount determined by the Board, which will be expressed as a percentage of the Spread
(not exceeding 100 percent) at the time of exercise.
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(b) Each grant of Appreciation Rights may utilize any or all of the authorizations, and will
be subject to all of the requirements, contained in the following provisions:
(i) | Any grant may specify that the amount payable on exercise of an Appreciation Right may be paid by the Company in cash, in Common Stock or in any combination thereof and may either grant to the Participant or retain in the Board the right to elect among those alternatives. | ||
(ii) | Any grant may specify that the amount payable on exercise of an Appreciation Right may not exceed a maximum specified by the Board at the Date of Grant. | ||
(iii) | Any grant may specify waiting periods before exercise and permissible exercise dates or periods. | ||
(iv) | Any grant may specify that such Appreciation Right may be exercised only in the event of, or earlier in the event of, the retirement, death or disability of a Participant, or a change of control, as may be defined in an Evidence of Award. | ||
(v) | No grant of Appreciation Rights may be accompanied by a tandem award of dividend equivalents or provide for dividends, dividend equivalents or other distributions to be paid on such Appreciation Rights. | ||
(vi) | Any grant of Appreciation Rights may specify Management Objectives that must be achieved as a condition of the exercise of such Appreciation Rights. | ||
(vii) | Each grant of Appreciation Rights will be evidenced by an Evidence of Award, which Evidence of Award will describe such Appreciation Rights, identify the related Option Rights (if applicable), and contain such other terms and provisions, consistent with this Plan, as the Board may approve. |
(c) Any grant of Tandem Appreciation Rights will provide that such Tandem Appreciation Rights
may be exercised only at a time when the related Option Right is also exercisable and at a time
when the Spread is positive, and by surrender of the related Option Right for cancellation.
Successive grants of Tandem Appreciation Rights may be made to the same Participant regardless of
whether any Tandem Appreciation Rights previously granted to the Participant remain unexercised.
(d) Regarding Free-Standing Appreciation Rights only:
(i) | Each grant will specify in respect of each Free-Standing Appreciation Right a Base Price, which will be equal to or greater than the Market Value per Share on the Date of Grant; |
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(ii) | Successive grants of Free-Standing Appreciation Rights may be made to the same Participant regardless of whether any Free-Standing Appreciation Rights previously granted to the Participant remain unexercised; and |
(iii) | No Free-Standing Appreciation Right granted under this Plan may be exercised more than 10 years from the Date of Grant. |
6. Restricted Stock. The Board may, from time to time and upon such terms and conditions as
it may determine, also authorize the grant or sale of Restricted Stock to Participants. Each such
grant or sale may utilize any or all of the authorizations, and will be subject to all of the
requirements, contained in the following provisions:
(a) Each such grant or sale will constitute an immediate transfer of the ownership of Common
Stock to the Participant in consideration of the performance of services, entitling such
Participant to voting, dividend and other ownership rights, but subject to the substantial risk of
forfeiture and restrictions on transfer hereinafter referred to.
(b) Each such grant or sale may be made without additional consideration or in consideration
of a payment by such Participant that is less than the Market Value per Share at the Date of Grant.
(c) Each such grant or sale will provide that the Restricted Stock covered by such grant or
sale that vests upon the passage of time will be subject to a substantial risk of forfeiture
within the meaning of Section 83 of the Code for a period to be determined by the Board at the Date
of Grant or upon achievement of Management Objectives referred to in subparagraph (e) below.
(d) Each such grant or sale will provide that during or after the period for which such
substantial risk of forfeiture is to continue, the transferability of the Restricted Stock will be
prohibited or restricted in the manner and to the extent prescribed by the Board at the Date of
Grant (which restrictions may include, without limitation, rights of repurchase or first refusal in
the Company or provisions subjecting the Restricted Stock to a continuing substantial risk of
forfeiture in the hands of any transferee).
(e) Any grant of Restricted Stock may specify Management Objectives that, if achieved, will
result in termination or early termination of the restrictions applicable to such Restricted Stock.
Each grant may specify in respect of such Management Objectives a minimum acceptable level of
achievement and may set forth a formula for determining the number of shares of Restricted Stock on
which restrictions will terminate if performance is at or above the minimum or threshold level or
levels, or is at or above the target level or levels, but falls short of maximum achievement of the
specified Management Objectives.
(f) Notwithstanding anything to the contrary contained in this Plan, any grant or sale of
Restricted Stock may provide for the earlier termination of restrictions on such Restricted Stock
in the event of the retirement, death or disability of a Participant, or a change of control, as
may be defined in an Evidence of Award.
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(g) Any such grant or sale of Restricted Stock may require that any or all dividends or other
distributions paid thereon during the period of such restrictions be automatically deferred and
reinvested in additional shares of Restricted Stock, which may be subject to the same restrictions
as the underlying award.
(h) Each grant or sale of Restricted Stock will be evidenced by an Evidence of Award and will
contain such terms and provisions, consistent with this Plan, as the Board may approve. Unless
otherwise directed by the Board, (i) all certificates representing shares of Restricted Stock will
be held in custody by the Company until all restrictions thereon will have lapsed, together with a
stock power or powers executed by the Participant in whose name such certificates are registered,
endorsed in blank and covering such Shares, or (ii) all shares of Restricted Stock will be held at
the Companys transfer agent in book entry form with appropriate restrictions relating to the
transfer of such shares of Restricted Stock.
7. Restricted Stock Units. The Board may, from time to time and upon such terms and
conditions as it may determine, also authorize the granting or sale of Restricted Stock Units to
Participants. Each such grant or sale may utilize any or all of the authorizations, and will be
subject to all of the requirements contained in the following provisions:
(a) Each such grant or sale will constitute the agreement by the Company to deliver Common
Stock or cash to the Participant in the future in consideration of the performance of services, but
subject to the fulfillment of such conditions (which may include the achievement of Management
Objectives) during the Restriction Period as the Board may specify. Each grant may specify in
respect of such Management Objectives a minimum acceptable level of achievement and may set forth a
formula for determining the number of Common Shares subject to the Restricted Stock Units as to
which restrictions will terminate if performance is at or above the minimum or threshold level or
levels, or is at or above the target level or levels, but falls short of maximum achievement of the
specified Management Objectives.
(b) Each such grant or sale may be made without additional consideration or in consideration
of a payment by such Participant that is less than the Market Value per Share at the Date of Grant.
(c) Notwithstanding anything to the contrary contained in this Plan, any grant or sale of
Restricted Stock Units may provide for the earlier lapse or modification of the Restriction Period
in the event of the retirement, death or disability of a Participant, or a change of control, as
may be defined in an Evidence of Award.
(d) During the Restriction Period, the Participant will have no right to transfer any rights
under his or her award and will have no rights of ownership in the Restricted Stock Units and will
have no right to vote the Common Shares subject to the Restricted Stock Units, but the Board may at
the Date of Grant authorize the payment of dividend equivalents on either a current, deferred or
contingent basis, either in cash or in additional shares of Common Stock.
(e) Each grant or sale of Restricted Stock Units will specify the time and manner of payment
of the Restricted Stock Units that have been earned. Each grant or sale will
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specify that the amount payable with respect thereto will be paid by the Company in Common
Stock or cash.
(f) Each grant or sale of Restricted Stock Units will be evidenced by an Evidence of Award and
will contain such terms and provisions, consistent with this Plan, as the Board may approve.
8. Performance Shares and Performance Units. The Board may, from time to time and upon such
terms and conditions as it may determine, also authorize the granting of Performance Shares and
Performance Units that will become payable to a Participant upon achievement of specified
Management Objectives during the Performance Period. Each such grant may utilize any or all of the
authorizations, and will be subject to all of the requirements, contained in the following
provisions:
(a) Each grant will specify the number of Performance Shares or Performance Units to which it
pertains, which number may be subject to adjustment to reflect changes in compensation or other
factors.
(b) The Performance Period with respect to each Performance Share or Performance Unit will be
such period of time, commencing with the Date of Grant as will be determined by the Board at the
time of grant which may be subject to earlier lapse or other modification in the event of the
retirement, death or disability of a Participant, or a change of control, as may be defined in an
Evidence of Award.
(c) Any grant of Performance Shares or Performance Units will specify Management Objectives
which, if achieved, will result in payment or early payment of the award, and each grant may
specify in respect of such Management Objectives a minimum acceptable level of achievement and may
set forth a formula for determining the number of Performance Shares or Performance Units that will
be earned if performance is at or above the minimum or threshold level or levels, or is at or above
the target level or levels, but falls short of maximum achievement of the specified Management
Objectives. The grant of Performance Shares or Performance Units will specify that, before the
Performance Shares or Performance Units will be earned and paid, the Board must certify that the
Management Objectives have been satisfied.
(d) Each grant will specify the time and manner of payment of Performance Shares or
Performance Units that have been earned. Any grant may specify that the amount payable with
respect thereto may be paid by the Company in cash, in Common Stock or in any combination thereof
and may either grant to the Participant or retain in the Board the right to elect among those
alternatives.
(e) Any grant of Performance Shares or Performance Units may specify that the amount payable
or the number of shares of Common Stock issued with respect thereto may not exceed maximums
specified by the Board at the Date of Grant.
(f) The Board may at the Date of Grant of Performance Shares provide for the payment of
dividend equivalents to the holder thereof either in cash or in additional shares of
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Common Stock subject in all cases to payment on a contingent basis based on the Participants
earning of the Performance Shares with respect to which such dividend equivalents are paid.
(g) Each grant of Performance Shares or Performance Units will be evidenced by an Evidence of
Award and will contain such other terms and provisions, consistent with this Plan, as the Board may
approve.
9. Awards to Non-Employee Directors. The Board may, from time to time and upon such terms and
conditions as it may determine, authorize the granting to non-employee Directors of Option Rights,
Appreciation Rights or other awards contemplated by Section 10 of this Plan and may also authorize
the grant or sale of Common Stock, Restricted Stock or Restricted Stock Units to non-employee
Directors. Each grant of an award to a non-employee Director will be upon such terms and
conditions as approved by the Board, will not be required to be subject to any minimum vesting
period, and will be evidenced by an Evidence of Award in such form as will be approved by the
Board. Each grant will specify in the case of an Option Right, an Option Price per share, and in
the case of a Free-Standing Appreciation Right, a Base Price per share, which will not be less than
the Market Value per Share on the Date of Grant. Each Option Right and Free-Standing Appreciation
Right granted under the Plan to a non-employee Director will expire not more than 10 years from the
Date of Grant and will be subject to earlier termination as hereinafter provided. If a
non-employee Director subsequently becomes an employee of the Company or a Subsidiary while
remaining a member of the Board, any award held under this Plan by such individual at the time of
such commencement of employment will not be affected thereby. Non-employee Directors, pursuant to
this Section 9, may be awarded, or may be permitted to elect to receive, pursuant to procedures
established by the Board, all or any portion of their annual retainer, meeting fees or other fees
in Common Stock, Restricted Stock, Restricted Stock Units or other awards under the Plan in lieu of
cash.
10. Other Awards.
(a) The Board may, subject to limitations under applicable law, grant to any Participant such
other awards that may be denominated or payable in, valued in whole or in part by reference to, or
otherwise based on, or related to, shares of Common Stock or factors that may influence the value
of such shares, including, without limitation, convertible or exchangeable debt securities, other
rights convertible or exchangeable into Common Stock, purchase rights for Common Stock, awards with
value and payment contingent upon performance of the Company or specified Subsidiaries, affiliates
or other business units thereof or any other factors designated by the Board, and awards valued by
reference to the book value of shares of Common Stock or the value of securities of, or the
performance of specified Subsidiaries or affiliates or other business units of the Company. The
Board shall determine the terms and conditions of such awards. Shares of Common Stock delivered
pursuant to an award in the nature of a purchase right granted under this Section 10 shall be
purchased for such consideration, paid for at such time, by such methods, and in such forms,
including, without limitation, cash, shares of Common Stock, other awards, notes or other property,
as the Board shall determine.
(b) Cash awards, as an element of or supplement to any other award granted under this Plan,
may also be granted pursuant to this Section 10 of this Plan.
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(c) The Board may grant Common Stock as a bonus, or may grant other awards in lieu of
obligations of the Company or a Subsidiary to pay cash or deliver other property under this Plan or
under other plans or compensatory arrangements, subject to such terms as shall be determined by the
Board in a manner that complies with Section 409A of the Code.
(d) Share-based awards pursuant to this Section 10 are not required to be subject to any
minimum vesting period.
11. Transferability.
(a) Except as otherwise determined by the Board, no Option Right, Appreciation Right or other
derivative security granted under the Plan shall be transferable by the Participant except by will
or the laws of descent and distribution, and in no event shall any such award granted under this
Plan be transferred for value. Except as otherwise determined by the Board, Option Rights and
Appreciation Rights will be exercisable during the Participants lifetime only by him or her or, in
the event of the Participants legal incapacity to do so, by his or her guardian or legal
representative acting on behalf of the Participant in a fiduciary capacity under state law and/or
court supervision.
(b) The Board may specify at the Date of Grant that part or all of the shares of Common Stock
that are (i) to be issued or transferred by the Company upon the exercise of Option Rights or
Appreciation Rights, upon the termination of the Restriction Period applicable to Restricted Stock
Units or upon payment under any grant of Performance Shares or Performance Units or (ii) no longer
subject to the substantial risk of forfeiture and restrictions on transfer referred to in Section 6
of this Plan, will be subject to further restrictions on transfer.
12. Adjustments. The Board shall make or provide for such adjustments in the numbers of
shares of Common Stock covered by outstanding Option Rights, Appreciation Rights, Restricted Stock
Units, Performance Shares and Performance Units granted hereunder and, if applicable, in the number
of shares of Common Stock covered by other awards granted pursuant to Section 10 hereof, in the
Option Price and Base Price provided in outstanding Appreciation Rights, and in the kind of shares
covered thereby, as the Board, in its sole discretion, exercised in good faith, may determine is
equitably required to prevent dilution or enlargement of the rights of Participants or Optionees
that otherwise would result from (a) any stock dividend, stock split, combination of shares,
recapitalization or other change in the capital structure of the Company, (b) any merger,
consolidation, spin-off, split- off, spin-out, split-up, reorganization, partial or complete
liquidation or other distribution of assets, issuance of rights or warrants to purchase securities,
or (c) any other corporate transaction or event having an effect similar to any of the foregoing.
Moreover, in the event of any such transaction or event or in the event of a change of control, the
Board, in its discretion, may provide in substitution for any or all outstanding awards under this
Plan such alternative consideration (including cash), if any, as it, in good faith, may determine
to be equitable in the circumstances and may require in connection therewith the surrender of all
awards so replaced in a manner that complies with Section 409A of the Code. In addition, for each
Option Right or Appreciation Right with an Option Price or Base Price greater than the
consideration offered in connection with any such transaction or event or change of control, the
Board may in its sole discretion elect to cancel such
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Option Right or Appreciation Right without any payment to the person holding such Option Right
or Appreciation Right. The Board shall also make or provide for such adjustments in the numbers of
shares of Common Stock specified in Section 3 of this Plan as the Board in its sole discretion,
exercised in good faith, may determine is appropriate to reflect any transaction or event described
in this Section 12; provided, however, that any such adjustment to the number
specified in Section 3(c)(i) will be made only if and to the extent that such adjustment would not
cause any option intended to qualify as an Incentive Stock Option to fail to so qualify.
13. Administration of the Plan.
(a) This Plan will be administered by the Board, which may from time to time delegate all or
any part of its authority under this Plan to the Compensation Committee of the Board (or a
subcommittee thereof), as constituted from time to time. To the extent of any such delegation,
references in this Plan to the Board will be deemed to be references to such committee or
subcommittee. A majority of the committee (or subcommittee) will constitute a quorum, and the
action of the members of the committee (or subcommittee) present at any meeting at which a quorum
is present, or acts unanimously approved in writing, will be the acts of the committee (or
subcommittee).
(b) The interpretation and construction by the Board of any provision of this Plan or of any
agreement, notification or document evidencing the grant of Option Rights, Appreciation Rights,
Restricted Stock, Restricted Stock Units, Performance Shares, Performance Units or other awards
pursuant to Section 10 of this Plan and any determination by the Board pursuant to any provision of
this Plan or of any such agreement, notification or document will be final and conclusive. No
member of the Board will be liable for any such action or determination made in good faith.
(c) The Board or, to the extent of any delegation as provided in Section 13(a), the committee,
may delegate to one or more of its members or to one or more officers of the Company, or to one or
more agents or advisors, such administrative duties or powers as it may deem advisable, and the
Board, the committee, or any person to whom duties or powers have been delegated as aforesaid, may
employ one or more persons to render advice with respect to any responsibility the Board, the
committee or such person may have under the Plan. The Board or the committee may, by resolution,
authorize one or more officers of the Company to do one or both of the following on the same basis
as the Board or the committee: (i) designate employees to be recipients of awards under this Plan;
(ii) determine the size of any such awards; provided, however, that (A) the Board
or the committee shall not delegate such responsibilities to any such officer for awards granted to
an employee who is an officer, Director, or more than 10% beneficial owner of any class of the
Companys equity securities that is registered pursuant to Section 12 of the Exchange Act, as
determined by the Board in accordance with Section 16 of the Exchange Act; (B) the resolution
providing for such authorization sets forth the total number of shares of Common Stock such
officer(s) may grant; and (C) the officer(s) shall report periodically to the Board or the
committee, as the case may be, regarding the nature and scope of the awards granted pursuant to the
authority delegated.
14. Recapture Provisions. Any Evidence of Award may provide for the cancellation or
forfeiture of an award or the forfeiture and repayment to the Company of any gain related to
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an award, or other provisions intended to have a similar effect, upon such terms and
conditions as may be determined from time to time by the Board.
15. Non U.S. Participants. In order to facilitate the making of any grant or combination of
grants under this Plan, the Board may provide for such special terms for awards to Participants who
are foreign nationals or who are employed by the Company or any Subsidiary outside of the United
States of America or who provide services to the Company under an agreement with a foreign nation
or agency, as the Board may consider necessary or appropriate to accommodate differences in local
law, tax policy or custom. Moreover, the Board may approve such supplements to or amendments,
restatements or alternative versions of this Plan (including without limitation, sub-plans) as it
may consider necessary or appropriate for such purposes, without thereby affecting the terms of
this Plan as in effect for any other purpose, and the Secretary or other appropriate officer of the
Company may certify any such document as having been approved and adopted in the same manner as
this Plan. No such special terms, supplements, amendments or restatements, however, will include
any provisions that are inconsistent with the terms of this Plan as then in effect unless this Plan
could have been amended to eliminate such inconsistency without further approval by the
stockholders of the Company.
16. Withholding Taxes. To the extent that the Company is required to withhold federal, state,
local or foreign taxes in connection with any payment made or benefit realized by a Participant or
other person under this Plan, and the amounts available to the Company for such withholding are
insufficient, it will be a condition to the receipt of such payment or the realization of such
benefit that the Participant or such other person make arrangements satisfactory to the Company for
payment of the balance of such taxes required to be withheld, which arrangements (in the discretion
of the Board) may include relinquishment of a portion of such benefit. If a Participants benefit
is to be received in the form of Common Stock, and such Participant fails to make arrangements for
the payment of tax, the Company shall withhold such shares of Common Stock having a value equal to
the amount required to be withheld. Notwithstanding the foregoing, when a Participant is required
to pay the Company an amount required to be withheld under applicable income and employment tax
laws, the Participant may elect to satisfy the obligation, in whole or in part, by electing to have
withheld, from the shares required to be delivered to the Participant, shares of Common Stock
having a value equal to the amount required to be withheld, or by delivering to the Company other
shares of Common Stock held by such Participant. The shares used for tax withholding will be
valued at an amount equal to the Market Value per Share of such Common Stock on the date the
benefit is to be included in Participants income. In no event shall the Market Value per Share of
the Common Stock to be withheld and delivered pursuant to this Section 16 to satisfy applicable
withholding taxes in connection with the benefit exceed the minimum amount of taxes required to be
withheld. Participants shall also make such arrangements as the Company may require for the
payment of any withholding tax obligation that may arise in connection with the disposition of
shares of Common Stock acquired upon the exercise of Option Rights.
17. Amendments, Etc.
(a) The Board may at any time and from time to time amend the Plan in whole or in part;
provided, however, that if an amendment to the Plan (i) would materially
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increase the benefits accruing to participants under the Plan, (ii) would materially increase
the number of securities which may be issued under the Plan, (iii) would materially modify the
requirements for participation in the Plan or (iv) must otherwise be approved by the stockholders
of the Company in order to comply with applicable law or the rules of the New York Stock Exchange
or, if the Common Stock is not traded on New York Stock Exchange, the principal national securities
exchange upon which the Common Stock is traded or quoted, then, such amendment will be subject to
stockholder approval and will not be effective unless and until such approval has been obtained.
(b) Except in connection with a corporate transaction or event described in Section 12 of this
Plan, the terms of outstanding awards may not be amended to reduce the Option Price of outstanding
Option Rights or the Base Price of outstanding Appreciation Rights, or cancel outstanding Option
Rights or Appreciation Rights in exchange for cash, other awards or Option Rights or Appreciation
Rights with an Option Price or Base Price, as applicable, that is less than the Option Price of the
original Option Rights or Base Price of the original Appreciation Rights, as applicable, without
stockholder approval.
(c) If permitted by Section 409A of the Code, but subject to Section 17(d) hereof, in case of
termination of employment by reason of death, disability or normal or early retirement, or in the
case of unforeseeable emergency or other special circumstances, of a Participant who holds an
Option Right or Appreciation Right not immediately exercisable in full, or any shares of Restricted
Stock as to which the substantial risk of forfeiture or the prohibition or restriction on transfer
has not lapsed, or any Restricted Stock Units as to which the Restriction Period has not been
completed, or any Performance Shares or Performance Units which have not been fully earned, or any
other awards made pursuant to Section 10 subject to any vesting schedule or transfer restriction,
or who holds Common Stock subject to any transfer restriction imposed pursuant to Section 11(b) of
this Plan, or in the case of a change of control, the Board may, in its sole discretion, accelerate
the time at which such Option Right, Appreciation Right or other award may be exercised or the time
at which such substantial risk of forfeiture or prohibition or restriction on transfer will lapse
or the time when such Restriction Period will end or the time at which such Performance Shares or
Performance Units will be deemed to have been fully earned or the time when such transfer
restriction will terminate or may waive any other limitation or requirement under any such award.
(d) Subject to Section 17(b) hereof, the Board may amend the terms of any award theretofore
granted under this Plan prospectively or retroactively. Subject to Section 12 above, no such
amendment shall impair the rights of any Participant without his or her consent. The Board may, in
its discretion, terminate this Plan at any time. Termination of this Plan will not affect the
rights of Participants or their successors under any awards outstanding hereunder and not exercised
in full on the date of termination.
18. Compliance with Section 409A of the Code.
(a) To the extent applicable, it is intended that this Plan and any grants made hereunder
comply with the provisions of Section 409A of the Code, so that the income inclusion provisions of
Section 409A(a)(1) of the Code do not apply to the Participants. This Plan and any grants made
hereunder shall be administered in a manner consistent with this intent. Any
15
reference in this Plan to Section 409A of the Code will also include any regulations or any
other formal guidance promulgated with respect to such Section by the U.S. Department of the
Treasury or the Internal Revenue Service.
(b) Neither a Participant nor any of a Participants creditors or beneficiaries shall have the
right to subject any deferred compensation (within the meaning of Section 409A of the Code) payable
under this Plan and grants hereunder to any anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance, attachment or garnishment. Except as permitted under Section 409A of the
Code, any deferred compensation (within the meaning of Section 409A of the Code) payable to a
Participant or for a Participants benefit under this Plan and grants hereunder may not be reduced
by, or offset against, any amount owing by a Participant to the Company or any of its affiliates.
(c) If, at the time of a Participants separation from service (within the meaning of Section
409A of the Code), (i) the Participant shall be a specified employee (within the meaning of Section
409A of the Code and using the identification methodology selected by the Company from time to
time) and (ii) the Company shall make a good faith determination that an amount payable hereunder
constitutes deferred compensation (within the meaning of Section 409A of the Code) the payment of
which is required to be delayed pursuant to the six-month delay rule set forth in Section 409A of
the Code in order to avoid taxes or penalties under Section 409A of the Code, then the Company
shall not pay such amount on the otherwise scheduled payment date but shall instead pay it, without
interest, on the tenth business day of the seventh month after such separation of service.
(d) Notwithstanding any provision of this Plan and grants hereunder to the contrary, in light
of the uncertainty with respect to the proper application of Section 409A of the Code, the Company
reserves the right to make amendments to this Plan and grants hereunder as the Company deems
necessary or desirable to avoid the imposition of taxes or penalties under Section 409A of the
Code. In any case, a Participant shall be solely responsible and liable for the satisfaction of
all taxes and penalties that may be imposed on a Participant or for a Participants account in
connection with this Plan and grants hereunder (including any taxes and penalties under Section
409A of the Code), and neither the Company nor any of its affiliates shall have any obligation to
indemnify or otherwise hold a Participant harmless from any or all of such taxes or penalties.
19. Governing Law. The Plan and all grants and awards and actions taken thereunder shall be
governed by and construed in accordance with the internal substantive laws of the State of
Delaware.
20. Effective Date/Termination. This Plan will be effective as of the Effective Date, which
is the date on which the Plan is adopted by the Board; provided, however, that no
awards may be granted under the Plan until the consummation of the IPO. The Plan shall be
submitted to the Companys stockholders for approval. Unless the Plan is approved by the Companys
stockholders within twelve (12) months after the Effective Date, the Plan and all Awards made under
it shall be void and of no force and effect. No grant will be made under this Plan after the tenth
anniversary of the Effective Date, but all grants made on or prior to such date will continue in
effect thereafter subject to the terms thereof and of this Plan.
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21. Miscellaneous.
(a) The Company will not be required to issue any fractional shares of Common Stock pursuant
to this Plan. The Board may provide for the elimination of fractions or for the settlement of
fractions in cash.
(b) This Plan will not confer upon any Participant any right with respect to continuance of
employment or other service with the Company or any Subsidiary, nor will it interfere in any way
with any right the Company or any Subsidiary would otherwise have to terminate such Participants
employment or other service at any time.
(c) To the extent that any provision of this Plan would prevent any Option Right that was
intended to qualify as an Incentive Stock Option from qualifying as such, that provision will be
null and void with respect to such Option Right. Such provision, however, will remain in effect
for other Option Rights and there will be no further effect on any provision of this Plan.
(d) No award under this Plan may be exercised by the holder thereof if such exercise, and the
receipt of cash or stock thereunder, would be, in the opinion of counsel selected by the Board,
contrary to law or the regulations of any duly constituted authority having jurisdiction over this
Plan.
(e) Absence or leave approved by a duly constituted officer of the Company or any of its
Subsidiaries shall not be considered interruption or termination of service of any employee for any
purposes of this Plan or awards granted hereunder.
(f) No Participant shall have any rights as a stockholder with respect to any shares subject
to awards granted to him or her under this Plan prior to the date as of which he or she is actually
recorded as the holder of such shares upon the stock records of the Company.
(g) The Board may condition the grant of any award or combination of awards authorized under
this Plan on the surrender or deferral by the Participant of his or her right to receive a cash
bonus or other compensation otherwise payable by the Company or a Subsidiary to the Participant.
(h) If any provision of the Plan is or becomes invalid, illegal or unenforceable in any
jurisdiction, or would disqualify the Plan or any award under any law deemed applicable by the
Board, such provision shall be construed or deemed amended or limited in scope to conform to
applicable laws or, in the discretion of the Board, it shall be stricken and the remainder of the
Plan shall remain in full force and effect.
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