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EXCEL - IDEA: XBRL DOCUMENT - ART TECHNOLOGY GROUP INC | Financial_Report.xls |
10-Q - FORM 10-Q - ART TECHNOLOGY GROUP INC | b81224e10vq.htm |
EX-31.2 - EX-31.2 - ART TECHNOLOGY GROUP INC | b81224exv31w2.htm |
EX-31.1 - EX-31.1 - ART TECHNOLOGY GROUP INC | b81224exv31w1.htm |
EX-32.2 - EX-32.2 - ART TECHNOLOGY GROUP INC | b81224exv32w2.htm |
EX-32.1 - EX-32.1 - ART TECHNOLOGY GROUP INC | b81224exv32w1.htm |
Exhibit
10.1
As Amended by the
Board of Directors
On July 21, 2010
Board of Directors
On July 21, 2010
ART TECHNOLOGY GROUP, INC.
AMENDED AND RESTATED 1996 STOCK OPTION PLAN
1. Purpose. The purpose of this Amended and Restated 1996 Stock Option Plan (the Plan) of
Art Technology Group, Inc., a Delaware corporation (the Company), is to advance the interests of
the Companys stockholders by enhancing the Companys ability to attract, retain and motivate
persons who are expected to make important contributions to the Company and by providing such
persons with equity ownership opportunities and performance-based incentives that are intended to
better align their interests with those of the Companys stockholders. Except where the context
otherwise requires, the term Company shall include any of the Companys present or future parent
or subsidiary corporations as defined in Section 424(e) or (f) of the Internal Revenue Code of
1986, as amended, and any regulations promulgated thereunder (the Code) and any other
business venture (including any joint venture or limited liability company) in which the Company
has a controlling interest, as determined by the Board of Directors of the Company (the Board).
2. Eligibility. All of the Companys employees, officers, directors, consultants and
advisors are eligible to receive options, stock appreciation rights, restricted stock and other
stock-based awards (each, an Award) under the Plan. Each person who receives an Award under the
Plan is deemed a Participant.
3. Administration and Delegation.
(a) Administration by Board. The Plan will be administered by the Board. The Board shall have
authority to grant Awards and to adopt, amend and repeal such administrative rules, guidelines and
practices relating to the Plan as it shall deem advisable. The Board may correct any defect, supply
any omission or reconcile any inconsistency in the Plan or any Award in the manner and to the
extent it shall deem expedient to carry the Plan into effect (including the interpretation and
implementation of Section 11(g)) and it shall be the sole and final judge of such expediency. All
decisions by the Board shall be made in the Boards sole discretion and shall be final and binding
on all persons having or claiming any interest in the Plan or in any Award. No director or person
acting pursuant to the authority delegated by the Board shall be liable for any action or
determination relating to or under the Plan made in good faith,
(b) Appointment of Committees. To the extent permitted by applicable law, the Board may
delegate any or all of its powers under the Plan to one or more committees or subcommittees of
the Board (a Committee). All references in the Plan to the Board shall mean the Board or a
Committee of the Board or the officers referred to in Section 3(c) to the extent that the
Boards powers or authority under the Plan have been delegated to such Committee or officers
(c) Delegation to Officers. To the extent permitted by applicable law, the Board may delegate
to one or more officers of the Company the power to grant Awards to employees or officers of the
Company or any of its present or future subsidiary corporations and to exercise such other powers
under the Plan as the Board may determine, provided that the Board shall fix the terms of the
Awards to be granted by such officers (including the exercise price of such Awards, which may
include a formula by which the exercise price will be determined) and the maximum number of shares
subject to Awards that the officers may grant; provided further that no officer shall be authorized
to grant Awards to any executive officer of the Company (as defined by Rule 3b-7 under the
Securities Exchange Act of 1934, as amended (the Exchange Act)) or to any officer of the
Company (as defined by Rule 16a-1 under the Exchange Act).
4. | Stock Available for Awards. |
(a) Number of Shares. Subject to adjustment under Section 9, Awards may be made under the Plan
for up to 46,000,000 shares of common stock, $0.01 par value per share, of the Company (the Common
Stock). If any Award expires or is terminated, surrendered or canceled without having been fully
exercised or is forfeited in whole or in part (including as the result of shares of Common Stock
subject to such Award being repurchased by the Company at the original issuance price pursuant to a
contractual repurchase right) or results in any Common Stock not being issued, the unused Common
Stock covered by such Award shall again be available for the grant of Awards under the Plan,
subject, however, in the case of Incentive Stock Options (as hereinafter defined), to any
limitations under the Code. Shares issued under the Plan may consist in whole or in part of
authorized but unissued shares or treasury shares. Solely for the purpose of applying this
limitation (and not for purposes of Section 4(b) below), each Option (each as hereinafter defined)
granted under this Plan shall reduce the number of shares available for grant by one share for
every one share granted, each SAR (each as hereinafter defined) granted under this Plan shall
reduce the number of shares available for grant by one share for every one share underlying the
SAR, and each Award authorized under this Plan after May 24, 2010, other than an Option or SAR,
shall reduce the number of shares available by that number of shares for every one share granted as
follows:
| Awards granted prior to May 24, 2010: 1.24 | ||
| Awards granted on or after May 24, 2010: 1.39 |
Shares that are (i) subject to a stock-settled SAR Award that were not issued upon the net
settlement or net exercise of such SAR Award and (ii) shares delivered to or withheld by the
Company to pay the withholding taxes related to an Option or a SAR Award, may not again be made
available for issuance under the Plan.
(b) Section 162(m) Per-Participant Limit. Subject to adjustment under Section 9, the maximum
number of shares of Common Stock with respect to which Awards may be granted to any Participant
under the Plan shall be 1,000,000 per calendar year. For purposes of the foregoing limit, the
combination of an Option in tandem with an SAR shall be treated as a single Award. The
per-Participant limit described in this Section 4(b) shall be construed and applied consistently
with Section 162(m) of the Code or any successor provision thereto, and the regulations thereunder
(Section 162(m)).
5. | Stock Options. |
(a) General. The Board may grant options to purchase Common Stock (each, an Option) and
determine the number of shares of Common Stock to be covered by each Option, the exercise price of
each Option and the conditions and limitations applicable to the exercise of each Option,
including conditions relating to applicable federal or state securities laws, as it considers
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necessary or advisable. An Option that is not intended to be an Incentive Stock Option (as
hereinafter defined) shall be designated a Nonstatutory Stock Option.
(b) Incentive Stock Options. An Option that the Board intends to be an incentive stock
option as defined in Section 422 of the Code (an Incentive Stock Option) shall only be granted
to employees of Art Technology Group, Inc., any of Art Technology Group, Inc.s present or future
parent or subsidiary corporations as defined in Section 424(e) or (f) of the Code, and any other
entities the employees of which are eligible to receive Incentive Stock Options under the Code, and
shall be subject to and shall be construed consistently with the requirements of Section 422 of the
Code. The Company shall have no liability to a Participant, or any other party, if an Option (or
any part thereof) that is intended to be an Incentive Stock Option is not an Incentive Stock Option
or for any action taken by the Board pursuant to Section 10(f), including the conversion of an
Incentive Stock Option to a Nonstatutary Stock Option.
(c) Exercise Price. The Board shall establish the exercise price of each Option and specify
such exercise price in the applicable option agreement, provided, however, that the exercise price
of any Option shall not be less than the fair market value per share of the Common Stock as of the
date of option grant.
(d) Duration of Options. Each Option shall be exercisable at such times and subject to such
terms and conditions as the Board may specify in the applicable option agreement, provided,
however, that no Option shall be exercisable more than ten (10) years after the date the Option is
granted.
(e) Exercise of Options. Options may be exercised by delivery to the Company of a written
notice of exercise signed by the proper person or by any other form of notice (including
electronic notice) approved by the Board together with payment in full as specified in Section
5(f) for the number of shares for which the Option is exercised.
(I) Payment Upon Exercise. Common Stock purchased upon the exercise of an Option
granted under the Plan shall be paid for as follows:
(1) in cash or by check, payable to the order of the Company;
(2) except as the Board may otherwise provide in an option agreement, by (A) delivery of an
irrevocable and unconditional undertaking by a creditworthy broker to deliver promptly to the
Company sufficient funds to pay the exercise price and any required tax withholding or (B) delivery
by the Participant to the Company of a copy of irrevocable and unconditional instructions to a
creditworthy broker to deliver promptly to the Company cash or a check sufficient to pay the
exercise price and any required tax withholding or (C) with the consent of the Board, by reducing
the number of shares of Common Stock otherwise issuable to the optionee upon exercise of the Option
by a number of shares of Common Stock having a fair market value equal to such aggregate exercise
price;
(3) when the Common Stock is registered under the Securities Exchange Act of 1934 (the
Exchange Act), by delivery of shares of Common Stock owned by the Participant valued at their
fair market value as determined by (or in a manner approved by) the Board (Fair Market Value),
provided (A) such method of payment is then permitted under applicable law, (B) such Common Stock,
if acquired directly from the Company, was owned by the Participant at least six months prior to
such delivery and (C) such Common Stock is not subject to any repurchase, forfeiture, unfulfilled
vesting or other similar requirements;
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(4) to the extent permitted by applicable law and by the Board, by (A) delivery of a
promissory note of the Participant to the Company on terms determined by the Board, with the
understanding that no loans shall be made to directors or executive officers, or (B) payment of
such other lawful consideration as the Board may determine; or
(5) by any combination of the above permitted forms of payment.
(g) Substitute Options. In connection with a merger or consolidation of an entity with the
Company or the acquisition by the Company of property or stock of an entity, the Board may grant
Options in substitution for any options or other stock or stock-based awards granted by such entity
or an affiliate thereof. Substitute Options may be granted on such terms as the Board deems
appropriate in the circumstances, notwithstanding any limitations on Options contained in the other
sections of this Section 5 or in Section 2.
(h) No Repricing of Options. Notwithstanding anything to the contrary in the Plan,
the Company shall not engage in any repricing of Options or SARs granted under this Plan without
further stockholder approval. For this purpose, the term repricing shall mean any of the
following or other action that has the same effect: (i) lowering the exercise price of an Option or
an SAR after it is granted, (ii) any other actions that is treated as a repricing under generally
accepted accounting principles, or (iii) canceling an Option or an SAR at a time when its exercise
price exceeds the fair market value of the underlying stock in exchange for another Option, SAR,
restricted stock, or other equity of the Company, unless the cancellation and exchange occurs in
connection with a merger, acquisition, spin-off, or similar corporate transaction (including any
adjustment described in Section 9).
6. | Stock Appreciation Rights. |
(a) Nature. A Stock Appreciation Right (SAR) is an Award entitling the holder on exercise to
receive an amount in cash or Common Stock or a combination thereof (such form to be determined by
the Board) determined in whole or in part by reference to appreciation, from and after the date of
grant, in the fair market value of a share of Common Stock, provided, however, that the exercise
price of any SAR shall not be less than the fair market value per share of the Common Stock as
of the date of the SAR Award. The date as of which such appreciation or other measure is
determined shall be the exercise date unless another date is specified by the Board in the SAR
Award.
(b) Grants. SARs may be granted in tandem with, or independently of, Options granted
under the Plan.
(1) Tandem Awards. When SARs are expressly granted in tandem with Options: (A) the SAR will
be exercisable only at such time or times, and to the extent, that the related Option is
exercisable and will be exercisable in accordance with the procedure required for exercise of the
related Option; (B) the SAR will terminate and no longer be exercisable upon the termination or
exercise of the related Option, except that a SAR granted with respect to less than the full
number of shares covered by an Option will not be reduced until the number of shares as to which
the related Option has been exercised or has terminated exceeds the number of shares not covered
by the SAR; (C) the Option will terminate and no longer be exercisable upon the exercise of the
related SAR; and (D) the SAR will be transferable only with the related Option.
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(2) Independent SARs. A SAR not expressly granted in tandem with an Option will
become exercisable at such time or times, and on such conditions, as the Board may specify
in the SAR Award.
(c) Exercise. A SAR may be exercised only by delivery to the Company of a written notice of
exercise signed by the proper person or other form of notice (including electronic notice)
approved by the Board, together with any other documents required by the Board.
(d) Duration of SARs. No SAR shall be exercisable more than ten (10) years after the date
the SAR is granted.
7. | Restricted Stock. |
(a) Grants. The Board may grant Awards entitling recipients to acquire shares of Common
Stock, subject to the right of the Company to repurchase all or part of such shares at their issue
price or other stated or formula price (or to require forfeiture of such shares if issued at no
cost) from the recipient in the event that conditions specified by the Board in the applicable
Award are not satisfied prior to the end of the applicable restriction period or periods
established by the Board for such Award (each, a Restricted Stock Award).
(b) Terms and Conditions. The Board shall determine the terms and conditions of a Restricted
Stock Award, including the conditions for repurchase (or forfeiture) and the issue price, if any.
(c) Stock Certificates. Any stock certificates issued in respect of a Restricted Stock Award
shall be registered in the name of the Participant and, unless otherwise determined by the Board,
deposited by the Participant, together with a stock power endorsed in blank, with the Company (or
its designee). At the expiration of the applicable restriction periods, the Company (or such
designee) shall deliver the certificates no longer subject to such restrictions to the Participant
or the Designated Beneficiary of such Participant. For these purposes, a Designated Beneficiary
of a Participant shall be (1) a beneficiary designated by such Participant, in a manner determined
by the Board, to receive amounts due or exercise rights of such Participant in the event of such
Participants death or (2) in the absence of such a designation, the Participants estate.
(d) Deferred Delivery of Shares. The Board may, at the time any Restricted Stock Award is
granted, provide that, at the time Common Stock would otherwise be delivered pursuant to the
Award, the Participant shall instead receive an instrument evidencing the right to future delivery
of Common Stock at such time or times, and on such conditions, as the Board shall specify. The
Board may at any time accelerate the time at which delivery of all or any part of the Common Stock
shall take place.
8. Other Stock-Based Awards. Other Awards of shares of Common Stock, and other Awards that are
valued in whole or in part by reference to, or are otherwise based on, shares of Common Stock or
other property, may be granted under the Plan to Participants (Other Stock Unit Awards),
including Awards entitling recipients to receive shares of Common Stock to be delivered in the
future. Such Other Stock Unit Awards shall also be available as a form of payment in the settlement
of other Awards granted under the Plan or as payment in lieu of compensation to which a Participant
is otherwise entitled. Other Stock Unit Awards may be paid in shares of Common Stock or cash, as
the Board shall determine. Subject to the provisions of the Plan, the Board shall determine the
conditions of each Other Stock Unit Awards, including any purchase price applicable thereto. At the
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time any Award is granted, the Board may provide that, at the time Common Stock would
otherwise be delivered pursuant to the Award, the Participant will instead receive an instrument
evidencing the Participants right to future delivery of the Common Stock.
9. Adjustments for Changes in Common Stock and Certain Other Events,
(a) Changes in Capitalization. In the event of any stock split, reverse stock split, stock
dividend, recapitalization, combination of shares, reclassification of shares, spin-off or other
similar change in capitalization or event, or any distribution to holders of Common Stock other
than an ordinary cash dividend, (1) the number and class of securities available under the Plan,
(2) the sub-limit set forth in Section 4(b), (3) the number and class of securities and exercise
price per share of each outstanding Option, (4) the repurchase price per share subject to each
outstanding Restricted Stock Award and (5) the share- and per-share-related provisions of each
outstanding SAR and Other Stock Unit Award, shall be appropriately adjusted by the Company (or
substituted Awards may be made, if applicable) to the extent determined by the Board.
(b) Reorganization Events.
(1) Definition. A Reorganization Event shall mean: (A) any merger or consolidation of the
Company with or into another entity as a result of which all of the Common Stock of the Company is
converted into or exchanged for the right to receive cash, securities or other property, (B) any
exchange of all of the Common Stock of the Company for cash, securities or other property pursuant
to a share exchange transaction or (C) any liquidation or dissolution of the Company.
(2) Consequences of a Reorganization Event on Awards Other than Restricted Stock Awards. In
connection with a Reorganization Event, the Board shall have the authority to take, in its
discretion, any of the following actions as to all or any outstanding Awards on such terms as the
Board determines:
(A) provide that Awards shall be assumed, or substantially equivalent Awards shall be
substituted, by the acquiring or succeeding corporation (or an affiliate thereof);
(B) upon written notice to a Participant, provide that the Participants =exercised
Options or other =exercised Awards shall become exercisable in full and will terminate
immediately prior to the consummation of such Reorganization Event unless exercised by the
Participant within a specified period following the date of such notice;
(C) provide that outstanding Awards shall become realizable or deliverable, or
restrictions applicable to an Award shall lapse, in whole or in part prior to or upon such
Reorganization Event;
(D) in the event of a Reorganization Event under the terms of which holders of Common Stock
will receive upon consummation thereof a cash payment for each share surrendered in the
Reorganization Event (the Acquisition Price), make or provide for a cash payment to a
Participant equal to (i) the Acquisition Price times the number of shares of Common Stock
subject to the Participants Options or other Awards (to the extent the exercise price does not
exceed the Acquisition Price) minus (ii) the aggregate exercise price of all such outstanding
Options or other Awards, in exchange for the termination of such Options or other Awards;
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(E) provide that, in connection with a liquidation or dissolution of the Company, Awards
shall convert into the right to receive liquidation proceeds (if applicable, net of the exercise
price thereof); and
(F) any combination of the foregoing.
For purposes of clause (A) above, an Option shall be considered assumed if following
consummation of the Reorganization Event, the Option confers the right to purchase, for each share
of Common Stock subject to the Option immediately prior to the consummation of the Reorganization
Event, the consideration (whether cash, securities or other property) received as a result of the
Reorganization Event by holders of Common Stock for each share of Common Stock held immediately
prior to the consummation of the Reorganization Event (and if holders were offered a choice of
consideration, the type of consideration chosen by the holders of a majority of the outstanding
shares of Common Stock); provided that if the consideration received as a result of the
Reorganization Event is not solely common stock of the acquiring or succeeding corporation (or an
affiliate thereof), the Company may, with the consent of the acquiring or succeeding corporation,
provide for the consideration to be received upon the exercise of Options to consist solely of
common stock of the acquiring or succeeding corporation (or an affiliate thereof) equivalent in
fair market value to the per share consideration received by holders of outstanding shares of
Common Stock as a result of the Reorganization Event.
To the extent all or any portion of an Option becomes exercisable solely as a result of
clause (B) above, the Board may provide that upon exercise of such Option the Participant shall
receive shares subject to a right of repurchase by the Company or its successor at the Option
exercise price; such repurchase right (i) shall lapse at the same rate as the Option would have
become exercisable under its terms and (ii) shall not apply to any shares subject to the Option
that were exercisable under its terms without regard to clause (B) above.
Consequences of a Reorganization Event on Restricted Stock Awards. Upon the occurrence of a
Reorganization Event other than a liquidation or dissolution of the Company, the repurchase and
other rights of the Company under each outstanding Restricted Stock Award shall inure to the
benefit of the Companys successor and shall apply to the cash, securities or other property that
the Common Stock was converted into or exchanged for pursuant to such Reorganization Event in the
same manner and to the same extent as they applied to the Common Stock subject to such Restricted
Stock Award. Upon the occurrence of a Reorganization Event involving the liquidation or dissolution
of the Company, except to the extent specifically provided to the contrary in the instrument
evidencing any Restricted Stock Award or any other agreement between a Participant and the Company,
all restrictions and conditions on all Restricted Stock Awards then outstanding shall automatically
be deemed terminated or satisfied.
10. | General Provisions Applicable to Awards. |
(a) Transferability of Awards. Awards shall not be sold, assigned, transferred, pledged or
otherwise encumbered by the person to whom they are granted, either voluntarily or by operation
of law, except by will or the laws of descent and distribution or, other than in the case of an
Incentive Stock Option, pursuant to a qualified domestic relations order, and, during the life of
the Participant, shall be exercisable only by the Participant. References to a Participant, to
the extent relevant in the context, shall include references to authorized transferees.
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(b) Documentation. Each Award shall be evidenced in such form (written, electronic or
otherwise) as the Board shall determine. Each Award may contain terms and conditions in addition to
those set forth in the Plan.
(c) Board Discretion. Except as otherwise provided by the Plan, each Award may be made alone
or in addition or in relation to any other Award. The terms of each Award need not be
identical, and the Board need not treat Participants uniformly.
(d) Termination of Status. The Board shall determine the effect on an Award of the disability,
death, retirement, authorized leave of absence or other change in the employment or other status of
a Participant and the extent to which, and the period during which, the Participant, or the
Participants legal representative, conservator, guardian or Designated Beneficiary, may exercise
rights under the Award.
(e) Withholding. Each Participant shall pay to the Company, or make provision satisfactory to
the Company for payment of, any taxes required by law to be withheld in connection with an Award to
such Participant. Except as the Board may otherwise provide in an Award, for so long as the Common
Stock is registered under the Exchange Act, Participants may satisfy such tax obligations in whole
or in part by delivery of shares of Common Stock, including shares retained from the Award creating
the tax obligation, valued at their Fair Market Value; provided that the total tax withholding
where stock is being used to satisfy such tax obligations cannot exceed the Companys minimum
statutory withholding obligations (based on minimum statutory withholding rates for federal and
state tax purposes, including payroll taxes, that are applicable to such supplemental taxable
income). Shares surrendered to satisfy tax withholding requirements cannot be subject to any
repurchase, forfeiture, unfulfilled vesting or other similar requirements. The Company may, to the
extent permitted by law, deduct any such tax obligations from any payment of any kind otherwise due
to a Participant.
(f) Amendment of Award. The Board may amend, modify or terminate any outstanding Award,
including changing the date of exercise or realization, and converting an Incentive Stock Option to
a Nonstatutory Stock Option, provided that the Participants consent to such action shall be
required unless the Board determines that the action, taking into account any related action, would
not materially and adversely affect the Participant.
(g) Conditions on Delivery of Stock. The Company will not be obligated to deliver any shares
of Common Stock pursuant to the Plan or to remove restrictions from shares previously delivered
under the Plan until (1) all conditions of the Award have been met or removed to the satisfaction
of the Company, (2) in the opinion of the Companys counsel, all other legal matters in connection
with the issuance and delivery of such shares have been satisfied, including any applicable
securities laws and any applicable stock exchange or stock market rules and regulations, and (3)
the Participant has executed and delivered to the Company such representations or agreements as
the Company may consider appropriate to satisfy the requirements of any applicable laws, rules or
regulations.
(h) Vesting; Acceleration. The Board may set the vesting schedule, if any, for any Award;
provided, that time-based Awards, other than Options or SARS, shall vest in full no earlier than
three (3) years from the date of grant and performance-based Awards, other than Options or SARS,
shall vest in full no earlier than one year from the date of the grant; and further provided,
notwithstanding the foregoing proviso, the Board may grant Awards that do not conform to the
vesting requirements of such proviso, as long as the aggregate number of shares of Common Stock
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subject to all such non-conforming Awards outstanding at any time does not exceed ten
percent (10%) of the shares of Common Stock then subject to this Plan. Additionally, the Board
may at any time provide that any Award shall become immediately exercisable in full or in part,
free of some or all restrictions or conditions, or otherwise realizable in full or in part, as
the case may be, upon a Reorganization Event.
(i) Performance Conditions.
(1) This Section 10(i) shall be administered by a Committee approved by the Board, all of
the members of which are outside directors as defined by Section 162(m) (the Section 162(m)
Committee).
(2) Notwithstanding any other provision of the Plan, if the Section 162(m) Committee
determines at the time a Restricted Stock Award or Other Stock Unit Award is granted to a
Participant who is then an officer, that such Participant is, or is likely to be as of the end of
the tax year in which the Company would claim a tax deduction in connection with such Award, a
Covered Employee (as defined in Section 162(m)), then the Section 162(m) Committee may provide that
this Section 10(i) is applicable to such Award.
(3) If a Restricted Stock Award or Other Stock Unit Award is subject to this Section 10(i),
than the lapsing of restrictions thereon and the distribution of cash or Shares pursuant thereto,
as applicable, shall be subject to the achievement of one or more objective performance goals
established by the Section 162(m) Committee, which:
(A) shall
be set by the Section 162(m) Committee within the time period prescribed by,
and shall otherwise comply with the requirements of, Section 162(m);
(B) shall be based on the attainment of specified levels of one or any combination of the
following: (1) earnings per share; (ii) return on average equity Or average assets with
respect to a pre-determined peer group; (iii) earnings; (iv) earnings growth; (v) revenues; (vi)
expenses; (vii) stock price; (viii) market share; (ix) return on sales, assets, equity or
investment; (x) regulatory compliance; (xi) improvement of financial ratings; (xii) achievement of
balance sheet or income statement objectives; (xiii) total shareholder return; (xiv) net operating
profit after tax; (xv)pre-tax or after-tax income; (xvi) cash flow; or (xvii) such other objective
goals as are established by the Board;
(C) may be absolute in their terms or measured against or in relationship to other
companies comparably, similarly or otherwise situated;
(D) may be adjusted to exclude any one or more of (i) extraordinary items, (ii) gains or
losses on the dispositions of discontinued operations, (iii) the cumulative effects of changes in
accounting principles, (iv) the writedown of any asset and (v) charges for restructuring and
rationalization programs; and
(E) may vary by Participant and may be different for different Awards.
(4) Notwithstanding any provision of the Plan, with respect to any Restricted Stock Award
or Other Stock Unit Award that is subject to this Section 10(i), the Section 162(m) Committee:
(A) may adjust downwards, but not upwards, the cash or number of Shares payable pursuant to such Award; and
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(B) may not waive the achievement of the applicable performance goals except in the case of
the death or disability of the Participant.
(5) The Section 162(m) Committee shall have the power to impose such other restrictions on
Awards subject to this Section 10(i) as it may deem necessary or appropriate to ensure that such
Awards satisfy all requirements for performance-based compensation within the meaning of
Section 162(m)(4)(C) of the Code, or any successor provision thereto.
11. | Miscellaneous. |
(a) No Right To Employment or Other Status. No person shall have any claim or right to be
granted an Award, and the grant of an Award shall not be construed as giving a Participant the
right to continued employment or any other relationship with the Company. The Company expressly
reserves the right at any time to dismiss or otherwise terminate its relationship with a
Participant free from any liability or claim under the Plan, except as expressly provided in the
applicable Award.
(b) No Rights As Stockholder. Subject to the provisions of the applicable Award, no
Participant or Designated Beneficiary shall have any rights as a stockholder with respect to any
shares of Common Stock to be distributed with respect to an Award until becoming the record holder
of such shares. Notwithstanding the foregoing, in the event the Company effects a split of the
Common Stock by means of a stock dividend and the exercise price of and the number of shares
subject to such Option are adjusted as of the date of the distribution of the dividend (rather
than as of the record date for such dividend), then an optionee who exercises an Option between
the record date and the distribution date for such stock dividend shall be entitled to receive, on
the distribution date, the stock dividend with respect to the shares of Common Stock acquired upon
such Option exercise, notwithstanding the fact that such shares were not outstanding as of the
close of business on the record date for such stock dividend.
(c) Effective Date and Term of Plan. The Plan shall become effective on the date on which it
is adopted by the Board, but no Award may be granted unless and until the Plan has been approved
by the Companys stockholders. No Awards shall be granted under the Plan after December 31, 2019,
but Awards previously granted may extend beyond that date.
(d) Amendment of Plan. The Board may amend, suspend or terminate the Plan or any portion
thereof at any time, provided that, to the extent determined by the Board, no amendment requiring
stockholder approval under any applicable legal, regulatory or listing requirement shall become
effective until such stockholder approval is obtained. No Award shall be made that is conditioned
upon stockholder approval of any amendment to the Plan.
(e) Provisions for Foreign Participants. The Board may modify Awards or Options granted to
Participants who are foreign nationals or employed outside the United States or establish
subplans or procedures under the Plan to recognize differences in laws, rules, regulations or
customs of such foreign jurisdictions with respect to tax, securities, currency, employee
benefit or other matters.
(f) Governing Law. The provisions of the Plan and all Awards made hereunder shall be governed
by and interpreted in accordance with the laws of the State of Delaware, without regard to any
applicable conflicts of law.
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(g) Effect of Amendment. All Awards to Participants outstanding as of the date of any
amendment of the Plan shall continue in full force and effect without modification by such
amendment; provided that each reference in any such Awards to a section of the Plan as in effect
prior to any amendment shall be deemed to refer to the corresponding section of the Plan as amended
unless the reference to such corresponding section would have an adverse impact on the Participant
holding the applicable Award.
(h) Construction. The headings of the Sections of the Plan are included only for convenience
and shall not affect the meaning or interpretation of the Plan. Except as otherwise expressly
provided, references herein to Sections shall mean such Sections of the Plan. The word including
as used in the Plan shall not be construed so as to exclude any other thing not referred to or
described.
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