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8-K - FORM 8-K - Orbitz Worldwide, Inc. | c64949e8vk.htm |
EXHIBIT 10.1
ORBITZ
WORLDWIDE, INC.
2007 EQUITY AND INCENTIVE PLAN
(As amended and restated, effective June 1, 2011)
2007 EQUITY AND INCENTIVE PLAN
(As amended and restated, effective June 1, 2011)
1. | Purpose; Types of Awards; Construction. |
The purposes of the Orbitz Worldwide, Inc. 2007 Equity and
Incentive Plan (the Plan) are to afford an incentive
to non-employee directors, selected officers and other
employees, advisors and consultants of Orbitz Worldwide, Inc.
(the Company), or any Parent or Subsidiary of the
Company that now exists or hereafter is organized or acquired,
to continue as non-employee directors, officers, employees,
advisors or consultants, as the case may be, to increase their
efforts on behalf of the Company and its Subsidiaries and to
promote the success of the Companys business. The Plan
provides for the grant of Options (including incentive
stock options and nonqualified stock options),
stock appreciation rights, restricted stock, restricted stock
units and other stock- or cash-based awards. The Plan is
designed so that Awards granted hereunder intended to comply
with the requirements for performance-based
compensation under Section 162(m) of the Code comply
with such requirements, and the Plan and Awards shall be
interpreted in a manner consistent with such requirements.
2. | Definitions. |
For purposes of the Plan, the following terms shall be defined
as set forth below:
(a) Annual Incentive Program means the
program described in Section 6(c) hereof.
(b) Award means any Option, SAR,
Restricted Stock, Restricted Stock Unit or Other Stock-Based
Award or Other Cash-Based Award granted under the Plan.
(c) Award Agreement means any written
agreement, contract, or other instrument or document, in each
case as approved by the Committee, evidencing an Award.
(d) Board means the Board of Directors
of the Company.
(e) Change in Control means, following
the Effective Date and excluding the separation transaction
pursuant to which the Company becomes a separate public
corporation for the first time, a change in control of the
Company, which will have occurred if:
(i) any person, as such term is used in
Sections 13(d) and 14(d) of the Exchange Act (other than
(A) the Company, (B) any trustee or other fiduciary
holding securities under an employee benefit plan of the
Company, and (C) any corporation owned, directly or
indirectly, by the stockholders of the Company in substantially
the same proportions as their ownership of Stock), is or becomes
the beneficial owner (as defined in
Rule 13d-3
under the Exchange Act), directly or indirectly, of securities
of the Company representing 30% or more of the combined voting
power of the Companys then outstanding voting securities
(excluding any person who becomes such a beneficial owner in
connection with a transaction immediately following which the
individuals who comprise the Board immediately prior thereto
constitute at least a majority of the Board of the entity
surviving such transaction or, if the Company or the entity
surviving the transaction is then a subsidiary, the ultimate
parent thereof);
(ii) the following individuals cease for any reason to
constitute a majority of the number of directors then serving:
individuals who, on the Effective Date, constitute the Board and
any new director (other than a director whose initial assumption
of office is in connection with an actual or threatened election
contest, including but not limited to a consent solicitation,
relating to the election of directors of the Company) whose
appointment or election by the Board or nomination for election
by the Companys stockholders was approved or recommended
by a vote of at least two-thirds (2/3) of the directors then
still in office who either were directors on the Effective Date
or whose appointment, election or nomination for election was
previously so approved or recommended;
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(iii) there is consummated a merger or consolidation of the
Company or any direct or indirect subsidiary of the Company with
any other corporation, other than a merger or consolidation
immediately following which the individuals who comprise the
Board immediately prior thereto constitute at least a majority
of the Board, the entity surviving such merger or consolidation
or, if the Company or the entity surviving such merger is then a
subsidiary, the ultimate parent thereof; or
(iv) the stockholders of the Company approve a plan of
complete liquidation of the Company or there is consummated an
agreement for the sale or disposition by the Company of all or
substantially all of the Companys assets (or any
transaction having a similar effect), other than a sale or
disposition by the Company of all or substantially all of the
Companys assets to an entity, immediately following which
the individuals who comprise the Board immediately prior thereto
constitute at least a majority of the board of directors of the
entity to which such assets are sold or disposed of or, if such
entity is a subsidiary, the ultimate parent thereof.
Notwithstanding the foregoing, a Change in Control shall not be
deemed to have occurred by virtue of the consummation of any
transaction or series of integrated transactions immediately
following which individuals who comprise the Board immediately
prior thereto constitute at least a majority of the board of
directors of an entity which owns all or substantially all of
the assets of the Company immediately following such transaction
or series of transactions.
(f) Code means the Internal Revenue Code
of 1986, as amended from time to time, and the rules and
regulations promulgated thereunder.
(g) Committee means the committee
established by the Board to administer the Plan, the composition
of which shall at all times satisfy the provisions of
Rule 16b-3
and Section 162(m) of the Code.
(h) Company means Orbitz Worldwide,
Inc., a corporation organized under the laws of the State of
Delaware, or any successor corporation.
(i) Covered Employee shall have the
meaning set forth in Section 162(m)(3) of the Code.
(j) Effective Date means the effective
date of the IPO.
(k) Exchange Act means the Securities
Exchange Act of 1934, as amended from time to time, and the
rules and regulations promulgated thereunder.
(l) Fair Market Value means the fair
market value determined in such manner as the Committee, in its
sole discretion, may deem equitable or as required by applicable
law, rule or regulation. Unless the Committee otherwise
determines, with respect to an Award granted under the Plan,
Fair Market Value means (i) the mean between
the highest and lowest reported sales price per share of Stock
on the national securities exchange on which the Stock is
principally traded on the date of grant of such Award, or if the
date of grant is not a trading day, then the last preceding date
on which there was a sale of such Stock on such exchange, or
(ii) if the shares of Stock are then traded in an
over-the-counter
market, the average of the closing bid and asked prices for the
shares of Stock in such
over-the-counter
market for the date of grant of such Award, or if the date of
grant is not a trading day, then the last preceding date on
which there was a sale of such Stock on such
over-the-counter
market.
(m) Grantee means a person who, as a
non-employee director, officer or other employee, advisor or
consultant of the Company or a Parent or Subsidiary of the
Company, has been granted an Award under the Plan.
(n) IPO means the initial public
offering of the Companys Stock.
(o) ISO means any Option intended to be
and designated as an incentive stock option within the meaning
of Section 422 of the Code.
(p) Long Range Incentive Program means
the program described in Section 6(b) hereof.
(q) Non-Employee Director means any
director of the Company who is not also employed by the Company
or any of its Subsidiaries.
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(r) NQSO means any Option that is not
designated as an ISO.
(s) Option means a right, granted to a
Grantee under Section 6(b)(i), to purchase shares of Stock.
An Option may be either an ISO or an NQSO, provided that ISOs
may be granted only to employees of the Company or a Parent or
Subsidiary of the Company.
(t) Other Cash-Based Award means cash
awarded under the Annual Incentive Program or the Long Range
Incentive Program, including cash awarded as a bonus or upon the
attainment of Performance Goals or otherwise as permitted under
the Plan.
(u) Other Stock-Based Award means a
right or other interest granted to a Grantee under the Annual
Incentive Program or the Long Range Incentive Program that may
be denominated or payable in, valued in whole or in part by
reference to, or otherwise based on, or related to, Stock,
including but not limited to (i) unrestricted Stock awarded
as a bonus or upon the attainment of Performance Goals or
otherwise as permitted under the Plan, and (ii) a right
granted to a Grantee to acquire Stock from the Company
containing terms and conditions prescribed by the Committee.
(v) Parent means a parent
corporation, whether now or hereafter existing, as defined
in Section 424(e) of the Code.
(w) Performance Goals means performance
goals based on one or more of the following criteria, determined
in accordance with generally accepted accounting principles
where applicable: (i) pre-tax income or after-tax income;
(ii) income or earnings including operating income,
earnings before or after taxes, interest, depreciation,
amortization,
and/or
extraordinary or special items; (iii) net income excluding
amortization of intangible assets, depreciation and impairment
of goodwill and intangible assets
and/or
excluding charges attributable to the adoption of new accounting
pronouncements; (iv) earnings or book value per share
(basic or diluted); (v) return on assets (gross or net),
return on investment, return on capital, or return on equity;
(vi) return on revenues; (vii) cash flow, free cash
flow, cash flow return on investment (discounted or otherwise),
net cash provided by operations, or cash flow in excess of cost
of capital; (viii) economic value created;
(ix) operating margin or profit margin; (x) stock
price or total stockholder return; (xi) income or earnings
from continuing operations; (xii) cost targets, reductions
and savings, expense management, productivity and efficiencies;
and (xiii) strategic business criteria, consisting of one
or more objectives based on meeting specified market penetration
or market share, geographic business expansion, customer
satisfaction, employee satisfaction, human resources management,
supervision of litigation, information technology, and goals
relating to divestitures, joint ventures and similar
transactions. Where applicable, the Performance Goals may be
expressed in terms of attaining a specified level of the
particular criterion or the attainment of a percentage increase
or decrease in the particular criterion, and may be applied to
one or more of the Company or a Parent or Subsidiary of the
Company, or a division or strategic business unit of the
Company, all as determined by the Committee. The Performance
Goals may include a threshold level of performance below which
no payment will be made (or no vesting will occur), levels of
performance at which specified payments will be paid (or
specified vesting will occur), and a maximum level of
performance above which no additional payment will be made (or
at which full vesting will occur). Each of the foregoing
Performance Goals shall be evaluated in accordance with
generally accepted accounting principles, where applicable, and
shall be subject to certification by the Committee. The
Committee shall have the authority to make equitable adjustments
to the Performance Goals in recognition of unusual or
non-recurring events affecting the Company or any Parent or
Subsidiary of the Company or the financial statements of the
Company or any Parent or Subsidiary of the Company, in response
to changes in applicable laws or regulations, or to account for
items of gain, loss or expense determined to be extraordinary or
unusual in nature or infrequent in occurrence or related to the
disposal of a segment of a business or related to a change in
accounting principles.
(x) Plan means this Orbitz Worldwide,
Inc. 2007 Equity and Incentive Plan, as amended from time to
time.
(y) Plan Year means a calendar year.
(z) Restricted Stock means an Award of
shares of Stock to a Grantee under Section 6(b)(iii) that may be
subject to certain restrictions and to a risk of forfeiture.
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(aa) Restricted Stock Unit or
RSU means a right granted to a Grantee under
Section 6(b)(iv) to receive Stock or cash at the end of a
specified period, which right may be conditioned on the
satisfaction of specified performance or other criteria.
(bb) Rule 16b-3
means
Rule 16b-3,
as from time to time in effect promulgated by the Securities and
Exchange Commission under Section 16 of the Exchange Act,
including any successor to such Rule.
(cc) Securities Act means the Securities
Act of 1933, as amended from time to time, and the rules and
regulations promulgated thereunder.
(dd) Stock means shares of the common
stock, par value $0.01 per share, of the Company.
(ee) Stock Appreciation Right or
SAR means the right, granted to a Grantee under
Section 6(b)(ii), to be paid an amount measured by the
appreciation in the Fair Market Value of Stock from the date of
grant to the date of exercise of the right.
(ff) Subsidiary means a subsidiary
corporation, whether now or hereafter existing, as defined
in Section 424(f) of the Code.
3. | Administration. |
The Plan shall be administered by the Board or by such Committee
that the Board may appoint for this purpose. If a Committee is
appointed to administer the Plan, all references herein to the
Committee shall be references to such Committee. If
no Committee is appointed by the Board to administer the Plan,
all references herein to the Committee shall be
references to the Board. The Committee shall have the authority
in its discretion, subject to and not inconsistent with the
express provisions of the Plan, to administer the Plan and to
exercise all the powers and authorities either specifically
granted to it under the Plan or necessary or advisable in the
administration of the Plan, including, without limitation, the
authority to grant Awards; to determine the persons to whom and
the time or times at which Awards shall be granted; to determine
the type and number of Awards to be granted, the number of
shares of Stock to which an Award may relate and the terms,
conditions, restrictions and performance criteria relating to
any Award; to determine Performance Goals no later than such
time as required to ensure that an underlying Award which is
intended to comply with the requirements of Section 162(m)
of the Code so complies; and to determine whether, to what
extent, and under what circumstances an Award may be settled,
cancelled, forfeited, exchanged, or surrendered; to amend the
terms and conditions of outstanding Awards, including, but not
limited to extending the exercise period of such Awards and
accelerating the vesting schedule of such Awards; to make
adjustments in the terms and conditions of, and the Performance
Goals (if any) included in, Awards; to construe and interpret
the Plan and any Award; to prescribe, amend and rescind rules
and regulations relating to the Plan; to determine the terms and
provisions of the Award Agreements (which need not be identical
for each Grantee); and to make all other determinations deemed
necessary or advisable for the administration of the Plan.
Notwithstanding the foregoing, neither the Board, the Committee
nor their respective delegates shall have the authority to
reprice (or cancel and regrant) any Option or, if applicable,
other Award at a lower exercise, base or purchase price without
first obtaining the approval of the Companys stockholders.
Notwithstanding any other provision of the Plan to the contrary,
upon approval of the Companys stockholders, the Committee
may provide for, and the Company may implement, a one-time only
stock option exchange program, pursuant to which certain
outstanding Options could, at the election of the person holding
such Option, be tendered to the Company for cancellation in
exchange for the issuance of a lesser amount of Options with a
lower exercise price, or other equity benefit as may be approved
by the Committee, provided that such one-time only stock option
exchange program is implemented within twelve months of the date
of such stockholder approval.
The Committee may delegate to one or more of its members or to
one or more agents such administrative duties as it may deem
advisable, and the Committee or any person to whom it has
delegated duties as aforesaid may employ one or more persons to
render advice with respect to any responsibility the Committee
or such person may have under the Plan. All decisions,
determinations and interpretations of the Committee shall be
final and binding on all persons, including but not limited to
the Company, any Parent or Subsidiary of the Company or any
Grantee (or any person claiming any rights under the Plan from
or through any Grantee) and any stockholder.
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No member of the Board or Committee shall be liable for any
action taken or determination made in good faith with respect to
the Plan or any Award granted hereunder.
4. | Eligibility. |
Awards may be granted to selected non-employee directors,
officers and other employees, advisors or consultants of the
Company or any Parent or Subsidiary of the Company, in the
discretion of the Committee. In determining the persons to whom
Awards shall be granted and the type of any Award (including the
number of shares to be covered by such Award), the Committee
shall take into account such factors as the Committee shall deem
relevant in connection with accomplishing the purposes of the
Plan.
5. | Stock Subject to the Plan. |
The maximum number of shares of Stock reserved for issuance
under the Plan shall be
21,100,000, subject to adjustment as provided herein. No more than
(i) 5,000,000 shares of Stock may be made subject to
NQSOs or SARs to a single individual in a single Plan Year,
(ii) 2,500,000 shares of Stock may be made subject to
stock-based awards other than Options or SARs (including
Restricted Stock and Restricted Stock Units or Other Stock-Based
Awards denominated in shares of Stock) to a single individual in
a single Plan Year, and (iii) 1,000,000 shares of
Stock may be issued pursuant to the exercise of ISOs, in
each case, subject to adjustment as provided herein.
Determinations made in respect of the limitations set forth in
the immediately preceding sentence shall be made in a manner
consistent with Section 162(m) of the Code. Such shares
may, in whole or in part, be authorized but unissued shares or
shares that shall have been or may be reacquired by the Company
in the open market, in private transactions or otherwise. If any
shares subject to an Award are forfeited, cancelled, exchanged
or surrendered or if an Award terminates or expires without a
distribution of shares to the Grantee, or if shares of Stock are
surrendered or withheld as payment of either the exercise price
of an Award
and/or
withholding taxes in respect of an Award, the shares of Stock
with respect to such Award shall, to the extent of any such
forfeiture, cancellation, exchange, surrender, withholding,
termination or expiration, again be available for Awards under
the Plan. Upon the exercise of any Award granted in tandem with
any other Award, such related Award shall be cancelled to the
extent of the number of shares of Stock as to which the Award is
exercised and, notwithstanding the foregoing, such number of
shares shall no longer be available for Awards under the Plan.
In the event that the Committee shall determine that any
dividend or other distribution (whether in the form of cash,
Stock, or other property), recapitalization, Stock split,
reverse split, reorganization, merger, consolidation, spin-off,
combination, repurchase, or share exchange, or other similar
corporate transaction or event, affects the Stock such that an
adjustment is appropriate in order to prevent dilution or
enlargement of the rights of Grantees under the Plan, then the
Committee shall make such equitable changes or adjustments as it
deems necessary or appropriate to any or all of (i) the
number and kind of shares of Stock or other property (including
cash) that may thereafter be issued in connection with Awards,
(ii) the number and kind of shares of Stock or other
property (including cash) issued or issuable in respect of
outstanding Awards, (iii) the exercise price, grant price,
or purchase price relating to any Award; provided, that, with
respect to ISOs, such adjustment shall be made in accordance
with Section 424(h) of the Code, (iv) annual award
limitations set forth in Section 5, and (v) the
Performance Goals applicable to outstanding Awards.
6. | Specific Terms of Awards. |
(a) General. The term of each
Award shall be for such period as may be determined by the
Committee. Subject to the terms of the Plan and any applicable
Award Agreement, payments to be made by the Company or a Parent
or Subsidiary of the Company upon the grant, vesting,
maturation, or exercise of an Award may be made in such forms as
the Committee shall determine at the date of grant or
thereafter, including, without limitation, cash, Stock, or other
property, and may be made in a single payment or transfer, in
installments, or on a deferred basis. The Committee may make
rules relating to installment or deferred payments with respect
to Awards, including the rate of interest to be credited with
respect to such payments. In addition to the foregoing, the
Committee may
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impose on any Award or the exercise thereof, at the date of
grant or thereafter, such additional terms and conditions, not
inconsistent with the provisions of the Plan, as the Committee
shall determine.
(b) Long Range Incentive
Program. Under the Long Range Incentive
Program, the Committee is authorized to grant the Awards
described in this Section 6(b), under such terms and
conditions as deemed by the Committee to be consistent with the
purposes of the Plan. Such Awards may be granted with value and
payment contingent upon Performance Goals. Except as otherwise
set forth herein or as may be determined by the Committee, each
Award granted under the Long Range Incentive Program shall be
evidenced by an Award Agreement containing such terms and
conditions applicable to such Award as the Committee shall
determine at the date of grant or thereafter.
(i) Options. The Committee is
authorized to grant Options to Grantees on the following terms
and conditions:
(a) Type of Award. The Award
Agreement evidencing the grant of an Option under the Plan shall
designate the Option as an ISO or an NQSO.
(b) Exercise Price. The exercise
price per share of Stock purchasable under an Option shall be
determined by the Committee, but, subject to
Section 6(b)(v), in no event shall the per share exercise
price of any Option be less than the Fair Market Value of a
share of Stock on the date of grant of such Option. The exercise
price for Stock subject to an Option may be paid in cash or by
an exchange of Stock previously owned by the Grantee for at
least six months (if acquired from the Company), through a
broker cashless exercise procedure approved by the
Committee (to the extent permitted by law), or a combination of
the above, in any case in an amount having a combined value
equal to such exercise price. An Award Agreement may provide
that a Grantee may pay all or a portion of the aggregate
exercise price by having shares of Stock with a Fair Market
Value on the date of exercise equal to the aggregate exercise
price withheld by the Company.
(c) Term and Exercisability of
Options. The date on which the Committee
adopts a resolution expressly granting an Option shall be
considered the day on which such Option is granted. Options
shall be exercisable over the exercise period (which shall not
exceed ten years from the date of grant), at such times and upon
such conditions as the Committee may determine, as reflected in
the Award Agreement; provided, that the Committee shall have the
authority to accelerate the exercisability of any outstanding
Option at such time and under such circumstances as it, in its
sole discretion, deems appropriate. An Option may be exercised
to the extent of any or all full shares of Stock as to which the
Option has become exercisable, by giving written notice of such
exercise to the Committee or its designated agent.
(d) Termination of Employment. An
Option may not be exercised unless the Grantee is then a
director of, in the employ of, or providing services to, the
Company or a Parent or Subsidiary of the Company, and unless the
Grantee has remained continuously so employed, or continuously
maintained such relationship, since the date of grant of the
Option; provided, that the Award Agreement may contain
provisions extending the exercisability of Options, in the event
of specified terminations of employment or service, to a date
not later than the expiration date of such Option.
(e) Other Provisions. Options may
be subject to such other conditions including, but not limited
to, restrictions on transferability of the shares acquired upon
exercise of such Options, as the Committee may prescribe in its
discretion or as may be required by applicable law.
(ii) SARs. The Committee is
authorized to grant SARs to Grantees on the following terms and
conditions:
(a) In General. Unless the
Committee determines otherwise, a SAR (1) granted in tandem
with an NQSO may be granted at the time of grant of the related
NQSO or at any time thereafter or (2) granted in tandem
with an ISO may only be granted at the time of grant of the
related ISO. A SAR granted in tandem with an Option shall be
exercisable only to the extent the underlying Option is
exercisable. Payment of a SAR may be made in cash, Stock, or
property as specified in the Award or determined by the
Committee.
(b) Right Conferred. A SAR shall
confer on the Grantee a right to receive an amount with respect
to each share subject thereto, upon exercise thereof, equal to
the excess of (1) the Fair Market Value of one share of
Stock on the date of exercise over (2) the grant price of
the SAR (which in the case of an SAR granted in
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tandem with an Option shall be equal to the exercise price of
the underlying Option, and which in the case of any other SAR
shall be such price as the Committee may determine).
(c) Term and Exercisability of
SARs. The date on which the Committee adopts
a resolution expressly granting a SAR shall be considered the
day on which such SAR is granted. SARs shall be exercisable over
the exercise period (which shall not exceed the lesser of ten
years from the date of grant or, in the case of a tandem SAR,
the expiration of its related Award), at such times and upon
such conditions as the Committee may determine, as reflected in
the Award Agreement; provided, that the Committee shall have the
authority to accelerate the exercisability of any outstanding
SAR at such time and under such circumstances as it, in its sole
discretion, deems appropriate. A SAR may be exercised to the
extent of any or all full shares of Stock as to which the SAR
(or, in the case of a tandem SAR, its related Award) has become
exercisable, by giving written notice of such exercise to the
Committee or its designated agent.
(d) Termination of Employment. A
SAR may not be exercised unless the Grantee is then a director
of, in the employ of, or providing services to, the Company or a
Parent or Subsidiary of the Company, and unless the Grantee has
remained continuously so employed, or continuously maintained
such relationship, since the date of grant of the SAR; provided,
that the Award Agreement may contain provisions extending the
exercisability of the SAR, in the event of specified
terminations of employment or service, to a date not later than
the expiration date of such SAR (or, in the case of a tandem
SAR, its related Award).
(e) Other Provisions. SARs may be
subject to such other conditions including, but not limited to,
restrictions on transferability of the shares acquired upon
exercise of such SARs, as the Committee may prescribe in its
discretion or as may be required by applicable law.
(iii) Restricted Stock. The
Committee is authorized to grant Restricted Stock to Grantees on
the following terms and conditions:
(a) Issuance and
Restrictions. Restricted Stock shall be
subject to such restrictions on transferability and other
restrictions, if any, as the Committee may impose at the date of
grant or thereafter, which restrictions may lapse separately or
in combination at such times, under such circumstances, in such
installments, or otherwise, as the Committee may determine. The
Committee may place restrictions on Restricted Stock that shall
lapse, in whole or in part, only upon the attainment of
Performance Goals. Except to the extent restricted under the
Award Agreement relating to the Restricted Stock, a Grantee
granted Restricted Stock shall have all of the rights of a
stockholder including, without limitation, the right to vote
Restricted Stock and the right to receive dividends thereon.
(b) Forfeiture. Upon termination
of employment with or service to the Company, or upon
termination of the director or independent contractor
relationship, as the case may be, during the applicable
restriction period, Restricted Stock and any accrued but unpaid
dividends that are then subject to restrictions shall be
forfeited; provided, that the Committee may provide, by rule or
regulation or in any Award Agreement, or may determine in any
individual case, that restrictions or forfeiture conditions
relating to Restricted Stock will be waived in whole or in part
in the event of terminations resulting from specified causes,
and the Committee may in other cases waive in whole or in part
the forfeiture of Restricted Stock.
(c) Certificates for
Stock. Restricted Stock granted under the
Plan may be evidenced in such manner as the Committee shall
determine. If certificates representing Restricted Stock are
registered in the name of the Grantee, such certificates shall
bear an appropriate legend referring to the terms, conditions,
and restrictions applicable to such Restricted Stock, and the
Company shall retain physical possession of the certificate.
(d) Dividends. Stock distributed
in connection with a stock split or stock dividend, and cash or
other property distributed as a dividend, shall be subject to
restrictions and a risk of forfeiture to the same extent as the
Restricted Stock with respect to which such Stock or other
property has been distributed, and shall be settled as the same
time as the Restricted Stock to which it relates.
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(iv) Restricted Stock Units. The
Committee is authorized to grant Restricted Stock Units to
Grantees, subject to the following terms and conditions:
(a) Award and
Restrictions. Delivery of Stock or cash, as
determined by the Committee, will occur upon expiration of the
deferral period specified for Restricted Stock Units by the
Committee. The Committee may place restrictions on Restricted
Stock Units that shall lapse, in whole or in part, only upon the
attainment of Performance Goals. The Committee may award
dividend equivalents relating to Restricted Stock Units on terms
and conditions as it determines.
(b) Forfeiture. Upon termination
of employment with or service to the Company, or upon
termination of the director or independent contractor
relationship, as the case may be, during the applicable deferral
period or portion thereof to which forfeiture conditions apply,
or upon failure to satisfy any other conditions precedent to the
delivery of Stock or cash to which such Restricted Stock Units
relate, all Restricted Stock Units and any accrued but unpaid
dividend equivalents that are then subject to deferral or
restriction shall be forfeited; provided, that the Committee may
provide, by rule or regulation or in any Award Agreement, or may
determine in any individual case, that restrictions or
forfeiture conditions relating to Restricted Stock Units will be
waived in whole or in part in the event of termination resulting
from specified causes, and the Committee may in other cases
waive in whole or in part the forfeiture of Restricted Stock
Units.
(v) Other Stock- or Cash-Based
Awards. The Committee is authorized to grant
Awards to Grantees in the form of Other Stock-Based Awards or
Other Cash-Based Awards, as deemed by the Committee to be
consistent with the purposes of the Plan. Awards granted
pursuant to this paragraph may be granted with value and payment
contingent upon Performance Goals, so long as such goals relate
to periods of performance in excess of one calendar year. The
Committee shall determine the terms and conditions of such
Awards at the date of grant or thereafter. Performance periods
under this Section 6(b)(v) may overlap. The maximum value
of the aggregate payment that any Grantee may receive pursuant
to this Section 6(b)(v) in respect of any Plan Year is
$10,000,000. Payments earned hereunder may be decreased or, with
respect to any Grantee who is not a Covered Employee, increased
in the sole discretion of the Committee based on such factors as
it deems appropriate. No such payment shall be made to a Covered
Employee prior to the certification by the Committee that the
Performance Goals have been attained. The Committee may
establish such other rules applicable to the Other Stock- or
Cash-Based Awards to the extent not inconsistent with
Section 162(m) of the Code.
(c) Annual Incentive Program. The
Committee is authorized to grant Awards to Grantees pursuant to
the Annual Incentive Program, under such terms and conditions as
deemed by the Committee to be consistent with the purposes of
the Plan. Grantees will be selected by the Committee with
respect to participation for a Plan Year. The maximum value of
the aggregate payment that any Grantee may receive under the
Annual Incentive Program in respect of any Plan Year is
$10,000,000. Payments earned hereunder may be decreased or, with
respect to any Grantee who is not a Covered Employee, increased
in the sole discretion of the Committee based on such factors as
it deems appropriate. No such payment shall be made to a Covered
Employee prior to the certification by the Committee that the
Performance Goals relating to Awards hereunder have been
attained. The Committee may establish such other rules
applicable to the Annual Incentive Program to the extent not
inconsistent with Section 162(m) of the Code.
7. | Change in Control Provisions. |
In the event of a Change in Control and subject to any
applicable Award Agreement, the Committee shall have the
authority, in its sole discretion, to:
(a) accelerate the vesting, payment or right to exercise of
any Award effective immediately upon the occurrence of a Change
in Control; and
(b) cause the restrictions, deferral limitations, payment
conditions, and forfeiture conditions applicable to any Award
granted under the Plan to lapse and deem such Awards fully
vested, and deem any performance conditions imposed with respect
to Awards to be fully achieved.
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8. | General Provisions. |
(a) Nontransferability. Unless
otherwise provided in an Award Agreement, Awards shall not be
transferable by a Grantee except by will or the laws of descent
and distribution and shall be exercisable during the lifetime of
a Grantee only by such Grantee or his guardian or legal
representative.
(b) No Right to Continued Employment,
etc. Nothing in the Plan or in any Award, any
Award Agreement or other agreement entered into pursuant hereto
shall confer upon any Grantee the right to continue in the
employ of, or to continue as a director of, or to continue to
provide services to, the Company or any Parent or Subsidiary of
the Company or to be entitled to any remuneration or benefits
not set forth in the Plan or such Award Agreement or other
agreement or to interfere with or limit in any way the right of
the Company or any such Parent or Subsidiary to terminate such
Grantees employment, or director or independent contractor
relationship.
(c) Taxes. The Company or any
Parent or Subsidiary of the Company is authorized to withhold
from any Award granted, any payment relating to an Award under
the Plan, including from a distribution of Stock, or any other
payment to a Grantee, amounts of withholding and other taxes due
in connection with any transaction involving an Award, and to
take such other action as the Committee may deem advisable to
enable the Company and Grantees to satisfy obligations for the
payment of withholding taxes and other tax obligations relating
to any Award. This authority shall include authority to withhold
or receive Stock or other property and to make cash payments in
respect thereof in satisfaction of a Grantees tax
obligations. The Committee may provide in the Award Agreement
that in the event that a Grantee is required to pay any amount
to be withheld in connection with the issuance of shares of
Stock in settlement or exercise of an Award, the Grantee may
satisfy such obligation (in whole or in part) by electing to
have a portion of the shares of Stock to be received upon
settlement or exercise of such Award equal to the minimum amount
required to be withheld.
(d) Stockholder Approval; Amendment and
Termination.
(i) The Plan shall be effective upon the IPO, provided that
the Plan has been previously approved by Travelport Limited, the
Companys sole stockholder.
(ii) The Board may at any time and from time to time alter,
amend, suspend, or terminate the Plan in whole or in part;
provided, however, that unless otherwise determined by the
Board, an amendment that requires stockholder approval in order
for the Plan to continue to comply with Section 162(m) or
any other law, regulation or stock exchange requirement shall
not be effective unless approved by the requisite vote of
stockholders. Notwithstanding the foregoing, no amendment to or
termination of the Plan shall affect adversely any of the rights
of any Grantee, without such Grantees consent, under any
Award theretofore granted under the Plan.
(e) Expiration of Plan. Unless
earlier terminated by the Board pursuant to the provisions of
the Plan, the Plan shall expire on the tenth anniversary of the
Effective Date. No Awards shall be granted under the Plan after
such expiration date. The expiration of the Plan shall not
affect adversely any of the rights of any Grantee, without such
Grantees consent, under any Award theretofore granted.
(f) Deferrals. The Committee shall
have the authority to establish such procedures and programs
that it deems appropriate to provide Grantees with the ability
to defer receipt of cash, Stock or other property payable with
respect to Awards granted under the Plan.
(g) No Rights to Awards; No Stockholder
Rights. No Grantee shall have any
claim to be granted any Award under the Plan, and there is no
obligation for uniformity of treatment of Grantees. Except as
provided specifically herein, a Grantee or a transferee of an
Award shall have no rights as a stockholder with respect to any
shares covered by the Award until the date of the issuance of a
stock certificate to him for such shares.
(h) Unfunded Status of Awards. The
Plan is intended to constitute an unfunded plan for
incentive and deferred compensation. With respect to any
payments not yet made to a Grantee pursuant to an Award, nothing
contained in the Plan or any Award shall give any such Grantee
any rights that are greater than those of a general creditor of
the Company.
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(i) No Fractional Shares. No
fractional shares of Stock shall be issued or delivered pursuant
to the Plan or any Award. The Committee shall determine whether
cash, other Awards, or other property shall be issued or paid in
lieu of such fractional shares or whether such fractional shares
or any rights thereto shall be forfeited or otherwise eliminated.
(j) Regulations and Other Approvals.
(i) The obligation of the Company to sell or deliver Stock
with respect to any Award granted under the Plan shall be
subject to all applicable laws, rules and regulations, including
all applicable federal and state securities laws, and the
obtaining of all such approvals by governmental agencies as may
be deemed necessary or appropriate by the Committee.
(ii) Each Award is subject to the requirement that, if at
any time the Committee determines, in its absolute discretion,
that the listing, registration or qualification of Stock
issuable pursuant to the Plan is required by any securities
exchange or under any state or federal law, or the consent or
approval of any governmental regulatory body is necessary or
desirable as a condition of, or in connection with, the grant of
an Award or the issuance of Stock, no such Award shall be
granted or payment made or Stock issued, in whole or in part,
unless listing, registration, qualification, consent or approval
has been effected or obtained free of any conditions not
acceptable to the Committee.
(iii) In the event that the disposition of Stock acquired
pursuant to the Plan is not covered by a then-current
registration statement under the Securities Act and is not
otherwise exempt from such registration, such Stock shall be
restricted against transfer to the extent required by the
Securities Act or regulations thereunder, and the Committee may
require a Grantee receiving Stock pursuant to the Plan, as a
condition precedent to receipt of such Stock, to represent to
the Company in writing that the Stock acquired by such Grantee
is acquired for investment only and not with a view to
distribution.
(iv) The Committee may require a Grantee receiving Stock
pursuant to the Plan, as a condition precedent to receipt of
such Stock, to enter into a stockholder agreement or
lock-up
agreement in such form as the Committee shall determine is
necessary or desirable to further the Companys interests.
(k) Governing Law. The Plan and
all determinations made and actions taken pursuant hereto shall
be governed by the laws of the State of Delaware without giving
effect to the conflict of laws principles thereof.
(l) Tax Laws. Awards under the
Plan are intended to comply with Code Section 409A and all
Awards 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 of the Plan. Notwithstanding any
provision of the Plan or any Agreement to the contrary, in the
event that the Committee determines that any Award may or does
not comply with Code Section 409A, the Company may adopt
such amendments to the Plan and the affected Award (without
Participant consent) or adopt other policies and procedures
(including amendments, policies and procedures with retroactive
effect), or take any other actions, that the Committee
determines are necessary or appropriate to (i) exempt the
Plan and any Award from the application of Code
Section 409A
and/or
preserve the intended tax treatment of the benefits provided
with respect to Award, or (ii) comply with the requirements
of Code Section 409A.
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