Exhibit 10.33
American Management Systems
RESTRICTED STOCK AND STOCK BONUS PLAN
Section 1. Purpose of Plan
The purpose of the Restricted Stock and Stock Bonus Plan of American Management Systems (the “Company”) is to reward valued employees with grants of stock, thereby providing valued employees a larger stake in theCompany’s success than could be obtained from a cash-award program.
Section 2. Definitions
(a) "Actual Award” means the aggregate dollar amount determined eachPerformance Yearby theBoardfor aPerformance Yeartaking into consideration the relationship of theCompany’sperformance for thePerformance Yearto theCompany’s Targetfor thePerformance Year.
(b) "Board” means the Board of Directors of theCompany.
(c) "Committee” means the Stock Option/Award Committee, a committee consisting of at least two members of theBoard, or the Compensation Committee where appropriate.
(d) "Common Stock” means shares of the $.01 par value common stock of theCompany.
(e) "Company” means American Management Systems, Incorporated, or as the context requires, any domestic or foreign affiliate of American Management Systems, Incorporated. For this purpose “affiliate” means (i) a corporation if AMS owns stock possessing at least [80] percent of total combined voting power of all classes of stock entitled to vote of such corporation, or (ii) a partnership or limited liability company if AMS owns at least [80] percent of the profits interest or capital interest of such partnership or company.
(f) "Conversion Factor” per share means the average of the prices of theCommon Stockquoted over the National Association of Securities Dealers Automatic Quotation System (“NASDAQ”) in the national market on each trading day during the final five trading days of thePerformance Year. In the event that theCommon Stockis not traded over NASDAQ,Conversion Factormeans the average of the closing bid prices of theCommon Stockpublished in the National Daily Stock Quotation Summary for each trading day during the final five trading days of thePerformance Year. In the event that theCommon Stockis listed on an established stock exchange or exchanges,Conversion Factormeans the average of the closing prices of theCommon Stockon such stock exchange or exchanges on each trading day during the final five trading days of thePerformance Year. For thePerformance Yearended December 31, 1990, the “Conversion Factor” is the average of the closing bid prices of the
-1-
Common Stockpublished in the National Daily Stock Quotation Summary for each trading day during the month of January 1991.
(g) "Disability” means the permanent and total inability, by reason of physical or mental infirmity, or both, of aParticipantto perform the work assigned to theParticipantby theCompany. The determination of the existence or nonexistence of disability shall be made by theCommitteeafter medical examination(s) by a medical doctor(s) selected or approved by theCommittee. If theParticipantis determined to be disabled under theCompany’slong-term disability plan or the Social Security Act, theCommitteeshall accept such determination as proof ofDisabilityfor purposes of thisPlan.
(h) "Discretionary Award” means aStock Awardthat is not aProfit-Sharing Award.
(i) "Eligible Employee” means an individual who is employed by theCompany.
(j) "Participant” means an Eligible Employee of the Company who is designated by the Committee to receive Stock Awards.
(k) "Performance Year” means a twelve-month period specified by the Company.
(l) "Plan” means the American Management Systems Restricted Stock and Stock Bonus Plan.
(m) "Pool” means the group of Participants who are awardedProfit-Sharing Awardsfor aPerformance Year.
(n) "Profit-Sharing Award” means aStock Awardgranted pursuant to the rules in Section 6.
(o) "Retirement” means termination of employment on or after theParticipant’ssixty-fifth (65) birthday.
(p) "Stock Award” meansCommon Stockgranted under thePlanthat is nontransferable, except as otherwise provided in thisPlan. AStock Awardmay be aDiscretionary Awardor aProfit-Sharing Award.
(q) "Stock Award Agreement” means a written agreement between theCompany and theParticipantsetting forth the terms and conditions of hisStock Awards.
(r) "Target” means the financial goals of theCompanyfor thePerformance Yearestablished by theBoard.
Section 3. Administration of the Plan
ThePlanshall be administered by the Committee, which has and may exercise the
-2-
powers and authority of theBoardas may be necessary or appropriate for theCommitteeto carry out its functions as described in thePlan, including authority to designate theParticipantsin thePlan, to interpret thePlan, to determine the terms and provisions of theStock Award Agreements, to make all other determinations necessary or advisable forPlanadministration, and to prescribe, amend, and rescind rules and regulations relating to thePlan. AllCommitteeinterpretations, determinations, and actions shall be final, conclusive, and binding on all parties involved.
Section 4. Stock Subject to the Plan
TheStock Awardsshall be made available from previously issued shares reacquired by theCompany.
Section 5. Awards Generally
(a) TheBoardor theCommitteeshall designate (i) theEligible Employees to whom the grants ofStock Awardsare made, (ii) the number of shares subject toStock Awardsto be granted to eachParticipantand the date of each grant, (iii) whether the Stock Awards areDiscretionary AwardsorProfit-Sharing Awards, and (iv) the terms and conditions consistent with thePlanof theStock Awardsgranted to eachParticipant. TheBoardor theCommitteeshall make such designations in its complete discretion, subject to the requirements of Section 6 in the case ofProfit-Sharing Awards.
(b) Grants ofStock Awardsshall be governed by aStock Award Agreement between theCompanyand theParticipantsetting forth the terms and conditions of theStock Awards.
Section 6. Special Rules Applicable to Profit Sharing Awards
(a) AnEligible Employeeis eligible to receiveProfit-Sharing Awardsfor aPerformance Yearonly if, for thePerformance Year, he or she satisfies (i), (ii) and (iii) and any one of (iv), (v) or (vi) of the following requirements of this subsection.
| |
| | (i) TheEligible Employeeis employed by American Management Systems, Incorporated or a domestic or foreign affiliate of American Management Systems, Incorporated whose employees the Committee has designated as being covered by the profit-sharing provisions of thePlan, including this Section 6; |
| |
| | (ii) TheEligible Employeeis in a category of employees that the Committee has designated to be eligible to receiveProfit-Sharing Awards for thePerformance Year, and |
| |
| | (iii) theEligible Employeeis not eligible to receive stock options from an existing incentive compensation plan and is not a “covered employee” within the meaning of Section 162(m) of the Internal Revenue Code of 1986; plus |
| |
| | (iv) theEligible Employeeis employed in a position described in (i) for the equivalent of six (6) months of thePerformance Yearon a full-time basis where |
-3-
| |
| | full-time is defined as a minimum of forty (40) hours per week with any paid leave considered as hours worked, or |
| |
| | (v) theEligible Employeeis working part-time in a position described in (i) and works the equivalent of six months at full time (as defined above) during thePerformance Yearwith any paid leave considered as hours worked, or |
| |
| | (vi) theEligible Employeeis on family or medical leave and would have met the requirements of either (iv) or (v) for thePerformance Year based on their normal pre-leave schedule (but only for the first twelve (12) months of such leave) with any paid leave considered as hours worked. |
(b) Profit-Sharing Awardsshall be made annually for aPerformance Year, effective as of the last day of the Performance Year. The aggregate number of shares subject toProfit-Sharing Awardsgranted for thePerformance Yearshall equal theActual Awarddivided by theConversion Factor.
(c) The aggregate number of shares subject toProfit-Sharing Awards granted for aPerformance Yearshall be granted to different categories of employees in the proportions specified by the Committee.
(d) Any forfeitedProfit-Sharing Awardthat is not reinstated by theCommitteebefore the date of the reallocation shall be reallocated among theParticipantswho receivedProfit-Sharing Awardsin the samePoolas theParticipantwho forfeited theProfit-Sharing Awardand who are employed by theCompanyon the date of the reallocation. The reallocation shall be in proportion to the number of shares from suchPoolthat each remainingParticipantthen owns, and shall not affect the date of grant of the reallocatedProfit-Sharing Awardsfor purposes of determining the date of the expiration or removal of restrictions on the reallocatedProfit-Sharing Awards.
Section 7. Restrictions and Vesting
(a) Stock Awardsshall vest either immediately or periodically pursuant to a schedule selected by theCommitteeand set forth in theStock Award Agreement. In the case of aProfit-Sharing Award, aParticipantshall forfeit theAwardin the event that theParticipant’semployment with theCompanyis terminated for any reason other than death,Disability, orRetirementwithin three (3) years after the date theStock Awardis granted to theParticipant. In the event that theParticipant’semployment with theCompanyis terminated for reason of death,DisabilityorRetirement, all outstandingProfit-Sharing Awardsgranted to suchParticipantshall vest automatically as of the date of suchParticipant’stermination for reason of death,DisabilityorRetirement.
(b) In its discretion, theCommitteemay prescribe additional restrictions on theStock Awardwhich, if not satisfied, would result in theParticipant’s forfeiture of theStock Award. TheCommitteemay also provide for the incremental lapse or expiration of any or all restrictions upon the satisfaction of other conditions in addition to, or other than, the expiration of the restriction period. TheCommitteemay provide for reinstatement of any portion of aStock Awardthat otherwise would be forfeited as a result of aParticipant’stermination of
-4-
employment if theParticipantreturns to full-time employment with theCompanywithin one year of theParticipant’sprior termination of employment and before the date on which theStock Awardotherwise would have vested. TheCommittee, in its discretion, may provide that suchStock Awardmay be reinstated fromStock Awardsthat have been forfeited and not yet allocated amongParticipantsor may provide for such reinstatement from other shares available for issuance under thePlan. Upon such reinstatement, the balance of theStock Awardshall vest in accordance with the provisions of theParticipant’sreinstatedStock Award Agreement.
(c) The restriction period and any other restrictions and conditions not provided in thePlanshall be set forth in theStock Award Agreementat the time theStock Awardis granted, or if not so set forth, as otherwise specified by theCompanyin writing.
(d) TheCommittee, in its sole discretion, may shorten or terminate the restriction period or waive any conditions for the lapse or expiration of the restrictions with respect to all or any portion of theStock Award.
(e) Upon expiration or removal of all restrictions on aStock Award, the shares subject to theStock Awardshall no longer be nontransferable and subject to a substantial risk of forfeiture and shall be deemed “vested”Common Stock.
Section 8. Terms and Conditions of Stock Award
(a) TheStock Awardsmay not be sold, transferred, or otherwise alienated or hypothecated, other than by will or the laws of descent and distribution, until all the restrictions imposed on theStock Awardsare removed or expire.
(b) Newly-grantedStock Awards, reinstatedStock Awardsand any reallocated forfeitedStock Awardsshall be registered in the recipients’ names before the record date of the first annual meeting of the shareholders of theCompanythat follows the date of grant, reinstatement or reallocation, and before each special meeting of shareholders of theCompany.
(c) A stock certificate representing the aggregate number of shares subject toStock Awardsgranted to theParticipantsshall be held in the physical custody of theCompany. The certificate shall bear a legend making appropriate reference to the restrictions imposed on theStock Awards.
(d) AParticipantwho is employed by theCompanyor a domestic affiliate shall have all the rights of a shareholder with respect to theStock Awards, including voting and dividend rights, subject to the restrictions on transferability and any other restrictions or conditions contained in theStock Award Agreement. TheCommitteeshall provide thatParticipantswho are employees of foreign affiliates are not entitled to voting and dividend rights on the shares subject to theStock Awarduntil theStock Awardis vested.
(e) AParticipantmay designate a beneficiary or beneficiaries to receive any stock certificate that is to be delivered under thePlanon or after theParticipant’sdeath. Any designation must be by written notice in a form provided by theCompanyand filed with theCompany.
-5-
(f) Upon expiration or removal of all restrictions on any shares subject to aStock Award, a stock certificate for shares ofCommon Stockshall be delivered, free of all restrictions, except any restrictions that may be imposed by law, to theParticipantor theParticipant’sbeneficiary or legal representative. TheCompanyshall not deliver any fractional shares of theCommon Stockbut shall pay, in lieu thereof, the fair market value of the fractional share to theParticipantor theParticipant’sbeneficiary or legal representative. TheCompanyshall not be required to issue or deliver any certificate for shares ofCommon Stockunder thePlanuntil all of the following conditions are satisfied:
| |
| | (i) The admission of such shares to listing on all stock exchanges on which the stock is then listed, if any; |
| |
| | (ii) The completion of any registration or other qualification of such shares under any federal or state law, under the rulings or regulations of the Securities and Exchange Commission, or under any other governmental regulatory agency that theCompanywill in its sole discretion determine to be necessary or advisable; |
| |
| | (iii) The obtaining of any approval or other clearance from any federal or state governmental agency that theCompanywill in its sole discretion determine to be necessary or advisable; and |
| |
| | (iv) The lapse of such reasonable period of time following the expiration of the restrictions as theCompanyfrom time to time may establish for reasons of administrative convenience. |
Section 9. Payment of Withholding Tax
(a) AParticipantmay make an election under Section 83(b) of the Internal Revenue Code of 1986, as amended, to include in income the fair market value of each share ofCommon Stocksubject to theStock Awardfor the taxable year in which the grant (including a reallocation) of theStock Awardis made. TheParticipantshall provide theCompanywith a copy of the completed election form filed with the Internal Revenue Service.
(b) TheParticipantshall be responsible for the payment of all federal and state income taxes and Social Security (FICA) taxes required to be withheld and paid with respect to theParticipant’s Stock Awards. At theCompany’s option, theCompanymay (i) withhold the appropriate amount from theParticipant’spaycheck(s) and from any dividends paid onStock Awards, or (ii) require theParticipantto pay the amount of the withholding tax to theCompany and treat theParticipant’stimely payment of such amount to theCompanyas an additional restriction on theStock Awards. At theCompany’soption, theParticipantmay satisfy all or part of theParticipant’sobligation to pay the withholding tax by transferringCommon Stockto theCompanyor by cash settlement of the right toCommon Stockunder thePlan. TheParticipant’s obligation shall be satisfied to the extent of the then fair market value of theCommon Stock.Participantswho are either a non-U.S. citizen employed by a foreign subsidiary or a U.S. citizen working or resident abroad shall be responsible for the payment of all foreign taxes, if any, attributable toStock Awards; absent a special arrangement with such aParticipantor an obligation of theCompanyto withhold foreign taxes, it shall be the
-6-
Company’spolicy not to withhold, nor to be responsible to suchParticipantfor payment of, foreign taxes in respect ofStock Awards.
(c) TheCompanydoes not represent or guarantee that any particular federal or state income, payroll, personal property or other tax consequence will result from the grant ofStock Awardsor the expiration of restrictions on theStock Awards. TheParticipantshould consult with a professional tax advisor to determine the tax consequences to theParticipant.
Section 10. Indemnification of Board and Committee
In addition to other rights of indemnification as they may have as members of theBoardor of theCommittee, the members of theBoardand theCommittee shall be indemnified by theCompanyagainst the reasonable expenses, including attorneys’ fees actually and necessarily incurred in connection with the defense of any action, suit or proceeding, or in connection with any appeal therein, to which they or any of them may be a party by reason of any action taken or failure to act under or in connection with thePlan, orStock Award Agreements, and against all amounts paid by them in settlement thereof (provided such settlement is approved by legal counsel selected by theCompany) or paid by them in satisfaction of a judgment in any such action, suit or proceeding, except in relation to matters as to which it will be adjudged in such action, suit or proceeding that the member is liable for negligence or misconduct in the performance of the member’s duties; provided that within sixty (60) days after institution of any such action, suit or proceeding a member shall in writing offer theCompanythe opportunity, at its own expense, to defend the same.
Section 11. Non-Contravention of Securities Laws
Notwithstanding anything to the contrary expressed in thePlan, any provisions of thePlanthat vary from or conflict with any applicable Federal or State securities laws (including any regulations promulgated thereunder) shall be deemed to be modified to conform to and comply with those laws.
Section 12. Unenforceability of a Particular Provision
The unenforceability of any particular provision of thePlanshall not affect the other provisions, and thePlanshall be construed in all respects as if the unenforceable provision were omitted.
Section 13. Adjustment Provisions
(a) In the event of changes in theCommon Stockby reason of any stock split, combination of shares, stock dividend, reclassification, merger, consolidation, reorganization, recapitalization or similar adjustment, or by reason of the dissolution or liquidation of theCompany, appropriate adjustments may be made in the number and class of shares subject to grantedStock Awardsand in the number and class of shares subject toStock Awards reserved for grant under thePlan, but not yet granted. Whether any adjustment or modification is to be made as a result of the occurrence of any of the events specified in this section, and the extent thereof, shall be determined by theBoard, whose determination shall be binding and conclusive.
-7-
(b) The existence of thePlanorStock Awardsshall in no way impair the right of theCompanyor its stockholders to make or effect any adjustments, recapitalizations, reorganizations or other changes in theCompany’scapital structure or its business, or any merger, consolidation, dissolution or liquidation of theCompany, or any issue of bonds, debentures, preferred or prior preference stock ahead of or affecting theCommon Stockof theCompany, or any grant of options on its stock.
Section 14. Limitation of Rights
Neither the adoption and maintenance of thePlanor the grant ofStock Awardsshall:
(a) limit the right of theCompanyto discharge or discipline anyParticipant, or otherwise terminate or modify the terms of theParticipant’s employment, or
(b) confer upon anyParticipantany contract or other right or interest under thePlanother than as specifically provided in thePlanand theStock Award Agreements.
Section 15. Headings
Headings of Sections in thePlanare inserted for convenience and reference; they constitute no part of thePlan.
Section 16. Applicable Law
To the extent that state law is not preempted by any laws of the United States, thePlanshall be construed, regulated, interpreted and administered according to the laws of the Commonwealth of Virginia.
Section 17. Successors
The provisions of thePlanshall be binding upon, and inure to the benefit of, all successors of anyParticipant, including, without limitation, theParticipant’sestate and the executors, administrators or trustees thereof, theParticipant’sheirs and legatees, and any receiver, trustee in bankruptcy or representative of creditors of theParticipant.
Section 18. Termination and Amendment of the Plan
(a) Unless terminated earlier, thePlanshall remain in effect until January 1, [2010]. TheBoardshall have complete power and authority at any time to terminate thePlanor to make any modification or amendment of thePlan as it deems advisable and may from time to time suspend, discontinue, or abandon thePlan, except that no action by theBoardshall adversely affect any right or obligation with respect to anyStock Awardgranted before theBoard’s action without written consent of the affectedParticipant.
(b) TheCommitteemay amend or modify theStock Award Agreements, except that no amendment or modification shall adversely affect the rights and obligations of aParticipantwith respect to an outstandingStock Awardunless the affectedParticipantconsents in writing.
-8-
Section 19. Approval of Plan and Effective Date
ThePlanwas adopted by the Board of Directors on May 11, 1990, effective as of January 1, 1990. ThePlanwas amended and restated by the Board of Directors on May 18, 1995, effective as of January 1, 1995, amended on December 6, 1996, effective as of January 1, 1996, further amended and restated by the Board of Directors on July 25, 1997, effective as of January 1, 1997, and further amended and restated by the Board of Directors on December 8, 2000, effective as of September 15, 2000.
-9-
