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EXHIBIT A
FLUOR CORPORATION
1999 EXECUTIVE PERFORMANCE INCENTIVE PLAN
SECTION 1. Purpose of Plan
The purpose of this "Fluor Corporation 1999 Executive Performance Incentive
Plan" ("Plan") of Fluor Corporation, a Delaware corporation, is to enable the
Company, as defined in Section 2.2(a)(ii) hereof, to attract, retain and
motivate its officers, management and other key personnel, and to further align
the interests of such persons with those of the shareholders of the Company, by
providing for or increasing their proprietary interest in the Company.
SECTION 2. Administration of the Plan
2.1 Composition of Committee. The Plan shall be administered by the
Organization and Compensation Committee of the Board of Directors, and/or by the
Board of Directors or another committee of the Board of Directors of the
Company, as appointed from time to time by the Board of Directors (any such
administrative body, the "Committee"). The Board of Directors shall fill
vacancies on, and from time to time may remove or add members to, the Committee.
The Committee shall act pursuant to a majority vote or unanimous written
consent. Notwithstanding the foregoing, with respect to any Award that is not
intended to satisfy the conditions of Rule 16b-3 under the Securities Exchange
Act of 1934, as amended (the "Exchange Act") or Section 162(m)(4)(C) of the
Internal Revenue Code of 1986, as amended (the "Code"), the Committee may
appoint one or more separate committees (any such committee, a "Subcommittee")
composed of one or more directors of the Company (who may but need not be
members of the Committee) and may delegate to any such Subcommittee(s) the
authority to grant Awards, as defined in Section 5.1 hereof, under the Plan to
Employees, to determine all terms of such Awards, and/or to administer the Plan
or any aspect of it. Any action by any such Subcommittee within the scope of
such delegation shall be deemed for all purposes to have been taken by the
Committee. The Committee may designate the Secretary of the Company or other
Company employees to assist the Committee in the administration of the Plan, and
may grant authority to such persons to execute agreements evidencing Awards made
under this Plan or other documents entered into under this Plan on behalf of the
Committee or the Company.
2.2 Powers of the Committee. Subject to the express provisions of this
Plan, the Committee shall be authorized and empowered to do all things necessary
or desirable in connection with the administration of this Plan with respect to
the Awards over which such Committee has authority, including, without
limitation, the following:
(a) to prescribe, amend and rescind rules and regulations relating to
this Plan and to define terms not otherwise defined herein; provided that,
unless the Committee shall specify otherwise, for purposes of this Plan (i)
the term "fair market value" shall mean, as of any date, the average of the
highest price and the lowest price per share at which the Shares (as
defined in Section 3.1 hereof) are sold in the regular way on the New York
Stock Exchange or, if no Shares traded on the New York Stock Exchange on
the date in question, then for the next preceding date for which Shares
traded on the New York Stock Exchange; and (ii) the term "Company" shall
mean Fluor Corporation and its subsidiaries and affiliates, unless the
context otherwise requires.
(b) to determine which persons are Eligible Employees (as defined in
Section 4 hereof), to which of such Eligible Employees, if any, Awards
shall be granted hereunder, to make Awards under the Plan and to determine
the terms of such Awards and the timing of any such Awards;
(c) to determine the number of Shares subject to Awards and the
exercise or purchase price of such Shares;
(d) to establish and verify the extent of satisfaction of any
performance goals applicable to Awards;
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(e) to prescribe and amend the terms of the agreements or other
documents evidencing Awards made under this Plan (which need not be
identical);
(f) to determine whether, and the extent to which, adjustments are
required pursuant to Section 11 hereof;
(g) to interpret and construe this Plan, any rules and regulations
under the Plan and the terms and conditions of any Award granted hereunder,
and to make exceptions to any such provisions in good faith and for the
benefit of the Company; and
(h) to make all other determinations deemed necessary or advisable for
the administration of the Plan.
2.3 Determinations of the Committee. All decisions, determinations and
interpretations by the Committee or the Board regarding the Plan shall be final
and binding on all Eligible Employees and Participants, as defined in Section 4
hereof. The Committee or the Board, as applicable, shall consider such factors
as it deems relevant, in its sole and absolute discretion, to making such
decisions, determinations and interpretations including, without limitation, the
recommendations or advice of any officer of the Company or Eligible Employee and
such attorneys, consultants and accountants as it may select.
SECTION 3. Stock Subject to Plan
3.1 Aggregate Limits. Subject to adjustment as provided in Section 11, at
any time, the aggregate number of shares of the Company's common stock, $0.625
par value ("Shares"), issued pursuant to all Awards (including all ISOs (as
defined in Section 5.1 hereof)) granted under this Plan shall not exceed
3,700,000; provided that no more than 1,000,000 of such Shares may be issued
pursuant to all Restricted Stock Awards, Incentive Awards, and Stock Units
(other than Stock Units issued upon exercise of Options) granted under the Plan.
The Shares subject to the Plan may be either Shares reacquired by the Company,
including Shares purchased in the open market, or authorized but unissued
Shares.
3.2 Code Section 162(m) Limits. The aggregate number of Shares subject to
Options granted under this Plan during any calendar year to any one Eligible
Employee shall not exceed 500,000. The aggregate number of Shares issued or
issuable under any Restricted Stock Awards, Incentive Awards or Stock Unit
Awards (other than Stock Units issued or issuable upon exercise of Options)
granted under this Plan during any calendar year to any one Eligible Employee
shall not exceed 75,000. Notwithstanding anything to the contrary in the Plan,
the foregoing limitations shall be subject to adjustment under Section 11 only
to the extent that such adjustment will not affect the status of any Award
intended to qualify as "performance based compensation" under Code Section
162(m).
3.3 Issuance of Shares. For purposes of Section 3.1, the aggregate number
of Shares issued under this Plan at any time shall equal only the number of
Shares actually issued upon exercise or settlement of an Award and not returned
to the Company upon cancellation, expiration or forfeiture of an Award or
delivered (either actually or by attestation) in payment or satisfaction of the
purchase price, exercise price or tax obligation of an Award.
SECTION 4. Persons Eligible Under Plan
Any person who is an (i) employee and who also is an officer, key employee
or member of the Executive Management Team ("EMT"), (ii) prospective employee
who is to be an officer, key employee or member of the EMT, (iii) consultant, or
(iv) advisor of the Company (an "Eligible Employee") shall be eligible to be
considered for the grant of Awards hereunder. For purposes of this Plan, the
Chairman of the Board's status as an Employee shall be determined by the Board.
For purposes of the administration of Awards, the term "Eligible Employee" shall
also include a former Eligible Employee or any person (including any estate) who
is a beneficiary of a former Eligible Employee. A "Participant" is any Eligible
Employee to whom an Award has been made and any person (including any estate) to
whom an Award has been assigned or transferred pursuant to Section 10.1.
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SECTION 5. Plan Awards
5.1 Award Types. The Committee, on behalf of the Company, is authorized
under this Plan to enter into certain types of arrangements with Eligible
Employees and to confer certain benefits on them. The following such
arrangements or benefits are authorized under the Plan if their terms and
conditions are not inconsistent with the provisions of the Plan: Stock Options,
Restricted Stock, Incentive Awards and Stock Units. Such arrangements and
benefits are sometimes referred to herein as "Awards." The authorized types of
arrangements and benefits for which Awards may be granted are defined as
follows:
Stock Option Awards: A Stock Option is a right granted under Section 6
to purchase a number of Shares at such exercise price, at such times, and
on such other terms and conditions as are specified in or determined
pursuant to the document(s) evidencing the Award (the "Option Agreement").
Options intended to qualify as Incentive Stock Options ("ISOs") pursuant to
Code Section 422 and Options which are not intended to qualify as ISOs
("Non-qualified Options") may be granted under Section 6 as the Committee
in its sole discretion shall determine.
Restricted Stock Awards: Restricted Stock is an award of Shares made
under Section 7, the grant, issuance, retention and/or vesting of which is
subject to such performance and other conditions as are expressed in the
document(s) evidencing the Award (the "Restricted Stock Agreement").
Incentive Awards: An Incentive Award is a bonus opportunity awarded
under Section 8 pursuant to which a Participant may become entitled to
receive an amount (which may be payable in cash, Shares or other property)
based on satisfaction of such performance criteria as are specified in the
document(s) evidencing the Award (the "Incentive Bonus Agreement").
Stock Unit Awards: A Stock Unit Award is an award of a right to
receive the fair market value of one share of Common Stock made under
Section 9, the grant, issuance, retention and/or vesting of which is
subject to such performance and other conditions as are expressed in the
document(s) evidencing the Award (the "Stock Unit Agreement").
5.2 Grants of Awards. An Award may consist of one such arrangement or
benefit or two or more of them in tandem or in the alternative.
SECTION 6. Stock Option Awards
The Committee may grant an Option or provide for the grant of an Option,
either from time-to-time in the discretion of the Committee or automatically
upon the occurrence of specified events, including, without limitation, the
achievement of performance goals, the satisfaction of an event or condition
within the control of the recipient of the Award, within the control of others
or not within any person's control.
6.1 Option Agreement. Each Option Agreement shall contain provisions
regarding (a) the number of Shares which may be issued upon exercise of the
Option, (b) the purchase price of the Shares and the means of payment for the
Shares, (c) the term of the Option, (d) such terms and conditions of
exercisability as may be determined from time to time by the Committee, (e)
restrictions on the transfer of the Option and forfeiture provisions, and (f)
such further terms and conditions, in each case not inconsistent with the Plan
as may be determined from time to time by the Committee. Option Agreements
evidencing ISOs shall contain such terms and conditions as may be necessary to
comply with the applicable provisions of Section 422 of the Code.
6.2 Option Price. The purchase price per Share of the Shares subject to
each Option granted under the Plan shall equal or exceed 100% of the fair market
value of such Stock on the date the Option is granted, except that (i) the
Committee may specifically provide that the exercise price of an Option may be
higher or lower in the case of an Option granted to employees of a company
acquired by the Company in assumption and substitution of options held by such
employees at the time such company is acquired, and (ii) in the event an
Eligible Employee is required to pay or forego the receipt of any cash amount in
consideration of receipt of an Option, the exercise price plus such cash amount
shall equal or exceed 100% of the fair market value of such Stock on the date
the Option is granted.
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6.3 Option Term. The "Term" of each Option granted under the Plan,
including any ISOs, shall not exceed ten (10) years from the date of its grant.
6.4 Option Vesting. Options granted under the Plan shall be exercisable at
such time and in such installments during the period prior to the expiration of
the Option's Term as determined by the Committee in its sole discretion. The
Committee shall have the right to make the timing of the ability to exercise any
Option granted under the Plan subject to such performance requirements as deemed
appropriate by the Committee. At any time after the grant of an Option the
Committee may, in its sole discretion, reduce or eliminate any restrictions
surrounding any Participant's right to exercise all or part of the Option,
except that no Option shall first become exercisable within one (1) year from
its date of grant, other than upon death, disability, a Change of Control (as
defined in Section 12.2 hereof) or upon satisfaction of such performance
requirements as deemed appropriate by the Committee.
6.5 Option Exercise.
(a) Partial Exercise. An exercisable Option may be exercised in whole or in
part. However, an Option shall not be exercisable with respect to fractional
Shares and the Committee may require, by the terms of the Option Agreement, a
partial exercise to include a minimum number of Shares.
(b) Manner of Exercise. All or a portion of an exercisable Option shall be
deemed exercised upon delivery to the representative of the Company designated
for such purpose by the Committee all of the following: (i) notice of exercise
in such form as the Committee authorizes specifying the number of Shares to be
purchased by the Participant, (ii) payment or provision for payment of the
exercise price for such number of Shares, (iii) such representations and
documents as the Committee, in its sole discretion, deems necessary or advisable
to effect compliance with all applicable provisions of the Securities Act of
1933, as amended, and any other federal, state or foreign securities laws or
regulations, (iv) in the event that the Option shall be exercised pursuant to
Section 10.1 by any person or persons other than the Eligible Employee,
appropriate proof of the right of such person or persons to exercise the Option,
and (v) such representations and documents as the Committee, in its sole
discretion, deems necessary or advisable to provide for the tax withholding
pursuant to Section 13. Unless provided otherwise by the Committee, no
Participant shall have any right as a shareholder with respect to any Shares
purchased pursuant to any Option until the registration of Shares in the name of
such person, and no adjustment shall be made for dividends (ordinary or
extraordinary, whether in cash, securities or other property) or distributions
or other rights for which the record date is prior to the date such Shares are
so registered.
(c) Payment of Exercise Price. To the extent authorized by the Committee,
the exercise price of an Option may be paid in the form of one of more of the
following, either through the terms of the Option Agreement or at the time of
exercise of an Option: (i) cash or certified or cashiers' check, (ii) shares of
capital stock of the Company that have been held by the Participant for such
period of time as the Committee may specify, (iii) other property deemed
acceptable by the Committee, (iv) a reduction in the number of Shares or other
property otherwise issuable pursuant to such Option, (v) a promissory note of or
other commitment to pay by the Participant or of a third party, the terms and
conditions of which shall be determined by the Committee, or (vi) any
combination of (i) through (v).
SECTION 7. Restricted Stock Awards
Restricted Stock consists of an award of Shares, the grant, issuance,
retention and/or vesting of which shall be subject to such performance
conditions and to such further terms and conditions as the Committee deems
appropriate.
7.1 Restricted Stock Award. Each Restricted Stock Award shall reflect, to
the extent applicable (a) the number of Shares subject to such Award or a
formula for determining such, (b) the time or times at which Shares shall be
granted or issued and/or become retainable or vested, and the conditions or
restrictions on such Shares, (c) the performance criteria and level of
achievement versus these criteria which shall determine the number of Shares
granted, issued, retainable and/or vested, (d) the period as to which
performance shall be measured for determining achievement of performance, (e)
forfeiture provisions, and
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(f) such further terms and conditions, in each case not inconsistent with the
Plan as may be determined from time to time by the Committee.
7.2 Restrictions and Performance Criteria. The grant, issuance, retention
and/or vesting of each Restricted Stock Award may be subject to such performance
criteria and level of achievement versus these criteria as the Committee shall
determine, which criteria may be based on financial performance, personal
performance evaluations and/or completion of service by the Participant;
provided, however, that no Restricted Stock Award shall first vest within one
year from its date of grant, other than upon death, disability, a Change of
Control (as defined in Section 12.2 hereof) or upon satisfaction of such
performance requirements as deemed appropriate by the Committee. Notwithstanding
anything to the contrary herein, the performance criteria for any Restricted
Stock Award that is intended by the Committee to satisfy the requirements for
"performance-based compensation" under Code Section 162(m) shall be a measure
based on one or more Qualifying Performance Criteria (as defined in Section 10.2
hereof) selected by the Committee.
7.3 Timing and Form of Award. The Committee shall determine the timing of
award of any Restricted Stock Award. The Committee may provide for or, subject
to such terms and conditions as the Committee may specify, may permit a
Participant to elect for the award or vesting of any Restricted Stock to be
deferred to a specified date or event. The Committee may provide for a
Participant to have the option for his or her Restricted Stock, or such portion
thereof as the Committee may specify, to be granted in whole or in part in Stock
Units.
7.4 Discretionary Adjustments. Notwithstanding satisfaction of any
completion of service or performance goals, the number of Shares granted,
issued, retainable and/or vested under a Restricted Stock Award on account of
either financial performance or personal performance evaluations may be reduced
by the Committee on the basis of such further considerations as the Committee in
its sole discretion shall determine.
SECTION 8. Incentive Awards
Each Incentive Award will confer upon the Eligible Employee the opportunity
to earn a future payment tied to the level of achievement with respect to one or
more performance criteria established for a performance period of not less than
one year.
8.1 Incentive Award. Each Incentive Award shall contain provisions
regarding (a) the target and maximum amount payable to the Participant as an
Incentive Award, (b) the performance criteria and level of achievement versus
these criteria which shall determine the amount of such payment, (c) the period
as to which performance shall be measured for establishing the amount of any
payment, (d) the timing of any payment earned by virtue of performance, (e)
restrictions on the alienation or transfer of the Incentive Award prior to
actual payment, (f) forfeiture provisions, and (g) such further terms and
conditions, in each case not inconsistent with the Plan as may be determined
from time to time by the Committee. In establishing the provisions of Incentive
Awards, the Committee may refer to categories of such Awards as parts of
"Programs" or "Plans", which names will not affect the applicability of this
Plan. The maximum amount payable as an Incentive Award may be a multiple of the
target amount payable, but the maximum amount payable pursuant to that portion
of an Incentive Award granted under this Plan for any fiscal year to any
Participant that is intended to satisfy the requirements for "performance based
compensation" under Code Section 162(m) shall not exceed Three million dollars
($3,000,000).
8.2 Performance Criteria. The Committee shall establish the performance
criteria and level of achievement versus these criteria which shall determine
the target and the minimum and maximum amount payable under an Incentive Award,
which criteria may be based on financial performance and/or personal performance
evaluations. The Committee may specify the percentage of the target Incentive
Award that is intended to satisfy the requirements for "performance-based
compensation" under Code Section 162(m). Notwithstanding anything to the
contrary herein, the performance criteria for any portion of an Incentive Award
that is intended by the Committee to satisfy the requirements for
"performance-based compensation" under Code Section 162(m) shall be a measure
based on one or more Qualifying Performance Criteria (as
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defined in Section 10.2 hereof) selected by the Committee and specified at the
time required under Code Section 162(m).
8.3 Timing and Form of Payment. The Committee shall determine the timing
of payment of any Incentive Award. The Committee may provide for or, subject to
such terms and conditions as the Committee may specify, may permit a Participant
to elect for the payment of any Incentive Award to be deferred to a specified
date or event. The Committee may specify the form of payment of Incentive
Awards, which may be cash, shares or other property, or may provide for a
Participant to have the option for his or her Incentive Award, or such portion
thereof as the Committee may specify, to be paid in whole or in part in Shares
or Stock Units.
8.4 Discretionary Adjustments. Notwithstanding satisfaction of any
performance goals, the amount paid under an Incentive Award on account of either
financial performance or personal performance evaluations may be reduced by the
Committee on the basis of such further considerations as the Committee in its
sole discretion shall determine.
SECTION 9. Stock Units
9.1 Stock Units. A "Stock Unit" is a bookkeeping entry representing an
amount equivalent to the fair market value of one share of Common Stock, also
sometimes referred to as a "restricted unit" or "shadow stock". Stock Units
represent an unfunded and unsecured obligation of the Company, except as
otherwise provided for by the Committee.
9.2 Stock Unit Awards. Each Stock Unit Award shall reflect, to the extent
applicable (a) the number of Stock Units subject to such Award or a formula for
determining such, (b) the time or times at which Stock Units shall be granted or
issued and/or become retainable or vested, and the conditions or restrictions on
such Stock Units, (c) the performance criteria and level of achievement versus
these criteria which shall determine the number of Stock Units granted, issued,
retainable and/or vested, (d) the period as to which performance shall be
measured for determining achievement of performance, (e) forfeiture provisions,
and (f) such further terms and conditions, in each case not inconsistent with
the Plan as may be determined from time to time by the Committee. Stock Units
may also be issued upon exercise of Options, may be granted in payment and
satisfaction of Incentive Awards and may be issued in lieu of Restricted Stock
or any other Award that the Committee elects to be paid in the form of Stock
Units.
9.3 Performance Criteria. The grant, issuance, retention and or vesting of
each Stock Unit may be subject to such performance criteria and level of
achievement versus these criteria as the Committee shall determine, which
criteria may be based on financial performance, personal performance evaluations
and/or completion of service by the Participant; provided, however, that no
Stock Unit shall first vest within one (1) year from its date of grant, other
than upon death, disability, a Change of Control (as defined in Section 12.2
hereof) or upon satisfaction of such performance requirements as deemed
appropriate by the Committee. Notwithstanding anything to the contrary herein,
the performance criteria for any Stock Unit that is intended by the Committee to
satisfy the requirements for "performance-based compensation" under Code Section
162(m) shall be a measure based on one or more Qualifying Performance Criteria
(as defined in Section 10.2 hereof) selected by the Committee and specified at
the time the Stock Unit is granted.
9.4 Timing and Form of Award. The Committee shall determine the timing of
award of any Stock Unit. The Committee may provide for or, subject to such terms
and conditions as the Committee may specify, may permit a Participant to elect
for the award or vesting of any Stock Unit to be deferred to a specified date or
event. The Committee may provide for a Participant to have the option for his or
her Stock Unit, or such portion thereof as the Committee may specify, to be
granted in whole or in part in Shares.
9.5 Settlement of Stock Units. The Committee may provide for Stock Units
to be settled in cash or Shares (at the election of the Company or the
Participant, as specified by the Committee) and to be made at such other times
as it determines appropriate or as it permits a Participant to choose. The
amount of cash or Shares, or other settlement medium, to be so distributed may
be increased by an interest factor or by dividend
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equivalents, as the case may be, which may be valued as if reinvested in Shares.
Until a Stock Unit is settled, the number of Shares represented by a Stock Unit
shall be subject to adjustment pursuant to Section 11.
9.6 Discretionary Adjustments. Notwithstanding satisfaction of any
completion of service or performance goals, the number of Stock Units granted,
issued, retainable and/or vested under a Stock Unit Award on account of either
financial performance or personal performance evaluations may be reduced by the
Committee on the basis of such further considerations as the Committee in its
sole discretion shall determine.
SECTION 10. Other Provisions Applicable to Awards
10.1 Transferability. Unless the agreement evidencing an Award (or an
amendment thereto authorized by the Committee) expressly states that it is
transferable as provided hereunder, no Award granted under the Plan, nor any
interest in such Award, may be sold, assigned, conveyed, gifted, pledged,
hypothecated or otherwise transferred in any manner, other than by will or the
laws of descent and distribution, prior to the vesting or lapse of any and all
restrictions applicable to any Shares issued under an Award. The Committee may
in its sole discretion grant an Award or amend an outstanding Award to provide
that the Award is transferable or assignable to a member or members of the
Eligible Employee's "immediate family", as such term is defined under Exchange
Act Rule 16a-1(e), or to a trust for the benefit solely of a member or members
of the Eligible Employee's immediate family, or to a partnership or other entity
whose only owners are members of the Eligible Employee's family, provided that
following any such transfer or assignment the Award will remain subject to
substantially the same terms applicable to the Award while held by the Eligible
Employee, as modified as the Committee in its sole discretion shall determine
appropriate, and the Participant shall execute an agreement agreeing to be bound
by such terms.
10.2 Qualifying Performance Criteria. For purposes of this Plan, the term
"Qualifying Performance Criteria" shall mean any one or more of the following
performance criteria, either individually, alternatively or in any combination,
applied to either the Company as a whole or to a business unit, subsidiary or
business segment, either individually, alternatively or in any combination, and
measured either annually or cumulatively over a period of years, on an absolute
basis or relative to a pre-established target, to previous years' results or to
a designated comparison group, in each case as specified by the Committee in the
Award: (a) cash flow, (b) earnings (including gross margin, earnings before
interest and taxes ("EBIT"), earnings before taxes ("EBT"), and net earnings),
(c) earnings per share, (d) growth in earnings or earnings per share, (e) stock
price, (f) return on equity or average stockholders' equity, (g) total
stockholder return, (h) return on capital, (i) return on assets or net assets,
(j) return on investment, (k) revenue, (l) income or net income, (m) operating
income or net operating income, (n) operating profit or net operating profit,
(o) operating margin, (p) return on operating revenue, (q) market share, (r)
contract awards or backlog, (s) overhead or other expense reduction, (t) growth
in stockholder value relative to the two-year moving average of the S&P 500
Index, (u) growth in stockholder value relative to the two-year moving average
of the Dow Jones Heavy Construction Index, (v) credit rating, (w) strategic plan
development and implementation, (x) succession plan development and
implementation, (y) retention of executive talent, (z) improvement in workforce
diversity, (aa) return on average stockholders' equity relative to the Ten Year
Treasury Yield (as hereinafter defined), (bb) improvement in safety records,
(cc) capital resource management plan development and implementation, (dd)
improved internal financial controls plan development and implementation, (ee)
corporate tax savings, (ff) corporate cost of capital reduction, (gg) investor
relations program development and implementation, (hh) corporate relations
program development and implementation, (ii) executive performance plan
development and implementation, and (jj) tax provision rate for financial
statement purposes. The Committee may appropriately adjust any evaluation of
performance under a Qualifying Performance Criteria to exclude any of the
following events that occurs during a performance period: (i) asset write-downs,
(ii) litigation or claim judgments or settlements, (iii) the effect of changes
in tax law, accounting principles or other such laws or provisions affecting
reported results, (iv) accruals for reorganization and restructuring programs,
and (v) any extraordinary non-recurring items as described in Accounting
Principles Board Opinion No. 30 and/or in management's discussion and analysis
of financial condition and results of operations appearing in the Company's
annual report to stockholders for the applicable year. The term "Ten Year
Treasury Yield" shall mean, for any fiscal period, the daily average
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percent per annum yield for U.S. Government Securities -- 10 year Treasury
constant maturities, as published in the Federal Reserve statistical release or
any successor publication. Prior to the payment of any compensation under an
Award intended to qualify as "performance-based compensation" under Code Section
162(m) the Committee shall certify the extent to which any Qualifying
Performance Criteria and any other material terms under such Award have been
satisfied (other than in cases where such relate solely to the increase in the
value of the Company's Common Stock).
10.3 Dividends. Unless otherwise provided by the Committee, no adjustment
shall be made in Shares issuable under Awards on account of cash dividends which
may be paid or other rights which may be issued to the holders of Shares prior
to their issuance under any Award. The Committee shall specify whether dividends
or dividend equivalent amounts shall be paid to any Participant with respect to
the Shares subject to any Award that have not vested or been issued or that are
subject to any restrictions or conditions on the record date for dividends.
10.4 Agreements Evidencing Awards. The Committee shall, subject to
applicable law, determine the date an Award is deemed to be granted, which for
purposes of this Plan shall not be affected by the fact that an Award is
contingent on subsequent stockholder approval of the Plan. The Committee or,
except to the extent prohibited under applicable law, its delegate(s) may
establish the terms of agreements evidencing Awards under this Plan and may, but
need not, require as a condition to any such agreement's effectiveness that such
agreement be executed by the Participant and that such Participant agree to such
further terms and conditions as specified in such agreement. The grant of an
Award under this Plan shall not confer any rights upon the Participant holding
such Award other than such terms, and subject to such conditions, as are
specified in this Plan as being applicable to such type of Award (or to all
Awards) or as are expressly set forth in the Agreement evidencing such Award.
10.5 Tandem Stock or Cash Rights. Either at the time an Award is granted
or by subsequent action, the Committee may, but need not, provide that an Award
shall contain as a term thereof, a right, either in tandem with the other rights
under the Award or as an alternative thereto, of the Participant to receive,
without payment to the Company, a number of Shares, cash or a combination
thereof, the amount of which is determined by reference to the value of the
Award; provided, however, that the number of such rights granted under any Award
shall not exceed the per Eligible Employee share limitation for such Award as
set forth in Section 3.2.
10.6 Financing. The Committee may in its discretion provide financing to a
Participant in a principal amount sufficient to pay the purchase price of any
Award and/or to pay the amount of taxes required by law to be withheld with
respect to any Award. Any such loan shall be subject to all applicable legal
requirements and restrictions pertinent thereto, including Regulation G
promulgated by the Federal Reserve Board. The grant of an Award shall in no way
obligate the Company or the Committee to provide any financing whatsoever in
connection therewith.
SECTION 11. Changes in Capital Structure
If the outstanding securities of the class then subject to this Plan are
increased, decreased or exchanged for or converted into cash, property or a
different number or kind of shares or securities, or if cash, property or shares
or securities are distributed in respect of such outstanding securities, in
either case as a result of a reorganization, merger, consolidation,
recapitalization, restructuring, reclassification, dividend (other than a
regular, quarterly cash dividend) or other distribution, stock split, reverse
stock split, spin-off or the like, or if substantially all of the property and
assets of the Company are sold, then, unless the terms of such transaction shall
provide otherwise, the Committee may make appropriate and proportionate
adjustments in (i) the number and type of shares or other securities or cash or
other property that may be acquired pursuant to Awards theretofore granted under
this Plan and the exercise or settlement price of such Awards, provided,
however, that any such adjustment shall be made in such a manner that will not
affect the status of any Award intended to qualify as an ISO under Code Section
422 or as "performance based compensation" under Code Section 162(m), and (ii)
the maximum number and type of shares or other securities that may be issued
pursuant to such Awards thereafter granted under this Plan.
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SECTION 12. Change of Control
12.1 Effect of Change of Control. The Committee may through the terms of
the Award or otherwise provide that any or all of the following shall occur,
either immediately upon the Change of Control or a Change of Control
Transaction, or upon termination of the Eligible Employee's employment within
twenty-four (24) months following a Change of Control or a Change of Control
Transaction: (a) in the case of an Option, the Participant's ability to exercise
any portion of the Option not previously exercisable, (b) in the case of an
Incentive Award, the right to receive a payment equal to the target amount
payable or, if greater, a payment based on performance through a date determined
by the Committee prior to the Change of Control, and (c) in the case of Shares
issued in payment of any Incentive Award, and/or in the case of Restricted Stock
or Stock Units, the lapse and expiration of any conditions to the grant,
issuance, retention, vesting or transferability of, or any other restrictions
applicable to, such Award. The Committee also may, through the terms of the
Award or otherwise, provide for an absolute or conditional exercise, payment or
lapse of conditions or restrictions on an Award which shall only be effective
if, upon the announcement of a Change of Control Transaction, no provision is
made in such Change of Control Transaction for the exercise, payment or lapse of
conditions or restrictions on the Award, or other procedure whereby the
Participant may realize the full benefit of the Award.
12.2 Definitions. Unless the Committee or the Board shall provide
otherwise, "Change of Control" shall mean an occurrence of any of the following
events (a) a third person, including a "group" as defined in Section 13(d)(3) of
the Exchange Act, acquires shares of the Company having twenty-five percent or
more of the total number of votes that may be cast for the election of directors
of the Company, (b) as the result of any cash tender or exchange offer, merger
or other business combination, or any combination of the foregoing transactions
(a "Transaction"), the persons who were directors of the Company before the
Transaction shall cease to constitute a majority of the Board of the Company or
any successor to the Company; or (c) such other events as the Committee or the
Board from time to time may specify. "Change of Control Transaction" shall
include any tender offer, offer, exchange offer, solicitation, merger,
consolidation, reorganization or other transaction which is intended to or
reasonably expected to result in a Change of Control.
SECTION 13. Taxes
13.1 Withholding Requirements. The Committee may make such provisions or
impose such conditions as it may deem appropriate for the withholding or payment
by the Employee or Participant, as appropriate, of any taxes which it determines
are required in connection with any Awards granted under this Plan, and a
Participant's rights in any Award are subject to satisfaction of such
conditions.
13.2 Payment of Withholding Taxes. Notwithstanding the terms of Section
13.1 hereof, the Committee may provide in the agreement evidencing an Award or
otherwise that all or any portion of the taxes required to be withheld by the
Company or, if permitted by the Committee, desired to be paid by the
Participant, in connection with the exercise of a Non-qualified Option or the
exercise, vesting, settlement or transfer of any other Award shall be paid or,
at the election of the Participant, may be paid by the Company withholding
shares of the Company's capital stock otherwise issuable or subject to such
Award, or by the Participant delivering previously owned shares of the Company's
capital stock, in each case having a fair market value equal to the amount
required or elected to be withheld or paid. Any such elections are subject to
such conditions or procedures as may be established by the Committee and may be
subject to disapproval by the Committee.
SECTION 14. Amendments or Termination
The Board may amend, alter or discontinue the Plan or any agreement
evidencing an Award made under the Plan, but no such amendment shall, without
the approval of the shareholders of the Company:
(a) materially increase the maximum number of shares of Common Stock
for which Awards may be granted under the Plan;
(b) reduce the price at which Options may be granted below the price
provided for in Section 6.2;
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(c) reduce the exercise price of outstanding Options;
(d) after the date of a Change of Control, impair the rights of any
Award holder, without such holder's consent, under any Award granted prior
to the date of any Change of Control;
(e) extend the term of the Plan; or
(f) change the class of persons eligible to be Participants.
SECTION 15. Compliance With Other Laws and Regulations
The Plan, the grant and exercise of Awards thereunder, and the obligation
of the Company to sell, issue or deliver Shares under such Awards, shall be
subject to all applicable federal, state and foreign laws, rules and regulations
and to such approvals by any governmental or regulatory agency as may be
required. The Company shall not be required to register in a Participant's name
or deliver any Shares prior to the completion of any registration or
qualification of such Shares under any federal, state or foreign law or any
ruling or regulation of any government body which the Committee shall, in its
sole discretion, determine to be necessary or advisable. This Plan is intended
to constitute an unfunded arrangement for a select group of management or other
key employees.
No Option shall be exercisable unless a registration statement with respect
to the Option is effective or the Company has determined that such registration
is unnecessary. Unless the Awards and Shares covered by this Plan have been
registered under the Securities Act of 1933, as amended, or the Company has
determined that such registration is unnecessary, each person receiving an Award
and/or Shares pursuant to any Award may be required by the Company to give a
representation in writing that such person is acquiring such Shares for his or
her own account for investment and not with a view to, or for sale in connection
with, the distribution of any part thereof.
SECTION 16. Option Grants by Subsidiaries
In the case of a grant of an Option to any Eligible Employee employed by a
subsidiary or affiliate, such grant may, if the Committee so directs, be
implemented by the Company issuing any subject Shares to the subsidiary or
affiliate, for such lawful consideration as the Committee may determine, upon
the condition or understanding that the subsidiary or affiliate will transfer
the Shares to the optionholder in accordance with the terms of the Option
specified by the Committee pursuant to the provisions of the Plan.
Notwithstanding any other provision hereof, such Option may be issued by and in
the name of the subsidiary or affiliate and shall be deemed granted on such date
as the Committee shall determine.
SECTION 17. No Right to Company Employment
Nothing in this Plan or as a result of any Award granted pursuant to this
Plan shall confer on any individual any right to continue in the employ of the
Company or interfere in any way with the right of the Company to terminate an
individual's employment at any time. The Award agreements may contain such
provisions as the Committee may approve with reference to the effect of approved
leaves of absence.
SECTION 18. Effectiveness and Expiration of Plan
The Plan shall be effective on the date the Board adopts the Plan. All
Awards granted under this Plan are subject to, and may not be exercised before,
the approval of this Plan by the shareholders prior to the first anniversary
date of the effective date of the Plan, by the affirmative vote of the holders
of a majority of the outstanding shares of the Company present, or represented
by proxy, and entitled to vote, at a meeting of the Company's shareholders or by
written consent in accordance with the laws of the State of Delaware; provided
that if such approval by the shareholders of the Company is not forthcoming, all
Awards previously granted under this Plan shall be void. No Stock Option Award,
Restricted Stock Award or Incentive Award shall be granted pursuant to the Plan
more than ten (10) years after the effective date of the Plan.
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SECTION 19. Non-Exclusivity of the Plan
Neither the adoption of the Plan by the Board nor the submission of the
Plan to the shareholders of the Company for approval shall be construed as
creating any limitations on the power of the Board or the Committee to adopt
such other incentive arrangements as it or they may deem desirable, including
without limitation, the granting of restricted stock or stock options otherwise
than under the Plan, and such arrangements may be either generally applicable or
applicable only in specific cases.
SECTION 20. Governing Law
This Plan and any agreements hereunder shall be interpreted and construed
in accordance with the laws of the State of Delaware and applicable federal law.
The Committee may provide that any dispute as to any Award shall be presented
and determined in such forum as the Committee may specify, including through
binding arbitration. Any reference in this Plan or in the agreement evidencing
any Award to a provision of law or to a rule or regulation shall be deemed to
include any successor law, rule or regulation of similar effect or
applicability.
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