EXHIBIT 10.1
Arrow Electronics, Inc.
2004 Omnibus Incentive Plan
(as amended February 28, 2007 and February 27, 2008)
Article 1. Establishment, Purpose, and Duration
1.1 Establishment. Arrow Electronics, Inc., a New York corporation
(hereinafter referred to as the "Company"), establishes an incentive
compensation plan to be known as the 2004 Omnibus Incentive Plan (hereinafter
referred to as the "Plan"), as set forth in this document.
The Plan permits the grant of Cash-Based Awards, Non-Qualified Stock
Options, Incentive Stock Options, Stock Appreciation Rights, Restricted Stock,
Restricted Stock Units, Performance Shares, Performance Units, Covered Employee
Annual Incentive Awards, and Other Stock-Based Awards.
The Plan shall become effective upon shareholder approval (the "Effective
Date") and shall remain in effect as provided in Section 1.3 hereof.
1.2 Purpose of the Plan. The purpose of the Plan is to promote the
interests of the Company and its shareholders by strengthening the Company's
ability to attract, motivate, and retain Employees and Directors of the Company
upon whose judgment, initiative, and efforts the financial success and growth of
the business of the Company largely depend, and to provide an additional
incentive for such individuals through stock ownership and other rights that
promote and recognize the financial success and growth of the Company and create
value for shareholders. This Plan is intended to replace all Prior Plans.
1.3 Duration of the Plan. Unless sooner terminated as provided herein,
the Plan shall terminate (i) ten years from the Effective Date with respect to
the Shares initially authorized for issuance under the Plan (the "Initial Share
Authorization") and (ii) with respect to the 5,000,000 Shares subsequently
authorized for issuance under the Plan (the "Additional Share Authorization"),
ten years from the date the Board of Directors amended the Plan to authorize the
Additional Share Authorization. After the Plan is terminated, no Awards may be
granted but Awards previously granted shall remain outstanding in accordance
with their applicable terms and conditions and the Plan's terms and conditions.
Notwithstanding the foregoing, no Incentive Stock Options may be granted (i)
with respect to the Initial Share Authorization, after February 26, 2014, and
(ii) with respect to the Additional Share Authorization, more than ten years
after the Board's authorization of the Additional Share Authorization.
Article 2. Definitions
Whenever used in the Plan, the following terms shall have the meanings set
forth below, and when the meaning is intended, the initial letter of the word
shall be capitalized.
2.1 "Affiliate" shall have the meaning ascribed to such term in Rule 12b-2
of the General Rules and Regulations of the Exchange Act.
2.2 "Annual Award Limit" or "Annual Award Limits" have the meaning set
forth in Section 4.3.
2.3 "Award" means, individually or collectively, a grant under this Plan
of Cash-Based Awards, Non-Qualified Stock Options, Incentive Stock
Options, SARs, Restricted Stock, Restricted Stock Units, Performance
Shares, Performance Units, Covered Employee Annual Incentive Awards,
or Other Stock-Based Awards, in each case subject to the terms of this
Plan.
2.4 "Award Agreement" means either (i) a written agreement entered into by
the Company and a Participant setting forth the terms and provisions
applicable to an Award granted under this Plan, or (ii) a written
statement issued by the Company to a Participant describing the terms
and provisions of such Award.
2.5 "Beneficial Owner" or "Beneficial Ownership" shall have the meaning
ascribed to such term in Rule 13d-3 of the General Rules and
Regulations under the Exchange Act.
2.6 "Board" or "Board of Directors" means the Board of Directors of the
Company.
2.7 "Cash-Based Award" means an Award granted to a Participant as
described in Article 10.
2.8 "Code" means the U.S. Internal Revenue Code of 1986, as amended from
time to time.
2.9 "Committee" means the compensation committee of the Board or any other
committee designated by the Board to administer this Plan. The members
of the Committee shall be appointed from time to time and shall serve
at the discretion of the Board.
2.10 "Company" means Arrow Electronics, Inc., a New York corporation, and
any successor thereto as provided in Article 21 herein.
2.11 "Covered Employee" means a Participant: (a) who is a "covered
employee," as defined in Code Section 162(m) and the regulations
promulgated under Code Section 162(m), or any successor statute or
(b) who the Committee determines could potentially become a covered
employee during the lifetime of an Award.
2.12 "Covered Employee Annual Incentive Award" means an Award granted to a
Covered Employee as described in Article 12.
2.13 "Director" means any individual who is a member of the Board of
Directors of the Company.
2.14 "Disability" means total and permanent disability as determined by the
Committee.
2.15 "Effective Date" has the meaning set forth in Section 1.1.
2.16 "Employee" means any employee of the Company, its Affiliates, and/or
Subsidiaries.
2.17 "Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor act thereto.
2.18 "Fair Market Value" or "FMV" means a price that is based on the
opening, closing, actual, high, low, or average selling prices of a
Share on the New York Stock Exchange ("NYSE") or other established
stock exchange (or exchanges) on the applicable date, the preceding
trading days, the next succeeding trading day, or an average of
trading days, as determined by the Committee in its discretion. Such
definition(s) of FMV shall be determined by the Committee at its
discretion. If, however, the required accounting standards used to
account for equity Awards granted to Participants are substantially
modified subsequent to the Effective Date of the Plan such that fair
value accounting for such Awards becomes required, the Committee
shall have the ability to determine an Award's FMV based on the
relevant facts and circumstances. If Shares are not traded on an
established stock exchange, FMV shall be determined by the Committee
based on objective criteria.
2.19 "Full Value Award" means an Award other than in the form of an ISO,
NQSO, or SAR, and which is settled by the issuance of Shares.
2.20 "Freestanding SAR" means a SAR that is granted independently of any
Options, as described in Article 7.
2.21 "Grant Price" means the price established at the time of grant of a
SAR pursuant to Article 7, used to determine whether there is any
payment due upon exercise of the SAR.
2.22 "Incentive Stock Option" or "ISO" means an Option to purchase Shares
granted under Article 6 to an Employee and that is designated as an
Incentive Stock Option and that is intended to meet the requirements
of Code Section 422, or any successor provision.
2.23 "Insider" shall mean an individual who is, on the relevant date, an
officer, Director, or more than ten percent (10%) Beneficial Owner of
any class of the Company's equity securities that is registered
pursuant to Section 12 of the Exchange Act, as determined by the
Board in accordance with Section 16 of the Exchange Act.
2.24 "Non-Employee Director" means a Director who is not an Employee.
2.25 "Non-Employee Director Award" means any NQSO, SAR, or Full Value
Award granted, whether singly, in combination, or in tandem, to a
Participant who is a Non-Employee Director pursuant to such
applicable terms, conditions, and limitations as the Board may
establish in accordance with this Plan.
2.26 "Non-Qualified Stock Option" or "NQSO" means an Option that is not
intended to meet the requirements of Code Section 422, or that
otherwise does not meet such requirements.
2.27 "Option" means an Incentive Stock Option or a Non-Qualified Stock
Option, as described in Article 6.
2.28 "Option Price" means the price at which a Share may be purchased by a
Participant pursuant to an Option.
2.29 "Other Stock-Based Award" means an equity-based or equity-related
Award not otherwise described by the terms of this Plan, granted
pursuant to Article 10.
2.30 "Participant" means any eligible person as set forth in Article 5 to
whom an Award is granted.
2.31 "Performance-Based Compensation" means compensation under an Award
that satisfies the requirements of Section 162(m) of the Code for
deductibility of remuneration paid to Covered Employees.
2.32 "Performance Measures" means measures as described in Article 11 on
which the performance goals are based and which are approved by the
Company's shareholders pursuant to this Plan in order to qualify
Awards as Performance-Based Compensation.
2.33 "Performance Period" means the period of time during which the
performance goals must be met in order to determine the degree of
payout and/or vesting with respect to an Award.
2.34 "Performance Share" means an Award granted to a Participant, as
described in Article 9.
2.35 "Performance Unit" means an Award granted to a Participant, as
described in Article 9.
2.36 "Period of Restriction" means the period when Restricted Stock or
Restricted Stock Units are subject to a substantial risk of
forfeiture (based on the passage of time, the achievement of
performance goals, or upon the occurrence of other events as
determined by the Committee, in its discretion), as provided in
Article 8.
2.37 "Person" shall have the meaning ascribed to such term in Section
3(a)(9) of the Exchange Act and used in Sections 13(d) and 14(d)
thereof, including a "group" as defined in Section 13(d) thereof.
2.38 "Plan" means the Arrow Electronics, Inc. 2004 Omnibus Incentive Plan.
2.39 "Plan Year" means the calendar year.
2.40 "Prior Plans" means the Company's Arrow Electronics, Inc. Stock Option
Plan, as amended and restated effective as of February 27, 2002, the
Arrow Electronics, Inc. Restricted Stock Plan, as amended and restated
effective as of February 27, 2002, the Arrow Electronics, Inc. 2002
Non-Employee Directors Stock Option Plan, and the Non-Employee
Directors Deferral Plan.
2.41 "Restricted Stock" means an Award granted to a Participant pursuant to
Article 8.
2.42 "Restricted Stock Unit" means an Award granted to a Participant
pursuant to Article 8, except no Shares are actually awarded to the
Participant on the date of grant.
2.43 "Share" means a Share of common stock of the Company, $1.00 par value
per Share.
2.44 "Stock Appreciation Right" or "SAR" means an Award, designated as a
SAR, pursuant to the terms of Article 7 herein.
2.45 "Subsidiary" means any corporation or other entity, whether domestic
or foreign, in which the Company has or obtains, directly or
indirectly, a proprietary interest of more than fifty percent (50%)
by reason of stock ownership or otherwise.
2.46 "Tandem SAR" means a SAR that is granted in connection with a related
Option pursuant to Article 7 herein, the exercise of which shall
require forfeiture of the right to purchase a Share under the related
Option (and when a Share is purchased under the Option, the Tandem
SAR shall similarly be canceled).
2.47 "Third Party Service Provider" means any consultant, agent, advisor,
or independent contractor who renders services to the Company, a
Subsidiary, or an Affiliate that (a) are not in connection with the
offer and sale of the Company's securities in a capital raising
transaction, and (b) do not directly or indirectly promote or
maintain a market for the Company's securities.
Article 3. Administration
3.1 General. The Committee shall be responsible for administering the
Plan, subject to this Article 3 and the other provisions of the Plan. The
Committee may employ attorneys, consultants, accountants, agents, and other
persons, any of whom may be an Employee, and the Committee, the Company, and its
officers and Directors shall be entitled to rely upon the advice, opinions, or
valuations of any such persons. All actions taken and all interpretations and
determinations made by the Committee shall be final and binding upon the
Participants, the Company, and all other interested persons. The Committee
shall have the authority to bring an action in the name of the Company in any
court of competent jurisdiction to enforce, define or defend any action or
determination under the Plan.
3.2 Authority of the Committee. Subject to the terms of the Plan, the
Committee shall have full and exclusive discretionary power to interpret the
terms and the intent of the Plan and any Award Agreement or other agreement or
document ancillary to or in connection with the Plan, to determine eligibility
for Awards and to adopt such rules, regulations, forms, instruments, and
guidelines for administering the Plan as the Committee may deem necessary or
proper. Such authority shall include, but not be limited to, selecting Award
recipients, establishing all Award terms and conditions, including the terms and
conditions set forth in Award Agreements, and, subject to Article 19, adopting
modifications and amendments to the Plan or any Award Agreement, including
without limitation, any that are necessary to comply with the laws of the
countries and other jurisdictions in which the Company, its Affiliates, and/or
its Subsidiaries operate.
3.3 Delegation. The Committee may delegate to one or more of its members
or to one or more officers of the Company, and/or its Subsidiaries and
Affiliates or to one or more agents or advisors such administrative duties or
powers as it may deem advisable, and the Committee or any person to whom it has
delegated duties or powers 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. The Committee may, by resolution, authorize one or more officers
of the Company to do any of the following on the same basis as can the
Committee: (a) designate Employees to be recipients of Awards; (b) designate
Third Party Service Providers to be recipients of Awards; and (c) determine the
size of any such Awards. The Committee shall not delegate such responsibilities
with respect to Awards granted to an officer who is considered an Insider or
Covered Employee. The resolution providing for such delegation shall set forth
the total number of Awards such officer(s) may grant; and, the officer(s) shall
report periodically to the Committee regarding the nature and scope of the
Awards granted pursuant to the authority delegated.
Article 4. Shares Subject to the Plan and Maximum Awards
4.1 Number of Shares Available for Awards.
(a) Subject to adjustment as provided in Section 4.4 herein, the maximum
number of Shares available for issuance to Participants under the Plan
(the "Share Authorization") shall be:
(i) Nine million ninety six thousand eight hundred sixty nine
(9,096,869) Shares; plus
(ii)(a) four million two hundred three thousand one hundred thirty one
(4,203,131) authorized Shares not issued or subject to
outstanding awards under the Company's Prior Plans as of the
Effective Date and (b) any Shares subject to the eleven million
three hundred sixty two thousand six hundred forty five
(11,362,645) outstanding awards as of the Effective Date under
the Prior Plans that on or after the Effective Date cease for any
reason to be subject to such awards (other than by reason of
exercise or settlement of the awards to the extent they are
exercised for or settled in vested and non-forfeitable Shares).
(b) To the extent that a Share is issued pursuant to the grant or exercise
of a Full Value Award, it shall reduce the Share Authorization by 1.69
Shares; and, to the extent that a Share is issued pursuant to the
grant or exercise of an Award other than a Full Value Award, it shall
reduce the Share Authorization by one (1) Share.
(c) Subject to adjustment as provided in Section 4.4, and subject to the
limit set forth in Section 4.1(a) on the number of Shares that may be
issued in the aggregate under the Plan, and in order to comply with
the requirements of Section 422 of the Code and the regulations
thereunder, the maximum number of Shares available for issuance
pursuant to ISOs and NQSOs shall be:
(i) Thirteen million three hundred thousand (13,300,000) Shares that
may be issued pursuant to Awards in the form of ISOs, plus a
number of shares equal to the number of shares subject to
outstanding awards under the Prior Plans as of the Effective Date
that thereafter cease for any reason to be subject to such awards
(other than by reason of exercise or settlement of the awards to
the extent they are exercised for or settled in vested and
non-forfeitable Shares) up to a maximum of eleven million three
hundred sixty two thousand six hundred forty five (11,362,645);
and
(ii) Thirteen million three hundred thousand (13,300,000) Shares that
may be issued pursuant to Awards in the form of NQSOs, plus a
number of shares equal to the number of shares subject to
outstanding awards under the Prior Plans as of the Effective Date
that thereafter cease for any reason to be subject to such awards
(other than by reason of exercise or settlement of the awards to
the extent they are exercised for or settled in vested and
non-forfeitable Shares) up to a maximum of eleven million three
hundred sixty two thousand six hundred forty five (11,362,645).
(d) Subject to adjustment in Section 4.4 and subject to the limit set
forth in Section 4.1(a) on the number of Shares that may be issued in
the aggregate under the Plan, the maximum number of shares that may be
issued to Non-Employee Directors shall be four hundred thousand
(400,000) Shares, and no Non-Employee Director may be granted an award
covering more than twenty thousand (20,000) Shares in any Plan Year,
except that this annual limit on Non-Employee Director Awards shall be
increased to forty thousand (40,000) Shares for any Non-Employee
Director serving as Chairman of the Board; provided, however, that in
the Plan Year in which an individual is first appointed or elected to
the Board as a Non-Employee Director, such individual may be granted
an Award covering no more than an additional forty thousand (40,000)
Shares (a "New Non-Employee Director Award").
(e) Except with respect to a maximum of five percent (5%) of the Shares
authorized in Section 4.1(a), any Full Value Awards, which vest on the
basis of the Participant's employment with or provision of service to
the Company, shall not provide for vesting which is any more rapid
than annual pro rata vesting over a three (3) year period, and any
Full Value Awards which vest upon the attainment of performance goals,
shall provide for a performance period of at least twelve (12) months.
4.2 Share Usage.
(a) Shares covered by an Award shall only be counted as used to the extent
they are actually issued and delivered to a Participant, or, if
permitted by the Committee, a Participant's designated transferee. Any
Shares related to Awards which terminate by expiration, forfeiture,
cancellation, or otherwise without the issuance of such Shares, are
settled in cash in lieu of Shares, or are exchanged with the
Committee's permission, prior to the issuance of Shares, for Awards
not involving Shares, shall be available again for grant under the
Plan. Moreover, if the Option Price of any Option granted under the
Plan or the tax withholding requirements with respect to any Award
granted under the Plan are satisfied by tendering Shares to the
Company (by either actual delivery or by attestation), or if a SAR is
exercised, only the number of Shares issued, net of the Shares
tendered, if any, will be deemed delivered for purposes of determining
the maximum number of Shares available for delivery under the Plan.
The maximum number of Shares available for issuance under the Plan
shall not be reduced to reflect any dividends or dividend equivalents
that are reinvested into additional Shares or credited as additional
Restricted Stock, Restricted Stock Units, Performance Shares, or
Stock-Based Awards. The Shares available for issuance under the Plan
may be authorized and unissued Shares or treasury Shares.
(b) The Committee shall have the authority to grant Awards as an
alternative to or as the form of payment for grants or rights earned
or due under other compensation plans or arrangements of the Company.
4.3 Annual Award Limits. The following limits (each an "Annual Award
Limit" and, collectively, "Annual Award Limits") shall apply to grants of Awards
under the Plan:
(a) Options: The maximum aggregate number of Shares that may be granted in
the form of Options, pursuant to all Awards of such type granted in
any one Plan Year to any one Participant shall be five hundred
thousand (500,000), plus the amount of the Participant's unused
applicable Annual Award Limit for Options as of the close of the
previous Plan Year.
(b) SARs: The maximum number of Shares that may be granted in the form of
Stock Appreciation Rights, pursuant to all Awards of such type granted
in any one Plan Year to any one Participant shall be five hundred
thousand (500,000), plus the amount of the Participant's unused
applicable Annual Award Limit for SARs as of the close of the previous
Plan Year.
(c) Restricted Stock or Restricted Stock Units: The maximum aggregate
grant with respect to Awards of Restricted Stock or Restricted Stock
Units granted in any one Plan Year to any one Participant shall be
five hundred thousand (500,000), plus the amount of the Participant's
unused applicable Annual Award Limit for Restricted Stock or
Restricted Stock Units as of the close of the previous Plan Year.
(d) Performance Units or Performance Shares: The maximum aggregate Award
of Performance Units or Performance Shares that a Participant may
receive in any one Plan Year shall be five hundred thousand (500,000)
Shares, or equal to the value of five hundred thousand (500,000)
Shares determined as of the date of vesting or payout, as
applicable, plus the amount of the Participant's unused applicable
Annual Award Limit for Performance Units or Performance Shares as of
the close of the previous Plan Year.
(e) Cash-Based Awards: The maximum aggregate amount awarded or credited
with respect to Cash-Based Awards to any one Participant in any one
Plan Year may not exceed the value of five million dollars
($5,000,000) determined as of the date of vesting or payout, as
applicable, plus the amount of the Participant's unused applicable
Annual Award Limit for Cash-Based Awards as of the close of the
previous Plan Year.
(f) Covered Employee Annual Incentive Award. The maximum aggregate amount
awarded or credited with respect to Covered Employee Annual Incentive
Awards to any one Participant in any one Plan year may not exceed the
value of five million dollars ($5,000,000) determined as of the date
of vesting or payout, as applicable, plus the amount of the
Participant's unused applicable Annual Award Limit for Covered
Employee Annual Incentive Awards as of the close of the previous Plan
Year.
(g) Other Stock-Based Awards. The maximum aggregate grant with respect to
other Stock-Based Awards pursuant to Section 10.2 granted in any one
Plan Year to any one Participant shall be five hundred thousand
(500,000), plus the amount of the Participant's unused applicable
Annual Award Limit for Other Stock-Based Awards as of the close of the
previous Plan Year.
4.4 Adjustments in Authorized Shares. In the event of any corporate
event or transaction (including, but not limited to, a change in the Shares of
the Company or the capitalization of the Company) such as a merger,
consolidation, reorganization, recapitalization, separation, stock dividend,
stock split, reverse stock split, split up, spin-off, or other distribution of
stock or property of the Company, combination of Shares, exchange of Shares,
dividend in kind, or other like change in capital structure or distribution
(other than normal cash dividends) to shareholders of the Company, or any
similar corporate event or transaction, the Committee, in its sole discretion,
in order to prevent dilution or enlargement of Participants' rights under the
Plan, shall substitute or adjust, as applicable, the number and kind of Shares
that may be issued under the Plan or under particular forms of Awards, the
number and kind of Shares subject to outstanding Awards, the Option Price or
Grant Price applicable to outstanding Awards, the Annual Award Limits, and other
value determinations applicable to outstanding Awards.
The Committee shall, as and in the manner it deems necessary or
appropriate, make adjustments in the terms of any Awards under the Plan to
reflect or related to such changes or distributions and to modify any other
terms of outstanding Awards, including modifications of performance goals and
changes in the length of Performance Periods. The determination of the Committee
as to the foregoing adjustments shall be conclusive and binding on Participants
under the Plan.
Subject to the provisions of Article 19, without affecting the number
of Shares reserved or available hereunder or the number or types of options that
may be granted hereunder, the Committee may authorize the issuance or assumption
of awards under this Plan in connection with any merger, consolidation,
acquisition of property or stock or reorganization upon such terms and
conditions as it may deem appropriate; provided, however, that, subject to
adjustment as provided above, the maximum amount of Shares with respect to which
ISOs, NQSOs and/or other Awards may be granted under this paragraph is as set
forth in section 4.1 (c) hereof.
Article 5. Eligibility and Participation
5.1 Eligibility. Individuals eligible to participate in this Plan
include all Employees, Directors, and Third Party Service Providers.
5.2 Actual Participation. Subject to the provisions of the Plan, the
Committee may, from time to time, select from all eligible individuals, those to
whom Awards shall be granted and shall determine, in its sole discretion, the
nature of, any and all terms permissible by law, and the amount of each Award,
except that in the case of Non-Employee Directors, such determinations shall be
made by the Board pursuant to Section 13.1.
Article 6. Stock Options
6.1 Grant of Options. Subject to the terms and provisions of the Plan,
Options may be granted to Participants in such number, and upon such terms, and
at any time and from time to time as shall be determined by the Committee, in
its sole discretion; provided that ISOs may be granted only to eligible
employees of the Company or of any parent or subsidiary corporation (as
permitted by Section 422 of the Code and the regulations thereunder).
6.2 Award Agreement. Each Option grant shall be evidenced by an Award
Agreement that shall specify the Option Price, the maximum duration of the
Option, the number of Shares to which the Option pertains, the conditions upon
which an Option shall become vested and exercisable, and such other provisions
as the Committee shall determine which are not inconsistent with the terms of
the Plan. The Award Agreement also shall specify whether the Option is intended
to be an ISO or a NQSO.
6.3 Option Price. The Option Price for each grant of an Option under
this Plan shall be as determined by the Committee and shall be specified in the
Award Agreement; provided, however, the Option Price shall not be less than one
hundred percent (100%) of the Fair Market Value of a Share on the date the
Option is granted.
6.4 Duration of Options. Each Option granted to a Participant shall
expire at such time as the Committee shall determine at the time of grant;
provided, however, no Option shall be exercisable later than the tenth (10th)
anniversary date of its grant. Notwithstanding the foregoing, for Options
granted to Participants outside the United States, the Committee has the
authority to grant Options that have a term greater than ten (10) years.
6.5 Exercise of Options. Options granted under this Article 6 shall be
exercisable at such times and be subject to such restrictions and conditions as
the Committee shall in each instance approve, which terms and restrictions need
not be the same for each grant or for each Participant.
6.6 Payment. Options granted under this Article 6 shall be exercised by
the delivery of a notice of exercise to the Company or an agent designated by
the Company in a form specified or accepted by the Committee, or by complying
with any alternative procedures which may be authorized by the Committee,
setting forth the number of Shares with respect to which the Option is to be
exercised, accompanied by full payment for the Shares.
A condition of the issuance of the Shares as to which an Option shall be
exercised shall be the payment of the Option Price. The Option Price of any
Option shall be payable to the Company in full either: (a) in cash or its
equivalent; (b) by tendering (either by actual delivery or attestation)
previously acquired Shares having an aggregate Fair Market Value at the time of
exercise equal to the Option Price (provided that the Shares that are tendered
must have been held by the Participant for at least six (6) months prior to
their tender to satisfy the Option Price or have been purchased on the open
market); (c) by a combination of (a) and (b); or (d) any other method approved
or accepted by the Committee in its sole discretion.
Subject to any governing rules or regulations, as soon as practicable after
receipt of written notification of exercise and full payment (including
satisfaction of any applicable tax withholding), the Company shall deliver to
the Participant evidence of book entry Shares, or upon the Participant's
request, Share certificates in an appropriate amount based upon the number of
Shares purchased under the Option(s).
Unless otherwise determined by the Committee, all payments under all of the
methods indicated above shall be paid in United States dollars.
6.7 Restrictions on Share Transferability. The Committee may impose
such restrictions on any Shares acquired pursuant to the exercise of an Option
granted under this Article 6 as it may deem advisable, including, without
limitation, minimum holding period requirements, restrictions under applicable
federal securities laws, under the requirements of any stock exchange or market
upon which such Shares are then listed and/or traded, or under any blue sky or
state securities laws applicable to such Shares.
6.8 Termination of Employment. Each Participant's Award Agreement shall
set forth the extent to which the Participant shall have the right to exercise
the Option following termination of the Participant's employment or provision of
services to the Company, its Affiliates, or its Subsidiaries, as the case may
be. Such provisions shall be determined in the sole discretion of the Committee,
shall be included in the Award Agreement entered into with each Participant,
need not be uniform among all Options issued pursuant to this Article 6, and may
reflect distinctions based on the reasons for termination.
6.9 Transferability of Options.
(a) Incentive Stock Options. No ISO granted under the Plan may be sold,
transferred, pledged, assigned, or otherwise alienated or
hypothecated, other than by will or by the laws of descent and
distribution. Further, all ISOs granted to a Participant under this
Article 6 shall be exercisable during his or her lifetime only by such
Participant.
(b) Non-Qualified Stock Options. Except as otherwise provided in a
Participant's Award Agreement or otherwise determined at any time by
the Committee, no NQSO granted under this Article 6 may be sold,
assigned, or otherwise alienated or hypothecated, other than by will
or by the laws of descent and distribution; provided that the Board or
Committee may permit further transferability, on a general or a
specific basis, and may impose conditions and limitations on any
permitted transferability. Further, except as otherwise provided in a
Participant's Award Agreement or otherwise determined at any time by
the Committee, or unless the Board or Committee decides to permit
further transferability, all NQSOs granted to a Participant under this
Article 6 shall be exercisable during his or her lifetime only by such
Participant. With respect to those NQSOs, if any, that are permitted
to be transferred to another person, references in the Plan to
exercise or payment of the Option Price
by the Participant shall be deemed to include, as determined by the
Committee, the Participant's permitted transferee.
6.10 Notification of Disqualifying Disposition. If any Participant
shall make any disposition of Shares issued pursuant to the exercise of an ISO
under the circumstances described in Section 421(b) of the Code (relating to
certain disqualifying dispositions), such Participant shall notify the Company
of such disposition within ten (10) days thereof.
6.11 Substituting SARs. In the event the Company no longer uses APB
Opinion 25 to account for equity compensation and is required to or elects to
expense the cost of Options pursuant to FAS 123 (or a successor standard), the
Committee shall have the ability to substitute, without receiving Participant
permission, SARs paid only in Stock (or SARs paid in Stock or cash at the
Committee's discretion) for outstanding Options; provided, the terms of the
substituted Stock SARs are substantially equivalent to the terms for the Options
and the excess of the Fair Market Value of the underlying Shares over the
aggregate Grant Price of the SARs is equivalent to the excess of the Fair Market
Value of the underlying Shares over the aggregate Option Price of the Options.
If this provision creates adverse accounting consequences for the Company, it
shall be considered void by the Committee.
Article 7. Stock Appreciation Rights
7.1 Grant of SARs. Subject to the terms and conditions of the Plan, SARs
may be granted to Participants at any time and from time to time as shall be
determined by the Committee. The Committee may grant Freestanding SARs, Tandem
SARs, or any combination of these forms of SARs.
Subject to the terms and conditions of the Plan, the Committee shall have
complete discretion in determining the number of SARs granted to each
Participant and, consistent with the provisions of the Plan, in determining the
terms and conditions pertaining to such SARs.
The Grant Price for each grant of a Freestanding SAR shall be determined by
the Committee and shall be specified in the Award Agreement. The Grant Price may
be based on one hundred percent (100%) of the FMV of the Shares on the date of
grant, set at a premium to the FMV of the Shares on the date of grant, or
indexed to the FMV of the Shares on the date of grant, with the index determined
by the Committee, in its discretion. The Grant Price of Tandem SARs shall be
equal to the Option Price of the related Option.
7.2 SAR Agreement. Each SAR Award shall be evidenced by an Award
Agreement that shall specify the Grant Price, the term of the SAR, and such
other provisions as the Committee shall determine.
7.3 Term of SAR. The term of a SAR granted under the Plan shall be
determined by the Committee, in its sole discretion, and except as determined
otherwise by the Committee and specified in the SAR Award Agreement, no SAR
shall be exercisable later than the tenth (10th) anniversary date of its grant.
Notwithstanding the foregoing, for SARs granted to Participants outside the
United States, the Committee has the authority to grant SARs that have a term
greater than ten (10) years.
7.4 Exercise of Freestanding SARs. Freestanding SARs may be exercised
upon whatever terms and conditions the Committee, in its sole discretion,
imposes.
7.5. Exercise of Tandem SARs. Tandem SARs may be exercised for all or
part of the Shares subject to the related Option upon the surrender of the right
to exercise the equivalent portion of the related Option. A Tandem SAR may be
exercised only with respect to the Shares for which its related Option is then
exercisable.
Notwithstanding any other provision of this Plan to the contrary, with
respect to a Tandem SAR granted in connection with an ISO: (a) the Tandem SAR
will expire no later than the expiration of the underlying ISO; (b) the value of
the payout with respect to the Tandem SAR may be for no more than one hundred
percent (100%) of the excess of the Fair Market Value of the Shares subject to
the underlying ISO over the aggregate Option Price of the Shares subject to the
underlying ISO at the time the Tandem SAR is exercised; and (c) the Tandem SAR
may be exercised only when the Fair Market Value of the Shares subject to the
ISO exceeds the aggregate Option Price of the ISO.
7.6 Payment of SAR Amount. Upon the exercise of a SAR, a Participant
shall be entitled to receive payment from the Company in an amount determined by
multiplying:
(a) The excess of the Fair Market Value of a Share on the date of exercise
over the Grant Price; by
(b) The number of Shares with respect to which the SAR is exercised.
At the discretion of the Committee, the payment upon SAR exercise may be in
cash, Shares, or any combination thereof, or in any other manner approved by the
Committee in its sole discretion. The Committee's determination regarding the
form of SAR payout shall be set forth in the Award Agreement pertaining to the
grant of the SAR.
7.7 Termination of Employment. Each Award Agreement shall set forth the
extent to which the Participant shall have the right to exercise the SAR
following termination of the Participant's employment with or provision of
services to the Company, its Affiliates, and/or its Subsidiaries, as the case
may be. Such provisions shall be determined in the sole discretion of the
Committee, shall be included in the Award Agreement entered into with
Participants, need not be uniform among all SARs issued pursuant to the Plan,
and may reflect distinctions based on the reasons for termination.
7.8 Non-Transferability of SARs. Except as otherwise provided in a
Participant's Award Agreement or otherwise at any time by the Committee, no SAR
granted under the Plan may be sold, transferred, pledged, assigned, or otherwise
alienated or hypothecated, other than by will or by the laws of descent and
distribution. Further, except as otherwise provided in a Participant's Award
Agreement or otherwise at any time by the Committee, all SARs granted to a
Participant under the Plan shall be exercisable during his or her lifetime only
by such Participant. With respect to those SARs, if any, that are permitted to
be transferred to another person, references in the Plan to exercise of the SAR
by the Participant or payment of any amount to the Participant shall be deemed
to include, as determined by the Committee, the Participant's permitted
transferee.
7.9 Other Restrictions. The Committee shall impose such other conditions
and/or restrictions on any Shares received upon exercise of a SAR granted
pursuant to the Plan as it may deem advisable or desirable. These restrictions
may include, but shall not be limited to, a requirement that the Participant
hold the Shares received upon exercise of a SAR for a specified period of time.
Article 8. Restricted Stock and Restricted Stock Units
8.1 Grant of Restricted Stock or Restricted Stock Units. Subject to the
terms and provisions of the Plan, the Committee, at any time and from time to
time, may grant Shares of Restricted Stock and/or Restricted Stock Units to
Participants in such amounts as the Committee shall determine. Restricted Stock
Units shall be similar to Restricted Stock except that no Shares are actually
awarded to the Participant on the date of grant.
8.2 Restricted Stock or Restricted Stock Unit Agreement. Each Restricted
Stock and/or Restricted Stock Unit grant shall be evidenced by an Award
Agreement that shall specify the Period(s) of Restriction, the number of Shares
of Restricted Stock or the number of Restricted Stock Units granted, and such
other provisions as the Committee shall determine.
8.3 Transferability. Except as provided in this Plan or an Award
Agreement, the Shares of Restricted Stock and/or Restricted Stock Units granted
herein may not be sold, transferred, pledged, assigned, or otherwise alienated
or hypothecated until the end of the applicable Period of Restriction
established by the Committee and specified in the Award Agreement (and in the
case of Restricted Stock Units until the date of delivery or other payment), or
upon earlier satisfaction of any other conditions, as specified by the
Committee, in its sole discretion, and set forth in the Award Agreement or
otherwise at any time by the Committee. All rights with respect to the
Restricted Stock and/or Restricted Stock Units granted to a Participant under
the Plan shall be available during his or her lifetime only to such Participant,
except as otherwise provided in an Award Agreement or at any time by the
Committee.
8.4 Other Restrictions. The Committee shall impose such other
conditions and/or restrictions on any Shares of Restricted Stock or Restricted
Stock Units granted pursuant to the Plan as it may deem advisable including,
without limitation, a requirement that Participants pay a stipulated purchase
price for each Share of Restricted Stock or each Restricted Stock Unit,
restrictions based upon the achievement of specific performance goals,
time-based restrictions on vesting following the attainment of the performance
goals, time-based restrictions, and/or restrictions under applicable laws or
under the requirements of any stock exchange or market upon which such Shares
are listed or traded, or holding requirements or sale restrictions placed on the
Shares by the Company upon vesting of such Restricted Stock or Restricted Stock
Units. In the case of Restricted Stock and/or Restricted Stock Units granted to
Covered Employees which awards are intended to constitute Performance Based
Compensation the applicable performance goal(s) for such Awards shall be
selected from those listed in Article 11.
To the extent deemed appropriate by the Committee, the Company may retain
the certificates representing Shares of Restricted Stock in the Company's
possession until such time as all conditions and/or restrictions applicable to
such Shares have been satisfied or lapse.
Except as otherwise provided in this Article 8 or under applicable law,
Shares of Restricted Stock covered by each Restricted Stock Award shall become
freely transferable by the Participant after all conditions and restrictions
applicable to such Shares have been satisfied or lapse (including satisfaction
of any applicable tax withholding obligations), and Restricted Stock Units shall
be paid in cash, Shares, or a combination of cash and Shares as the Committee,
in its sole discretion shall determine.
8.5 Certificate Legend. In addition to any legends placed on
certificates pursuant to Section 8.4, each certificate representing Shares of
Restricted Stock granted pursuant to the Plan may bear a legend such as the
following or as otherwise determined by the Committee in its sole discretion:
The sale or transfer of Shares of stock represented by this certificate,
whether voluntary, involuntary, or by operation of law, is subject to certain
restrictions on transfer as set forth in the Arrow Electronics, Inc. 2004
Omnibus Incentive Plan, and in the associated Award Agreement. A copy of the
Plan and such Award Agreement may be obtained from Arrow Electronics, Inc.
8.6 Voting Rights. Unless otherwise determined by the Committee and set
forth in a Participant's Award Agreement, to the extent permitted or required by
law, as determined by the Committee, Participants holding Shares of Restricted
Stock granted hereunder may be granted the right to exercise full voting rights
with respect to those Shares during the Period of Restriction. There shall be no
voting rights with respect to any Restricted Stock Units granted hereunder.
8.7 Termination of Employment. Each Award Agreement shall set forth the
extent to which the Participant shall have the right to retain Restricted Stock
and/or Restricted Stock Units following termination of the Participant's
employment with or provision of services to the Company, its Affiliates, and/or
its Subsidiaries, as the case may be. Such provisions shall be determined in the
sole discretion of the Committee, shall be included in the Award Agreement
entered into with each Participant, need not be uniform among all Awards of
Restricted Stock or Restricted Stock Units granted pursuant to the Plan, and may
reflect distinctions based on the reasons for termination.
8.8 Section 83(b) Election. The Committee may provide in an Award
Agreement that the Award of Restricted Stock is conditioned upon the Participant
making or refraining from making an election with respect to the Award under
Section 83(b) of the Code. If a Participant makes an election pursuant to
Section 83(b) of the Code concerning a Restricted Stock Award, the Participant
shall be required to file promptly a copy of such election with the Company.
Article 9. Performance Units/ Performance Shares
9.1 Grant of Performance Units/ Performance Shares. Subject to the terms
and provisions of the Plan, the Committee, at any time and from time to time,
may grant Performance Units and/or Performance Shares to Participants in such
amounts and upon such terms as the Committee shall determine.
9.2 Value of Performance Units/ Performance Shares. Each Performance
Unit shall have an initial value that is established by the Committee at the
time of grant. Each Performance Share shall have an initial value equal to the
Fair Market Value of a Share on the date of grant. The Committee shall set
performance goals in its discretion which, depending on the extent to which they
are met, will determine the value and/or number of Performance Units/
Performance Shares that will be paid out to the Participant. In the case of
Performance Units and or Performance Shares granted to Covered Employees which
awards are intended to constitute Performance Based Compensation the applicable
performance goal(s) for such Awards shall be selected from those listed in
Article 11.
9.3 Earning of Performance Units/ Performance Shares. Subject to the
terms of this Plan, after the applicable Performance Period has ended, the
holder of Performance Units/ Performance Shares shall be entitled to receive
payout on the value and number of Performance Units/ Performance Shares earned
by the Participant over the Performance Period, to be determined as a function
of the extent to which the corresponding performance goals have been achieved.
9.4 Form and Timing of Payment of Performance Units/ Performance Shares.
Payment of earned Performance Units/ Performance Shares shall be as determined
by the Committee and as evidenced in the Award Agreement. Subject to the terms
of the Plan, the Committee, in its sole discretion, may pay earned Performance
Units/ Performance Shares in the form of cash or in Shares (or in a combination
thereof) equal to the value of the earned Performance Units/ Performance Shares
at the close of the applicable Performance Period, or as soon as practicable
after the end of the Performance Period. Any Shares may be granted subject to
any restrictions deemed appropriate by the Committee and as evidenced in the
Award Agreement. The determination of the Committee with respect to the form of
payout of such Awards and restrictions shall be set forth in the Award Agreement
pertaining to the grant of the Award.
9.5 Dividends and Other Distributions. At the discretion of the
Committee, Participants holding Performance Shares may be entitled to receive
dividend equivalents with respect to dividends declared with respect to the
Shares. Such dividend equivalents may be in the form of cash, Shares, Restricted
Stock, or Restricted Stock Units and may be subject to such accrual, forfeiture,
or payout restrictions as determined by the Committee in its sole discretion and
as evidenced in the Award Agreement.
9.6 Termination of Employment. Each Award Agreement shall set forth the
extent to which the Participant shall have the right to retain Performance Units
and/or Performance Shares following termination of the Participant's employment
with or provision of services to the Company, its Affiliates, and/or its
Subsidiaries, as the case may be. Such provisions shall be determined in the
sole discretion of the Committee, shall be included in the Award Agreement
entered into with each Participant, need not be uniform among all Awards of
Performance Units or Performance Shares issued pursuant to the Plan, and may
reflect distinctions based on the reasons for termination.
9.7 Non-Transferability. Except as otherwise provided in a Participant's
Award Agreement or otherwise determined at any time by the Committee,
Performance Units/ Performance Shares may not be sold, transferred, pledged,
assigned, or otherwise alienated or hypothecated, other than by will or by the
laws of descent and distribution. Further, except as otherwise provided in a
Participant's Award Agreement or otherwise determined at any time by the
Committee, a Participant's rights under the Plan shall be exercisable during his
or her lifetime only by such Participant.
Article 10. Cash-Based Awards and Other Stock-Based Awards
10.1 Grant of Cash-Based Awards. Subject to the terms and provisions of
the Plan, the Committee, at any time and from time to time, may grant Cash-Based
Awards to Participants in such amounts and upon such terms as the Committee may
determine.
10.2 Other Stock-Based Awards. The Committee may grant other types of
equity-based or equity-related Awards not otherwise described by the terms of
this Plan (including the grant or offer for sale of unrestricted Shares) in such
amounts and subject to such terms and conditions, as the Committee shall
determine. Such Awards may involve the transfer of actual Shares to
Participants, or payment in cash or otherwise of amounts based on the value of
Shares and may include, without limitation, Awards designed to comply with or
take advantage of the applicable local laws of jurisdictions other than the
United States.
10.3 Value of Cash-Based and Other Stock-Based Awards. Each Cash-Based
Award shall specify a payment amount or payment range as determined by the
Committee. Each Other Stock-Based Award shall be expressed in terms of Shares or
units based on Shares, as determined by the Committee. The Committee may
establish performance goals in its discretion. If the Committee exercises its
discretion to establish performance goals, the number and/or value of Cash-Based
Awards or Other Stock-Based Awards that will be paid out to the Participant will
depend on the extent to which the performance goals are met. In the case of
Cash-Based Awards and/or Other Stock-Based Awards granted to Covered Employees
which Awards are intended to constitute Performance Based Compensation the
applicable performance goals for such Awards shall be selected from those listed
in Article 11.
10.4 Payment of Cash-Based Awards and Other Stock-Based Awards. Payment,
if any, with respect to a Cash-Based Award or an Other Stock-Based Award shall
be made in accordance with the terms of the Award, in cash or Shares as the
Committee determines.
10.5 Termination of Employment. The Committee shall determine the extent
to which the Participant shall have the right to receive Cash-Based Awards and
Other Stock-Based Awards following termination of the Participant's employment
with or provision of services to the Company, its Affiliates, and/or its
Subsidiaries, as the case may be. Such provisions shall be determined in the
sole discretion of the Committee, such provisions may be included in an
agreement entered into with each Participant, but need not be uniform among all
Awards of Cash-Based Awards and Other Stock-Based Awards issued pursuant to the
Plan, and may reflect distinctions based on the reasons for termination.
10.7 Non-Transferability. Except as otherwise determined by the
Committee, neither Cash-Based Awards nor Other Stock-Based Awards may be sold,
transferred, pledged, assigned, or otherwise alienated or hypothecated, other
than by will or by the laws of descent and distribution. Further, except as
otherwise provided by the Committee, a Participant's rights under the Plan, if
exercisable, shall be exercisable during his or her lifetime only by such
Participant. With respect to those Cash-Based Awards or Other Stock-Based
Awards, if any, that are permitted to be transferred to another person,
references in the Plan to exercise or payment of such Awards by or to the
Participant shall be deemed to include, as determined by the Committee, the
Participant's permitted transferee.
Article 11. Performance Measures
11.1 Performance Measures. Unless and until the Committee proposes for
shareholder vote and the shareholders approve a change in the general
Performance Measures set forth in this Article 11, the performance goals upon
which the payment or vesting of an Award to a Covered Employee that is intended
to qualify as Performance-Based Compensation shall be limited to the following
Performance Measures:
(a) net income;
(b) earnings per share;
(c) sales growth;
(d) income before taxes;
(e) net operating profit;
(f) return measures (including, but not limited to, return on assets,
capital, equity, or sales);
(g) cash flow (including, but not limited to, operating cash flow and free
cash flow);
(h) earnings before, interest, taxes, depreciation, and/or amortization;
(i) operating margins including gross profit, operating expenses and
operating income as a percentage of sales;
(j) productivity ratios;
(k) share price (including, but not limited to, growth measures and total
shareholder return);
(l) expense targets;
(m) operating efficiency;
(n) customer satisfaction;
(o) working capital targets; and
(p) economic value-added.
Any Performance Measure(s) may be used to measure the performance of the
Company, Subsidiary, and/or Affiliate as a whole or any business unit of the
Company, Subsidiary, and/or Affiliate or any combination thereof, as the
Committee may deem appropriate, or any of the above Performance Measures as
compared to the performance of a group of comparator companies, or published or
special index that the Committee, in its sole discretion, deems appropriate, or
the Company may select Performance Measure (j) above as compared to various
stock market indices. The Committee also has the authority to provide for
accelerated vesting of any Award based on the achievement of performance goals
pursuant to the Performance Measures specified in this Article 11.
11.2 Evaluation of Performance. The Committee may provide in any such
Award that any evaluation of performance may include or exclude any of the
following events that occurs during a Performance Period: (a) asset write-downs,
(b) litigation or claim judgments or settlements, (c) the effect of changes in
tax laws, accounting principles, or other laws or provisions affecting reported
results, (d) any reorganization and restructuring programs, (e) 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 shareholders
for the applicable year, (f) acquisitions or divestitures, and (g) foreign
exchange gains and losses. To the extent such inclusions or exclusions affect
Awards to Covered Employees, they shall be prescribed in a form that meets the
requirements of Code Section 162(m) for deductibility.
11.3 Adjustment of Performance-Based Compensation. Awards that are
designed to qualify as Performance-Based Compensation, and that are held by
Covered Employees, may not be adjusted upward. The Committee shall retain the
discretion to adjust such Awards downward, either on a formula or discretionary
basis or any combination, as the Committee determines.
11.4 Committee Discretion. In the event that applicable tax and/or
securities laws change to permit Committee discretion to alter the governing
Performance Measures without obtaining shareholder approval of such changes, the
Committee shall have sole discretion to make such changes without obtaining
shareholder approval. In addition, in the event that the Committee determines
that it is advisable to grant Awards that shall not qualify as Performance-Based
Compensation, the Committee may make such grants without satisfying the
requirements of Code Section 162(m) and may base vesting on Performance Measures
in addition to or other than those set forth in Section 11.1.
Article 12. Covered Employee Annual Incentive Award
Notwithstanding any other provision of this Plan to the contrary, for each
Plan Year a Covered Employee Annual Incentive Award shall be paid to any
Participant who is an executive officer of the Company and, in the Committee's
determination, is likely to be a "covered employee" within the meaning of
Section 162(m) of the Code only in accordance with the provisions of this
Article. Within the first ninety (90) days of each Plan Year, the Committee
shall establish (i) the performance goals, selected from the list of Performance
Measures in Section 11.1, that must be achieved in order for a Covered Employee
Annual Incentive Award to be paid to any Covered Employee for the Plan Year, and
(ii) the amount of each Covered Employee's Covered Employee Annual Incentive
Award that could be paid based on attainment of such performance goals for the
Plan Year. As soon as practicable following the end of each Plan Year, the
Committee shall certify whether each Covered Employee otherwise satisfied the
requirements of this Plan to receive a Covered Employee Annual Incentive Award.
Upon the Committee's certification thereof, the Covered Employee Annual
Incentive Awards shall be paid to the Covered Employees or such lesser amounts
as the Committee in its discretion shall prescribe taking into account the
otherwise applicable provisions of this Plan and the performance of the Company
and the Covered Employees during the Plan Year, provided that such action does
not preclude the Covered Employee Annual Incentive Award to any Covered Employee
from qualifying as performance based compensation under Section 162(m) of the
Code. The Committee shall not exercise any discretion in its administration of
the Plan that would be inconsistent with the purposes of Section 162(m) of the
Code.
Article 13. Non-Employee Director Awards
13.1 Non-Employee Director Awards. Non-Employee Directors may only be
granted Awards under the Plan in accordance with this Article 13 and which shall
not be subject to management's discretion. From time to time, the Board shall
set the amount(s) and type(s) of equity awards that shall be granted to all
Non-employee Directors on a periodic, nondiscriminatory basis pursuant to the
Plan, as well as any additional amount(s), if any, to be awarded, also on a
periodic, nondiscriminatory basis, based on each of the following: the number of
committees of the Board on which a Non-Employee Director serves, service of a
Non-Employee Director as the chair of a Committee of the Board, service of a
Non-Employee Director as Chairman of the Board, or the first selection or
appointment of an individual to the Board as a Non-Employee Director. Subject to
the limits set forth in Section 4.1(d) and the foregoing, the Board shall grant
such Awards to Non-Employee Directors and the Non-Employee Chairman of the
Board, and grant New Non-Employee Director Awards, as it shall from time to time
determine.
13.2 Non-Employee Director Deferrals.
(a) Mandatory Deferral: Fifty percent (50%) of each payment comprising any
annual retainer fees payable by the Company to each Non-Employee
Director shall automatically be withheld by the Company and deferred
hereunder, except to the extent that the Non-Employee Director has
made an Optional Deferral Election in accordance with Section 13.2(b).
(b) Optional Deferral Elections: A Non-Employee Director may submit a
written election to the Secretary of the Company not to have the
deferral provisions of Section 13.2(a) apply to the Non- Employee
Director's retainer fees or to have a deferral of a percentage other
than fifty percent (50%) apply (an "Optional Deferral Election") as
follows:
(i) Prior to the Effective Date of the Plan, each Non-Employee
Director may submit an Optional Deferral Election, which may
specify that no portion of the Non-Employee Director's retainer
fees will be deferred under Section 13.2 or that a selected
percentage other than fifty percent (50%) of the Non-Employee
Director's retainer fees will be deferred under Section 13.2.
Such Optional Deferral Election will be effective unless and
until it is revoked in writing.
(ii) Each Non-Employee Director initially elected after the Effective
Date of the Plan may submit an Optional Deferral Election prior
to the Non-Employee Director's receipt of any portion of any
retainer fee which may specify that no portion of the
Non-Employee Director's retainer fees will be deferred under
Section 13.2 or that a selected percentage other than fifty
percent (50%) of the Non-Employee Director's retainer fees will
be deferred under Section 13.2, such Optional Deferral Election
will be effective unless and until it is revoked in writing.
(iii)On an ongoing basis, each Non-Employee Director who has not made
a standing Optional Deferral Election may make an Optional
Deferral Election requesting the cessation of deferrals from his
or her future payments of annual retainer fees or specifying that
a selected percentage other than fifty percent (50%) of the
Non-Employee Director's retainer fees will be deferred under
Section 13.2. In addition, any Non-Employee Director who has
previously made a standing Optional Deferral Election may submit
a new Optional Deferral Election, which will supersede the prior
Optional Deferral Election. Any such election will take effect as
of the commencement of the calendar year following the year in
which the election is made and will be honored unless and until
it is revoked in writing prior to the commencement of the
calendar year in which such revocation is to become effective.
However, any amounts deferred prior to the effective date of the
new Optional Deferral Election will continue to be deferred under
Section 13.2.
(c) Maintenance of Deferred Accounts: A recordkeeping account shall be
established and maintained in the name of each Non-Employee Director.
Amounts which are deferred hereunder shall be converted into units
("Units") based on the Fair Market Value of the Company's common
stock, and such Units (including any fractional Units) shall be
credited to the Non-Employee Director's account. The conversion and
crediting of deferrals shall occur as of the date that such deferred
amounts would otherwise have been payable to the Non- Employee
Director. Dividend equivalents earned on the basis of whole Units
previously credited to a Non-Employee Director's account shall be
credited to the Non-Employee Director's account as Units, including
fractional Units, on the date any such dividend has been declared to
be payable on Shares. Units, excluding fractional Units, shall earn
dividend equivalents from the date such Units are credited to a
Non-Employee Director's account until the date such Units are
converted into Shares and distributed. Dividend equivalents shall be
computed by multiplying the dividend paid per Share during the period
Units are credited to a Non-Employee Director's account times the
number of whole Units so credited, but Units shall earn such dividend
equivalents only as, if, and when dividends are declared and paid on
Shares.
(d) Method of Distribution of Deferrals: No distribution of deferrals may
be made except as provided in this Section 13.2(d) or in a deferral
agreement between the Company and a Non-employee Director. As of the
last business day of the calendar month in which a Non-Employee
Director's service as a director of the Company ceases, each whole
Unit then credited to the Non-Employee Director's deferral account
shall be converted into one Share and any fractional Unit shall be
converted into cash by multiplying such fraction by the Fair Market
Value of a Share as of such date. Such Shares and cash shall be
distributed to the Non-Employee Director in a single lump sum, as soon
as practicable following such date. At the written request of a
Non-Employee Director, the Board of Directors, in its sole discretion,
may accelerate payment of amounts deferred hereunder, upon a showing
of unforeseeable emergency by such Non-Employee Director. For purposes
of this paragraph, "unforeseeable emergency" is defined as severe
financial hardship resulting from extraordinary and unanticipated
circumstances arising as a result of one or more recent events beyond
the control of the Non-Employee Director. In any event, payment may
not be made to the extent such emergency is or may be relieved: (1)
through reimbursement or compensation by insurance or otherwise; (2)
by liquidation of the Non-Employee Director's assets, to the extent
the liquidation of such assets would not, itself, cause severe
financial hardship; and (3) by cessation of deferrals under the Plan.
Examples of events that are not considered to be unforeseeable
emergencies include the need to send a Non-Employee Director's child
to college or the desire to purchase a home.
Article 14. Dividend Equivalents
Any Participant selected by the Committee may be granted dividend
equivalents based on the dividends declared on Shares that are subject to any
Award, to be credited as of dividend payment dates, during the period between
the date the Award is granted and the date the Award is exercised, vests or
expires, as determined by the Committee. Such dividend equivalents shall be
converted to cash or additional Shares by such formula and at such time and
subject to such limitations as may be determined by the Committee.
Dividend equivalents granted with respect to Options or SARs that are
intended to be Performance-Based Compensation shall be payable, with respect to
pre-exercise periods, regardless of whether such Option or SAR is subsequently
exercised.
Article 15. Beneficiary Designation
Each Participant under the Plan may, from time to time, name any
beneficiary or beneficiaries (who may be named contingently or successively) to
whom any benefit under the Plan is to be paid in case of his or her death before
he or she receives any or all of such benefit. Each such designation shall
revoke all prior designations by the same Participant, shall be in a form
prescribed by the Committee, and will be effective only when filed by the
Participant in writing with the Company during the Participant's lifetime. In
the absence of any such designation, benefits remaining unpaid at the
Participant's death shall be paid to the Participant's estate.
Article 16. Deferrals
The Committee may permit or, in an Award Agreement, require officers or
Non-Employee Directors to defer receipt of the payment of cash or the delivery
of Shares that would otherwise be due to such officers or Non-Employee Directors
by virtue of the exercise of an Option or SAR, the lapse or waiver of
restrictions with respect to Restricted Stock or Restricted Stock Units, or the
satisfaction of any requirements or performance goals with respect to
Performance Shares, Performance Units, Cash-Based Awards, Covered Employee
Annual Incentive Awards, Other Stock-Based Awards, or Cash-Based Awards. If any
such deferral election is required or permitted, the Committee shall, in its
sole discretion, establish rules and procedures for such payment deferrals.
Article 17. Rights of Participants
17.1 Employment. Nothing in the Plan or an Award Agreement shall
interfere with or limit in any way the right of the Company, its Affiliates,
and/or its Subsidiaries, to terminate any Participant's employment or service on
the Board or to the Company at any time or for any reason not prohibited by law,
nor confer upon any Participant any right to continue his or her employment or
service as a Director or Third Party Service Provider for any specified period
of time.
Neither an Award nor any benefits arising under this Plan shall constitute
an employment contract with the Company, its Affiliates, and/or its Subsidiaries
and, accordingly, subject to Articles 3 and 19, this Plan and the benefits
hereunder may be terminated at any time in the sole and exclusive discretion of
the Committee without giving rise to any liability on the part of the Company,
its Affiliates, and/or its Subsidiaries.
17.2 Participation. No individual shall have the right to be selected
to receive an Award under this Plan, or, having been so selected, to be selected
to receive a future Award.
17.3 Rights as a Shareholder. Except as otherwise provided herein, a
Participant shall have none of the rights of a shareholder with respect to
Shares covered by any Award until the Participant becomes the record holder of
such Shares.
17.4 No Third Party Beneficiaries. This Plan does not confer any right
or remedy other than to Participants, the Company, and their respective
permitted successors and assigns, and no action may be brought against the
Company, the Board, the Committee, or any of the Committee's delegates by any
third party claiming as a third party beneficiary to the Plan or any Award
Agreement.
Article 18. Corporate Events
Unless otherwise set forth in the Award Agreement, upon a dissolution or
liquidation of the Company, or a sale of substantially all of the assets of the
Company, its Subsidiaries, and its Affiliates and the acquiring entity does not
substitute new and equivalent Awards for the outstanding Awards hereunder, or a
merger or consolidation in which the surviving corporation does not substitute
new and equivalent Awards for the outstanding Awards hereunder, (each a
"Corporate Event") each Participant shall be given at least ten days prior
written notice of the occurrence of such Corporate Event, every Award
outstanding hereunder shall become fully vested and exercisable, all
restrictions on such Awards shall lapse and each Participant may exercise any
Award that is in the form of an Option or SAR, in whole or in part, prior to or
simultaneously with such Corporate Event. Unless otherwise set froth in the
Award Agreement, upon the occurrence of any such Corporate Event, any Option or
SAR not exercised pursuant hereto shall terminate. Unless otherwise set forth in
the Award Agreement, furthermore, upon the occurrence of a Corporate Event, the
Company shall have the option to cancel every outstanding Award hereunder (other
than Options and SARs outstanding the cancellation which would be handled by the
preceding sentence) and to pay the holder of such Awards the value of those
Awards as determined by the Board or Committee in their sole discretion.
Article 19. Amendment, Modification, Suspension, and Termination
19.1 Amendment, Modification, Suspension, and Termination. Subject to
Section 19.3, the Committee may, at any time and from time to time, alter,
amend, modify, suspend, or terminate the Plan and any Award Agreement in whole
or in part; provided, however, that, without the prior approval of the Company's
shareholders and except as provided in Sections 4.4 and 6.11 hereof, Options
issued under the Plan will not be repriced, replaced, or regranted through
cancellation, or by lowering the Option Price of a previously granted Option,
and no amendment of the Plan shall be made without shareholder approval if
shareholder approval is required by law, regulation, or stock exchange rule,
including, but not limited to, the Securities Exchange Act of 1934, as amended,
the Internal Revenue Code of 1986, as amended, and, if applicable, the New York
Stock Exchange Listed Company Manual.
19.2 Adjustment of Awards Upon the Occurrence of Certain Unusual or
Non-recurring Events. The Committee shall, as and in the manner it deems
necessary or appropriate, make adjustments in the terms and conditions of, and
the criteria included in, Awards in recognition of unusual, unforeseen or
nonrecurring events (including, without limitation, the events described in
Section 4.4 hereof, restructuring charges and income or expenses related to
acquisitions and dispositions, tax and litigation settlements, and capital
projects not contemplated at the time an Award was made) affecting the
Corporation or the financial statements of the Corporation or of changes in
applicable laws, regulations, or accounting principles, in order to prevent the
unintended dilution or enlargement of the benefits or potential benefits
intended to be made available under the Plan. The determination of the Committee
as to the foregoing adjustments shall be conclusive and binding on Participants
under the Plan.
19.3 Awards Previously Granted. Notwithstanding any other provision of
the Plan to the contrary, no termination, amendment, suspension, or modification
of the Plan or an Award Agreement shall adversely affect in any material way any
Award previously granted under the Plan, without the written consent of the
Participant holding such Award or any predecessor plans.
Article 20. Withholding
20.1 Tax Withholding. The Company shall have the power and the right to
deduct or withhold, or require a Participant to remit to the Company, the
minimum statutory amount to satisfy federal, state, and local taxes, domestic or
foreign, required by law or regulation to be withheld with respect to any
taxable event arising as a result of this Plan.
20.2 Share Withholding. With respect to withholding required upon the
exercise of Options or SARs, upon the lapse of restrictions on Restricted Stock
and Restricted Stock Units, or upon the achievement of performance goals related
to Performance Shares, or any other taxable event arising as a result of an
Award granted hereunder, the Committee may decide to permit Participants to
satisfy the withholding requirement, in whole or in part, by having the Company
withhold Shares having a Fair Market Value on the date the tax is to be
determined equal to the minimum statutory total tax that could be imposed on the
transaction. If permitted by the Committee, all Participant elections related to
share withholding shall be irrevocable, made in writing, and signed by the
Participant, and shall be subject to any restrictions or limitations that the
Committee, in its sole discretion, deems appropriate.
Article 21. Successors
All obligations of the Company under the Plan with respect to Awards
granted hereunder shall be binding on any successor to the Company, whether the
existence of such successor is the result of a direct or indirect purchase,
merger, consolidation, or otherwise, of all or substantially all of the business
and/or assets of the Company.
Article 22. General Provisions
22.1 Forfeiture Events.
(a) The Committee may specify in an Award Agreement that the Participant's
rights, payments, and benefits with respect to an Award shall be
subject to reduction, cancellation, forfeiture, or recoupment upon the
occurrence of certain specified events, in addition to any otherwise
applicable vesting or performance conditions of an Award. Such events
may include, but shall not be limited to, termination of employment
for cause, termination of the Participant's provision of services to
the Company, Affiliate, and/or Subsidiary, violation of material
Company, Affiliate, and/or Subsidiary policies, breach of
noncompetition, confidentiality, or other restrictive covenants that
may apply to the Participant, or other conduct by the Participant that
is detrimental to the business or reputation of the Company, its
Affiliates, and/or its Subsidiaries.
(b) If Section 304 of the Sarbanes-Oxley Act of 2002 applies to any Award
or payment in settlement of any Award, the Participant shall and
hereby agrees to reimburse the Company for any such amounts or Awards
as provided by Section 304 of the Sarbanes-Oxley Act of 2002.
22.2 Legend. The certificates for Shares may include any legend which the
Committee deems appropriate to reflect any restrictions on transfer of such
Shares.
22.3 Gender and Number. Except where otherwise indicated by the context,
any masculine term used herein also shall include the feminine, the plural shall
include the singular, and the singular shall include the plural.
22.4 Severability. In the event any provision of the Plan shall be held
illegal or invalid for any reason, the illegality or invalidity shall not affect
the remaining parts of the Plan, and the Plan shall be construed and enforced as
if the illegal or invalid provision had not been included.
22.5 Requirements of Law. The granting of Awards and the issuance of
Shares under the Plan shall be subject to all applicable laws, rules, and
regulations, and to such approvals by any governmental agencies or national
securities exchanges as may be required.
22.6 Delivery of Title. The Company shall have no obligation to issue or
deliver evidence of title for Shares issued under the Plan prior to:
(a) Obtaining any approvals from governmental agencies that the Company
determines are necessary or advisable; and
(b) Completion of any registration or other qualification of the Shares
under any applicable national or foreign law or ruling of any
governmental body that the Company determines to be necessary or
advisable.
22.7 Inability to Obtain Authority. The inability of the Company to
obtain authority from any regulatory body having jurisdiction, which authority
is deemed by the Company's counsel to be necessary to the lawful issuance and
sale of any Shares hereunder, shall relieve the Company of any liability in
respect of the failure to issue or sell such Shares as to which such requisite
authority shall not have been obtained.
22.8 Investment Representations. The Committee may require any person
receiving Shares pursuant to an Award under this Plan to represent and warrant
in writing that the person is acquiring the Shares for investment and without
any present intention to sell or distribute such Shares.
22.9 Employees, Directors, Third Party Service Providers, and
Participants Based Outside of the United States. Notwithstanding any provision
of the Plan to the contrary, in order to comply with the laws in other countries
in which the Company, its Affiliates, and/or its Subsidiaries operate or have
Employees, Directors, Third Party Service Providers, or Participants, the
Committee, in its sole discretion, shall have the power and authority to:
(a) Determine which Affiliates and Subsidiaries shall be covered by the
Plan;
(b) Determine which Employees, Directors, Third Party Service Providers,
or Participants outside the United States are eligible to participate
in the Plan;
(c) Modify the terms and conditions of any Award granted to Employees,
Directors, Third Party Service Providers, or Participants outside the
United States to comply with applicable foreign laws;
(d) Establish subplans and modify exercise procedures and other terms and
procedures, to the extent such actions may be necessary or advisable.
Any subplans and modifications to Plan terms and procedures
established under this Section 22.9 by the Committee shall be attached
to this Plan document as appendices; and
(e) Take any action, before or after an Award is made, that it deems
advisable to obtain approval or comply with any necessary local
government regulatory exemptions or approvals.
Notwithstanding the above, the Committee may not take any actions
hereunder, and no Awards shall be granted, that would violate applicable law.
22.10 Uncertificated Shares. To the extent that the Plan provides for
issuance of certificates to reflect the transfer of Shares, the transfer of such
Shares may be effected on a uncertificated basis, to the extent not prohibited
by applicable law or the rules of any stock exchange.
22.11 Unfunded Plan. Participants shall have no right, title, or interest
whatsoever in or to any investments that the Company, and/or its Subsidiaries,
and/or Affiliates may make to aid it in meeting its obligations under the Plan.
Nothing contained in the Plan, and no action taken pursuant to its provisions,
shall create or be construed to create a trust of any kind, or a fiduciary
relationship between the Company and any Participant, beneficiary, legal
representative, or any other person. To the extent that any person acquires a
right to receive payments from the Company, and/or its Subsidiaries, and/or
Affiliates under the Plan, such right shall be no greater than the right of an
unsecured general creditor of the Company, a Subsidiary, or an Affiliate, as the
case may be. All payments to be made hereunder shall be paid from the general
funds of the Company, a Subsidiary, or an Affiliate, as the case may be and no
special or separate fund shall be established and no segregation of assets shall
be made to assure payment of such amounts except as expressly set forth in the
Plan. The Plan is not subject to ERISA.
22.12 No Fractional Shares. No fractional Shares shall be issued or
delivered pursuant to the Plan or any Award. The Committee shall determine
whether cash, Awards, or other property shall be issued or paid in lieu of
fractional Shares or whether such fractional Shares or any rights thereto shall
be forfeited or otherwise eliminated.
22.13 Retirement and Welfare Plans. Neither Awards made under the Plan nor
Shares or cash paid pursuant to such Awards, except pursuant to Covered Employee
Annual Incentive Awards, will be included as "compensation" for purposes of
computing the benefits payable to any Participant under the Company's or any
Subsidiary's or Affiliate's retirement plans (both qualified and non-qualified)
or welfare benefit plans unless such other plan expressly provides that such
compensation shall be taken into account in computing a participant's benefit.
22.14 Nonexclusivity of the Plan. The adoption of this Plan shall not be
construed as creating any limitations on the power of the Board or Committee to
adopt such other compensation arrangements as it may deem desirable for any
Participant.
22.15 No Constraint on Corporate Action. Nothing in this Plan shall be
construed to: (i) limit, impair, or otherwise affect the Company's or a
Subsidiary's or an Affiliate's right or power to make adjustments,
reclassifications, reorganizations, or changes of its capital or business
structure, or to merge or consolidate, or dissolve, liquidate, sell, or transfer
all or any part of its business or assets; or, (ii) limit the right or power of
the Company or a Subsidiary or an Affiliate to take any action which such entity
deems to be necessary or appropriate.
22.16 Right of First Refusal. Unless otherwise set forth in the Award
Agreement, shares acquired under the Plan by a Participant may not be sold or
otherwise disposed of in any way (including a transfer or gift or by reason of
the death of the Participant) until the Participant (or his legal
representative, legatee or distributee of his or her estate) first offers to
sell the Shares to the Company as herein provided. The price per Share at which
the Shares shall be offered to the Company shall be the closing price per Share
reported on the Consolidated Tape (as such price is reported in the Wall Street
Journal or if such publication is unavailable then Reuters) on the date the
Participant's offer is received by the Secretary of the Company. If the Company
fails to accept the offer to purchase such Shares within seven days after such
date, the Shares shall thereafter be free of all restrictions under the Plan.
22.17 Ratification of Actions. By accepting any Award or other benefit
under the Plan, each Participant and each person claiming under or through each
Participant shall be conclusively deemed to have indicated his or her acceptance
and ratification of, and consent to, any action taken under the Plan by the
Company, the Board or the Committee.
22.18 Governing Law. The Plan and each Award Agreement shall be governed
by the laws of the State of New York excluding any conflicts or choice of law
rule or principle that might otherwise refer construction or interpretation of
the Plan to the substantive law of another jurisdiction. Unless otherwise
provided in the Award Agreement, recipients of an Award under the Plan are
deemed to submit to the exclusive jurisdiction and venue of the federal or state
courts of New York, to resolve any and all issues that may arise out of or
relate to the Plan or any related Award Agreement.
22.19 Jury Waiver. Every Participant, every person claiming under or
through a Participant, and the Company hereby waives to the fullest extent
permitted by applicable law any right to a trial by jury with respect to any
litigation directly or indirectly arising out of, under, or in connection with
the Plan or any Award Agreement issued pursuant to the Plan.