SAEXPLORATION HOLDINGS, INC. (NASDAQ:SAEX) Files An 8-K Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers
Item 5.02. Departure of Directors or Certain Officers; Election
of Directors; Appointment of Certain Officers; Compensatory
Arrangements of Certain Officers.
Amended and Restated 2016 Long-Term Incentive Plan
On May 4, 2017, the Board of Directors approved and adopted,
subject to effectiveness, the Companys Amended and Restated 2016
Long-Term Incentive Plan (the Amended and Restated Plan). On May
8, 2017, the Company received written consents from the holders
of a majority of the shares of common stock of the Company
(Common Stock) outstanding (the Consenting Stockholders)
approving and adopting, subject to effectiveness, the Amended and
Restated Plan. The Amended and Restated Plan was approved by
stockholder written consent to Section 228 of the Delaware
General Corporation Law and Section 2.12 of the Companys bylaws,
which permit any action that may be taken at a meeting of the
stockholders to be taken by written consent by the holders of the
number of shares of stock required to approve the action at a
meeting at which all shares entitled to vote were present and
voted. In connection therewith, the Company will file an
Information Statement on Schedule 14C with the Securities and
Exchange Commission (the Information Statement) and the Amended
and Restated Plan will become effective twenty calendar days
following the mailing of the Information Statement.
subject to effectiveness, the Companys Amended and Restated 2016
Long-Term Incentive Plan (the Amended and Restated Plan). On May
8, 2017, the Company received written consents from the holders
of a majority of the shares of common stock of the Company
(Common Stock) outstanding (the Consenting Stockholders)
approving and adopting, subject to effectiveness, the Amended and
Restated Plan. The Amended and Restated Plan was approved by
stockholder written consent to Section 228 of the Delaware
General Corporation Law and Section 2.12 of the Companys bylaws,
which permit any action that may be taken at a meeting of the
stockholders to be taken by written consent by the holders of the
number of shares of stock required to approve the action at a
meeting at which all shares entitled to vote were present and
voted. In connection therewith, the Company will file an
Information Statement on Schedule 14C with the Securities and
Exchange Commission (the Information Statement) and the Amended
and Restated Plan will become effective twenty calendar days
following the mailing of the Information Statement.
The Amended and Restated Plan combines, amends, and restates (i)
the Companys 2016-Long Term Incentive Plan effective September 4,
2016 (the 2016 Long-Term Incentive Plan), and (ii) the Companys
2013 Non-Employee Director Share Incentive Plan effective
November 1, 2013, and amended effective August 3, 2016 (as
amended, the 2013 Non-Employee Director Plan, and collectively
with the 2016 Long-Term Incentive Plan, the Original Plans).
the Companys 2016-Long Term Incentive Plan effective September 4,
2016 (the 2016 Long-Term Incentive Plan), and (ii) the Companys
2013 Non-Employee Director Share Incentive Plan effective
November 1, 2013, and amended effective August 3, 2016 (as
amended, the 2013 Non-Employee Director Plan, and collectively
with the 2016 Long-Term Incentive Plan, the Original Plans).
The Amended and Restated Plan (i) combines the shares available
for issuance under the Original Plans into a common pool of
Common Stock, (ii) allows the granting of awards for payment of
annual bonuses provided for under certain employment agreements
between the Company and certain of its officers and under its
bonus programs for other employees, and (iii) adopts such other
amendments to make the Amended and Restated Plan compatible for
granting awards to both employees and non-employee directors.
for issuance under the Original Plans into a common pool of
Common Stock, (ii) allows the granting of awards for payment of
annual bonuses provided for under certain employment agreements
between the Company and certain of its officers and under its
bonus programs for other employees, and (iii) adopts such other
amendments to make the Amended and Restated Plan compatible for
granting awards to both employees and non-employee directors.
Summary of Amendments
A summary of material amendments to the 2016 Long-Term Incentive
Plan and provisions of the 2013 Non-Employee Director Plan that
were not incorporated into the Amended and Restated Plan is set
forth below:
Plan and provisions of the 2013 Non-Employee Director Plan that
were not incorporated into the Amended and Restated Plan is set
forth below:
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The Amended and Restated Plan combines the shares available
for issuance under the Original Plans into a common pool of Common Stock. The only Common Stock subject to the Amended and Restated Plan is that Common Stock current subject to the Original Plans; no additional shares will be issued under or be subject to the Amended and Restated Plan. |
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The Amended and Restated Plan allows the granting of
restricted shares for payment of annual bonuses provided for under certain employment agreements between the Company and certain of its officers and under its bonus programs for other employees (Bonus Awards). The Compensation Committee will determine awards to officers eligible to receive Common Stock as Bonus Awards. |
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The Amended and Restated Plan provides that non-employee
directors are eligible for awards of restricted shares or NSOs and authorizes the Board or the Compensation Committee to grant and administer such awards. |
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Unless otherwise provided in an award agreement, awards
made to non-employee directors will terminate and become null and void upon termination of the non-employee directors service as a director of the Company, unless (a) such service is terminated by the disability of the non-employee director (in which case any Option held by such non-employee director remains exercisable at any time up to and including one year after the date of termination of service), or (b) the non-employee director fails to be nominated for re-election by the Company or fails to be re-elected by the stockholders following nomination by the Company (in which case any Option held by such non-employee director will remain exercisable at any time up to and including three months after the date of such termination of service). In no event will such Option remain exercisable after the tenth anniversary of the date of grant. |
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The 2016 Long-Term Incentive Plan required that 622,955 of
the shares reserved for issuance under the 2016 Long-Term Incentive Plan be granted by the Committee to certain employees of the Company or any subsidiary identified in the 2016 Long-Term Incentive Plan as soon as administratively practicable after receipt by the Company of stockholder approval of the 2016 Long-Term Incentive Plan and the effectiveness of stockholder approval of the 2016 Long-Term Incentive Plan, in the form of stock units and options, on the terms and subject to the conditions set forth in the 2016 Long-Term Incentive Plan (the MIP Shares). The MIP Shares were granted on September 26,>2016.>Because the MIP Shares have already been granted, |
the Amended and Restated Plan does not address the MIP Shares
or any plan provisions or award agreements relating to the MIP
Shares.
or any plan provisions or award agreements relating to the MIP
Shares.
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The Amended and Restated Plan uses the administrative and
procedural provisions of the 2016 Long-Term Incentive Plan, including those relating to the change of control and protection against dilution. The administrative and procedural provisions of the 2013 Non-Employee Director Plan were not incorporated into the Amended and Restated Plan. |
Purpose
The purpose of the Amended and Restated Plan is to continue to
promote the long-term success of the Company and create value
for its stockholders. The Amended and Restated Plan is intended
to:
promote the long-term success of the Company and create value
for its stockholders. The Amended and Restated Plan is intended
to:
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encourage employees to focus on long-range
objectives; |
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help the Company attract and retain employees and
non-employee directors with exceptional qualifications; and |
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further align employees and non-employee directors
interests with those of the Companys other stockholders through compensation that is based on its Common Stock. |
Eligibility
Employees of the Company (including employees of our
subsidiaries or affiliates) and each member of our Board of
Directors who is not an employee of the Company or any of our
subsidiaries are eligible to receive awards under the Amended
and Restated Plan.
subsidiaries or affiliates) and each member of our Board of
Directors who is not an employee of the Company or any of our
subsidiaries are eligible to receive awards under the Amended
and Restated Plan.
Shares Subject to the Amended and Restated Plan
The Amended and Restated Plan combines into a common pool of
Common Stock the shares subject to each Original Plan. No
further awards will be made under the Original Plans upon the
effectiveness of the Amended and Restated Plan, and the
remaining shares available for future awards under the Original
Plans will be reserved for issuance under the Amended and
Restated Plan. Awards already granted under the Original Plans
shall continue to be administered under the Original Plans
until such time as those options are exercised, expired or
become unexercisable for any reason.
Common Stock the shares subject to each Original Plan. No
further awards will be made under the Original Plans upon the
effectiveness of the Amended and Restated Plan, and the
remaining shares available for future awards under the Original
Plans will be reserved for issuance under the Amended and
Restated Plan. Awards already granted under the Original Plans
shall continue to be administered under the Original Plans
until such time as those options are exercised, expired or
become unexercisable for any reason.
Under the Amended and Restated Plan, subject to adjustment,
total awards that may be issued or transferred (i) upon the
exercise of options or stock appreciation rights, (ii) as
restricted shares and released from outstanding risks of
forfeiture thereof, (iii) in payment of stock units, (iv) in
payment of performance cash awards that have been earned, (v)
in payment of restricted shares granted in satisfaction of any
portion of the annual bonuses payable in Common Stock under any
employment agreement between the Company and certain of its
officers and under its bonus programs for other employees
(Bonus Awards), or (vi) in payment of dividend equivalents paid
with respect to awards made under the Amended and Restated Plan
are limited to a maximum of 1,438,258 shares of Common Stock,
which will be immediately available for issuance under the
Amended and Restated Plan, less any shares that as of May 4,
2017 are subject to outstanding awards under any Original Plan.
These shares may be shares of original issuance or treasury
shares.
total awards that may be issued or transferred (i) upon the
exercise of options or stock appreciation rights, (ii) as
restricted shares and released from outstanding risks of
forfeiture thereof, (iii) in payment of stock units, (iv) in
payment of performance cash awards that have been earned, (v)
in payment of restricted shares granted in satisfaction of any
portion of the annual bonuses payable in Common Stock under any
employment agreement between the Company and certain of its
officers and under its bonus programs for other employees
(Bonus Awards), or (vi) in payment of dividend equivalents paid
with respect to awards made under the Amended and Restated Plan
are limited to a maximum of 1,438,258 shares of Common Stock,
which will be immediately available for issuance under the
Amended and Restated Plan, less any shares that as of May 4,
2017 are subject to outstanding awards under any Original Plan.
These shares may be shares of original issuance or treasury
shares.
The aggregate number of shares of Common Stock available under
the Amended and Restated Plan issued to participants that may
be issued with respect to options and stock appreciation
rights, including upon the exercise of incentive stock options,
over its life shall not exceed half of the number of shares of
Common Stock subject to the Amended and Restated Plan, in each
case subject to adjustment, less any shares that as of May 4,
2017 are subject to outstanding awards under any Original Plan.
the Amended and Restated Plan issued to participants that may
be issued with respect to options and stock appreciation
rights, including upon the exercise of incentive stock options,
over its life shall not exceed half of the number of shares of
Common Stock subject to the Amended and Restated Plan, in each
case subject to adjustment, less any shares that as of May 4,
2017 are subject to outstanding awards under any Original Plan.
The aggregate number of shares of Common Stock and restricted
shares issued to all participants to all awards of restricted
shares and stock units made under the Amended and Restated Plan
over its life shall not exceed half of the shares of Common
Stock subject to the Amended and Restated Plan, in each case
subject to adjustment, less any shares that as of May 4, 2017
are subject to outstanding awards under any Original Plan. As
of May 4, 2017, there were 311,477 restricted stock units or
restricted shares and 311,477 options issued under the 2016
Long-Term Incentive Plan and 16,213 restricted shares issued
under the 2013 Non-Employee Director Plan. Under the Amended
and Restated Plan, Common Stock available under the Amended and
Restated Plan may be issued to fund all or any portion of the
annual bonuses provided for under any employment agreement or
bonus program.
shares issued to all participants to all awards of restricted
shares and stock units made under the Amended and Restated Plan
over its life shall not exceed half of the shares of Common
Stock subject to the Amended and Restated Plan, in each case
subject to adjustment, less any shares that as of May 4, 2017
are subject to outstanding awards under any Original Plan. As
of May 4, 2017, there were 311,477 restricted stock units or
restricted shares and 311,477 options issued under the 2016
Long-Term Incentive Plan and 16,213 restricted shares issued
under the 2013 Non-Employee Director Plan. Under the Amended
and Restated Plan, Common Stock available under the Amended and
Restated Plan may be issued to fund all or any portion of the
annual bonuses provided for under any employment agreement or
bonus program.
The aggregate number of shares of Common Stock available for
issuance or transfer under the Amended and Restated Plan is
reduced by (i) one (1) share of Common Stock for every one (1)
share of Common Stock subject to an option or stock
appreciation right granted under the Amended and Restated Plan
and (ii) one (1) share of Common Stock for every one (1) share
of Common Stock issued or transferred in connection with an
award other than an option or stock appreciation right granted
under the Amended and Restated Plan. Subject to the paragraph
below and the Amended and Restated Plan, shares of Common Stock
covered by an award granted under the Amended and Restated Plan
will not be counted as used unless and until they are actually
issued or transferred.
issuance or transfer under the Amended and Restated Plan is
reduced by (i) one (1) share of Common Stock for every one (1)
share of Common Stock subject to an option or stock
appreciation right granted under the Amended and Restated Plan
and (ii) one (1) share of Common Stock for every one (1) share
of Common Stock issued or transferred in connection with an
award other than an option or stock appreciation right granted
under the Amended and Restated Plan. Subject to the paragraph
below and the Amended and Restated Plan, shares of Common Stock
covered by an award granted under the Amended and Restated Plan
will not be counted as used unless and until they are actually
issued or transferred.
The following shares of Common Stock are not added to the
aggregate number available for issuance or transfer: (i) shares
of Common Stock tendered or otherwise used in payment of the
exercise price of an option; (ii) shares of Common Stock
withheld or otherwise used by the Company to satisfy a tax
withholding obligation; (iii) shares of Common Stock subject to
a stock appreciation right that are not actually issued in
connection with its settlement of shares of Common Stock on
exercise of the award; and (iv) shares of Common Stock
reacquired by the Company on the open market or otherwise using
cash proceeds from the exercise of options. If a participant
has elected to give up the right to receive compensation in
exchange for shares of Common Stock based on fair market value,
the shares of Common Stock will not count against the maximum
shares of Common Stock available under the Amended and Restated
Plan. Any shares of Common Stock that become available for
issuance or transfer under the Amended and Restated Plan will
be added back as (i) one (1) share of Common Stock if such
share was subject to an option or stock appreciation right
granted under the Amended and Restated Plan, and (ii) as one
(1) share of Common Stock if such share was issued or
transferred to an award granted under the Amended and Restated
Plan other than an option or stock appreciation right granted
under the 2016 Long-Term Incentive Plan. If an award under the
Amended and Restated Plan is forfeited or is settled in cash,
the subject shares will again be available for grant under the
Amended and Restated Plan.
aggregate number available for issuance or transfer: (i) shares
of Common Stock tendered or otherwise used in payment of the
exercise price of an option; (ii) shares of Common Stock
withheld or otherwise used by the Company to satisfy a tax
withholding obligation; (iii) shares of Common Stock subject to
a stock appreciation right that are not actually issued in
connection with its settlement of shares of Common Stock on
exercise of the award; and (iv) shares of Common Stock
reacquired by the Company on the open market or otherwise using
cash proceeds from the exercise of options. If a participant
has elected to give up the right to receive compensation in
exchange for shares of Common Stock based on fair market value,
the shares of Common Stock will not count against the maximum
shares of Common Stock available under the Amended and Restated
Plan. Any shares of Common Stock that become available for
issuance or transfer under the Amended and Restated Plan will
be added back as (i) one (1) share of Common Stock if such
share was subject to an option or stock appreciation right
granted under the Amended and Restated Plan, and (ii) as one
(1) share of Common Stock if such share was issued or
transferred to an award granted under the Amended and Restated
Plan other than an option or stock appreciation right granted
under the 2016 Long-Term Incentive Plan. If an award under the
Amended and Restated Plan is forfeited or is settled in cash,
the subject shares will again be available for grant under the
Amended and Restated Plan.
In the event of a subdivision of our outstanding shares of
Common Stock, stock split, reverse stock split, a declaration
of a dividend payable in shares of Common Stock, or a
combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise) into a lesser
number of shares, or an exchange of shares, the maximum number
of shares of Common Stock remaining available for awards under
the Amended and Restated Plan, the numbers of shares subject to
outstanding awards, the exercise prices under outstanding
awards and the limits on awards will be proportionately
adjusted automatically, without the necessity for Committee
action, to prevent dilution or enlargement of benefits under
the Amended and Restated Plan. In the event of a declaration of
an extraordinary dividend payable in a form other than Common
Stock in an amount that has a material effect on the price of
our Common Stock, a capitalization, a spin-off, any other
change in the Common Stock that otherwise would result from any
split-off, spin-out, split-up or a similar occurrence, issuance
of rights or warrants to purchase securities or any other
corporate transaction or event having an effect similar to any
of the foregoing, the Committee will make such adjustments to
the foregoing as it deems appropriate in its sole discretion.
Moreover, in the event of any such transaction or event or in
the event of a change in control, the Committee shall provide
in substitution for any outstanding awards under the Amended
and Restated Plan such alternative consideration (including
cash), if any, as it determines to be equitable in the
circumstances and may require the surrender of all awards so
replaced in a manner that complies with Section 409A of the
Code. In addition, for each stock option or stock appreciation
right with an exercise price greater than the consideration
offered in connection with any such transaction or event or
change in control, the committee may elect to cancel such stock
option or stock appreciation right. Any such adjustment to the
specified number of ISOs will be made only if and to the extent
that such adjustment would not cause any option intended to
qualify as an ISO to fail to so qualify.
Common Stock, stock split, reverse stock split, a declaration
of a dividend payable in shares of Common Stock, or a
combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise) into a lesser
number of shares, or an exchange of shares, the maximum number
of shares of Common Stock remaining available for awards under
the Amended and Restated Plan, the numbers of shares subject to
outstanding awards, the exercise prices under outstanding
awards and the limits on awards will be proportionately
adjusted automatically, without the necessity for Committee
action, to prevent dilution or enlargement of benefits under
the Amended and Restated Plan. In the event of a declaration of
an extraordinary dividend payable in a form other than Common
Stock in an amount that has a material effect on the price of
our Common Stock, a capitalization, a spin-off, any other
change in the Common Stock that otherwise would result from any
split-off, spin-out, split-up or a similar occurrence, issuance
of rights or warrants to purchase securities or any other
corporate transaction or event having an effect similar to any
of the foregoing, the Committee will make such adjustments to
the foregoing as it deems appropriate in its sole discretion.
Moreover, in the event of any such transaction or event or in
the event of a change in control, the Committee shall provide
in substitution for any outstanding awards under the Amended
and Restated Plan such alternative consideration (including
cash), if any, as it determines to be equitable in the
circumstances and may require the surrender of all awards so
replaced in a manner that complies with Section 409A of the
Code. In addition, for each stock option or stock appreciation
right with an exercise price greater than the consideration
offered in connection with any such transaction or event or
change in control, the committee may elect to cancel such stock
option or stock appreciation right. Any such adjustment to the
specified number of ISOs will be made only if and to the extent
that such adjustment would not cause any option intended to
qualify as an ISO to fail to so qualify.
Bonus Awards for 2016
Under the terms of the amended and restated employment
agreements with Jeff Hastings, Brian Beatty, Brent Whiteley,
Mike Scott, Darin Silvernagle, and Ryan Abney, as well as under
bonus programs for other employees $3,900,109>of bonus
payments are required to be issued to such employees for 2016
and the Compensation Committee has determined that one-third of
such $3,900,109>amount shall be issued under the Amended and
Restated Plan as soon as administratively practicable after
receipt by the Company of stockholder approval of the Amended
and Restated Plan and the effectiveness of stockholder approval
of the Amended and Restated Plan, in the form of restricted
shares, on the terms and subject to the conditions set forth in
the Amended and Restated Plan.>
agreements with Jeff Hastings, Brian Beatty, Brent Whiteley,
Mike Scott, Darin Silvernagle, and Ryan Abney, as well as under
bonus programs for other employees $3,900,109>of bonus
payments are required to be issued to such employees for 2016
and the Compensation Committee has determined that one-third of
such $3,900,109>amount shall be issued under the Amended and
Restated Plan as soon as administratively practicable after
receipt by the Company of stockholder approval of the Amended
and Restated Plan and the effectiveness of stockholder approval
of the Amended and Restated Plan, in the form of restricted
shares, on the terms and subject to the conditions set forth in
the Amended and Restated Plan.>
Administration
The Amended and Restated Plan is administered by the
Compensation Committee. The Board of Directors may delegate to
a committee of two or more non-employee directors who are also
outside directors as defined under Section 162(m) of the
Internal Revenue Code of 1986, as amended (the Code) and
nonemployee directors as defined in Rule 16b-3 under the
Securities Exchange Act of 1934, as amended (the Exchange Act)
when granting awards to a covered employee within the meaning
of Section 162(m)(3) of the Code who is then subject to Section
16 of the Exchange Act.
Compensation Committee. The Board of Directors may delegate to
a committee of two or more non-employee directors who are also
outside directors as defined under Section 162(m) of the
Internal Revenue Code of 1986, as amended (the Code) and
nonemployee directors as defined in Rule 16b-3 under the
Securities Exchange Act of 1934, as amended (the Exchange Act)
when granting awards to a covered employee within the meaning
of Section 162(m)(3) of the Code who is then subject to Section
16 of the Exchange Act.
Our Board of Directors may (a) delegate to a committee of one
or more members of the Board of Directors who are not outside
directors the authority to grant awards to eligible persons who
are either (i) not then covered employees and are not expected
to be
or more members of the Board of Directors who are not outside
directors the authority to grant awards to eligible persons who
are either (i) not then covered employees and are not expected
to be
covered employees at the time of recognition of income
resulting from such award or (ii) not persons with respect to
whom the Company wishes to comply with Section 162(m) of the
Code or (b) delegate to a committee of one or more members of
the Board of Directors who are not nonemployee directors the
authority to grant awards to eligible persons who are not then
subject to Section 16 of the Exchange Act. The Board of
Directors may also appoint one or more directors and/or the
chief executive officer to make grants of awards to employees
who are not executive officers under Section 16 of the Exchange
Act.
resulting from such award or (ii) not persons with respect to
whom the Company wishes to comply with Section 162(m) of the
Code or (b) delegate to a committee of one or more members of
the Board of Directors who are not nonemployee directors the
authority to grant awards to eligible persons who are not then
subject to Section 16 of the Exchange Act. The Board of
Directors may also appoint one or more directors and/or the
chief executive officer to make grants of awards to employees
who are not executive officers under Section 16 of the Exchange
Act.
Subject to the Companys obligations to any applicable
employment agreements, the Committee has the authority to
interpret and construe all provisions of Amended and Restated
Plan and to make all decisions and determinations relating to
the operation of the Amended and Restated Plan, including the
authority and discretion to:
employment agreements, the Committee has the authority to
interpret and construe all provisions of Amended and Restated
Plan and to make all decisions and determinations relating to
the operation of the Amended and Restated Plan, including the
authority and discretion to:
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select the individuals to receive awards;
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determine the type, number, vesting requirements, and
other features and conditions of the awards; |
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interpret and administer the Amended and Restated
Plan; |
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make all other decisions relating to the operation of
the Amended and Restated Plan and reconcile any inconsistency in, correct any defect in and/or supply any omission in the Amended and Restated Plan; and |
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carry out any other duties delegated to it by the
Board of Directors under the Amended and Restated Plan. |
Duration
The Amended and Restated Plan will become effective twenty
calendar days after this Information Statement is first sent or
given to our stockholders. The Amended and Restated Plan will
continue in effect until the date when the Amended and Restated
Plan is terminated by our Board of Directors as provided in the
Amended and Restated Plan, provided, however, that no incentive
stock options, or ISOs, may be granted after the date that is
ten (10) years after September 4, 2016.
calendar days after this Information Statement is first sent or
given to our stockholders. The Amended and Restated Plan will
continue in effect until the date when the Amended and Restated
Plan is terminated by our Board of Directors as provided in the
Amended and Restated Plan, provided, however, that no incentive
stock options, or ISOs, may be granted after the date that is
ten (10) years after September 4, 2016.
Award Agreements
The terms and conditions of each award made under the Amended
and Restated Plan will be outlined in a written award agreement
between the Company and the participant.
and Restated Plan will be outlined in a written award agreement
between the Company and the participant.
Types of Awards
The Amended and Restated Plan provides for the following types
of awards:
of awards:
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stock options;
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stock appreciation rights;
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restricted shares;
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stock units; and
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performance cash awards.
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Stock Options. The Committee may from time to time award stock
options to any eligible participant. Stock options give the
holder the right to purchase shares of Common Stock within a
specified time at a specified price. Two types of stock options
may be granted under the Amended and Restated Plan: ISOs, which
are subject to special U.S. tax treatment as described below,
and nonstatutory options, or NSOs. Only NSOs may be granted to
non-employee directors. As specified in the applicable award
agreement, awards
options to any eligible participant. Stock options give the
holder the right to purchase shares of Common Stock within a
specified time at a specified price. Two types of stock options
may be granted under the Amended and Restated Plan: ISOs, which
are subject to special U.S. tax treatment as described below,
and nonstatutory options, or NSOs. Only NSOs may be granted to
non-employee directors. As specified in the applicable award
agreement, awards
of stock options may be subject to vesting conditions, may
provide for accelerated exercisability, including in the event
of the optionees death, disability, or retirement or other
events, and may provide for expiration in the event the
optionee ceases to be an employee. The exercise price of a
stock option shall be the fair market value (as defined in the
Amended and Restated Plan) of a share of Common Stock at the
time of grant as determined by the Committee unless the option
is being granted in substitution for an outstanding option as
part of a corporate transaction (such as a merger).
Notwithstanding, if an ISO is granted to a person who, at the
time of grant, owns Common Stock possessing more than 10% of
the total combined voting power of all classes of our voting
stock, such ISO cannot have an exercise price less than 110% of
the fair market value of a share of Common Stock at the time of
grant and cannot expire more than five (5) years after the date
of the original grant.
provide for accelerated exercisability, including in the event
of the optionees death, disability, or retirement or other
events, and may provide for expiration in the event the
optionee ceases to be an employee. The exercise price of a
stock option shall be the fair market value (as defined in the
Amended and Restated Plan) of a share of Common Stock at the
time of grant as determined by the Committee unless the option
is being granted in substitution for an outstanding option as
part of a corporate transaction (such as a merger).
Notwithstanding, if an ISO is granted to a person who, at the
time of grant, owns Common Stock possessing more than 10% of
the total combined voting power of all classes of our voting
stock, such ISO cannot have an exercise price less than 110% of
the fair market value of a share of Common Stock at the time of
grant and cannot expire more than five (5) years after the date
of the original grant.
Upon exercise, the exercise price of a stock option may be paid
in cash or cash equivalents or, at the discretion of the
Committee, by the surrender of Common Stock already owned by
the optionee, by delivering an irrevocable instruction
directing a securities broker to sell all or part of the shares
being purchased, by delivering a full recourse promissory note
(unless such optionee is an executive officer or director), or
by making payment in any other form consistent with applicable
law. Except as otherwise provided in the Amended and Restated
Plan, and except as described in an award agreement for MIP
Shares that are granted in the form of stock options designated
as NSOs, no grant of options can become exercisable sooner than
after one (1) year. The expiration dates of options cannot be
more than ten (10) years after the date of the original grant.
The Committee may offer to buy out an outstanding stock option
for cash or cash equivalents or authorize an optionee to elect
to cash out an outstanding option provided that cash payments
shall not exceed the fair market value less the exercise price.
Prior to the issuance of shares of Common Stock upon the
exercise of a stock option, no right to vote or receive
dividends or any other rights as a stockholder will exist for
the underlying shares.
in cash or cash equivalents or, at the discretion of the
Committee, by the surrender of Common Stock already owned by
the optionee, by delivering an irrevocable instruction
directing a securities broker to sell all or part of the shares
being purchased, by delivering a full recourse promissory note
(unless such optionee is an executive officer or director), or
by making payment in any other form consistent with applicable
law. Except as otherwise provided in the Amended and Restated
Plan, and except as described in an award agreement for MIP
Shares that are granted in the form of stock options designated
as NSOs, no grant of options can become exercisable sooner than
after one (1) year. The expiration dates of options cannot be
more than ten (10) years after the date of the original grant.
The Committee may offer to buy out an outstanding stock option
for cash or cash equivalents or authorize an optionee to elect
to cash out an outstanding option provided that cash payments
shall not exceed the fair market value less the exercise price.
Prior to the issuance of shares of Common Stock upon the
exercise of a stock option, no right to vote or receive
dividends or any other rights as a stockholder will exist for
the underlying shares.
The aggregate number of shares of Common Stock that may be
issued or transferred by the Company upon the exercise of ISOs
will not exceed half of the number of shares of Common Stock
subject to the Amended and Restated Plan. If a participant
awarded an ISO under the Amended and Restated Plan makes a
disqualifying disposition of such shares (which is a
disposition (including any sale) within two (2) years after the
date of the grant or within one (1) year after the date of
exercise), the participant must notify the Company in writing
immediately following the disposition, and the Company may, if
determined by the Committee, retain possession, as agent for
the participant, of any Common Stock acquired as a result of
the exercise of an ISO until the end of the period described
above, subject to complying with any instruction from the
participant as to the sale of such the Common Stock.
issued or transferred by the Company upon the exercise of ISOs
will not exceed half of the number of shares of Common Stock
subject to the Amended and Restated Plan. If a participant
awarded an ISO under the Amended and Restated Plan makes a
disqualifying disposition of such shares (which is a
disposition (including any sale) within two (2) years after the
date of the grant or within one (1) year after the date of
exercise), the participant must notify the Company in writing
immediately following the disposition, and the Company may, if
determined by the Committee, retain possession, as agent for
the participant, of any Common Stock acquired as a result of
the exercise of an ISO until the end of the period described
above, subject to complying with any instruction from the
participant as to the sale of such the Common Stock.
Stock Appreciation Rights. The Committee may grant stock
appreciation rights under the Amended and Restated Plan;
provided that no grant of stock appreciation rights may become
exercisable sooner than after one (1) year. A stock
appreciation right entitles the holder upon exercise to receive
an amount in shares of Common Stock, cash or a combination
thereof (as determined by the Committee), computed by reference
to appreciation in the value of our Common Stock. Stock
appreciation rights may be granted alone or in tandem with a
stock option. As specified in the applicable award agreement,
awards of stock appreciation rights may be subject to vesting
conditions, may provide for accelerated exercisability,
including in the event of the holders death, disability, or
retirement or other events, and may provide for forfeiture in
the event the holder ceases to be an employee or director. The
exercise price of a stock appreciation right cannot be less
than 50% of the fair market value of a share of Common Stock on
the date of grant. Upon exercise, the holder of a stock
appreciation right will receive shares of Common Stock, cash,
or a combination of both, as the Committee shall determine.
Prior to the issuance of shares of Common Stock upon the
exercise of a stock appreciation right, no right to vote or
receive dividends or any other rights as a stockholder will
exist for the underlying shares.
appreciation rights under the Amended and Restated Plan;
provided that no grant of stock appreciation rights may become
exercisable sooner than after one (1) year. A stock
appreciation right entitles the holder upon exercise to receive
an amount in shares of Common Stock, cash or a combination
thereof (as determined by the Committee), computed by reference
to appreciation in the value of our Common Stock. Stock
appreciation rights may be granted alone or in tandem with a
stock option. As specified in the applicable award agreement,
awards of stock appreciation rights may be subject to vesting
conditions, may provide for accelerated exercisability,
including in the event of the holders death, disability, or
retirement or other events, and may provide for forfeiture in
the event the holder ceases to be an employee or director. The
exercise price of a stock appreciation right cannot be less
than 50% of the fair market value of a share of Common Stock on
the date of grant. Upon exercise, the holder of a stock
appreciation right will receive shares of Common Stock, cash,
or a combination of both, as the Committee shall determine.
Prior to the issuance of shares of Common Stock upon the
exercise of a stock appreciation right, no right to vote or
receive dividends or any other rights as a stockholder will
exist for the underlying shares.
Restricted Shares. A grant of restricted shares involves the
immediate transfer by us to a participant of ownership of a
specific number of shares of Common Stock in consideration of
the performance of services. The Committee may grant restricted
shares of Common Stock to eligible participants, in the
amounts, and subject to the terms and conditions as the
Committee determines in its discretion, including in connection
with equity-based compensation payable under any employment
agreements and other bonus programs for its employees, in each
case as specified in an applicable restricted shares award
agreement. Such award agreement may provide for accelerated
vesting of the restricted shares, including in the event of the
participants death, disability or other events. Awards of
restricted shares of Common Stock may be made in exchange for
services or other lawful consideration and may or may not be
contingent on the satisfaction of performance targets. Except
as otherwise described in an applicable award agreement, a
Bonus Award, or in the Amended and Restated Plan, no grant of
restricted shares will have the restrictions eliminated for a
period of time shorter than three (3) years if based only on
the passage of time rather than performance targets, except
that the restrictions may be removed ratably during the
three-year period as determined by the Committee. Awards of
restricted shares may be subject to vesting conditions and to
the attainment of performance criteria as specified in the
applicable award agreement. If the award is intended to satisfy
the requirements of Section 162(m) of the Code, such
performance target will be based on one or more criteria as
specified in Amended and Restated Plan and may be subject to
other restrictions as applicable. Any conditions to vesting and
performance criteria may be waived in the event of a change in
control of the Company, or the holders death or disability.
immediate transfer by us to a participant of ownership of a
specific number of shares of Common Stock in consideration of
the performance of services. The Committee may grant restricted
shares of Common Stock to eligible participants, in the
amounts, and subject to the terms and conditions as the
Committee determines in its discretion, including in connection
with equity-based compensation payable under any employment
agreements and other bonus programs for its employees, in each
case as specified in an applicable restricted shares award
agreement. Such award agreement may provide for accelerated
vesting of the restricted shares, including in the event of the
participants death, disability or other events. Awards of
restricted shares of Common Stock may be made in exchange for
services or other lawful consideration and may or may not be
contingent on the satisfaction of performance targets. Except
as otherwise described in an applicable award agreement, a
Bonus Award, or in the Amended and Restated Plan, no grant of
restricted shares will have the restrictions eliminated for a
period of time shorter than three (3) years if based only on
the passage of time rather than performance targets, except
that the restrictions may be removed ratably during the
three-year period as determined by the Committee. Awards of
restricted shares may be subject to vesting conditions and to
the attainment of performance criteria as specified in the
applicable award agreement. If the award is intended to satisfy
the requirements of Section 162(m) of the Code, such
performance target will be based on one or more criteria as
specified in Amended and Restated Plan and may be subject to
other restrictions as applicable. Any conditions to vesting and
performance criteria may be waived in the event of a change in
control of the Company, or the holders death or disability.
Subject to any restrictions, conditions and forfeiture
provisions placed on such restricted shares by the Committee,
any recipient of an award of restricted shares will have all
the rights of a stockholder of the Company, including the right
to vote the shares and dividend rights. However, the award
agreement may require that dividends be accumulated and paid
when the restricted shares vest, be issued
provisions placed on such restricted shares by the Committee,
any recipient of an award of restricted shares will have all
the rights of a stockholder of the Company, including the right
to vote the shares and dividend rights. However, the award
agreement may require that dividends be accumulated and paid
when the restricted shares vest, be issued
as additional restricted shares or be paid currently to the
holder. Any dividends not paid currently will be subject to the
same conditions and restrictions, including the risk of
forfeiture, as the related award; provided, however, that
dividend equivalents or other distributions on shares of Common
Stock underlying restricted shares with restrictions that lapse
as a result of achievement of performance targets will be
deferred until and paid contingent upon the achievement of
applicable performance targets.
holder. Any dividends not paid currently will be subject to the
same conditions and restrictions, including the risk of
forfeiture, as the related award; provided, however, that
dividend equivalents or other distributions on shares of Common
Stock underlying restricted shares with restrictions that lapse
as a result of achievement of performance targets will be
deferred until and paid contingent upon the achievement of
applicable performance targets.
Stock Units. A grant of stock units constitutes an agreement by
us to deliver shares of Common Stock or cash to the participant
in the future in consideration of the performance of services,
but subject to the fulfillment of such conditions during the
restriction period as the Committee may specify. The Committee
may grant units having a value equal to an identical number of
shares of Common Stock to such eligible participants, in such
amounts, and subject to such terms and conditions as the
Committee determines in its discretion. Awards of stock units,
other than awards of stock units that are MIP Shares, may be
subject to vesting conditions and to the attainment of
performance criteria as specified in the applicable award
agreement. Such stock units award agreement may provide for
accelerated vesting of the stock units, including in the event
of the participants death, disability or other events. Except
as otherwise provided in the Amended and Restated Plan and
except as described in an award agreement for MIP Shares that
are granted in the form of stock units, no grant of stock units
will have the restrictions eliminated for a period of time
shorter than three (3) years if based only on the passage of
time rather than performance targets, except that the
restrictions may be removed ratably during the three-year
period as determined by the Committee. If the stock units
(other than the stock units that are MIP Shares) specify that
the period of restriction will terminate only upon the
achievement of performance targets or that the stock units will
be earned based on the achievement of performance targets,
then, notwithstanding anything to the contrary contained in
this paragraph, the period of restriction may not be less than
one (1) year. Other than with respect to the stock units that
are MIP Shares, the Committee may include as vesting conditions
or as conditions for any award of stock units the requirement
that the performance of the Company or a business unit of the
Company for a specified period (not less than one (1) year)
equal or exceed a target determined in advance by the
Committee. If the award of stock units is intended to satisfy
the requirements of Section 162(m) of the Code, such target
will be based on one or more of the criteria set forth in the
Amended and Restated Plan and may be subject to other
restrictions as applicable. Any conditions to vesting and/or
performance target may be waived in the event of a change in
control of the Company, or the participants death or
disability.
us to deliver shares of Common Stock or cash to the participant
in the future in consideration of the performance of services,
but subject to the fulfillment of such conditions during the
restriction period as the Committee may specify. The Committee
may grant units having a value equal to an identical number of
shares of Common Stock to such eligible participants, in such
amounts, and subject to such terms and conditions as the
Committee determines in its discretion. Awards of stock units,
other than awards of stock units that are MIP Shares, may be
subject to vesting conditions and to the attainment of
performance criteria as specified in the applicable award
agreement. Such stock units award agreement may provide for
accelerated vesting of the stock units, including in the event
of the participants death, disability or other events. Except
as otherwise provided in the Amended and Restated Plan and
except as described in an award agreement for MIP Shares that
are granted in the form of stock units, no grant of stock units
will have the restrictions eliminated for a period of time
shorter than three (3) years if based only on the passage of
time rather than performance targets, except that the
restrictions may be removed ratably during the three-year
period as determined by the Committee. If the stock units
(other than the stock units that are MIP Shares) specify that
the period of restriction will terminate only upon the
achievement of performance targets or that the stock units will
be earned based on the achievement of performance targets,
then, notwithstanding anything to the contrary contained in
this paragraph, the period of restriction may not be less than
one (1) year. Other than with respect to the stock units that
are MIP Shares, the Committee may include as vesting conditions
or as conditions for any award of stock units the requirement
that the performance of the Company or a business unit of the
Company for a specified period (not less than one (1) year)
equal or exceed a target determined in advance by the
Committee. If the award of stock units is intended to satisfy
the requirements of Section 162(m) of the Code, such target
will be based on one or more of the criteria set forth in the
Amended and Restated Plan and may be subject to other
restrictions as applicable. Any conditions to vesting and/or
performance target may be waived in the event of a change in
control of the Company, or the participants death or
disability.
If the requirements specified by the Committee are met, then on
the designated settlement date, the holder of such units will
receive shares of Common Stock, cash or any combination
thereof, equal to the fair market value of the corresponding
number of shares of Common Stock. Payment of such amount may be
deferred until a later date. Stock units awarded under the
Amended and Restated Plan may include a right to receive
dividend equivalents, which would entitle the holder of a stock
unit to receive a credit for the amount equal to the dividends
paid on an equal number of shares of our Common Stock while the
stock unit is outstanding. If the stock units become vested,
dividend equivalents are settled in the same manner as stock
units and, prior to distribution, any dividend equivalents that
are not paid are subject to the same terms and conditions as
the stock units to which they attach; provided, however, that
dividend equivalents or other distributions on shares of Common
Stock underlying stock units with restrictions that lapse as a
result of achievement of performance targets will be deferred
until and paid contingent upon the achievement of applicable
performance targets. Prior to an issuance of shares of Common
Stock in settlement of a stock unit, no right to vote as a
stockholder will exist with respect to the underlying shares.
the designated settlement date, the holder of such units will
receive shares of Common Stock, cash or any combination
thereof, equal to the fair market value of the corresponding
number of shares of Common Stock. Payment of such amount may be
deferred until a later date. Stock units awarded under the
Amended and Restated Plan may include a right to receive
dividend equivalents, which would entitle the holder of a stock
unit to receive a credit for the amount equal to the dividends
paid on an equal number of shares of our Common Stock while the
stock unit is outstanding. If the stock units become vested,
dividend equivalents are settled in the same manner as stock
units and, prior to distribution, any dividend equivalents that
are not paid are subject to the same terms and conditions as
the stock units to which they attach; provided, however, that
dividend equivalents or other distributions on shares of Common
Stock underlying stock units with restrictions that lapse as a
result of achievement of performance targets will be deferred
until and paid contingent upon the achievement of applicable
performance targets. Prior to an issuance of shares of Common
Stock in settlement of a stock unit, no right to vote as a
stockholder will exist with respect to the underlying shares.
A holder of stock units will have no rights other than those of
a general creditor of the Company. Stock units represent an
unfunded and unsecured obligation of the Company, subject to
the terms and conditions of the applicable stock units award
agreement.
a general creditor of the Company. Stock units represent an
unfunded and unsecured obligation of the Company, subject to
the terms and conditions of the applicable stock units award
agreement.
Performance Cash Awards. The Committee may grant cash awards
contingent on the satisfaction of certain performance targets
intended to satisfy the requirements of Section 162(m) of the
Code. The Committee shall include as a condition for
performance cash awards the requirement that the performance of
the Company or a business unit of the Company for a specified
period (not less than one (1) year) equal or exceed a target
determined in advance by the Committee. The Committee will
determine such performance metrics. If the award is intended to
satisfy the requirements of Section 162(m) of the Code, such
target will be based on one or more of the criteria set forth
in the Amended and Restated Plan. Any conditions to vesting or
performance criteria may be waived in the event of a change in
control of the Company, or the holders death or disability. If
the requirements specified by the Committee are met, the award
will be paid to the holder in cash. The form and timing of
payment of performance cash awards shall satisfy the
requirements of Section 409A of the Code in form and operation.
The amount of a deferred distribution may be increased by an
interest factor or by dividend equivalents. A holder of an
unpaid performance cash award shall have no rights other than
those of a general creditor of the Company. Unpaid performance
cash awards represent an unfunded and unsecured obligation of
the Company, subject to the terms and conditions of the
applicable performance cash award agreement.
contingent on the satisfaction of certain performance targets
intended to satisfy the requirements of Section 162(m) of the
Code. The Committee shall include as a condition for
performance cash awards the requirement that the performance of
the Company or a business unit of the Company for a specified
period (not less than one (1) year) equal or exceed a target
determined in advance by the Committee. The Committee will
determine such performance metrics. If the award is intended to
satisfy the requirements of Section 162(m) of the Code, such
target will be based on one or more of the criteria set forth
in the Amended and Restated Plan. Any conditions to vesting or
performance criteria may be waived in the event of a change in
control of the Company, or the holders death or disability. If
the requirements specified by the Committee are met, the award
will be paid to the holder in cash. The form and timing of
payment of performance cash awards shall satisfy the
requirements of Section 409A of the Code in form and operation.
The amount of a deferred distribution may be increased by an
interest factor or by dividend equivalents. A holder of an
unpaid performance cash award shall have no rights other than
those of a general creditor of the Company. Unpaid performance
cash awards represent an unfunded and unsecured obligation of
the Company, subject to the terms and conditions of the
applicable performance cash award agreement.
Performance Goals
The Committee, in its discretion, may designate any restricted
shares, stock units (other than stock units that are MIP
Shares) or performance cash award granted under the Amended and
Restated Plan as a qualified performance-based award (as
defined in the Amended and Restated Plan) in order to make the
taxable compensation amount of the award fully deductible
without regard to the $1,000,000 compensation deduction limit
imposed by Section 162(m) of the Code. If an award is so
designated, the Committee must
shares, stock units (other than stock units that are MIP
Shares) or performance cash award granted under the Amended and
Restated Plan as a qualified performance-based award (as
defined in the Amended and Restated Plan) in order to make the
taxable compensation amount of the award fully deductible
without regard to the $1,000,000 compensation deduction limit
imposed by Section 162(m) of the Code. If an award is so
designated, the Committee must
establish objectively determinable performance goals for the
award which may be (i) described in terms of Company-wide
objectives or objectives that are related to the performance of
the individual participant or of one or more of the
subsidiaries, divisions, departments, regions, functions or
other organizational units within the Company or its
subsidiaries; (ii) made relative to the performance of other
companies or subsidiaries, divisions, departments, regions,
functions or other organizational units within such other
companies; and (iii) made relative to an index or one or more
of the performance objectives. Such business criteria could
include the following:
award which may be (i) described in terms of Company-wide
objectives or objectives that are related to the performance of
the individual participant or of one or more of the
subsidiaries, divisions, departments, regions, functions or
other organizational units within the Company or its
subsidiaries; (ii) made relative to the performance of other
companies or subsidiaries, divisions, departments, regions,
functions or other organizational units within such other
companies; and (iii) made relative to an index or one or more
of the performance objectives. Such business criteria could
include the following:
|
revenue (or any sub-component thereof)
|
|
revenue growth
|
|
operating costs
|
|
operating margin as a percentage of revenue
|
|
earnings before interest, taxes, depreciation, and
amortization |
|
earnings before income taxes
|
|
net operating profit after taxes
|
|
net income
|
|
net income as a percentage of revenue
|
|
free cash flow
|
|
earnings per share
|
|
net operating profit after taxes per share
|
|
free cash flow per share
|
|
return on net assets employed before interest and
taxes |
|
return on equity, investment, invested capital, net
capital employed, assets, or net assets |
|
total stockholder return or relative total
stockholder return (as compared with one of the Companys peer groups) |
|
safety performance metrics, including relative to
industry standards |
|
strategic team goals
|
Section 162(m)
The Amended and Restated Plan is also intended to enable the
Company to structure certain awards so that they may be able to
qualify as qualified performance-based compensation under
Section 162(m) of the Code. If the equity awards qualify as
qualified performance-based compensation for purposes of
Section 162(m) of the Code, then the Company would generally be
able to receive a federal income tax deduction for certain
compensation paid to its chief executive officer and the other
three most highly compensated
Company to structure certain awards so that they may be able to
qualify as qualified performance-based compensation under
Section 162(m) of the Code. If the equity awards qualify as
qualified performance-based compensation for purposes of
Section 162(m) of the Code, then the Company would generally be
able to receive a federal income tax deduction for certain
compensation paid to its chief executive officer and the other
three most highly compensated
executive officers (other than its chief financial officer) in
excess of $1 million for any taxable year. While the Company
believes it is in the best interests of the Company and its
stockholders to have the ability to potentially grant qualified
performance-based compensation under Section 162(m) of the
Code, the Company may decide to grant compensation that will
not qualify as qualified performance-based compensation for
purposes of Section 162(m) of the Code. Moreover, even if the
Company intends to grant compensation that qualifies as
qualified performance-based compensation for purposes of
Section 162(m) of the Code, the Company cannot guarantee that
such compensation will so qualify or ultimately will be
deductible by the Company.
excess of $1 million for any taxable year. While the Company
believes it is in the best interests of the Company and its
stockholders to have the ability to potentially grant qualified
performance-based compensation under Section 162(m) of the
Code, the Company may decide to grant compensation that will
not qualify as qualified performance-based compensation for
purposes of Section 162(m) of the Code. Moreover, even if the
Company intends to grant compensation that qualifies as
qualified performance-based compensation for purposes of
Section 162(m) of the Code, the Company cannot guarantee that
such compensation will so qualify or ultimately will be
deductible by the Company.
With respect to performance awards, in order to satisfy the
qualified performance-based compensation exception to the
deduction limitation of Section 162(m) of the Code, the vesting
of the award must be contingent solely on the attainment of one
or more performance goals determined by a committee of two or
more outside directors. The award must also be granted to a
stockholder approved plan containing (1) the material terms of
the performance criteria to which the performance goals may be
established, (2) the individuals eligible to receive awards
under the plan, and (3) a specified limit on the number of
shares or value a participant may receive within a certain time
period or periods. Stockholder approval of the Amended and
Restated Plan was intended to satisfy the stockholder approval
requirements under Section 162(m) of the Code.
qualified performance-based compensation exception to the
deduction limitation of Section 162(m) of the Code, the vesting
of the award must be contingent solely on the attainment of one
or more performance goals determined by a committee of two or
more outside directors. The award must also be granted to a
stockholder approved plan containing (1) the material terms of
the performance criteria to which the performance goals may be
established, (2) the individuals eligible to receive awards
under the plan, and (3) a specified limit on the number of
shares or value a participant may receive within a certain time
period or periods. Stockholder approval of the Amended and
Restated Plan was intended to satisfy the stockholder approval
requirements under Section 162(m) of the Code.
In particular, the Amended and Restated Plan includes a list of
performance measures upon which the Compensation Committee must
condition a grant or vesting of a qualified performance-based
award to the Amended and Restated Plan, which measures are to
be based on one or more of the performance targets set forth
above.
performance measures upon which the Compensation Committee must
condition a grant or vesting of a qualified performance-based
award to the Amended and Restated Plan, which measures are to
be based on one or more of the performance targets set forth
above.
Limitations on Grants in the Amended and Restated Plan
Subject to adjustment as described above the maximum number of
shares of Common Stock or amount of cash subject to each type
of award that may be granted under the Amended and Restated
Plan in any calendar year to any one person is as follows:
shares of Common Stock or amount of cash subject to each type
of award that may be granted under the Amended and Restated
Plan in any calendar year to any one person is as follows:
|
Stock Options
|
100,000
|
|||
|
Stock Appreciation Rights
|
100,000
|
|||
|
Restricted Shares (that are intended to qualify as
qualified performance-based compensation under Section 162(m) of the Code, in the aggregate) |
100,000
|
|||
|
Stock Units (that are intended to qualify as
qualified performance-based compensation under Section 162(m) of the Code, in the aggregate) |
100,000
|
|||
|
Performance Cash Awards (that are intended to qualify
as qualified performance-based compensation under Section 162(m) of the Code, in the aggregate) |
$
|
1,200,000
|
The Company has submitted the Amended and Restated Plan to the
Consenting Stockholders for their approval, including the
performance measures and individual grant limits under the
Amended and Restated Plan, as well as the individuals eligible
to receive awards under the Amended and Restated Plan, so that
options granted under the Amended and Restated Plan may qualify
for treatment as incentive stock options, as well as to have
the flexibility to potentially grant performance-based awards
under the Amended and Restated Plan that may be fully
deductible for federal income tax purposes. The approval of the
Consenting Stockholders of the Amended and Restated Plan and
the material terms for qualified performance-based compensation
under the Amended and Restated Plan will take effect on the
twentieth (20th) day following the date the Information
Statement is first sent or given to stockholders. Assuming that
all other Section 162(m) requirements are met, the Company may
be able to obtain tax deductions with respect to awards issued
under the Amended and Restated Plan to its Section 162(m)
executive officers without regard to the limitations of Section
162(m) through the 2022 annual meeting of stockholders (in
other words, for five years).
Consenting Stockholders for their approval, including the
performance measures and individual grant limits under the
Amended and Restated Plan, as well as the individuals eligible
to receive awards under the Amended and Restated Plan, so that
options granted under the Amended and Restated Plan may qualify
for treatment as incentive stock options, as well as to have
the flexibility to potentially grant performance-based awards
under the Amended and Restated Plan that may be fully
deductible for federal income tax purposes. The approval of the
Consenting Stockholders of the Amended and Restated Plan and
the material terms for qualified performance-based compensation
under the Amended and Restated Plan will take effect on the
twentieth (20th) day following the date the Information
Statement is first sent or given to stockholders. Assuming that
all other Section 162(m) requirements are met, the Company may
be able to obtain tax deductions with respect to awards issued
under the Amended and Restated Plan to its Section 162(m)
executive officers without regard to the limitations of Section
162(m) through the 2022 annual meeting of stockholders (in
other words, for five years).
Transferability of Awards
Awards made under the Amended and Restated Plan will generally
not be transferable, except in the event of the death of the
participant or as otherwise determined by the Committee.
However, the Committee may authorize all or a portion of any
award (other than ISOs) to be granted on terms which permit
transfer by the participant to the spouse, parents, children,
stepchildren, adoptive relationships, sisters, brothers or
grandchildren of the participant and to certain trusts,
partnerships or limited liability companies owned by or related
to the participant. Following transfer, any such awards will
continue to be subject to the same terms and conditions as were
applicable immediately prior to the transfer.
not be transferable, except in the event of the death of the
participant or as otherwise determined by the Committee.
However, the Committee may authorize all or a portion of any
award (other than ISOs) to be granted on terms which permit
transfer by the participant to the spouse, parents, children,
stepchildren, adoptive relationships, sisters, brothers or
grandchildren of the participant and to certain trusts,
partnerships or limited liability companies owned by or related
to the participant. Following transfer, any such awards will
continue to be subject to the same terms and conditions as were
applicable immediately prior to the transfer.
Change in Control; Reorganizations
An award agreement may provide, or the Committee may amend an
award agreement to provide, that, upon a change in control of
the Company, the award will vest or become exercisable. A
change in control, unless otherwise defined, includes any of
the following events that occurs after the closing date:
award agreement to provide, that, upon a change in control of
the Company, the award will vest or become exercisable. A
change in control, unless otherwise defined, includes any of
the following events that occurs after the closing date:
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a change in the composition of the Board of Directors
such that a majority of the Board of Directors consists of individuals other than directors (i) serving on the Board of Directors as of the effective date of the Amended and Restated Plan, or (ii) nominated or appointed to the Board of Directors by at least 50% of those directors or directors who become incumbents by virtue of such a nomination or appointment, whom the Company sometimes refers to as incumbent directors; |
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a reorganization, merger, consolidation, share
exchange or other business combination involving the Company or any of its subsidiaries, or a disposition of substantially all of the Companys assets, or the Companys acquisition of the assets or stock of another entity, except where the Companys beneficial holders prior to such transaction hold at least 50% of the combined voting power of the surviving entity, no person or group becomes a beneficial owner of 50% or more of the surviving companys common stock or voting power, and incumbent directors continue to constitute a majority of the Board of Directors; |
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at least 50% of the Common Stock has been acquired by
one person or persons acting as a group; provided, however, that stock acquisition would not result in a change in control if it would not have been made a change in control under a business combination as defined in the Amended and Restated Plan; or |
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the Company is liquidating or selling all or
substantially all of its assets. |
If the Company becomes a party to a merger or consolidation,
all outstanding awards shall be subject to the agreement of
merger or consolidation. The agreement of merger or
consolidation may provide for one or more of the following with
respect to all awards outstanding under the Amended and
Restated Plan:
all outstanding awards shall be subject to the agreement of
merger or consolidation. The agreement of merger or
consolidation may provide for one or more of the following with
respect to all awards outstanding under the Amended and
Restated Plan:
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the continuation of such outstanding awards (if the
Company is the surviving corporation); |
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the assumption of such outstanding awards by the
surviving corporation or its parent, provided that the assumption of stock options or stock appreciation rights shall comply with Section 424(a) of the Code; |
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the substitution by the surviving corporation or its
parent of new awards for such outstanding awards, provided that the substitution of stock options or stock appreciation rights shall comply with Section 424(a) of the Code; |
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full exercisability of outstanding stock options and
stock appreciation rights and full vesting of the Common Stock subject to such stock options and stock appreciation rights, followed by their cancellation immediately prior to the closing of the merger; |
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the cancellation of outstanding stock options and
stock appreciation rights and a payment to the optionees equal to the excess of (i) the fair market value of the Common Stock subject to such stock options and stock appreciation rights as of the closing date of such merger or consolidation over (ii) their exercise price; |
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the cancellation of outstanding stock units and a
payment to the holders equal to the fair market value of the Common Stock subject to such stock units as of the closing date of such merger or consolidation; or |
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full vesting of the Common Stock subject to
restricted share awards. |
The foregoing, as well as the provisions of any award agreement
providing for exercisability, transfer or accelerated vesting
of any stock option, stock appreciation right, restricted
shares or stock unit shall be inapplicable to an award granted
within six (6) months before the occurrence of any other change
in control, if the holder is subject to the reporting
requirements of Section 16(a) of the Exchange Act and no
exception from liability under Section 16(b) of the Exchange
Act is available.
providing for exercisability, transfer or accelerated vesting
of any stock option, stock appreciation right, restricted
shares or stock unit shall be inapplicable to an award granted
within six (6) months before the occurrence of any other change
in control, if the holder is subject to the reporting
requirements of Section 16(a) of the Exchange Act and no
exception from liability under Section 16(b) of the Exchange
Act is available.
Stock-Based Awards in Substitution for Options or Awards
Granted by Other Company
Granted by Other Company
Awards may be granted under the Amended and Restated Plan in
substitution for or in conversion of, or in connection with an
assumption of, stock options, stock appreciation rights,
restricted stock, restricted stock units or other stock or
stock-based awards held by awardees of an entity engaging in a
corporate acquisition or merger transaction with the Company or
any subsidiary. Any conversion, substitution or assumption will
be effective as of the close of the merger or acquisition, and,
to the extent applicable, will be conducted in a manner that
complies with Section 409A of the Code. The awards so granted
may reflect the original terms of the awards being assumed or
substituted or converted for and need not comply with other
specific terms of the Amended and Restated Plan, and may
account for shares of Common Stock substituted for the
securities covered by the original awards and the number of
shares subject to the original awards, as well as any exercise
or purchase prices applicable to the original awards, adjusted
to account for differences in stock prices in connection with
the transaction.
substitution for or in conversion of, or in connection with an
assumption of, stock options, stock appreciation rights,
restricted stock, restricted stock units or other stock or
stock-based awards held by awardees of an entity engaging in a
corporate acquisition or merger transaction with the Company or
any subsidiary. Any conversion, substitution or assumption will
be effective as of the close of the merger or acquisition, and,
to the extent applicable, will be conducted in a manner that
complies with Section 409A of the Code. The awards so granted
may reflect the original terms of the awards being assumed or
substituted or converted for and need not comply with other
specific terms of the Amended and Restated Plan, and may
account for shares of Common Stock substituted for the
securities covered by the original awards and the number of
shares subject to the original awards, as well as any exercise
or purchase prices applicable to the original awards, adjusted
to account for differences in stock prices in connection with
the transaction.
If the company acquired by or merged with the Company or any
subsidiary has shares available under a pre-existing plan
previously approved by stockholders and not adopted in
contemplation of such acquisition or merger, the shares
available for grant may be used for awards made after such
acquisition or merger under the Amended and Restated Plan;
provided, however, that awards using such available shares may
not be made after the date awards or grants could have been
made under the terms of the pre-existing plan absent the
acquisition or merger, and may only be made to individuals who
were not employees or directors of the Company or any
subsidiary prior to such acquisition or merger.
subsidiary has shares available under a pre-existing plan
previously approved by stockholders and not adopted in
contemplation of such acquisition or merger, the shares
available for grant may be used for awards made after such
acquisition or merger under the Amended and Restated Plan;
provided, however, that awards using such available shares may
not be made after the date awards or grants could have been
made under the terms of the pre-existing plan absent the
acquisition or merger, and may only be made to individuals who
were not employees or directors of the Company or any
subsidiary prior to such acquisition or merger.
Any shares of Common Stock issued to the two paragraphs above
will not reduce the shares of Common Stock available for
issuance or transfer under the Amended and Restated Plan or
count towards the limits, including the aggregate plan limit of
the Amended and Restated Plan.
will not reduce the shares of Common Stock available for
issuance or transfer under the Amended and Restated Plan or
count towards the limits, including the aggregate plan limit of
the Amended and Restated Plan.
Awards Under Other Plans
The Company may grant awards under other plans or programs
which may be settled in the form of shares of Common Stock
issued under the Amended and Restated Plan. Those shares will
be treated as shares of Common Stock issued in settlement of
stock units under the Amended and Restated Plan and will reduce
the maximum number of shares available under the Amended and
Restated Plan.
which may be settled in the form of shares of Common Stock
issued under the Amended and Restated Plan. Those shares will
be treated as shares of Common Stock issued in settlement of
stock units under the Amended and Restated Plan and will reduce
the maximum number of shares available under the Amended and
Restated Plan.
Amendment and Termination
Our Board of Directors may, at any time, amend or terminate the
Amended and Restated Plan without stockholder approval unless,
in the case of an amendment, (i) the amendment materially
increase the benefits accruing to participants under the
Amended and Restated Plan, (ii) the amendment would materially
increase the number of securities issuable under the Amended
and Restated Plan, (iii) the amendment would materially modify
the requirements for participation in the Amended and Restated
Plan, or (iv) applicable law or stock exchange rules would
otherwise require stockholder approval. Subject to adjustment
as described in the Amended and Restated Plan, no amendment or
termination may affect the rights of any participant under any
award previously granted under the Amended and Restated Plan
without the participants consent. All outstanding awards will
terminate immediately before our dissolution or liquidation.
Amended and Restated Plan without stockholder approval unless,
in the case of an amendment, (i) the amendment materially
increase the benefits accruing to participants under the
Amended and Restated Plan, (ii) the amendment would materially
increase the number of securities issuable under the Amended
and Restated Plan, (iii) the amendment would materially modify
the requirements for participation in the Amended and Restated
Plan, or (iv) applicable law or stock exchange rules would
otherwise require stockholder approval. Subject to adjustment
as described in the Amended and Restated Plan, no amendment or
termination may affect the rights of any participant under any
award previously granted under the Amended and Restated Plan
without the participants consent. All outstanding awards will
terminate immediately before our dissolution or liquidation.
Except in connection with a corporate transaction or event
described under the Amended and Restated Plan, the terms of
outstanding awards may not be amended without stockholder
approval to affect outstanding options or stock appreciation
rights in a way that reduces their exercise price or cancels
them in exchange for cash, other awards or options or stock
appreciation rights with an exercise price that is less than
the exercise price of the original options or stock
appreciation rights. Repricing of underwater options and stock
appreciation rights is not allowed.
described under the Amended and Restated Plan, the terms of
outstanding awards may not be amended without stockholder
approval to affect outstanding options or stock appreciation
rights in a way that reduces their exercise price or cancels
them in exchange for cash, other awards or options or stock
appreciation rights with an exercise price that is less than
the exercise price of the original options or stock
appreciation rights. Repricing of underwater options and stock
appreciation rights is not allowed.
If permitted by Section 409A and Section 162(m) of the Code,
but subject to the terms described in the Amended and Restated
Plan, the Committee may in the event of termination of
employment by reason of death, disability or retirement, or in
the case of unforeseeable emergency or other special
circumstances or in the event of a change in control accelerate
the time of exercise or the time of which risk of forfeiture or
prohibition or restriction on transfer would lapse or end or
may waive any other limitation or requirement for any not
immediately exercisable awards other than for qualified
performance-based awards where such actions could lead to the
loss of exemption under Section 162(m) of the Code. The
Committee may prospectively or retroactively amend the terms of
any award except where such action would lead to loss of
exemption under Section 162(m) (other than in connection with
the participants death, disability or change in control).
but subject to the terms described in the Amended and Restated
Plan, the Committee may in the event of termination of
employment by reason of death, disability or retirement, or in
the case of unforeseeable emergency or other special
circumstances or in the event of a change in control accelerate
the time of exercise or the time of which risk of forfeiture or
prohibition or restriction on transfer would lapse or end or
may waive any other limitation or requirement for any not
immediately exercisable awards other than for qualified
performance-based awards where such actions could lead to the
loss of exemption under Section 162(m) of the Code. The
Committee may prospectively or retroactively amend the terms of
any award except where such action would lead to loss of
exemption under Section 162(m) (other than in connection with
the participants death, disability or change in control).
The summary of the Amended and Restated Plan set forth in this
Item 5.02 does not purport to be complete and is qualified in
its entirety by reference to the text of the Amended and
Restated Plan, a form of which is being filed as Exhibit 10.1
hereto and is incorporated herein by reference.
Item 5.02 does not purport to be complete and is qualified in
its entirety by reference to the text of the Amended and
Restated Plan, a form of which is being filed as Exhibit 10.1
hereto and is incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
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Exhibit No.
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Description
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10.1
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Amended and Restated 2016 Long-Term Incentive Plan,
adopted by the Board of Directors on May 4, 2017 |
SAEXPLORATION HOLDINGS, INC. (NASDAQ:SAEX) Recent Trading Information
SAEXPLORATION HOLDINGS, INC. (NASDAQ:SAEX) closed its last trading session down -0.14 at 4.57 with 70,586 shares trading hands.
