BRISTOW
GROUP INC.
2007
LONG TERM INCENTIVE PLAN
SECTION
1.
GENERAL
PROVISIONS RELATING TO
PLAN
GOVERNANCE, COVERAGE AND BENEFITS
The
purpose of the Bristow Group Inc. 2007 Long Term Incentive Plan as set
forth
herein and as may be amended from time to time (the “Plan”) is to provide a
means whereby Bristow Group Inc., a Delaware corporation (the “Company” or
“Bristow”), may advance the best interests of the Company and any Parent or
Subsidiaries by providing Outside Directors, Employees and Consultants
with
additional incentives through the grant of Options to purchase Common Stock
of
the Company, par value US $0.01 per share (“Common Stock”), Shares of Restricted
Stock, Other Stock-Based Awards (payable in cash or Common Stock) and
Performance Awards, thereby increasing the personal stake of such Outside
Directors, Employees and Consultants in the continued success and growth
of the
Company.
The
Plan
provides for payment of various forms of incentive compensation and it
is not
intended to be a plan that is subject to the Employee Retirement Income
Security
Act of 1974, as amended (“ERISA”).
The
Plan
is adopted and made effective as of May 3, 2007 subject to Company stockholder
approval (the “Effective Date”) and shall remain in effect, subject to the right
of the Board to amend or terminate the Plan at any time pursuant to
Section 6.6, until all Shares
subject to the Plan have been purchased or acquired according to its
provisions. However, in no event may any Incentive Award be granted
under the Plan after the expiration of ten (10) years from the Effective
Date.
The
following terms shall have the meanings set forth below:
(a) Award
Letter. The written or electronic award
letter issued by the Company to the Grantee setting forth the terms and
conditions pursuant to which an Incentive Award is granted under the Plan,
as
further described in Section 5.1(a).
(b) Board. The
Board of Directors of the Company.
(c) Code. The
Internal Revenue Code of 1986, as amended, and the regulations and other
authority promulgated thereunder by the appropriate governmental
authority. References herein to any provision of the Code shall refer
to any successor provision thereto.
(d) Committee. A
committee appointed by the Board consisting of not less than two directors
as
appointed by the Board to administer the Plan. The Plan shall be
administered by a committee appointed by the Board consisting of not less
than
two directors who fulfill the “non-employee director” requirements of Rule 16b-3
under the Exchange Act, the “outside director” requirements of
Section 162(m) of the Code and the “independent” requirement of the rules
of any national securities exchange or the Nasdaq Stock Market, Inc. (“NASDAQ”),
as the case may be, on which any of the securities of the Company are traded,
listed or quoted, if any. The Committee may be the Compensation
Committee of the Board, or any subcommittee of the Compensation Committee,
provided that the members of the Committee satisfy the requirements of
the
previous provisions of this paragraph.
The
Board
shall have the power to fill vacancies on the Committee arising by resignation,
death, removal or otherwise. The Board, in its sole discretion, may
bifurcate the powers and duties of the Committee among one or more separate
committees, or retain all powers and duties of the Committee in a single
Committee. The members of the Committee shall serve at the discretion
of the Board.
Notwithstanding
the preceding paragraphs, the term “Committee” as used in the Plan with respect
to any Incentive Award for an Outside Director shall refer to the entire
Board. In the case of an Incentive Award for an Outside Director, the
Board shall have all the powers and responsibilities of the Committee hereunder
as to such Incentive Award, and any actions as to such Incentive Award
may be
acted upon only by the Board (unless it otherwise designates in its
discretion). When the Board exercises its authority to act in the
capacity as the Committee hereunder with respect to an Incentive Award
for an
Outside Director, it shall so designate with respect to any action that
it
undertakes in its capacity as the Committee.
(e) Consultant. An
independent agent, consultant, or any other individual who is not an Outside
Director or Employee of the Company (or any Parent or Subsidiary) and who
(i),
in the opinion of the Committee, is in a position to contribute to the
growth or
financial success of the Company (or any Parent or Subsidiary), (ii) is
a
natural person and (iii) provides bona fide services to the Company (or any
Parent or Subsidiary), which services are not in connection with the offer
or
sale of securities in a capital raising transaction, and do not directly
or
indirectly promote or maintain a market for the Company’s
securities.
(f) Employee. Any
employee of the Company (or any Parent or Subsidiary) within the meaning
of
Section 3401(c) of the Code, including, without limitation, officers who
are
members of the Board.
(g) Employment. Employment
by the Company (or any Parent or Subsidiary), or by any corporation issuing
or
assuming an Incentive Award in any transaction described in Section 424(a)
of
the Code, or by a parent corporation or a subsidiary corporation of such
corporation issuing or assuming such Incentive Award, as the parent-subsidiary
relationship shall be determined at the time of the corporate action described
in Section 424(a) of the Code. In this regard, neither the transfer
of a Grantee from Employment by the Company to Employment by any Parent
or
Subsidiary, nor the transfer of a Grantee from Employment by any Parent
or
Subsidiary to Employment by the Company, shall be deemed to be a termination
of
Employment of the Grantee. Moreover, the Employment of a Grantee
shall not be deemed to have been terminated because of an approved leave
of
absence from active Employment on account of temporary illness, authorized
vacation or granted for reasons of professional advancement, education,
health,
or government service, or military leave, or during any period required
to be
treated as a leave of absence by virtue of any applicable statute, Company
personnel policy or agreement. Whether an authorized leave of absence
shall constitute termination of Employment hereunder shall be determined
by the
Committee in its discretion.
Unless
otherwise provided in the Award Letter, the term “Employment” for purposes of
the Plan is also defined to include (i) compensatory or advisory services
performed by a Consultant for the Company (or any Parent or Subsidiary)
and (ii)
membership on the Board by an Outside Director.
(h) Exchange
Act. The Securities Exchange Act of
1934, as amended.
(i) Fair
Market Value. The Fair Market Value of
one share of Common Stock as of any date is deemed to be (i) the closing
sales
price on the date of determination of a share of Common Stock as reported
on the
consolidated reporting system for the securities exchange(s) on which Shares
are
then listed or admitted to trading (as reported in the Wall Street
Journal or other reputable source), or (ii) if not so reported, the
average of the closing bid and asked prices for a Share on
the date of determination as quoted on NASDAQ, or
(iii) if not quoted on NASDAQ, the average of the closing bid and asked
prices for a Share on the date of determination as quoted by the National
Quotation Bureau’s “Pink Sheets” or the National Association of Securities
Dealers’ OTC Bulletin Board System. If there was no public trade of
Common Stock on the date of determination, Fair Market Value shall be determined
by reference to the last preceding date on which such a trade was so
reported.
If
the
preceding paragraph is not applicable as of the date of determination,
the
determination of the Fair Market Value of the Common Stock for purposes
of the
Plan shall be made by the Committee in its discretion exercised in good
faith. In this respect, the Committee may rely on such financial
data, valuations, experts, and other sources, in its discretion, as it
deems
advisable under the circumstances.
(j) Grantee. Any
Employee, Consultant or Outside Director who is granted an Incentive Award
under
the Plan.
(k) Immediate
Family. With respect to a Grantee, the
Grantee’s spouse, children or grandchildren (including legally adopted and step
children and grandchildren).
(l) Incentive
Award. A grant of an award under the
Plan to a Grantee, including any Nonstatutory Stock Option, Incentive Stock
Option, Restricted Stock Award, Other Stock-Based Award or
Performance Award.
(m) Incentive
Stock Option or ISO. A Stock Option
granted by the Committee to an Employee under Section
2 which is designated by the Committee as an Incentive Stock Option
and
intended to qualify as an Incentive Stock Option under Section 422 of the
Code.
(n) Insider. An
individual who is, on the relevant date, an officer, director or 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, all as defined under
Section 16 of the Exchange Act.
(o) Nonstatutory
Stock Option. A Stock Option granted by the
Committee to a Grantee under Section 2 that
is not designated by the Committee as an Incentive Stock Option.
(p) Other
Stock-Based Award. An award granted by
the Committee to a Grantee under Section 4.1 that is valued in whole or
in part by
reference to, or is otherwise based upon, Common Stock.
(q) Outside
Director. A member of the Board who is
not, at the time of grant of an Incentive Award, an Employee of the Company
or
any Parent or Subsidiary.
(r) Parent.
Any
corporation (whether now or hereafter existing) which constitutes a
“parent” of the Company, as defined in Section 424(e) of the Code.
(s) Performance
Award. An award granted by the Committee to the Grantee under
Section 4.3.
(t) Performance-Based
Exception. The performance-based exception
from the tax deductibility limitations of Section 162(m) of the Code, as
prescribed in Code Section 162(m) and Treasury Regulation Section 1.162-27(e)
(or its successor), which is applicable during such period that the Company
is a
publicly held corporation as defined in Code Section 162(m).
(u) Performance
Criteria. The performance criteria described in Section 4.3 which
are the basis for
Performance Goals.
(v) Performance
Goal. The performance goal or goals applicable to a Performance
Award pursuant to Section 4.3 that is
determined by the Committee and set out in an Award Letter.
(w) Performance
Period. A period of time, as may be determined in the
discretion of the Committee and set out in an Award Letter, over which
performance is measured for the purpose of determining a Grantee’s right to and
the payment value of an Incentive Award.
(x) Performance
Share or Performance Unit. An Incentive Award that is a
Performance Award under Section 4.3
representing a contingent right to receive cash or Shares of Common Stock
(which
may be Restricted Stock or Restricted Stock units) at the end of a
Performance Period.
(y) Restricted
Stock. Shares of Common Stock issued or
transferred to a Grantee pursuant to Section
3.
(z) Restricted
Stock Award. An authorization by the Committee to
issue or transfer Restricted Stock to a Grantee.
(aa) Restriction
Period. The period of time determined by the
Committee and set forth in an Award Letter during which the transfer of
Restricted Stock by the Grantee is restricted.
(bb) Share. A
share of the Common Stock.
(cc) Stock
Option or Option. Pursuant to Section 2, (i) an Incentive Stock
Option granted
to an Employee or (ii) a Nonstatutory Stock Option granted to an Employee,
Consultant or Outside Director, whereunder such stock option the Grantee
has the
right to purchase Shares of Common Stock. In accordance with Section
422 of the Code, only an Employee may be granted an Incentive Stock
Option.
(dd) Subsidiary. Any
corporation (whether now or hereafter existing) which constitutes a “subsidiary”
of the Company, as defined in Section 424(f) of the Code.
(a) With
respect to awards to eligible Employees, Consultants and Outside Directors,
the
Plan shall be administered by the Committee as defined in Section
1.2(d).
(b) Authority
of the Committee. Except as may be
limited by law and subject to the provisions herein, the Committee shall
have
full power to (i) select Grantees who shall participate in the Plan; (ii)
determine the sizes, duration and types of Incentive Awards; (iii) determine
the
terms and conditions of Incentive Awards; (iv) determine whether any Shares
subject to Incentive Awards will be subject to any restrictions on transfer;
(v)
construe and interpret the Plan, the terms and conditions of Incentive
Awards,
the Award Letter or any agreement entered into under the Plan; and (vi)
establish, amend, or waive rules for the Plan’s
administration. Further, the Committee shall make all other
determinations which may be necessary or advisable for the administration
of the
Plan including, without limitation, correcting any defect, supplying any
omission or reconciling any inconsistency in the Plan or any Award
Letter.
(c) Decisions
Binding. All determinations and
decisions made by the Committee shall be made in its discretion pursuant
to the
provisions of the Plan, and shall be final, conclusive and binding on all
persons including the Company, its Parent and Subsidiaries, and its
stockholders, Employees, Grantees, and their estates and
beneficiaries. The Committee’s decisions and determinations with
respect to any Incentive Award need not be uniform and may be made selectively
among Incentive Awards and Grantees, whether or not such Incentive Awards
are
similar or such Grantees are similarly situated.
(d) Modification
of Outstanding Incentive Awards; Prohibition on
Repricing. Subject to the stockholder
approval requirements of Section 6.6
if applicable and except as otherwise provided in Section 4.3, the
Committee may, in its discretion, provide for the extension of the
exercisability of an Incentive Award, accelerate the vesting or exercisability
of an Incentive Award, eliminate or make less restrictive any restrictions
contained in an Incentive Award, waive any restriction or other provisions
of an
Incentive Award, or otherwise amend or modify an Incentive Award in any
manner
that is either (i) except as otherwise provided in Section 6.14, not
adverse to the Grantee to whom such Incentive Award was granted or (ii)
consented to by such Grantee. The Committee may neither (i) amend any
Option or stock appreciation right (“SAR”) to reduce its initial Exercise Price
or grant price, nor (ii) cancel or replace any Option or SAR with Options
or
SARs having a lower Exercise Price or grant price, without the approval
of the
stockholders of the Company.
(e) Delegation
of Authority. The Committee may
delegate to designated officers or other Employees of the Company any of
its
duties under this Plan pursuant to such conditions or limitations as the
Committee may establish from time to time; provided, however, the Committee
may
not delegate to any person the authority to (i) grant Incentive Awards
to
Employees who are executive officers, or (ii) take any action which would
contravene the requirements of Rule 16b-3 under the Exchange Act or the
Performance-Based Exception under Section 162(m) of the Code.
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1.4
|
Shares
of Common Stock Available for Incentive
Awards
|
Subject
to adjustment under Section 5.5, there
shall be available for Incentive Awards under the Plan that are granted
wholly
or partly in Common Stock (including rights or Stock Options that may be
exercised for or settled in Common Stock) 1,200,000 Shares of Common Stock;
in
addition any Shares under any grants or awards under the Bristow 2004 Stock
Incentive Plan or the Bristow 2003 Nonqualified Plan for Non-Employee Directors
(the “Prior Plans”) that expire or are forfeited, terminated or otherwise
cancelled or that are settled in cash in lieu of shares shall be available
for
Incentive Awards under this Plan. Of the total amount of Shares
available under the Plan, 500,000 of the Shares reserved under the Plan
shall be
available for grants based on stock other than as a Stock Option or
SAR. The number of Shares of Common Stock that are the subject of
Incentive Awards under this Plan that are forfeited or terminated, are
cancelled, expire unexercised, are settled in cash in lieu of Common Stock
or
are exchanged for Incentive Awards that do not involve Common Stock, shall
again
immediately become available for Incentive Awards hereunder. With
respect to SARs, when a stock-settled SAR is exercised, the Shares of Common
Stock subject to the SAR Award Letter shall be counted against the number
of
Shares of Common Stock available for future grant or sale under the Plan,
regardless of the number of Shares of Common Stock used to settle the SAR
upon
exercise. Shares of Common Stock used to pay the exercise price of a
Stock Option or used to satisfy tax withholding obligations shall not become
available for future grant or sale under this Plan. The Board and the
appropriate officers of the Company shall from time to time take whatever
actions are necessary to file any required documents with governmental
authorities, stock exchanges and transaction reporting systems to ensure
that
Shares are available for issuance pursuant to Incentive Awards.
The
following limitations shall apply to grants of Incentive Awards to
Employees:
(a) Subject
to adjustment as provided in Section 5.5, the maximum aggregate number
of Shares of
Common Stock that may be subject to Incentive Awards denominated with respect
to
Shares of Common Stock (including Stock Options, Restricted Stock, Other
Stock-Based Awards, SARs or Performance Awards paid out in Shares) granted
to an
Employee in any calendar year shall be 200,000 Shares.
(b) With
respect to Incentive Awards denominated with respect to cash (including
Other
Stock–Based Awards or Performance Awards paid out in cash), the maximum
aggregate cash payout to an Employee in any calendar year shall be
$5,000,000.
(c) The
limitations of subsections (a) and (b) above shall
be construed and administered so as to comply with the Performance-Based
Exception.
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1.5
|
Common
Stock Available.
|
The
Common Stock available for issuance or transfer under the Plan shall be
made
available from (a) Shares now or hereafter held in the treasury of the
Company,
(b) authorized but unissued Shares, or (c) Shares to be purchased or
acquired by the Company; provided, however, the Company shall not use cash
proceeds from the exercise of Options granted under the Plan to purchase
Shares
in a non-private transaction for issuance or transfer under the
Plan. No fractional shares shall be issued under the Plan; payment
for fractional shares shall be made in cash.
(a) Eligibility. Employees,
Consultants and/or Outside Directors may become eligible for Incentive
Awards. The Committee shall from time to time designate those
Employees, Consultants and/or Outside Directors, if any, to be granted
Incentive
Awards under the Plan, the type of Incentive Awards granted, the number
of
Shares covered by the Incentive Award granted to each such person, and
any other
terms or conditions relating to the Incentive Awards as it may deem appropriate
to the extent not inconsistent with the provisions of the Plan. A
Grantee who has been granted an Incentive Award may, if otherwise eligible,
be
granted additional Incentive Awards at any time.
(b) Incentive
Stock Option Eligibility. No Consultant
or Outside Director shall be eligible for the grant of any Incentive Stock
Option. In addition, no Employee shall be eligible for the grant of
any Incentive Stock Option who owns or would own immediately before the
grant of
such Incentive Stock Option, directly or indirectly, stock possessing more
than
ten percent (10%) of the total combined voting power of all classes of
stock of
the Company, or any Parent or Subsidiary. This restriction does not
apply if, at the time such Incentive Stock Option is granted, the Exercise
Price
with respect to the Incentive Stock Option is at least one hundred and
ten
percent (110%) of the Fair Market Value on the date of grant and the Incentive
Stock Option by its terms is not exercisable after the expiration of five
(5)
years from the date of grant. For the purpose of the immediately
preceding sentence, the attribution rules of Section 424(d) of the Code
shall
apply for the purpose of determining an Employee’s percentage ownership in the
Company or any Parent or Subsidiary. This paragraph shall be
construed consistent with the requirements of Section 422 of the
Code.
SECTION
2.
STOCK
OPTIONS
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2.1
|
Grant
of Stock Options
|
The
Committee is authorized to grant (a) Nonstatutory Stock Options to Employees,
Consultants and/or Outside Directors and (b) Incentive Stock Options to
Employees only in accordance with the terms and conditions of the Plan,
and with
such additional terms and conditions, not inconsistent with the Plan, as
the
Committee shall determine in its discretion. Successive grants may be
made to the same Grantee whether or not any Stock Option previously granted
to
such person remains unexercised.
(a) Award
Letter. Each grant of a Stock Option
shall be evidenced by an Award Letter. Among its other terms and
conditions, each Award Letter shall set forth the extent to which the Grantee
shall have the right to exercise the Stock Option following termination
of the
Grantee’s Employment.
(b) Number
of Shares. Each award of a Stock Option
shall specify the number of Shares of Common Stock to which it
pertains.
(c) Exercise
Price. The price at which a share of
Common Stock may be purchased pursuant to each Stock Option (the
“Exercise Price”) shall be determined by the Committee; provided, however, that
the Exercise Price shall not be less than one hundred percent (100%) of
the Fair
Market Value per Share on the date the Stock Option is granted (110% for
an
Incentive Stock Option granted to 10% or greater stockholders pursuant
to
Section 1.6(b)). Each Stock Option
shall specify the method of exercise which shall be consistent with the
requirements of Section 2.3(a).
(d) Term. In
the Award Letter, the Committee shall fix the term of each Stock Option
(which
shall be not more than ten (10) years from the date of grant or, for ISO
grants
to ten percent (10%) or greater stockholders pursuant to Section 1.6(b), five (5) years from the
date of
grant). In the event no term is fixed, such term shall be ten (10)
years from the date of grant.
(e) Exercise. The
Committee shall determine the time or times at which a Stock Option may
be
exercised in whole or in part. Each Stock Option may specify the
required period of continuous Employment and/or the performance objectives
to be
achieved before the Stock Option or portion thereof will become
exercisable. Each Stock Option, the exercise of which, or the timing
of the exercise of which, is dependent, in whole or in part, on the achievement
of designated performance objectives, may specify a minimum level of achievement
in respect of the specified performance objectives below which no Stock
Options
will be exercisable and a method for determining the number of Stock Options
that will be exercisable if performance is at or above such minimum but
short of
full achievement of the performance objectives. All such terms and
conditions shall be set forth in the Award Letter.
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2.3
|
Stock
Option Exercises
|
(a) Method
of Exercise and Payment. Stock Options
shall be exercised by the delivery of a written or electronic notice of
exercise
to the Company as of a date set by the Company in advance of the effective
date
of the proposed exercise. The notice shall set forth the number of
Shares with respect to which the Option is to be exercised, accompanied
by full
payment for the Shares.
The
Exercise Price shall be payable to the Company in full in cash or its
equivalent, or subject to prior approval by the Committee in its discretion,
(i)
by tendering previously acquired Shares having an aggregate Fair Market
Value at
the time of exercise equal to the total Exercise Price, (ii) by withholding
Shares which otherwise would be acquired on exercise having an aggregate
Fair
Market Value at the time of exercise equal to the total Exercise Price,
or (iii)
by a combination of (i) and (ii) above. Any payment in Shares shall
be effected by the surrender of such Shares to the Company in good form
for
transfer and shall be valued at their Fair Market Value on the date when
the
Stock Option is exercised. Unless otherwise permitted by the
Committee in its discretion, the Grantee shall not surrender, or attest
to the
ownership of, Shares in payment of the Exercise Price if such action would
cause
the Company to recognize compensation expense (or additional compensation
expense) with respect to the Stock Option for financial reporting
purposes.
As
soon
as practicable after receipt of notification of exercise and full payment,
the
Company shall deliver, or cause to be delivered, to or on behalf of the
Grantee,
in the name of the Grantee or other appropriate recipient, Share certificates
for the number of Shares purchased under the Stock Option.
Subject
to Section 5.2, during the lifetime of
a Grantee, each Option granted to him shall be exercisable only by the
Grantee
(or his legal guardian in the event of his disability) or by a broker-dealer
acting on his behalf pursuant to a cashless exercise under the foregoing
provisions of this Section 2.3(a).
(b) Restrictions
on Share Transferability. The Committee
may impose such restrictions on any grant of Stock Options or on any Shares
acquired pursuant to the exercise of a Stock Option as it may deem advisable,
including, without limitation, restrictions under (i) any buy/sell agreement
or
right of first refusal, non-competition, and any other agreement between
the
Company and any of its securities holders or Employees, (ii) any applicable
federal securities laws, (iii) the requirements of any stock exchange or
market
upon which such Shares are then listed and/or traded, or (iv) any blue
sky or
state securities law applicable to such Shares. Any certificate
issued to evidence Shares issued upon the exercise of an Incentive Award
may
bear such legends and statements as the Committee shall deem advisable
to assure
compliance with federal and state laws and regulations.
Any
Grantee or other person exercising an Incentive Award may be required by
the
Committee to give a written representation that the Incentive Award and
the
Shares subject to the Incentive Award will be acquired for investment and
not
with a view to public distribution; provided, however, that the Committee,
in
its sole discretion, may release any person receiving an Incentive Award
from
any such representations either prior to or subsequent to the exercise
of the
Incentive Award.
(c) Notification
of Disqualifying Disposition of Shares from Incentive Stock
Options. Notwithstanding any other
provision of the Plan, a Grantee who disposes of Shares of Common Stock
acquired
upon the exercise of an Incentive Stock Option by a sale or exchange either
(i)
within two (2) years after the date of the grant of the Incentive Stock
Option
under which the Shares were acquired or (ii) within one (1) year after
the
transfer of such Shares to him pursuant to exercise, shall promptly notify
the
Company of such disposition, the amount realized and his adjusted basis
in such
Shares.
(d) Proceeds
of Option Exercise. The proceeds
received by the Company from the sale of Shares pursuant to Stock Options
exercised under the Plan shall be used for general corporate
purposes.
SECTION
3.
RESTRICTED
STOCK
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3.1
|
Award
of Restricted Stock
|
(a) Grant. In
consideration of the performance of services by any Grantee who is an Employee,
Consultant or Outside Director, Shares of Restricted Stock may be awarded
under
the Plan by the Committee with such restrictions during the Restriction
Period
as the Committee may designate in its discretion, any of which restrictions
may
differ with respect to each particular Grantee. Restricted Stock may,
at the discretion of the Committee, be awarded upon the satisfaction of
performance objectives. The award or vesting of Restricted Stock may
also, at the discretion of the Committee, be conditioned upon the achievement
of
Performance Goals in the same manner as provided in Section 4.3 with
respect to Performance Awards. Restricted Stock shall be awarded for
no additional consideration or such additional consideration as the Committee
may determine, which consideration may be less than, equal to or more than
the
Fair Market Value of the shares of Restricted Stock on the grant
date. The terms and conditions of each grant of Restricted Stock
shall be evidenced by an Award Letter.
(b) Immediate
Transfer Without Immediate Delivery of Restricted
Stock. Unless otherwise specified in
the Grantee’s Award Letter, each Restricted Stock Award shall constitute an
immediate transfer of the record and beneficial ownership of the Shares
of
Restricted Stock to the Grantee in consideration of the performance of
services
entitling such Grantee to all voting and other ownership rights in such
Shares.
As
specified in the Award Letter, a Restricted Stock Award may limit the Grantee’s
dividend rights during the Restriction Period in which the Shares of Restricted
Stock are subject to a “substantial risk of forfeiture” (within the meaning
given to such term under Code Section 83) and restrictions on
transfer. In the Award Letter, the Committee may apply any
restrictions to the dividends that the Committee deems appropriate.
Shares
awarded pursuant to a grant of Restricted Stock may be issued in the name
of the
Grantee and held, together with a stock power endorsed in blank, by the
Committee or Company (or their delegates) or in trust or in escrow pursuant
to
an agreement satisfactory to the Committee, until such time as the restrictions
on transfer have expired. All such terms and conditions shall be set
forth in the particular Grantee’s Award Letter.
(a) Forfeiture
of Restricted Stock. Unless otherwise
specified by the Committee in the Award Letter, the Restricted Stock that
is
subject to restrictions which are not satisfied shall be forfeited and
all
rights of the Grantee to such Shares shall terminate. Restrictions
shall be set forth in the particular Grantee’s Award Letter and may lapse upon
the satisfaction of performance objectives.
(b) Removal
of Restrictions. The Committee, in its
discretion, shall have the authority to remove any or all of the restrictions
on
the Restricted Stock if it determines that, by reason of a change in applicable
law or another change in circumstance arising after the grant date of the
Restricted Stock, such action is appropriate.
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3.3
|
Delivery
of Shares of Common Stock
|
Subject
to withholding taxes under Section 6.2 and to the terms of the Award
Letter, a
stock certificate evidencing the Shares of Restricted Stock with respect
to
which the restrictions in the Award Letter have been satisfied shall be
delivered to the Grantee or other appropriate recipient free of
restrictions. Such delivery shall be effected for all purposes when
the Company shall have deposited such certificate in the United States
mail,
addressed to the Grantee or other appropriate recipient.
SECTION
4.
OTHER
STOCK-BASED AWARDS AND PERFORMANCE AWARDS
|
4.1
|
Grant
of Other Stock-Based
Awards
|
Other
Stock-Based Awards may be awarded by the Committee to selected Grantees
that are
denominated or payable in, valued in whole or in part by reference to,
or
otherwise related to, Shares of Common Stock, as deemed by the Committee
to be
consistent with the purposes of the Plan and the goals of the
Company. Other Stock-Based Awards include, without limitation, SARs,
purchase rights, Shares of Common Stock awarded which are not subject to
any
restrictions or conditions, convertible or exchangeable debentures, other
rights
convertible into Shares, Incentive Awards valued by reference to the value
of
securities of, or the performance of, the Company or a specified Subsidiary,
division or department, and settlement in cancellation of rights of any
person
with a vested interest in any other plan, fund, program or arrangement
that is
or was sponsored, maintained or participated in by the Company or any Parent
or
Subsidiary. As is the case with other Incentive Awards, Other
Stock-Based Awards may be awarded either alone or in addition to or in
tandem
with any other Incentive Awards.
|
4.2
|
Other
Stock-Based Award Terms
|
(a) Award
Letter. The terms and conditions of
each grant of an Other Stock-Based Award shall be evidenced by an Award
Letter.
(b) Purchase
Price. Except to the extent that an
Other Stock-Based Award is granted in substitution for an outstanding Incentive
Award or is delivered upon exercise of a Stock Option, the amount of
consideration required to be received by the Company shall be either (i)
no
consideration other than services actually rendered (in the case of authorized
and unissued shares) or to be rendered, or (ii) in the case of an Other
Stock-Based Award in the nature of a purchase right, consideration (other
than
services rendered or to be rendered) at least equal to fifty percent (50%)
of
the Fair Market Value of the Shares covered by such grant on the date of
grant
(or such other percentage higher than 50% that is required by applicable
tax or
securities law). Notwithstanding the foregoing, with respect to an
Incentive Award for a SAR, the exercise price per share of Common Stock
covered
by the SAR shall not be less than one hundred percent (100%) of Fair Market
Value of a share of Common Stock on the date of the grant of the
SAR.
(c) Performance
Criteria and Other Terms. In its discretion, the
Committee may specify such criteria, periods or goals for the grant or
vesting
in Other Stock-Based Awards and payment thereof to the Grantee as it shall
determine; and the extent to which such criteria, periods or goals have
been met
shall be determined by the Committee. The grant, vesting or payment
of Other Stock-Based Awards may also, at the discretion of the Committee,
be
conditioned upon the achievement of Performance Goals in the same manner
as
provided in Section 4.3 with respect to Performance
Awards. All terms and conditions of Other Stock-Based Awards shall be
determined by the Committee and set forth in the Award Letter.
(d) Payment. Other
Stock-Based Awards may be paid in Shares of Common Stock or other consideration,
including cash, related to such Shares, in a single payment or in installments
on such dates as determined by the Committee, all as specified in the Award
Letter.
(e) Dividends. The
Grantee of an Other Stock-Based Award shall not be entitled to receive,
currently or on a deferred basis, dividends or dividend equivalents with
respect
to the number of Shares covered by the Other Stock-Based Award, unless
(and to
the extent) otherwise determined by the Committee and set forth in the
Award
Letter. The Committee may also provide in the Award Letter that the
amounts of any dividends or dividend equivalent shall be deemed to have
been
reinvested in additional Shares of Common Stock.
(a) Grant.
The Committee is authorized to grant Performance Awards to selected Grantees
who
are Employees or Consultants. Performance Awards may be by reference
to Performance Shares or Performance Units, and may at the discretion of
the
Committee, be awarded upon the satisfaction of Performance Goals. The
vesting or settlement of Performance Awards may also, in the discretion
of the
Committee, be conditioned upon the achievement of Performance
Goals. Each grant of Performance Awards shall be evidenced by an
Award Letter in such amounts and upon such terms as shall be determined
by the
Committee. When the Committee desires a Performance Award to qualify
for the Performance-Based Exception, the Committee shall establish the
Performance Goals for the respective Performance Award prior to or within
90
days of the beginning of the Performance Period relating to such Performance
Goal, or at such other date as may be permitted or required for the
Performance-Based Exception, and not later than after 25 percent of such
Period
has elapsed, and such Performance Goals shall otherwise comply with the
requirements of the Performance-Based Exception. For all other
Performance Awards, the Performance Goals must be established before the
end of
the respective Performance Period. The Committee may make grants of
Performance Awards in such a manner that more than one Performance Period
is in
progress concurrently. For each Performance Period, the Committee shall
establish the number of Performance Awards and their contingent values
which may
vary depending on the degree to which Performance Criteria established
by the
Committee are met. The Committee shall have the power to impose such
other restrictions on Performance Awards intended to qualify for the
Performance-Based Exception as it may deem necessary or appropriate to
ensure
that such Performance Awards satisfy all the requirements to qualify for
the
Performance-Based Exception.
(b) Performance
Criteria. The Committee may establish Performance Goals applicable
to Performance Awards based upon the Performance Criteria and other factors
set
forth below in one or more of the following categories: (i) performance
of the
Company as a whole, (ii) performance of a segment of the Company’s business, and
(iii) individual performance and either as an absolute measure or as a
measure
of comparative performance relative to a peer group of companies, an index,
budget, prior period, or other standard selected by the
Committee. Performance Criteria for the Company shall relate to the
achievement of predetermined financial and operating objectives for the
Company
and its Subsidiaries on a consolidated basis. Performance Criteria for
a segment
of the Company’s business shall relate to the achievement of financial and
operating objectives of the segment for which the Grantee is
accountable. “Performance Criteria” means one or more of the
following measures: sales, free cash flow, revenue, pre-tax or after-tax
profit
levels, including: earnings per share, operating earnings, earnings before
interest and taxes, earnings before interest, taxes, depreciation and
amortization, net operating profits after tax, and net income; total stockholder
return; return on assets, equity, capital or investment; cash flow and
cash flow
return on investment; economic value added and economic profit; growth
in
earnings per share, debt to equity ratio, market share, price per share
of
Common Stock, economic value added and market value added; levels of operating
expense and maintenance expense or measures of customer satisfaction and
customer service as determined from time to time including the relative
improvement therein; safety measurements including: total recordable
incident rate to labor hours ratios, lost time accidents to labor hours
ratios,
or flight accidents to flight hours ratios; or such similar objectively
determinable financial or other measures as may be adopted by the Committee.
Individual Performance Criteria shall relate to a Grantee’s overall performance,
taking into account, among other measures of performance, the attainment
of
individual goals and objectives. The Performance Goals may differ among
Grantees, including among similarly situated Grantees. Performance
Criteria shall be calculated in accordance with the Company’s financial
statements or generally accepted accounting principles, on an operating
basis,
or under a methodology established by the Committee prior to the issuance
of a
Performance Award that is consistently applied and identified. In
establishing a Performance Goal applicable to a Performance Award, the
Committee
may provide that the attainment of the Performance Goal shall be measured
by
appropriately adjusting the evaluation of Performance Goal achievement
to
exclude (i) any extraordinary non-recurring items as described in Accounting
Principles Board Opinion No. 30 and/or in management’s discussion and analysis
of financial condition and results of operations appearing in the Company’s
annual report to stockholders for the applicable year, or (ii) the effect
of any
changes in accounting principles affecting the Company’s, a Subsidiary’s or a
business segment’s reported results.
(c) Modification. If
the Committee determines, in its discretion exercised in good faith, that
the
established Performance Goals are no longer suitable to the Company’s objectives
because of a change in the Company’s business, operations, corporate structure,
capital structure, or other conditions the Committee deems to be appropriate,
the Committee may modify the Performance Goals to the extent it considers
such
modification to be necessary; provided, however, no such modification shall
be
made with respect to any Performance Award that is intended to qualify
for the
Performance-Based Exception unless (i) such modification is made no later
than
the deadline established under Code Section 162(m), and (ii) no Performance
Award is paid under the modified Performance Goal until after the material
terms
of the modified Performance Goal are disclosed to and approved by the Company’s
stockholders to the extent required by Code Section 162(m).
(d) Payment. The
basis for the grant, vesting or payment, as applicable, of Performance
Awards
for a given Performance Period shall be the achievement of those Performance
Goals determined by the Committee as specified in the Grantee’s Award
Letter. If minimum performance is not achieved for a Performance
Period, no payment shall be made and all contingent rights under the Performance
Award shall cease. At any time prior to the payment of a Performance
Award, unless otherwise provided by the Committee or prohibited by the
Plan, the
Committee shall have the authority to reduce or eliminate the amount payable
with respect to the Performance Award, or to cancel any part or all
of the Performance Award but, with respect to Performance Awards
intended to qualify for the Performance-Based Exception, shall not have
the
authority in its discretion to increase the amount payable with respect
to the
Performance Award except as permitted under Section 5.5. With
respect to Performance Awards intended to qualify for the Performance-Based
Exception, the Committee may not waive the achievement of the applicable
Performance Goal except to the extent provided in the respective Award
Letter
upon the death or disability of the Grantee or a change in control of the
Company. The Committee’s determination with respect to a Performance
Period of whether and to what extent a Performance Goal has been achieved,
and,
if so, of the amount of the Performance Award earned for the Performance
Period
shall be final and binding on the Company and all Grantees, and, with respect
to
Performance Awards that are intended to qualify for the Performance-Based
Exception, these determinations shall be certified in writing before such
Performance Awards are paid.
SECTION
5.
PROVISIONS
RELATING TO PLAN PARTICIPATION
(a) Award
Letter. Each Grantee to whom an
Incentive Award is granted shall be provided an Award Letter by the Company,
in
such form as is provided by the Committee. The Award Letter shall
contain specific terms as determined by the Committee, in its discretion,
with
respect to the Grantee’s particular Incentive Award. Such terms need
not be uniform among all Grantees or any similarly situated
Grantees. The Award Letter may include, without limitation, vesting,
forfeiture and other provisions particular to the particular Grantee’s Incentive
Award, as well as, for example, provisions to the effect that the Grantee
(i)
shall not disclose any confidential information acquired during Employment
with
the Company, (ii) shall abide by all the terms and conditions of the Plan
and
such other terms and conditions as may be imposed by the Committee, (iii)
shall
not interfere with the employment or other service of any Employee, (iv)
shall
not compete with the Company or become involved in a conflict of interest
with
the interests of the Company, (v) shall forfeit an Incentive Award if terminated
for Cause, (vi) shall not be permitted to make an election under Section
83(b)
of the Code when applicable, and (vii) shall be subject to any other agreement
between the Grantee and the Company regarding Shares that may be acquired
under
an Incentive Award including, without limitation, an agreement restricting
the
transferability of Shares by Grantee. An Award Letter shall include
such terms and conditions as are determined by the Committee, in its discretion,
to be appropriate with respect to any individual
Grantee.
(b) No
Right to Employment. Nothing in the
Plan or any instrument executed pursuant to the Plan shall create any Employment
rights (including without limitation, rights to continued Employment) in
any
Grantee or affect the right of the Company to terminate the Employment
of any
Grantee at any time without regard to the existence of the Plan.
(c) Securities
Requirements. The Company shall be
under no obligation to effect the registration pursuant to the Securities
Act of
1933 of any Shares of Common Stock to be issued hereunder or to effect
similar
compliance under any state laws. Notwithstanding anything herein to
the contrary, the Company shall not be obligated to cause to be issued
or
delivered any certificates evidencing Shares pursuant to the Plan unless
and
until the Company is advised by its counsel that the issuance and delivery
of
such certificates is in compliance with all applicable laws, regulations
of
governmental authorities, and the requirements of any securities exchange
on
which Shares are traded. The Committee may require, as a condition of
the issuance and delivery of certificates evidencing Shares of Common Stock
pursuant to the terms hereof, that the recipient of such Shares make such
covenants, agreements and representations, and that such certificates bear
such
legends, as the Committee, in its discretion, deems necessary or
desirable.
|
5.2
|
Transferability
and Exercisability
|
Incentive
Awards granted under the Plan shall not be transferable or assignable other
than: (a) by will or the laws of descent and distribution or (b) pursuant
to a
qualified domestic relations order (as defined by Section 414(p) of the
Code);
provided, however, only with respect to Incentive Awards of Nonstatutory
Stock
Options, the Committee may, in its discretion, authorize all or a portion
of the
Nonstatutory Stock Options to be granted on terms which permit transfer
by the
Grantee to (i) the members of the Grantee’s Immediate Family, (ii) a
trust or trusts for the exclusive benefit of such Immediate Family (except
that
the Grantee may also be a beneficiary of such trust), or (iii) a partnership
in
which such members of such Immediate Family are the only partners (except
that
Grantee may also be a partner), provided that (A) there may be no
consideration for any such transfer, (B) the Award Letter pursuant to which
such Nonstatutory Stock Options are granted must be approved by the Committee,
and must expressly provide for transferability in a manner consistent with
this
Section 5.2, and (C) subsequent transfers
of transferred Options shall be prohibited except in accordance with clauses
(a)
and (b) (above) of this sentence. Following any permitted transfer,
any Incentive Award shall continue to be subject to the same terms and
conditions as were applicable immediately prior to transfer, provided that
the
term “Grantee” shall be deemed to refer to the transferee. The
termination of Employment events in the Award Letter shall continue to
be
applied with respect to the original Grantee, and the Incentive Award shall
be
exercisable by the transferee only to the extent, and for the periods,
specified
in the Award Letter.
Except
as
may otherwise be permitted under the Code, in the event of a permitted
transfer
of a Nonstatutory Stock Option hereunder, the original Grantee shall remain
subject to withholding taxes upon exercise. In addition, the Company
shall have no obligation to provide any notices to a transferee including,
for
example, of the termination of an Incentive Award following the original
Grantee’s termination of Employment.
In
the
event that a Grantee terminates Employment with the Company to assume a
position
with a governmental, charitable, educational or other nonprofit institution,
the
Committee may, in its discretion, subsequently authorize a third party,
including but not limited to a “blind” trust, to act on behalf of and for the
benefit of such Grantee regarding any outstanding Incentive Awards held
by the
Grantee subsequent to such termination of Employment. If so permitted
by the Committee, a Grantee may designate a beneficiary or beneficiaries
to
exercise the rights of the Grantee and receive any distribution under the
Plan
upon the death of the Grantee.
No
transfer by will or by the laws of descent and distribution shall be effective
to bind the Company unless the Committee has been furnished with a copy
of the
deceased Grantee’s enforceable will or such other evidence as the Committee
deems necessary to establish the validity of the transfer. Any
attempted transfer in violation of this Section 5.2
shall be void and ineffective. All determinations under this Section
5.2 shall be made by the Committee in its
discretion.
|
5.3
|
Rights
as a Stockholder
|
(a) No
Stockholder Rights. Except as otherwise
provided in Section 3.1(b) for
grants of Restricted Stock, a Grantee of an Incentive Award (or a permitted
transferee of such Grantee) shall have no rights as a stockholder with
respect
to any Shares of Common Stock until the issuance of a stock certificate
for such
Shares.
(b) Representation
of Ownership. In the case of the
exercise of an Incentive Award by a person or estate acquiring the right
to
exercise such Incentive Award by reason of the death or disability of a
Grantee,
the Committee may require reasonable evidence as to the ownership of such
Incentive Award or the authority of such person and may require such consents
and releases of taxing authorities as the Committee may deem
advisable.
|
5.4
|
Listing
and Registration of Shares of Common
Stock
|
The
exercise of any Incentive Award granted hereunder shall only be effective
at
such time as counsel to the Company shall have determined that the issuance
and
delivery of Shares of Common Stock pursuant to such exercise is in compliance
with all applicable laws, regulations of governmental authorities and the
requirements of any securities exchange on which Shares of Common Stock
are
traded. The Committee may, in its discretion, defer the effectiveness
of any exercise of an Incentive Award in order to allow the issuance of
Shares
of Common Stock to be made pursuant to a registration statement, or an
exemption
from registration, or other methods for compliance available under federal
or
state securities laws. The Committee shall inform the Grantee in
writing or electronically of its decision to defer the effectiveness of
the
exercise of an Incentive Award. During the period that the
effectiveness of the exercise of an Incentive Award has been deferred,
the
Grantee may, by written or electronic notice to the Committee, as permitted
by
the Committee in its discretion, withdraw such exercise and obtain the
refund of
any amount paid with respect thereto.
|
5.5
|
Change
in Stock and Adjustments
|
(a) Changes
in Law or Circumstances. In the event
of any change in applicable law or any change in circumstances which results
in
or would result in any dilution of the rights granted under the Plan, or
which
otherwise warrants an equitable adjustment because it interferes with the
intended operation of the Plan, then, if the Committee should so determine,
in
its absolute discretion, that such change equitably requires an adjustment
in
the number or kind of shares of stock or other securities or property
theretofore subject, or which may become subject, to issuance or transfer
under
the Plan or in the terms and conditions of outstanding Incentive Awards,
such
adjustment shall be made in accordance with such determination. Such
adjustments may include changes with respect to (i) the aggregate number
of
Shares that may be issued under the Plan and that are subject to the special
limits under Section 1.4, (ii) the number of Shares subject to Incentive
Awards, and (iii) the Exercise Price or other price per Share for outstanding
Incentive Awards. Any adjustment under this paragraph of an
outstanding Incentive Stock Option shall be made only to the extent permitted
under Code Section 424 and not constituting a “modification” within the meaning
of Section 424(h)(3) of the Code unless otherwise agreed to by the Grantee
in
writing or electronically. The Committee shall give notice to each
applicable Grantee of such adjustment which shall be effective and
binding.
(b) Exercise
of Corporate Powers. The existence of
the Plan or outstanding Incentive Awards hereunder shall not affect in
any way
the right or power of the Company or its stockholders to make or authorize
any
or all adjustments, recapitalization, reorganization or other changes in
the
Company’s capital structure or its business or any merger or consolidation of
the Company, or any issue of bonds, debentures, preferred or prior preference
stocks ahead of or affecting the Common Stock or the rights thereof, or
the
dissolution or liquidation of the Company, or any sale or transfer of all
or any
part of its assets or business, or any other corporate act or proceeding
whether
of a similar character or otherwise.
(c) Recapitalization
of the Company. If while there are
Incentive Awards outstanding, the Company shall effect any subdivision
or
consolidation of Shares of Common Stock or other capital readjustment,
the
payment of a stock dividend, stock split, combination of Shares,
recapitalization or other increase or reduction in the number of Shares
outstanding, without receiving compensation therefor in money, services
or
property, then the number of Shares available under the Plan and that are
subject to the special limits under Section 1.4 and the number of Shares,
Exercise Price and Fair Market Value of Incentive Awards shall (i) in the
event
of an increase in the number of Shares outstanding, be proportionately
increased
and the Exercise Price or Fair Market Value of the Incentive Awards awarded
shall be proportionately reduced; and (ii) in the event of a reduction
in the
number of Shares outstanding, be proportionately reduced, and the Exercise
Price
or Fair Market Value of the Incentive Awards awarded shall be proportionately
increased. The Committee shall take such action and whatever other
action it deems appropriate, in its discretion, so that the value of each
outstanding Incentive Award to the Grantee shall not be adversely affected
by a
corporate event described in this subsection (c).
(d) Issue
of Common Stock by the Company. Except
as hereinabove expressly provided in this Section 5.5, the issue by the Company
of shares of stock
of any class, or securities convertible into shares of stock of any class,
for
cash or property, or for labor or services, either upon direct sale or
upon the
exercise of rights or warrants to subscribe therefor, or upon any conversion
of
shares or obligations of the Company convertible into such shares or other
securities, shall not affect, and no adjustment by reason thereof shall
be made
with respect to, the number of, or Exercise Price or Fair Market Value
of, any
Incentive Awards then outstanding under previously granted Incentive Awards;
provided, however, in such event, outstanding Shares of Restricted Stock
shall
be treated the same as outstanding unrestricted Shares of Common
Stock.
(e) Assumption
under the Plan of Outstanding Stock Options.
Notwithstanding any other provision of the Plan, the Committee, in its
absolute
discretion, may authorize the assumption and continuation under the Plan
of
outstanding and unexercised stock options or other types of stock-based
incentive awards that were granted under a stock option plan (or other
type of
stock incentive plan or agreement) that is or was maintained by a newly
acquired
or currently owned corporation or other entity that was merged into,
restructured, consolidated with, or whose stock or assets were acquired
by, the
Company or a Subsidiary of the Company as the surviving
corporation. Any such action shall be upon such terms and conditions
as the Committee, in its discretion, may deem appropriate, including provisions
to preserve the holder’s rights under the previously granted and unexercised
stock option or other stock-based incentive award, such as, for example,
retaining an existing exercise price under an outstanding stock
option. Any such assumption and continuation of any such previously
granted and unexercised incentive award shall be treated as an outstanding
Incentive Award under the Plan and shall thus count against the number
of Shares
reserved for issuance pursuant to Section 1.4.
(f) Assumption
of Incentive Awards by a
Successor. Subject to the accelerated
vesting and other provisions that may apply in the event of a change in
control
in the Award Letter, in the event of a Corporate Event (defined below),
each
Grantee shall be entitled to receive, in lieu of the number of Shares subject
to
Incentive Awards, such shares of capital stock or other securities or property
as may be issuable or payable with respect to or in exchange for the number
of
Shares which Grantee would have received had he exercised the Incentive
Award
immediately prior to such Corporate Event, together with any adjustments
(including, without limitation, adjustments to the Exercise Price and the
number
of Shares issuable on exercise of outstanding Stock Options). For
this purpose, Shares of Restricted Stock shall be treated the same as
unrestricted outstanding Shares of Common Stock. A “Corporate Event”
means any of the following: (i) a dissolution or liquidation of the Company,
(ii) a sale of all or substantially all of the Company’s assets, or
(iii) a merger, consolidation or combination involving the Company (other
than a merger, consolidation or combination (A) in which the Company is the
continuing or surviving corporation and (B) which does not result in the
outstanding Shares being converted into or exchanged for different securities,
cash or other property, or any combination thereof). The Committee
shall take whatever other action it deems appropriate to preserve the rights
of
Grantees holding outstanding Incentive Awards.
Notwithstanding
the previous paragraph of this Section 5.5(f), but subject to any accelerated
vesting
and other provisions as specified in any Award Letter that apply in the
event of
a change in control, in the event of a Corporate Event (described in the
previous paragraph), the Committee, in its discretion, shall have the right
and
power to:
(i) cancel,
effective immediately prior to the occurrence of the Corporate Event, each
outstanding Incentive Award (whether or not then exercisable) and, in full
consideration of such cancellation, pay to the Grantee an amount in cash
equal
to the excess of (A) the value, as determined by the Committee, of the
property
(including cash) received by the holders of Common Stock as a result of
such
Corporate Event over (B) the exercise price of such Incentive Award, if
any;
provided, however, this subsection (i)
shall be inapplicable to an Incentive Award granted within six (6) months
before
the occurrence of the Corporate Event but only if the Grantee is an Insider
and
such disposition is not exempt under Rule 16b-3 (or other rules preventing
liability of the Insider under Section 16(b) of the Exchange Act) and,
in that
event, the provisions hereof shall be applicable to such Incentive Award
after
the expiration of six (6) months from the date of grant; or
(ii) provide
for the exchange or substitution of each Incentive Award outstanding immediately
prior to such Corporate Event (whether or not then exercisable) for another
award with respect to the Common Stock or other property for which such
Incentive Award is exchangeable and, incident thereto, make an equitable
adjustment as determined by the Committee, in its discretion, in the Exercise
Price or exercise price of the Incentive Award, if any, or in the number
of
Shares or amount of property (including cash) subject to the Incentive
Award;
or
(iii) provide
for assumption of the Plan and such outstanding Incentive Awards by the
surviving entity or its parent.
(a) The
Committee, in its discretion, shall have the authority to take whatever
action
it deems to be necessary or appropriate to effectuate the provisions of
this
subsection (f).
(g) Substitute
Awards. Incentive Awards granted under
the Plan may, at the discretion of the Committee, be granted in substitution
or
exchange for any other award granted under another plan of the Company
or any
Subsidiary of the Company. Such substitution and exchange may be
granted at any time. If an Incentive Award is granted in substitution
or exchange for another award under another plan of the Company or a plan
of a
Subsidiary, the Committee shall require the surrender of such other
award.
|
5.6
|
Termination
of Employment, Death, Disability and
Retirement
|
The
Committee shall in its sole discretion establish conditions, if any, for
inclusion in the applicable Award Letter for any acceleration of vesting,
lapse
of restrictions, the exercise period, the definition of disability and
other
terms and conditions in the event of termination of Employment, death,
disability or retirement.
The
Committee shall in its sole discretion establish conditions, if any, for
inclusion in the applicable Award Letter for the acceleration of vesting,
lapse
of restrictions and any other terms and conditions in the event of a change
in
control. The events that shall constitute a change in control shall
be specified in the Award Letter.
|
5.8
|
Exchange
of Incentive Awards
|
The
Committee may, in its discretion, permit any Grantee to surrender outstanding
Incentive Awards in order to exercise or realize his rights under other
Incentive Awards or in exchange for the grant of new Incentive Awards,
or
require holders of Incentive Awards to surrender outstanding Incentive
Awards
(or comparable rights under other plans or arrangements) as a condition
precedent to the grant of new Incentive Awards.
To
the
extent permitted by the Sarbanes-Oxley Act of 2002 or other applicable
law, the
Company may extend and maintain, or arrange for and guarantee, the extension
and
maintenance of financing to any Grantee to purchase Shares pursuant to
exercise
of an Incentive Award upon such terms as are approved by the Committee
and the
Board in their discretion.
SECTION
6.
GENERAL
|
6.1
|
Funding
and Liability of Company
|
No
provision of the Plan shall require the Company, for the purpose of satisfying
any obligations under the Plan, to purchase assets or place any assets
in a
trust or other entity to which contributions are made, or otherwise to
segregate
any assets. In addition, the Company shall not be required
to maintain separate bank accounts, books, records or other evidence of
the
existence of a segregated or separately maintained or administered fund
for
purposes of the Plan. Although bookkeeping accounts may be
established with respect to Grantees who are entitled to cash, Common Stock
or
rights thereto under the Plan, any such accounts shall be used merely as
a
bookkeeping convenience. The Company shall not be required to
segregate any assets that may at any time be represented by cash, Common
Stock
or rights thereto. The Plan shall not be construed as providing for
such segregation, nor shall the Company, the Board or the Committee be
deemed to
be a trustee of any cash, Common Stock or rights thereto. Any
liability or obligation of the Company to any Grantee with respect to an
Incentive Award shall be based solely upon any contractual obligations
that may
be created by this Plan and any Award Letter, and no such liability or
obligation of the Company shall be deemed to be secured by any pledge or
other
encumbrance on any property of the Company. Neither the Company, the
Board nor the Committee shall be required to give any security or bond
for the
performance of any obligation that may be created by the Plan.
(a) Tax
Withholding. The Company shall have the
power and the right to deduct or withhold, or require a Grantee to remit
to the
Company, an amount sufficient 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 the Plan or an Incentive Award
hereunder.
(b) Share
Withholding. With respect to tax
withholding required upon the exercise of Stock Options, upon the lapse
of
restrictions on Restricted Stock, or upon any other taxable event arising
as a
result of any Incentive Awards, Grantees may elect, subject to the approval
of
the Committee in its discretion, 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 which could be imposed on the transaction. All such
elections shall be made in writing or electronically, as permitted by the
Committee in its discretion, and shall be subject to any restrictions or
limitations that the Committee, in its discretion, deems
appropriate. Any fraction of a Share required to satisfy such
obligation shall be disregarded and the amount due shall instead be paid
in cash
by the Grantee.
(c) Loans. To
the extent permitted by the Sarbanes-Oxley Act of 2002 or other applicable
law,
the Committee may provide for loans, on either a short term or demand basis,
from the Company to a Grantee who is an Employee or Consultant to permit
the
payment of taxes required by law.
|
6.3
|
No
Guarantee of Tax
Consequences
|
Neither
the Company nor the Committee makes any commitment or guarantee that any
federal, state or local tax treatment will apply or be available to any
person
participating or eligible to participate hereunder.
|
6.4
|
Designation
of Beneficiary by
Participant
|
Each
Grantee 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 death before he receives any or all of such
benefit. Each such designation shall revoke all prior designations by
the same Grantee, shall be in a form prescribed by the Committee, and will
be
effective only when filed by the Grantee in writing or electronically with
the
Committee during the Grantee’s lifetime. In the absence of any such
designation, benefits remaining unpaid at the Grantee’s death shall be paid to
the Grantee’s estate.
The
Committee may permit a Grantee to defer such Grantee’s receipt of the payment of
cash or the delivery of Shares that would otherwise be due to such Grantee
by
virtue of the lapse or waiver of restrictions with respect to Restricted
Stock,
or the satisfaction of any requirements or goals with respect to Other
Stock-Based Awards. If any such deferral election is permitted, the
Committee shall, in its discretion, establish rules and procedures for
such
payment deferrals to the extent consistent with the Code.
|
6.6
|
Amendment
and Termination
|
The
Board
shall have complete power and authority to terminate or amend the Plan
at any
time; provided, however, the Board shall not, without the approval of the
stockholders of the Company (within the time period required by applicable
law,
if any) (a) except as provided in Section 5.5, increase the maximum number
of Shares which
may be issued under the Plan pursuant to Section 1.4, (b) amend the requirements
as to the class
of Employees eligible to be granted Awards under the Plan, (c) to the extent
applicable, increase the maximum limits on Incentive Awards to Employees
as set
for compliance with the Performance-Based Exception, (d) extend the term
of the
Plan, (e) permit the cancellation or purchase by the Company of Incentive
Awards
of Options for which the Shares have a current Fair Market Value that is
less
than the Fair Market Value of the Shares under the Option on the date of
grant,
(f) to the extent applicable, decrease the authority granted to the Committee
under the Plan in contravention of Rule 16b-3 under the Exchange Act, (g)
amend
any Stock Option or SAR to reduce its initial Exercise Price or grant price,
(h)
cancel or replace any Stock Option or SAR with Stock Options or SARs having
a
lower Exercise Price or grant price or (i) to the extent applicable, modify
the
Performance Criteria for Awards intended to qualify for the Performance-Based
Exemption.
Except
as
otherwise provided in Section 6.14, no termination, amendment, or
modification of the Plan shall adversely affect in any material way any
outstanding Incentive Award previously granted to a Grantee under the Plan,
without the written or electronic consent of such Grantee or other designated
holder of such Incentive Award.
In
addition, to the extent that the Committee determines that (a) the listing
or
qualification requirements of any national securities exchange or quotation
system on which the Common Stock is then listed or quoted, if applicable,
or (b)
the Code (or regulations promulgated thereunder), require stockholder approval
in order to maintain compliance with such listing requirements or to maintain
any favorable tax advantages or qualifications, then the Plan shall not
be
amended in such respect without approval of the Company’s
stockholders.
The
granting of Incentive 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. Certificates evidencing Shares of Common Stock delivered
under this Plan (to the extent that such Shares are so evidenced) may be
subject
to such stop transfer orders and other restrictions as the Committee may
deem
advisable under the rules and regulations of the Securities and Exchange
Commission, any securities exchange or transaction reporting system upon
which
the Common Stock is then listed or to which it is admitted for quotation,
and
any applicable federal or state securities law, if applicable. The
Committee may cause a legend or legends to be placed upon such certificates
(if
any) to make appropriate reference to such restrictions.
|
6.8
|
Rule
16b-3 Securities Law Compliance and Compliance with Company
Policies
|
With
respect to Insiders to the extent applicable, transactions under the Plan
are
intended to comply with all applicable conditions of Rule 16b-3 under the
Exchange Act. With respect to Grantees who are directors or executive
officers of the Company, transactions under the Plan are intended to comply
with
Securities Regulation BTR and, with respect to all Grantees, with the Company’s
insider trading policies as revised from time to time or such other similar
Company policies, including but not limited to, policies relating to black
out
periods. Any ambiguities or inconsistencies in the construction of an
Incentive Award or the Plan shall be interpreted to give effect to such
intention. However, to the extent any provision of the Plan or action
by the Committee fails to so comply, it shall be deemed null and void to
the
extent permitted by law and deemed advisable by the Committee in its
discretion.
All
obligations of the Company under the Plan with respect to Incentive 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.
|
6.10
|
Miscellaneous
Provisions
|
(a) No
Employee, Consultant, Outside Director, or other person shall have any
claim or
right to be granted an Incentive Award under the Plan. Neither the
Plan, nor any action taken hereunder, shall be construed as giving any
Employee,
Consultant, or Outside Director any right to be retained in the Employment
or
other service of the Company or any Parent or Subsidiary.
(b) No
Shares
of Common Stock shall be issued hereunder unless counsel for the Company
is then
reasonably satisfied that such issuance will be in compliance with federal
and
state securities laws, if applicable.
(c) The
expenses of the Plan shall be borne by the Company.
(d) By
accepting any Incentive Award, each Grantee and each person claiming by
or
through him shall be deemed to have indicated his acceptance of the
Plan.
In
the
event that any provision of this Plan shall be held illegal, invalid or
unenforceable for any reason, such provision shall be fully severable,
but shall
not affect the remaining provisions of the Plan, and the Plan shall be
construed
and enforced as if the illegal, invalid, or unenforceable provision was
not
included herein.
Whenever
the context so requires, words of the masculine gender used herein shall
include
the feminine and neuter, and words used in the singular shall include the
plural. Section headings as used herein are inserted solely for
convenience and reference and constitute no part of the interpretation
or
construction of the Plan.
The
Plan
shall be interpreted, construed and constructed in accordance with the
laws of
the State of Delaware without regard to its conflicts of law provisions,
except
as may be superseded by applicable laws of the United States.
|
6.14
|
Compliance
with Code Section 409A
|
To
the
extent that the Committee determines that any Incentive Award granted under
the
Plan is subject to Section 409A of the Code, the applicable Award Letter
shall
incorporate the terms and conditions necessary to avoid the consequences
specified in Section 409A(a)(1) of the Code. To the extent
applicable, the Plan and Award Letters shall be interpreted and construed
in
compliance with Section 409A of the Code and Treasury Department regulations
and
other interpretive guidance issued thereunder. In the event that the
Board determines that any Award may be subject to Section 409A of the Code,
the
Board may, without the consent of Participants, including the affected
Participant, but subject to the stockholder approval requirements of Section
6.6, if applicable, adopt such amendments to the Plan and the applicable
Award Letters or adopt other policies and procedures (including amendments,
policies and procedures with retroactive effect), or take any other actions,
that the Board determines are necessary or appropriate to (i) exempt the
Incentive Award from Section 409A of the Code or (ii) comply with the
requirements of Section 409A of the Code and Treasury Department regulations
and
other interpretive guidance issued thereunder.
IN
WITNESS WHEREOF, Bristow has caused this Plan to be duly executed in its
name
and on its behalf by its duly authorized officer.
BRISTOW
GROUP INC.
By: /S/
Randall A. Stafford
Randall
A.
Stafford
Vice
President and
General Counsel,
Corporate
Secretary