Exhibit 10.15


 


SKYWEST, INC.


 


2010
LONG-TERM INCENTIVE PLAN


 


SkyWest, Inc. (the “Company”), a Utah corporation, hereby
establishes and adopts the following SkyWest, Inc. 2010 Long-Term
Incentive Plan (the “Plan”).


 


1.                                  PURPOSE OF THE PLAN


 


The purpose of the Plan is to assist the Company and its Subsidiaries
in attracting and retaining selected individuals to serve as employees,
directors, consultants and/or advisors who are expected to contribute to the
Company’s success and to achieve long-term objectives that will benefit
stockholders of the Company through the additional incentives inherent in the
Awards hereunder.


 


2.                                      DEFINITIONS


 


2.1.         “Award” shall
mean any Option, Stock Appreciation Right, Restricted Stock Award, Restricted
Stock Unit Award, Other Share-Based Award, Performance Award or any other
right, interest or option relating to Shares or other property (including cash)
granted pursuant to the provisions of the Plan.


 


2.2.         “Award Agreement”
shall mean any agreement, contract or other instrument or document evidencing
any Award hereunder, whether in writing or through an electronic medium.


 


2.3.         “Board” shall
mean the board of directors of the Company.


 


2.4.         “Code” shall
mean the Internal Revenue Code of 1986, as amended from time to time.


 


2.5.         “Committee”
shall mean the Compensation Committee of the Board or a subcommittee thereof
formed by the Compensation Committee to act as the Committee hereunder. The
Committee shall consist of no fewer than two Directors, each of whom is: (i) a
“Non-Employee Director” within the meaning of Rule 16b-3 of the Exchange
Act; (ii) an “outside director” within the meaning of Section 162(m) of
the Code; and (iii) an “independent director” for purpose of the rules of
the applicable Securities Exchange on which the Shares are traded, to the
extent required by such rules.


 


2.6.         “Consultant”
shall mean any consultant or advisor who is a natural person and who provides
services to the Company or any Subsidiary, so long as such person: (i) renders
bona fide services that are not in connection with the offer and sale of the
Company’s securities in a capital-raising transaction; (ii) does not
directly or indirectly promote or maintain a market for the Company’s
securities; and (iii) otherwise qualifies as a consultant under the applicable
rules of the Securities and Exchange Commission for registration of shares
of stock on a Form S-8 registration statement.


 


2.7.         “Covered Employee”
shall mean an employee of the Company or its Subsidiaries who is a “covered
employee” within the meaning of Section 162(m) of the Code.


 


2.8.         “Director”
shall mean a non-employee member of the Board.


 


2.9.         “Dividend Equivalents”
shall have the meaning set forth in Section 12.5.


 


2.10.       “Employee” shall
mean any employee of the Company or any Subsidiary and any prospective employee
conditioned upon, and effective not earlier than, such person becoming an
employee of the Company or any Subsidiary.


 


2.11.       “Exchange Act”
shall mean the Securities Exchange Act of 1934, as amended.


 


2.12.       “Fair Market Value”
shall mean, with respect to Shares as of any date: (i) the closing price
of the Shares as reported on the Securities Exchange on which the Shares are
listed and traded on such date, or, if there is no closing price on that date,
then on the last preceding date on which such a closing price was reported; (ii) if
the Shares are not listed on any Securities Exchange but are quoted in an
inter-dealer quotation system on a last sale basis, the final ask price of the
Shares reported on the inter-dealer quotation system for such date, or, if
there is no such sale on such date, then on the last preceding date on which a
sale was reported; or (iii) if the Shares are neither listed on a
Securities Exchange nor quoted on an inter-dealer quotation system on a last
sale basis, the amount 


 


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determined
by the Committee to be the fair market value of the Shares as determined by the
Committee in its sole discretion. The Fair Market Value of any property other
than Shares shall mean the market value of such property determined by such
methods or procedures as shall be established from time to time by the
Committee.


 


2.13.       “Incentive Stock Option”
shall mean an Option which when granted is intended to qualify as an incentive
stock option for purposes of Section 422 of the Code.


 


2.14.       “Limitations”
shall have the meaning set forth in Section 10.5.


 


2.15.       “Option” shall
mean any right granted to a Participant under the Plan allowing such
Participant to purchase Shares at such price or prices and during such period
or periods as the Committee shall determine.


 


2.16.       “Other Share-Based Award”
shall have the meaning set forth in Section 8.1.


 


2.17.       “Participant”
shall mean an Employee, Director or Consultant who is selected by the Committee
to receive an Award under the Plan.


 


2.18.       “Payee” shall
have the meaning set forth in Section 13.2.


 


2.19.       “Performance Award”
shall mean any Award of Performance Cash, Performance Shares or Performance
Units granted pursuant to Article 9.


 


2.20.       “Performance Cash”
shall mean any cash incentives granted pursuant to Article 9 payable to
the Participant upon the achievement of such performance goals as the Committee
shall establish.


 


2.21.       “Performance Period”
shall mean the period established by the Committee during which any performance
goals specified by the Committee with respect to a Performance Award are to be
measured.


 


2.22.       “Performance Share”
shall mean any grant pursuant to Article 9 of a unit valued by reference
to a designated number of Shares, which value may be paid to the Participant
upon achievement of such performance goals as the Committee shall establish.


 


2.23.       “Performance Unit”
shall mean any grant pursuant to Article 9 of a unit valued by reference
to a designated amount of cash or property other than Shares, which value may
be paid to the Participant upon achievement of such performance goals during
the Performance Period as the Committee shall establish.


 


2.24.       “Permitted Assignee”
shall have the meaning set forth in Section 12.3.


 


2.25.       “Plan” shall
mean the SkyWest, Inc. 2010 Long-Term Incentive Plan as set forth herein,
and as subsequently amended from time to time.


 


2.26.       “Prior Plans”
shall mean, collectively, the Company’s 2006 Long-Term Incentive Plan and the
Company’s prior Executive Stock Incentive Plan and Allshare Stock Option Plan.


 


2.27.       “Restricted Stock”
shall mean any Share issued with the restriction that the holder may not sell,
transfer, pledge or assign such Share and with such other restrictions as the
Committee, in its sole discretion, may impose, which restrictions may lapse
separately or in combination at such time or times, in installments or
otherwise, as the Committee may deem appropriate.


 


2.28.       “Restricted Stock Award”
shall have the meaning set forth in Section 7.1.


 


2.29.       “Restricted Stock Unit”
means an Award that is valued by reference to a Share, which value may be paid
to the Participant in Shares or cash as determined by the Committee in its sole
discretion upon the satisfaction of vesting restrictions as the Committee may
establish, which restrictions may lapse separately or in combination at such
time or times, in installments or otherwise, as the Committee may deem
appropriate.


 


2.30.        “Restricted Stock Unit
Award” shall have the meaning set forth in Section 7.1.


 


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2.31.       “Securities Exchange”
means the principal U.S. national securities exchange on which the Shares are
listed and traded on the date in question. As of the date hereof, the
applicable Securities Exchange is The NASDAQ Global Select Market.


 


2.32.       “Shares” shall
mean the shares of common stock, no par value, of the Company.


 


2.33.       “Stock Appreciation Right”
shall mean the right granted to a Participant pursuant to Article 6.


 


2.34.       “Subsidiary”
shall mean any corporation (other than the Company) in an unbroken chain of
corporations beginning with the Company if, at the relevant time each of the
corporations other than the last corporation in the unbroken chain owns stock
possessing 50% or more of the total combined voting power of all classes of
stock in one of the other corporations in the chain.


 


2.35.       “Substitute Awards”
shall mean Awards granted or Shares issued by the Company in assumption of, or
in substitution or exchange for: (i) awards previously granted by an
entity (other than the Company or a Subsidiary) that is acquired by the Company
or any Subsidiary or with which the Company or any Subsidiary combines; or (ii) the
right or obligation of any entity acquired by the Company or acquired by any
Subsidiary, or with which the Company or any Subsidiary combines, to make
future awards.


 


2.36.       “Vesting Period”
shall mean the period of time specified by the Committee during which vesting
restrictions for an Award are applicable.


 


3.                                      SHARES SUBJECT TO THE PLAN


 


3.1          Number of Shares.


 


(a)           Subject
to adjustment as provided in Section 12.2, a total of 5,150,000 Shares
shall be authorized for grant under the Plan, decreased by one (1) Share
for every one (1) Share that was subject to an option or stock
appreciation right granted under the Prior Plans after December 31, 2009
and one and sixty-five one hundredths (1.65) Shares for every one (1) Share
that was subject to an award (other than an option or stock appreciation right)
granted under the Prior Plans after December 31, 2009, and increased by
Shares covered by awards granted under the Prior Plans that again become
available for grant pursuant to Section 3.1(b). Shares shall be counted as
used as of the applicable grant date. Any Shares that are subject to Options or
Stock Appreciation Rights shall be counted against this limit as one (1) Share
for every one (1) Share granted, and any Shares that are subject to Awards
other than Options or Stock Appreciation Rights shall be counted against this
limit as one and sixty-five one-hundredths (1.65) Shares for every one (1) Share
granted. After the effective date of the Plan as provided in Section 13.13,
no further awards shall be granted under any Prior Plan.


 


(b)           If
(i) any Shares subject to an Award are forfeited, an Award expires or an
Award is settled for cash (in whole or in part), or (ii) after December 31,
2009 any Shares subject to an award under the Prior Plans are forfeited, an
award under Prior Plans expires, or an award under the Prior Plans is settled
for cash (in whole or in part), the Shares subject to such Award or award under
the Prior Plans shall, to the extent of such forfeiture, expiration or cash
settlement, again be available for Awards under the Plan, in accordance with Section 3.1(d) below.
Notwithstanding anything to the contrary contained herein, the following Shares
shall not be added to the Shares authorized for grant under paragraph (a) of
this Section: (i) Shares tendered by the Participant or withheld by the
Company in payment of the purchase price of an Option or an option granted
under the Prior Plans, or to satisfy any tax withholding obligation with
respect to an Award or an award granted under the Prior Plans; (ii) Shares
subject to a Stock Appreciation Right or a stock appreciation right granted
under the Prior Plans that are not issued in connection with its stock
settlement on exercise thereof; and (iii) Shares reacquired by the Company
on the open market or otherwise using cash proceeds from the exercise of Options
or options granted under the Prior Plans.


 


(c)           Substitute
Awards shall not reduce the Shares authorized for grant under the Plan or the
applicable Limitations applicable to a Participant under Section 10.5, nor
shall Shares subject to a Substitute Award again be available for Awards under
the Plan to the extent of any forfeiture, expiration or cash settlement as
provided in paragraph (b) above. Additionally, in the event that a
company acquired by the Company or any Subsidiary or with which the Company or
any Subsidiary combines has shares available under a pre-existing plan approved
by stockholders and not adopted in contemplation of such acquisition or
combination, the shares available for grant pursuant to the terms of such
pre-existing plan (as adjusted, to the extent appropriate, using the exchange
ratio or other adjustment or valuation ratio or formula used in such
acquisition or combination to determine the consideration payable to the
holders of common stock of the entities party to such acquisition or
combination) may be used for Awards under the Plan and shall not reduce the
Shares authorized for grant under Section 3.1(a) of the Plan;
provided that Awards using such available shares shall not be made after the
date 


 


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awards or grants could have been made under the terms of the
pre-existing plan, absent the acquisition or combination, and shall only be
made to individuals who were not Employees or Directors prior to such
acquisition or combination.


 


(d)           Any
Shares that again become available for grant pursuant to Section 3.1(b) shall
be added back as: (i) one (1) Share if such Shares were subject to
Options or Stock Appreciation Rights granted under the Plan or options or stock
appreciation rights granted under the Prior Plans; and (ii) as one and
sixty-five one-hundredths (1.65) Shares if such Shares were subject to Awards
other than Options or Stock Appreciation Rights granted under the Plan or
awards other than options or stock appreciation rights granted under the Prior
Plans.


 


3.2.         Character of Shares.  Any Shares issued hereunder may consist, in
whole or in part, of authorized and unissued shares, treasury shares or shares
purchased in the open market or otherwise.


 


4.                                      ELIGIBILITY AND ADMINISTRATION


 


4.1.         Eligibility.  Any Employee, Director or Consultant shall be
eligible to be selected as a Participant.


 


4.2.         Administration.


 


(a)           The
Plan shall be administered by the Committee. The Committee shall have full
power and authority, subject to the provisions of the Plan and subject to such
orders or resolutions not inconsistent with the provisions of the Plan as may
from time to time be adopted by the Board, to: (i) select the Employees,
Directors and Consultants to whom Awards may from time to time be granted
hereunder; (ii) determine the type or types of Awards to be granted to
each Participant hereunder; (iii) determine the number of Shares (or
dollar value) to be covered by each Award granted hereunder; (iv) determine
the terms and conditions, not inconsistent with the provisions of the Plan, of
any Award granted hereunder; (v) determine whether, to what extent and
under what circumstances Awards may be settled in cash, Shares or other
property; (vi) determine whether, to what extent, and under what
circumstances cash, Shares, other property and other amounts payable with
respect to an Award made under the Plan shall be deferred either automatically
or at the election of the Participant; (vii) determine whether, to what
extent, and under what circumstances any Award shall be canceled or suspended; (viii) interpret
and administer the Plan and any instrument or agreement entered into under or
in connection with the Plan, including any Award Agreement; (ix) correct
any defect, supply any omission, or reconcile any inconsistency in the Plan or
any Award in the manner and to the extent that the Committee shall deem
desirable to carry it into effect; (x) establish such rules and
regulations and appoint such agents as it shall deem appropriate for the proper
administration of the Plan; (xi) determine whether any Award, other than
an Option or Stock Appreciation Right, will have Dividend Equivalents; and
(xii) make any other determination and take any other action that the
Committee deems necessary or desirable for the administration of the Plan.


 


(b)           Decisions
of the Committee shall be final, conclusive and binding on all persons or
entities, including the Company, any Participant, and any Subsidiary. A
majority of the members of the Committee may determine its actions, including
fixing the time and place of its meetings. Notwithstanding the foregoing, any
action or determination by the Committee specifically affecting or relating to
a Director on the Committee shall require the prior approval of the Board.


 


(c)           To
the extent not inconsistent with applicable law, including Section 162(m) of
the Code, or the rules and regulations of the Securities Exchange on which
the Shares are traded, the Committee may delegate to a committee of one or more
directors of the Company any of the authority of the Committee under the Plan,
including the right to grant, cancel or suspend Awards.


 


5.                                      OPTIONS


 


5.1.         Grant of Options.  Options may be granted hereunder to
Participants either alone or in addition to other Awards granted under the
Plan. Any Option shall be subject to the terms and conditions of this Article and
to such additional terms and conditions, not inconsistent with the provisions
of the Plan, as the Committee shall deem desirable.


 


5.2.  Award Agreements.  All Options shall be evidenced by a written
Award Agreement in such form and containing such terms and conditions as the
Committee shall determine which are not inconsistent with the provisions of the
Plan. The terms and conditions of Options need not be the same with respect to
each Participant. Granting an Option pursuant to the Plan shall impose no
obligation on the recipient to exercise such Option. Any individual who is
granted an Option pursuant to this Article may hold more than one Option
granted pursuant to the Plan at the same time.


 


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5.3.         Option Price.  Other than in connection with Substitute
Awards, the option price per each Share purchasable under any Option granted
pursuant to this Article shall not be less than 100% of the Fair Market
Value of one Share on the date of grant of such Option; provided, however, that
in the case of an Incentive Stock Option granted to a Participant who, at the
time of the grant, owns stock representing more than 10% of the voting power of
all classes of stock of the Company or any Subsidiary, the option price per
share shall be no less than 110% of the Fair Market Value of one Share on the
date of grant. Other than pursuant to Section 12.2, the Committee shall
not without the approval of the Company’s stockholders: (a) lower the
option price per Share of an Option after it is granted; (b) cancel an
Option in exchange for cash or another Award (other than in connection with a
Change in Control as defined in Section 11.3); or (c) take any other
action with respect to an Option that would be treated as a repricing under the
rules and regulations of the Securities Exchange on which the Shares are
then traded.


 


5.4.         Option Term.  The term of each Option shall be fixed by the
Committee in its sole discretion; provided that no Option shall be exercisable
after the expiration of seven (7) years from the date the Option is
granted, except in the event of death or disability; provided, however, that
the term of the Option shall not exceed five (5) years from the date the
Option is granted in the case of an Incentive Stock Option granted to a
Participant who, at the time of the grant, owns stock representing more than
10% of the voting power of all classes of stock of the Company or any Subsidiary.


 


5.5.         Exercise of Options.


 


(a)           Vested
Options granted under the Plan shall be exercised by the Participant or by a
Permitted Assignee thereof (or by the Participant’s executors, administrators,
guardian or legal representative, as may be provided in an Award Agreement) as
to all or part of the Shares covered thereby, by giving notice of exercise to
the Company or its designated agent, specifying the number of Shares to be
purchased. The notice of exercise shall be in such form, made in such manner,
and shall comply with such other requirements consistent with the provisions of
the Plan as the Committee may prescribe from time to time


 


(b)           Unless
otherwise provided in an Award Agreement, full payment of such purchase price
shall be made at the time of exercise and shall be made: (i) in cash or
cash equivalents (including certified check or bank check or wire transfer of
immediately available funds); (ii) by tendering previously acquired Shares
(either actually or by attestation) valued at their then Fair Market Value; (iii) with
the consent of the Committee, by delivery of other consideration having a Fair
Market Value on the exercise date equal to the total purchase price; (iv) with
the consent of the Committee, by withholding Shares otherwise issuable in
connection with the exercise of the Option; (v) through any other method
specified in an Award Agreement (including same-day sales through a broker); or
(vi) any combination of any of the foregoing. The notice of exercise,
accompanied by such payment, shall be delivered to the Company at its principal
business office or such other office as the Committee may from time to time
direct, and shall be in such form, containing such further provisions
consistent with the provisions of the Plan, as the Committee may from time to
time prescribe. In no event may any Option granted hereunder be exercised for a
fraction of a Share.


 


(c)           Notwithstanding
the foregoing, an Award Agreement evidencing an Option may provide that if on
the last day of the term of the Option the Fair Market Value of one Share
exceeds the option price per Share, the Participant has not exercised the
Option (or a tandem Stock Appreciation Right, if applicable) and the Option has
not expired, the Option shall be deemed to have been exercised by the
Participant on such day with payment made by withholding Shares otherwise
issuable in connection with the exercise of the Option. In such event, the
Company shall deliver to the Participant the number of Shares for which the
Option was deemed exercised, less the number of Shares required to be withheld
for the payment of the total purchase price and required withholding taxes;
provided, however, any fractional Share shall be settled in cash.


 


5.6.         Form of Settlement.  In its sole discretion, the Committee may
provide that the Shares to be issued upon an Option’s exercise shall be in the
form of Restricted Stock or other similar securities.


 


5.7.         Incentive Stock Options.  The Committee may grant Incentive Stock
Options to any Employee of the Company or any Subsidiary, subject to the
requirements of Section 422 of the Code. Solely for purposes of
determining whether Shares are available for the grant of Incentive Stock
Options under the Plan, the maximum aggregate number of Shares that may be
issued pursuant to Incentive Stock Options granted under the Plan shall be
4,200,000 Shares, subject to adjustment as provided in Section 12.2.


 


6.                                      STOCK APPRECIATION RIGHTS


 


6.1.         Grant and Exercise.  The Committee may provide Stock Appreciation
Rights: (a) in tandem with all or part of any Option granted under the
Plan or at any subsequent time during the term of such Option; (b) in
tandem with all or part of any Award 


 


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(other
than an Option) granted under the Plan or at any subsequent time during the
term of such Award; or (c) without regard to any Option or other Award in
each case upon such terms and conditions as the Committee may establish in its
sole discretion.


 


6.2.         Terms and Conditions.  Stock Appreciation Rights shall be subject to
such terms and conditions, not inconsistent with the provisions of the Plan, as
shall be determined from time to time by the Committee, including the
following:


 


(a)           Upon
the exercise of a Stock Appreciation Right, the holder shall have the right to
receive the excess of: (i) the Fair Market Value of one Share on the date
of exercise (or such amount less than such Fair Market Value as the Committee
shall so determine at any time during a specified period before the date of
exercise), over (ii) the grant price of the Stock Appreciation Right.


 


(b)           The
Committee shall determine in its sole discretion whether payment on exercise of
a Stock Appreciation Right shall be made in cash, in whole Shares or other
property, or any combination thereof.


 


(c)           The
terms and conditions of Stock Appreciation Rights need not be the same with
respect to each recipient.


 


(d)           The
Committee may impose such other terms and conditions on the exercise of any
Stock Appreciation Right, as it shall deem appropriate. A Stock Appreciation
Right shall: (i) have a grant price per Share of not less than the Fair
Market Value of one Share on the date of grant or, if applicable, on the date
of grant of an Option with respect to a Stock Appreciation Right granted in exchange
for or in tandem with, but subsequent to, the Option (subject to the
requirements of Section 409A of the Code) except in the case of Substitute
Awards or in connection with an adjustment provided in Section 12.2; and (ii) have
a term not greater than seven (7) years.


 


(e)           An
Award Agreement evidencing a Stock Appreciation Right may provide that if on
the last day of the term of a Stock Appreciation Right the Fair Market Value of
one Share exceeds the grant price per Share of the Stock Appreciation Right,
the Participant has not exercised the Stock Appreciation Right or the tandem
Option (if applicable), and the Stock Appreciation Right has not expired, the
Stock Appreciation Right shall be deemed to have been exercised by the
Participant on such day. In such event, the Company shall make payment to the
Participant in accordance with this Section, reduced by the number of Shares
(or cash) required for withholding taxes. Any fractional Share shall be settled
in cash.


 


(f)            Without
the approval of the Company’s stockholders, other than pursuant to Section 12.2,
the Committee shall not: (i) reduce the grant price of any Stock
Appreciation Right after the date of grant; (ii) cancel any Stock
Appreciation Right in exchange for cash or another Award (other than in
connection with a Change in Control as defined in Section 11.3); or (iii) take
any other action with respect to a Stock Appreciation Right that would be
treated as a repricing under the rules and regulations of the Securities
Exchange on which the Shares are then traded.


 


7.                                      RESTRICTED STOCK AND RESTRICTED STOCK UNITS


 


7.1.         Grants.  Awards of Restricted Stock and of Restricted
Stock Units may be issued hereunder to Participants either alone or in addition
to other Awards granted under the Plan (a “Restricted Stock Award” or “Restricted
Stock Unit Award” respectively), and such Restricted Stock Awards and
Restricted Stock Unit Awards shall also be available as a form of payment of
Performance Awards and other earned cash-based incentive compensation. Each Restricted
Stock Award and Restricted Stock Unit Award shall be subject to vesting
restrictions imposed by the Committee covering a period of time specified by
the Committee (the “Vesting Period”). The Committee has absolute discretion to
determine whether any consideration (other than services) is to be received by
the Company or any Subsidiary as a condition precedent to the issuance of
Restricted Stock Awards or Restricted Stock Unit Awards.


 


7.2.         Award Agreements.  The terms of any Restricted Stock Award or
Restricted Stock Unit Award granted under the Plan shall be set forth in an
Award Agreement which shall contain provisions determined by the Committee and
not inconsistent with the Plan. The terms of Restricted Stock Awards and
Restricted Stock Unit Awards need not be the same with respect to each
Participant.


 


7.3.         Rights of Holders of Restricted Stock
and Restricted Stock Units.


 


(a)           Unless
otherwise provided in the applicable Award Agreement, beginning on the date of
grant of the Restricted Stock Award and subject to execution of the Award
Agreement, the Participant shall become a stockholder of the Company with
respect to all Shares subject to the Award Agreement and shall have all of the
rights of a stockholder, including the right to vote such Shares and the right
to receive dividends and other distributions made with respect to such Shares.
Except as otherwise provided in an Award Agreement, any Shares or any other
property (other than cash) distributed as a dividend or otherwise with respect
to any Restricted Stock Award as to which the restrictions have not yet lapsed
shall be subject to the same restrictions as apply to the Restricted Stock
under such Restricted Stock Award. Any provision herein to the contrary
notwithstanding, unless otherwise provided in the applicable Award Agreement,
cash dividends with respect to 


 


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any Restricted Stock Award and any other property (other than cash)
distributed as a dividend or otherwise with respect to any Restricted Stock
Award shall be: (i) accumulated subject to restrictions and risk of
forfeiture to the same extent as the underlying Restricted Stock with respect
to which such cash, Shares or other property has been distributed; and (ii) either
(A) paid to the Participant at the time such restrictions and risk of
forfeiture lapse or (B) forfeited to the extent the underlying Restricted
Stock that is forfeited.


 


(b)           A
Participant receiving a Restricted Stock Unit Award shall not possess voting
rights or the right to receive any dividends or other distributions with
respect to such Award. The applicable Award Agreement may, however, grant the
Participant Dividend Equivalencies with respect to Restricted Stock Units.


 


(c)           Notwithstanding
the provisions of this Section, cash dividends with respect to any Restricted
Stock Award and any other property (other than cash) distributed as a dividend
or otherwise with respect to any Restricted Stock Award or the number of Shares
covered by a Restricted Stock Unit Award that vests based on achievement of
performance goals shall be accumulated, shall be subject to restrictions and
risk of forfeiture to the same extent as the Restricted Stock or Restricted
Stock Units with respect to which such cash, Shares or other property has been
distributed and shall be paid at the time such restrictions and risk of
forfeiture lapse.


 


7.4.         Minimum Vesting Period.  Except as otherwise provided in the
applicable Award Agreement or in special circumstances determined by the
Committee in its sole discretion, Restricted Stock Awards and Restricted Stock
Unit Awards shall have a Vesting Period of not less than: (i) three (3) years
from date of grant (but permitting pro rata vesting over such time) if subject
only to continued service with the Company or a Subsidiary; or (ii) one (1) year
from date of grant if subject to the achievement of performance objectives.


 


7.5.         Issuance of Shares.  Any Restricted Stock granted under the Plan
may be evidenced in such manner as the Board may deem appropriate, including
book-entry registration or issuance of a stock certificate or certificates,
which certificate or certificates shall be held by the Company. Such
certificate or certificates shall be registered in the name of the Participant
and shall bear an appropriate legend referring to the restrictions applicable
to such Restricted Stock.


 


8.                                      OTHER SHARE-BASED AWARDS


 


8.1.         Grants.  Other Awards of Shares and other Awards that
are valued in whole or in part by reference to, or are otherwise based on,
Shares or other property (“Other Share-Based Awards”), including deferred stock
units, may be granted hereunder to Participants either alone or in addition to
other Awards granted under the Plan. Other Share-Based Awards shall also be
available as a form of payment of other Awards granted under the Plan and other
earned cash-based compensation. Other Share-Based Awards shall be subject to
such vesting restrictions as are imposed by the Committee covering a period of
time specified by the Committee (the “Vesting Period”).


 


8.2.         Award Agreements.  The terms of Other Share-Based Award granted
under the Plan shall be set forth in an Award Agreement which shall contain
provisions determined by the Committee and not inconsistent with the Plan. The
terms of such Awards need not be the same with respect to each Participant.
Notwithstanding the provisions of this Section, any cash, Shares or property
(other than cash) distributed as a dividend or otherwise with respect to the
number of Shares covered by a Other Share-Based Award that vests based on
achievement of performance goals shall be subject to restrictions and risk of
forfeiture to the same extent as the Shares covered by the Other Share-Based
Award with respect to which such cash, Shares or other property has been distributed.


 


8.3.         Minimum Vesting Period.  Except as otherwise provided in the
applicable Award Agreement or in special circumstances as determined by the
Committee in its sole discretion, Other Share-Based Awards shall have a Vesting
Period of not less than: (i) three (3) years from date of grant (but
permitting pro rata vesting over such time) if subject only to continued
service with the Company or a Subsidiary; or (ii) one (1) year from
date of grant if subject to the achievement of performance objectives.


 


8.4.         Payment.  Except as may be provided in an Award
Agreement, Other Share-Based Awards may be paid in cash, Shares, other
property, or any combination thereof, in the sole discretion of the Committee.
Other Share-Based Awards may be paid in a lump sum or in installments or, in
accordance with procedures established by the Committee, on a deferred basis
subject to the requirements of Section 409A of the Code.


 


9.                                      PERFORMANCE AWARDS


 


9.1.         Grants.  Performance Awards in the form of Performance
Cash, Performance Shares or Performance Units, as determined by the Committee
in its sole discretion, may be granted hereunder to Participants, for no
consideration or for such minimum consideration as may be required by
applicable law, either alone or in addition to other Awards granted under the
Plan. The performance goals to be achieved for each Performance Period shall be
conclusively determined by the Committee and may be based upon the criteria set
forth in Section 10.2.


 


7
















 


9.2.         Award Agreements.  The terms of any Performance Award granted
under the Plan shall be set forth in an Award Agreement (or, if applicable, in
a resolution duly adopted by the Committee) which shall contain provisions
determined by the Committee and not inconsistent with the Plan, including
whether such Awards shall have Dividend Equivalents. The terms of Performance
Awards need not be the same with respect to each Participant.


 


9.3.         Terms and Conditions.  The performance criteria to be achieved
during any Performance Period and the length of the Performance Period shall be
determined by the Committee upon the grant of each Performance Award; provided,
however, that a Performance Period shall not be shorter than one (1) year
nor longer than five (5) years unless the Award is not payable in Shares.
The amount of the Award to be distributed shall be conclusively determined by
the Committee.


 


9.4.         Payment.  Except as provided in Article 11 or as
may be provided in an Award Agreement, Performance Awards will be distributed
only after the end of the relevant Performance Period. Performance Awards may
be paid in cash, Shares, other property, or any combination thereof, in the
sole discretion of the Committee. Performance Awards may be paid in a lump sum
or in installments following the close of the Performance Period or, in
accordance with procedures established by the Committee, on a deferred basis
subject to the requirements of Section 409A of the Code.


 


10.                               CODE SECTION 162(m) PROVISIONS


 


10.1.       Application.  Notwithstanding any other provision of the
Plan, if the Committee determines at the time a Restricted Stock Award, a
Restricted Stock Unit Award, a Performance Award or an Other Share-Based Award
is granted to a Participant who is, or is likely to be, as of the end of the
tax year in which the Company would claim a tax deduction in connection with
such Award, a Covered Employee, then the Committee may provide that
Sections 10.2 through 10.4 are applicable to such Award. Additionally, the
individual limitations set forth in Section 10.5 shall apply to any Award
granted under the Plan to a Participant regardless of whether the Participant
is or is expected to become a Covered Employee.


 


10.2.       Performance Criteria.  If the Committee determines that a Restricted
Stock Award, a Restricted Stock Unit, a Performance Award or an Other
Share-Based Award is intended to be subject to this Section 10.2, the
lapsing of restrictions thereon and the distribution of cash, Shares or other
property pursuant thereto, as applicable, shall be subject to the achievement
of one or more objective performance goals established by the Committee, which
shall be based on the attainment of specified levels of one or any combination
of the following: net sales; revenue; revenue growth or product revenue growth;
operating income (before or after taxes); pre- or after-tax income or loss
(before or after allocation of corporate overhead and bonus); earnings or loss
per share; net income or loss (before or after taxes); return on equity; total
stockholder return; return on assets or net assets; appreciation in and/or
maintenance of the price of the Shares or any other publicly-traded securities
of the Company; market share; gross profits; earnings or losses (including
earnings or losses before taxes, before interest and taxes, or before interest,
taxes, depreciation and amortization); economic value-added models or
equivalent metrics; comparisons with various stock market indices; reductions
in costs; cash flow or cash flow per share (before or after dividends); return
on capital (including return on total capital or return on invested capital);
cash flow return on investment; improvement in or attainment of expense levels
or working capital levels, including cash and accounts receivable; operating
margin; gross margin; year-end cash; cash margin; debt reduction; stockholders
equity; operating efficiencies; market share; customer satisfaction; customer
growth; employee satisfaction; regulatory achievements (including submitting or
filing applications or other documents with regulatory authorities or receiving
approval of any such applications or other documents and passing pre-approval
inspections (whether of the Company or the Company’s third-party
manufacturer)); strategic partnerships or transactions; co-development,
co-marketing, profit sharing, joint venture or other similar arrangements;
financial ratios, including those measuring liquidity, activity, profitability
or leverage; cost of capital or assets under management; financing and other capital
raising transactions (including sales of the Company’s equity or debt
securities; sales or licenses of the Company’s assets, including its
intellectual property, whether in a particular jurisdiction or territory or
globally; or through partnering transactions); cost per available seat mile;
revenue per available seat mile; revenue or cost per revenue seat mile;
percentage of flights completed on time; percentage of scheduled flights
completed; lost passenger baggage per passenger or per seat mile; aircraft
utilization; revenue per employee; and implementation, completion or attainment
of measurable objectives with respect to commercialization, projects, service
volume levels, acquisitions and divestitures; transactions; and recruiting and
maintaining personnel. Such performance goals also may be based solely by
reference to the Company’s performance or the performance of a Subsidiary,
division, business segment or business unit of the Company, or based upon the
relative performance of other companies or upon comparisons of any of the
indicators of performance relative to other companies. The Committee may also
exclude charges related to an event or occurrence which the Committee
determines should appropriately be excluded, including: (a) restructurings,
discontinued operations, extraordinary items, and other unusual or
non-recurring charges; (b) an event either not directly related to the
operations of the Company or not within the reasonable control of the Company’s
management; or (c) the cumulative effects of tax or accounting changes in
accordance with U.S. generally accepted accounting principles. Such performance
goals shall be set by the Committee within the time period prescribed by, and
shall otherwise comply with the requirements of, Section 162(m) of
the Code, and the regulations thereunder.


 


8

















 


10.3.       Adjustments.  Notwithstanding any provision of the Plan
(other than Article 11), with respect to any Restricted Stock Award,
Restricted Stock Unit Award, Performance Award or Other Share-Based Award that
is subject to Section 10.2, the Committee may adjust downwards, but not
upwards, the amount payable pursuant to such Award, and the Committee may not
waive the achievement of the applicable performance goals except in the case of
the death or disability of the Participant, a Change in Control, or as
otherwise determined by the Committee in special circumstances.


 


10.4.       Restrictions.  The Committee shall have the power to impose
such other restrictions on Awards subject to this Article as it may deem
necessary or appropriate to ensure that such Awards satisfy all requirements
for “performance-based compensation” within the meaning of Section 162(m) of
the Code.


 


10.5.       Limitations on Grants to Individual Participants.  Subject to adjustment as provided in Section 12.2,
no Participant may: (i) be granted Options or Stock Appreciation Rights
during any 36-month period with respect to more than 1,000,000 Shares; and (ii) earn
more than 500,000 Shares with respect to Restricted Stock Awards, Restricted
Stock Unit Awards, Performance Awards and/or Other Share-Based Awards that are
intended to comply with the performance-based exception under Code Section 162(m) and
are denominated in Shares in any 36-month period (collectively, the “Limitations”).
In addition to the foregoing, the maximum dollar value that may be earned by
any Participant for each 12 months in a Performance Period with respect to
Performance Awards that are intended to comply with the performance-based
exception under Code Section 162(m) and are denominated in cash is
$5,000,000. If an Award is cancelled, the cancelled Award shall continue to be
counted toward the applicable Limitation (or, if denominated in cash, toward
the dollar amount in the preceding sentence).


 


11.                               CHANGE IN CONTROL PROVISIONS


 


11.1.       Impact on Certain Awards.  Award Agreements may provide that in the
event of a Change in Control of the Company (as defined in Section 11.3): (i) Options
and Stock Appreciation Rights outstanding as of the date of the Change in
Control shall be cancelled and terminated without payment therefor if the Fair
Market Value of one Share as of the date of the Change in Control is less than
the per Share Option exercise price or Stock Appreciation Right grant price;
and (ii) Performance Awards shall be considered to be earned and payable
(either in full or pro rata based on the portion of Performance Period
completed as of the date of the Change in Control) and any limitations or other
restrictions shall lapse and such Performance Awards shall be immediately
settled or distributed.


 


9

















 


11.2.       Assumption or Substitution of Certain
Awards.


 


(a)           Unless
otherwise provided in the applicable Award Agreement, in the event of a Change
in Control of the Company in which the successor company assumes or provides a
substitute award for an Option, Stock Appreciation Right, Restricted Stock
Award, Restricted Stock Unit Award or Other Share-Based Award (or in which the
Company is the ultimate parent corporation and continues the Award), if a
Participant’s employment with such successor company (or the Company) or a
subsidiary thereof terminates within 24 months following such Change in
Control (or such other period set forth in the Award Agreement, including prior
thereto if applicable) without “cause” or for “good reason” as defined in the
Award Agreement or under other circumstances specified in the Award Agreement: (i) Options
and Stock Appreciation Rights outstanding as of the date of such termination of
employment will immediately vest, become fully exercisable, and may thereafter
be exercised for 24 months (or such other longer period of time as is set
forth in the applicable Award Agreement); (ii) the restrictions, limitations
and other conditions applicable to Restricted Stock and Restricted Stock Units
outstanding as of the date of such termination of employment shall lapse and
the Restricted Stock and Restricted Stock Units shall become free of all
restrictions, limitations and conditions and become fully vested; and (iii) the
restrictions, limitations and other conditions applicable to any Other
Share-Based Awards or any other Awards shall lapse, and such Other Share-Based
Awards or such other Awards shall become free of all restrictions, limitations
and conditions and become fully vested and transferable to the full extent of
the original grant. For the purposes of this Section 11.2, an Option,
Stock Appreciation Right, Restricted Stock Award, Restricted Stock Unit Award or
Other Share-Based Award shall be considered assumed or substituted for if,
following the Change in Control, the Award confers the right to purchase or
receive, for each Share subject to the Option, Stock Appreciation Right,
Restricted Stock Award, Restricted Stock Unit Award or Other Share-Based Award
immediately prior to the Change in Control, the consideration (whether stock,
cash or other securities or property) received in the transaction constituting
a Change in Control by holders of Shares for each Share held on the effective
date of such transaction (and if holders were offered a choice of
consideration, the type of consideration chosen by the holders of a majority of
the outstanding Shares); provided, however, that if such consideration received
in the transaction constituting a Change in Control is not solely common stock
of the successor company, the Committee may, with the consent of the successor
company, provide that the consideration to be received upon the exercise or
vesting of an Option, Stock Appreciation Right, Restricted Stock Award,
Restricted Stock Unit Award or Other Share-Based Award, for each Share subject
thereto, will be solely common stock of the successor company substantially
equal in fair market value to the per Share consideration received by holders
of Shares in the transaction constituting a Change in Control. The
determination of such substantial equality of value of consideration shall be
made by the Committee in its sole discretion and its determination shall be
conclusive and binding.


 


(b)           Unless
otherwise provided in the applicable Award Agreement, in the event of a Change
in Control of the Company to the extent the successor company does not assume
or substitute for an Option, Stock Appreciation Right, Restricted Stock Award,
Restricted Stock Unit Award or Other Share-Based Award (or in which the Company
is the ultimate parent corporation and does not continue the Award), then
immediately prior to the Change in Control: (i) those Options and Stock
Appreciation Rights outstanding as of the date of the Change in Control that
are not assumed or substituted for (or continued) shall immediately vest and
become fully exercisable; (ii) all restrictions, limitations and other
conditions applicable to Restricted Stock and Restricted Stock Units that are
not assumed or substituted for (or continued) shall lapse and the Restricted
Stock and Restricted Stock Units shall become free of all restrictions,
limitations and conditions and become fully vested; and (iii) the
restrictions, other limitations and other conditions applicable to any Other
Share-Based Awards or any other Awards that are not assumed or substituted for
(or continued) shall lapse, and such Other Share-Based Awards or such other
Awards shall become free of all restrictions, limitations and conditions and
become fully vested and transferable to the full extent of the original grant.


 


(c)           The
Committee, in its discretion, may determine that, upon the occurrence of a
Change in Control of the Company, each Option and Stock Appreciation Right
outstanding shall terminate within a specified number of days after notice to
the Participant, and/or that each Participant shall receive, with respect to
each Share subject to such Option or Stock Appreciation Right, an amount equal
to the excess of the Fair Market Value of such Share immediately prior to the
occurrence of such Change in Control over the exercise price per Share of such
Option and/or Stock Appreciation Right; such amount to be payable in cash, in
one or more kinds of stock or property (including the stock or property, if
any, payable in the transaction) or in a combination thereof, as the Committee,
in its discretion, shall determine.


 


10

















 


11.3.       Change in Control.  For purposes of the Plan, unless otherwise
provided in an Award Agreement, Change in Control means the occurrence of any
one of the following events:


 


(a)           During
any twenty-four (24) month period, individuals who, as of the beginning of
such period, constitute the Board (the “Incumbent Directors”) cease for any
reason to constitute at least a majority of the Board, provided that any person
becoming a director subsequent to the beginning of such period whose election
or nomination for election was approved by a vote of at least a majority of the
Incumbent Directors then on the Board (either by a specific vote or by approval
of the proxy statement of the Company in which such person is named as a
nominee for director, without written objection to such nomination) shall be an
Incumbent Director; provided, however, that no individual initially
elected or nominated as a director of the Company as a result of an actual or
threatened election contest with respect to directors or as a result of any
other actual or threatened solicitation of proxies by or on behalf of any
person other than the Board shall be deemed to be an Incumbent Director;


 


(b)           Any
“person” (as such term is defined in the Exchange Act and as used in
Sections 13(d)(3) and 14(d)(2) of the Exchange Act) is or becomes
a “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company representing 50% or more
of the combined voting power of the Company’s then outstanding securities
eligible to vote for the election of the Board (the “Company Voting Securities”);
provided, however, that the event described in this
paragraph (b) shall not be deemed to be a Change in Control by virtue
of any of the following acquisitions: (i) by the Company or any
Subsidiary; (ii) by any employee benefit plan (or related trust) sponsored
or maintained by the Company or any Subsidiary; (iii) by any underwriter
temporarily holding securities pursuant to an offering of such securities; (iv) pursuant
to a Non-Qualifying Transaction, as defined in paragraph (c); or (v) by
any person of Voting Securities from the Company, if a majority of the
Incumbent Board approves in advance the acquisition of beneficial ownership of
50% or more of Company Voting Securities by such person;


 


(c)           The
consummation of a merger, consolidation, statutory share exchange or similar
form of corporate transaction involving the Company or any of its Subsidiaries
that requires the approval of the Company’s stockholders, whether for such
transaction or the issuance of securities in the transaction (a “Business
Combination”), unless immediately following such Business Combination: (i) more
than 50% of the total voting power of (A) the corporation resulting from
such Business Combination (the “Surviving Corporation”), or (B) if
applicable, the ultimate parent corporation that directly or indirectly has
beneficial ownership of 100% of the voting securities eligible to elect
directors of the Surviving Corporation (the “Parent Corporation”), is
represented by Company Voting Securities that were outstanding immediately
prior to such Business Combination (or, if applicable, is represented by shares
into which such Company Voting Securities were converted pursuant to such
Business Combination), and such voting power among the holders thereof is in
substantially the same proportion as the voting power of such Company Voting
Securities among the holders thereof immediately prior to the Business
Combination, (ii) no person (other than any employee benefit plan (or
related trust) sponsored or maintained by the Surviving Corporation or the
Parent Corporation), is or becomes the beneficial owner, directly or
indirectly, of 50% or more of the total voting power of the outstanding voting
securities eligible to elect directors of the Parent Corporation (or, if there
is no Parent Corporation, the Surviving Corporation) and (iii) at least a
majority of the members of the board of directors of the Parent Corporation
(or, if there is no Parent Corporation, the Surviving Corporation) following
the consummation of the Business Combination were Incumbent Directors at the
time of the Board’s approval of the execution of the initial agreement
providing for such Business Combination (any Business Combination which
satisfies all of the criteria specified in (i), (ii) and (iii) above
shall be deemed to be a “Non-Qualifying
Transaction”); or


 


(d)           The
stockholders of the Company approve a plan of complete liquidation or
dissolution of the Company or the consummation of a sale of all or
substantially all of the Company’s assets.


 


Notwithstanding
the foregoing, a Change in Control shall not be deemed to occur solely because
any person acquires beneficial ownership of 50% or more of the Company Voting
Securities as a result of the acquisition of Company Voting Securities by the
Company which reduces the number of Company Voting Securities outstanding; provided, that
if after such acquisition by the Company such person becomes the beneficial
owner of additional Company Voting Securities that increases the percentage of
outstanding Company Voting Securities beneficially owned by such person, a
Change in Control of the Company shall then occur.


 


12.                               GENERALLY APPLICABLE PROVISIONS


 


12.1.       Amendment and Termination of the Plan.  The Board may, from time to time, alter,
amend, suspend or terminate the Plan as it shall deem advisable, subject to any
requirement for stockholder approval imposed by applicable law, including the rules and
regulations of the Securities Exchange on which the Shares are then traded;
provided that the Board may not amend the Plan in any manner that would result
in noncompliance with Rule 16b-3 of the Exchange Act; and further provided
that the Board may not, without the approval of the Company’s stockholders (to
the extent stockholder approval is required by the Code or other applicable 


 


11

















 


law),
amend the Plan to: (a) increase the number of Shares that may be the
subject of Awards under the Plan (except for adjustments pursuant to Section 12.2);
(b) expand the types of awards available under the Plan; (c) materially
expand the class of persons eligible to participate in the Plan; (d) amend
Section 5.3 or Section 6.2(f) to eliminate the requirements
relating to minimum exercise price, minimum grant price and stockholder
approval; (e) increase the maximum permissible term of any Option
specified by Section 5.4 or the maximum permissible term of a Stock
Appreciation Right specified by Section 6.2(d); or (f) increase the
Limitations. The Board may not, without the approval of the Company’s
stockholders, cancel an Option or Stock Appreciation Right in exchange for cash
or take any action with respect to an Option or Stock Appreciation Right that
would be treated as a repricing under the rules and regulations of the
Securities Exchange on which the Shares are then traded, including a reduction
of the exercise price of an Option or the grant price of a Stock Appreciation
Right or the exchange of an Option or Stock Appreciation Right for cash or another
Award. In addition, no amendments to, or termination of, the Plan shall impair
the rights of a Participant in any material respect under any Award previously
granted without such Participant’s consent.


 


12.2.       Adjustments.  In the event of any merger, reorganization,
consolidation, recapitalization, dividend or distribution (whether in cash,
shares or other property, other than a regular cash dividend), stock split,
reverse stock split, spin-off or similar transaction or other change in
corporate structure affecting the Shares or the value thereof, such adjustments
and other substitutions shall be made to the Plan and to Awards as the
Committee deems equitable or appropriate taking into consideration the
accounting and tax consequences, including such adjustments in the aggregate
number, class and kind of securities that may be delivered under the Plan, the
Limitations, the maximum number of Shares that may be issued pursuant to
Incentive Stock Options and, in the aggregate or to any Participant, in the number,
class, kind and option or exercise price of securities subject to outstanding
Awards granted under the Plan (including, if the Committee deems appropriate,
the substitution of similar options to purchase the shares of, or other awards
denominated in the shares of, another company) as the Committee may determine
to be appropriate; provided, however, that the number of Shares subject to any
Award shall always be a whole number.


 


12.3.       Transferability of Awards.  Except as provided below, no Award and no Shares
that have not been issued or as to which any applicable restriction,
performance or deferral period has not lapsed, may be sold, assigned,
transferred, pledged or otherwise encumbered, other than by will or the laws of
descent and distribution, and such Award may be exercised during the life of
the Participant only by the Participant or the Participant’s guardian or legal
representative. To the extent and under such terms and conditions as determined
by the Committee, a Participant may assign or transfer an Award (each
transferee thereof, a “Permitted Assignee”) to: (i) the Participant’s
spouse, children or grandchildren (including any adopted and step children or
grandchildren), parents, grandparents or siblings; (ii) to a trust for the
benefit of one or more of the Participant or the persons referred to in
clause (i); (iii) to a partnership, limited liability company or
corporation in which the Participant or the persons referred to in clause (i) are
the only partners, members or shareholders; or (iv) for charitable
donations; provided that such Permitted Assignee shall be bound by and subject
to all of the terms and conditions of the Plan and the Award Agreement relating
to the transferred Award and shall execute an agreement satisfactory to the
Company evidencing such obligations; and provided further that such Participant
shall remain bound by the terms and conditions of the Plan. The Company shall
cooperate with any Permitted Assignee and the Company’s transfer agent in
effectuating any transfer permitted under this Section.


 


12.4.       Termination of Employment or Services.  The Committee shall determine and set forth
in each Award Agreement whether any Awards granted in such Award Agreement will
continue to be exercisable, continue to vest or be earned and the terms of such
exercise, vesting or earning, on and after the date that a Participant ceases
to be employed by or to provide services to the Company or any Subsidiary
(including as a Director), whether by reason of death, disability, voluntary or
involuntary termination of employment or services, or otherwise. The date of
termination of a Participant’s employment or services will be determined by the
Committee, which determination will be final.


 


12.5.       Deferral;
Dividend Equivalents.  The
Committee in its sole discretion shall be authorized to establish procedures
pursuant to which the payment of any Award may be deferred. Subject to the
provisions of the Plan and any Award Agreement, the recipient of an Award other
than an Option or Stock Appreciation Right may, if so determined by the
Committee, be entitled to receive, currently or on a deferred basis, amounts
equivalent to cash, stock or other property dividends on Shares (“Dividend
Equivalents”) with respect to the number of Shares covered by the Award, as
determined by the Committee, in its sole discretion. The Committee may provide
that the Dividend Equivalents (if any) shall be deemed to have been reinvested
in additional Shares or otherwise reinvested and may provide that the Dividend
Equivalents are subject to the same vesting or performance conditions as the
underlying Award. Notwithstanding the foregoing, Dividend Equivalents
distributed in connection with an Award that vests based on the achievement of
performance goals shall be subject to restrictions and risk of forfeiture to
the same extent as the Award with respect to which such cash, stock or other
property has been distributed.


 


13.                               MISCELLANEOUS


 


13.1.       Award Agreements.  Each Award Agreement shall either be: (a) in
writing in a form approved by the Committee and executed by the Company by an
officer duly authorized to act on its behalf; or (b) an electronic notice
in a form approved by the 


 


12

















 


Committee
and recorded by the Company (or its designee) in an electronic recordkeeping
system used for the purpose of tracking one or more types of Awards as the
Committee may provide; in each case and if required by the Committee, the Award
Agreement shall be executed or otherwise electronically accepted by the
recipient of the Award in such form and manner as the Committee may require.
The Committee may authorize any officer of the Company to execute any or all
Award Agreements on behalf of the Company. The Award Agreement shall set forth
the material terms and conditions of the Award as established by the Committee
consistent with the provisions of the Plan.


 


13.2.       Tax Withholding.  The Company shall have the right to make all
payments or distributions pursuant to the Plan to a Participant (or a Permitted
Assignee thereof) (any such person, a “Payee”) net of any applicable federal,
state and local taxes required to be paid or withheld as a result of: (a) the
grant of any Award; (b) the exercise of an Option or Stock Appreciation
Right; (c) the delivery of Shares or cash; (d) the lapse of any
restrictions in connection with any Award; or (e) any other event
occurring pursuant to the Plan. The Company or any Subsidiary shall have the
right to withhold from wages or other amounts otherwise payable to such Payee
such withholding taxes as may be required by law, or to otherwise require the
Payee to pay such withholding taxes. If the Payee shall fail to make such tax
payments as are required, the Company or its Subsidiaries shall, to the extent
permitted by law, have the right to deduct any such taxes from any payment of
any kind otherwise due to such Payee or to take such other action as may be
necessary to satisfy such withholding obligations. The Committee shall be
authorized to establish procedures for election by Participants to satisfy such
obligation for the payment of such taxes by tendering previously acquired
Shares (either actually or by attestation, valued at their then Fair Market
Value), or by directing the Company to retain Shares (up to the Participant’s
minimum required tax withholding rate or such other rate that will not cause an
adverse accounting consequence or cost) otherwise deliverable in connection
with the Award.


 


13.3.       Right of Discharge Reserved; Claims to
Awards.  Nothing in the Plan nor the
grant of an Award hereunder shall confer upon any Employee, Director or
Consultant the right to continue in the employment or service of the Company or
any Subsidiary or affect any right that the Company or any Subsidiary may have
to terminate the employment or service of (or to demote or to exclude from
future Awards under the Plan) any such Employee, Director or Consultant at any
time for any reason “at will.” Except as specifically provided by the
Committee, the Company shall not be liable for the loss of existing or
potential profit from an Award granted in the event of termination of an
employment or other relationship. No Employee, Director or Consultant shall
have any claim to be granted any Award under the Plan, and there is no
obligation for uniformity of treatment of Employees, Directors or Consultants
under the Plan.


 


13.4.       Substitute Awards.  Notwithstanding any other provision of the
Plan, the terms of Substitute Awards may vary from the terms set forth in the
Plan to the extent the Committee deems appropriate to conform, in whole or in
part, to the provisions of the awards in substitution for which they are
granted.


 


13.5.       Cancellation of Award; Forfeiture of
Gain.  Notwithstanding anything to the
contrary contained herein, an Award Agreement may provide that the Award shall
be canceled if the Participant, without the consent of the Company, while
employed by or providing services to the Company or any Subsidiary or after
termination of such employment or service, violates a non-competition,
non-solicitation or non-disclosure covenant or agreement or otherwise engages
in activity that is in conflict with or adverse to the interest of the Company
or any Subsidiary (including conduct contributing to any financial restatements
or financial irregularities), as determined by the Committee in its sole
discretion. The Committee may provide in an Award Agreement that if within the
time period specified in the Agreement the Participant establishes a
relationship with a competitor or engages in an activity referred to in the
preceding sentence, the Participant will forfeit any gain realized on the
vesting or exercise of the Award and must repay such gain to the Company.


 


13.6.       Stop Transfer Orders.  All certificates for Shares delivered under
the Plan pursuant to any Award shall be subject to such stop-transfer orders
and other restrictions as the Committee may deem advisable under the rules,
regulations and other requirements of the U.S. Securities and Exchange
Commission (“SEC”), any stock exchange upon which the Shares are then listed,
and any applicable federal or state securities law, and the Committee may cause
a legend or legends to be put on any such certificates to make appropriate
reference to such restrictions.


 


13.7.       Nature of Payments.  All Awards made pursuant to the Plan are in
consideration of services performed or to be performed for the Company or any
Subsidiary, division or business unit of the Company. Any income or gain
realized pursuant to Awards under the Plan constitutes a special incentive
payment to the Participant and shall not be taken into account, to the extent
permissible under applicable law, as compensation for purposes of any of the
employee benefit plans of the Company or any Subsidiary except as may be
determined by the Committee or by the Board or board of directors of the
applicable Subsidiary.


 


13.8.       Other Plans.  Nothing contained in the Plan shall prevent
the Board from adopting other or additional compensation arrangements, subject
to stockholder approval if such approval is required; and such arrangements may
be either generally applicable or applicable only in specific cases.


 


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13.9.       Severability.  The provisions of the Plan shall be deemed
severable. If any provision of the Plan shall be held unlawful or otherwise
invalid or unenforceable in whole or in part by a court of competent
jurisdiction or by reason of change in a law or regulation, such provision
shall: (a) be deemed limited to the extent that such court of competent
jurisdiction deems it lawful, valid and/or enforceable and as so limited shall
remain in full force and effect; and (b) not affect any other provision of
the Plan or part thereof, each of which shall remain in full force and effect.
If the making of any payment or the provision of any other benefit required
under the Plan shall be held unlawful or otherwise invalid or unenforceable by
a court of competent jurisdiction, such unlawfulness, invalidity or
unenforceability shall not prevent any other payment or benefit from being made
or provided under the Plan, and if the making of any payment in full or the
provision of any other benefit required under the Plan in full would be
unlawful or otherwise invalid or unenforceable, then such unlawfulness,
invalidity or unenforceability shall not prevent such payment or benefit from
being made or provided in part, to the extent that it would not be unlawful,
invalid or unenforceable, and the maximum payment or benefit that would not be
unlawful, invalid or unenforceable shall be made or provided under the Plan.


 


13.10.     Construction.  As used in the Plan, the words “include” and “including,” and variations thereof, shall not be deemed to
be terms of limitation, but rather shall be deemed to be followed by the words “without limitation.”


 


13.11.     Unfunded Status of the Plan.  The Plan is intended to constitute an “unfunded”
plan for incentive compensation. With respect to any payments not yet made to a
Participant by the Company, nothing contained herein shall give any such
Participant any rights that are greater than those of a general creditor of the
Company. In its sole discretion, the Committee may authorize the creation of
trusts or other arrangements to meet the obligations created under the Plan to
deliver the Shares or payments in lieu of or with respect to Awards hereunder;
provided, however, that the existence of such trusts or other arrangements is
consistent with the unfunded status of the Plan.


 


13.12.     Governing Law.  The Plan and all determinations made and
actions taken thereunder, to the extent not otherwise governed by the Code or
the laws of the United States, shall be governed by the laws of the State of
Utah, without reference to principles of conflict of laws, and construed
accordingly.


 


13.13.     Effective Date of Plan; Termination of
Plan.  The Plan shall be effective on
the date of the approval of the Plan by the holders of a majority of the shares
entitled to vote at a duly constituted meeting of the stockholders of the
Company at which a quorum is present. The Plan shall be null and void and of no
effect if the foregoing condition is not fulfilled and in such event each Award
shall, notwithstanding any of the preceding provisions of the Plan, be null and
void and of no effect. Awards may be granted under the Plan at any time and
from time to time on or prior to the tenth (10th) anniversary of the effective date of the Plan, on
which date the Plan will expire except as to Awards then outstanding under the
Plan. Such outstanding Awards shall remain in effect until they have been
exercised or terminated, or have expired.


 


13.14.     Foreign Employees and Consultants.  Awards may be granted to Participants who are
foreign nationals or employed or providing services outside the United States,
or both, on such terms and conditions different from those applicable to Awards
to Employees or Consultants providing services in the United States as may, in
the judgment of the Committee, be necessary or desirable in order to recognize
differences in local law or tax policy. The Committee also may impose
conditions on the exercise or vesting of Awards in order to minimize the
Company’s obligation with respect to tax equalization for Employees or
Consultants on assignments outside their home country.


 


13.15.     Compliance with Section 409A of the
Code.  This Plan is intended to comply
and shall be administered in a manner that is intended to comply with Section 409A
of the Code and shall be construed and interpreted in accordance with such
intent. To the extent that an Award or the payment, settlement or deferral
thereof is subject to Section 409A of the Code, the Award shall be
granted, paid, settled or deferred in a manner that will comply with Section 409A
of the Code, including regulations or other guidance issued with respect
thereto, except as otherwise determined by the Committee. Any provision of this
Plan that would cause the grant of an Award or the payment, settlement or
deferral thereof to fail to satisfy Section 409A of the Code shall be
amended to comply with Section 409A of the Code on a timely basis, which
may be made on a retroactive basis, in accordance with regulations and other
guidance issued under Section 409A of the Code.


 


13.16.     No Registration Rights; No Right to Settle
in Cash.  The Company
has no obligation to register with any governmental body or organization
(including, without limitation, the SEC) any of: (a) the offer or issuance
of any Award; (b) any Shares issuable upon the exercise of any Award; or (c) the
sale of any Shares issued upon exercise of any Award, regardless of whether the
Company in fact undertakes to register any of the foregoing. In particular, in
the event that any of: (i) any offer or issuance of any Award; (ii) any
Shares issuable upon exercise of any Award; or (iii) the sale of any
Shares issued upon exercise of any Award are not registered with any
governmental body or organization (including, without limitation, the SEC), the
Company will not under any circumstance be required to settle its obligations,
if any, under this Plan in cash.


 


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13.17.     Captions.  The captions in the Plan are for convenience
of reference only, and are not intended to narrow, limit or affect the
substance or interpretation of the provisions contained herein.


 


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