the payment upon Stock Appreciation
Right exercise may be in cash, in Shares of equivalent value, or in some
combination thereof.
12
10.
PERFORMANCE UNITS AND PERFORMANCE SHARES.
(A)
GRANT OF PERFORMANCE UNITS/SHARES.
PERFORMANCE UNITS AND PERFORMANCE SHARES MAY BE GRANTED TO SERVICE PROVIDERS AT
ANY TIME AND FROM TIME TO TIME, AS WILL BE DETERMINED BY THE ADMINISTRATOR, IN
ITS SOLE DISCRETION.
THE ADMINISTRATOR WILL HAVE COMPLETE DISCRETION IN
DETERMINING THE NUMBER OF PERFORMANCE UNITS/SHARES GRANTED TO EACH PARTICIPANT
PROVIDED THAT DURING ANY FISCAL YEAR, (I) NO PARTICIPANT MAY RECEIVE PERFORMANCE
UNITS HAVING AN INITIAL VALUE GREATER THAN $2,000,000, AND (II) NO PARTICIPANT
MAY RECEIVE MORE THAN 200,000 PERFORMANCE SHARES.
Notwithstanding the foregoing limitation, in connection with a Participant's
initial service as an Employee, an Employee may be granted up to an additional
300,000 Performance Shares.
(B)
VALUE OF PERFORMANCE UNITS/SHARES.
EACH
PERFORMANCE UNIT WILL HAVE AN INITIAL VALUE THAT IS ESTABLISHED BY THE
ADMINISTRATOR ON OR BEFORE THE DATE OF GRANT.
EACH PERFORMANCE SHARE WILL HAVE
AN INITIAL VALUE EQUAL TO THE FAIR MARKET VALUE OF A SHARE ON THE DATE OF GRANT.
(C)
PERFORMANCE OBJECTIVES AND OTHER TERMS.
THE ADMINISTRATOR WILL SET PERFORMANCE OBJECTIVES OR OTHER VESTING PROVISIONS;
PROVIDED, HOWEVER, THAT EXCEPT AS OTHERWISE PROVIDED IN SECTION 14(C),
PERFORMANCE SHARES/UNITS (OTHER THAN PERFORMANCE SHARES/UNITS GRANTED PURSUANT
TO A STOCKHOLDER APPROVED EXCHANGE PROGRAM) WILL NOT VEST MORE RAPIDLY THAN
ONE-THIRD (1/3RD) OF THE TOTAL NUMBER OF PERFORMANCE SHARES/UNITS SUBJECT TO AN
AWARD EACH YEAR FROM THE DATE OF GRANT (OR, WITH RESPECT TO AN AWARD GRANTED TO
A PARTICIPANT IN CONNECTION WITH OR AS PART OF HIS OR HER INITIAL EMPLOYMENT
WITH THE COMPANY OR ANY PARENT OR SUBSIDIARY OF THE COMPANY, THE DATE A
PARTICIPANT COMMENCES EMPLOYMENT THE COMPANY OR ANY PARENT OR SUBSIDIARY OF THE
COMPANY), UNLESS THE ADMINISTRATOR DETERMINES THAT THE AWARD IS TO VEST UPON THE
ACHIEVEMENT OF PERFORMANCE CRITERIA AND THE PERIOD FOR MEASURING SUCH
PERFORMANCE WILL COVER AT LEAST TWELVE (12) MONTHS.
SUBJECT TO SECTIONS
4(B)(III) AND (VI) AND NOTWITHSTANDING THE FOREGOING SENTENCE, THE
ADMINISTRATOR, IN ITS SOLE DISCRETION, MAY PROVIDE AT THE TIME OF OR FOLLOWING
THE DATE OF GRANT FOR ACCELERATED VESTING FOR AN AWARD OF PERFORMANCE
SHARES/UNITS IN CONNECTION WITH A CHANGE IN CONTROL OR UPON OR IN CONNECTION
WITH A PARTICIPANT'S TERMINATION OF SERVICE, INCLUDING, WITHOUT LIMITATION, DUE
TO DEATH, DISABILITY OR RETIREMENT.
THE ADMINISTRATOR MAY SET VESTING CRITERIA
BASED UPON THE ACHIEVEMENT OF COMPANY-WIDE, BUSINESS UNIT, OR INDIVIDUAL GOALS
(INCLUDING, BUT NOT LIMITED TO, CONTINUED EMPLOYMENT), OR ANY OTHER BASIS
DETERMINED BY THE ADMINISTRATOR IN ITS DISCRETION.
(D)
EARNING OF PERFORMANCE UNITS/SHARES.
AFTER
THE APPLICABLE PERFORMANCE PERIOD HAS ENDED, THE HOLDER OF PERFORMANCE
UNITS/SHARES WILL BE ENTITLED TO RECEIVE A PAYOUT OF THE NUMBER OF PERFORMANCE
UNITS/SHARES EARNED BY THE PARTICIPANT OVER THE PERFORMANCE PERIOD, TO BE
DETERMINED AS A FUNCTION OF THE EXTENT TO WHICH THE CORRESPONDING PERFORMANCE
OBJECTIVES OR OTHER VESTING PROVISIONS HAVE BEEN ACHIEVED.
AFTER THE GRANT OF A
PERFORMANCE UNIT/SHARE, THE ADMINISTRATOR,