DJ DGAP-CMS: Diebold Nixdorf, Incorporated: Release according to Article 50 of the WpHG [the German Securities Trading Act] with the objective of Europe-wide distribution
DGAP Post-admission Duties announcement: Diebold Nixdorf, Incorporated /
Third country release according to Article 50 Para. 1, No. 2 of the WpHG
[the German Securities Trading Act]
Diebold Nixdorf, Incorporated: Release according to Article 50 of the WpHG
[the German Securities Trading Act] with the objective of Europe-wide
distribution
2020-05-08 / 03:16
Dissemination of a Post-admission Duties announcement according to Article
50 Para. 1, No. 2 WpHG transmitted by DGAP - a service of EQS Group AG.
The issuer is solely responsible for the content of this announcement.
*UNITED STATES*
*SECURITIES AND EXCHANGE COMMISSION*
*WASHINGTON, D.C. 20549*
*FORM 8-K*
*CURRENT REPORT*
*Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934*
*Date of Report (Date of Earliest Event Reported): *May 1, 2020
*Diebold Nixdorf, Incorporated*
(Exact name of registrant as specified in its charter)
=-----------------------------------------------------
Ohio 1-4879 34-0183970
(State or
other
jurisdicti (I.R.S.
on (Commission Employer
of
incorporat Identification
ion) File Number) No.)
5995
Mayfair
Road, P.O.
Box 3077,
North
Canton,
Ohio 44720-8077
(Address
of
principal
executive
offices) (Zip Code)
Registrant's telephone number, including area code: (330) 490-4000
Not Applicable
Former name or former address, if changed since last report
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of
the following provisions:
- Written communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
- Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
- Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
- Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
*Name
of
each
exchan
ge on
which
*Title of each *Trading regist
class* Symbol* ered*
*New
York
Stock
*Common shares, $1.25 par value per Exchan
share* *DBD* ge*
Indicate by check mark whether the registrant is an emerging growth company
as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this
chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of
this chapter).
Emerging growth company -
If an emerging growth company, indicate by check mark if the registrant has
elected not to use the extended transition period for complying with any new
or revised financial accounting standards provided pursuant to Section 13(a)
of the Exchange Act. -
*Item 5.02. Departure of Directors or Certain Officers; Election of
Directors; Appointment of Certain Officers; Compensatory Arrangements of
Certain Officers.*
(e) _Adoption of an Amendment to the 2017 Equity and Performance Incentive
Plan_
On May 1, 2020 the shareholders of Diebold Nixdorf, Incorporated (the
'Company') approved an amendment to the Diebold Nixdorf, Incorporated 2017
Equity and Performance Incentive Plan (the '2017 Plan') at the Company's
Annual Meeting of Shareholders (the 'Annual Meeting'). The Company's Board
of Directors (the 'Board') previously adopted the amendment to the 2017 Plan
based on the recommendation of the Compensation Committee (the 'Committee')
and subject to the approval of the shareholders at the Annual Meeting. This
amendment authorizes an additional 1,910,000 common shares for issuance
under the 2017 Plan. The amended 2017 Plan is described in more detail in
the Company's definitive proxy statement on Schedule 14A filed March 10,
2020. The foregoing description, and the summary contained in the Company's
2020 Proxy Statement, are qualified in their entirety by reference to the
full text of the 2017 Plan, as amended, which is filed as Exhibit 10.1 to
this Form 8-K.
*Item 5.07.* *Submission of Matters to a Vote of Security Holders.*
At the Company's Annual Meeting held on May 1, 2020, the Company's
shareholders: (1) elected each of the Board's eleven (11) nominees for
director to serve one-year terms or until the election and qualification of
a successor; (2) ratified the appointment of KPMG LLP as the Company's
independent registered public accounting firm for the year 2020; (3)
approved, on an advisory basis, our named executive officer compensation;
and (4) approved an amendment to the 2017 Plan. These proposals are
described in more detail in the Company's definitive proxy statement on
Schedule 14A filed March 10, 2020.
Set forth below are the final voting results for each proposal:
_Proposal No. 1: Election of eleven (11) directors:_
*Broker
*For* *Against* *Abstain* Non-Vote*
Arthur 57,33
F. Anton 58,116,077 1,089,608 2 9,321,407
Bruce H. 57,96
Besanko 58,266,757 938,299 1 9,321,407
Reynolds 61,51
C. Bish 57,996,382 1,205,120 5 9,321,407
Ellen M. 52,97
Costello 58,178,742 1,031,305 0 9,321,407
Phillip 48,75
R. Cox 57,282,884 1,931,380 3 9,321,407
Dr.
Alexande
r 56,30
Dibelius 58,166,556 1,040,155 6 9,321,407
Matthew 61,60
Goldfarb 58,176,654 1,024,763 0 9,321,407
Gary G.
Greenfie 57,60
ld 58,206,276 999,138 3 9,321,407
Gerrard
B. 51,80
Schmid 58,197,828 1,013,389 0 9,321,407
Kent M. 58,75
Stahl 58,024,283 1,179,975 9 9,321,407
Lauren
C. 58,93
States 58,492,103 711,976 8 9,321,407
Patrick
J.
Lysobey 776 0 0 0
_Proposal No. 2: Ratification of the appointment of KPMG LLP as the
Company's independent registered public accounting firm for the year 2020:_
*For* *Against* *Abstain*
112
67,555,7 ,10
91 917,301 8
_Proposal No. 3: Approve, on an
advisory basis, our named
executive officer compensation:_
*Broker
Non-Vot
*For* *Against* *Abstain* es*
234
51,951,0 ,73 9,321
25 7,078,034 4 ,407
_Proposal 4: Approve an amendment to the
Diebold Nixdorf, Incorporated 2017 Equity
and Performance Incentive Plan:_
*Broker
Non-Vot
*For* *Against* *Abstain* es*
198
53,119,6 ,79 9,321
98 5,945,296 9 ,407
*Item 9.01. Financial
Statements and Exhibits.*
(d)
Exhibits
.
*Exhibit
Number* *Description*
Diebold Nixdorf, Incorporated 2017
Equity and Performance Incentive
10.1 Plan, as amended May 1, 2020.
*SIGNATURES*
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Diebold Nixdorf, Incorporated
May 7, 2020 By: _/s/ Jonathan B. Leiken_
Name: Jonathan B. Leiken
Senior Vice President,
Chief Legal Officer and
Title: Secretary
*EX 10.1*
*DIEBOLD NIXDORF, INCORPORATED*
*2017 EQUITY AND PERFORMANCE INCENTIVE PLAN*
*AMENDED MAY 1, 2020*
ARTICLE I
ESTABLISHMENT AND PURPOSE
1.1 Purpose. The purpose of this Equity and Performance Incentive Plan (this
'Plan') is to attract and retain directors, officers and employees for
Diebold Nixdorf, Incorporated (the 'Company') and its Subsidiaries and to
provide to such persons incentives and rewards for performance.
1.2 Participation. Persons eligible to participate in this Plan include
Employees and Directors. Subject to the provisions of this Plan, the
Committee may from time to time select those Employees and Directors to whom
Awards shall be granted and shall determine the nature and amount of those
Awards. No Employee or Director shall have the right to be granted an Award.
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DJ DGAP-CMS: Diebold Nixdorf, Incorporated: Release -2-
1.3 Duration of the Plan. This Plan shall become effective on the date that
it is approved by the Company's shareholders (the 'Effective Date') and
shall remain in effect, subject to the right of the Board to terminate this
Plan at any time pursuant to Section 15.1, until all Shares subject to it
have been purchased or acquired. However, in no event shall any Award be
granted under this Plan on or after the tenth (10th) anniversary of the
Effective Date.
ARTICLE II
DEFINITIONS
As used in this Plan,
2.1 'Annual Meeting' means the annual meeting of shareholders of the
Company.
2.2 'Award' means any right granted under this Plan, including an Option, a
Stock Appreciation Right, a Restricted Share award, a Restricted Stock Unit
award, a Performance Share or a Performance Unit award, or an Other
Share-Based award.
2.3 'Award Agreement' means an agreement, certificate, resolution or other
type or form of writing or other evidence approved by the Committee which
sets forth the terms and conditions of an individual Award granted under
this Plan which may, in the discretion of the Company, be transmitted
electronically to the Participant. Each Award Agreement shall be subject to
the terms and conditions of this Plan.
2.4 'Board' means the Board of Directors of the Company.
2.5 'Business Combination' has the meaning provided in Section 2.6(c) of
this Plan.
2.6 'Change in Control' means the occurrence of any of the following:
(a) The acquisition by any individual, entity or group (within the meaning
of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a 'Person') of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of thirty percent (30%) or more of either: (A) the
then-outstanding shares of common stock of the Company (the 'Company Common
Stock') or (B) the combined voting power of the then-outstanding voting
securities of the Company entitled to vote generally in the election of
Directors ('Voting Stock'); provided, however, that for purposes of this
subsection (a), the following acquisitions shall not constitute a Change in
Control: (1) any acquisition directly from the Company, (2) any acquisition
by the Company, (3) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Company or any Subsidiary, or (4) any
acquisition by any Person pursuant to a transaction which complies with
clauses (A), (B) and (C) of subsection (c) of this Section 2.6; or
(b) Individuals who, as of the date hereof, constitute the Board (as
modified by this subsection (b), the 'Incumbent Board'), cease for any
reason (other than death or disability) to constitute at least a majority of
the Board; provided, however, that any individual becoming a Director
subsequent to the date hereof whose election, or nomination for election by
the Company's shareholders, was approved by a vote of at least a majority of
the Directors then comprising the Incumbent 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 objection to such nomination) shall
be considered as though such individual were a member of the Incumbent
Board, but excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened election
contest with respect to the election or removal of Directors or other actual
or threatened solicitation of proxies or consents by or on behalf of a
Person other than the Board; or
(c) Consummation of a reorganization, merger or consolidation or sale or
other disposition of all or substantially all of the assets of the Company
(a 'Business Combination'), in each case, unless, following such Business
Combination, (A) all or substantially all of the individuals and entities
who were the beneficial owners, respectively, of the Company Common Stock
and Voting Stock immediately prior to such Business Combination beneficially
own, directly or indirectly, more than fifty percent (50%) of, respectively,
the then-outstanding shares of common stock and the combined voting power of
the then-outstanding voting securities entitled to vote generally in the
election of directors, as the case may be, of the entity resulting from such
Business Combination (including, without limitation, an entity which as a
result of such transaction owns the Company or all or substantially
*EX 10.1*
all of the Company's assets either directly or through one or more
subsidiaries) in substantially the same proportions relative to each other
as their ownership, immediately prior to such Business Combination, of the
Company Common Stock and Voting Stock, as the case may be, (B) no Person
(excluding any entity resulting from such Business Combination or any
employee benefit plan (or related trust) sponsored or maintained by the
Company or such entity resulting from such Business Combination)
beneficially owns, directly or indirectly, thirty percent (30%) or more of,
respectively, the then-outstanding shares of common stock of the entity
resulting from such Business Combination, or the combined voting power of
the then-outstanding voting securities of such corporation except to the
extent that such ownership existed prior to the Business Combination and (C)
at least a majority of the members of the board of directors of the
corporation resulting from such Business Combination were members of the
Incumbent Board at the time of the execution of the initial agreement, or of
the action of the Board providing for such Business Combination; or
(d) Approval by the shareholders of the Company of a complete liquidation or
dissolution of the Company.
A 'Change in Control' will be deemed to occur (i) with respect to a Change
in Control pursuant to subsection (a) above, on the date that any Person
becomes the beneficial owner of thirty percent (30%) or more of either the
Company Common Stock or Voting Stock, (ii) with respect to a Change in
Control pursuant to subsection (b) above, on the date the members of the
Incumbent Board first cease for any reason (other than death or disability)
to constitute at least a majority of the Board, (iii) with respect to a
Change in Control pursuant to subsection (c) above, on the date the
applicable transaction closes and (iv) with respect to a Change in Control
pursuant to subsection (d) above, on the date of the shareholder approval.
Notwithstanding the foregoing provisions, a 'Change in Control' shall not be
deemed to have occurred for purposes of this Plan solely because of a change
in control of any Subsidiary by which the Participant may be employed.
2.7 'Code' means the Internal Revenue Code of 1986, as amended from time to
time.
2.8 'Committee' has the meaning provided in Section 14.1 of this Plan.
2.9 'Common Shares' means shares of common stock, $1.25 par value per share,
of the Company or any security into which such Common Shares may be changed
by reason of any transaction or event of the type referred to in Article XI
of this Plan.
2.10 'Company Common Stock' has the meaning provided in Section 2.6(a) of
this Plan.
2.11 'Date of Grant' means the date on which the Committee adopts a
resolution, or takes other appropriate action, expressly granting an Award
to a Participant that specifies the key terms and conditions of the Award
or, if a later date is set forth in such resolution, then such later date as
is set forth therein.
2.12 'Designated Subsidiary ' means a Subsidiary that is (i) not a
corporation or (ii) a corporation in which at the time the Company owns or
controls, directly or indirectly, less than eighty percent (80%) of the
total combined voting power represented by all classes of stock issued by
such corporation.
2.13 'Detrimental Activity' means any of the following:
(a) Engaging in any activity, as an employee, principal, agent or consultant
for another entity, and in a capacity, that directly competes with the
Company or any Subsidiary in any actual product, service, or business
activity (or in any product, service, or business activity which was under
active development while the Participant was employed by the Company if such
development is
being actively pursued by the Company during the one (1) year period
following the termination of the Participant's employment by the Company or
a Subsidiary) for which the Participant has had any direct responsibility
and direct involvement during the last two (2) years of his or her
employment with the Company or a Subsidiary, in any territory in which the
Company or a Subsidiary manufactures, sells, markets, services, or installs
such product or service or engages in such business activity.
(b) Soliciting any Employee to terminate his or her employment with the
Company or a Subsidiary.
(c) The disclosure to anyone outside of the Company or a Subsidiary, or the
use in other than the Company or a Subsidiary's business, without prior
written authorization from the Company, of any confidential, proprietary or
trade secret information or material relating to the business of the Company
and its Subsidiaries, acquired by the Participant during his or her
employment with the Company or its Subsidiaries or while acting as a
consultant for the Company or its Subsidiaries thereafter; provided,
however, that nothing in this Plan limits a Participant's ability to file a
charge or complaint or to communicate, including by providing documents or
other information without notice to the Company, with the Securities and
Exchange Commission or any other governmental agency or commission
('Government Agency') or limits a Participant's right to receive an award
for information provided to any Government Agency.
(d) The failure or refusal to disclose promptly and to assign to the Company
upon request all right, title and interest in any invention or idea,
patentable or not, made or conceived by the Participant during the
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DJ DGAP-CMS: Diebold Nixdorf, Incorporated: Release -3-
Participant's employment by the Company or any Subsidiary, relating in any
manner to the actual or anticipated business, research or development work
of the Company or any Subsidiary or the failure or refusal to do anything
reasonably necessary to enable the Company or any Subsidiary to secure a
patent where appropriate in the United States and in other countries.
(e) Activity that results in 'termination for cause,' as such term is
defined in the applicable Award Agreement.
2.14 'Director' means a director of the Company.
*EX 10.1*
2.15 'Disability' means totally and permanently disabled as from time to
time defined under the long-term disability plan of the Company or a
Subsidiary applicable to the Participant, or, in the case where there is no
applicable plan, permanent and total disability as defined in Section
22(e)(3) of the Code (or any successor provision); provided, however, that
to the extent an amount payable under this Plan which constitutes deferred
compensation subject to Section 409A of the Code would become payable upon
Disability, 'Disability' for purposes of such payment shall not be deemed to
have occurred unless the disability also satisfies the requirements of
treasury regulation 1.409A-3.
2.16 'EBIT' has the meaning provided in Section 2.24(c) of this Plan.
2.17 'EBITDA' has the meaning provided in Section 2.24(c) of this Plan.
2.18 'Effective Date' has the meaning provided in Section 1.3 of this Plan.
2.19 'Employee' means an employee of the Company or any of its Subsidiaries,
including an employee who is an officer or a Director.
2.20 'Exchange Act' means the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder, as such law, rules and regulations
may be amended from time to time.
2.21 'Exercise Price' means, with respect to an Option or Stock Appreciation
Right, the price at which a Common Share may be purchased upon exercise
thereof.
2.22 'Fair Market Value' means, as of any particular date, the closing price
of a Common Share as reported for that date on the New York Stock Exchange
or, if the Common Shares are not then listed on the New York Stock Exchange,
on any other national securities exchange on which the Common Shares are
listed, or if there are no sales on such date, on the next preceding trading
day during which a sale occurred. If there is no regular public trading
market for the Common Shares, then the Fair Market Value shall be the fair
market value as determined in good faith by the Board.
2.23 'Free Standing Rights' has the meaning provided in Section 5.1 of this
Plan.
2.24 'Government Agency' has the meaning provided in Section 2.13(c) of this
Plan.
2.25 'Incentive Stock Option' means an Option intended to qualify as an
incentive stock option under Section 422 of the Code or any successor
provision.
2.26 'Incumbent Board' has the meaning provided in Section 2.6(b) of this
Plan.
2.27 'Management Goals' means, for a Performance Period, the one or more
goals established by the Committee, which, for any Award shall be based only
upon the Management Objectives.
(a) The Committee may provide that any evaluation of Management Goals shall
include or exclude any of the following items: (i) asset write-downs; (ii)
litigation or claim judgments or settlements; (iii) the effect of changes in
tax laws, accounting principles, regulations, or other laws or regulations
affecting reported results; (iv) any reorganization and restructuring
programs; (v) acquisitions or divestitures; (vi) unusual, nonrecurring or
extraordinary items identified in the Company's audited financial
statements, including footnotes, or in management's discussion and analysis
in the Company's annual report;
(vii) foreign exchange gains and losses; (viii) change in the Company's
fiscal year; and (ix) any other specific unusual or nonrecurring events, or
objectively determinable category thereof.
(b) If the Committee determines that a change in the business, operations,
corporate structure or capital structure of the Company, or the manner in
which it conducts its business, or other events or circumstances render the
Management Goals unsuitable, the Committee may in its discretion modify such
Management Goals or the related minimum acceptable level of achievement, in
whole or in part, as the Committee deems appropriate and equitable.
2.28 'Management Objectives' means the measurable performance objective or
objectives selected by the Committee for purposes of establishing the
Management Goal(s) for a Performance Period with respect to any Award under
this Plan. The Management Objectives that will be used to establish the
Management Goals shall be based on the attainment of specific levels of
performance of the Company, a Subsidiary, division, business unit,
operational unit, department, region or function within the Company or
Subsidiary in which the Participant is employed. The Management Objectives
applicable to any Award shall be limited to one or more, or a combination,
of the following:
(a) Sales, including (i) net sales, (ii) unit sales volume, and (iii)
aggregate product price;
(b) Share price, including (i) market price per share, and (ii) share price
appreciation;
(c) Earnings, including (i) earnings per share, reflecting dilution of
shares, (ii) gross or pre-tax profits, (iii) post-tax profits, (iv)
operating profit,
(v) earnings net of or including dividends, (vi) earnings net of or
including the after-tax cost of capital, (vii) earnings before (or after)
interest and taxes ('EBIT'), (viii) earnings per share from continuing
operations, diluted or basic, (ix) earnings before (or after) interest,
taxes, depreciation and amortization ('EBITDA'), (x) pre-tax operating
earnings after interest and before incentives, service fees and
extraordinary or special items, (xi) operating earnings,
(xii) growth in earnings or growth in earnings per share, and (xiii) total
earnings;
*EX 10.1*
(d) Return on equity, including (i) return on equity, (ii) return on
invested capital, (iii) return or net return on assets, (iv) return on net
assets,
(v) return on gross sales, (vi) return on investment, (vii) return on
capital, (viii) return on invested capital, (ix) return on committed
capital, (x) financial return ratios, (xi) value of assets, and (xii) change
in assets;
(e) Cash flow(s), including (i) operating cash flow, (ii) net cash flow,
(iii) free cash flow, and (iv) cash flow on investment;
(f) Revenue, including (i) gross or net revenue, and (ii) changes in annual
revenues;
(g) Margins, including (i) adjusted pre-tax margin, and (ii) operating
margins;
(h) Income, including (i) net income, and (ii) consolidated net income;
(i) Economic value added;
(j) Costs, including (i) operating or administrative expenses, (ii)
operating expenses as a percentage of revenue, (iii) expense or cost levels,
(iv) reduction of losses, loss ratios or expense ratios, (v) reduction in
fixed costs, (vi) expense reduction levels, (vii) operating cost management,
and (viii) cost of capital;
(k) Financial ratings, including (i) credit rating, (ii) capital
expenditures, (iii) debt, (iv) debt reduction, (v) working capital, (vi)
average invested capital, and (vii) attainment of balance sheet or income
statement objectives;
(l) Market or category share, including (i) market share, (ii) volume, (iii)
unit sales volume, and (iv) market share or market penetration with respect
to specific designated products or product groups and/or specific geographic
areas;
(m) Shareholder return, including (i) total shareholder return, (ii)
shareholder return based on growth measures or the attainment of a specified
share price for a specified period of time, and (iii) dividends; and
(n) Objective nonfinancial performance criteria measuring either (i)
regulatory compliance, (ii) productivity and productivity improvements,
(iii) inventory turnover, average inventory turnover or inventory controls,
(iv) net asset turnover, (v) customer satisfaction based on specified
objective goals
or company-sponsored customer surveys, (vi) employee satisfaction based on
specified objective goals or company-sponsored employee surveys,
(vii) objective employee diversity goals, (viii) employee turnover, (ix)
specified objective environmental goals, (x) specified objective social
goals,
(xi) specified objective goals in corporate ethics and integrity, (xii)
specified objective safety goals, (xiii) specified objective business
expansion goals or goals relating to acquisitions or divestitures, (xiv) day
sales outstanding, and (xv) succession plan development and implementation.
Any one or more of the Management Objectives may be used on an absolute,
relative or comparative basis to measure the performance, as the Committee
may deem appropriate, or as compared to the performance of another company
or a group of comparable companies, or published or special index that the
Committee, in its sole discretion, deems appropriate, including various
stock market indices.
2.29 'Non-Employee Director' means a Director who is a 'non-employee
director' within the meaning of Rule 16b-3.
2.30 'Non-qualified Stock Option' means an Option that by its terms does not
qualify or is not intended to qualify as an Incentive Stock Option.
2.31 'Option' means an Incentive Stock Option or a Non-qualified Stock
Option granted pursuant to Article IV of this Plan.
2.32 'Other Share-Based Award' means an Award granted pursuant to Article
IX, which is payable in, valued in whole or in part by reference to, or
otherwise based on or related to Common Shares, excluding any Option, Stock
Appreciation Right, Restricted Share, Restricted Stock Unit, Performance
Share or Performance Unit.
2.33 'Participant' means an Employee or Director who has been granted an
Award under this Plan.
2.34 'Performance Period' means the one (1) or more periods of time (which
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shall not be less than one fiscal quarter in duration) as the Committee may select, over which the attainment of one or more Management Goals will be measured for purposes of determining a Participant's right to and the payment of an Award subject to such Performance Period. 2.35 'Performance Share' means a bookkeeping entry that records the equivalent of one (1) Common Share awarded pursuant to Article VIII of this Plan. 2.36 'Performance Unit' means a bookkeeping entry that records a unit equivalent to $1.25 awarded pursuant to Article VIII of this Plan. 2.37 'Person' has the meaning provided in Section 2.6(a) of this Plan. 2.38 'Related Rights' has the meaning provided in Section 5.1 of this Plan. 2.39 'Restricted Period' has the meaning provided in Section 6.1 of this Plan. 2.40 'Restricted Shares' means Common Shares granted or sold pursuant to Article VI of this Plan. *EX 10.1* 2.41 'Restricted Stock Unit' means a bookkeeping entry that records the equivalent of one Common Share awarded pursuant to Article VII of this Plan. 2.42 'Rule l6b-3' means Rule 16b-3 promulgated under the Exchange Act (or any successor rule to Rule 16b-3) as is in effect and may be amended from time to time. 2.43 'Securities Act ' means the Securities Act of 1933, as amended, and the rules and regulations thereunder, as such law, rules and regulations may be amended from time to time. 2.44 'Stock Appreciation Right' means a right granted pursuant to Article V of this Plan. 2.45 'Subsidiary' means a corporation, company or other entity (i) more than fifty percent (50%) of whose outstanding shares or securities (representing the right to vote for the election of directors or other managing authority) are, or (ii) which does not have outstanding shares or securities (as may be the case in a partnership, joint venture or unincorporated association), but more than fifty percent (50%) of whose ownership interests representing the right generally to make decisions for such other entity is, now or hereafter, owned or controlled, directly or indirectly, by the Company except that for purposes of determining whether any person may be a Participant for purposes of a grant of Incentive Stock Options, 'Subsidiary' means any corporation which is a 'subsidiary corporation,' whether now or hereafter existing, as defined in Section 424(f) of the Code. 2.46 'Ten Percent Shareholder' means an employee of the Company, or of a parent or subsidiary corporation within the meaning of Section 424 of the Code, who owns (or is deemed to own pursuant to Section 424(d) of the Code) more than ten percent (10%) of the total combined voting power of all classes of voting stock of the Company, the Company's parent (if any) or any Subsidiary. 2.47 'Voting Stock' means at any time, the then-outstanding securities entitled to vote generally in the election of Directors. ARTICLE III SHARES SUBJECT TO THE PLAN 3.1 Number of Shares. Subject to adjustment as provided in Article XI of this Plan, the number of Common Shares that may be issued or transferred under this Plan shall not exceed in the aggregate 11,001,117 shares. Such shares may be shares of original issuance or treasury shares or a combination of the foregoing. (a) Common Shares covered by an Award granted under this Plan will not be counted as used unless and until they are actually issued or transferred. (b) If any Award is forfeited, expires, terminates, otherwise lapses or is settled for cash, in whole or in part, without the delivery of Common Shares, then the Common Shares covered by such forfeited, expired, terminated, lapsed or cash-settled Award shall again be available for grant under this Plan. In the event that withholding tax liabilities arising from an Award other than an Option or Stock Appreciation Right are satisfied by the tendering of Common Shares (either actually or by attestation) or by the withholding of Common Shares by the Company, the Common Shares so tendered or withheld shall be added to the Common Shares available for Awards under this Plan. For the avoidance of doubt, the following will not again become available for issuance under this Plan: (i) any Common Shares withheld in respect of taxes upon settlement of an Option or Stock Appreciation Right, (ii) any Common Shares tendered or withheld to pay an Exercise Price, (iii) any Common Shares subject to a Stock Appreciation Right that are not issued in connection with its stock settlement on exercise thereof, and (iv) any Common Shares reacquired by the Company on the open market or otherwise using cash proceeds. 3.2 Share Limits. Notwithstanding anything in this Article III or elsewhere in this Plan to the contrary, and subject to adjustments as provided in Article XI of this Plan, the limits specified below shall apply to any grants of the following types of Awards: (a) Incentive Stock Options. Notwithstanding any designation of an Option as an Incentive Stock Option in an Award Agreement, to the extent the aggregate Fair Market Value of the Common Shares with respect to which the Incentive Stock Options are exercisable for the first time by the Participant during any calendar year (under all plans) exceeds one hundred thousand dollars ($100,000), the portion of the Options falling within such limit shall be Incentive Stock Options and the excess Options shall be treated as Non-qualified Stock Options. For these purposes, Incentive Stock Options shall be taken into account in the order in which they were granted, and the Fair Market Value of the Common Shares shall be determined as of the time the Option was granted. Incentive Stock Options covering no more than 11,001,117 Common Shares may be granted under this Plan. (b) Non-Employee Director Limit. The aggregate dollar value of Awards granted to any non-Employee Director in any calendar year shall not exceed Seven Hundred and Fifty Thousand Dollars ($750,000). The value of the Awards shall be determined based on the Fair Market Value of each Award on the Date of Grant. 3.3 Minimum Vesting Requirements. Notwithstanding any provision of this Plan to the contrary, on and after the Effective Date, the Committee shall not award more than five percent (5%) of the aggregate number of Common Shares that become available for grant under this Plan as of the Effective Date pursuant to Awards that are solely subject to vesting conditions or performance periods that are less than one (1) year following the Date of Grant of the applicable Award, subject, in each case, to the Committee's authority under this Plan to vest Awards earlier, as the Committee deems appropriate, upon the occurrence of a Change in Control, in the event of a Participant's termination of employment or service or otherwise as permitted by this Plan. *EX 10.1* ARTICLE IV OPTIONS 4.1 Grant of Options. Subject to the limits of Sections 3.2 and 3.3 and the other terms and conditions of this Plan, the Committee may, from time to time and upon such terms and conditions as it may determine, grant Options to purchase Common Shares to Participants. Options granted under this Plan may be (i) Incentive Stock Options, (ii) Non-qualified Stock Options, or (iii) combinations of the foregoing. Incentive Stock Options may only be granted to Participants who meet the definition of 'employees' under Section 3401(c) of the Code. Options granted under this Plan may not provide for any dividends or dividend equivalents thereon. Each such grant may utilize any or all of the authorizations, and shall be subject to all of the requirements, contained in the following provisions. 4.2 Award Agreement . Each Option shall be evidenced by an Award Agreement that shall specify the number of Common Shares covered by the Option, the Exercise Price of the Option, the term of the Option, whether the Option is intended to be an Incentive Stock Option, any conditions to the exercise of the Option, and such other terms and conditions as the Committee, in its discretion, determines and as are consistent with this Plan. 4.3 Exercise Price. Each grant shall specify an Exercise Price per share, which shall not be less than one hundred percent (100%) of the Fair Market Value on the Date of Grant; provided, however, that a Ten Percent Shareholder shall not be granted an Incentive Stock Option unless the Exercise Price per share is at least one hundred ten percent (110%) of the Fair Market Value on the Date of Grant and the Incentive Stock Option is not exercisable after expiration of five (5) years from the Date of Grant. 4.4 Exercise and Form of Consideration. To the extent exercisable, Options granted under this Plan shall be exercised by delivery of a written notice to the Company setting forth the number of Common Shares with respect to which the Option is being exercised, accompanied by full payment of the applicable Exercise Price. The Committee shall determine the acceptable form of consideration for the Exercise Price, including the method of payment, and for an Incentive Stock Option that determination shall be made at the time of grant. Consideration may consist of: (a) cash; (b) checks; (c) Common Shares, provided that such Common Shares have a Fair Market Value on the date of surrender equal to the aggregate Exercise Price and provided that accepting the Common Shares does not result in any adverse accounting consequences to the Company; (d) consideration received by the Company under a broker-assisted (or other) cashless exercise program implemented by the Company in connection with this Plan; (e) by net exercise; (f) other consideration and method of payment to the extent permitted by applicable law and approved by the Committee; or (g) any combination of the foregoing methods. 4.5 Related Rights. The exercise of an Option shall result in the cancellation on a share-for-share basis of any Related Rights authorized under Article V of this Plan. 4.6 Minimum Vesting Requirements. Subject to the exceptions stated in
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May 07, 2020 21:16 ET (01:16 GMT)
