As filed with the Securities and Exchange Commission on October 28, 2015
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
CHENIERE ENERGY, INC.
(Exact name of registrant as specified in its charter)
|
|
|
| Delaware |
|
95-4352386 |
| (State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. Employer
Identification No.) |
|
|
| 700 Milam Street, Suite 1900
Houston, Texas |
|
77002 |
| (Address of Principal Executive Offices) |
|
(Zip Code) |
CHENIERE ENERGY, INC.
2015 EMPLOYEE INDUCEMENT INCENTIVE PLAN
(Full title of the plan)
Michael J. Wortley
Senior Vice President & Chief Financial Officer
700 Milam Street, Suite 1900
Houston, Texas 77002
(Name and address of agent for service)
(713) 375-5000
(Telephone number, including area code, of agent for service)
Copies To:
George J. Vlahakos
Andrews Kurth LLP
600
Travis, Suite 4200
Houston, Texas 77002
(713) 220-4200
Indicate by check mark whether
the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting
company” in Rule 12b-2 of the Securities Exchange Act of 1934, as amended:
|
|
|
|
|
|
|
| Large accelerated filer |
|
x |
|
Accelerated filer |
|
¨ |
|
|
|
|
| Non-accelerated filer |
|
¨ |
|
Smaller reporting company |
|
¨ |
CALCULATION OF REGISTRATION FEE
|
|
|
|
|
|
|
|
|
| |
| Title of securities
to be registered |
|
Amount
to be
registered(1) |
|
Proposed
maximum
offering price
per share(2) |
|
Proposed
maximum
aggregate
offering price(2) |
|
Amount of
registration fee |
| Common Stock, par value $0.003 per share |
|
1,000,000 shares |
|
$45.79 |
|
$45,790,000 |
|
$4,612 |
| |
| |
| (1) |
This registration statement covers 1,000,000 shares of the Common Stock of Cheniere Energy, Inc. available for issuance under the 2015 Employee Inducement Incentive
Plan. Pursuant to Rule 416(a) under the Securities Act of 1933, as amended, this registration statement shall also be deemed to register and cover any additional shares of Common Stock of Cheniere Energy, Inc. which may be issued under the 2015
Employee Inducement Incentive Plan as the result of any stock dividend, stock split, reverse stock split, extraordinary cash dividend resulting from a nonrecurring event that is not a payment of normal corporate earnings, combination,
reclassification or similar change in the capital structure of Cheniere Energy, Inc. without receipt of consideration. |
| (2) |
Estimated solely for the purpose of determining the amount of the registration fee in accordance with Rule 457(c) and (h) under the Securities Act of 1933, as
amended, and based upon the average of the high and low sales prices of the Common Stock of Cheniere Energy, Inc. on the NYSE MKT LLC on October 26, 2015. |
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The information required by Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in
accordance with Rule 428(b)(1) under the Securities Act of 1933, as amended (the “Securities Act”), and the Note to Part I of Form S-8.
PART II
INFORMATION
REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been previously filed by Cheniere Energy, Inc. (the “Company”) with the Securities and Exchange
Commission (the “Commission”), are incorporated by reference into this Registration Statement, other than any portions of the respective filings that were furnished rather than filed (pursuant to Item 2.02 or Item 7.01 of any
Current Report on Form 8-K or other applicable Commission rules):
(a) The Company’s Annual Report on Form 10-K for the fiscal year
ended December 31, 2014, as filed with the Commission on February 20, 2015;
(b) The Company’s Quarterly Report on Form
10-Q for the quarter ended March 31, 2015, as filed with the Commission on April 30, 2015, and as amended by Form 10-Q/A, as filed with the Commission on May 11, 2015;
(c) The Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2015, as filed with the Commission on July 30,
2015, and as amended by Form 10-Q/A, as filed with the Commission on August 7, 2015;
(d) The Company’s Current Reports on Form
8-K, as filed with the Commission on January 16, 2015, March 2, 2015, March 3, 2015, March 9, 2015, March 13, 2015, March 20, 2015, April 24, 2015, May 7, 2015, as amended by
the Current Report on Form 8-K/A, as filed with the Commission on July 1, 2015, May 13, 2015, May 27, 2015, June 17, 2015, July 1, 2015, August 24, 2015 and September 11, 2015; and
(e) The description of the Company’s common stock, par value $0.003 per share, contained in the Registration Statement on Form 8-A filed
with the Commission on March 2, 2001, including any amendments and reports filed for the purpose of updating such description.
All
documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (excluding any information furnished pursuant to Item 2.02 or Item 7.01 on any
Current Report on Form 8-K or other applicable Commission rules), subsequent to the filing of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of the filing of such documents.
Any statement contained in a document incorporated or deemed incorporated by reference in this Registration Statement shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent that a statement contained in this Registration Statement or in any other subsequently filed document which also is incorporated or deemed to be incorporated by
reference in this Registration Statement modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as modified or superseded, to constitute a part of this Registration Statement.
2
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of
Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Company is incorporated under the laws of the State of Delaware. Subsection (a) of Section 145 of the General Corporation Law of
the State of Delaware (the “DGCL”) empowers a corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he or she is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or her in connection with such action, suit or proceeding if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Subsection (b) of
Section 145 of the DGCL empowers a corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment
in its favor by reason of the fact that such person acted in any of the capacities set forth above, against expenses (including attorneys’ fees) actually and reasonably incurred by him or her in connection with the defense or settlement of such
action or suit if he or she acted in good faith and in a manner that he or she reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification may be made in respect of any claim, issue or matter
as to which such person shall have been made to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
Section 145 of the DGCL further provides that to the extent a director or officer of a corporation has been successful on the merits or
otherwise in the defense of any action, suit or proceeding referred to in subsections (a) and (b) of Section 145 of the DGCL in the defense of any claim, issue or matter therein, he or she shall be indemnified against expenses
(including attorneys’ fees) actually and reasonably incurred by him or her in connection therewith; that indemnification provided for by Section 145 shall not be deemed exclusive of any other rights to which the indemnified party may be
entitled; that indemnification provided for by Section 145 shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of such
person’s heirs, executors and administrators; and empowers the corporation to purchase and maintain insurance on behalf of a director or officer of the corporation against any liability asserted against him or her and incurred by him or her in
any such capacity, or arising out of his or her status as such whether or not the corporation would have the power to indemnify him or her against such liabilities under Section 145 of the DGCL.
The Company’s restated certificate of incorporation, as amended, provides that its directors and officers shall be indemnified against
liabilities arising from their service as directors or officers to the fullest extent permitted by law, which generally requires that the individual act in good faith and in a manner he or she reasonably believes to be in or not opposed to the
Company’s best interests. The Company’s bylaws also provide for mandatory indemnification and advancement of expenses for directors and officers, to the fullest extent permitted by applicable law.
Section 102(b)(7) of the DGCL provides that a certificate of incorporation may contain a provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director provided that such provision shall not eliminate or limit the liability of a director (i) for any breach of the
director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL or
(iv) for any transaction from which the director derived an improper personal benefit. In accordance with the Section 102(b)(7) of the DGCL, the Company’s restated certificate of incorporation, as amended, contains a provision that
generally eliminates the personal liability of directors for monetary damages for breaches of their fiduciary duty, subject to limitations of Section 102(b)(7).
3
The Company has also entered into indemnification agreements with all of its directors and
certain of its officers. The indemnification agreements provide that the Company will indemnify these officers and directors to the fullest extent permitted by its restated certificate of incorporation, as amended, bylaws, and applicable law. The
indemnification agreements also provide that these officers and directors shall be entitled to the advancement of fees as permitted by applicable law and sets out the procedures required under the agreements for determining entitlement to and
obtaining indemnification and expense advancement.
The Company maintains director and officer liability insurance for the benefit of each
of its directors and officers. These policies include coverage for losses for wrongful acts and omissions. Each of the indemnitees are named as an insured under such policies and provided with the same rights and benefits as are accorded to the most
favorably insured of our directors and officers.
Insofar as indemnification for liabilities arising under the Securities Act, may be
permitted to directors, officers or persons controlling the Company pursuant to the foregoing provisions, the Company has been informed that in the opinion of the Commission such indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits have been filed as a part of this Registration Statement and are specifically incorporated by reference:
|
|
|
| Exhibit
No. |
|
Description |
|
|
| †4.1 |
|
Restated Certificate of Incorporation of the Company (Incorporated by reference to Exhibit 3.1 to the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2004 (Commission File No. 001-16383), filed on
August 10, 2004). |
|
|
| †4.2 |
|
Certificate of Amendment of Restated Certificate of Incorporation of the Company (Incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K (Commission File No. 001-16383), filed on February 8,
2005). |
|
|
| †4.3 |
|
Certificate of Amendment of Restated Certificate of Incorporation of the Company (Incorporated by reference to Exhibit 4.3 to the Company’s Registration Statement on Form S-8 (Commission File No. 333-160017), filed on June
16, 2009). |
|
|
| †4.4 |
|
Certificate of Amendment of Restated Certificate of Incorporation of the Company (Incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K (Commission File No. 001-16383), filed on June 7,
2012). |
|
|
| †4.5 |
|
Certificate of Amendment of Restated Certificate of Incorporation of the Company (Incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K (Commission File No. 001-16383), filed on February 5,
2013). |
|
|
| †4.6 |
|
Amended and Restated Bylaws of the Company (Incorporated by reference to Exhibit 3.1 to the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2015 (Commission File No. 001-16383), filed on July 30,
2015). |
|
|
| †4.7 |
|
Specimen Common Stock Certificate of the Company (Incorporated by reference to Exhibit 4.1 to the Company’s Registration Statement on Form S-1 (Commission File No. 333-10905), filed on August 27, 1996). |
|
|
| *4.8 |
|
Cheniere Energy, Inc. 2015 Employee Inducement Incentive Plan. |
|
|
| *5.1 |
|
Opinion of Andrews Kurth LLP. |
|
|
| *23.1 |
|
Consent of Andrews Kurth LLP (included in Exhibit 5.1). |
|
|
| *23.2 |
|
Consent of KPMG LLP. |
|
|
| *23.3 |
|
Consent of Ernst & Young LLP. |
|
|
| *24.1 |
|
Powers of Attorney (included on signature page). |
| † |
Incorporated by reference. |
Item 9. Undertakings.
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent
post-effective amendment hereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar volume of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective
registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed
in this Registration Statement or any material change to such information in this Registration Statement;
Provided,
however, that paragraphs (1)(i) and (1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the
Company pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the
Securities Act, each filing of the Company’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in this Registration Statement shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Company will, unless in the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Company certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, on October 28, 2015.
|
|
|
| CHENIERE ENERGY, INC. |
|
|
| By: |
|
/s/ Michael J. Wortley |
| Name: |
|
Michael J. Wortley |
| Title: |
|
Senior Vice President and Chief Financial Officer |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned officers and directors of Cheniere Energy, Inc. hereby constitutes and appoints
Charif Souki and Michael J. Wortley, and each of them individually, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution, for him or her and on his or her behalf and in his or her name, place and stead, in any
and all capacities, to sign, execute and file any or all amendments (including, without limitation, post-effective amendments) to this registration statement and any and all registration statements pursuant to Rule 462(b) of the Securities Act of
1933, as amended, with any and all exhibits thereto, and all other documents required to be filed therewith, with the Securities and Exchange Commission or any regulatory authority, granting unto each such attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises in order to effectuate the same, as fully to all intents and purposes as he or she himself or herself might or could do, if
personally present, hereby ratifying and confirming all that said attorneys-in-fact and agents, or either of them, or their or his or her substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities
and on the dates indicated below.
|
|
|
|
|
| Signature |
|
Title |
|
Date |
|
|
|
| /s/ Charif Souki |
|
Chairman, Chief Executive Officer and President
(Principal Executive Officer) |
|
October 28, 2015 |
| Charif Souki |
|
|
|
|
|
| /s/ Michael J. Wortley |
|
Senior Vice President and Chief Financial Officer
(Principal Financial Officer) |
|
October 28, 2015 |
| Michael J. Wortley |
|
|
|
|
|
| /s/ Leonard Travis |
|
Vice President and Chief Accounting Officer
(Principal Accounting Officer) |
|
October 28, 2015 |
| Leonard Travis |
|
|
|
|
|
| /s/ Vicky A. Bailey |
|
Director |
|
October 28, 2015 |
| Vicky A. Bailey |
|
|
|
|
|
|
|
| /s/ G. Andrea Botta |
|
Director |
|
October 28, 2015 |
| G. Andrea Botta |
|
|
|
|
|
|
|
| /s/ Nuno Brandolini |
|
Director |
|
October 28, 2015 |
| Nuno Brandolini |
|
|
|
|
|
|
|
| /s/ Jonathan Christodoro |
|
Director |
|
October 28, 2015 |
| Jonathan Christodoro |
|
|
|
|
|
|
|
| /s/ David I. Foley |
|
Director |
|
October 28, 2015 |
| David I. Foley |
|
|
|
|
|
|
|
| /s/ David B. Kilpatrick |
|
Director |
|
October 28, 2015 |
| David B. Kilpatrick |
|
|
|
|
|
|
|
| /s/ Samuel Merksamer |
|
Director |
|
October 28, 2015 |
| Samuel Merksamer |
|
|
|
|
|
|
|
| /s/ Donald F. Robillard, Jr. |
|
Director |
|
October 28, 2015 |
| Donald F. Robillard, Jr. |
|
|
|
|
|
|
|
| /s/ Neal A. Shear |
|
Director |
|
October 28, 2015 |
| Neal A. Shear |
|
|
|
|
|
|
|
| /s/ Heather R. Zichal |
|
Director |
|
October 28, 2015 |
| Heather R. Zichal |
|
|
|
|
EXHIBIT INDEX
|
|
|
| Exhibit
No. |
|
Description |
|
|
| †4.1 |
|
Restated Certificate of Incorporation of the Company (Incorporated by reference to Exhibit 3.1 to the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2004 (Commission File No. 001-16383), filed on
August 10, 2004). |
|
|
| †4.2 |
|
Certificate of Amendment of Restated Certificate of Incorporation of the Company (Incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K (Commission File No. 001-16383), filed on February 8,
2005). |
|
|
| †4.3 |
|
Certificate of Amendment of Restated Certificate of Incorporation of the Company (Incorporated by reference to Exhibit 4.3 to the Company’s Registration Statement on Form S-8 (Commission File No. 333-160017), filed on June
16, 2009). |
|
|
| †4.4 |
|
Certificate of Amendment of Restated Certificate of Incorporation of the Company (Incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K (Commission File No. 001-16383), filed on June 7,
2012). |
|
|
| †4.5 |
|
Certificate of Amendment of Restated Certificate of Incorporation of the Company (Incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K (Commission File No. 001-16383), filed on February 5,
2013). |
|
|
| †4.6 |
|
Amended and Restated Bylaws of the Company (Incorporated by reference to Exhibit 3.1 to the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2015 (Commission File No. 001-16383), filed on July 30,
2015). |
|
|
| †4.7 |
|
Specimen Common Stock Certificate of the Company (Incorporated by reference to Exhibit 4.1 to the Company’s Registration Statement on Form S-1 (Commission File No. 333-10905), filed on August 27, 1996). |
|
|
| *4.8 |
|
Cheniere Energy, Inc. 2015 Employee Inducement Incentive Plan. |
|
|
| *5.1 |
|
Opinion of Andrews Kurth LLP. |
|
|
| *23.1 |
|
Consent of Andrews Kurth LLP (included in Exhibit 5.1). |
|
|
| *23.2 |
|
Consent of KPMG LLP. |
|
|
| *23.3 |
|
Consent of Ernst & Young LLP. |
|
|
| *24.1 |
|
Powers of Attorney (included on signature page). |
| † |
Incorporated by reference. |
Exhibit 4.8
CHENIERE ENERGY, INC.
2015 EMPLOYEE INDUCEMENT INCENTIVE PLAN
1. ESTABLISHMENT OF PLAN. Cheniere Energy, Inc. establishes the “Cheniere Energy, Inc. 2015 Employee Inducement Incentive
Plan” effective as of the Effective Date. Awards granted under the Plan shall be subject to the terms and conditions of the Plan as set forth herein, as it may be amended from time to time. Each Award under the Plan is intended to qualify as an
inducement grant to a new employee under NYSE MKT Company Guide Section 711(a) (the “Listing Rule”) and, accordingly, notwithstanding any other provision of the Plan, no Awards shall be made under the Plan that are not in
compliance with the purpose, conditions and requirements of the Listing Rule.
2. PURPOSES. The purposes of the Plan are to
provide the Company an opportunity to attract and retain the best available Employees and to promote the growth and success of the Company’s business by aligning the financial interests of such Employees with that of the stockholders of the
Company.
3. DEFINITIONS. As used herein, unless the context requires otherwise, the following terms have the meanings
indicated below.
(a) “Affiliate” means (i) any entity in which the Company, directly or indirectly, owns 10%
or more of the combined voting power, as determined by the Committee, (ii) any “parent corporation” of the Company (as defined in section 424(e) of the Code), (iii) any “subsidiary corporation” of any such parent
corporation (as defined in section 424(f) of the Code) of the Company and (iv) any trades or businesses, whether or not incorporated which are members of a controlled group or are under common control (as defined in Sections 414(b) or
(c) of the Code) with the Company; provided, however, with respect to Awards of Options and Stock Appreciation Rights that are intended to be excluded from the application of Section 409A of the Code, the term affiliate will
be applied in a manner to ensure that the Common Stock covered by such Awards would be “service recipient stock” with respect to the Participants to whom the Awards are granted.
(b) “Award” means any right granted under the Plan, including a Non-Qualified Stock Option, a Restricted Stock Award,
a Stock Appreciation Right, a Performance Award, a Phantom Stock Award or an Other Stock-Based Award, whether granted singly or in combination, to a Participant pursuant to the terms, conditions and limitations that the Committee may establish in
order to fulfill the objectives of the Plan. An Award may be granted under the Plan pursuant to a written Award agreement between the Company and a Participant, a written Award notice provided to the Participant of the Award, or a written program
adopted by the Company or the Committee establishing Awards under the Plan. Notwithstanding any other provision of the Plan relating to Award agreements, an Award of an Option or a Restricted Stock Award and related documents, including the Plan and
any prospectus for the Plan, may be delivered to a Participant in electronic format pursuant to such policies and procedures as adopted from time to time by the Company. If an Award or related documents are delivered in an electronic format and the
Participant consents to participate in the electronic Award procedures established by the Company with respect to the Plan by using his personal identification number to access the Award documents, such action by the Participant shall constitute the
Participant’s electronic signature and acceptance of the terms and conditions of the Award.
(c) “Board” means the Board of Directors of the Company.
(d) “Cause” means, except as otherwise defined in the applicable Award agreement:
(i) in the case of a Director, the commission of an act of fraud or intentional misrepresentation or an act of embezzlement,
misappropriation or conversion of assets or opportunities of the Company or any Affiliate;
(ii) in the case of a
Participant whose employment with the Company or an Affiliate is subject to the terms of a written employment agreement between such Participant and the Company or Affiliate, which employment agreement includes a definition of “Cause,” the
term “Cause” as used in the Plan or any agreement establishing an Award shall have the meaning set forth in such employment agreement during the period that such employment agreement remains in effect; and
(iii) in all other cases,
(A) the commission by Participant of a crime or other act of misconduct that causes or is likely to cause economic damage to
the Company or an Affiliate or injury to the business reputation of the Company or Affiliate;
(B) the commission by a
Participant of an act of fraud or dishonesty in the performance of Participant’s duties (or in the case of a Consultant, Participant’s services) on behalf of the Company or an Affiliate;
(C) the violation by the Participant of the Company’s Code of Business Conduct and Ethics Policy; or
(D) the failure of Participant to perform his or her duties at a level and in a manner satisfactory to the Company in its sole
discretion.
The determination of whether Cause exists with respect to an Executive Officer shall be made by the Board in its sole
discretion and the determination of whether Cause exists with respect to all other Participants shall be made by the Company’s Vice President of Human Resources in his or her sole discretion in consultation with the Company’s General
Counsel.
(e) “Change of Control” means the occurrence during the term hereof of any of the following events:
(i) any “person” (as defined in Section 3(a)(9) of the Exchange Act and as modified in Section 13(d) and
14(d) of the Exchange Act) other than (A) the Company or any of its subsidiaries, (B) any employee benefit plan of the Company or any of its subsidiaries, (C) any Affiliate, (D) a company owned, directly or indirectly, by
2
stockholders of the Company, or (E) an underwriter temporarily holding securities pursuant to an offering of such securities, becomes the “beneficial owner” (as defined in Rule
13d-3 of the Exchange Act), directly or indirectly, of securities of the Company representing 30% or more of the shares of voting stock of the Company then outstanding;
(ii) the consummation of any merger, organization, business combination or consolidation of the Company or one of its
subsidiaries with or into any other company, other than a merger, reorganization, business combination or consolidation which would result in the holders of the voting securities of the Company outstanding immediately prior thereto holding
securities which represent immediately after such merger, reorganization, business combination or consolidation more than 50% of the combined voting power of the voting securities of the Company or the surviving company or the parent of such
surviving company;
(iii) individuals who, as of the Effective Date, constitute the Board (the “Incumbent
Board”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to the Effective Date whose election by the Board, was approved by a vote of at
least a majority of the directors then comprising the Incumbent Board 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 election contest with respect to the election or removal of directors or other solicitation of proxies or consents by or on behalf of a person other than the Board; or
(iv) the consummation of a sale or disposition by the Company of all or substantially all of the Company’s assets, other
than a sale or disposition if the holders of the voting securities of the Company outstanding immediately prior thereto hold securities immediately thereafter which represent more than 50% of the combined voting power of the voting securities of the
acquiror, or parent of the acquiror, of such assets.
(f) “Code” means the Internal Revenue Code of 1986,
as amended, and any successor statute. Reference in the Plan to any section of the Code shall be deemed to include any amendments or successor provisions to such section and any Treasury regulations promulgated under such section.
(g) “Committee” means a committee of the Board that satisfies the requirements for independence under the
Listing Rule and is comprised solely of two or more Non-Employee Directors in accordance with Rule 16b-3.
(h)
“Common Stock” means the common stock of the Company, $0.003 par value per share or the common stock that the Company may in the future be authorized to issue.
(i) “Company” means Cheniere Energy, Inc., a Delaware corporation, and any successor corporation.
(j) “Consultant” means any person (other than an Employee or a Director, solely with respect to rendering
services in such person’s capacity as a Director) who is engaged by the Company or any Affiliate to render consulting or advisory services to the Company or such Affiliate and who is a “consultant or advisor” within the meaning
of Rule 701 promulgated under the Securities Act or Form S-8 promulgated under the Securities Act.
3
(k) “Continuous Service” means, with respect to a Participant, the
provision of services to the Company or an Affiliate, or any successor, initially as an Employee, and continuing as an Employee, Director and/or Consultant without interruption or termination. Except as otherwise provided in a particular Award
agreement, service shall not be considered interrupted or terminated for this purpose in the case of (i) any approved leave of absence, (ii) transfers among the Company, any Affiliate, or any successor, in the capacity of an Employee, or
(iii) any change in status as long as the individual remains in the service of the Company or an Affiliate, or any successor, as an Employee, Director or Consultant. An approved leave of absence shall include sick leave, military leave or any
other authorized personal leave.
(l) “Director” means a member of the Board or the board of directors of
an Affiliate.
(m) “Disability” means, except as otherwise defined in an applicable Award agreement, the
“disability” of a person as defined in a then effective long-term disability plan maintained by the Company that covers such person or, if such a plan does not exist at any relevant time, the permanent and total disability of a person
within the meaning of Section 22(e)(3) of the Code. Section 22(e)(3) of the Code provides that an individual is totally and permanently disabled if he is unable to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve (12) months.
(n) “Effective Date” means September 16, 2015, the date the Plan was approved by the Compensation
Committee of the Board, as then constituted.
(o) “Eligible Individual” means any individual, not
previously an employee or Director of the Company or an Affiliate, or who has had a bona-fide period of non-employment with the Company and its Affiliates within the meaning of the Listing Rule, who is hired by the Company or one of its wholly owned
subsidiaries as an Employee.
(p) “Employee” means any person who is employed by the Company or one
of its wholly owned subsidiaries, as determined by the Company in good faith and in the exercise of its discretion.
(q)
“Executive Officer” means a person who is an “officer” of the Company or any Affiliate within the meaning of Section 16 of the Exchange Act (whether or not the Company is subject to the requirements of the
Exchange Act).
(r) “Exchange Act” means the Securities Exchange Act of 1934, as amended, and any
successor statute. Reference in the Plan to any section of the Exchange Act shall be deemed to include any amendments or successor provisions to such section and any rules and regulations relating to such section.
(s) “Fair Market Value” means, as of any date, the value of the Common Stock determined as follows:
4
(i) If the Common Stock has an established market by virtue of being listed or
quoted on any registered stock exchange, the Fair Market Value of a share of Common Stock shall be the closing sales price for such a share of Common Stock (or the closing bid price, if applicable) on such exchange (or, if the Common Stock is listed
or traded on more than one registered exchange, on the exchange with the greatest volume of trading in the Common Stock) on the day of determination (or if no such price is reported on that day, on the last market trading day prior to the day of
determination), as reported in The Wall Street Journal or such other source as the Committee deems reliable.
(ii) In the
absence of any listing or quotation of the Common Stock on any such registered exchange, the Fair Market Value shall be determined in good faith by the Committee.
(t) “Non-Employee Director” means a Director of the Company who either (i) is not an Employee or Executive
Officer, does not receive compensation (directly or indirectly) from the Company or an Affiliate in any capacity other than as a Director (except for an amount as to which disclosure would not be required under Item 404(a) of Regulation S-K),
does not possess an interest in any other transaction as to which disclosure would be required under Item 404(a) of Regulation S-K and is not engaged in a business relationship as to which disclosure would be required under Item 404(b) of
Regulation S-K or (ii) is otherwise considered a “non-employee director” for purposes of Rule 16b-3.
(u)
“Non-Qualified Stock Option” means an Option that is not intended to satisfy the requirements of Section 422 of the Code.
(v) “Option” means an Award of an Option granted pursuant to Section 7 to purchase a specified number of
shares of Common Stock during the Option period for a specified exercise price.
(w) “Option
Agreement” means the written agreement or notice evidencing the grant of an Option executed by the Company and the Optionee or issued by the Company and accepted by the Optionee, including any amendments thereto. Each Option Agreement
shall be subject to the terms and conditions of the Plan. If an Option Agreement or related document is delivered to a Participant by electronic means, and the Participant consents to participate in the electronic Award procedures adopted by the
Company by using his personal identification number to access the Award documents, such action by the Participant shall constitute the Participant’s electronic signature and acceptance of the terms and conditions of the Award.
(x) “Optionee” means a Participant to whom an Option has been granted under the Plan.
(y) “Other Stock-Based Award” means an award granted pursuant to Section 12 that is not otherwise
specifically provided for in the Plan, the value of which is based in whole or in part by reference to, or otherwise based on or related to, shares of Common Stock.
(z) “Participant” means any Eligible Individual to whom an Award has been granted under the Plan as an
inducement material to such Eligible Individual entering into employment with the Company or one of its wholly owned subsidiaries. The Company shall determine in
5
good faith and in the exercise of its discretion whether an individual has become or has ceased to be an eligible Participant in accordance with the requirements of the Listing Rule. For purposes
of an individual’s rights, if any, under the Plan as of the time of the Company’s determination, all such determinations by the Company shall be final, binding and conclusive, notwithstanding that the Company or any court of law or
governmental agency subsequently makes a contrary determination.
(aa) “Performance Award” means an Award
granted pursuant to Section 11 to a Participant that is subject to the attainment of one or more Performance Goals.
(bb) “Performance Goal” means a standard established by the Committee based on one or more business criteria
described in Section 11 to determine in whole or in part whether a Performance Award shall be earned.
(cc)
“Performance Period” means that period established by the Committee at the time any Performance Award is granted or at any time thereafter, during which any Performance Goals specified by the Committee with respect to such
Award are to be measured.
(dd) “Phantom Stock Agreement” means the written agreement evidencing a
Phantom Stock Award. Each Phantom Stock Agreement shall be subject to the terms and conditions of the Plan.
(ee)
“Phantom Stock Award” means an Award granted pursuant to Section 9.
(ff) “Plan”
means this Cheniere Energy, Inc. 2015 Employee Inducement Incentive Plan, as set forth herein and as it may be amended from time to time.
(gg) “Regulation S-K” means Regulation S-K promulgated under the Securities Act, as it may be amended from time
to time, and any successor to Regulation S-K. Reference in the Plan to any item of Regulation S-K shall be deemed to include any amendments or successor provisions to such item.
(hh) “Restricted Period” means the period established by the Committee with respect to an Award during which
the Award is subject to forfeiture or is not exercisable by the Participant and with respect to a Restricted Stock Award, the period during which the Forfeiture Restrictions as described in Section 10(a) apply to the Award.
(ii) “Restricted Stock Agreement” means the written agreement evidencing the grant of a Restricted Stock Award
executed by the Company and the Participant or issued by the Company and accepted by the Participant, including any amendments thereto. Each Restricted Stock Agreement shall be subject to the terms and conditions of the Plan. If a Restricted Stock
Agreement or related document is delivered to a Participant by electronic means, and the Participant consents to participate in the electronic Award procedures adopted by the Company by using his personal identification number to access the Award
documents, such action by the Participant shall constitute the Participant’s electronic signature and acceptance of the terms and conditions of the Award.
6
(jj) “Restricted Stock Award” means an Award granted under
Section 10 of shares of Common Stock issued to the Participant for such consideration, if any, and subject to such restrictions on transfer, rights of first refusal, repurchase provisions, forfeiture provisions and other terms and conditions,
as are established by the Committee.
(kk) “Rule 16b-3” means Rule 16b-3 promulgated under the
Exchange Act, as it may be amended from time to time, and any successor to Rule 16b-3.
(ll) “Section”
means a section of the Plan unless otherwise stated or the context otherwise requires.
(mm) “Securities
Act” means the Securities Act of 1933, as amended, and any successor statute. Reference in the Plan to any section of the Securities Act shall be deemed to include any amendments or successor provisions to such section and any rules and
regulations relating to such section.
(nn) “Stock Appreciation Rights” means an Award granted under
Section 8.
(oo) “Stock Appreciation Rights Agreement” means a written agreement with a Participant with
respect to an Award of Stock Appreciation Rights.
4. INCENTIVE AWARDS AVAILABLE UNDER THE PLAN. Awards granted under
this Plan may be (a) Non-Qualified Stock Options; (b) Restricted Stock Awards; (c) Stock Appreciation Rights; (d) Performance Awards; (e) Phantom Stock Awards; and (f) Other Stock-Based Awards.
5. SHARES SUBJECT TO PLAN. Subject to adjustment pursuant to Section 13(a) hereof, the aggregate number of shares of Common
Stock that may be issued with respect to Awards granted under the Plan shall not exceed one million (1,000,000) shares (the “Share Pool Limit”). At all times during the term of the Plan, the Company shall allocate and keep
reserved such number of shares of Common Stock as will be required to satisfy the requirements of outstanding Awards under the Plan. Except as provided in Section 7(i) with respect to certain assumed or substituted options resulting from a
merger transaction, the number of shares reserved for issuance under the Plan in accordance with the previous sentence shall be reduced by the number of shares of Common Stock issued in connection with the exercise or settlement of an Award or used
to determine the amount of cash paid in connection with the exercise of Stock Appreciation Rights and the settlement of Phantom Stock Awards. Any shares of Common Stock covered by an Award (or a portion of an Award) that are forfeited or canceled or
that expire shall be deemed not to have been issued for purposes of determining the maximum aggregate number of shares of Common Stock which may be issued under the Share Pool Limit and shall remain available for Awards under the Plan. The shares to
be delivered under the Plan shall be made available from (a) authorized but unissued shares of Common Stock, (b) Common Stock held in the treasury of the Company, or (c) previously issued shares of Common Stock reacquired by the
Company, including shares purchased on the open market, in each case as the Committee may determine from time to time in its sole discretion.
6. ELIGIBILITY. Awards may be granted only to an Eligible Individual as a material inducement to the individual becoming an
Employee, as provided in, and subject to
7
satisfaction of the requirements under, the Listing Rule. The Committee in its sole discretion shall select the recipients of Awards. A Participant may be granted more than one Award under the
Plan as an inducement to his or her becoming an Employee. Awards may be granted at any time or times during the term of the Plan. Subject to the Listing Rule, the grant of an Award to an Employee shall not be deemed either to entitle that individual
to, or to disqualify that individual from, participation in any other grant of Awards under the Plan. All Awards under the Plan shall be approved by the Committee, and, promptly following an issuance of any Award under the Plan in reliance on the
Listing Rule, the Company shall disclose in a press release the material terms of the grant, all in accordance with the Listing Rule. As a condition to the receipt of any Award under the Plan, the Participant shall be deemed to have consented to any
such press release.
7. OPTIONS.
(a) Terms and Conditions of Options. The Committee, in its sole discretion and subject to the terms and conditions of the Plan, may
grant Options to any Eligible Individual as a material inducement to the individual becoming an Employee, which grant shall become effective only if the individual actually becomes an Employee. Each Option under the Plan shall be granted as a
Non-Qualified Stock Option. The Committee shall determine the provisions, terms and conditions of each Option including, but not limited to, the vesting schedule, the number of shares of Common Stock subject to the Option, the exercise price of the
Option, the period during which the Option may be exercised, repurchase provisions, forfeiture provisions, methods of payment, and all other terms and conditions of the Option, subject to the following:
(i) Form of Option Grant. Each Option granted under the Plan shall be evidenced by a written Option Agreement in such
form (which need not be the same for each Optionee) as the Committee from time to time approves, but which is not inconsistent with the Plan.
(ii) Date of Grant. The date of grant of an Option shall be the date on which the Committee makes the determination to
grant such Option unless a later date is specified by the Committee at the time of such determination. The Option Agreement evidencing the Option shall be delivered to the Optionee, with a copy of the Plan and other relevant Option documents, within
a reasonable time after the date of grant.
(iii) Exercise Price. The exercise price of an Option shall be not less
than the Fair Market Value of the shares of Common Stock on the date of grant of the Option. The exercise price for each Option granted under this Section 7 shall be subject to adjustment pursuant to Section 13(a).
(iv) Exercise Period. Options shall be exercisable within the time or times or upon the event or events determined by
the Committee and set forth in the Option Agreement; provided, however, that no Option shall be exercisable later than the expiration of ten (10) years from the date of grant of the Option.
(v) Acceleration of Vesting. Any Option granted hereunder which is not otherwise vested shall vest (unless specifically
provided to the contrary by the Committee in the document or instrument evidencing an Option granted hereunder) upon (A) the involuntary termination of a Participant without Cause; (B) a Change of Control, but only as provided for in
Section 13(c); or (C) death or Disability of the Participant.
8
(b) Transferability of Options. Options granted under the Plan, and any interest therein,
shall not be transferable or assignable by the Optionee, and may not be made subject to execution, attachment or similar process, otherwise than by will or by the laws of descent and distribution, and shall be exercisable during the lifetime of the
Optionee only by the Optionee; provided, however, that the Optionee may designate persons who or which may exercise his Options following his death. Notwithstanding the preceding sentence, Non-Qualified Stock Options may be transferred to
such family members, family member trusts, family limited partnerships and other family member entities as the Committee, in its sole discretion, may provide for in the Optionee’s Option Agreement and approve prior to any such transfer. No such
transfer will be approved by the Committee if the Common Stock issuable under such transferred Option would not be eligible to be registered on Form S-8 promulgated under the Securities Act.
(c) Manner of Exercise. Options may be exercised in such manner as approved by the Company from time to time, including by delivery to
the Company of a written exercise notice or by an exercise election made by a Participant through an electronic procedure authorized by the Company (which method or procedure need not be the same for each Optionee), stating the number of shares of
Common Stock being purchased, the method of payment, and such other matters as may be deemed appropriate by the Company in connection with the issuance of shares of Common Stock upon exercise of the Option, together with payment in full of the
exercise price for the number of shares of Common Stock being purchased and satisfaction of the tax withholding provisions described in Section 15.
(d) Payment of Exercise Price. Payment of the aggregate exercise price for the shares of Common Stock to be purchased upon exercise of
an Option may be made in cash (by check) or, if elected by the Optionee, in any of the following methods: (i) if a public market for the Common Stock exists, upon the Optionee’s written request, the Company may deliver certificates for the
shares of Common Stock for which the Option is being exercised to a broker for sale on behalf of the Optionee, provided that the Optionee has irrevocably instructed such broker to remit from the proceeds of such sale directly to the Company on the
Optionee’s behalf the full amount of the exercise price plus any taxes the Company is required to withhold; (ii) by surrender to the Company for cancellation of shares of Common Stock owned by the Optionee having an aggregate Fair Market
Value on the date of exercise equal to (or, to avoid the cancellation of fractional shares of Common Stock, less than) the aggregate exercise price of the shares of Common Stock being purchased upon such exercise; provided, that such surrendered
shares are not subject to any pledge or other security interest and have or meet such other requirements, if any, as the Committee may determine necessary in order to avoid an accounting earnings charge in respect of the Option being exercised;
(iii) by a “net exercise” method whereby the Company withholds from the delivery of shares of Common Stock subject to the Option (or the portion thereof that is being exercised) that number of whole shares having an aggregate Fair
Market Value on the date of exercise equal to (or, to avoid the issuance of fractional shares of Common Stock, less than) the aggregate exercise price of the shares of Common Stock being purchased upon such exercise; or (iv) by any combination
of the foregoing, including a cash payment. No shares of Common Stock may be issued until full payment of the purchase price thereof has been made.
9
(e) Exercise of Option Following Termination of Continuous Service.
(i) Subject to the other provisions of this Section 7(e), an Optionee may exercise an Option for a period of six
(6) months following the date the Optionee’s Continuous Service terminates, but in each case, only to the extent the Optionee was otherwise entitled to exercise the Option on the date the Optionee’s Continuous Service terminates.
(ii) If the Optionee’s Continuous Service is terminated by the Company or an Affiliate for Cause, the Optionee’s
right to exercise the Option shall immediately terminate.
(iii) If the Optionee’s Continuous Service terminates as a
result of the Optionee’s Disability, the Optionee may exercise the Option for a period of one (1) year following the date the Optionee’s Continuous Service terminates.
(iv) In the event of the termination of the Optionee’s Continuous Service as a result of the Optionee’s death, the
Optionee’s estate, or a person who acquired the right to exercise the Option by bequest or inheritance, may exercise the Option for a period of one (1) year following the Optionee’s date of death.
(v) An Option shall terminate to the extent not exercised on the last day of the specified post-termination exercise periods
set forth above or the last day of the original term of the Option, whichever occurs first.
(vi) The Committee shall have
discretion to determine whether the Continuous Service of an Optionee has terminated, the effective date on which such Continuous Service terminates and whether the Optionee’s Continuous Service terminated as a result of the Disability of the
Optionee. The determination of whether a Participant’s Continuous Service was terminated for Cause shall be determined as provided for in Section 3(d).
(f) Limitations on Exercise.
(i) The Committee may specify a reasonable minimum number of shares of Common Stock or a percentage of the shares subject to
an Option that may be purchased on any exercise of an Option; provided, that such minimum number will not prevent Optionee from exercising the full number of shares of Common Stock as to which the Option is then exercisable.
(ii) The obligation of the Company to issue any shares of Common Stock pursuant to the exercise of any Option shall be subject
to the condition that such exercise and the issuance and delivery of such shares pursuant thereto comply with the Securities Act, all applicable state securities laws and the requirements of any stock exchange or market-quotation system upon which
the shares of Common Stock may then be listed or
10
quoted, as in effect on the date of exercise. The Company shall be under no obligation to register the shares of Common Stock with the Securities and Exchange Commission or to effect compliance
with the registration, qualification or listing requirements of any state securities laws or stock exchange or market-quotation system, and the Company shall have no liability for any inability or failure to do so.
(iii) As a condition to the exercise of an Option, the Company may require the person exercising such Option to represent and
warrant at the time of any such exercise that the shares of Common Stock are being purchased only for investment and without any present intention to sell or distribute such shares of Common Stock if, in the opinion of counsel for the Company, such
a representation is required by any securities or other applicable laws.
(g) Modification, Extension And Renewal of Options. The
Committee shall have the power to modify, cancel, extend (subject to the provisions of Section 7(a)(iv) hereof) or renew outstanding Options and to authorize the grant of new Options and/or Restricted Stock Awards in substitution therefor, in
each case, to the extent (if any) as may be permitted in accordance with the Listing Rule with respect to employee inducement awards; provided, however, that (i) except as permitted by Section 13(a), any such action may not reprice
any outstanding Option to reduce the exercise price thereof, directly or indirectly, without the approval of the stockholders of the Company and, (ii) without the written consent of any affected Optionee, (A) impair any rights under any
Option previously granted to such Optionee or (B) cause the Option or the Plan to become subject to Section 409A of the Code. Notwithstanding anything to the contrary contained in this Section 7(g), no Option may be replaced with
another Award that would have a higher intrinsic value than the value of the Option at the time of its replacement.
(h) Privileges of
Stock Ownership. No Optionee will have any of the rights of a stockholder with respect to any shares of Common Stock subject to an Option until such Option is properly exercised and the purchased shares are issued and delivered to the Optionee,
as evidenced by an appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company. No adjustment shall be made for dividends or distributions or other rights for which the record date is prior to such date of
issuance and delivery, except as provided in the Plan.
(i) Acquisitions and Other Transactions. The Committee may, from time to
time, assume outstanding options granted by another entity, whether in connection with an acquisition of such other entity or otherwise, by either (i) granting an Option under the Plan in replacement of or in substitution for the option assumed
by the Company, or (ii) treating the assumed option as if it had been granted under the Plan if the terms of such assumed option could be applied to an Option granted under the Plan. Such assumption shall be permissible if the holder of the
assumed option would have been eligible to be granted an Option hereunder if the other entity had applied the rules of the Plan to such grant. The Committee also may grant Options under the Plan in settlement of or substitution for outstanding
options or obligations to grant future options in connection with the Company or an Affiliate acquiring another entity, an interest in another entity or an additional interest in an Affiliate, whether by merger, stock purchase, asset purchase or
other form of transaction. Shares of Common Stock subject to an assumed or substituted option resulting from a merger transaction involving the Company or an Affiliate will not reduce
11
the Share Pool Limit described in Section 5. Notwithstanding the foregoing provisions of this Section 7, in the case of an Option issued or assumed pursuant to this Section 7(i),
the exercise price for the Option shall be determined in accordance with the principles of Sections 424(a) and 409A of the Code.
8.
STOCK APPRECIATION RIGHTS. The Committee may grant Stock Appreciation Rights to any Eligible Individual as a material inducement to the individual becoming an Employee, which grant shall become effective only if the individual actually
becomes an Employee. The terms and conditions of Stock Appreciation Rights, including the vesting and exercise provisions, shall be set forth in a Stock Appreciation Rights Agreement (which need not be the same for each Participant) in such form as
the Committee approves, but which is not inconsistent with the Plan. A Stock Appreciation Right may be granted (i) if unrelated to an Option, at any time, or (ii) if related to an Option, either at the time of grant or at any time
thereafter during the term of the Option. The exercise price of any Stock Appreciation Right shall be not less than the Fair Market Value of the Common Stock on the grant date of the Award.
(a) Payment of Stock Appreciation Rights. A Stock Appreciation Right is a right to receive, upon exercise of the right, shares of
Common Stock or their cash equivalent in an amount equal to the increase, if any, in Fair Market Value of the Common Stock between the grant and exercise dates. The Committee may specifically designate in a Stock Appreciation Rights Agreement that
the Award will be settled (i) only in cash, (ii) only in shares of Common Stock or (iii) in such combination of such forms and, if not so provided in the Stock Appreciation Rights Agreement, the Award will be settled in shares of
Common Stock unless the Committee determines, at the time of exercise of the Award, that the Award will be settled in cash or a combination of shares of Common Stock and cash.
(b) Tandem Rights. Stock Appreciation Rights may be granted in connection with the grant of an Option, in which case (i) the Stock
Appreciation Rights shall be exercisable at such time or times and only to the extent that the related Option is exercisable, (ii) exercise of Stock Appreciation Rights will result in the surrender of the right to purchase the shares under the
Option as to which the Stock Appreciation Rights were exercised and (iii) the Stock Appreciation Rights will not be transferable (other than by will or the laws of descent and distribution) except to the extent the Related Option is
transferable. Upon the exercise of an Option granted in connection with Stock Appreciation Rights, the Stock Appreciation Rights shall be cancelled to the extent of the number of shares of Common Stock as to which the Option is exercised or
surrendered.
(c) Stock Appreciation Rights Unrelated to an Option. Stock Appreciation Rights unrelated to Options shall contain
such terms and conditions as to exercisability, vesting and duration as the Committee shall determine, but in no event shall they have a term greater than ten (10) years. Each such Stock Appreciation Right that is unrelated to an Option may be
exercised by the Participant for a period of six (6) months following the date the Participant’s Continuous Service terminates, but only to the extent the Participant was otherwise entitled to exercise the Stock Appreciation Right on the
date the Participant’s Continuous Service terminates (and in no event later than the expiration date of the Award); provided, however, that if the Participant’s Continuous Service terminates for Cause, the Optionee’s right to
exercise the Stock Appreciation Right shall immediately terminate.
12
(d) Date of Grant. The date of grant of an Award of Stock Appreciation Rights shall be the
date on which the Committee makes the determination to grant such Award unless a later date is specified by the Committee at the time of such determination.
9. PHANTOM STOCK AWARDS. The Committee may, from time to time and subject to the terms of the Plan, grant Phantom Stock Awards
to any Eligible Individual as a material inducement to the individual becoming an Employee, which grant shall become effective only if the individual actually becomes an Employee. Each Phantom Stock Award Agreement shall be in such form and contain
such terms and conditions (which need not be the same for each Participant who receives a Phantom Stock Award) as the Committee shall deem appropriate, but such terms shall take into account the provisions of Section 409A of the Code applicable
to the Award. The Award date of a Phantom Stock Award shall be the date on which the Committee makes the determination to grant the Award unless a later date is specified by the Committee at the time of such determination.
(a) Payment of Phantom Stock Awards. A Phantom Stock Award is a right to receive a specified number of shares of Common Stock or cash
equal to the Fair Market Value of a specified number of shares of Common Stock issued or paid at the end of a Restricted Period or the last day of a specified deferral period.
(i) Award and Restrictions. Satisfaction of a Phantom Stock Award shall occur upon expiration of the deferral period or
a Restricted Period specified for such Phantom Stock Award by the Committee (which may include a risk of forfeiture), if any, as the Committee may impose. Such restrictions may lapse at the expiration of the deferral period or at earlier specified
times (including based on achievement of performance goals and/or future service requirements), separately or in combination, installments or otherwise, as the Committee may determine.
(ii) Award Period; Forfeiture. The Committee shall establish, at the time of grant of each Phantom Stock Award, a
period over which (or the conditions with respect to which) the Award shall vest with respect to the Participant and the time at which the Award will be settled and paid. Except as otherwise determined by the Committee or as may be set forth in any
Phantom Stock Award Agreement, employment or other agreement pertaining to a Phantom Stock Award, upon termination of the Participant’s Continuous Service during the applicable deferral period or Restricted Period (including any applicable
Performance Period) or portion thereof to which forfeiture conditions apply, all Phantom Stock Awards that are at that time subject to deferral of a Restricted Period shall be forfeited; provided that the Committee, subject to the provisions and
limitations contained in Section 11 relating to Performance Awards, may provide at the time of grant of a Phantom Stock Award that restrictions or forfeiture conditions relating to Phantom Stock Awards shall be waived in whole or in part in the
event of terminations of Continuous Service resulting from specified causes.
13
10. RESTRICTED STOCK AWARDS. The Committee may, from time to time and subject to
the terms of the Plan, grant Restricted Stock Awards to any Eligible Individual as a material inducement to the individual becoming an Employee, which grant shall become effective only if the individual actually becomes an Employee. Each Restricted
Stock Agreement shall be in such form and shall contain such terms and conditions as the Committee shall deem appropriate. The terms and conditions of such Restricted Stock Agreements may change from time to time, and the terms and conditions of
separate Restricted Stock Agreements need not be identical, but each such Restricted Stock Agreement shall be subject to the terms and conditions of this Section 10.
(a) Forfeiture Restrictions. Shares of Common Stock that are the subject of a Restricted Stock Award shall be subject to restrictions
on disposition by the Participant and to an obligation of the Participant to forfeit and surrender the shares to the Company under certain circumstances (the “Forfeiture Restrictions”). The Forfeiture Restrictions and the Restricted
Period shall be determined by the Committee in its sole discretion, and the Committee may provide that the Forfeiture Restrictions and the Restricted Period shall lapse on the passage of time, the attainment of one or more Performance Goals
established by the Committee or the occurrence of such other event or events determined to be appropriate by the Committee. The Forfeiture Restrictions applicable to a particular Restricted Stock Award (which may differ from any other such
Restricted Stock Award) shall be stated in the Restricted Stock Agreement and vesting of such Restricted Stock Award shall occur upon the lapse of the Forfeiture Restrictions applicable to such Restricted Stock Award.
(b) Rights as Stockholder. Shares of Common Stock awarded pursuant to a Restricted Stock Award shall be represented by a stock
certificate registered in the name of the Participant of such Restricted Stock Award or by a book entry account with the Company’s transfer agent. Except as otherwise provided in the Restricted Stock Agreement, a Participant shall have the
right to receive dividends with respect to the shares of Common Stock subject to a Restricted Stock Award, to vote the shares of Common Stock subject thereto and to enjoy all other stockholder rights with respect to the shares of Common Stock
subject thereto, except that, unless provided otherwise in the Restricted Stock Agreement, (i) the Participant shall not be entitled to delivery of the stock certificates evidencing the shares of Common Stock or release of transfer restrictions
on shares of Common Stock held in a book entry account with the Company’s transfer agent until the Forfeiture Restrictions have expired, (ii) the Company or an escrow agent shall retain custody of the stock certificates evidencing the
shares of Common Stock (or such shares shall be held in a book entry account with the Company’s transfer agent) until the Forfeiture Restrictions expire and (iii) the Participant may not sell, transfer, pledge, exchange, hypothecate or
otherwise dispose of the shares of Common Stock until the Forfeiture Restrictions expire.
(c) Release of Common Stock. One or more
stock certificates representing shares of Common Stock, free of Forfeiture Restrictions, shall be delivered to the Participant (or the transfer restrictions on shares of Common Stock held in a book entry account for the Participant will be released)
promptly after, and only after, the Forfeiture Restrictions expire and Participant has satisfied all applicable federal, state and local income and employment tax withholding requirements. The Participant, by his acceptance of the Restricted Stock
Award, shall irrevocably grant to the Company a power of attorney to transfer any shares so forfeited to the
14
Company and agrees to execute any documents requested by the Company in connection with such forfeiture and transfer, and such provisions regarding transfers of forfeited shares of Common Stock
shall be specifically performable by the Company in a court of equity or law.
(d) Payment for Restricted Stock. The Committee
shall determine the amount and form of any payment for shares of Common Stock received pursuant to a Restricted Stock Award; provided, that in the absence of such a determination, the Participant shall not be required to make any payment for shares
of Common Stock received pursuant to a Restricted Stock Award, except to the extent otherwise required by law.
(e) Forfeiture of
Restricted Stock. Unless otherwise provided in a Restricted Stock Agreement, on termination of the Participant’s Continuous Service during the Restricted Period, the shares of Common Stock which are still subject to the Restricted Stock
Award shall be forfeited by the Participant. Upon any forfeiture, all rights of the Participant with respect to the forfeited shares of the Common Stock subject to the Restricted Stock Award shall cease and terminate, without any further obligation
on the part of the Company. Notwithstanding the foregoing (but subject to the provisions and limitations contained in Section 11 relating to Performance Awards), unless the Award specifically provides otherwise, all Restricted Stock not
otherwise vested shall vest upon (i) the involuntary termination by the Company or an Affiliate of a Participant without Cause; (ii) a Change of Control, but only as provided for in 13(c); or (iii) death or Disability of the
Participant.
(f) Waiver of Forfeiture Restrictions; Committee’s Discretion. The Committee shall have discretion to modify or
waive the Performance Goals or conditions to the grant or vesting of a Restricted Stock Award except as otherwise provided in Section 16(g) or the relevant Award agreement.
11. PERFORMANCE GOALS. The Committee may, in its sole discretion, condition the grant or vesting of any Award upon the
achievement of one or more Performance Goals over a Performance Period established by the Committee in its sole discretion in accordance with this Section 11 (any such Awards herein referred to as a “Performance Award”).
(a) General. The Performance Goals for Performance Awards shall consist of one or more business criteria and a targeted level
or levels of performance with respect to each of such criteria, as specified by the Committee. The Committee may use such business criteria and other measures of performance as it may deem appropriate in establishing any performance conditions. The
Committee may determine that such Performance Awards shall be granted and/or settled upon achievement of any one Performance Goal or that two or more of the Performance Goals must be achieved as a condition to the grant and/or settlement of such
Performance Awards. Performance Goals may differ among Performance Awards granted to any one Participant or for Performance Awards granted to different Participants.
(b) Business Criteria. The Performance Goals shall be established by the Committee from time to time in its sole discretion.
Performance Goals may relate to performance of one or more business units, divisions or subsidiaries of the Company or the applicable sector of the Company, one or more regions or product lines of the Company’s business, or the Company as a
whole, and if so desired by the Committee, by comparison with a peer group of companies. Any
15
of Performance Goals may be determined, in the sole discretion of the Committee, on the absolute or relative basis or as compared to the performance of a published or special index deemed
applicable by the Committee including, but not limited to, the Standard & Poor’s 500 Stock Index or a group of comparable companies.
(c) Performance Period; Timing for Establishing Performance Goals. Achievement of performance goals in respect of Performance Awards
may be measured based on performance over a Performance Period, as specified by the Committee in its sole discretion, or may be determined based on whether or not the performance goals are satisfied at any time prior to the expiration of a
Performance Period.
(d) Settlement of Performance Awards; Compensation Contingent Upon Attainment of Performance Goal. In the case
of a performance goal measured over a Performance Period, at or after the end of the Performance Period, the Committee shall determine the amount, if any, of Performance Awards payable to each Participant based upon achievement of the business
criteria over a Performance Period. In the case of a performance goal satisfied based upon whether or not certain specified business criteria are achieved at any time during a Performance Period, at or following the satisfaction of the applicable
business criteria (even if prior to the expiration of the applicable Performance Period), the Committee shall determine the amount, if any, of Performance Awards payable to each Participant upon the achievement of the applicable business criteria.
The Committee shall specify the circumstances in which such Performance Awards shall be paid or forfeited in the event of termination of Continuous Service by the Participant prior to the end of a Performance Period or settlement of Performance
Awards.
(e) Written Determinations. The Committee shall have the authority to determine whether the Performance Goals and other
terms and conditions of the Award satisfied all determinations by the Committee as to the establishment of Performance Goals, the amount of any Performance Award, and the achievement of Performance Goals relating to Performance Awards shall be made
in writing in the case of any Award granted to a Participant.
(f) Waiver of Performance Goals. The Committee shall have discretion
to modify or waive the Performance Goals or conditions to the grant or vesting of a Performance Award except as otherwise provided in Section 16(g) or the relevant Award agreement.
12. OTHER STOCK-BASED AWARDS.
The Committee is hereby authorized to grant to any Eligible Individual as a material inducement to the individual becoming an Employee, which
grant shall become effective only if the individual actually becomes an Employee, Other Stock-Based Awards, which shall consist of a right that (i) is not an Award described in any other Section of the Plan and (ii) is denominated or
payable in, valued in whole or in part by reference to, or otherwise based on or related to, shares of Common Stock (including, without limitation, securities convertible into shares of Common Stock), as deemed by the Committee to be consistent with
the purposes of the Plan. Subject to the terms of the Plan, the Committee shall determine the terms and conditions of any such Other Stock-Based Award. The term of an Award granted under this Section 12 shall in no event exceed a period of ten
(10) years (or if the Award is intended to satisfy the provisions of Section 11, such shorter period provided for in Section 11).
16
13. ADJUSTMENT UPON CHANGES IN CAPITALIZATION AND CORPORATE EVENTS.
(a) Capital Adjustments. The number of shares of Common Stock (i) covered by each outstanding Award granted under the Plan, the
exercise or purchase price of such outstanding Award, and any other terms of the Award that the Committee determines requires adjustment and (ii) available for issuance under Section 5 shall be proportionately adjusted or an equitable
substitution shall be made with respect to such shares to reflect, as determined by the Committee, any increase or decrease in the number of shares of Common Stock resulting from a stock dividend, stock split, reverse stock split, extraordinary cash
dividend resulting from a nonrecurring event that is not a payment of normal corporate earnings, combination, reclassification or similar change in the capital structure of the Company without receipt of consideration, subject to any required action
by the Board or the stockholders of the Company and compliance with applicable securities laws or other applicable laws; provided, however, that a fractional share will not be issued upon exercise of any Award, and either (i) the value
of any fraction of a share of Common Stock that would have resulted will be cashed out at Fair Market Value or (ii) the number of shares of Common Stock issuable under the Award will be rounded down to the nearest whole number, as determined by
the Committee. Except as the Committee determines, no issuance by the Company of shares of capital stock of any class, or securities convertible into shares of capital stock of any class, shall affect, and no adjustment by reason hereof shall be
made with respect to, the number or price of shares of Common Stock subject to an Award. Notwithstanding the foregoing provisions of this Section 13, no adjustment may be made by the Committee with respect to an outstanding Award that would
cause such Award and/or the Plan to become subject to Section 409A of the Code.
(b) Dissolution or Liquidation. The Committee
shall notify the Participant at least twenty (20) days prior to any proposed dissolution or liquidation of the Company. Unless provided otherwise in an individual Award, to the extent that an Award has not been previously exercised or settled,
or the Restricted Period has not lapsed, any such Award other than a Restricted Stock Award shall expire and any such Award that is a Restricted Stock Award shall be forfeited and the shares of Common Stock subject to such Restricted Stock Award
shall be returned to the Company, in each case, immediately prior to consummation of such dissolution or liquidation, and such Award shall terminate immediately prior to consummation of such dissolution or liquidation. A “dissolution or
liquidation of the Company” shall not be deemed to include, or to be occasioned by, any merger or consolidation of the Company with any other corporation or other entity or any sale of all or substantially all of the assets of the Company
(unless that sale is effected as part of a plan of liquidation of the Company in which the Company’s business and affairs are wound up and the corporate existence of the Company is terminated).
(c) Change of Control. Unless specifically provided otherwise with respect to Change of Control events in an individual Option
Agreement, Stock Appreciation Rights Agreement or in a then-effective written employment agreement between the Participant and the Company, if, during the effectiveness of the Plan, a Change of Control occurs, each Option and Stock Appreciation
Right which is at the time outstanding under the Plan shall (i) automatically become fully vested and exercisable, immediately prior to the specified effective date of such Change of Control, for all of the shares of Common Stock at the time
represented by such Option
17
or Stock Appreciation Right and (ii) expire twenty (20) days after the Committee gives written notice to the Participant specifying the terms and conditions of the acceleration of the
Participant’s Options or Stock Appreciation Rights, or if earlier, the date by which the Option or Stock Appreciation Right otherwise would expire. To the extent that an Optionee exercises his Option before or on the effective date of the
Change of Control, the Company shall issue all Common Stock purchased by exercise of that Option (subject to Optionee’s satisfaction of the requirements of Section 15), and those shares of Common Stock shall be treated as issued and
outstanding for purposes of the Change in Control. If a Participant does not exercise his Option within the twenty (20) day period described above, or if earlier, the date by which the Option or Stock Appreciation Right otherwise would expire,
the Option or Stock Appreciation Right shall immediately be forfeited and the Participant shall have no further rights to exercise the Option or Stock Appreciation Right. Notwithstanding the foregoing provisions, in the event of any Change of
Control, all of the Company’s obligations regarding Options and Stock Appreciation Rights that were granted hereunder and that are outstanding and vested on the date of such event (taking into consideration any acceleration of vesting in
connection with such transaction) may, on such terms as may be approved by the Committee prior to such event, be (i) assumed by the surviving or continuing corporation (or substituted options of equal value may be issued by such corporation) or
(ii) canceled in exchange for cash, securities of the acquiror or other property in an amount equal to the amount that would have been payable to a Participant pursuant to the Change of Control event if the Participant’s vested Options and
Stock Appreciation Rights had been fully exercised immediately prior to the Change of Control event; provided, however, that if the amount that would have been payable to a Participant pursuant to such transaction if such
Participant’s vested Options and Stock Appreciation Rights had been fully exercised immediately prior thereto would be equal to or less than the aggregate exercise price that would have been payable therefor, the Committee may, in its
discretion, cancel any or all such Options for no consideration or payment of any kind.
Unless specifically provided otherwise
with respect to Change of Control events in an individual Award or in a then-effective written employment agreement between the Participant and the Company, if, during the effectiveness of the Plan, a Change of Control occurs, the Restricted Period
applicable to outstanding Restricted Stock Awards and all other outstanding Awards subject to forfeiture provisions (other than Awards consisting of Options or Stock Appreciation Rights) shall lapse and such Awards shall become fully vested and
settled (subject, in each case, to satisfaction by the affected Participant of the requirements of Section 15); provided, however, if the Award is treated as “nonqualified deferred compensation” under Section 409A of the
Code and the Award provides for a payment as a result of a Change of Control, (i) the definition of Change of Control for purposes of applying this Section 13(c) and for purposes of determining whether a payment event has occurred shall,
in lieu of the definition contained in Section 3(f), be the definition assigned to a “change in the ownership or effective control of a corporation, or change in the ownership of a substantial portion of the assets of a corporation”
contained in Treasury Regulation Section 1.409A-3(i)(5), using the default percentages contained in such Treasury Regulation and (ii) the Company must be the relevant corporation described in Treasury Regulation
Section 1.409A-3(i)(5)(ii).
18
14. GENERAL PROVISIONS APPLICABLE TO ALL AWARDS.
(a) General. In addition to the other terms and conditions of the Plan pursuant to which Awards may be granted, the Committee may
impose on any Award or the exercise thereof, such additional terms and conditions, not inconsistent with the provisions of the Plan, as the Committee shall determine, including terms requiring forfeiture of Awards in the event of termination of
Continuous Service by the Participant and, to the extent permissible under Section 409A of the Code, terms permitting a Participant to make elections relating to his or her Award. The Committee shall retain full power and discretion to
accelerate or waive, at any time, any term or condition of an Award that is not mandatory under the Plan; provided, however, that the Committee shall not have any discretion to accelerate or waive any term or condition of an Award that
would cause the Participant to incur additional taxes under Section 409A of the Code. Except in cases in which the Committee is authorized to require other forms of consideration under the Plan, or to the extent other forms of consideration
must be paid to satisfy the requirements of the Delaware General Corporation Law, no consideration other than services may be required for the grant of any Award.
(b) Form of Award. Each Award granted under the Plan shall be evidenced by a written Award in such form (which need not be the same for
each Participant) as the Committee from time to time approves, but which is not inconsistent with the Plan, including any provisions that may be necessary to assure that Awards satisfy the requirements of Section 409A of the Code to avoid the
imposition of excise taxes thereunder.
(c) Awards Criteria. In determining the amount and value of Awards to be granted, the
Committee may take into account the responsibility level, performance, potential, other Awards and such other considerations with respect to a Participant as it deems appropriate.
(d) Form and Timing of Payment under Awards. Subject to the terms of the Plan and any applicable Award, payments to be made upon the
exercise or settlement of an Award shall be made as soon as administratively practicable following the date on which the amount is payable. The settlement of any Award may, subject to any specific provisions or limitations set forth in the Award, be
paid in the form of cash, Common Stock or a combination thereof, as determined by the Committee in connection with such settlement; provided, however, that no Award may be paid in cash in lieu of shares of Common Stock if the Committee
determines that such action would cause the Participant to be subject to an additional tax under Section 409A of the Code.
(e)
Termination of Continuous Service for Cause. In the event a Participant’s Continuous Service is terminated for Cause, all outstanding Awards that have then not been settled (whether vested or unvested) shall be forfeited immediately and
any shares of Restricted Stock for which the Restricted Period had not lapsed as of the Participant’s termination of Continuous Service shall be transferred immediately out of the Participant’s name.
(f) Transferability of Awards. Except as provided in Section 7(b) with respect to Non-Qualified Stock Options, Awards granted
under the Plan, and any interest therein, shall not be transferable or assignable by the Participant, and may not be made subject to execution, attachment or similar process, otherwise than by will or by the laws of descent and distribution, and
shall be exercisable or payable during the lifetime of the Participant only by the Participant; provided, that the Participant may designate persons who or which may exercise or receive his Awards following his death.
19
(g) Privileges of Stock Ownership. Except as provided in the Plan in Section 10(b)
with respect to Restricted Stock Awards, no Participant will have any of the rights of a shareholder with respect to any shares of Common Stock subject to an Award until such Award is properly exercised or settled and the purchased or awarded shares
are issued and delivered to the Participant, as evidenced by an appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company. No adjustment shall be made for dividends or distributions or other rights for which
the record date is prior to such date of issuance and delivery, except as provided otherwise in the Plan.
(h) Section 409A.
(i) Separation from Service. Notwithstanding any provision contained in the Plan to the contrary, no amount shall
be paid pursuant to the Plan that is treated being paid from a “nonqualified deferred compensation plan” as described in Section 409A(a)(1) of the Code relating to a Participant’s termination of Continuous Service with the
Company or an Affiliate unless such termination of Continuous Service constitutes a “separation from service” as such term is defined under Treasury Regulation Section 1.409A-1(h) and any successor provision thereto
(“Separation from Service”).
(ii) Deferred Payments for Certain Key Employees. Notwithstanding
any other provision contained in the Plan or a related Award document to the contrary, if the Company determines that (i) at the time of the Participant’s Separation from Service the Participant is a “specified employee” for
purposes of Section 409A(a)(2)(B)(i) of the Code and (ii) any payments to be provided to the Participant under the Plan are or may become subject to the additional tax under Section 409A(a)(1)(B) of the Code or any other taxes or
penalties imposed under Section 409A of the Code (“409A Taxes”) if paid at the time such payments are otherwise required under the Plan or a related Award document, then such payments shall be delayed until the earlier of
(A) the date that is six months after the date of the Participant’s Separation from Service or (B) the Participant’s death. If the amounts delayed are payable in installments, the delayed payments will be paid on the first day of
the seventh month following the date of the Participant’s separation from service (or earlier death). The provisions of this Section 15(i)(ii) shall only apply to the minimum extent required to avoid the Participant’s incurrence of
any 409A Taxes.
(iii) Section 409A Compliance; Separate Payments. The Plan is intended to be written,
administered, interpreted and construed in a manner such that no payment or benefits provided under the Plan or a related Award document become subject to (A) the gross income inclusion set forth within Section 409A(a)(1)(A) of the Code or
(B) the interest and additional tax set forth within Section 409A(a)(1)(B) of the Code (collectively, “Section 409A Penalties”), including, where appropriate, the construction of defined terms to have meanings that would
not cause the imposition of Section 409A Penalties. For purposes of Section 409A of the Code (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), each payment that a Participant may be
eligible to receive under the Plan or a related Award document shall be treated as a separate and distinct payment and shall not collectively be treated as a single payment.
20
15. TAXES.
(a) Generally. Any issuance of Common Stock pursuant to the exercise of an Option or payment of any other Award under the Plan shall
not be made until appropriate arrangements satisfactory to the Company have been made for the payment of any tax amounts (including, and without limitation, any income and employment taxes (whether federal, state, local or otherwise) and any United
Kingdom income tax and national insurance contributions) that may be required to be withheld or paid by the Company with respect thereto. In addition, on the occurrence of an event with respect to an Award that requires the Company to withhold
taxes, the Participant shall make arrangements satisfactory to the Company whereby such taxes may be paid. Such arrangements may, at the discretion of the Committee, include allowing the person to tender to the Company shares of Common Stock owned
by the person, or to request the Company to withhold shares of Common Stock being acquired pursuant to the Award, whether through the exercise of an Option or as a distribution pursuant to the Award, together with payment of any remaining portion of
such tax amounts in cash or by check payable and acceptable to the Company.
Notwithstanding the foregoing, if on the date of an event
giving rise to a tax withholding obligation on the part of the Company the person is an Executive Officer or individual subject to Rule 16b-3, such person may direct that such tax withholding be effectuated by the Company withholding the necessary
number of shares of Common Stock (at the tax rate required by the Code) from such Award payment or exercise.
(b) Assumption of
Employer NIC Liability. If and to the extent that the Participant’s earnings are subject to United Kingdom National Insurance Contribution payments in connection with the vesting or settlement of any shares underlying a Non-Qualified Stock
Option or a Restricted Stock Award under the Plan, then to the extent required by the Company in its sole discretion, as a condition to the Participant’s receiving and retaining any such Award, the applicable Participant hereby agrees as
follows: (i) in relation only to the award of a Non-Qualified Stock Option or a Restricted Stock Award, the Participant consents to and agrees to satisfy any liability the Company and/or any subsidiary realizes with respect to United Kingdom
Secondary Class 1 National Insurance Contribution payments required to be paid by the Company and/or any subsidiary in connection with the vesting or settlement of the relevant Non-Qualified Stock Option or Restricted Stock Award; (ii) the
Participant authorizes the Company or any subsidiary to withhold any such Secondary Class 1 National Insurance Contributions from the payroll or the sale of a sufficient number of shares of Common Stock upon the exercise, vesting or settlement of
the relevant Non-Qualified Stock Option or Restricted Stock Award, or in the alternative, Participant agrees to make payment on demand for such contributions by cash or check to the Company or any subsidiary that will remit such contributions to HM
Revenue & Customs; (iii) if additional consents and/or any elections are required to accomplish the foregoing, the Participant agrees to provide them promptly upon request; and (iv) if the foregoing is not allowed under applicable
law, the Company may rescind the relevant Non-Qualified Stock Option or Restricted Stock Award.
21
(c) Election under Section 431 Income Tax (Earnings and Pensions) Act 2003
(“ITEPA”). To the extent that a Participant is subject to United Kingdom income tax in connection with the receipt of a Restricted Stock Award, the Committee may, in its sole discretion, require the Participant, as a condition of
receiving and retaining such an Award, (i) to enter into a joint election (with his or her employer) under section 431 of ITEPA in respect of the any shares or other securities acquired as a result of acquiring and holding such Award and
(ii) to appoint the Company as his attorney to make any joint election and related arrangements under this Section 15(c).
16. MISCELLANEOUS.
(a) No Rights to Awards. No Participant or other person shall have any claim to be granted any Award, there is no obligation for
uniformity of treatment of Participants, or holders or beneficiaries of Awards and the terms and conditions of Awards need not be the same with respect to each recipient.
(b) Governing Law. The validity, construction, and effect of the Plan and any rules and regulations relating to the Plan shall be
determined in accordance with applicable federal law and the laws of the State of Delaware, without regard to any principles of conflicts of law.
(c) Other Laws. The Committee may refuse to issue or transfer any shares of Common Stock or other consideration under an Award if,
acting in its sole discretion, it determines that the issuance of transfer or such shares or such other consideration might violate any applicable law.
(d) Administration. The Plan shall be administered by the Committee. The Committee shall interpret the Plan and any Awards granted
pursuant to the Plan and shall prescribe such rules and regulations in connection with the operation of the Plan as it determines to be advisable for the administration of the Plan. The Committee may rescind and amend its rules and regulations from
time to time. The interpretation by the Committee of any of the provisions of the Plan or any Award granted under the Plan shall be final, binding and conclusive upon the Company and all persons having an interest in any Award or any shares of
Common Stock acquired pursuant to an Award. Notwithstanding the authority hereby delegated to the Committee to grant Awards to Eligible Individual under the Plan, the Committee shall have full authority to grant Awards to Employees under the Plan,
to interpret the Plan, to provide, modify and rescind rules and regulations relating to the Plan, to determine the terms and provision of Awards granted to Employees under the Plan and to make all other determinations and perform such actions as the
Committee deems necessary or advisable to administer the Plan, in each case, to the extent (and solely to the extent) permitted under the Listing Rule. No member of the Committee or the Board shall be liable for any action taken or determination
made in good faith with respect to the Plan or any Award granted hereunder. Except to the extent prohibited by applicable securities or other laws (including the Listing Rule), the Committee may delegate to one or more individuals the day-to-day
administration of the Plan and any of the functions assigned to it in this Plan. Such delegation may be revoked at any time. To the extent of any delegation by the Committee, references to the Committee in the Plan and any Award Agreement shall be
deemed also to include reference to the applicable delegate(s).
22
(e) Effect of Plan. Neither the adoption of the Plan nor any action of the Board (or an
authorized committee thereof) or the Committee shall be deemed to give any Eligible Individual, Employee, Executive Officer, Director or other service provider of the Company and its Affiliates any right to be granted an Award or any other rights
except as may be evidenced by the Award, or any amendment thereto, duly authorized by the Committee and executed on behalf of the Company, and then only to the extent and on the terms and conditions expressly set forth therein. The existence of the
Plan and the Awards granted hereunder shall not affect in any way the right of the Board (or an authorized committee thereof), the Committee or the stockholders of the Company to make or authorize any adjustment, recapitalization, reorganization or
other change in the Company’s capital structure or its business, any merger or consolidation or other transaction involving the Company, any issue of bonds, debentures, or shares of preferred stock ahead of or affecting the Common Stock or the
rights thereof, the dissolution or liquidation of the Company or any sale or transfer of all or any part of the Company’s assets or business, or any other corporate act or proceeding by or for the Company. Nothing contained in the Plan or in
any Award, or in other related documents shall confer upon any Participant any right with respect to such person’s Continuous Service or interfere or affect in any way with the right of the Company or an Affiliate to terminate such
person’s Continuous Service at any time, with or without cause.
(f) No Effect on Retirement and Other Benefit Plans. Except
as specifically provided in a retirement or other benefit plan of the Company or an Affiliate, Awards shall not be deemed compensation for purposes of computing benefits or contributions under any retirement plan of the Company or an Affiliate, and
shall not affect any benefits under any other benefit plan of any kind or any benefit plan subsequently instituted under which the availability or amount of benefits is related to level of compensation. The Plan is not a “Retirement Plan”
or “Welfare Plan” under the Employee Retirement Income Security Act of 1974, as amended.
(g) Amendment or Termination of
Plan. The Board (or an authorized committee thereof) or the Committee in its discretion may, at any time or from time to time after the date of adoption of the Plan, terminate or amend the Plan in any respect, including amendment of any form of
Award, exercise agreement or instrument to be executed pursuant to the Plan; provided, however, to the extent necessary to comply with the Code, other applicable laws, or the applicable requirements of any stock exchange or national market
system, the Company shall obtain stockholder approval of any Plan amendment in such manner and to such a degree as required. No Award may be granted after termination of the Plan. Any amendment or termination of the Plan shall not affect Awards
previously granted, and such Awards shall remain in full force and effect as if the Plan had not been amended or terminated, unless mutually agreed otherwise in a writing (including an amendment to the terms of an Award) signed by the Participant
and the Company. Notwithstanding the preceding sentence, the Board (or an authorized committee thereof) or the Committee unilaterally may amend the Plan to the extent necessary or appropriate to prevent the Plan or an Award from being subject to the
provisions of Section 409A of the Code; provided that any such amendment is permitted by Section 409A of the Code, Treasury regulations issued thereunder or other guidance issued by the Internal Revenue Service.
(h) Term of Plan. Unless sooner terminated by action of the Board (or an authorized committee thereof) or the Committee, the Plan shall
terminate on the earlier of (i) the tenth (10th) anniversary of the Effective Date or (ii) the date on which no shares of Common Stock subject to the Plan remain available to be granted as Awards under the Plan according to its provisions.
23
(i) Severability and Reformation. The Company intends all provisions of the Plan to be
enforced to the fullest extent permitted by law. Accordingly, should a court of competent jurisdiction determine that the scope of any provision of the Plan is too broad to be enforced as written, the court should reform the provision to such
narrower scope as it determines to be enforceable. If, however, any provision of the Plan is held to be wholly illegal, invalid, or unenforceable under present or future law, such provision shall be fully severable and severed, and the Plan shall be
construed and enforced as if such illegal, invalid, or unenforceable provision were never a part hereof, and the remaining provisions of the Plan shall remain in full force and effect and shall not be affected by the illegal, invalid, or
unenforceable provision or by its severance.
(j) Interpretive Matters. Whenever required by the context, pronouns and any
variation thereof shall be deemed to refer to the masculine, feminine, or neuter, and the singular shall include the plural, and vice versa. The term “include” or “including” does not denote or imply any limitation. The captions
and headings used in the Plan are inserted for convenience and shall not be deemed a part of the Plan for construction or interpretation.
24
Exhibit 5.1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Andrews Kurth LLP 600 Travis, Suite
4200 Houston, Texas 77002 +1.713.220.4200 Phone
+1.713.220.4285 Fax andrewskurth.com |
October 28, 2015
Cheniere Energy, Inc.
700 Milam Street, Suite 1900
Houston, Texas 77002
| Re: |
Registration Statement on Form S-8 of Cheniere Energy, Inc. |
Ladies and Gentlemen:
We have acted as counsel to Cheniere Energy, Inc., a Delaware corporation (the “Company”), in connection with
the preparation and filing of the Registration Statement on Form S-8 (the “Registration Statement”), under the Securities Act of 1933, as amended (the “Securities
Act”), relating to the issuance by the Company under the Cheniere Energy, Inc. 2015 Employee Inducement Incentive Plan (the “Plan”), of up to 1,000,000 shares (the “Shares”) of the
Company’s common stock, par value $0.003 per share (the “Common Stock”). This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act, and no
opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or any related prospectus, other than as expressly stated herein with respect to the issuance of Shares in accordance with the Plan.
We have examined originals or copies of (i) the Registration Statement, (ii) the Plan, (iii) the Restated Certificate of
Incorporation of the Company, as amended, (iv) the Amended and Restated By-laws of the Company, as amended, (v) certain resolutions of the Board of Directors of the Company certified to us to be true and correct by the Corporate Secretary
of the Company and (vi) such other documents and records as we have deemed necessary and relevant for purposes hereof. We have relied upon certificates of public officials and officers of the Company as to certain matters of fact relating to
this opinion and have made such investigations of law as we have deemed necessary and relevant as a basis hereof. We have not independently verified any factual matter relating to this opinion.
We have assumed and have not verified the (i) genuineness of all signatures on all documents that we have examined, (ii) legal
capacity of all natural persons, (iii) authenticity of all documents submitted to us as originals and (iv) conformity to the authentic originals of all documents supplied to us as certified or photostatic or faxed copies.
Based upon the foregoing, and subject to the limitations and assumptions set forth herein, and having due regard for such legal considerations
as we deem relevant, we are of the opinion that:
Austin Beijing Dallas Dubai Houston
London New York Research Triangle Park The Woodlands Washington, DC
Cheniere Energy, Inc.
<October 28, 2015>
Page 2
1. Following the due authorization of a particular award by a duly constituted and acting committee of the Board of Directors of the Company,
as provided and in accordance with the Plan, the Shares issuable by the Company pursuant to such award will have been duly authorized.
2. Upon issuance and delivery of the Shares from time to time pursuant to the terms of the Plan and otherwise in accordance with the
terms and conditions of the applicable award agreement, and upon receipt by the Company of lawful consideration therefor under Delaware General Corporation Law (the “DGCL”), such Shares will be validly issued, fully paid and
non-assessable.
We express no opinion other than as to the federal laws of the United States of America and the DGCL (which is
deemed to include the applicable provisions of the Delaware Constitution and reported judicial opinions interpreting those laws).
We
consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the
rules and regulations issued thereunder. Our opinion is rendered as of the date hereof, and we assume no obligation to update or supplement our opinion to reflect any change of fact, circumstance or law after such time as the Registration Statement
becomes effective.
|
| Very truly yours, |
|
| /s/ ANDREWS KURTH LLP |
| Andrews Kurth LLP |
Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
The Board of Directors and Stockholders of
Cheniere Energy,
Inc.:
We consent to the use of our reports dated February 19, 2015, with respect to the consolidated balance sheet of Cheniere Energy, Inc. and
subsidiaries as of December 31, 2014, and the related consolidated statements of operations, comprehensive loss, stockholders’ equity, and cash flows for the year then ended, and the related financial statement schedule (Schedule I) for
the year ended December 31, 2014, and the effectiveness of internal control over financial reporting as of December 31, 2014, incorporated herein by reference.
/s/ KPMG LLP
Houston, Texas
October 28, 2015
Exhibit 23.3
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Cheniere Energy, Inc. 2015 Employee Inducement
Incentive Plan of our report dated February 21, 2014, with respect to the consolidated financial statements and schedule of Cheniere Energy, Inc. and subsidiaries, included in its Annual Report (Form 10-K) for the year ended December 31,
2014, filed with the Securities and Exchange Commission.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| /s/ ERNST & YOUNG LLP |
|
|
|
|
|
|
|
|
| Ernst & Young LLP |
|
|
|
|
|
|
|
|
Houston, Texas
October 28,
2015
Cheniere Energy (AMEX:LNG)
Historical Stock Chart
From Mar 2024 to Apr 2024
Cheniere Energy (AMEX:LNG)
Historical Stock Chart
From Apr 2023 to Apr 2024
