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Exhibit 4.5
UNIVERSAL ELECTRONICS INC.
1999A NONQUALIFIED STOCK PLAN
EFFECTIVE OCTOBER 7, 1999
(AS SUBSEQUENTLY AMENDED FEBRUARY 1, 2000)
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TABLE OF CONTENTS
SECTION...........................................................................................................PAGE
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Section 1. General Purpose of Plan; Definition...................................................................1
Section 2. Administration........................................................................................2
Section 3. Number of Shares of Stock Subject to Plan.............................................................3
Section 4. Eligibility...........................................................................................4
Section 5. Stock Options.........................................................................................4
(a) Grant and Exercise...............................................................................4
(i) Nature of Options.......................................................................4
(ii) Exercisability..........................................................................4
(iii) Method of Exercise......................................................................4
(b) Terms and Conditions.............................................................................4
(i) Option Price............................................................................5
(ii) Option Term.............................................................................5
(iii) Transferability of Options..............................................................5
(iv) Option Exercise after Termination by Reason of Death or Disability......................5
(v) Option Exercise after Termination without Cause or Constructive Termination.............5
(vi) Option Exercise after Termination to Resignation........................................5
(vii) Other Termination.......................................................................5
Section 6. Stock Appreciation Rights.............................................................................6
(a) Grant and Exercise...............................................................................6
(i) Time of Grant...........................................................................6
(ii) Exercisability..........................................................................6
(iii) Method of Exercise......................................................................6
(iv) Amount Payable..........................................................................6
(b) Terms and Conditions.............................................................................6
(i) Terms of Stock Appreciation Rights......................................................6
(ii) Transferability of Stock Appreciation Rights............................................7
(iii) Termination of Employment...............................................................7
Section 7. Restricted Stock Units and Performance Stock Units....................................................7
(a) Grant............................................................................................7
(b) Terms and Conditions.............................................................................7
(c) Completion of Restriction Period and Attainment of Performance Objectives........................8
Section 8. Amendment and Termination.............................................................................8
Section 9. Unfunded Status of Plan...............................................................................8
Section 10. General Provisions...................................................................................8
Section 11. Effective Date of Plan...............................................................................9
Section 12. Term of Plan.........................................................................................9
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UNIVERSAL ELECTRONICS INC.
1999A NONQUALIFIED STOCK PLAN
SECTION 1. GENERAL PURPOSE OF PLAN; DEFINITIONS.
The name of this Plan is the Universal Electronics Inc. 1999A NonQualified Stock
Plan (the "Plan"). The purpose of this Plan is to enable the Corporation (as
hereinafter defined) and its Subsidiaries (as hereinafter defined) to obtain and
retain competent personnel who will contribute to the Corporation's success by
their ability, ingenuity and industry and to provide incentives to the
participating officers and key employees that are related to increases in
stockholder value and will therefore inure to the benefit of all stockholders of
the Corporation.
For purposes of this Plan, the following terms shall be defined as set forth
below:
(a) "Award" means any grant under this Plan in the form of Stock Options,
Stock Appreciation Rights, Performance Stock Units, Restricted Stock
Units or any combination of the foregoing.
(b) "Board" means the Board of Directors of the Corporation.
(c) "Code" means the Internal Revenue Code of 1986, as amended from time to
time, or any successor thereto.
(d) "Committee" means the Compensation Committee or any other committee the
Board may subsequently appoint to administer this Plan. The Committee
shall be composed entirely of directors who meet the qualifications
referred to in Section 2 of this Plan.
(e) "Corporation" means Universal Electronics Inc., a corporation
incorporated under the laws of the State of Delaware (or any successor
corporation).
(f) "Disability" means an event of illness or other incapacity of Optionee
resulting in Optionee's failure or inability to discharge Optionee's
duties as an employee of the Corporation, any Subsidiary or any Related
Entity for ninety (90) or more days during any period of 120
consecutive days.
(g) "Eligible Employee" means an employee of the Corporation, any
Subsidiary or any Related Entity as described in Section 4 of this
Plan.
(h) "Fair Market Value" means, as of any given date, with respect to any
Awards granted hereunder, the mean of the high and low trading price of
the Stock on such date as reported on The Nasdaq Stock Market or if the
Stock is not then traded on The Nasdaq Stock Market, on such other
national securities exchange on which the Stock is admitted to trade
or, if none, on the National Association of Securities Dealers
Automated Quotation System if the Stock is admitted for quotation
thereon; provided, however, that if any such system, exchange or
quotation system is closed on any day on which Fair Market Value is to
be determined, Fair Market Value shall be determined as of the first
day immediately proceeding such day on which such system, exchange or
quotation system was open for trading; provided, further, that in all
other circumstances, "Fair Market Value" means the value determined by
the Committee after obtaining an appraisal by one or more independent
appraisers meeting the requirements of regulations issued under Section
170(a)(1) of the Code.
(i) "Non-Employee Director" shall have the meaning set forth in Rule 16b-3
("Rule 16b-3"), as promulgated by the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as amended from
time to time (the "Exchange Act"), or any successor definition adopted
by the Securities and Exchange Commission.
(j) "Optionee" means a Participant granted a Stock Option pursuant to
Section 5 of this Plan, which remains outstanding.
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(k) "Participant" means any Eligible Employee selected by the Committee,
pursuant to the Committee's authority in Section 2 of this Plan, to
receive Awards.
(l) "Performance Stock Unit" means the right to receive one share of Stock
as set forth in an Award granted pursuant to Section 7 of this Plan.
(m) "Related Entity" means any corporation, joint venture or other entity,
domestic or foreign, other than a Subsidiary, in which the Corporation
owns, directly or indirectly, a substantial equity interest.
(n) "Restricted Stock Unit" means the right to receive one share of Stock
as set forth in an Award granted pursuant to Section 7 of this Plan.
(o) "Retirement" means (i) retirement from active employment under a
retirement plan of the Corporation, any Subsidiary or Related Entity or
under an employment contract with any of them or (ii) termination of
employment at or after age 55 under circumstances which the Committee,
in its sole discretion, deems equivalent to retirement.
(p) "Stock" means the common stock, par value $0.01 per share, of the
Corporation.
(q) "Stock Appreciation Right" means the right pursuant to an Award granted
under Section 6 of this Plan, (i) in the case of a Related Stock
Appreciation Right (as defined in Section 6 of this Plan), to surrender
to the Corporation all or a portion of the related Stock Option and
receive an amount equal to the excess of the Fair Market Value of one
share of Stock as of the date such Stock Option or portion thereof is
surrendered over the option price per share specified in such Stock
Option, multiplied by the number of shares of Stock in respect of which
such Stock Option is being surrendered and (ii) in the case of a
Freestanding Stock Appreciation Right (as defined in Section 6 of this
Plan), receive an amount equal to the excess of the Fair Market Value
of one share of Stock as of the date of exercise over the price per
share specified in such Freestanding Stock Appreciation Right,
multiplied by the number of shares of Stock in respect of which such
Freestanding Stock Appreciation Right is being exercised.
(r) "Stock Option" means a nonqualified stock option (i.e., a Stock Option
that does not qualify as an "incentive stock option" within the meaning
of Section 422 of the Code) to purchase shares of Stock granted
pursuant to Section 5 of this Plan.
(s) "Subsidiary" means any corporation in an unbroken chain of corporations
beginning with the Corporation, if each of the corporations (other than
the last corporation in the unbroken chain) owns stock possessing 50%
or more of the total combined voting power of all classes of stock in
one of the other corporations in the chain.
SECTION 2. ADMINISTRATION.
This Plan shall be administered by the Committee, composed solely of two or more
directors who are Non-Employee Directors, who shall be appointed by the Board
and who shall serve at the pleasure of the Board. In the event that a Committee
has not been appointed or in the Board's sole discretion, this Plan shall be
administered by the Board, which shall have all of the power and authority of
the Committee set forth below. The Committee shall have the power and authority
in its sole discretion to grant Awards pursuant to the terms and provisions of
this Plan.
In particular, the Committee shall have the full authority, not inconsistent
with this Plan:
(a) to select Participants;
(b) to determine whether and to what extent Awards are to be granted to
Participants hereunder;
(c) to determine the number of shares of Stock to be covered by each such
Award granted hereunder, but in no case shall such number be in the
aggregate greater than that allowed under this Plan;
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(d) to approve or ratify transactions by Participants involving
acquisitions from the Corporation or dispositions to the Corporation of
equity securities of the Corporation made pursuant to the terms of this
Plan;
(e) to determine the terms and conditions of any Award granted hereunder
(including, without limitation, (i) the restrictive periods applicable
to Restricted Stock Unit Awards and (ii) the performance objectives and
periods applicable to Performance Stock Unit Awards);
(f) to waive compliance by a Participant with any obligation to be
performed by such Participant under any Award and to waive any term or
condition of any such Award (provided, however, that no such waiver
shall detrimentally affect the rights of the Participant without such
Participant's consent); and
(g) to determine the terms and conditions which shall govern all written
agreements evidencing the Awards.
The Committee shall have the authority to adopt, alter and repeal such
administrative rules, guidelines and practices governing this Plan as it shall,
from time to time deem advisable; to interpret the provisions of this Plan and
the terms and conditions of any Award issued, expired, terminated, canceled or
surrendered under this Plan (and any agreements relating thereto); and to
otherwise supervise the administration of this Plan.
All decisions made by the Committee pursuant to the provisions of this Plan and
as to the terms and conditions of any Award (and any agreements relating
thereto) shall be final and binding on all persons, including the Corporation
and the Optionees.
SECTION 3. NUMBER OF SHARES OF STOCK SUBJECT TO PLAN.
The total number of shares of Stock reserved and available for issuance under
this Plan shall be one million (1,000,000). Such shares of Stock may consist, in
whole or in part, of authorized and unissued shares of Stock or issued shares of
Stock reacquired by the Corporation at any time, as the Board may determine.
To the extent that (a) a Stock Option expires or is otherwise terminated,
canceled or surrendered without being exercised (including, without limitation,
in connection with the grant of a replacement option) or (b) any Restricted
Stock Unit Award or Performance Stock Unit Award granted hereunder expires or is
otherwise terminated or is canceled, the shares of Stock underlying such Stock
Option or subject to such Restricted Stock Unit Award or Performance Stock Unit
Award shall again be available for issuance in connection with future Awards
under this Plan. Upon the exercise of a Related Stock Appreciation Right (as
defined in Section 6 of this Plan), the Stock Option, or the part thereof to
which such Related Stock Appreciation Right is related, shall be deemed to have
been exercised for the purpose of the limitation on the number of shares of
Stock in respect of which the Related Stock Appreciation Right was exercised.
In the event of any merger, reorganization, consolidation, recapitalization,
stock dividend, spin-off, or other change in corporate structure or
capitalization affecting the Stock, the Committee shall make an equitable
adjustment or substitution in the number and class of shares reserved for
issuance under this Plan, the number and class of shares covered by outstanding
Awards and the option price per share of Stock Options or the applicable price
per share specified in Stock Appreciation Rights to reflect the effect of such
change in corporate structure or capitalization on the Stock; provided, however,
that any fractional shares resulting from such adjustment shall be eliminated;
provided further, however, that if by reason of any such change in corporate
structure or capitalization a Participant holding a Restricted Stock Unit Award
or Performance Stock Unit Award shall be entitled, subject to the terms and
conditions of such Award, to additional or different shares of any security, the
issuance of such additional or different shares shall thereupon be subject to
all of the terms and conditions (including restrictions and performance
criteria) which were applicable to such Award prior to such change in corporate
structure or capitalization; and, provided, further, however, that unless the
Committee in its sole discretion determines otherwise, any issuance by the
Corporation of shares of stock of any class or securities convertible into
shares of stock of any class shall not affect, and no such adjustment or
substitution by reason thereof shall be made with respect to, the number or
class of shares reserved for issuance under this Plan, the number or class of
shares covered by outstanding Awards or any option price or applicable price.
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SECTION 4. ELIGIBILITY.
All full-time employees of the Corporation, its Subsidiaries and its Related
Entities shall be eligible to be granted Awards; provided however, with respect
to an employee of a Related Entity, that such person was an employee of the
Corporation, a Subsidiary or, if originally an employee of the Corporation or a
Subsidiary, of another Related Entity immediately prior to becoming employed by
such Related Entity and accepted employment with such Related Entity at the
request of the Corporation or a Subsidiary. The Participants under this Plan
shall be selected, from time to time, by the Committee, in its sole discretion,
from among those Eligible Employees.
SECTION 5. STOCK OPTIONS.
(a) GRANT AND EXERCISE. Stock Options may be granted either alone or in
addition to other Awards granted under this Plan. Any Stock Option
granted under this Plan shall be in such form as the Committee may,
from time to time, approve, and the terms and conditions of Stock
Option Awards need not be the same with respect to each Optionee. Each
Optionee shall enter into a Stock Option agreement ("Stock Option
Agreement") with the Corporation, in such form as the Corporation shall
determine, which agreement shall set forth, among other things, the
option price of the option, the term of the option and conditions
regarding exercisability of the option granted thereunder.
(i) NATURE OF OPTIONS. Under this Plan, the Committee shall have
the authority to grant any Participant Stock Options with or
without Stock Appreciation Rights.
(ii) EXERCISABILITY. Subject to such terms and conditions as shall
be determined by the Committee in its sole discretion at or
after the time of grant, Stock Options shall be exercisable
from time to time to the extent of 25% of the number of shares
of Stock covered by the Stock Option on and after the first
anniversary and before the second anniversary of the date of
grant of the Stock Option, to the extent of 50% of the number
of shares of Stock covered by the Stock Option on and after
the second anniversary and before the third anniversary of the
date of grant of the Stock Option, to the extent of 75% of the
number of shares of Stock covered by the Stock Option on and
after the third anniversary and before the fourth anniversary
of the date of grant of the Stock Option and to the extent of
100% of the number of shares of Stock covered by the Stock
Option on and after the fourth anniversary of the date of
grant of the Stock Option and before expiration of the stated
term of the Stock Option (or to such lesser extent as the
Committee in its sole discretion shall determine at the time
of grant or to such greater extent as the Committee in its
sole discretion shall determine at or after the time of
grant).
(iii) METHOD OF EXERCISE. Stock Options may be exercised by giving
written notice of exercise delivered in person or by mail as
required by the terms of any Stock Option Agreement at the
Corporation's principal executive office, specifying the
number of shares of Stock with respect to which the Stock
Option is being exercised, accompanied by payment in full of
the option price in cash or its equivalent as determined by
the Committee in its sole discretion. If requested by the
Committee, the Optionee shall deliver to the Corporation the
Stock Option Agreement evidencing the Stock Option being
exercised for notation thereon of such exercise and return
thereafter of such agreement to the Optionee. As determined by
the Committee in its sole discretion at or after the time of
grant, payment of the option price in full or in part may also
be made in the form of shares of unrestricted Stock already
owned by the Optionee (based on the Fair Market Value of the
Stock on the date the Stock Option is exercised). The
Committee also may allow cashless exercise as permitted under
Federal Reserve Board's Regulation T, subject to applicable
securities law restrictions, or by any other means that the
Committee determines to be consistent with this Plan's purpose
and applicable law. An Optionee shall generally have the
rights to dividends or other rights of a stockholder with
respect to shares of Stock subject to the Stock Option when
the Optionee has given written notice of exercise, has paid in
full for such shares of Stock, and, if requested, has made
representations described in Section 10(a) of this Plan.
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(b) TERMS AND CONDITIONS. Stock Options granted under this Plan shall be
subject to the following terms and conditions and shall contain such
additional terms and conditions, not inconsistent with the terms of
this Plan, as the Committee shall deem desirable.
(i) OPTION PRICE. The option price per share of Stock purchasable
under a Stock Option shall be Fair Market Value at the time of
grant, unless otherwise determined by the Committee in its
sole discretion.
(ii) OPTION TERM. The term of each Stock Option shall be fixed by
the Committee at the time of grant, but no Stock Option shall
be exercisable more than [ten years] after the date such Stock
Option is granted.
(iii) TRANSFERABILITY OF OPTIONS. Except as otherwise set forth in a
Stock Option Agreement, no Stock Options shall be transferable
by the Optionee otherwise than by will or by the laws of
descent and distribution and all Stock Options shall be
exercisable, during the Optionee's lifetime, only by the
Optionee, or in the case of Optionee's legal incompetency,
only by Optionee's guardian or legal representative.
(iv) OPTION EXERCISE AFTER TERMINATION BY REASON OF DEATH OR
DISABILITY. If an Optionee's employment with the Corporation,
any Subsidiary or any Related Entity terminates by reason of
death or Disability, any Stock Option held by such Optionee
may thereafter be exercised for a period of one year (or such
shorter period as the Committee in its sole discretion shall
specify at or after the time of grant) from the date of such
termination or until the expiration of the stated term of such
Stock Option, whichever period is shorter, to the extent to
which the Optionee would on the date of termination have been
entitled to exercise the Stock Option (or to such greater or
lesser extent as the Committee in its sole discretion shall
determine at or after the time of grant).
(v) OPTION EXERCISE AFTER TERMINATION WITHOUT CAUSE OR
CONSTRUCTIVE TERMINATION. If an Optionee's employment with the
Corporation, any Subsidiary, or any Related Entity is
terminated, by the Corporation or such Subsidiary or such
Related Entity, without "Cause" (as such term is defined
within the Stock Option Agreement) or in the event of
"Constructive Termination" (as such term is defined within the
Stock Option Agreement) of the Optionee's employment with the
Corporation or such Subsidiary or such Related Entity is so
terminated the Committee, in its sole discretion, may (a)
permit the Optionee to exercise any Stock Option held by such
Optionee, to the extent not theretofore exercised, in whole or
in part with respect to all remaining shares covered by the
Stock Option at any time prior to the expiration of the Stock
Option (or such shorter period as the Committee in its sole
discretion shall specify at or after the time of grant), or to
such greater or lesser extent as the Committee in it sole
discretion shall determine at or after the time of grant
and/or (b) accelerate the vesting schedule of such Stock
Option. An Optionee's acceptance of employment, at the request
of the Corporation or a Subsidiary, with a Related Entity (or
acceptance of employment, at the request of the Corporation or
a Subsidiary, with any other Related Entity), shall not be
deemed a termination of employment hereunder and any Stock
Option held by an Optionee may be exercised thereafter to the
extent that the Optionee would on the date of exercise have
been entitled to exercise such Stock Option if such Optionee
had continued to be employed by the Corporation or such
Subsidiary (or such initial Related Entity), provided that the
Optionee has been in continuous employ with the Related Entity
to which such Optionee has moved from the date of acceptance
of employment therewith until the date of exercise.
(vi) OPTION EXERCISE AFTER TERMINATION TO RESIGNATION. If an
Optionee's employment with the Corporation, any Subsidiary, or
any Related Entity terminates for any reason not set forth in
Sections 5(iv) or (v) above, the Committee, in its sole
discretion, may permit the Optionee to exercise any Stock
Option held by such Optionee to the extent such Option was
exercisable on the date of such termination (or to such
greater or lesser extent as the Committee in its sole
discretion shall determine at or after the time of grant) for
such period as designated by the Committee.
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(vii) OTHER TERMINATION. Except as otherwise provided in this
Section 5 of this Plan, or as determined by the Committee in
its sole discretion, if an Optionee's employment with the
Corporation, any Subsidiary or any Related Entity terminates,
all Stock Options held by the Optionee will terminate.
SECTION 6. STOCK APPRECIATION RIGHTS.
(a) GRANT AND EXERCISE. Stock Appreciation Rights may be granted either in
conjunction with all or part of any Stock Option granted under this
Plan ("Related Stock Appreciation Rights") or alone ("Freestanding
Stock Appreciation Rights") and, in either case, in addition to other
Awards granted under this Plan. Participants shall enter into a Stock
Appreciation Rights Agreement with the Corporation if requested by the
Committee, in such form as the Committee shall determine.
(i) TIME OF GRANT. Related Stock Appreciation Rights may be
granted either at or after the time of the grant of the Stock
Option to which it is related. Freestanding Stock Appreciation
Rights may be granted at any time.
(ii) EXERCISABILITY. Related Stock Appreciation Rights shall be
exercisable only at such time or times and to the extent that
the Stock Options to which they relate shall be exercisable in
accordance with the provisions of Section 5(a)(ii) of this
Plan and Freestanding Stock Appreciation Rights shall be
exercisable, subject to such terms and conditions as shall be
determined by the Committee in its sole discretion at or after
the time of grant, from time to time, to the extent that Stock
Options are exercisable in accordance with the provisions of
Section 5(a)(ii) of this Plan.
(iii) METHOD OF EXERCISE. Stock Appreciation Rights shall be
exercised by a Participant by giving written notice of
exercise delivered in person or by mail as required by the
terms of any agreement evidencing the Stock Appreciation Right
at the Corporation's principal executive office, specifying
the number of shares of Stock in respect of which the Stock
Appreciation Right is being exercised. If requested by the
Committee, the Participant shall deliver to the Corporation
the agreement evidencing the Stock Appreciation Right being
exercised and, in the case of a Related Stock Appreciation
Right, the Stock Option Agreement evidencing any related Stock
Option, for notation thereon of such exercise and return
thereafter of such agreements to the Participant.
(iv) AMOUNT PAYABLE. Upon the exercise of a Related Stock
Appreciation Right, an Optionee shall be entitled to receive
an amount in cash or shares of Stock equal in value to the
excess of the Fair Market Value of one share of Stock on the
date of exercise over the option price per share specified in
the related Stock Option, multiplied by the number of shares
of Stock in respect of which the Related Stock Appreciation
Rights shall have been exercised, with the Committee having in
its sole discretion the right to determine the form of
payment. Upon the exercise of a Freestanding Stock
Appreciation Right, a Participant shall be entitled to receive
an amount in cash or shares of Stock equal in value to the
excess of the Fair Market Value of one share of Stock on the
date of exercise over the price per share specified in the
Freestanding Stock Appreciation Right, which shall be not less
than 100% of the Fair Market Value of the Stock on the date of
Grant, multiplied by the number of shares of Stock in respect
of which the Freestanding Stock Appreciation Rights shall have
been exercised, with the Committee having in its sole
discretion the right to determine the form of payment
(b) TERMS AND CONDITIONS. Stock Appreciation Rights under this Plan shall
be subject to the following terms and conditions and shall contain such
additional terms and conditions not inconsistent with the terms of this
Plan, as the Committee shall deem desirable.
(i) TERMS OF STOCK APPRECIATION RIGHTS. The term of a Related
Stock Appreciation Right shall be the same as the term of the
related Stock Option. A Related Stock Appreciation Right or
applicable portion thereof shall terminate and no longer be
exercisable upon the exercise,
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termination, cancellation or surrender of the related Stock
Option, except that, unless otherwise provided by the
Committee in its sole discretion at or after the time of
grant, a Related Stock Appreciation Right granted with respect
to less than the full number of shares of Stock covered by a
related Stock Option shall terminate and no longer be
exercisable if and to the extent that the number of shares of
Stock covered by the exercise, termination, cancellation or
surrender of the related Stock Option exceeds the number of
shares of Stock not covered by the Related Stock Appreciation
Right.
The term of each Freestanding Stock Appreciation Right shall be fixed
by the Committee, but no Freestanding Stock Appreciation Right shall be
exercisable more than ten years after the date such right is granted.
(ii) TRANSFERABILITY OF STOCK APPRECIATION RIGHTS. Stock Appreciation Rights
shall be transferable only when and to the extent that a Stock Option
would be transferable under Section 5(b)(iii) of this Plan.
(iii) TERMINATION OF EMPLOYMENT. In the event of the termination of
employment of an Optionee holding a Related Stock Appreciation Right,
such right shall be exercisable to the same extent that the related
Stock Option is exercisable after such termination. In the event of the
termination of employment of the holder of a Freestanding Stock
Appreciation Right, such right shall be exercisable to the same extent
that a Stock Option with the same terms and conditions as such
Freestanding Stock Appreciation Right would have been exercisable in
the event of the termination of employment of the holder of such Stock
Option.
SECTION 7. RESTRICTED STOCK UNITS AND PERFORMANCE STOCK UNITS.
(a) GRANT. Awards of Restricted Stock Units or Performance Stock Units may
be granted either alone or in addition to other Awards granted under
this Plan. Each Restricted Stock Unit or Performance Stock Unit
represents the right to receive, subject to the terms and provisions of
this Plan and any agreements evidencing such Awards, one share of
Stock. If the Committee in its sole discretion so determines at the
time of grant, a Participant to whom a Restricted Stock Unit Award or
Performance Stock Unit Award has been granted may be credited with an
amount equivalent to all cash dividends ("Dividend Equivalents") that
would have been paid to the holder of such Restricted Stock Unit Award
or Performance Stock Unit Award if one share of Stock for every
Restricted Stock Unit or Performance Stock Unit awarded had been issued
to the holder on the date of grant of such Restricted Stock Unit Award
or Performance Stock Unit Award. The Committee shall determine the
terms and conditions of each Restricted Stock Unit Award and
Performance Stock Unit, including without limitation, the number of
Restricted Stock Units or Performance Stock Units to be covered by such
Awards, the restricted period applicable to Restricted Stock Unit
Awards and the performance objectives applicable to Performance Stock
Unit Awards. The Committee in its sole discretion may prescribe terms
and conditions applicable to the vesting of such Restricted Stock Unit
Awards or Performance Stock Unit Awards in addition to those provided
in this Plan. The Committee shall establish such rules and guidelines
governing the crediting of Dividend Equivalents, including the timing,
form of payment and payment contingencies of Dividend Equivalents, as
it may deem desirable. The Committee in its sole discretion may at any
time accelerate the time at which the restrictions on all or any part
of a Restricted Stock Unit Award lapse or deem the performance
objectives with respect to all or any part of a Performance Stock Unit
Award to have been attained. Restricted Stock Units Awards and
Performance Stock Unit Awards shall not be transferable otherwise than
by will or by the laws of descent and distribution. Shares of Stock
shall be deliverable upon the vesting of Restricted Stock Unit Awards
and Performance Stock Unit Awards for no consideration other than
services rendered or, in the Committee's sole discretion, the minimum
amount of consideration other than services (such as the par value of
Stock) required to be received by the Corporation in order to assure
compliance with applicable state law, which amount shall not exceed 10%
of the Fair Market Value of such shares of Stock on the date of
issuance. Each such Award shall be evidenced by a Restricted Stock Unit
agreement ("Restricted Stock Unit Award Agreement") or Performance
Stock Unit Award agreement ("Performance Stock Unit Award Agreement").
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(b) TERMS AND CONDITIONS. Unless otherwise determined by the Committee in
its sole discretion:
(i) a breach of any term or condition provided in this Plan, the
Restricted Stock Unit Award Agreement or the Performance Stock
Unit Award Agreement or established by the Committee with
respect to such Restricted Stock Unit Award or Performance
Stock Unit Award will cause a cancellation of the unvested
portion of such Restricted Stock Unit Award or Performance
Stock Unit Award (including any Dividend Equivalents credited
in respect thereof) and the Participant shall not be entitled
to receive any consideration in respect of such cancellation;
and
(ii) termination of such holder's employment with the Corporation,
any Subsidiary or any Related Entity prior to the lapsing of
the applicable restriction period or attainment of applicable
performance objectives will cause a cancellation of the
unvested portion of such Restricted Stock Unit Award or
Performance Stock Unit Award (including any Dividend
Equivalents credited in respect thereof) and the Participant
shall not be entitled to receive any consideration in respect
of such cancellation.
(c) COMPLETION OF RESTRICTION PERIOD AND ATTAINMENT OF PERFORMANCE
OBJECTIVES. To the extent that restrictions with respect to any
Restricted Stock Unit Award lapse or performance objectives with
respect to any Performance Stock Unit Award are attained and provided
that other applicable terms and conditions have been satisfied:
(i) such of the Restricted Stock Units or Performance Stock Units
as to which restrictions have lapsed or performance objectives
have been attained shall become vested and the Committee shall
cause to be issued and delivered to the Participant a stock
certificate representing a number of shares of Stock equal to
such number of Restricted Stock Units or Performance Stock
Units, and, subject to Section 11(a) hereof, free of all
restrictions; and
(ii) any Dividend Equivalents credited in respect of such
Restricted Stock Units or Performance Stock Units shall become
vested to the extent that such Restricted Stock Units or
Performance Stock Units shall have become vested and the
Committee shall cause such Dividend Equivalents to be
delivered to the Participant.
Any such Restricted Stock Unit Award or Performance Stock Unit Award (including
any Dividend Equivalents credited in respect thereof) that shall not have become
vested at the end of the applicable restricted period or the period given for
the attainment of performance objectives shall expire, terminate and be canceled
and the Participant shall not thereafter have any rights with respect to the
Restricted Stock Units or Performance Stock Units (or any Dividend Equivalents
credited in respect thereto) covered thereby.
SECTION 8. AMENDMENT AND TERMINATION.
The Board may amend, alter, or discontinue this Plan, but no amendment,
alteration, or discontinuation shall be made that would impair the rights of a
Participant under any Award theretofore granted without such Participant's
consent. The Committee may amend or alter the terms and conditions of any Award
theretofore granted, and of any agreement evidencing such Award, prospectively
or retroactively, but no such amendment or alteration shall impair the rights of
any Optionee under such Award or agreement without such Optionee's consent.
SECTION 9. UNFUNDED STATUS OF PLAN.
This Plan is intended to constitute an "unfunded" plan. With respect to any
payments not yet made and due to a Participant by the Corporation, nothing
contained herein shall give any such Participant any rights that are greater
than those of a general unsecured creditor of the Corporation.
SECTION 10. GENERAL PROVISIONS.
(a) The Committee may require each Optionee purchasing shares of Stock
pursuant to a Stock Option to represent to and agree with the
Corporation in writing that such Optionee is acquiring the shares of
Stock without a view to distribution thereof. All certificates for
shares of Stock delivered under this Plan and,
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to the extent applicable, all evidences of ownership with respect to
Dividend Equivalents delivered under this Plan, shall be subject to
such stock-transfer orders and other restrictions as the Committee may
deem advisable under the rules, regulations and other requirements of
the Securities and Exchange Commission, any stock exchange upon which
the Stock is then listed or quotation system on which the Stock is
admitted for trading and any applicable Federal or state securities
law, and the Committee may cause a legend or legends to be put on any
such certificates to make appropriate reference to such restrictions.
(b) Nothing contained in this Plan shall prevent the Board from adopting
other or additional compensation arrangements, subject to stockholder
approval if such approval is required, and such arrangements may be
either generally applicable or applicable only in specific cases. The
adoption of this Plan shall not confer upon any employee of the
Corporation, any Subsidiary or any Related Entity any right to
continued employment with the Corporation, any Subsidiary or any
Related Entity as the case may be, nor shall it interfere in any way
with the right of the Corporation, any Subsidiary or any Related Entity
to terminate the employment of any of its employees at any time.
(c) Each Participant shall be deemed to have been granted an Award on the
date the Committee took action to grant such Award under this Plan or
such later date as the Committee in its sole discretion shall determine
at the time such grant is authorized.
(d) Unless the Committee otherwise determines, each Participant shall, no
later than the date as of which the value of an Award first becomes
includable in the gross income of the Participant for federal income
tax purposes, pay to the Corporation, or make arrangements satisfactory
to the Committee regarding payment of, any federal, state or local
taxes of any kind required by law to be withheld with respect to the
Award. The obligations of the Corporation under this Plan shall be
conditional on such payment or arrangements and the Corporation (and,
where applicable, its Subsidiaries and its Related Entities) shall, to
the extent permitted by law, have the right to deduct any such taxes
from any payment of any kind otherwise due to the Participant. A
Participant may elect to have such tax withholding obligation
satisfied, in whole or in part, by (i) authorizing the Corporation to
withhold from shares of Stock to be issued upon the exercise of a Stock
Option or upon the vesting of any Restricted Stock Unit Award or the
Performance Stock Unit Award a number of shares of Stock with an
aggregate Fair Market Value that would satisfy the withholding amount
due, or (ii) transferring to the Corporation shares of Stock owned by
the Participant with an aggregate Fair Market Value that would satisfy
the withholding amount due. With respect to any Participant who is an
executive officer, the election to satisfy the tax withholding
obligations relating to the exercise of a Stock Option or to the
vesting of a Restricted Stock Unit Award or Performance Stock Unit
Award in the manner permitted by this subsection (d) shall be made
during the "window period" as described within the Corporation Insider
Trading Policy unless otherwise determined in the sole discretion of
the Committee of the Board.
(e) No member of the Board or the Committee, nor any officer or employee of
the Corporation acting on behalf of the Board or the Committee, shall
be personally liable for any action, failure to act, determination or
interpretation taken or made in good faith with respect to this Plan,
and all members of the Board or the Committee and each and any officer
or employee of the Corporation acting on their behalf shall, to the
extent permitted by law, be fully indemnified and protected by the
Corporation in respect of any such action, failure to act,
determination or interpretation.
(f) The term "executive officer" as used in this Plan means any director or
officer who is subject to the provisions of Section 16(b) of the
Exchange Act.
(g) Notwithstanding any other provision herein to the contrary, the maximum
number of shares with respect to which Awards may be granted to the
same Participant under this Plan may not exceed, in the aggregate,
Three Hundred Thirty-three thousand (333,333) shares, except to the
extent of adjustments authorized by Section 3 of this Plan.
SECTION 11. EFFECTIVE DATE OF PLAN.
This Plan, effective as of October 7, 1999, was subsequently amended as of
February 1, 2000.
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SECTION 12. TERM OF PLAN.
No Award shall be granted under this Plan on or after the tenth anniversary of
the effective date of this Plan; provided, however, that the vesting and
exercisability of Awards granted prior to such tenth anniversary may extend
beyond that date.
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