EXHIBIT 4.3
800 TRAVEL SYSTEMS, INC.
2000 STOCK INCENTIVE PLAN
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I. PURPOSE.
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The purpose of this 800 Travel Systems, Inc. Stock Incentive
Plan is to promote the growth and profitability of 800 Travel Systems, Inc. (the
"Corporation") by rewarding and incentivizing individuals who make valuable
contributions to the Corporation's success, including officers and employees of
the Corporation and its subsidiaries, and directors, consultants and advisors of
the Corporation.
The Stock Incentive Plan has been approved by the Board of
Directors effective as of March 27, 2000, and has been submitted for approval by
the Company's stockholders at the Annual Meeting of Stockholders scheduled in
2000.
II. DEFINITIONS.
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The following terms shall have the meanings shown:
2.1 "Board of Directors" means the Board of Directors of the
Corporation.
2.2 "Change of Control" means any event described in Section 8.1.
2.3 "Code" means the Internal Revenue Code of 1986, as the same may be
amended from time to time.
2.4 "Committee" means the Committee appointed by the Board of Directors
pursuant to Article XI of the Plan. This Committee may, but is not required to
be, identical to the Compensation Committee.
2.5 "Common Stock" means the common stock, par value $.01 per share, of
the Corporation, except as provided in Section 9.2 of the Plan.
2.6 "Compensation Committee" shall mean the Compensation Committee of
the Board of Directors. All persons appointed to be members of the Compensation
Committee shall be directors who qualify as "Non-Employee Directors" within the
meaning of Rule 16b-3 and "outside directors" within the meaning of Treasury
Regulation Section 1.162-27.
2.7 "Consultant" shall mean any individual engaged by the Corporation
to perform services for the Corporation or any Subsidiary on a regular and
on-going basis who is not a common law employee of the Corporation.
2.8 "Date of Grant" means the date specified by the Plan Administrator
on which a grant of Options, SARs or a grant or sale of Restricted Shares shall
become effective.
2.9 "Director" means a member of the Board of Directors.
2.10 "Disability" shall mean a medically diagnosable mental or physical
condition which the Committee has determined, based on such medical evidence as
it may find satisfactory, will prevent a Participant from performing his or her
duties for the Corporation and is expected to be permanent.
2.11 "Executive Officer" means any Named Executive Officer and any
other officer of the Corporation who is subject to the reporting requirements of
Section 16 of the Securities and Exchange Act of 1934.
2.12 "Fair Market Value" means the fair market value of a share of
Common Stock as determined by the Committee by reference to the closing price
quotation, or, if none, the average of the bid and asked prices, reported on
Nasdaq as of the most recent available date with respect to the sale of Common
Stock.
2.13 "Incentive Stock Options" means Options intended to qualify for
favorable tax treatment as incentive stock options under Code Section 422.
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2.14 "Named Executive Officer" shall mean the Company's Chief Executive
Officer and the four highest compensated officers (other than the Chief
Executive Officer), as determined pursuant to the executive compensation
disclosure rules under the Securities Exchange Act of 1934.
2.15 "Option Agreement" means a written agreement between the
Corporation and a Participant who has been granted Options under this Plan. Each
Option Agreement shall be subject to the terms and conditions of the Plan.
2.16 "Option Price" means, with respect to any Option (or related SAR),
the amount designated in a Participant's Option Agreement as the price per share
he or she will be required to pay to exercise the Option and acquire the shares
subject to such Option.
2.17 "Options" means any rights to purchase shares of Common Stock
granted pursuant to Article IV of this Plan, including Incentive Stock Options
subject to the additional requirements described in Article V.
2.18 "Participant" shall mean any current or former employee of the
Corporation or any Subsidiary, or any Consultant or Director, who has been
granted Options, SARs or Restricted Stock under the terms of this Plan.
2.19 "Plan" means this 800 Travel Systems, Inc. Stock Incentive Plan,
as the same may be amended from time to time.
2.20 "Reload Option Rights" means the right to have additional Options
automatically granted to the Participant upon the exercise of his or her
Options, as granted pursuant to Section 4.6 of this Plan.
2.21 "Restricted Stock" means shares of Common Stock that are issued to
eligible Participants and made subject to restrictions in accordance with
Article VII of the Plan.
2.22 "Restricted Stock Agreement" means a written agreement between the
Corporation and a Participant who has been granted or sold Restricted Stock
pursuant to Article VII of the Plan.
2.23 "SARs" shall mean stock appreciation rights granted pursuant to
Article VI of the Plan.
2.24 "Subsidiary" shall mean any corporation which, on the date of
determination, qualifies as a subsidiary corporation of the Corporation under
Section 425(f) of the Code.
III. ELIGIBILITY.
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3.1 PARTICIPATION. The Committee may grant Options, SARs and/or awards
of Restricted Stock under this Plan to any officer, employee or Consultant of
the Corporation or any Subsidiary. The Committee may also grant Options and/or
awards of Restricted Stock to any Director, subject to the restrictions in
Section 3.3. In granting such awards and determining their form and amount, the
Committee shall give consideration to the functions and responsibilities of the
individual, his or her potential contributions to profitability and sound growth
of the Corporation and such other factors as the Committee may, in its
discretion, deem relevant.
3.2 EXECUTIVE OFFICERS. Notwithstanding Section 3.1 or any other
provisions of this Plan, any Named Executive Officer shall not be granted
Options, SARs or awards of Restricted Stock unless the grant has been approved
by the Compensation Committee, and all grants to Executive Officers must be
approved in advance by either the Committee or the Compensation Committee.
3.3 DIRECTORS. Members of the Board of Directors who are officers of the
Corporation or Consultants shall be eligible for Options or other awards under
this Plan on the same terms as other officers or Consultants. Other members of
the Board of Directors shall be eligible for Options or Restricted Stock awards
only to the extent specified in such general policy on compensation of
nonemployee Directors as may be established by the Board of Directors.
IV. OPTIONS.
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4.1 TERMS AND CONDITIONS. Subject to Section 3.2 and 3.3, the Committee
may, in its sole discretion, from time to time grant Options to any officer,
employee, Director or Consultant of the Corporation or any Subsidiary selected
by the Committee pursuant to Section 3.1. The grant of an Option to a
Participant shall be evidenced by a written Option Agreement in substantially
the form approved by the Committee. Such Option shall be subject to the
following express terms and conditions and to such other terms and conditions,
not inconsistent with the terms of this Plan, as the Committee may determine to
be appropriate.
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(a) SHARES COVERED. The Committee shall, in its discretion,
determine the number of shares of Common Stock to be covered by the Options
granted to any Participant. The maximum number of shares of Common Stock with
respect to which Options may be granted to any Participant during any one
calendar year is 100,000 shares.
(b) EXERCISE PERIOD. The term of each Option shall be for such
period as the Committee shall determine, but for not more than ten years from
the Date of Grant thereof. The Committee shall also have the discretion to
determine when each Option granted hereunder shall become exercisable, and to
prescribe any vesting schedule limiting the exercisability of such Options as it
may deem appropriate.
(c) OPTION PRICE. The Option Price payable for the shares of
Common Stock covered by any Option shall be determined by the Committee, but
shall in no event be less than the Fair Market Value of Common Stock on the Date
of Grant.
(d) EXERCISE OF OPTIONS. A Participant may exercise his or her
Options from time to time by written notice to the Corporation of his or her
intent to exercise the Options with respect to a specified number of shares. The
specified number of shares will be issued and transferred to the Participant
upon receipt by the Corporation of (i) such notice and (ii) payment in full for
such shares, and (iii) receipt of any payments required to satisfy the
Corporation's tax withholding obligations pursuant to Section 8.3.
(e) PAYMENT OF OPTION PRICE UPON EXERCISE. Each Option
Agreement shall provide that the Option Price for the shares with respect to
which an Option is exercised may be paid to the Corporation at the time of
exercise, in the form of (i) cash, (ii) delivery to the Corporation of whole
shares of Common Stock already owned by the Participant, valued at their Fair
Market Value on the day immediately preceding the date of exercise, (iii) at the
discretion of the Committee, a promissory note secured by a pledge of the shares
of Common Stock, or (iv) a combination of any of the above equal to the Option
Price for the shares.
(f) BROKER ASSISTED EXERCISES. Alternatively, the Corporation
may permit the Participant to exercise an Option by delivery of a signed,
irrevocable notice of exercise, accompanied by payment in full of the Option
Price by the Participant's stockbroker and an irrevocable instruction to the
Corporation to deliver the shares of Common Stock issuable upon exercise of the
Option promptly to the Participant's stockbroker for the Participant's account,
provided that at the time of such exercise, such exercise would not be illegal
under the federal securities laws, including laws governing margin loans.
4.2 EFFECT OF TERMINATION.
(a) If a Participant ends his employment or other relationship
with the Corporation (or with the relevant Subsidiary) for any reason other than
retirement, disability or death, his or her Options shall terminate immediately
upon the date of the termination, unless the Committee decides in its sole
discretion, to waive this termination and amends the Participant's Option
Agreement to provide for an extended exercise period.
(b) Any Option Agreement may, in the Committee's sole
discretion, include such provisions as the Committee deems advisable with
respect to the Participant's right to exercise the Option subsequent to
retirement or other voluntary termination of employment (or other relationship
with the Corporation), or subsequent to termination of such employment (or other
relationship) by reason of total and permanent disability; PROVIDED, that, in no
event shall any Option be exercisable after the fixed termination date set forth
in the Participant's Option Agreement pursuant to Section 4.1(b).
(c) Any Option Agreement may, in the Committee's sole
discretion, provide that, in the event of the Participant's death while he or
she has the right to exercise his or her Options, the Options may be exercised
(to the extent they had become exercisable prior to the time of the
Participant's death), during such period of up to one year after date of the
Participant's death as the Committee deems to be appropriate, by the personal
representative of the Participant's estate, or by the person or persons to whom
the Options shall have been transferred by will or by the laws of descent and
distribution.
4.3 INCENTIVE STOCK OPTIONS. The Options granted under this Plan may be
either Incentive Stock Options or options not intended to constitute incentive
stock options qualifying under Code Section 422; PROVIDED THAT, Incentive Stock
Options may only be granted to common employees of the Corporation or its
Subsidiaries; and FURTHER PROVIDED, any Incentive Stock Option shall be subject
to the additional requirements stated in Article V of this Plan.
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4.4 AUTHORITY TO WAIVE RESTRICTIONS ON EXERCISABILITY. The Committee
may, in its sole discretion, determine at any time that all or any portion of
the Options granted to a Participant under the Plan shall, notwithstanding any
restrictions on exercisability imposed pursuant to Section 4.1(b), become
immediately exercisable in full. The Committee may make such further adjustments
to the terms of such Options as it may deem necessary or appropriate in
connection therewith.
4.5 NON-ASSIGNABILITY. Options granted under this Plan shall generally
not be assignable or transferable by the Participant, except by will or by the
laws of descent and distribution, or as described in the next paragraph.
Notwithstanding the foregoing, the Committee may, in its discretion,
permit a Participant to transfer all or a portion of his or her Options to
members of his or her immediate family, to trusts for the benefit of members of
his immediate family, or to family partnerships in which immediate family
members are the only partners, provided that the Participant may receive no
consideration for such transfers, and that such Options shall still be subject
to termination in accordance with Section 4.2 above in the hands of the
transferee.
4.6 RELOAD OPTIONS. The Committee may, in its discretion, also grant a
Participant Reload Option Rights with respect to his or her Options. If a
Participant who has been granted Reload Option Rights with respect to Options,
exercises his or her Options by paying the Option Price by delivering previously
owned shares of Common Stock, as authorized under Section 4.1(e) above, the
Participant shall automatically be granted additional Options on the same terms
for the number of shares delivered to pay such Option Price; provided, however,
that the term of any Reload Option shall not extend beyond the term of the
Option originally exercised.
4.7 COVENANTS NOT TO COMPETE. The Committee may, in its discretion,
condition any Option granted to an Employee, Consultant or Director on such
Participants agreement to enter into such covenant not to compete with the
Corporation as the Committee may deem to be desirable. Such covenant not to
compete shall be set forth in the Participant's Stock Option Agreement, and the
Stock Option Agreement shall provide that the Option shall be forfeited
immediately, whether otherwise vested or not, if the Board of Directors
determines that the Participant has violated his or her covenant not to compete.
In addition, in the Committee's discretion, the Participant's Stock Option
Agreement may also provide that if the Participant breaches his or her covenant
not to compete, the Corporation shall have the right to repurchase any shares of
Common Stock previously issues to the Participant pursuant to an exercise of the
Option, at a repurchase price equal to the Option Price paid by the Participant.
V. INCENTIVE STOCK OPTIONS.
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The Committee may, in its discretion, specify that any Options granted
to a Participant who is an employee of the Corporation or a Subsidiary shall be
ISOs qualifying under Code Section 422.
5.1 Each Stock Option Agreement which provides for the grant of ISOs
shall expressly state that such Options are intended to qualify as ISOs. Each
provision of the Plan and of each Stock Option Agreement relating to an Option
designated as an ISO shall be construed so that such Option qualifies as an ISO,
and any provision that cannot be so construed shall be disregarded.
5.2 Any Options granted under this Plan which are designated as ISOs
shall comply with the following additional requirements:
(a) The aggregate Fair Market Value (determined at the time an
ISO is granted) of the shares of Common Stock (together with all other
stock of the Corporation and all stock of any Parent or Subsidiary)
with respect to which the ISOs may first become exercisable by an
individual Participant during any calendar year, under all stock option
plans of the Corporation (or any Parent or Subsidiaries) shall not
exceed $100,000. To the extent this limitation would otherwise be
exceeded, the Option shall be deemed to consist of an ISO for the
maximum number of shares which may be covered by ISOs pursuant to the
preceding sentence, and a nonstatutory option for the remaining shares
subject to the Option.
(b) The Option Price payable upon the exercise of an ISO shall
not be less than the Fair Market Value of a share of Common Stock on
the Date of Grant.
(c) In the case of an ISO granted to a Participant who is a
ten percent shareholder of the Corporation, the period of the Option
shall not exceed five years from the Date of Grant, and the Option
Price shall not be less than 110 percent of the Fair Market Value of
Common Stock on the Date of Grant.
(d) No ISO granted under this Plan shall be assignable or
transferable by the Participant, except by will or by the laws of
descent and distribution. During the life of the Participant, any ISO
shall be exercisable only by the Participant.
VI. STOCK APPRECIATION RIGHTS.
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6.1 GRANT OF SARS. The Committee may, in its discretion, from time to
time grant stock appreciation rights to a Participant in connection with Options
granted under this Plan. Participants granted SARs shall be entitled to receive
upon exercise thereof, in cash or Common Stock as provided in Paragraph 6.3(c),
the difference between the Fair Market Value of the Common Stock on the day
preceding the exercise date and the Option Price of the underlying Option. SARs
may be granted with respect to all or part of the Common Stock under a
particular Option, except as otherwise expressly provided herein.
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6.2 TANDEM OPTIONS. SARs shall entitle the Participant holding the
related Option, upon exercise, in whole or in part, of the SARs, to receive
payment in the amount and form determined pursuant to Paragraph 6.3(c). SARs may
be exercised only to the extent that the related Option has not been exercised.
The exercise of SARs shall result in a pro rata surrender of the related Option
to the extent that the SARs have been exercised.
6.3 TERMS AND CONDITIONS. The grant of SARs shall be evidenced by
including provisions with respect to such SARs in the Participant's Option
Agreement in a form approved by the Committee. Such SARs shall be subject to the
following express terms and conditions and to such other terms and conditions,
not inconsistent with the terms of the Plan, which the Committee may deem
appropriate.
(a) SARs shall be exercisable at such time or times and to the
extent, but only to the extent, that the Option to which they relate shall be
exercisable.
(b) SARs (and any Option related thereto) shall in no event be
exercisable during the first six months after the date of grant and such rights
shall not be transferable other than by will or by the laws of descent and
distribution and shall be exercisable during the Participant's lifetime only by
the Participant.
(c) Upon exercise of SARs, the Participant shall be entitled
to receive an amount equal in value to the difference between the Option Price
and the Fair Market Value per share of Common Stock on the day preceding the
exercise date, multiplied by the number of shares in respect of which the SARs
shall have been exercised. Such amount shall be paid in the form of (i) cash,
(ii) shares of Common Stock with a Fair Market Value on the day preceding the
exercise date equal to such amount or (iii) a combination of cash and shares of
Common Stock, all as determined by the Committee.
(d) In no event shall an SAR be exercisable at a time when the
Option Price of the underlying Option is greater than the Fair Market Value of
the shares subject to the related Option.
VII. RESTRICTED STOCK.
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7.1 RIGHTS AS A SHAREHOLDER. The Committee may, in its discretion,
grant a Participant an award consisting of shares of Restricted Stock. At the
time of the award, the Committee shall cause the Corporation to deliver to the
Participant, or to a custodian or an escrow agent designated by the Committee, a
certificate or certificates for such shares of Restricted Stock, registered in
the name of the Participant. The Participant shall have all the rights of a
stockholder with respect to such Restricted Stock, subject to the terms and
conditions, including forfeiture or resale to such Corporation, if any, as the
Committee may determine to be desirable pursuant to Section 7.3 of the Plan. The
Committee may designate the Corporation or one or more of its executive officers
to act as custodian or escrow agent for the certificates.
7.2 AWARDS AND CERTIFICATES.
(a) A Participant granted an award of Restricted Stock shall
not be deemed to have become a stockholder of the Corporation, or to have any
rights with respect to such shares of Restricted Stock, until and unless such
Participant shall have executed a restricted stock agreement or other instrument
evidencing the award and delivered a fully executed copy thereof to the
Corporation and otherwise complied with the then applicable terms and conditions
of such award.
(b) When a Participant is granted shares of Restricted Stock,
the Corporation shall issue a stock certificate or certificates in respect of
shares of Restricted Stock. Such certificates shall be registered in the name of
the Participant, and shall bear an appropriate legend referring to the terms,
conditions and restrictions applicable to such award substantially in the
following form:
"The transferability of the shares of stock
represented by this Certificate are subject to the terms and
conditions (including forfeiture) of a Restricted Stock
Agreement entered into between the registered owner and 800
Travel Systems, Inc. A copy of such Agreement is on file in
the offices of the Secretary of the Company, 4802 Gunn
Highway, Tampa, Florida 33624.
(c) Except as may be otherwise determined by the Committee (or
as required in order to satisfy the tax withholding obligations imposed under
Section 11.3 of this Plan), Participants granted awards of Restricted Stock
under this Plan will not be required to make any payment or provide
consideration to the Corporation other than the rendering of services.
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7.3 RESTRICTIONS AND FORFEITURES. Restricted Stock awarded to a
Participant pursuant to this Article VII shall be subject to the following
restrictions and conditions:
(a) During a period set by the Committee of not less than six
(6) months, but not more than eight (8) years, commencing with the date of an
award (the "Restriction Period"), the Participant will not be permitted to sell,
transfer, pledge or assign shares of Restricted Stock awarded to him or her.
Within these limits, the Committee may provide for the lapse of such
restrictions in installments where deemed appropriate.
(b) Except as provided in Section 7.3(a), the Participant
shall have with respect to the Restricted Stock all of the rights of a
stockholder of the Corporation, including the right to vote the shares and
receive dividends and other distributions.
(c) Subject to the provisions of Section 7.3(d), upon any
termination of the Participant's employment or other relationship with the
Corporation during the Restriction Period for any reason, all shares of
Restricted Stock with respect to which the restrictions have not yet expired
shall be forfeited to the Corporation, or, in the case of shares of Restricted
Stock sold to the Participant, repurchased by the Corporation at the initial
purchase price.
(d) In the event of a Participant's retirement from his or her
employment (or other relationship) with the Corporation, total Disability, or
death, or in cases of special circumstances, the Committee may, in its sole
discretion, when it finds that a waiver would be in the best interests of the
Corporation, waive in whole or in part any or all remaining restrictions with
respect to such Participant's Restricted Stock.
(e) Notwithstanding the other provisions of this Section 7.3,
the Committee may adopt rules which would permit a gift by a Participant of
shares of Restricted Stock to a spouse, child, stepchild, grandchild or to a
trust the beneficiary or beneficiaries of which shall be either such a person or
persons or the Participant, provided that the Restricted Stock so transferred
shall be similarly restricted.
(f) Any attempt to dispose of shares of Restricted Stock in a
manner contrary to the restrictions set forth herein shall be ineffective.
(g) Nothing in this Section 7.3 shall preclude a Participant
from exchanging any Restricted Stock for any other shares of the Common Stock
that are similarly restricted.
VIII. CHANGE IN CONTROL TRANSACTIONS.
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8.1 CHANGE IN CONTROL. For purposes of this Plan, a "Change in Control"
shall include any of the events described below:
(a) The acquisition in one or more transactions of more than
thirty percent of the Corporation's outstanding Common Stock, or the
equivalent in voting power of any classes or classes of securities of
the Corporation entitled to vote in elections of directors by any
corporation, or other person or group (within the meaning of Section
14(d)(3) of the Securities Exchange Act of 1934, as amended);
(b) Any merger or consolidation of the Corporation into or
with another corporation in which the Corporation is not the surviving
entity, or any transfer or sale of substantially all of the assets of
the Corporation or any merger or consolidation of the Corporation into
or with another corporation in which the Corporation is the surviving
entity and, in connection with such merger or consolidation, all or
part of the outstanding shares of Common Stock shall be changed into or
exchanged for other stock or securities of the Corporation or any other
person, or cash, or any other property.
(c) Any election of persons to the Board of Directors which
causes a majority of the Board of Directors to consist of persons other
than (i) persons who were members of the Board of Directors on March
27, 2000, and (ii) persons who were nominated for election as members
of the Board by the Board of Directors (or by a Committee of the Board)
at a time when the majority of the Board (or of such Committee)
consisted of persons who were members of the Board of Directors on
March 27, 2000; PROVIDED, that any person nominated for election by the
Board of Directors composed entirely of persons described in (i) or
(ii), or of persons who were themselves nominated by such Board, shall
for this purpose be deemed to have been nominated by a Board composed
of persons described in (i).
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(d) Any person, or group of persons, announces a tender offer
for at least thirty percent (30%) of the Corporation's Common Stock.
8.2 EFFECT OF CHANGE IN CONTROL. In the event of a pending or
threatened Change in Control, the Committee may, in its sole discretion, take
any one or more of the following actions with respect to all Participants:
(i) Accelerate the exercise dates of any outstanding
Options, and make all outstanding Options fully vested and
exercisable;
(ii) Waive all or any portion of the vesting
requirements or other conditions associated with a Restricted
Stock Award;
(iii) Grant Stock Appreciation Rights to the holders
of outstanding Options;
(iv) Pay cash to any or all Option holders in
exchange for the cancellation of their outstanding Options;
(v) Make any other adjustments or amendments to the
Plan and outstanding Options, or Restricted Stock Awards
and/or substitute new Options or other awards.
IX. AGGREGATE LIMITATION ON SHARES OF COMMON STOCK.
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9.1 NUMBER OF SHARES OF COMMON STOCK.
(a) Shares of Common Stock which may be issued to Participants
pursuant to Options, SARs, or Restricted Stock awards granted under the Plan may
be either authorized and unissued shares of Common Stock or of Common Stock held
by the Corporation as treasury stock.
(b) The number of shares of Common Stock reserved for issuance
under this Plan on the date of any grant shall not exceed 500,000 shares of
Common Stock, subject to such adjustments as may be made pursuant to Section
9.2.
(c) For purposes of Section 9.1(b), upon the exercise of an
Option or SAR, the number of shares of Common Stock available for future
issuance under the Plan shall be reduced by the number of shares actually issued
to the Participant, exclusive of any shares surrendered to the Corporation as
payment of the Option price.
(d) Any shares of Common Stock subject to an Option which for
any reason is cancelled, terminates unexercised or expires, except by reason of
the exercise of a related SAR, shall again be available for issuance under the
Plan.
(e) In the event that any award of Restricted Stock is
forfeited, cancelled or surrendered for any reason, the shares of Common Stock
constituting such Restricted Stock award shall again be available for issuance
under the Plan.
9.2 ADJUSTMENTS OF STOCK. In the event of any change or changes in the
outstanding Common Stock of the Corporation by reason of any stock dividend,
recapitalization, reorganization, merger, consolidation, split-up, combination
or any similar transaction, the number of shares of Common Stock which may be
issued under this Plan, the number of shares of Common Stock subject to Options
theretofore granted under this Plan, the Option Price of such Options, the
number of SARs theretofore granted in conjunction with an Option, the number of
shares of Restricted Stock shall each be adjusted in such manner as the Board of
Directors deems appropriate to prevent substantial dilution or enlargement of
the rights granted to a Participant.
New option rights may be substituted for the Options granted
under the Plan, or the Corporation's duties as to Options and SARs outstanding
under the Plan may be assumed by a Subsidiary, by another corporation or by a
parent or subsidiary (within the meaning of Section 425 of the Code) of such
other corporation, in connection with any merger, consolidation, acquisition,
separation, reorganization, liquidation or like occurrence in which the
Corporation is involved. In the event of such substitution or assumption, the
term Common Stock shall thereafter include the stock of the corporation granting
such new option rights or assuming the Corporation's duties as to such Options
or SARs.
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X. MISCELLANEOUS.
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10.1 GENERAL RESTRICTION. Any Option, SAR, or Restricted Stock award
granted under this Plan shall be subject to the requirement that, if at any time
the Committee shall determine that any registration of the shares of Common
Stock, or any consent or approval of any governmental body, or any other
agreement or consent, is necessary as a condition of the granting of an Option
or other award, or the issuance of Common Stock in satisfaction thereof, such
Common Stock will not be issued or delivered until such requirement is satisfied
in a manner acceptable to the Committee.
10.2 WITHHOLDING TAXES.
(a) If the Corporation determines that the Corporation has any
tax withholding obligation with respect to a Participant, the Corporation shall
have the right to require that Participant to remit to the Corporation an amount
sufficient to satisfy any federal, state and local withholding tax requirements
prior to the delivery of any shares of Common Stock under the Plan.
(b) The Corporation shall have the right to withhold from
payments made in cash to a Participant under the terms of the Plan, an amount
sufficient to satisfy any federal, state and local withholding tax requirements
imposed with respect to such cash payments.
(c) Amounts to which the Corporation is entitled pursuant to
Section 10.2(a) or (b), may be paid, at the election of the Participant and with
the approval of the Committee, either (i) paid in cash, (ii) withheld from any
compensation payable to the Participant by the Corporation, including cash
payments made under this Plan, or (iii) in shares of Common Stock otherwise
issuable to the Participant upon exercise of an Option or SAR, that have a Fair
Market Value on the date on which the amount of tax to be withheld is determined
(the "Tax Date") not less than the minimum amount of tax the Corporation is
required to withhold. A Participant's election to have shares of Common Stock
withheld that are otherwise issuable shall be in writing, shall be irrevocable
upon approval by the Committee, and shall be delivered to the Corporation prior
to the Tax Date with respect to the exercise of an Option or SAR.
10.3 INVESTMENT REPRESENTATION. If the Committee determines that a
written representation is necessary in order to secure an exemption from
registration under the Securities Act of 1933, the Committee may demand that the
Participant deliver to the Corporation at the time of any exercise of any Option
or SAR, or at time of the transfer of shares of Restricted Stock, any written
representation that Committee determines to be necessary or appropriate for such
purpose, including but not limited to a representation that the shares to be
issued are to be acquired for investment and not for resale or with a view to
the distribution thereof. If the Committee makes such a demand, delivery of a
written representation satisfactory to the Committee shall be a condition
precedent to the right of the Participant to acquire such shares of Common
Stock.
10.4 NON-UNIFORM DETERMINATIONS. The Committee's determinations under
this Plan (including without limitation its determinations of the persons to
receive Options, SARs, or awards of Restricted Stock, the form, amount and
timing of such awards and the terms and provisions of such awards) need not be
uniform and may be made by it selectively among Participants who receive, or are
eligible to receive, awards under this Plan, whether or not such Participants
are similarly situated.
10.5 NO RIGHTS AS SHAREHOLDERS. Participants granted Options or SARs
under this Plan shall have no rights as shareholders of the Corporation as
applicable with respect thereto unless and until certificates for shares of
Common Stock are issued to them.
10.6 TRANSFER RESTRICTIONS. The Committee may determine that any Common
Stock to be issued by the Corporation upon the exercise of Options or SARs shall
be subject to such further restrictions upon transfer as the Committee
determines to be appropriate.
XI. ADMINISTRATION OF THE PLAN.
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11.1 COMMITTEE.
(a) The Plan shall be administered on a day to day basis by
the Board of Directors or, if the Board determines it is desirable to delegate
its authority to administer the Plan, by a Committee appointed by the Board of
Directors. The Plan Committee appointed by the Board may be the Compensation
Committee of the Board of Directors or one or more directors or executive or
officers of the Corporation serving under the supervision of such Compensation
Committee, and, except as expressly stated otherwise in this Plan with respect
to Executive Officers, need not be composed of directors or directors who
qualify as "disinterested" within the meaning of SEC Rule 16b-3. The Plan
Committee shall serve at the pleasure of the Board of Directors.
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(b) If the Committee is not the Board of Directors, the
Committee shall be monitored and supervised by the Compensation Committee of the
Board of Directors with respect to any actions related to Named Executive
Officers. All grants of Options, SARs or Restricted Stock to Executive Officers
shall be approved in advance by the Compensation Committee.
(c) The Committee shall have the authority, in its discretion
but subject to Sections 3.2 and 3.3 of this Plan, and subject to the overall
supervision of the Compensation Committee or the Board, from time to time: (i)
to grant Options, SARs, or shares of Restricted Stock to eligible employees,
Directors and Consultants, as provided for in this Plan; (ii) to prescribe such
limitations, restrictions and conditions upon any such awards as the Committee
shall deem appropriate; or (iii) to determine the periods during which Options
may be exercised and to accelerate the exercisability of outstanding Options or
SARs, or the vesting of Restricted Stock, as it may deem appropriate;
(d) The Committee shall have the authority, in its discretion,
from time to time, to: (i) modify, cancel, or replace any prior Options or other
awards and to amend the relevant Option Agreements or Restricted Stock
Agreements with the consent of the affected Participants, including amending
such agreements to amend vesting schedules, extend exercise periods or increase
or decrease the Option Price for Options, as it may deem to be necessary; and
(ii) to interpret the Plan, to adopt, amend and rescind rules and regulations
relating to the Plan, and to make all other determinations and to take all other
action necessary or advisable for the implementation and administration of the
Plan. A majority of the Committee shall constitute a quorum, and the action of a
majority of members of the Committee present at any meeting at which a quorum is
present, or acts unanimously adopted in writing without the holding of a
meeting, shall be the acts of the Committee.
(e) All actions taken by the Committee shall be final,
conclusive and binding upon any eligible Participant. Neither the Committee nor
any members of the Committee shall be liable for any action taken or decision
made in good faith relating to the Plan or any award thereunder.
XII. AMENDMENT AND TERMINATION.
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12.1 AMENDMENT OR TERMINATION OF THE PLAN. The Board of Directors may
at any time terminate this Plan or any part thereof and may from time to time
amend this Plan as it may deem advisable. The termination or amendment of this
Plan shall not, without the consent of the Participant, affect any Participant's
rights under an award previously granted.
12.2 TERM OF PLAN. Unless previously terminated pursuant to Section
12.1, the Plan shall terminate on March 27, 2010, the tenth anniversary of the
date on which the Plan became effective, and no Options, SARs, or awards of
Restricted Stock may be granted on or after such date.
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