EXHIBIT 10.1.3
PRICELINE.COM INCORPORATED
1999 OMNIBUS PLAN
1. Establishment and Purpose.
There is hereby adopted the priceline.com Incorporated 1999 Omnibus
Plan (the "Plan"). The Plan is in tended to promote the interests of
priceline.com Incorporated (the "Company") by providing employees of the
Company with appropriate incentives and rewards to en courage them to enter
into and continue in the employ of the Company and to acquire a proprietary
interest in the long-term success of the Company; and to reward the
performance of individual officers, other employees, consultants and
directors in fulfilling their responsibilities for long-range achievements.
2. Definitions.
As used in the Plan, the following definitions apply to the terms
indicated below:
(a) "Affiliate" means an affiliate of the Company, as defined in Rule
12b-2 promulgated under Section 12 of the Exchange Act.
(b) "Agreement" shall mean the written agreement between the Company
and a Participant evidencing an Award.
(c) "Award" means any Option, Restricted Stock or Other Stock-Based
Award granted under the Plan.
(d) "Beneficial Owner" shall have the meaning set forth in Rule 13d-3
under the Exchange Act.
(e) "Board" shall mean the Board of Directors of the Company.
(f) "Cause" shall mean (1) the willful and continued failure by the
Participant substantially to perform his or her duties and
obligations to the Company (other than any such failure resulting
from his or her incapacity due to physical or mental illness);
(2) the willful engaging by the Participant in misconduct which
is materially injurious to the Company; (3) the commission by the
Participant of a felony; or (4) the commission by the Participant
of a crime against the Company which is materially injurious to
the Company. For purposes of this Section 2(f), no act, or
failure to act, on a Participant's part shall be considered
"willful" unless done, or omitted to be done, by the Participant
in bad faith and without reasonable belief that his or her action
or omission was in the best interest of the Company.
Determination of Cause shall be made by the Committee in its sole
discretion.
(g) "Change in Control" means the occurrence of any one of the
following events:
(i) any Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company (not including in
the securities beneficially owned by such person any
securities acquired directly from the Company or its
Affiliates) representing 25% or more of the combined voting
power of the Company's then outstanding voting securities;
(ii) the following individuals cease for any reason to constitute
a majority of the number of directors then serving:
individuals who, on the Effective Date, constitute the Board
and any new director (other than a director whose initial
assumption of office is in connection with an actual or
threatened election contest, including but not limited to a
consent solicitation, relating to the election of directors
of the Company) whose appointment or election by the Board
or nomination for election by the Company's stock holders
was approved or recommended by a vote of at least two-thirds
(2/3) of the directors then still in office who either were
directors on the Effective Date or whose appointment,
election or nomination for election was previously so
approved or recommended;
(iii) there is consummated a merger or consolidation of the
Company or any direct or indirect subsidiary of the Company
with any other corporation, other than (A) a merger or
consolidation which would result in the voting securities of
the Company outstanding immediately prior thereto continuing
to represent (either by remaining outstanding or by being
converted into voting securities of the surviving or parent
entity) more than 50% of the combined voting power of the
voting securities of the Company or such surviving or parent
entity out standing immediately after such merger or
consolidation or (B) a merger or consolidation effected to
implement a recapitalization of the Company (or similar
transaction) in which no Person, directly or indirectly,
acquired 25% or more of the combined voting power of the
Company's then outstanding securities (not including in the
securities beneficially owned by such person any securities
acquired directly from the Company or its Affiliates); or
(iv) the stockholders of the Company approve a plan of complete
liquidation of the Company or there is consummated an
agreement for the sale or disposition by the Company of all
or substantially all of the Company's assets (or any
transaction having a similar effect), other than a sale or
disposition by the Company of all or substantially all of
the Company's assets to an entity, at least 50% of the
combined voting power of the voting securities of which are
owned by stockholders of the Company in substantially the
same proportions as their ownership of the Company
immediately prior to such sale.
(h) "Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time, and any regulations promulgated thereunder.
(i) "Committee" means (1) with respect to the application of this
Plan to employees and consultants, a committee established by the
Board, which committee shall be intended to consist of two or
more non-employee directors, each of whom shall be a
"non-employee director" as defined in Rule 16b-3 of the Exchange
Act and an "outside director" as defined under Section 162(m) of
the Code and (2) with erspect to the application ofthis Plan to
Non-Employee Dirctors, the Board.
(j) "Company" means priceline.com Incorporated, a corporation
organized under the laws of the State of Delaware, or any
successor corporation.
(k) "Director" shall mean a member of the Board.
(l) "Disability" shall mean: (1) any physical or mental condition
that would qualify a Participant for a disability benefit under
the long-term disability plan maintained by the Company and
applicable to him or her; (2) when used in connection with the
exercise of an Incentive Stock Option following termination of
employment, disability within the meaning of Section 22(e)(3) of
the Code, or (3) such other condition as may be determined in the
sole discretion of the Committee to constitute Disability.
(m) "Effective Date" shall mean the effective date of the Initial
Public Offering, provided that the Plan had been approved by the
stockholders of the Company prior to the Initial Public Offering.
(n) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
(o) "Executive Officer" shall have the meaning set forth in Rule 3b-7
promulgated under the Exchange Act.
(p) The "Fair Market Value" of a share of Stock as of a particular
date shall mean the closing sales price per share of Stock on the
national securities exchange on which the Stock is principally
traded, for the last preceding date on which there was a sale of
such Stock on such exchange.
(q) "Incentive Stock Option" shall mean an Option that is an
"incentive stock option" within the meaning of Section 422 of the
Code, or any successor provision, and that is designated by the
Committee as an Incentive Stock Option.
(r) "Initial Public Offering" shall mean the initial public offering
of shares of Stock of the Company, as more fully described in the
preliminary Registration Statement on Form S-1 in tended to be
filed with the Securities and Exchange Commission on or about
December 23, 1998, as such Registration Statement may be amended
from time to time.
(s) "Issue Date" shall mean the date established by the Company on
which certificates representing Restricted Stock shall be issued
by the Company pursuant to the terms of Section 8(e).
(t) "Non-Employee Director" shall mean a member of the Board who is
not and has never been an employee of the Company.
(u) "Non-Qualified Option" shall mean an Option other than an
Incentive Stock Option.
(v) "Option" shall mean an option to purchase a number of shares of
Stock granted pursuant to Section 7.
(w) "Other Stock-Based Award" shall mean an award granted pursuant to
Section 9 hereof.
(x) "Partial Exercise" shall mean an exercise of an Award for less
than the full extent permitted at the time of such exercise.
(y) "Participant" shall mean (1) an employee, consultant or
Non-Employee Director of the Company to whom an Award is granted
hereunder and (2) any such persons successors, heirs, executors
and administrators, as the case may be, in such capacity.
(z) "Performance Goals" means performance goals based on one or more
of the following criteria: (i) pre-tax income or after-tax
income, (ii) operating profit, (iii) return on equity, as sets,
capital or investment, (iv) earnings or book value per share, (v)
sales or revenues, (vi) operating expenses, (vii) Stock price
appreciation and (viii) implementation or completion of critical
projects or processes. Where applicable, the Performance Goals
may be expressed in terms of attaining a specified level of the
particular criteria or the attainment of a percentage increase or
decrease in the particular criteria, and may be applied to one or
more of the Company, a Subsidiary or Affiliate, or a division or
strategic business unit of the Company, or may be applied to the
performance of the Company relative to a market index, a group of
other companies or a combination thereof, all as determined by
the Committee. The Performance Goals may include a threshold
level of performance below which no vesting will occur, levels of
performance at which specified vesting will occur, and a maximum
level of performance at which full vesting will occur. Each of
the foregoing Performance Goals shall be determined in accordance
with generally accepted accounting principles and shall be
subject to certification by the Committee; provided that the
Committee shall have the authority to make equitable adjustments
to the Performance Goals in recognition of unusual or
non-recurring events affecting the Company or any Subsidiary or
Affiliate or the financial statements of the Company or any
Subsidiary or Affiliate, in response to changes in applicable
laws or regulations, or to account for items of gain, loss or
expense determined to be extraordinary or unusual in nature or
infrequent in occurrence or related to the disposal of a segment
of a business or related to a change in accounting principles.
(aa) "Person" shall have the meaning set forth in Section 3(a)(9) of
the Exchange Act, as modified and used in Sections 13(d) and
14(d) thereof, except that such term shall not include (1) the
Company, (2) a trustee or other fiduciary holding securities
under an employee benefit plan of the Company, (3) an underwriter
temporarily holding securities pursuant to an offering of such
securities or (4) a corporation owned, directly or indirectly, by
the stockholders of the Company in substantially the same
proportions as their ownership of shares of Stock of the Company.
(bb) "Plan" means the priceline.com 1999 Omnibus Plan, as amended from
time to time.
(cc) "Reload Option" shall mean a Non-Qualified Stock Option granted
pursuant to Section 7(c)(5).
(dd) "Restricted Stock" shall mean a share of Stock which is granted
pursuant to the terms of Section 8 hereof and which is subject to
the restrictions set forth in Section 8(c).
(ee) "Rule 16b-3" shall mean the Rule 16b-3 promulgated under the
Exchange Act, as amended from time to time.
(ff) "Securities Act" shall mean the Securities Act of 1933, as
amended from time to time.
(gg) "Stock" means shares of the common stock, par value $.01 per
share, of the Company.
(hh) "Subsidiary" means any corporation in an unbroken chain of
corporations beginning with the Company if, at the time of
granting of an Award, 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.
(ii) "Vesting Date" shall mean the date established by the Committee
on which Restricted Stock may vest.
3. Stock Subject to the Plan.
The maximum number of shares of Stock reserved for the grant or
settlement of Awards under the Plan shall be 25,375,000 shares, subject to
adjustment as provided herein. No more than 7,500,000 shares of Stock may
be awarded in respect of Options, no more than 2,500,000 shares of Stock
may be awarded in respect of Restricted Stock and no more than 5,000,000
shares of Stock may be awarded in respect of Other Stock-Based Awards to a
single individual in any given year during the life of the Plan, which
amounts shall be subject to adjustment as provided herein. Determinations
made in respect of the limitation set forth in the preceding sentence shall
be made in a manner consistent with Section 162(m) of the Code. Such shares
may, in whole or in part, be authorized but unissued shares or shares that
shall have been or may be reacquired by the Company in the open market, in
private transactions or otherwise. If any shares subject to an Award are
forfeited, canceled, exchanged or surrendered or if an Award otherwise
terminates or expires without a distribution of shares to the holder of
such Award, the shares of Stock with respect to such Award shall, to the
extent of any such forfeiture, cancellation, exchange, surrender,
termination or expiration, again be available for Awards under the Plan.
Except as provided in an Award Agreement, in the event that the
Committee shall determine that any dividend or other distribution (whether
in the form of cash, Stock, or other property), recapitalization, Stock
split, reverse split, reorganization, merger, consolidation, spin-off,
combination, repurchase, or share exchange, or other similar corporate
transaction or event, affects the Stock such that an adjustment is
appropriate in order to prevent dilution or enlargement of the rights of
holders of Awards under the Plan, then the Committee shall make such
equitable changes or adjustments as it deems necessary or appropriate to
any or all of (i) the number and kind of shares of Stock or other property
(including cash) that may thereafter be issued in connection with Awards,
(ii) the number and kind of shares of Stock or other property (including
cash) issued or issuable in respect of outstanding Awards, (iii) the
exercise price, grant price, or purchase price relating to any Award;
provided that, with respect to Incentive Stock Options, such adjustment
shall be made in accordance with Section 424(h) of the Code, (iv) the
Performance Goals and (v) the individual limitations applicable to Awards.
4. Administration of the Plan.
The Plan shall be administered by the Committee. The Committee shall
have the authority in its sole discretion, subject to and not inconsistent
with the express provisions of the Plan, to administer the Plan and to
exercise all the powers and authorities either specifically granted to it
under the Plan or necessary or advisable in the administration of the Plan,
including, with out limitation, the authority to grant Awards; to determine
the persons to whom and the time or times at which Awards shall be granted;
to determine the type and number of Awards to be granted, the number of
shares of Stock to which an Award may relate and the terms, conditions,
restrictions and Performance Goals relating to any Award; to determine
whether, to what extent, and under what circumstances an Award may be
settled, canceled, forfeited, exchanged, or surrendered; to make
adjustments in the Performance Goals in recognition of unusual or
non-recurring events affecting the Company or the financial statements of
the Company (to the extent not inconsistent with Section 162(m) of the
Code, if applicable), or in response to changes in applicable laws,
regulations, or accounting principles; to construe and interpret the Plan
and any Award; to prescribe, amend and rescind rules and regulations
relating to the Plan; to determine the terms and provisions of Agreements;
and to make all other determinations deemed necessary or advisable for the
administration of the Plan.
The Committee may, in its absolute discretion, without amendment to
the Plan, (a) accelerate the date on which any Option granted under the
Plan becomes exercisable, waive or amend the operation of Plan provisions
respecting exercise after termination of employment or otherwise adjust any
of the terms of such Option, (b) accelerate the Vesting Date or waive any
condition imposed hereunder with respect to any Restricted Stock and (c)
otherwise adjust any of the terms applicable to any Award; provided,
however, in each case, that in the event of the occurrence of a Change in
Control, the provisions of Section 10 hereof shall govern vesting and
exercisability schedule of any Award granted hereunder.
No member of the Committee shall be liable for any action, omission or
determination relating to the Plan, and the Company shall indemnify (to the
extent permitted under Delaware law) and hold harmless each member of the
Committee and each other director or employee of the Company to whom any
duty or power relating to the administration or interpretation of the Plan
has been delegated against any cost or expense (including counsel fees) or
liability (including any sum paid in settlement of a claim with the
approval of the Committee) arising out of any action, omission or
determination relating to the Plan, unless, in either case, such action,
omission or determination was taken or made by such member, director or
employee in bad faith and without reasonable belief that it was in the best
interests of the Company.
5. Eligibility.
Incentive Stock Options shall be granted only to key employees
(including officers and directors who are also employees) of the Company,
its parent or any of its Subsidiaries. All other Awards may be granted to
officers, independent contractors, key employees and non-employee directors
of the Company or of any of its Subsidiaries and Affiliates.
6. Awards Under the Plan; Non-Employee Director Grants
(a) Grants. The Committee may grant Options, Restricted Stock and
Other Stock-Based Awards to Participants in such amounts and on such
terms and conditions, not inconsistent with the Plan, as the
Committee shall determine in its sole and absolute discretion.
(b) Non-Employee Director Grants. Unless determined otherwise by the
Committee in its sole and absolute discretion, and without further
action by the Board or the stockholders of the Company, each
Non-Employee Director shall, subject to the terms of the Plan, be
granted a Non-Qualified Option to purchase (1) 20,000 shares of Stock
as of the date the Non-Employee Director begins service as a
Non-Employee Director and (2) an additional Option to purchase 10,000
shares of Stock as of the first business day following each annual
meeting of stockholders of the Company, provided that the individual
is a Non-Employee Director on such date. Unless otherwise determined
by the Committee at the time of grant, each such Option shall be for
a ten (10) year term, shall become exercisable as to one-third of the
shares subject to the Option on the first anniversary of the date of
grant and as to the balance monthly in equal installments over the
next twenty-four months following such first anniversary, shall be
granted at a per share exercise price equal to the Fair Market Value
and otherwise be in accordance with Section 7 of this Plan.
(c) Agreements. Each Award granted under the Plan shall be evidenced
by an Agreement that shall contain such provisions as the Committee
may, in its sole and absolute discretion, deem necessary or
desirable. By accepting an Award, a Participant thereby agrees that
the Award shall be subject to all terms and provisions of the Plan
and the applicable Agreement.
(d) Notwithstanding the above, no grants under Section (b) above
shall be made to the extent it would exceed the limitations set forth
in Section 3 of the Plan with any grants then due being cut back pari
passu and such non-made grants automatically being made at such time
as they may be made under Section 3 (other than as a result of an
amendment thereof).
7. Options.
(a) Identification of Options. Each Option shall be clearly
identified in the applicable Agreement as either an Incentive
Stock Option or a Non-Qualified Option.
(b) Exercise Price. Each Agreement with respect to an Option shall
set forth the exercise price per share of Stock payable by the
grantee to the Company upon exercise of the Option. The exercise
price per share of Stock shall be determined by the Committee;
provided, however, that in no case shall an Option have an
exercise price per share of Stock that is less than the Fair
Market Value of a share of Stock on the date the Option is
granted.
(c) Term and Exercise of Options.
(1) Unless the applicable Agreement provides otherwise, an
Option shall become cumulatively exercisable as to 33 1/3%
percent of the Units covered thereby on each of the first,
second and third anniversaries of the date of grant. The
Committee shall determine the expiration date of each
Option; provided, however, that no Option shall be
exercisable more than 10 years after the date of grant.
Unless the applicable Agreement provides otherwise and
except in the event of a Change in Control, no Option shall
be exercisable prior to the first anniversary of the date of
grant.
(2) An Option may be exercised for all or any portion of the
Stock as to which it is exercisable, provided that no
Partial Exercise of an Option shall be for an aggregate
exercise price of less than $100.00. The Partial Exercise of
an Option shall not cause the expiration, termination or
cancellation of the remaining portion thereof.
(3) An Option shall be exercised by delivering notice to the
Company's principal office, to the attention of its
Secretary. Such notice shall be accompanied by the
applicable Agreement, shall specify the number of shares of
Stock with respect to which the Option is being exercised
and the effective date of the proposed exercise and shall be
signed by the Participant or other person then having the
right to exercise the Option. Payment for Stock purchased
upon the exercise of an Option shall be made on the
effective date of such exercise by one or a combination of
the following means: (i) in cash or by personal check,
certified check, bank cashier's check or wire transfer; (ii)
subject to the approval of the Committee, in Stock owned by
the Participant for at least six months prior to the date of
exercise and valued at their Fair Market Value on the
effective date of such exercise; or (iii) subject to the
approval of the Committee, by such other provision as the
Committee may from time to time authorize.
(4) Certificates for Stock purchased upon the exercise of an
Option shall be issued in the name of the Participant or
other per son entitled to receive such Stock, and delivered
to the Participant or such other person as soon as
practicable following the effective date on which the Option
is exercised.
(5) The Committee shall have the authority to specify, at the
time of grant or, with respect to Non-Qualified Options, at
or after the time of grant, that a Participant shall be
granted a new Non-Qualified Option (a "Reload Option") for a
number of shares of Stock equal to the number of shares of
Stock surrendered by the Participant upon exercise of all or
a part of an Option in the manner described in Section
7(c)(3)(ii) above, subject to the availability of Stock
under the Plan at the time of such exercise; provided,
however, that no Reload Option shall be granted to a
Non-Employee Director. Reload Options shall be subject to
such conditions as may be specified by the Committee in its
discretion, subject to the terms of the Plan.
(d) Limitations on Incentive Stock Options.
(1) To the extent that the aggregate Fair Market Value of Stock
of the Company with respect to which Incentive Stock Options
are exercisable for the first time by a Participant during
any calendar year under the Plan and any other option plan
of the Company (or any Subsidiary) shall exceed $100,000,
such Options shall be treated as Non-Qualified Options. Such
Fair Market Value shall be determined as of the date on
which each such Incentive Stock Option is granted.
(2) No Incentive Stock Option may be granted to an individual
if, at the time of the proposed grant; such individual owns
(or is attributed to own by virtue of the Code) Stock
possessing more than ten (10) percent of the total combined
voting power of all classes of stock of the Company or any
Subsidiary unless (i) the exercise price of such Incentive
Stock Option is at least 110 percent of the Fair Market
Value of a share of Stock at the time such Incentive Stock
Option is granted and (ii) such Incentive Stock Option is
not exercisable after the expiration of five years from the
date such Incentive Stock Option is granted.
(e) Effect of Termination of Employment.
(1) Unless the applicable Agreement provides otherwise, in the
event that the employment, directorship or consultancy
(together, hereinafter referred to as "employment") of a
Participant with the Company shall terminate for any reason
other than Cause, Disability or death, (i) Options granted
to such Participant, to the extent that they are exercisable
at the time of such termination, shall remain exercisable
until the date that is 90 days after such termination, on
which date they shall expire, and (ii) Options granted to
such Participant, to the extent that they were not
exercisable at the time of such termination, shall expire at
the close of business on the date of such termination. The
90 day period described in this Section 7(e)(1) shall be
extended to one year from such termination, in the event of
the Participant's death during such 90 day period.
Notwithstanding the foregoing, no Option shall be
exercisable after the expiration of its term.
(2) Unless the applicable Agreement provides otherwise, in the
event that the employment of a Participant with the Company
shall terminate on account of the Disability or death of the
Participant, (i) Options granted to such Participant, to the
extent that they were exercisable at the time of such
termination, shall remain exercisable until the first
anniversary of such termination, on which date they shall
expire, and (ii) Options granted to such Participant, to the
extent that they were not exercisable at the time of such
termination, shall expire at the close of business on the
date of such termination; provided, however, that no Option
shall be exercisable after the expiration of its term.
(3) In the event of the termination of a Participant's
employment for Cause, all out standing Options granted to
such Participant shall expire as of the commencement of
business on the date of such termination.
8. Restricted Stock.
(a) Issue Date And Vesting Date. At the time of the grant of
Restricted Stock, the Committee shall establish an Issue Date or
Issue Dates and a Vesting Date or Vesting Dates with respect to
such shares of Restricted Stock. The Committee may divide such
shares of Restricted Stock into classes and assign a different
Issue Date and/or Vesting Date for each class. If the grantee is
employed by the Company on an Issue Date (which may be the date
of grant), the specified number of shares of Restricted Stock
shall be issued in accordance with the provisions of Section
8(e). Provided that all conditions to the vesting of Restricted
Stock imposed pursuant to Section 8(b) are satisfied, and except
as provided in Section 8(g), upon the occurrence of the Vesting
Date with respect to Restricted Stock, such Restricted Stock
shall vest and the restrictions of Section 8(c) shall lapse.
(b) Conditions to Vesting. At the time of the grant of Restricted
Stock, the Committee may impose such restrictions or conditions
to the vesting of such Restricted Stock as it, in its absolute
discretion, deems appropriate, including the attainment of
Performance Goals.
(c) Restrictions on Transfer Prior to Vesting. Prior to the vesting
of any Restricted Stock, no transfer of a Participant's rights
with respect to such Restricted Stock, whether voluntary or
involuntary, by operation of law or otherwise, shall be
permitted. Immediately upon any attempt to transfer such rights,
such Restricted Stock, and all of the rights related thereto,
shall be forfeited by the Participant.
(d) Dividends on Restricted Stock. The Committee in its discretion
may require that any dividends or distributions paid on
Restricted Stock be held in escrow until all restrictions on such
Restricted Stock has lapsed.
(e) Issuance of Certificates.
(1) Reasonably promptly after the Issue Date with respect to
Restricted Stock, the Company shall cause to be issued a
certificate, registered in the name of the Participant to
whom such shares of Restricted Stock were granted,
evidencing such shares of Restricted Stock; provided that
the Company shall not cause such a certificate to be issued
unless it has received a power of attorney duly endorsed in
blank with respect to such shares of Restricted Stock. Each
such certificate shall bear the following legend:
THE TRANSFERABILITY OF THIS CERTIFICATE AND THE STOCK
REPRESENTED HEREBY ARE SUBJECT TO THE RESTRICTIONS, TERMS
AND CONDITIONS (INCLUDING FORFEITURE PROVISIONS AND
RESTRICTIONS AGAINST TRANSFER) CONTAINED IN THE
PRICELINE.COM 1999 OMNIBUS PLAN AND AN AGREEMENT ENTERED
INTO BETWEEN THE REGISTERED OWNER OF SUCH STOCK AND
PRICELINE.COM. A COPY OF THE 1999 OMNIBUS PLAN AND
AGREEMENT IS ON FILE WITH THE SECRETARY OF THE COMPANY.
Such legend shall not be removed until such Stock vests
pursuant to the terms hereof.
(2) Each certificate issued pursuant to this Section 8(e),
together with the powers relating to the Restricted Stock
evidenced by such certificate, shall be held by the Company
unless the Committee determines otherwise.
(f) Consequences of Vesting. Upon the vesting of any Restricted Stock
pursuant to the terms hereof, the restrictions of Section 8(c)
shall lapse with respect to such Restricted Stock. Reasonably
promptly after any Restricted Stock vests, the Company shall
cause to be delivered to the Participant to whom such shares of
Restricted Stock were granted a certificate evidencing such
Stock, free of the legend set forth in Section 8(e).
(g) Effect of Termination of Employment. Subject to such other
provision as the Committee may set forth in the applicable
Agreement, and to the Committee's amendment authority pursuant to
Section 4, upon the termination of a Participant's employment for
any reason other than Cause, any and all Stock to which
restrictions on transferability apply shall be immediately
forfeited by the Participant and transferred to, and reacquired
by, the Company; provided that if the Committee, in its sole
discretion, shall within thirty (30) days after such termination
of employment notify the Participant in writing of its decision
not to terminate the Participant's rights in such shares of
Stock, then the Participant shall continue to be the owner of
such shares of Stock subject to such continuing restrictions as
the Committee may prescribe in such notice. In the event of a
forfeiture of Stock pursuant to this section, the Company shall
repay to the Participant (or the Participant's estate) any amount
paid by the Participant for such shares of Stock. In the event
that the Company requires a return of Stock, it shall also have
the right to require the return of all dividends or distributions
paid on such Stock, whether by termination of any escrow
arrangement under which such dividends or distributions are held
or otherwise.
(1) In the event of the termination of a Participant's
employment for Cause, all shares of Restricted Stock granted
to such Participant which have not vested as of the date of
such termination shall immediately be returned to the
Company, together with any dividends or distributions paid
on such shares of Stock, in return for which the Company
shall repay to the Participant any amount paid by the
Participant for such shares of Stock.
(h) Special Provisions Regarding Awards. Notwithstanding anything to
the contrary contained herein, Restricted Stock granted pursuant
to this Section 8 to Executive Officers may be based on the
attainment by the Company (or a Subsidiary or division of the
Company if applicable) of Performance Goals pre-established by
the Committee.
9. Other Stock-Based Awards.
Other forms of Awards valued in whole or in part by reference to, or
otherwise based on, shares of Stock ("Other Stock-Based Awards") may be
granted either alone or in addition to other Awards under the Plan. Subject
to the provisions of the Plan, the Committee shall have sole and complete
authority to determine the persons to whom and the time or times at which
such Other Stock-Based Awards shall be granted, the number of shares of
Stock to be granted pursuant to such Other Stock-Based Awards and all other
conditions of such Other Stock-Based Awards, including the attainment of
Performance Goals.
10. Change in Control.
Notwithstanding anything in the Plan to the contrary, upon the
occurrence of a Change in Control, any Award issued prior to April 25, 2000
carrying a right to exercise that was not previously exercisable and
vested, shall become fully exercisable and vested and the restriction and
forfeiture conditions applicable to any other such Award shall lapse and
such Award shall be deemed fully vested. In the case of any Award made on
or after the aforesaid date, no acceleration of exercisability, vesting or
lapsing shall occur on a Change in Control except to the extent, if any,
provided in the specific Award Agreement or as otherwise determined by the
Committee or the Board. Notwithstanding anything in the Plan to the
contrary, upon the occurrence of a Change in Control, the purchaser(s) of
the Company's assets or stock may, in his, her, or its discretion, deliver
to the holder of an Award the same kind of consideration that is delivered
to the stockholders of the Company as a result of such sale, conveyance or
Change in Control, or the Board may cancel all outstanding Options in
exchange for consideration in cash or in kind which consideration in both
cases shall be equal in value to the higher of (i) the Fair Market Value of
those shares of Stock or other securities the holder of such Option would
have received had the Option been exercised and no disposition of the
shares acquired upon such exercise been made prior to such sale, conveyance
or Change in Control, less the exercise price there for, and (ii) the Fair
Market Value of those shares of Stock or other securities the holder of the
Option would have received had the Option been exercised and no disposition
of the shares acquired upon such exercise been made immediately following
such sale, conveyance or Change in Control, less the exercise price
therefor.
Upon dissolution or liquidation of the Company, all Options and other
Awards granted under this Plan shall terminate, but each holder of an
Option shall have the right, immediately prior to such dissolution or
liquidation, to exercise his or her Option to the extent then exercisable.
11. Rights as a Stockholder.
No person shall have any rights as a stockholder with respect to any
shares of Stock covered by or relating to any Award until the date of
issuance of a certificate with respect to such shares of Stock. Except as
otherwise expressly provided in Section 3(b), no adjustment to any Award
shall be made for dividends or other rights prior to the date such
certificate is issued.
12. No Special Employment Rights; No Right to Award.
Nothing contained in the Plan or any Agreement shall confer upon any
Participant any right with respect to the continuation of employment by the
Company or interfere in any way with the right of the Company, subject to
the terms of any separate employment agreement to the contrary, at any time
to terminate such employment or to increase or decrease the compensation of
the Participant.
No person shall have any claim or right to receive an Award
hereunder. The Committee's granting of an Award to a participant at any
time shall neither require the Committee to grant any other Award to such
Participant or other person at any time or preclude the Committee from
making subsequent grants to such Participant or any other person.
13. Securities Matters.
(a) The Company shall be under no obligation to effect the
registration pursuant to the Securities Act of any interests in
the Plan or any Stock to be issued hereunder or to effect similar
compliance under any state laws. Notwithstanding anything herein
to the contrary, the Company shall not be obligated to cause to
be issued or delivered any certificates evidencing Stock pursuant
to the Plan unless and until the Company is advised by its
counsel that the issuance and delivery of such certificates is in
compliance with all applicable laws, regulations of governmental
authority and the requirements of any securities exchange on
which shares of Stock are traded. The Committee may require, as a
condition of the issuance and delivery of certificates evidencing
shares of Stock pursuant to the terms hereof, that the recipient
of such shares of Stock make such agreements and representations,
and that such certificates bear such legends, as the Committee,
in its sole discretion, deems necessary or desirable.
(b) The transfer of any shares of Stock hereunder shall be effective
only at such time as counsel to the Company shall have determined
that the issuance and delivery of such shares of Stock is in
compliance with all applicable laws, regulations of governmental
authority, the requirements of any securities exchange on which
shares of Stock are traded. The Committee may, in its sole
discretion, defer the effectiveness of any transfer of Stock
hereunder in order to allow the issuance of such Stock to be made
pursuant to registration or an exemption from registration or
other methods for compliance available under federal or state
securities laws. The Committee shall inform the Participant in
writing of its decision to defer the effectiveness of a transfer.
During the period of such deferral in connection with the
exercise of an Option, the Participant may, by written notice,
withdraw such exercise and obtain the refund of any amount paid
with respect thereto.
14. Withholding Taxes.
Whenever shares of Stock are to be delivered pursuant to an Award,
the Company shall have the right to require the Participant to remit to the
Company in cash an amount sufficient to satisfy any federal, state and
local withholding tax requirements related thereto. With the approval of
the Committee, a Participant may satisfy the foregoing requirement by
electing to have the Company withhold from delivery shares of Stock having
a value equal to the amount of tax to be withheld. Such shares of Stock
shall be valued at their Fair Market Value on the date of which the amount
of tax to be withheld is deter mined (the "Tax Date"). Fractional shares of
Stock amounts shall be settled in cash. Such a withholding election may be
made with respect to all or any portion of the Stock to be delivered
pursuant to an Award.
15. Notification of Election Under Section 83(b) of the Code.
If any Participant shall, in connection with the acquisition of Stock
under the Plan, make the election permitted under Section 83(b) of the Code
(i.e., an election to include in gross income in the year of transfer the
amounts specified in Section 83(b)), such Participant shall notify the
Company of such election within 10 days of filing notice of the election
with the Internal Revenue Service, in addition to any filing and a
notification required pursuant to regulation issued under the authority of
Section 83(b) of the Code.
16. Notification Upon Disqualifying Disposition Under Section
421(b) of the Code.
Each Participant shall notify the Company of any disposition of Stock
issued pursuant to the exercise of an Incentive Stock Option under the
circumstances described in Section 421(b) of the Code (relating to certain
disqualifying dispositions), within 10 days of such disposition.
17. Amendment or Termination of the Plan.
The Board may, at any time, suspend or terminate the Plan or revise
or amend it in any respect whatsoever; provided, however, that stockholder
approval shall be required if and to the extent the Board determines that
such approval is appropriate for purposes of satisfying Section 162(m) or
422 of the Code or is otherwise required by law or applicable stock
exchange requirements. Awards may be granted under the Plan prior to the
receipt of such approval but each such grant shall be subject in its
entirety to such approval and no award may be exercised, vested or
otherwise satisfied prior to the receipt of such approval. Nothing herein
shall restrict the Committee's ability to exercise its discretionary
authority pursuant to Section 4, which discretion may be exercised without
amendment to the Plan. No action hereunder may, without the consent of a
Participant, reduce the Participant's rights under any outstanding Award.
18. Transfers Upon Death; Nonassignability.
Upon the death of a Participant, outstanding Awards granted to such
Participant may be exercised only by the executor or administrator of the
Participant's estate or by a person who shall have acquired the right to
such exercise by will or by the laws of descent and distribution. No
transfer of an Award by will or the laws of descent and distribution shall
be effective to bind the Company unless the Committee shall have been
furnished with (a) written notice thereof and with a copy of the will
and/or such evidence as the Committee may deem necessary to establish the
validity of the transfer and (b) an agreement by the transferee to comply
with all the terms and conditions of the Award that are or would have been
applicable to the Participant and to be bound by the acknowledgments made
by the Participant in connection with the grant of the Award.
During a Participant's lifetime, the Committee may permit the
transfer, assignment or other encumbrance of an outstanding Option unless
(y) such Option is an Incentive Stock Option and the Committee and the
Participant intend that it shall retain such status, or (z) such Option is
meant to qualify for the exemptions available under Rule 16b-3,
nontransferability is necessary under Rule 16b-3 in order for the award to
so qualify and the Committee and the Participant intend that it shall
continue to so qualify. Subject to any conditions as the Committee may
prescribe, a Participant may, upon providing written notice to the
Secretary of the Company, elect to transfer any or all Options granted to
such Participant pursuant to the Plan to members of his or her immediate
family, including, but not limited to, children, grandchildren and spouse
or to trusts for the benefit of such immediate family members or to
partnerships in which such family members are the only partners; provided,
however, that no such transfer by any Participant may be made in exchange
for consideration.
19. Expenses and Receipts.
The expenses of the Plan shall be paid by the Company. Any proceeds
received by the Company in connection with any Award will be used for
general corporate purposes.
20. Failure to Comply.
In addition to the remedies of the Company elsewhere provided for
herein, failure by a Participant (or beneficiary) to comply with any of the
terms and conditions of the Plan or the applicable Agreement, unless such
failure is remedied by such Participant (or beneficiary) within ten days
after notice of such failure by the Committee, shall be grounds for the
cancellation and forfeiture of such Award, in whole or in part, as the
Committee, in its absolute discretion, may determine.
21. Effective Date and Term of Plan.
The Plan became effective on the Effective Date and, unless earlier
terminated by the Board, the right to grant Awards under the Plan will
terminate on the tenth anniversary of the Effective Date. Awards
outstanding at Plan termination will remain in effect according to their
terms and the provisions of the Plan.
22. Applicable Law.
Except to the extent preempted by any applicable federal law, the
Plan will be construed and administered in accordance with the laws of the
State of Delaware, without reference to its principles of conflicts of law.
23. Participant Rights.
No Participant shall have any claim to be granted any award under the
Plan, and there is no obligation for uniformity of treatment for
Participants. Except as provided specifically herein, a Participant or a
transferee of an Award shall have no rights as a stockholder with respect
to any shares of Stock covered by any award until the date of the issuance
of a certificate or certificates to him or her for such shares of Stock.
24. Unfunded Status of Awards.
The Plan is intended to constitute an "unfunded" plan for incentive
and deferred compensation. With respect to any payments not yet made to a
Participant pursuant to an Award, nothing contained in the Plan or any
Agreement shall give any such Participant any rights that are greater than
those of a general creditor of the Company.
25. Beneficiary.
A Participant may file with the Committee a written designation of a
beneficiary on such form as may be prescribed by the Committee and may,
from time to time, amend or revoke such designation. If no designated
beneficiary survives the Participant, the executor or administrator of the
Participant's estate shall be deemed to be the grantee's beneficiary.
26. Interpretation.
The Plan is designed and intended to comply with Rule l6b-3 and, to
the extent applicable, with Section 162(m) of the Code, and all provisions
hereof shall be construed in a manner to so comply.
27. Severability.
If any provision of the Plan is held to be invalid or unenforceable, the
other provisions of the Plan shall not be affected but shall be applied as
if the invalid or unenforceable provision had not been included in the
Plan.
