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EXHIBIT 4.1
AMENDED AND RESTATED
1996 LONG-TERM INCENTIVE PLAN
OF
ZAPATA CORPORATION
1. OBJECTIVE. The 1996 Long-Term Incentive Plan (the "Plan") of Zapata
Corporation, a Nevada corporation (the "Company"), is designed to retain key
executives and other selected employees and reward them for making major
contributions to the success of the Company and its Subsidiaries (as hereinafter
defined). These objectives are to be accomplished by making awards under the
Plan and thereby providing Participants (as hereinafter defined) with a
proprietary interest in the growth. and performance of the Company and its
Subsidiaries.
2. DEFINITIONS. As used herein, the terms set forth below shall have the
following respective meanings:
"AWARD" means the grant of any form of stock option, stock
appreciation right stock award or cash award, whether granted singly, in
combination or in tandem, to a Participant pursuant to any applicable terms,
conditions and limitations as the Committee may establish in order to fulfill
the objectives of the Plan.
"AWARD AGREEMENT" means a written agreement between the Company and a
Participant that sets forth the terms, conditions and limitations applicable to
an Award.
"BOARD" means the Board of Directors of the Company.
"CODE" means the Internal Revenue Code of 1986, as amended from time
to time.
"COMMITTEE" means such committee of the Board as is designated by the
Board to administer the Plan, except that if the Board elects to administer the
Plan itself, "Committee" shall refer to the Board. The Committee shall be
constituted to permit the Plan to comply with Rule 16b-3, as hereinafter
defined.
"COMMON STOCK" means the Common Stock par value $.01 per share, of the
Company.
"DIRECTOR" means an individual serving as a member of the
Board.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
from time to time.
"FAIR MARKET VALUE" means, as of a particular date, (i) if the shares
of Common Stock are fisted on a national securities exchange, the closing sales
price per share of Common Stock on the consolidated transaction reporting system
for the principal such national securities
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exchange on that date, or, if there shall have been no such sale so reported on
that date, on the last preceding date on which such a sale was so reported, (ii)
if the shares of Common Stock are not so listed but are quoted in the NASDAQ
National Market System the closing sales price per share of Common Stock on the
NASDAQ National Market System on that date, or, if there shall have been no such
sale so reported on that date, on the last preceding date on which such a sale
was so reported or (iii) if the Common Stock is not so listed or quoted, the
mean between the closing bid and asked price on that date, or, if there are no
quotations available for such date, on the last preceding date on which such
quotations shall be available, as reported by NASDAQ, or, if not reported by
NASDAQ, by the National Quotation Bureau, Inc.
"PARTICIPANT" means an employee of the Company or any of its
Subsidiaries to whom an Award has been made under this Plan.
"RULE 16B-3" means Rule 16b-3 promulgated under the Exchange Act, or
any successor rule.
"SUBSIDIARY" means any corporation of which the Company directly or
indirectly owns shares representing more than 50% of the voting power of all
classes or series of capital stock of such corporation which have the right to
vote generally on matters submitted to a vote of the stockholders of such
corporation.
3. ELIGIBILITY. Employees of the Company and its Subsidiaries eligible
for an Award under this Plan are those who hold positions of responsibility and
whose performance, in the judgment of the Committee, can have a significant
effect on the success of the Company and its Subsidiaries.
4. COMMON STOCK AVAILABLE FOR AWARDS. There shall be available for Awards
granted wholly or partly in Common Stock (including rights or options may be
exercised for or settled in Common Stock) during the term of this Plan an
aggregate of 10,000,000 shares of Common Stock. Notwithstanding the foregoing,
not more than an aggregate of 750,000 shares of Common Stock shall be available
for Awards other than stock options and stock appreciation rights granted at an
exercise or strike price not less than the Fair Market Value on the date of
grant. The Board and the appropriate officers of the Company shall from time to
time take whatever actions are necessary to file required documents with
governmental authorities and stock exchanges and transaction reporting systems
to make shares of Common Stock available for issuance pursuant to Awards. Common
Stock related to Awards that are forfeited or terminated, expire unexercised,
are settled in cash in lieu of Common Stock or in a manner such that all or some
of the shares covered by an Award are not issued to a Participant, or are
exchanged for Awards that do not involve Common Stock, shall immediately become
available for Awards hereunder.
5. ADMINISTRATION. This Plan shall be administered by the Committee,
which shall have full and exclusive power to interpret this Plan and to adopt
such rules, regulations and guidelines for carrying out this Plan as it may deem
necessary or proper, all of which powers shall be exercised in the best
interests of the Company and in keeping with the objectives of this Plan. Unless
otherwise provided in an Award Agreement with respect to a particular award, the
Committee may, in its discretion, provide for the extension of the
exercisability of an Award,
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accelerate the vesting or exercisability of an Award, eliminate or make less
restrictive any restrictions contained in an Award, waive any restriction or
other provision of this Plan or an Award or otherwise amend or modify an Award
in any manner that is either (i) not adverse to the Participant holding such
Award or (ii) consented to by such Participant. The Committee may correct any
defect or supply any omission or reconcile any inconsistency in this Plan or in
any Award in the manner and to the extent the Committee deems necessary or
desirable to carry it into effect. Any decision of the Committee in the
interpretation and administration of this Plan shall lie within its sole and
absolute discretion and shall be final, conclusive and binding on all parties
concerned. No member of the Committee or officer of the Company to whom it has
delegated authority in accordance with the provisions of Paragraph 6 of this
Plan shall be liable for anything done or omitted to be done by him or her, by
any member of the Committee or by any officer of the Company in connection with
the performance of any duties under this Plan, except for his or her own willful
misconduct or as expressly provided by statute.
6. DELEGATION OF AUTHORITY. The Committee may delegate to the Chief
Executive Officer and to other senior officers of the Company its duties under
this Plan pursuant to such conditions or limitations as the Committee may
establish. except that the Committee may not delegate to any person the
authority to grant Awards to, or take other action with respect to, Participants
who are subject to Section 16 of the Exchange Act.
7. AWARDS. The Committee shall determine the type or types of Awards to
be made to each Participant under this Plan. Each Award made hereunder shall be
embodied in an Award Agreement, which shall contain such terms, conditions and
limitations as shall be determined by the Committee in its sole discretion and
shall be signed by the Participant and by the Chief Executive Officer, the Chief
Operating Officer or any Vice President of the Company for and on behalf of the
Company. Awards may consist of those listed in this Paragraph 7 and may be
granted singly, in combination or in tandem. Awards may also be made in
combination or in tandem with, in replacement of, or as alternatives to, grants
or rights under this Plan or any other employee plan of the Company or any of
its Subsidiaries, including the plan of any acquired entity. An Award may
provide for the granting or issuance of additional, replacement or alternative
Awards upon the occurrence of specified events, including the exercise of the
original Award. An Award may provide that to the extent that the acceleration of
vesting or any payment made to a Participant under this Plan in the event of a
change of control of the Company is subject to federal income, excise or other
tax at a rate above the rate ordinarily applicable to like payments paid in the
ordinary course of business ("Penalty Tax"), whether as a result of the
provisions of Sections 280G and 4999 of the Code, any similar or analogous
provisions of any statute adopted subsequent to the date hereof, or otherwise,
then the Company shall be obligated to Pay such Participant an additional amount
of cash (the "Additional Amount") such that the net amount received by such
Participant, after paying any applicable Penalty Tax and any federal or state
income tax on such Additional Amount, shall be equal to the amount that such
Participant would have received if such Penalty Tax were not applicable.
Notwithstanding anything herein to the contrary, no Participant may be granted,
during any three-year period, Awards consisting of stock options or stock
appreciation rights exercisable for more than 12.5% of the shares of Common
Stock reserved for issuance under the Plan.
(a) STOCK OPTION. An Award may consist of a right to purchase a
specified number of shares of Common Stock at a specified price that is not less
than the greater of (i) the Fair
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Market Value of the Common Stock on the date of grant and (ii) the par value of
the Common Stork on the date of grant. A stock option may be in the form of an
incentive stock option ("ISO") which, in addition to being subject to applicable
terms, conditions and limitations established by the Committee, complies with
Section 422 of the Code.
(b) STOCK APPRECIATION RIGHT. An Award may consist of a right to
receive a payment, in cash or Common Stock, equal to the excess of the Fair
Market Value or other specified valuation of a specified number of shares of
Common Stock on the date the stock appreciation right ("SAR") is exercised over
a specified strike price as set forth in the applicable Award Agreement.
(c) STOCK AWARD. An Award may consist of Common Stock or may be
denominated in units of Common Stock. All or part of any stock award may be
subject to conditions established by the Committee, and set forth in the Award
Agreement, which may include, but are not limited to, continuous service with
the Company and its Subsidiaries, achievement of specific business objectives,
increases in specified indices, attaining specified growth rates and other
comparable measurements of performance. Such Awards may be based on Fair Market
Value or other specified valuations. The certificates evidencing shares of
Common Stock issued in connection with a stock award shall contain appropriate
legends and restrictions describing the terms and conditions of the restrictions
applicable thereto.
(d) CASH AWARD. An Award may be denominated in cash with the amount of
the eventual payment subject to future service and such other restrictions and
conditions as may be established by the Committee, and set forth in the Award
Agreement including, but not limited to, continuous service with the Company and
its Subsidiaries, achievement of specific business objectives, increases in
specified indices, attaining specified growth rates and other comparable
measurements of performance.
8. PAYMENT OF AWARDS.
(a) GENERAL. Payment of Awards may be made in the form of cash or
Common Stock or combinations thereof and may include such restrictions as the
Committee shall determine, including in the case of Common Stock, restrictions
on transfer and forfeiture provisions. As used herein, "Restricted Stock" means
Common Stock that is restricted or subject to forfeiture provisions.
(b) DEFERRAL. With the approval of the Committee, payments may be
deferred, either in the form of installments or a future lump-sum payment. The
Committee may permit selected Participants to elect to defer payments of some or
all types of Awards in accordance with procedures established by the Committee.
Any deferred payment, whether elected by the Participant or specified by the
Award Agreement or by the Committee, may be forfeited if and to the extent that
the Award Agreement so provides.
(c) DIVIDENDS AND INTEREST. Dividends or dividend equivalent rights
may be extended to and made part of any Award denominated in Common Stock or
units of Common Stock, subject to such terms, conditions and restrictions as the
Committee may establish. The Committee may also establish rules and procedures
for the crediting of interest on deferred cash
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payments and dividend equivalents for deferred payments denominated in Common
Stock or units of Common Stock.
(d) SUBSTITUTION OF AWARDS. At the discretion of the Committee, a
Participant may be offered an election to substitute an Award for another Award
or Awards of the same or different type.
9. STOCK OPTION EXERCISE. The Price at which shares of Common Stock may
be purchased under a stock option shall be paid in full at the time of exercise
in cash or, if permitted by the Committee, by means of tendering Common Stock or
surrendering another Award, including Restricted Stock, valued at Fair Market
Value on the date of exercise, or any combination thereof. The Committee shall
determine acceptable methods for tendering Common Stock or other Awards to
exercise a stock option as it deems appropriate. If permitted by the Committee,
payment may be made by successive exercises by the Participant. The Committee
may provide for loans from the Company to permit the exercise or purchase of
Awards and may provide for procedures to permit the exercise or purchase of
Awards by use of the proceeds to be received from the sale of Common Stock
issuable pursuant to an Award. Unless otherwise provided in the applicable Award
Agreement, in the event shares of Restricted Stock are tendered as consideration
for the exercise of a stock option, a number of the shares issued upon the
exercise of the stock option, equal to the number of shares of Restricted Stock
used as consideration therefor, shall be subject to the same restrictions as the
Restricted Stock so submitted as well as any additional restrictions that may be
imposed by the Committee.
10. TAX WITHHOLDING. The Company shall have the right to deduct applicable
taxes from any Award payment and withhold, at the time of delivery or vesting of
cash or shares of Common Stock under this Plan, an appropriate amount of cash or
number of shares of Common Stock or a combination thereof for payment of taxes
required by law or to take such other action as may be necessary in the opinion
of the Company to satisfy all obligations for withholding of such taxes. The
Committee may also permit withholding to be satisfied by the transfer to the
Company of shares of Common Stock theretofore owned by the holder of the Award
with respect to which withholding is required. If shares of Common Stock are
used to satisfy tax withholding, such shares shall be valued based on the Fair
Market Value when the tax withholding is required to be made.
11. AMENDMENT, MODIFICATION, SUSPENSION OR TERMINATION. The Board may
amend, modify, suspend or terminate this Plan for the purpose of meeting or
addressing any changes in legal requirements or for any other purpose permitted
by law except that (i) no amendment or alteration that would impair the rights
of any Participant under any Award previously granted to such Participant shall
be made, without such Participant's consent and (ii) no amendment or alteration
shall be effective prior to approval by the Company's stockholders to the extent
such approval is required by applicable legal requirements.
12. TERMINATION OF EMPLOYMENT. Upon the termination of employment by a
Participant, any unexercised, deferred or unpaid Awards shall be treated as
provided in the specific Award Agreement evidencing the Award. In the event of
such a termination. the Committee may, in its discretion, provide for the
extension of the exercisability of an Award, accelerate the vesting or
exercisability of an Award, eliminate or make less restrictive any restrictions
contained in an
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Award, waive any restriction or other provision of this Plan or an Award or
otherwise amend or modify the Award in any manner that is either (i) not adverse
to such Participant or (ii) consented to by such Participant.
13. ASSIGNABILITY. Unless otherwise determined by the Committee and
provided in the Award Agreement, no Award or any other benefit under this Plan
constituting a derivative security within the meaning of Rule 16a-l(c) under the
Exchange Act shall be assignable or otherwise transferable except by will or the
laws of descent and distribution or pursuant to a qualified domestic relations
order as defined by the Code or Title I of the Employee Retirement Income
Security Act, or the rules thereunder. The Committee may prescribe and include
in applicable Award Agreements other restrictions on transfer. Any attempted
assignment of an Award or any other benefit under this Plan in violation of this
Paragraph 13 shall be null and void.
14. ADJUSTMENTS.
(a) The existence of outstanding Awards shall not affect in any manner
the right or power of the Company or its stockholders to make or authorize any
or all adjustments, recapitalizations, reorganizations or other changes in the
capital stock of the Company or its business or any merger or consolidation of
the Company, or any issue of bonds, debentures, preferred or prior preference
stock (whether or not such issue is prior to, on a parity with or junior to the
Common Stock) or the dissolution or liquidation of the Company, or any sale or
transfer of all or any part of its assets or business, or any other corporate
act or proceeding of any kind, whether or not of a character similar to that of
the acts or proceedings enumerated above.
(b) In the event of any subdivision or consolidation of outstanding
shares of Common Stock or declaration of a dividend payable in shares of Common
Stock or capital reorganization or reclassification or other transaction
involving an increase or reduction in the number of outstanding shares of Common
Stock. the Committee may adjust proportionally (i) the number of shares of
Common Stock reserved under this Plan and covered by outstanding Awards
denominated in Common Stock or units of Common Stock; (ii) the exercise or other
price in respect of such Awards; and (iii) the appropriate Fair Market Value and
other price determinations for such Awards. In the event of any consolidation or
merger of the Company with another corporation or entity or the adoption by the
Company of a plan of exchange affecting the Common Stock or any distribution to
holders of Common Stock of securities or property (other than normal cash
dividends or dividends payable in Common Stock), the Committee shall make such
adjustments or other provisions as it may deem equitable, including adjustments
to avoid fractional shares, to give proper effect to such event. In the event of
a corporate merger, consolidation, acquisition of property or stock, separation,
reorganization or liquidation, the Committee shall be authorized to issue or
assume stock options, regardless of whether in a transaction to which Section
424(a) of the Code applies, by means of substitution of new options for
previously issued options or an assumption of previously issued options, or to
make provision for the acceleration of the exercisability of, or lapse of
restrictions with respect to, Awards and the termination of unexercised options
in connection with such transaction.
15. RESTRICTIONS. No Common Stock or other form of payment shall be issued
with respect to any Award unless the Company shall be satisfied based on the
advice of its counsel that
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such issuance will be in compliance with applicable federal and state securities
laws. Certificates evidencing shares of Common Stock delivered under this Plan
may be subject to such stop 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 securities exchange or
transaction reporting system upon which the Common Stock is then listed and any
applicable federal and state securities law. The Committee may cause a legend or
legends to be placed upon any such certificates to make appropriate reference to
such restrictions.
16. UNFUNDED PLAN. Insofar as it provides for Awards of cash, Common Stock
or rights thereto, this Plan shall be unfunded. Although bookkeeping accounts
may be established with respect to Participants who are entitled to cash, Common
Stock or rights thereto under this Plan, any such accounts shall be used merely
as a bookkeeping convenience. The Company shall not be required to segregate any
assets that may at any time be represented by cash, Common Stock or rights
thereto, nor shall this Plan be construed as providing for such segregation, nor
shall the Company or the Board or the Committee be deemed to be a trustee of any
cash, Common Stock or rights thereto to be granted under this Plan. Any
liability or obligation of the Company to any Participant with respect to a
grant of cash, Common Stock or rights thereto under this Plan shall be based
solely upon any contractual obligations that may be created by this Plan and any
Award Agreement, and no such liability or obligation of the Company shall be
deemed to be secured by any pledge or other encumbrance on any property of the
Company. Neither the Company nor the Board nor the Committee shall be required
to give any security or bond for the performance of any obligation that may be
created by this Plan.
17. GOVERNING LAW. This Plan and all determinations made and actions taken
pursuant hereto, to the extent not otherwise governed by mandatory provisions of
the Code or the securities laws of the United States, shall be governed by and
construed in accordance with the laws of the State of Nevada.
18. EFFECTIVE DATE OF PLAN. The adoption of this Plan is expressly
conditioned upon the approval by the holders of a majority of shares of Common
Stock and the Company's $2 Preference Stock present, or represented. and
entitled to vote on the matter, voting together as a single class. If the
stockholders of the Company should fail so to approve this Plan, this Plan shall
be of no force or effect.
Zapata Corporation
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