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EXHIBIT 10.25
ENERGY PARTNERS, LTD.
2000 LONG TERM STOCK INCENTIVE PLAN
1. Purposes.
The purposes of the 2000 Long Term Stock Incentive Plan are to advance
the interests of Energy Partners, Ltd. and its shareholders by providing a means
to attract, retain, and motivate employees of the Company upon whose judgment,
initiative and efforts the continued success, growth and development of the
Company is dependent.
2. Definitions.
For purposes of the Plan, the following terms shall be defined as set
forth below:
(a) "Affiliate" means any entity other than the Company and its
Subsidiaries that is designated by the Board or the Committee as a participating
employer under the Plan; provided that the Company directly or indirectly owns
at least 20% of the combined voting power of all classes of stock of such entity
or at least 20% of the ownership interests in such entity.
(b) "Award" means any Option or Performance Share granted to an
Eligible Person under the Plan.
(c) "Award Agreement" means any written agreement, contract, or other
instrument or document evidencing an Award.
(d) "Beneficiary" means the person, persons, trust or trusts which
have been designated by the Eligible Person in his or her most recent written
beneficiary designation filed with the Company to receive the benefits specified
under this Plan upon the death of the Eligible Person, or, if there is no
designated Beneficiary or surviving designated Beneficiary, then the person,
persons, trust or trusts entitled by will or the laws of descent and
distribution to receive such benefits.
(e) "Board" means the Board of Directors of the Company.
(f) "Code" means the Internal Revenue Code of 1986, as amended from
time to time. References to any provision of the Code shall be deemed to include
successor provisions thereto and regulations thereunder.
(g) "Committee" means the Compensation Committee of the Board, or such
other Board committee as may be designated by the Board to administer the Plan;
provided,
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however, that the Committee shall consist of two or more directors of the
Company, each of whom is a "non-employee director" within the meaning of Rule
16b-3 under the Exchange Act, to the extent applicable.
(h) "Company" means Energy Partners, Ltd., a corporation organized
under the laws of Delaware, or any successor corporation.
(i) "Eligible Person" means an employee of the Company, a Subsidiary
or an Affiliate, including any director who is an employee, or a consultant to
the Company, a Subsidiary or an Affiliate.
(j) "Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time. References to any provision of the Exchange Act shall
be deemed to include successor provisions thereto and regulations thereunder.
(k) "Fair Market Value" means, with respect to Shares or other
property, the fair market value of such Shares or other property determined by
such methods or procedures as shall be established from time to time by the
Committee. If the Shares are listed on any established stock exchange or a
national market system, unless otherwise determined by the Committee in good
faith, the Fair Market Value of a Share shall mean the closing price of the
Share on the date on which it is to be valued hereunder (or, if the Shares were
not traded on that day, the next preceding day that the Shares were traded) on
the principal exchange on which the Shares are traded, as such prices are
officially quoted on such exchange.
(l) "ISO" means any option intended to be and designated as an
incentive stock option within the meaning of Section 422 of the Code.
(m) "NQSO" means any Option that is not an ISO.
(n) "Option" means a right, granted under Section 5(b), to purchase
Shares.
(o) "Participant" means an Eligible Person who has been granted an
Award under the Plan.
(p) "Performance Share" means a performance share granted under
Section 5(c).
(q) "Plan" means this 2000 Long Term Stock Incentive Plan.
(r) "Rule 16b-3" means Rule 16b-3, as from time to time in effect and
applicable to the Plan and Participants, promulgated by the Securities and
Exchange Commission under Section 16 of the Exchange Act.
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(s) "Shares" means common stock, par value $0.01 per share, of the
Company.
(t) "Subsidiary" means any corporation (other than the Company) in an
unbroken chain of corporations beginning with the Company if each of the
corporations (other than the last corporation in the unbroken chain) owns shares
possessing 50% or more of the total combined voting power of all classes of
stock in one of the other corporations in the chain.
3. Administration.
(a) Authority of the Committee. The Plan shall be administered by the
Committee, and the Committee shall have full and final authority to take the
following actions, in each case subject to and consistent with the provisions of
the Plan:
(i) to select Eligible Persons to whom Awards may be granted;
(ii) to designate Affiliates;
(iii) to determine the type or types of Awards to be granted to each
Eligible Person;
(iv) to determine the type and number of Awards to be granted, the
number of Shares to which an Award may relate, the terms and conditions of
any Award granted under the Plan (including, but not limited to, any
exercise price and any bases for adjusting such exercise price, any
restriction or condition, any schedule for lapse of restrictions or
conditions relating to transferability or forfeiture, exercisability, or
settlement of an Award, and waiver or accelerations thereof, and waivers of
performance conditions relating to an Award, based in each case on such
considerations as the Committee shall determine), and all other matters to
be determined in connection with an Award;
(v) to determine whether, to what extent, and under what circumstances
an Award may be settled, or the exercise price of an Award may be paid, in
cash, Shares, other Awards, or other property, or an Award may be canceled,
forfeited, exchanged, or surrendered;
(vi) to determine whether, to what extent, and under what
circumstances cash, Shares, other Awards, or other property payable with
respect to an Award will be deferred either automatically, at the election
of the Committee, or at the election of the Eligible Person;
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(vii) to determine whether, to what extent, and under what
circumstances any cash, Shares, other Awards, or other property payable on
a deferred basis will be adjusted for interest or earnings equivalents and,
if so, the basis for determining such equivalents;
(viii) to prescribe the form of each Award Agreement, which need not
be identical for each Eligible Person;
(ix) to adopt, amend, suspend, waive, and rescind such rules and
regulations and appoint such agents as the Committee may deem necessary or
advisable to administer the Plan;
(x) to correct any defect or supply any omission or reconcile any
inconsistency in the Plan and to construe and interpret the Plan and any
Award, rules and regulations, Award Agreement, or other instrument
hereunder;
(xi) to accelerate the exercisability or vesting of all or any portion
of any Award or to extend the period during which an Award is exercisable;
and
(xii) to make all other decisions and determinations as may be
required under the terms of the Plan or as the Committee may deem necessary
or advisable for the administration of the Plan.
(b) Manner of Exercise of Committee Authority. The Committee shall
have sole discretion in exercising its authority under the Plan. Any action of
the Committee with respect to the Plan shall be final, conclusive, and binding
on all persons, including the Company, Subsidiaries, Affiliates, Eligible
Persons, any person claiming any rights under the Plan from or through any
Eligible Person, and shareholders. The express grant of any specific power to
the Committee, and the taking of any action by the Committee, shall not be
construed as limiting any power or authority of the Committee. The Committee may
delegate to officers or managers of the Company or any Subsidiary or Affiliate
the authority, subject to such terms as the Committee shall determine, to
perform administrative functions and, with respect to Awards granted to persons
not subject to Section 16 of the Exchange Act, to perform such other functions
as the Committee may determine, to the extent permitted under Rule 16b-3 (if
applicable) and applicable law.
(c) Limitation of Liability. Each member of the Committee shall be
entitled to, in good faith, rely or act upon any report or other information
furnished to him or her by any officer or other employee of the Company or any
Subsidiary or Affiliate, the Company's independent certified public accountants,
or other professional retained by the Company to assist in the administration of
the Plan. No member of the Committee, nor any officer or employee of the Company
acting on behalf of the Committee, shall be personally liable for any
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action, determination, or interpretation taken or made in good faith with
respect to the Plan, and all members of the Committee and any officer or
employee of the Company acting on their behalf shall, to the extent permitted by
law, be fully indemnified and protected by the Company with respect to any such
action, determination, or interpretation.
(d) Limitation on Committee's Discretion. Anything in this Plan to the
contrary notwithstanding, in the case of any Award which is intended to qualify
as "performance-based compensation" within the meaning of Section 162(m)(4)(C)
of the Code, unless the Award Agreement specifically provides otherwise, the
Committee shall have no discretion to increase the amount of compensation
payable under the Award to the extent such an increase would cause the Award to
lose its qualification as such performance-based compensation.
(e) Quorum, Acts of Committee. A majority of the Committee shall
constitute a quorum, and the acts of a majority of the members present at any
meeting at which a quorum is present, or acts approved in writing by all of the
members, shall be acts of the Committee.
4. Shares Subject to the Plan.
(a) Subject to adjustment as provided in Section 4(c) hereof, the
total number of Shares reserved for issuance in connection with Awards under the
Plan shall be [10% of outstanding shares at closing, including Ms. Baer's
options]. No Award may be granted if the number of Shares to which such Award
relates, when added to the number of Shares previously issued under the Plan,
exceeds the number of Shares reserved under the preceding sentence. If any
Awards are forfeited, canceled, terminated, exchanged or surrendered or such
Award is settled in cash or otherwise terminates without a distribution of
Shares to the Participant, any Shares counted against the number of Shares
reserved and available under the Plan with respect to such Award shall, to the
extent of any such forfeiture, settlement, termination, cancellation, exchange
or surrender, again be available for Awards under the Plan. Upon the exercise of
any Award granted in tandem with any other Awards, such related Awards shall be
canceled to the extent of the number of Shares as to which the Award is
exercised.
(b) Subject to adjustment as provided in Section 4(c) hereof, the
maximum number of Shares with respect to which Options may be granted during a
calendar year to any Eligible Person under this Plan shall be 100,000 Shares.
(c) In the event that the Committee shall determine that any dividend
in Shares, recapitalization, Share split, reverse split, reorganization, merger,
consolidation, spin-off, combination, repurchase, or share exchange, or other
similar corporate transaction or event, affects the Shares such that an
adjustment is appropriate in order to prevent dilution or enlargement of the
rights of Eligible Persons under the Plan, then the Committee shall make
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such equitable changes or adjustments as it deems appropriate and, in such
manner as it may deem equitable, adjust any or all of (i) the number and kind of
shares which may thereafter be issued under the Plan, (ii) the number and kind
of shares, other securities or other consideration issued or issuable in respect
of outstanding Awards, and (iii) the exercise price relating to any Award;
provided, however, in each case that, with respect to ISOs, such adjustment
shall be made in accordance with Section 424(a) of the Code, unless the
Committee determines otherwise. In addition, the Committee is authorized to make
adjustments in the terms and conditions of, and the criteria and performance
objectives included in, Awards in recognition of unusual or non-recurring events
(including, without limitation, events described in the preceding sentence)
affecting the Company or any Subsidiary or Affiliate or the financial statements
of the Company or any Subsidiary or Affiliate, or in response to changes in
applicable laws, regulations, or accounting principles; provided, however, that,
in the case of an Award which is intended to qualify as "performance-based
compensation" within the meaning of Section 162(m)(4)(C) of the Code, such
authority shall be subject to Section 3(d) hereof.
(d) Any Shares distributed pursuant to an Award may consist, in whole
or in part, of authorized and unissued Shares or treasury Shares including
Shares acquired by purchase in the open market or in private transactions.
5. Specific Terms of Awards.
(a) General. Awards may be granted on the terms and conditions set
forth in this Section 5. In addition, the Committee may impose on any Award or
the exercise thereof, at the date of grant or thereafter (subject to Section
8(d)), such additional terms and conditions, not inconsistent with the
provisions of the Plan, as the Committee shall determine, including terms
regarding forfeiture of Awards or continued exercisability of Awards in the
event of termination of employment by the Eligible Person.
(b) Options. The Committee is authorized to grant Options, which may
be NQSOs or ISOs, to Eligible Persons on the following terms and conditions:
(i) Exercise Price. The exercise price per Share purchasable under an
Option shall be determined by the Committee, and the Committee may, without
limitation, set an exercise price that is based upon achievement of
performance criteria if deemed appropriate by the Committee.
(ii) Option Term. The term of each Option shall be determined by the
Committee.
(iii) Time and Method of Exercise. The Committee shall determine at
the date of grant or thereafter the time or times at which an Option may be
exercised in whole
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or in part (including, without limitation, upon achievement of performance
criteria if deemed appropriate by the Committee), the methods by which such
exercise price may be paid or deemed to be paid (including, without
limitation, broker-assisted exercise arrangements), the form of such
payment (including, without limitation, cash, Shares, notes or other
property), and the methods by which Shares will be delivered or deemed to
be delivered to Eligible Persons.
(iv) ISOs. The terms of any ISO granted under the Plan shall comply in
all respects with the provisions of Section 422 of the Code, including but
not limited to the requirement that the ISO shall be granted within ten
years from the earlier of the date of adoption or shareholder approval of
the Plan. ISOs may only be granted to employees of the Company or a
Subsidiary.
(c) Performance Shares. The Committee is authorized to grant
Performance Shares to Eligible Persons on the following terms and conditions:
(i) Performance Period and Criteria. The Committee shall determine a
performance period (the "Performance Period") of one or more years and
shall determine the performance objectives for grants of Performance
Shares. Performance objectives may vary from Eligible Person to Eligible
Person and shall be based upon one or more of the following performance
criteria as the Committee may deem appropriate: total stockholder return,
earnings, earnings per share, operating income, net income, pro forma net
income, return on stockholders' equity, return on designated assets, net
asset value, economic value added, revenues, expenses, operating profit
margin, operating cash flow, cash flow per share, and net profit margin.
The performance objectives may be determined by reference to the
performance of the Company, or of a Subsidiary or Affiliate, or of a
division or unit of any of the foregoing. Performance Periods may overlap
and Eligible Persons may participate simultaneously with respect to
Performance Shares for which different Performance Periods are prescribed.
(ii) Award Value. At the beginning of a Performance Period, the
Committee shall determine for each Eligible Person or group of Eligible
Persons with respect to that Performance Period the range of number of
Shares, if any, which may be fixed or may vary in accordance with such
performance or other criteria specified by the Committee, which shall be
paid to an Eligible Person as an Award if the relevant measure of Company
performance for the Performance Period is met.
(iii) Significant Events. If during the course of a Performance Period
there shall occur significant events as determined by the Committee which
the Committee expects to have a substantial effect on a performance
objective during such period, the Committee may revise such objective;
provided, however, that, in the case of an Award
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which is intended to qualify as "performance-based compensation" within the
meaning of Section 162(m)(4)(C) of the Code, such authority shall be
subject to Section 3(d) hereof.
(iv) Forfeiture. Except as otherwise determined by the Committee, at
the date of grant or thereafter, upon termination of employment during the
applicable Performance Period, Performance Shares for which the Performance
Period was prescribed shall be forfeited; provided, however, that the
Committee may provide, by rule or regulation or in any Award Agreement, or
may determine in an individual case, that restrictions or forfeiture
conditions relating to Performance Shares will be waived in whole or in
part in the event of terminations resulting from specified causes, and the
Committee may in other cases waive in whole or in part the forfeiture of
Performance Shares.
(v) Payment. Each Performance Share may be paid in whole Shares, or
cash, or a combination of Shares and cash either as a lump sum payment or
in installments, all as the Committee shall determine, at the time of grant
of the Performance Share or otherwise, commencing as soon as practicable
after the end of the relevant Performance Period. The Committee must
certify in writing prior to the payment of any Performance Share that the
performance objectives and any other material terms were in fact satisfied.
6. Certain Provisions Applicable to Awards.
(a) Stand-Alone, Additional, Tandem and Substitute Awards. Awards
granted under the Plan may, in the discretion of the Committee, be granted to
Eligible Persons either alone or in addition to, in tandem with, or in exchange
or substitution for, any other Award granted under the Plan or any award granted
under any other plan or agreement of the Company, any Subsidiary or Affiliate,
or any business entity to be acquired by the Company or a Subsidiary or
Affiliate, or any other right of an Eligible Person to receive payment from the
Company or any Subsidiary or Affiliate. Awards may be granted in addition to or
in tandem with such other Awards or awards, and may be granted either as of the
same time as or a different time from the grant of such other Awards or awards.
The per Share exercise price of any Option which is granted in connection with
the substitution of awards granted under any other plan or agreement of the
Company or any Subsidiary or Affiliate or any business entity to be acquired by
the Company or any Subsidiary or Affiliate, shall be determined by the
Committee, in its discretion.
(b) Terms of Awards. The term of each Award granted to an Eligible
Person shall be for such period as may be determined by the Committee; provided,
however, that in no event shall the term of any ISO exceed a period of ten years
from the date of its grant (or such shorter period as may be applicable under
Section 422 of the Code).
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(c) Form of Payment Under Awards. Subject to the terms of the Plan and
any applicable Award Agreement, payments to be made by the Company or a
Subsidiary or Affiliate upon the grant, maturation, or exercise of an Award may
be made in such forms as the Committee shall determine at the date of grant or
thereafter, including, without limitation, cash, Shares, or other property, and
may be made in a single payment or transfer, in installments, or on a deferred
basis. The Committee may make rules relating to installment or deferred payments
with respect to Awards, including the rate of interest or earnings equivalents
to be credited with respect to such payments.
(d) Nontransferability. Unless otherwise set forth by the Committee in
an Award Agreement, Awards shall not be transferable by an Eligible Person
except by will or the laws of descent and distribution (except pursuant to a
Beneficiary designation) and shall be exercisable during the lifetime of an
Eligible Person only by such Eligible Person or his or her guardian or legal
representative. An Eligible Person's rights under the Plan may not be pledged,
mortgaged, hypothecated, or otherwise encumbered, and shall not be subject to
claims of the Eligible Person's creditors.
7. Change of Control Provisions.
(a) Acceleration of Exercisability and Lapse of Restrictions. In the
event of a Change of Control, the following acceleration provisions shall apply
unless otherwise provided by the Committee at the time of the Award grant:
All outstanding Awards pursuant to which the Participant may have rights
the exercise of which is restricted or limited, shall become fully
exercisable at the time of the Change of Control. Unless the right to lapse
of restrictions or limitations is waived or deferred by a Participant prior
to such lapse, all restrictions or limitations (including risks of
forfeiture and deferrals) on outstanding Awards subject to restrictions or
limitations under the Plan shall lapse, and all performance criteria and
other conditions to payment of Awards under which payments of cash, Shares
or other property are subject to conditions shall be deemed to be achieved
or fulfilled and shall be waived by the Company at the time of the Change
of Control.
(b) Definitions of Certain Terms. For purposes of this Section 7, the
following definitions, in addition to those set forth in Section 2, shall apply:
(i) "Change of Control" means and shall be deemed to have occurred if:
(a) any person (within the meaning of the Exchange Act), other
than the Company, a Related Party or Evercore Capital Partners, L.P.
or its affiliates or any person to whom Evercore Capital Partners, L.P
and its affiliates transfer all of their interests in the Company, is
or becomes the "beneficial owner" (as
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defined in Rule 13d-3 under the Exchange Act), directly or indirectly,
of Voting Securities representing 25 percent or more of the total
voting power of all the then-outstanding Voting Securities; or
(b) the individuals who, as of the effective date of the Plan,
constitute the Board, together with those who first become directors
subsequent to such date and whose recommendation, election or
nomination for election to the Board was approved by a vote of at
least a majority of the directors then still in office who either were
directors as of the effective date of the Plan or whose
recommendation, election or nomination for election was previously so
approved (the "Continuing Directors"), cease for any reason to
constitute a majority of the members of the Board; or
(c) a merger, consolidation, recapitalization or reorganization
of the Company or a Subsidiary, reverse split of any class of Voting
Securities, or an acquisition of securities or assets by the Company
or a Subsidiary is consummated, other than (I) any such transaction in
which the holders of outstanding Voting Securities immediately prior
to the transaction receive (or, in the case of a transaction involving
a Subsidiary and not the Company, retain), with respect to such Voting
Securities, voting securities of the surviving or transferee entity
representing more than 50 percent of the total voting power
outstanding immediately after such transaction, with the voting power
of each such continuing holder relative to other such continuing
holders not substantially altered in the transaction, or (II) any such
transaction which would result in a Related Party beneficially owning
more than 50 percent of the voting securities of the surviving entity
outstanding immediately after such transaction; or
(d) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition
by the Company of all or substantially all of the Company's assets
other than any such transaction which would result in a Related Party
owning or acquiring more than 50 percent of the assets owned by the
Company immediately prior to the transaction.
(ii) "Related Party" means (a) a majority-owned subsidiary of the
Company; (b) an employee or group of employees of the Company or any
majority-owned subsidiary of the Company; (c) a trustee or other fiduciary
holding securities under an employee benefit plan of the Company or any
majority-owned subsidiary of the Company; or (d)
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a corporation owned directly or indirectly by the stockholders of the
Company in substantially the same proportion as their ownership of Voting
Securities.
(iii) "Voting Securities" means any securities of the Company which
carry the right to vote generally in the election of directors.
8. General Provisions.
(a) Compliance with Legal and Trading Requirements. The Plan, the
granting and exercising of Awards thereunder, and the other obligations of the
Company under the Plan and any Award Agreement, shall be subject to all
applicable federal and state laws, rules and regulations, and to such approvals
by any regulatory or governmental agency as may be required. The Company, in its
discretion, may postpone the issuance or delivery of Shares under any Award
until completion of such stock exchange or market system listing or registration
or qualification of such Shares or other required action under any state or
federal law, rule or regulation as the Company may consider appropriate, and may
require any Participant to make such representations and furnish such
information as it may consider appropriate in connection with the issuance or
delivery of Shares in compliance with applicable laws, rules and regulations. No
provisions of the Plan shall be interpreted or construed to obligate the Company
to register any Shares under federal or state law.
(b) No Right to Continued Employment or Service. Neither the Plan nor
any action taken thereunder shall be construed as giving any employee or
director the right to be retained in the employ or service of the Company or any
of its Subsidiaries or Affiliates, nor shall it interfere in any way with the
right of the Company or any of its Subsidiaries or Affiliates to terminate any
employee's or director's employment or service at any time.
(c) Taxes. The Company or any Subsidiary or Affiliate is authorized to
withhold from any Award granted, any payment relating to an Award under the
Plan, including from a distribution of Shares, or any payroll or other payment
to an Eligible Person, amounts of withholding and other taxes due in connection
with any transaction involving an Award, and to take such other action as the
Committee may deem advisable to enable the Company and Eligible Persons to
satisfy obligations for the payment of withholding taxes and other tax
obligations relating to any Award. This authority shall include authority to
withhold or receive Shares or other property and to make cash payments in
respect thereof in satisfaction of an Eligible Person's tax obligations.
(d) Changes to the Plan and Awards. The Board may amend, alter,
suspend, discontinue, or terminate the Plan or the Committee's authority to
grant Awards under the Plan without the consent of shareholders of the Company
or Participants, except that any such amendment, alteration, suspension,
discontinuation, or termination shall be subject to the approval of the
Company's shareholders to the extent such shareholder approval is required
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under Section 422 of the Code; provided, however, that, without the consent of
an affected Participant, no amendment, alteration, suspension, discontinuation,
or termination of the Plan may materially and adversely affect the rights of
such Participant under any Award theretofore granted to him or her. The
Committee may waive any conditions or rights under, amend any terms of, or
amend, alter, suspend, discontinue or terminate, any Award theretofore granted,
prospectively or retrospectively; provided, however, that, without the consent
of a Participant, no amendment, alteration, suspension, discontinuation or
termination of any Award may materially and adversely affect the rights of such
Participant under any Award theretofore granted to him or her.
(e) No Rights to Awards; No Shareholder Rights. No Eligible Person or
employee shall have any claim to be granted any Award under the Plan, and there
is no obligation for uniformity of treatment of Eligible Persons and employees.
No Award shall confer on any Eligible Person any of the rights of a shareholder
of the Company unless and until Shares are duly issued or transferred to the
Eligible Person in accordance with the terms of the Award.
(f) Unfunded Status of Awards. The Plan is intended to constitute an
"unfunded" plan for incentive compensation. With respect to any payments not yet
made to a Participant pursuant to an Award, nothing contained in the Plan or any
Award shall give any such Participant any rights that are greater than those of
a general creditor of the Company; provided, however, that the Committee may
authorize the creation of trusts or make other arrangements to meet the
Company's obligations under the Plan to deliver cash, Shares, other Awards, or
other property pursuant to any Award, which trusts or other arrangements shall
be consistent with the "unfunded" status of the Plan unless the Committee
otherwise determines with the consent of each affected Participant.
(g) Nonexclusivity of the Plan. Neither the adoption of the Plan by
the Board nor its submission to the shareholders of the Company for approval
shall be construed as creating any limitations on the power of the Board to
adopt such other incentive arrangements as it may deem desirable, including,
without limitation, the granting of options and other awards otherwise than
under the Plan, and such arrangements may be either applicable generally or only
in specific cases.
(h) Not Compensation for Benefit Plans. No Award payable under this
Plan shall be deemed salary or compensation for the purpose of computing
benefits under any benefit plan or other arrangement of the Company for the
benefit of its employees or directors unless the Company shall determine
otherwise.
(i) No Fractional Shares. No fractional Shares shall be issued or
delivered pursuant to the Plan or any Award. The Committee shall determine
whether cash, other
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Awards, or other property shall be issued or paid in lieu of such fractional
Shares or whether such fractional Shares or any rights thereto shall be
forfeited or otherwise eliminated.
(j) Governing Law. The validity, construction, and effect of the Plan,
any rules and regulations relating to the Plan, and any Award Agreement shall be
determined in accordance with the laws of Delaware without giving effect to
principles of conflict of laws.
(k) Effective Date; Plan Termination. The Plan shall become effective
as of September 12, 2000 (the "Effective Date"), subject to approval by the vote
of the holders of a majority of the shares of stock of the Company within 12
months after the Effective Date. Awards may be made prior to such approval by
stockholders, but each such Award shall be subject to the approval of this Plan
by the stockholders, and if this Plan shall not be so approved, all Awards
granted under this Plan shall be of no effect. The Plan shall terminate as to
future awards on the date which is ten (10) years after the Effective Date.
(l) Prior Option. Upon approval of the Plan by stockholders of the
Company, the stock option granted to Suzanne Baer on April [17], 2000 shall be
considered an Option granted under the Plan.
(m) Titles and Headings. The titles and headings of the sections in
the Plan are for convenience of reference only. In the event of any conflict,
the text of the Plan, rather than such titles or headings, shall control.
