BURLINGTON INDUSTRIES, INC.
AMENDED AND RESTATED
1995 EQUITY INCENTIVE PLAN
1. Purpose. The Burlington Industries, Inc. 1995 Equity Incentive Plan
(the "Plan") is intended to enhance the ability of Burlington Industries, Inc.,
a Delaware corporation (the "Company"), to attract, retain and motivate key
executives and employees of the Company, its affiliates or subsidiaries, by
providing such persons with an opportunity to obtain a proprietary interest in
the Company and by rewarding them for their contribution to the Company. The
Company believes that providing key executives and employees with such
opportunities and rewards serves the best interests of the Company's
shareholders.
2. Definitions. As used herein:
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"Agreement" means the agreement described in Section 8 hereof.
"Award" means Options, Performance Units, Stock Appreciation Rights and
Restricted Shares.
"Beneficiary" or "Beneficiaries" means the person or persons designated by a
Participant pursuant to the provisions of the Agreement to receive payments or
rights pursuant to such Agreement upon the Participant's death. If no
Beneficiary is so designated by a Participant or if no Beneficiary is living at
the time a payment is due pursuant to such Agreement, payments shall be made to
the estate of such Participant. The Agreement shall provide a Participant with
the right to change the designated Beneficiaries from time to time by written
instrument executed by the Participant and filed with the Committee in
accordance with such rules as may be specified by the Committee.
"Board" means the Board of Directors of the Company.
"Change of Control" has the meaning set forth in Section 14 hereof.
"Code" means the Internal Revenue Code of 1986, as amended, and the regulations
promulgated thereunder.
"Committee" means the committee of the Board described in Section 5 hereof.
"Common Stock" means the Common Stock of the Company, par value $0.01 per share,
or such other class or kind of shares or other securities as may be applicable
under Section 13 hereof.
"Effective Date" means the date described in Section 3 hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder, as such act, rules or regulations may be
amended from time to time.
"Fair Market Value" means the closing price of a share of Common Stock on a
specified date as reported in the New York Stock Exchange Composite Transactions
for such date, or such other measurement of value as may be specified by the
Committee from time to time.
"Free-Standing Stock Appreciation Right" means a Stock Appreciation Right not
granted in tandem with an Option.
"Grant Date" means, with respect to any Award, the date designated by the
Committee as the date on which such Award was granted.
"Incentive Stock Option" means an Option which is intended to qualify as an
incentive stock option under Section 422(b) of the Code.
"Initial Value" means the initial value, if any, of a Free-Standing Stock
Appreciation Right, as determined at the time of grant by the Committee in its
discretion and as set forth in the applicable Agreement; provided, however, that
the Initial Value of a Stock Appreciation Right shall be no less than 100% of
the Fair Market Value of a share of Common Stock as of the Grant Date.
"Non-qualified Stock Option" means an Option which is not intended to qualify as
an Incentive Stock Option.
"Option" means an option to purchase shares of Common Stock, subject to the
terms and conditions provided for in Section 9 hereof.
"Option Price" means the exercise price of an Option, as determined at the time
of grant by the Committee in its discretion and as set forth in the applicable
Agreement; provided, however, that the Option Price shall be no less than 100%
of the Fair Market Value of a share of Common Stock as of the Grant Date; and
provided, further, that the Option Price of any Incentive Stock Option shall be
subject to the terms set forth in Section 9(a)(iv) hereof.
"Participant" means a key employee of the Company, or one of its subsidiaries or
affiliates, who is designated by the Committee to receive an Award under the
Plan.
"Performance Goals" have the meaning set forth in Section 7 hereof. Performance
Goals shall be objective and pre-established by the Committee within the meaning
of Section 162(m) of the Code and the regulations promulgated thereunder, as
amended from time to time.
"Performance Period" means a fixed period of time, pre- established by the
Committee, during which a Participant performs service for the Company and
during which Performance Goals may be achieved.
"Performance Unit" means a right whose value is determined with reference to
attaining Performance Goals for a Performance Period or such other measure as
may be approved by the Committee, from time to time, and which is paid in cash,
shares of Common Stock or a combination thereof, as determined by the Committee
in its discretion, subject to the terms and conditions provided for in Section
11 hereof.
"Plan" means the Burlington Industries, Inc. 1995 Equity Incentive Plan, as the
same may be amended, from time to time, in accordance with Section 15 hereof.
"Restricted Shares" means restricted shares of Common Stock, subject to the
terms and conditions provided for in Section 12 hereof.
"Section 162(m) Participant" means, for a given fiscal year of the Company, any
Participant designated by the Committee not later than 90 days following the
start of such year as a Participant (or such other time as may be required or
permitted by Section 162(m) of the Code) whose compensation for such fiscal year
may be subject to the limit on deductible compensation imposed by Section 162(m)
of the Code.
"Securities Act" means the Securities Act of 1933, as amended, and the rules and
regulations thereunder, as such law, rules and regulations may be amended from
time to time.
"Stock Appreciation Right" or "SAR" means a right to receive the appreciation,
if any, in the Fair Market Value of one share of Common Stock, subject to the
terms and conditions provided for in Section 10 hereof.
"Tandem Stock Appreciation Right" means a Stock Appreciation Right granted in
tandem with an Option.
"Window Period" means the 10-business day period in each fiscal quarter of the
Company commencing on the third business day following the release for
publication of the Company's quarterly or annual results of operations for the
next preceding fiscal quarter or year, as the case may be, and ending on the
twelfth business day following such date of release.
3. Effective Date. The Plan shall become effective on the date
("Effective Date") of its adoption by the Board, subject to approval of the Plan
by the stockholders of the Company. Prior to such stockholder approval, the
Committee may grant Awards conditioned on stockholder approval. If such
stockholder approval is not obtained by the first annual meeting of stockholders
to occur after the adoption of the Plan by the Board, the Plan and any Awards
made thereunder shall terminate ab initio and be of no further force and effect.
4. Maximum Number of Shares Available for Grant; Maximum Number of
Options, SARS and Restricted Shares to be Awarded; Maximum Value of Performance
Units to be Awarded.
(a) Subject to adjustment pursuant to Section 13 hereof, the
maximum, aggregate number of shares of Common Stock that may be used to
settle Awards made under the Plan shall not exceed 3,255,284 shares of
Common Stock. Subject to the foregoing, Awards granted under the Plan
that constitute replacements or substitutions issued in exchange for
awards granted under the Plan or any other plan of the Company, its
affiliates and subsidiaries, or any entity or business that is acquired
by the Company, its affiliates or subsidiaries, shall not be considered
newly granted Awards for purposes of Section 16. Notwithstanding the
foregoing, any Awards that have been forfeited, exchanged or canceled
or have expired without the relevant Participant having received value
in excess of the value of the Award so forfeited, exchanged, canceled
or expired, such as the forfeiture of a Participant's unvested Options
upon termination of his/her service (an "Expired Award"), shall not be
counted for purposes of determining the number of shares of Common
Stock issued or issuable in connection with Awards granted under the
Plan. For purposes of the immediately preceding sentence, neither (i)
any Award tendered to the Company or withheld by the Company to satisfy
tax-withholding requirements, nor (ii) any Restricted Share that is
forfeited, canceled or expires and with respect to which a Participant
received any dividends or "benefits of ownership" (within the meaning
of the rules under Section 16(b) of the Exchange Act), shall be deemed
an Expired Award.
(b) Shares of Common Stock issued under the Plan may be
authorized and unissued shares or issued and re-acquired shares, as the
Committee may from time to time determine.
(c) The maximum number of Options that may be granted to a
Participant in a given fiscal year of the Company may not exceed
400,000 Options (to purchase 400,000 shares of Common Stock), and the
maximum number of Stock Appreciation Rights that may be granted to a
Participant in a given fiscal year of the Company may not exceed
400,000 Stock Appreciation Rights. The maximum dollar value of any
Performance Unit that may be paid to a Participant in a given fiscal
year of the Company may not exceed $1,000,000.
(d) The number of Restricted Shares that may be granted or
offered for sale to all Participants under the Plan shall not exceed a
total of 20.0% of the maximum, aggregate number of shares of Common
Stock that may be used to settle Awards made under the Plan in
accordance with Section 4(a) hereof.
5. Administration.
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(a) The Plan shall be administered by the Committee, which
shall be appointed by the Board and which shall consist of two or more
members of the Board. Each of the members of the Committee shall at all
times during service as a member of the Committee qualify with respect
to the Plan as a "Non-Employee Director" within the meaning of Rule
16b-3 under the Exchange Act and as an "outside director" within the
meaning of Section 162(m) of the Code. The Committee shall have full
power and authority to interpret and construe the provisions of the
Plan and of any Agreements under the Plan and make determinations
pursuant to any Plan provision or Agreement. Each interpretation,
determination or other action made or taken pursuant to the Plan by the
Committee shall be final, conclusive and binding on all persons.
(b) No member of the Committee shall be liable for anything
whatsoever in connection with the administration of the Plan except
such member's own willful misconduct. Under no circumstances shall any
member of the Committee be liable for any act or omission of any other
member of the Committee. In the performance of its functions with
respect to the Plan, the Committee shall be entitled to rely upon
information and advice furnished by the Company's officers, the
Company's accountants, the Company's counsel and any other party the
Committee deems necessary, and no member of the Committee shall be
liable for any action taken or not taken in reliance upon any such
advice.
6. Grant or Offer of Awards. The Committee shall, from time to time,
select and make grants of Awards or offers for the sale of Awards to
Participants.
7. Establishment of Performance Goals. Awards of Performance Units
hereunder shall be based, and Awards of Restricted Shares hereunder may be based
(in the Committee's discretion), upon Performance Goals pre-established by the
Committee with respect to a Performance Period. The Performance Goals shall be
based on one or more of the following criteria to be attained by the Company (or
a subsidiary or division thereof): (i) earnings before interest and taxes, (ii)
return on investment, (iii) earnings per share, (iv) return on equity, and (v)
earnings before interest, taxes, depreciation and amortization. The Committee
shall certify in writing that a Performance Goal has been attained prior to
payment of any Award based on such Performance Goal. Performance Goals may be
revised by the Committee, at such times as it deems appropriate during the
Performance Period, in order to take into consideration any unforeseen events or
changes in circumstances.
8. Agreement; Transferability of Awards.
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(a) Agreement. The terms and conditions of each grant of
Awards shall be embodied in a written agreement (the "Agreement") in a
form approved by the Committee and delivered to the Participant as soon
as practicable following the Grant Date. The Agreement shall contain
terms and conditions not inconsistent with the Plan and which shall
incorporate the Plan by reference. Each Agreement shall: (a) state the
Grant Date of the Award, the number of shares issuable in connection
with the Award or the number of Performance Units, Free-Standing Stock
Appreciation Rights or Restricted Shares related to the Award, as the
case may be, as well as the exercisability, payment and other
restrictions applicable to the Award, as determined by the Committee,
and (i) in the case of Options (and any related Tandem Stock
Appreciation Rights), the Option Price, (ii) in the case of Restricted
Shares, the purchase price, if any, for such Restricted Shares, or
(iii) in the case of Free-Standing Stock Appreciation Rights, the
Initial Value thereof and the maximum number of shares of Common Stock
that may be issued in connection therewith; (b) specify any applicable
vesting schedule; (c) in the case of Options, state whether the Option
is intended to qualify as an Incentive Stock Option; (d) provide that
Restricted Shares shall only be transferable after they vest and that,
subject to Section 8(b) hereof, all other Awards shall not be
transferable by the Participant otherwise than by will or the laws of
descent and distribution or pursuant to a qualified domestic relations
order as such term is defined in the Code or Title I of the Employee
Retirement Income Security Act of 1974, as amended, or the rules
thereunder, and during the Participant's lifetime shall only be
exercisable by or paid to the Participant; (e) provide that shares of
Common Stock acquired pursuant to such Award shall not be transferred
for six months following the Grant Date of such Award; (f) provide for
the treatment of Awards in the event of the termination of the
Participant's employment; (g) in the case of a Stock Appreciation
Right, provide that such Stock Appreciation Right may be exercised only
during a Window Period and may only be exercised six months or more
after its Grant Date; (h) in the case of a Performance Unit, provide
that such Performance Unit will be payable only on a fixed date (at
least six months after the Grant Date) set forth in the Agreement or
(at the Committee's discretion and subject to such terms as the
Committee may impose) incident to the Participant's death, disability,
retirement or termination of employment; (i) provide such other
additional or alternative terms as may, in the Committee's discretion,
be advisable to comply with the exemptive relief provided by Rule 16b-3
under the Exchange Act; (j) provide such other terms and conditions,
not inconsistent with the Plan, as the Committee may deem advisable;
and (k) be signed by the recipient of the Award and a person designated
by the Committee. Notwithstanding the foregoing, in the case of clauses
(e), (g), and (h) above, the six-month holding period and Window Period
requirements referred to therein shall only apply to Participants
subject to the reporting requirements of Section 16(a) of the Exchange
Act.
(b) Transferability. Notwithstanding Section 8(a) hereof, the
Committee may, subject to such terms and conditions as the Committee
shall specify, permit the transfer of an Award to a Participant's
family members or to one or more trusts established in whole or in part
for the benefit of one or more of such family members; provided,
further, that the restrictions in this sentence shall not apply to
shares of Common Stock received in connection with an Award after the
date that the restrictions on transferability of such shares set forth
in the applicable Agreement have lapsed. During the lifetime of the
Participant, an Option, Stock Appreciation Right or similar-type of
Award shall be exercisable only by the Participant or by the family
member or trust to whom such Option, Stock Appreciation Right or other
Award has been transferred in accordance with the previous sentence.
9. Terms of Options.
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(a) Terms of Options Generally. Options may be granted to any
Participant to purchase such number of shares of Common Stock and
having such terms as the Committee shall determine in exchange for
payment of the Option Price in cash, or, in the discretion of the
Committee and to the extent provided in the applicable Agreement, in
shares of Common Stock already owned by the Participant, through
withholding of Common Stock subject to the Option with a value equal to
the exercise price, in other property acceptable to the Committee or in
any combination of cash, shares of Common Stock or such other property,
or such other manner of settlement of the Option Price as the Committee
shall determine. Options granted under the Plan shall comply with the
terms and conditions set forth in this Section 9.
(i) Vesting. Each Option shall vest and become
exercisable as determined by the Committee and as set forth in
the applicable Agreement.
(ii) Duration of Options. Each Option shall be
effective for such term as shall be determined by the
Committee and set forth in the Agreement; provided, however,
that no Option shall be exercisable beyond the tenth
anniversary of the Grant Date of such Option.
(iii) Exercise Price. The price at which shares of
Common Stock may be purchased under an Option shall not be
less than 100% of the Fair Market Value of the Common Stock on
the Grant Date.
(iv) Incentive Stock Options Granted to Certain
Shareholders. No Incentive Stock Option may be issued pursuant
to the terms of the Plan to any individual who, at the time
the Option is granted, owns stock possessing more than 10% of
the total combined voting power of all classes of stock of the
Company or any of its subsidiaries, unless (A) the Option
Price determined as of the Grant Date is at least 110% of the
Fair Market Value on the Grant Date of the shares of Common
Stock subject to such Option, and (B) the Incentive Stock
Option is not exercisable more than five years from the Grant
Date thereof.
(b) Effect of Exercise on Related Tandem Stock Appreciation
Rights. The exercise of an Option shall result in the cancellation of
any related Tandem Stock Appreciation Rights on a share-for-share
basis.
(c) Limitation on Exercise. The Option shall not be
exercisable unless the offer and sale of the Common Stock subject to
the Option has been registered under the Securities Act, or the Company
has determined that an exemption from registration under the Securities
Act is available and applicable to the offer and sale of the Common
Stock subject to the Option.
(d) Delivery of Certificate. As soon as practicable following
the exercise of an Option, a certificate in the Participant's name
evidencing the appropriate number of shares of Common Stock issued in
connection with such exercise shall be delivered to the Participant.
10. Terms of Stock Appreciation Rights.
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(a) Terms of Stock Appreciation Rights Generally. Each Stock
Appreciation Right granted under the Plan shall comply with the terms
and conditions set forth in this Section 10.
(i) Grants of Stock Appreciation Rights. Each Tandem
Stock Appreciation Right shall relate to a specific Option
granted under the Plan and in the case of Incentive Stock
Options may be granted only concurrently with the Option to
which it relates. In the case of Non-qualified Stock Options,
Tandem Stock Appreciation Rights may be granted at any time
prior to the exercise, termination or expiration of such
Option. Free-Standing Stock Appreciation Rights may be granted
by the Committee at any time to any Participant.
(ii) Vesting, Exercise and Duration of Stock
Appreciation Rights. A Tandem Stock Appreciation Right shall
be exercisable by a Participant only at such times as the
Option to which it relates may be exercised, shall be
forfeited when the related Option is forfeited and may expire
no later than the expiration of the related Option. Each
Free-Standing Stock Appreciation Right shall vest and become
exercisable as determined by the Committee and as set forth in
the applicable Agreement.
(iii) Value of Stock Appreciation Rights. A vested
Stock Appreciation Right shall entitle a Participant to
receive from the Company, upon exercise of the right, an
amount (payable in the manner described in Section 10(c)
hereof) equal to the Fair Market Value on the exercise date of
the Stock Appreciation Right of the total number of shares of
Common Stock for which the Stock Appreciation Right is
exercised, less (A) in the case of Tandem Stock Appreciation
Rights, the Option Price that the Participant would have
otherwise been required to pay to purchase such shares had the
Option been exercised with respect to such shares, or (B) in
the case of a Free-Standing Stock Appreciation Right, the
Initial Value.
(iv) Number of Shares Covered by a Tandem Stock
Appreciation Right. In no case may the number of shares of
Common Stock covered by a Tandem Stock Appreciation Right
exceed the number of shares of Common Stock covered by the
related Option.
(b) Effect of Exercise of Tandem Stock Appreciation Right on
Related Option. The exercise of a Tandem Stock Appreciation Right shall
automatically result in the cancellation of the related Option on a
share-for-share basis, and the shares of Common Stock which were
related to such Option shall not again be available for future grants
or sales of Awards.
(c) Payment. Payment to a Participant upon the exercise of a
Stock Appreciation Right shall be made as soon as practicable following
such exercise and, in the discretion of the Committee, may be made in
cash, in shares of Common Stock or a combination of cash and shares of
Common Stock; provided, however, that payment shall not be made in
Common Stock unless the Common Stock has been registered under the
Securities Act, or the Company has determined that an exemption under
such Act is available and applicable to such exercise and payment in
Common Stock.
(d) Delivery of Certificate. As soon as practicable following
the exercise of a Stock Appreciation Right that is paid in whole or
part in Common Stock, a certificate evidencing the appropriate number
of shares of Common Stock issued in connection with such exercise shall
be delivered to the Participant.
11. Terms of Performance Units.
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(a) Terms of Performance Units Generally. Performance Units
may be granted to any Participant. The Performance Units granted
hereunder shall comply with the terms and conditions set forth in this
Section 11.
(i) Measurement of Value of Performance Units. A
vested Performance Unit shall entitle the Participant to
receive from the Company, on such date as the Committee may
determine in its discretion and as set forth in the applicable
Agreement, an amount whose value is determined with reference
to attaining Performance Goals for a Performance Period as set
forth in the applicable Agreement.
(ii) Vesting. Each Performance Unit shall vest as
determined by the Committee and as set forth in the applicable
Agreement.
(b) Payment. Payment to a Participant with respect to a
Performance Unit shall be made in the discretion of the Committee, in
cash, in shares of Common Stock or a combination of cash and shares of
Common Stock; provided, however, that payment shall not be made in
Common Stock unless the Common Stock has been registered under the
Securities Act in connection therewith, or the Company has determined
that an exemption under such Act is available and applicable to such
exercise and payment in Common Stock.
(c) Delivery of Certificate. Upon payment of a Performance
Unit that is paid in whole or part in Common Stock, a certificate
evidencing the appropriate number of shares of Common Stock issued in
connection with such exercise shall be delivered to the Participant.
12. Terms of Restricted Shares.
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(a) Terms of Restricted Shares Generally. Restricted Shares
may be granted or offered for sale to any Participant, may be granted
solely in consideration for services rendered or to be rendered to the
Company, or its subsidiaries or affiliates, and may also be granted in
substitution and exchange for restricted property (within the meaning
of Section 83 of the Code) held by a Participant. If Restricted Shares
are offered for sale hereunder, the purchase price shall be payable in
cash, or, in the discretion of the Committee and to the extent provided
in the applicable Agreement, in shares of Common Stock already owned by
the Participant, in other property or in any combination of cash,
shares of Common Stock or such other property. The Restricted Shares
granted or offered for sale under the Plan shall comply with the terms
and conditions set forth in this Section 12.
(b) Purchase Price; Offering Period. Restricted Shares offered
for sale shall be sold at a purchase price determined at the time of
offering by the Committee in its discretion and as set forth in the
applicable Agreement.
(c) Delivery of Certificate. At the time of grant or sale of
Restricted Shares to a Participant, a certificate evidencing the
appropriate number of shares of Common Stock granted or sold to the
Participant as Restricted Shares shall be issued in the Participant's
name but shall be subject to a substantial risk of forfeiture within
the meaning of Section 83 of the Code and shall be held by the Company
for the account of the Participant until such time as such Restricted
Shares vest hereunder. Upon such vesting, the certificate evidencing
such shares shall be delivered to the Participant.
(d) Vesting. Each Restricted Share shall vest as determined by
the Committee and as set forth in the applicable Agreement but in no
event in less than three substantially equal annual installments
beginning one year from the Grant Date. Notwithstanding the foregoing,
the vesting of each Restricted Share which is subject to the attainment
of Performance Goals for the relevant Performance Period established by
the Committee shall not vest in less than one year.
13. Certain Adjustments.
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(a) Effect of Reorganization. Subject to the provisions of
Section 14 hereof, in the event that (i) the Company is merged or
consolidated with another corporation, (ii) all or substantially all
the assets of the Company are acquired by another corporation, person
or entity, (iii) the Company is reorganized, dissolved or liquidated,
or (iv) the division or subsidiary for which a Participant performs
services is sold, merged, consolidated, reorganized or liquidated (each
such event in (i), (ii), (iii) or (iv) being hereinafter referred to as
a "Reorganization Event"), or (v) the Board shall propose that the
Company enter into a Reorganization Event, then the Committee shall (A)
make appropriate adjustment in the number and kind of Common Stock
reserved for Awards that may be granted or offered pursuant to the
Plan, and (B) with respect to then outstanding Awards, make appropriate
adjustments to provide each Participant with a benefit equivalent to
that which he/she would have been entitled to had such Reorganization
Event not occurred.
(b) Dilution and Other Adjustments. In the event of a stock
dividend, stock split, recapitalization, exchange of shares, warrants
or rights offering to purchase Common Stock at a price substantially
below fair market value or other similar event affecting the Common
Stock, the Committee shall adjust the number and kind of Common Stock
reserved for Awards that may be granted or offered pursuant to the
Plan, and shall make any or all of the following adjustments that in
its discretion it deems necessary or advisable to provide each
Participant with a benefit equivalent to that to which he/she would
have been entitled had such event not occurred: (i) adjust the number
of Awards granted or offered to each Participant and the number of
Awards that may be granted or offered generally pursuant to the Plan,
(ii) adjust the Option Price of any Options and the Initial Value of
any Appreciation Rights, and (iii) make any other adjustments, or take
such action, as the Committee, in its discretion, deems appropriate.
Such adjustments shall be conclusive and binding for all purposes.
Unless otherwise determined by the Committee, such adjustments shall be
subject to the same vesting schedule and restrictions to which the
underlying Award is subject. No fractional shares of Common Stock shall
be reserved or authorized by any such adjustment. In the event of a
change in the Common Stock which is limited to a change in the
designation thereof to "Capital Stock" or other similar designation, or
to a change in the par value thereof, or from par value to no par
value, without increase or decrease in the number of issued shares, the
shares resulting from any such change shall be deemed to be Common
Stock within the meaning of the Plan.
14. Change of Control.
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(a) Notwithstanding any other provision of the Plan or any
Agreement, the Committee shall have the authority in its discretion to
provide for the accelerated vesting and/or payment of Awards (with or
without regard to the achievement of Performance Goals) in the event of
a Change of Control or in the event of a determination by the Committee
that a Change of Control may occur.
(b) For purposes of this Section 14, "Change of Control" means
that any of the following events shall have occurred:
(i) The Company is merged or consolidated or
reorganized into or with another corporation, person or
entity, and as a result of such merger, consolidation or
reorganization less than a majority of the combined voting
power of the then outstanding securities of such corporation,
person or entity immediately after such transaction are held
in the aggregate by the holders of Voting Stock (as that term
is hereafter defined) of the Company immediately prior to such
transaction;
(ii) The Company sells or otherwise transfers all or
substantially all of its assets to any other corporation,
person or entity, and less than a majority of the combined
voting power of the then-outstanding securities of such
corporation, person or entity immediately after such sale or
transfer is held in the aggregate by the holders of Voting
Stock of the Company immediately prior to such sale or
transfer;
(iii) There is a report filed on Schedule 13D or
Schedule 14D-1 of the Exchange Act by a person other than a
person that satisfies the requirements of Rule 13d-1(b)(1)
under the Exchange Act for filing such report on Schedule 13G,
which report as filed discloses that any person (as the term
"person" is used in Section 13(d)(3) or Section 14(d)(2) of
the Exchange Act) has become the beneficial owner (as the term
"beneficial owner" is defined under Rule 13d-3 under the
Exchange Act) after July 28, 1993 of securities representing
12.5% or more of the combined voting power of the
then-outstanding securities entitled to vote generally in the
election of Directors of the Company ("Voting Stock");
(iv) The Company files a report or proxy statement
with the Securities and Exchange Commission pursuant to the
Exchange Act disclosing in response to Form 8-K or Schedule
14A that a change in control of the Company has or may have
occurred or will or may occur in the future pursuant to any
then-existing contract or transaction; or
(v) If during any period of two consecutive years,
individuals who at the beginning of any such period constitute
the Directors of the Company cease for any reason to
constitute at least a majority thereof, unless the election,
or the nomination for election by the Company's stockholders,
of each Director of the Company first elected during such
period was approved by a vote of at least two-thirds of the
Directors of the Company then still in office who were
Directors of the Company at the beginning of any such period.
Notwithstanding the foregoing provisions of Clause (C) or (D)
hereof, a "Change of Control" shall not be deemed to have
occurred for purposes of the Plan solely because (x) the
Company, (y) an entity in which the Company directly or
indirectly beneficially owns 50% or more of the voting
securities, or (z) any Company-sponsored employee stock
ownership plan or any other employee benefit plan of the
Company (or any trustee of any such plan on its behalf),
either files or becomes obligated to file a report or a proxy
statement under or in response to Schedule 13D, Schedule
14D-1, or Form 8-K or Schedule 14A under the Exchange Act,
disclosing beneficial ownership by it of shares of Voting
Stock, whether in excess of 12.5% or otherwise, or because the
Company reports that a Change of Control of the Company has or
may have occurred or will or may occur in the future by reason
of such beneficial ownership.
15. Amendment of the Plan. The Board may at any time and from time to
time modify, amend, suspend or terminate the Plan in whole or in part; provided,
however, that (i) any amendment which must be approved by the shareholders of
the Company in order to maintain the continued qualification of the Plan under
Rule 16b-3 under the Exchange Act shall not be effective as to any Participant
subject to the provisions of Section 16 of the Exchange Act unless and until
such shareholder approval has been obtained, and (ii) any amendment which is
otherwise required by law (including the Code) or by the rules of any stock
exchange upon which shares of Common Stock are traded which require shareholder
approval thereof shall not be effective unless and until such shareholder
approval has been obtained in compliance with such rule or law. No termination,
modification or amendment of the Plan may, without the consent of the
Participant to whom an Award has been granted, adversely affect the rights of
such Participant under such Award.
16. Termination. Unless previously terminated pursuant to Section 15
hereof, the Plan shall terminate on the fifth anniversary of the date of
stockholder approval of the Plan, and no further Awards may be granted hereunder
after such date. Awards then outstanding may continue to be exercised, vest or
be paid in accordance with their terms.
17. Use of Proceeds. The proceeds received by the Company from the sale
of Common Stock pursuant to the sale or exercise of Awards under the Plan shall
be added to the Company's general funds and used for general corporate purposes.
18. Miscellaneous.
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(a) No Rights to Grants or Continued Service. Except as
expressly provided for in the Plan, no Participant shall have any claim
or right to be granted an Award under the Plan, nor shall any
Participant have a right to receive payment of an Award in any form
other than as the Committee shall approve. Neither the Plan nor any
action taken hereunder shall be construed as giving any Participant any
right to be retained in the employ or service of the Company.
(b) No Restriction on Right of Company to Effect Corporate
Changes. Nothing in the Plan shall affect the right or power of the
Company or its shareholders to make or authorize any or all
adjustments, recapitalizations, reorganizations or other changes in the
Company's capital structure or its business, or any merger or
consolidation of the Company, or any issue of stock, options, warrants
or rights to purchase stock or of bonds, debentures, preferred or prior
preference stocks whose rights are superior to or affect the Common
Stock or the rights thereof or which are convertible into or
exchangeable for 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, whether of a
similar character or otherwise.
(c) Governing Law. The Plan, and all agreements entered into
under the Plan shall be construed in accordance with and governed by
the internal laws of the State of New York.
(d) Withholding. As a condition to the making of any Award,
the vesting or payment of any Award or the lapse of the restrictions
pertaining thereto, the Company may, in the discretion of the
Committee, require the Participant to pay such sum to the Company as
may be necessary to discharge the Company's obligations with respect to
any taxes, assessments or other governmental charges imposed on
property or income received by a Participant pursuant to the Plan. In
the discretion of the Committee, such payment may be in the form of
cash or other property. In the discretion of the Committee, the Company
may make available for delivery a lesser number of shares, in
satisfaction of such taxes, assessments or other governmental charges.
At the discretion of the Committee, the Company may deduct or withhold
from any payment or distribution to a Participant whether or not
pursuant to the Plan. In the discretion of the Committee, the Company
may offer loans to Participants to satisfy withholding requirements on
such terms as the Committee may determine, which loans may be
non-interest bearing.
(e) Shareholder Rights. A Participant shall not have any
dividend, voting or other stockholder rights by reason of any Award
prior to the Participant becoming the record holder on the books of the
Company of shares of Common Stock pursuant to such Award, and no
adjustment shall be made for dividends or distributions or other rights
in respect of any share for which the record date is prior to the date
upon which the Participant shall become the holder of record thereof;
provided, however, that a Participant shall have all rights of a
shareholder as to any Restricted Shares sold or granted to him/her
(except for any applicable risk of forfeiture and restrictions on
transferability), including the right to receive dividends and the
right to vote for directors and upon other matters in accordance with
the Company's Certificate of Incorporation; and provided, further, that
the Participant shall not have the right to transfer, sell,
hypothecate, pledge or otherwise alienate any unvested Restricted
Shares.
(f) Headings. The headings of Sections herein are included
solely for convenience of reference and shall not affect the meaning of
any of the provisions of the Plan.
As amended and restated April 26, 2000.
