Exhibit 4.1
CELESTIAL SEASONINGS, INC.
1993 Long-Term Incentive Plan
as amended and restated effective August 15, 1996
1. Purpose. The purpose of the 1993 Long-Term Incentive Plan (the "Plan")
is to advance the interests of Celestial Seasonings, Inc., a Delaware
corporation (the "Company") and its stockholders by providing incentives to
certain key employees of the Company and to certain other key individuals who
perform services for the Company, including those who contribute significantly
to the strategic and long-term performance objectives and growth of the Company.
2. Administration. The Plan shall be administered solely by the Board of
Directors (the "Board") of the Company or, if the Board shall so designate, by a
committee of the Board that shall be comprised of not fewer than two directors
(the "Committee"); provided that if at any time Rule 16b-3 or any successor rule
("Rule 16b-3") under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), so permits without adversely affecting the ability of awards
under the Plan ("Awards") to comply with the conditions for exemption from
Section 16 of the Exchange Act (or any successor provision) provided by Rule
16b-3, the Committee may delegate the administration of the Plan in whole or in
part, on such terms and conditions, and to such person or persons as it may
determine in its discretion. References to the Committee hereunder shall include
the Board where appropriate. The membership of the Committee or such successor
committee (i) shall consist of "nonemployee directors" (as defined in Rule
16b-3) and meet any other applicable requirements so as to comply at all times
with the applicable requirements of Rule 16b-3, (ii) shall consist of "outside
directors" (as defined in Treasury Regulation ss. 1.162-27(e)(3)(i) or any
successor rule) and meet any other applicable requirements so as to comply at
all times with the applicable requirements of ss. 162(m) of the Internal Revenue
Code of 1986, as amended, or any successor statute, and (iii) shall met any
applicable requirements of the NASDAQ National Market or any stock exchange on
which the Company's common stock is listed or quoted.
The Committee has all the powers vested in it by the terms of the Plan set
forth herein, such powers to include exclusive authority (except as may be
delegated as permitted herein) to select the employees and other key individuals
to be granted Awards under the Plan, to determine the type, size and terms of
the Award to be made to each individual selected, to modify the terms of any
Award that has been granted, to determine the time when Awards will be granted,
to establish performance objectives, to make any adjustments necessary or
desirable as a result of the granting of Awards to eligible individuals located
outside the United States and to prescribe the form of the instruments embodying
Awards made under the Plan. The Committee is authorized to interpret the Plan
and the Awards granted under the Plan, to establish, amend and rescind any rules
and regulations relating to the Plan, and to make any other determinations which
it deems necessary or desirable for the administration of the Plan. The
Committee (or its delegate as permitted herein) may correct any defect or supply
any omission or reconcile any inconsistency in the 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 (or its delegate as permitted herein)
in the interpretation and administration of the Plan, as described herein, shall
lie within its sole and absolute discretion and shall be final, conclusive and
binding on all parties concerned. The Committee may act only by a majority of
its members in office, except that the members thereof may authorize any one or
more of their members or any officer of the Company to execute and deliver
documents or to take any other ministerial action on behalf of the
Committee with respect to Awards made or to be made to Plan participants.
No member of the Committee and no officer of the Company shall be liable for
anything done or omitted to be done by him, by any other member of the Committee
or by any officer of the Company in connection with the performance of duties
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under the Plan, except for his own willful misconduct or as expressly provided
by statute. Determinations to be made by the Committee under the Plan may be
made by its delegates.
3. Participation. Consistent with the purposes of the Plan, the Committee
shall have exclusive power (except as may be delegated as permitted herein) to
select the employees and other key individuals performing services for the
Company who may participate in the Plan and be granted Awards under the Plan.
Eligible individuals may be selected individually or by groups or categories, as
determined by the Committee in its discretion.
4. Awards under the Plan.
(a) Types of Awards. Awards under the Plan may include, but need not
be limited to, one or more of the following types, either alone or in any
combination thereof: (i) "Stock Options," (ii) "Stock Appreciation Rights,"
(iii) "Restricted Stock," (iv) "Performance Grants" and (v) any other type
of Award deemed by the Committee in its discretion to be consistent with
the purposes of the Plan (including, but not limited to, Awards of or
options or similar rights granted with respect to unbundled stock units or
components thereof, and Awards to be made to participants who are foreign
nationals or are employed or performing services outside the United
States). Stock Options, which include "Nonqualified Stock Options" (which
may be sold at a price determined by the Committee ("Purchased Options") or
awarded to participants) and "Incentive Stock Options" or combinations
thereof, are rights to purchase common shares of the Company having a par
value of $.01 per share and stock of any other class into which such shares
may thereafter be changed (the "Common Shares"). Nonqualified Stock Options
and Incentive Stock Options are subject to the terms, conditions and
restrictions specified in Paragraph 5. Stock Appreciation Rights are rights
to receive (without payment to the Company) cash, Common Shares, other
Company securities (which may include, but need not be limited to,
unbundled stock units or components thereof, debentures, preferred stock,
warrants, securities convertible into Common Shares or other property
("Other Company Securities")) or property, or other forms of payment, or
any combination thereof, as determined by the Committee, based on the
increase in the value of the number of Common Shares specified in the Stock
Appreciation Right. Stock Appreciation Rights are subject to the terms,
conditions and restrictions specified in Paragraph 6. Shares of Restricted
Stock are Common Shares which are issued subject to certain restrictions
pursuant to Paragraph 7. Performance Grants are contingent awards subject
to the terms, conditions and restrictions described in Paragraph 8,
pursuant to which the participant may become entitled to receive cash,
Common Shares, Other Company Securities or property, or other forms of
payment, or any combination thereof, as determined by the Committee.
(b) Maximum Number of Shares that May be Issued. There may be issued
under the Plan (as Restricted Stock, in payment of Performance Grants,
pursuant to the exercise of Stock Options or Stock Appreciation Rights, or
in payment of or pursuant to the exercise of such other Awards as the
Committee, in its discretion, may determine) an aggregate of not more than
225,000 Common Shares, subject to adjustment as provided in Paragraph 14.
No eligible individual may receive Awards under the Plan for more than
100,000 Common Shares, subject to adjustment as provided in Paragraph 14.
Common Shares issued pursuant to the Plan may be either authorized but
unissued shares, treasury shares, reacquired shares, or any combination
thereof. If any Common Shares issued as Restricted Stock or otherwise
subject to repurchase or forfeiture rights are reacquired by the Company
pursuant to such rights, or if any Award is cancelled, terminates or
expires unexercised, any Common Shares that would otherwise have been
issuable pursuant thereto will be available for issuance under new Awards.
(c) Rights with respect to Common Shares and Other Securities.
(i) Unless otherwise determined by the Committee in its
discretion, a participant to whom an Award of Restricted Stock has
been made (and any person succeeding to such a par-
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ticipant's rights pursuant to the Plan) shall have, after issuance of
a certificate for the number of Common Shares awarded and prior to the
expiration of the Restricted Period (as hereinafter defined) or the
earlier repurchase of such Common Shares as herein provided, ownership
of such Common Shares, including the right to vote such Common Shares
and to receive dividends or other distributions made or paid with
respect to such Common Shares (provided that such Common Shares, and
any new, additional or different shares, or Other Company Securities
or property, or other forms of consideration which the participant may
be entitled to receive with respect to such Common Shares as a result
of a stock split, stock dividend or any other change in the
corporation or capital structure of the Company, shall be subject to
the restrictions hereinafter described as determined by the Committee
in its discretion), subject, however, to the options, restrictions and
limitations imposed thereon pursuant to the Plan. Notwithstanding the
foregoing, a participant with whom an Award agreement is made to issue
Common Shares in the future, shall have no rights as a stockholder
with respect to Common Shares related to such agreement until issuance
of a certificate to him.
(ii) Unless otherwise determined by the Committee in its
discretion, a participant to whom a grant of Stock Options, Stock
Appreciation Rights, Performance Grants or any other Award is made
(and any person succeeding to such a participant's rights pursuant to
the Plan) shall have no rights as a stockholder with respect to any
Common Shares or as a holder with respect to other securities, if any,
issuable pursuant to any such Award until the date of the issuance of
a stock certificate to him for such Common Shares or other instrument
of ownership, if any. Except as provided in Paragraph 15, no
adjustment shall be made for dividends, distributions or other rights
(whether ordinary or extraordinary, and whether in cash, securities,
other property or other forms of consideration, or any combination
thereof) for which the record date is prior to the date such stock
certificate or other instrument of ownership, if any, is issued.
5. Stock Options. The Committee may sell Purchased Options or grant other
Stock Options either alone, or in conjunction with Stock Appreciation Rights,
Performance Grants or other Awards, either at the time of grant or by amendment
thereafter; provided that an Incentive Stock Option may be granted only to an
eligible employee of the Company or any parent or subsidiary corporation. Each
Stock Option (referred to herein as an "Option") granted or sold under the Plan
shall be evidenced by an instrument in such form as the Committee shall
prescribe from time to time in accordance with the Plan and shall comply with
the following terms and conditions, and with such other terms and conditions,
including, but not limited to, restrictions upon the Option or the Common Shares
issuable upon exercise thereof, as the Committee, in its discretion, shall
establish:
(a) The option price may be less than, equal to, or greater than, the
fair market value of the Common Shares subject to such Option at the time
the Option is granted, as determined by the Committee, but in no event will
such option price be less than 50% of the fair market value of the
underlying Common Shares at the time the Option is granted; provided,
however, that in the case of an Incentive Stock Option granted to such an
employee, the option price shall not be less than the fair market value of
the Common Shares subject to such Option at the time the Option is granted,
or if granted to such an employee who owns stock representing more than ten
percent of the voting power of all classes of stock of the Company or any
parent or subsidiary (a "Ten Percent Employee"), such option price shall
not be less than 110% of such fair market value at the time the Option is
granted; but in no event will such option price be less than the par value
of such Common Shares.
(b) The Committee shall determine the number of Common Shares to be
subject to each Option. The number of Common Shares subject to an
outstanding Option may be reduced on a share-for-share or other appropriate
basis, as determined by the Committee, to the extent that Common Shares
under such Option are used to calculate the cash, Common Shares, Other
Company Securities or property, or other forms of payment, or any
combination thereof, received pursuant to exercise of a Stock Appre-
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ciation Right attached to such Option, or to the extent that any other
Award granted in conjunction with such Option is paid.
(c) No Option may be sold, assigned, transferred, pledged,
hypothecated or otherwise disposed of, except by will or the laws of
descent and distribution, and shall be exercisable during the grantee's
lifetime only by him; provided, however, that the Committee may grant or
sell Nonqualified Stock Options that are transferable, without payment of
consideration, to immediate family members of the grantee or to trusts or
partnerships for such family members and may amend outstanding Options to
provide for such transferability.
(d) The Option shall not be exercisable:
(i) in the case of any Incentive Stock Option granted to a Ten
Percent Employee, after the expiration of five years from the date it
is granted, and, in the case of any other Option, after the expiration
of ten years from the date it is granted. Any Option may be exercised
during such period only at such time or times and in such installments
as the Committee may establish;
(ii) unless payment in full is made for the shares being acquired
thereunder at the time of exercise; such payment shall be made in such
form (including, but not limited to, cash, Common Shares, or the
surrender of another outstanding Award under the Plan, or any
combination thereof) as the Committee may determine in its discretion;
and
(iii) unless grantee of the Option being exercised has been, at
all times during the period beginning with the date of the grant of
the Option and ending on the date of such exercise, employed by or
otherwise performing services for the Company, (or a corporation, or a
parent or subsidiary of a corporation, substituting or assuming the
Option in a transaction to which Section 424(a) of the Internal
Revenue Code of 1986, as amended, or any successor statutory provision
thereto (the "Code"), is applicable), except that:
(A) if such grantee shall cease such employment or
performance of services by reason of his disability as defined in
Paragraph 12 or early, normal or deferred retirement under an
approved retirement program of the Company (or such other plan or
arrangement as may be approved by the Committee, in its
discretion, for this purpose), the holder of any Option granted
to such grantee which has not expired and has not been fully
exercised, at any time within three years (or such period
determined by the Committee) after the date the grantee ceased
such employment or performance of services (but in no event after
the Option has expired), may exercise the Option with respect to
any shares as to which the holder could have exercised the Option
on the date the grantee ceased such employment or performance of
services, or with respect to such greater number of shares as
determined by the Committee; or
(B) if any grantee shall die, then the holder (including the
grantee's executors, administrators, heirs or distributees, as
the case may be) of any Option granted to such grantee which has
not expired and has not been fully exercised, may, at any time
within one year (or such other period determined by the
Committee) after the date of death (but in no event after the
Option has expired), exercise the Option with respect to any
shares as to which the holder could have exercised the Option at
the time of the grantee's death, or with respect to such greater
number of shares as determined by the Committee.
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(e) In the case of an Incentive Stock Option, the amount of the
aggregate fair market value of Common Shares (determined at the time of
grant of the Option pursuant to subparagraph 5(a) of the Plan) with respect
to which incentive stock options are exercisable for the first time by an
employee during any calendar year (under all such plans of his employer
corporation and its parent and subsidiary corporations) shall not exceed
$100,000.
(f) It is the intent of the Company that Nonqualified Stock Options
granted under the Plan not be classified as Incentive Stock Options, that
the Incentive Stock Options granted under the Plan be consistent with and
contain or be deemed to contain all provisions required under Section 422
and the other appropriate provisions of the Code and any implementing
regulations (and any successor provisions thereof), and that any
ambiguities in construction shall be interpreted in order to effectuate
such intent.
(g) A Purchased Option may contain such additional terms not
inconsistent with this Plan, including but not limited to the circumstances
under which the purchase price of such Purchased Option may be returned to
the holder of the Purchased Option, as the Committee may determine in its
sole discretion.
6. Stock Appreciation Rights. The Committee may grant Stock Appreciation
Rights either alone, or in conjunction with Stock Options, Performance Grants or
other Awards, either at the time of grant or by amendment thereafter. Each Award
of Stock Appreciation Rights granted under the Plan shall be evidenced by an
instrument in such form as the Committee shall prescribe from time to time in
accordance with the Plan and shall comply with the following terms and
conditions, and with such other terms and conditions, including, but no limited
to, restrictions upon the Award of Stock Appreciation Rights or the Common
Shares issuable upon exercise thereof, as the Committee, in its discretion,
shall establish:
(a) The Committee shall determine the number of Common Shares to be
subject to each Award of Stock Appreciation Rights. The number of Common
Shares subject to an outstanding Award of Stock Appreciation Rights may be
reduced on a share-for-share or other appropriate basis, as determined by
the Committee, to the extent that Common Shares under such Award of Stock
Appreciation Rights are used to calculate the cash, Common Shares, Other
Company Securities or property, or other forms of payment, or any
combination thereof, received pursuant to exercise of an Option attached to
such Award of Stock Appreciation Rights, or to the extent that any other
Award granted in conjunction with such Award of Stock Appreciation Rights
is paid.
(b) No Award of Stock Appreciation Rights may be sold, assigned,
transferred, pledged, hypothecated or otherwise disposed of, except by will
or the laws of descent and distribution, and shall be exercisable during
the grantee's lifetime only by the grantee; provided, however, that the
Committee may grant Awards of Stock Appreciation Rights that are
transferable, without payment of consideration, to immediate family members
of the grantee or to trusts or partnerships for such family members and may
amend outstanding Awards to provide for such transferability.
(c) The Award of Stock Appreciation Rights shall not be exercisable:
(i) in the case of any Award of Stock Appreciation Rights which
is attached to an Incentive Stock Option granted to a Ten Percent
Employee, after the expiration of five years from the date it is
granted, and, in the case of any other Award of Stock Appreciation
Rights, after the expiration of ten years from the date it is granted.
Any Award of Stock Appreciation Rights may be exercised during such
period only at such time or times and in such installments as the
Committee may establish;
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(ii) unless the Option or other Award to which the Award of Stock
Appreciation Rights is attached is at the time exercisable; and
(iii) unless the grantee of the Award of Stock Appreciation
Rights being exercised has been, at all time during the period
beginning with the date of the grant thereof and ending on the date of
such exercise, employed by or otherwise performing services for the
Company, except that:
(A) if such grantee shall cease such employment or
performance of services by reason of his disability as defined in
Paragraph 12 or early, normal or deferred retirement under an
approved retirement program of the Company (or such other plan or
arrangement as may be approved by the Committee, in its
discretion, for this purpose), then the holder of any Award of
Stock Appreciation Rights granted to such grantee which has not
expired and has not been fully exercised, may, at any time within
three years (or such other period determined by the Committee)
after the date the grantee ceased such employment or performance
of services (but in no event after the Award of Stock
Appreciation Rights has expired), exercise the Award of Stock
Appreciation Rights with respect to any shares as to which the
holder could have exercised the Award of Stock Appreciation
Rights on the date the grantee ceased such employment or
performance of services, or with respect to such greater number
of shares as determined by the Committee; or
(B) if any grantee shall die, the holder (including the
grantee's executors, administrators, heirs or distributees, as
the case may be) of any Award of Stock Appreciation Rights
granted to such grantee which has not expired and has not been
fully exercised may at any time within one year (or such other
period determined by the Committee) after the date of such
grantee's death (but in no event after the Award of Stock
Appreciation Rights has expired), exercise the Award of Stock
Appreciation Rights with respect to any shares as to which the
holder could have exercised the Award of Stock Appreciation
Rights at the time of such grantee's death, or with respect to
such greater number of shares as determined by the Committee.
(d) An Award of Stock Appreciation Rights shall entitle the holder to
exercise such Award or to surrender unexercised the Option (or other Award)
to which the Stock Appreciation Right is attached (or any portion of such
Option or other Award) to the Company and to receive from the Company in
exchange thereof, without payment to the Company, that number of Common
Shares having an aggregate value equal to (or, in the discretion of the
Committee, less than) the excess of the fair market value of one share, at
the time of such exercise, over the exercise price (or Option Price, as the
case may be), times the number of shares subject to the Award or the Option
(or other Award), or portion thereof, which is so exercised or surrendered,
as the case may be. The Committee shall be entitled in its discretion to
elect to settle the obligation arising out of the exercise of a Stock
Appreciation Right by the payment of cash or Other Company Securities or
property, or other forms of payment, or any combination thereof, as
determined by the Committee, equal to the aggregate value of the Common
Shares it would otherwise be obligated to deliver. Any such election by the
Committee shall be made as soon as practicable after the receipt by the
Committee of written notice of the exercise of the Stock Appreciation
Right. The value of a Common Share, Other Company Securities or property,
or other forms of payment determined by the Committee for this purpose
shall be the fair market value thereof on the last business day next
preceding the date of the election to exercise the Stock Appreciation
Right, unless the Committee, in its discretion, determines otherwise.
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(e) A Stock Appreciation Right may provide that it shall be deemed to
have been exercised at the close of business on the business day preceding
the expiration date of the Stock Appreciation Right or of the related
Option (or other Award), or such other date as specified by the Committee,
if at such time such Stock Appreciation Right has a positive value. Such
deemed exercise shall be settled or paid in the same manner as a regular
exercise thereof as provided in subparagraph 6(d) hereof.
(f) No fractional shares may be delivered under this Paragraph 6, but
in lieu thereof a cash or other adjustment shall be made as determined by
the Committee in its discretion.
7. Restricted Stock. Each Award of Restricted Stock under the Plan shall be
evidenced by an instrument in such form as the Committee shall prescribe from
time to time in accordance with the Plan and shall comply with the following
terms and conditions, and with such other terms and conditions as the Committee,
in its discretion, shall establish:
(a) The Committee shall determine the number of Common Shares to be
issued to a participant pursuant to the Award, and the extent, if any, to
which they shall be issued in exchange for cash, other consideration, or
both.
(b) Restricted Stock awarded to a participant in accordance with the
Award shall be subject to the following restrictions until the expiration
of such period as the Committee shall determine, from the date on which the
Award is granted (the "Restricted Period"): (i) a participant to whom an
award of Restricted Stock is made shall be issued, but shall not be
entitled to, the delivery of a stock certificate; (ii) the Restricted Stock
shall not be transferable prior to the end of the Restricted Period,
provided that the Committee may award Restricted Stock that is
transferable, without payment of consideration, to immediate family members
of the grantee or to trusts or partnerships for such family members and may
amend outstanding awards of Restricted Stock to provide for such
transferability; (iii) the Restricted Stock shall be forfeited and the
stock certificate shall be returned to the Company and all rights of the
holder of such Restricted Stock to such shares and as a shareholder shall
terminate without further obligation on the part of the Company if the
participant's continuous employment or performance of services for the
Company shall terminate for any reason prior to the end of the Restricted
Period, except as otherwise provided in subparagraph 7(c), and (iv) such
other restrictions as determined by the Committee in its discretion if a
participant who has been in continuous employment or continually performed
services for the Company since the date on which a Restricted Stock Award
was granted to him shall, while in such employment or performance of
services, die, or terminate such employment or performance of services by
reason of disability as defined in Paragraph 12 or by reason of early,
normal or deferred retirement under an approved retirement program of the
Company (or such other plan or arrangement as may be approved by the
Committee in its discretion, for this purpose) and any of such events shall
occur after the date on which the Award was granted to him and prior to the
end of the Restricted Period of such Award, the Committee may determine to
cancel any and all restrictions on any or all of the Common Shares subject
to such Award.
8. Performance Grants. The Award of a Performance Grant to a participant
will entitle him to receive a specified amount determined by the Committee (the
"Actual Value"), if the terms and conditions specified in this Plan and in the
Award are satisfied. Each Award of a Performance Grant shall be subject to the
following terms and conditions, and to such other terms and conditions,
including but not limited to, restrictions upon any cash, Common Shares, Other
Company Securities or property, or other forms of payment, or any combination
thereof, issued in respect of the Performance Grant, as the Committee, in its
discretion, shall establish, and shall be embodied in an instrument in such form
and substance as is determined by the Committee:
(a) The Committee shall determine the value or range of values of a
Performance Grant to be awarded to each participant selected for an Award
and whether or not such a Performance Grant is
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granted in conjunction with an Award of Options, Stock Appreciation Rights,
Restricted Stock or other Award, or any combination thereof, under the Plan
(which may include, but need not be limited to, deferred Awards)
concurrently or subsequently granted to the participant (the "Associated
Award"). As determined by the Committee, the maximum value of each
Performance Grant (the "Maximum Value") shall be: (i) an amount fixed by
the Committee at the time the Award is made or amended thereafter, (ii) an
amount which varies from time to time based in whole or in part on the then
current value of the Common Shares, Other Company Securities or property,
or other securities or property, or any combination thereof or (iii) an
amount that is determinable from criteria specified by the Committee.
Performance Grants may be issued in different classes or series having
different names, terms and conditions. In the case of a Performance Grant
awarded in conjunction with an Associated Award, the Performance Grant may
be reduced on an appropriate basis to the extent that the Associated Award
has been exercised, paid to or otherwise received by the participant, as
determined by the Committee.
(b) The award period ("Award Period") related to any Performance Grant
shall be a period determined by the Committee. At the time each Award is
made, the Committee shall establish performance objectives to be attained
within the Award Period as the means of determining the Actual Value of
such a Performance Grant. The performance objectives shall be based on such
measure or measures of performance, which may include, but need not be
limited to, the performance of the participant, the Company, one or more of
its subsidiaries or one or more of their divisions or units, or any
combination of the foregoing, as the Committee shall determine, and may be
applied on an absolute basis or be relative to industry or other indices,
or any combination thereof. The Actual Value of a Performance Grant shall
be equal to its Maximum Value only if the performance objectives are
attained in full, but the Committee shall specify the manner in which the
Actual Value of Performance Grants shall be determined if the performance
objectives are met in part. Such performance measures, the Actual Value or
the Maximum Value, or any combination thereof, may be adjusted in any
manner by the Committee in its discretion at any time and from time to time
during or as soon as practicable after the Award Period, if it determines
that such performance measures, the Actual Value or the Maximum Value, or
any combination thereof, are not appropriate under the circumstances.
(c) The rights of a participant in Performance Grants awarded to him
shall be provisional and may be cancelled or paid in whole or in part, all
as determined by the Committee, if the participant's continuous employment
or performance of services for the Company shall terminate for any reason
prior to the end of the Award Period.
(d) The Committee shall determine whether the conditions of
subparagraph 8(b) or 8(c) hereof have been met and, if so, shall ascertain
the Actual Value of the Performance Grants. If the Performance Grants have
no Actual Value, the Award and such Performance Grants shall be deemed to
have been cancelled and the Associated Award, if any, may be cancelled or
permitted to continue in effect in accordance with its terms. If the
Performance Grants have any Actual Value and:
(i) were not awarded in conjunction with an Associated Award, the
Committee shall cause an amount equal to the Actual Value of the
Performance Grants earned by the participant to be paid to him or his
beneficiary as provided below; or
(ii) were awarded in conjunction with an Associated Award, the
Committee shall determine, in accordance with criteria specified by
the Committee (A) to cancel the Performance Grants, in which event no
amount in respect thereof shall be paid to the participant or his
beneficiary, and the Associated Award may be permitted to continue in
effect in accordance with its terms, (B) to pay the Actual Value of
the Performance Grants to the participant or his beneficiary as
provided below, in which event the Associated Award may be cancelled
or (C) to pay to the participant or his beneficiary as provided below,
the Actual Value of only a portion of the Per-
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formance Grants, in which event all or a portion of the Associated
Award may be permitted to continue in effect in accordance with its
terms or be cancelled, as determined by the Committee.
Such determination by the Committee shall be made as promptly as
practicable following the end of the Award Period or upon the earlier
termination of employment or performance of services, or at such other time or
times as the Committee shall determine, and shall be made pursuant to criteria
specified by the Committee.
Payment of any amount in respect of the Performance Grants which the
Committee determines to pay as provided above shall be made by the Company as
promptly as practicable after the end of the Award Period or at such other time
or times as the Committee shall determine, and may be made in cash, Common
Shares, Other Company Securities or property, or other forms of payment, or any
combination thereof or in such other manner, as determined by the Committee in
its discretion. Notwithstanding anything in this Paragraph 8 to the contrary,
the Committee may, in its discretion, determine and pay out the Actual Value of
the Performance Grants at any time during the Award Period.
9. Deferral of Compensation. The Committee shall determine whether or not
an Award shall be made in conjunction with deferral of the participant's salary,
bonus or other compensation, or any combination thereof, and whether or not such
deferred amounts may be:
(i) forfeited to the Company or to other participants or any
combination thereof, under certain circumstances (which may include, but
need not be limited to, certain types of termination of employment or
performance of services for the Company),
(ii) subject to increase or decrease in value based upon the
attainment of or failure to attain, respectively, certain performance
measures, and/or
(iii) credited with income equivalents (which may include, but need
not be limited to, interest, dividends or other rates of return) until the
date or dates of payment of the Award, if any.
10. Deferred Payment of Awards. The Committee may specify that the payment
of all or any portion of cash, Common Shares, Other Company Securities or
property, or any other form of payment, or any combination thereof, under an
Award shall be deferred until a later date. Deferrals shall be for such periods
or until the occurrence of such events, and upon such terms, as the Committee
shall determine in its discretion. Deferred payments of Awards may be made by
undertaking to make payment in the future based upon the performance of certain
investment equivalents (which may include, but need not be limited to,
government securities, Common Shares, other securities, property or
consideration, or any combination thereof), together with such additional
amounts of income equivalents (which may be compounded and may include, but need
not be limited to, interest, dividends or other rates of return or any
combination thereof) as may accrue thereon until the date or dates of payment,
such investment equivalents and such additional amounts of income equivalents to
be determined by the Committee in its discretion.
11. Amendment or Substitution of Awards under the Plan. The terms of any
outstanding Award under the Plan may be amended from time to time by the
Committee in its discretion in any manner that it deems appropriate (including,
but not limited to, acceleration of the date of exercise of any Award and/or
payments thereunder); provided that no such amendment shall adversely affect in
a material manner any right of a participant under the Award without his written
consent, unless the Committee determines in its discretion that there have
occurred or are about to occur significant changes in the participant's
position, duties or responsibilities, or significant changes in economic,
legislative, regulatory, tax, accounting or cost/benefit conditions which are
determined by the Committee in its discretion to have or to be expected to have
a substantial effect on the
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performance of the Company, or any subsidiary, affiliate, division or department
thereof, on the Plan or on any Award under the Plan. The Committee may, in its
discretion, permit holders of Awards under the Plan to surrender outstanding
Awards in order to exercise or realize the rights under other Awards, or in
exchange for the grant of new Awards, or require holders of Awards to surrender
outstanding Awards as a condition precedent to the grant of new Awards under the
Plan.
12. Disability. For the purposes of this Plan, a participant shall be
deemed to have terminated his employment or performance of services for the
Company and its Affiliates by reason of disability if the Committee shall
determine that the physical or mental condition of such participant was such at
that time as would entitle him to payment of monthly disability benefits under
any Company disability plan, whether or not such participant was eligible to
participate in such plan.
13. Termination of a Participant. For all purposes under the Plan, the
Committee shall determine whether a participant has terminated employment with,
or the performance of services for, the Company.
14. Dilution and Other Adjustments. In the event of any change in the
outstanding Common Shares of the Company by reason of any stock split, dividend,
split-up, split-off, spin-off, recapitalization, merger, consolidation, rights
offering, reorganization, combination or exchange of shares, a sale by the
Company of all of its assets, any distribution to stockholders other than a
normal cash dividend, or other extraordinary or unusual event, if the Committee
shall determine, in its discretion, that such change equitably requires an
adjustment in the terms of any Award or the number of Common Shares available
for Awards, such adjustment may be made by the Committee and shall be final,
conclusive and binding for all purposes of the Plan.
In the event of the proposed dissolution or liquidation of the Company, all
outstanding Awards shall terminate immediately prior to the consummation of such
proposed action, unless otherwise provided by the Committee. In the event of a
proposed sale of all or substantially all of the assets of the Company, or the
merger of the Company with or into another corporation, all restrictions on any
outstanding Awards shall lapse and participants shall be entitled to the full
benefit of all such Awards immediately prior to the closing date of such sale or
merger, unless otherwise provided by the Committee.
15. Designation of Beneficiary by Participant. A participant may name a
beneficiary to receive any payment to which he may be entitled in respect of any
Award under the Plan in the event of his death, on a written form to be provided
by and filed with the Committee, and in a manner determined by the Committee in
its discretion. The Committee reserves the right to review and approve
beneficiary designations. A participant may change his beneficiary from time to
time in the same manner, unless such participant has made an irrevocable
designation. Any designation of a beneficiary under the Plan (to the extent it
is valid and enforceable under applicable law) shall be controlling over any
other disposition, testamentary or otherwise, as determined by the Committee in
its discretion. If no designated beneficiary survives the participant and is
living on the date on which any amount becomes payable to such a participant's
beneficiary, such payment will be made to the legal representatives of the
participant's estate, and the term "beneficiary" as used in the Plan shall be
deemed to include such person or persons. If there are any questions as to the
legal right of any beneficiary to receive a distribution under the Plan, the
Committee in its discretion may determine that the amount in question be paid to
the legal representatives of the estate of the participant, in which event the
Company, the Board and the Committee and the members thereof, will have no
further liability to anyone with respect to such amount.
16. Financial Assistance. If the Committee determines that such action is
advisable, the Company may assist any grantee of an Award in obtaining financing
from the Company (or under any program of the Company approved pursuant to
applicable law), or from a bank or other third party, on such terms as are
determined by the Committee, and in such amount as is required to accomplish the
purposes of the Plan, including, but not
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limited to, to permit the exercise of an Award, the participation therein,
and/or the payment of any taxes in respect thereof. Such assistance may take any
form that the Committee deems appropriate, including, but not limited to, a
direct loan from the Company, a guarantee of the obligation by the Company, or
the maintenance by the Company of deposits with such bank or third party.
17. Miscellaneous Provisions.
(a) No employee or other person shall have any claim or right to be granted
an Award under the Plan. Determinations made by the Committee under the Plan
need not be uniform and may be made selectively among eligible individuals under
the plan, whether or not such eligible individuals are similarly situated.
Neither the Plan nor any action taken hereunder shall be construed as giving any
employee or other person any right to continue to be employed by or perform
services for the Company, and the right to terminate the employment of or
performance of services by any participants at any time and for any reason is
specifically reserved.
(b) No participant or other person shall have any right with respect to the
Plan, the Common Shares reserved for issuance under the Plan or in any Award,
contingent or otherwise, until written evidence of the Award shall have been
delivered to the recipient and all the terms, conditions and provisions of the
Plan and the Award applicable to such recipient (and each person claiming under
or through him) have been met.
(c) Except as may be approved by the Committee where such approval shall
not adversely affect compliance of the Plan with Rule 16b-3 under the Exchange
Act, a participant's rights and interest under the Plan may not be assigned or
transferred, hypothecated or encumbered in whole or in part either directly or
by operation of law or otherwise (except in the event of a participant's death)
including, but not by way of limitation, execution, levy, garnishment,
attachment, pledge, bankruptcy or in any other manner; provided, however, that
any Incentive Stock Option granted pursuant to the Plan shall not be
transferable other than by will or the laws of descent and distribution and
shall be exercisable during the participant's lifetime only by him.
(d) No Common Shares, Other Company Securities or property, other
securities or property, or other forms of payment shall be issued hereunder with
respect to any Award unless counsel for the Company shall be satisfied that such
issuance will be in compliance with applicable federal, state, local and foreign
legal, securities exchange and other applicable requirements.
(e) It is the intent of the Company that the Plan comply in all respects
with Rule 16b-3 under the Exchange Act, that any ambiguities or inconsistencies
in construction of the Plan be interpreted to give effect to such intention and
that if any provision of the Plan is found not to be in compliance with Rule
16b-3, such provision shall be deemed null and void to the extent required to
permit the Plan to comply with Rule 16b-3.
(f) The Company shall have the right to deduct from any payment made under
the Plan any federal, state, local or foreign income or other taxes required by
law to be withheld with respect to such payment. It shall be a condition to the
obligation of the Company to issue Common Shares, Other Company Securities or
property, other securities or property, or other forms of payment, or any
combination thereof, upon exercise, settlement or payment of any Award under the
Plan, that the participant (or any beneficiary or person entitled to act) pay to
the Company, upon its demand, such amount as may be required by the Company for
the purpose of satisfying any liability to withhold federal, state, local or
foreign income or other taxes. If the amount requested is not paid, the Company
may refuse to issue Common Shares, Other Company Securities or property, other
securities or property, or other forms of payment, or any combination thereof.
Notwithstanding anything in the Plan to the contrary, the Committee may, in its
discretion, permit an eligible participant (or any beneficiary or person
entitled to act) to elect to pay a portion or all of the amount requested by the
Company for such taxes with respect to such Award, at such time and in such
manner as the Committee shall deem to be appropriate (including, but not limited
to, by authorizing the Company to withhold, or agreeing to surrender to the
Company on or about the date such tax liability is determinable, Common Shares,
Other Company Securities or property, other securities or property, or other
forms of payment, or any combination thereof, owned by such person or a portion
of such
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forms of payment that would otherwise be distributed, or have been distributed,
as the case may be, pursuant to such Award to such person, having a fair market
value equal to the amount of such taxes).
(g) The expenses of the Plan shall be borne by the Company.
(h) The Plan shall be unfunded. The Company shall not be required to
establish any special or separate fund or to make any other segregation of
assets to assure the payment of any Award under the Plan, and rights to the
payment of Awards shall be no greater than the rights of the Company's general
creditors.
(i) By accepting any Award or other benefit under the Plan, each
participant and each person claiming under or through him shall be conclusively
deemed to have indicated his acceptance and ratification of, and consent to, any
action taken under the Plan by the Company, the Board or the Committee or its
delegates.
(j) Fair market value in relation to Common Shares, Other Company
Securities or property, other securities or property or other forms of payment
of Awards under the Plan, or any combination thereof, as of any specific time
shall mean such value as determined by the Committee in accordance with
applicable law.
(k) The masculine pronoun includes the feminine and the singular includes
the plural wherever appropriate.
(l) The appropriate officers of the Company shall cause to be filed any
reports, returns or other information regarding Awards hereunder of any Common
Shares issued pursuant hereto as may be required by Section 13 or 15(d) of the
Exchange Act (or any successor provision) or any other applicable statute, rule
or regulation.
(m) The validity, construction, interpretation, administration and effect
of the Plan, and of its rules and regulations, and rights relating to the Plan
and to Awards granted under the Plan, shall be governed by the substantive laws,
but not the choice of law rules, of the State of Delaware.
18. Plan Amendment or Suspension. The Plan may be amended or suspended in
whole or in part at any time from time to time by the Board, but no amendment
shall be effective unless and until the same is approved by stockholders of the
Company where the failure to obtain such approval would adversely affect the
compliance of the Plan with Rule 16b-3 under the Exchange Act and with other
applicable law. No amendment of the Plan shall adversely affect in a material
manner any right of any participant with respect to any Award theretofore
granted without such participant's written consent, except as permitted under
Paragraph 11.
19. Plan Termination. This Plan shall terminate upon the earlier of the
following dates or events to occur:
(a) upon the adoption of a resolution of the Board terminating the
Plan; or
(b) July 6, 2003; provided, however, that the Board may, prior to such
date, extend the term of the Plan for an additional period of up to five
years for the grant of Awards other than Incentive Stock Options. No
termination of the Plan shall materially alter or impair any of the rights
or obligations of any person, without his consent, under any Award
theretofore granted under the Plan, except that subsequent to termination
of the Plan, the Committee may make amendments permitted under Paragraph
11.
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