VIZACOM INC.
2000 EQUITY INCENTIVE PLAN
ARTICLE 1. GENERAL PURPOSE OF PLAN; DEFINITIONS.
1.1. Purpose. The purposes of this 2000 Equity Incentive Plan are (a) to
enable Vizacom Inc. and its subsidiaries and affiliates to attract and
retain highly qualified personnel who will contribute to the success of
Vizacom Inc. and (b) to provide incentives to participants in this 2000
Equity Incentive Plan that are linked directly to increases in
stockholder value which will therefore inure to the benefit of all
stockholders of Vizacom Inc.
1.2. Definitions. For purposes of this Equity Incentive Plan, except as
otherwise defined, capitalized terms shall have the meanings assigned
to them in this Section 1.2.
"Administrator" means the Board or, if and to the extent the
Board elects to delegate the administration of the Plan or
does not administer the Plan, the Committee.
"Affiliate" means any entity or person that directly, or
indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, another entity,
where "control" (including the terms "controlled by" and "under
common control with") means the possession, directly or
indirectly, of the power to cause the direction of the management
and policies of the entity, whether through the ownership of
voting securities, by contract or otherwise.
"Award" means any award under the Plan.
"Award Agreement" means, with respect to each Award, the
signed written agreement between the Company and the
Participant setting forth the terms and conditions of the Award.
"Board" means the Board of Directors of the Company.
"Cause" means the commission of any act of a material theft,
embezzlement or fraud involving the Company or any Parent,
Subsidiary or Affiliate of the Company, or a breach of fiduciary
duty to the Company or any Parent, Subsidiary or Affiliate of the
Company.
"Change of Control" shall have the meaning assigned to such
term in Section 16.2.
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"Code" means the Internal Revenue Code of 1986, as amended
from time to time, or any successor thereto.
"Committee" means compensation or other any committee the
Board may appoint to administer the Plan. To the extent necessary
and desirable, the Committee shall be composed entirely of
individuals who meet the qualifications referred to in Section
162(m) of the Code and Rule 16b-3 under the Exchange Act. If at
any time or to any extent the Board shall not administer the Plan,
then the functions of the Board specified in the Plan shall be
exercised by the Committee.
"Common Stock" means the common stock, par value $0.001 per
share, of the Company.
"Company" means Vizacom Inc., a Delaware corporation, or any
successor corporation.
"Disability" means the inability of a Participant to perform
substantially his or her duties and responsibilities to the
Company or to any Parent, Subsidiary or Affiliate by reason
of a physical or mental disability or infirmity for a continuous
period of six months, as determined by the Administrator. The
date of such Disability shall be the last day of such six-month
period or the date on which the Participant submits such
medical evidence, satisfactory to the Administrator, that the
Participant has a physical or mental disability or infirmity
that will likely prevent the Participant from performing the
Participant's work duties for a continuous period of six months
or longer, as the case may be.
"Eligible Recipient" means an officer, director, employee,
consultant or advisor of the Company or of any Parent,
Subsidiary or Affiliate. For purposes of the Plan, the term
"employee" shall include all those individuals whose service with
or for the Company and/or any Parent, Subsidiary or Affiliate
of the Company, is within the definition of "employee" in
the Rule as to the Use of Form S-8 contained in the General
Instructions for the registration statement on Form S-8
promulgated by the Securities and Exchange Commission.
"Employee Director" means any director of the Company who is
also an employee of the Company or of any Parent, Subsidiary
or Affiliate.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time.
"Exercise Price" means the per share price at which a holder
of an Award may purchase the Shares issuable upon exercise of
such Award.
"Fair Market Value" as of a particular date shall mean the
fair market value of a share of Common Stock as determined by
the Administrator; provided, however,
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that Fair Market Value shall mean (i) if the Common Stock is
listed or admitted to trade on a national securities exchange,
the closing price of the Common Stock on the Composite Tape,
as published in The Wall Street Journal, of the principal
national securities exchange on which the Common Stock is so
listed or admitted to trade, on such date, or, if there is no
trading of the Common Stock on such date, then the closing price
of the Common Stock as quoted on such Composite Tape on the next
preceding date on which there was trading in such shares; (ii)
if the Common Stock is not listed or admitted to trade on a
national securities exchange but is listed and quoted on The
Nasdaq Stock Market ("Nasdaq"), the last sale price for the
Common Stock on such date as reported by Nasdaq, or, if there
is no reported trading of the Common Stock on such date,
then the last sale price for the Common Stock on the next
preceding date on which there was trading in the Common Stock;
(iii) if the Common Stock is not listed or admitted to trade
on a national securities exchange and is not listed and quoted
on Nasdaq, the mean between the closing bid and asked price for
the Common Stock on such date, as furnished by the National
Association of Securities Dealers, Inc. ("NASD"); (iv) if the
Common Stock is not listed or admitted to trade on a national
securities exchange, not listed and quoted on Nasdaq and
closing bid and asked prices are not furnished by the NASD,
the mean between the closing bid and asked price for the Common
Stock on such date, as furnished by the National Quotation Bureau
("NQB") or similar organization; (v) if the stock is not listed
or admitted to trade on a national securities exchange, not
listed and quoted on Nasdaq and if bid and asked prices for the
Common Stock are not furnished by the NASD, NQB or a similar
organization, the value established in good faith by the
Administrator; and (vi) in the case of a Limited Stock
Appreciation Right, the Fair Market Value of a share of Common
Stock shall be the "Change in Control Price" (as defined in
the Award Agreement evidencing such Limited Stock
Appreciation Right) of a share of Common Stock as of the
date of exercise.
"Family Member" means, with respect to any Participant, any of the
following:
(a) such Participant's child, stepchild, grandchild, parent,
stepparent, grandparent, spouse, former spouse, sibling,
niece, nephew, mother-in-law, father-in-law, son-in-law,
daughter-in-law, brother-in-law, sister-in-law, including
any such person with such relationship to the Participant by
adoption;
(b) any person (other than a tenant or employee) sharing such
Participant's household;
(c) a trust in which the persons identified in clauses (a)
and (b) above have more than fifty percent of the beneficial
interest;
(d) a foundation in which the persons identified in clauses
(a) and (b) above or the Participant control the management of
assets; or
(e) any other entity in which the persons identified in
clauses (a) and (b) above or the Participant own more than
fifty percent of the voting interest.
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"Incentive Stock Option" means any Option intended to be
designated as an "incentive stock option" within the
meaning of Section 422 of the Code.
"Incumbent Board" means (i) the members of the Board of the
Company on June 12, 2000, to the extent that they continue to
serve as members of the Board, and (ii) any individual who
becomes a member of the Board after June 12, 2000, if such
individual's election or nomination for election as a
director was approved by a vote of at least three-quarters
of the then Incumbent Board.
"Limited Stock Appreciation Right" means a Stock
Appreciation Right that can be exercised only in the
event of a "Change in Control" (as defined in the Award
Agreement evidencing such Limited Stock Appreciation Right).
"Non-Employee Director" means a director of the Company who
is not an employee of the Company or of any Parent,
Subsidiary or Affiliate.
"Non-Qualified Stock Option" means any Option that is not an
Incentive Stock Option, including, but not limited to, any
Option that provides (as of the time such Option is granted)
that it will not be treated as an Incentive Stock Option.
"Option" means an option to purchase Shares granted pursuant
to Article 5 or 11.
"Parent" means any corporation (other than the Company) in
an unbroken chain of corporations ending with the Company, if
each of the corporations in the chain (other than the
Company) owns stock possessing 50% or more of the combined
voting power of all classes of stock in one of the other
corporations in the chain.
"Participant" means (i) any Eligible Recipient selected by
the Administrator, pursuant to the Administrator's
authority to receive grants of Options, Stock Appreciation
Rights, Limited Stock Appreciation Rights, awards of
Restricted Stock, Performance Shares, other types of awards,
or any combination of the foregoing, or (ii) any Non-Employee
Director who is eligible to receive grants of Options pursuant
to Article 11.
"Performance Grant" shall have the meaning assigned to the
term in Article 8.
"Performance Shares" means Shares that are subject to
restrictions based upon the attainment of specified
performance objectives granted pursuant to Article 8.
"Permitted Transfer" means, as authorized by the Plan and
the Administrator, with respect to an interest in a
Non-Qualified Stock Option, any transfer effected by the
Participant during the Participant's lifetime of an interest
in such Non-Qualified Stock Option but only such transfers
which are by gift or pursuant to domestic relations
orders. A permitted transfer does not include any transfer
for value and neither transfers under a domestic relations
order in settlement of
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marital property rights or to an entity in which more than
50% of the voting interests are owned by Family Members or
the Participant in exchange for an interest in that entity
are deemed transfers for value.
"Plan" means this 2000 Equity Incentive Plan.
"Related Employment" means the employment or performance of
services by an individual for an employer that is neither the
Company, any Parent, Subsidiary nor Affiliate, provided
that (i) such employment or performance of services is
undertaken by the individual at the request of the Company or
any Parent, Subsidiary or Affiliate, (ii) immediately prior
to undertaking such employment or performance of services, the
individual was employed by or performing services for
the Company or any Parent, Subsidiary or Affiliate or was
engaged in Related Employment, and (iii) such employment
or performance of services is in the best interests of the
Company and is recognized by the Administrator, as Related
Employment. The death or Disability of an individual during
a period of Related Employment shall be treated, for purposes
of this Plan, as if the death or onset of Disability had
occurred while the individual was employed by or performing
services for the Company or a Parent, Subsidiary or Affiliate.
"Restricted Stock" means Shares subject to certain
restrictions granted pursuant to Article 7.
"Restricted Period" means the period of time Restricted
Stock remains subject to restrictions imposed on the Award
of such Restricted Stock.
"Securities Act" means the Securities Act of 1933, as
amended from time to time.
"Shares" means shares of Common Stock reserved for issuance
under or issued pursuant to the Plan, as adjusted pursuant to
Article 4, and any successor security.
"Stock Appreciation Right" means the right pursuant to an
Award granted under Article 6 to receive an amount equal
to the excess, if any, of (i) the Fair Market Value, as
of the date such Stock Appreciation Right or portion thereof
is surrendered, of the Shares covered by such right or such
portion thereof, over (ii) the aggregate exercise price of
such right or such portion thereof as established by the
Administrator at the time of the grant of such Award
(or such other exercise price thereafter established by
the Administrator with the consent of the Participant granted
such Award where required by the Plan).
"Stock Bonus" means an Award granted pursuant to Article 9.
"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 stock possessing 50%
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or more of the total combined voting power of all classes of
stock in one of the other corporations in the chain.
"Ten Percent Stockholder" shall have the meaning assigned
to it in Section 5.4.
"Termination" or "Terminated" means, for purposes of the
Plan with respect to a Participant, that such Participant has
for any reason ceased to provide services as an employee,
officer, director, consultant, independent contractor, or
advisor to the Company or any Parent, Subsidiary or Affiliate
of the Company. A Participant will not be deemed to have
ceased to provide services in the case of (i) sick leave,
(ii) military leave, or (iii) any other leave of absence
approved by the Administrator, provided, that such leave
is for a period of not more than 90 days, unless reemployment
or reinstatement upon the expiration of such leave is
guaranteed by contract or statute or unless provided
otherwise pursuant to formal policy adopted from time to time
by the Company and issued and promulgated to employees
and other participants in writing. In the case of any
Participant on an approved leave of absence, the
Administrator may make such provisions respecting
suspension of vesting of any Award previously granted to
such Participant while such Participant is on leave from
the Company or any Parent, Subsidiary or Affiliate of the
Company as the Administrator may deem appropriate, except that
in no event may an Option be exercised after the expiration
of the term set forth in the Award Agreement with respect to
such Option. The Administrator will have sole discretion to
determine whether a Participant has ceased to provide
services and the applicable Termination Date.
"Termination Date" means the effective date of Termination,
as determined by the Administrator.
ARTICLE 2. ADMINISTRATION.
2.1. Administration in Accordance with the Code and Exchange Act. The
Plan shall be administered in accordance with the requirements of
Section 162(m) of the Code (but only to the extent necessary and
desirable to maintain qualification of Awards under the Plan under
Section 162(m) of the Code) and, to the extent applicable, Rule 16b-3
under the Exchange Act ("Rule 16b-3"), by the Board or, at the Board's
sole discretion, by the Committee, which shall be appointed by the
Board, and which shall serve at the pleasure of the Board.
2.2. Administrator's Powers. Except for automatic grants to Non-Employee
Directors pursuant to Article 11, and subject to the general
purposes, terms and conditions of this Plan, the Administrator will
have full power to implement and carry out this Plan. Except for
automatic grants to Non-Employee Directors pursuant to Article 11,
the Administrator will have the authority to:
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(a) construe and interpret this Plan, any Award Agreement and
any other agreement or document executed pursuant to this Plan;
(b) prescribe, amend and rescind rules and regulations relating
to this Plan or any Award;
(c) select persons to receive Awards;
(d) determine the form and terms of Awards;
(e) determine the number of Shares or other consideration
subject to Awards;
(f) determine whether Awards will be granted singly, in
combination with, in tandem with, in replacement of, or as
alternatives to, other Awards under this Plan or any other
incentive or compensation plan of the Company or any Parent,
Subsidiary or Affiliate of the Company;
(g) grant waivers of Plan or Award conditions;
(h) determine the vesting, exercisability and payment of
Awards;
(i) correct any defect, supply any omission or reconcile any
inconsistency in the Plan, any Award or any Award Agreement;
(j) to make any adjustments necessary or desirable as a result
of the granting of an Award to an Eligible Participant located
outside the United States;
(k) determine whether an Award has been earned; and
(l) make all other determinations necessary or advisable for
the administration of the Plan.
2.3. Administrator's Discretion Final. Except for automatic grants to
Non-Employee Directors pursuant to Article 11, any determination made by
the Administrator with respect to any Award will be made in its sole
discretion at the time of grant of the Award or, unless in contravention
of any express term of the Plan or Award, at any later time, and such
determination will be final and binding on the Company and on all
persons having an interest in any Award under the Plan.
2.4. Administrator's Method of Acting; Liability. The Administrator may act
only by a majority of its members then 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 Eligible Participants. No
member of the Administrator and no officer of the Company shall be
liable for anything done or omitted to be done by such member or
officer, by any other member of the Administrator or by any officer of
the Company in connection with the performance of duties under the
Plan, except for such member's or officer's own willful misconduct
or as expressly provided by law.
ARTICLE 3. PARTICIPATION.
3.1. Affiliates. If a Parent, Subsidiary or Affiliate of the Company wishes
to participate in the Plan and its participation shall have been
approved by the Board, the board of directors or other governing body of
the Parent, Subsidiary or Affiliate, as the case may be, shall adopt
a resolution in form and substance satisfactory to the
Administrator authorizing
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participation by the Parent, Subsidiary or Affiliate in the Plan. A
Parent, Subsidiary or Affiliate participating in the Plan may cease
to be a participating company at any time by action of the Board or by
action of the board of directors or other governing body of such Parent,
Subsidiary or Affiliate, which latter action shall be effective not
earlier than the date of delivery to the Secretary of the Company of a
certified copy of a resolution of the Parent, Subsidiary or
Affiliate's board of directors or other governing body taking such
action. If the participation in the Plan of a Parent, Subsidiary or
Affiliate shall terminate, such termination shall not relieve the
Parent, Subsidiary or Affiliate of any obligations theretofore
incurred by the Parent, Subsidiary or Affiliate, except as may
be approved by the Administrator.
3.2. Participants. Incentive Stock Options may be granted only to employees
(including officers and directors who are also employees) of the
Company, or any Parent, Subsidiary or Affiliate of the Company. All
other Awards may be granted to employees, officers, directors,
consultants, independent contractors and advisors of the Company or
any Parent, Subsidiary or Affiliate of the Company; provided, that
such consultants, contractors and advisors render bona fide
services to the Company or such Parent, Subsidiary or Affiliate of
the Company not in connection with the offer and sale of securities
in a capital-raising transaction. An Eligible Participant may be
granted more than one Award under the Plan.
ARTICLE 4. AWARDS UNDER THE PLAN.
4.1. 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:
(a) Options;
(b) Stock Appreciation Rights;
(c) Restricted Stock;
(d) Performance Grants;
(e) Stock Bonuses; and
(f) any other type of Award deemed by the Committee 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).
4.2. Number of Shares Available Under the Plan. Subject to Sections 4.3 and
4.5, the total number of Shares reserved and available for grant
and issuance pursuant to the Plan will be 5,000,000, plus Shares
that are subject to:
(a) issuance upon exercise of an Option previously granted
but cease to be subject to such Option for any reason other than
exercise of such Option;
(b) an Award previously granted but forfeited or repurchased by the
Company at the original issue price; and
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(c) an Award previously granted that otherwise terminates without
Shares being issued.
Shares may consist, in whole or in part, of authorized and unissued shares
or treasury shares.
The number of Shares which are transferred to the Company by a Participant
to pay the exercise or purchase price of an award will be subtracted from the
number of Shares issued with respect to such Award for the purpose of counting
Shares used under the Plan. Shares withheld to pay withholding taxes in
connection with the exercise or repayment of an Award will not be counted as
used under the Plan. In addition, shares covered by an award granted under the
Plan which is settled in cash will not be counted as used under the Plan.
4.3. Annual Increases in the Number of Shares Available Under the Plan.
Notwithstanding the terms of Section 4.2, on each January 1,
commencing with January 1, 2001, the aggregate number of Shares reserved
and available for grant and issuance pursuant to the Plan will be
increased automatically by a number of Shares equal to 5% of the total
outstanding shares of the Company as of the immediately preceding
December 31st, provided that no more than 4,000,000 shares shall be
issued upon exercise of Incentive Stock Options.
4.4. Reservation of Shares. At all times, the Company shall reserve and
keep available a sufficient number of Shares as shall be required to
satisfy the requirements of all outstanding Options granted under the
Plan and all other outstanding but unexercised Awards granted under the
Plan.
4.5. Adjustment in Number of Shares Available Under the Plan. In the
event that the number of outstanding shares of Common Stock is changed
by a stock dividend, recapitalization, stock split, reverse stock
split, subdivision, combination, reclassification or similar change in
the capital structure of the Company without consideration, then (a)
the number of Shares reserved for issuance under the Plan, (b) the
number of Shares that may be granted pursuant to the Plan, (c) the
Exercise Prices of and number of Shares subject to outstanding Options
and other awards, and (d) the exercise prices of and number of Shares
subject to other outstanding Awards, will be proportionately adjusted,
subject to any required action by the Board or the stockholders of the
Company and compliance with applicable securities laws; provided,
however, that, upon occurrence of such an event, fractions of a Share
will not be issued upon exercise of an Award but will, upon such
exercise, either be replaced by a cash payment equal to the Fair
Market Value of such fraction of a Share on the effective date of such
an event or will be rounded up to the nearest whole Share, as
determined by the Administrator.
4.6. Rights with Respect to Common Shares and Other Securities.
(a) Unless otherwise determined by the Administrator, a
Participant to whom an Award of Restricted Stock has been made
(and any person succeeding to such Participant's rights with
respect to such Award pursuant to the Plan) shall have,
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after issuance of a certificate or copy thereof for the number
of Shares so awarded and prior to the expiration of the Restricted
Period or the earlier repurchase of such Shares as provided in
the Plan or Award Agreement with respect to such Award of
Restricted Stock, ownership of such Shares, including the right
to vote the same and to receive dividends or other distributions
made or paid with respect to such Shares (provided that such
Shares, and any new, additional or different shares, or other
securities or property of the Company, or other forms of
consideration which the participant may be entitled to receive with
respect to such Shares as a result of a stock split, stock dividend
or any other change in the corporate or capital structure of the
Company, shall be subject to the restrictions of the Plan as
determined by the Administrator), subject, however, to the options,
restrictions and limitations imposed thereon pursuant to the Plan.
Notwithstanding the foregoing, unless otherwise determined by
the Administrator, a Participant with whom an Award Agreement
is made to issue Shares in the future shall have no rights as a
stockholder with respect to Shares related to such Award
Agreement until a stock certificate evidencing such Shares is
issued to such Participant.
(b) Unless otherwise determined by the Administrator, 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 Participant's rights pursuant to the Plan)
shall have no rights as a stockholder with respect to any Shares
or as a holder with respect to other securities, if any, issuable
pursuant to any such Award until the date a stock certificate
evidencing such Shares or other instrument of ownership, if any,
is issued to such Participant. Except as provided in Section 4.5, 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.
ARTICLE 5. STOCK OPTIONS.
5.1. Grant; Determination of Type of Option. The Administrator may grant
one or more Options to an Eligible Participant and will determine (a)
whether each such Option will be an Incentive Stock Option or a
Non-Qualified Stock Option, (b) the number of Shares subject to each
such Option, (c) the Exercise Price of each such Option, (d) the period
during which each such Option may be exercised, and (e) all other
terms and conditions of each such Option, subject to the terms and
conditions of this Article 5. The Administrator may grant an Option
either alone or in conjunction with Stock Appreciation Rights,
Performance Grants or other Awards, either at the time of grant or by
amendment thereafter.
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5.2. Form of Option Award Agreement. Each Option granted under the Plan
will be evidenced by an Award Agreement which will expressly identify
the Option as an Incentive Stock Option or a Non-Qualified Stock Option,
and, except as otherwise required by the terms of Article 11 hereof,
will be in such form and contain such provisions (which need not be the
same for each Participant or Option) as the Committee may from time to
time approve, and which will comply with and be subject to the terms
and conditions of the Plan.
5.3. Date of Grant. The date of grant of an Option will be the date on which
the Administrator makes the determination to grant such Option, unless
otherwise specified by the Administrator.
5.4. Exercise Period. Each Option shall be exercisable within the times or
upon the occurrence of one or more events determined by the
Administrator and set forth in the Award Agreement governing such
Option; provided, however, that no Option will be exercisable after
the expiration of ten years from the date the Option is granted; and
provided, further, however, that no Incentive Stock Option granted
to a person who directly or by attribution owns more than 10% of the
total combined voting power of all classes of stock of the Company or
of any Parent, Subsidiary or Affiliate of the Company (each, a "Ten
Percent Stockholder") will be exercisable after the expiration of
five years from the date such Incentive Stock Option is granted.
The Administrator also may provide for an Option to become exercisable
at one time or from time to time, periodically or otherwise, in
such number of Shares or percentage of Shares as the
Administrator determines. Unless otherwise determined by the
Administrator, but excluding Options granted pursuant to Article 11,
an Option shall be exercisable as follows:
(a) up to 25% of the number of Shares subject to such Option
commencing on the first anniversary of the date of grant of such
Option;
(b) up to an additional 25% of the number of Shares subject
to such Option commencing on the second anniversary of the date
of grant of such Option;
(c) up to an additional 25% of the number of Shares subject
to such Option commencing on the third anniversary of the date
of grant of such Option; and
(d) up to an additional 25% of the number of Shares subject
to such Option commencing on the fourth anniversary of the date
of grant of such Option.
5.5. Exercise Price. The Exercise Price of an Option will be determined by
the Administrator when the Option is granted and may be not less than
85% of the per share Fair Market Value of the Shares subject to such
Option on the date of grant of such Option; provided, however, that: (a)
the Exercise Price of an Incentive Stock Option will be not less than
100% of the per share Fair Market Value of such Shares on the date of
such grant and (b) the Exercise Price of any Incentive Stock Option
granted to a Ten Percent Stockholder will not be less than 110% of the
per share Fair Market Value of such Shares on the date of such grant.
Payment for the Shares purchased shall be made in accordance with
Article 10 of the Plan.
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5.6. Method of Exercise. An Option may be exercised only by delivery to the
Company of an irrevocable written exercise notice (a) identifying the
Option being exercised, (b) stating the number of Shares being
purchased, (c) providing any other matters required by the Award
Agreement with respect to such Option, and (d) containing such
representations and agreements regarding Participant's investment
intent and access to information and other matters, if any, as may
be required or desirable by the Company to comply with applicable
securities laws. Such exercise notice shall be accompanied by payment
in full of the Exercise Price for the number of Shares being
purchased in accordance with Article 10 and the executed Award
Agreement with respect to such Option.
5.7. Termination. Notwithstanding anything contained in Section 5.4 or in an
Award Agreement, exercise of Options shall always be subject to the
following:
(a) If the Participant is Terminated for any reason except
death or Disability, then the Participant may exercise each of such
Participant's Options (i) only to the extent that such Options would
have been exercisable on the Termination Date and (ii) no later
than three months after the Termination Date (or such longer
time period not exceeding five years as may be determined by the
Administrator, with any exercise beyond three months after the
Termination Date deemed to be an exercise of an Non-Qualified Stock
Option), but in any event, no later than the original expiration
date of such Option;
(b) If the Participant is Terminated because of
Participant's death or Disability (or the Participant dies within
three months after a Termination other than for Cause or because
of Participant's Disability), then each of such Participant's
Options (i) may be exercised only to the extent that such Option
would have been exercisable by Participant on the Termination
Date and (ii) must be exercised by Participant (or Participant's
legal representative or authorized assignee) no later than twelve
months after the Termination Date (or such longer time period not
exceeding five years as may be determined by the Administrator,
with any such exercise beyond (A) three months after the
Termination Date when the Termination is for any reason other than
the Participant's death or Disability or (B) twelve months
after the Termination Date when the Termination is because of
Participant's death or Disability, deemed to be an exercise
of a Non-Qualified Stock Option), but in any event no later than
the original expiration date of such Option;
(c) Notwithstanding the provisions in paragraphs 5.7(a) and
5.7(b), if a Participant is terminated for Cause, neither the
Participant, the Participant's estate nor such other person who
may then hold an Option shall be entitled to exercise such
Option whatsoever, whether or not, after the Termination
Date, the Participant may receive payment from the Company or
any Parent, Subsidiary or Affiliate of the Company for vacation
pay, for services rendered prior to the Termination Date, for
services rendered for the day on which Termination occurs, for
salary in lieu of notice, for severance or for any other benefits;
provided, however, in making such a determination, the
Administrator shall give the Participant an opportunity to
present to the Administrator evidence on
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Participant's behalf that the provisions of this paragraph 5.7(c)
should not apply and, in the alternative, paragraph 5.7(a) or
5.7(b) shall apply; provided, further, however, that, for the
purpose of this paragraph 5.7(c), Termination shall be deemed to
occur on the date when the Company dispatches notice or advice
to the Participant that such Participant is Terminated.
5.8. Limitations on Exercise. The Administrator may specify a reasonable
minimum number of Shares that may be purchased on any exercise
of an Option, provided, that such minimum number will not prevent
Participant from exercising the Option for the full number of
Shares for which the Option is then exercisable.
5.9. Limitations on Incentive Stock Options. The aggregate Fair Market
Value (as determined as of the date of grant) of Shares with respect
to which an Incentive Stock Option are exercisable for the first
time by a Participant during any calendar year (under the Plan or
under any other incentive stock option plan of the Company, and any
Parent, Subsidiary and Affiliate of the Company) will not exceed
$100,000. If the Fair Market Value of Shares on the date of grant with
respect to which Incentive Stock Option(s) are exercisable for the
first time by a Participant during any calendar year exceeds $100,000,
then the Option(s) for the first $100,000 worth of Shares to become
exercisable in such calendar year will be deemed Incentive Stock
Option(s) and the Option(s) that become exercisable in such calendar
year for the number of Shares which have a Fair Market Value in
excess of $100,000 will be deemed to be Non-Qualified Stock Option(s).
In the event that the Code or the regulations promulgated thereunder
are amended after the effective date of the Plan to provide for a
different limit on the Fair Market Value of Shares permitted to be
subject to Incentive Stock Options, such different limit will be
automatically incorporated herein and will apply to any Options
granted after the effective date of such amendment.
5.10. Modification, Extension or Renewal. The Administrator may
modify, extend or renew any outstanding Option and authorize the grant
of one or more new Options in substitution therefor; provided that any
such action may not, without the written consent of a Participant,
impair any of such Participant's rights under any Option previously
granted. Any outstanding Incentive Stock Option that is modified,
extended, renewed or otherwise altered will be treated in accordance
with Section 424(h) and other applicable provisions of the Code. The
Administrator may reduce the Exercise Price of any outstanding Option
of a Participant without the consent of the Participant affected by
delivering a written notice to the Participant; provided, however,
that the Exercise Price may not be reduced below the minimum Exercise
Price that would be permitted under Section 5.5 for Options granted on
the date the action is taken to reduce such Exercise Price.
5.11. No Disqualification. Notwithstanding any other provision in the
Plan, no term of the Plan relating to an Incentive Stock Option will
be interpreted, amended or altered, nor will any discretion or
authority granted under the Plan be exercised, so as to disqualify the
Plan
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under Section 422 of the Code or, without the consent of the
Participant affected, to disqualify any Incentive Stock Option under
Section 422 of the Code.
5.12. Prohibition Against Transfer. No Option may be sold, assigned,
transferred, pledged, hypothecated or otherwise disposed of, except by
will or the laws of descent and distribution or pursuant to a domestic
relations order, and a Participant's Option shall be exercisable
during such Participant's lifetime only by such Participant or such
person receiving such Option pursuant to a domestic relations order.
ARTICLE 6. STOCK APPRECIATION RIGHTS.
6.1 Grant of Stock Appreciation Rights.
(a) The Administrator may grant Stock Appreciation Rights
either alone, or in conjunction with the grant of an Option,
Performance Grant or other Award, 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 Administrator 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 Award of Stock
Appreciation Rights or the Shares issuable upon exercise thereof,
as the Administrator shall establish.
(b) The Administrator shall determine the number of Shares to be
subject to each Award of Stock Appreciation Rights. The number of
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 Administrator, to the extent that Shares under
such Award of Stock Appreciation Rights are used to calculate the
cash, Shares, or other securities or property of the Company, 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.
6.2. Prohibition Against Transfer. No Award of Stock Appreciation Rights
may be sold, assigned, transferred, pledged, hypothecated or
otherwise disposed of, except by will or the laws of the descent and
distribution or pursuant to a domestic relations order, and Stock
Appreciation Rights Awarded to a Participant shall be exercisable
during such Participant's lifetime only by such Participant or such
person receiving such Option pursuant to a domestic relations order.
Unless the Administrator determines otherwise, the Award of Stock
Appreciation Rights to a Participant shall not be exercisable for at
least six months after the date of grant, unless such Participant is
Terminated before the expiration of such six-month period by reason
of such Participant's Disability or death.
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6.3. Exercise. The Award of Stock Appreciation Rights shall not be
exercisable:
(a) in the case of any Award of Stock Appreciation Rights that are
attached to an Incentive Stock Option granted to a Ten Percent
Employee, after the expiration of five years from the date such
Incentive Stock Option is granted, and, in the case of any other
Award of Stock Appreciation Rights, after the expiration of ten
years from the date of such Award. Any Award of Stock Appreciation
Rights may be exercised during such period only at such time or
times and in such installments as the Administrator may establish;
(b) unless the Option or other Award to which the Award of Stock
Appreciation Rights is attached is at the time exercisable; and
(c) unless the Participant exercising the Award of Stock
Appreciation Rights has been, at all times 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 or any Parent, Subsidiary or Affiliate of the
Company, except that
(i) in the case of any Award of Stock Appreciation Rights
(other than those attached to an Incentive Stock Option), if
such Participant is Terminated solely by reason of a period of
Related Employment, the Participant may, during such period of
Related Employment, exercise the Award of Stock Appreciation
Rights as if such Participant had not been Terminated;
(ii) if such Participant is Terminated by reason of such
Participant's Disability or early, normal or deferred
retirement under an approved retirement program of the Company
or any Parent, Subsidiary or Affiliate of the Company (or
such other plan or arrangement as may be approved by the
Administrator for this purpose) while holding an Award of Stock
Appreciation Rights which has not expired and has not been fully
exercised, such Participant may, at any time within three years
(or such other period determined by the Administrator) after the
Termination Date (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 such
Participant could have exercised the Award of Stock Appreciation
Rights on the Termination Date, or with respect to such greater
number of Shares as determined by the Administrator;
(iii) if such Participant is Terminated for reasons other
than Related Employment, Disability, early, normal or deferred
retirement or death while holding an Award of Stock Appreciation
Rights which has not expired and has not been fully exercised,
such person may exercise the Award of Stock Appreciation
Rights at any time during the period, if any, which the
Administrator approves (but in no event after the Award of
Stock Appreciation Rights expires) following such Participant's
Termination Date with respect to any Shares as to which such
Participant could have exercised the Award of Stock Appreciation
Rights on such Participant's Termination Date or as otherwise
permitted by the Administrator; or
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(iv) if any Participant to whom an Award of Stock
Appreciation Rights has been granted shall die holding an
Award of Stock Appreciation Rights which has not expired and has
not been fully exercised, such Participant's executors,
administrators, heirs or distributees, as the case may be, may,
at any time within one year (or such other period determined by
the Administrator) after the date of 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 decedent Participant could have exercised the Award
of Stock Appreciation Rights at the time of such death, or with
respect to such greater number of Shares as may be determined by
the Administrator.
6.4. Exercise.
(a) An Award of Stock Appreciation Rights shall entitle the
Participant (or any person entitled to act under the provisions
of clause (iv) of Paragraph 6.3(c) to either (i) exercise such
Award and receive payment in accordance with such Award or
(ii) surrender unexercised the Option (or other Award)
to which the Stock Appreciation Rights is attached (or any
portion of such Option or other Award) to the Company and to
receive from the Company in exchange therefor, without
payment to the Company, that number of Shares having an
aggregate value equal to the excess of the Fair Market Value
of one Share, at the time of such exercise, over the Exercise
Price per share, 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
Administrator shall be entitled to elect to settle the
obligation arising out of the exercise of Stock Appreciation
Rights by the payment of cash or other securities or property of
the Company, or other forms of payment, or any combination
thereof, as determined by the Administrator, equal to the
aggregate value of the Shares the Company would otherwise be
obligated to deliver. Any such election by the Administrator
shall be made as soon as practicable after the receipt by
the Company of written notice of the exercise of such Stock
Appreciation Rights. The value of a Share, other securities
or property of the Company, or other forms of payment determined
by the Administrator for this purpose shall be the Fair Market
Value of a Share on the last business day next preceding the
date of the election to exercise such Stock Appreciation Rights,
unless the Administrator determines otherwise and is set forth
in the Award Agreement with respect to such Stock
Appreciation Rights.
(b) An Award of Stock Appreciation Rights may provide that
such Stock Appreciation Rights shall be deemed to have been
exercised at the close of business on the business day preceding
the expiration date of such Stock Appreciation Rights or of
the related Option (or other Award), or such other date as
specified by the Administrator, if at such time such Stock
Appreciation Rights has a positive value. Such deemed exercise
shall be settled or paid in the same manner as a regular
exercise thereof as provided in Paragraph 6.4(a).
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6.5. Fractional Shares. No fractional shares may be delivered under this
Article 6, but, in lieu thereof, a cash or other adjustment shall be
made as determined by the Administrator.
ARTICLE 7. RESTRICTED STOCK.
7.1. Grant. An Award of Restricted Stock is an offer by the Company to sell
to an Eligible Participant Shares that are subject to restrictions.
The Administrator will determine to whom an offer will be made, the
number of Shares the person may purchase, the Exercise Price to
be paid, the restrictions to which the Shares will be subject, and
all other terms and conditions of the Restricted Stock Award, subject
to the provisions of this Article 7.
7.2 Form of Restricted Stock Award. All purchases under an Award of
Restricted Stock will be evidenced by an Award Agreement that will be
in such form (which need not be the same for each Award of Restricted
Stock or Participant) as the Administrator will from time to time
pprove, and will comply with and be subject to the terms and
conditions of the Plan. The offer of Restricted Stock will be accepted
by the Participant's execution and delivery of the Award Agreement
evidencing the offer to purchase the Restricted Stock and full payment
for the Shares to the Company within 30 days from the date such Award
Agreement is tendered to such Eligible Participant. If such Eligible
Participant does not execute and deliver such Award Agreement along
with full payment for the Shares to the Company within such 30 day
period, then such offer will terminate, unless otherwise determined by
the Administrator.
7.3. Purchase Price. The Exercise Price of Shares sold pursuant to an Award
of Restricted Stock will be determined by the Administrator on the
date such Award is granted, except in the case of a sale to a Ten
Percent Stockholder, in which case the Exercise Price will be 100% of
the per share Fair Market Value on the date such Award is granted of
the Shares subject to the Award. Payment of the Exercise Price may be
made in accordance with Article 10 of the Plan.
7.4. Terms of Restricted Stock Awards. Each Award of Restricted Stock shall
be subject to such restrictions as the Administrator may impose.
These restrictions may be based upon completion of a specified number of
years of service with the Company or upon completion of the performance
goals as set out in advance in the Participant's individual Award
Agreement. Awards of Restricted Stock may vary from Participant to
Participant and between groups of Participants. Prior to the grant of
an Award of Restricted Stock, the Administrator shall:
(a) determine the nature, length and starting date of any
performance period for the Restricted Stock Award;
(b) select from among the performance factors to be used to measure
performance goals, if any; and
(c) determine the number of Shares that may be awarded to the
Participant.
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Prior to the payment of any Restricted Stock pursuant to an Award, the
Administrator shall determine the extent to which such Restricted
Stock Award has been earned. Performance periods may overlap and
Participants may participate simultaneously with respect to Restricted
Stock Awards that are subject to different performance periods and
having different performance goals and other criteria.
7.5. Termination During Performance Period. If a Participant is Terminated
during a performance period with respect to any Award of Restricted
Stock for any reason, then such Participant will be entitled to payment
(whether in Shares, cash or otherwise) with respect to the Restricted
Stock Award only to the extent earned as of the date of Termination in
accordance with the Award Agreement with respect to such Restricted
Stock, unless the Administrator determines otherwise.
ARTICLE 8. PERFORMANCE GRANTS.
8.1. Award. The Award of a Performance Grant ("Performance Grant") to a
Participant will entitle such Participant to receive a specified
amount (the "Performance Grant Actual Value") as determined by the
Administrator; provided that the terms and conditions specified in
the Plan and in the Award of such Performance Grant are satisfied. Each
Award of a Performance Grant shall be subject to the terms and
conditions set forth in this Article 8 and such other terms and
conditions, including, but not limited to, restrictions upon any cash,
Shares, other securities or property of the Company, or other forms of
payment, or any combination thereof, issued in respect of the
Performance Grant, as the Administrator shall establish, shall be
embodied in an Award Agreement in such form and substance as is
approved by the Administrator.
8.2. Terms. The Administrator shall determine the value or range of values
of a Performance Grant to be awarded to each Participant selected for
an Award of a Performance Grant and whether or not such Performance
Grant is granted in conjunction with an Award of Options, Stock
Appreciation Rights, Restricted Stock or other type of Award, or any
combination thereof, under the Plan (which may include, but need not
be limited to, deferred Awards) concurrently or subsequently granted
to such Participant (the "Associated Award"). As determined by the
Administrator, the maximum value of each Performance Grant (the
"Maximum Value") shall be:
(a) an amount fixed by the Administrator at the time the award is
made or amended thereafter;
(b) an amount which varies from time to time based in whole
or in part on the then current Fair Market Value of a Share,
other securities or property of the Company, or other
securities or property, or any combination thereof; or
(c) an amount that is determinable from criteria specified by the
Administrator.
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
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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 Administrator.
8.3. Award Period. The award period ("Performance Grant Award Period") in
respect of any Performance Grant shall be a period determined by
the Administrator. At the time each Performance Grant is
made, the Administrator shall establish performance objectives to be
attained within the Performance Grant Award Period as the means of
determining the Performance Grant Actual Value of such 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 Subsidiary, Parent or Affiliate of the Company, or one or
more of divisions or units thereof, or any combination of the
foregoing, as the Administrator shall determine, and may be applied on
an absolute basis or be relative to industry or other indices, or
any combination thereof. Each Performance Grant Actual Value of
a Performance Grant shall be equal to the Performance Grant Maximum
Value of such Performance grant only if the performance objectives are
attained in full, but the Administrator shall specify the manner
in which the Performance Grant Actual Value shall be determined if
the performance objectives are met in part. Such performance
measures, the Performance Grant Actual Value or the Performance
Grant Maximum Value, or any combination thereof, may be adjusted
in any manner by the Administrator at any time and from time to time
during or as soon as practicable after the Performance Grant Award
Period, if it determines that such performance measures, the
Performance grant Actual Value or the Performance Grant Maximum
Value, or any combination thereof, are not appropriate under the
circumstances.
8.4. Termination. The rights of a Participant in Performance Grants awarded
to such Participant shall be provisional and may be canceled or paid
in whole or in part, all as determined by the Administrator, if such
Participant's continuous employment or performance of services for
the Company, any Parent, Subsidiary and Affiliate of the
Company shall terminate for any reason prior to the end of the
Performance Grant Award Period, except solely by reason of a period of
Related Employment.
8.5. Determination of Performance Grant Actual Values. The Committee shall
determine whether the conditions of Paragraphs 8.2 or 8.3 have been
met and, if so, shall ascertain the Performance Grant Actual
Value of Performance Grants. If a Performance Grant has no Performance
Grant Actual Value, the Award of such Performance Grant shall be
deemed to have been canceled and the Associated Award, if any, may be
canceled or permitted to continue in effect in accordance with such
Associated Award's terms. If a Performance Grant has a Performance
Grant Actual Value and:
(a) was not awarded in conjunction with an Associated Award,
the Administrator shall cause an amount equal to the Performance
Grant Actual Value of such Performance Grant to be paid to the
Participant or the Participant's beneficiary as provided below; or
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(b) was awarded in conjunction with an Associated Award, the
Administrator shall determine, in accordance with criteria
specified by the Administrator, whether to (i) to cancel such
Performance Grant, in which event no amount in respect thereof
shall be paid to the Participant or the Participant's beneficiary,
and the Associated Award may be permitted to continue in effect
in accordance with the Associated Award's terms, (ii) pay the
Performance Grant Actual Value to the Participant or the
Participant's beneficiary as provided below, in which event such
Associated Award may be canceled, or (iii) pay to the Participant
or the Participant's beneficiary as provided below, the
Performance Grant Actual Value of only a portion of such
Performance Grant, in which case a complimentary portion of
the Associated Award may be permitted to continue in effect in
accordance with its terms or be canceled, as determined by the
Administrator.
Such determination by the Administrator shall be made as promptly as
practicable following the end of the Performance Grant Award Period or
upon the earlier termination of employment or performance of
services, or at such other time or times as the Administrator shall
determine, and shall be made pursuant to criteria specified by the
Administrator.
8.6. Payment. Payment of any amount in respect of the Performance Grants
which the Administrator determines to pay as provided in this
Article 8 shall be made by the Company as promptly as practicable
after the end of the Performance Grant Award Period or at such other
time or times as the Administrator shall determine, and may be made
in cash, Shares, other securities or property of the Company, or
other forms of payment, or any combination thereof or in such
other manner, as determined by the Administrator. Notwithstanding
anything in this Article 8 to the contrary, the Administrator may
determine and pay out a Performance Grant Actual Value of a
Performance Grant at any time during the Performance Grant Award
Period.
ARTICLE 9. STOCK BONUSES.
9.1. Awards of Stock Bonuses. A Stock Bonus is an Award of Shares (which
may consist of Restricted Stock) for services rendered to the Company
or any Parent, Subsidiary or Affiliate of the Company. A Stock Bonus
may be awarded for past services already rendered to the Company, or
any Parent, Subsidiary or Affiliate of the Company pursuant to an Award
Agreement (the "Stock Bonus Agreement") that will be in such form
(which need not be the same for each Participant) as the Administrator
will from time to time approve, and will comply with and be subject to
the terms and conditions of the Plan. A Stock Bonus may be
awarded upon satisfaction of such performance goals as are set out
in advance in the Participant's individual Award Agreement that will
be in such form (which need not be the same for each Participant) as the
Administrator will from time to time approve, and will comply with and
be subject to the terms and conditions of the Plan. Stock Bonuses may
vary from Participant to Participant and between groups of
Participants, and may be based upon the achievement of the Company, any
Parent,
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Subsidiary or Affiliate of the Company and/or individual
performance factors or upon such other criteria as the Administrator
may determine.
9.2 Terms of Stock Bonuses. The Administrator will determine the number of
Shares to be awarded to the Participant. If the Stock Bonus is being
earned upon the satisfaction of performance goals set forth in an Award
Agreement, then the Administrator will:
(a) determine the nature, length and starting date of any
performance period for each Stock Bonus;
(b) select from among the performance factors to be used to measure
the performance, if any; and
(c) determine the number of Shares that may be awarded to the
Participant. Prior to the payment of any Stock Bonus, the
Administrator shall determine the extent to which such Stock Bonuses
have been earned. Performance periods may overlap and Participants
may participate simultaneously with respect to Stock Bonuses
that are subject to different performance periods and different
performance goals and other criteria. The number of Shares may be
fixed or may vary in accordance with such performance goals and
criteria as may be determined by the Administrator. The
Administrator may adjust the performance goals applicable to
the Stock Bonuses to take into account changes in law and
accounting or tax rules and to make such adjustments as the
Administrator deems necessary or appropriate to reflect the impact
of extraordinary or unusual items, events or circumstances to avoid
windfalls or hardships.
9.3. Form of Payment. The earned portion of a Stock Bonus may be paid
currently or on a deferred basis with such interest or dividend
equivalent, if any, as the Administrator may determine. Payment may be
made in the form of cash or whole Shares or a combination thereof,
either in a lump sum payment or in installments, all as the
Administrator will determine.
ARTICLE 10. PAYMENT FOR SHARE PURCHASES.
10.1. Payment. Payment for Shares purchased pursuant to this Plan may be made
in cash (by check) or, where expressly approved for the Participant by
the Administrator and where permitted by law:
(a) by cancellation of indebtedness of the Company to the
Participant;
(b) by surrender of Shares that either (i) have been owned by the
Participant for more than six months and have been paid for within
the meaning of Rule 144 promulgated under the Securities Act
(and, if such shares were purchased from the Company by use of a
promissory note, such note has been fully paid with respect to such
shares) or (ii) were obtained by Participant in the public market;
(c) by tender of a full recourse promissory note having such
terms as may be approved by the Administrator and bearing interest
at a rate sufficient to avoid imputation of income under Sections
483 and 1274 of the Code; provided, however, that Participants
who are not employees or directors of the Company
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will not be entitled to purchase Shares with a promissory note
unless the note is adequately secured by collateral other than the
Shares;
(d) by waiver of compensation due or accrued to the Participant for
services rendered;
(e) with respect only to purchases upon exercise of an
Option, and provided that a public market for the Company's stock
exists, (i) through a "same day sale" commitment from the
Participant and a broker-dealer that is a member of the National
Association of Securities Dealers (an "NASD Dealer") whereby
the Participant irrevocably elects to exercise the Option and to
sell a portion of the Shares so purchased to pay for the Exercise
Price, and whereby the NASD Dealer irrevocably commits upon receipt
of such Shares to forward the Exercise Price directly to the
Company, or (ii) through a "margin" commitment from the
Participant and an NASD Dealer whereby the Participant
irrevocably elects to exercise the Option and to pledge
the Shares so purchased to the NASD Dealer in a margin account
as security for a loan from the NASD Dealer in the amount of the
Exercise Price, and whereby the NASD Dealer irrevocably commits upon
receipt of such Shares to forward the Exercise Price directly to the
Company; or
(f) by any combination of the foregoing.
10.2. Loan Guarantees. The Company, in its sole discretion, may assist a
Participant in paying for Shares purchased under the Plan by
authorizing a guarantee by the Company of a third-party loan to the
Participant.
ARTICLE 11. AUTOMATIC GRANTS TO OUTSIDE DIRECTORS.
11.1. Types of Options and Shares. Each Option granted under this Plan
pursuant to this Article 11 shall be a Non-Qualified Stock Option.
11.2. Eligibility. Options subject to this Article 11 shall be granted
only to Non-Employee Directors and only when the Non-Employee
Directors do not receive a grant under the Company's Outside Director
and Advisor Stock Option Plan due to the unavailability of shares
subject to or the termination of such plan.
11.3. Initial Grant. Subject to Section 11.2, each Non-Employee
Director who first becomes a member of the Board on or after the
effective date of the Plan, will automatically be granted an Option
for 25,000 Shares on the date such Non-Employee Director first becomes
a member of the Board.
11.4. Succeeding Grant. Subject to Section 11.2, on August 1st of each
calendar year, each Non-Employee Director will automatically be granted
an Option for 25,000 Shares, provided the Non-Employee Director is a
member of the Board on such date.
11.5. Exercise Price. The Exercise Price of an Option granted pursuant to
this Article 11 shall be the Fair Market Value of a Share on the date
that the Option is deemed granted.
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11.6. Exercisability of Options. Each option granted pursuant to this
Article 11 shall be exercisable as follows:
(a) up to 33-1/3% of the number of Shares subject to such Option
commencing immediately upon the grant of such Option;
(b) up to an additional 33-1/3% of the number of Shares
subject to such Option commencing on the first anniversary of the
date of grant of such Option; and
(c) up to an additional 33-1/3% of the number of Shares
subject to such Option commencing on the second anniversary of
the date of grant of such Option.
11.7. Method of Exercise. An Option granted pursuant to this Article
11 may be exercised only by delivery to the Company of an irrevocable
written exercise notice (a) identifying the Option being exercised,
(b) stating the number of Shares being purchased, (c) providing any
other matters required by the Award Agreement with respect to such
Option, and (d) containing such representations and agreements
regarding Participant's investment intent and access to information
and other matters, if any, as may be required or desirable by the
Company to comply with applicable securities laws. Such exercise
notice shall be accompanied by payment in full of the Exercise Price
for the number of Shares being purchased and the executed Award
Agreement with respect to such Option.
11.8. Termination. Notwithstanding anything contained in Section 11.7 or in
an Award Agreement, exercise of Options granted pursuant to this
Article 11 shall always be subject to the following:
(a) If the Participant is Terminated for any reason except
death or Disability, then the Participant may exercise each of
such Participant's Options (i) only to the extent that such
Options would have been exercisable on the Termination Date and
(ii) no later than three months after the Termination Date (or
such longer time period not exceeding five years as may be
determined by the Administrator, with any exercise beyond three
months after the Termination Date deemed to be an exercise of
an Non-Qualified Stock Option), but in any event, no later than the
original expiration date of such Option;
(b) If the Participant is Terminated because of
Participant's death or Disability (or the Participant dies
within three months after a Termination other than for Cause or
because of Participant's Disability), then each of such
Participant's Options may be exercised only to the extent that
such Option would have been exercisable by Participant on the
Termination Date and must be exercised by Participant (or
Participant's legal representative or authorized assignee) no
later than twelve months after the Termination Date (or such longer
time period not exceeding five years as may be determined by
the Administrator, but in any event no later than the original
expiration date of such Option;
(c) Notwithstanding the provisions in paragraphs 11.8(a) and
11.8(b), if a Participant is Terminated for Cause, neither
the Participant, the Participant's estate nor such other person
who may then hold the Option shall be entitled to exercise
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any Option with respect to any Shares whatsoever, after
termination of service, whether or not, after termination of
service, the Participant may receive payment from the Company
or any Parent, Subsidiary or Affiliate of the Company for
services rendered prior to termination, for services rendered for
the day on which termination occurs, or for any other benefits;
provided, however, in making such a determination, the
Administrator shall give the Participant an opportunity to present
to the Administrator evidence on Participant's behalf that
the provisions of this paragraph 11.8(c) should not apply and,
in the alternative, paragraph 11.8(a) or 11.8(b) shall apply;
provided, further, however, that, for the purpose of this
paragraph 11.8(c), termination of service shall be deemed to
occur on the date when the Company dispatches notice or advice
to the Participant that such Participant's service is terminated.
11.9. Limitations on Exercise. The Administrator may specify a
reasonable minimum number of Shares that may be purchased on any
exercise of an Option, provided, that such minimum number will not
prevent Participant from exercising the Option for the full number of
Shares for which the Option is then exercisable.
11.10. Prohibition Against Transfer. No Option may be sold, assigned,
transferred, pledged, hypothecated or otherwise disposed of, except by
will or the laws of descent and distribution or pursuant to a domestic
relations order, and a Participant's Option shall be exercisable
during such Participant's lifetime only by such Participant or such
person receiving the Option pursuant to a domestic relations order.
ARTICLE 12. DEFERRAL OF COMPENSATION.
12.1. Deferral Terms. The Administrator shall determine whether or not an
Award to a Participant shall be made in conjunction with deferral of
such Participant's salary, bonus or other compensation, or any
combination thereof, and whether or not such deferred amounts may be:
(a) 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, any Parent, Subsidiary and Affiliate);
(b) subject to increase or decrease in value based upon the
attainment of or failure to attain, respectively, certain
performance measures; and/or
(c) 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 such Award, if any.
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ARTICLE 13. DEFERRED PAYMENT OF AWARDS.
13.1. Deferral Terms. The Administrator may specify that the payment
of all or any portion of cash, Shares, other securities or property of
the Company, 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 Administrator shall determine. 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, 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 Administrator.
ARTICLE 14. AMENDMENT OR SUBSTITUTION OF AWARDS UNDER THE PLAN.
14.1. Amendments and Substitutions. The terms of any outstanding Award
under the Plan may be amended from time to time by the Administrator
in any manner that the Administrator deems appropriate (including, but
not limited to, acceleration of the date of exercise of any Award
and/or payments thereunder, or reduction of the Exercise Price of an
Award); provided, however, that no such amendment shall adversely
affect in a material manner any right of a Participant under such
Award without the Participant's written consent. The Administrator may
permit or require holders of Awards to surrender outstanding Awards as
a condition precedent to the grant of new Awards under the Plan.
ARTICLE 15. DESIGNATION OF BENEFICIARY BY PARTICIPANT.
15.1. Designation. A Participant may designate one or more
beneficiaries to receive any rights and payments to which such
Participant may be entitled in respect of any Award in the event of
such Participant's death. Such designation shall be on a written form
acceptable to and filed with the Administrator. The Administrator
shall have the right to review and approve beneficiary designations. A
Participant may change the Participant's beneficiary(ies) from time to
time in the same manner as the original designation, unless such
Participant has made an irrevocable designation. Any designation of
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 Administrator. If no
designated beneficiary survives the Participant and is living on the
date on which any right or amount becomes payable to such
Participant's beneficiary(ies), 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 is any question as to the legal right of
any beneficiary to receive a distribution
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under the Plan, the Administrator 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 Administrator, the
Board and the Committee and the members thereof will have no further
liability to any person or entity with respect to such amount.
ARTICLE 16. CHANGE IN CONTROL.
16.1. Effect of a Change in Control. Upon any Change in Control:
(a) each Stock Option and Stock Appreciation Right that is
outstanding on the date of such Change in Control shall be
exercisable in full immediately;
(b) all restrictions with respect to Restricted Stock
shall lapse immediately, and the Company's right to repurchase
or forfeit any Restricted Stock outstanding on the date of such
Change in Control shall thereupon terminate and the certificates
representing such Restricted Stock and the related stock powers
shall be promptly delivered to the Participants entitled thereto;
and
(c) all Performance Grant Award Periods for the
purposes of determining the amounts of Awards of Performance
Grants shall end as of the end of the calendar quarter immediately
preceding the date of such Change in Control, and the amount of
the Performance Grant payable shall be the portion of the maximum
possible Performance Grant allocable to the portion of the
Performance Grant Award Period that had elapsed and the results
achieved during such portion of the Performance Grant Award Period.
16.2. Change of Control. For this purpose, a Change in Control shall be
deemed to occur when and only when any of the following events first
occurs:
(a) any person who is not currently such becomes the
beneficial owner, directly or indirectly, of securities of the
Company representing 20% or more of the combined voting power of
the Company's then outstanding voting securities;
(b) three or more directors, whose election or
nomination for election is not approved by a majority of the
Incumbent Board, are elected within any single 24-month period to
serve on the Board;
(c) members of the Incumbent Board cease to constitute a
majority of the Board without the approval of the remaining members
of the Incumbent Board; or
(d) any merger (other than a merger where the Company is the
survivor and there is no accompanying Change in Control under
clauses (a), (b) or (c) of this Section 16.2),
consolidation, liquidation or dissolution of the Company, or
the sale of all or substantially all of the assets of the Company.
Notwithstanding the foregoing, a Change in Control shall not be deemed
to occur pursuant to clause (a) of this Section 16.2 solely because
20% or more of the combined voting power of the Company's outstanding
securities is acquired by one or more
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employee benefit plans maintained by the Company or by any other
employer, the majority interest in which is held, directly or
indirectly, by the Company. For purposes of this Article 16, the
terms "person" and "beneficial owner" shall have the meaning
set forth in Sections 3(a) and 13(d) of the Exchange Act, and
in the regulations promulgated thereunder.
ARTICLE 17. PLAN AMENDMENT OR SUSPENSION.
17.1. Plan Amendment or Suspension. The Plan may be amended or
suspended in whole or in part at any time and 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
Sections 162 and 422 of the Code, Rule 16b-3 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.
ARTICLE 18. PLAN TERMINATION.
18.1. Method of Plan Termination. The 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) June 11, 2010; provided, however, that the Board may, prior
to the expiration of such ten-year period, 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.
18.2. Effect of Termination on Outstanding Awards. No termination of
the Plan shall materially alter or impair any of the rights or
obligations of any person, without such person's consent, under any
Award theretofore granted under the Plan, except that subsequent to
termination of the Plan, the Administrator may make amendments
permitted under Article 14.
ARTICLE 19. STOCKHOLDER ADOPTION.
19.1. Stockholder Approval. The Plan shall be submitted to the stockholders
of the Company for their approval and adoption at a meeting to be held
on or before June 10, 2001.
19.2. Effectiveness of Plan Prior to Stockholder Approval. The Plan
shall not be effective and no Award shall be made hereunder unless and
until the Plan has been approved by the stockholders of the Company as
provided in Section 19.1. The stockholders shall be deemed to have
approved and adopted the Plan only if it is approved at a meeting of
the
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stockholders duly held by vote taken in the manner required by the
laws of the State of Delaware and the applicable federal securities
laws.
ARTICLE 20. TRANSFERABILITY.
20.1. Transferability. Except as may be approved by the Administrator
where such approval shall not adversely affect compliance of the Plan
with Sections 162 and 422 of the Code and/or Rule 16b-3, 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 Option or similar right
(including, but not limited to, a Stock Appreciation Right) offered
pursuant to the Plan shall not be transferable other than by will or
the laws of descent or pursuant to a domestic relations order and
shall be exercisable during the Participant's lifetime only by such
Participant or such person receiving such option pursuant to a
domestic relations order.
ARTICLE 21. PRIVILEGES OF STOCK OWNERSHIP; RESTRICTIONS ON SHARES.
21.1. Voting and Dividends. No Participant will have any of the rights
of a stockholder with respect to any Shares subject to or issued
pursuant to the Plan until such Shares are issued to the Participant.
After Shares are issued to the Participant, the Participant will be a
stockholder and have all the rights of a stockholder with respect to
such Shares, including the right to vote and receive all dividends or
other distributions made or paid with respect to such Shares;
provided, however, that if such Shares are Restricted Stock, then any
new, additional or different securities the Participant may become
entitled to receive with respect to such Shares by virtue of a stock
dividend, stock split or any other change in the corporate or capital
structure of the Company will be subject to the same restrictions as
the Restricted Stock; provided, further, that the Participant will
have no right to retain such stock dividends or stock distributions
with respect to Restricted Stock that is repurchased at the
Participant's Exercise Price in accordance with an Award Agreement
with respect to such Restricted Stock.
21.2. Financial Statements. The Company will provide financial
statements to each Participant prior to such Participant's purchase of
Shares under the Plan, and to each Participant annually during the
period such Participant has Awards outstanding; provided, however, the
Company will not be required to provide such financial statements to
Participants whose services in connection with the Company assure them
access to equivalent information.
21.3. Restrictions on Shares. At the discretion of the Administrator,
the Company may reserve to itself and/or its assignee(s) in the Award
Agreement a right to repurchase a portion of or all Shares issued
pursuant to such Award Agreement and held by a Participant
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following such Participant's Termination at any time within 90 days
after the later of Participant's Termination Date or the date
Participant purchases Shares under the Plan, for cash and/or
cancellation of purchase money indebtedness, at the Participant's
Exercise Price or such other price as the Administrator may determine
at the time of the grant of the Award.
ARTICLE 22. CERTIFICATES.
22.1. Legal Restrictions; Stock Legends. All Shares or other
securities delivered under this Plan will be subject to such stock
transfer orders, legends and other restrictions as the Administrator
may deem necessary or advisable, including restrictions under any
applicable federal, state or foreign securities law, or any rules,
regulations and other requirements promulgated under such laws or any
stock exchange or automated quotation system upon which the Shares may
be listed or quoted and each stock certificate evidencing such Shares
and other certificates shall be appropriately legended.
ARTICLE 23. ESCROW; PLEDGE OF SHARES.
23.1 Deposit of Shares; Escrow. To enforce any restrictions on a
Participant's Shares, the Committee may require the Participant to
deposit all stock certificates evidencing Shares, together with
stock powers or other instruments of transfer approved by the
Administrator, appropriately endorsed in blank, with the Company or an
agent designated by the Company to hold in escrow until such
restrictions have lapsed or terminated, and the Administrator may
cause a legend or legends referencing such restrictions to be
placed on the certificates. Any Participant who is permitted to
execute a promissory note as partial or full consideration for
the purchase of Shares under the Plan will be required to pledge
and deposit with the Company all or part of the Shares so
purchased as collateral to secure the payment of Participant's
obligation to the Company under the promissory note; provided, however,
that the Administrator may require or accept other or additional
forms of collateral to secure the payment of such obligation and, in
any event, the Company will have full recourse against the Participant
under the promissory note notwithstanding any pledge of the
Participant's Shares or other collateral. In connection with any
pledge of the Shares, Participant will be required to execute and
deliver a written pledge agreement in such form as the Administrator
will from time to time approve. The Shares purchased with the
promissory note may be released from the pledge on a pro rata basis as
the promissory note is paid.
ARTICLE 24. EXCHANGE AND BUYOUT OF AWARDS.
24.1. Exchange. The Administrator may, at any time or from time to time,
authorize the Company, with the consent of the respective Participants,
to issue new Awards in exchange for the surrender and cancellation of
any or all outstanding Awards.
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24.2 Buyout of Awards. The Administrator may, at any time or from time to
time, authorize the Company to buy from a Participant an Award
previously granted with payment in cash, Shares (including Restricted
Stock) or other consideration, based on such terms and conditions as
the Administrator and the Participant may agree.
ARTICLE 25. SECURITIES LAW AND OTHER REGULATORY COMPLIANCE.
25.1. Compliance with Applicable Laws. An Award will not be effective
unless such Award is made in compliance with all applicable federal
and state securities laws, rules and regulations of any governmental
body, and the requirements of any stock exchange or automated
quotation system upon which the Shares may then be listed or quoted,
as they are in effect on the date of grant of the Award and also on
the date of exercise or other issuance. Notwithstanding any other
provision in this Plan, the Company will have no obligation to issue
or deliver stock certificates for Shares under this Plan prior to:
(a) obtaining any approvals from governmental agencies that the
Administrator determines are necessary or advisable; and/or
(b) completion of any registration or other qualification of
such Shares under any state or federal law or ruling of any
governmental body that the Administrator determines to be necessary
or advisable.
25.2. No Obligation to Register Shares or Awards. The Company will be
under no obligation to register the Shares under the Securities Act or
to effect compliance with the registration, qualification or listing
requirements of any state securities laws, stock exchange or automated
quotation system, and the Company will have no liability for any
inability or failure to do so.
ARTICLE 26. NO OBLIGATION TO EMPLOY.
26.1. No Right to Employment or Continuation of Relationship. Nothing
in this Plan or any Award granted under the Plan will confer or be
deemed to confer on any Participant any right to continue in the
employ of, or to continue any other relationship with, the Company or
any Parent, Subsidiary or Affiliate of the Company or limit in any way
the right of the Company or any Parent, Subsidiary or Affiliate of the
Company to terminate Participant's employment or other relationship at
any time, with or without cause.
ARTICLE 27. NONEXCLUSIVITY OF THE PLAN.
27.1. Neither the adoption of the Plan by the Board, the submission of
the Plan to the stockholders of the Company for approval, nor any
provision of this Plan will be construed as creating any limitations
on the power of the Board or the Committee to adopt such additional
compensation arrangements as the Board may deem desirable, including,
without limitation, the granting of stock options and bonuses
otherwise than
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under the Plan, and such arrangements may be either generally
applicable or applicable only in specific cases.
ARTICLE 28. MISCELLANEOUS PROVISIONS.
28.1. No Rights Unless Specifically Granted. No employee or other
person shall have any claim or right to be granted an Award under the
Plan under any contract, agreement or otherwise. Determinations made
by the Administrator under the Plan need not be uniform and may be
made selectively among Eligible Participants under the Plan, whether
or not such Eligible Participants are similarly situated.
28.2. No Rights Until Written Evidence Delivered. No Participant or
other person shall have any right with respect to the Plan, the Shares
reserved for issuance under the Plan or in any Award, contingent or
otherwise, until written evidence of the Award, in the form of an
Award Agreement, 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 such recipient) have been met.
28.3 Compliance with Applicable Law. No 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.
28.4 Compliance with Rule 16b-3. 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.
28.5. Right to Withhold Payments. The Company and any Parent,
Subsidiary and Affiliate of 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 Shares, other securities or property of the
Company, 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 requested 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 Shares, other securities or property of
the Company, other securities or property, or other forms of payment,
or any combination thereof. Notwithstanding anything in the Plan to
the contrary, the Administrator may permit an Eligible Participant
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(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
Administrator 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, Shares, other securities or property of the Company,
other securities or property, or other forms of payment, or any
combination thereof, owned by such person or a portion of such 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.
28.6. Expenses of Administration. The expenses of the Plan shall be borne by
the Company. However, if an Award is made to an individual employed by or
performing services for a Parent, Subsidiary or Affiliate of the Company:
(a) if such Award results in payment of cash to the
Participant, such Parent, Subsidiary or Affiliate shall pay to the
Company an amount equal to such cash payment unless the
Administrator shall otherwise determine;
(b) if the Award results in the issuance by the Company
to the Participant of Shares, other securities or property of the
Company, other securities or property, or other forms of payment, or
any combination thereof, such Parent, Subsidiary or Affiliate of
the Company shall, unless the Administrator shall otherwise
determine, pay to the Company an amount equal to the fair market
value thereof, as determined by the Administrator, on the date
such Shares, other securities or property of the Company, other
securities or property, or other forms of payment, or any combination
thereof, are issued (or, in the case of the issuance of Restricted
Stock or of Shares, other securities or property of the Company,
or other securities or property, or other forms of payment
subject to transfer and forfeiture conditions, equal to the fair
market value thereof on the date on which they are no longer
subject to such applicable restrictions), minus the amount,
if any, received by the Company in respect of the purchase of such
Shares, other securities or property of the Company, other
securities or property or other forms of payment, or any
combination thereof, all as the Administrator shall determine; and
(c) the foregoing obligations of any such Parent,
Subsidiary or Affiliate of the Company shall survive and remain
in effect and binding on such entity even if its status as a
Parent, Subsidiary or Affiliate of the Company should
subsequently cease, except as otherwise agreed by the Company and
such Parent, Subsidiary or Affiliate.
28.7. Unfunded Plan. 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.
28.8. Acceptance of Award Deemed Consent. By accepting any Award or
other benefit under the Plan, each Participant and each person
claiming under or through such Participant
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shall be conclusively deemed to have indicated such Participant's
(or other person's) acceptance and ratification of, and consent to,
any action taken by the Company, Administrator, Board or Committee or
their respective delegates under the Plan.
28.9. Fair Market Value Determined By the Administrator. Fair market
value in relation to other securities or property of the Company,
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 Administrator in accordance with
the Plan and applicable law.
28.10. Use of Terms. For the purposes of the Plan, in the use of any term, the
singular includes the plural and the plural includes the singular
wherever appropriate.
28.11. Filing of Reports. The appropriate officers of the Company
shall cause to be filed any reports, returns or other information
regarding Awards hereunder or any 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.
28.12. Validity; Construction; Interpretation. The validity,
construction, interpretation, administration and effect of the Plan,
and of its rules and regulations, and rights relating to the Plan and
Award Agreements 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.
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