Exhibit E
Form of 2000 Stock Incentive Plan
FRENCH FRAGRANCES, , INC.
2000 STOCK INCENTIVE PLAN
1. PURPOSE. The French Fragrances, Inc. 2000 Stock Incentive Plan (the
"Plan") is intended to provide incentives which will attract, retain and
motivate highly competent persons as officers and employees of, and consultants
and advisors to, French Fragrances, Inc. (the "Company") and its subsidiaries
and affiliates, by providing them opportunities to acquire shares of the
Company's common stock, par value $.01 per share (the "Common Stock"), or to
receive monetary payments based on the value of such shares pursuant to the
Benefits (as defined below) described herein. Additionally, the Plan is intended
to assist in further aligning the interests of the Company's officers, employees
and consultants and advisors to those of its other stockholders.
2. ADMINISTRATION.
(a) The Plan will be administered by a committee (the "Committee")
appointed by the Board of Directors of the Company from among its members (which
may be the Compensation Committee) and shall be comprised, unless otherwise
determined by the Board of Directors, solely of not less than two members who
shall be (i) "Non-Employee Directors" within the meaning of Rule 16b-3(b)(3) (or
any successor rule) promulgated under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and (ii) "outside directors" within the meaning of
Treasury Regulation Section 1.162-27(e)(3) under Section 162(m) of the Internal
Revenue Code of 1986, as amended (the "Code"). The Committee is authorized,
subject to the provisions of the Plan, to establish such rules and regulations
as it deems necessary for the proper administration of the Plan and to make such
determinations and interpretations and to take such action in connection with
the Plan and any Benefits granted hereunder as it deems necessary or advisable.
All determinations and interpretations made by the Committee shall be binding
and conclusive on all participants and their legal representatives. No member of
the Committee and no employee of the Company shall be liable for any act or
failure to act hereunder, except in circumstances involving his or her bad
faith, gross negligence or willful misconduct, or for any act or failure to act
hereunder by any other member or employee or by any agent to whom duties in
connection with the administration of this Plan have been delegated. The Company
shall indemnify members of the Committee and any agent of the Committee who is
an employee of the Company, a subsidiary or an affiliate against any and all
liabilities or expenses to which they may be subjected by reason of any act or
failure to act with respect to their duties on behalf of the Plan, except in
circumstances involving such person's bad faith, gross negligence or willful
misconduct.
(b) The Committee may delegate to one or more of its members, or to one or
more agents, such administrative duties as it may deem advisable, and the
Committee, or any person to whom it has delegated duties as aforesaid, may
employ one or more persons to render advice
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with respect to any responsibility the Committee or such person may have under
the Plan. The Committee may employ such legal or other counsel, consultants and
agents as it may deem desirable for the administration of the Plan and may rely
upon any opinion or computation received from any such counsel, consultant or
agent. Expenses incurred by the Committee in the engagement of such counsel,
consultant or agent shall be paid by the Company, or the subsidiary or affiliate
whose employees have benefited from the Plan, as determined by the Committee.
3. PARTICIPANTS. Participants will consist of such officers and employees
of, and such consultants and advisors to, the Company and its subsidiaries and
affiliates as the Committee in its sole discretion determines to be important or
responsible for the success and future growth and profitability of the Company
and whom the Committee may designate from time to time to receive Benefits under
the Plan. Designation of a participant in any year shall not require the
Committee to designate such person to receive a Benefit in any other year or,
once designated, to receive the same type or amount of Benefit as granted to the
participant in any other year. The Committee shall consider such factors as it
deems pertinent in selecting participants and in determining the type and amount
of their respective Benefits.
4. TYPE OF BENEFITS. Benefits under the Plan may be granted in any one or a
combination of (a) Stock Options, (b) Stock Appreciation Rights, (c) Stock
Awards, (d) Performance Awards and (e) Stock Units (each as described below, and
collectively, the "Benefits"). Stock Awards, Performance Awards, and Stock Units
may, as determined by the Committee in its discretion, constitute
Performance-Based Awards, as described in Section 11 hereof. Benefits shall be
evidenced by agreements (which need not be identical) in such forms as the
Committee may from time to time approve; provided, however, that in the event of
any conflict between the provisions of the Plan and any such agreements, the
provisions of the Plan shall prevail.
5. COMMON STOCK AVAILABLE UNDER THE PLAN. The aggregate number of shares of
Common Stock that may be subject to Benefits, including Stock Options, granted
under this Plan shall be 3,000,000 shares of Common Stock, which may be
authorized and unissued or treasury shares, subject to any adjustments made in
accordance with Section 13 hereof. The maximum number of shares of Common Stock
with respect to which Benefits may be granted or measured to any individual
participant under the Plan during the term of the Plan shall not exceed
1,000,000, provided, however, that the maximum number of shares of Common Stock
with respect to which Stock Options and Stock Appreciation Rights may be granted
to an individual participant under the Plan during the term of the Plan shall
not exceed 1,000,000 (in each case, subject to adjustments made in accordance
with Section 13 hereof). Any shares of Common Stock subject to a Stock Option or
Stock Appreciation Right which for any reason is cancelled or terminated without
having been exercised, any shares subject to Stock Awards, Performance Awards or
Stock Units which are forfeited, any shares subject to Performance Awards
settled in cash or any shares delivered to the Company as part or full payment
for the exercise of a Stock Option or Stock Appreciation Right shall again be
available for Benefits under the Plan. The preceding sentence shall apply only
for purposes of determining the aggregate number of shares of Common Stock
subject to Benefits but shall not apply for purposes of determining the maximum
number of shares of Common Stock with respect to which Benefits (including the
maximum number of shares of Common Stock subject to Stock Options and Stock
Appreciation Rights) that may be granted to any individual participant under the
Plan.
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6. STOCK OPTIONS. Stock Options will consist of awards from the Company
that will enable the holder to purchase a number of shares of Common Stock, at
set terms. Stock Options may be "incentive stock options" ("Incentive Stock
Options"), within the meaning of Section 422 of the Code, or Stock Options which
do not constitute Incentive Stock Options ("Nonqualified Stock Options"). The
Committee will have the authority to grant to any participant one or more
Incentive Stock Options, Nonqualified Stock Options, or both types of Stock
Options (in each case with or without Stock Appreciation Rights). Each Stock
Option shall be subject to such terms and conditions consistent with the Plan as
the Committee may impose from time to time, subject to the following
limitations:
(a) EXERCISE PRICE. Each Stock Option granted hereunder shall
have such per-share exercise price as the Committee may determine at
the date of grant; provided, however, subject to subsection (d) below,
that the per-share exercise price shall not be less than 100% of the
Fair Market Value (as defined below) of the Common Stock on the date
the Stock Option is granted.
(b) PAYMENT OF EXERCISE PRICE. The option exercise price may be
paid in cash or, in the discretion of the Committee, by the delivery
of shares of Common Stock of the Company then owned by the
participant, or by delivery to the Company of (x) irrevocable
instructions to deliver directly to a broker the stock certificates
representing the shares for which the Option is being exercised, and
(y) irrevocable instructions to such broker to sell such shares for
which the Option is being exercised, and promptly deliver to the
Company the portion of the proceeds equal to the Option exercise price
and any amount necessary to satisfy the Company's obligation for
withholding taxes, or any combination thereof. For purposes of making
payment in shares of Common Stock, such shares shall be valued at
their Fair Market Value on the date of exercise of the Option and
shall have been held by the Participant for at least six months. To
facilitate the foregoing, the Company may enter into agreements for
coordinated procedures with one or more brokerage firms. The Committee
may prescribe any other method of paying the exercise price that it
determines to be consistent with applicable law and the purpose of the
Plan, including, without limitation, in lieu of the exercise of a
Stock Option by delivery of shares of Common Stock of the Company then
owned by a participant, providing the Company with a notarized
statement attesting to the number of shares owned, where upon
verification by the Company, the Company would issue to the
participant only the number of incremental shares to which the
participant is entitled upon exercise of the Stock Option or by the
Company retaining from the shares of Common Stock to be delivered upon
the exercise of the Stock Option that number of shares having a Fair
Market Value on the date of exercise equal to the option price of the
number of shares with respect to which the Participant exercises the
Stock Option.
(c) EXERCISE PERIOD. Stock Options granted under the Plan shall
be exercisable at such time or times and subject to such terms and
conditions as shall be determined by the Committee; provided, however,
that no Stock Option shall be exercisable later than ten years after
the date it is granted except in the event of a participant's death,
in which case, the exercise period of such participant's
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Stock Options may be extended beyond such period but no later than one
year after the participant's death. All Stock Options shall terminate
at such earlier times and upon such conditions or circumstances as the
Committee shall in its discretion set forth in such option agreement
at the date of grant; provided, however, the Committee may, in its
sole discretion, later waive any such condition.
(d) LIMITATIONS ON INCENTIVE STOCK OPTIONS. Incentive Stock
Options may be granted only to participants who are employees of the
Company or one of its subsidiaries (within the meaning of Section
424(f) of the Code) at the date of grant. The aggregate Fair Market
Value (determined as of the time the Stock Option is granted) of the
Common Stock with respect to which Incentive Stock Options are
exercisable for the first time by a participant during any calendar
year (under all option plans of the Company and of any parent
corporation or subsidiary corporation (as defined in Sections 424(e)
and (f) of the Code, respectively)) shall not exceed $100,000. For
purposes of the preceding sentence, Incentive Stock Options will be
taken into account in the order in which they are granted. The
per-share exercise price of an Incentive Stock Option shall not be
less than 100% of the Fair Market Value of the Common Stock on the
date of grant, and no Incentive Stock Option may be exercised later
than ten years after the date it is granted; provided, however,
Incentive Stock Options may not be granted to any participant who, at
the time of grant, owns stock possessing (after the application of the
attribution rules of Section 424(d) of the Code) more than 10% of the
total combined voting power of all classes of stock of the Company or
any parent or subsidiary corporation of the Company, unless the
exercise price is fixed at not less than 110% of the Fair Market Value
of the Common Stock on the date of grant and the exercise of such
option is prohibited by its terms after the expiration of five years
from the date of grant of such option. In addition, no Incentive Stock
Option may be issued to a participant in tandem with a Nonqualified
Stock Option.
(e) POST-EMPLOYMENT EXERCISES. The exercise of any Stock Option
after termination of employment of a participant with the Company, a
subsidiary of the Company or with any company or person providing
consulting or advisory services to the Company shall be subject to
such conditions as imposed by the Committee at the time of the grant
and satisfaction of the conditions precedent that the participant
neither (i) competes with, or takes other employment with or renders
services to a competitor of, the Company, its subsidiaries or
affiliates without the written consent of the Company; provided that
this clause (i) shall not apply to consultants or advisors of the
Company, nor (ii) conducts himself or herself in a manner adversely
affecting the Company; provided, however, that the Committee, in its
sole discretion, may waive any conditions imposed in the grant letter
or as set forth in (i) and (ii) above relating to the exercise of
options after the date of termination of employment during the term of
the option.
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7. STOCK APPRECIATION RIGHTS.
(a) The Committee may, in its discretion, grant Stock
Appreciation Rights to the holders of any Stock Options granted
hereunder. In addition, Stock Appreciation Rights may be granted
independently of, and without relation to, Stock Options. A Stock
Appreciation Right means a right to receive a payment in cash, Common
Stock or a combination thereof, in an amount equal to the excess of
(x) the Fair Market Value, or other specified valuation, of a
specified number of shares of Common Stock on the date the right is
exercised over (y) the Fair Market Value, or other specified valuation
(which shall be no less than the Fair Market Value) of such shares of
Common Stock on the date the right is granted, all as determined by
the Committee; provided, however, that if a Stock Appreciation Right
is granted in tandem with or in substitution for a Stock Option, the
designated Fair Market Value in the award agreement may be the Fair
Market Value on the date such Stock Option was granted. Each Stock
Appreciation Right shall be subject to such terms and conditions as
the Committee shall impose from time to time.
(b) Stock Appreciation Rights granted under the Plan shall be
exercisable at such time or times and subject to such terms and
conditions as shall be determined by the Committee; provided, however,
that no Stock Appreciation Rights shall be exercisable later than ten
years after the date it is granted except in the event of a
participant's death, in which case, the exercise period of such
participant's Stock Appreciation Rights may be extended beyond such
period but no later than one year after the participant's death. All
Stock Appreciation Rights shall terminate at such earlier times and
upon such conditions or circumstances as the Committee shall in its
discretion set forth in such right at the date of grant.
(c) The exercise of any Stock Appreciation Right after
termination of employment of a participant with the Company, a
subsidiary of the Company or with any company or person providing
consulting or advisory services to the Company shall be subject to
satisfaction of the conditions precedent that the participant neither
(i) competes with, or takes other employment with or renders services
to a competitor of, the Company, its subsidiaries or affiliates
without the written consent of the Company; provided that this clause
(i) shall not apply to consultants or advisors of the Company, nor
(ii) conducts himself or herself in a manner adversely affecting the
Company; provided, however, that the Committee, in its sole
discretion, may waive any conditions imposed in the grant letter or as
set forth in (i) and (ii) above relating to the exercise of options
after the date of termination of employment during the term of the
option.
8. STOCK AWARDS. The Committee may, in its discretion, grant Stock Awards
(which may include mandatory payment of bonus incentive compensation in stock)
consisting of Common Stock issued or transferred to participants with or without
other payments therefor. Stock Awards may be subject to such terms and
conditions as the Committee determines appropriate, including, without
limitation, vesting, restrictions on the sale or other disposition of such
shares, the right of the Company to reacquire such shares for no consideration
upon termination of the participant's employment within specified periods, and
may constitute Performance-Based Awards, as described in Section 11 hereof. The
Committee may require the
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participant to deliver a duly signed stock power, endorsed in blank, relating to
the Common Stock covered by such an Award. The Committee may also require that
the stock certificates evidencing such shares be held in custody or bear
restrictive legends until the restrictions thereon shall have lapsed. The Stock
Award shall specify whether the participant shall have, with respect to the
shares of Common Stock subject to a Stock Award, all of the rights of a holder
of shares of Common Stock of the Company, including the right to receive
dividends and to vote the shares.
9. PERFORMANCE AWARDS.
(a) Performance Awards may be granted to participants at any time and from
time to time, as shall be determined by the Committee. Performance Awards may
constitute Performance-Based Awards, as described in Section 11 hereof. The
Committee shall have complete discretion in determining the number, amount and
timing of awards granted to each participant. Such Performance Awards may be in
the form of shares of Common Stock or Stock Units. Performance Awards may be
awarded as short-term or long-term incentives. Performance targets may be based
upon, without limitation, Company-wide, divisional and/or individual
performance.
(b) With respect to those Performance Awards that are not intended to
constitute Performance-Based Awards, the Committee shall have the authority at
any time to make adjustments to performance targets for any outstanding
Performance Awards which the Committee deems necessary or desirable unless at
the time of establishment of such targets the Committee shall have precluded its
authority to make such adjustments.
(c) Payment of earned Performance Awards shall be made in accordance with
terms and conditions prescribed or authorized by the Committee. The participant
may elect to defer, or the Committee may require or permit the deferral of, the
receipt of Performance Awards upon such terms as the Committee deems
appropriate.
10. STOCK UNITS.
(a) The Committee may, in its discretion, grant Stock Units to participants
hereunder. The Committee shall determine the criteria for the vesting of Stock
Units. Stock Units may constitute Performance-Based Awards, as described in
Section 11 hereof. A Stock Unit granted by the Committee shall provide payment
in shares of Common Stock at such time as the award agreement shall specify.
Shares of Common Stock issued pursuant to this Section 10 may be issued with or
without other payments therefor as may be required by applicable law or such
other consideration as may be determined by the Committee. The Committee shall
determine whether a participant granted a Stock Unit shall be entitled to a
Dividend Equivalent Right (as defined below).
(b) Upon vesting of a Stock Unit, unless the Committee has determined to
defer payment with respect to such unit or a participant has elected to defer
payment under subsection (c) below, shares of Common Stock representing the
Stock Units shall be distributed to the participant unless the Committee
provides for the payment of the Stock Units in cash or partly in
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cash and partly in shares of Common Stock equal to the value of the shares of
Common Stock which would otherwise be distributed to the participant.
(c) Prior to the year with respect to which a Stock Unit may vest, the
participant may elect not to receive a distribution upon the vesting of such
Stock Unit and for the Company to continue to maintain the Stock Unit on its
books of account. In such event, the value of a Stock Unit shall be payable in
shares of Common Stock pursuant to the agreement of deferral.
(d) A "Stock Unit" means a notional account representing one share of
Common Stock. A "Dividend Equivalent Right" means the right to receive the
amount of any dividend paid on the share of Common Stock underlying a Stock
Unit, which shall be payable in cash or in the form of additional Stock Units.
11. PERFORMANCE-BASED AWARDS. Certain Benefits granted under the Plan may
be granted in a manner such that the Benefits qualify for the performance-based
compensation exemption of Section 162(m) of the Code ("Performance-Based
Awards"). As determined by the Committee in its sole discretion, either the
granting or vesting of such Performance-Based Awards shall be based on
achievement of various key performance indicators in one or more business
criteria that apply to the individual participant, one or more business units or
the Company as a whole. The business criteria shall be as follows, individually
or in combination: (i) net sales, (ii) net earnings; (iii) earnings per share;
(iv) net sales growth; (v) market share; (vi) net operating profit; (vii)
expense targets; (viii) working capital targets relating to inventory and/or
accounts receivable; (ix) operating margin; (x) return on equity; (xi) return on
assets; (xii) planning accuracy (as measured by comparing planned results to
actual results); (xiii) market price per share; and (xiv) total return to
stockholders. In addition, Performance-Based Awards may include comparisons to
the performance of other companies, such performance to be measured by one or
more of the foregoing business criteria. With respect to Performance-Based
Awards, (i) the Committee shall establish in writing (x) the performance goals
applicable to a given period, and such performance goals shall state, in terms
of an objective formula or standard, the method for computing the amount of
compensation payable to the participant if such performance goals are obtained
and (y) the individual employees or class of employees to which such performance
goals apply no later than 90 days after the commencement of such period (but in
no event after 25% of such period has elapsed) and (ii) no Performance-Based
Awards shall be payable to or vest with respect to, as the case may be, any
participant for a given period until the Committee certifies in writing that the
objective performance goals (and any other material terms) applicable to such
period have been satisfied. With respect to any Benefits intended to qualify as
Performance-Based Awards, after establishment of a performance goal, the
Committee shall not revise such performance goal or increase the amount of
compensation payable thereunder (as determined in accordance with Section 162(m)
of the Code) upon the attainment of such performance goal. Notwithstanding the
preceding sentence, the Committee may reduce or eliminate Benefits payable upon
the attainment of such performance goal.
12. FOREIGN LAWS. The Committee may grant Benefits to individual
participants who are subject to the tax laws of nations other than the United
States, which Benefits may have terms and conditions as determined by the
Committee as necessary to comply with applicable foreign laws. The Committee may
take any action which it deems advisable to obtain approval of such Benefits by
the appropriate foreign governmental entity; provided, however, that no such
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Benefits may be granted pursuant to this Section 12 and no action may be taken
which would result in a violation of the Exchange Act, the Code or any other
applicable law.
13. ADJUSTMENT PROVISIONS; CHANGE IN CONTROL.
(a) If there shall be any change in the Common Stock of the Company or the
capitalization of the Company through merger, consolidation, reorganization,
recapitalization, stock dividend, stock split, reverse stock split, split up,
spin-off, combination of shares, exchange of shares, dividend in kind or other
like change in capital structure or distribution (other than normal cash
dividends) to stockholders of the Company in order to prevent dilution or
enlargement of participants' rights under the Plan, the Committee, in its sole
discretion, shall adjust, in an equitable manner, as applicable, the number and
kind of shares that may be issued under the Plan, the number and kind of shares
subject to outstanding Benefits, the exercise price applicable to outstanding
Benefits, and the Fair Market Value of the Common Stock and other value
determinations applicable to outstanding Benefits; provided, however, that any
such arithmetic adjustment to a Performance-Based Award shall not cause the
amount of compensation payable thereunder to be increased from what otherwise
would have been due upon attainment of the unadjusted award. Appropriate
adjustments may also be made by the Committee in the terms of any Benefits under
the Plan to reflect such changes or distributions and to modify any other terms
of outstanding Benefits on an equitable basis, including modifications of
performance targets and changes in the length of performance periods; provided,
however, that any such arithmetic adjustment to a Performance-Based Award shall
not cause the amount of compensation payable thereunder to be increased from
what otherwise would have been due upon attainment of the unadjusted award. In
addition, other than with respect to Stock Options, Stock Appreciation Rights,
and other awards intended to constitute Performance-Based Awards, the Committee
is authorized to make adjustments to the terms and conditions of, and the
criteria included in, Benefits in recognition of unusual or nonrecurring events
affecting the Company or the financial statements of the Company, or in response
to changes in applicable laws, regulations, or accounting principles.
Notwithstanding the foregoing, (i) each such adjustment with respect to an
Incentive Stock Option shall comply with the rules of Section 424(a) of the
Code, and (ii) in no event shall any adjustment be made which would render any
Incentive Stock Option granted hereunder other than an incentive stock option
for purposes of Section 422 of the Code. The determination of the Committee as
to the foregoing adjustments, if any, shall be conclusive and binding on
participants under the Plan.
(b) Notwithstanding any other provision of this Plan, if there is a Change
in Control of the Company, all then outstanding Stock Options and Stock
Appreciation Rights shall immediately vest and become exercisable. For purposes
of this Section 14(b), a "Change in Control" of the Company shall be deemed to
have occurred upon any of the following events:
(i) a change in control of the Company that would be required to
be reported in response to Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Exchange Act; or
(ii) during any period of two (2) consecutive years, the
individuals who at the beginning of such period constitute the
Company's Board of Directors or any individuals who would be
"Continuing Directors" (as hereinafter defined)
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cease for any reason (other than due to death or voluntary
resignation) to constitute at least a majority thereof; or
(iii) the Company's Common Stock shall cease to be publicly
traded after initially being publicly traded; or
(iv) the Company's Board of Directors shall approve a sale of all
or substantially all of the assets of the Company, and such
transaction shall have been consummated; or
(v) the Company's Board of Directors shall approve any merger,
consolidation, or like business combination or reorganization of the
Company, the consummation of which would result in the occurrence of
any event described in Section 13(b)(i) above, and such transaction
shall have been consummated.
For purposes of this Section 13(b), "Continuing Directors" shall mean (x)
the directors of the Company in office on the Effective Date (as defined below)
and (y) any successor to any such director and any additional director who after
the Effective Date was nominated or selected by a majority of the Continuing
Directors (or the Nominating Committee of the Board of Directors of the Company)
in office at the time of his or her nomination or selection.
The Committee, in its discretion, may determine that, upon the occurrence
of a Change in Control of the Company, each Stock Option and Stock Appreciation
Right outstanding hereunder shall terminate within a specified number of days
after notice to the holder, and such holder shall receive, with respect to each
share of Common Stock subject to such Stock Option or Stock Appreciation Right,
an amount equal to the excess of the Fair Market Value of such shares of Common
Stock immediately prior to the occurrence of such Change in Control or such
other event over the exercise price per share of such Stock Option or Stock
Appreciation Right; such amount to be payable in cash, in one or more kinds of
property (including the property, if any, payable in the transaction) or in a
combination thereof, as the Committee, in its discretion, shall determine. The
provisions contained in the preceding sentence shall be inapplicable to a Stock
Option or Stock Appreciation Right granted within six (6) months before the
occurrence of a Change in Control if the holder of such Stock Option or Stock
Appreciation Right is subject to the reporting requirements of Section 16(a) of
the Exchange Act and no exception from liability under Section 16(b) of the
Exchange Act is otherwise available to such holder.
14. NONTRANSFERABILITY. Each Benefit granted under the Plan to a
participant shall not be transferable otherwise than by will or the laws of
descent and distribution, and shall be exercisable, during the participant's
lifetime, only by the participant. In the event of the death of a participant,
each Stock Option or Stock Appreciation Right theretofore granted to him or her
shall be exercisable during such period after his or her death as the Committee
shall in its discretion set forth in such option or right at the date of grant
and then only by the executor or administrator of the estate of the deceased
participant or the person or persons to whom the deceased participant's rights
under the Stock Option or Stock Appreciation Right shall pass by will or the
laws of descent and distribution. Notwithstanding the foregoing, at the
discretion of the Committee, an award of a Benefit other than an Incentive Stock
Option may permit the transferability of a Benefit by a participant solely to
the participant's spouse, siblings, parents,
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children and grandchildren or trusts for the benefit of such persons or
partnerships, corporations, limited liability companies or other entities owned
solely by such persons, including trusts for such persons, subject to any
restriction included in the award of the Benefit.
15. OTHER PROVISIONS. The award of any Benefit under the Plan may also be
subject to such other provisions (whether or not applicable to the Benefit
awarded to any other participant) as the Committee determines appropriate,
including, without limitation, for the installment purchase of Common Stock
under Stock Options, for the installment exercise of Stock Appreciation Rights,
to assist the participant in financing the acquisition of Common Stock, for the
forfeiture of, or restrictions on resale or other disposition of, Common Stock
acquired under any form of Benefit, for the acceleration of exercisability or
vesting of Benefits in the event of a change in control of the Company, for the
payment of the value of Benefits to participants in the event of a change in
control of the Company, or to comply with federal and state securities laws, or
understandings or conditions as to the participant's employment in addition to
those specifically provided for under the Plan. The Committee shall have full
discretion to interpret and administer the Plan.
16. FAIR MARKET VALUE. For purposes of this Plan and any Benefits awarded
hereunder, Fair Market Value shall be the closing price of the Company's Common
Stock on the date of calculation (or on the last preceding trading date if
Common Stock was not traded on such date) if the Company's Common Stock is
readily tradeable on a national securities exchange or other market system, and
if the Company's Common Stock is not readily tradeable, Fair Market Value shall
mean the amount determined in good faith by the Committee as the fair market
value of the Common Stock of the Company.
17. WITHHOLDING. All payments or distributions of Benefits made pursuant to
the Plan shall be net of any amounts required to be withheld pursuant to
applicable federal, state and local tax withholding requirements. If the Company
proposes or is required to distribute Common Stock pursuant to the Plan, it may
require the recipient to remit to it or to the corporation that employs such
recipient an amount sufficient to satisfy such tax withholding requirements
prior to the delivery of any certificates for such Common Stock. In lieu
thereof, the Company or the employing corporation shall have the right to
withhold the amount of such taxes from any other sums due or to become due from
such corporation to the recipient as the Committee shall prescribe. The
Committee may, in its discretion and subject to such rules as it may adopt
(including any as may be required to satisfy applicable tax and/or non-tax
regulatory requirements), permit an optionee or award or right holder to pay all
or a portion of the federal, state and local withholding taxes arising in
connection with any Benefit consisting of shares of Common Stock by electing to
have the Company withhold shares of Common Stock having a Fair Market Value
equal to the amount of tax to be withheld, such tax calculated at rates required
by statute or regulation.
18. TENURE. A participant's right, if any, to continue to serve the Company
or any of its subsidiaries or affiliates as an officer, employee, or otherwise,
shall not be enlarged or otherwise affected by his or her designation as a
participant under the Plan.
19. UNFUNDED PLAN. Participants shall have no right, title, or interest
whatsoever in or to any investments which the Company may make to aid it in
meeting its obligations under the
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Plan. Nothing contained in the Plan, and no action taken pursuant to its
provisions, shall create or be construed to create a trust of any kind, or a
fiduciary relationship between the Company and any participant, beneficiary,
legal representative or any other person. To the extent that any person acquires
a right to receive payments from the Company under the Plan, such right shall be
no greater than the right of an unsecured general creditor of the Company. All
payments to be made hereunder shall be paid from the general funds of the
Company and no special or separate fund shall be established and no segregation
of assets shall be made to assure payment of such amounts except as expressly
set forth in the Plan. The Plan is not intended to be subject to the Employee
Retirement Income Security Act of 1974, as amended.
20. NO FRACTIONAL SHARES. No fractional shares of Common Stock shall be
issued or delivered pursuant to the Plan or any Benefit. The Committee shall
determine whether cash, or Benefits, or other property shall be issued or paid
in lieu of fractional shares or whether such fractional shares or any rights
thereto shall be forfeited or otherwise eliminated.
21. DURATION, AMENDMENT AND TERMINATION. No Benefit shall be granted more
than ten years after the Effective Date. The Committee may amend the Plan from
time to time or suspend or terminate the Plan at any time. No amendment of the
Plan may be made without approval of the stockholders of the Company if the
amendment will: (i) disqualify any Incentive Stock Options granted under the
Plan; (ii) increase the aggregate number of shares of Common Stock that may be
delivered through Stock Options under the Plan; (iii) increase either of the
maximum amounts which can be paid to an individual participant under the Plan as
set forth in Section 5 hereof; (iv) change the types of business criteria on
which Performance-Based Awards are to be based under the Plan; or (v) modify the
requirements as to eligibility for participation in the Plan.
22. GOVERNING LAW. This Plan, Benefits granted hereunder and actions taken
in connection herewith shall be governed and construed in accordance with the
laws of the State of Delaware (regardless of the law that might otherwise govern
under applicable Delaware principles of conflict of laws).
23. EFFECTIVE DATE.
(a) The Plan shall be effective as of _________ ___, 2000, the date on
which the Plan was adopted by the Committee (the "Effective Date"), provided
that the Plan is approved by the stockholders of the Company at an annual
meeting, any special meeting or by written consent of stockholders of the
Company within 12 months of the Effective Date, and such approval of
stockholders shall be a condition to the right of each participant to receive
any Benefits hereunder. Any Benefits granted under the Plan prior to such
approval of stockholders shall be effective as of the date of grant (unless,
with respect to any Benefit, the Committee specifies otherwise at the time of
grant), but no such Benefit may be exercised or settled and no restrictions
relating to any Benefit may lapse prior to such stockholder approval, and if
stockholders fail to approve the Plan as specified hereunder, any such Benefit
shall be cancelled.
(b) This Plan shall terminate on __________ __, 2010 (unless sooner
terminated by the Committee).
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