BeFirst.com - 1999 Stock Incentive Plan
BeFirst.com
1999 Stock Incentive Plan
Section 1. Purposes; Definitions.
The purpose of this Plan is to enable the Company to offer to its key
employees and to key employees of its Subsidiaries and other persons who are
expected to contribute to the success of the Company, long term
performance-based stock and/or other equity interests in the Company, thereby
enhancing their ability to attract, retain and reward such key employees or
other persons, and to increase the mutuality of interest between those employees
or other persons and the stockholders of the Company.
For purposes of this Plan, the following terms shall be defined as set
forth below:
(a) "Board" means the Board of Directors of BeFirst.com
(b) "Cause" shall have the meaning ascribed thereto in Section 5(b)(ix)
below.
(c) "Change of Control" shall have the meaning ascribed thereto in Section
9 below.
(d) "Code" means the Internal Revenue Code of 1986, as amended from time
to time, and any successor thereto.
(e) "Committee" means the Stock Incentive Committee of the Board or any
other committee of the Board which the Board may designate.
(f) "Company" means BeFirst.com, a corporation organized under the laws of
the State of Nevada.
(g) "Deferred Stock" means Stock to be received, under an award made
pursuant to Section 7 below, at the end of a specified deferral
period.
(h) "Disability" means disability as determined under procedures
established by the Committee for purposes of this Plan.
(i) "Early Retirement" means retirement from active employment with the
Company or any Parent or Subsidiary prior to age 65, with the approval
of the Board or the Committee, for purposes of one or more award(s)
under this Plan.
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(j) "Exchange Act" means the Securities Exchange Act of 1934, as amended,
as in effect from time to time.
(k) "Fair Market Value" of a share of Stock means, as of any given date:
(i) if the Stock is listed on a national securities exchange or quoted
on the National Association of Securities Dealers, Inc. Automated
Quotation System ("NASDAQ"), the last sale price of a share of Stock
on the last preceding day on which the Common Stock was traded, as
reported by such exchange or NASDAQ, or on a composite tape reflecting
transactions on such exchange or by NASDAQ, as the case may be; (ii)
if the Stock is not listed on a national securities exchange or quoted
on the NASDAQ, but is traded in the over-the- counter market, the
average of the high bid and asked prices for a share of Stock on the
last preceding day for which such quotations are reported by the
National Quotation Bureau, Inc.; and (iii) if the fair market value of
a share of Stock cannot be determined pursuant to clause (i) or (ii)
above, such price as the Board of Directors or the Committee, as the
case may be, shall determine, which determination shall be conclusive
as to the Fair Market Value of the Stock.
(l) "Incentive Stock Option" means any Stock Option which is intended to
be and is designated as an "incentive stock option" within the meaning
of Section 422 of the Code.
(m) "Non-Qualified Stock Option" means any Stock Option that is not an
Incentive Stock Option.
(n) "Normal Retirement" means retirement from active employment with the
Company or any Subsidiary on or after age 65.
(o) "Other Stock-Based Award" means an award under Section 8 below that is
valued in whole or in part by reference to, or is otherwise based upon
Stock.
(p) "Parent" means any present or future parent of the Company, as such
term is defined in Section 424(e) of the Code, or any successor
thereto.
(q) "Performance Objectives" means performance objectives adopted by the
Committee pursuant to the Plan for key employees who have received
awards under the Plan. With respect to any award to a key employee who
is, or is determined by the Committee to be likely to become a
"covered employee" within the meaning of Section 162(m) of the Code,
the Performance Objectives shall be limited to specified levels of
growth in or peer company comparisons based upon (i) appreciation in
the price of Stock plus reinvested dividends over a specified period
of time, (ii) return on assets or (iii) book value per share, as the
Committee may determine, and the attainment of such Performance
Objectives shall not be deemed to have occurred until certified by the
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Committee. Except in the case of a covered employee, if the Committee
determines that a change in business, operations, corporate structure
or capital structure of the Company, or the manner in which it
conducts it business, or other events or circumstances under the
Performance Objectives to be unsuitable, the Committee may modify such
Performance Objectives or the related minimum acceptable level of
achievement, in whole or in part, as the Committee deems appropriate.
(r) "Plan" means this BeFirst.com 1999 Stock Incentive Plan, as
hereinafter amended from time to time.
(s) "Restricted Stock" means Stock, received under an award made pursuant
to Section 6 below, that is subject to restrictions imposed pursuant
to said Section 6.
(t) "Retirement" means Normal Retirement or Early Retirement.
(u) "Rule 16b-3" means Rule 16b-3 of the General Rules and Regulations
under the Exchange Act, as in effect from time to time, and any
successor thereto.
(v) "Section 162(m)" means Section 162(m) of the Code, as in effect from
time to time, and any successor thereto.
(w) "Securities Act" means the Securities Act of 1933, as amended, as in
effect from time to time.
(x) "Stock" means the Common Stock of the Company, par value $.001 per
share.
(y) "Stock Option" or "Option" means any option to purchase shares of
Stock which is granted pursuant to the Plan.
(z) "Subsidiary" means any present or future (A) subsidiary corporation of
the Company, as such term is defined in Section 424(f) of the Code, or
(B) unincorporated business entity in which the Company owns, directly
or indirectly, 50% or more of the voting rights, capital or profits.
Section 2. Administration.
The Plan shall be administered by the Board, or at its discretion, the
Committee, the membership of which shall consist solely of two or more members
of the Board, each of whom shall serve at the pleasure of the Board and shall be
a "Non-Employee Director," as defined in Rule 16b-3, and an "outside director,"
as defined in Section 162(m) of the Code, and shall be at all times constituted
so as not to adversely affect the compliance of the Plan
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with the requirements of Rule 16b-3 or with the requirements of any other
applicable law, rule or regulation.
The Board or the Committee, as the case may be, shall have the authority to
grant, pursuant to the terms of the Plan, to officers and other key employees or
other persons eligible under Section 4 below: (i) Stock Options, (ii) Restricted
Stock, (iii) Deferred Stock, and/or (iv) Other Stock-Based Awards.
For purposes of illustration and not of limitation, the Board or the
Committee, as the case may be, shall have the authority (subject to the express
provisions of this Plan):
(i) to select the officers and other key employees of the Company or any
Parent or Subsidiary and other persons to whom Stock Options,
Restricted Stock, Deferred Stock and/or Other Stock-Based Awards may
be from time to time granted hereunder;
(ii) to determine the Incentive Stock Options, Non-Qualified Stock Options,
Restricted Stock, Deferred Stock and/or Other Stock-Based Awards, or
any combination thereof, if any, to be granted hereunder to one or
more eligible persons;
(iii) to determine the number of shares of Stock to be covered by each
award granted hereunder;
(iv) to determine the terms and conditions, not inconsistent with the terms
of the Plan, of any award granted hereunder (including, but not
limited to, share price, any restrictions or limitations, and any
vesting acceleration, exercisability and/or forfeiture provisions);
(v) to determine the terms and conditions under which awards granted
hereunder are to operate on a tandem basis and/or in conjunction with
or apart from other awards made by the Company or any Parent or
Subsidiary outside of this Plan;
(vi) to determine the extent and circumstances under which Stock and other
amounts payable with respect to an award hereunder shall be deferred;
and
(vii) to substitute (A) new Stock Options for previously granted Stock
Options, including previously granted Stock Options which have higher
option exercise prices and/or containing other less favorable terms,
and (B) new awards of any other type for previously granted awards of
the same type, including previously granted awards which contain less
favorable terms.
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Subject to Section 10 hereof, The Board or the Committee, as the case may
be, shall have the authority to (i) adopt, alter and repeal such administrative
rules, guidelines and practices governing this Plan as it shall, from time to
time, deem advisable, (ii) interpret the terms and provisions of this Plan and
any award issued under this Plan (and to determine the form and substance of all
agreements relating thereto), and (iii) to otherwise supervise the
administration of the Plan.
Subject to the express provisions of the Plan, all decisions made by the
Board or the Committee, as the case may be, pursuant to the provisions of the
Plan shall be made in the Board or the Committee's sole and absolute discretion
and shall be final and binding upon all persons, including the Company, its
Parent and Subsidiaries and the Plan participants.
Section 3. Stock Subject to Plan.
The total number of shares of Stock reserved and available for distribution
under this Plan shall be 1,000,000 shares. Such shares may consist, in whole or
in part, of authorized and unissued shares or treasury shares.
If any shares of Stock that have been optioned cease to be subject to a
Stock Option for any reason, or if any shares of Stock that are subject to any
Restricted Stock award, Deferred Stock award or Other Stock-Based Award are
forfeited or any such award otherwise terminates without the issuance of such
shares, such shares shall again be available for distribution under the Plan.
In the event of any merger, reorganization, consolidation,
recapitalization, stock dividend, stock split, extraordinary distribution with
respect to the Stock or other change in corporate structure affecting the Stock,
such substitutions or adjustments shall be made in the (A) aggregate number and
kind of shares reserved for issuance under this Plan, (B) number, kind and
exercise price of shares of Stock subject to outstanding Options granted under
this Plan, and (C) number, kind, purchase price and/or appreciation base of
shares of Stock subject to other outstanding awards granted under this Plan, as
may be determined to be appropriate by the Board or the Committee, as the case
may be, in its sole discretion, in order to prevent dilution or enlargement of
rights; provided, however, that the number of shares subject to any award shall
always be a whole number. Such adjusted exercise price shall also be used to
determine the amount which is payable to the optionee upon the exercise by the
Board or the Committee, as the case may be, of the alternative settlement right
which is set forth in Section 5(b)(xi) below.
Subject to the provisions of the immediately preceding paragraph, the
maximum numbers of shares subject to Options, Restricted Stock awards, Deferred
Stock awards, and other Stock-Based awards to any employee who is employed by
the Company or any Parent or Subsidiary on the last day of any taxable year of
the Company, shall be 600,000 shares during the term of the Plan.
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Section 4. Eligibility.
Officers and other key employees of the Company or any Parent or Subsidiary
(but excluding any person whose eligibility would adversely affect the
compliance of the Plan with the requirements of Rule 16b-3) who are at the time
of the grant of an award under this Plan employed by the Company or any Parent
or Subsidiary and who are responsible for or contribute to the management,
growth and/or profitability of the business of the Company or any Parent or
Subsidiary, are eligible to be granted Options and awards under this Plan. In
addition, Non-Qualified Stock Options and other awards may be granted under the
Plan to any person, including, but not limited to, independent agents,
consultants and attorneys who the Board or the Committee, as the case may be,
believes has contributed or will contribute to the success of the Company.
Eligibility under the Plan shall be determined by the Board or the Committee, as
the case may be.
The grants of Restricted Stock, Deferred Stock and Other Stock-Based Awards
under this Plan shall be earned by a participant on the basis of the Company's
financial performance over the period or periods for which the grants were
awarded on the basis of pre-established performance goals determined by the
Board or the Committee, as the case may be, in its sole discretion. The
performance measurement criteria used for such grants shall be limited to one or
more of: earnings per share, return on stockholders' equity, return on assets,
growth in earnings, growth in sales revenue, and stockholder returns. Such
criteria may be measured by the Company's results or the Company's performance
as measured against a group of comparable companies selected by the Committee.
In applying such criteria, earnings may be calculated based on the exclusion of
discontinued operations and extraordinary items. The Board or the Committee, as
the case may be, may, in its sole discretion, include additional conditions and
restrictions in the agreement entered into in connection with awards under this
Plan.
Section 5. Stock Options.
(a) Grant and Exercise. Stock Options granted under this Plan may be of
two types: (i) Incentive Stock Options and (ii) Non-Qualified Stock
Options. Any Stock Option granted under this Plan shall contain such
terms as the Board or the Committee, as the case may be, may from time
to time approve. The Board or the Committee, as the case may be, shall
have the authority to grant to any optionee Incentive Stock Options,
Non-Qualified Stock Options, or both types of Stock Options, and they
may be granted alone or in addition to other awards granted under this
Plan. To the extent that any Stock Option is not designated as an
Incentive Stock Option or does not qualify as an Incentive Stock
Option, it shall constitute a Non-Qualified Stock Option. The grant of
an Option shall be deemed to have occurred on the date on which the
Board or the Committee, as the case may be, by resolution, designates
an individual as
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a grantee thereof, and determines the number of shares of Stock
subject to, and the terms and conditions of, said Option.
Anything in this Plan to the contrary notwithstanding, no term of this
Plan relating to Incentive Stock Options or any agreement providing
for Incentive Stock Options shall be interpreted, amended or altered,
nor shall any discretion or authority granted under the Plan be
exercised, so as to disqualify this Plan under Section 422 of the
Code, or, without the consent of the Optionee(s) affected, to
disqualify any Incentive Stock Option under Section 422.
(b) Terms and Conditions. Stock Options granted under this Plan shall be
subject to the following terms and conditions:
(i) Option Price. The option price per share of Stock purchasable
under a Stock Option shall be determined by the Board or the
Committee, as the case may be, at the time of grant but shall be
not less than 100% (110% in the case of an Incentive Stock Option
granted to an optionee ("10% Stockholder") who, at the time of
grant, owns Stock possessing more than 10% of the total combined
voting power of all classes of stock of the Company or its
Parent, if any, or its Subsidiaries) of the Fair Market Value of
the Stock at the time of grant.
(ii) Option Term. The term of each Stock Option shall be fixed by the
Board or the Committee, as the case may be, but no Incentive
Stock Option shall be exercisable more than ten years (five
years, in the case of an Incentive Stock Option granted to a 10%
Stockholder) after the date on which the Option is granted.
(iii) Exercisability. Stock Options shall be exercisable at such time
or times and subject to such terms and conditions as shall be
determined by the Board or the Committee, as the case may be, at
the time of grant; provided, however, that except as otherwise
provided in this Section 5 and Section 9 below, unless waived by
the Board or the Committee, as the case may be, at or after the
time of grant, no Stock Option shall be exercisable prior to the
first anniversary date of the grant of the Option. If the Board
or the Committee, as the case may be, provides, in its
discretion, that any Stock Option is exercisable only in
installments, the Board or the Committee, as the case may be, may
waive such installment exercise provisions at any time at or
after the time of grant in whole or in part, based upon such
factors as the Board or the Committee, as the case may be, shall
determine.
(iv) Method of Exercise. Subject to whatever installment, exercise and
waiting period provisions are applicable in a particular case,
Stock Options may be exercised in whole or in part at any time
during the
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option period by giving written notice of exercise to the Company
specifying the number of shares of Stock to be purchased. Such
notice shall be accompanied by payment in full of the purchase
price which shall be in cash unless otherwise provided in this
clause (iv) or in Section 5(b)(xi) below or, unless otherwise
provided in the Stock Option agreement referred to in Section
5(b)(xii) below, in whole shares of Stock which are already owned
by the holder of the Option or unless otherwise provided in the
Stock Option agreement referred to in Section 5(b)(xii) below,
partly in cash and partly in such Stock. Cash payments shall be
made by wire transfer, certified or bank check or personal check,
in each case payable to the order of the Company; provided,
however, that the Company shall not be required to deliver
certificates for shares of Stock with respect to which an Option
is exercised until the Company has confirmed the receipt of good
and available funds in payment of the purchase price thereof.
Payments in the form of Stock (which shall be valued at the Fair
Market Value of a share of Stock on the date of exercise) shall
be made by delivery of stock certificates in negotiable form
which are effective to transfer good and valid title thereto to
the Company, free of any liens or encumbrances. In addition to
the foregoing, payment of the exercise price may be made by
delivery to the Company by the optionee of an executed exercise
form, together with irrevocable instructions to a broker-dealer
to sell or margin a sufficient portion of the shares covered by
the option and deliver the sale or margin loan proceeds directly
to the Company. Except as otherwise expressly provided in this
Plan, no Option which is granted to a person who is at the time
of grant an employee of the Company or a Subsidiary or Parent of
the Company may be exercised at any time unless the holder
thereof is then an employee of the Company or of a Parent or a
Subsidiary. The holder of an Option shall have none of the rights
of a stockholder with respect to the shares subject to the Option
until the optionee has given written notice of exercise, has paid
in full for those shares of Stock and, if requested by the Board
or Committee, as the case may be, has given the representation
described in Section 12(a) below.
(v) Transferability; Exercisability. No Stock Option shall be
transferable by the optionee other than by will or by the laws of
descent and distribution; provided, however, that a Non-Qualified
Stock Option shall be transferable pursuant to a qualified
domestic relations order, and except as may be otherwise required
with respect to a Non- Qualified Option pursuant to a qualified
domestic relations order, all Stock Options shall be exercisable,
during the optionee's lifetime, only by the optionee or his or
her guardian or legal representative.
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(vi) Termination by Reason of Death. Subject to Section 5(b)(x) below,
if an optionee's employment by the Company or any Parent or
Subsidiary terminates by reason of death, any Stock Option held
by such optionee may thereafter be exercised, to the extent then
exercisable or on such accelerated basis as the Board or
Committee, as the case may be, may determine at or after the time
of grant, for a period of one year (or such other period as the
Board or the Committee, as the case may be, may specify at or
after the time of grant) from the date of death or until the
expiration of the stated term of such Stock Option, whichever
period is the shorter.
(vii) Termination by Reason of Disability. Subject to Section 5(b)(x)
below, if an optionee's employment by the Company or any
Subsidiary terminates by reason of Disability, any Stock Option
held by such optionee may thereafter be exercised by the
optionee, to the extent it was exercisable at the time of
termination or on such accelerated basis as the Board or the
Committee, as the case may be, may determine at or after the time
of grant, for a period of three years (or such other period as
the Board or the Committee, as the case may be, may specify at or
after the time of grant) from the date of such termination of
employment or until the expiration of the stated term of such
Stock Option, whichever period is the shorter; provided, however,
that if the optionee dies within such three-year period (or such
other period as the Board or the Committee, as the case may be,
shall specify at or after the time of grant), any unexercised
Stock Option held by such optionee shall thereafter be
exercisable to the extent to which it was exercisable at the time
of death for a period of one year from the date of death or until
the expiration of the stated term of such Stock Option, whichever
period is the shorter.
(viii) Termination by Reason of Retirement. Subject to Section 5(b)(x)
below, if an optionee's employment by the Company or any Parent
or Subsidiary terminates by reason of Normal Retirement, any
Stock Option held by such optionee may thereafter be exercised by
the optionee, to the extent it was exercisable at the time of
termination or on such accelerated basis as the Board or the
Committee, as the case may be, may determine at or after the time
of grant, for a period of three years (or such other period as
the Board or the Committee, as the case may be, may specify at or
after the time of grant) from the date of such termination of
employment or the expiration of the stated terms of such Stock
Option, whichever period is the shorter; provided, however, that
if the optionee dies within such three-year period (or such other
period as the Board or the Committee, as the case may be, shall
specify at or after the time of grant), any unexercised Stock
Option held by such optionee shall thereafter be exercisable to
the extent to which it
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was exercisable at the time of death for a period of one year
from the date of death or until the expiration of the stated
terms of such Stock Option, whichever period is the shorter. If
an optionee's employment with the Company or any Parent or
Subsidiary terminates by reason of Early Retirement, the Stock
Option shall thereupon terminate; provided, however, that if the
Board or the Committee, as the case may be, so approves at the
time of Early Retirement, any Stock Option held by the optionee
may thereafter be exercised by the optionee as provided above in
connection with termination of employment by reason of Normal
Retirement.
(ix) Other Termination. Subject to the provisions of Section 12(g)
below and unless otherwise determined by the Committee at or
after the time of grant, if an optionee's employment by the
Company or any Parent or Subsidiary terminates for any reason
other than death, Disability or Retirement, the Stock Option
shall thereupon automatically terminate, except that if the
optionee is involuntarily terminated by the Company or any Parent
or a Subsidiary without Cause (as hereinafter defined), such
Stock Option may be exercised for a period of six months from the
date of such termination or until the expiration of the stated
terms of such Stock Option, whichever period is the shorter. For
purposes of this Plan, "Cause" shall mean (1) the conviction of
the optionee of a felony under Federal law or the law of the
state in which such action occurred, (2) dishonesty by the
optionee in the course of fulfilling his or her employment
duties, or (3) the willful and deliberate failure on the part of
the optionee to perform his or her employment duties in any
material respect. In addition, with respect to an option granted
to an employee of the Company, a Parent or a Subsidiary, for
purposes of this Plan, "Cause" shall also include any definition
of "Cause" contained in any employment agreement between the
optionee and the Company, Parent or Subsidiary, as the case may
be.
(x) Additional Incentive Stock Option Limitation. In the case of an
Incentive Stock Option, the aggregate Fair Market Value of Stock
(determined at the time of grant of the Option) with respect to
which Incentive Stock Options are exercisable for the first time
by an optionee during any calendar year (under all such plans of
optionee's employer corporation and its Parent, if any, and
Subsidiaries) shall not exceed $100,000.
(xi) Alternative Settlement of Option. Upon the receipt of written
notice of exercise, the Board or the Committee, as the case may
be, may elect to settle all or part of any Stock Option by paying
to the optionees an amount, in cash or Stock (valued at Fair
Market Value on the date of exercise), equal to the excess of the
Fair Market Value of one share of
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Stock, on the date of exercise over the Option exercise price,
multiplied by the number of shares of Stock with respect to which
the optionee proposes to exercise the Option. Any such
settlements which relate to Options which are held by optionees
who are subject to Section 16(b) of the Exchange Act shall comply
with the "window period" provisions of Rule 16b-3, to the extent
applicable and with such other conditions as the Board or
Committee may impose. No such discretion may be exercised unless
the option agreement permits the payment of the purchase price in
that manner.
(xii) Stock Option Agreement. Each grant of a Stock Option shall be
confirmed by, and shall be subject to the terms of, an agreement
executed by the Company and the participant.
Section 6. Restricted Stock.
(a) Grant and Exercise. Shares of Restricted Stock may be issued either
alone or in addition to or in tandem with other awards granted under
this Plan. The Board or the Committee, as the case may be, shall
determine the eligible persons to whom, and the time or times at
which, grants of Restricted Stock will be made, the number of shares
to be awarded, the price (if any) to be paid by the recipient, the
time or times within which such awards may be subject to forfeiture
(the "Restriction Period"), the vesting schedule and rights to
acceleration thereof, and all other terms and conditions of the
awards. The Board or the Committee, as the case may be, may condition
the grant of Restricted Stock upon the attainment of specified
Performance Objectives or such other factors as the Board or the
Committee, as the case may be, may determine.
(b) Terms and Conditions. Each Restricted Stock award shall be subject to
the following terms and conditions:
(i) Restricted Stock, when issued, will be represented by a stock
certificate or certificates registered in the name of the holder
to whom such Restricted Stock shall have been awarded. During the
Restriction Period, certificates representing the Restricted
Stock and any securities constituting Retained Distributions (as
defined below) shall bear a restrictive legend to the effect that
ownership of the Restricted Stock (and such Retained
Distributions), and the enjoyment of all rights appurtenant
thereto, are subject to the restrictions, terms and conditions
provided in this Plan and the Restricted Stock agreement referred
to in Section 6(b)(iv) below. Such certificates shall be
deposited by the holder with the Company, together with stock
powers or other instruments of assignment, endorsed in blank,
which will permit transfer to the Company of all or any portion
of the Restricted Stock
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and any securities constituting Retained Distributions that shall
be forfeited or that shall not become vested in accordance with
this Plan and the applicable Restricted Stock agreement.
(ii) Restricted Stock shall constitute issued and outstanding shares
of Common Stock for all corporate purposes, and the issuance
thereof shall be made for at least the minimum consideration (if
necessary) to permit the shares of Restricted Stock to be deemed
to be fully paid and nonassessable. The holder will have the
right to vote such Restricted Stock, to receive and retain all
regular cash dividends and other cash equivalent distributions as
the Board may in its sole discretion designate, pay or distribute
on such Restricted Stock and to exercise all other rights, powers
and privileges of a holder of Stock with respect to such
Restricted Stock, with the exceptions that (A) the holder will
not be entitled to delivery of the stock certificate or
certificates representing such Restricted Stock until the
Restriction Period shall have expired and unless all other
vesting requirements with respect thereto shall have been
fulfilled; (B) the Company will retain custody of the stock
certificate or certificates representing the Restricted Stock
during the Restriction Period; (C) other than regular cash
dividends and other cash equivalent distribution as the Board may
in its sole discretion designate, pay or distribute, the Company
will retain custody of all distributions ("Retained
Distributions") made or declared with respect to the Restricted
Stock (and such Retained Distributions will be subject to the
same restrictions, terms and conditions as are applicable to the
Restricted Stock) until such time, if ever, as the Restricted
Stock with respect to which such Retained Distributions shall
have been made, paid or declared shall have become vested and
with respect to which the Restriction Period shall have expired;
(D) the holder may not sell, assign, transfer, pledge, exchange,
encumber or dispose of the Restricted Stock or any Retained
Distributions during the Restriction Period; and (E) a breach of
any of the restrictions, terms or conditions contained in this
Plan or the Restricted Stock agreement referred to in Section
6(b)(iv) below, or otherwise established by the Committee with
respect to any Restricted Stock and Retained Distributions will
cause a forfeiture of such Restricted Stock and any Retained
Distributions with respect thereto.
(iii) Upon the expiration of the Restriction Period with respect to
each award of Restricted Stock and the satisfaction of any other
applicable restrictions, terms and conditions (A) all or part of
such Restricted Stock shall become vested in accordance with the
terms of the Restricted Stock agreement referred to in Section
6(b)(iv) below, and (B) any Retained Distributions with respect
to such Restricted Stock shall become vested to the extent that
the Restricted Stock related
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thereto shall have become vested. Any such Restricted Stock and
Retained Distributions that do not vest shall be forfeited to the
Company and the holder shall not thereafter have any rights with
respect to such Restricted Stock and Retained Distributions that
shall have been so forfeited.
(iv) Each Restricted Stock award shall be confirmed by, and shall be
subject to the terms of, an agreement executed by the Company and
the participant.
Section 7. Deferred Stock.
(a) Grant and Exercise. Deferred Stock may be awarded either alone or in
addition to or in tandem with other awards granted under the Plan. The
Board or the Committee, as the case may be, shall determine the
eligible persons to whom and the time or times at which Deferred Stock
shall be awarded, the number of shares of Deferred Stock to be awarded
to any person, the duration of the period (the "Deferral Period")
during which, and the conditions under which, receipt of the Deferred
Stock will be deferred, and all the other terms and conditions of the
awards. The Board or the Committee, as the case may be, may condition
the grant of the Deferred Stock upon the attainment of specified
Performance Objectives or such other factors or criteria as the Board
or the Committee, as the case may be, shall determine.
(b) Terms and Conditions. Each Deferred Stock award shall be subject to
the following terms and conditions:
(i) Subject to the provisions of this Plan and Deferred Stock
agreement referred to in Section 7(b)(vii) below, Deferred Stock
awards may not be sold, assigned, transferred, pledged or
otherwise encumbered during the Deferral Period. At the
expiration of the Deferral Period (or the Additional Deferral
Period referred to in Section 7(b)(vi) below, where applicable),
share certificates shall be delivered to the participant, or his
legal representative, in a number equal to the shares of Stock
covered by the Deferred Stock award.
(ii) As determined by the Committee at the time of award, amounts
equal to any dividends declared during the Deferral Period (or
the Additional Deferral Period referred to in Section 7(b)(vi)
below, where applicable) with respect to the number of shares
covered by a Deferred Stock award may be paid to the participant
currently or deferred and deemed to be reinvested in additional
Deferred Stock.
(iii) Subject to the provisions of the Deferred Stock agreement
referred to in Section 7(b)(vii) below and this Section 7 and
Section 12(g) below,
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upon termination of participant's employment with the Company or
any Subsidiary for any reason during the Deferral Period (or the
Additional Deferral Period referred to in Section 7(b)(vi) below,
where applicable) for a given award, the Deferred Stock in
question will vest or be fortified in accordance with the terms
and conditions established by the Board or the Committee, as the
case may be, at the time of grant.
(iv) The Board or the Committee, as the case may be, may, after grant,
accelerate the vesting of all or any part of any Deferred Stock
award and/or waive the deferral limitations for all or any part
of a Deferred Stock award.
(v) In the event of hardship or other special circumstances of a
participant whose employment with the Company or any Parent or
Subsidiary is involuntarily terminated (other than for Cause),
the Board or the Committee, as the case may be, may waive in
whole or in part any or all of the remaining deferral limitations
imposed hereunder or pursuant to the Deferred Stock agreement
referred to in Section 7(b)(vii) below with respect to any or all
of the participant's Deferred Stock.
(vi) A participant may request to, and the Board or the Committee, as
the case may be, may at any time, defer the receipt of an award
(or an installment of an award) for an additional specified
period or until a specified period or until a specified event
(the "Additional deferral Period"). Subject to any exceptions
adopted by the Board or the Committee, as the case may be, such
request must be made at least one year prior to expiration of the
Deferral Period for such Deferred Stock award (or such
installment).
(vii) Each Deferred Stock award shall be confirmed by, and shall be
subject to the terms of, an agreement executed by the Company and
the participant.
Section 8. Other Stock-Based Awards.
(a) Grant and Exercise. Other Stock-Based Awards, which may include
performance shares and shares valued by reference to the performance
of the Company or any Subsidiary, may be granted either alone or in
addition to or in tandem with Stock Options, Restricted Stock or
Deferred Stock. The Board or the Committee, as the case may be, shall
determine the eligible persons to whom, and the time or times at
which, such awards shall be made, the number of shares of Stock to be
awarded pursuant to such awards, and all other terms and conditions of
the awards. The Board or the Committee, as the case may be, may also
provide for the grant of Stock under such awards upon
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the attainment of specified Performance Objectives and/or completion
of a specified performance period.
(b) Terms and Conditions. Each Other Stock-Based Award shall be subject to
the following terms and conditions:
(i) Shares of Stock subject to an Other Stock-Based may not be sold,
assigned, transferred, pledged or otherwise encumbered prior to
the date on which the shares are issued, or, if later, the date
on which any applicable restriction or period of deferral lapses.
(ii) The recipient of Other Stock-Based Award shall be entitled to
receive, currently or on a deferred basis, dividends or dividend
equivalents with respect to the number of shares covered by the
award, as determined by the Board or the Committee, as the case
may be, at the time of the award. The Board or the Committee, as
the case may be, may provide that such amounts (if any) shall be
deemed to have been reinvested in additional Stock.
(iii) Any Other Stock-Based Award and any Stock covered by any Other
Stock-Based Award shall vest or be forfeited to the extent so
provided in the award agreement referred to in Section 8(b)(v)
below, as determined by the Board or the Committee, as the case
may be.
(iv) In the event of the participant's Retirement, Disability or
death, or in case of special circumstances, the Board or the
Committee, as the case may be, may waive in whole or in part any
or all of the limitations imposed hereunder (if any) with respect
to any or all of an Other Stock-Based Award.
(v) Each Other Stock-Based Award shall be confirmed by, and shall be
subject to the terms of, an agreement executed by the Company and
by the participant.
Section 9. Change of Control Provisions.
(a) A "Change of Control" shall be deemed to have occurred on the tenth day
after:
(i) any individual, entity or group (as defined in Section 13(d)(3)
of the Exchange Act), becomes, directly or indirectly, the
beneficial owner (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of more than 25% of the then outstanding
shares of the Company's capital stock entitled to vote generally
in the election of directors of the Company; or
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(ii) the commencement of, or the first public announcement of the
intention of any individual, firm, corporation or other entity or
of any group (as defined in Section 13(d)(3) of the Exchange Act)
to commence, a tender or exchange offer subject to Section
14(d)(1) of the Exchange Act for any class of the Company's
capital stock; or
(iii) the stockholders of the Company approve (A) a definitive
agreement for the merger or other business combination of the
Company with or into another corporation pursuant to which the
stockholders of the Company immediately prior to the transaction
do not own, immediately after the transaction, more than 50% of
the voting power of the corporation that survives, or (B) a
definitive agreement for the sale, exchange or other disposition
of all or substantially all of the assets of the Company, or (C)
any plan or proposal for the liquidation or dissolution of the
Company;
provided, however, that a "Change of Control" shall not be deemed
to have taken place if beneficial ownership is acquired (A)
directly from the Company, other than an acquisition by virtue of
the exercise or conversion of another security unless the
security so converted or exercised was itself acquired directly
from the Company, or (B) by, or a tender or exchange offer is
commenced or announced by, the Company, any profit-sharing,
employee ownership or other employee benefit plan sponsored or
maintained by the Company; or any trustee of or fiduciary with
respect to any such plan when acting in such capacity.
(b) In the event of a "Change of Control" as defined in Section 9(a)
above, awards granted under this Plan shall be subject to the
following provisions, unless the provisions of this Section 9 are
suspended or terminated by the Board prior to the occurrence of such a
"Change of Control":
(i) all outstanding Stock Options which have been outstanding for at
least six months shall become exercisable in full, whether or not
otherwise exercisable at such time, and any such Stock Option
shall remain exercisable in full thereafter until it expires
pursuant to its terms; and
(ii) all restrictions and deferral limitations contained in Restricted
Stock awards, Deferred Stock awards and Other Stock-Based Awards
granted under the Plan shall lapse.
Section 10. Amendments and Termination.
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The Board may at any time, and from time to time, amend any of the
provisions of this Plan, and may at any time suspend or terminate the Plan;
provided, however, that no such amendment shall be effective unless and until it
has been duly approved by the holders of the outstanding shares of Stock if the
failure to obtain such approval would adversely affect the compliance of the
Plan with the requirements of Rule 16b-3, Section 162(m) or any other applicable
law, rule or regulation. The Board or the Committee, as the case may be, may
amend the terms of any Stock Option or other award theretofore granted under the
Plan; provided, however, that subject to Section 3 above, no such amendment may
be made by the Board or the Committee, as the case may be, which in any material
respect impairs the rights of the optionee or participant without the optionee's
or participant's consent, except for such amendments which are made to cause
this Plan to qualify for the exemption provided by Rule 16b-3 or to be in
compliance with the provisions of Section 162(m).
Section 11. Unfunded Status of Plan.
The Plan is intended to constitute an "unfunded" plan for incentive and
deferred compensation. With respect to any payments not yet made to a
participant or optionee by the Company, nothing contained herein shall give any
such participant or optionee any rights that are greater than those creditor of
the Company.
Section 12. General Provisions.
(a) The Board or the Committee, as the case may be, may require each
person acquiring shares of Stock Option or other award under this Plan
to represent to and agree with the Company in writing that the
optionee or participant is acquiring the shares for investment without
a view towards the distribution thereof.
All certificates for shares of Stock delivered under this Plan shall
be subject to such stop transfer orders and other restrictions as the
Board or the Committee, as the case may be, may deem to be advisable
in order to assure compliance with the rules, regulations, and other
requirements of the Securities and Exchange Commission, any stock
exchange or association upon which the Stock is then listed or quoted,
any applicable Federal or state securities law, and any applicable
corporate law, and the Board or the Committee, as the case may be, may
cause a legend or legends to be put on any such certificates to make
appropriate reference to such restrictions.
(b) Nothing contained in the Plan shall prevent the Board from adopting
such other or additional incentive arrangements as it may deem
desirable, including, but not limited to, the granting of stock
options and the awarding of stock and cash otherwise than under this
Plan; and such arrangements may be either generally applicable or
applicable only in specific cases.
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(c) Nothing contained in this Plan or in any award hereunder shall be
deemed to confer upon any employee of the Company or any Parent or
Subsidiary any right to continued employment with the Company or any
Parent or Subsidiary, nor shall it interfere in any way with the right
of the Company or any Parent or Subsidiary to terminate the employment
of any of its employees at any time.
(d) No later than the date as of which an amount first becomes includable
in the gross income of the participant for Federal income tax purposes
with respect to any Option or other award under this Plan, the
participant shall pay to the Company, or make arrangements
satisfactory to the Board or the Committee, as the case may be,
regarding the payment of, any Federal, state and local taxes of any
kind required by law to be withheld or paid with respect to such
amount. If permitted by the Board or the Committee, as the case may
be, tax withholding or payment obligations may be settled with Stock,
including Stock that is part of the award that gives rise to the
withholding requirement. The obligations of the Company under this
Plan shall be conditional upon such payment or arrangements, and the
Company and any Subsidiary shall, to the extent permitted by law, have
the right to deduct any such taxes from any payment of any kind
otherwise due to the participant from the Company or any Parent or
Subsidiary.
(e) This Plan and all awards made and actions taken thereunder shall be
governed by and construed in accordance with the laws of the State of
Delaware (without regard to choice of law provisions).
(f) Any Stock Option granted or other award made under this Plan shall not
be deemed compensation for purposes of computing benefits under any
retirement plan of the Company or any Parent or Subsidiary and shall
not affect any benefits under any other benefit plan now or
subsequently in effect under which the availability or amount of
benefits is related to the level of compensation (unless required by
specific reference in any such other plan to awards under this Plan).
(g) A leave of absence, unless otherwise determined by the Committee prior
to the commencement thereof, shall not be considered a termination of
employment. Any Stock Option granted or awards made under this Plan
shall not be affected by any change of employment, so long as the
holder continues to be an employee of the Company or any Parent or
Subsidiary.
(h) Except as otherwise expressly provided in this Plan, no right or
benefit under this Plan may be alienated, sold, assigned,
hypothecated, pledged, exchanged, transferred, encumbranced or
charged, and any attempt to alienate, sell, assign, hypothecate,
pledge, exchange, transfer, encumber or charge the same
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shall be void. No right or benefit hereunder shall in any manner be
subject to the debts, contracts or liabilities of the person entitled
to such benefit.
(i) The obligations of the Company with respect to all Stock Options and
awards under this Plan shall be subject to (A) all applicable laws,
rules and regulations, and such approvals by any governmental agencies
as may be required, including, without limitation, the effectiveness
of a registration statement under the Securities Act, and (B) the
rules and regulations of any securities exchange or association on
which the Stock may be listed or quoted.
(j) It is the intention of the Company that this Plan complies with the
requirements of Rule 16b-3, Section 162(m) and all other applicable
laws, rules and regulations, and any ambiguities or inconsistencies in
the construction of any of the provisions of this Plan shall be
interpreted to give effect to such intention. If any of the terms or
provisions of this Plan conflict with the requirements of Rule 16b-3,
or with the requirements of Section 162(m) or any other applicable
law, rule or regulation, and with respect to Incentive Stock Options
under Section 422 of the Code, then such terms or provisions shall be
deemed inoperative to the extent they so conflict. With respect to
Incentive Stock Options, if this Plan does not contain any provision
required to be included herein under Section 422 of the Code. such
provision shall be deemed to be incorporated herein with the same
force and effect as if such provision had been set out at length
herein.
(k) The Board or the Committee, as the case may be, may terminate any
Stock Option or other award made under this Plan if a written
agreement relating thereto is not executed and returned to the Company
within 30 days after such agreement has been delivered to the optionee
or participant for his or her execution.
(l) The grant of awards pursuant to this Plan shall not in any way effect
the right or power of the Company to make reclassifications,
reorganizations or other changes of or to its capital or business
structure or to merge, consolidate, liquidate, sell or otherwise
dispose of all or any part of its business or assets.
Section 13. Effective Date of Plan.
The Plan shall be effective as of the date of the approval and adoption
thereof at a meeting of the stockholders of the Company.
Section 14. Term of Plan.
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This Plan shall terminate on the tenth anniversary of its effective date,
and no Stock Option, Restricted Stock Award, Deferred Stock award or Other
Stock-Based Award shall be granted pursuant to this Plan after said date. Awards
granted on or prior to such date may extend beyond that date.
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