1998 Long-Term Incentive Plan - Tel-Save.com Inc.
TEL-SAVE.COM, INC.
1998 LONG-TERM INCENTIVE PLAN
1. Definitions. In this Plan, except where the context otherwise
indicates, the following definitions shall apply:
1.1. "Agreement" means a written agreement implementing an Award.
1.2. "Award" means a grant of an Option or Right or an award of
Restricted Stock or Incentive Shares.
1.3. "Board" means the Board of Directors of the Company.
1.4. "Code" means the Internal Revenue Code of 1986, as amended.
1.5. "Committee" means a committee or subcommittee of the Board
appointed by the Board to administer this Plan and programs hereunder. The
Committee may, in its discretion, appoint a subcommittee to administer the Plan
with respect to specific Awards hereunder.
1.6. "Common Stock" means the common stock, par value $.01 per share,
of the Company.
1.7. "Company" means Tel-Save.com, Inc.
1.8. "Date of Exercise" means the date on which the Company receives
notice of the exercise of an Option in accordance with the terms of Section 8.1.
1.9. "Date of Grant" means the date on which an Option or Right is
granted or Restricted Stock or Incentive Shares are awarded under this Plan.
1.10. "Director" means a member of the Board of Directors of the
Company or any Subsidiary.
1.11. "Employee" means any person determined by the Committee to be an
employee of the Company or a Subsidiary, including an Employee Director,
consultant or any person who has been hired to be an employee of the Company or
a Subsidiary.
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1.12. "Employee Director" means a Director who is also an Employee.
1.13. "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
1.14. "Fair Market Value" means an amount equal to the last sale price
for a Share on the Nasdaq National Market as reported by such source as the
Committee may select, or, if such price quotations of the Common Stock are not
then reported, then the fair market value of a Share as determined by the
Committee pursuant to a reasonable method adopted in good faith for such
purpose.
1.15. "Grantee" means an Employee or Director to whom Restricted Stock
has been awarded pursuant to Section 9 or Incentive Shares have been awarded
pursuant to Section 10.
1.16. "Incentive Shares" means an award providing for the contingent
grant of Shares pursuant to the provisions of Section 10.
1.17. "Incentive Stock Option" means an Option granted under this Plan
that the Company designates as an incentive stock option under Section 422 of
the Code in the Agreement granting the Option.
1.18. "Nonstatutory Stock Option" means an Option granted under this
Plan that is not an Incentive Stock Option.
1.19. "Option" means an option to purchase Shares granted under this
Plan in accordance with the terms of Section 6.
1.20. "Option Period" means the period during which an Option may be
exercised.
1.21. "Option Price" means the price per Share at which an Option may
be exercised. Subject to the terms of the Plan, the Option Price shall be
determined by the Committee; provided, however, that in no event shall the
Option Price be less than the greater of 25% of the Fair Market Value as of the
Date of Grant or the par value of the Common Stock.
1.22. "Optionee" means a Director, Employee, or Employee Director to
whom an Option or Right has been granted.
1.23. "Performance Goals" means performance goals established by the
Committee which may be based on earnings or earnings growth, sales, return on
assets, equity or investment, regulatory compliance, satisfactory internal or
external audits, improvement of financial ratings, achievement of balance sheet
or income statement objectives, or any other objective goals established by the
Committee, and may be absolute in their terms or measured
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against or in relationship to other companies comparably, similarly or otherwise
situated. Such performance standards may be particular to an employee or the
department, branch, Subsidiary or other division in which he or she works, or
may be based on the performance of the Company generally, and may cover such
period as may be specified by the Committee.
1.24. "Plan" means the Tel-Save.com, Inc. 1998 Long-Term Incentive
Plan, as amended from time to time.
1.25. "Related Option" means the Option in connection with which, or
by amendment to which, a specified Right is granted.
1.26. "Related Right" means the Right granted in connection with, or
by amendment to, a specified Option.
1.27. "Restricted Stock" means Shares awarded under the Plan pursuant
to the provisions of Section 9.
1.28. "Right" means a stock appreciation right granted under the Plan
in accordance with the terms of Section 7.
1.29. "Right Period" means the period during which a Right may be
exercised.
1.30. "Share" means a share of Common Stock.
1.31. "Subsidiary" means a corporation at least 50% of the total
combined voting power of all classes of stock of which is owned by the Company,
either directly or through one or more other Subsidiaries.
1.32. "Ten-Percent Stockholder" means an Optionee who (applying the
rules of Section 424(d) of the Code) owns stock possessing more than 10% of the
total combined voting power of all classes of stock of the Company or a
Subsidiary.
2. Purpose. This Plan is intended to assist the Company and its
Subsidiaries in attracting and retaining Directors, Employees and Employee
Directors of outstanding ability and to promote the identification of their
interests with those of the stockholders of the Company.
3. Administration. The Committee shall administer this Plan and shall
have plenary authority, in its discretion, to award Options, Rights, Restricted
Stock and Incentive Shares to Directors, Employees and Employee Directors,
subject to the provisions of this Plan. The Committee shall have plenary
authority and discretion, subject to the provisions of this Plan, to determine
the Directors, Employees or Employee Directors to whom Options or Rights shall
be granted and to whom Restricted Stock or Incentive Shares shall be awarded,
the terms (which
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terms need not be identical) of all Awards to Directors, Employees and Employee
Directors, including without limitation the Option Price of Options, the time or
times at which Awards are made, the number of Shares covered by Awards, whether
an Option shall be an Incentive Stock Option or a Nonstatutory Stock Option, any
exceptions to non-transferability, any Performance Goals applicable to Awards,
any provisions relating to vesting, any circumstances in which the Options would
terminate, the period during which Options and Rights may be exercised, and the
period during which Restricted Stock shall be subject to restrictions. In making
these determinations, the Committee may take into account the nature of the
services rendered or to be rendered by the Award recipients, their present and
potential contributions to the success of the Company and its Subsidiaries, and
such other factors as the Committee in its discretion shall deem relevant.
Subject to the provisions of this Plan, the Committee shall have plenary
authority to interpret this Plan, prescribe, amend and rescind rules and
regulations relating to it, and make all other determinations deemed necessary
or advisable for the administration of this Plan. The determinations of the
Committee on the matters referred to in this Section 3 shall be binding and
final. Notwithstanding the provisions of this Section 3, the Chief Executive
Officer of the Company shall have the power to administer this Plan and have the
full authority of the Committee hereunder with respect to Awards to Employees
who are not subject to the requirements of Section 16(a) of the Exchange Act.
4. Eligibility. Options, Rights, Restricted Stock and Incentive Shares
may be granted or awarded only to Employees and Directors, provided, however,
that Directors, other than Employee Directors, may not be granted Incentive
Stock Options. A Director, Employee or Employee Director who has been granted an
Option or Right or awarded Restricted Stock or Incentive Shares may be granted
additional Options and Rights or awarded additional shares of Restricted Stock
or Incentive Shares.
5. Stock Subject to Plan.
5.1. Subject to adjustment as provided in Section 11, (a) the maximum
number of Shares that may be issued under this Plan is 5,000,000 Shares, and (b)
the maximum number of Shares with respect to which an Employee may receive
Awards under this Plan during its term is 750,000.
5.2. If an Option or Right expires or terminates for any reason (other
than termination by virtue of the exercise of a Related Option or Related Right,
as the case may be) without having been fully exercised, if Shares of Restricted
Stock are forfeited or if Shares covered by an Incentive Share Award are not
issued or are forfeited, the unissued or forfeited Shares which had been subject
to the Award shall become available for the grant of additional Awards.
5.3. Upon exercise of a Right (regardless of whether the Right is
settled in cash or Shares), the number of Shares with respect to which the Right
is exercised shall be charged
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against the number of Shares issuable under the Plan and shall not become
available for the grant of other Awards.
6. Options.
6.1. Options granted under this Plan to Employees shall be either
Incentive Stock Options or Nonstatutory Stock Options, as designated by the
Committee. Each Option granted under this Plan shall be clearly identified
either as a Nonstatutory Stock Option or an Incentive Stock Option and shall be
evidenced by an Agreement that specifies the terms and conditions of the grant.
Options shall be subject to the terms and conditions set forth in this Section 6
and such other terms and conditions not inconsistent with this Plan as the
Committee may specify.
6.2. The Option Period shall be determined by the Committee and
specifically set forth in the Agreement; provided, however, that an Option shall
not be exercisable after ten years (five years in the case of an Incentive Stock
Option granted to a Ten-Percent Stockholder) from its Date of Grant.
6.3. The Committee, in its discretion, may provide in an Agreement
for the right of the Optionee to surrender to the Company an Option (or a
portion thereof) that has become exercisable and to receive upon such surrender,
without any payment to the Company (other than required tax withholding amounts)
that number of Shares (equal to the highest whole number of Shares) having an
aggregate fair market value as of the date of surrender equal to that number of
Shares subject to the Option (or portion thereof) being surrendered multiplied
by an amount equal to the excess of (i) the Fair Market Value on the date of
surrender over (ii) the Option Price, plus an amount of cash equal to the fair
market value of any fractional Share to which the Optionee would be entitled but
for the parenthetical above relating to whole number of Shares. Any such
surrender shall be treated as the exercise of the Option (or portion thereof).
7. Rights.
7.1. Rights granted under the Plan shall be evidenced by an Agreement
specifying the terms and conditions of the grant.
7.2. A Right may be granted under the Plan:
(a) in connection with, and at the same time as, the grant of an
Option under the Plan;
(b) by amendment of an outstanding Option granted under the Plan;
or
(c) independently of any Option granted under the Plan.
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7.3. A Right granted under Section 7.2(a) or Section 7.2(b) of this
Plan is a Related Right. A Related Right may, in the Board's or Committee's
discretion, apply to all or any portion of the Shares subject to the Related
Option.
7.4. A Right may be exercised in whole or in part as provided in the
applicable Agreement, and, subject to the terms of the Agreement, entitles an
Optionee to receive, without payment to the Company (but subject to required tax
withholding), either cash or that number of Shares (equal to the highest whole
number of Shares), or a combination thereof, in an amount or having a fair
market value determined as of the Date of Exercise not to exceed the number of
Shares subject to the portion of the Right exercised multiplied by an amount
equal to the excess of (i) the Fair Market Value on the Date of Exercise of the
Right over (ii) either (A) the Fair Market Value on the Date of Grant of the
Right if it is not a Related Right, or (B) the Option Price as provided in the
Related Option if the Right is a Related Right.
7.5. The Right Period shall be determined by the Committee and
specifically set forth in the Agreement, subject to the following conditions:
(a) a Right will expire no later than the earlier of (1) ten
years from the Date of Grant, or (2) in the case of a Related Right, the
expiration of the Related Option;
(b) a Right may be exercised only when the Fair Market Value on
the Date of Exercise exceeds either (1) the Fair Market Value on the Date of
Grant of the Right if it is not a Related Right, or (2) the Option Price of the
Related Option if the Right is a Related Right; and
(c) a Right that is a Related Right to an Incentive Stock Option
may be exercised only when and to the extent the Related Option is exercisable.
7.6. The exercise, in whole or in part, of a Related Right shall cause
a reduction in the number of Shares subject to the Related Option equal to the
number of Shares with respect to which the Related Right is exercised.
Similarly, the exercise, in whole or in part, of a Related Option shall cause a
reduction in the number of Shares subject to the Related Right equal to the
number of Shares with respect to which the Related Option is exercised.
8. Exercise of Options and Rights.
8.1. An Option or Right may, subject to the terms of the applicable
Agreement under which it was granted, be exercised in whole or in part by the
delivery to the Company of written notice of the exercise, in such form as the
Committee may prescribe, accompanied, in the case of an Option, by (a) a full
payment for the Shares with respect to which the Option is
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exercised or (b) irrevocable instructions to a broker to deliver promptly to the
Company cash equal to the exercise price of the option. To the extent provided
in the applicable Option Agreement, payment may be made in whole or in part by
delivery (including constructive delivery) of Shares valued at Fair Market Value
on the Date of Exercise or by delivery of a promissory note as provided in
Section 8.2 hereof.
8.2. To the extent provided in an Agreement and permitted by
applicable law, the Committee may accept as partial payment of the Option Price
a promissory note executed by the Optionee evidencing his or her obligation to
make future cash payment thereof. Promissory notes made pursuant to this Section
8.2 shall be payable upon such terms as may be determined by the Committee,
shall be secured by a pledge of the Shares received upon exercise of the Option,
or other securities the Committee may deem to be acceptable for such purposes,
and shall bear interest at a rate fixed by the Committee.
8.3. Options and Rights made under this Plan shall not be transferable
except by will, the laws of descent and distribution, or as provided by the
Committee in an Agreement.
9. Restricted Stock Awards.
9.1. Restricted Stock awards under this Plan shall consist of Shares
that are restricted against transfer, subject to forfeiture, and subject to such
other terms and conditions as may be determined by the Committee. Such terms and
conditions may provide, in the discretion of the Committee, for the lapse of
forfeiture and transfer restrictions to be contingent upon the achievement of
one or more specified Performance Goals.
9.2. Restricted Stock awards under this Plan shall be evidenced by
Agreements specifying the terms and conditions of the Award. Each Agreement
evidencing an Award of Restricted Stock shall contain the following:
(a) prohibitions against the sale, assignment, transfer,
exchange, pledge, hypothecation, or other encumbrance of (i) the Shares awarded
as Restricted Stock under this Plan, (ii) the right to vote the Shares, and
(iii) the right to receive dividends thereon, in each case during the
restriction period applicable to the Shares; provided, however, that the Grantee
shall have all the other rights of a stockholder including without limitation
the right to receive dividends and the right to vote the Shares;
(b) a requirement that each certificate representing Shares of
Restricted Stock shall be deposited with the Company, or its designee, and shall
bear the following legend:
"This certificate and the shares of stock represented hereby are
subject to the terms and conditions (including the risks of
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forfeiture and restrictions against transfer) contained in the
Tel-Save.com, Inc. 1998 Long-Term Incentive Plan, and an
Agreement entered into between the registered owner and
Tel-Save.com, Inc. Release from such terms and conditions shall
be made only in accordance with the provisions of this Plan and
the Agreement, a copy of each of which is on file in the office
of the Secretary of Tel-Save.com, Inc."; and
(c) the terms and conditions upon which any restrictions
applicable to Shares of Restricted Stock shall lapse and new certificates free
of the foregoing legend shall be issued to the Grantee or his or her legal
representative.
9.3. The Committee may include in any Agreement awarding Restricted
Stock a requirement that, in the event of a Grantee's termination of employment
for any reason prior to the lapse of restrictions, all Shares of Restricted
Stock shall be forfeited by the Grantee to the Company without payment of any
consideration by the Company and neither the Grantee nor any successors, heirs,
assigns or personal representatives of the Grantee shall thereafter have any
further rights or interest in the Shares or certificates.
10. Incentive Share Awards. Incentive Shares awarded under this Plan shall
be evidenced by an Agreement specifying the terms and conditions of such Award.
Incentive Share Awards shall provide for the issuance of Shares to a Grantee at
such times and subject to such terms and conditions as the Committee shall deem
appropriate, including without limitation terms that condition the issuance of
Shares upon the achievement of Performance Goals.
11. Capital Adjustments. In the event of any change in the outstanding
Common Stock by reason of any stock dividend, split-up, recapitalization,
reclassification, combination or exchange of shares, merger, consolidation or
liquidation and the like, the Committee may, in its discretion, provide for a
substitution for or adjustment in (i) the number and class of Shares subject to
outstanding Options, Rights and Awards of Restricted Stock or Incentive Shares,
(ii) the Option Price of Options and the base price upon which payments under
Rights that are not Related Rights are determined, and (iii) the aggregate
number and class of Shares for which Awards thereafter may be made under this
Plan and to individual Award recipients.
12. Termination or Amendment. The Board may amend, alter or terminate this
Plan in any respect at any time; provided, however, that, after this Plan has
been approved by the stockholders of the Company, no amendment, alteration or
termination of this Plan shall be made by the Board without approval of (i) the
Company's stockholders to the extent stockholder approval of the amendment is
required by applicable law or regulations or the requirements of the principal
exchange or interdealer quotation system on which the Common Stock is listed or
quoted, and (ii) each affected Optionee and Grantee if such amendment,
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alteration or termination would adversely affect his or her rights or
obligations under any Award made prior to the date of such amendment, alteration
or termination.
13. Modification, Extension, Renewal, Substitution.
13.1. Subject to the terms and conditions of this Plan, the Committee
may modify, extend or renew outstanding Options and Rights, or accept the
surrender of outstanding Options and Rights granted under this Plan or options
and stock appreciation rights granted under any other plan of the Company or a
Subsidiary (to the extent not theretofore exercised), and authorize the granting
of new Options and Rights pursuant to this Plan in substitution therefor. Any
substituted Options or Rights may specify a lower exercise price than the
surrendered options and stock appreciation rights, a longer term than the
surrendered options and stock appreciation rights, or have any other provisions
that are authorized by this Plan. Subject to the terms and conditions of this
Plan, the Committee may modify the terms of any outstanding Awards of Restricted
Stock or Incentive Shares. Notwithstanding the foregoing, however, no
modification of an Award shall, without the consent of the Optionee or Grantee,
alter or impair any of the Optionee's or Grantee's rights or obligations under
such Award.
13.2. Anything contained herein to the contrary notwithstanding,
Options and Rights, Restricted Stock and Incentive Shares may, at the discretion
of the Committee, be granted under this Plan in substitution for options to
purchase shares of capital stock of another corporation which is merged into,
consolidated with, or all or a substantial portion of the property or stock of
which is acquired by, the Company or one of its Subsidiaries. The terms and
conditions of the substitute Options, Rights, Restricted Stock and Incentive
Shares so granted may vary from the terms and conditions set forth in this Plan
to such extent as the Committee may deem appropriate in order to conform, in
whole or part, to the provisions of the Awards in substitution for which they
are granted. Such substitute Awards granted hereunder shall not be counted
toward the 750,000 Share limit imposed by the second sentence of Section 5.1,
except to the extent it is determined by the Committee that counting such Awards
is required in order for Awards hereunder to be eligible to qualify as
"performance-based compensation" within the meaning of Section 162(m) of the
Code.
14. Effectiveness of this Plan. This Plan and any amendments hereto
requiring stockholder approval pursuant to Section 12 are subject to approval by
vote of the stockholders of the Company at the next annual or special meeting of
stockholders following adoption by the Board. Subject to such stockholder
approval, this Plan and any amendments hereto are effective on the date on which
they are adopted by the Board, except as otherwise specified by the Board.
Options, Rights, Restricted Stock and Incentive Shares may be granted or awarded
prior to stockholder approval of this Plan or any amendments, but each such
Award after the effective date of this Plan shall be subject to the approval by
the stockholders of this Plan. The date on which any Option,
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Right, Restricted Stock or Incentive Shares granted or awarded prior to
stockholder approval of this Plan shall be the Date of Grant for all purposes as
if the Option, Right, Restricted Stock or Incentive Shares had not been subject
to approval; no such Option, Right, Restricted Stock or Incentive Shares may be
exercised prior to such stockholder approval, and any such Option shall be void
ab initio if such stockholder approval is not obtained.
15. Withholding. The Company's obligation to deliver Shares or pay any
amount pursuant to the terms of any Award hereunder shall be subject to
satisfaction of applicable federal, state and local tax withholding
requirements. To the extent provided in the applicable Agreement and in
accordance with rules prescribed by the Committee, an Optionee or Grantee may
satisfy any such withholding tax obligation by any of the following means or by
a combination of such means: (i) tendering a cash payment, (ii) authorizing the
Company to withhold Shares otherwise issuable to the Optionee or Grantee, or
(iii) delivering to the Company already-owned and unencumbered Shares.
16. Term of this Plan. Unless sooner terminated by the Board pursuant to
Section 11, this Plan shall terminate on December 30, 2008, and no Awards may be
made after such date. The termination of this Plan shall not affect the validity
of any Award outstanding on the date of termination.
17. Indemnification of Committee. In addition to such other rights of
indemnification as they may have as Directors or as members of the Committee,
the members of the Committee shall be indemnified by the Company against all
reasonable expenses, including attorneys' fees, actually and reasonably incurred
in connection with the defense of any action, suit or proceeding, or in
connection with any appeal therein, to which they or any of them may be a party
by reason of any action taken or failure to act under or in connection with this
Plan or any Option, Right, Restricted Stock or Incentive Shares granted or
awarded hereunder, and against all amounts reasonably paid by them in settlement
thereof or paid by them in satisfaction of a judgment in any such action, suit
or proceeding, if such members acted in good faith and in a manner which they
believed to be in, and not opposed to, the best interests of the Company.
18. General Provisions.
18.1. The establishment of this Plan shall not confer upon any
Director, Employee or Employee Director any legal or equitable right against the
Company, any Subsidiary or the Committee, except as expressly provided in this
Plan.
18.2. This Plan does not constitute inducement or consideration for
the employment of any Employee or the service of any Director or Employee
Director, nor is it a contract between the Company or any Subsidiary and any
Director, Employee or Employee Director. Participation in this Plan shall not
give a Director, Employee or Employee Director any right to be retained in the
service of the Company or any Subsidiary.
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18.3. Neither the adoption of this Plan nor its submission to the
stockholders, shall be taken to impose any limitations on the powers of the
Company or its Subsidiaries to issue, grant, or assume options, warrants,
rights, or restricted stock, otherwise than under this Plan, or to adopt other
stock option or restricted stock plans or to impose any requirement of
stockholder approval upon the same.
18.4. The interests of any Director, Employee or Employee Director
under this Plan are not subject to the claims of creditors and may not, in any
way, be assigned, alienated or encumbered except as provided in an Agreement.
18.5. This Plan shall be governed, construed and administered in
accordance with the laws of the State of Delaware.
18.6. The Committee may require each person acquiring Shares pursuant
to Awards hereunder to represent to and agree with the Company in writing that
such person is acquiring the Shares without a view to distribution thereof. The
certificates for such Shares may include any legend which the Committee deems
appropriate to reflect any restrictions on transfer. All certificates for Shares
issued pursuant to this Plan shall be subject to such stock transfer orders and
other restrictions as the Committee may deem advisable under the rules,
regulations and other requirements of the Securities and Exchange Commission,
any stock exchange upon which the Common Stock is then listed or interdealer
quotation system upon which the Common Stock is then quoted, and any applicable
federal or state securities laws. The Committee may place a legend or legends on
any such certificates to make appropriate reference to such restrictions.
18.7. The Company shall not be required to issue any certificate or
certificates for Shares with respect to Awards under this Plan, or record any
person as a holder of record of such Shares, without obtaining, to the complete
satisfaction of the Committee, the approval of all regulatory bodies deemed
necessary by the Committee, and without complying to the Board's or Committee's
complete satisfaction, with all rules and regulations, under federal, state or
local law deemed applicable by the Committee.
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