As Filed With the Securities and Exchange Commission
on April 17, 2009
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
WILSON BANK HOLDING COMPANY
(Exact Name of Registrant as Specified in its Charter)
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Tennessee
(State or Other Jurisdiction of
Incorporation or Organization)
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62-1497076
(I.R.S. Employer Identification No.)
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623 West Main Street
Lebanon, Tennessee
(Address of Principal Executive Offices)
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37087
(Zip Code)
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WILSON BANK HOLDING COMPANY 2009 STOCK OPTION PLAN
(Full Title of the Plan)
J. Randall Clemons
Wilson Bank Holding Company
623 West Main Street
Lebanon, Tennessee 37087
(Name and Address of Agent for Service)
(615) 444-2265
(Telephone Number, Including Area Code, of Agent for Service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer,
a non-accelerated filer or a smaller reporting company. See the definitions of large accelerated filer,
accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
(Check one):
Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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(Do not check if a smaller reporting company)
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Smaller reporting company
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CALCULATION OF REGISTRATION FEE
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Proposed
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Proposed
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Maximum
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Maximum
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Title of Securities
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Amount To Be
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Offering Price
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Aggregate
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Amount Of
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To Be Registered
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Registered (1)
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Per Share (2)
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Offering Price
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Registration Fee
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Common stock, par
value $2.00 per
share
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75,000 shares
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$36.25
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$2,718,750.00
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$151.71
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(1)
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Pursuant to Rule 416(a) under the Securities Act of 1933, as amended, this Registration
Statement also covers any additional shares of Common Stock that become issuable under the
plan by reason of any stock dividend, stock split, recapitalization or other similar
transaction effected without receipt of consideration that increases the number of outstanding
shares of the Registrants Common Stock.
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(2)
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Pursuant to Rule 457, reflects the last price at which the Registrants common stock was sold
prior to the date hereof, and of which the Registrant is aware.
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TABLE OF CONTENTS
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Wilson Bank Holding Company (the Registrant or the Company) has sent or given or will send
or give documents containing the information specified by Part I of this Form S-8 Registration
Statement (the Registration Statement) to participants in the plan to which this Registration
Statement relates, as specified in Rule 428(b)(1) promulgated by the Securities and Exchange
Commission (the SEC or the Commission) under the Securities Act of 1933, as amended (the
Securities Act). The Registrant is not filing such documents with the SEC, but these documents
constitute (along with the documents incorporated by reference into the Registration Statement
pursuant to Item 3 of Part II hereof) a prospectus that meets the requirements of Section 10(a) of
the Securities Act.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
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The following documents filed by the Registrant with the SEC, pursuant to the Securities
Exchange Act of 1934, as amended (the Exchange Act), are hereby incorporated by reference and
shall be deemed to be a part hereof from the date of filing of such document:
(1)
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The Registrants Annual Report on Form 10-K for the fiscal year ended December 31, 2008;
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(2)
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The Registrants Current Reports on Form 8-K filed with
the SEC on January 6, 2009 and April 16, 2009; and
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(3)
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The description of the Registrants Common Stock, par value $2.00 per share, contained in the
Registrants Registration Statement on Form S-4 filed with the SEC on February 4, 2005, and
including all other amendments and reports filed for the purpose of updating such
descriptions.
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All documents filed by the Registrant pursuant to Section 13(a), 13(c), 14 and 15(d) of the
Exchange Act after the date hereof and prior to the filing of a post-effective amendment to this
Registration Statement which indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference
herein and to be a part hereof from the date of filing of such documents. Any statements contained
in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be
modified or replaced for purposes hereof to the extent that a statement contained herein (or in any
other subsequently filed document which also is incorporated or deemed to be incorporated by
reference herein) modifies or replaces such statement. Any statement so modified or replaced shall
not be deemed, except as so modified or replaced, to constitute a part hereof.
Notwithstanding the foregoing, information furnished under Items 2.02 and 7.01 of any Current
Report on Form 8-K, including the related exhibits, is not incorporated by reference in this
Registration Statement or the related prospectus.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Tennessee Business Corporation Act (TBCA) provides that a corporation may indemnify any
of its directors and officers against liability incurred in connection with a proceeding if (i) the
director or officer acted in good faith, (ii) in the case of conduct in his or her official
capacity with the corporation, the director or officer reasonably believed such conduct was in the
corporations best interests, (iii) in all other cases, the director or officer reasonably believed
that his or her conduct was not opposed to the best interest of the corporation, and (iv) in
connection with any criminal proceeding, the director or officer had no reasonable cause to believe
that his or her conduct was unlawful. In actions brought by or in the right of the corporation,
however, the TBCA provides that no indemnification may be made if the director or officer was
adjudged to be liable to the corporation. In cases where the director or officer is wholly
successful, on the merits or otherwise, in the defense of any proceeding instigated because of his
or her status as an officer or director of a corporation, the TBCA mandates that the corporation
indemnify the director or officer against reasonable expenses incurred in the proceeding. The TBCA
also provides that in connection with any proceeding charging improper personal benefit to an
officer or director,
no indemnification may be made if such officer or director is adjudged liable on the basis that
personal benefit was
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improperly received. Notwithstanding the foregoing, the TBCA provides that a
court of competent jurisdiction, upon application, may order that an officer or director be
indemnified for reasonable expenses if, in consideration of all relevant circumstances, the court
determines that such individual is fairly and reasonably entitled to indemnification, whether or
not the standard of conduct set forth above was met.
The Registrants bylaws provide that the Registrant shall indemnify and advance expenses to
each director or officer of Registrant, or any person who may have served at the request of
Registrants board of directors or its Chief Executive Officer, as a director or office of another
corporation (and, in either case, his heirs, executors and administrators), to the fullest extent
allowed by the laws of the State of Tennessee, both as now in effect or hereafter adopted. The
bylaws also provide that the Registrant may indemnify and advance expenses to any employee or agent
of the Registrant who is not a director or officer (and his heirs, executors and administrators) to
the same extent as to a director or officer, if the board of directors determines that to do so is
in the best interests of the Registrant.
The Registrants bylaws also provide that the indemnification rights contained in the bylaws
do not exclude other indemnification rights to which a director or officer may be entitled under
any statute, charter provision, bylaw, resolution adopted by the shareholders, resolution adopted
by the board of directors, agreement, insurance, purchase by the Registrant or otherwise, both as
to action in his official capacity and as to action in another capacity.
The Registrant believes that its Charter and Bylaw provisions are necessary to attract and
retain qualified persons as directors and officers.
The Registrant has in effect a directors and officers liability insurance policy which
provides coverage for its directors and officers. Under this policy, the insurer agrees to pay,
subject to certain exclusions, for any claim made against a director or officer of the Registrant
for a wrongful act by such director or officer, but only if and to the extent such director or
officer becomes legally obligated to pay such claim.
Item 7. Exemption from Registration Claimed.
None.
Item 8. Exhibits.
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4.1
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Charter of Wilson Bank Holding Company, as amended (restated for SEC electronic
filling purposes only) (incorporated herein by reference to Exhibit 3.1 of the
Companys Registration Statement on Form S-4 (Registration No. 333-121943)).
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4.2
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Bylaws of Wilson Bank Holding Company, as amended (restated for SEC electronic
filling purposes only) (incorporated herein by reference to Exhibit 3.2 of the
Companys Registration Statement on Form S-4 (Registration No. 333-121943)).
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4.3
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Wilson Bank Holding Company 2009 Stock Option Plan.
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5.1
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Opinion of Bass, Berry & Sims PLC.
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23.1
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Consent of Bass, Berry & Sims PLC (included in Exhibit 5.1).
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23.2
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Consent of Maggart & Associates, P.C.
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24.1
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Powers of Attorney (contained on the signature page to this registration statement).
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Item 9. Undertakings
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A. The Registrant hereby undertakes:
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(1) To file, during any period in which offers or sales are being made, a post-effective
amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date
of this Registration Statement (or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in the information set
forth in this Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus filed with
the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than 20% change in the maximum aggregate offering price set forth in the
Calculation of Registration Fee table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not
previously disclosed in this Registration Statement or any material change to such
information in this Registration Statement;
Provided, however,
that clauses (a)(1)(i) and (a)(1)(ii) shall not apply if the information
required to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference into this
Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such
post-effective amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed to be
the initial
bona fide
offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the offering.
B. The Registrant hereby undertakes that, for purposes of determining any liability under the
Securities Act, each filing of the Registrants annual report pursuant to Section 13(a) or 15(d) of
the Exchange Act (and where applicable, each filing of an employee benefit plans annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed to be
the initial
bona fide
offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to
directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions,
or otherwise, the Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with the securities being registered,
the Registrant will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it
has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8, and
has duly caused this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Lebanon, State of Tennessee, on April 17, 2009.
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WILSON BANK HOLDING COMPANY
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By:
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/s/ J. Randall Clemons
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J. Randall Clemons
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President and Chief Executive Officer
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KNOW ALL MEN BY THESE PRESENTS,
each person whose signature appears below hereby constitutes
and appoints J. Randall Clemons, his or her true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him or her and in his or her name, place, and stead,
in any and all capacities, to sign any and all amendments (including post-effective amendments) to
this Registration Statement, and to file the same, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent full power and authority to do
and perform each and every act and thing requisite and necessary, as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement has been
signed by the following persons in the capacities and on the dates indicated below.
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Signature
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Title
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Date
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/s/ J. Randall Clemons
J. Randall Clemons
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President, Chief
Executive Officer and
Director
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April 17, 2009
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/s/ Lisa Pominski
Lisa Pominski
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Chief Financial Officer
(Principal Financial and
Accounting Officer)
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April 17, 2009
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/s/ H. Elmer Richerson
H. Elmer Richerson
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Executive Vice President
and Director
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April 17, 2009
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/s/ Charles Bell
Charles Bell
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Director
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April 17, 2009
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/s/ Jack W. Bell
Jack W. Bell
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Director
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April 17, 2009
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/s/ Mackey Bentley
Mackey Bentley
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Director
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April 17, 2009
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/s/ James F. Comer
James F. Comer
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Director
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April 17, 2009
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/s/ Jerry L. Franklin
Jerry L. Franklin
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Director
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April 17, 2009
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Signature
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Title
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Date
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/s/ John B. Freeman
John B. Freeman
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Director
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April 17, 2009
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/s/ Marshall Griffith
Marshall Griffith
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Director
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April 17, 2009
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/s/ Harold R. Patton
Harold R. Patton
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Director
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April 17, 2009
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/s/ James Anthony Patton
James Anthony Patton
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Director
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April 17, 2009
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/s/ John R. Trice
John R. Trice
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Director
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April 17, 2009
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/s/ Robert T. VanHooser, Jr.
Robert T. VanHooser, Jr.
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Director
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April 17, 2009
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EXHIBIT INDEX
4.1
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Charter of Wilson Bank Holding Company, as amended (restated for SEC electronic
filling purposes only) (incorporated herein by reference to Exhibit 3.1 of the
Companys Registration Statement on Form S-4 (Registration No. 333-121943)).
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4.2
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Bylaws of Wilson Bank Holding Company, as amended (restated for SEC electronic
filling purposes only) (incorporated herein by reference to Exhibit 3.2 of the
Companys Registration Statement on Form S-4 (Registration No. 333-121943)).
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4.3
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Wilson Bank Holding Company 2009 Stock Option Plan.
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5.1
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Opinion of Bass, Berry & Sims PLC.
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23.1
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Consent of Bass, Berry & Sims PLC (included in Exhibit 5.1).
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23.2
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Consent of Maggart & Associates, P.C.
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24.1
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Powers of Attorney (contained on the signature page to this registration statement).
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Exhibit 4.3
WILSON BANK HOLDING COMPANY
2009 STOCK OPTION PLAN
TABLE OF CONTENTS
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Tab
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Section 1.
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Purpose.
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2
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Section 2.
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Definitions.
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2
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Section 3.
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Administration.
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Section 4.
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Shares Available For Awards.
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Section 5.
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Eligibility.
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Section 6.
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Stock Options.
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Section 7.
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Termination Of Employment.
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Section 8.
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Change In Control.
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Section 9.
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Amendment And Termination.
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10
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Section 10.
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General Provisions.
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Section 11.
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Term Of The Plan.
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WILSON BANK HOLDING COMPANY
2009 STOCK OPTION PLAN
Section 1. Purpose.
This plan shall be known as the Wilson Bank Holding Company 2009 Stock Option Plan (the
Plan). The purpose of the Plan is to promote the interests of Wilson Bank Holding Company, a
Tennessee Company (the Company), its Subsidiaries and its shareholders by (i) attracting and
retaining key officers and employees of the Company and its Subsidiaries and Affiliates; (ii)
enabling such individuals to participate in the long-term growth and financial success of the
Company; (iii) encouraging ownership of stock in the Company by such individuals; and (iv) linking
their compensation to the long-term interests of the Company and its shareholders.
Section 2. Definitions.
As used in the Plan, the following terms shall have the meanings set forth below:
(a)
Affiliate
shall mean (i) any entity that, directly or indirectly, is controlled by the
Company, (ii) any entity in which the Company has a significant equity interest, (iii) an affiliate
of the Company, as defined in Rule 12b-2 promulgated under Section 12 of the Exchange Act, and (iv)
pursuant to a legitimate business criteria, any entity in which the Company has at least twenty
percent (20%) of the combined voting power of the entitys outstanding voting securities in
accordance with Treasury Regulations promulgated under Section 409A of the Code, in each case as
designated by the Board as being a participating employer in the Plan.
(b)
Award
shall mean any Option granted under the Plan to a Participant by the Committee (or
the Board) pursuant to such terms, conditions, restrictions and/or limitations, if any, as the
Committee (or the Board) may establish or which are required by applicable legal requirements.
(c)
Award Agreement
shall mean any written agreement, contract or other instrument or
document evidencing any Award, which may, but need not, be executed or acknowledged by a
Participant.
(d)
Board
shall mean the Board of Directors of the Company.
(e)
Cause
shall mean, unless otherwise defined in the applicable Award Agreement, (i) a
felony conviction of a Participant or the failure of a Participant to contest prosecution for a
felony, or (ii) a Participants willful misconduct or dishonesty, which is directly and materially
harmful to the business or reputation of the Company or any Subsidiary or Affiliate.
(f)
Change in Control
shall mean, unless otherwise defined in the applicable Award
Agreement, any of the following events:
(i)
any person or entity, including a group as defined in Section 13(d)(3) of the
Exchange Act, other than the Company or a wholly-owned subsidiary thereof or any employee
benefit plan of the Company or any of its Subsidiaries, becomes the beneficial owner of the
Companys securities having 50% or more of the combined voting power of the then outstanding
securities of the Company that may be cast for the election of directors of the Company
(other than as a result of an issuance of securities initiated by the Company in the
ordinary course of business); or
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(ii)
as the result of, or in connection with, any cash tender or exchange offer, merger
or other business combination, sales of assets or contested election, or any combination of
the foregoing transactions, less than a majority of the combined voting power of the then
outstanding securities of the Company or any successor corporation or entity entitled to
vote generally in the election of the directors of the Company or such other corporation or
entity after such transaction are held in the aggregate by the holders of the Companys
securities entitled to vote generally in the election of directors of the Company
immediately prior to such transaction; or
(iii)
during any period of two consecutive years, individuals who at the beginning of
any such period constitute the Board cease for any reason to constitute at least a majority
thereof, unless the election, or the nomination for election by the Companys shareholders,
of each director of the Company first elected during such period was approved by a vote of
at least two-thirds of the directors of the Company then still in office who were directors
of the Company at the beginning of any such period.
(g)
Code
shall mean the Internal Revenue Code of 1986, as amended from time to time.
(h)
Committee
shall mean the Personnel Committee of the Board or such other committee as the
Board may so designate. The Committee shall be composed of not less than two Non-Employee
Directors, at least two of whom shall be a non-employee director for purposes of Exchange Act
Section 16 and Rule 16b-3 thereunder.
(i)
Common Stock
means the Companys common stock, par value $2.00 per share.
(j)
Director
shall mean a member of the Board or a member of the board of directors of any
Subsidiary or Affiliate.
(k)
Disability
shall mean, unless otherwise defined in the applicable Award Agreement, a
disability that would qualify as a total and permanent disability under the Companys then current
long-term disability plan.
(l)
Employee
shall mean a current or prospective officer or employee of the Company or of
any Subsidiary or Affiliate.
(m)
Early Retirement
means retirement, with the express consent of the Company at or before
the time of such retirement, from active employment with the Company and any Subsidiary or
Affiliate prior to age 65, in accordance with any applicable early retirement policy of the Company
then in effect or as may be approved by the Committee.
(n)
Exchange Act
shall mean the Securities Exchange Act of 1934, as amended from time to
time.
(o)
Fair Market Value
means, as of any date, the value of a Share as determined by the
Committee, in its discretion, subject to the following: (i) if, on such date, Shares are listed on
a national or regional securities exchange or market system, or Share prices are quoted on the Over
the Counter Bulletin Board (OTCBB), the Fair Market Value of a Share shall be the closing price of
a Share (or the mean of the closing bid and asked prices of a Share if the Share price is so quoted
instead) as quoted on such national, regional securities exchange, market system or OTCBB
constituting the primary market for the Shares, as reported in
The Wall Street Journal
, the
OTCBB or such other source as the Company deems reliable; if the relevant date does not fall on a
day on which the Shares have traded over the counter or on such securities exchange or market
system, the date on which the Fair Market Value shall be established shall be the last day on which
the Shares were so traded prior to the relevant date, or such other appropriate day as shall be
determined by the Committee, in its discretion, and (ii) in the event there
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is no public market for the Shares on such date, the fair market value as determined by the
Board or Committee pursuant to the reasonable application of such reasonable valuation method as
the Board or Committee in its sole discretion shall deem appropriate; provided, however, that, with
respect to Incentive Stock Options, fair market value shall be determined pursuant to Section
422(c)(7) of the Code, and for purposes of a sale of a Share as of any date, the actual sales price
on that date.
(p)
Incentive Stock Option
shall mean an option to purchase Shares from the Company that is
granted under
Section 6
of the Plan and that is intended to meet the requirements of
Section 422 of the Code or any successor provision thereto.
(q)
Non-Qualified Stock Option
shall mean an option to purchase Shares from the Company that
is granted under
Sections 6
of the Plan and is not intended to be an Incentive Stock
Option.
(r)
Normal Retirement
means retirement from active employment with the Company and any
Subsidiary or Affiliate on or after age 65.
(s)
Non-Employee Director
shall mean a member of the Board who is a Non-Employee Director
within the meaning of Rule 16b-3(b)(3) promulgated under the Exchange Act and an outside director
within the meaning of Treasury Regulation Sec. 162-27(e)(3) promulgated under the Code.
(t)
Option
shall mean an Incentive Stock Option or a Non-Qualified Stock Option.
(u)
Option Price
shall mean the purchase price payable to purchase one Share upon the
exercise of an Option.
(v)
Participant
shall mean any Employee or other person who receives an Award under the
Plan.
(w)
Person
shall mean any individual, Company, partnership, limited liability company,
association, joint-stock company, trust, unincorporated organization, government or political
subdivision thereof or other entity.
(x)
Potential Change in Control
shall mean, unless otherwise defined in the applicable Award
Agreement, any of the following events:
(i)
The approval by shareholders of an agreement by the Company, the consummation of
which would result in a Change in Control of the Company; or
(ii)
The acquisition of beneficial ownership, directly or indirectly, by any entity,
person or group (other than the Company or a Subsidiary or any Company employee benefit plan
(including any trustee of such plan acting as such trustee)) of securities of the Company
representing 5% or more of the combined voting power of the Companys outstanding securities
and the adoption by the Board of a resolution to the effect that a Potential Change in
Control of the Company has occurred for purposes of this Plan.
(y)
Retirement
shall mean, unless otherwise defined in the applicable Award Agreement,
Normal or Early Retirement.
(z)
SEC
shall mean the Securities and Exchange Commission or any successor thereto.
(aa)
Section 16
shall mean Section 16 of the Exchange Act and the rules promulgated
thereunder and any successor provision thereto as in effect from time to time.
(bb)
Shares
shall mean shares of Common Stock.
4
(cc)
Subsidiary
shall mean any Person (other than the Company) of which a majority of its
voting power or its equity securities or equity interest is owned directly or indirectly by the
Company.
(dd)
Substitute Awards
shall mean Awards granted solely in assumption of, or in substitution
for, outstanding awards previously granted by a company acquired by the Company or with which the
Company combines.
Section 3. Administration.
3.1.
Authority of Committee.
The Plan shall be administered by the Committee, which shall be
appointed by and serve at the pleasure of the Board. Subject to the terms of the Plan and
applicable law, and in addition to other express powers and authorizations conferred on the
Committee by the Plan, the Committee shall have full power and authority in its discretion to: (i)
designate Participants; (ii) determine the type or types of Awards to be granted to a Participant;
(iii) determine the number of Shares to be covered by, or with respect to which payments, rights or
other matters are to be calculated in connection with Awards; (iv) determine the timing, terms, and
conditions of any Award; (v) accelerate the time at which all or any part of an Award may be
settled or exercised; (vi) determine whether, to what extent, and under what circumstances, Awards
may be settled or exercised in cash, Shares, other securities, other Awards or other property, or
canceled, forfeited or suspended and the method or methods by which Awards may be settled,
exercised, canceled, forfeited or suspended; (vii) determine whether, to what extent, and under
what circumstances cash, Shares, other securities, other Awards, other property, and other amounts
payable with respect to an Award shall be deferred either automatically or at the election of the
holder thereof or of the Committee; (viii) interpret and administer the Plan and any instrument or
agreement relating to, or Award made under, the Plan; (ix) except to the extent prohibited by
Section 6.2
, amend or modify the terms of any Award at or after grant with the consent of
the holder of the Award; (x) establish, amend, suspend or waive such rules and regulations and
appoint such agents as it shall deem appropriate for the proper administration of the Plan; and
(xi) make any other determination and take any other action that the Committee deems necessary or
desirable for the administration of the Plan, subject to the exclusive authority of the Board under
Section 9
hereunder to amend or terminate the Plan. The exercise of an Option or receipt
of an Award shall be effective only if an Award Agreement shall have been duly executed and
delivered on behalf of the Company following the grant of the Option or other Award.
3.2.
Committee Discretion Binding.
Unless otherwise expressly provided in the Plan, all
designations, determinations, interpretations, and other decisions under or with respect to the
Plan or any Award shall be within the sole discretion of the Committee, may be made at any time and
shall be final, conclusive, and binding upon all Persons, including the Company, any Subsidiary or
Affiliate, any Participant and any holder or beneficiary of any Award.
3.3.
Delegation.
Subject to the terms of the Plan, the Committees charter and applicable
law, the Committee may delegate to one or more officers or managers of the Company or of any
Subsidiary or Affiliate, or to a Committee of such officers or managers, the authority, subject to
such terms and limitations as the Committee shall determine, to grant Awards to or to cancel,
modify or waive rights with respect to, or to alter, discontinue, suspend or terminate Awards held
by Participants who are not officers or directors of the Company for purposes of Section 16 or who
are otherwise not subject to such Section.
Section 4. Shares Available For Awards.
4.1.
Shares Available.
Subject to the provisions of
Section 4.2
hereof, the stock to
be subject to Awards under the Plan shall be the Shares of the Company and the maximum number of
Shares with
5
respect to which Awards may be granted under the Plan shall be 75,000. If, after the
effective date of the Plan, any Shares covered by an Award granted under this Plan, or to which
such an Award relates, are forfeited, or if such an Award is settled for cash or otherwise
terminates, expires unexercised or is canceled or settled without the delivery of Shares or with
the delivery of a reduced number of Shares, then the Shares covered by such Award, or to which such
Award relates, or the number of Shares otherwise counted against the aggregate number of Shares
with respect to which Awards may be granted, to the extent of any such settlement, reduction,
forfeiture, termination, expiration or cancellation, shall again become Shares with respect to
which Awards may be granted. In the event that any Option granted hereunder is exercised through
the delivery of Shares already owned by the Participant or withholding of Shares issuable upon
exercise of the Award by the Company or in the event that withholding tax liabilities arising from
such Award are satisfied by the withholding of Shares issuable upon exercise of the Award by the
Company or the delivery of Shares already owned by the Participant, the number of Shares available
for Awards under the Plan shall be increased by the number of Shares so surrendered or withheld.
4.2.
Adjustments.
In the event that any dividend or other distribution (whether in the form
of cash, Shares, other securities or other property), recapitalization, stock split, reverse stock
split, reorganization, merger, consolidation, split-up, spin-off, combination, repurchase or
exchange of Shares or other securities of the Company, issuance of warrants or other rights to
purchase Shares or other securities of the Company, or other similar corporate transaction or event
affects the Shares, then the Committee shall in an equitable and proportionate manner (and, as
applicable, in such manner as is consistent with Sections 422 and 409A of the Code and the
regulations thereunder either: (i) adjust any or all of (1) the aggregate number of Shares or other
securities of the Company (or number and kind of other securities or property) with respect to
which Awards may be granted under the Plan; (2) the number of Shares or other securities of the
Company (or number and kind of other securities or property) subject to outstanding Awards under
the Plan, provided that the number of shares subject to any Award shall always be a whole number;
(3) the grant or exercise price with respect to any Award under the Plan; and (4) the limits on the
number of Shares that may be granted to Participants under the Plan in any calendar year; (ii)
provide for an equivalent award in respect of securities of the surviving entity of any merger,
consolidation or other transaction or event having a similar effect; or (iii) make provision for a
cash payment to the holder of an outstanding Award.
4.3.
Substitute Awards.
Any Shares issued by the Company as Substitute Awards in connection
with the assumption or substitution of outstanding grants from any acquired Company shall not
reduce the Shares available for Awards under the Plan.
4.4.
Sources of Shares Deliverable Under Awards.
Any Shares delivered pursuant to an Award
may consist, in whole or in part, of authorized and unissued Shares or of previously issued Shares
which have been reacquired by the Company.
Section 5. Eligibility.
Any Employee shall be eligible to be designated a Participant.
Section 6. Stock Options.
6.1.
Grant.
Subject to the provisions of the Plan including, without limitation,
Section
3.3
above and other applicable legal requirements, the Committee shall have sole and complete
authority to determine the Participants to whom Options shall be granted, the number of Shares
subject to each Award, the Option Price and the conditions and limitations applicable to the
exercise of each Option. The Committee shall have the authority to grant Incentive Stock Options,
and to grant Non-Qualified Stock Options. In the case of Incentive Stock Options, the terms and
conditions of such grants shall be subject
6
to and comply with Section 422 of the Code, as from time to time amended, and any regulations
implementing such statute. A person who has been granted an Option under this Plan may be granted
additional Options under the Plan if the Committee shall so determine; provided, however, that to
the extent the aggregate Fair Market Value (determined at the time the Incentive Stock Option is
granted) of the Shares with respect to which all Incentive Stock Options are exercisable for the
first time by an Employee during any calendar year (under all plans described in of Section 422(d)
of the Code of the Employees employer corporation and its parent and Subsidiaries) exceeds
$100,000, such Options shall be treated as Non-Qualified Stock Options.
6.2.
Price.
The Committee in its sole discretion shall establish the Option Price at the time
each Option is granted. Except in the case of Substitute Awards, the Option Price of an Option may
not be less than one hundred percent (100%) of the Fair Market Value of the Shares with respect to
which the Option is granted on the date of grant of such Option. Notwithstanding the foregoing and
except as permitted by the provisions of
Section 4.2
and
Section 9
hereof, the
Committee shall not have the power to (i) amend the terms of previously granted Options to reduce
the Option Price of such Options, or (ii) cancel such Options and grant substitute Options with a
lower Option Price than the cancelled Options.
6.3.
Term.
Subject to the Committees authority under
Section 3.1
and the provisions
of
Section 6.5
, each Option and all rights and obligations thereunder shall expire on the
date determined by the Committee and specified in the Award Agreement. The Committee shall be
under no duty to provide terms of like duration for Options granted under the Plan.
Notwithstanding the foregoing, no Option shall be exercisable after the expiration of ten (10)
years from the date such Option was granted.
6.4.
Exercise.
(a) Each Option shall be exercisable at such times and subject to such terms and
conditions as the Committee may, in its sole discretion, specify in the applicable Award
Agreement or thereafter. The Committee shall have full and complete authority to determine,
subject to
Section 6.5
herein, whether an Option will be exercisable in full at any
time or from time to time during the term of the Option, or to provide for the exercise
thereof in such installments, upon the occurrence of such events and at such times during
the term of the Option as the Committee may determine.
(b) The Committee may impose such conditions with respect to the exercise of Options,
including without limitation, any relating to the application of federal, state or foreign
securities laws or the Code, as it may deem necessary or advisable. The exercise of any
Option granted hereunder shall be effective only at such time as the sale of Shares pursuant
to such exercise will not violate any state or federal securities or other laws.
(c) An Option may be exercised in whole or in part at any time, with respect to whole
Shares only, within the period permitted thereunder for the exercise thereof, and shall be
exercised by written notice of intent to exercise the Option, delivered to the Company at
its principal office, and payment in full to the Company at the direction of the Committee
of the amount of the Option Price for the number of Shares with respect to which the Option
is then being exercised.
(d) Payment of the Option Price shall be made in cash or cash equivalents, or, at the
discretion of the Committee, (i) by transfer, either actually or by attestation, to the
Company of Shares that are then owned by the Participant, valued at the Fair Market Value of
such Shares on the date of exercise (or next succeeding trading date, if the date of
exercise is not a trading date), together with such number of Shares that are then owned by
the Participant necessary to satisfy
7
any applicable withholding taxes with such Shares
valued at the Fair Market Value of such
Shares on the date of exercise (or the next succeeding trading date, if the date of
exercise is not a trading date), such transfer to be upon such terms and conditions as
determined by the Committee, (ii) by the withholding by the Company of Shares issuable upon
the exercise of such Option valued at the Fair Market Value of such Shares on the date of
exercise (or next succeeding trading date, if the date of exercise is not a trading date),
together with such number of Shares that are then owned by the Participant necessary to
satisfy any applicable withholding taxes, with such Shares valued at the fair market value
of such Shares on the date of exercise (or next succeeding trading date, if the date of
exercise is not a trading date), such transfer to be upon such terms and conditions as
determined by the Committee or (iii) by a combination of such cash (or cash equivalents) and
such Shares; provided, however, that the Participant shall not be entitled to tender Shares
pursuant to successive, substantially simultaneous exercises of an Option or any other stock
option of the Company. Subject to applicable securities laws, an Option may also be
exercised by delivering a notice of exercise of the Option and simultaneously selling the
Shares thereby acquired, pursuant to a brokerage or similar agreement approved in advance by
proper officers of the Company, using the proceeds of such sale as payment of the Option
Price, together with any applicable withholding taxes. Until the Participant has been
issued the Shares subject to such exercise, he or she shall possess no rights as a
shareholder with respect to such Shares.
6.5.
Ten Percent Stock Rule.
Notwithstanding any other provisions in the Plan, if at the time
an Option is otherwise to be granted pursuant to the Plan, the optionee or rights holder owns
directly or indirectly (within the meaning of Section 424(d) of the Code) Shares of the Company
possessing more than ten percent (10%) of the total combined voting power of all classes of Stock
of the Company or its parent or Subsidiary or Affiliate corporations (within the meaning of Section
422(b)(6) of the Code), then any Incentive Stock Option to be granted to such optionee or rights
holder pursuant to the Plan shall satisfy the requirement of Section 422(c)(5) of the Code, and the
Option Price shall be not less than one hundred ten percent (110%) of the Fair Market Value of the
Shares of the Company, and such Option by its terms shall not be exercisable after the expiration
of five (5) years from the date such Option is granted.
Section 7. Termination Of Employment.
7.1.
Termination by Death
. Subject to
Section 7.5
, if a Participants employment by
the Company and any Subsidiary or (except in the case of an Incentive Stock Option) Affiliate
terminates by reason of death, any Stock Option held by such Participant may thereafter be
exercised, to the extent such option was exercisable at the time of death or (except in the case of
an Incentive Stock Option) on such accelerated basis as the Committee may determine at or after
grant (or except in the case of an Incentive Stock Option, as may be determined in accordance with
procedures established by the Committee) by the legal representative of the estate or by the
legatee of the Participant under the will of the Participant, for a period of one year (or such
other period as the Committee may specify at or after grant) from the date of such death or until
the expiration of the stated term of such Option, whichever period is the shorter.
7.2.
Termination by Reason of Disability.
Subject to
Section 7.5
, if a Participants
employment by the Company and any Subsidiary or (except in the case of an Incentive Stock Option)
Affiliate terminates by reason of Disability, any Stock Option held by such Participant may
thereafter be exercised by the Participant, to the extent it was exercisable at the time of
termination or (except in the case of an Incentive Stock Option) on such accelerated basis as the
Committee may determine at or after grant (or, except in the case of an Incentive Stock Option, as
may be determined in accordance with procedures established by the Committee), for a period of (i)
three years (or such other period as the Committee may specify at or after grant) from the date of
such termination of employment or until the expiration of the stated term of such Option, whichever
period is the shorter, in the case of a Non-
8
Qualified Stock Option and (ii) one year from the date
of termination of employment or until the
expiration of the stated term of such Option, whichever period is shorter, in the case of an
Incentive Stock Option; provided however, that, if the Participant dies within the period specified
in (i) above (or other such period as the Committee shall specify at or after grant), any
unexercised Non-Qualified Stock Option held by such Participant shall thereafter be exercisable to
the extent to which it was exercisable at the time of death for a period of twelve months from the
date of such death or until the expiration of the stated term of such Option, whichever period is
shorter. In the event of termination of employment by reason of Disability, if an Incentive Stock
Option is exercised after the expiration of the exercise period applicable to Incentive Stock
Options, but before the expiration of any period that would apply if such Option were a
Non-Qualified Stock Option, such Option will thereafter be treated as a Non-Qualified Stock Option.
7.3.
Termination by Reason of Retirement.
Subject to
Section 7.5
, if a Participants
employment by the Company and any Subsidiary or (except in the case of an Incentive Stock Option)
Affiliate terminates by reason of Normal or Early Retirement, any Option held by such Participant
may thereafter be exercised by the Participant, to the extent it was exercisable at the time of
such Retirement or (except in the case of an Incentive Stock Option) on such accelerated basis as
the Committee may determine at or after grant (or, except in the case of an Incentive Stock Option,
as may be determined in accordance with procedures established by the Committee), for a period of
(i) three years (or such other period as the Committee may specify at or after grant) from the date
of such termination of employment or the expiration of the stated term of such Option, whichever
period is the shorter, in the case of a Non-Qualified Stock Option and (ii) three months from the
date of such termination of employment or the expiration of the stated term of such Option,
whichever period is the shorter, in the event of an Incentive Stock Option; provided however, that,
if the Participant dies within the period specified in (i) above (or other such period as the
Committee shall specify at or after grant), any unexercised Non-Qualified Stock Option held by such
Participant shall thereafter be exercisable to the extent to which it was exercisable at the time
of death for a period of twelve months from the date of such death or until the expiration of the
stated term of such Option, whichever period is shorter. In the event of termination of employment
by reason of Normal or Early Retirement, if an Incentive Stock Option is exercised after the
expiration of the exercise period applicable to Incentive Stock Options, but before the expiration
of the period that would apply if such Option were a Non-Qualified Stock Option, the option will
thereafter be treated as a Non-Qualified Stock Option.
7.4.
Other Termination.
Subject to
Section 7.5
, unless otherwise determined by the
Committee (or pursuant to procedures established by the Committee) at or (except in the case of an
Incentive Stock Option) after grant, if a Participants employment by the Company and any
Subsidiary or (except in the case of an Incentive Stock Option) Affiliate is involuntarily
terminated for any reason other than death, Disability or Normal or Early Retirement, the Option
shall thereupon terminate, except that such Option may be exercised, to the extent otherwise then
exercisable, for the lesser of three months or the balance of such Options term if the involuntary
termination is without Cause. If a Participant voluntarily terminates employment with the Company
and any Subsidiary or (except in the case of an Incentive Stock Option) Affiliate (except for
Disability, Normal or Early Retirement), or the Participants employment is terminated with Cause,
the Stock Option shall thereupon terminate upon the termination of the Participants employment;
provided, however, that the Committee at grant or (except in the case of an Incentive Stock Option)
thereafter may extend the exercise period in this situation for the lesser of three months or the
balance of such Options term.
7.5.
Incentive Stock Options.
Anything in the Plan to the contrary notwithstanding, no term of
this Plan relating to Incentive Stock Options shall be interpreted, amended, or altered, nor shall
any discretion or authority granted under the Plan be so exercised, so as to disqualify the Plan
under Section 422 of the Code, or, without the consent of the Participant(s) affected, to
disqualify any Incentive Stock Option under such Section 422. No Incentive Stock Option shall be
granted to any Participant under the
9
Plan if such grant would cause the aggregate Fair Market Value
(as of the date the Incentive Stock Option
is granted) of the Common Stock with respect to which all Incentive Stock Options are
exercisable for the first time by such Participant during any calendar year (under all such plans
of the Company and any Subsidiary) to exceed $100,000. To the extent permitted under Section 422 of
the Code or the applicable regulations thereunder or any applicable Internal Revenue Service
pronouncement:
(i)
if (x) a Participants employment is terminated by reason of death, Disability, or
Retirement and (y) the portion of any Incentive Stock Option that is otherwise exercisable
during the post-termination period specified under
Section 7.1
,
7.2
or
7.3
, applied without regard to the $100,000 limitation contained in Section 422(d)
of the Code, is greater than the portion of such Option that is immediately exercisable as
an Incentive Stock Option during such post-termination period under Section 422, such
excess shall be treated as a Non-Qualified Stock Option; and
(ii)
if the exercise of an Incentive Stock Option is accelerated by reason of a Change
in Control, any portion of such Option that is not exercisable as an Incentive Stock Option
by reason of the $100,000 limitation contained in Section 422(d) of the Code shall be
treated as a Non-Qualified Stock Option.
7.6.
Buyout Provisions.
The Committee may at any time offer to buy out for a payment in cash
or Common Stock an Option previously granted, based on such terms and conditions as the Board shall
establish and communicate to the optionee at the time that such offer is made.
Section 8. Change In Control.
In the event of a Change in Control or a Potential Change in Control, but only if and to the
extent so determined by the Committee and the Board, at or after grant (subject to any right of
approval expressly reserved by the Committee or the Board at the time of such determination), any
Option awarded under the Plan not previously exercisable and vested shall become fully exercisable
and vested, except to the extent that the Committee or the Board has imposed conditions on the
acceleration of any award in the Award Agreement.
Section 9. Amendment And Termination.
9.1.
Amendments to the Plan.
The Board may amend, alter, suspend, discontinue or terminate
the Plan or any portion thereof at any time; provided that no such amendment, alteration,
suspension, discontinuation or termination shall be made without shareholder approval if such
approval is necessary to comply with any tax or regulatory requirement for which or with which the
Board deems it necessary or desirable to comply.
9.2.
Amendments to Awards.
Subject to the restrictions of
Section 6.2
, the Committee
may waive any conditions or rights under, amend any terms of or alter, suspend, discontinue, cancel
or terminate, any Award theretofore granted, prospectively or retroactively; provided that any such
waiver, amendment, alteration, suspension, discontinuance, cancellation or termination that would
materially and adversely affect the rights of any Participant or any holder or beneficiary of any
Award theretofore granted shall not to that extent be effective without the consent of the affected
Participant, holder or beneficiary.
9.3.
Adjustments of Awards Upon the Occurrence of Certain Unusual or Nonrecurring Events.
The
Committee is hereby authorized to make equitable and proportionate adjustments in the terms and
conditions of, and the criteria included in, Awards in recognition of unusual or nonrecurring
events (and shall make such adjustments for events described in
Section 4.2
hereof)
affecting the
10
Company, any Subsidiary or Affiliate, or the financial statements of the Company or any
Subsidiary or Affiliate, or of changes in applicable laws, regulations or accounting principles.
9.4.
Section 409A Compliance
. No Award (or modification thereof) shall provide for a
deferral of compensation (as such term is defined in Treasury Regulations promulgated under
Section 409A of the Code) that does not comply with Section 409A of the Code, or an applicable
exemption, unless the Committee, at the time of grant, specifically provides that the Award is not
intended to comply with Section 409A of the Code. Any Award granted pursuant to this Plan which
provides for a deferral of compensation (as such term is defined in Treasury Regulations
promulgated under Section 409A of the Code) shall be granted pursuant to an Award Agreement which
incorporates the provisions (including applicable definitions of key terms, such as disability,
change of control and separation from service) of Section 409A of the Code applicable to such
Award. Notwithstanding any provision of this Plan to the contrary, if one or more of the payments
or benefits received or to be received by a Participant pursuant to an Award would cause the
Participant to incur any additional tax or interest under Section 409A of the Code, the Committee
may reform such provision to maintain to the maximum extent practicable the original intent of the
applicable provision without violating the provisions of Section 409A of the Code.
Section 10. General Provisions.
10.1.
Limited Transferability of Awards.
Except as otherwise provided in the Plan, no Award
shall be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by a
Participant, except by will or the laws of descent and distribution. No transfer of an Award by
will or by laws of descent and distribution shall be effective to bind the Company unless the
Company shall have been furnished with written notice thereof and an authenticated copy of the will
and/or such other evidence as the Committee may deem necessary or appropriate to establish the
validity of the transfer.
10.2.
No Rights to Awards.
No Person shall have any claim to be granted any Award, and there
is no obligation for uniformity of treatment of Participants or holders or beneficiaries of Awards.
The terms and conditions of Awards need not be the same with respect to each Participant.
10.3.
Share Certificates.
All certificates for Shares or other securities of the Company or
any Subsidiary or Affiliate delivered under the Plan pursuant to any Award or the exercise thereof
shall be subject to such stop transfer orders and other restrictions as the Committee may deem
advisable under the Plan or the rules, regulations and other requirements of the SEC or any state
securities commission or regulatory authority, any stock exchange or other market upon which such
Shares or other securities are then listed, and any applicable Federal or state laws, and the
Committee may cause a legend or legends to be put on any such certificates to make appropriate
reference to such restrictions.
10.4.
Withholding.
A Participant may be required to pay to the Company or any Subsidiary or
Affiliate and the Company or any Subsidiary or Affiliate shall have the right and is hereby
authorized to withhold from any Award, from any payment due or transfer made under any Award or
under the Plan, or from any compensation or other amount owing to a Participant the amount (in
cash, Shares, other securities, other Awards or other property) of any applicable withholding or
other tax-related obligations in respect of an Award, its exercise or any other transaction
involving an Award, or any payment or transfer under an Award or under the Plan and to take such
other action as may be necessary in the opinion of the Company to satisfy all obligations for the
payment of such taxes. The Committee may provide for additional cash payments to holders of
Options to defray or offset any tax arising from the grant, vesting, exercise or payment of any
Award.
10.5.
Award Agreements.
Each Award hereunder shall be evidenced by an Award Agreement that
shall be delivered to the Participant and may specify the terms and conditions of the Award and any
11
rules applicable thereto. In the event of a conflict between the terms of the Plan and any
Award Agreement, the terms of the Plan shall prevail. The Committee shall, subject to applicable
law, determine the date an Award is deemed to be granted. The Committee or, except to the extent
prohibited under applicable law, its delegate(s) may establish the terms of agreements or other
documents evidencing Awards under this Plan and may, but need not, require as a condition to any
such agreements or documents effectiveness that such agreement or document be executed by the
Participant, including by electronic signature or other electronic indication of acceptance, and
that such Participant agree to such further terms and conditions as specified in such agreement or
document. The grant of an Award under this Plan shall not confer any rights upon the Participant
holding such Award other than such terms, and subject to such conditions, as are specified in this
Plan as being applicable to such type of Award (or to all Awards) or as are expressly set forth in
the agreement or other document evidencing such Award.
10.6.
No Limit on Other Compensation Arrangements.
Nothing contained in the Plan shall
prevent the Company or any Subsidiary or Affiliate from adopting or continuing in effect other
compensation arrangements, which may, but need not, provide for the grant of Options or other types
of Awards provided for hereunder.
10.7.
No Right to Employment.
The grant of an Award shall not be construed as giving a
Participant the right to be retained in the employ of the Company or any Subsidiary or Affiliate.
Further, the Company or a Subsidiary or Affiliate may at any time dismiss a Participant from
employment, free from any liability or any claim under the Plan, unless otherwise expressly
provided in an Award Agreement.
10.8.
No Rights as Shareholder.
Subject to the provisions of the Plan and the applicable
Award Agreement, no Participant or holder or beneficiary of any Award shall have any rights as a
shareholder with respect to any Shares to be distributed under the Plan until such person has
become a holder of such Shares.
10.9.
Governing Law.
The validity, construction and effect of the Plan and any rules and
regulations relating to the Plan and any Award Agreement shall be determined in accordance with the
laws of the State of Tennessee without giving effect to conflicts of laws principles.
10.10.
Severability.
If any provision of the Plan or any Award is, or becomes, or is deemed
to be invalid, illegal or unenforceable in any jurisdiction or as to any Person or Award, or would
disqualify the Plan or any Award under any law deemed applicable by the Committee, such provision
shall be construed or deemed amended to conform to the applicable laws, or if it cannot be
construed or deemed amended without, in the determination of the Committee, materially altering the
intent of the Plan or the Award, such provision shall be stricken as to such jurisdiction, Person
or Award and the remainder of the Plan and any such Award shall remain in full force and effect.
10.11.
Other Laws.
The Committee may refuse to issue or transfer any Shares or other
consideration under an Award if, acting in its sole discretion, it determines that the issuance or
transfer of such Shares or such other consideration might violate any applicable law or regulation
(including applicable non-U.S. laws or regulations) or entitle the Company to recover the same
under Exchange Act Section 16(b), and any payment tendered to the Company by a Participant, other
holder or beneficiary in connection with the exercise of such Award shall be promptly refunded to
the relevant Participant, holder or beneficiary.
10.12.
No Trust or Fund Created.
Neither the Plan nor any Award shall create or be construed
to create a trust or separate fund of any kind or a fiduciary relationship between the Company or
any Subsidiary or Affiliate and a Participant or any other Person. To the extent that any Person
acquires a right to receive payments from the Company or any Subsidiary or Affiliate pursuant to an
Award, such
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right shall be no greater than the right of any unsecured general creditor of the Company or
any Subsidiary or Affiliate.
10.13.
No Fractional Shares.
No fractional Shares shall be issued or delivered pursuant to
the Plan or any Award, and the Committee shall determine whether cash, other securities or other
property shall be paid or transferred in lieu of any fractional Shares or whether such fractional
Shares or any rights thereto shall be canceled, terminated or otherwise eliminated.
10.14.
Headings.
Headings are given to the sections and subsections of the Plan solely as a
convenience to facilitate reference. Such headings shall not be deemed in any way material or
relevant to the construction or interpretation of the Plan or any provision thereof.
Section 11. Term Of The Plan.
11.1.
Effective Date.
The Plan shall be effective as of the later of the date it has been
approved by the Board and by the Companys shareholders.
11.2.
Expiration Date.
No new Awards shall be granted under the Plan after the tenth
anniversary of the Effective Date. Unless otherwise expressly provided in the Plan or in an
applicable Award Agreement, any Award granted hereunder may, and the authority of the Board or the
Committee to amend, alter, adjust, suspend, discontinue or terminate any such Award or to waive any
conditions or rights under any such Award shall, continue after the tenth anniversary of the
Effective Date.
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