United
States
SECURITIES
AND EXCHANGE
COMMISSION
Washington,
D.C.
20549
FORM
8-K
CURRENT
REPORT
Pursuant to
Section 13 or
15(d) of the Securities Exchange Act of 1934
Date
of Report (Date of earliest event
reported): September 19, 2008 (September 15,
2008)
e
Plus
inc.
(Exact
name of registrant as specified
in its charter)
Delaware
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1-34167
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54-1817218
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(State
or other
jurisdiction of incorporation or organization)
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(Commission
File Number)
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(I.R.S.
Employer Identification No.)
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13595
Dulles
Technology Drive, Herndon, VA 20171-3413
(Address,
including zip code, of
principal executive offices)
Registrant's
telephone number, including
area code:
(703)
984-8400
Check
the
appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions
(see General Instruction A.2
below):
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[
]
Written communications pursuant to Rule 425 under the
Securities Act (17 CFR
230.425)
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[
]
Soliciting material pursuant to Rule 14a-12
under the Exchange Act (17 CFR
240.14a-12)
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[
]
Pre-commencement communications pursuant to Rule
14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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[
]
Pre-commencement communications pursuant to Rule
13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item
5.02
Departure
of Directors or Certain Officers; Election of Directors; Appointment of Certain
Officers; Compensatory Arrangements of Certain Officers
e
Plus
inc. (the
“Corporation”) held its Annual Meeting of Stockholders on September 15,
2008. At that meeting, the Corporation’s stockholders approved the
2008 Non-Employee Director Long-Term Incentive Plan and the 2008 Employee
Long-Term Incentive Plan. The Plans were adopted by the Board of Directors
on
June 25, 2008, subject to the appropriate approval by a vote of
stockholders at the Corporation’s 2008 Annual Meeting of Stockholders.
Descriptions of both plans are set forth in the Corporation’s definitive proxy
statement for the 2008 Annual Meeting of Stockholders filed on Schedule 14A
with
the SEC on July 29, 2008 (such description being incorporated herein by
reference).
The
foregoing description of the Plans do not purport to be complete and are
qualified in their entirety by reference to such plans (including any schedules
and exhibits thereto), copies of which are filed as Exhibits 10.1 and 10.2
hereto and are incorporated by reference herein.
Item
9.01
Financial Statements
and Exhibits
(d)
Exhibits:
Exhibit
No.
Description
3.1
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ePlus
inc. Amended and Restated Certificate of Incorporation
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10.1
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2008
Non-Employee Director Long-Term Incentive Plan
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10.2
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2008
Employee Long-Term Incentive Plan
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10.3
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Form
of Award Agreement – Incentive Stock Options
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10.4
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Form
of Award Agreement – Nonqualified Stock Options
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10.5
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Form
of Award Agreement – Restricted Stock Awards
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10.6
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Form
of Award Agreement – Restricted Stock
Units
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SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant
has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
3
AMENDED
AND RESTATED CERTIFICATE OF INCORPORATION OF EPLUS INC.
The
present name of the corporation is ePlus inc. (the
“Corporation”). The Corporation was incorporated under the name “MLC
Holdings, Inc.” by filing of its original Certificate of Incorporation with the
Secretary of State of the State of Delaware on August 27, 1996. This
Amended and Restated Certificate of Incorporation of the Corporation, which
restates and integrates and also further amends the provisions of the
Corporation’s Certificate of Incorporation, was duly adopted in accordance with
the provisions of Sections 242 and 245 of the General Corporation Laws of the
State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code, as
amended, and referred to as the “Delaware General Corporation
Law”). The Certificate of Incorporation of the Corporation is hereby
amended, integrated and restated to read in its entirety as
follows:
FIRST
The
name
of the Corporation is ePlus inc.
SECOND
The
address of the registered office of the Corporation in the State of Delaware
is
1209 Orange Street, City of Wilmington, County of New Castle, 19801, and the
name of the Corporation’s registered agent in the State of Delaware is The
Corporation Trust Company.
THIRD
The
purpose of the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the Delaware General Corporation
Law.
FOURTH
The
total
number of shares of all classes of stock which the Corporation shall have
authority to issue is 27 million (27,000,000) shares consisting of 25 million
(25,000,000) shares of common stock having a par value of $.01 per share (the
“Common Stock”) and two million (2,000,000) shares of preferred stock having a
par value of $.01 per share (the “Preferred Stock”).
The
Board
of Directors of the Corporation is authorized, subject to limitations prescribed
by law, to provide by resolution or resolutions for the issuance of shares
of
the Preferred Stock as a class or in series, and, by filing a certificate of
designations, pursuant to the Delaware General Corporation Law, setting forth
a
copy of such resolution or resolutions to establish from time to time the number
of shares to be included in each such series and to fix the designation, powers,
preferences and rights of the shares of the class or of each such series and
the
qualifications, limitations, and restrictions thereof. The authority
of the Board of Directors with respect to the class or each series shall
include, but not be limited to, determination of the following:
a)
the number of shares constituting any series and
the distinctive designation of that series;
b)
the dividend rate of the shares of the class or of any
series, whether dividends shall be cumulative, and if so, from which date or
dates, and the relative rights of priority, if any of payment of dividends
on
shares of the class or of that series;
c)
whether the class or any series shall have voting rights, in
addition to the voting rights provided by law, and if so, the terms of such
voting rights;
d)
whether the class or any series shall have conversion
privileges and, if so, the terms and conditions of conversion, including
provision for adjustment of the conversion rate in such events as the Board
of
Directors shall determine;
e)
whether or not the shares of the class or of any series shall be
redeemable, and, if so, the terms and conditions of such redemption, including
the date or date upon or after which they shall be redeemable and the amount
per
share payable in case of redemption, which amount may vary under different
conditions and at different redemption rates;
f)
whether the class or any series shall have a sinking
fund for the redemption or purchase of shares of the class or of that series,
and if so, the terms and amount of such sinking fund;
g)
the rights of the shares of the class or of any
series in the event of voluntary or involuntary dissolution or winding up of
the
Corporation, and the relative rights of priority, if any, of payment of shares
of the class or of that series; and
h)
any other powers, preferences, rights, qualifications,
limitations and restrictions of the class or of that series.
All
rights accruing to the outstanding shares of the Corporation not expressly
provided for to the contrary herein or in any certificate of designation shall
be vested exclusively in the Common Stock.
FIFTH
The
Corporation is to have perpetual existence.
SIXTH
In
furtherance and not in limitation of the powers conferred by statute, the Board
of Directors of the Corporation is expressly authorized to make, alter, or
repeal the Bylaws of the Corporation.
SEVENTH
No
person
shall be personally liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director;
provided
,
however
,
that the
foregoing shall not eliminate or limit the liability of a director (i) for
any
breach of the director’s duty of loyalty to the Corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the
Delaware General Corporation Law, or (iv) for any transaction from which the
director derived an improper personal benefit.
EIGHTH
The
Corporation shall indemnify, in the manner and to the fullest extent permitted
by the Delaware General Corporation Law (and in the case of any amendment
thereto, to the extent that such amendment permits the Corporation to provide
broader indemnification rights than permitted prior thereto), any person (or
the
estate of any person) who is or was a party to, or is threatened to be made
a
party to, any threatened, pending or completed action, suit or proceeding,
whether or not by or in the right of the Corporation, and whether civil,
criminal, administrative, investigative or otherwise, by reason of the fact
that
such person is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise, including
service with respect to an employee benefit plan. The corporation
may, to the fullest extent permitted by the Delaware General Corporation Law,
purchase and maintain insurance on behalf of any such person against any
liability which may be asserted against such person. To the fullest
extent permitted by the Delaware General Corporation Law, the indemnification
provided herein may include expenses (including attorneys’ fees), judgments,
fines and amounts paid in settlement and any such expenses may be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of the person seeking
indemnification to repay such amounts if it is ultimately determined that he
or
she is not entitled to be indemnified. The indemnification provided
herein shall not be deemed to limit the right of the Corporation to indemnify
any other person for any such expenses to the fullest extent permitted by the
Delaware General Corporation Law, nor shall it be deemed exclusive of any other
rights to which any person seeking indemnification from the Corporation may
be
entitled under any agreement, the Corporation’s Bylaws, vote of stockholders or
disinterested directors, or otherwise, both as to action in such person’s
official capacity and as to action in another capacity while holding such
office. The Corporation may, but only to the extent that the Board of
Directors may (but shall not be obligated to) authorize from time to time,
grant
rights to indemnification and to the advancement of expenses to any employee
or
agent of the Corporation to the fullest extent of the provisions of this Article
Eighth as they apply to the indemnification and advancement of expenses of
directors and officers of the Corporation.
NINTH
From
time
to time any of the provisions of this Certificate of Incorporation may be
amended, altered, or repealed, and other provisions authorized by the laws
of
the State of Delaware at the time in force may be added or inserted in the
manner and at the time prescribed by said laws, and all rights at any time
conferred upon the stockholders of the Corporation by this Certificate of
Incorporation are granted subject to the provisions of this Article
Ninth.
IN
WITNESS WHEREOF, ePlus inc. has caused this Amended and Restated Certificate
of
Incorporation to be executed by its duly authorized officer on this 15th
day of September, 2008.
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EPLUS
INC.
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Signature:
/s/
Erica S. Sto
e
cker
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Name: Erica
S. Stoecker
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Title: Secretary
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2008
NON-EMPLOYEE DIRECTOR LONG-TERM INCENTIVE PLAN
Section
1. Establishment and Purposes of the
Plan
.
(a)
Purpose
. The
purposes of this
e
Plus
inc. 2008 Non-Employee Director Long-Term Incentive Plan (the
“
Plan
”) are to attract,
retain and compensate for service as members of the Board of Directors of
e
Plus inc. (the “
Company
”)
highly qualified
individuals who are not current employees of the Company and to enable them
to
increase their ownership in the Company’s Common Stock. The Plan will
be beneficial to the Company and its stockholders since it will allow these
Directors to have a greater personal financial stake in the Company through
the
ownership of Common Stock, in addition to underscoring their common interest
with stockholders in increasing the long-term value of the Common
Stock.
(b) Effective
Date; Shareholder Approval. The Plan is effective September 15, 2008,
subject to the approval by the Company’s shareholders.
Section
2
.
Definitions
.
As
used
herein, the following definitions shall apply:
“
Affiliate
”
shall
mean (i) any
entity that, directly or through one or more intermediaries, is controlled
by
the Company and (ii) any entity in which the Company has a significant equity
interest, as determined by the Committee.
“
Applicable
Laws
” means the
requirements relating to the administration of equity plans under U.S. state
corporate laws, U.S. federal and state securities laws, the Code, any stock
exchange or quotation system on which the Common Stock is listed or quoted
and
the applicable laws of any foreign country or jurisdiction where Restricted
Shares are, or will be, granted under the Plan.
“
Board
”
means
the Board of
Directors of the Company.
“
Change
in Control
” means the
occurrence of any of the following events with respect to the
Company:
(i)
the
consummation of any consolidation or merger of the Company in which the Company
is not the continuing or surviving corporation or pursuant to which Common
Stock
would be converted into cash, securities or other property, other than a merger
of the Company in which the holders of Common Stock immediately prior to the
merger own more than fifty percent (50%) of the outstanding common stock of
the
surviving corporation immediately after the merger; or
(ii)
the
consummation of any sale, lease, exchange or other transfer (in one transaction
or a series of related transactions) of all, or substantially all, of the assets
of the Company, other than to a subsidiary or affiliate; or
(iii)
any
action pursuant to which any person (as such term is defined in Section 13(d)
of
the Exchange Act), corporation or other entity shall become the “beneficial
owner” (as such term is defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of shares of capital stock entitled to vote generally for the
election of directors of the Company (“
Voting Securities
”)
representing more than fifty (50%) percent of the combined voting power of
the
Company’s then outstanding Voting Securities (calculated as provided in Rule
13d-3(d) in the case of rights to acquire any such securities); or
(iv)
the
individuals (x) who, as of the Effective Date, constitute the Board (the “
Original Directors
”) and (y)
who thereafter are elected to the Board and whose election, or nomination for
election, to the Board was approved by a vote of a majority of the Original
Directors then still in office (such Directors being called “
Additional Original
Directors
”) and (z) who thereafter are elected to the Board and whose
election or nomination for election to the Board was approved by a vote of
a
majority of the Original Directors and Additional Original Directors then still
in office, cease for any reason to constitute a majority of the members of
the
Board; or
(v)
the
dissolution or liquidation of the Company.
“
Code
”
means
the Internal
Revenue Code of 1986, as amended.
“
Committee
”
means
a committee
designated by the Board and composed of not less than two “Non-Employee
Directors” as defined in Rule 16b-3 under the Exchange Act, or any successor
rule or definition adopted by the Securities and Exchange
Commission.
“
Common
Stock
” means the
common stock, par value $0.01 per share, of the Company.
“
Director
”
means
a member of
the Board.
“
Disability
”
means
any illness
or other physical or mental condition of a Participant which renders the
Participant incapable of performing his or her customary and usual duties for
the Company, or any medically determinable illness or other physical or mental
condition resulting from a bodily injury, disease, or mental disorder that
in
the judgment of the Committee is permanent and continuous in nature. The
Committee may require such medical or other evidence as it deems necessary
to
judge the nature and permanency of the Participant’s condition.
“
Exchange
Act
” means the
Securities Exchange Act of 1934, as amended.
“
Fair
Market Value
” means, as
of any date, the value of Common Stock determined as follows:
(i)
if
the Common Stock is listed on any established stock exchange or a national
market system, including without limitation the Nasdaq Global Market or The
Nasdaq Capital Market of The Nasdaq Stock Market, the fair market value of
a
share of Common Stock shall be the closing sales price of a share of Common
Stock as quoted on such exchange or system for such date (or the most recent
trading day preceding such date if there were no trades on such date), as
reported in
The Wall
Street Journal
or such other source as the Committee deems
reliable;
(ii)
if
the Common Stock is regularly quoted by a recognized securities dealer but
is
not listed in the manner contemplated by clause (i) above, the Fair Market
Value
of a Share of Common Stock shall be the mean between the high bid and low asked
prices for the Common Stock on the day of determination, as reported in
The Wall Street
Journal
or such other source as the Committee deems reliable;
or
(iii)
if
neither clause (i) above nor clause (ii) above applies, the fair market value
of
a share of Common Stock shall be determined in good faith by the Committee
based
on the reasonable application of a reasonable valuation method.
“
Outside
Director
” means any
Director who, on the date such person is to receive a grant of Restricted Shares
hereunder is not a current employee of the Company or any of the Company’s
subsidiaries.
“
Participant
”
shall
mean any
Outside Director who holds a Restricted Stock Award granted or issued pursuant
to the Plan.
“
Plan
”
means
this
e
Plus inc. 2008 Non-Employee
Director Long-Term Incentive Plan.
“
Restricted
Shares
” means
Shares subject to a Restricted Stock Award.
“
Restricted
Stock Agreement
”
means any written agreement, contract, or other instrument or document,
including an electronic communication, evidencing the terms and conditions
of a
Restricted Stock Award.
“
Restricted
Stock Award
” means
a grant of Restricted Shares pursuant to Section 7 of the Plan.
“
Share
”
means
a share of
Common Stock, as adjusted in accordance with Section 9 of the Plan.
Section
3.
Stock Subject to the
Plan
.
Subject
to the provisions of Section 9 of the Plan, the maximum aggregate number of
Shares that may be issued as Restricted Shares under the Plan is two hundred
fifty thousand (250,000) Shares. The Shares may be authorized, but
unissued, or treasury Shares. Restricted Shares that have been
transferred back to the Company shall be available for future grants of
Restricted Shares under the Plan.
Section
4
.
Administration of
the
Plan
.
(a)
Administration
. The
Plan shall be administered by the Committee. The Committee shall have
the authority, in its discretion:
(i)
to determine the Fair Market Value of Common
Stock;
(ii)
to approve forms of agreement for use under the
Plan;
(iii) to
determine the number of Shares that may be issued as Restricted Shares and
the
terms and conditions of such Restricted Shares;
(iv) to
construe and interpret the terms of the Plan;
(v)
to prescribe, amend and rescind rules and regulations relating to
the Plan;
(vi) to
allow Participants to satisfy withholding tax obligations by having the Company
withhold from the shares of Common Stock to be issued upon vesting of Restricted
Shares that number of Shares having a Fair Market Value equal to the amount
required to be withheld, provided that withholding is calculated at the minimum
statutory withholding level. The Fair Market Value of the Shares to
be withheld shall be determined on the date that the amount of tax to be
withheld is to be determined. All determinations to have Shares
withheld for this purpose shall be made by the Committee in its
discretion;
(vii)
to instruct a corporate officer to execute on
behalf of the Company any instrument required to effect the grant of a
Restricted Stock Award granted by the Committee; and
(viii)
to make all other determinations deemed necessary
or advisable for administering the Plan.
(b)
Effect
of Committee’s
Decision
. The Committee’s decisions, determinations and
interpretations shall be final and binding on all Participants and anyone else
who may claim an interest in Restricted Shares.
Section
5
.
Eligibility
.
The
only
persons who shall be eligible to receive Restricted Stock Awards under the
Plan
shall be persons who, on the date such Awards are granted, are Outside
Directors.
Section
6
.
Term of the Plan
.
No
Restricted Stock Award may be granted under the Plan after September 15,
2018.
Section
7
.
Grants of Restricted
Stock
Awards
.
(a)
Initial
Grant.
Each individual who first becomes an Outside Director
on or after the date of the approval of this Plan by the stockholders of
the
Company shall, upon first qualifying as an Outside Director, automatically
be
granted a number of Restricted Shares, on the terms and conditions set forth
in
Section 8 below, having a Fair Market Value on the date of grant (determined
without regard to the restrictions applicable thereto) equal to the product
of the amount of cash compensation earned by an individual Outside Director
during the twelve months immediately prior to his becoming an Outside
Director multiplied by the quotient of the number of days until the next
Annual Grant Date (as defined below) divided by 365;
provided,
however
, that grants of Restricted Shares under this Plan shall not be
made until a Form S-8 registration statement in respect of the Shares is
filed
with, and declared effective by, the Securities and Exchange
Commission.
(b)
Annual
Grant.
On September 25
th
of each year (the “
Annual
Grant
Date
”), beginning with September 25, 2008, or the next following business
day if September 25
th
is not a business day, each Outside Director shall automatically be granted
a
number of Restricted Shares, on the terms and conditions set forth in Section
8
below, having a Fair Market Value on the date of grant (determined without
regard to the restrictions applicable thereto) equal to the aggregate dollar
amount of cash compensation earned by an individual Outside Director who
served
on the board during the Company’s entire fiscal year ended
immediately prior to the respective Annual Grant Date; provided, however,
that
grants of Restricted Shares under this Plan shall not be made until a Form
S-8
registration statement in respect of the Shares is filed with, and declared
effective by, the Securities and Exchange Commission.
(c)
Special
Grant.
On the date which is two business days after the date
that a Form S-8 registration statement in respect of the Shares is filed
with,
and declared effective by, the Securities and Exchange Commission, each Outside
Director who was serving as an Outside Director on the day prior to the date
of
the approval of this Plan by the stockholders of the Company shall automatically
be granted a number of Restricted Shares, on the terms and conditions set
forth
in Section 8 below, having a Fair Market Value on the date of grant (determined
without regard to the restrictions applicable thereto) equal to thirty-five
thousand dollars ($35,000).
(d)
Stock
Fee
Election
. An Outside Director may make an election (a
"Stock Fee Election") to receive Restricted Shares in lieu of all or any
part of
the cash compensation payable to him or her for service on the Board for
a
calendar year. Any Stock Fee Election and any change or revocation
thereof shall be made by delivering written notice thereof to the Committee
prior to the end of the calendar year preceding the calendar year of service
for
which it is to be effective. Such Stock Fee Election shall
remain in effect for each subsequent calendar year of service unless
changed. An Outside Director may not elect to change his or her Stock
Fee Election for a calendar year after the last day of the calendar year
preceding the calendar year of service for which the election is
made. Any Restricted Stock that relates to a Stock Fee Election shall
be treated as a Restricted Stock Award for purposes of this Plan. The
number of shares shall be determined by dividing the cash compensation deferred
for a calendar quarter of service by the Fair Market Value as of the first
business day of the following calendar quarter, and each such first business
day
shall be considered the grant date of the Restricted Stock
Award.
Section
8. Terms of Restricted Stock Awards
.
Except
as
provided herein, Restricted Shares shall be subject to restrictions (“
Restrictions
”) prohibiting
such Restricted Shares from being sold, transferred, assigned, pledged or
otherwise encumbered or disposed of. The Restrictions with respect to
each award of Restricted Shares shall lapse as to one-half of such Restricted
Shares on each of the one-year and second-year anniversary date of the grant
of
such award;
provided
,
however
,
that the
Restrictions with respect to such Restricted Shares shall lapse immediately
in
the event that (i) the Participant is nominated for a new term as an Outside
Director but is not elected by stockholders of the Company, or (ii) the
Participant ceases to be a member of the Board due to death, disability or
mandatory retirement (if any). Notwithstanding the foregoing, the Restrictions
with respect to all of a Participant's Restricted Shares shall lapse immediately
prior to a Change in Control provided that the Participant is a member of the
Board immediately prior to such Change in Control.
The
Company shall issue, in the name of each Participant to whom Restricted Shares
have been granted, stock certificates (in tangible or electronic form)
representing the total number of Restricted Shares granted to such Participant
as soon as reasonably practicable after the grant. However, the
Company or its transfer agent shall hold such certificates, properly endorsed
for transfer, for the Participant’s benefit until such time as the Restriction
Period applicable to such Restricted Shares lapses. Upon the
expiration or termination of the Restricted Period, the restrictions applicable
to the Restricted Shares shall lapse and a stock certificate for the number
of
Restricted Shares with respect to which the restrictions have lapsed shall
be
delivered, free of all such restrictions, to the Participant or his or her
beneficiary or estate, as the case may be. Except as described in the
above paragraph, in the event that a Participant ceases to be a member of the
Board before the applicable Restriction Period has expired or under
circumstances in which the Restriction Period does not otherwise lapse, the
Restricted Shares granted to such Participant shall thereupon be forfeited
and
transferred back to the Company.
During
the Restriction Period, a Participant shall have the right to vote his or her
Restricted Shares and shall have the right to receive any cash dividends with
respect to such Restricted Shares. All distributions, if any,
received by a Participant with respect to Restricted Shares as a result of
any
stock split, stock distribution, combination of shares, or other similar
transaction shall be subject to the same restrictions as are applicable to
the
Restricted Shares to which such distributions relate.
Section
9. Adjustments Upon Changes in
Capitalization
.
Subject
to any required action by the stockholders of the Company, the number of shares
of Common Stock covered by each outstanding Restricted Stock Award, and the
number of shares of Common Stock which have been authorized for issuance under
the Plan but as to which no Restricted Stock Awards have yet been granted or
which have been returned to the Plan upon cancellation or expiration of a
Restricted Stock Award, shall be proportionately adjusted for any increase
or
decrease in the number of issued shares of Common Stock resulting from a stock
split, reverse stock split, stock dividend, combination or reclassification
of
the Common Stock, or any other increase or decrease in the number of issued
shares of Common Stock effected without receipt of consideration by the Company;
provided
,
however
,
that conversion of
any convertible securities of the Company shall not be deemed to have been
“effected without receipt of consideration.” Such adjustment shall be made by
the Committee, whose determination in that respect shall be final, binding
and
conclusive. Except as expressly provided herein, no issuance by the
Company of shares of stock of any class, or securities convertible into shares
of stock of any class, shall affect, and no adjustment by reason thereof shall
be made with respect to, the number or price of shares of Common Stock subject
to a Restricted Stock Award.
Section
10. Grant Agreement
.
Each
grant of a Restricted Stock Award under the Plan will be evidenced by a
Restricted Stock Agreement. Such document will contain such
provisions as the Committee may in its discretion deem advisable,
provided
that such provisions
are not inconsistent with any of the provisions of the Plan.
Section
11
.
Amendment and Termination
of the
Plan
.
(a)
Amendment
and
Termination
. The Board may at any time amend, alter, suspend
or terminate the Plan.
(b)
Shareholder
Approval
. The Company shall obtain shareholder approval of any
Plan amendment to the extent necessary to comply with Applicable
Laws.
(c)
Effect
of Amendment or
Termination
. No amendment, alteration, suspension or
termination of the Plan shall impair the rights of any Participant, unless
mutually agreed otherwise between the Participant and the Committee, which
agreement must be in writing and signed by the Participant and the
Company. Termination of the Plan shall not affect the Committee’s
ability to exercise the powers granted to it hereunder with respect to
Restricted Shares granted under the Plan prior to the date of such
termination.
Section
12
.
Conditions Upon Issuance
of
Shares
.
(a)
Legal
Compliance
. Shares shall not be issued pursuant to a
Restricted Stock Award unless the issuance and delivery of such Shares shall
comply with Applicable Laws and shall be further subject to the approval of
counsel for the Company with respect to such compliance.
(b)
Investment
Representations
. As a condition to the issuance of Restricted
Shares, the Company may require the Participant to represent and warrant at
the
time of any such issuance that the Shares are being purchased only for
investment and without any present intention to sell or distribute such Shares
if, in the opinion of counsel for the Company, such a representation is
required. Not in limitation of any of the foregoing, in any such case
referred to in the preceding sentence the Committee may also require the
Participant to execute and deliver documents containing such representations
(including the investment representations described in this Section 12(b) of
the
Plan), warranties and agreements as the Committee or counsel to the Company
shall deem necessary or advisable to comply with any exemption from registration
under the Securities Act of 1933, as amended, any applicable State securities
laws, and any other applicable law, regulation or rule.
(c)
Additional
Conditions
. The Committee shall have the authority to
condition the grant of any Restricted Shares in such other manner that the
Committee determines to be appropriate, provided that such condition is not
inconsistent with the terms of the Plan.
Section
13
.
Inability to Obtain
Authority
.
The
inability of the Company to obtain authority from any regulatory body having
jurisdiction, which authority is deemed by the Company’s counsel to be necessary
to the lawful issuance and sale of any Shares hereunder, shall relieve the
Company of any liability in respect of the failure to issue or sell such Shares
as to which such requisite authority shall not have been obtained.
Section
14
.
Reservation of
Shares
.
The
Company, during the term of this Plan, will at all times reserve and keep
available such number of Shares as shall be sufficient to satisfy the
requirements of the Plan.
Section
15
.
Stockholder
Approval
.
The
Plan
shall be subject to approval by the stockholders of the Company. Such
stockholder approval shall be obtained in the manner and to the degree required
under Applicable Laws.
Section
16
.
Withholding; Notice
of
Sale
.
Each
Participant shall, no later than the date as of which the value of a Restricted
Stock Award or of any Shares or other amounts received thereunder first becomes
includable in the gross income of the Participant for Federal income tax
purposes, pay to the Company, or make arrangements satisfactory to the Committee
regarding payment of, any Federal, state, or local taxes of any kind required
by
law to be withheld with respect to such income. The Company shall, to
the extent permitted by law, have the right to deduct any such taxes from any
payment of any kind otherwise due to the Participant. The Company’s
obligation to deliver stock certificates to any Participant is subject to and
conditioned on any such tax obligations being satisfied by the
Participant. Subject to approval by the Committee, a Participant may
elect to have the minimum required tax withholding obligation satisfied, in
whole or in part, by (i) authorizing the Company to withhold from Shares to
be
issued pursuant to any Restricted Stock Award a number of Shares with an
aggregate Fair Market Value (as of the date the withholding is effected) that
would satisfy the withholding amount due, or (ii) transferring to the Company
Shares owned by the Participant with an aggregate Fair Market Value (as of
the
date the withholding is effected) that would satisfy the minimum withholding
amount due.
Section
17. Code Section 83(b) Elections
Neither
the Company, any Affiliate, nor the Committee shall have any responsibility
in
connection with a Participant’s election, or attempt to elect, under Code
section 83(b) to include the value of a Restricted Stock Award in the
Participant’s gross income for the year of payment. Any Participant
who makes a Code section 83(b) election with respect to any such Restricted
Stock Award shall promptly notify the Committee of such election and provide
the
Committee with a copy thereof.
Section
18. No Right to Continue as a
Director
Neither
this Plan, nor the granting of a Restricted Stock Award under this Plan, nor
any
other action taken pursuant to this Plan shall constitute or be evidence of
any
agreement or understanding, express or implied, that the Company will retain
a
director for any period of time, or at any particular rate of
compensation.
Section
19. Governing Law
.
This
Plan
shall be governed by the laws of the State of Delaware.
2008
EMPLOYEE LONG-TERM INCENTIVE PLAN
Section
1. Establishment and Purpose
(a)
Purpose
. The
purposes of this
e
Plus
inc. 2008 Long-Term Incentive Plan (the “
Employee Plan
”) are to
encourage Employees of
e
Plus inc. (together
with any
successor thereto, the “
Company
”) and its Affiliates
(as defined below) to acquire a proprietary interest in the growth and
performance of the Company, to generate an increased incentive to contribute
to
the Company’s future success and prosperity, thus enhancing the value of the
Company for the benefit of its stockholders, and to enhance the ability of
the
Company and its Affiliates to attract and retain exceptionally qualified
individuals upon whom, in large measure, the sustained progress, growth and
profitability of the Company depend.
(b)
Effective
Date; Shareholder
Approval
. The Plan is effective
September 15
,
2008,
subject to approval by the Company’s
shareholders.
Section
2. Definitions
As
used
in the Employee Plan, the following terms shall have the meanings set forth
below:
(a)
“
Affiliate
” shall mean
(i) any entity that, directly or through one or more intermediaries, is
controlled by the Company and (ii) any entity in which the Company has no less
than a 50% equity interest, as determined by the Committee. With
respect to Incentive Stock Options, “Affiliate” means any entity, domestic or
foreign, whether or not such entity now exists or is hereafter organized or
acquired by the Company or by an Affiliate that is a “subsidiary corporation”
within the meaning of Code Section 424(d) and the rules thereunder.
(b)
“
Award
” shall mean any
Option, Stock Appreciation Right, Restricted Stock, Restricted Stock Unit,
Performance Award, Dividend Equivalent, or Other Stock-Based Award granted
under
the Employee Plan.
(c)
“
Award Agreement
” shall
mean any written agreement, contract, or other instrument or document, including
an electronic communication, evidencing any Award granted under the Employee
Plan.
(d)
“
Board
” shall mean the
Board of Directors of the Company.
(e)
“
Cause
” means (except
as otherwise provided in an Award Agreement) if the Committee, in its reasonable
and good faith discretion, determines that the employee (i) fails to
substantially perform his or her duties (other than as a result of Disability),
after the Board or the executive to which the Participant reports delivers
to
the Participant a written demand for substantial performance that specifically
identifies the manner in which the Participant has not substantially performed
his or her duties; (ii) engages in willful misconduct or gross negligence that
is materially injurious to the Company or a subsidiary; (iii) breaches his
or
her duty of loyalty to the Company or a subsidiary; (iv) removed
without proper authorization from the premises of the Company or a subsidiary
of
a document (of any media or form) relating to the Company or a subsidiary or
the
customers of the Company or a subsidiary; (v) breaches any confidentiality
and/or non-compete agreement between him or her and the Company; or (vi) has
committed a felony or a serious crime involving moral turpitude.
(f)
“
Change in Control
”
means an event that
is “a change in the ownership or effective control of the
corporation, or in the ownership of a substantial portion of the assets of
the
corporation" within the meaning of Section 409A and that also falls within
one
of the following events with respect to the Company:
(i)
the
consummation of any consolidation or merger of the Company in which the Company
is not the continuing or surviving corporation or pursuant to which Common
Stock
would be converted into cash, securities or other property, other than a merger
of the Company in which the holders of Common Stock immediately prior to the
merger own more than fifty percent (50%) of the outstanding common stock of
the
surviving corporation immediately after the merger; or
(ii)
the
consummation of any sale, lease, exchange or other transfer (in one transaction
or a series of related transactions) of all, or substantially all, of the assets
of the Company, other than to a subsidiary or affiliate; or
(iii)
any
action pursuant to which any person (which term may include two or more persons
consistent with Section 13(d)(3) of the Exchange Act), corporation or other
entity shall become the “beneficial owner” (as such term is defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of shares of capital
stock entitled to vote generally for the election of directors of the Company
(“
Voting Securities
”)
representing more than fifty (50%) percent of the combined voting power of
the
Company’s then outstanding Voting Securities (calculated as provided in Rule
13d-3(d) in the case of rights to acquire any such securities); or
(iv)
the
individuals (x) who, as of the Effective Date, constitute the Board (the “
Original Directors
”) and (y)
who thereafter are elected to the Board and whose election, or nomination for
election, to the Board was approved by a vote of a majority of the Original
Directors then still in office (such Directors being called “
Additional Original
Directors
”) and (z) who thereafter are elected to the Board and whose
election or nomination for election to the Board was approved by a vote of
a
majority of the Original Directors and Additional Original Directors then still
in office, cease for any reason to constitute a majority of the members of
the
Board; or
(v)
the
dissolution or liquidation of the Company.
(g)
“
Code
” shall mean the
Internal Revenue Code of 1986, as amended from time to time.
(h)
“
Committee
” shall mean
the Compensation Committee of the Board of Directors of the Company, or such
other committee as may be designated by the Board. However, if a
member of the Compensation Committee is not an “outside director” within the
meaning of Section 162(m) of the Code or is not a “non-employee director” as
defined in Rule 16b-3 under the Exchange Act, the Compensation Committee may
from time to time delegate some or all of its functions under the Employee
Plan
to a committee or subcommittee composed of members that meet the relevant
requirements. The term “Committee” includes any such committee or
subcommittee, to the extent of the Compensation Committee’s
delegation.
(i)
“
Common Stock
” shall
mean shares of the Company’s common stock, par value $0.01 per
share.
(j)
“
Disability
” shall mean
any illness or other physical or mental condition of a Participant which renders
the Participant incapable of performing his or her customary and usual duties
for the Company, or any medically determinable illness or other physical or
mental condition resulting from a bodily injury, disease, or mental disorder
that in the judgment of the Committee is permanent and continuous in nature.
The
Committee may require such medical or other evidence as it deems necessary
to
judge the nature and permanency of the Participant’s condition.
(k)
“
Dividend Equivalent
”
shall mean any right
granted under Section 6(e) of the Employee
Plan.
(l)
“
Employee
” means any
person who is in the employ of the Company or any Affiliate, subject to the
control and direction of the Company or any Affiliate as to both the work to
be
performed and the manner and method of performance.
(m)
“
Exchange Act
” shall
mean the Securities Exchange Act of 1934, as amended.
(n)
“
Fair Market Value
”
shall mean, as of
any date, the value of Common Stock determined as
follows:
(i)
if
the Common Stock is listed on any established stock exchange or a national
market system, including without limitation the Nasdaq Global Market or The
Nasdaq Capital Market of The Nasdaq Stock Market, the Fair Market Value of
a
share of Common Stock shall be the closing sales price of a share of Common
Stock as quoted on such exchange or system for such date (or the most recent
trading day preceding such date if there were no trades on such date), as
reported in
The Wall
Street Journal
or such other source as the Committee deems
reliable;
(ii)
if
the Common Stock is regularly quoted by a recognized securities dealer but
is
not listed in the manner contemplated by clause (i) above, the Fair Market
Value
of a Share of Common Stock shall be the mean between the high bid and low asked
prices for the Common Stock on the last market trading day prior to the day
of
determination, as reported in
The Wall Street
Journal
or such other source as the Committee deems reliable;
or
(iii)
if
neither clause (i) above nor clause (ii) above applies, the Fair Market Value
of
a share of a share of Common Stock shall be determined in good faith by the
Committee based on the reasonable application of a reasonable valuation
method.
(o)
“
Incentive Stock
Option
” shall mean an option granted under Section 6(a) of the Employee
Plan that is intended to meet the requirements of Sections 422 of the Code,
or
any successor provision thereto.
(p)
“
Key Employee
” shall
mean an Employee who is a “covered employee” within the meaning of Section
162(m)(3) of the Code.
(q)
“
Non-Qualified Stock
Option
” shall mean an option granted under Section 6(a) of the Employee
Plan that is not an Incentive Stock Option.
(r)
“
Option
” shall mean an
Incentive Stock Option or a Non-Qualified Stock Option.
(s)
“
Other Stock-Based
Award
” shall mean any right granted under Section 6(f) of the Employee
Plan.
(t)
“
Participant
” shall
mean an Employee of the Company or of any Affiliate designated to be granted
an
Award under the Employee Plan.
(u)
“
Performance Award
”
shall mean any right
granted under Section 6(d) of the Employee
Plan.
(v)
“
Performance Criteria
”
shall mean any quantitative
and/or qualitative measures, as determined by the
Committee, which may be used to measure the level of performance of the Company
or any individual Participant during a Performance Period, including any
Qualifying Performance Criteria. With respect to any Award
intended to satisfy the requirements of Code Section 162(m), performance
criteria shall mean the Qualifying Performance Criteria.
(w)
“
Performance Period
”
shall mean any period
as determined by the Committee in its sole
discretion.
(x)
“
Person
” shall mean any
individual, corporation, partnership, association, joint-stock company, trust,
unincorporated organization, or government or political subdivision
thereof.
(y)
“
Qualifying Performance
Criteria
” shall mean one or more of the following performance criteria,
either individually, alternatively or in any combination, applied to either
the
company as a whole or to a business unit or Affiliate, and measured either
annually or cumulatively over a period of years, on an absolute basis or
relative to a pre-established target, to a previous year’s results or to a
designated comparison group, in each case as specified by the Committee in
the
Award: revenue, sales, net income, net earnings, earnings per share, return
on
total capital, return on equity, cash flow, operating profit and margin rate,
subject to adjustment by the Committee to remove the effect of charges for
restructurings, discontinued operations, extraordinary items and all items
of
gain, loss or expense determined to be extraordinary or unusual in nature or
infrequent in occurrence, related to the disposal of a segment or a business,
or
related to a change in accounting principle or otherwise.
(z)
“
Restricted Securities
”
shall mean Awards
of Restricted Stock or other Awards under which issued and
outstanding Shares are held subject to certain restrictions.
(aa)
“
Restricted Stock
”
shall mean any award
of Shares granted under Section 6(c) of the Employee
Plan.
(bb)
“
Restricted Stock Unit
”
shall mean any right
granted under Section 6(c) of the Employee Plan that is
denominated in Shares.
(cc)
“
Retirement
” means
retirement (i) at or after age 55 with ten years of service or (ii) at or after
age 65.
(dd)
“Section 409A”
means
Section 409A of Code, and the Treasury regulations and other authoritative
guidance issued thereunder.
(ee)
“
Shares
” shall mean the
Shares of Common Stock, and such other securities as may become the subject
of
Awards, or become subject to Awards, pursuant to an adjustment made under
Section 4(d) of the Employee Plan.
(ff)
“
Stock Appreciation
Right
” shall mean any right granted under Section 6(b) of the Employee
Plan.
Section
3. Administration
Except
as
otherwise provided herein, the Employee Plan shall be administered by the
Committee, which shall have the power to interpret the Employee Plan and to
adopt such rules and guidelines for implementing the terms of the Employee
Plan
as it may deem appropriate. The Committee shall have the ability to
modify the Employee Plan provisions, to the extent necessary, to accommodate
any
changes in laws and regulations in jurisdictions in which Participants will
receive Awards.
(a)
Subject to the terms of the Employee Plan and applicable law, the Committee
shall have full power and authority to:
|
(i)
|
designate
Participants;
|
|
(ii)
|
determine
the type or types of Awards to be granted to each Participant under
the
Employee Plan;
|
|
(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 terms and conditions of any
Award;
|
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(v)
|
determine
whether, to what extent, and under what circumstances Awards may
be
settled or exercised in cash, Shares, other securities, or other
Awards,
or canceled, forfeited, or suspended, and the method or methods by
which
Awards may be settled, exercised, canceled, forfeited, or
suspended;
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(vi)
|
determine
whether, to what extent, and under what circumstances cash, Shares,
other
securities, other Awards, and other amounts payable with respect
to an
Award under the Employee Plan shall be deferred either automatically
or at
the election of the holder thereof or of the
Committee;
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(vii)
|
interpret
and administer the Employee Plan and any instrument or agreement
relating
to, or Award made under, the Employee
Plan;
|
|
(viii)
|
establish,
amend, suspend, or waive such rules and
guidelines;
|
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(ix)
|
accelerate
the vesting, exercise or payment of an
Award;
|
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(x)
|
make
any other determination and take any other action that the Committee
deems
necessary or desirable for the administration of the Employee Plan;
and
|
|
(xi)
|
correct
any defect, supply any omission, or reconcile any inconsistency in
the
Employee Plan or any Award in the manner and to the extent it shall
deem
desirable to carry the Employee Plan into
effect.
|
(b)
Unless otherwise expressly provided in the Employee Plan, all designations,
determinations, interpretations, and other decisions under or with respect
to
the Employee 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 Affiliate, any Participant, any
holder or beneficiary of any Award, any stockholder, and any employee of the
Company or of any Affiliate. In addition, actions of the Committee
may be taken by the Committee but with one or more members abstaining or
recusing himself or herself from acting on the matter, so long as two or more
members remain to act on the matter. Such action, authorized by the
Committee upon the abstention or recusal of such members, shall be the action
of
the Committee for purposes of the Employee Plan. The Committee may
designate the Secretary of the Company or other employees of the Company to
assist the Committee in the administration and operation of the Employee Plan
and may direct such persons to execute documents on behalf of the
Committee.
Section
4. Shares Available for Awards
(a)
Shares
Available
. Subject to
adjustment as provided in Section 4(d),
The
total
number of shares of Common Stock reserved and available for delivery pursuant
to
Awards granted under the Employee Plan shall be one million (1,000,000); of
which no more than five hundred thousand (500,000) may be available for Awards
granted in any form provided for under the Employee Plan other than Options
or
Stock Appreciation Rights. If any Shares covered by an Award granted under
the
Employee Plan, or to which such an Award relates, are forfeited, or if an Award
otherwise terminates without the delivery of Shares or of other consideration,
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
available under the Employee Plan with respect to such Award, to the extent
of
any such forfeiture or termination, shall again be available for granting Awards
under the Employee Plan. Notwithstanding the foregoing but subject to adjustment
as provided in Section 4(d), no more than three hundred thousand (300,000)
Shares shall be available for delivery pursuant to the exercise of Incentive
Stock Options.
Any
Award
made under a previous
e
Plus incentive plan
shall
continue to be subject to the terms and conditions of the plan under which
it
was awarded and the applicable Award Agreement.
(b)
|
Accounting
for Awards
.
For purposes of this Section 4,
|
|
(i)
|
if
an Award (other than a Dividend Equivalent) is denominated in Shares,
the
number of Shares covered by such Award, or to which such Award relates,
shall be counted on the date of grant of such Award against the aggregate
number of Shares available for granting Awards under the Employee
Plan;
and
|
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(ii)
|
Dividend
Equivalents denominated in Shares and Awards not denominated in Shares
but
potentially payable in Shares shall be counted against the aggregate
number of Shares available for granting Awards under the Employee
Plan in
such amount and at such time as the Dividend Equivalents and such
Awards
are settled in Shares,
provided, however
, that
Awards that operate in tandem with (whether granted simultaneously
with or
at a different time from), or that are substituted for, other Awards
may
only be counted once against the aggregate number of Shares available,
and
the Committee shall adopt procedures, as it deems appropriate, in
order to
avoid double counting. Any Shares that are delivered by the Company,
and
any Awards that are granted by, or become obligations of, the Company
through the assumption by the Company or an Affiliate of, or in
substitution for, outstanding awards previously granted by an acquired
company, shall not be counted against the Shares available for granting
Awards under this Plan.
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(iii)
|
Notwithstanding
anything herein to the contrary, any Shares related to Awards which
terminate by expiration, forfeiture, cancellation, or otherwise without
the issuance of such Shares, are settled in cash in lieu of Shares,
or are
exchanged with the Committee’s permission, prior to the issuance of
Shares, for Awards not involving Shares, shall be available again
for
grant under this Plan. Shares subject to an Award under the Employee
Plan
may not again be made available for issuance under the Employee Plan
if
such Shares are: (x) Shares that were subject to an Option or a
stock-settled Stock Appreciation Right and were not issued upon the
net
settlement or net exercise of such Option or Stock Appreciation Right,
(y)
Shares delivered to or withheld by the Company to pay the exercise
price
or the withholding taxes under Options or Stock Appreciation Rights,
or
(z) Shares repurchased on the open market with the proceeds of an
Option
exercise.
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(c)
Sources
of Shares Deliverable Under
Awards
. Any Shares delivered pursuant to an Award may consist, in whole
or in part, of authorized but unissued Shares or of treasury
Shares.
(d)
Adjustments
.
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(i)
|
In
the event that the Committee shall determine that any stock dividend,
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 constitutes
an
equity restructuring transaction, as that term is defined in Statement
of
Financial Accounting Standards No. 123 (revised) or otherwise affects
the
Shares, then the Committee shall adjust the following in a manner
that is
determined by the Committee to be appropriate in order to prevent
dilution
or enlargement of the benefits or potential benefits intended to
be made
available under the Employee Plan:
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(A) the
number and type of Shares or other securities which thereafter may be made
the
subject of Awards including the limit specified in Section 4(a) regarding the
number of shares that may be granted in the form of Restricted Stock, Restricted
Stock Units, Performance Awards, or Other Stock-Based Awards;
(B) the
number and type of Shares or other securities subject to outstanding
Awards;
(C) the
number and type of Shares or other securities specified as the annual
per-participant limitation under Section 6(g)(v) and (vi);
(D) the
grant, purchase, or exercise price with respect to any Award, or, if deemed
appropriate, make provision for a cash payment to the holder of an outstanding
Award; and
(E)
other value determinations applicable to outstanding
awards.
Provided,
however
, in each
case, that with respect to Awards of Incentive Stock Options no such adjustment
shall be authorized to the extent that such authority would cause the Employee
Plan to violate Sections 422(b)(1) of the Code or any successor provision
thereto; and
provided further,
however
, that the number of Shares subject to any Award denominated in
Shares shall always be a whole number. Notwithstanding the foregoing,
no adjustments shall be made with respect to Performance Awards granted to
a Key
Employee to the extent such adjustment would cause the Award to fail to qualify
as performance-based compensation under Section 162(m) of the Code and no
adjustment shall be required if the Committee determines that such action could
cause an Award to fail to satisfy the conditions of an applicable exception
from
the requirements of Section 409A of the Code or otherwise could subject a
Participant to the additional tax imposed under Section 409A in respect of
an
outstanding Award.
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(ii)
|
Consolidation,
Merger or Sale
of Assets
. Upon the occurrence of (i) a merger,
consolidation, acquisition of property or stock, reorganization or
otherwise involving the Company in which the Company is not to be
the
surviving corporation, (ii) a merger, consolidation, acquisition
of
property or stock, reorganization or otherwise involving the Company
in
which the Company is the surviving corporation but holders of Shares
receive securities of another corporation, or (iii) a sale of all
or
substantially all of the Company’s assets (as an entirety) or capital
stock to another person, any Award granted hereunder shall be deemed
to
apply to the securities, cash or other property (subject to adjustment
by
cash payment in lieu of fractional interests) to which a holder of
the
number of Shares equal to the number of Shares the Participant would
have
been entitled, and proper provisions shall be made to ensure that
this
clause is a condition to any such transaction;
provided, however
, that
for an Award that is not subject to Section 409A the Committee (or,
if
applicable, the board of directors of the entity assuming the Company’s
obligations under the Employee Plan) shall, in its discretion, have
the
power to either:
|
(a) provide,
upon written notice to Participants, that all Awards that are currently
exercisable must be exercised within the time period specified in the notice
and
that all Awards not exercised as of the expiration of such period shall be
terminated without consideration;
provided, however
, that the
Committee (or successor board of directors) may provide, in its discretion,
that, for purposes of this subsection, all outstanding Awards are currently
exercisable, whether or not vested; or
(b) cancel
any or all Awards and, in consideration of such cancellation, pay to each
Participant an amount in cash with respect to each Share issuable under an
Award
equal to the difference between the Fair Market Value of such Share on such
date
(or, if greater, the value per Share of the consideration received by holders
of
Shares as a result of such merger, consolidation, reorganization or sale) and
the Exercise Price.
Section
5. Eligibility
Any
Employee of the Company or of any Affiliate shall be eligible to be designated
a
Participant.
Section
6. Awards
(a)
Options
.
Options granted
under the Employee Plan may, at the discretion of the Committee, be in the
form
of either Non-Qualified Stock Options, Incentive Stock Options or a combination
of the two. Where both a Non-Qualified Stock Option and an Incentive
Stock Option are granted to a Participant at the same time, such Awards shall
be
deemed to have been granted in separate grants, shall be clearly identified,
and
in no event will the exercise of one such Award affect the right to exercise
the
other Award. Unless otherwise specified, an Option shall be a
Non-Qualified Stock Option. Subject to Section 3, the Committee is
hereby authorized to grant Options to Participants with the following terms
and
conditions and with such additional terms and conditions, in either case not
inconsistent with the provisions of the Employee Plan, as the Committee shall
determine:
|
(i)
|
Amount
of Shares
. The
Committee may grant Options to a Participant in such amounts as the
Committee may determine, subject to the limitations se forth in Section
6(g)(v) of the Employee Plan. The number of Shares subject to
an Option shall be set forth in the applicable Award
Agreement.
|
|
(ii)
|
Exercise
Price
. The
exercise price per Share under an Option shall be determined by the
Committee;
provided,
however
, and except as provided in Section 4(d), that such exercise
price shall not be less than 100% of the Fair Market Value of a Share
on
the date of grant of such Option. The exercise price of an
Option, as determined by the Committee pursuant to this Section 6(a)(ii),
shall be set forth in the applicable Award
Agreement.
|
|
(iii)
|
Option
Term
. Except as
set forth in Section 6(a)(vii) below, the term of each Option shall
not
exceed ten (10) years from the date of
grant.
|
|
(iv)
|
Timing
of Exercise
.
Except as may otherwise be provided in the Award Agreement or as
the
Committee may otherwise determine, and subject to the Committee’s
authority under Section 3(a) to accelerate the vesting of an Award
and to waive or amend any terms, conditions, limitations or restrictions
of an Award, each Option granted under the Employee Plan shall be
exercisable in whole or in part, subject to the following conditions,
limitations and restrictions:
|
|
(A)
|
20%
of the Shares subject to an Option shall first become exercisable
on the
one-year anniversary of the date of grant, 30% shall first become
exercisable on the two-year anniversary of the date of grant and
the
remainder shall first become exercisable on the three-year anniversary
of
the date of grant;
|
|
(B)
|
All
Options subject to the Award shall become immediately exercisable
upon a
Change in Control;
|
|
(C)
|
All
Options granted to a Participant shall become immediately exercisable
upon
the death or Disability of the Participant and must be exercised,
if at
all, within one year after such Participant’s death or Disability, but in
no event after the date such Options would otherwise lapse. Options
of a
deceased Participant may be exercised only by the estate of the
Participant or by the person given authority to exercise such Options
by
the Participant’s will or by operation of law. In the event an Option is
exercised by the executor or administrator of a deceased Participant,
or
by the person or persons to whom the Option has been transferred
by the
Participant’s will or the applicable laws of descent and distribution, the
Company shall be under no obligation to deliver Shares thereunder
unless
and until the Company is satisfied that the person or persons exercising
the Option is or are the duly appointed executor(s) or administrator(s)
of
the deceased Participant or the person to whom the Option has been
transferred by the Participant’s will or by the applicable laws of descent
and distribution;
|
|
(D)
|
Upon
an Employee’s Retirement, all Options that have not become exercisable as
of the date of Retirement shall be forfeited and to the extent that
Options have become exercisable as of such date, such Options must
be
exercised, if at all, within one year after Retirement, but in no
event
after the date such Options would otherwise
lapse; and
|
|
(E)
|
The
Option shall lapse upon termination of employment for
Cause. Except as otherwise provided in Section 6(a)(vii)
or Section 6(g)(xii), upon an Employee’s termination of employment, for
any reason other than death, Disability, Retirement or Cause, all
Options
that have not become exercisable as of the date of termination shall
be
forfeited and to the extent that Options have become exercisable
as of
such date, such Options must be exercised, if at all, within 90 days
after such termination of
employment.
|
|
(v)
|
Payment
of Exercise
Price
. The exercise price shall be paid in full when the Option
is
exercised and stock certificates shall be registered and delivered
only
upon receipt of such payment. Unless otherwise provided by the Committee,
payment of the exercise price may be made in cash or by certified
check,
bank draft, wire transfer, or postal or express money order or any
other
form of consideration approved by the Committee. In addition, at
the
discretion of the Committee, payment of all or a portion of the exercise
price may be made by
|
|
(A)
|
Delivering
a properly executed exercise notice to the Company, or its agent,
together
with irrevocable instructions to a broker to deliver promptly to
the
Company the amount of sale proceeds with respect to the portion of
the
Shares to be acquired upon exercise having a Fair Market Value on
the date
of exercise equal to the sum of the applicable portion of the exercise
price being so paid and appropriate tax
withholding;
|
|
(B)
|
Tendering
(actually or by attestation) to the Company previously acquired Shares
that have been held by the Participant for at least six months having
a
Fair Market Value on the day prior to the date of exercise equal
to the
applicable portion of the exercise price being so
paid; or
|
|
(C)
|
any
combination of the foregoing.
|
|
(vi)
|
Incentive
Stock
Options
. The terms of any Incentive Stock Option granted under the
Employee Plan shall be designed to comply in all respects with the
provisions of Section 422 of the Code, or any successor provision
thereto,
and any regulations promulgated thereunder which are hereby incorporated
by reference. In the event that any provision of the Employee
Plan would contravene the Code rules that apply to Incentive Stock
Options, such Plan provision shall not apply to Incentive Stock
Options. Incentive Stock Options granted under the Employee
Plan shall be subject to the following additional conditions, limitations
and restrictions:
|
|
(A)
|
Timing
of
Grant
.
No Incentive
Stock Option shall be granted under the Employee Plan after the 10-year
anniversary of the date the Employee Plan is adopted by the
Board.
|
|
(B)
|
Amount
of Award
. The
aggregate Fair Market Value of Shares (determined as of the time
of grant)
with respect to which such Incentive Stock Options are exercisable
for the
first time by the Participant during any calendar year (under all
plans of
the Company and any subsidiary) may not exceed $100,000, taking Incentive
Stock Option into account in the order in which they were
granted. To the extent an Option initially designated as an
Incentive Stock Option exceeds the value limit of this Section or
otherwise fails to satisfy the requirements applicable to Incentive
Stock
Options, it shall be deemed a Non-Qualified Stock Option and shall
otherwise remain in full force and
effect.
|
|
(C)
|
Timing
of
Exercise
. In the event that the Committee exercises its
discretion to permit an Incentive Stock Option to be exercised by
a
Participant more than 90 days after the Participant’s termination of
employment and such exercise occurs more than 90 days after such
Participant has ceased being an Employee (or more than 12 months
after the Participant is Disabled or dies), such Incentive Stock
Option
shall thereafter be treated as a Non-Qualified Stock Option for all
purposes.
|
|
(D)
|
Transfer
Restrictions
.
In no event shall the Committee permit an Incentive Stock Option
to be
transferred by a Participant other than by will or the laws of descent
and
distribution, and any Incentive Stock Option granted hereunder shall
be
exercisable, during his or her lifetime, only by the
Participant.
|
|
(E)
|
Ten
Percent Owners
. No
Incentive Stock Option shall be granted to any individual who, at
the date
of grant, owns stock possessing more than ten percent of the total
combined voting power of all classes of stock of the Company or any
Affiliate unless the exercise price per share of such Option is at
least
110% of the Fair Market Value per Share at the date of grant and
the
Option expires no later than five years after the date of
grant.
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|
(vii)
|
Extension
of Option Term for
Blackouts
. At its discretion, the Committee may extend
the term of any Option beyond its earlier termination pursuant to
Section 6(a)(iii),(iv)(C), (iv)(D) or (iv)(E) if the
Company had prohibited the participant from exercising the Option
prior to
termination or expiration in order to comply with applicable Federal,
state, local or foreign law, provided that such extension may not
exceed the earlier of 30 days from the date such
prohibition is lifted or ten years after the Option grant
date.
|
(b)
Stock
Appreciation Rights
.
The Committee is hereby authorized to grant Stock Appreciation Rights to
Participants. Subject to the terms of the Employee Plan and any applicable
Award
Agreement, a Stock Appreciation Right Award granted under the Employee Plan
shall confer on the holder thereof a right to receive, upon exercise thereof,
the excess of (i) the Fair Market Value of one Share on the date of exercise
over (ii) the grant price of the Stock Appreciation Right as specified by the
Committee, multiplied by the number of Stock Appreciation Rights
granted. As determined by the Committee, the payment upon exercise
may be paid in cash, Shares to be valued at their Fair Market Value on the
date
of exercise, any other mode of payment deemed appropriate by the Committee
or
any combination thereof. The Committee may establish a maximum
appreciation value payable for stock appreciation rights.
|
(i)
|
Grant
Price
. Shall be
determined by the Committee,
provided, however
, and
except as provided in Section 4(d), that such price shall not be
less than
100% of the Fair Market Value of one Share on the date of grant of
the
Stock Appreciation Right, except that if a Stock Appreciation Right
is at
any time granted in tandem with an Option, the grant price of the
Stock
Appreciation Right shall not be less than the exercise price of such
Option.
|
|
(ii)
|
Term
.
The term of each
Stock Appreciation Right shall not exceed ten (10) years from the
date of
grant.
|
|
(iii)
|
Time
and Method of
Exercise
. The Committee shall establish in the applicable Award
Agreement the time or times at which a Stock Appreciation Right may
be
exercised in whole or in part.
|
(c)
Restricted
Stock and Restricted
Stock Units
. The Committee is hereby authorized to grant Awards of
Restricted Stock and Restricted Stock Units to Participants.
|
(i)
|
Restrictions
.
Shares of
Restricted Stock and Restricted Stock Units shall be subject to such
restrictions as the Committee may establish in the applicable Award
Agreement (including, without limitation, any limitation on the right
to
vote a Share of Restricted Stock or the right to receive any dividend
or
other right), which restrictions may lapse separately or in combination
at
such time or times, in such installments or otherwise, as the Committee
may deem appropriate. Unrestricted Shares, evidenced in such manner
as the
Committee shall deem appropriate, shall be delivered to the holder
of
Restricted Stock promptly after such restrictions have
lapsed.
|
|
(ii)
|
Registration
.
Any
Restricted Stock or Restricted Stock Units granted under the Employee
Plan
may be evidenced in such manner as the Committee may deem appropriate,
including, without limitation, book-entry registration or issuance
of a
stock certificate or certificates. In the event any stock certificate
is
issued in respect of Shares of Restricted Stock granted under the
Employee
Plan, such certificate shall be registered in the name of the Participant
and shall bear an appropriate legend referring to the terms, conditions,
and restrictions applicable to such Restricted
Stock.
|
|
(iii)
|
Forfeiture
.
Upon
termination of employment during the applicable restriction period
for any
reason other than death or Disability, except as determined otherwise
by
the Committee, all Shares of Restricted Stock and all Restricted
Stock
Units still, in either case, subject to restriction shall be forfeited
and
reacquired by the Company.
|
(d)
Performance
Awards
. The
Committee is hereby authorized to grant Performance Awards to Participants.
Performance Awards include arrangements under which the grant, issuance,
retention, vesting and/or transferability of any Award is subject to such
Performance Criteria and such additional conditions or terms as the Committee
may designate. The Committee may establish a maximum Performance Award. Subject
to the terms of the Employee Plan and any applicable Award Agreement, a
Performance Award granted under the Employee Plan:
|
(i)
|
may
be denominated or payable in cash, Shares (including, without limitation,
Restricted Stock), other securities, or other Awards;
and
|
|
(ii)
|
shall
confer on the holder thereof rights valued as determined by the Committee
and payable to, or exercisable by, the holder of the Performance
Award, in
whole or in part, upon the achievement of such performance goals
during
such Performance Periods as the Committee shall
establish.
|
(e)
Dividend
Equivalents
. The
Committee is hereby authorized to grant to Participants Awards under which
the
holders thereof shall be entitled to receive payments equivalent to dividends
or
interest with respect to a number of Shares determined by the Committee, and
the
Committee may provide that such amounts (if any) shall be deemed to have been
reinvested in additional Shares or otherwise reinvested. Subject to the terms
of
the Employee Plan and any applicable Award Agreement, such Awards may have
such
terms and conditions as the Committee shall determine.
(f)
Other
Stock-Based Awards
. The
Committee is hereby authorized to grant to Participants such other Awards that
are denominated or payable in, valued in whole or in part by reference to,
or
otherwise based on or related to, Shares (including, without limitation,
securities convertible into Shares), as are deemed by the Committee to be
consistent with the purposes of the Employee Plan,
provided, however
, that such
grants must comply with applicable law. Subject to the terms of the Employee
Plan and any applicable Award Agreement, the Committee shall determine the
terms
and conditions of such Awards. Shares or other securities delivered pursuant
to
a purchase right granted under this Section 6(f) shall be purchased for such
consideration, which may be paid by such method or methods and in such form
or
forms, including, without limitation, cash, Shares, other securities, or other
Awards, or any combination thereof, as the Committee shall determine, the value
of which consideration, as established by the Committee, and except as provided
in Section 4(d), shall not be less than the Fair Market Value of such Shares
or
other securities as of the date such purchase right is.
(g)
General
.
|
(i)
|
No
Cash Consideration for
Awards
. Awards shall be granted for no cash consideration or for
such minimal cash consideration as may be required by applicable
law.
|
|
(ii)
|
Awards
may be Granted
Separately or Together
. Awards may, in the discretion of the
Committee, be granted either alone or in addition to, in tandem with,
or
in substitution for any other Award or any award granted under any
other
plan of the Company or any Affiliate. Awards granted in addition
to or in
tandem with other Awards, or in addition to or in tandem with awards
granted under any other plan of the Company or any Affiliate, may
be
granted either at the same time as or at a different time from the
grant
of such other Awards.
|
|
(iii)
|
Forms
of Payment under
Awards
. Subject to the terms of the Employee Plan and of any
applicable Award Agreement, payments or transfers to be made by the
Company or an Affiliate upon the grant, exercise, or payment of an
Award
may be made in such form or forms as the Committee shall determine,
including, without limitation, cash, Shares, rights in or to Shares
issuable under the Award or other Awards, other securities, or other
Awards, or any combination thereof, and may be made in a single payment
or
transfer, in installments, or on a deferred basis, in each case in
accordance with rules and procedures established by the Committee.
Such
rules and procedures may include, without limitation, provisions
for the
payment or crediting of reasonable interest on installment or deferred
payments or the grant or crediting of Dividend Equivalents in respect
of
installment or deferred payments.
|
|
(iv)
|
Limits
on Transfer of
Awards
. Except as provided by the Committee, no Award and no right
under any such Award, shall be assignable, alienable, saleable, or
transferable by a Participant otherwise than by will or by the laws
of
descent and distribution
provided, however
,
that, if so determined by the Committee, a Participant may, in the
manner
established by the Committee, designate a beneficiary or beneficiaries
to
exercise the rights of the Participant with respect to any Award
upon the
death of the Participant. Each Award, and each right under any Award,
shall be exercisable, during the Participant’s lifetime, only by the
Participant or, if permissible under applicable law, by the Participant’s
guardian or legal representative. No Award and no right under any
such
Award, may be pledged, alienated, attached, or otherwise encumbered,
and
any purported pledge, alienation, attachment, or encumbrance thereof
shall
be void and unenforceable against the Company or any
Affiliate.
|
|
(v)
|
Per-Person
Limitation on
Options and SARs
. The number of Shares with respect to which
Options and Stock Appreciation Rights may be granted under the Employee
Plan during any calendar year to an individual Participant shall
not
exceed fifty thousand (50,000) Shares, subject to adjustment as provided
in Section 4(d).
|
|
(vi)
|
Per-Person
Limitation on
Certain Awards
. Other than Options and Stock Appreciation Rights,
the aggregate number of Shares with respect to which Restricted Stock,
Restricted Stock Units, Performance Awards and Other Stock-Based
Awards
may be granted under the Employee Plan during any calendar year to
an
individual Participant shall not exceed fifty thousand (50,000) Shares,
subject to adjustment as provided in Section
4(d).
|
|
(vii)
|
Conditions
and Restrictions
upon Securities Subject to Awards
. The Committee may provide that
the Shares issued upon exercise of an Option or Stock Appreciation
Right
or otherwise subject to or issued under an Award shall be subject
to such
further agreements, restrictions, conditions or limitations as the
Committee in its discretion may specify prior to the exercise of
such
Option or Stock Appreciation Right or the grant, vesting or settlement
of
such Award, including without limitation, conditions on vesting or
transferability and forfeiture or repurchase provisions or provisions
on
payment of taxes arising in connection with an Award. Without limiting
the
foregoing, such restrictions may address the timing and manner of
any
resales by the Participant or other subsequent transfers by the
Participant of any Shares issued under an Award, including without
limitation: (A) restrictions under an insider trading policy or pursuant
to applicable law, (B) restrictions designed to delay and/or coordinate
the timing and manner of sales by Participant and holders of other
Company
equity compensation arrangements, (C) restrictions as to the use
of a
specified brokerage firm for such resales or other transfers and
(D)
provisions requiring Shares to be sold on the open market or to the
Company in order to satisfy tax withholding or other
obligations.
|
|
(viii)
|
Share
Certificates
. All
Shares or other securities delivered under the Employee 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 Employee Plan or the rules, regulations, and other requirements
of the
Securities and Exchange Commission, any stock exchange or automated
quotation system upon which such Shares or other securities are then
listed, quoted, or traded, and any applicable Federal, state, or
local
securities laws, and the Committee may cause a legend or legends
to be put
on any such certificates or issue instructions to the transfer agent
to
make appropriate reference to such
restrictions.
|
|
(ix)
|
Suspension
of Exercise
.
The Company reserves the right from time to time to suspend the exercise
of any stock option or stock appreciation right where such suspension
is
deemed by the Company as necessary or appropriate for corporate
purposes.
|
|
(x)
|
Change
in Control
.
Notwithstanding anything to the contrary in the Employee Plan, any
conditions or restrictions on Restricted Stock shall lapse upon a
Change
in Control.
|
|
(xi)
|
Award
Agreement
. Each grant of an Award under the Employee
Plan will be evidenced by an Award Agreement. Such document
will contain such provisions as the Committee may in its discretion
deem
advisable,
provided
that such
provisions are not inconsistent with any of the provisions of the
Employee
Plan.
|
|
(xii)
|
Special
Forfeiture
Provision
. If the Committee, in its discretion,
determines and the applicable Award Agreement so provides, a Participant
who, without prior written approval of the Company, enters into any
employment or consultation arrangement (including service as an agent,
partner, stockholder, consultant, officer or director) to any entity
or
person engaged in any business in which the Company or its affiliates
is
engaged which, in the sole judgment of the Company, is competitive
with
the Company or any Affiliate, (i) shall forfeit all rights under any
outstanding Option or Stock Appreciation Right and shall return to
the
Company the amount of any profit realized upon the exercise, within
such
period as the Committee may determine, of any Option or Stock Appreciation
Right, and (ii) shall forfeit and return to the Company all Shares of
Restricted Stock and other Awards which are not then vested or which
vested but remain subject to the restrictions imposed by this
Section 6(g)(xii), as provided in the Award
Agreement.
|
|
(xiii)
|
No
Repricing
. Repricing
of Options or Stock Appreciation Rights shall not be permitted without
stockholder approval. For this purpose, a “
repricing
”
means any
of
the following (or any other action that has the same effect as any
of the
following): (A) changing the terms of an Option or Stock Appreciation
Right to lower its exercise price (other than pursuant to
Section 4(d)); (B) any other action that is treated as a
“repricing” under generally accepted accounting principles; and
(C) repurchasing for cash or canceling an Option or Stock
Appreciation Right at a time when its exercise price is greater than
the
Fair Market Value of the underlying stock in exchange for another
Award,
unless the cancellation and exchange occurs in connection with an
event
set forth in Section 4(d). Such cancellation and exchange would be
considered a “repricing” regardless of whether it is treated as a
“repricing” under generally accepted accounting principles and regardless
of whether it is voluntary on the part of the
Participant.
|
Section
7. Amendment and Termination
Except
to
the extent prohibited by applicable law and unless otherwise expressly provided
in an Award Agreement or in the Employee Plan:
(a)
Amendments
to the Employee
Plan
. The Board of Directors of the Company may amend, alter, suspend,
discontinue, or terminate the Employee Plan, in whole or in part;
provided, however,
that
without the prior approval of the Company’s stockholders, no material amendment
shall be made if stockholder approval is required by applicable law, rule or
regulation, and;
provided,
further
, that, notwithstanding any other provision of the Employee Plan
or any Award Agreement, no such amendment, alteration, suspension,
discontinuation, or termination shall be made without the approval of the
stockholders of the Company that would:
|
(i)
|
increase
the total number of Shares available for Awards under the Employee
Plan,
except as provided in Section 4 hereof;
or
|
|
(ii)
|
except
as provided in Section 4(d), permit Options, Stock Appreciation Rights,
or
other Stock-Based Awards encompassing rights to purchase Shares to
be
repriced, replaced, or regranted through cancellation, or by lowering
the
exercise price of a previously granted Option or the grant price
of a
previously granted Stock Appreciation Right, or the purchase price
of a
previously granted Other Stock-Based
Award.
|
(b)
Amendments
to Awards
. The
Committee may waive any conditions or rights under, amend any terms of, or
amend, alter, suspend, discontinue, or terminate, any Awards theretofore
granted, prospectively or retroactively. No such amendment or alteration shall
be made which would impair the rights of any Participant, without such
Participant’s consent, under any Award theretofore granted,
provided
that no such consent
shall be required with respect to any amendment or alteration if the Committee
determines in its sole discretion that such amendment or alteration either
(i)
is required or advisable in order for the Company, the Employee Plan or the
Award to satisfy or conform to any law or regulation or to meet the requirements
of any accounting standard, or (ii) is not reasonably likely to significantly
diminish the benefits provided under such Award.
Section
8. General Provisions
(a)
No
Rights to Awards
. No
Employee, Participant or other Person shall have any claim to be granted any
Award under the Employee Plan, or, having been selected to receive an Award
under this Plan, to be selected to receive a future Award, and further there
is
no obligation for uniformity of treatment of Employees, Participants, or holders
or beneficiaries of Awards under the Employee Plan. The terms and conditions
of
Awards need not be the same with respect to each recipient.
(b)
Withholding
.
The Company or
any Affiliate shall be authorized to withhold from any Award granted or any
payment due or transfer made under any Award or under the Employee Plan the
amount (in cash, Shares, other securities, or other Awards) of withholding
taxes
due in respect of an Award, its exercise, or any payment or transfer under
such
Award or under the Employee Plan and to take such other action as may be
necessary in the opinion of the Company or Affiliate to satisfy statutory
withholding obligations for the payment of such taxes.
(c)
No
Limit on Other Compensation
Arrangements
. Nothing contained in the Employee Plan shall prevent the
Company or any Affiliate from adopting or continuing in effect other or
additional compensation arrangements, and such arrangements may be either
generally applicable or applicable only in specific cases.
(d)
No
Right to Employment
. The
grant of an Award shall not constitute an employment contract nor be construed
as giving a Participant the right to be retained in the employ of the Company
or
any Affiliate. Further, the Company or an Affiliate may at any time dismiss
a
Participant from employment, free from any liability, or any claim under the
Employee Plan, unless otherwise expressly provided in the Employee Plan or
in
any Award Agreement.
(e)
Governing
Law
. The validity,
construction, and effect of the Employee Plan and any rules and regulations
relating to the Employee Plan shall be determined in accordance with the laws
of
the State of Delaware and applicable Federal law without regard to conflict
of
law.
(f)
Severability
.
If any
provision of the Employee 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 Employee Plan or any Award under any law deemed
applicable by the Committee, such provision shall be construed or deemed amended
to conform to applicable laws, or if it cannot be so construed or deemed amended
without, in the determination of the Committee, materially altering the intent
of the Employee Plan or the Award, such provision shall be stricken as to such
jurisdiction, Person, or Award, and the remainder of the Employee Plan and
any
such Award shall remain in full force and effect.
(g)
No
Trust or Fund Created
.
Neither the Employee 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 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
Affiliate pursuant to an Award, such right shall be no greater than the right
of
any unsecured general creditor of the Company or any Affiliate.
(h)
No
Fractional Shares
. No
fractional Shares shall be issued or delivered pursuant to the Employee Plan
or
any Award, and the Committee shall determine whether cash or other securities
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.
(i)
Headings
.
Headings are given
to the Sections and subsections of the Employee 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 Employee Plan or any
provision thereof, and, in the event of any conflict, the text of the Employee
Plan, rather than such headings, shall control.
(j)
Indemnification
.
Subject to
requirements of Delaware State law, each individual who is or shall have been
a
member of the Board, or a Committee appointed by the Board or a delegate of
the
Committee so acting, shall be indemnified and held harmless by the Company
against and from any loss, cost, liability, or expense that may be imposed
upon
or reasonably incurred by him or her in connection with or resulting from any
claim, action, suit, or proceeding to which he or she may be a party or in
which
he or she may be involved by reason of any action taken or failure to act under
this Plan and against and from any and all amounts paid by him or her in
settlement thereof, with the Company’s approval, or paid by him or her in
satisfaction of any judgment in any such action, suit, or proceeding against
him
or her,
provided
he or
she shall give the Company an opportunity, at its own expense, to handle and
defend the same before he or she undertakes to handle and defend it on his/her
own behalf, unless such loss, cost, liability, or expense is a result of his/her
own willful misconduct or except as expressly provided by statute. The foregoing
right of indemnification shall not be exclusive of any other rights of
indemnification to which such individuals may be entitled under the Company’s
Certificate
of
Incorporation or Bylaws, as a matter of law, or otherwise, or any power that
the
Company may have to indemnify them or hold them harmless.
(k)
Compliance
with Section 409A
.
Except to the extent specifically provided otherwise by the Committee, Awards
under the Employee Plan are intended to satisfy the requirements of Section
409A
so as to avoid the imposition of any additional taxes or penalties under Section
409A. If the Committee determines that an Award, Award Agreement, payment,
distribution, deferral election, transaction or any other action or arrangement
contemplated by the provisions of the Employee Plan would, if undertaken, cause
a Participant to become subject to any additional taxes or other penalties
under
Section 409A, then unless the Committee specifically provides otherwise, such
Award, Award Agreement, payment, distribution, deferral election, transaction
or
other action or arrangement shall not be given effect to the extent it causes
such result and the related provisions of the Employee Plan and/or Award
Agreement will be deemed modified, or, if necessary, suspended in order to
comply with the requirements of Section 409A to the extent determined
appropriate by the Committee, in each case without the consent of or notice
to
the Participant. Notwithstanding any provision in the Employee Plan
to the contrary, with respect to any Award that is subject to Section 409A,
distributions on account of a separation from service may not be made to a
“specified employee” (as defined by Section 409A) before the date which is six
(6) months after the date of separation from service (or, if earlier, the date
of death of the employee).
(l)
No
Representations or Covenants with
Respect to Tax Qualification
. Although the Company may endeavor to (i)
qualify an Award for favorable U.S. tax provisions (
e.g.
, incentive stock
options
under Section 422 of the Code) or (ii) avoid adverse tax treatment (e.g., under
Section 409A of the Code), the Company makes no representation to that effect
and expressly disavows any covenant to maintain favorable or avoid unfavorable
tax treatment. The Company shall be unconstrained in its corporate activities
without regard to the potential negative tax impact on holders of Awards under
the Employee Plan.
(m)
Compliance
with Laws
. The
granting of Awards and the issuance of Shares under the Employee Plan shall
be
subject to all applicable laws, rules, and regulations, and to such approvals
by
any governmental agencies or stock exchanges or automated quotation systems
on
which the Company is listed, quoted or traded as may be required. The Company
shall have no obligation to issue or deliver evidence of title for Shares issued
under the Employee Plan prior to:
|
(i)
|
obtaining
any approvals from governmental agencies that the Company determines
are
necessary or advisable; and
|
|
(ii)
|
completion
of any registration or other qualification of the Shares under any
applicable national or foreign law or ruling of any governmental
body that
the Company determines to be necessary or advisable or at a time
when any
such registration or qualification is not current, has been suspended
or
otherwise has ceased to be
effective.
|
The
inability or impracticability of the Company to obtain or maintain authority
from any regulatory body having jurisdiction, which authority is deemed by
the
Company’s counsel to be necessary to the lawful issuance and sale of any Shares
hereunder shall relieve the Company of any liability in respect of the failure
to issue or sell such Shares as to which such requisite authority shall not
have
been obtained.
(n)
Code
Section 83(b)
Elections
. Neither the Company, any Affiliate, nor the
Committee shall have any responsibility in connection with a Participant’s
election, or attempt to elect, under Code section 83(b) to include the value
of
a Restricted Stock Award in the Participant’s gross income for the year of
payment. Any Participant who makes a Code section 83(b) election with
respect to any such Award shall promptly notify the Committee of such election
and provide the Committee with a copy thereof.
Section
9. Term of the Employee Plan
The
Plan
shall remain in full force and effect through
September 15
, 2018, unless
sooner terminated by the Board. After the Employee Plan is
terminated, no future Awards may be granted, but Awards previously granted
shall
remain outstanding in accordance with their applicable terms and conditions
and
the Employee Plan’s terms and conditions.
e
Plus
inc.
Incentive
Stock Option Agreement
|
|
|
Option
Number:
|
|
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Total
Number of Shares
Underlying Option:
|
|
|
Option
Date:
|
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Exercise
Price Per Share:
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INCENTIVE
STOCK OPTION granted by
e
Plus inc., a Delaware
corporation (the “
Company
”), to the above-named
option holder (the “
Optionee
”), an employee of
the Company or one of its subsidiaries, pursuant to the
e
Plus inc. 2008 Employee
Long-Term Incentive Plan (the “
Plan
”) the terms of which
are
incorporated herein by reference and which, in the event of any conflict, shall
control over the terms contained herein. A copy of the Plan (or related
Prospectus delivered to you with this Agreement) may be obtained at no cost
by
contacting [HR] at ____________.
1.
|
Grant
and Vesting
Option
|
Subject
to the vesting schedule below, the Company hereby grants to the Optionee an
option to purchase on the terms herein provided a total of the number of shares
of common stock, $0.01 par value, of the Company set forth above, at an exercise
price per share as set forth above.
This
option may be exercised only with respect to the portion thereof that is vested.
The right to exercise this option shall become vested according to the following
vesting schedule:
|
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Percentage
(%) of Option Shares With Respect to
|
[Anniversary/Other]
Date
|
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Which
Optionee Has a Vested Option to
Exercise
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Vested
options shall be calculated only in terms of full years (for example, from
one
anniversary date to the next) and no partial vesting credit shall be given
for
partial years of employment.
This
option shall expire and shall not be exercisable after the expiration of ten
(10) years from the date it is granted.
2.
Stock to be
Delivered
Stock
to
be delivered upon the exercise of this option may constitute an original issue
of authorized stock or may consist of treasury stock.
3.
Exercise of
Option
Each
election to exercise this option shall be made by delivering to the Company
or
its agent a properly executed exercise notice, together with irrevocable
instructions to a broker to deliver promptly to the Company the amount of sale
or loan proceeds with respect to the portion of shares to be acquired upon
exercise. Exercise of this option will not be permitted if the Company
determines, in its sole and absolute discretion, that issuance of shares at
that
time could violate any law or regulation.
In
the
event an option is exercised by the executor or administrator of a deceased
Optionee, or by the person or persons to whom the option has been transferred
by
the Optionee’s will or the applicable laws of descent and distribution, the
Company shall be under no obligation to deliver stock thereunder unless and
until the Company is satisfied that the person or persons exercising the option
is or are the duly appointed executor(s) or administrator(s) of the deceased
Optionee or the person to whom the option has been transferred by the Optionee’s
will or by the applicable laws of descent and distribution.
4.
Payment for and Delivery of
Stock
Payment
in full by cash, certified check, bank draft, wire transfer or postal or express
money order may be made for all shares for which this option is exercised at
the
time of such exercise, and no shares shall be delivered until such payment
is
made.
Alternatively,
payment may be made by (i) delivering to the Company a properly executed
exercise notice, together with irrevocable instructions to a broker to deliver
promptly to the Company the amount of sale or loan proceeds with respect to
the
portion of the shares to be acquired upon exercise having a Fair Market Value
on
the date of exercise equal to the sum of the applicable portion of the exercise
price being so paid and appropriate tax withholding, (ii) tendering to the
Company (by physical delivery or by attestation) certificates representing
shares of outstanding common stock, par value $0.01, of the Company that have
been held by the Optionee for at least six months prior to exercise, having
a
Fair Market Value on the day prior to the date of exercise equal to the
applicable portion of the exercise price being so paid, together with stock
powers duly executed and with signature guaranteed; or (iii) any
combination of the foregoing. Notwithstanding the foregoing, a form of payment
will not be available if the Company determines, in its sole and absolute
discretion, that such form of payment could violate any law or
regulation.
The
Company shall not be obligated to deliver any stock unless and until
(i) satisfactory arrangements have been made with the Company for the
payment of any applicable tax withholding obligations, (ii) all applicable
federal and state laws and regulations have been complied with, (iii) in
the event the outstanding common stock is at the time listed upon any stock
exchange, the shares to be delivered have been listed, or authorized to be
listed upon official notice of issuance upon the exchanges where it is listed,
and (iv) all legal matters in connection with the issuance and delivery of
the shares have been approved by counsel of the Company. The Optionee shall
have
no rights of a stockholder until the stock is actually delivered to him or
her.
Further, the Optionee acknowledges and consents that, pursuant to the Plan,
if
the Compensation Committee determines that any consent is necessary or desirable
as a condition of, or in connection with the grant of this option, delivery
of
shares or other property or the taking of any other action, then such action
will not be taken unless and until such consent is effected or obtained to
the
Compensation Committee’s satisfaction.
5.
Recovery and Reimbursement of
Option Gain
The
Company shall have the right to recover, or receive reimbursement for, any
compensation or profit realized by the exercise of this option or by the
disposition of any option shares to the extent that the Company has such a
right
of recovery or reimbursement under applicable securities laws.
6.
Nontransferability of
Option
This
option may not be transferred by the Optionee otherwise than by will or the
laws
of descent and distribution, and during the Optionee’s lifetime this option may
be exercised only by the Optionee.
7.
Termination of
Employment
Upon
termination of employment, other than termination of employment by reason of
(i) Retirement, as defined in the Plan, (ii) Disability, as defined in
the Plan, or (iii) death, any portion of this option that has not become
vested as of the date of termination shall immediately terminate and any portion
of this option that has already vested as of such date shall terminate ninety
(90) days after termination of employment or the expiration date of the
option, whichever occurs first.
8.
Retirement
In
the
event of the Optionee’s Retirement, as defined in the Plan, from the employ of
Company or any subsidiary, any portion of this option that has not become vested
as of the date of Retirement shall immediately terminate and any portion of
this
option that has already vested as of such date shall terminate one (1) year
after such retirement or on the expiration date of the option, whichever occurs
first.
9.
Disability
In
the
event of termination of employment of the Optionee because of Disability, as
defined in the Plan, any unexercised portion of this option held by the Optionee
at the date of such termination (vested and unvested) will immediately become
exercisable in full and will remain exercisable by the Optionee for a period
of
one (1) year or the remaining term of the option, whichever is
shorter.
10.
Death
If
an
Optionee dies while employed by the Company, any unexercised portion of this
option held by the Optionee at his or her date of death (vested and unvested)
will immediately become exercisable in full and will remain exercisable by
the
estate of the deceased Optionee or the person given authority to exercise his
or
her options by his or her will or by operation of law for a period of
one (1) year or the remaining term of the options, whichever is
shorter.
11.
Changes In
Stock
In
the
event of any change in the number of issued shares (or issuance of shares of
stock other than shares of Common Stock) by reason of any stock split, reverse
stock split, or stock dividend, recapitalization, reclassification, merger,
consolidation, split-up, spin-off, reorganization, combination, or exchange
of
shares, the issuance of warrants or other rights to purchase shares or other
securities, or any other change in corporate structure or in the event of any
extraordinary distribution (whether in the form of cash, shares, other
securities or other property), the Compensation Committee shall adjust the
number or kind of shares that may be issued under the Plan, and the terms of
this option (including, without limitation, the number of shares subject to
this
option, the type of property to which this option relates and the exercise
price
of this option) in such manner as the Compensation Committee shall determine
is
appropriate in order to prevent the dilution or enlargement of the benefits
or
potential benefits intended to be made available under the Plan, and such
adjustment shall be conclusive and binding for all purposes under the Plan.
Notwithstanding the foregoing, no adjustment shall be required if the
Compensation Committee determines that such action could cause an award to
fail
to satisfy the conditions of an applicable exception from the requirements
of
Section 409A of the Code (“
Section 409A
”) or
otherwise could subject the Optionee to the additional tax imposed under
Section 409A in respect of an outstanding award. In the event of (i) a
consolidation or merger in which the Company is not the surviving corporation,
(ii) a consolidation or merger in which the Company is the surviving
corporation but holders of shares receive securities or another corporation,
or
(iii) a sale of substantially all of the Company’s assets (as an entirety)
or capital stock to another person, this option shall be deemed to apply to
the
equivalent amount of securities, cash or other property that is received by
Company stockholders in exchange for their Company shares pursuant to such
transaction;
provided,
however
, that the Compensation Committee may, in its discretion, either
(i) provide, upon written notice to the Optionee, that this option shall
terminate as of the date specified in such notice (in which case the
Compensation Committee may, but does not have to, accelerate the vesting of
any
portion of this option that has not already vested as of the date such notice
is
provided to the Optionee), or (ii) cancel this option and in consideration
of such cancellation pay to the Optionee an amount in cash with respect to
each
share then remaining under the option equal to the difference between the Fair
Market Value of such share on the date of cancellation (or, if greater, the
per
share value of the consideration received by Company stockholders as a result
of
the merger, consolidation, reorganization or sale) and the per share exercise
price of the option.
12.
Continuance of
Employment
This
option shall not be deemed to obligate the Company or any subsidiary to retain
the Optionee in its employ for any period.
13.
Provisions of the Plan and
Section 422 of the Internal Revenue Code
This
Agreement incorporates by reference Section 422 of the Internal Revenue
Code of 1986, as amended, and the terms of the Plan [(including without
limitation, Section 6(g)(xii) of the Plan, which provides for the
forfeiture of this option and the return of any profit realized upon the
exercise of such option in certain circumstances)], and is subject to the
provisions thereof. The Plan and the options granted pursuant to this Agreement
are intended to comply with Section 422 of the Internal Revenue Code of
1986, as amended, and all of the regulations issued pursuant thereto. This
Agreement shall be construed in accordance with the Plan, said Section 422
and the regulations issued there under and any provision of this Agreement
held
to be inconsistent therewith shall be severable and of no force or
effect.
[14.
Incorporation by Reference of
Employment Agreement
If
the
Optionee has an employment agreement with
e
Plus inc. which contains
different or additional provisions relating to vesting of the stock option
grant, or otherwise conflicts with the terms of this Agreement, the provisions
of the employment agreement shall govern and be incorporated herein by
reference.]
IN
WITNESS WHEREOF,
e
Plus
inc. has caused this Agreement to be executed by the [officer title]. This
option is granted at the Company’s principal executive office, 13595 Dulles
Technology Drive, Herndon, Virginia 20171, on the date stated
above.
e
Plus
inc.
Option Holder
By:
_________________________________ _____________________________
Name:
Name:
Title:
e
Plus
inc.
Non-Qualified
Stock Option Agreement
|
|
|
|
|
Option
Number:
|
|
|
|
|
Total
Number of Shares
Underlying Option:
|
|
|
Option
Date:
|
|
|
|
|
Exercise
Price Per
Share:
|
|
|
|
|
NON-QUALIFIED
STOCK OPTION granted by
e
Plus inc., a Delaware
corporation, (the “
Company
”) to the above-named
option holder (the
“Optionee”
), an employee or
consultant of the Company or one of its subsidiaries, pursuant to the
e
Plus inc. 2008 Employee
Long-Term Incentive Plan (the
“Plan”
) the terms of which
are incorporated herein by reference and which, in the event of any conflict,
shall control over the terms contained herein. A copy of the Plan (or related
Prospectus delivered to you with this Agreement) may be obtained at no cost
by
contacting the [HR] at _______.
1.
Grant and Vesting
Option
Subject
to the vesting schedule below, the Company hereby grants to the Optionee an
option to purchase on the terms herein provided a total of the number of shares
of common stock, $0.01 par value, of the Company set forth above, at an exercise
price per share as set forth above.
This
option may be exercised only with respect to the portion thereof that is vested.
The Optionee’s right to exercise this option shall become vested according to
the following vesting schedule:
|
|
|
|
|
Percentage
(%) of Option Shares With Respect to
|
[Anniversary/Other]
Date
|
|
Which
Optionee Has a Vested Option to Exercise
|
|
|
|
|
|
|
|
|
|
Vested
rights shall be calculated only in terms of full years (for example, from one
anniversary date to the next) and no partial vesting credit shall be given
for
partial years of employment.
This
option shall expire and shall not be exercisable after the expiration of ten
(10) years from the date it is granted.
2.
Stock to be Delivered
Stock
to
be delivered upon the exercise of this option may constitute an original issue
of authorized stock or may consist of treasury stock.
3.
Exercise of
Option
Each
election to exercise this option shall be made, by delivering to the Company
or
its agent a properly executed exercise notice, together with irrevocable
instructions to a broker to deliver promptly to the Company the amount of sale
or loan proceeds with respect to the portion of shares to be acquired upon
exercise. Exercise of this option will not be permitted if the Company
determines, in its sole and absolute discretion, that issuance of shares at
that
time could violate any law or regulation.
In
the
event an option is exercised by the executor or administrator of a deceased
Optionee, or by the person or persons to whom the option has been transferred
by
the Optionee’s will or the applicable laws of descent and distribution, the
Company shall be under no obligation to deliver stock thereunder unless and
until the Company is satisfied that the person or persons exercising the option
is or are the duly
appointed
executor(s) or administrator(s) of the deceased Optionee or the person to whom
the option has been transferred by the Optionee’s will or by the applicable laws
of descent and distribution.
4.
Payment for and Delivery of
Stock
Payment
in full by cash, certified check, bank draft, wire transfer or postal or express
money order may be made for all shares for which this option is exercised at
the
time of such exercise, and no shares shall be delivered until such payment
is
made.
Alternatively,
payment may be made by (i) delivering to the Company a properly executed
exercise notice, together with irrevocable instructions to a broker to deliver
promptly to the Company the amount of sale or loan proceeds with respect to
the
portion of the shares to be acquired upon exercise having a Fair Market Value
on
the date of exercise equal to the sum of the applicable portion of the exercise
price being so paid and appropriate tax withholding, (ii) tendering to the
Company (by physical delivery or by attestation) certificates representing
shares of outstanding common stock, par value $0.01, of the Company that have
been held by the Optionee for at least six months prior to exercise, having
a
Fair Market Value on the day prior to the date of exercise equal to the
applicable portion of the exercise price being so paid, together with stock
powers duly executed and with signature guaranteed; or (iii) any
combination of the foregoing. Notwithstanding the foregoing, a form of payment
will not be available if the Company determines, in its sole and absolute
discretion, that such form of payment could violate any law or
regulation.
The
Company shall not be obligated to deliver any stock unless and until
(i) satisfactory arrangements have been made with the Company for the
payment of any applicable tax withholding obligations, (ii) all applicable
federal and state laws and regulations have been complied with, (iii) in
the event the outstanding common stock is at the time listed upon any stock
exchange, the shares to be delivered have been listed, or authorized to be
listed upon official notice of issuance upon the exchanges where it is listed,
and (iv) all legal matters in connection with the issuance and delivery of
the shares have been approved by counsel of the Company. The Optionee shall
have
no rights of a stockholder until the stock is actually delivered to him or
her. Further, the Optionee acknowledges and consents that, pursuant
to the Plan, if the Compensation Committee determines that any consent (as
defined in the Plan) is necessary or desirable as a condition of, or in
connection with the grant of this option, delivery of shares or other property
or the taking of any other action, then such action will not be taken unless
and
until such consent is effected or obtained to the Compensation Committee’s
satisfaction.
5.
Recovery and Reimbursement of
Option Gain
The
Company shall have the right to recover, or receive reimbursement for, any
compensation or profit realized by the exercise of this option or by the
disposition of any option shares to the extent that the Company has such a
right
of recovery or reimbursement under applicable securities laws.
6.
Transferability of
Options
Except
as
provided below, this option may not be transferred by the Optionee otherwise
than by will or the laws of descent and distribution and during the Optionee’s
lifetime this option may be exercised only by the Optionee. Notwithstanding
the
foregoing, this option may be transferred by the Optionee to members of his
or
her immediate family or to one or more trusts for the benefit of such family
members or to one or more partnerships in which such family members are the
only
partners provided that (i) the optionee does not receive any consideration
for such transfer, (ii) written notice of any proposed transfer and the details
thereof shall have been furnished to the Compensation Committee at least three
(3) days in advance of such transfer, and (iii) the Compensation
Committee consents to the transfer in writing. Options transferred pursuant
to
this provision will continue to be subject to the same terms and conditions
that
were applicable to such options immediately prior to transfer and the option
may
be exercised by the transferee only to the same extent that the option could
have been exercised by the Optionee had no transfer been made. For this purpose,
the Optionee’s “
family
members
” shall include the Optionee’s spouse, children, grandchildren,
parents, grandparents (whether natural, step, adopted or in-laws) siblings,
nieces, nephews and grand nieces and grand nephews.
7.
Termination of Employment
Upon
termination of employment, other than termination of employment by reason of
(i) Retirement, as defined in the Plan, (ii) Disability, as defined in
the Plan, or (iii) death, any portion of this option that has not become
vested as of the date of termination shall immediately terminate and any portion
of this option that has already vested as of such date shall terminate ninety
(90) days after termination of employment or the expiration date of the
option, whichever occurs first.
8.
Retirement
In
the
event of the Optionee’s Retirement, as defined in the Plan, from the employ of
Company or any subsidiary, any portion of this option that has not become vested
as of the date of Retirement shall immediately terminate and any portion of
this
option that has already vested as of such date shall terminate one (1) year
after such Retirement or on the expiration date of the option, whichever occurs
first.
9.
Disability
In
the
event of termination of employment of the Optionee because of Disability, as
defined in the Plan, any unexercised portion of this option held by the Optionee
at the date of such termination (vested and unvested) will immediately become
exercisable in full and will remain exercisable by the Optionee for a period
of
one (1) year or the remaining term of the option, whichever is
shorter.
10.
Death
If
an
Optionee dies while employed by the Company, any unexercised portion of this
option held by the Optionee at his or her date of death (vested and unvested)
will immediately become exercisable in full and will remain exercisable by
the
estate of the deceased Optionee or the person given authority to exercise his
or
her options by his or her will or by operation of law for a period of one
(1) year or the remaining term of the option, whichever is
shorter.
11.
Changes In
Stock
In
the
event of any change in the number of issued shares (or issuance of shares of
stock other than shares of Common Stock) by reason of any stock split, reverse
stock split, or stock dividend, recapitalization, reclassification, merger,
consolidation, split-up, spin-off, reorganization, combination, or exchange
of
shares, the issuance of warrants or other rights to purchase shares or other
securities, or any other change in corporate structure or in the event of any
extraordinary distribution (whether in the form of cash, shares, other
securities or other property), the Compensation Committee shall adjust the
number or kind of shares that may be issued under the Plan, and the terms of
this option (including, without limitation, the number of shares subject to
this
option, the type of property to which this option relates and the exercise
price
of this option) in such manner as the Compensation Committee shall determine
is
appropriate in order to prevent the dilution or enlargement of the benefits
or
potential benefits intended to be made available under the Plan, and such
adjustment shall be conclusive and binding for all purposes under the Plan.
Notwithstanding the foregoing, no adjustment shall be required if the
Compensation Committee determines that such action could cause an award to
fail
to satisfy the conditions of an applicable exception from the requirements
of
Section 409A of the Code (
“Section 409A”
) or
otherwise could subject the Optionee to the additional tax imposed under
Section 409A in respect of an outstanding award. In the event of (i) a
consolidation or merger in which the Company is not the surviving corporation,
(ii) a consolidation or merger in which the Company is the surviving
corporation but holders of shares receive securities or another corporation,
or
(iii) a sale of substantially all of the Company’s assets (as an entirety)
or capital stock to another person, this option shall be deemed to apply to
the
equivalent amount of securities, cash or other property that is received by
Company stockholders in exchange for their Company shares pursuant to such
transaction;
provided,
however
, that the Compensation Committee may, in its discretion, either
(i) provide, upon written notice to the Optionee, that this option shall
terminate as of the date specified in such notice (in which case the
Compensation Committee may, but does not have to, accelerate the vesting of
any
portion of this option that has not already vested as of the date such notice
is
provided to the Optionee), or (ii) cancel this option and in consideration
of such cancellation pay to the Optionee an amount in cash with respect to
each
share then remaining under the option equal to the difference between the Fair
Market Value of such share on the date of cancellation (or, if greater, the
per
share value of the consideration received by Company stockholders as a result
of
the merger, consolidation, reorganization or sale) and the per share exercise
price of the option.
12.
Continuance of
Employment
This
option shall not be deemed to obligate the Company or any subsidiary to retain
the Optionee in its employ for any period.
13.
Provisions of the
Plan
This
Agreement incorporates by reference the terms of the Plan [(including without
limitation, Section 6(g)(xii) of the Plan, which provides for the
forfeiture of this option and the return of any profit realized upon the
exercise of such option in certain circumstances)], and is subject to the
provisions thereof.
[14.
Incorporation by Reference of
Employment Agreement
If
the
Optionee has an employment agreement with
e
Plus inc. which contains
different or additional provisions relating to vesting of the stock option
grant, or otherwise conflicts with the terms of this Agreement, the provisions
of the employment agreement shall govern and be incorporated herein by
reference.]
IN
WITNESS WHEREOF,
e
Plus
inc. has caused this Agreement to be executed by the [officer title]. This
option is granted at the Company’s principal executive office,13595 Dulles
Technology Drive, Herndon, Virginia, 20171, on the date stated
above.
e
Plus
inc.
Option Holder
By:
_________________________________ _____________________________
Name:
Name:
Title:
e
Plus
inc.
Restricted
Stock Award
Agreement
Name
of Participant:
Grant
Number:
Total
Number of Shares Underlying Restricted Stock Award:
Grant
Date:
1.
|
Restricted
Stock Award
– Terms and Conditions
. This Agreement confirms the
grant under and subject to the provisions of the
e
Plus inc.
[2008
Employee /
Director]
Long-Term Incentive Plan (the “
Plan
”)
and the terms
and conditions set forth herein (“
Terms
and
Conditions
”) to the
above-named participant of the number of a Restricted Stock award
of such
number of shares of common stock, $0.01 par value per share (the
“
Common Stock
”), of the
Company as set forth above. This Agreement merely evidences such
grant,
and does not constitute property of any nature or type or confer
any
additional rights. This grant is subject in all respects to the applicable
terms of the Plan. A copy of the Plan (or related Prospectus delivered
to
you with this Agreement) may be obtained at no cost by contacting
the [HR
Department] at_________________.
|
2.
|
Restriction
Period
. For purposes of this Agreement, the Restriction
Period is the period beginning on the grant date and ending on [INSERT
VESTING DATE(S)] (the “
Restriction
Period
”).
|
3.
|
Restrictions
and
Forfeiture
. The Restricted Stock is granted to the participant
subject to the prohibitions on transfer set forth in Section 6 below,
which shall lapse, if at all, upon the expiration of the Restriction
Period as described in Section 7
below.
|
4.
|
Rights
During
Restriction Period
. During the Restriction Period, the participant
may exercise full voting rights with respect to all Restricted Stock
subject to the award and shall be entitled to receive cash dividends
and
other distributions paid with respect to the Restricted Stock. If
any such
dividend or distribution is paid in securities of the Company (including
additional shares of Common Stock), such securities shall be subject
to
the same restrictions on transferability, risks of forfeiture, and
other
restrictions and conditions as the Restricted Stock in respect of
which
such dividend or distribution was made. If the number of outstanding
shares of Common Stock is changed as a result of a stock dividend,
stock
split or the like, without additional consideration to the Company,
the
Restricted Stock subject to this award shall be adjusted to correspond
to
the change in the outstanding shares of the Company’s Common Stock. For
the avoidance of doubt, upon the expiration of the Restriction Period,
the
participant may exercise voting rights and shall be entitled to
receive dividends and other distributions with respect to the number
of
shares to which the participant is entitled pursuant
hereto.
|
5.
|
Release
of
Award
. Provided the award has not previously been forfeited, as
soon as reasonably practicable following the expiration of the Restriction
Period and the satisfaction of the applicable tax withholding obligations,
the Company shall at its option, cause the Restricted Stock to which
the
participant is entitled pursuant hereto (i) to be released without
restriction on transfer by delivery to the custody of the participant
of a
stock certificate in the name of the participant or his or her designee,
or (ii) to be credited without restriction on transfer to a
book-entry account for the benefit of the participant or his or her
designee maintained by the Company’s stock transfer agent or its
designee.
|
6.
|
Prohibition
Against
Transfer
. Until the expiration of the Restriction
Period, the award and the Restricted Stock subject to the award and
the
rights granted under the Terms and Conditions and this Agreement
are not
transferable except to family members or trusts by will or by the
laws of
descent and distribution, provided that the award and the Restricted
Stock
may not be so transferred to family members or trusts except as permitted
by applicable law or regulations. Without limiting the generality
of the
foregoing, except as aforesaid, until the expiration of the Restriction
Period, the award and shares of Restricted Stock may not be sold,
exchanged, assigned, transferred, pledged, hypothecated, encumbered
or
otherwise disposed of, shall not be assignable by operation of law,
and
shall not be subject to execution, attachment, charge, alienation
or
similar process. Any attempt to effect any of the foregoing shall
be null
and void and without effect.
|
7.
|
Forfeiture;
Termination of Employment
. Shares of Restricted Stock
that are included in this award shall be forfeited by the participant
upon
the participant’s termination of employment prior to vesting for any
reason other than death or Disability, as defined in the Plan. All
shares
of Restricted Stock will immediately vest upon a Change in Control,
as
defined in the Plan.
|
8.
|
Withholding
. Where
required pursuant to the terms of the Plan, the Company will satisfy
any
federal income tax withholding obligations that arise in connection
with
the vesting of the Restricted Stock (or in connection with an election
by
the participant under section 83(b) of the Internal Revenue Code,
1986, as
amended (the “
Code
”), with
respect to
the Restricted Stock, if applicable) by withholding shares of Common
Stock
that would otherwise be available for delivery upon the vesting of
this
award having a Fair Market Value, as defined in the Plan, on the
date the
shares of Restricted Stock first become taxable equal to the minimum
statutory withholding obligation or such other withholding obligation
as
required by applicable law with respect to such taxable shares. In
other
cases, as a condition to the delivery of Shares or the lapse of
restrictions related to this Restricted Stock Award, or in connection
with
any other event that gives rise to a tax withholding obligation,
the
Company (i) may deduct or withhold from any payment or distribution
to the Participant (whether or not pursuant to the Plan), (ii) will
be entitled to require that the Participant remit cash to the Company
(through payroll deduction or otherwise) or (iii) may enter into any
other suitable arrangements to withhold, in each case, in an amount
sufficient to satisfy such withholding
obligation.
|
9.
|
Miscellaneous
. These
Terms and Conditions and other portions of this Agreement: (a) shall
be
binding upon and inure to the benefit of any successor of the Company;
(b) shall be governed by the laws of the State of Delaware and any
applicable laws of the United States; and (c) except as permitted
under Sections 4(d) and 7 of the Plan, may not be amended without
the
written consent of both the Company and the participant. The Agreement
shall not in any way interfere with or limit the right of the Company
to
terminate the participant’s employment or service with the Company at any
time, and no contract or right of employment shall be implied by
the Terms
and Conditions and this Agreement of which they form a part. For
the
purposes of the Terms and Conditions and this Agreement, employment
by the
Company, any Subsidiary or a successor to the Company shall be considered
employment by the Company. If the award is assumed or a new award
is
substituted therefor in any corporate reorganization (including,
but not
limited to, any transaction of the type referred to in Section 424(a)
of
the Code), employment by such assuming or substituting corporation
or by a
parent corporation or subsidiary thereof shall be considered for
all
purposes of the award to be employment by the
Company.
|
10.
|
Incorporation
of Plan
Provisions
. The Terms and Conditions and this Agreement
are made pursuant to the Plan, the provisions of which are hereby
incorporated by reference (including without limitation,
Section 6(g)(xii) of the Plan, such that the participant may be
subject to the forfeiture of the unvested portion of this Restricted
Stock
award and must return any vested shares already delivered pursuant
to this
Agreement in certain circumstances described in that Section) Capitalized
terms not otherwise defined herein shall have the meanings set forth
for
such terms in the Plan. In the event of a conflict between the
terms of the Terms and Conditions and this Agreement, and the Plan,
the
terms of Plan shall govern.
|
e
Plus
inc.
Participant
By:
_________________________________
____________________________________
Name
Name
_________________________________
Title
e
Plus
inc.
Restricted
Stock
Unit Award Agreement
Name
of Participant:
Grant
Number:
Number
of Restricted Units:
Form
of Payment of the Award:
Grant
Date:
1.
|
Restricted
Stock Unit
Award – Terms and Conditions
. This Agreement confirms
the grant under and subject to the provisions of the
e
Plus inc.
[2008
Employee /
Director]
Incentive Plan (the “
Plan
”)
and upon the
terms and conditions set forth herein (“
Terms and Conditions
”)
to the above-named participant of the number of Restricted Stock
Units set
forth above (such units, as may be adjusted in accordance with Section
4
of these Terms and Conditions, the “
Restricted Units
”).
This Agreement does not constitute ownership of any shares of Common
Stock
of
e
Plus inc.
(the “
Company
”)
or confer any rights associated with the ownership of shares, except
as
expressly set forth herein. This grant is subject in all respects
to the
applicable terms of the Plan. At all times, each Restricted Unit
shall be
equal in value to one share of common stock, $0.01 par value per
share
(the “
Common
Stock
”), of the Company (a “
Share
”).
A copy of the
Plan (or related Prospectus delivered to you with this Agreement)
may be
obtained at no cost by contacting the [HR Department]
at________________.
|
2.
|
Restriction
Period
. For purposes of this Agreement, the Restriction
Period is the period beginning on the grant date and ending on [INSERT
VESTING DATE(S)] (the “
Restriction
Period
”).
|
3.
|
Payout
of
Award
. Provided the award has not previously been forfeited, within
two and one-half months after the expiration of the Restriction Period
and
upon the satisfaction of the applicable tax withholding obligations,
(i) if the award is to be paid in Shares, the Company shall issue to
the participant the number of Shares underlying the Restricted Units
as of
the date of the expiration of the Restriction Period; or (ii) if the
award is to be paid in cash, the Company shall pay to the participant
a
single lump sum cash payment equal to the Fair Market Value (as defined
in
the Plan) of the number of Shares underlying the Restricted Units
as of
the date of the expiration of the Restriction Period. If the award
is to
be paid in Shares, upon payout the Company shall at its option, cause
such
Shares as to which the participant is entitled pursuant hereto:
(i) to be released without restriction on transfer by delivery to the
custody of the participant of a stock certificate in the name of
the
participant or his or her designee, or (ii) to be credited without
restriction on transfer to a book-entry account for the benefit of
the
participant or his or her designee maintained by the Company’s stock
transfer agent or its designee.
|
4.
|
Rights
During
Restriction Period
. During the Restriction Period, the participant
shall not have any rights as a shareholder with respect to the Shares
underlying the Restricted Units. During the Restriction Period, if
any
dividends or other distributions are paid in cash to holders of Common
Stock, the participant shall be entitled to receive dividend equivalents,
in cash, paid with respect to the number of Shares underlying the
Restricted Units. Such dividend equivalents will be paid to the
participant as soon as is practicable following payment of the dividend
or
other distribution to holders of Common Stock, but no later than
the end
of the calendar year in which the corresponding actual cash dividends
or
other distributions are paid to holders of Common Stock. If any such
dividend or other distribution is paid in securities of the Company
(including Shares), such dividend equivalents in respect of such
securities relating to the Restricted Units shall be subject to the
same
restrictions and conditions as the Restricted Units in respect of
which
such dividend or distribution in the form of securities was made
and shall
be paid to the participant in the manner and at the time the Restricted
Units are paid in accordance with Section 3. If the number of outstanding
shares of Common Stock is changed as a result of a stock dividend,
stock
split or the like, without additional consideration to the Company,
the
Restricted Units subject to this Award shall be adjusted to correspond
to
the change in the Company’s outstanding shares of Common Stock. If the
award to be paid in Shares, upon the expiration of the Restriction
Period
and payout of the award pursuant to Section 3, the participant may
exercise voting rights and shall be entitled to receive dividends
and
other distributions with respect to the number of Shares to which
the
participant is entitled pursuant
hereto.
|
5.
|
Prohibition
Against
Transfer
. Until the expiration of the Restriction
Period, the award, the Restricted Units subject to the award, any
interest
in the Shares (in the case of a payment to be made in Shares) or
cash to
be paid, as applicable, related thereto, and the rights granted under
the
Terms and Conditions and this Agreement are not transferable except
to
family members or trusts by will or by the laws of descent and
distribution, provided that the award, the Restricted Units subject
to the
award, and any interest in the Shares or cash to be paid, as applicable,
related thereto may not be so transferred to family members or trusts
except as permitted by applicable law or regulations. Without
limiting the generality of the foregoing, except as aforesaid, until
the
expiration of the Restriction Period, the award, the Restricted Units
subject to the award and any interest in the Shares (in the case
of a
payment to be made in Shares) or cash to be paid, as applicable,
related
thereto, may not be sold, exchanged, assigned, transferred, pledged,
hypothecated, encumbered or otherwise disposed of, shall not be assignable
by operation of law, and shall not be subject to execution, attachment,
charge, alienation or similar process. Any attempt to effect any
of the
foregoing shall be null and void and without
effect.
|
6.
|
Forfeiture;
Termination of Employment
. No shares of Common Stock
shall be issued to the participant prior to the date on which the
Restricted Stock Units vest, and shall be forfeited by the participant
upon the participant’s termination of employment prior to vesting for any
reason other than death or Disability, as defined in the Plan. All
shares
of restricted stock units will immediately vest upon a Change in
Control,
as defined in the Plan.
|
7.
|
Withholding
. Where
required pursuant to the terms of the Plan, the Company will satisfy
any
federal income tax withholding obligations that arise in connection
with
the vesting of the Restricted Units by withholding shares of Common
Stock
that would otherwise be available for delivery upon the vesting of
this
award having a Fair Market Value, on the date the shares of Restricted
Units first become taxable equal to the minimum statutory withholding
obligation or such other withholding obligation as required by applicable
law with respect to such taxable shares. In other cases, as a condition
to
the delivery of Shares or the lapse of restrictions related to this
Restricted Unit, or in connection with any other event that gives
rise to
a tax withholding obligation, the Company (i) may deduct or withhold
from any payment or distribution to the participant (whether or not
pursuant to the Plan), (ii) will be entitled to require that the
participant remit cash to the Company (through payroll deduction
or
otherwise) or (iii) may enter into any other suitable arrangements to
withhold, in each case, in an amount sufficient to satisfy such
withholding obligation.
|
8.
|
Miscellaneous
. These
Terms and Conditions and other portions of this Agreement: (a) shall
be
binding upon and inure to the benefit of any successor of the Company;
(b) shall be governed by the laws of the State of Delaware and any
applicable laws of the United States; and (c) except as permitted
under Sections 4(d) and 7 of the Plan, may not be amended without
the
written consent of both the Company and the participant. The Agreement
shall not in any way interfere with or limit the right of the Company
to
terminate the participant’s employment or service with the Company at any
time, and no contract or right of employment shall be implied by
the Terms
and Conditions and this Agreement of which they form a part. For
the
purposes of the Terms and Conditions and this Agreement, employment
by the
Company, any Subsidiary or a successor to the Company shall be considered
employment by the Company. If the award is assumed or a new award
is
substituted therefor in any corporate reorganization (including,
but not
limited to, any transaction of the type referred to in Section 424(a)
of
the Internal Revenue Code of 1986, as amended), employment by such
assuming or substituting corporation or by a parent corporation or
subsidiary thereof shall be considered for all purposes of the award
to be
employment by the Company.
|
9.
|
Incorporation
of Plan
Provisions
. The Terms and Conditions and this Agreement
are made pursuant to the Plan, the provisions of which are hereby
incorporated by reference (including without limitation,
Section 6(g)(xii) of the Plan, such that the participant may be
subject to the forfeiture of the unvested portion of this Restricted
Unit
award and must return any vested Restricted Units and/or shares already
delivered pursuant to this Agreement in certain circumstances described
in
that Section). Capitalized terms not otherwise defined herein shall
have
the meanings set forth for such terms in the Plan. In the event
of a conflict between the terms of the Terms and Conditions and this
Agreement, and the Plan, the terms of Plan shall
govern.
|
e
Plus
inc.
Participant
By:
_________________________________ ____________________________________
Name Name
_________________________________
Title