Exhibit
10.1
BROOKDALE
SENIOR LIVING INC.
OMNIBUS
STOCK INCENTIVE PLAN,
As
Amended and Restated
Section
1.
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Purpose
of Plan.
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The name of this plan is the Brookdale
Senior Living Inc. Omnibus Stock Incentive Plan (as amended from time to time,
the "Plan"). The Plan was adopted by the Board (as hereinafter
defined) on October 14, 2005 and approved by the stockholders of the Company (as
hereinafter defined) on October 14, 2005, prior to the initial public offering
of Company common stock. The Plan was subsequently amended by the Board and
approved by the stockholders on May 12, 2006, amended and restated by the Board
on June 12, 2007, and amended and restated by the Board on April 8, 2009 and
approved by the stockholders on June 23, 2009. The purpose of the
Plan is to provide additional incentive to selected management employees,
directors and Consultants (as hereinafter defined) of the Company or its
Subsidiaries (as hereinafter defined) whose contributions are essential to the
growth and success of the Company's business, in order to strengthen the
commitment of such persons to the Company and its Subsidiaries, motivate such
persons to faithfully and diligently perform their responsibilities and attract
and retain competent and dedicated persons whose efforts shall result in the
long-term growth and profitability of the Company. The Plan is also
designed to encourage stock ownership by such persons, thereby aligning their
interest with the interests of the Company's stockholders, and to permit the
payment of compensation that qualifies as performance-based compensation under
Section 162(m) of the Code (as hereinafter defined). To accomplish
such purposes, the Plan provides that the Company may grant (a) Options, (b)
Stock Appreciation Rights, (c) awards of Restricted Shares, Deferred Shares,
Performance Shares, unrestricted Shares or Other Stock-Based Awards, (d)
Performance Awards, or (e) any combination of the
foregoing. Notwithstanding any provision of the Plan, to the extent
that any Award (as hereinafter defined) would be subject to Section 409A of the
Code, no such Award may be granted if it would fail to comply with the
requirements set forth in Section 409A of the Code and any regulations or
guidance promulgated thereunder.
For purposes of the Plan, the following
terms shall be defined as set forth below:
(a)
"Administrator"
means the Board, or if and to the extent the Board does not administer the Plan,
the Committee in accordance with Section 3 hereof.
(b)
"Affiliate"
means an affiliate of the Company (or other referenced entity, as the case may
be) as defined in Rule 12b-2 promulgated under Section 12 of the Exchange
Act.
(c)
"Award"
means any Option, Stock Appreciation Right, Restricted Share, Deferred Share,
Performance Share, unrestricted Share, Performance Award, or Other Stock-Based
Award granted under the Plan.
(d)
"Award
Document" means any written agreement, contract or other instrument or document
evidencing an Award.
(e)
"Beneficial
Owner" (or any variant thereof) has the meaning defined in Rule 13d-3 under the
Exchange Act.
(f)
"Board"
means the Board of Directors of the Company.
(g)
"Cause"
shall have the meaning set forth in the Participant's employment or other
agreement with the Company, any Subsidiary or any Affiliate, provided that if
the Participant is not a party to any such employment or other agreement or such
employment or other agreement does not contain a definition of Cause, then Cause
shall mean (i) the continued failure by the Participant to
substantially
perform his or her duties and obligations to the Company or any Subsidiary or
Affiliate, including without limitation, repeated refusal to follow the
reasonable directions of his or her employer, intentional violation
of law in the course of performance of the duties of Participant's employment
with the Company or any Subsidiary or Affiliate, engagement in misconduct
which is
materially injurious to the Company or any Subsidiary or Affiliate, repeated
absences from work without a reasonable excuse, or intoxication with alcohol or
illegal drugs while on the Company's or any Subsidiary's or
Affiliate's premises during regular business hours (other than any
such failure resulting from his or her incapacity due to physical or mental
illness); (ii) fraud or material dishonesty against the Company or any
Subsidiary or Affiliate; or (iii) a conviction or plea of guilty or nolo
contendere for the commission of a felony or a crime involving material
dishonesty. Determination of Cause shall be made by the Administrator
in its sole discretion.
(h)
"Change
in Capitalization" means any (i) merger, consolidation, reclassification,
recapitalization, spin-off, spin-out, repurchase or other reorganization or
corporate transaction or event, (ii) dividend (whether in the form of cash,
Common Stock, or other property), stock split or reverse stock split, (iii)
combination or exchange of shares, (iv) other change in corporate structure or
(v) declaration of a special dividend (including a cash dividend) or other
distribution, which, in any such case, the Administrator determines, in its sole
discretion, affects the Shares such that an adjustment pursuant to Section 5
hereof is appropriate.
(i)
"Change
in Control" shall be deemed to have occurred if an event set forth in any one of
the following paragraphs shall have occurred:
(1)
any
Person other than any Permitted Transferee is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Company (not including in the
securities beneficially owned by such Person any securities acquired directly
from the Company or any of its affiliates as defined in Rule 12b-2 promulgated
under Section 12 of the Securities Exchange Act of 1934, as amended, the
"Exchange Act") representing 50% or more of the combined voting power of the
Company's then outstanding securities; or
(2)
there is
consummated a merger or consolidation of the Company or any direct or indirect
subsidiary of the Company with any other corporation, other than a merger or
consolidation immediately following which the individuals who comprise the Board
immediately prior thereto constitute at least a majority of the Board of the
entity surviving such merger or consolidation or, if the Company or the entity
surviving such merger is then a subsidiary, the ultimate parent thereof;
or
(3)
the
stockholders of the Company approve a plan of complete liquidation or
dissolution of the Company or there is consummated an agreement for the sale or
disposition by the Company of all or substantially all of the Company's assets,
other than (i) a sale or disposition by the Company of all or substantially all
of the Company's assets to an entity, at least 50% of the combined voting power
of the voting securities of which are owned by stockholders of the Company
following the completion of such transaction in substantially the same
proportions as their ownership of the Company immediately prior to such sale or
(ii) a sale or disposition of all or substantially all of the Company's assets
immediately following which the individuals who comprise the Board immediately
prior thereto constitute at least a majority of the board of directors of the
entity to which such assets are sold or disposed or, if such entity is a
subsidiary, the ultimate parent thereof.
Notwithstanding
the foregoing, a "Change in Control" shall not be deemed to have occurred by
virtue of (i) an Initial Public Offering or (ii) the consummation of any
transaction or series of integrated transactions immediately following which the
holders of the common stock of the Company immediately prior to such transaction
or series of transactions continue to have substantially the same proportionate
ownership in an entity which owns all or substantially all of the assets of the
Company immediately following such transaction or series of
transactions.
(j)
"Code"
means the Internal Revenue Code of 1986, as amended from time to time, or any
successor thereto.
(k)
"Committee"
means any committee or subcommittee the Board may appoint to administer the
Plan. Subject to the discretion of the Board, the Committee shall be
composed entirely of individuals who meet the qualifications of an "outside
director" within the meaning of Section 162(m) of the Code, a "non-employee
director" within the meaning of Rule 16b-3 under the Exchange Act and any other
qualifications required by the applicable stock exchange on which the Common
Stock is traded. If at any time or to any extent the Board shall not
administer the Plan, then the functions of the Administrator specified in the
Plan shall be exercised by the Committee. Except as otherwise
provided in the Company’s Certificate of Incorporation or Bylaws, as amended
from time to time, any action of the Committee with respect to the
administration of the Plan shall be taken by a
majority
vote at a meeting at which a quorum is duly constituted or unanimous written
consent of the Committee’s members.
(l)
"Common
Stock" means the common stock, par value $.01 per share, of the
Company.
(m)
"Company"
means Brookdale Senior Living Inc. (or any successor corporation).
(n)
"Consultant"
means a consultant or advisor who is a natural person, engaged to render bona
fide services to the Company or any Subsidiary.
(o)
"Covered
Officer" means at any date (i) any individual who, with respect to the previous
taxable year of the Company, was a “covered employee” of the Company within the
meaning of Section 162(m); provided, however, that the term “Covered Officer”
shall not include any such individual who is designated by the Administrator, in
its discretion, at the time of any Award or at any subsequent time, as
reasonably expected not to be such a “covered employee” with respect to the
current taxable year of the Company or with respect to the taxable year of the
Company in which any applicable award will be paid or become vested, and (ii)
any individual who is designated by the Administrator, in its discretion, at the
time of any Award or at any subsequent time, as reasonably expected to be such a
“covered employee” with respect to the current taxable year of the Company or
with respect to the taxable year of the Company in which any applicable Award
will be paid or become vested.
(p)
"Deferred
Shares" means the right to receive Shares at the end of a specified deferral
period granted pursuant to Section 9 below.
(q)
"Disability"
means that a Participant (i) as determined by the Administrator in its sole
discretion, is unable to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can be expected
to result in death or can be expected to last for a continuous period of not
less than 12 months, or (ii) is, by reason of any medically determinable
physical or mental impairment which can be expected to result in death or can be
expected to last for a continuous period of not less than 12 months, receiving
income replacement benefits for a period of not less than 3 months under an
accident and health plan covering employees of the Company or an Affiliate of
the Company.
(r)
"Eligible
Recipient" means a key employee, director or Consultant of the Company or any
Subsidiary who has been selected as an eligible participant by the
Administrator.
(s)
"Exchange
Act" shall mean the Securities Exchange Act of 1934, as amended from time to
time.
(t)
"Exercise
Price" means the per share price at which a holder of an award granted hereunder
may purchase the Shares issuable upon exercise of such award.
(u)
"Fair
Market Value" as of a particular date shall mean the fair market value of a
share of Common Stock as determined by the Administrator in its sole discretion;
provided, however, that (i) if the Common Stock is admitted to trading on a
national securities exchange, fair market value of a
share of
Common Stock on any date shall be the closing sale price reported for such share
on such exchange on such date, or, if no sale was reported on such date, the
closing sale price reported for such share on such exchange on the last day
preceding such date on which a sale was reported, (ii) if the Common Stock is
admitted to quotation on the National Association of Securities Dealers
Automated Quotation ("Nasdaq") System or other comparable quotation system and
has been designated as a National Market System ("NMS") security, fair market
value of a share of Common Stock on any date shall be the closing sale price
reported for such share on such system on such date, or, if no sale was reported
on such date, the closing sale price reported for such share on such system on
the last day preceding such date on which a sale was reported, or (iii) if the
Common Stock is admitted to quotation on the Nasdaq System but has not been
designated as an NMS security, fair market value of a share of Common Stock on
any date shall be the average of the highest bid and lowest asked prices of such
share on such date, if both bid and ask prices were reported on such date, or,
if not, on the last date preceding such date on which both bid and ask prices
were reported.
(v)
"Incentive
Stock Option" shall mean an Option that is an "incentive stock option" within
the meaning of Section 422 of the Code, or any successor provision, and that is
designated in the applicable Award Document as an Incentive Stock
Option.
(w)
"Initial
Public Offering" shall mean the date of the initial public offering of the
Company.
(x)
"Non-Employee
Director" means a director of the Company who is not (i) an officer or employee
of the Company or of any Subsidiary or (ii) the Beneficial Owner, whether
directly or indirectly, of ten percent (10%) or more of the Common
Stock.
(y)
"Nonqualified
Stock Option" means any Option that is not an Incentive Stock Option, including
any Option that provides (as of the time such Option is granted) that it shall
not be treated as an Incentive Stock Option.
(z)
"Option"
means an option to purchase shares of Common Stock granted pursuant to Section 7
hereof.
(aa)
"Other
Stock-Based Awards" means a right or other interest granted to a Participant
under the Plan that may be denominated or payable in, valued in whole or in part
by reference to, or otherwise based on or related to, Common Stock, including
but not limited to restricted stock units, dividend equivalents or performance
units, each of which may be subject to the attainment of Performance Goals or a
period of continued employment or other terms or conditions as permitted under
the Plan.
(bb)
"Participant"
means (i) any Eligible Recipient selected by the Administrator, pursuant to the
Administrator's authority in Section 3 below, to receive grants of Options,
Stock Appreciation Rights, awards of Restricted Shares, awards of unrestricted
Shares, Deferred Shares, Performance Shares, Other Stock-Based Awards,
Performance Awards, or any combination of the foregoing, and upon his or her
death, his or her successors, heirs, executors and administrators, as the case
may be, and (ii) any Non-Employee Director.
(cc)
"Performance
Award" means an award under Section 11 below.
(dd)
"Performance
Goals" means performance goals based on one or more of the following criteria:
(i) earnings including operating income, earnings before or after taxes,
earnings before or after interest, depreciation, amortization, or extraordinary
or special items or book value per share (which may exclude nonrecurring items);
(ii) pre-tax income or after-tax income; (iii) earnings per Share (basic or
diluted); (iv) operating profit; (v) revenue, revenue growth or rate of revenue
growth; (vi) return on assets (gross or net), return on investment, return on
capital, or return on equity; (vii) returns on sales or revenues; (viii)
operating expenses; (ix) stock price appreciation; (x) cash flow, free cash
flow, cash flow return on investment (discounted or otherwise), net cash
provided by operations, or cash flow in excess of cost of capital; (xi)
implementation or completion of critical projects or processes; (xii) economic
value
created;
(xiii) cumulative earnings per share growth; (xiv) operating margin or profit
margin; (xv) common stock price or total stockholder return; (xvi) cost targets,
reductions and savings, productivity and efficiencies; (xvii) strategic business
criteria, consisting of one or more objectives based on meeting specified market
penetration, geographic business expansion, customer satisfaction, employee
satisfaction, human resources management, supervision of litigation, information
technology, and goals relating to acquisitions, divestitures, joint ventures and
similar transactions, and budget comparisons; (xviii) personal professional
objectives, including any of the foregoing performance goals, the implementation
of policies and plans, the negotiation of transactions, the development of long
term business goals, formation of joint ventures, research or development
collaborations, and the completion of other corporate transactions; (xix) Cash
From Facility Operations ("CFFO"), CFFO per Share or other operating cash flow
measures; (xx) Facility Operating Income ("FOI") or FOI per Share; (xxi)
Adjusted EBITDA or Adjusted EBITDA per Share; (xxii) net operating income
("NOI") or NOI per Share; and (xxiii) any combination of, or a specified
increase in, any of the foregoing. Where applicable, the Performance
Goals may be expressed in terms of attaining a specified level of the particular
criteria or the attainment of a percentage increase or decrease in the
particular criteria, and may be applied to one or more of the Company, a
Subsidiary or Affiliate, or a division or strategic business unit of the
Company, or may be applied to the performance of the Company relative to a
market index, a group of other companies or a combination thereof, all as
determined by the Committee. The Performance Goals may include a
threshold level of performance below which
no
payment shall be made (or no vesting shall occur), levels of performance at
which specified payments shall be made (or specified vesting shall occur), and a
maximum level of performance above which no additional payment shall be made (or
at which full vesting shall occur). Each of the foregoing Performance
Goals shall be determined in accordance with generally accepted accounting
principles and shall be subject to certification by the Committee; provided that
the Committee shall have the authority to make equitable adjustments to the
Performance Goals in recognition of unusual or non-recurring events affecting
the Company or any Subsidiary or Affiliate or the financial statements of the
Company or any Subsidiary or Affiliate, in response to changes in applicable
laws or regulations, or to account for items of gain, loss or expense determined
to be extraordinary or unusual in nature or infrequent in occurrence or related
to the disposal of a segment of a business or related to a change in accounting
principles.
(ee)
"Performance
Shares" means Shares that are subject to restrictions based upon the attainment
of specified performance objectives granted pursuant to Section 9
below.
(ff)
"Permitted
Transferee" means, (a) any Affiliate (a "FIG Affiliate") of Fortress Investment
Group LLC, a Delaware limited liability company ("FIG"), (b) any managing
director, general partner, director, limited partner, officer or employee of any
FIG Affiliate, (c) any investment fund or other entity managed directly or
indirectly by FIG or any of its Affiliates (a "FIG Fund"), or (d) any general
partner, limited partner, managing member or person occupying a similar role of
or with respect to any FIG Fund.
(gg)
"Person"
shall have the meaning given in Section 3(a)(9) of the Exchange Act, as modified
and used in Sections 13(d) and 14(d) thereof, except that such term shall not
include (i) the Company or any of its subsidiaries, (ii) a trustee or other
fiduciary holding securities under an employee benefit plan of the Company or
any of its Subsidiaries, (iii) an underwriter temporarily holding securities
pursuant to an offering of such securities, or (iv) a corporation owned,
directly or indirectly, by the stockholders of the Company in substantially the
same proportions as their ownership of stock of the Company.
(hh)
"Restricted
Shares" means Shares subject to certain restrictions granted pursuant to Section
9 below.
(ii)
"Retirement"
means a termination of a Participant's employment, other than for Cause, on or
after attainment of age 65.
(jj)
"Shares"
means shares of Common Stock reserved for issuance under the Plan, as adjusted
pursuant to the Plan, and any successor (pursuant to a merger, consolidation or
other reorganization) security.
(kk)
"Stock"
means Common Stock.
(ll)
"Stock
Appreciation Right" means the right pursuant to an award granted under Section 8
below to receive an amount equal to the excess, if any, of (i) the aggregate
Fair Market Value, as of the date such Stock Appreciation Right or portion
thereof is surrendered, of the Shares covered by such right or such portion
thereof, over (ii) the aggregate Exercise Price of such right or such portion
thereof.
(mm)
"Subsidiary,"
when used to determine whether an individual service provider can be an Eligible
Recipient of an Award hereunder, means any corporation or other entity in a
chain of corporations or other entities (beginning with the Company and ending
with the Subsidiary to which the service provider provides direct services on
the date of grant of the Award) in which each corporation or other entity has a
"controlling interest" in another corporation or other entity in the chain and
as to which the Company is consequently an "eligible issuer of service recipient
stock" (within the meaning of Internal Revenue Regulation Section
1.409A-1(b)(5)(iii)(E)). An additional requirement applies when
"Subsidiary" is used to determine whether an employee can be an Eligible
Recipient of an Incentive Stock Option Award: "Subsidiary" then is also required
to be a corporation in an unbroken chain of corporations beginning with the
Company, with each of the corporations (other than the last corporation in the
unbroken chain) owning stock possessing 50% or more of the total combined voting
power of all classes of stock in one of the other corporations in the chain at
the time of the granting of the Incentive Stock Option Award.
Section
3.
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Administration.
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(a)
The Plan
shall be administered by the Administrator and shall be administered in
accordance with the requirements of Section 162(m) of the Code (but only to the
extent necessary and desirable to maintain qualification of awards under the
Plan intended to be qualified under Section 162(m) of the Code) and, to the
extent applicable, Rule 16b-3 under the Exchange Act ("Rule
16b-3").
(b)
Pursuant
to the terms of the Plan, the Administrator, subject, in the case of any
Committee, to any restrictions on the authority delegated to it by the Board,
shall have the power and authority, without limitation:
(1)
to select
those Eligible Recipients who shall be Participants;
(2)
to
determine whether and to what extent Stock Options, Stock Appreciation Rights,
awards of Restricted Shares, Deferred Shares, Performance Shares, Other
Stock-Based Awards, Performance Awards, or a combination of any of the
foregoing, are to be granted hereunder to Participants;
(3)
to
determine whether Options are intended to be Incentive Stock Options or
Nonqualified Stock Options, provided, however, that Incentive Stock Options can
only be granted to employees of the Company or any Subsidiary (within the
meaning of Sections 424(e) and (f) of the Code);
(4)
to
determine the number of Shares to be covered by each award granted
hereunder;
(5)
to
determine the terms and conditions, subject to the requirements of Section 409A
of the Code and not inconsistent with the terms of the Plan, of each Award
granted hereunder (including, but not limited to, (i) the restrictions
applicable to awards of Restricted Shares or Deferred Shares and the conditions
under which restrictions applicable to such awards of Restricted Shares or
Deferred Shares shall lapse, (ii) the performance goals and periods applicable
to awards of Restricted Shares, Deferred Shares, Performance Shares and
Performance Awards, provided that performance goals shall be determined no later
than such time as is required to ensure that any underlying Award which is
intended to comply with the requirements of Section 162(m) of the Code so
complies, (iii) the Exercise
Price,
(iv) the vesting schedule applicable to Awards, (v) the number of Shares subject
to Awards and (vi) any amendments to the terms and conditions of outstanding
Awards, including, but not limited to reducing the Exercise Price of such
Awards, extending the exercise period of such Awards and accelerating the
vesting schedule of such Awards);
(6)
to
determine the terms and conditions, subject to the requirements of Section 409A
of the Code and not inconsistent with the terms of the Plan, which shall govern
all written instruments evidencing Stock Options, Stock Appreciation Rights,
awards of Restricted Shares, Deferred Shares or Performance Shares, Performance
Awards, or any combination of the foregoing granted hereunder;
(7)
to
determine the Fair Market Value;
(8)
to
determine the duration and purpose of leaves of absence which may be granted to
a Participant without constituting termination of their employment for purposes
of Nonqualified Stock Options and Incentive Stock Options granted under the
Plan;
(9)
to adopt,
alter and repeal such administrative rules, guidelines and practices governing
the Plan as it shall from time to time deem advisable; and
(10)
to
construe and interpret the terms and provisions of the Plan and any award issued
under the Plan (and any Award Document relating thereto), and to otherwise
supervise the administration of the Plan and to exercise all powers and
authorities either specifically granted under the Plan or necessary and
advisable in the administration of the Plan.
(c)
Notwithstanding
paragraph (b) of this Section 3, (i) neither the Board, the Committee nor their
respective delegates shall have the authority to reprice (or cancel and regrant)
any Option or, if applicable, other Award at a lower exercise, base or purchase
price without first obtaining the approval of the
Company's
stockholders, and (ii) neither the Board, the Committee nor their respective
delegates shall have the authority to take any action that would cause any Award
granted under the Plan to fail to comply with Section 409A of the Code and any
regulations or guidance promulgated thereunder.
(d)
All
decisions made by the Administrator pursuant to the provisions of the Plan shall
be final, conclusive and binding on all persons, including the Company and the
Participants. No member of the Board or the Committee, nor any
officer or employee of the Company or any Subsidiary acting on behalf of the
Board or the Committee, shall be personally liable for any action, omission,
determination, or interpretation taken or made in good faith with respect to the
Plan, and all members of the Board or the Committee and each and any officer or
employee of the Company and of any Subsidiary acting on their behalf shall, to
the maximum extent permitted by law, be fully indemnified and protected by the
Company in respect of any such action, omission, determination or
interpretation.
Section
4.
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Shares
Reserved for Issuance Under the
Plan.
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Subject
to Section 5 hereof, the maximum number of shares of Common Stock that may be
delivered pursuant to Awards granted under the Plan is 10,500,000 shares, as
increased on the first day of each fiscal year beginning in calendar year 2006
by a number of shares equal to the lesser of (1) 400,000 shares of Common Stock
and (2) 2% of the number of outstanding shares of Common Stock on the last day
of the immediately preceding fiscal year. The share reserve of
10,500,000 shares (to which the annual increases shall apply) includes a
2,500,000 share increase authorized by the Board on May 12, 2006 and approved by
the Company's stockholders on May 12, 2006 and a 6,000,000 share increase
authorized by the Board on April 8, 2009 and approved by the Company’s
stockholders on June 23, 2009. All such shares of Common Stock that
are available for the grant of Awards under the Plan may be granted as Incentive
Stock Options. From and after such time as the Plan is subject to
Code Section 162(m), the aggregate Awards granted during any fiscal year to any
single individual who is likely to be a "covered employee" as defined under Code
Section 162(m) shall not exceed (i) 500,000 shares subject to Options or Stock
Appreciation Rights or (ii) 500,000 shares subject to Restricted Stock, Deferred
Shares, unrestricted
Shares or
Other Stock-Based Awards. Determinations made in respect of the
limitation set forth in the preceding sentence shall be made in a manner
consistent with Section 162(m) of the Code.
Shares issued under the Plan may, in
whole or in part, be authorized but unissued Shares or Shares that shall have
been or may be reacquired by the Company in the open market, in private
transactions or otherwise. If any Shares subject to an Award are
forfeited, cancelled, exchanged or surrendered or if an Award otherwise
terminates or expires without a distribution of shares to the Participant, the
Shares of stock with respect to such Award shall, to the extent of any such
forfeiture, cancellation, exchange, surrender, termination or expiration, again
be available for Awards under the Plan.
Section
5.
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Equitable
Adjustments.
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In the event of any Change in
Capitalization, an equitable substitution or proportionate adjustment shall be
made, in each case, as may be determined by the Administrator, in its sole
discretion, in (i) the aggregate number of shares of Common Stock reserved for
issuance under the Plan and the maximum number of Shares that may be subject to
Awards granted to any Participant in any calendar or fiscal year, (ii) the kind,
number and Exercise Price relating to outstanding Options and Stock Appreciation
Rights granted under the Plan, (iii) Performance Goals and (iv) the kind, number
and purchase price of Shares subject to outstanding awards of Restricted Shares,
Deferred Shares, Performance Shares, Other Stock-Based Awards or Performance
Awards granted under the Plan, in each case as may be determined by the
Administrator, in its sole discretion, provided, however, that any fractional
shares resulting from the adjustment shall be eliminated. Such other
equitable substitutions or adjustments shall be made as may be determined by the
Administrator, in its sole discretion. Without limiting the generality of the
foregoing, in connection with a Change in Capitalization, the Administrator may
provide, in its sole discretion, for the cancellation of any outstanding award
granted hereunder in exchange for payment in cash or other property of the
aggregate Fair Market Value of the Shares covered by such award, reduced by the
aggregate Exercise Price or purchase price thereof, if
any. Notwithstanding the foregoing, with respect to Incentive Stock
Options, any adjustment shall be made in accordance with the provisions of
Section 424(h) of the Code and any regulations or guidance promulgated
thereunder, and provided further that no such adjustment shall cause any Award
hereunder which is or becomes subject to Section 409A of the Code to fail to
comply with the
requirements
of such Section. The Administrator’s determinations pursuant to this
Section 5 shall be final, binding and conclusive.
The Participants under the Plan shall
be selected from time to time by the Administrator, in its sole discretion, from
among Eligible Recipients; provided, however, that Incentive Stock Options may
only be granted to employees of the Company or any
Subsidiary. Non-Employee Directors shall also be eligible for Awards
under the Plan, as determined by the Administrator from time to
time.
(a)
General. The
grant of an Option shall be evidenced by an Award Document, containing such
terms and conditions as the Administrator shall determine, in its discretion,
which Award Document shall set forth, among other things, the Exercise Price of
the Option, the term of the Option and provisions regarding exercisability of
the Option granted thereunder. Each Option shall be clearly
identified in the applicable Award Document as either an Incentive Stock Option
or a Nonqualified Stock Option. The provisions of each Option need
not be the same with respect to each Participant. More than one
Option may be granted to the same Participant and be outstanding concurrently
hereunder. Options granted under the Plan shall be subject to the
terms and conditions set forth in this Section 7 and shall contain such
additional terms and conditions, not inconsistent with the terms of the Plan, as
the Administrator shall deem desirable and set forth in the applicable Award
Document.
(b)
Exercise
Price. The Exercise Price of Shares purchasable under an Option shall
be determined by the Administrator in its sole discretion at the time of grant,
provided that the Exercise Price of an Incentive Stock Option or any Option
intended to qualify as performance-based
compensation
under Section 162(m) of the Code shall not be less than 100% of the Fair Market
Value of the Stock on the date of grant. If a Participant owns or is
deemed to own (by reason of the attribution rules applicable under Section
424(d) of the Code) more than 10% of the combined voting power of all classes of
stock of the Company or of any Subsidiary and an Incentive Stock Option is
granted to such Participant, the option price of such Incentive Stock Option (to
the extent required at the time of grant by the Code) shall be no less than 110%
of the Fair Market Value on the date such Incentive Stock Option is
granted.
(c)
Option
Term. The maximum term of each Option shall be fixed by the
Administrator, but no Option shall be exercisable more than ten years after the
date such Option is granted, except that Incentive Stock Options granted to a
Participant who owns or is deemed to own (by reason of the attribution rules
applicable under Section 424(d) of the Code) more than 10% of the combined
voting power of all classes of stock of the Company or of any Subsidiary, shall
not be exercisable more than five years after the date such Option is
granted. Each Option's term is subject to earlier expiration pursuant
to the applicable provisions in the Plan and the Award
Document. Notwithstanding the foregoing, the Administrator shall have
the authority to accelerate the exercisability of any outstanding Option at such
time and under such circumstances as it, in its sole discretion, deems
appropriate.
(d)
Exercisability. Each
Option shall be exercisable at such time or times and subject to such terms and
conditions, including the attainment of preestablished corporate performance
goals, as shall be determined by the Administrator in the applicable Award
Document. The Administrator may also provide that any Option shall be
exercisable only in installments, and the Administrator may waive such
installment exercise provisions at any time, in whole or in part, based on such
factors as the Administrator may determine in its sole
discretion. Notwithstanding anything to the contrary contained
herein, an Option may not be exercised for a fraction of a share.
(e)
Method of
Exercise. Options may be exercised in whole or in part by giving
written notice of exercise to the Company specifying the number of Shares to be
purchased, accompanied by payment in full of the aggregate Exercise Price of the
Shares so purchased in cash or its equivalent, as determined by the
Administrator. As determined by the Administrator, in its sole
discretion, with respect to any Option or category of Options, payment in whole
or in part may also be made (i) by means of consideration received under any
cashless exercise procedure approved by the Administrator (including the
withholding of Shares otherwise issuable upon exercise), (ii) in the form of
unrestricted Shares already owned by the Participant which, (x) in the case of
unrestricted
Shares acquired upon exercise of an Option, have been owned by the Participant
for more than six months on the date of surrender, and (y) have a Fair Market
Value on the date of surrender equal to the aggregate option price of the Shares
as to which such Option shall be exercised, (iii) any other form of
consideration approved by the Administrator and permitted by applicable law or
(iv) any combination of the foregoing.
(f)
Limitations
on Incentive Stock Options. To the extent that the aggregate Fair
Market Value with respect to which Incentive Stock Options are exercisable for
the first time by a Participant during any calendar year under the Plan and any
other stock option plan of the Company shall exceed $100,000, the portion of
such Incentive Stock Options in excess of $100,000 shall be treated as
Nonqualified Stock Options. Such Fair Market Value shall be
determined as of the date on which each such Incentive Stock Option is
granted. No Incentive Stock Option may be granted to an individual
if, at the time of the proposed grant, such individual owns (or is deemed to own
under the Code) stock possessing more than 10% of the total combined voting
power of all classes of stock of the Company or of any Subsidiary unless (i) the
Exercise Price of such Incentive Stock Option is at least 110% of the Fair
Market Value of a share of Common Stock at the time such Incentive Stock Option
is granted and (ii) such Incentive Stock Option is not exercisable after the
expiration of five years from the date such Incentive Stock Option is
granted.
(g)
Rights as
Stockholder. A Participant shall have no rights to dividends or any
other rights of a stockholder with respect to the Shares subject to an Option
until the Participant has given written notice of exercise, has paid in full for
such Shares, has satisfied the requirements of Section 15 hereof and, if
requested, has given the representation described in paragraph (b) of Section 16
hereof.
(h)
Transfers
of Options. Except as otherwise determined by the Administrator, and in any
event in the case of an Incentive Stock Option, no Option granted under the Plan
shall be transferable by a Participant other than by will or the laws of descent
and distribution. Unless otherwise determined by the Administrator in
accord with the provisions of the immediately preceding sentence, an Option may
be exercised, during the lifetime of the Participant, only by the Participant
or, during the period the Participant is under a legal disability, by the
Participant's guardian or legal representative. The Administrator
may, in its sole discretion, subject to applicable law, permit the gratuitous
transfer during a Participant’s lifetime of a Nonqualified Stock Option, (i) by
gift to a member of the Participant’s immediate family, (ii) by transfer by
instrument to a trust for the benefit of such immediate family members, or (iii)
to a partnership or limited liability company in which such family members are
the only partners or members; provided, however, that, in addition to such other
terms and conditions as the Administrator may determine in connection with any
such transfer, no transferee may further assign, sell, hypothecate or otherwise
transfer the transferred Option, in whole or in part, other than by will or by
operation of the laws of descent and distribution. Each permitted
transferee shall agree to be bound by the provisions of this Plan and the
applicable Award Document.
(i)
Termination
of Employment or Service.
(1)
Unless
the applicable Award Document provides otherwise, in the event that the
employment or service of a Participant with the Company or any Subsidiary shall
terminate for any reason other than Cause, Retirement, Disability, or death, (A)
Options granted to such Participant, to the extent that they are exercisable at
the time of such termination, shall remain exercisable until the date that is 90
days after such termination, on which date they shall expire, and (B) Options
granted to such Participant, to the extent that they were not exercisable at the
time of such termination, shall expire at the close of business on the date of
such termination. The 90-day period described in this Section 7(i)(1)
shall be extended to one year after the date of such termination in the event of
the Participant's death during such 90-day period. Notwithstanding
the foregoing, no Option shall be exercisable after the expiration of its
term.
(2)
Unless
the applicable Award Document provides otherwise, in the event that the
employment or service of a Participant with the Company or any Subsidiary shall
terminate on account of the Retirement, Disability, or death of the Participant,
(A) Options granted to such Participant, to the extent that they were
exercisable at the time of such termination, shall remain exercisable until the
date that is one year after such termination, on which date they shall expire
and (B) Options granted to such Participant, to the extent that they were not
exercisable at the time of such termination, shall expire at the close of
business on the date of such termination. Notwithstanding the
foregoing, no Option shall be exercisable after the expiration of its
term.
(3)
In the
event of the termination of a Participant's employment or service for Cause, all
outstanding Options granted to such Participant shall expire at the commencement
of business on the date of such termination.
(j)
Other
Change in Employment Status. An Option shall be affected, both with
regard to vesting schedule and termination, by leaves of absence, changes from
full-time to part-time employment, partial disability or other changes in the
employment status of an Participant, in the discretion of the
Administrator. The Administrator shall follow any applicable
provisions and regulations with respect to the treatment of Incentive Stock
Options and the written policies of the Company (if any), including such rules,
guidelines and practices as may be adopted pursuant to Section 3 hereof, as they
may be in effect from time to time, with regard to such matters.
Section
8.
|
Stock
Appreciation Rights.
|
(a)
General. Stock
Appreciation Rights may be granted either alone ("Free Standing Rights") or in
conjunction with all or part of any Stock Option granted under the Plan
("Related Rights"), provided that, in each case, the Common Stock underlying the
Stock Appreciation Right is traded on an "established securities market" within
the meaning of Section 409A of the Code. In the case of a
Nonqualified
Stock Option, Related Rights may be granted either at or after the time of the
grant of such Stock Option. In the case of an Incentive Stock Option,
Related Rights may be granted only at the time of the grant of the Incentive
Stock Option. The Administrator shall determine the Eligible
Recipients to whom, and the time or times at which, grants of Stock Appreciation
Rights shall be made; the number of Shares to be awarded, the price per share,
and all other conditions of Stock Appreciation
Rights. Notwithstanding the foregoing, no Related Right may be
granted for more shares than are subject to the Stock Option to which it relates
and any Stock Appreciation Right must be granted with an Exercise Price not less
than the Fair Market Value of Common Stock on the date of grant. The
provisions of Stock Appreciation Rights need not be the same with respect to
each Participant. Stock Appreciation Rights granted under the Plan
shall be subject to the following terms and conditions set forth in this Section
8 and shall contain such additional terms and conditions, not inconsistent with
the terms of the Plan, as the Administrator shall deem desirable, as set forth
in the applicable Award Document.
(b)
Awards. Participants
who are granted Stock Appreciation Rights shall have no rights as stockholders
of the Company with respect to the grant or exercise of such Stock Appreciation
Rights.
(c)
Exercisability.
(1)
Stock
Appreciation Rights that are Free Standing Rights ("Free Standing Stock
Appreciation Rights") shall be exercisable at such time or times and subject to
such terms and conditions as shall be determined by the Administrator at or
after grant.
(2)
Stock
Appreciation Rights that are Related Rights ("Related Stock Appreciation
Rights") shall be exercisable only at such time or times and to the extent that
the Stock Options to which they relate shall be exercisable in accordance with
the provisions of Section 7 above and this Section 8 of the Plan; provided,
however, that a Related Stock Appreciation Right granted in connection with an
Incentive Stock Option shall be exercisable only if and when the Fair Market
Value of the Common Stock subject to the Incentive Stock Option exceeds the
Exercise Price of such Option.
(d)
Payment
Upon Exercise.
(1)
Upon the
exercise of a Free Standing Stock Appreciation Right, the Participant shall be
entitled to receive up to, but not more than, that number of Shares equal in
value to the excess of the Fair Market Value as of the date of exercise over the
price per share specified in the Free Standing Stock Appreciation Right (which
price shall be no less than 100% of the Fair Market Value on the date of grant)
multiplied by the number of Shares in respect of which the Free Standing Stock
Appreciation Right is being exercised, with the Administrator having the right
to determine the form of payment.
(2)
A Related
Right may be exercised by a Participant by surrendering the applicable portion
of the related Option. Upon such exercise and surrender, the
Participant shall be entitled to receive up to, but not more than, that number
of Shares equal in value to the excess of the Fair Market Value as of the date
of
exercise
over the Exercise Price specified in the related Option (which price shall be no
less than 100% of the Fair Market Value on the date of grant) multiplied by the
number of Shares in respect of which the Related Stock Appreciation Right is
being exercised, with the Administrator having the right to determine the form
of payment. Options which have been so surrendered, in whole or in
part, shall no longer be exercisable to the extent the Related Rights have been
so exercised.
(3)
Notwithstanding
the foregoing, the Administrator may determine to settle the exercise of a Stock
Appreciation Right in cash (or in any combination of Shares and cash) to the
extent that such settlement does not violate Section 409A of the
Code.
(e)
Non-Transferability.
(1)
Free
Standing Stock Appreciation Rights shall be transferable only when and to the
extent that an Option would be transferable under Section 7 of the
Plan.
(2)
Related
Stock Appreciation Rights shall be transferable only when and to the extent that
the underlying Option would be transferable under Section 7 of the
Plan.
(f)
Termination
of Employment or Service.
(1)
In the
event of the termination of employment or service with the Company or any
Subsidiary of a Participant who has been granted one or more Free Standing Stock
Appreciation Rights, such rights shall be exercisable at such time or times and
subject to such terms and conditions as shall be determined by the Administrator
at or after grant.
(2)
In the
event of the termination of employment or service with the Company or any
Subsidiary of a Participant who has been granted one or more Related Stock
Appreciation Rights, such rights shall be exercisable at such time or times and
subject to such terms and conditions as set forth in the related Stock
Options.
(g)
Term.
(1)
The term
of each Free Standing Stock Appreciation Right shall be fixed by the
Administrator, but no Free Standing Stock Appreciation Right shall be
exercisable more than ten years after the date such right is
granted.
(2)
The term
of each Related Stock Appreciation Right shall be the term of the Stock Option
to which it relates, but no Related Stock Appreciation Right shall be
exercisable more than ten years after the date such right is
granted.
Section
9.
|
Restricted
Shares, Deferred Shares and Performance
Shares.
|
(a)
General. Awards
of Restricted Shares, Deferred Shares or Performance Shares may be granted
either alone or in addition to other awards granted under the
Plan. The Administrator shall determine the Eligible Recipients to
whom, and the time or times at which, awards of Restricted Shares, Deferred
Shares or Performance Shares shall be made; the number of Shares to be awarded;
the price, if any, to be paid by the Participant for the acquisition of
Restricted Shares, Deferred Shares or Performance Shares; the Restricted Period
(as defined in paragraph (b) of this Section 9), if any, applicable to awards of
Restricted Shares or Deferred Shares; the performance objectives applicable to
awards of Restricted Shares, Deferred Shares or Performance Shares; and all
other conditions of the awards of Restricted Shares, Deferred Shares and
Performance Shares. The Administrator may also condition the grant of
the award of Restricted Shares, Deferred Shares or Performance Shares upon the
exercise of Options, or upon such other criteria as the Administrator may
determine, in its sole discretion. If the restrictions, performance
objectives and/or conditions established by the Administrator are not attained,
a Participant shall forfeit his or her shares of Restricted Shares, Deferred
Shares or Performance Shares. The provisions of the awards of Restricted Shares,
Deferred Shares or Performance Shares need not be the same with respect to each
Participant.
(b)
Restrictions
and Conditions. The awards of Restricted Shares, Deferred Shares and
Performance Shares granted pursuant to this Section 9 shall be subject to the
following restrictions and conditions and any additional restrictions or
conditions as determined by the Administrator at the time of grant or
thereafter:
(1)
Subject
to the provisions of the Plan and the Restricted Shares Award Document, Deferred
Shares Award Document or Performance Shares Award Document, as appropriate,
governing any such award, during such period as may be set by the Administrator
commencing on the date
of grant
(the "Restricted Period"), the Participant shall not be permitted to sell,
transfer, pledge or assign shares of Restricted Shares, Deferred Shares or
Performance Shares awarded under the Plan; provided, however, that the
Administrator may, in its sole discretion, provide for the lapse of such
restrictions in installments and may accelerate or waive such restrictions in
whole or in part based on such factors and such circumstances as the
Administrator may determine, in its sole discretion, including, but not limited
to, the attainment of certain performance related goals, the Participant's
termination of employment or service as a director or Consultant to the Company
or any Subsidiary, the Participant's death or
Disability. Notwithstanding the foregoing, upon a Change in Control,
the outstanding Awards shall be subject to Section 12 hereof.
(2)
Except as
may be otherwise provided in a Restricted Share Award Document or Performance
Share Award Document, the Participant shall have no right with respect to
Restricted Shares or Performance Shares to vote as a stockholder of the Company
during the Restricted Period or to receive dividends which are declared with
respect to Restricted Shares or Performance Shares with a record date during the
Restricted Period. Unless otherwise provided in the applicable Award
Document, any Shares receivable with respect to the Restricted Shares or
Performance Shares pursuant to an equitable adjustment under Section 5 hereof in
connection with a Change in Capitalization shall be subject to the same
restrictions as the Restricted Shares or Performance Shares. The
Participant shall generally not have the rights of a stockholder with respect to
awards of Deferred Shares during the Restricted Period; provided, however, that,
subject to the requirements of Section 409A of the Code, the Deferred Shares
Award Document may provide the Participant with the right to receive dividend
equivalent payments with respect to the Deferred Shares subject to the Award
during the Restricted Period (either currently or upon the vesting of the
Deferred Shares). Unless otherwise provided in an Award Document or
except as otherwise provided in the Plan, upon the vesting of a Deferred Shares
Award (or any portion thereof), there shall be delivered to the Participant, as
soon as practicable following the date on which such Award (or any portion
thereof) vests (but in any event within such period as is required to avoid the
imposition of a tax under Section 409A of the Code), the number of Shares equal
to the number of Deferred Shares becoming so vested.
(3)
The
rights of Participants granted awards of Restricted Shares, Deferred Shares or
Performance Shares upon termination of employment or upon termination of service
as a director or Consultant to the Company or to any Subsidiary for any reason
during the Restricted Period shall be set forth in the Award
Document.
Section
10.
|
Other
Stock-Based Awards.
|
(a)
The
Administrator is authorized to grant Awards to Participants in the form of Other
Stock-Based Awards, as deemed by the Administrator to be consistent with the
purposes of the Plan and as evidenced by an Award Document. The
Administrator shall determine the terms and conditions of such Awards,
consistent with the terms of the Plan, at the date of grant or thereafter,
including any Performance Goals and performance periods. Common Stock
or other securities or property delivered pursuant to an Award in the nature of
a purchase right granted under this Section 10 shall be purchased for such
consideration, paid for at such times, by such methods, and in such forms,
including, without limitation, Shares, other Awards, notes or other property, as
the Administrator shall determine, subject to any required corporate
action.
(b)
To the
extent that the Plan is subject to Section 162(m) of the Code, no payment shall
be made to a "covered employee" (within the meaning of Section 162(m) of the
Code) prior to the certification by the Committee that the Performance Goals
have been attained. The Committee may establish such other rules
applicable to the Other Stock-Based Awards, provided, however, that in the event
that the Plan is subject to Section 162(m) of the Code, such rules, as they
apply to Awards intended to comply with Section 162(m) of the Code, shall be in
compliance with Section 162(m) of the Code.
Section
11.
|
Performance
Awards.
|
(a) General.
The Administrator shall have sole and complete authority to determine the
Participants who shall receive a Performance Award, which shall consist of a
right that is (i) denominated in cash or Common Stock, (ii) valued, as
determined by the Administrator, in accordance with, or subject to, the
achievement of such performance goals during such performance periods as the
Administrator shall establish, and (iii) payable at such time and in such form
as the Administrator shall determine. All Performance Awards shall be subject to
the terms and provisions of this Section 11.
(b) Restrictions
and Conditions. Subject to the terms of this Plan and any applicable
Award Document, the Administrator shall determine the performance goals to be
achieved during any performance period, the length of any performance period,
the amount of any Performance Award and the amount and kind of any payment or
transfer to be made pursuant to any Performance Award, and may amend specific
provisions of the Performance Award; provided, however, that such amendment may
not adversely affect existing Performance Awards made within a performance
period commencing prior to implementation of the amendment.
(c) Payment
of Performance Awards. Performance Awards may be paid in a lump sum
or in installments following the close of the performance period or, in
accordance with the procedures established by the Administrator, on a deferred
basis. Termination of employment prior to the end of any performance period will
result in the forfeiture of the Performance Award for that period, and no
payments will be made with respect to that period, except that the Administrator
at or after grant may provide that certain Performance Awards may be paid upon
termination by the Company other than for cause or upon termination due to death
or Disability. A participant’s rights to any Performance Award may not be sold,
assigned, transferred, pledged, hypothecated or otherwise encumbered or disposed
of in any manner, except by will or the laws of descent and distribution, and/or
except as the Administrator may determine at or after grant.
(d) Performance
Awards to Covered Officers. Notwithstanding anything in this Plan to
the contrary, Performance Awards to Covered Officers shall also be subject to
the terms and provisions of this subsection (d).
(1) Performance
Measures. The Committee may grant Performance Awards to Covered
Officers based solely upon the attainment of performance targets related to one
or more Performance Goals selected by the Committee.
(2) Maximum
Awards. With respect to any Covered Officer, the maximum annual
number of Shares in respect of which all Performance Awards may be granted under
Section 11 of the Plan is 500,000 and the maximum value of all Performance
Awards settled in cash that may be granted under Section 11 of the Plan in any
fiscal year is $2,000,000.
(3) Other
Requirements. To the extent necessary to comply with Section
162(m), with respect to grants of Performance Awards, no later than 90 days
following the commencement of each performance period (or such other time as may
be required or permitted by Section 162(m) of the Code), the Committee shall, in
writing, (1) select the Performance Goal or Performance Goals applicable to the
performance period, (2) establish the various targets and bonus amounts which
may be earned for such performance period, and (3) specify the relationship
between Performance Goals and targets and the amounts to be earned by each
Covered Officer for such performance period. Following the completion of each
performance period, the Committee shall certify in writing whether the
applicable performance targets have been achieved and the amounts, if any,
payable to Covered Officers for such performance period. In determining the
amount earned by a Covered Officer for a given performance period, subject to
any applicable Award Document, the Committee shall have the right to reduce (but
not increase) the amount payable at a given level of performance to take into
account additional factors that the Committee may deem relevant to the
assessment of individual or corporate performance for the performance
period.
Section
12.
|
Accelerated
Vesting In Connection With a Change in
Control.
|
In the
event of a Change in Control, any outstanding Option that is not assumed or
continued, or an equivalent option or right is not substituted therefor pursuant
to the Change in Control transaction's governing document, shall become fully
vested and exercisable "immediately prior to" the effective date of such Change
in
Control
and shall expire upon the effective date of such Change in
Control. For purposes of this Section 12, "immediately prior to"
shall mean sufficiently in advance of the Change in Control transaction such
that there will be time for each affected Participant to exercise his or her
Option and participate in the Change in Control transaction in the same manner
as all other holders of Common Stock. If an Option becomes fully
vested and exercisable immediately prior to a Change in Control, the
Administrator shall notify the affected Participant in writing or electronically
that the Option has become fully vested and exercisable, and that the Option
will terminate upon the Change in Control.
Unless
otherwise determined by the Administrator and evidenced in an Award Document, in
the event that (i) a Change in Control occurs and (ii) the Participant's
employment is terminated by the Company, its successor or affiliate thereof
without Cause on or after the effective date of the Change in Control but prior
to 12 months following such Change in Control, then:
(a)
any
unvested or unexercisable portion of any Award carrying a right to exercise
shall become vested and exercisable with respect to 50% of the Shares covered by
such unvested portion of such Award; and
(b)
the
restrictions, deferral limitations, payment conditions and forfeiture conditions
applicable to any other Award granted under the Plan shall lapse with respect to
50% of the Shares covered thereby and 50% of such unvested Awards shall be
deemed fully vested and performance conditions imposed with respect to such
Awards shall be deemed to be fully achieved with respect to 50% of the Shares
covered thereby.
Section
13.
|
Amendment
and Termination.
|
The Board may amend, alter or terminate
the Plan, but no amendment, alteration, or termination shall be made that would
impair the rights of a Participant under any award theretofore granted without
such Participant's consent. Unless the Board determines otherwise,
the Board shall obtain approval of the Company's stockholders for any amendment
that would require such approval in order to satisfy the requirements of
Sections 162(m) or 422 of the Code, any rules of the stock exchange on which the
Common Stock is traded or other applicable law. If any Award is
subject to Section 409A of the Code and fails to comply with the requirements of
Section 409A of the Code, the Administrator reserves the right to (but is not
obligated to) amend, modify or supplement such Award in order to cause it to
either not be subject to Section 409A of the Code or to comply with the
applicable provisions of Section 409A of the Code. The Administrator
may amend the terms of any Award theretofore granted, prospectively or
retroactively, but, subject to Section 5 of the Plan, no such amendment shall
impair the rights of any Participant without his or her consent.
Section
14.
|
Unfunded
Status of Plan.
|
The Plan is intended to constitute an
"unfunded" plan for incentive compensation. With respect to any
payments not yet made to a Participant by the Company, nothing contained herein
shall give any such Participant any rights that are greater than those of a
general creditor of the Company.
Section
15.
|
Withholding
Taxes.
|
Each Participant shall, no later than
the date as of which the value of an Award first becomes includible in the gross
income of the Participant for federal and/or state income tax purposes, pay to
the Company, or make arrangements satisfactory to the Administrator regarding
payment of, any federal, state, or local taxes of any kind required by law to be
withheld with respect to the Award. The obligations of the Company
under the Plan shall be conditional on the making of such payments or
arrangements, and
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. Whenever cash is to be paid pursuant to an award granted
hereunder, the Company shall have the right to deduct therefrom an amount
sufficient to satisfy any federal, state and local withholding tax requirements
related thereto. Whenever Shares are to be delivered pursuant to an
award, the Company shall have the right to require the Participant to remit to
the Company in cash an amount sufficient to satisfy any federal, state and local
withholding tax requirements related thereto. With the approval of
the Administrator, a Participant may satisfy the foregoing requirement by
electing to have the Company withhold from delivery of Shares or by delivering
already owned unrestricted shares of Common Stock, in each case, having a value
equal to the minimum amount of tax required to
be
withheld. Such shares shall be valued at their Fair Market Value on
the date as of which the amount of tax to be withheld is
determined. Fractional share amounts shall be settled in
cash. Such an election may be made with respect to all or any portion
of the Shares to be delivered pursuant to an award. The Company may
also use any other method of obtaining the necessary payment or proceeds, as
permitted by law, to satisfy its withholding obligation with respect to any
Option or other Award.
Section
16.
|
General
Provisions.
|
(a)
Shares
shall not be issued pursuant to the exercise of any Option granted hereunder
unless the exercise of such Option and the issuance and delivery of such Shares
pursuant thereto shall comply with all relevant provisions of law, including,
without limitation, the Securities Act of 1933, as amended, the Exchange Act and
the requirements of any stock exchange upon which the Common Stock may then be
listed, and shall be further subject to the approval of counsel for the Company
with respect to such compliance.
(b)
The
Administrator may require each person acquiring Shares to represent to and agree
with the Company in writing that such person is acquiring the Shares without a
view to distribution thereof. The certificates for such Shares may
include any legend that the Administrator deems appropriate to reflect any
restrictions on transfer which the Administrator determines, in its sole
discretion, arise under applicable securities laws or are otherwise
applicable.
(c)
All
certificates for Shares delivered under the Plan shall be subject to such
stop-transfer orders and other restrictions as the Administrator may deem
advisable under the rules, regulations, and other requirements of the Securities
and Exchange Commission, any stock exchange upon which the Common Stock may then
be listed, and any applicable federal or state securities law, and the
Administrator may cause a legend or legends to be placed on any such
certificates to make appropriate reference to such restrictions.
(d)
The
Administrator may require a Participant receiving Shares pursuant to the Plan,
as a condition precedent to receipt of such Shares, to enter into a stockholder
agreement or "lock-up" agreement in such form as the Committee shall determine
is necessary or desirable to further the Company's interests.
(e)
The
adoption of the Plan shall not confer upon any Eligible Recipient any right to
continued employment or service with the Company or any Subsidiary, as the case
may be, nor shall it interfere in any way with the right of the Company or any
Subsidiary to terminate the employment or service of any of its Eligible
Recipients at any time.
Section
17.
|
Effective
Date.
|
The Plan
became effective upon adoption by the Board on October 14, 2005 (the "Effective
Date"), and approval by stockholders of the Company on October 14,
2005.
Section
18.
|
Term
of Plan.
|
No award shall be granted pursuant to
the Plan on or after the tenth anniversary of the Effective Date, but awards
theretofore granted may extend beyond that date.
Section
19.
|
Section
409A.
|
This Plan is intended to comply and
shall be administered in a manner that is intended to comply with Section 409A
of the Code and shall be construed and interpreted in accordance with such
intent. To the extent that an Award, issuance and/or payment is subject to
Section 409A of the Code, it shall be awarded and/or issued or paid in a manner
that will comply with Section 409A of the Code, including proposed, temporary or
final regulations or any other guidance issued by the Secretary of the Treasury
and the Internal Revenue Service with respect thereto. Any provision
of this Plan that would cause an Award, issuance and/or payment to fail to
satisfy Section 409A of the Code shall have no force and effect until amended to
comply with Code Section 409A (which amendment may be retroactive to the extent
permitted by applicable law).
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