Exhibit 10-D
CHIQUITA BRANDS INTERNATIONAL, INC.
1986 STOCK OPTION AND INCENTIVE PLAN
(as amended and restated March 25, 1992, further
amended by the Board of Directors on February 9, 1994,
and on December 14, 1994)
CHIQUITA BRANDS INTERNATIONAL, INC.
1986 STOCK OPTION AND INCENTIVE PLAN
T A B L E O F C O N T E N T S
I. OBJECTIVES 1
II. DEFINITIONS 1
III. ADMINISTRATION 3
3.1 The Committee 3
3.2 Awards 3
3.3 Guidelines 4
3.4 Delegation of Authority 4
3.5 Decisions Final 4
IV. SHARES SUBJECT TO PLAN 4
4.1 Shares 4
4.2 Adjustment Provisions 4
4.3 Dissolution or Liquidation 5
V. EFFECTIVE DATE OF AMENDED PLAN 5
VI. STOCK OPTIONS 5
6.1 Grants 5
6.2 Incentive Stock Options 5
6.3 Replacement Options 6
6.4 Terms of Options 6
6.5 Award of Options to Non-Employee Directors 7
VII. STOCK APPRECIATION RIGHTS 8
7.1 Grant 8
7.2 Term 8
7.3 Exercise 8
7.4 Payment 8
7.5 Non-Transferability and Termination 9
VIII. RESTRICTED AND UNRESTRICTED STOCK AWARDS 9
8.1 Grants of Restricted Stock Awards 9
8.2 Terms and Conditions of Restricted Awards 9
8.3 Unrestricted Stock Awards 9
IX. PERFORMANCE AWARDS 9
9.1 Performance Awards 9
9.2 Terms and Conditions of Performance Awards 10
X. NON-TRANSFERABILITY OF AWARDS 10
XI. TERMINATION OF AWARDS 10
11.1 Termination of Awards 10
11.2 Acceleration of Vesting and
Extension of Exercise Period
Upon Termination 11
XII. TERMINATION OR AMENDMENT OF THIS PLAN 11
12.1 Termination or Amendment 11
XIII. GENERAL PROVISIONS 12
13.1 No Right to Continued Employment 12
13.2 Other Plans 12
13.3 Withholding of Taxes 12
13.4 Reimbursement of Taxes 12
13.5 Governing Law 12
13.6 Liability 12
CHIQUITA BRANDS INTERNATIONAL, INC.
1986 STOCK OPTION AND INCENTIVE PLAN
(as amended and restated March 25, 1992, further
amended by the Board of Directors on February 9, 1994
and on December 14, 1994)
SECTION I.
OBJECTIVES
The objectives of this 1986 Stock Option and Incentive
Plan (the "Plan"), as amended and restated, are to enable
Chiquita Brands International, Inc. (the "Company") to compete
successfully in retaining and attracting key employees of
outstanding ability, to stimulate the efforts of such
employees toward the Company's objectives and to encourage the
identification of their interests with those of the Company's
shareholders.
SECTION II.
DEFINITIONS
For purposes of this Plan, the following terms shall have
the following meanings:
2.1 "Award" means any form of Stock Option, Stock
Appreciation Right, Restricted Stock Award, Unrestricted Stock
Award or Performance Award granted under this Plan.
2.2 "Award Agreement" means a written agreement
setting forth the terms of an Award.
2.3 "Award Date" or "Grant Date" means the date
designated by the Committee as the date upon which an Award is
granted.
2.4 "Award Period" or "Term" means the period
beginning on an Award Date and ending on the expiration date
of such Award.
2.5 "Board" means the Board of Directors of the
Company.
2.6 "Code" means the Internal Revenue Code of 1986, as
amended, or any successor legislation. Reference to any
particular section of the Code includes any successor
amendments or replacements of such section.
2.7 "Committee" means the committee appointed by the
Board and consisting of two or more Directors, none of whom
shall be eligible to receive any Award pursuant to this Plan
except as provided in Subsection 6.5. Members of the
Committee must qualify as Disinterested Persons within the
meaning of Rule 16b-3.
2.8 "Common Stock" means the Company's Capital Stock,
$.33 par value.
2.9 "Disability" means a "permanent and total
disability" within the meaning of Section 22(e)(3) of the
Code.
2.10 "Disinterested Person" means a member of the Board
who was not, during the year prior to being appointed to the
Committee, or during the period of service as an administrator
of this Plan, granted or awarded equity securities pursuant to
the Plan or pursuant to any other plan of the Company, except
to the extent consistent with the disinterested plan
administration requirements under Rule 16b-3.
2.11 "Eligible Employee" means any person (other than
one who receives retirement benefits, consulting fees,
honorariums, and the like from the Company) (i) who performs
services for the Company or a Subsidiary, including any
individual who is an officer or director of the Company or a
Subsidiary; and (ii) is compensated on a regular basis by the
Company or a Subsidiary. Directors who are not full-time
employees of the Company or a Subsidiary are not eligible to
receive Awards under this Plan, except as set forth in
Subsection 6.5. Eligibility under this Plan shall be
determined by the Committee.
2.12 "Fair Market Value" means, as of any date, the
average of the highest and lowest quoted selling prices of a
Share as reported on the New York Stock Exchange Composite
Transactions list (or such other consolidated transaction
reporting system on which the Shares are primarily traded), or
if the Shares were not traded on such day, then the next
preceding day on which the Shares were traded, all as reported
by such source as the Committee may select. If the Shares are
not traded on a national securities exchange or other market
system, Fair Market Value shall be set under procedures
established by the Committee.
2.13 "Incentive Stock Option" means any Stock Option
awarded under Section VI of this Plan intended to be and
designated as an "Incentive Stock Option" within the meaning
of Section 422 of the Code or any successor provision.
2.14 "Non-Qualified Stock Option" means any Stock
Option awarded under Section VI of this Plan that is not an
Incentive Stock Option.
2.15 "Officer" means a person who is considered to be
an officer of the Company under Rule 16a-1(f).
2.16 "Option Price" or "Exercise Price" means the price
per share at which Common Stock may be purchased upon the
exercise of an Option or an Award.
2.17 "Participant" means an Eligible Employee to whom
an Award has been made pursuant to this Plan.
2.18 "Replacement Option" means a Non-Qualified Stock
Option granted pursuant to Subsection 6.3, upon the exercise
of a Stock Option granted pursuant to this Plan where the
Option Price is paid with previously owned shares of Common
Stock.
2.19 "Restricted Stock" means those shares of Common
Stock issued pursuant to a Restricted Stock Award which are
subject to the restrictions set forth in the related Award
Agreement.
2.20 "Restricted Stock Award" means an award of a fixed
number of Shares to a Participant which is subject to
forfeiture provisions and other conditions set forth in the
Award Agreement.
2.21 "Retirement" means any termination of employment
or service on the Board (other than by death or Disability) by
an employee or a director who is at least 65 years of age or
55 years of age with at least 10 years of employment with or
service on the Board of the Company or a Subsidiary.
2.22 "Rule 16b-3" and "Rule 16a-1(f)" mean Securities
and Exchange Commission Regulations 240.16b-3 and 240.16a-
1(f) or any corresponding successor regulations.
2.23 "Share" means one share of the Company's Common
Stock.
2.24 "Stock Appreciation Right" or "SAR" means the
right to receive, for each unit of the SAR, cash and/or shares
of Common Stock equal in value to the excess of the Fair
Market Value of one Share on the date of exercise of the SAR
over the reference price per share of Common Stock established
on the date the SAR was granted.
2.25 "Stock Option" or "Option" means the right to
purchase shares of Common Stock (including a Replacement
Option) granted pursuant to Section VI of this Plan.
2.26 "Subsidiary" means any corporation, partnership,
joint venture, or other entity (i) of which the Company owns
or controls, directly or indirectly, 25% or more of the
outstanding voting stock (or comparable equity participation
and voting power) or (ii) which the Company otherwise controls
(by contract or any other means); except
that when the term "Subsidiary" is used in the context of an
award of an Incentive Stock Option, the term shall have the
same meaning given to it in the Code. "Control" means the
power to direct or cause the direction of the management and
policies of a corporation or other entity.
2.27 "Transfer" means alienation, attachment, sale,
assignment, pledge, encumbrance, charge or other disposition;
and the terms "Transferred" or "Transferable" have
corresponding meanings.
SECTION III.
ADMINISTRATION
3.1 The Committee. This Plan shall be administered
and interpreted by the Committee.
3.2 Awards. The Committee shall have full authority
to grant, pursuant to the terms of this Plan, to Eligible
Employees: (i) Stock Options, (ii) Stock Appreciation Rights,
(iii) Restricted Stock, (iv) Unrestricted Stock and (v)
Performance Awards. In particular, the Committee shall have
the authority:
(a) to select the Eligible Employees to whom Awards
may be granted;
(b) to determine the types and combinations of Awards
to be granted to Eligible Employees;
(c) to determine the number of Shares or monetary
units which may be subject to each Award;
(d) to determine the terms and conditions, not
inconsistent with the terms of this Plan, of any
Award (including, but not limited to, any
restriction or limitation on transfer, any vesting
schedule or acceleration, or any forfeiture
provisions or waiver, regarding any Award) and the
related Shares, based on such factors as the
Committee shall determine; and
(e) to modify or waive any restrictions or limitations
contained in, and grant extensions to the terms of
or accelerate the vestings of, any outstanding
Awards as long as such modifications, waivers,
extensions or accelerations are not inconsistent
with the terms of this Plan, but no such changes
shall impair the rights of any Participant without
his or her consent.
3.3 Guidelines. The Committee shall have the
authority to adopt, alter and repeal administrative rules,
guidelines and practices governing this Plan and perform all
acts, including the delegation of its administrative
responsibilities, as it deems advisable; to construe and
interpret the terms and provisions of this Plan and any Award
issued under this Plan; and to otherwise supervise the
administration of this Plan. The Committee may correct any
defect, supply any omission or reconcile any inconsistency in
this Plan or in any related Award Agreement in the manner and
to the extent it deems necessary to carry this Plan into
effect.
3.4 Delegation of Authority. The Committee may
delegate to one or more Officers of the Company the authority
of the Committee under Section 3.2 (except in respect of
Awards to Officers) and may delegate its administrative duties
to one or more individuals who are Officers or employees of
the Company.
3.5 Decisions Final. Any action, decision,
interpretation or determination by or at the direction of the
Committee concerning the application or administration of this
Plan shall be final and binding upon all persons and need not
be uniform with respect to its determination of recipients,
amount, timing, form, terms or provisions of Awards.
SECTION IV.
SHARES SUBJECT TO PLAN
4.1 Shares. Subject to adjustment as provided in
Subsection 4.2, the aggregate number of Shares which may be
issued under this Plan shall not exceed fifteen million
(15,000,000) Shares. If any Award granted under this Plan
shall expire, terminate or be canceled for any reason without
having been exercised in full, the number of unacquired Shares
subject to such Award shall again be available for future
grants; provided, however, that the reuse of such Shares is
not prohibited under Rule 16b-3.
4.2 Adjustment Provisions.
(a) If the Company shall at any time change the number
of issued Shares without new consideration to the
Company (such as by stock dividend, stock split,
recapitalization, reorganization, exchange of
shares, liquidation, combination or other change
in corporate structure affecting the Shares) or
make a distribution of cash or property which has
a substantial impact on the value of issued
Shares, the total number of Shares reserved for
issuance under the Plan shall be appropiately
adjusted and the number of Shares
covered by each outstanding Award and the
reference price or Fair Market Value for each
outstanding Award shall be adjusted so that the
aggregate consideration payable to the Company and
the value of each such Award shall not be changed.
(b) Notwithstanding any other provision of the Plan,
and without affecting the number of Shares
reserved or available hereunder, the Committee may
authorize the issuance, continuation or assumption
of Awards or provide for other equitable
adjustments after changes in the Shares resulting
from any merger, consolidation, sale of assets,
acquisition of property or stock,
recapitalization, reorganization or similar
occurrence in which the Company is the continuing
or surviving corporation, upon such terms and
conditions as it may deem equitable and
appropriate.
4.3 Dissolution or Liquidation. In the event of the
dissolution or liquidation of the Company or any merger,
consolidation or combination in which the Company is not the
surviving corporation or in which the outstanding Shares of
the Company are converted into cash, other securities or other
property, each outstanding Award shall terminate as of a date
fixed by the Committee, provided that not less than 20 days'
written notice of the date of expiration shall be given to
each holder of an Award and each such holder shall have the
right during such period following notice to exercise the
Award as to all or any part of the Shares for which it is
exercisable at the time of such notice.
SECTION V.
EFFECTIVE DATE OF AMENDED PLAN
This Plan was amended and restated by the Board on March
25, 1992 and shall become effective, as amended, upon its
approval by the holders of a majority of the shares of Common
Stock represented, in person or by proxy, at the Company's
Annual Meeting of Shareholders on May 14, 1992. This Plan
shall continue in effect until December 31, 2015 unless
terminated sooner by the Board pursuant to Section XII.
SECTION VI.
STOCK OPTIONS
6.1 Grants. Stock options may be granted alone or in
addition to other Awards granted under this Plan. Each Option
granted shall be designated as either a Non-Qualified Stock
Option or an Incentive Stock Option and in each case such
Option may or may not include Stock Appreciation Rights. One
or more Stock Options and/or Stock Appreciation Rights may be
granted to any Eligible Employee, except that no person shall
receive during any twelve month period Stock Options and Stock
Appreciation Rights covering more than 300,000 shares of
Common Stock.
6.2 Incentive Stock Options.
(a) Award Agreement. Any Award Agreement relating to
an Incentive Stock Option shall contain such terms
and conditions as are required for the Option to
be an "incentive stock option" as that term is
defined in Section 422 of the Code.
(b) Ten Percent Shareholder. An Incentive Stock
Option shall not be awarded to any person who, at
the time of the Award, owns Shares possessing more
than 10% of the total combined voting power of all
classes of stock of the Company or its
Subsidiaries.
(c) Qualification under the Code. Notwithstanding
anything in this Plan to the contrary, no term of
this Plan relating to Incentive Stock Options
shall be interpreted, amended or altered, nor
shall any discretion or authority granted under
this Plan be exercised, so as to disqualify this
Plan under Section 422 of the Code, or, without
the consent of the Participants affected, to
disqualify any Incentive Stock Option under
Section 422 of the Code.
6.3 Replacement Options. The Committee may provide
either at the time of grant or subsequently that an Option
shall include the right to acquire a Replacement Option upon
the exercise of such Option (in whole or in part) prior to
Participant's termination of employment if the payment of the
Option Price is paid in Shares. In addition to any other
terms and conditions the Committee deems appropriate, the
Replacement Option shall be subject to the following terms:
(i) the number of Shares subject to the
Replacement Option shall not exceed the
number of whole Shares used to satisfy the
Option Price of the original Option and
the number of whole Shares, if any,
withheld by the Company as payment for
withholding taxes in accordance with
Subsection 13.3;
(ii) the Replacement Option Grant Date will be
the date of the exercise of the original
Option;
(iii) the Option Price per share shall be the
Fair Market Value of a Share on the
Replacement Option Grant Date;
(iv) the Replacement Option shall be
exercisable no earlier than one year after
the Replacement Option Grant Date;
(v) the Term of the Replacement Option will
not extend beyond the Term of the original
Option; and
(vi) the Replacement Option shall be a
Non-Qualified Stock Option and shall
otherwise meet all conditions of this
Subsection 6.3.
The Committee may without the consent of the Participant
rescind the right to receive a Replacement Option at any time
prior to an Option being exercised.
6.4 Terms of Options. Except as otherwise required by
Subsections 6.2, 6.3 and 6.5, Options granted under this Plan
shall be subject to the following terms and conditions and
shall be in such form and contain such additional terms and
conditions, not inconsistent with the terms of this Plan, as
the Committee shall deem desirable:
(a) Option Price. The Option Price per share of
Common Stock purchasable under a Stock Option
shall be determined by the Committee at the time
of grant, except that no Incentive Stock Option
may be granted for an Option Price less than 100%
of Fair Market Value on the Grant Date.
(b) Option Term. The Term of each Stock Option shall
be fixed by the Committee, but no Incentive Stock
Option shall be exercisable more than ten years
after its Award Date, and no Non-Qualified Stock
Option shall be exercisable more than 20 years
after its Award Date.
(c) Exercisability. Stock Options shall be
exercisable at such time or times and subject to
such terms and conditions as shall be determined
by the Committee; provided, however, that Options
may not be exercised as to less than 100 Shares at
any time unless the number exercised is the total
number available for exercise at that time under
the terms of the Option.
(d) Method of Exercise. Stock Options may be
exercised in whole or in part at any time during
the Option Term, by giving written notice of
exercise to the Company specifying the number of
Shares to be purchased. Such notice shall be
accompanied by payment in full of the Option Price
in such form as the Committee may accept. If and
to the extent determined by the Committee at or
after grant, payment in full or in part may also
be made in the form of Common Stock owned by the
Participant for at least six months prior to
exercise or by reduction in the number of Shares
issuable upon exercise based, in each case, on the
Fair Market Value of the Common Stock on the
payment date.
(e) Non-Transferability of Options. Stock Options
shall be Transferable only to the extent provided
in Section X of this Plan.
(f) Termination. Stock Options shall terminate in
accordance with Section XI of this Plan.
(g) Buyout and Settlement Provisions. The Committee
may at any time offer to buy out an Option
previously granted, based on such terms and
conditions as the Committee shall establish. The
Committee may also substitute new Stock Options
for previously granted Stock Options having higher
Option Prices than the new Stock Options being
substituted therefor.
6.5 Award of Options to Non-Employee Directors.
(a) Grants. The Company shall make the following
grants of Stock Options to non-employee directors
under this Plan:
(i) On the date on which a person who is not a
full-time employee of the Company or a
Subsidiary first becomes a director of the
Company (a "non-employee director"),
whether by election or appointment, that
non-employee director shall automatically
be granted Non-Qualified Stock Options for
10,000 Shares.
(ii) Each non-employee director who has served
on the Board at least six months shall
automatically receive a grant of Non-
Qualified Stock Options for 10,000 Shares.
The award shall be made on the same date
on which the Committee decides the total
number of stock options to be granted to
employees in connection with the Company's
annual total compensation review."
(b) Terms and Conditions of Options Granted to Non-Employee
Directors.
(i) Term. The Term of all Options shall be
20 years from the Award Date of the
Option.
(ii) Option Price. The Option Price of all
Options shall be the Fair Market Value of
a Share on the Award Date.
(iii) Vesting. All Options shall vest over a
ten year period with 9% of the Option
Shares immediately exercisable on the
Award Date and an additional 9%
exercisable on each anniversary of the
Award Date thereafter until the tenth
anniversary when the remaining 10% of the
Option Shares shall be exercisable.
(iv) Method of Exercise. All Options shall be
exercisable in the manner provided in
Subsection 6.4(d) except that, without
further action by the Committee,
non-employee directors may make payment of
the Option Price by the delivery of Shares
owned by the director for at least six
months prior to exercise or by a reduction
in the number of Shares issuable upon such
exercise, and such directors may also use
the provisions of Subsection 13.3.
(v) Non-transferability and Termination. All
Options shall be Transferable only to the
extent provided in Section X of this Plan
and shall terminate in accordance with
Section XI of this Plan, except that the
timing provisions of Subsections 11.1(b)
and 11.1(c) may not be varied by Committee
determination.
(c) Amendment. Notwithstanding any other provision of
this Plan, the provisions of this Subsection 6.5
may not be amended by the Board more frequently
than once every six months other than to comply
with changes in the Code or the rules thereunder.
SECTION VII.
STOCK APPRECIATION RIGHTS
7.1 Grant. A Stock Appreciation Right may be granted
either with or without reference to all or any part of a Stock
Option. A "Tandem SAR" means an SAR granted with reference to
a Stock Option (the "Reference Option"). A "Non-Tandem SAR"
means an SAR granted without reference to a Stock Option. If
the Reference Option is a Non-Qualified Stock Option, a Tandem
SAR may be granted at or after the date of the Reference
Option; if the Reference Option is an Incentive Stock Option,
the Grant Date of a Tandem SAR must be the same as the Grant
Date of the Reference Option. Any SAR shall have such terms
and conditions, not inconsistent with this Plan, as are
established by the Committee in connection with the Award.
7.2 Term. A Tandem SAR shall terminate and no longer
be exercisable upon the termination of its Reference Option.
A Non-Tandem SAR may have a term no longer than 20 years from
its Grant Date.
7.3 Exercise. A Tandem SAR may only be exercisable at
the times and, in whole or in part, to the extent that its
Reference Option is exercisable. The exercise of a Tandem SAR
shall automatically result in the surrender of the applicable
portion of its Reference Option. A Non-Tandem SAR shall be
exercisable in whole or in part as provided in its Award
Agreement. Written notice of any exercise must be given in
the form prescribed by the Committee.
7.4 Payment. For purposes of payment of an SAR, the
reference price per Share shall be the Option Price of the
Reference Option in the case of a Tandem SAR and shall be the
Fair Market Value of a Share on the Grant Date in the case of
a Non-Tandem SAR. The Committee shall determine the form of
payment.
7.5 Non-Transferability and Termination. Stock
Appreciation Rights shall be Transferable only to the extent
provided in Section X of this Plan and shall terminate in
accordance with Section XI of this Plan.
SECTION VIII.
RESTRICTED AND UNRESTRICTED STOCK AWARDS
8.1 Grants of Restricted Stock Awards. The Committee
may, in its discretion, grant one or more Restricted Stock
Awards to any Eligible Employee. Each Restricted Stock Award
shall specify the number of Shares to be issued to the
Participant, the date of such issuance, the price, if any, to
be paid for such Shares by the Participant and the
restrictions imposed on such Shares. The Committee may grant
Awards of Restricted Stock subject to the attainment of
specified performance goals, continued employment or such
other limitations or restrictions as the Committee may
determine.
8.2 Terms and Conditions of Restricted Awards.
Restricted Stock Awards shall be subject to the following
provisions:
(a) Issuance of Shares. Shares of Restricted Stock
may be issued immediately upon grant or upon
vesting as determined by the Committee.
(b) Stock Powers and Custody. If shares of Restricted
Stock are issued immediately upon grant, the
Committee may require the Participant to deliver a
duly signed stock power, endorsed in blank,
relating to the Restricted Stock covered by such
an Award. The Committee may also require that the
stock certificates evidencing such shares be held
in custody by the Company until the restrictions
on them shall have lapsed.
(c) Shareholder Rights. Unless otherwise determined
by the Committee at the time of grant,
Participants receiving Restricted Stock Awards
shall not be entitled to dividend or voting rights
for the Restricted Shares until they are fully
vested.
8.3 Unrestricted Stock Awards. The Committee may make
awards of unrestricted Common Stock to key Eligible Employees
in recognition of outstanding achievements by such employees.
Unrestricted Shares issued on a bonus basis under this
Subsection 8.3 may be issued for no cash consideration. Each
certificate for unrestricted Common Stock shall be registered
in the name of the Participant and delivered immediately to
the Participant.
SECTION IX.
PERFORMANCE AWARDS
9.1 Performance Awards.
(a) Grant. The Committee may, in its discretion,
grant Performance Awards to Eligible Employees.
A Performance Award shall consist of the right to
receive either (i) Common Stock or cash of an
equivalent value, or a combination of both, at the
end of a specified Performance Period (defined
below) or (ii) a fixed dollar amount payable in
cash or Shares, or a combination of both, at the
end of a specified Performance
Period. The Committee shall determine the
Eligible Employees to whom and the time or times
at which Performance Awards shall be granted, the
number of Shares or the amount of cash to be
awarded to any person, the duration of the period
(the "Performance Period") during which, and the
conditions under which, a Participant's
Performance Award will vest, and the other terms
and conditions of the Performance Award in
addition to those set forth in Subsection 9.2.
(b) Criteria for Award. The Committee may condition
the grant or vesting of a Performance Award upon
the attainment of specified performance goals; the
appreciation in the Fair Market Value, book value
or other measure of value of the Common Stock; the
performance of the Company based on earnings or
cash flow; or such other factors or criteria as
the Committee shall determine.
9.2 Terms and Conditions of Performance Awards.
Performance Awards granted pursuant to this Section IX shall
be subject to the following terms and conditions:
(a) Dividends. Unless otherwise determined by the
Committee at the time of the grant of the Award,
amounts equal to any dividends declared during the
Performance Period with respect to any Shares
covered by a Performance Award will not be paid to
the Participant.
(b) Payment. Subject to the provisions of the Award
Agreement and this Plan, at the expiration of the
Performance Period, share certificates, cash or
both (as the Committee may determine) shall be
delivered to the Participant, or his or her legal
representative or guardian, in a number or an
amount equal to the vested portion of the
Performance Award.
(c) Non-Transferability. Performance Awards shall not
be Transferable except in accordance with the
provisions of Section X of this Plan.
(d) Termination of Employment. Subject to the
applicable provisions of the Award Agreement and
this Plan, upon termination of a Participant's
employment with the Company or a Subsidiary for
any reason during the Performance Period for a
given Award, the Performance Award in question
will vest or be forfeited in accordance with the
terms and conditions established by the Committee.
SECTION X.
NON-TRANSFERABILITY OF AWARDS
No Award or benefit payable under this Plan shall be
Transferable by the Participant during his or her lifetime and
may not be assigned, exchanged, pledged, transferred or
otherwise encumbered or disposed of except by a domestic
relations order pursuant to Section 414(p)(1)(B) of the Code,
or by will or the laws of descent and distribution. Awards
shall be exercisable during a Participant's lifetime only by
the Participant or by the Participant's guardian or legal
representative.
SECTION XI.
TERMINATION OF AWARDS
11.1 All Awards issued under this Plan shall terminate
as follows:
(a) Termination at Expiration of Term. During any
period of continuous employment with the Company
or a Subsidiary, an Award will be terminated only
if it is fully exercised or if it has expired by
its terms. For purposes of this Plan, any leave
of absence approved by the Company shall not be
deemed to be a termination of employment.
(b) Termination by Death, Disability or Retirement.
If a Participant's employment by the Company or a
Subsidiary terminates by reason of death,
Disability or Retirement, any Award held by such
Participant, unless otherwise determined by the
Committee at grant, shall be fully vested and may
thereafter be exercised by the Participant or by
the Participant's beneficiary or legal
representative, for a period of one year (or such
longer period as the Committee may specify at or
after grant) from the date of such death,
Disability or Retirement or until the expiration
of the stated term of such Award, whichever period
is shorter.
(c) Other Termination. Unless otherwise determined by
the Committee at or after grant, if a
Participant's employment by the Company or a
Subsidiary terminates for any reason other than
death, Disability or Retirement, the Award will
terminate on the earlier to occur of the stated
expiration date or 90 calendar days after
termination of employment. If a Participant dies
during the 90 day period following termination of
employment, any unexercised Award held by the
Participant shall be exercisable, to the full
extent that such Award was exercisable at the time
of death, for a period of 90 calendar days from
the date of death or until the expiration of the
stated term of the Award, whichever occurs first.
11.2 Acceleration of Vesting and Extension of Exercise
Period Upon Termination.
(a) Notwithstanding anything contained in this Section
XI, upon the termination of employment of a
Participant who is not an Officer or Director of
the Company, for reasons other than death,
Disability or Retirement, either the Committee or
the President of the Company may, in its or his
sole discretion, accelerate the vesting of all or
part of any Awards held by such terminated
Participant so that such Awards are fully or
partially exercisable as of the date of
termination, and may also extend the permitted
exercise period of such Awards for up to five
years from the date of termination, but in no
event longer than the original expiration date of
such Award. In the case of a terminated
Participant who is an Officer, such discretion
shall be exercised, if at all, only by the
Committee.
(b) Except as provided in Subsection 4.2, in no event
will the continuation of the exercisability of an
Award beyond the date of termination of employment
allow the Eligible Employee, or his or her
beneficiaries or heirs, to accrue additional
rights under the Plan, or to purchase more Shares
through the exercise of an Award than could have
been purchased on the date that employment was
terminated.
SECTION XII.
TERMINATION OR AMENDMENT OF THIS PLAN
12.1 Termination or Amendment. The Board may at any
time, amend, in whole or in part, any or all of the provisions
of this Plan, or suspend or terminate it entirely; provided,
however, that, unless otherwise required by law, the rights of
a Participant with respect to any Awards granted prior to such
amendment, suspension or termination may not be impaired
without the consent of such Participant; and, provided
further, no amendment may be made, with or without shareholder
approval, which would cause this Plan to lose its exemption
under Rule 16b-3 and no amendment may be made without
shareholder approval which would increase the number of shares
available under this Plan.
SECTION XIII.
GENERAL PROVISIONS
13.1 No Right to Continued Employment. Neither the
establishment of the Plan nor the granting of any Award
hereunder shall confer upon any Participant any right to
continue in the employ of the Company or any Subsidiary or
interfere in any way with the right of the Company or any
Subsidiary to terminate such employment at any time.
13.2 Other Plans. In no event shall the value of, or
income arising from, any Awards issued under this Plan be
treated as compensation for purposes of any pension, profit
sharing, life insurance, disability or other retirement or
welfare benefit plan now maintained or hereafter adopted by
the Company or any Subsidiary, unless such plan specifically
provides to the contrary.
13.3 Withholding of Taxes. The Company shall have the
right to deduct from any payment to be made pursuant to this
Plan, or to otherwise require, prior to the issuance or
delivery of any Shares or the payment of any cash to a
Participant, payment by the Participant of any Federal, state,
local or foreign taxes required by law to be withheld. The
Committee may permit any such withholding obligation to be
satisfied by reducing the number of Shares otherwise
deliverable or by accepting the delivery of previously owned
Shares. Any fraction of a Share required to satisfy such tax
obligations shall be disregarded and the amount due shall be
paid instead in cash by the Participant.
13.4 Reimbursement of Taxes. The Committee may provide
in its discretion that the Company may reimburse a Participant
for federal, state, local and foreign tax obligations incurred
as a result of the grant or exercise of an Award issued under
this Plan.
13.5 Governing Law. This Plan and actions taken in
connection with it shall be governed by the laws of the State
of New Jersey, without regard to the principles of conflict of
laws.
13.6 Liability. No employee of the Company nor member
of the Committee or the Board shall be liable for any action
or determination taken or made in good faith with respect to
the Plan or any Award granted hereunder and, to the fullest
extent permitted by law, all employees and members shall be
indemnified by the Company for any liability and expenses
which may occur through any claim or cause of action arising
under or in connection with this Plan or any Awards granted
under this Plan.