BURLINGTON INDUSTRIES, INC.
AMENDED AND RESTATED
1998 EQUITY INCENTIVE PLAN
1. Purpose. The Burlington Industries, Inc. 1998 Equity Incentive Plan
(the "Plan") is intended to enhance the ability of Burlington Industries, Inc.,
a Delaware corporation (the "Company"), to attract, retain and motivate key
executives and employees of the Company, its affiliates, joint ventures or
subsidiaries, by providing such persons with an opportunity to obtain a
proprietary interest in the Company and by rewarding them for their contribution
to the Company. The Company believes that providing key executives and employees
with such opportunities and rewards serves the best interests of the Company's
shareholders.
2. Definitions. As used herein:
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"Agreement" means the agreement described in Section 8 hereof.
"Award" means Options, Performance Shares, Stock Appreciation
Rights and Restricted Shares.
"Beneficiary" or "Beneficiaries" means the person or persons
designated by a Participant pursuant to the provisions of the Agreement to
receive payments or rights pursuant to such Agreement upon the Participant's
death. If no Beneficiary is so designated by a Participant or if no Beneficiary
is living at the time a payment is due pursuant to such Agreement, payments
shall be made to the estate of such Participant. The Agreement shall provide a
Participant with the right to change the designated Beneficiaries from time to
time by written instrument executed by the Participant and filed with the
Committee in accordance with such rules as may be specified by the Committee.
"Board" means the Board of Directors of the Company.
"Change of Control" has the meaning set forth in Section 14
hereof.
"Code" means the Internal Revenue Code of 1986, as amended,
and the regulations promulgated thereunder, as such law or regulations may be
amended from time to time.
"Committee" means the committee of the Board described in
Section 5 hereof.
"Common Stock" means the Common Stock of the Company, par
value $0.01 per share, or such other class or kind of shares or other securities
as may be applicable under Section 13 hereof.
"Effective Date" means the date described in Section 3 hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder, as such act, rules or
regulations may be amended from time to time.
"Fair Market Value" means the closing price of a share of
Common Stock on a specified date as reported in the New York Stock Exchange
Composite Transactions for such date, or such other measurement of value as may
be specified by the Committee from time to time.
"Free-Standing Stock Appreciation Right" means a Stock
Appreciation Right not granted in tandem with an Option.
"Grant Date" means, with respect to any Award, the date
designated by the Committee as the date on which such Award was granted.
"Incentive Stock Option" means an Option which is qualified as
an incentive stock option under Section 422(b) of the Code.
"Initial Value" means the initial value, if any, of a
Free-Standing Stock Appreciation Right, as determined at the time of grant by
the Committee in its discretion and as set forth in the applicable Agreement;
provided, however, that the Initial Value of a Stock Appreciation Right shall be
no less than 100% of the Fair Market Value of a share of Common Stock as of the
Grant Date.
"Non-qualified Stock Option" means an Option which does not
qualify as an Incentive Stock Option.
"Option" means an option to purchase shares of Common Stock,
subject to the terms and conditions provided for in Section 9 hereof.
"Option Price" means the exercise price of an Option, as
determined at the time of grant by the Committee in its discretion and as set
forth in the applicable Agreement; provided, however, that the Option Price
shall be no less than 100% of the Fair Market Value of a share of Common Stock
as of the Grant Date; and provided, further, that the Option Price of any
Incentive Stock Option shall be subject to the terms set forth in Section
9(a)(iv) hereof.
"Participant" means a key employee of the Company, or one of
its subsidiaries, joint ventures or affiliates, who is designated by the
Committee to receive an Award under the Plan.
"Performance Goals" have the meaning set forth in Section 7
hereof. Performance Goals shall be objective and pre-established by the
Committee within the meaning of Section 162(m) of the Code.
"Performance Period" means a fixed period of time,
pre-established by the Committee, during which a Participant performs service
for the Company and during which Performance Goals may be achieved.
"Performance Share" means a right whose value is determined
with reference to attaining Performance Goals for a Performance Period or such
other measure as may be approved by the Committee, from time to time, and which
is paid in shares of Common Stock, cash or a combination thereof, as determined
by the Committee in its discretion, subject to the terms and conditions provided
for in Section 11 hereof.
"Plan" means the Burlington Industries, Inc. 1998 Equity
Incentive Plan, as the same may be amended, from time to time, in accordance
with Section 15 hereof.
"Restricted Share" means a share of Common Stock which is
restricted subject to the terms and conditions provided for in Section 12
hereof.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations thereunder, as such law, rules and regulations may
be amended from time to time.
"Stock Appreciation Right" or "SAR" means a right to receive
the appreciation, if any, in the Fair Market Value of one share of Common Stock,
subject to the terms and conditions provided for in Section 10 hereof.
"Tandem Stock Appreciation Right" means a Stock Appreciation
Right granted in tandem with an Option.
3. Effective Date. The Plan shall become effective on the date
("Effective Date") of its adoption by the Board, subject to approval of the Plan
by the stockholders of the Company. Prior to such stockholder approval, the
Committee may grant Awards conditioned on stockholder approval. If such
stockholder approval is not obtained by the first annual meeting of stockholders
to occur after the adoption of the Plan by the Board, the Plan and any Awards
made thereunder shall terminate ab initio and be of no further force and effect.
4. Maximum Number of Shares Available for Grant; Maximum Number of
Options, SARS and Restricted Shares to be Awarded; Maximum Value of Performance
Shares to be Awarded.
(a) Subject to adjustment pursuant to Section 13 hereof, the
maximum aggregate number of shares of Common Stock that may be used to settle
Awards made under the Plan shall not exceed 2,700,000 shares of Common Stock.
Subject to the foregoing, Awards granted under the Plan that constitute
replacements or substitutions issued in exchange for awards granted under the
Plan or any other plan of the Company, its affiliates and subsidiaries, or any
entity or business that is acquired by the Company, its affiliates or
subsidiaries, shall not be considered newly granted Awards for purposes of
Section 16. Notwithstanding the foregoing, any Awards that have been forfeited,
exchanged or canceled or have expired without the relevant Participant having
received value in excess of the value of the Award so forfeited, exchanged,
canceled or expired, such as the forfeiture of a Participant's unvested Options
upon termination of his/her service (an "Expired Award"), shall not be counted
for purposes of determining the number of shares of Common Stock issued or
issuable in connection with Awards granted under the Plan. For purposes of the
immediately preceding sentence, neither (i) any Award tendered to the Company or
withheld by the Company to satisfy tax withholding requirements, nor (ii) any
Restricted Share that is forfeited, canceled or expired and with respect to
which a Participant received any dividends or "benefits of ownership" (within
the meaning of the rules under Section 16(b) of the Exchange Act), shall be
deemed an Expired Award.
(b) Shares of Common Stock issued under the Plan may be
authorized and unissued shares or issued and re-acquired shares, as the
Committee may from time to time determine.
(c) In a given fiscal year of the Company, a Participant may
be granted a maximum of 150,000 Options (to purchase 150,000 shares of Common
Stock), 150,000 Stock Appreciation Rights and $500,000 of Restricted Shares, and
a Participant may earn a maximum of 50,000 Performance Shares.
(d) The percentage of the maximum aggregate number of shares
of Common Stock that may be granted or offered for sale to all Participants
under the Plan in accordance with Section 4(a) hereof shall not exceed 30.0% if
the Awards are Performance Shares and 15.0% if the Awards are Restricted Shares.
5. Administration.
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(a) The Plan shall be administered by the Committee, which
shall be appointed by the Board and which shall consist of two or more members
of the Board. Each member of the Committee at all times during service as a
member of the Committee shall qualify with respect to the Plan as a
"Non-Employee Director" within the meaning of Rule 16b-3 under the Exchange Act
and as an "outside director" within the meaning of Section 162(m) of the Code.
The Committee shall have full power and authority to interpret and construe the
provisions of the Plan and of any Agreements under the Plan and make
determinations pursuant to any Plan provision or Agreement. Each interpretation,
determination or other action made or taken pursuant to the Plan by the
Committee shall be final, conclusive and binding on all persons.
(b) No member of the Committee shall be liable for anything
whatsoever in connection with the administration of the Plan except such
member's own willful misconduct. Under no circumstances shall any member of the
Committee be liable for any act or omission of any other member of the
Committee. In the performance of its functions with respect to the Plan, the
Committee shall be entitled to rely upon information and advice furnished by the
Company's officers, the Company's accountants, the Company's counsel and any
other party the Committee deems necessary, and no member of the Committee shall
be liable for any action taken or not taken in reliance upon any such advice.
6. Grant or Offer of Awards. The Committee shall, from time to time,
select and make grants of Awards or offers for the sale of Awards to
Participants.
7. Establishment of Performance Goals. Awards of Performance Shares
hereunder shall be based, and Awards of Restricted Shares hereunder may be based
(in the Committee's discretion), upon Performance Goals pre-established by the
Committee with respect to a Performance Period. The Performance Goals shall be
based on one or more of the following criteria to be attained by the Company (or
a subsidiary or division thereof): (i) total shareholder return, (ii) Fair
Market Value of a share of Common Stock, (iii) earnings before interest and
taxes, (iv) return on investment, (v) earnings per share, (vi) return on equity,
and (vii) earnings before interest, taxes, depreciation and amortization. The
Committee shall certify in writing that a Performance Goal has been attained
prior to payment of any Award based on such Performance Goal. Performance Goals
may be revised by the Committee, at such times as it deems appropriate during
the Performance Period, in order to take into consideration any unforeseen
events or changes in circumstances.
8. Agreement; Transferability of Awards.
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(a) Agreement. The terms and conditions of each grant of
Awards shall be embodied in a written agreement (the "Agreement") in a form
approved by the Committee and delivered to the Participant as soon as
practicable following the Grant Date. The Agreement shall contain terms and
conditions not inconsistent with the Plan and which shall incorporate the Plan
by reference. Each Agreement shall: (a) state the Grant Date of the Award, the
number of shares issuable in connection with the Award or the number of
Performance Shares, Free-Standing Stock Appreciation Rights or Restricted Shares
related to the Award, as the case may be, as well as the exercisability, payment
and other restrictions applicable to the Award, as determined by the Committee,
and (i) in the case of Options (and any related Tandem Stock Appreciation
Rights), the Option Price, (ii) in the case of Restricted Shares, the purchase
price, if any, for such Restricted Shares, or (iii) in the case of Free-Standing
Stock Appreciation Rights, the Initial Value thereof and the maximum number of
shares of Common Stock that may be issued in connection therewith; (b) specify
any applicable vesting schedule; (c) in the case of Options, state whether the
Option is intended to qualify as an Incentive Stock Option; (d) provide that
Restricted Shares shall only be transferable after they vest and that, subject
to Section 8(b) hereof, all other Awards shall not be transferable by the
Participant otherwise than by will or the laws of descent and distribution, by a
qualified legal representative in the event of disability or incompetence, or
pursuant to a qualified domestic relations order as such term is defined in the
Code or Title I of the Employee Retirement Income Security Act of 1974, as
amended, or the rules thereunder, and during the Participant's lifetime shall
only be exercisable by or paid to the Participant; (e) provide for the treatment
of Awards in the event of the termination of the Participant's employment; (f)
provide such other additional or alternative terms as may, in the Committee's
discretion, be advisable to comply with the exemptive relief provided by Rule
16b-3 under the Exchange Act; (g) provide such other terms and conditions, not
inconsistent with the Plan, as the Committee may deem advisable; and (h) be
signed by the recipient of the Award and a person designated by the Committee.
(b) Transferability. Notwithstanding Section 8(a) hereof, the
Committee may, subject to such terms and conditions as the Committee shall
specify, permit the transfer of an Award to a Participant's family members or to
one or more trusts, partnerships or corporations established in whole or in part
for the benefit of one or more of such family members; provided, further, that
the restrictions in this sentence shall not apply to shares of Common Stock
received in connection with an Award after the date that the restrictions on
transferability of such shares set forth in the applicable Agreement have
lapsed. During the lifetime of the Participant, an Option, Stock Appreciation
Right or similar-type of Award shall be exercisable only by the Participant or
by the family member or trust to whom such Option, Stock Appreciation Right or
other Award has been transferred in accordance with the previous sentence.
9. Terms of Options.
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(a) Terms of Options Generally. Options may be granted to any
Participant to purchase such number of shares of Common Stock and having such
terms as the Committee shall determine in exchange for payment of the Option
Price in cash, or, in the discretion of the Committee and to the extent provided
in the applicable Agreement, in shares of Common Stock already owned by the
Participant, through withholding of Common Stock subject to the Option with a
value equal to the exercise price, in other property acceptable to the Committee
or in any combination of cash, shares of Common Stock or such other property, or
such other manner of settlement of the Option Price as the Committee shall
determine. Options granted under the Plan shall comply with the terms and
conditions set forth in this Section 9.
(i) Vesting. Each Option shall vest and become
exercisable as determined by the Committee and as set forth in
the applicable Agreement.
(ii) Duration of Options. Each Option shall be
effective for such term as shall be determined by the
Committee and set forth in the Agreement; provided, however,
that no Option shall be exercisable beyond the tenth
anniversary of the Grant Date of such Option.
(iii) Exercise Price. The price at which shares of
Common Stock may be purchased under an Option shall not be
less than 100% of the Fair Market Value of the Common Stock on
the Grant Date.
(iv) Incentive Stock Options Granted to Certain
Shareholders. No Incentive Stock Option may be issued pursuant
to the terms of the Plan to any individual who, at the time
the Option is granted, owns stock possessing more than 10% of
the total combined voting power of all classes of stock of the
Company or any of its subsidiaries, unless (A) the Option
Price determined as of the Grant Date is at least 110% of the
Fair Market Value on the Grant Date of the shares of Common
Stock subject to such Option, and (B) the Incentive Stock
Option is not exercisable more than five years from the Grant
Date thereof.
(b) Effect of Exercise on Related Tandem Stock Appreciation
Rights. The exercise of an Option shall result in the cancellation of any
related Tandem Stock Appreciation Rights on a share-for-share basis.
(c) Limitation on Exercise. The Option shall not be
exercisable unless the offer and sale of the Common Stock subject to the Option
has been registered under the Securities Act, or the Company has determined that
an exemption from registration under the Securities Act is available and
applicable to the offer and sale of the Common Stock subject to the Option.
(d) Delivery of Certificate. As soon as practicable following
the exercise of an Option, a certificate in the Participant's name evidencing
the appropriate number of shares of Common Stock issued in connection with such
exercise shall be delivered to the Participant.
10. Terms of Stock Appreciation Rights.
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(a) Terms of Stock Appreciation Rights Generally. Each Stock
Appreciation Right granted under the Plan shall comply with the terms and
conditions set forth in this Section 10.
(i) Grants of Stock Appreciation Rights. Each Tandem
Stock Appreciation Right shall relate to a specific Option
granted under the Plan and in the case of Incentive Stock
Options may be granted only concurrently with the Option to
which it relates. In the case of Non-qualified Stock Options,
Tandem Stock Appreciation Rights may be granted at any time
prior to the exercise, termination or expiration of such
Option. Free-Standing Stock Appreciation Rights may be granted
by the Committee at any time to any Participant.
(ii) Vesting, Exercise and Duration of Stock
Appreciation Rights. A Tandem Stock Appreciation Right shall
be exercisable by a Participant only at such times as the
Option to which it relates may be exercised, shall be
forfeited when the related Option is forfeited and may expire
no later than the expiration of the related Option. Each
Free-Standing Stock Appreciation Right shall vest and become
exercisable as determined by the Committee and as set forth in
the applicable Agreement.
(iii) Value of Stock Appreciation Rights. A vested
Stock Appreciation Right shall entitle a Participant to
receive from the Company, upon exercise of the right, an
amount (payable in the manner described in Section 10(c)
hereof) equal to the Fair Market Value on the exercise date of
the Stock Appreciation Right of the total number of shares of
Common Stock for which the Stock Appreciation Right is
exercised, less (A) in the case of Tandem Stock Appreciation
Rights, the Option Price that the Participant would have
otherwise been required to pay to purchase such shares had the
Option been exercised with respect to such shares, or (B) in
the case of a Free-Standing Stock Appreciation Right, the
Initial Value.
(iv) Number of Shares Covered by a Tandem Stock
Appreciation Right. In no case may the number of shares of
Common Stock covered by a Tandem Stock Appreciation Right
exceed the number of shares of Common Stock covered by the
related Option.
(b) Effect of Exercise of Tandem Stock Appreciation Right on
Related Option. The exercise of a Tandem Stock Appreciation Right shall
automatically result in the cancellation of the related Option on a
share-for-share basis, and the shares of Common Stock which were related to such
Option shall not again be available for future grants or sales of Awards.
(c) Payment. Payment to a Participant upon the exercise of a
Stock Appreciation Right shall be made as soon as practicable following such
exercise and, in the discretion of the Committee, may be made in cash, in shares
of Common Stock or a combination of cash and shares of Common Stock; provided,
however, that payment shall not be made in Common Stock unless the Common Stock
has been registered under the Securities Act, or the Company has determined that
an exemption under such Act is available and applicable to such exercise and
payment in Common Stock.
(d) Delivery of Certificate. As soon as practicable following
the exercise of a Stock Appreciation Right that is paid in whole or part in
Common Stock, a certificate evidencing the appropriate number of shares of
Common Stock issued in connection with such exercise shall be delivered to the
Participant.
11. Terms of Performance Shares.
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(a) Terms of Performance Shares Generally. Performance Shares
may be granted to any Participant. The Performance Shares granted hereunder
shall comply with the terms and conditions set forth in this Section 11.
(i) Measurement of Value of Performance Shares. A
vested Performance Share shall entitle the Participant to
receive from the Company, on such date as the Committee may
determine in its discretion and as set forth in the applicable
Agreement, the value of the number of shares of Common Stock
determined with reference to attaining Performance Goals for a
Performance Period as set forth in the applicable Agreement.
(ii) Vesting. Each Performance Share shall vest as
determined by the Committee and as set forth in the applicable
Agreement, but in no event less than one year from the Grant
Date.
(b) Payment. Payment to a Participant with respect to a
Performance Share shall be made in the discretion of the Committee, in shares of
Common Stock, cash, or a combination of cash and shares of Common Stock;
provided, however, that payment shall not be made in Common Stock unless the
Common Stock has been registered under the Securities Act in connection
therewith, or the Company has determined that an exemption under such Act is
available and applicable to such exercise and payment in Common Stock.
(c) Delivery of Certificate. Upon payment of a Performance
Share that is paid in whole or part in Common Stock, a certificate evidencing
the appropriate number of shares of Common Stock issued in connection with such
exercise shall be delivered to the Participant.
12. Terms of Restricted Shares.
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(a) Terms of Restricted Shares Generally. Restricted Shares
may be granted or offered for sale to any Participant, may be granted solely in
consideration for services rendered or to be rendered to the Company, or its
subsidiaries or affiliates, and may also be granted in substitution and exchange
for restricted property (within the meaning of Section 83 of the Code) held by a
Participant. If Restricted Shares are offered for sale hereunder, the purchase
price shall be payable in cash, or, in the discretion of the Committee and to
the extent provided in the applicable Agreement, in shares of Common Stock
already owned by the Participant, in other property or in any combination of
cash, shares of Common Stock or such other property. The Restricted Shares
granted or offered for sale under the Plan shall comply with the terms and
conditions set forth in this Section 12.
(b) Purchase Price; Offering Period. Restricted Shares offered
for sale shall be sold at a purchase price determined at the time of offering by
the Committee in its discretion and as set forth in the applicable Agreement.
(c) Delivery of Certificate. At the time of grant or sale of
Restricted Shares to a Participant, a certificate evidencing the appropriate
number of shares of Common Stock granted or sold to the Participant as
Restricted Shares shall be issued in the Participant's name but shall be subject
to a substantial risk of forfeiture within the meaning of Section 83 of the Code
and shall be held by the Company for the account of the Participant until such
time as such Restricted Shares vest hereunder. Upon such vesting, the
certificate evidencing such shares shall be delivered to the Participant.
(d) Vesting. Each Restricted Share shall vest as determined by
the Committee and as set forth in the applicable Agreement but in no event in
less than three substantially equal annual installments beginning one year from
the Grant Date. Notwithstanding the foregoing, the vesting of each Restricted
Share which is subject to the attainment of Performance Goals for the relevant
Performance Period established by the Committee shall not vest in less than one
year.
13. Certain Adjustments.
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(a) Effect of Reorganization. Subject to the provisions of
Section 14 hereof, in the event that (i) the Company is merged or consolidated
with another corporation, (ii) all or substantially all the assets of the
Company are acquired by another corporation, person or entity, (iii) the Company
is reorganized, dissolved or liquidated, or (iv) the division or subsidiary for
which a Participant performs services is sold, merged, consolidated, reorganized
or liquidated (each such event in (i), (ii), (iii) or (iv) being hereinafter
referred to as a "Reorganization Event"), or (v) the Board shall propose that
the Company enter into a Reorganization Event, then the Committee shall (A) make
appropriate adjustment in the number and kind of Common Stock reserved for
Awards that may be granted or offered pursuant to the Plan, and (B) with respect
to then outstanding Awards, make appropriate adjustments to provide each
Participant with a benefit equivalent to that which he/she would have been
entitled to had such Reorganization Event not occurred.
(b) Dilution and Other Adjustments. In the event of a stock
dividend, stock split, recapitalization, exchange of shares, warrants or rights
offering to purchase Common Stock at a price substantially below fair market
value or other similar event affecting the Common Stock, the Committee shall
adjust the number and kind of Common Stock reserved for Awards that may be
granted or offered pursuant to the Plan, and shall make any or all of the
following adjustments that in its discretion it deems necessary or advisable to
provide each Participant with a benefit equivalent to that to which he/she would
have been entitled had such event not occurred: (i) adjust the number of Awards
granted or offered to each Participant and the number of Awards that may be
granted or offered generally pursuant to the Plan, (ii) adjust the Option Price
of any Options and the Initial Value of any Stock Appreciation Rights, and (iii)
make any other adjustments, or take such action, as the Committee, in its
discretion, deems appropriate. Such adjustments shall be conclusive and binding
for all purposes. Unless otherwise determined by the Committee, such adjustments
shall be subject to the same vesting schedule and restrictions to which the
underlying Award is subject. No fractional shares of Common Stock shall be
reserved or authorized by any such adjustment. In the event of a change in the
Common Stock which is limited to a change in the designation thereof to "Capital
Stock" or other similar designation, or to a change in the par value thereof, or
from par value to no par value, without increase or decrease in the number of
issued shares, the shares resulting from any such change shall be deemed to be
Common Stock within the meaning of the Plan.
14. Change of Control.
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(a) Notwithstanding any other provision of the Plan or any
Agreement, the Committee shall have the authority in its discretion to provide
for the accelerated vesting and/or payment of Awards (with or without regard to
the achievement of Performance Goals) in the event of a Change of Control or in
the event of a determination by the Committee that a Change of Control may
occur.
(b) For purposes of this Section 14, "Change of Control" means
that any of the following events shall have occurred:
(i) The Company is merged or consolidated or
reorganized into or with another corporation, person or
entity, and as a result of such merger, consolidation or
reorganization less than a majority of the combined voting
power of the then outstanding securities of such corporation,
person or entity immediately after such transaction are held
in the aggregate by the holders of Voting Stock (as that term
is hereafter defined) of the Company immediately prior to such
transaction;
(ii) The Company sells or otherwise transfers all or
substantially all of its assets to any other corporation,
person or entity, and less than a majority of the combined
voting power of the then-outstanding securities of such
corporation, person or entity immediately after such sale or
transfer is held in the aggregate by the holders of Voting
Stock of the Company immediately prior to such sale or
transfer;
(iii) There is a report filed on Schedule 13D or
Schedule 14D-1 of the Exchange Act by a person other than a
person that satisfies the requirements of Rule 13d-1(b)(1)
under the Exchange Act for filing such report on Schedule 13G,
which report as filed discloses that any person (as the term
"person" is used in Section 13(d)(3) or Section 14(d)(2) of
the Exchange Act) has become the beneficial owner (as the term
"beneficial owner" is defined under Rule 13d-3 under the
Exchange Act) of securities representing 12.5% or more of the
combined voting power of the then-outstanding securities
entitled to vote generally in the election of Directors of the
Company ("Voting Stock");
(iv) The Company files a report or proxy statement
with the Securities and Exchange Commission pursuant to the
Exchange Act disclosing in response to Form 8-K or Schedule
14A that a change in control of the Company has or may have
occurred or will or may occur in the future pursuant to any
then-existing contract or transaction; or
(v) If during any period of two consecutive years,
individuals who at the beginning of any such period constitute
the Directors of the Company cease for any reason to
constitute at least a majority thereof, unless the election,
or the nomination for election by the Company's stockholders,
of each Director of the Company first elected during such
period was approved by a vote of at least two-thirds of the
Directors of the Company then still in office who were
Directors of the Company at the beginning of any such period.
Notwithstanding the foregoing provisions of Clause (iii) or
(iv) hereof, a "Change of Control" shall not be deemed to have
occurred for purposes of the Plan solely because (x) the
Company, (y) an entity in which the Company directly or
indirectly beneficially owns 50% or more of the voting
securities, or (z) any Company-sponsored employee stock
ownership plan or any other employee benefit plan of the
Company (or any trustee of any such plan on its behalf),
either files or becomes obligated to file a report or a proxy
statement under or in response to Schedule 13D, Schedule
14D-1, or Form 8-K or Schedule 14A under the Exchange Act,
disclosing beneficial ownership by it of shares of Voting
Stock, whether in excess of 12.5% or otherwise, or because the
Company reports that a Change of Control of the Company has or
may have occurred or will or may occur in the future by reason
of such beneficial ownership.
15. Amendment of the Plan. The Board may at any time and from time to
time modify, amend, suspend or terminate the Plan in whole or in part; provided,
however, that any amendment which is required by law (including the Code) or by
the rules of any stock exchange upon which shares of Common Stock are traded
which require shareholder approval thereof shall not be effective unless and
until such shareholder approval has been obtained in compliance with such rule
or law. No termination, modification or amendment of the Plan may, without the
consent of the Participant to whom an Award has been granted, adversely affect
the rights of such Participant under such Award.
16. Termination. Unless previously terminated pursuant to Section 15
hereof, the Plan shall terminate on the fifth anniversary of the date of
stockholder approval of the Plan, and no further Awards may be granted hereunder
after such date. Awards then outstanding may continue to be exercised, vest or
be paid in accordance with their terms.
17. Use of Proceeds. The proceeds received by the Company from the sale
of Common Stock pursuant to the sale or exercise of Awards under the Plan shall
be added to the Company's general funds and used for general corporate purposes.
18. Miscellaneous.
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(a) No Rights to Grants or Continued Service. Except as
expressly provided for in the Plan, no Participant shall have any claim or right
to be granted an Award under the Plan, nor shall any Participant have a right to
receive payment of an Award in any form other than as the Committee shall
approve. Neither the Plan nor any action taken hereunder shall be construed as
giving any Participant any right to be retained in the employ or service of the
Company.
(b) No Restriction on Right of Company to Effect Corporate
Changes. Nothing in the Plan shall affect the right or power of the Company or
its shareholders to make or authorize any or all adjustments, recapitalizations,
reorganizations or other changes in the Company's capital structure or its
business, or any merger or consolidation of the Company, or any issue of stock,
options, warrants or rights to purchase stock or of bonds, debentures, preferred
or prior preference stocks whose rights are superior to or affect the Common
Stock or the rights thereof or which are convertible into or exchangeable for
Common Stock, or the dissolution or liquidation of the Company, or any sale or
transfer of all or any part of its assets or business, or any other corporate
act or proceeding, whether of a similar character or otherwise.
(c) Governing Law. The Plan, and all agreements entered into
under the Plan shall be construed in accordance with and governed by the
internal laws of the State of Delaware.
(d) Withholding. As a condition to the making of any Award,
the vesting or payment of any Award or the lapse of the restrictions pertaining
thereto, the Company may, in the discretion of the Committee, require the
Participant to pay such sum to the Company as may be necessary to discharge the
Company's obligations with respect to any taxes, assessments or other
governmental charges imposed on property or income received by a Participant
pursuant to the Plan. In the discretion of the Committee, such payment may be in
the form of cash or other property. In the discretion of the Committee, the
Company may make available for delivery a lesser number of shares, in
satisfaction of such taxes, assessments or other governmental charges. At the
discretion of the Committee, the Company may deduct or withhold from any payment
or distribution to a Participant whether or not pursuant to the Plan. In the
discretion of the Committee, the Company may offer loans to Participants to
satisfy withholding requirements on such terms as the Committee may determine,
which loans may be non-interest bearing.
(e) Shareholder Rights. A Participant shall not have any
dividend, voting or other stockholder rights by reason of any Award prior to the
Participant becoming the record holder on the books of the Company of shares of
Common Stock pursuant to such Award, and no adjustment shall be made for
dividends or distributions or other rights in respect of any share for which the
record date is prior to the date upon which the Participant shall become the
holder of record thereof; provided, however, that a Participant shall have all
rights of a shareholder as to any Restricted Shares sold or granted to him/her
(except for any applicable risk of forfeiture and restrictions on
transferability), including the right to receive dividends and the right to vote
for directors and upon other matters in accordance with the Company's
Certificate of Incorporation; and provided, further, that the Participant shall
not have the right to transfer, sell, hypothecate, pledge or otherwise alienate
any unvested Restricted Shares.
(f) Headings. The headings of Sections herein are included
solely for convenience of reference and shall not affect the meaning of any of
the provisions of the Plan.
November 5, 1998
As amended and restated April 26, 2000.