Exhibit 10.15
FORM OF 1999 SHARE OPTION PLAN
1. Purposes. The purposes of the Statia Terminals Group N.V.
1999 Share Option Plan are:
(a) To further the growth, development and success of the
Company and its Affiliates by enabling the executive and other employees and
directors of, and consultants to, the Company and its Affiliates to acquire a
continuing equity interest in the Company, thereby increasing their personal
interests in such growth, development and success and motivating such employees,
directors and consultants to exert their best efforts on behalf of the Company
and its Affiliates; and
(b) To maintain the ability of the Company and its Affiliates
to attract and retain employees, directors and consultants of outstanding
ability by offering them an opportunity to acquire a continuing equity interest
in the Company and its Affiliates which will reflect the growth, development and
success of the Company and its Affiliates.
Toward these objectives, the Committee may grant Options to such employees,
directors and consultants, all pursuant to the terms and conditions of the Plan.
2. Definitions. As used in the Plan, the following capitalized
terms shall have the meanings set forth below:
(a) "Affiliate" - other than the Company, (i) any corporation
or limited liability company in an unbroken chain of corporations or limited
liability companies ending with the Company if each corporation or limited
liability company owns stock or membership interests (as applicable) possessing
more than fifty percent (50%) of the total combined voting power of all classes
of stock in one of the other corporations or limited liability companies in such
chain; (ii) any corporation, trade or business (including, without limitation, a
partnership or limited liability company) which is more than fifty percent (50%)
controlled (whether by ownership of stock, assets or an equivalent ownership
interest or voting interest) by the Company or one of its Affiliates; or (iii)
any other entity, approved by the Committee as an Affiliate under the Plan, in
which the Company or any of its Affiliates has a material equity interest.
(b) "Agreement" - a written share option award agreement
evidencing an Option.
(c) "Board" - the Board of Directors of the Company.
(d) "Code" - the Internal Revenue Code of 1986, as it may be
amended from time to time, including regulations and rules thereunder and
successor provisions and regulations and rules thereto.
(e) "Committee" - the Compensation Committee of the Board, or
such other Board committee as may be designated by the Board to administer the
Plan.
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(f) "Company" - Statia Terminals Group N.V., a Netherlands
Antilles corporation, or any successor entity.
(g) "Exchange Act" - the Securities Exchange Act of 1934, as
it may be amended from time to time, including regulations and rules thereunder
and successor provisions and regulations and rules thereto.
(h) "Fair Market Value" of a Share as of a given date shall
be: (i) the mean of the highest and lowest reported sale prices for a Share, on
the principal exchange on which the Shares are then listed or admitted to
trading, for such date, or, if no such prices are reported for such date, the
most recent day for which such prices are available shall be used; (ii) if the
Shares are not then listed or admitted to trading on a stock exchange, the mean
of the closing representative bid and asked prices for the Shares on such date
as reported by Nasdaq National Market (or any successor or similar quotation
system regularly reporting the market value of the Shares in the
over-the-counter market), or, if no such prices are reported for such date, the
most recent day for which such prices are available shall be used; or (iii) in
the event each of the methods provided for in clauses (i) and (ii) above shall
not be practicable, the fair market value determined by such other reasonable
valuation method as the Committee shall, in its discretion, select and apply in
good faith as of the given date; provided, however, that for purposes of
paragraphs (a) and (h) of Section 6, such fair market value shall be determined
subject to Section 422(c)(7) of the Code.
(i) "ISO" or "Incentive Stock Option" - an option to purchase
Shares granted to an Optionee under the Plan in accordance with the terms and
conditions set forth in Section 6 and which conforms to the applicable
provisions of Section 422 of the Code.
(j) "Notice" - written notice actually received by the Company
at its administrative offices on the day of such receipt, if received on or
before 1:30 p.m., on a day when the Company's executive offices are open for
business, or, if received after such time, such notice shall be deemed received
on the next such day, which notice may be delivered in person to the Company's
Chief Financial Officer or sent by facsimile to the Company, or sent by
certified or registered mail or overnight courier, prepaid, addressed to the
Company in care of Statia Terminals, Inc., 800 Fairway Drive, Suite 295,
Deerfield Beach, Florida 33441, Attention:
Chief Financial Officer.
(k) "Option" - a right to purchase Shares granted to an
Optionee under the Plan in accordance with the terms and conditions set forth in
Section 6. Options may be either ISOs or Share options other than ISOs.
(l) "Optionee"- an individual who is eligible, pursuant to
Section 5, and who has been selected, pursuant to Section 3(c), to participate
in the Plan, and who has been granted an Option under the Plan in accordance
with the terms and conditions set forth in Section 6.
(m) "Plan" - this Statia Terminals Group N.V. 1999 Share
Option Plan.
(n) "Securities Act" - the Securities Act of 1933, as it may
be amended from
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time to time, including regulations and rules thereunder and successor
provisions and regulations and rules thereto.
(o) "Share" - a class A common share ($0.01 par value) of the
Company.
(p) "Subsidiary" - any present or future corporation which is
or would be a "subsidiary corporation" of the Company as the term is defined in
Section 424(f) of the Code.
3. Administration of the Plan. (a) The Committee shall have
exclusive authority to operate, manage and administer the Plan in accordance
with its terms and conditions. Notwithstanding the foregoing, in its absolute
discretion, the Board may at any time and from time to time exercise any and all
rights, duties and responsibilities of the Committee under the Plan, including,
but not limited to, establishing procedures to be followed by the Committee,
except with respect to matters which under any applicable law, regulation or
rule, are required to be determined in the sole discretion of the Committee. If
and to the extent that no Committee exists which has the authority to administer
the Plan, the functions of the Committee shall be exercised by the Board.
(b) The Committee shall be appointed from time to
time by the Board, and the Committee shall consist of not less than two (2)
members of the Board. Appointment of Committee members shall be effective upon
their acceptance of such appointment. Committee members may be removed by the
Board at any time either with or without cause, and such members may resign at
any time by delivering notice thereof to the Board. Any vacancy on the
Committee, whether due to action of the Board or any other reason, shall be
filled by the Board.
(c) The Committee shall have full authority to grant,
pursuant to the terms of the Plan, Options to those individuals who are eligible
to receive Options under the Plan. In particular, the Committee shall have
discretionary authority to, in accordance with the terms of the Plan: determine
eligibility for participation in the Plan; select, from time to time, from among
those eligible, the employees, directors and consultants to whom Options shall
be granted under the Plan, which selection may be based upon information
furnished to the Committee by the Company's or an Affiliate's management;
determine whether an Option shall take the form of an ISO or Option other than
an ISO; determine the number of Shares to be included in any Option and the
periods for which Options will be outstanding; establish and administer any
terms, conditions, performance goals, performance targets, restrictions,
limitations, forfeiture, vesting or exercise schedule, and other provisions of
or relating to any Options; to the extent permitted under the applicable
Agreement, grant waivers of terms, conditions, restrictions and limitations
under the Plan or applicable to any Option, or accelerate the vesting or
exercisability of any Option; amend or adjust the terms and conditions of any
outstanding Option and/or adjust the number and/or class of Shares subject to
any outstanding Option; at any time and from time to time after the granting of
an Option, specify such additional terms, conditions and restrictions with
respect to any such Option as may be deemed necessary or appropriate to ensure
compliance with any and all applicable laws or rules, including, but not limited
to, terms, restrictions and conditions for compliance with applicable securities
laws, regarding an Optionee's exercise of Options by tendering Shares or under
any "cashless exercise" program established by the Committee, and methods of
withholding or providing
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for the payment of required taxes; offer to buy out an Option previously
granted, based on such terms and conditions as the Committee shall establish and
communicate to the Optionee at the time such offer is made; and, to the extent
permitted under the applicable Agreement, permit the transfer of an Option or
the exercise of an Option by one other than the Optionee who received the grant
of such Option (other than any such a transfer or exercise which would cause any
ISO to fail to qualify as an "incentive stock option" under Section 422 of the
Code).
(d) The Committee shall have all authority that may
be necessary or helpful to enable it to discharge its responsibilities with
respect to the Plan. Without limiting the generality of the foregoing sentence
or paragraph (a) of this Section 3, and in addition to the powers otherwise
expressly designated to the Committee in the Plan, the Committee shall have the
exclusive right and discretionary authority to interpret the Plan and the
Agreements; construe any ambiguous provision of the Plan and/or the Agreements
and decide all questions concerning eligibility for and the amount of Options
granted under the Plan. The Committee may establish, amend, waive and/or rescind
rules and regulations and administrative guidelines for carrying out the Plan
and may correct any errors, supply any omissions or reconcile any
inconsistencies in the Plan and/or any Agreement or any other instrument
relating to any Options. The Committee shall have the authority to adopt such
procedures and subplans and grant Options on such terms and conditions as the
Committee determines necessary or appropriate to permit participation in the
Plan by individuals otherwise eligible to so participate who are foreign
nationals or employed outside of the United States, or otherwise to conform to
applicable requirements or practices of jurisdictions outside of the United
States; and take any and all such other actions it deems necessary or advisable
for the proper operation and/or administration of the Plan. The Committee shall
have full discretionary authority in all matters related to the discharge of its
responsibilities and the exercise of its authority under the Plan. Decisions and
actions by the Committee with respect to the Plan and any Agreement shall be
final, conclusive and binding on all persons having or claiming to have any
right or interest in or under the Plan and/or any Agreement.
(e) Each Option shall be evidenced by an Agreement,
which shall be executed by the Company and the Optionee to whom such Option has
been granted, unless the Agreement provides otherwise; however, two or more
Options to a single Optionee may be combined in a single Agreement. An Agreement
shall not be a precondition to the granting of an Option; however, no person
shall have any rights under any Option unless and until the Optionee to whom the
Option shall have been granted (i) shall have executed and delivered to the
Company an Agreement or other instrument evidencing the Option, unless such
Agreement provides otherwise, and (ii) has otherwise complied with the
applicable terms and conditions of the Option. The Committee shall prescribe the
form of all Agreements, and, subject to the terms and conditions of the Plan,
shall determine the content of all Agreements. Any Agreement may be supplemented
or amended in writing from time to time as approved by the Committee; provided
that the terms and conditions of any such Agreement as supplemented or amended
are not inconsistent with the provisions of the Plan.
(f) A majority of the members of the entire Committee
shall constitute a quorum and the actions of a majority of the members of the
Committee in attendance at a
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meeting at which a quorum is present, or actions by a written instrument signed
by all members of the Committee, shall be the actions of the Committee.
(g) The Committee may consult with counsel who may be
counsel to the Company. The Committee may, with the approval of the Board,
employ such other attorneys or consultants, accountants, appraisers, brokers or
other persons as it deems necessary or appropriate. In accordance with Section
12, the Committee shall not incur any liability for any action taken in good
faith in reliance upon the advice of such counsel or such other persons.
(h) In serving on the Committee, the members thereof
shall be entitled to indemnification as directors of the Company, and to any
limitation of liability and reimbursement as directors with respect to their
services as members of the Committee.
(i) Except to the extent prohibited by applicable law
or the applicable rules of a stock exchange, the Committee may, in its
discretion, allocate all or any portion of its responsibilities and powers under
this Section 3 to any one or more of its members and/or delegate all or any part
of its responsibilities and powers under this Section 3 to any person or persons
selected by it; provided, however, the Committee may not delegate its authority
to correct errors, omissions or inconsistencies in the Plan. Any such authority
delegated or allocated by the Committee under this paragraph (i) of Section 3
shall be exercised in accordance with the terms and conditions of the Plan and
any rules, regulations or administrative guidelines that may from time to time
be established by the Committee, and any such allocation or delegation may be
revoked by the Committee at any time.
4. Shares Subject to the Plan. (a) Options granted under the
Plan shall cover Shares. Such Shares subject to the Plan may be either
authorized and unissued Shares (which will not be subject to preemptive rights)
or previously issued Shares acquired by the Company or any Subsidiary. The total
number of Shares that may be delivered pursuant to Options granted under the
Plan is 1,140,000 Shares.
(b) Notwithstanding any of the foregoing limitations
set forth in this Section 4, the numbers of Shares specified in this Section 4
shall be adjusted as provided in Section 10.
(c) Any Shares subject to an Option which for any
reason expires or is terminated without having been fully exercised may again be
granted pursuant to an Option under the Plan, subject to the limitations of this
Section 4.
(d) Any Shares delivered under the Plan in assumption
or substitution of outstanding stock options, or obligations to grant future
stock options, under plans or arrangements of an entity other than the Company
or an Affiliate in connection with the Company or an Affiliate acquiring such
another entity, or an interest in such an entity, or a transaction otherwise
described in Section 6(j), shall not reduce the maximum number of Shares
available for delivery under the Plan.
5. Eligibility. Executive and other employees, including
officers, of the
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Company and the Affiliates, directors (whether or not also employees) of the
Company or any Affiliate, and consultants to the Company and the Affiliates,
shall be eligible to become Optionees and receive Options in accordance with the
terms and conditions of the Plan, subject to the limitations on the granting of
ISOs set forth in Section 6(h).
6. Terms and Conditions of Options. All Options granted under
the Plan shall be either ISOs or Options other than ISOs. To the extent that any
Option does not qualify as an Incentive Stock Option (whether because of its
provisions or the time or manner of its exercise or otherwise), such Option, or
the portion thereof which does not so qualify, shall constitute a separate
Option other than an Incentive Stock Option. Each Option shall be subject to all
the applicable provisions of the Plan, including the following terms and
conditions, and to such other terms and conditions not inconsistent therewith as
the Committee shall determine and which are set forth in the applicable
Agreement. Options need not be uniform as to all grants and recipients thereof.
The number of Shares covered by an Option shall be stated in the applicable
Agreement.
(a) The option exercise price per Share subject to each
Option shall be determined by the Committee and stated in the
Agreement; provided, however, that, subject to paragraphs (h)(C)
and/or (j) of this Section 6, if applicable, such price applicable to
any ISO shall not be less than one hundred percent (100%) of the Fair
Market Value of a Share at the time that the Option is granted.
(b) Each Option shall be exercisable in whole or in such
installments, at such times and under such conditions, subject to
Section 14, as may be determined by the Committee in its discretion and
stated in the Agreement, and, in any event, over a period of time
ending not later than ten (10) years from the date such Option was
granted, subject to paragraph (h)(C) of this Section 6.
(c) An Option shall not be exercisable with respect to a
fractional Share or the lesser of fifty (50) Shares or the full number
of Shares then subject to the Option. No fractional Shares shall be
issued upon the exercise of an Option.
(d) Each Option may be exercised by giving Notice to the
Company specifying the number of Shares to be purchased, which shall be
accompanied by payment in full including applicable taxes, if any, in
accordance with Section 9. Payment shall be in any manner permitted by
applicable law and prescribed by the Committee, in its discretion, and
set forth in the Agreement, including, in the Committee's discretion,
and subject to such terms, conditions and limitations as the Committee
may prescribe, payment in accordance with a "cashless exercise" program
established by the Committee and/or in Shares owned by the Optionee or
by the Optionee and his or her spouse jointly.
(e) No Optionee or other person shall become the beneficial
owner of any Shares subject to an Option, nor have any rights to
dividends or other rights of a shareholder with respect to any Shares
until he or she has exercised his or her Option in accordance with the
provisions of the Plan and the applicable Agreement.
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(f) An Option may be exercised only if at all times during the
period beginning with the date of the granting of the Option and ending
on the date of such exercise, the Optionee was an employee, director or
consultant of the Company or an Affiliate. Notwithstanding the
preceding sentence, the Committee may determine in its discretion that
an Option may be exercised prior to expiration of such Option following
termination of such continuous employment, directorship or consultancy,
whether or not exercisable at such time, to the extent provided in the
applicable Agreement.
(g) Subject to the terms and conditions and within the
limitations of the Plan, the Committee may modify, extend or renew
outstanding Options granted under the Plan, or accept the surrender of
outstanding Options (up to the extent not theretofore exercised) and
authorize the granting of new Options in substitution therefor (to the
extent not theretofore exercised).
(h) (A) Each Agreement relating to an Option shall state
whether such Option will or will not be treated as an ISO. No ISO shall
be granted unless such Option, when granted, qualifies as an "incentive
stock option" under Section 422 of the Code. No ISO shall be granted to
any individual otherwise eligible to participate in the Plan who is not
an employee of the Company or a Subsidiary on the date of granting of
such Option. Any ISO granted under the Plan shall contain such terms
and conditions, consistent with the Plan, as the Committee may
determine to be necessary to qualify such Option as an "incentive stock
option" under Section 422 of the Code. Any ISO granted under the Plan
may be modified by the Committee to disqualify such Option from
treatment as an "incentive stock option" under Section 422 of the Code.
(B) Notwithstanding any intent to grant ISOs, an
Option granted under the Plan will not be considered an ISO to the
extent that it, together with any other "incentive stock options"
(within the meaning of Section 422 of the Code, but without regard to
subsection (d) of such Section) under the Plan and any other "incentive
stock option" plans of the Company, any Subsidiary and any "parent
corporation" of the Company within the meaning of Section 424(f) of the
Code, are exercisable for the first time by any Optionee during any
calendar year with respect to Shares having an aggregate Fair Market
Value in excess of $100,000 (or such other limit as may be required by
the Code) as of the time the Option with respect to such Shares is
granted. The rule set forth in the preceding sentence shall be applied
by taking Options into account in the order in which they were granted.
(C) No ISO shall be granted to an individual
otherwise eligible to participate in the Plan who owns (within the
meaning of Section 424(d) of the Code), at the time the Option is
granted, more than ten percent (10%) of the total combined voting power
of all classes of stock of the Company or a Subsidiary or any "parent
corporation" of the Company within the meaning of Section 424(f) of the
Code. This restriction does not apply if at the time such ISO is
granted the Option exercise price per Share subject to the Option is at
least 110% of the Fair Market Value of a Share on the date such ISO is
granted, and the ISO by its terms is not exercisable after the
expiration of five (5) years
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from such date of grant.
(i) An Option and any Shares received upon the exercise of an
Option shall be subject to such other transfer and/or ownership
restrictions and/or legending requirements as the Committee may
establish in its discretion and which are specified in the Agreement
and may be referred to on the certificates evidencing such Shares. The
Committee may require an Optionee to give prompt Notice to the Company
concerning any disposition of Shares received upon the exercise of an
ISO within: (i) two (2) years from the date of granting such ISO to
such Optionee or (ii) one (1) year from the transfer of such Shares to
such Optionee or (iii) such other period as the Committee may from time
to time determine. The Committee may direct that an Optionee with
respect to an ISO undertake in the applicable Agreement to give such
Notice described in the preceding sentence, at such time and containing
such information as the Committee may prescribe, and/or that the
certificates evidencing Shares acquired by exercise of an ISO refer to
such requirement to give such Notice.
(j) In the event that a transaction described in Section
424(a) of the Code involving the Company or a Subsidiary is
consummated, such as the acquisition of property or stock from an
unrelated corporation, individuals who become eligible to participate
in the Plan in connection with such transaction, as determined by the
Committee, may be granted Options in substitution for stock options
granted by another corporation that is a party to such transaction. If
such substitute Options are granted, the Committee, in its discretion
and consistent with Section 424(a) of the Code, if applicable, and the
terms of the Plan, though notwithstanding paragraph (a) of this Section
6, shall determine the option exercise price and other terms and
conditions of such substitute Options.
7. Transfer, Leave of Absence. For purposes of the Plan, a
transfer of an employee from the Company to an Affiliate (or, for purposes of
any ISO granted under the Plan, a Subsidiary), or vice versa, or from one
Affiliate to another (or in the case of an ISO, from one Subsidiary to another),
and a leave of absence, duly authorized in writing by the Company or an
Affiliate, shall not be deemed a termination of employment of the employee for
purposes of the Plan or with respect to any Option.
8. Rights of Employees and Other Persons. (a) No person shall
have any rights or claims under the Plan except in accordance with the
provisions of the Plan and the applicable Agreement.
(b) Nothing contained in the Plan or in any Agreement
shall be deemed to (i) give any employee or director the right to be retained in
the service of the Company or any Affiliate nor restrict in any way the right of
the Company or any Affiliate to terminate any employee's employment or any
director's directorship at any time with or without cause, or (ii) confer on any
consultant any right of continued relationship with the Company or any
Affiliate, or alter any relationship between them, including the right of the
Company or an Affiliate to terminate its relationship with such consultant.
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(c) The adoption of the Plan shall not be deemed to
give any employee of the Company or any Affiliate or any other person any right
to be selected to participate in the Plan or to be granted an Option.
(d) Nothing contained in the Plan or in any Agreement
shall be deemed to give any employee the right to receive any bonus, whether
payable in cash or in Shares, or in any combination thereof, from the Company or
any Affiliate, nor be construed as limiting in any way the right of the Company
or any Affiliate to determine, in its sole discretion, whether or not it shall
pay any employee bonuses, and, if so paid, the amount thereof and the manner of
such payment.
9. Tax Withholding Obligations. (a) The Company and/or any
Affiliate are authorized to take whatever actions are necessary and proper to
satisfy all obligations of Optionees (including, for purposes of this Section 9,
any other person entitled to exercise an Option pursuant to the Plan or an
Agreement) for the payment of all Federal, state, local and foreign taxes in
connection with any Options (including, but not limited to, actions pursuant to
the following paragraph (b) of this Section 9).
(b) Each Optionee shall (and in no event shall Shares
be delivered to such Optionee with respect to an Option until), no later than
the date as of which the value of the Option first becomes includible in the
gross income of the Optionee for income tax purposes, pay to the Company in
cash, or make arrangements satisfactory to the Company, as determined in the
Committee's discretion, regarding payment to the Company of, any taxes of any
kind required by law to be withheld with respect to the Shares subject to such
Option, and the Company and any Affiliate shall, to the extent permitted by law,
have the right to deduct any such taxes from any payment of any kind otherwise
due to such Optionee. Notwithstanding the above, the Committee may, in its
discretion and pursuant to procedures approved by the Committee, permit the
Optionee to (i) elect withholding by the Company of Shares otherwise deliverable
to such Optionee pursuant to such Option (provided, however, that the amount of
any Shares so withheld shall not exceed the minimum required Federal, state,
local and foreign withholding obligations) and/or (ii) tender to the Company
Shares owned by such Optionee (or by such Optionee and his or her spouse
jointly) and acquired more than six (6) months prior to such tender in full or
partial satisfaction of such tax obligations, based, in each case, on the Fair
Market Value of the Shares on the payment date as determined by the Committee.
10. Changes in Capital. (a) The existence of the Plan and the
Options granted hereunder shall not affect in any way the right or power of the
Board or the shareholders of the Company to make or authorize any adjustment,
recapitalization, reorganization or other change in the Company's capital
structure or its business, any merger or consolidation of the Company or an
Affiliate, any issue of debt, preferred or prior preference shares ahead of or
affecting Shares, the authorization or issuance of additional Shares, the
dissolution or liquidation of the Company or its Affiliates, any sale or
transfer of all or part of its assets or business or any other corporate act or
proceeding.
(b)(i) Upon changes in the outstanding Shares by
reason of a stock dividend, stock split, reverse stock split, subdivision,
recapitalization, reclassification, merger,
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consolidation (whether or not the Company is a surviving corporation),
combination or exchange of Shares, separation, or reorganization, or in the
event of an extraordinary dividend, "spin-off," liquidation, other substantial
distribution of assets of the Company or acquisition of property or stock or
other change in capital of the Company, or the issuance by the Company of shares
of its capital stock without receipt of full consideration therefor, or rights
or securities exercisable, convertible or exchangeable for shares of such
capital stock, or any similar change affecting the Company's capital structure,
the aggregate number, class and kind of shares available under the Plan as to
which Options may be granted and the number, class and kind of shares under each
outstanding Option, the exercise price per share applicable to any such Options
shall be appropriately adjusted by the Committee in its discretion to preserve
the benefits or potential benefits intended to be made available under the Plan
or with respect to any outstanding Options or otherwise necessary to reflect any
such change.
(ii) Fractional Shares resulting from any
adjustment in Options pursuant to this subsection 10(b) shall be aggregated
until, and eliminated at, the time of exercise of the affected Options. Notice
of any adjustment shall be given by the Committee to each Optionee whose Option
has been adjusted and such adjustment (whether or not such Notice is given)
shall be effective and binding for all purposes of the Plan.
(c) In the event of a "Change in Control" (as defined
by the Committee in an Optionee's Agreement or in any employment agreement
between the Optionee and the Company or any Affiliate):
(1) In its discretion and on such terms and
conditions as it deems appropriate, the Committee may provide, either
by the terms of the Agreement applicable to any Option or by a
resolution adopted prior to the occurrence of the Change in Control,
that any outstanding Option shall be accelerated and become immediately
exercisable as to all or a portion of the Shares covered thereby,
notwithstanding anything to the contrary in the Plan or the Agreement.
(2) In its discretion, and on such terms and
conditions as it deems appropriate, the Committee may provide, either
by the terms of the Agreement applicable to any Option or by resolution
adopted prior to the occurrence of the Change in Control, that any
outstanding Option shall be adjusted by substituting for Shares subject
to such Option stock or other securities of the surviving corporation
or any successor corporation to the Company, or a parent or subsidiary
thereof, or that may be issuable by another corporation that is a party
to the transaction resulting in the Change in Control, whether or not
such stock or other securities are publicly traded, in which event the
aggregate exercise price (as applicable) shall remain the same and the
amount of shares or other securities subject to the Option shall be the
amount of shares or other securities which could have been purchased on
the closing date or expiration date of such transaction with the
proceeds which would have been received by the Optionee if the Option
had been exercised in full (or with respect to a portion of such
Option, as determined by the Committee, in its discretion) prior to
such transaction or expiration date and the Optionee exchanged all of
such shares in the transaction.
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(3) In its discretion, and on such terms and
conditions as it deems appropriate, the Committee may provide, either
by the terms of the Agreement applicable to any Option or by resolution
adopted prior to the occurrence of the Change in Control, that any
outstanding Option shall, in each case, be converted into a right to
receive cash following the closing date or expiration date of the
transaction resulting in the Change in Control in an amount equal to
the highest value of the consideration to be received in connection
with such transaction for one Share, or, if higher, the highest Fair
Market Value of a Share during the thirty (30) consecutive business
days immediately prior to the closing date or expiration date of such
transaction, less the per share exercise price of such Option,
multiplied by the number of Shares subject to such Option, or a portion
thereof.
(4) The Committee may, in its discretion, provide
that an Option cannot be exercised after such a Change in Control, to
the extent that such Option is or becomes fully exercisable on or
before such Change in Control or is subject to any acceleration,
adjustment or conversion in accordance with the foregoing paragraphs
(1), (2) or (3) of this subsection 10(c).
No Optionee shall have any right to prevent the consummation of any of the
foregoing acts affecting the number of Shares available to such Optionee. Any
actions or determinations of the Committee under this Subsection 10(c) need not
be uniform as to all outstanding Options, nor treat all Optionees identically.
Notwithstanding the foregoing adjustments, in no event may any Option be
exercised after ten (10) years from the date it was originally granted, and any
changes to ISOs pursuant to this Section 10 shall, unless the Committee
determines otherwise, only be effective to the extent such adjustments or
changes do not cause a "modification" (within the meaning of Section 424(h)(3)
of the Code) of such ISOs or adversely affect the tax status of such ISOs.
11. Miscellaneous Provisions. (a) The Plan shall be unfunded.
The Company shall not be required to establish any special or separate fund or
to make any other segregation of assets to assure the issuance of Shares or the
payment of cash upon exercise or payment of any Option. Proceeds from the sale
of Shares pursuant to Options granted under the Plan shall constitute general
funds of the Company. The expenses of the Plan shall be borne by the Company.
(b) Except as otherwise provided in this paragraph
(b) of Section 11 or by the Committee, an Option by its terms shall be personal
and may not be sold, transferred, pledged, assigned, encumbered or otherwise
alienated or hypothecated otherwise than by will or by the laws of descent and
distribution and shall be exercisable during the lifetime of an Optionee only by
him or her. At the Committee's discretion, an Agreement may permit the exercise
of an Optionee's Option (or any portion thereof) after his or her death by the
beneficiary most recently named by such Optionee in a written designation
thereof filed with the Company, or, in lieu of any such surviving beneficiary,
as designated by the Optionee by will or by the laws of descent and
distribution. In the event any Option is exercised by the executors,
administrators, heirs or distributees of the estate of a deceased Optionee, or
such an Optionee's beneficiary, or the transferee of an Option, in any such case
pursuant to the terms and conditions
Exhibit 10.15
Page 12
of the Plan and the applicable Agreement and in accordance with such terms and
conditions as may be specified from time to time by the Committee, the Company
shall be under no obligation to issue Shares thereunder unless and until the
Committee is satisfied that the person or persons exercising such Option is the
duly appointed legal representative of the deceased Optionee's estate or the
proper legatees or distributees thereof or the named beneficiary of such
Optionee, or the valid transferee of such Option, as applicable.
(c)(i) If at any time the Committee shall determine,
in its discretion, that the listing, registration and/or qualification of Shares
upon any securities exchange or under any state or Federal law, or the consent
or approval of any governmental regulatory body, is necessary or desirable as a
condition of, or in connection with, the sale or purchase of Shares hereunder,
no Option may be exercised in whole or in part unless and until such listing,
registration, qualification, consent and/or approval shall have been effected or
obtained, or otherwise provided for, free of any conditions not acceptable to
the Committee.
(ii) If at any time counsel to the Company
shall be of the opinion that any sale or delivery of Shares pursuant to an
Option is or may be in the circumstances unlawful or result in the imposition of
excise taxes on the Company under the statutes, rules or regulations of any
applicable jurisdiction, the Company shall have no obligation to make such sale
or delivery, or to make any application or to effect or to maintain any
qualification or registration under the Securities Act, or otherwise with
respect to Shares or Options, and the right to exercise any Option shall be
suspended until, in the opinion of such counsel, such sale or delivery shall be
lawful or will not result in the imposition of excise taxes on the Company.
(iii) Upon termination of any period of
suspension under this subsection 11(c), any Option affected by such suspension
which shall not then have expired or terminated shall be reinstated as to all
shares available before such suspension and as to the shares which would
otherwise have become available during the period of such suspension, but no
suspension shall extend the term of any Option.
(d) The Committee may require each person receiving
Shares in connection with any Option under the Plan to represent and agree with
the Company in writing that such person is acquiring the Shares for investment
without a view to the distribution thereof. The Committee, in its absolute
discretion, may impose such restrictions on the ownership and transferability of
the Shares purchasable or otherwise receivable by any person under any Option as
it deems appropriate. Any such restrictions shall be set forth in the applicable
Agreement, and the certificates evidencing such shares may include any legend
that the Committee deems appropriate to reflect any such restrictions.
(e) The Committee may, in its discretion, extend one
or more loans to Optionees who are key employees or directors of the Company or
an Affiliate in connection with the exercise or receipt of an Option granted to
any such individuals. The terms and conditions of any such loan shall be
established by the Committee.
(f) In the discretion of the Committee, an Optionee
may elect irrevocably (at a time and in a manner determined by the Committee)
prior to exercising an
Exhibit 10.15
Page 13
Option that delivery of Shares upon such exercise shall be deferred until a
future date and/or the occurrence of a future event or events, specified in such
election. Upon the exercise of any such Option and until the delivery of any
deferred shares, the number of Shares otherwise issuable to the Optionee shall
be credited to a memorandum account in the records of the Company and any
dividends or other distributions payable on such Shares shall be deemed
reinvested in additional Shares, in a manner determined by the Committee, until
all Shares credited to such Optionee's memorandum account shall become issuable
pursuant to the Optionee's election.
(g) By accepting any benefit under the Plan, each
Optionee and each person claiming under or through such Optionee shall be
conclusively deemed to have indicated their acceptance and ratification of, and
consent to, all of the terms and conditions of the Plan and any action taken
under the Plan by the Committee, the Company or the Board, in any case in
accordance with the terms and conditions of the Plan.
(h) Neither the adoption of the Plan nor anything
contained herein shall affect any other compensation or incentive plans or
arrangements of the Company or any Affiliate, or prevent or limit the right of
the Company or any Affiliate to establish any other forms of incentives or
compensation for their employees, directors or consultants, or grant or assume
options or other rights otherwise than under the Plan.
(i) The Plan shall be governed by and construed in
accordance with the laws of the State of New York, without regard to such
state's choice of law provisions, except as superseded by applicable United
States Federal law or the laws of the Netherlands Antilles.
(j) The words "Section," "subsection" and "paragraph"
herein shall refer to provisions of the Plan, unless expressly indicated
otherwise. Wherever any words are used in the Plan or any Agreement in the
masculine gender they shall be construed as though they were also used in the
feminine gender in all cases where they would so apply, and wherever any words
are used herein in the singular form they shall be construed as though they were
also used in the plural form in all cases where they would so apply.
(k) The Company shall bear all costs and expenses
incurred in administering the Plan, including expenses of issuing Shares
pursuant to any Options granted hereunder.
12. Limits of Liability. (a) Any liability of the Company or
an Affiliate to any Optionee with respect to any Option shall be based solely
upon contractual obligations created by the Plan and the Agreement.
(b) None of the Company, any Affiliate, any member of
the Committee or the Board, or any other person participating in any
determination of any question under the Plan, or in the interpretation,
administration or application of the Plan, shall have any liability, in the
absence of bad faith, to any party for any action taken or not taken in
connection with the Plan, except as may expressly be provided by statute.
13. Amendments and Termination. The Board may, at any time and
with or
Exhibit 10.15
Page 14
without prior notice, amend, alter, suspend, or terminate the Plan,
retroactively or otherwise; provided, however, unless otherwise required by law
or specifically provided herein, no such amendment, alteration, suspension, or
termination shall be made which would impair the previously accrued rights of
any holder of an Option theretofore granted without his or her written consent,
or which, without first obtaining approval of the shareholders of the Company
(where such approval is necessary to satisfy (i) with regard to ISOs, any
requirements under the Code relating to ISOs or (ii) any applicable law,
regulation or rule), would:
(a) except as is provided in Section 10, increase the
maximum number of Shares which may be sold or awarded
under the Plan;
(b) except as is provided in Section 10, decrease the
minimum option exercise price requirements of Section
6(a);
(c) change the class of persons eligible to receive
Options under the Plan; or
(d) extend the duration of the Plan or the period during
which Options may be exercised under Section 6(b).
The Committee may amend the terms of any Option theretofore
granted, including any Agreement, retroactively or prospectively, but no such
amendment shall impair the previously accrued rights of any Optionee without his
or her written consent.
14. Duration. Following the adoption of the Plan by the Board,
the Plan shall become effective as of the date on which it is approved by the
holders of a majority of the Company's outstanding Shares which are present and
voted at a meeting, or by written consent in lieu of a meeting, which approval
must occur within the period ending twelve (12) months after the date the Plan
is adopted by the Board. The Plan shall terminate upon the earliest to occur of:
(a) the effective date of a resolution adopted by the
Board terminating the Plan;
(b) the date all Shares subject to the Plan are delivered
pursuant to the Plan's provisions; or
(c) ten (10) years from the date the Plan is approved by
the Company's shareholders.
No Option may be granted under the Plan after the earliest to occur of the
events or dates described in the foregoing paragraphs (a) through (c) of this
Section 14; however, Options theretofore granted may extend beyond such date.
No such termination of the Plan shall affect the previously
accrued rights of any Optionee hereunder and all Options previously granted
hereunder shall continue in force and in operation after the termination of the
Plan, except as they may be otherwise terminated in accordance with the terms of
the Plan or the Agreement.