HUB GROUP, INC.
1997 LONG-TERM INCENTIVE PLAN
HUB GROUP, INC.
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Certificate
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I, ___________ , ________________ of Hub Group, Inc., having in my
custody and possession the corporate records of said corporation, do hereby
certify that attached hereto is a true and correct copy of the Hub Group, Inc.
1997 Long-Term Incentive Plan as in effect October 28, 1997.
WITNESS my hand this ____ day of ________________, 1997.
______________________
As Aforesaid
TABLE OF CONTENTS
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SECTION 1.................................................................. 1
GENERAL............................................................ 1
1.1. Purpose ................................................ 1
1.2. Participation........................................... 1
1.3. Operation and Administration............................ 2
SECTION 2.................................................................. 2
OPTIONS............................................................ 2
2.1. Definition.............................................. 2
2.2. Eligibility............................................. 2
2.3. Price ................................................ 2
2.4. Exercise................................................ 3
2.5. Post-Exercise Limitations............................... 4
2.6. Expiration Date......................................... 4
2.7. Reload of Option. ...................................... 4
2.8. Dividend Equivalents.................................... 4
SECTION 3.................................................................. 5
STOCK APPRECIATION RIGHTS.......................................... 5
3.1. Definition.............................................. 5
3.2. Eligibility............................................. 5
3.3. Exercise................................................ 5
3.4. Settlement of Award..................................... 6
3.5. Post-Exercise Limitations............................... 6
3.6. Expiration Date......................................... 6
3.7. Dividend Equivalents.................................... 6
SECTION 4.................................................................. 7
RESTRICTED STOCK................................................... 7
4.1. Definition.............................................. 7
4.2. Eligibility............................................. 7
4.3. Terms and Conditions of Awards.......................... 7
SECTION 5.................................................................. 8
PERFORMANCE UNITS.................................................. 8
5.1. Definition.............................................. 8
5.2. Eligibility............................................. 8
5.3. Terms and Conditions of Awards.......................... 8
5.4. Payment ................................................ 8
5.5. Termination during Performance Period................... 9
SECTION 6.................................................................. 9
DIRECTORS AUTOMATIC OPTION GRANT................................... 9
6.1. Definition.............................................. 9
6.2. Participation........................................... 9
6.3. Price ................................................ 10
6.4. Exercise................................................ 10
6.5. Expiration Date......................................... 11
6.6. Agreement With Company.................................. 11
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SECTION 7.................................................................. 12
OPERATION AND ADMINISTRATION....................................... 12
7.1. Effective Date.......................................... 12
7.2. Shares Subject to Plan.................................. 12
7.3. Adjustments to Shares................................... 12
7.4. Limit on Distribution................................... 14
7.5. Liability for Cash Payments............................. 15
7.6. Performance-Based Compensation.......................... 15
7.7. Withholding............................................. 16
7.8. Transferability......................................... 16
7.9. Administration.......................................... 16
7.10. Notices................................................ 16
7.11. Form and Time of Elections............................. 16
7.12. Agreement With Company................................. 16
7.13. Limitation of Implied Rights........................... 16
7.14. Benefits Under Qualified Retirement Plans.............. 17
7.15. Evidence............................................... 17
7.16. Action by Employers.................................... 17
7.17. Gender and Number...................................... 17
7.18. Defined Terms.......................................... 17
SECTION 8.................................................................. 19
COMMITTEE.......................................................... 19
8.1. Selection of Committee.................................. 19
8.2. Powers of Committee..................................... 19
8.3. Delegation by Committee................................. 20
8.4. Information to be Furnished to Committee................ 21
8.5. Liability and Indemnification of Committee.............. 21
SECTION 9.................................................................. 21
AMENDMENT AND TERMINATION.......................................... 21
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HUB GROUP, INC.
1997 LONG-TERM INCENTIVE PLAN
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SECTION 1
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GENERAL
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1.1 Purpose. The Hub Group, Inc. 1997 Long-Term Incentive
Plan (the "Plan") has been established by Hub Group, Inc. (the
"Company") to:
(a) attract and retain key executive and managerial employees;
(b) attract and retain the services of experienced and
knowledgeable directors;
(c) motivate participating employees, by means of appropriate
incentives, to achieve long-range goals;
(d) provide incentive compensation opportunities that are competitive
with those of other corporations; and
(e) further identify Participants' interests with those of the
Company's other shareholders through compensation that is based on
the Company's common stock;
and thereby promote the long-term financial interest of the Company and the
Related Companies, including the growth in value of the Company's equity
and enhancement of long-term shareholder return.
1.2 Participation. Participation in the Plan shall be subject to
the following:
(a) Subject to the terms and conditions of the Plan, the
Committee shall determine and designate, from time to time,
from among the employees of the Employers who are key
executives or managerial employees, those persons who will
be granted one or more Awards under the Plan, and thereby
become "Participants" in the Plan. In the discretion of the
Committee, and subject to the terms of the Plan, a
Participant may be granted any Award permitted under the
provisions of the Plan, and more than one Award may be
granted to a Participant. However, the right to receive an
Option under Section 6 shall be subject to the limitations
of that section.
(b) Subject to the terms and conditions of the Plan, Eligible
Directors shall receive Option Awards in accordance with the
1
provisions of Section 6, and thereby become "Participants" in the
Plan. Individuals shall not be eligible for Awards under Sections
2, 3, 4 and 5 during the period in which they are Eligible
Directors.
Except as otherwise provided by the Committee and consented to by the
Participant, or except as otherwise provided in the Plan, an Award under
the Plan shall not affect any previous Award under the Plan or an award
under any other plan maintained by the Company or the Related Companies.
1.3 Operation and Administration. The operation and administration
of the Plan, including the Awards made under the Plan, shall be subject to
the provisions of Section 7. Capitalized terms in the Plan shall be defined
as set forth in the Plan (including subsection 7.18 of the Plan).
SECTION 2
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OPTIONS
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2.1 Definitions. The grant of an Option under this Section 2
entitles the Participant to purchase shares of Stock at a price fixed at
the time the Option is granted, or at a price determined under a method
established at the time the Option is granted, subject to the terms of this
Section 2. An Option granted under this Section 2 is not intended to
satisfy the requirements applicable to an "incentive stock option" as
described in section 422(b) of the Code.
2.2 Eligibility. The Committee shall designate the Participants to
whom Options are to be granted under this Section 2 and shall determine the
number of shares of Stock to be subject to each such Option.
2.3 Price. The determination and payment of the purchase price of
a share of Stock under each Option granted under this Section 2 shall be
subject to the following:
(a) The purchase price shall be established by the Committee or shall
be determined by a method established by the Committee at the time
the Option is granted; provided, however, that in no event shall
such price be less than the greater of (i) 100% of the Fair Market
Value of a share of Stock as of the date on which the Option is
granted; or (ii) the par value of a share of Stock on such date.
(b) Subject to the following provisions of this subsection 2.3, the
full purchase price of each share of Stock purchased upon the
exercise of any Option shall be paid at the time of such exercise
and, as soon as practicable thereafter, a
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certificate representing the shares so purchased shall be
delivered to the person entitled thereto.
(c) The purchase price shall be payable in cash or in shares of Stock
(valued at Fair Market Value as of the day of exercise), or in any
combination thereof, as determined by the Committee.
(d) A Participant may elect to pay the purchase price upon the
exercise of an Option through the following cashless
exercise procedures: The Participant shall notify the
Corporate Secretary of the intent to exercise. Written
instructions will then be prepared and delivered to the
Company and the broker indicating the Participant's cashless
election and instructing the Company to deliver to the
broker the Common Stock issuable upon exercise. The
exercise of the Option will be executed on the same day that
the broker is able to sell the stock. The broker will then
withhold from the proceeds of the sale and deliver to the
Company an amount, in cash, equal to the Option exercise
price. An additional amount for federal and state tax
withholdings may also be withheld and delivered to the
Company at the Participant's election.
2.4 Exercise. Except as otherwise expressly provided in the Plan,
an Option granted under this Section 2 shall be exercisable in accordance
with the following terms of this subsection 2.4:
(a) The terms and conditions relating to exercise of an Option shall
be established by the Committee, and may include, without
limitation, conditions relating to completion of a specified
period of service or achievement of performance standards prior to
exercise of the Option.
(b) No Option may be exercised by a Participant: (i) prior to
the date on which the Participant completes one continuous
year of employment with the Company or any Related Company
after the date as of which the Option is granted (provided,
however, that the Committee may permit earlier exercise
following the Participant's Date of Termination by reason of
death or Disability); or (ii) after the Expiration Date
applicable to that Option.
(c) The exercise of an Option will result in the surrender of the
corresponding rights under a tandem Stock Appreciation Right, if
any.
2.5 Post-Exercise Limitations. The Committee, in its
discretion, may impose such restrictions on shares of Stock
acquired pursuant to the exercise of an Option (including stock
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acquired pursuant to the exercise of a tandem Stock Appreciation Right) as
it determines to be desirable, including, without limitation, restrictions
relating to disposition of the shares and forfeiture restrictions based on
service, performance and such other factors as the Committee determines to
be appropriate.
2.6 Expiration Date. The "Expiration Date" with respect to an
Option means the date established as the Expiration Date by the Committee
at the time of the grant; provided, however, that the Expiration Date with
respect to any Option shall not be later than the earliest to occur of:
(a) the ten-year anniversary of the date on which the Option is
granted;
(b) if the Participant's Date of Termination occurs by reason of
Retirement, death or Disability, the one-year anniversary of such
Date of Termination; or
(c) if the Participant's Date of Termination occurs for reasons other
than Retirement, death or Disability, the 60-day period following
such Date of Termination.
2.7 Reload of Option. In the event the Participant exercises an
Option and pays all or a portion of the purchase price in Common Stock, in
the manner permitted by subsection 2.3, such Participant may, in the
Committee's discretion, be issued a new Option to purchase additional
shares of Stock equal to the number of shares of Stock surrendered to the
Company in such payment. Such new Option shall have an exercise price equal
to the Fair Market Value per share on the date such new Option is granted,
shall first be exercisable six months from the date of grant of the new
Option and shall have an Expiration Date on the same date as the Expiration
Date of the original Option so exercised by payment of the purchase price
in shares of Stock.
2.8 Dividend Equivalents. The Committee may award Dividend
Equivalents with respect to Options. The award of Dividend Equivalents
shall permit the Participant to earn an amount equal to the dividends
payable with respect to the number of shares of Stock subject to the Option
for the period the Option is outstanding and unexercised. The right to
payment of such earned dividends shall be subject to such restrictions and
limitations as may be imposed by the Committee.
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SECTION 3
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STOCK APPRECIATION RIGHTS
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3.1 Definition. Subject to the terms of this Section 3, a Stock
Appreciation Right granted under the Plan entitles the Participant to
receive, in cash or Stock (as determined in accordance with subsection
3.4), value equal to all or a portion of the excess of: (a) the Fair Market
Value of a specified number of shares of Stock at the time of exercise;
over (b) a specified price which shall not be less than 100% of the Fair
Market Value of the Stock at the time the Stock Appreciation Right is
granted, or, if granted in tandem with an Option, the exercise price with
respect to shares under the tandem Option.
3.2 Eligibility. Subject to the provisions of the Plan, the
Committee shall designate the Participants to whom Stock Appreciation
Rights are to be granted under the Plan, shall determine the exercise price
or a method by which the price shall be established with respect to each
such Stock Appreciation Right, and shall determine the number of shares of
Stock on which each Stock Appreciation Right is based. A Stock Appreciation
Right may be granted in connection with all or any portion of a previously
or contemporaneously granted Option or not in connection with an Option. If
a Stock Appreciation Right is granted in connection with an Option, then,
in the discretion of the Committee, the Stock Appreciation Right may, but
need not be granted in tandem with the Option.
3.3 Exercise. The exercise of Stock Appreciation Rights shall be
subject to the following:
(a) If a Stock Appreciation Right is not in tandem with an
Option, then the Stock Appreciation Right shall be
exercisable in accordance with the terms established by the
Committee in connection with such rights; provided, however,
that except as otherwise expressly provided in the Plan, no
Stock Appreciation Right may be exercised by a Participant
(i) prior to the date on which he completes one continuous
year of employment with the Company or any Related Company
after the date as of which the Stock Appreciation Right is
granted (provided, however, that the Committee may permit
earlier exercise following the Participant's Date of
Termination by reason of death or Disability); or (ii) after
the Expiration Date applicable to that Stock Appreciation
Right.
(b) If a Stock Appreciation Right is in tandem with an Option, then
the Stock Appreciation Right shall be exercisable at the time the
tandem Option is exercisable. The exercise of
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a Stock Appreciation Right will result in the surrender of the
corresponding rights under the tandem Option.
3.4 Settlement of Award. Upon the exercise of a Stock Appreciation
Right, the value to be distributed to the Participant, in accordance with
subsection 3.1, shall be distributed in shares of Stock (valued at their
Fair Market Value at the time of exercise), in cash, or in a combination
thereof, in the discretion of the Committee.
3.5 Post-Exercise Limitations. The Committee, in its discretion,
may impose such restrictions on shares of Stock acquired pursuant to the
exercise of a Stock Appreciation Right as it determines to be desirable,
including, without limitation, restrictions relating to disposition of the
shares and forfeiture restrictions based on service, performance and such
other factors as the Committee determines to be appropriate.
3.6 Expiration Date. If a Stock Appreciation Right is in tandem
with an Option, then the "Expiration Date" for the Stock Appreciation Right
shall be the Expiration Date for the related Option. If a Stock
Appreciation Right is not in tandem with an Option, then the "Expiration
Date" for the Stock Appreciation Right shall be the date established as the
Expiration Date by the Committee; provided, however, that subject to the
following provisions of this subsection 3.6, the Expiration Date with
respect to any Stock Appreciation Right shall not be later than the
earliest to occur of:
(a) the ten-year anniversary of the date on which the Stock
Appreciation Right is granted;
(b) if the Participant's Date of Termination occurs by reason of
Retirement, death or Disability, the one-year anniversary of such
Date of Termination;
(c) if the Participant's Date of Termination occurs by reason other
than Retirement, death, or Disability, 60 days after such Date of
Termination.
3.7 Dividend Equivalents. The Committee may award Dividend
Equivalents with respect to Stock Appreciation Rights. The award of
Dividend Equivalents shall permit the Participant to earn an amount equal
to the dividends payable with respect to the number of shares of Stock that
are subject to the Stock Appreciation Rights for the period the Stock
Appreciation Rights are outstanding and unexercised. The right to payment
of such earned dividends shall be subject to such restrictions and
limitations as may be imposed by the Committee.
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SECTION 4
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RESTRICTED STOCK
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4.1 Definition. Subject to the terms of this Section 4, Restricted
Stock Awards under the Plan are grants of Stock to Participants, the
vesting of which is subject to such conditions as may be established by the
Committee.
4.2 Eligibility. The Committee shall designate the Participants to
whom Restricted Stock is to be granted, and the number of shares of Stock
that are subject to each such Award.
4.3 Terms and Conditions of Awards. Shares of Restricted Stock
granted to Participants under the Plan shall be subject to the following
terms and conditions:
(a) Restricted Stock granted to Participants may not be sold,
assigned, transferred, pledged or otherwise encumbered,
except as hereinafter provided, for a period of not less
than one year after the time of the grant of such Stock (the
"Restricted Period"). Except for such restrictions, the
Participant as owner of such shares shall have all the
rights of a shareholder, including but not limited to the
right to vote such shares and, except as otherwise provided
by the Committee, the right to receive all dividends paid on
such shares. The Committee may, in its discretion, at any
time after the date of the award of Restricted Stock, adjust
the length of the Restricted Period to account for
individual circumstances of a Participant or group of
Participants, but in no case shall the length of the
Restricted Period be less than one year.
(b) Except as otherwise determined by the Committee, a Participant
whose Date of Termination occurs prior to the end of the
Restricted Period for any reason shall forfeit all shares of
Restricted Stock remaining subject to any outstanding Restricted
Stock Award.
(c) The Committee may, in its discretion, condition the vesting of
shares of Restricted Stock on the achievement of performance
goals.
(d) Each certificate issued in respect of shares of Restricted Stock
granted under the Plan shall be registered in the name of the
Participant and, at the discretion of the Committee, each such
certificate may be deposited in a bank designated by the
Committee. Each such certificate shall bear the following (or a
similar) legend:
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"The transferability of this certificate and the shares
of stock represented hereby are subject to the terms and
conditions (including forfeiture) contained in the Hub
Group, Inc. 1997 Long-Term Incentive Plan and an
agreement entered into between the registered owner and
Hub Group, Inc. A copy of such plan and agreement is on
file in the office of the Secretary of Hub Group, Inc.,
377 East Butterfield Road, Suite 700, Lombard, Illinois
60148."
(e) Subject to the limitations of the Plan and the Award of Restricted
Stock, at the end of the Restricted Period for Restricted Stock,
such Restricted Stock will be transferred free of all restrictions
to a Participant (or his or her legal representative, beneficiary
or heir).
SECTION 5
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PERFORMANCE UNITS
5.1 Definition. Subject to the terms of this Section 5, the Award
of Performance Units under the Plan entitles the Participant to receive
value for the units at the end of a Performance Period to the extent
provided under the Award. The number of units earned, and value received
for them, will be contingent on the degree to which the performance
measures established at the time of the initial Award are met.
5.2 Eligibility. The Committee shall designate the Participants to
whom Performance Units are to be granted, and the number of units to be the
subject to each such Award.
5.3 Terms and Conditions of Awards. For each Participant, the
Committee will determine the number of units granted; the value of units,
which may be stated either in cash or in shares of Stock; the performance
measures used for determining whether the Performance Units are earned; the
Performance Period during which the performance measures will apply; the
relationship between the level of achievement of the performance measures
and the degree to which Performance Units are earned; whether, during or
after the Performance Period, any revision to the performance measures or
Performance Period should be made to reflect significant events or changes
that occur during the Performance Period; and the number of earned
Performance Units that will be paid in cash and/or shares of Stock.
5.4 Payment. The Committee will compare the actual performance to
the performance measures established for the Performance Period and
determine the number of units to be paid and their value. Payment for units
earned shall be wholly in cash, wholly in Stock or in a combination of the
two, in a lump
8
sum or installments, and subject to vesting requirements and such other
conditions as the Committee shall determine. The Committee will determine
the number of earned units to be paid in cash and the number to be paid in
Stock. For Performance Units valued when granted in shares of Stock, one
share of Stock will be paid for each unit earned, or cash will be paid for
each unit earned equal to either (a) the Fair Market Value of a share of
Stock at the end of the Performance Period or (b) the value of the Stock
determined based on the average Fair Market Value for a number of days
determined by the Committee. For Performance Units valued when granted in
cash, the value of each unit earned will be paid in its initial cash value,
or shares of Stock will be distributed based on the cash value of the units
earned divided by (a) the Fair Market Value of a share of Stock at the end
of the Performance Period or (b) the value of a share of Stock determined
based on the average Fair Market Value for a number of days determined by
the Committee.
5.5 Termination during Performance Period. If a Participant's Date
of Termination occurs during a Performance Period with respect to any
Performance Shares granted to him, the Committee may determine that the
Participant will be entitled to receive all or any portion of the
Performance Shares that he would otherwise receive, and may accelerate the
determination and payment of the value of such Performance Shares or make
such other adjustments as the Committee, in its sole discretion, deems
desirable.
SECTION 6
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DIRECTORS AUTOMATIC OPTION GRANT
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6.1 Definition. The grant of an Option under this Section 6
entitles the Participant to purchase shares of Stock at a price fixed at
the time the Option is granted. An Option granted under this Section 6
shall not affect any Award previously granted under the Plan or an award
under any other plan maintained by the Company or the Related Companies. An
Option granted under this Section 6 is not intended to satisfy the
requirements applicable to an "incentive stock option" as described in
section 422(b) of the Code.
6.2 Participation. Subject to the following provisions of this
subsection 6.2, each Director who is an Eligible Director shall be granted
an "Option", which shall be an option to purchase 12,000 shares of Stock
(as adjusted pursuant to subsection 7.3). Each Director who becomes an
Eligible Director on or after the Effective Date (as defined in subsection
7.1) and who has not previously received an Option award under this Section
6 or under Section 6 of the Hub Group, Inc. 1996 Long- Term Incentive Plan
shall receive the Option Award described in
9
this subsection 6.2 as of the first business day immediately following the
date he becomes an Eligible Director. A Director may not receive more than
one Option Award under this Section 6 or under Section 6 of the Hub Group,
Inc. 1996 Long-Term Incentive Plan. For purposes of the Plan, each Director
who is not an employee of the Company or any Related Company shall be an
"Eligible Director".
6.3 Price. The determination and payment of the purchase price of
a share of Stock under each Option granted pursuant to this Section 6 shall
be subject to the following:
(a) The purchase price shall be the greater of (a) 100% of the Fair
Market Value of a share of Stock as of the date on which such
Option is granted; or (b) the par value of a share of such Stock
on such date.
(b) The full purchase price of each share of Stock purchased upon the
exercise of any Option shall be paid at the time of such exercise
and, as soon as practicable thereafter, a certificate representing
the shares so purchased shall be delivered to the person entitled
thereto.
(c) The purchase price shall be payable in cash or in shares of Stock
(valued at Fair Market Value as of the day of exercise), or in any
combination thereof.
(d) A Participant may elect to pay the purchase price upon the
exercise of an Option granted pursuant to this Section 6
through the following cashless exercise procedures: The
Participant shall notify the Corporate Secretary of the
intent to exercise. Written instructions will then be
prepared and delivered to the Company and the broker
indicating the Participant's cashless election and
instructing the Company to deliver to the broker the Common
Stock issuable upon exercise. The exercise of the Option
will be executed on the same day that the broker is able to
sell the stock. The broker will then withhold from the
proceeds of the sale and deliver to the Company an amount,
in cash, equal to the Option exercise price. An additional
amount for federal and state tax withholdings may also be
withheld and delivered to the Company at the Participant's
election.
6.4 Exercise. An Option granted under this Section 6 shall be
first exercisable with respect to each 1/3 of the number of shares of Stock
subject to the Option on the date of each of the first, second and third
annual anniversaries of the date as of which the Option is granted,
respectively, but only if the Participant continues to serve as a Director
until such annual anniversary (or is employed by the Company or any Related
Company
10
until such anniversary). Notwithstanding the foregoing, 100% of an Option
granted to a Participant under this Section 6 will become fully exercisable
on the date the Participant ceases to be a Director if such cessation
occurs by reason of the Participant's death or Disability. An Option
granted under this Section 6 will not be exercisable after the Expiration
Date applicable to that Option, and all rights to purchase shares of Stock
pursuant to the Option shall cease as of the Option's Expiration Date.
6.5 Expiration Date. The "Expiration Date" with respect to an
Option granted under this Section 6 means the earliest to occur of:
(a) the ten-year anniversary of the date on which the Option is
granted;
(b) if the Participant ceases to be a Director by reason of death or
Disability, or ceases to be a Director after attainment of age 65,
the one-year anniversary of the date he ceases to be a Director;
and
(c) if the Participant ceases to be a Director prior to age 65 for
reasons other than death or Disability, the three-month
anniversary of the date he ceases to be a Director.
A Participant shall not be permitted to exercise an Option granted under
this Section 6 after the Participant ceases to be a Director except to the
extent that the Option is exercisable immediately prior to such cessation.
For purposes of this subsection 6.5, if, at the time a Participant ceases
to be a Director, he is employed by the Company or a Related Company, then
the Expiration Date of the Participant's Option under this subsection 6.5
shall be determined by substituting, in paragraphs 6.5(b) and (c), the
Participant's Date of Termination for the date he ceases to serve as a
Director.
6.6 Agreement With Company. Each Option granted under this Section
6 shall be evidenced by an Agreement (an "Agreement") duly executed on
behalf of the Company and by the Participant to whom such option is granted
and dated as of the applicable date of grant. Each Agreement shall comply
with and be subject to the terms of the Plan.
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SECTION 7
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OPERATION AND ADMINISTRATION
----------------------------
7.1 Effective Date. The Plan shall be effective October 28, 1997
(the "Effective Date"). The Plan shall be unlimited in duration and, in the
event of Plan termination, shall remain in effect as long as any Awards
under it are outstanding; provided, however, that no Awards may be granted
under the Plan on a date that is more than ten years from the date the Plan
is adopted.
7.2 Shares Subject to Plan. The shares of Stock with respect to
which Awards may be made under the Plan shall be shares currently
authorized but unissued or currently held or subsequently acquired by the
Company as treasury shares, including shares purchased in the open market
or in private transactions. Subject to the provisions of subsection 7.3,
the number of shares of Stock which may be issued with respect to Awards
under the Plan shall not exceed 150,000 shares in the aggregate. Except as
otherwise provided herein, any shares subject to an Award which for any
reason expires or is terminated without issuance of shares (whether or not
cash or other consideration is paid to a Participant in respect of such
shares) shall again be available under the Plan.
7.3 Adjustments to Shares.
(a) If the Company shall effect any subdivision or consolidation
of shares of Stock or other capital readjustment, payment of
stock dividend, stock split, combination of shares or
recapitalization or other increase or reduction of the
number of shares of Stock outstanding without receiving
compensation therefor in money, services or property, then
the Committee shall adjust (i) the number of shares of Stock
available under the Plan; (ii) the number of shares
available under any individual or other limits; (iii) the
number of shares of Stock subject to outstanding Awards and
the number of shares of Stock subject to future automatic
grant as provided in Section 6; and (iv) the per-share price
under any outstanding Award and the per-share purchase price
under any future automatic grant as provided in Section 6 to
the extent that the Participant is required to pay a
purchase price per share with respect to the Award.
(b) If the Company is reorganized, merged or consolidated or is party
to a plan of exchange with another corporation, pursuant to which
reorganization, merger, consolidation or plan of exchange the
shareholders of the Company receive any shares of stock or other
securities or property, or the Company shall distribute securities
of another corporation to its shareholders, there shall be
substituted for the
12
shares subject to outstanding Awards an appropriate number of
shares of each class of stock or amount of other securities or
property which were distributed to the shareholders of the Company
in respect of such shares, subject to the following:
(1) If the Committee determines that the substitution
described in accordance with the foregoing
provisions of this paragraph (b) would not be fully
consistent with the purposes of the Plan or the
purposes of the outstanding Awards under the Plan,
the Committee may make such other adjustments to the
Awards to the extent that the Committee determines
such adjustments are consistent with the purposes of
the Plan and of the affected Awards.
(2) All or any of the Awards may be cancelled by the
Committee on or immediately prior to the effective
date of the applicable transaction, but only if the
Committee gives reasonable advance notice of the
cancellation to each affected Participant, and only
if either: (A) the Participant is permitted to
exercise the Award for a reasonable period prior to
the effective date of the cancellation; or (B) the
Participant receives payment or other benefits that
the Committee determines to be reasonable
compensation for the value of the cancelled Awards.
(3) Upon the occurrence of a reorganization of the
Company or any other event described in this
paragraph (b), any successor to the Company shall be
substituted for the Company to the extent that the
Company and the successor agree to such
substitution.
(c) Upon (or, in the discretion of the Committee, immediately prior
to) the sale to (or exchange with) a third party unrelated to the
Company of all or substantially all of the assets of the Company,
all Awards shall be cancelled. If Awards are cancelled under this
paragraph (c) then, with respect to any affected Participant,
either:
(1) the Participant shall be provided with reasonable
advance notice of the cancellation, and the
Participant shall be permitted to exercise the Award
for a reasonable period prior to the effective date
of the cancellation; or
(2) the Participant shall receive payment or other
benefits that the Committee determines to be
13
reasonable compensation for the value of the
cancelled Awards.
The foregoing provisions of this paragraph (c) shall also apply to
the sale of all or substantially all of the assets of the Company
to a related party, if the Committee determines such application
is appropriate.
(d) In determining what action, if any, is necessary or
appropriate under the foregoing provisions of this
subsection 7.3, the Committee shall act in a manner that it
determines to be consistent with the purposes of the Plan
and of the affected Awards and, where applicable or
otherwise appropriate, in a manner that it determines to be
necessary to preserve the benefits and potential benefits of
the affected Awards for the Participants and the Employers.
(e) The existence of this Plan and the Awards granted hereunder
shall not affect in any way 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,
any merger or consolidation of the Company, any issue of
bonds, debentures, preferred or prior preference stocks
ahead of or affecting the Company's Stock or the rights
thereof, the dissolution or liquidation of the Company, 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.
(f) Except as expressly provided by the terms of this Plan, the
issue by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class,
for cash or property or for labor or services, either upon
direct sale, upon the exercise of rights or warrants to
subscribe therefor or upon conversion of shares or
obligations of the Company convertible into such shares or
other securities, shall not affect, and no adjustment by
reason thereof shall be made with respect to Awards then
outstanding hereunder.
(g) Awards under the Plan are subject to adjustment under this
subsection 7.3 only during the period in which they are considered
to be outstanding under the Plan, with the determination of
whether an Award is outstanding to be made by the Committee.
7.4 Limit on Distribution. Distribution of shares of Stock or
other amounts under the Plan shall be subject to the following:
14
(a) Notwithstanding any other provision of the Plan, the Company shall
have no liability to deliver any shares of Stock under the Plan or
make any other distribution of benefits under the Plan unless such
delivery or distribution would comply with all applicable laws and
the applicable requirements of any securities exchange or similar
entity.
(b) In the case of a Participant who is subject to Section 16(a)
and 16(b) of the Securities Exchange Act of 1934, the
Committee may, at any time, add such conditions and
limitations to any Award to such Participant, or any feature
of any such Award, as the Committee, in its sole discretion,
deems necessary or desirable to comply with Section 16(a) or
16(b) and the rules and regulations thereunder or to obtain
any exemption therefrom.
7.5 Liability for Cash Payments. Subject to the provisions of this
Section 7, an Employer shall be liable for payment of cash due under the
Plan with respect to any Participant to the extent that such benefits are
attributable to the services rendered for that Employer by the Participant.
Any disputes relating to liability of Employers for cash payments shall be
resolved by the Committee.
7.6 Performance-Based Compensation. To the extent that the
Committee determines that it is necessary or desirable to conform any
Awards under the Plan with the requirements applicable to
"Performance-Based Compensation", as that term is used in Code section
162(m)(4)(C), it may, at or prior to the time an Award is granted, take
such steps and impose such restrictions with respect to such Award as it
determines to be necessary to satisfy such requirements, including without
limitation:
(a) The establishment of performance goals that must be satisfied
prior to the payment or distribution of benefits under such
Awards.
(b) The submission of such Awards and performance goals to the
Company's shareholders for approval and making the receipt of
benefits under such Awards contingent on receipt of such approval.
(c) Providing that no payment or distribution be made under such
Awards unless the Committee certifies that the goals and the
applicable terms of the Plan and Agreement reflecting the Awards
have been satisfied.
To the extent that the Committee determines that the foregoing requirements
relating to Performance-Based Compensation do not apply to Awards under the
Plan because the Awards constitute Options or Stock Appreciation Rights,
the Committee may, at the
15
time the Award is granted, conform the Awards to alternative methods of
satisfying the requirements applicable to Performance- Based Compensation.
7.7 Withholding. All Awards and other payments under the Plan are
subject to withholding of all applicable taxes, which withholding
obligations may be satisfied, with the consent of the Committee, through
the surrender of shares of Stock which the Participant already owns, or to
which a Participant is otherwise entitled under the Plan.
7.8 Transferability. Awards under the Plan are not transferable
except as designated by the Participant by will or by the laws of descent
and distribution. To the extent that the Participant who receives an Award
under the Plan has the right to exercise such Award, the Award may be
exercised during the lifetime of the Participant only by the Participant.
Notwithstanding the foregoing provisions of this subsection 7.8, the
Committee may permit awards under the Plan to be transferred to or for the
benefit of the Participant's family, subject to such limits as the
Committee may establish.
7.9 Administration. The authority to control and manage the
operation and administration of the Plan shall be vested in a committee
(the "Committee") in accordance with Section 8.
7.10 Notices. Any notice or document required to be filed with the
Committee under the Plan will be properly filed if delivered or mailed by
registered mail, postage prepaid, to the Committee, in care of the Company,
at its principal executive offices. The Committee may, by advance written
notice to affected persons, revise such notice procedure from time to time.
Any notice required under the Plan (other than a notice of election) may be
waived by the person entitled to notice.
7.11 Form and Time of Elections. Unless otherwise specified
herein, each election required or permitted to be made by any Participant
or other person entitled to benefits under the Plan, and any permitted
modification or revocation thereof, shall be in writing filed with the
Committee at such times, in such form, and subject to such restrictions and
limitations, not inconsistent with the terms of the Plan, as the Committee
shall require.
7.12 Agreement With Company. At the time of an Award to a
Participant under the Plan, the Committee will require a Participant to
enter into an agreement with the Company in a form specified by the
Committee, agreeing to the terms and conditions of the Plan and to such
additional terms and conditions, not inconsistent with the Plan, as the
Committee may, in its sole discretion, prescribe.
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7.13 Limitation of Implied Rights.
(a) Neither a Participant nor any other person shall, by reason
of the Plan, acquire any right in or title to any assets,
funds or property of the Employers whatsoever, including,
without limitation, any specific funds, assets, or other
property which the Employers, in their sole discretion, may
set aside in anticipation of a liability under the Plan. A
Participant shall have only a contractual right to the
amounts, if any, payable under the Plan, unsecured by any
assets of the Employers. Nothing contained in the Plan
shall constitute a guarantee by any of the Employers that
the assets of the Employers shall be sufficient to pay any
benefits to any person.
(b) Neither the Plan nor Awards granted under the Plan shall
confer any right upon a Participant to continue as an
employee or Director for any period of time or give any
Participant any right or claim to any benefit under the
Plan, unless such right or claim has specifically accrued
under the terms of the Plan. Subject to the provisions of
Section 4 (relating to Restricted Stock Awards), no Award
under the Plan shall confer upon the holder thereof any
right as a shareholder of the Company prior to the date on
which he fulfills all service requirements and other
conditions for receipt of shares of Stock under the Plan.
7.14 Benefits Under Qualified Retirement Plans. Awards to a
Participant (including the grant and the receipt of benefits) under the
Plan shall be disregarded for purposes of determining the Participant's
benefits under any Qualified Retirement Plan.
7.15 Evidence. Evidence required of anyone under the Plan may be
by certificate, affidavit, document or other information which the person
acting on it considers pertinent and reliable, and signed, made or
presented by the proper party or parties.
7.16 Action by Employers. Any action required or permitted to be
taken by any Employer shall be by resolution of its board of directors, or
by action of one or more members of the board (including a committee of the
board) who are duly authorized to act for the board, or by a duly
authorized officer of the Employer.
7.17 Gender and Number. Where the context admits, words in any
gender shall include any other gender, words in the singular shall include
the plural and the plural shall include the singular.
17
7.18 Defined Terms. For purposes of the Plan, the terms
listed below shall be defined as follows:
(a) Award. The term "Award" shall mean any award or benefit granted to
any Participant under the Plan, including, without limitation, the
grant of Options, Stock Appreciation Rights, Restricted Stock,
Performance Units, and Dividend
Equivalents.
(b) Board. The term "Board" shall mean the Board of Directors of the
Company.
(c) Code. The term "Code" means the Internal Revenue Code of 1986, as
amended. A reference to any provision of the Code shall include
reference to any successor provision of the Code.
(d) Date of Termination. A Participant's "Date of Termination"
-------------------
shall be the date that his employment with all Employers and
Related Companies terminates for any reason; provided that a
Date of Termination shall not be deemed to occur by reason
of a transfer of the Participant between the Company and a
Related Company (including an Employer) or between two
Related Companies (including Employers); and further
provided that a Participant's employment shall not be
considered terminated while the Participant is on a leave of
absence from an Employer or a Related Company approved by
the Participant's employer.
(e) Director. The term "Director" means a member of the Board of
Directors of the Company.
(f) Disability. A Participant shall be considered to have a
"Disability" during the period in which he is unable, by reason of
a medically determinable physical or mental impairment, to engage
in any substantial gainful activity, which condition, in the
opinion of a physician selected by the Committee, is expected to
have a duration of not less than 120 days.
(g) Employer. The Company and each Related Company which, with the
consent of the Company, adopts the Plan for the benefit of its
eligible employees are referred to collectively as the "Employers"
and individually as an "Employer".
(h) Fair Market Value. The "Fair Market Value" of a share of Stock of
the Company as of any date shall be the closing market composite
price for such Stock as reported for the NASDAQ Stock Exchange on
that date or, if Stock is not traded on that date, on the next
preceding date on which Stock was traded.
18
(i) Performance-Based Compensation. The term "Performance-Based
Compensation" shall have the meaning ascribed to it in
section 162(m)(4)(C) of the Code.
(j) Qualified Retirement Plan. The term "Qualified Retirement Plan"
means any plan of the Company or a Related Company that is
intended to be qualified under section 401(a) of the Internal
Revenue Code of 1986, as amended.
(k) Related Companies. The term "Related Company" means (i) any
-----------------
corporation, partnership, joint venture or other entity
during any period in which it owns, directly or indirectly,
at least thirty percent of the voting power of all classes
of stock of the Company (or successor to the Company)
entitled to vote; and (ii) any corporation, partnership,
joint venture or other entity during any period in which
either:
(A) it is effectively controlled by; or
(B) at least a thirty percent of its voting or profits
interest is owned, directly or indirectly, by;
the Company, any entity that is a successor to the Company or any
entity that is a Related Company by reason of clause (i) next
above.
(l) Retirement. "Retirement" of a Participant shall mean the
----------
occurrence of a Participant's Date of Termination under
circumstances that constitutes a retirement under the terms
of the Qualified Retirement Plan of an Employer or Related
Company that is extended to the Participant immediately
prior to the Participant's Date of Termination or, if no
such plan is extended to the Participant on his Date of
Termination, under the terms of any applicable retirement
policy of the Participant's employer.
(m) SEC. "SEC" shall mean the Securities and Exchange Commission.
(n) Stock. The term "Stock" shall mean shares of common stock of the
Company.
SECTION 8
---------
COMMITTEE
---------
8.1 Selection of Committee. The Committee shall be selected by the
Board, and shall consist of not less than two
19
members of the Board, or such greater number as may be required for
compliance with SEC Rule 16b-3.
8.2 Powers of Committee. The authority to manage and control the
operation and administration of the Plan shall be vested in the Committee,
subject to the following:
(a) Subject to the provisions of the Plan, the Committee will
have authority and discretion to select employees to receive
Awards, to determine the time or times of receipt, to
determine the types of Awards and the number of shares
covered by the Awards, to establish the terms, conditions,
performance criteria, restrictions, and other provisions of
such Awards, and to cancel or suspend Awards. In making
such Award determinations, the Committee may take into
account the nature of services rendered by the respective
employee, his present and potential contribution to the
Company's success and such other factors as the Committee
deems relevant.
(b) Subject to the provisions of the Plan, the Committee will
have authority and discretion to determine the extent to
which Awards under the Plan will be structured to conform to
the requirements applicable to Performance-Based
Compensation as described in Code section 162(m), and to
take such action, establish such procedures, and impose such
restrictions at the time such Awards are granted as the
Committee determines to be necessary or appropriate to
conform to such requirements.
(c) The Committee will have the authority and discretion to interpret
the Plan, to establish, amend, and rescind any rules and
regulations relating to the Plan, to determine the terms and
provisions of any agreements made pursuant to the Plan, and to
make all other determinations that may be necessary or advisable
for the administration of the Plan.
(d) Any interpretation of the Plan by the Committee and any decision
made by it under the Plan is final and binding on all persons.
(e) Except as otherwise expressly provided in the Plan, where
the Committee is authorized to make a determination with
respect to any Award, such determination shall be made at
the time the Award is made, except that the Committee may
reserve the authority to have such determination made by the
Committee in the future (but only if such reservation is
made at the time the Award is granted and is expressly
stated in the Agreement reflecting the Award).
20
8.3 Delegation by Committee. Except to the extent prohibited by
the provisions of Rule 16b-3, the rules relating to Performance-Based
Compensation, applicable state law, the applicable rules of any stock
exchange, or any other applicable rules, the Committee may allocate all or
any portion of its responsibilities and powers to any one or more of its
members and may delegate all or any part of its responsibilities and powers
to any person or persons selected by it. Any such allocation or delegation
may be revoked by the Committee at any time.
8.4 Information to be Furnished to Committee. The Employers and
Related Companies shall furnish the Committee with such data and
information as may be required for it to discharge its duties. The records
of the Employers and Related Companies as to an employee's or Participant's
employment, termination of employment, leave of absence, reemployment and
compensation shall be conclusive on all persons unless determined to be
incorrect. Participants and other persons entitled to benefits under the
Plan must furnish the Committee such evidence, data or information as the
Committee considers desirable to carry out the terms of the Plan.
8.5 Liability and Indemnification of Committee. No member or
authorized delegate of the Committee shall be liable to any person for any
action taken or omitted in connection with the administration of the Plan
unless attributable to his own fraud or willful misconduct; nor shall the
Employers be liable to any person for any such action unless attributable
to fraud or willful misconduct on the part of a director or employee of the
Employers. The Committee, the individual members thereof, and persons
acting as the authorized delegates of the Committee under the Plan, shall
be indemnified by the Employers against any and all liabilities, losses,
costs and expenses (including legal fees and expenses) of whatsoever kind
and nature which may be imposed on, incurred by or asserted against the
Committee or its members or authorized delegates by reason of the
performance of a Committee function if the Committee or its members or
authorized delegates did not act dishonestly or in willful violation of the
law or regulation under which such liability, loss, cost or expense arises.
This indemnification shall not duplicate but may supplement any coverage
available under any applicable insurance.
SECTION 9
---------
AMENDMENT AND TERMINATION
-------------------------
The Board may, at any time, amend or terminate the Plan, provided
that, subject to subsection 7.3 (relating to certain adjustments to
shares), no amendment or termination may materially adversely affect the
rights of any Participant or
21
beneficiary under any Award made under the Plan prior to the date such
amendment is adopted by the Board.
22