Exhibit 99.1
FINAL VERSION
AUGUST 31, 2000
New Skies Satellites N.V.
1999 Stock Option Plan
(Effective January 1, 1999)
(revised as of February 6, 2002)
New Skies Satellites N.V.
1999 Stock Option Plan
1. PURPOSE
This Plan has been adopted by New Skies Satellites N.V. (the "Company") to
provide employees and directors of the Company and its affiliates (collectively
"Participants") an opportunity to acquire an equity interest in the Company. The
Company intends to use the Plan to attract and retain Participants' services,
motivate Participants to increase the Company's value, and introduce flexibility
in compensating Participants.
All Options shall be subject to the terms and conditions provided in this Plan.
2. DEFINITIONS
(a) "Board" shall mean the Supervisory Board of the Company.
(b) "Committee" shall mean the committee which may be appointed by the
Board in accordance with Section 4 to administer the Plan.
(c) "Common Stock" shall mean the EUR 0.05 (Five Eurocent) par value,
ordinary voting shares of the Company, or depository receipts issued
with the cooperation of the Company in respect of such shares.
(d) "Company" shall mean New Skies Satellites N.V., a Dutch company.
(e) "Date of Grant" shall mean the date on which an Option is granted
under the Plan, as reflected in a Participant's Option Agreement.
(f) "Director" shall mean a member of the Board of the Company.
(g) "Employee" shall mean any individual who is employed, or newly hired,
by the Company or any Company within the Group, including managing
board directors of the Company or any company within the Group. For
the purposes of this Plan, the term "Employee" also shall be deemed to
include any director of any affiliate of the Company who is granted or
proposed to be granted an Option pursuant to this Plan. The Plan
Administrator shall be responsible for determining when an Employee's
period of employment terminates and/or is deemed to be continued
during an approved leave of absence.
(h) "Exercise Price" shall mean the price per Share at which an Option may
be exercised, which shall be the Fair Market Value of one Share on the
date such Option was granted unless determined otherwise (either at a
premium or at a discount of not more than 10% relative to such Fair
Market Value) by the Plan Administrator and specified in a
Participant's Option Agreement.
(i) "Fair Market Value" shall mean the value of one Share determined as of
any specified date as follows:
(A)(i) If the Shares are traded on any recognised stock exchange, the
value per Share shall be the closing price of the Common Stock on the
business day immediately preceding such specified date (or, if there
are no sales on that day, the last preceding day on which there was a
sale) on the principal exchange on which the Common Stock is traded;
(A)(ii) If the Shares are not traded on any recognised stock exchange
but are traded on any formal over-the-counter quotation system in
general use, the value per Share shall be the average between the
closing bid and closing asked quotations for the Common Stock on the
business day immediately preceding such specified date (or, if there
are no such quotations on that day, the last preceding day on which
there were such quotations) on the principal system on which the
Common Stock is traded; or
(A)(iii) If neither subparagraph (i) nor (ii) applies, then the value
per Share shall be determined by the Board in good faith as an
estimate of the value per Share a willing purchaser would pay a
willing seller with both parties having full knowledge of all relevant
material facts. Such determination shall be conclusive and binding on
all persons.
(B) To implement subparagraph (A)(iii), the Board may engage an
independent expert to determine the Fair Market Value of the Shares on
any date. Such determinations shall be conclusive and binding on all
persons.
(j) "For Cause" shall mean the termination of a Participant's status as an
Employee or Director where the Plan Administrator determines, in its
complete discretion in accordance with Section 4(e), that the
Participant has committed a violation of any felony-grade criminal
law, a breach of any material fiduciary duty or an act of dishonesty,
fraud misrepresentation or moral turpitude which violation, breach or
act has or may reasonably be expected to have a material detrimental
impact on the business of the Company, or prevents or materially
impairs or may reasonably be expected to prevent or materially impair
the Participant's effective performance of his or her duties for the
Company or any company within the Group.
(k) "Group" shall mean the Company and any and all group companies (within
the meaning of article 2:24b of the Dutch Civil Code) of the Company,
that have been nominated by the Board from time to time to be
participating companies in this Plan.
(l) "Inside Information" shall mean any material non-public information,
as defined in the Company's Insider Trading Policy.
(m) "Insider Trading Policy" shall mean the Company's Group Rules
Governing Insider Trading and Inside Information, as such rules may be
amended from time to time.
(n) "IPO" shall mean a public offering of common stock that is registered
under the U.S. Securities Act of 1933, a public offering on the
AEX-Stock Exchange, or any similar offering in any other jurisdiction.
(o) "Option" shall mean any option that is granted pursuant to the Plan to
purchase and acquire shares of Common Stock.
(p) "Option Agreement" shall mean, with respect to each Option granted to
a Participant, the signed written agreement between the Participant
and the Company setting forth the terms and conditions of the Option.
(q) "Optioned Shares" shall mean Shares acquired by a Participant through
the exercise of an Option granted under this Plan.
(r) "Participant" shall mean any individual to whom an Option has been
granted under the Plan, and such term shall include where appropriate
the duly appointed legal representative of a Participant suffering
from Total and Permanent Disability and the allowable transferee of a
deceased Participant as provided in this Plan.
(s) "Plan" shall mean this New Skies Satellites N.V. 1999 Stock Option
Plan, as amended from time to time.
(t) "Plan Administrator" shall mean the Committee administering the Plan
as determined in accordance with Section 4, the foundation
administering the Plan as permitted in Section 4, or during any period
in which neither a Committee nor a foundation is constituted, the
Board.
(u) "Purchase Price" shall mean, at any specified time, the Exercise Price
of an Option to purchase one Share times the number of Shares subject
to such Option being exercised.
(v) "Share" shall mean one ordinary share of Common Stock.
(w) "Total and Permanent Disability" shall mean with respect to a
Participant:
(i) The mental or physical disability, either occupational or
non-occupational in cause, which satisfies the definition of
"total and permanent disability" in the disability policy or plan
provided by the Company covering such Participant;
(ii) If no such policy or plan is then covering the Participant, the
mental or physical condition which would cause the Participant to
be deemed to be "totally and permanently disabled" in accordance
with the Dutch Disability Act (Wet op de
Arbeidsongeschiktheidsverzekering).
(x) "Vest" or "Vesting" shall mean the date, event or act prior to which
an Option, in whole or in part, is not exercisable, and as a
consequence of which the Option, in whole or in part, becomes
exercisable for the first time.
(y) "Unvested Option" shall mean an Option that is not yet exercisable.
3. EFFECTIVE DATE
The Plan was adopted by the Board with effect from January 1, 1999.
4. ADMINISTRATION
(a) Administration by the Board, the Committee or a Foundation
The Board may administer the Plan or appoint a Committee of the Board
to administer the Plan in accordance with Sections 4(b) and 4(c) or
appoint a foundation to administer the Plan in accordance with Section
4(d). In the event the Board elects to administer the Plan, the Board
shall be the Plan Administrator and shall have the powers and
authority of the Plan Administrator as described in this Plan
document. Notwithstanding the foregoing, the Board shall have the sole
authority to determine the Fair Market Value of the Common Stock, to
decide on the grant of an Option or Options to members of the
Company's management board, and to increase the percentage of Common
Stock that can be issued for use under this Plan.
(b) Composition of the Committee
If appointed by the Board, the Committee shall consist of not less
than two members, all of whom shall be Directors of the Company.
(c) The Committee
(i) Each Committee member shall serve until the member resigns, dies
or is removed by the Board, whichever is the first event to
occur. The Board may disband the Committee at any time.
(ii) The Committee shall hold meetings at such times and places as it
may determine. For a Committee meeting, if the Committee has two
members, both members must be present to constitute a quorum,
and if the Committee has three or more members, a majority of
the Committee shall constitute a quorum. Acts by a majority of
the members present at a meeting at which a quorum is present
and approved in writing by all the members of the Committee
shall constitute valid acts of the Committee.
(iii) Members of the Committee may vote on any matters affecting the
administration of the Plan or the grant of any Option pursuant
to the Plan.
(d) The Foundation
In the event that the Board elects to delegate the administration of
the Plan to a third party, such third party shall be a foundation
(Stichting) established solely for the purposes of facilitating the
operation of this Plan. The directors of the Foundation shall be
independent from the managing board of the Company.
(e) Powers of the Plan Administrator
On behalf of the Board, the Plan Administrator shall, without causing
the Plan to be inconsistent with Dutch or other applicable insider
trading laws or regulations or the Insider Trading Policy, and without
causing the Plan no longer to qualify as a "personeelsregeling", have
the authority and complete discretion to:
(i) Subject to Section 10(b), prescribe, amend and rescind rules and
regulations relating to the Plan which will not apply, without
the consent of a Participant, with respect to any Option
previously granted to the Participant if it would adversely
affect the Participant's position in that respect;
(ii) Construe and interpret the Plan, any Option Agreement and any
other agreement or document executed pursuant to the Plan;
(iii) Authorize any person to execute on behalf of the Company any
instrument required to effectuate the grant of an Option; and
(iv) Make all other determinations deemed necessary or advisable for
the administration of the Plan.
The Board of the Company shall ensure that the Plan Administrator at
all times has a sufficient power of attorney to be able to exercise
the powers purported to be granted to it under the Plan, and to
perform all legal acts to implement the provisions of the Plan.
(f) Plan Administrator's Interpretation of the Plan
The Plan Administrator's interpretation and construction of any
provision of the Plan, of any Option granted under the Plan or of any
Option Agreement shall be final and binding on all persons claiming an
interest in an Option granted or issued under the Plan. Neither the
Plan Administrator, any member of the Committee nor any Director shall
be liable for any action or determination made in good faith with
respect to the Plan. The Company, in accordance with the articles of
association of the Company, shall indemnify and defend the Plan
Administrator, and, where applicable, each individual member the
Committee or each director of the foundation, to the fullest extent
provided by law and such articles of association.
(g) Determinations by the Plan Administrator
Subject to Section 5, the Plan Administrator's determinations under
the Plan may be made by the Plan Administrator selectively among
persons who are granted, or may be eligible to be granted, Options
under the Plan. Without limiting the generality of the foregoing, the
Plan Administrator shall be entitled, inter alia, to make selective
determinations and to instruct the Company to enter into selective
Option Agreements as to (i) any person to whom Option(s) are granted
or are to be granted under the Plan, and (ii) the terms and provisions
of Options granted under the Plan.
5. PARTICIPATION AND GRANT OF OPTIONS
(a) Eligibility for Participation
Notwithstanding Section 4(a) and subject to the conditions of Section
5(b), all Employees of the Group are eligible to be selected as
Participants by the Plan Administrator, in its complete discretion.
The Plan Administrator's determination of an individual's eligibility
for participation shall be final.
(b) Eligibility for Options
The Plan Administrator has the authority, in its complete discretion,
to determine that the Company shall grant an Option or Options to
Participants. A Participant may be granted more than one Option under
the Plan at any time or times.
(c) Dates on Which and Periods During Which Options May Be Granted
Options may be granted under this Plan as of the following dates and
during the following periods: the month of February of each year and
the date on which an Employee effectively commences working for the
Company or a Group Company. This restriction shall not apply to
Options that are granted at least two weeks prior to the date of an
IPO.
(d) Notification of the Securities Board of The Netherlands
Prior to each time one or more Options are granted, the Plan
Administrator shall notify the Securities Board of the Netherlands at
least two months in advance of the intention to grant such Option(s),
in accordance with article 1 under a Decree of 17 December 1998, as
amended from time to time. After such notification the Plan
Administrator (acting through the Company) shall be obliged to grant
the Option(s) to the extent required by, and in accordance with the
terms for grants set forth in, the notification. If an Employee has
Inside Information as of the date of the proposed grant of an Option,
the Employee shall, to the extent required by law, be obliged to
accept the grant of the Option to the extent required by, and in
accordance with the terms set forth in, the notification. In case of
newly hired employees, the Securities Board shall be notified as soon
as possible. The requirements of this paragraph (d) shall not apply to
Options that are granted at least two weeks prior to the date of an
IPO.
6. SHARES OF COMMON STOCK SUBJECT TO THIS PLAN
(a) Authorized, Unissued Shares
Options which are granted under this Plan shall be with respect to the
authorized but unissued Shares of Common Stock of the Company.
(b) Plan Limit
The aggregate number of Shares which may be issued upon the exercise
of Options under the Plan shall not exceed 13,057,024 Shares. The
Board may elect to increase this Plan limit at any time upon
resolution to such effect. The authority to increase this Plan limit
lies solely with the Board such that this power shall not be delegated
in accordance with Section 4(a).
(c) Options Not to Exceed Shares Available
The number of Shares subject to Options which have been granted under
this Plan at any time during the term of the Plan shall not exceed the
number of Shares authorised for issuance under the Plan under Section
6(b). The number of Shares subject to an Option which expires, is
cancelled, is forfeited or is terminated for any reason shall again be
available for issuance under the Plan.
7. TERMS AND CONDITIONS OF OPTIONS
(a) Stock Option Agreements
Each Option shall be evidenced by a written Option Agreement which
shall set forth the terms and conditions pertaining to such Option,
provided that all such terms shall be subject to and consistent with
this Plan.
Notwithstanding any other provision of this Plan, when awarding any
Option the Plan Administrator, the Company, and each Participant shall
comply with all Dutch and other applicable insider trading laws and
regulations and with the Insider Trading Policy.
(b) Number of Shares Covered by an Option
Each Option Agreement shall state the number of Shares for which the
Option is exercisable, subject to adjustment of such number of Shares
pursuant to Section 9.
(c) Exercise of Options
Only a Participant may exercise an Option. The Participant may
exercise an Option only on or after the date on which the Option
Vests, as provided in Section 7(d), and only on or before the date on
which the term of the Option expires, as provided in Section 7(e).
Each Option Agreement shall specify the manner and procedure for
exercising an Option and the effective date of such exercise. A
Participant shall be required to sign such Option Agreement as a
condition for receiving a grant of an Option.
Notwithstanding any other provision of this Plan or of any Option
Agreement or of any other agreement, when exercising any Option the
Plan Administrator, the Company, and each Participant shall comply
with all Dutch and other applicable insider trading laws and
regulations and with the Insider Trading Policy.
(d) Vesting of Options
The Plan Administrator may decide when an Option Vests. Such Vesting
can occur immediately as of the date the Option is granted or at such
later date or dates, as determined by the Plan Administrator. Each
Option Agreement shall include a Vesting schedule describing the date,
event or act upon which an Option shall Vest, in whole or in part,
with respect to all or a specified portion of the Shares covered by
such Option. The condition shall not impose upon the Group any
obligation to retain the Participant as an Employee for any period.
(e) Term and Expiration of Options
Except as otherwise specifically provided in a Participant's Option
Agreement, the term of an Option shall expire on the first to occur of
the following:
(i) The tenth anniversary of the date the Option was granted;
(ii) The date determined under Section 7(i)(ii) for a Participant who
ceases to be an Employee of the Group for any reason other than
by (A) death, (B) For Cause, or (C) Total and Permanent
Disability;
(iii) The date determined under Section 7(j) for a Participant who
ceases to be an Employee of the Group by reason of the
Participant's death;
(iv) The date determined under Section 7(k) for a Participant who
ceases to be an Employee of the Group by reason of the
Participant's Total and Permanent Disability;
(v) The date determined under Section 7(l) for a Participant who
ceases to be an Employee of the Company For Cause;
(vi) The effective date of a transaction described in Section 9(b);
or
(vii) The expiration date specified in the Option Agreement pertaining
to the Option.
(f) Exercise Price
Each Option Agreement shall state the Exercise Price for the Shares to
which the Option pertains, provided that the Exercise Price of an
Option shall be determined in accordance with Section 2(h) of this
Plan on the relevant Date of Grant and shall not in any event be less
than the par value of such Share.
(g) Medium and Time of Payment of Purchase Price
A Participant may exercise an Option by delivering notice in the
manner specified in the Option Agreement. A Participant exercising an
Option shall pay the Purchase Price for the Shares to which such
exercise pertains in full in cash or by cheque (in Dutch Guilders) as
a condition of such exercise, unless the Plan Administrator in its
complete discretion allows the Participant to pay the Purchase Price
in a manner allowed under Section 11, so long as the sum of cash so
paid and such other consideration equals the Purchase Price. A
Participant's exercise of an Option is subject to satisfying the tax
withholding requirements imposed by the Company pursuant to Section
14.
(h) Nontransferability of Options
An Option granted to a Participant shall, during the lifetime of the
Participant, be exercisable only by the Participant and shall not be
assignable or transferable. In the event of the Participant's death,
an Option is transferable by the Participant only by will or the laws
of descent and distribution. Any attempted assignment, transfer or
attachment by any creditor in violation of this Section 7(h) shall be
null and void.
(i) Termination for Any Reason Other Than Death, Total and Permanent
Disability, or For Cause
(i) For purposes of this Section 7(i), status as an Employee of the
Group will be treated as continuing intact while the Participant
is on military leave, sick leave or other bona fide leave of
absence, as determined by the Plan Administrator in its complete
discretion.
(ii) If a Participant ceases to be an Employee of the Group for any
reason other than death, Total and Permanent Disability, or For
Cause, then: (A) the Participant's Option(s), to the extent
Unvested at the time that the Participant's status described
above ceases, shall be forfeited; and (B) the Participant's
Option(s), to the extent Vested at the time the Participant's
status ceases, shall expire at 12:00 Midnight on the three (3)
month anniversary of the date that the Participant's status
ceases (but not beyond the date that the term of the Option
would earlier have expired pursuant to Section 7(e)).
(j) Death of Participant
If a Participant dies while an Employee of the Group, any Option
granted to the Participant, to the extent Vested on the date of the
Participant's death, may be exercised at any time within twelve (12)
months after the Participant's death (but not beyond the date that the
term of the Option would earlier have expired pursuant to Section
7(e)).
(k) Total and Permanent Disability of Participant
If a Participant ceases to be an Employee of the Group as a
consequence of Total and Permanent Disability, any Option granted to
the Participant, to the extent Vested on the date that the
Participant's status ceased, may be exercised at any time within six
(6) months after such date (but not beyond the date that the term of
the Option would earlier have expired pursuant to 7(e)).
(l) Termination For Cause
If a Participant ceases to be an Employee of the Group For Cause, any
Vested and Unvested Option granted to the Participant which has not
been exercised will be cancelled immediately.
(m) Rights as a Shareholder
A Participant shall have no rights as a shareholder of any Shares for
which an Option is exercisable or has been exercised until the date
such Shares have been delivered to the Participant. No adjustment
shall be made for dividends (ordinary or extraordinary or whether in
currency, securities, or other property), distributions or other
rights for which the record date is prior to the date such person
becomes a shareholder.
(n) Modification, Extension and Renewal of Options
Within the limitations of the Plan, the Plan Administrator may, in its
complete discretion, modify, extend, or renew any outstanding Option
or accept the cancellation of any outstanding Option for the granting
of a new Option in substitution therefore. Notwithstanding the
preceding sentence, no modification of an Option shall exceed or
otherwise violate any limitation set forth in this Section 7 and any
modification, extension, or renewal that would constitute a grant of a
new Option under applicable law shall be made only if in accordance
with Sections 5(c) and 5(d) and the other provisions of this Plan
governing the grant of Options.
(o) Other Provisions
An Option Agreement may contain such other provisions as the Plan
Administrator in its complete discretion deems advisable which are not
inconsistent with the terms of the Plan, including but not limited to:
(i) Restrictions on the exercise of the Option;
(ii) Restrictions on the disposition of Optioned Shares;
(iii) Submission by the Participant of such forms and documents as the
Plan Administrator may reasonably require; and/or
(iv) Procedures to facilitate the payment of the Exercise Price of an
Option under any method allowable under Section 11 and the
payment of withholding taxes in accordance with Section 14.
(p) Insider Trading
Neither the Company nor the Plan Administrator nor any member of the
Board shall be in breach of this Plan or of any Option Agreement if it
declines to take any action that it believes, in its sole discretion,
to be contrary to applicable law or the Insider Trading Policy.
8. TERM OF PLAN
Options may be granted pursuant to the Plan through the period ending on
December 31, 2008. All Options which are outstanding on such date shall remain
in effect until they are exercised or expire by their terms. The Plan and all
Options shall expire pursuant to their terms for all purposes on or before
December 31, 2019.
9. RECAPITALISATION, DISSOLUTION AND CHANGE OF CONTROL
(a) Recapitalisation
Notwithstanding any other provision of the Plan to the contrary, but
subject to any required action by the shareholders of the Company and
compliance with any applicable laws and securities laws, the Plan
Administrator (directly or by action through the Company) shall make
any adjustments to the class and/or number of Shares covered by the
Plan, the number of Shares for which each outstanding Option pertains,
the Exercise Price of an Option and/or any other aspect of this Plan
to prevent the dilution or enlargement of the rights of Participants
under this Plan in connection with any increase or decrease in the
number of issued Shares resulting from the payment of a Common Stock
dividend, stock split, reverse stock split, recapitalisation,
combination, or reclassification or any other event which results in
an increase or decrease in the number of issued Shares without receipt
of adequate consideration by the Company (as determined by the Plan
Administrator in its complete discretion; provided, however, that
fractions of a Share shall not be issued but shall either be paid in
cash at Fair Market Value or shall be rounded up to the nearest Share,
as determined by the Plan Administrator; and provided, further, that
the Exercise Price of any Option may not be decreased below the par
value of the Shares).
(b) Dissolution, Merger, Consolidation, or Sale or Lease of Assets
Subject to any required action by the shareholders of the Company, in
the event of a merger, consolidation or any similar transaction
involving the Company in which holders of Shares receive stock of the
resulting corporation or of another entity involved in the transaction
(and do not receive consideration in any other form, other than cash
payments in consideration for fractional shares), each Option
outstanding on the date of such merger, consolidation or transaction
shall pertain to and apply to the securities which a holder of the
number of Shares subject to such Option would have received in such
merger or consolidation.
Subject to any required action by the shareholders of the Company, in
the event of (i) a dissolution or liquidation of the Company, (ii) a
sale of all or substantially all of the Company's assets or (iii) a
merger, consolidation or any similar transaction involving the Company
(other than a merger, consolidation or any similar transaction in
which holders of Shares receive stock of the resulting corporation or
of another entity involved in the transaction (and do not receive
consideration in any other form, other than cash payments in
consideration for fractional shares)), the Plan Administrator shall,
in its absolute discretion, have the power to, having regard for
applicable insider trading laws and regulations and the Insider Trader
Policy and acting directly or through the Company:
(i) cancel, effective immediately prior to the occurrence of such
event, each Option outstanding immediately prior to such event
(whether or not then exercisable), and, in full consideration of
such cancellation, pay to the Participant to whom such Option
was granted an amount in cash, for each Share subject to such
option equal to the excess of (A) the value, as determined by
the Plan Administrator in its absolute discretion, of the
property (including cash) received by the holder of a Share as a
result of such event over (B) the exercise price of such; or
(ii) provide for the exchange of each Option outstanding immediately
prior to such event (whether or not then exercisable) for an
option with respect to, as appropriate, some or all of the
property for which Shares are exchanged in such transaction and,
incident thereto, make an equitable adjustment as determined by
the Plan Administrator in its absolute discretion in the
exercise price of the option, or the number of shares or amount
of property subject to the option or, if appropriate, provide
for a cash payment to the Participant to whom such Option was
granted in partial consideration for the exchange of the Option.
(c) Change in Control
Notwithstanding any provision herein or in an Option Agreement, each
Option shall become immediately Vested in full in the event of the
acquisition by any person (within the meaning of Section 13 of the
U.S. Securities Exchange Act of 1934, as amended (the"Exchange Act")),
including any group (within the meaning of Rule 13d-3 under the
Exchange Act) of securities representing 50% or more of the voting
power of the combined securities of the Company in the election of
members of the Supervisory Board of the Company, in any transaction or
series of transactions that does not constitute an IPO.
Notwithstanding the foregoing, the acquisition of governance
preference shares by any entity shall not result in Vesting pursuant
to this paragraph (c).
(d) Determination by the Plan Administrator
All adjustments described in this Section 9 shall be made by the Plan
Administrator in its complete discretion, and such determination shall
be conclusive and binding on all persons.
(e) Limitation on Rights of Participants
Except as expressly provided in this Section 9, no Participant shall
have any rights by reason of any reorganisation, dissolution, change
of control, merger or acquisition. Any issuance of Options shall not
affect any Options previously issued under the Plan.
(f) No Limitation on the Rights of the Company
The grant of an Option pursuant to the Plan shall not affect in any
way the right or power of the Company to make adjustments,
reclassifications, reorganisations, or changes of its capital or
business structure, or to merge or consolidate, or to dissolve,
liquidate, sell or transfer all or any part of its business or assets.
10. AMENDMENT OF THE PLAN
(a) The Plan Administrator may, from time to time, terminate, suspend or
discontinue the Plan, in whole or in part, or revise or amend it in
any respect whatsoever including, but not limited to, the adoption of
any amendment deemed necessary or advisable to qualify the Options
under rules and regulations promulgated by a recognised stock
exchange, or to correct any defect or supply any omission or reconcile
any inconsistency in the Plan or in any Option granted under the Plan,
with or without approval of the Board, but if any such action is taken
without the approval of the Board, no such revision or amendment
shall:
(i) Increase the number of Shares subject to the Plan, other than
any increase pursuant to Section 9;
(ii) Change the designation of the class of persons eligible to
receive Options;
(iii) Cause the Plan no longer to qualify as a "personeelsregeling" as
meant in Dutch insider trading legislation; or
(iv) Amend this Section 10 to defeat its purpose.
(b) No amendment, termination or modification of the Plan shall, without
the consent of a Participant, adversely affect the Participant with
respect to any Option previously granted to the Participant.
11. PAYMENT FOR SHARE PURCHASES
Payment of the Purchase Price for any Shares purchased pursuant to the exercise
of Options granted under the Plan may be made in cash or by cheque (in Dutch
Guilders) or, where expressly approved for the Participant by the Plan
Administrator, in its complete discretion, and where permitted by law:
(a) By personal cheque;
(b) By cancellation of indebtedness of the Company to the Participant;
(c) By surrender of Shares that either: (A) have been owned by Participant
for more than six months and, if such shares were purchased from the
Company by use of a promissory note, such note has been fully paid
with respect to such Shares; or (B) were obtained by the Participant
in the public market; in which case the Company agrees to set off the
price to be paid on the Shares with the amount due to the Participant
for the repurchase of Shares, provided in all cases that the Plan
Administrator has previously indicated to the Participant that the
Company is able and willing to repurchase the Shares;
(d) By tender of a full recourse promissory note having such terms as may
be approved by the Plan Administrator and bearing interest at a rate
sufficient to avoid imputation of taxable income; provided that the
portion of the Purchase Price equal to the par value of the Shares
must be paid in cash if required by Dutch law;
(e) By waiver of compensation due or accrued to the Participant for
services rendered;
(f) With respect only to an Option for Shares for which a public market
exists:
(i) Through a "same day sale" commitment from the Participant and a
broker-dealer that is a member of the National Association of
Securities Dealers (an "NASD Dealer") whereby the Participant
irrevocably elects to exercise the Option and to sell a portion
of the Shares so purchased to pay for the Exercise Price, and
whereby the NASD Dealer pays the Exercise Price directly to the
Company prior to receipt of such Shares; or
(ii) Through a "margin" commitment from the Participant and an NASD
Dealer whereby the Participant irrevocably elects to exercise
the Option and to pledge the Shares so purchased to the NASD
Dealer in a margin account as security for a loan from the NASD
Dealer in the amount of the Exercise Price, and whereby the NASD
Dealer pays the Exercise Price directly to the Company, prior to
receipt of such Shares; or
(iii) Pursuant to and in accordance with the terms of any other
cashless exercise policy that may be adopted by the Company, in
its sole discretion and with the approval of the Board; or
(iv) By any combination of (i) and/or (ii) and/or (iii).
12. APPLICATION OF FUNDS
The proceeds received by the Company shall be used for general corporate
purposes.
13. TERMINATION OF PLAN
Subject to Section 10(b), the Company reserves the right to terminate, suspend
or discontinue the Plan, in whole or in part, at any time.
14. WITHHOLDING OF TAXES
Whenever Shares are to be issued under the Plan, the Company may require the
Participant to remit to the Company an amount sufficient to satisfy all
withholding tax requirements prior to the delivery of any certificate or
certificates for such Shares.
15. RIGHTS AS AN EMPLOYEE
The Plan shall not be construed to give any individual the right to remain in
the employ of the Group, or to affect the right of the Group, to terminate such
individual's status as an Employee at any time, with or without cause. The grant
of an Option shall not entitle the Participant to, or disqualify the Participant
from, participation in the grant of any other Option under the Plan or
participation in any other plan maintained by the Group.
16. INSPECTION OF RECORDS
Copies of the Plan, records reflecting each Participant's Option(s) and any
other documents and records which a Participant is entitled by law to inspect
shall be open to inspection by the Participant and his or her duly authorised
representative at the office of the Company at any reasonable business hour upon
reasonable advance notice from the Participant. The Company may, at its
discretion, submit this Plan to the Securities Board of the Netherlands.
17. NOTICES
Any notice to be provided by one party to the other party under this Plan shall
be deemed to have been duly delivered to the other party (i) on the date such
notice is delivered at the address provided in a Participant's Option Agreement
or at such other address as the party may notify the other party in writing at
any time, or (ii) on the date such notice is deposited in the mail as registered
mail or as first class mail/return receipt requested, postage prepaid if
addressed to the party at the address provided in a Participant's Option
Agreement or at such other address as the party may notify the other party in
writing at any time. For the purposes of clause (i), the term "delivered" shall
include hand delivery with a signed receipt required and received from the
receiving party, which for the Company shall be the General Counsel.
18. CONFLICT WITH OPTION AGREEMENTS
In the event the terms of this Plan are in conflict with the terms of any Option
Agreement, the Plan shall govern and any conflicting or inconsistent term of
said Agreement(s) shall be interpreted and applied by the Plan Administrator and
all other persons in a manner consistent with the Plan.
19. LAWS GOVERNING THE PLAN
(a) This Plan shall be governed by and shall be construed in accordance
with the laws of The Netherlands.
(b) The Company and Participants irrevocably submit, in respect of any
suit, action or proceeding related to the interpretation or
enforcement of this Plan, to the exclusive jurisdiction of the courts
of Amsterdam.
20. EUROPEAN MONETARY UNION
(a) The occurrence or non-occurrence of an event associated with the
economic and monetary union in the European Community will not have
the effect of altering any term of, or discharging or excusing
performance under, the Plan. An event associated with the economic and
monetary union in the European Community includes, without limitation:
(i) the introduction of, changeover to or operation of a single or
unified European currency (whether known as the Euro or
otherwise);
(ii) the introduction of that new currency as lawful currency in one
or more Member States of the European Union, and
(iii) the withdrawal from legal tender or any currency that, before
the introduction of the new currency, was lawful currency in one
of the Member States.
(b) The Plan Administrator reserves the right to decide that, as at the
date beginning the third stage of the introduction of the Euro, any
payments made under this Plan may be settled in Euro of an amount
equal to the amounts expressed in Dutch Guilders payable under the
provisions of this Plan. The amount denominated in Euro will be
calculated on the basis of the exchange rates, established by the
European Council pursuant to article 1091(4) of the EG-Treaty. Any
rounding off of such amount will be calculated in accordance with the
European regulations in this respect.