Exhibit 10.246
NON-EXECUTIVE OFFICER STOCK PLAN
OF
ATLANTIC COAST AIRLINES HOLDINGS, INC.
SECTION 1. PURPOSE OF PLAN
The purpose of this Non-Executive Officer Stock Plan
(this "Plan") of Atlantic Coast Airlines Holdings, Inc., a
Delaware corporation (the "Company"), is to advance the
interests of the Company by stimulating the efforts of non-
executive officer employees and service providers who are
selected to be participants, by heightening the desire of
such persons to continue in working toward and contributing
to the success of the Company. Stock options granted
pursuant to this Plan are not incentive stock options, as
defined in Section 422 of the Internal Revenue Code of 1986,
as amended (the "Code").
SECTION 2. ADMINISTRATION OF PLAN
2.1 Composition of Committee. Subject to the
provisions for directors pursuant to Section 6.8, this Plan
shall be administered by the Compensation Committee of the
Board of Directors (the "Committee"), as appointed from time
to time by the Board of Directors. The Board of Directors
shall fill vacancies on, and from time to time may remove or
add members to, the Committee. The Committee shall act
pursuant to a majority vote or unanimous written consent.
The Board of Directors, in its sole discretion, may exercise
any authority of the Committee under this Plan in lieu of
the Committee's exercise thereof. Notwithstanding the
foregoing, the Committee may appoint one or more separate
committees (any such committee, a "Subcommittee") composed
of one or more directors of the Company (who may but need
not be members of the Committee) and may delegate to any
such Subcommittee(s) the authority to grant Awards, as
defined in Section 5.1 hereof, under the Plan to Eligible
Persons, to determine all terms of such Awards, and/or to
administer the Plan or any aspect of it. Any action by any
such Subcommittee within the scope of such delegation shall
be deemed for all purposes to have been taken by the
Committee. The Committee may designate the Secretary of the
Company or other Company employees to assist the Committee
in the administration of the Plan, and may grant authority
to such persons to execute agreements or other documents
evidencing Awards made under this Plan or other documents
entered into under this Plan on behalf of the Committee or
the Company.
2.2 Powers of the Committee. Subject to the express
provisions of this Plan, the Committee shall be authorized
and empowered to do all things necessary or desirable, in
its sole discretion, in connection with the administration
of this Plan, including, without limitation, the following:
(a) to prescribe, amend and rescind rules and
regulations relating to this Plan and to define terms
not otherwise defined herein; provided that, unless the
Committee shall specify otherwise, for purposes of this
Plan (i) the term "fair market value" shall mean, as of
any date, the closing price for a Share (as defined in
Section 3.1) reported for the last trading day prior to
such date by the Nasdaq Stock Market (or such other
stock exchange or quotation system on which Shares are
then listed or quoted) or, if no Shares are traded on
the Nasdaq Stock Market (or such other stock exchange
or quotation system) on the date in question, then for
the next preceding date for which Shares traded on the
Nasdaq Stock Market (or such other stock exchange or
quotation system); and (ii) the term "Company" shall
mean the Company and its subsidiaries and affiliates,
unless the context otherwise requires;
(b) to determine which persons are Eligible
Persons (as defined in Section 4), to which of such
Eligible Persons, if any, Awards shall be granted
hereunder and the timing of any such Awards, and to
grant Awards;
(c) to grant Awards to Eligible Persons and
determine the terms and conditions thereof, including
the number of Shares subject to Awards and the exercise
or purchase price of such Shares and the circumstances
under which Awards become exercisable or vested or are
forfeited or expire, which terms may but need not be
conditioned upon the passage of time, continued
employment, the satisfaction of performance criteria,
the occurrence of certain events (including events
which the Board or the Committee determine constitute a
change of control), or other factors;
(d) to establish, verify the extent of
satisfaction of, adjust, reduce or waive any
performance goals or other conditions applicable to the
grant, issuance, exercisability, vesting and/or ability
to retain any Award;
(e) to prescribe and amend the terms of the
agreements or other documents evidencing Awards made
under this Plan (which need not be identical);
(f) to determine whether, and the extent to
which, adjustments are required pursuant to Section 10;
(g) to interpret and construe this Plan, any
rules and regulations under this Plan and the terms and
conditions of any Award granted hereunder, and to make
exceptions to any such provisions in good faith and for
the benefit of the Company; and
(h) to make all other determinations deemed
necessary or advisable for the administration of this
Plan.
2.3 Determinations of the Committee. All decisions,
determinations and interpretations by the Committee
regarding this Plan shall be final and binding on all
Eligible Persons and Participants. The Committee shall
consider such factors as it deems relevant to making such
decisions, determinations and interpretations including,
without limitation, the recommendations or advice of any
director, officer or employee of the Company and such
attorneys, consultants and accountants as it may select.
SECTION 3. STOCK SUBJECT TO PLAN
3.1 Aggregate Limits. The aggregate number of shares
of the Company's Common Stock ("Shares"), issued pursuant to
all Awards granted under this Plan shall not exceed
2,000,000. The aggregate number of Shares available for
issuance under this Plan and the number of Shares subject to
outstanding Options or other Awards shall be subject to
adjustment as provided in Section 10. The Shares issued
pursuant to this Plan may be Shares that either were
reacquired by the Company, including Shares purchased in the
open market, or authorized but unissued Shares.
3.2 Issuance of Shares. For purposes of Section 3.1,
the aggregate number of Shares issued under this Plan at any
time shall equal only the number of Shares actually issued
upon exercise or settlement of an Award and shall not
include Shares subject to Awards that have been canceled,
expired or forfeited or Shares subject to Awards that have
been delivered (either actually or constructively by
attestation) to or retained by the Company in payment or
satisfaction of the purchase price, exercise price or tax
withholding obligation of an Award.
SECTION 4. PERSONS ELIGIBLE UNDER PLAN
Any person who is an employee or prospective employee
of the Company or any of its affiliates shall be eligible to
be considered for the grant of Awards hereunder (an
"Eligible Person") unless such person is an "officer or
director" as defined under Rule 4460 of the Nasdaq Stock
Market's National Market rules. Unless provided otherwise
by the Committee, the term "employee" shall mean an
"employee," as such term is defined in General Instruction A
to Form S-8 under the Securities Act of 1933, as amended.
To the extent authorized by the Committee, the term
"employee" may also include a consultant who has been
retained to provide consulting or advisory services to the
Company or any of its affiliates and who does not meet the
definition of "employee" under Form S-8, provided that
either an exemption from registration under the Securities
Act is determined by the Company to be available with
respect to the Award granted to any such consultant or the
Company elects to file a registration statement with respect
to the Award granted to any such consultant. A
"Participant" is any current or former Eligible Person to
whom an Award has been made and any person (including any
estate) to whom an Award has been assigned or transferred
pursuant to Section 9.1.
SECTION 5. PLAN AWARDS
5.1 Award Types. The Committee, on behalf of the
Company, is authorized under this Plan to enter into certain
types of arrangements with Eligible Persons and to confer
certain benefits on them. The following arrangements or
benefits are authorized under this Plan if their terms and
conditions are not inconsistent with the provisions of this
Plan: Options, Incentive Bonuses and Incentive Stock. Such
arrangements and benefits are sometimes referred to herein
as "Awards." The authorized types of arrangements and
benefits for which Awards may be granted are defined as
follows:
(a) Options: An Option is a right granted under
Section 6 to purchase a number of Shares at such
exercise price, at such times, and on such other terms
and conditions as are specified in the agreement or
terms and conditions or other document evidencing the
Award (the "Option Document "). Stock options granted
pursuant to this Plan are not incentive stock options,
as defined in Section 422 of the Code.
(b) Incentive Stock: Incentive Stock is an award
or issuance of Shares made under Section 8, the grant,
issuance, retention, vesting and/or transferability of
which is subject during specified periods of time to
such conditions (including continued employment or
performance conditions) and terms as are expressed in
the agreement or other document evidencing the Award
(the "Incentive Stock Document").
(c) Incentive Bonus: An Incentive Bonus is a
bonus opportunity awarded under Section 7 pursuant to
which a Participant may become entitled to receive an
amount based on satisfaction of such performance
criteria as are specified in the agreement or other
document evidencing the Award (the "Incentive Bonus
Document").
5.2 Grants of Awards. An Award may consist of one
such arrangement or benefit or two or more of them in tandem
or in the alternative.
SECTION 6. OPTIONS
The Committee may grant an Option or provide for the
grant of an Option, either from time to time in the
discretion of the Committee or automatically upon the
occurrence of specified events, including, without
limitation, the achievement of performance goals, the
satisfaction of an event or condition within the control of
the recipient of the Award or within the control of others.
6.1 Option Document. Each Option Document shall
contain provisions regarding (a) the number of Shares that
may be issued upon exercise of the Option, (b) the purchase
price of the Shares and the means of payment for the Shares,
(c) the term of the Option, (d) such terms and conditions on
the vesting and/or exercisability of an Option as may be
determined from time to time by the Committee,
(e) restrictions on the transfer of the Option and
forfeiture provisions and (f) such further terms and
conditions, in each case not inconsistent with this Plan as
may be determined from time to time by the Committee.
6.2 Option Price. The purchase price per share of the
Shares subject to each Option granted under this Plan shall
equal or exceed 100% of the fair market value of a Share on
the date the Option is granted.
6.3 Option Term. The "Term" of each Option granted
under this Plan shall be 10 years from the date of its
grant, unless the Committee provides for a lesser term.
6.4 Option Vesting. Options granted under this Plan
shall be exercisable at such time and in such installments
during the period prior to the expiration of the Option's
Term as determined by the Committee. The Committee shall
have the right to make the timing of the ability to exercise
any Option granted under this Plan subject to continued
employment, the passage of time and/or such performance
requirements as deemed appropriate by the Committee. At any
time after the grant of an Option the Committee may reduce
or eliminate any restrictions surrounding any Participant's
right to exercise all or part of the Option.
6.5 Termination of Employment or Service. Subject to
Section 11, upon a termination of employment by an Eligible
Person prior to the full exercise of an Option, the
unexercised portion of the Option shall be subject to such
procedures as the Committee may establish.
6.6 Payment of Exercise Price. The exercise price of
an Option shall be paid in the form of one of more of the
following, as the Committee shall specify, either through
the terms of the Option Document or at the time of exercise
of an Option: (a) cash or certified or cashiers' check,
(b) shares of capital stock of the Company that have been
held by the Participant for such period of time as the
Committee may specify, (c) other property deemed acceptable
by the Committee, (d) a reduction in the number of Shares or
other property otherwise issuable pursuant to such Option,
(e) payment under an arrangement with a broker selected or
approved by the Company where payment is made pursuant to an
irrevocable commitment by the broker to deliver to the
Company proceeds from the sale of the Shares issuable upon
exercise of the Option, or (f) any combination of (a)
through (d).
SECTION 7. INCENTIVE BONUSES
Each Incentive Bonus Award will confer upon the
Employee the opportunity to earn a future payment tied to
the level of achievement with respect to one or more
performance criteria established for a performance period of
not less than one year.
7.1 Incentive Bonus Document. Each Incentive Bonus
Document shall contain provisions regarding (a) the target
and maximum amount payable to the Participant as an
Incentive Bonus, (b) the performance criteria and level of
achievement versus these criteria that shall determine the
amount of such payment, (c) the term of the performance
period as to which performance shall be measured for
determining the amount of any payment, which term shall not
be less than one year, (d) the timing of any payment earned
by virtue of performance, (e) restrictions on the alienation
or transfer of the Incentive Bonus prior to actual payment,
(f) forfeiture provisions and (g) such further terms and
conditions, in each case not inconsistent with this Plan as
may be determined from time to time by the Committee. The
maximum amount payable as an Incentive Bonus may be a
multiple of the target amount payable.
7.2 Performance Criteria. The Committee shall
establish the performance criteria and level of achievement
versus these criteria that shall determine the target and
maximum amount payable under an Incentive Bonus Award, which
criteria may be based on financial performance and/or
personal performance evaluations. The Committee shall
certify the extent to which any performance criteria has
been satisfied, and the amount payable as a result thereof,
prior to payment of any Incentive Bonus.
7.3 Timing and Form of Payment. The Committee shall
determine the timing of payment of any Incentive Bonus. The
Committee may provide for or, subject to such terms and
conditions as the Committee may specify, may permit a
Participant to elect for the payment of any Incentive Bonus
to be deferred to a specified date or event. An Incentive
Bonus may be payable in Shares or in cash or other property.
Any Incentive Bonus that is paid in cash or other property
shall not affect the number of Shares otherwise available
for issuance under this Plan.
7.4 Discretionary Adjustments. Notwithstanding
satisfaction of any performance goals, the amount paid under
an Incentive Bonus Award on account of either financial
performance or personal performance evaluations may be
reduced by the Committee on the basis of such further
considerations as the Committee shall determine.
SECTION 8. INCENTIVE STOCK
Incentive Stock is an award or issuance of Shares the
grant, issuance, retention, vesting and/or transferability
of which is subject during specified periods of time to such
conditions (including continued employment or performance
conditions) and terms as the Committee deems appropriate.
8.1 Incentive Stock Document. Each Incentive Stock
Document shall contain provisions regarding (a) the number
of Shares subject to such Award or a formula for determining
such, (b) the purchase price of the Shares, if any, and the
means of payment for the Shares, (c) the performance
criteria, if any, and level of achievement versus these
criteria that shall determine the number of Shares granted,
issued, retainable and/or vested, (d) such terms and
conditions on the grant, issuance, vesting and/or forfeiture
of the Shares as may be determined from time to time by the
Committee, (e) restrictions on the transferability of the
Shares and (f) such further terms and conditions in each
case not inconsistent with this Plan as may be determined
from time to time by the Committee.
8.2 Sale Price. Subject to the requirements of
applicable law, the Committee shall determine the price, if
any, at which Shares of Incentive Stock shall be sold or
awarded to an Eligible Person, which may vary from time to
time and among Eligible Persons and which may be below the
fair market value of such Shares at the date of grant or
issuance.
8.3 Share Vesting. The grant, issuance, retention
and/or vesting of Shares of Incentive Stock shall be at such
time and in such installments as determined by the Committee
or under criteria established by the Committee. The
Committee shall have the right to make the timing of the
grant and/or the issuance, ability to retain and/or vesting
of Shares of Incentive Stock subject to continued
employment, passage of time and/or such performance criteria
and level of achievement versus these criteria as deemed
appropriate by the Committee, which criteria may be based on
financial performance and/or personal performance
evaluations.
8.4 Discretionary Adjustments. Notwithstanding
satisfaction of any performance goals, the number of Shares
granted, issued, retainable and/or vested under an Incentive
Stock Award on account of either financial performance or
personal performance evaluations may be reduced by the
Committee on the basis of such further considerations as the
Committee shall determine.
8.5 Termination of Employment. Subject to Section 11,
upon a termination of employment by an Eligible Person prior
to the vesting of or the lapsing of restrictions on
Incentive Stock, the Incentive Stock Awards granted to such
Eligible Person shall be subject to such procedures as
determined by the Committee.
SECTION 9. OTHER PROVISIONS APPLICABLE TO AWARDS
9.1 Transferability. Unless the agreement or other
document evidencing an Award (or an amendment thereto
authorized by the Committee) expressly states that the Award
is transferable as provided hereunder, no Award granted
under this Plan, nor any interest in such Award, may be
sold, assigned, conveyed, gifted, pledged, hypothecated or
otherwise transferred in any manner prior to the vesting or
lapse of any and all restrictions applicable thereto, other
than by will or the laws of descent and distribution.
9.2 Dividends. Unless otherwise provided by the
Committee, no adjustment shall be made in Shares issuable
under Awards on account of cash dividends that may be paid
or other rights that may be issued to the holders of Shares
prior to their issuance under any Award. The Committee
shall specify whether dividends or dividend equivalent
amounts shall be paid to any Participant with respect to the
Shares subject to any Award that have not vested or been
issued or that are subject to any restrictions or conditions
on the record date for dividends.
9.3 Documents Evidencing Awards. The Committee shall,
subject to applicable law, determine the date an Award is
deemed to be granted, which for purposes of this Plan shall
not be affected by the fact that an Award is contingent on
subsequent stockholder approval of this Plan. The Committee
or, except to the extent prohibited under applicable law,
its delegate(s) may establish the terms of agreements or
other documents evidencing Awards under this Plan and may,
but need not, require as a condition to any such agreement's
or document's effectiveness that such agreement or document
be executed by the Participant and that such Participant
agree to such further terms and conditions as specified in
such agreement or document. The grant of an Award under
this Plan shall not confer any rights upon the Participant
holding such Award other than such terms, and subject to
such conditions, as are specified in this Plan as being
applicable to such type of Award (or to all Awards) or as
are expressly set forth in the agreement or other document
evidencing such Award.
9.4 Tandem Stock or Cash Rights. Either at the time
an Award is granted or by subsequent action, the Committee
may, but need not, provide that an Award shall contain as a
term thereof, a right, either in tandem with the other
rights under the Award or as an alternative thereto, of the
Participant to receive, without payment to the Company, a
number of Shares, cash or a combination thereof, the amount
of which is determined by reference to the value of the
Award.
9.5 Financing. The Committee may in its discretion
provide financing to a Participant in a principal amount
sufficient to pay the purchase price of any Award and/or to
pay the amount of taxes required by law to be withheld with
respect to any Award. Any such loan shall be subject to all
applicable legal requirements and restrictions pertinent
thereto, including Regulation G promulgated by the Federal
Reserve Board. The grant of an Award shall in no way
obligate the Company or the Committee to provide any
financing whatsoever in connection therewith.
9.6 Additional Restrictions on Awards. Either at the
time an Award is granted or by subsequent action, the
Committee may, but need not, impose such restrictions,
conditions or limitations as it determines appropriate as to
the timing and manner of any resales by a Participant or
other subsequent transfers by a Participant of any Shares
issued under an Award, including without limitation (a)
restrictions under an insider trading policy, (b)
restrictions designed to delay and/or coordinate the timing
and manner of sales by Participants, and (c) restrictions as
to the use of a specified brokerage firm for such resales or
other transfers.
SECTION 10. CHANGES IN CAPITAL STRUCTURE
10.1 Corporate Actions Unimpaired. The existence of
outstanding Awards (including any Options) shall not affect
in any way the right or power of the Company or its
stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations, exchanges, or other
changes in the Company's capital structure or its business,
or any merger or consolidation of the Company, or any
issuance of Shares or other securities or subscription
rights thereto, or any issuance of bonds, debentures,
preferred or prior preference stock ahead of or affecting
the Shares or other securities of the Company or the rights
thereof, or the dissolution or liquidation of the Company,
or any sale or transfer of all or any part of its assets or
business, or any other corporate act or proceeding, whether
of a similar character or otherwise. Further, except as
expressly provided herein or by the Committee, (a) the
issuance by the Company of shares of stock of any class of
securities convertible into shares of stock of any class,
for cash, property, labor or services, 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,
(b) the payment of a dividend in property other than Shares,
or (c) the occurrence of any similar transaction, and in any
case whether or not for fair value, shall not affect, and no
adjustment by reason thereof shall be made with respect to,
the number of Shares subject to Options or other Awards
theretofore granted or the purchase price per Share, unless
the Committee shall determine in its sole discretion that an
adjustment is necessary to provide equitable treatment to a
Participant.
10.2 Adjustments Upon Certain Events. If the
outstanding Shares or other securities of the Company, or
both, for which the Award is then exercisable or as to which
the Award is to be settled shall at any time be changed or
exchanged by declaration of a stock dividend, stock split,
combination of shares, recapitalization, or reorganization,
the Committee may, and if such event occurs after a
Corporate Change the Committee shall, appropriately and
equitably adjust the number and kind of Shares or other
securities which are subject to the Plan or subject to any
Awards theretofore granted, and the exercise or settlement
prices of such Awards, so as to maintain the proportionate
number of Shares or other securities without changing the
aggregate exercise or settlement price. If the Company
recapitalizes or otherwise changes its capital structure, or
merges, consolidates, sells all of its assets or dissolves
(each of the foregoing a "Fundamental Change"), then
thereafter upon any exercise of an Option or settlement of
an Award theretofore granted, the Participant shall be
entitled to purchase under such Option or receive under such
Award, in lieu of the number of Shares as to which such
Option shall then be exercisable or such Award shall then be
subject, the number and class of shares of stock and
securities to which the Participant would have been entitled
pursuant to the terms of the Fundamental Change if,
immediately prior to such Fundamental Change, the
Participant had been the holder of record of the number of
Shares as to which such Option or Award is then subject.
SECTION 11. CHANGE OF CONTROL
11.1 Definitions. Unless the Committee provides
otherwise,
For purposes of the Plan and Awards granted under the
Plan, the term "Corporate Change" shall mean:
(i) any merger or consolidation in which the
Company shall not be the surviving entity (or survives
only as a subsidiary of another entity whose
shareholders did not own all or substantially all of
the Company's Common Stock immediately prior to such
transaction),
(ii) the sale of all or substantially all of the
Company's assets to any other person or entity (other
than a wholly-owned subsidiary),
(iii) the acquisition of beneficial ownership
or control of (including, without limitation, power to
vote) more than 50% of the outstanding shares of Common
Stock by any person or entity (including a "group" as
defined by or under Section 13(d)(3) of the Exchange
Act),
(iv) the dissolution or liquidation of the
Company,
(v) a contested election of directors, as a
result of which or in connection with which the persons
who were directors of the Company before such election
or their nominees cease to constitute a majority of the
Board, or
(vi) any other event specified by the Committee,
regardless of whether at the time an Option is granted
or thereafter.
11.2 Effect of Change of Control. The Committee may
provide, either at the time an Option is granted or
thereafter, that a Corporate Change shall have such effect
as specified by the Committee, or no effect, as the
Committee in its sole discretion may provide. Without
limiting the foregoing, the Committee may but need not
provide, either at the time an Option is granted or
thereafter, that if a Corporate Change occurs, then
effective as of a date selected by the Committee, the
Committee (which for purposes of the Corporate Changes
described in (iii) and (v) above shall be the Committee as
constituted prior to the occurrence of such Corporate
Change) acting in its sole discretion without the consent or
approval of any Participant, will effect one or more of the
following alternatives or combination of alternatives with
respect to all outstanding Options (which alternatives may
be conditional on the occurrence of such of the Corporate
Change specified in clause (i) through (v) above which gives
rise to the Corporate Change and which may vary among
individual Participants): (1) in the case of a Corporate
Change specified in clauses (i), (ii) or (iv), accelerate
the time at which Options then outstanding may be exercised
in full for a limited period of time on or before a
specified date (which will permit the Participant to
participate with the Common Stock received upon exercise of
such Option in the event of a Corporate Change specified in
clauses (i), (ii) or (iv), as the case may be) fixed by the
Committee, after which specified date all unexercised
Options and all rights of Participants thereunder shall
terminate, (2) accelerate the time at which Options then
outstanding may be exercised so that such Options may be
exercised in full for their then remaining term, or
(3) require the mandatory surrender to the Company of
outstanding Options held by such Participant (irrespective
of whether such Options are then exercisable under the
provisions of the Plan) as of a date, before or not later
than sixty days after such Corporate Change, specified by
the Committee, and in such event the Committee shall
thereupon cancel such Options and the Company shall pay to
each Participant an amount of cash equal to the excess of
the fair market value of the aggregate shares subject to
such Option over the aggregate Option price of such shares.
Notwithstanding the foregoing, with the consent of the
Participant, the Committee may in lieu of the foregoing make
such provision with respect of any Corporate Change as it
deems appropriate.
SECTION 12. TAXES
12.1 Withholding Requirements. The Committee may make
such provisions or impose such conditions as it may deem
appropriate for the withholding or payment by a Participant
of any taxes that the Committee determines are required in
connection with any Award granted under this Plan, and a
Participant's rights in any Award are subject to
satisfaction of such conditions.
12.2 Payment of Withholding Taxes. Notwithstanding the
terms of Section 12.1, the Committee may provide in the
agreement or other document evidencing an Award or otherwise
that all or any portion of the taxes required to be withheld
by the Company or, if permitted by the Committee, desired to
be paid by the Participant, in connection with the exercise,
vesting, settlement or transfer of any other Award shall be
paid or, at the election of the Participant, may be paid by
the Company by withholding shares of the Company's capital
stock otherwise issuable or subject to such Award, or by the
Participant delivering previously owned shares of the
Company's capital stock, in each case having a fair market
value equal to the amount required or elected to be withheld
or paid, or by a broker selected or approved by the Company
paying such amount pursuant to an irrevocable commitment by
the broker to deliver to the Company proceeds from the sale
of the Shares issuable under the Award. Any such election
is subject to such conditions or procedures as may be
established by the Committee and may be subject to approval
by the Committee.
SECTION 13. AMENDMENTS OR TERMINATION
The Board may amend, alter or discontinue this Plan or
any agreement or other document evidencing an Award made
under this Plan, but no amendment or alteration shall be
made which would impair the rights of any Award holder,
without such holder's consent, under any Award theretofore
granted, provided that no such consent shall be required if
the Committee determines in its sole discretion and prior to
the date of any Corporate Change or change of control (as
defined, if applicable, in the agreement evidencing such
Award) that such amendment or alteration either is required
or advisable in order for the Company, the Plan or the Award
to satisfy any law or regulation or to meet the requirements
of any accounting standard.
SECTION 14. COMPLIANCE WITH OTHER LAWS AND
REGULATIONS.
This Plan, the grant and exercise of Awards thereunder,
and the obligation of the Company to sell, issue or deliver
Shares under such Awards, shall be subject to all applicable
federal, state and foreign laws, rules and regulations and
to such approvals by any governmental or regulatory agency
as may be required. The Company shall not be required to
register in a Participant's name or deliver any Shares prior
to the completion of any registration or qualification of
such Shares under any federal, state or foreign law or any
ruling or regulation of any government body which the
Committee shall determine to be necessary or advisable.
This Plan is intended to constitute an unfunded arrangement
for a select group of management or other key employees,
directors and consultants.
No Option shall be exercisable unless a registration
statement with respect to the Option is effective or the
Company has determined that such registration is
unnecessary. Unless the Awards and Shares covered by this
Plan have been registered under the Securities Act of 1933,
as amended, or the Company has determined that such
registration is unnecessary, each person receiving an Award
and/or Shares pursuant to any Award may be required by the
Company to give a representation in writing that such person
is acquiring such Shares for his or her own account for
investment and not with a view to, or for sale in connection
with, the distribution of any part thereof.
SECTION 15. OPTION GRANTS BY SUBSIDIARIES
In the case of a grant of an Option to any eligible
Employee employed by a Subsidiary, such grant may, if the
Committee so directs, be implemented by the Company issuing
any subject shares to the Subsidiary, for such lawful
consideration as the Committee may determine, upon the
condition or understanding that the Subsidiary will transfer
the shares to the optionholder in accordance with the terms
of the Option specified by the Committee pursuant to the
provisions of the Plan. Notwithstanding any other provision
hereof, such Option may be issued by and in the name of the
Subsidiary and shall be deemed granted on such date as the
Committee shall determine.
SECTION 16. NO RIGHT TO COMPANY EMPLOYMENT
Nothing in this Plan or as a result of any Award
granted pursuant to this Plan shall confer on any individual
any right to continue in the employ of the Company or
interfere in any way with the right of the Company to
terminate an individual's employment at any time. The
agreements or other documents evidencing Awards may contain
such provisions as the Committee may approve with reference
to the effect of approved leaves of absence.
SECTION 17. LIABILITY OF COMPANY
The Company and any Affiliate which is in existence or
hereafter comes into existence shall not be liable to a
Participant, an Eligible Person or other persons as to:
(a) The Non-Issuance of Shares. The non-issuance
or sale of shares as to which the Company has been
unable to obtain from any regulatory body having
jurisdiction the authority deemed by the Company's
counsel to be necessary to the lawful issuance and sale
of any shares hereunder; and
(b) Tax Consequences. Any tax consequence
expected, but not realized, by any Participant,
Eligible Person or other person due to the receipt,
exercise or settlement of any Option or other Award
granted hereunder.
SECTION 18. EFFECTIVENESS AND EXPIRATION OF PLAN
This Plan shall be effective on the date of its
adoption by the Company's Board of Directors. No Awards
shall be granted pursuant to this Plan more than 10 years
after the effective date of this Plan.
SECTION 19. NON-EXCLUSIVITY OF PLAN
Neither the adoption of this Plan by the Board nor the
submission of this Plan to the stockholders of the Company
for approval shall be construed as creating any limitations
on the power of the Board or the Committee to adopt such
other incentive arrangements as either may deem desirable,
including without limitation, the granting of restricted
stock or stock options otherwise than under this Plan, and
such arrangements may be either generally applicable or
applicable only in specific cases.
SECTION 20. GOVERNING LAW
This Plan and any agreements or other documents
hereunder shall be interpreted and construed in accordance
with the laws of the State of Delaware and applicable
federal law. The Committee may provide that any dispute as
to any Award shall be presented and determined in such forum
as the Committee may specify, including through binding
arbitration. Any reference in this Plan or in the agreement
or other document evidencing any Award to a provision of law
or to a rule or regulation shall be deemed to include any
successor law, rule or regulation of similar effect or
applicability.