Exhibit 4.1
INNOTECH, INC.
1992 PERFORMANCE EQUITY PLAN
1. Purpose; Definitions.
1.1 Purpose. The purpose of the 1992 Performance
Equity Plan (the "Plan") of Innotech, Inc. (the "Company")
is to enable the Company and its subsidiaries to offer to
its officers and employees, prospective employees,
consultants and independent contractors, long term
performance-based stock and/or other equity interests in the
Company, thereby enhancing its ability to attract, retain
and reward such individuals, and to increase the mutuality
of interests between those individuals and the stockholders
of the Company. The various types of long-term incentive
awards which may be provided under the Plan will enable the
Company to respond to changes in compensation practices, tax
laws, accounting regulations and the size and diversity of
its businesses.
1.2 Definitions. For purposes of the Plan, the
following terms shall be defined as set forth herein:
(a) "Agreement" means the agreement between the
Company and the Holder setting forth the terms and
conditions of an award under the Plan.
(b) "Board" means the Board of Directors of the
Company.
(c) "Change of Control" means a change of
control of the Company pursuant to Section 10 hereof.
(d) "Code" means the Internal Revenue Code of
1986, as amended from time to time, and any successor
statute or statutes thereto.
(e) "Committee" means the Compensation
Committee of the Board or any other committee of the Board
which the Board may designate.
(f) "Common Stock" means the Common Stock of
the Company, no par value, per share.
(g) "Company" means Innotech, Inc., a
corporation organized under the laws of the Commonwealth of
Virginia and any successor thereto.
(h) "Deferred Stock" means Stock to be
received, under an award made pursuant to Section 8 hereof,
at the end of a specified deferral period.
(i) "Disability" means disability as determined
under procedures established by the Committee for purposes
of the Plan.
(j) "Exchange Act" means the Securities
Exchange Act of 1934, as amended from time to time, or any
successor statute or statutes thereto.
(k) "Exchange Act Holder" means such officer or
director or 10% beneficial owner of Common Stock subject to
Section 16(b) of the Exchange Act.
(l) "Fair Market Value", unless otherwise
required by any applicable provision of the Code or any
regulations issued thereunder, means, as of any given date:
(i) if the Common Stock is listed on a national securities
exchange or quoted on the NASDAQ National Market System, the
closing price of the Common Stock on the last preceding day
on which the Common Stock was traded, as reported on the
composite tape or by NASDAQ/NMS System Statistics, as the
case may be; (ii) if the Common Stock is not listed on a
national securities exchange or quoted on the NASDAQ
National Market System, but is traded in the
over-the-counter market, the average of the bid and asked
prices for the Common Stock on the last preceding day for
which such quotations are reported by NASDAQ; and (iii) if
the fair market value of the Common Stock cannot be
determined pursuant to clause (i) or (ii) hereof, such price
as the Committee shall determine.
(m) "Formula Price Per Share" means the highest
gross price (before brokerage commissions, soliciting
dealers' fees and similar charges) paid for any share of
Common Stock at any time during the ninety-day period
immediately prior to the Change of Control (whether by way
of exchange, conversion, distribution, liquidation or
otherwise) paid or to be paid for any share of Common Stock
in connection with a Change of Control. If the
consideration paid or to be paid in any transaction that
results in a Change of Control consists, in whole or in
part, of consideration other than cash, the Board shall take
such action, as in its judgment it deems appropriate, to
establish the cash value of such consideration, but such
valuation shall not be less than the value, if any,
attributed to such consideration by any other party to such
transaction that results in a Change of Control.
(n) "Holder" means an eligible employee,
prospective employee, consultant or independent contractor
of the Company or a Subsidiary who has received an award
under the Plan.
(o) "Non-Qualified Stock Option" means any
Stock Option that is not an Incentive stock option within
the meaning of Section 422 of the Code.
(p) "Other Stock-Based Award" means an award
under Section 9 hereof that is valued in whole or in part by
reference to, or is otherwise based upon, Common Stock.
(q) "Plan" means this 1992 Performance Equity
Plan, as hereinafter amended from time to time.
(r) "Restricted Stock" means Common Stock,
received under an award made pursuant to Section 7 hereof,
that is subject to restrictions under said Section 7.
(s) "SAR Value" means the excess of the Fair
Market Value of one share of Common Stock over the exercise
price per share specified in a related Stock Option in the
case of a Stock Appreciation Right granted in tandem with a
Stock Option and the Stock Appreciation Right price per
share in the case of a Stock Appreciation Right awarded on a
free standing basis multiplied by the number of shares in
respect of which the Stock Appreciation Right shall be
exercised, on the date of exercise.
(t) "Stock Appreciation Right" means the right,
pursuant to an award granted under Section 6 hereof, to
recover an amount equal to the SAR Value.
(u) "Stock Option" or "Option" means any
Non-Qualified Stock Option to purchase shares of Stock which
is awarded pursuant to the Plan.
(v) "Subsidiary" means any present or future
subsidiary corporation of the Company, as such term is
defined in Section 424(f) of the Code.
2. Administration.
2.1 Committee. The Plan shall be administered by
the Committee. The Committee shall have all the powers,
privileges and duties of the Board as set forth herein. The
Board may from time to time appoint members of the Committee
in substitution for or in addition to members previously
appointed, may fill vacancies in the Committee and may
discharge the Committee. The Committee shall select one of
its members as its chairman and shall hold its meetings at
such times and places as it shall deem advisable. A
majority of its members shall constitute a quorum and all
determinations shall be made by a majority of such quorum.
Any determination reduced to writing and signed by all of
the members shall be fully as effective as if it had been
made by a majority vote at a meeting duly called and held.
The membership of the Committee shall at all times,
commencing at such time the Company becomes subject to the
Exchange Act, be constituted so as to not adversely affect
the compliance of the Plan with the requirements of Rule
16b-3 under the Exchange Act, to the extent it is
applicable, or with the requirements of any other applicable
law, rule or regulation.
2.2 Powers. The Committee shall have full authority
to award, pursuant to the terms of the Plan, to eligible
individuals described under Section 4 hereof: (i) Stock
Options, (ii) Stock Appreciation Rights, (iii) Restricted
Stock, (iv) Deferred Stock, and/or (v) Other Stock-Based
Awards. For purposes of illustration and not of limitation,
the Committee shall have the authority (subject to the
express provisions of this Plan):
(a) to select the eligible individuals to whom
Stock Options, Stock Appreciation Rights, Restricted Stock,
Deferred Stock and/or Other Stock-Based Awards may from time
to time be awarded hereunder;
(b) to determine the Stock Options, Stock
Appreciation Rights, Restricted Stock, Deferred Stock and/or
Other Stock-Based Awards, or any combination thereof, if
any, to be awarded hereunder to one or more eligible
employees or persons;
(c) to determine the number of shares to be
covered by each award granted hereunder;
(d) to determine the terms and conditions, not
inconsistent with the terms of the Plan, of any award
hereunder (including, but not limited to, share price, any
restrictions or limitations, and any vesting, exchange,
surrender, cancellation, acceleration, termination, exercise
or forfeiture provisions) as the Committee shall determine;
(e) to determine any specified performance
goals or such other factors or criteria which need to be
attained for the vesting of an award granted hereunder;
(f) to determine the terms and conditions under
which awards hereunder are to operate on a tandem basis
and/or in conjunction with or apart from other equity
awarded under this Plan and cash awards made by the Company
or any Subsidiary outside of this Plan;
(g) to determine the extent and circumstances
under which Common Stock and other amounts payable with
respect to an award hereunder shall be deferred, which may
be either automatic or at the election of the Holder; and
(h) to substitute (A) new Stock Options for
previously granted Stock Options, which previously granted
Stock Options have higher option exercise prices and/or
contain other less favorable terms, and (B) new awards of
any other type for previously granted awards of the same or
other type, which previously granted awards are upon less
favorable terms.
2.3 Interpretation of Plan. Subject to Section 11
hereof, the Committee shall have the authority to adopt,
alter and repeal such administrative rules, guidelines and
practices governing the Plan as it shall, from time to time,
deem advisable, to interpret the terms and provisions of the
Plan and any award issued under the Plan (and to determine
the form and substance of all Agreements relating thereto),
and to otherwise supervise the administration of the Plan.
Subject to Section 11 hereof, all decisions made by
the Committee pursuant to the provisions of the Plan shall
be made in the Committee's sole discretion and shall be
final and binding upon all persons, including the Company,
its Subsidiaries and the Holders.
2.4 Annual Recommendations. The President of the
Company shall submit to the Committee from time to time, and
at such times as he may determine, a recommendation as to
the award, type of award and the terms and conditions
thereof for employees, prospective employees, consultants or
independent contractors. Such recommendations shall be
advisory only and will not limit or otherwise affect the
authority of the Committee.
3. Stock Subject to Plan.
3.1 Number of Shares. The total number of shares of
Common Stock reserved and available for distribution under
the Plan shall be Two Hundred (200) shares. If any shares
of Common Stock that are subject to a Stock Option or Stock
Appreciation Right cease to be subject to such Option or
Stock Appreciation Right, or if any shares that are subject
to a Restricted Stock or Deferred Stock award or Other
Stock-Based Award granted hereunder are forfeited or any
such award otherwise terminates without a payment being made
to the Holder with respect to such Common Stock (including
dividends), such shares shall again be available for
distribution in connection with future grants and awards
under the Plan.
3.2 Character of Shares. Shares of Common Stock
under the Plan may consist, in whole or in part, of
authorized and unissued shares or treasury shares.
3.3 Adjustment Upon Changes in Capitalization, Etc.
In the event of any merger, reorganization, consolidation,
recapitalization, dividend (other than a dividend or its
equivalent which is credited to a Holder or a regular cash
dividend), stock split, reverse stock split, or other change
in corporate structure affecting the Common Stock, such
substitution or adjustment shall be made in the aggregate
number of shares reserved for issuance under the Plan, in
the number and exercise price of shares subject to
outstanding Options, in the number of shares and Stock
Appreciation Right price relating to Stock Appreciation
Rights, and in the number of shares subject to, and related
terms of, other outstanding awards (including but not
limited to awards of Restricted Stock, Deferred Stock and
Other Stock-Based Awards) as may be determined to be
appropriate by the Committee in order to prevent dilution or
enlargement of each Holder's rights, provided that the
number of shares subject to any award shall always be a
whole number.
4. Eligibility.
4.1 General. Awards under the Plan may be made to
(i) officers and other employees of the Company or any
Subsidiary (including officers and employees serving as
directors of the Company) who are at the time of the grant
of an award under this Plan regularly employed by the
Company or any Subsidiary; (ii) prospective employees of the
Company or its Subsidiaries; and (iii) consultants or
independent contractors who the Committee believes have
contributed or will contribute to the success of the
Company. The exercise of any Stock Option and the vesting
of any award hereunder granted to a prospective employee
shall be conditioned upon such person becoming an employee
of the Company or a Subsidiary. The term "prospective
employee" shall mean any person who holds an outstanding
offer of regular employment on specific terms from the
Company or a Subsidiary.
4.2 Ineligibility for Awards. No person designated
by the Board to serve on the Committee, effective at a
future time, shall be eligible to receive any awards under
the Plan during the period from the date such designation is
made to the date such designation becomes effective.
Notwithstanding Section 4.1 hereof, no member of the
Committee, while serving as such, shall be eligible to
receive an award under the Plan.
5. Stock Options.
5.1 Grant and Exercise. Stock Options granted under
the Plan are Non-Qualified Stock Options. Any Stock Option
granted under the Plan shall contain such terms, not
inconsistent with this Plan, as the Committee may from time
to time approve. The Committee shall have the authority to
grant to any Holder hereof Non-Qualified Stock Options (with
or without Stock Appreciation Rights) which may be granted
alone, or in tandem with or in addition to other awards
under the Plan. Unless granted in substitution for another
outstanding award, Options shall be granted for no
consideration other than services.
5.2 Terms and Conditions. Stock Options granted
under the Plan shall be subject to the following terms and
conditions:
(a) Exercise Price. The exercise price per
share of Common Stock purchasable under a Stock Option shall
be determined by the Committee at the time of grant but
shall be not less than 100% of the Fair Market Value of the
Common Stock at the time of grant.
(b) Option Term. The term of each Stock Option
shall be fixed by the Committee, but no Stock Option shall
be exercisable more than ten years after the date on which
the Option is granted.
(c) Exercisability. Stock Options shall be
exercisable at such time or times and subject to such terms
and conditions as shall be determined by the Committee. If
the Committee provides, in its discretion, that any Stock
Option is exercisable only in installments, the Committee
may waive such installment exercise provisions at any time
at or after the time of grant in whole or in part, based
upon such factors as the Committee shall determine.
(d) Method of Exercise. Subject to whatever
installment, exercise and waiting period provisions are
applicable in a particular case, Stock Options may be
exercised in whole or in part at any time during the term of
the Option, by giving written notice of exercise to the
Company specifying the number of shares of Common Stock to
be purchased. Such notice shall be accompanied by payment
in full of the purchase price, which shall be in cash or,
unless otherwise provided in the Agreement, in whole shares
of Common Stock which are already owned by the Holder of the
Stock Option or, unless otherwise provided in the Stock
Option Agreement, partly in cash and partly in such Common
Stock. Cash payments shall be made by wire transfer,
certified or bank check or personal check, in each case
payable to the order of the Company; provided, however, that
the Company shall not be required to deliver certificates
for shares of Common Stock with respect to which a Stock
Option is exercised until the Company has confirmed the
receipt of good and available funds in payment of the
purchase price thereof. Payments in the form of Common
Stock (which shall be valued at the Fair Market Value of a
share of Common Stock on the date of exercise) shall be made
by delivery of stock certificates in negotiable form which
are effective to transfer good and valid title thereto to
the Company, free of any liens or encumbrances. Subject to
the terms of the Agreement, the Committee may, in its sole
discretion, at the request of the Holder, deliver upon the
exercise of a Non-Qualified Stock Option a combination of
shares of Deferred Stock and Common Stock; provided that,
notwithstanding the provisions of Section 8 of the Plan,
such Deferred Stock shall be fully vested and not subject to
forfeiture. The Holder of a Stock Option shall have none of
the rights of a stockholder with respect to the shares
subject to the Stock Option until such shares shall be
transferred to the Holder upon the exercise of the Stock
Option.
(e) Buyout and Settlement Provisions. The
Committee may at any time offer to buy out for cash or
otherwise settle a Stock Option previously granted, based
upon such terms and conditions as the Committee shall
establish and communicate to the Holder at the time that
such offer is made, including a settlement by exchange of a
different award under the Plan for the surrender of the
Option.
6. Stock Appreciation Rights.
6.1 Grant and Exercise. Stock Appreciation Rights
may be granted in tandem with ("Tandem Stock Appreciation
Right") or in conjunction with all or part of any Stock
Option granted under the Plan or may be granted on a
free-standing basis. In the case of a Non-Qualified Stock
Option, a Tandem Stock Appreciation Right may be granted
either at or after the time of the grant of such Non-
Qualified Stock Option. Unless granted in substitution for
another outstanding award, Stock Appreciation Rights shall
be granted for no consideration other than services.
A Tandem Stock Appreciation Right shall terminate and shall
no longer be exercisable upon the termination or exercise of
the related Stock Option, except that, unless otherwise
determined by the Committee, a Tandem Stock Appreciation
Right granted with respect to less than the full number of
shares covered by a related Stock Option shall not be
reduced until after the number of shares remaining under the
related Stock Option equals the number of shares covered by
the Tandem Stock Appreciation Right.
A Tandem Stock Appreciation Right may be exercised by a
Holder, in accordance with Section 6.2 hereof, by
surrendering the applicable portion of the related Stock
Option. Upon such exercise and surrender, the Holder shall
be entitled to receive such amount in the form of payment
determined in the manner prescribed in Section 6.2 hereof.
Stock Options which have been so surrendered, in whole or in
part, shall no longer be exercisable to the extent Tandem
Stock Appreciation Rights have been exercised.
6.2 Terms and Conditions. Stock Appreciation Rights
shall be subject to the following terms and conditions:
(a) Exercisability. Tandem Stock Appreciation
Rights shall be exercisable only at such time or times and
to the extent that the Stock Options to which they relate
shall be exercisable in accordance with the provisions of
Section 5 hereof and this Section 6, and may be subject to
such additional limitations on exercisability as shall be
determined by the Committee and set forth in the Agreement.
Other Stock Appreciation Rights shall be exercisable at such
time or times and subject to such terms and conditions as
shall be determined by the Committee and set forth in the
Agreement. Notwithstanding anything to the contrary
contained herein (including the provisions of Section 10.1
hereof), any Stock Appreciation Right granted to an Exchange
Act Holder to be settled wholly or partially in cash (i)
shall not be exercisable during the first six months of the
term of such Stock Appreciation Right, except that this
special limitation shall not apply in the event of death or
Disability of such Holder prior to the expiration of the
six-month period, and shall not be exercisable prior to the
first anniversary of the date on which the Company became
subject to Section 13(a) of the Exchange Act, and (ii) shall
only be exercisable during the period beginning on the third
business day following the date of release for publication
of the Company of quarterly or annual summary statements of
sales and earnings and ending on the twelfth business day
following such date.
(b) Receipt of SAR Value. Upon the exercise of
a Stock Appreciation Right, a Holder shall be entitled to
receive up to, but not more than, an amount in cash and/or
shares of Common Stock equal to the SAR Value with the
Committee having the right to determine the form of payment.
(c) Shares Affected Under Plan. Upon the
exercise of a Tandem Stock Appreciation Right, the Stock
Option or part thereof to which such Tandem Stock
Appreciation Right is related shall be deemed to have been
exercised for the purpose of the limitation set forth in
Section 3 hereof on the number of shares of Common Stock to
be issued under the Plan, but only to the extent of the
number of shares, if any, issued under the Tandem Stock
Appreciation Right at the time of exercise based upon the
SAR Value.
(d) Limited Stock Appreciation Rights. The
Committee may grant "Limited Stock Appreciation Rights"
i.e., Stock Appreciation Rights that become exercisable upon
the occurrence of one or more of the events which trigger a
Change of Control as defined in Section 10 hereof, and shall
be settled in an amount equal to the Formula Price Per
Share, subject to such other terms and conditions as the
Committee may specify; provided, however, if any Limited
Stock Appreciation Right is granted to an Exchange Act
Holder such Limited Stock Appreciation Right (i) shall only
be exercisable within sixty (60) days after the event
triggering the Change of Control; and (ii) may not be
exercised during the first six months after the date of
grant of such Limited Stock Appreciation Right (except in
the event of death or Disability of such Holder prior to the
expiration of the six-month period); and (iii) shall only be
exercisable in the event that the date of the Change of
Control was outside the control of such Holder; and (iv)
shall only be settled in cash in an amount equal to the
Formula Price Per Share.
7. Restricted Stock.
7.1 Grant. Shares of Restricted Stock may be
awarded either alone or in addition to other awards granted
under the Plan. The Committee shall determine the eligible
persons to whom, and the time or times at which, grants of
Restricted Stock will be awarded, the number of shares to be
awarded, the time or times within which such awards may be
subject to forfeiture (the "Restriction Period"), the
vesting schedule and rights to acceleration thereof, and all
other terms and conditions of the awards. Unless granted in
substitution for another outstanding award, Restricted Stock
shall be granted for no consideration other than services.
7.2 Terms and Conditions. Each Restricted Stock
award shall be subject to the following terms and
conditions:
(a) Certificates. Restricted Stock, when
issued, will be represented by a stock certificate or
certificates registered in the name of the Holder to whom
such Restricted Stock shall have been awarded. During the
Restriction Period, certificates representing the Restricted
Stock and any securities constituting Retained Distributions
(as hereinafter defined) shall bear a restrictive legend to
the effect that ownership of the Restricted Stock (and such
Retained Distributions), and the enjoyment of all rights
appurtenant thereto, are subject to the restrictions, terms
and conditions provided in the Plan and the Agreement. Such
certificates shall be deposited by the Holder with the
Company, together with stock powers or other instruments of
assignment, each endorsed in blank, which will permit
transfer to the Company of all or any portion of the
Restricted Stock and any securities constituting Retained
Distributions that shall be forfeited or that shall not
become vested in accordance with the Plan and the Agreement.
(b) Rights of Holder. Restricted Stock shall
constitute issued and outstanding shares of Common Stock for
all corporate purposes. The Holder will have the right to
vote such Restricted Stock, to receive and retain all
regular cash dividends and other cash equivalent
distributions as the Committee may in its sole discretion
designate, pay or distribute on such Restricted Stock and to
exercise all other rights, powers and privileges of a Holder
of Common Stock with respect to such Restricted Stock, with
the exceptions that (A) the Holder will not be entitled to
delivery of the stock certificate or certificates
representing such Restricted Stock until the Restriction
Period shall have expired and unless all other vesting
requirements with respect thereto shall have been fulfilled;
(B) the Company will retain custody of the stock certificate
or certificates representing the Restricted Stock during the
Restriction Period; (C) other than regular cash dividends
and other cash equivalent distributions as the Committee may
in its sole discretion designate, pay or distribute, the
Company will retain custody of all distributions ("Retained
Distributions") made or declared with respect to the
Restricted Stock (and such Retained Distributions will be
subject to the same restrictions, terms and conditions as
are applicable to the Restricted Stock) until such time, if
ever, as the Restricted Stock with respect to which such
Retained Distributions shall have been made, paid or
declared shall have become vested and with respect to which
the Restriction Period shall have expired; and (D) a breach
by the Holder of any of the restrictions, terms or
conditions contained in this Plan or the Agreement or
otherwise established by the Committee with respect to any
Restricted Stock or Retained Distributions will cause a
forfeiture of such Restricted Stock and any Retained
Distributions with respect thereto.
(c) Vesting; Forfeiture. Upon the expiration
of the Restriction Period with respect to each award of
Restricted Stock and the satisfaction of any other
applicable restrictions, terms and conditions (A) such
Restricted Stock shall become vested in accordance with the
terms of the Agreement, and (B) any Retained Distributions
with respect to such Restricted Stock shall become vested to
the extent that the Restricted Stock related thereto shall
have become vested. Any such Restricted Stock and Retained
Distributions that do not vest shall be forfeited to the
Company and the Holder shall not thereafter have any rights
with respect to such Restricted Stock and Retained
Distributions that shall have been so forfeited.
8. Deferred Stock.
8.1 Grant. Shares of Deferred Stock may be awarded
either alone or in addition to other awards granted under
the Plan. The Committee shall determine the eligible
persons to whom, and the time or times at which, grants of
Deferred Stock shall be awarded, the number of shares of
Deferred Stock to be awarded, the duration of the period
(the "Deferral Period") during which, and the conditions
under which, receipt of the shares will be deferred, and all
the other terms and conditions of the awards. Unless
granted in substitution for an outstanding award or upon
exercise of an Option, Deferred Stock shall be issued for no
consideration other than services.
8.2 Terms and Conditions. Each Deferred Stock award
shall be subject to the following terms and conditions:
(a) Certificates. At the expiration of the
Deferral Period (or the additional Deferral Period referred
to in Section 8.2(d) hereof ("Additional Deferral Period",
where applicable)), share certificates shall be delivered to
the Holder, or his legal representative, representing the
number of the shares equal to the number covered by the
Deferred Stock award.
(b) Dividends. As determined by the Committee,
amounts equal to any dividends declared during the Deferral
Period (or the Additional Deferral Period, where applicable)
with respect to the number of shares covered by a Deferred
Stock award may be paid to the Holder currently or deferred
and deemed to be reinvested in additional Deferred Stock.
(c) Vesting; Forfeiture. Upon the expiration
of the Deferral Period (or the Additional Deferral Period,
where applicable) with respect to each award of Deferred
Stock and the satisfaction of any other applicable
limitations, terms or conditions, such Deferred Stock shall
become vested in accordance with the terms of the Agreement.
Any Deferred Stock that does not vest shall be forfeited to
the Company and the Holder shall not thereafter have any
rights with respect to such Deferred Stock that has been so
forfeited.
(d) Additional Deferral Period. A Holder may
request to, and the Committee may in its sole discretion at
any time, defer the receipt of an award (or an installment
of an award) for an additional specified period or until a
specified event (the "Additional Deferral Period"). Subject
to any exceptions adopted by the Committee, such request
must generally be made at least one year prior to expiration
of the Deferral Period for such Deferred Stock award (or
such installment).
9. Other Stock-Based Awards.
9.1 Grant and Exercise. Other Stock-Based Awards
may be awarded, subject to limitations under applicable law,
that are denominated or payable in, valued in whole or in
part by reference to, or otherwise based on, or related to,
shares of Common Stock, as deemed by the Committee to be
consistent with the purposes of the Plan, including, without
limitation, purchase rights, shares of Common Stock awarded
which are not subject to any restrictions or conditions,
convertible or exchangeable debentures, or other rights
convertible into shares of Common Stock and awards valued by
reference to the value of securities of or the performance
of specified Subsidiaries. Other Stock-Based Awards may be
awarded either alone or in addition to or in tandem with any
other awards under this Plan or any other plan of the
Company.
The Committee shall determine the eligible persons to
whom and the time or times at which grants of such awards
shall be made, the number of shares of Common Stock to be
awarded pursuant to such awards, and all other terms and
conditions of the awards. Notwithstanding the foregoing,
except to the extent that an Other Stock-Based Award is
granted in substitution for another outstanding award or is
delivered upon exercise of an Option, the amount of
consideration to be required to be received by the Company
shall be either no consideration (other than services) or,
in the case of an Other Stock-Based Award in the nature of a
purchase right, an amount equal to or greater than 50% of
the Fair Market Value of the shares to which the award
relates on the date of grant of such award.
9.2 Terms and Conditions. Each Other Stock-Based
Award shall be subject to the following terms and
conditions:
(a) Dividends. The Holder of an Other
Stock-Based Award shall be entitled to receive, currently or
on a deferred basis, dividends or dividend equivalents with
respect to the number of shares covered by the award, as
determined by the Committee. The Committee may provide that
such amounts (if any) shall be deemed to have been
reinvested in additional Common Stock.
(b) Vesting: Forfeiture. Any Other Stock-Based
Award and any Common Stock covered by an Other Stock-Based
Award shall vest or be forfeited to the extent so provided
in the Agreement.
10. Acceleration.
10.1 Acceleration Upon Change of Control. Unless the
award Agreement provides otherwise or unless the Holder
waives the application of this Section 10.1 prior to a
Change of Control (as hereinafter defined), in the event of
a Change of Control:
(a) Each outstanding Stock Option, Stock
Appreciation Right and Limited Stock Appreciation Right
granted under the Plan shall immediately become exercisable
in full notwithstanding the vesting or exercise provisions
contained in the Agreement; and
(b) All restrictions and deferral limitations
related to awards of Restricted Stock, Deferred Stock and
Other Stock-Based Awards, shall be deemed to have expired
and all such awards and any related Retained Distributions
shall become vested.
10.2 Change of Control Defined. A "Change of
Control" shall be deemed to have occurred upon any of the
following events:
(a) The consummation of any of the following
transactions: any merger, reverse stock split,
recapitalization or other business combination of the
Company, with or into another corporation, or an acquisition
of securities or assets by the Company, pursuant to which
the Company is not the continuing or surviving corporation
or pursuant to which shares of Common Stock would be
converted into cash, securities or other property, other
than a transaction in which the majority of the holders of
Common Stock immediately prior to such transaction will own
at least 50% of the total voting power of the
then-outstanding securities of the surviving corporation
immediately after such transaction, or any sale, lease,
exchange, or other transfer (in one transaction or a series
of related transactions) of all, or substantially all, of
the assets of the Company, or the liquidation or dissolution
of the Company; or
(b) A transaction in which any person (as such
term is defined in Sections 13(d)(3) and 14(d)(2) of the
Exchange Act), corporation or other entity (other than the
Company, or any profit-sharing, employee ownership or other
employee benefit plan sponsored by the Company or any
Subsidiary, or any trustee of or fiduciary with respect to
any such plan when acting in such capacity, or any group
comprised solely of such entities): (i) shall purchase any
Common Stock (or securities convertible into Common Stock)
for cash, securities or any other consideration pursuant to
a tender offer or exchange offer, without the prior consent
of the Board, or (ii) shall become the "beneficial owner"
(as such term is defined in Rule 13d-3 under the Exchange
Act), directly or indirectly (in one transaction or a series
of transactions), of securities of the Company representing
50% or more of the total voting power of the
then-outstanding securities of the Company ordinarily (and
apart from the rights accruing under special circumstances)
having the right to vote in the election of directors
(calculated as provided in Rule 13d-3(d) in the case of
rights to acquire the Company's securities); or
(c) If, during any period of two consecutive
years, individuals who at the beginning of such period
constituted the entire Board and any new director whose
election by the Board, or nomination for election by the
Company's stockholders was approved by a vote of at least
two thirds of the directors then still in office who either
were directors at the beginning of the period or whose
election or nomination for election by the stockholders was
previously so approved, cease for any reason to constitute a
majority thereof.
10.3 General Waiver by Committee. The Committee may,
after grant of an award, accelerate the vesting of all or
any part of any Stock Option, Deferred Stock, Restricted
Stock or any Other Stock-Based Award and/or waive any
limitations or restrictions, if any, for all or any part of
an award.
10.4 Acceleration Upon Termination of Employment. In
the case of a Holder whose employment with the Company or a
Subsidiary is involuntarily terminated for any reason (other
than for cause), the Committee may accelerate the vesting of
all or any part of any award and/or waive in whole or in
part any or all of the remaining deferral limitations or
restrictions imposed hereunder or pursuant to the Agreement.
11. Amendments and Termination.
11.1 Amendments to Plan. The Board may at any time,
and from time to time, amend any of the provisions of the
Plan, and may at any time suspend or terminate the Plan;
provided, however, that no such amendment shall be effective
unless and until it has been duly approved by the
stockholders of the outstanding shares of Common Stock if
(a) it increases the aggregate number of shares of Common
Stock which are available pursuant to the Plan, (except as
provided in Section 3 hereof) or (b) the failure to obtain
such approval would adversely affect the compliance of the
Plan with the requirements of Rule 16b-3 under the Exchange
Act, or with the requirements of any other applicable law,
rule or regulation.
11.2 Amendments to Individual Awards. The Committee
may amend the terms of any award granted under the Plan;
provided, however, that subject to Section 3 hereof, no such
amendment may be made by the Committee which in any material
respect impairs the rights of the Holder without the
Holder's consent.
12. Term of Plan.
12.1 Effective Date. The Plan shall be effective as
of September 1, 1992 ("Effective Date").
12.2 Termination Date. No award shall be granted
pursuant to the Plan on or after the tenth anniversary of
the Effective Date, but awards granted prior to such tenth
anniversary may extend beyond that date. The Plan shall
terminate at such time as no further awards may be granted
and all awards granted under the Plan are no longer
outstanding.
13. General Provisions.
13.1 Investment Representations. The Committee may
require each person acquiring shares of Common Stock
pursuant to an award under the Plan to represent to and
agree with the Company in writing that the Holder is
acquiring the shares for investment without a view to
distribution thereof.
13.2 Additional Incentive Arrangements. Nothing
contained in the Plan shall prevent the Board from adopting
such other or additional incentive arrangements as it may
deem desirable, including, but not limited to, the granting
of stock options and the awarding of stock and cash
otherwise than under the Plan; and such arrangements may be
either generally applicable or applicable only in specific
cases.
13.3 No Right of Employment. Nothing contained in
the Plan or in any award hereunder shall be deemed to confer
upon any employee of the Company or any Subsidiary any right
to continued employment with the Company or any Subsidiary,
nor shall it interfere in any way with the right of the
Company or any Subsidiary to terminate the employment of any
of its employees at any time.
13.4 Withholding Taxes. Not later than the date as
of which an amount first becomes includible in the gross
income of the Holder for Federal income tax purposes with
respect to any award under the Plan, the Holder shall pay to
the Company, or make arrangements satisfactory to the
Company regarding the payment of, any Federal, state and
local taxes of any kind required by law to be withheld or
paid with respect to such amount. If permitted by the
Committee, tax withholding or payment obligations may be
settled with Common Stock, including Common Stock that is
part of the award that gives rise to the withholding
requirement. The obligations of the Company under the Plan
shall be conditional upon such payment or arrangements and
the Company or the Holder's employer (if not the Company)
shall, to the extent permitted by law, have the right to
deduct any such taxes from any payment of any kind otherwise
due to the Holder from the Company or any Subsidiary.
13.5 Governing Law. The Plan and all awards made and
actions taken thereunder shall be governed by and construed
in accordance with the laws of the Commonwealth of Virginia
(without regard to choice of law provisions).
13.6 Other Benefit Plans. Any award granted under
the Plan shall not be deemed compensation for purposes of
computing benefits under any retirement plan of the Company
or any Subsidiary and shall not affect any benefits under
any other benefit plan now or subsequently in effect under
which the availability or amount of benefits is related to
the level of compensation (unless required by specific
reference in any such other plan to awards under this Plan).
13.7 Employee Status. A leave of absence, unless
otherwise determined by the Committee prior to the
commencement thereof, shall not be considered a termination
of employment. Any awards granted under the Plan shall not
be affected by any change of employment, so long as the
Holder continues to be an employee of the Company or any
Subsidiary.
13.8 Non-Transferability. Other than the transfer of
a Stock Option, Stock Appreciation Right or other award by
will or by the laws of descent and distribution, no award
under the Plan may be alienated, sold, assigned,
hypothecated, pledged, exchanged, transferred, encumbered or
charged, and any attempt to alienate, sell, assign,
hypothecate, pledge, exchange, transfer, encumber or charge
the same shall be void. No right or benefit hereunder shall
in any manner be liable for or subject to the debts,
contracts, liabilities or torts of the person entitled to
such benefit. Any Stock Option, Stock Appreciation Right or
other award granted under this Plan is only exercisable
during the lifetime of the Holder by the Holder or by his
guardian or legal representative.
13.9 Applicable Laws. The obligations of the Company
with respect to all awards under the Plan shall be subject
to (i) all applicable laws, rules and regulations and such
approvals by any governmental agencies as may be required,
including, without limitation, the effectiveness of a
registration statement under the Securities Act of 1933, as
amended, and (ii) the rules and regulations of any
securities exchange on which the Common Stock may be listed
or the NASDAQ National Market System if the Common Stock is
designated for quotation thereon.
13.10 Conflicts. If any of the terms or provisions
of the Plan conflict with the requirements of Rule 16b-3
under the Exchange Act and/or with the requirements of any
other applicable law, rule or regulation, then such terms or
provisions shall be deemed inoperative to the extent they so
conflict with the requirements of said Rule 16b-3, law, rule
or regulation.
13.11 Written Agreements. Each award granted under
the Plan shall be confirmed by, and shall be subject to the
terms of the Agreement executed by the Company and the
Holder. The Committee may terminate any award made under
the Plan if the Agreement relating thereto is not executed
and returned to the Company within 60 days after the
Agreement has been delivered to the Holder for his or her
execution.
13.12 Consideration For Common Stock. The Committee
may not grant any awards under the Plan pursuant to which
the Company will be required to issue any shares of Common
Stock unless the Company will receive consideration for the
shares of Common Stock sufficient under the laws of the
Commonwealth of Virginia so that such shares of Common Stock
will be fully paid and non-assessable when issued.
13.13 Common Stock Certificates. Notwithstanding
anything to the contrary contained herein, whenever
certificates representing shares of Common Stock subject to
an award are required to be delivered pursuant to the terms
of the Plan, the Company may in lieu of such delivery
requirement comply with the provisions of Section 13.1-648
of the Virginia Stock Corporation Act.
All certificates for shares of Common Stock delivered
under the Plan shall be subject to such stop-transfer orders
and other restrictions as the Committee may deem advisable
under the rules, regulations, and other requirements of the
Securities and Exchange Commission, any stock exchange upon
which the Common Stock is then listed, any applicable
Federal or state securities law, and any applicable
corporate law, and the Committee may cause a legend or
legends to be put on any such certificates to make
appropriate reference to such restrictions.
13.14 Unfunded Status of Plan. The Plan is intended
to constitute an "unfunded" plan for incentive and deferred
compensation. With respect to any payments not yet made to
a Holder by the Company, nothing contained herein shall give
any such Holder any rights that are greater than those of a
general creditor of the Company.