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Exhibit 10.3
COLLEGIS, INC. 2002 STOCK INCENTIVE PLAN
ARTICLE 1. ESTABLISHMENT, OBJECTIVES AND DURATION
1.1 ESTABLISHMENT OF THE PLAN. Collegis, Inc., a Delaware corporation,
has adopted this "Collegis, Inc. 2002 Stock Incentive Plan." Capitalized terms
used herein will have the meanings given to them in Article 2. The Plan permits
the grant of Nonqualified Stock Options, Incentive Stock Options, Stock
Appreciation Rights, Restricted Stock, and Performance Shares. In addition, the
Plan provides the opportunity for the deferral of the payment of salary, bonuses
and other forms of incentive compensation.
1.2 OBJECTIVES OF THE PLAN. The Plan's objectives are to optimize the
profitability and growth of the Company through long-term incentives that are
consistent with the Company's objectives and that link Participants' interests
to those of the Company's stockholders; to provide Participants with an
incentive for excellence in individual performance; to promote teamwork among
Participants; and to give the Company a significant advantage in attracting and
retaining officers, key employees and directors.
1.3 EFFECTIVE DATE AND TERM OF THE PLAN.
(a) The Plan will be effective on the effective date of the
Company's Registration Statement on Form S-1 for the initial public
offering of the Company's Common Stock. No Option granted under the
Plan may be exercised, and no Shares will be issued under the Plan
until the Company's stockholders approve the Plan. The Board (or its
delegate) may grant Awards and issue Shares under the Plan at any time
after the Effective Date and before the termination of the Plan.
(b) Subject to earlier termination pursuant to Section 13.1,
the Plan will terminate upon the earliest of (i) the tenth anniversary
of the Effective Date, (ii) the tenth anniversary of the date the
Company's stockholders approve the Plan, or (iii) the date on which all
Shares available for issuance under the Plan have been issued pursuant
to the exercise of Options or the Award of Shares (whether vested or
unvested) under the Plan. Upon such Plan termination, all Awards
outstanding under the Plan will continue to have full force and effect
in accordance with the terms of the Award Agreement evidencing such
Award.
ARTICLE 2. DEFINITIONS
Whenever used in the Plan, the following terms have the meanings set
forth below, and when the meaning is intended, the initial letter of the word
will be capitalized:
"ADVISOR" means a consultant, advisor or other independent service
provider to any of the Company Parties, or an individual who is not an Employee
but is an employee of one of the Company Parties.
"AFFILIATE" means any corporation that is a parent or subsidiary
corporation (as Code Sections 424(e) and (f) define those terms) with respect to
the Company.
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"AWARD" means, individually or collectively, a grant under this Plan to
a Participant of Nonqualified Stock Options, Incentive Stock Options, Stock
Appreciation Rights, Restricted Stock, or Performance Shares.
"AWARD AGREEMENT" means an agreement entered into by the Company and a
Participant setting forth the terms and provisions applicable to an Award or
Awards granted to the Participant.
"BOARD" or "BOARD OF DIRECTORS" means the Board of Directors of the
Company.
"CAUSE" will have the meaning set forth in any employment, consulting,
or other agreement between any of the Company Parties and the Participant. If
there is no employment, consulting, or other agreement between any of the
Company Parties and the Participant, or if such agreement does not define
"Cause," then "Cause" will mean the Participant's (i) theft or embezzlement, or
attempted theft or embezzlement, of money or property of any of the Company
Parties, perpetration or attempted perpetration of fraud, or participation in a
fraud or attempted fraud, on any of the Company Parties, or unauthorized
appropriation of, or attempt to misappropriate, any tangible or intangible
assets or property of any of the Company Parties, (ii) act or acts of
disloyalty, moral turpitude or material misconduct that is injurious to the
interest, property, value, operations, business or reputation of any of the
Company Parties, or conviction of a crime that results in injury to any of the
Company Parties or (iii) repeated refusal (other than by reason of Disability)
to carry out reasonable instructions from his or her superiors or the Board.
"CHANGE IN CONTROL" means the occurrence of any of the following
events:
(a) An acquisition after the Effective Date by a Person of
beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 20% or more of either (a) the then
outstanding shares of common stock of the Company (the "OUTSTANDING
COMPANY COMMON STOCK") or (b) the combined voting power of the then
outstanding voting securities of the Company entitled to vote generally
in the election of directors (the "OUTSTANDING COMPANY VOTING
SECURITIES"); excluding, however, the following: (i) any acquisition
directly from the Company, other than an acquisition by virtue of the
exercise of a conversion privilege unless the security being so
converted was itself acquired directly from the Company or approved by
the Incumbent Board (as defined below), (ii) any acquisition by the
Company, (iii) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Company or any entity controlled
by the Company, (iv) any acquisition by an underwriter temporarily
holding Company securities pursuant to an offering of such securities,
or (v) any acquisition pursuant to a transaction that complies with
clauses (i), (ii) and (iii) of subsection (c) of this definition; or
(b) A change in the composition of the Board such that the
individuals who, as of the Effective Date, constitute the Board (such
Board shall be hereinafter referred to as the "INCUMBENT BOARD") cease
for any reason to constitute at least a majority of the Board;
provided, however, for purposes of this Section, that any individual
who becomes a member of the Board subsequent to the Effective Date,
whose election, or nomination
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for election by the Company's share owners, was approved by a vote of
at least a majority of those individuals who are members of the Board
and who were also members of the Incumbent Board (or deemed to be such
pursuant to this proviso), either by a specific vote or by approval of
the proxy statement of the Company in which such person is named as a
nominee for director, without written objection to such nomination
shall be considered as though such individual were a member of the
Incumbent Board; but, provided further, that any such individual whose
initial assumption of office occurs as a result of either an actual or
threatened election contest with respect to the election or removal of
directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board shall not be
so considered as a member of the Incumbent Board; or
(c) Consummation of a reorganization, merger or consolidation
(or similar transaction), a sale or other disposition of all or
substantially all of the assets of the Company, or the acquisition of
assets or stock of another entity ("CORPORATE TRANSACTION"); in each
case, unless immediately following such Corporate Transaction (i) all
or substantially all of the individuals and entities who are the
beneficial owners, respectively, of the Outstanding Company Common
Stock and Outstanding Company Voting Securities immediately prior to
such Corporate Transaction will beneficially own, directly or
indirectly, more than 60% of, respectively, the outstanding shares of
common stock, and the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of
directors, as the case may be, of the corporation resulting from such
Corporate Transaction (including, without limitation, a corporation
which as a result of such transaction owns the Company or all or
substantially all of the Company's assets either directly or through
one or more subsidiaries) in substantially the same proportions as
their ownership, immediately prior to such Corporate Transaction, of
the Outstanding Company Common Stock and Outstanding Company Voting
Securities, as the case may be, (ii) no Person (other than the Company,
any employee benefit plan (or related trust) of the Company or such
corporation resulting from such Corporate Transaction) will
beneficially own, directly or indirectly, 20% or more of, respectively,
the outstanding shares of common stock of the corporation resulting
from such Corporate Transaction or the combined voting power of the
outstanding voting securities of such corporation entitled to vote
generally in the election of directors, except to the extent that such
ownership existed prior to the Corporate Transaction, and (iii)
individuals who were members of the Incumbent Board at the time of the
Board's approval of the execution of the initial agreement providing
for such Corporate Transaction will constitute at least a majority of
the members of the board of directors of the corporation resulting from
such Corporate Transaction; or
(d) The approval by the stockholders of the Company of a
complete liquidation or dissolution of the Company.
However, in no event will a Change in Control be deemed to have occurred, with
respect to a Participant, if the Participant is part of a purchasing group that
consummates the Change in Control transaction. A Participant will be deemed
"part of a purchasing group" for purposes of the preceding sentence if the
Participant is an equity participant in the purchasing company or group (except:
(i) passive ownership of less than 2% of the stock of the purchasing company; or
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(ii) ownership of equity participation in the purchasing company or group that
is otherwise not significant, as determined prior to the Change in Control by a
majority of the non-employee continuing Directors).
"CODE" means the Internal Revenue Code of 1986, as amended from time to
time.
"COMMITTEE" means, as specified in Article 3, the Compensation
Committee of the Board or such other committee as may be appointed by the Board
to administer the Plan.
"COMMON STOCK" means the Company's Common Stock, par value $0.01 per
share.
"COMPANY" means Collegis, Inc., a Delaware corporation, and any
successor thereto as provided in Article 15.
"COMPANY PARTIES" means, collectively and without duplication, the
Company and any of its Affiliates.
"DESIGNATED BENEFICIARY" means the Person or Persons the Participant
designates (who may be designated contingently or successively) from time to
time on a signed form prescribed by the Board, filed with the Company during the
Participant's lifetime, as the beneficiary of any amounts or benefits the
Participant owns or is to receive under the Plan. Each beneficiary designation
will revoke all prior designations by the same Participant. If the Participant
has not designated a beneficiary under the Plan, or if the Participant's
Designated Beneficiary is not living on the relevant date hereunder, the Company
will treat the Participant's estate as the Designated Beneficiary.
"DIRECTOR" means any individual who is a member of the Board of
Directors.
"DISABILITY" will have the meaning set forth in any employment,
consulting, or other agreement between any of the Company Parties and the
Participant. If there is no employment, consulting, or other agreement between
any of the Company Parties and the Participant, or if such agreement does not
define "Disability," then "Disability" will mean (i) any permanent physical or
mental incapacity or disability rendering the Participant unable or unfit to
perform effectively the duties and obligations of the Participant's Service, or
(ii) any illness, accident, injury, physical or mental incapacity or other
disability, which condition has rendered the Participant unable or unfit to
perform effectively the duties and obligations of the Participant's Service for
a period of at least 90 days in any 12-consecutive month period, in either case,
as determined in the Committee's good faith judgment.
"EFFECTIVE DATE" means the effective date of the Company's Registration
Statement on Form S-1 for the initial public offering of the Company's Common
Stock.
"EMPLOYEE" means a person employed by the Company or an Affiliate in a
common law employee-employer relationship.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor act thereto.
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"EXERCISE PRICE" means the price at which a Share may be purchased by a
Participant pursuant to an Option.
"FAIR MARKET VALUE" means as of any given date: (i) the average of the
high and low trading prices of the Common Stock on the national securities
exchange on which the Common Stock is listed (if the Common Stock is so listed)
or on the Nasdaq Stock Market (if the Common Stock is regularly quoted on the
Nasdaq Stock Market); (ii) if not so listed or regularly quoted, the mean
between the closing bid and asked prices of publicly traded Common Stock in the
over-the-counter market; and (iii) if such bid and asked prices are not
available, as reported by any nationally recognized quotation service selected
by the Committee or as determined by the Committee. Notwithstanding the
foregoing, for Awards granted in connection with, and as of the effective date
of the Company's Registration Statement on Form S-1 for the initial public
offering of the Company's Common Stock, "Fair Market Value" will be the "Price
to Public" as set forth in the final prospectus filed with the Securities and
Exchange Commission pursuant to Rule 424 under the Securities Act.
"GOOD REASON" will have the meaning set forth in any employment,
consulting, or other agreement between any of the Company Parties and the
Participant. If there is no employment, consulting, or other agreement between
any of the Company Parties and the Participant, or if such agreement does not
define "Good Reason," then "Good Reason" will mean the Company, without the
Participant's consent: (a) materially breaches any employment agreement, (b)
materially reduces the Participant's base salary, (c) assigns the Participant to
a position, responsibilities or duties of a materially lesser status or degree
of responsibility than the Participant's position, responsibilities or duties as
of the date of the applicable Award Agreement, or (d) requires that Participant
be based anywhere other than the Participant's location or locations of
employment duties as of the date of the applicable Award Agreement.
"INCENTIVE STOCK OPTION" or "ISO" means an option to purchase Shares
granted under Article 6 that is designated as an Incentive Stock Option and that
is intended to meet the requirements of Code Section 422.
"NONQUALIFIED STOCK OPTION" or "NQSO" means an option to purchase
Shares granted under Article 6 that is not intended to meet the requirements of
Code Section 422.
"OPTION" means an Incentive Stock Option or a Nonqualified Stock
Option, as described in Article 6.
"PARTICIPANT" means a Person who has been selected to receive an Award
under the Plan pursuant to Section 5.2, or who has an outstanding Award granted
under the Plan.
"PERFORMANCE-BASED EXCEPTION" means the performance-based exception
from the tax deductibility limitations of Code Section 162(m) and any
regulations promulgated thereunder.
"PERFORMANCE PERIOD" means the time period during which performance
objectives must be met in order for a Participant to earn Performance Shares
granted under Article 9.
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"PERFORMANCE SHARE" means an Award with an initial value equal to the
Fair Market Value on the date of grant that is based on the Participant's
attainment of performance objectives, as described in Article 9.
"PERSON" has the meaning ascribed to that term in Section 3(a)(9) of
the Exchange Act and used in Sections 13(d) and 14(d) thereof, including a
"group" as defined in Section 13(d) thereof.
"PLAN" means the Collegis, Inc. 2002 Stock Incentive Plan, as set forth
in this document.
"RESTRICTION PERIOD" means the period during which the transfer of
Shares of Restricted Stock is limited in some way (based on the passage of time,
the achievement of performance objectives, or the occurrence of other events as
determined by the Committee, at its discretion), and/or the Restricted Stock is
not vested.
"RESTRICTED STOCK" means a contingent grant of stock awarded to a
Participant pursuant to Article 8.
"RETIREMENT" will have the meaning set forth in any employment,
consulting, or other agreement between any of the Company Parties and the
Participant. If there is no employment, consulting, or other agreement between
any of the Company Parties and the Participant, or if such agreement does not
define "Retirement," then "Retirement" will mean the normal retirement age
specified under the Company's tax-qualified retirement plan.
"SECURITIES ACT" means the Securities Act of 1933, as amended from time
to time, or any successor act thereto.
"SERVICE" means the provision of services in the capacity of (i) an
Employee, (ii) a non-employee member of the Company's Board or the board of
directors of any of the Company Parties, or (iii) an Advisor.
"SHARES" means the shares of the Company's Common Stock underlying an
Award or acquired pursuant to an Award.
"STOCK APPRECIATION RIGHT" or "SAR" means an Award, granted alone or in
connection with a related Option, designated as an SAR pursuant to the terms of
Article 7.
"TEN PERCENT OWNER" means an individual who, at the time an Award is
granted under this Plan, owns stock possessing more than 10% of the total
combined voting power of all classes of stock of the Company or any Affiliate.
ARTICLE 3. ADMINISTRATION
3.1 PLAN ADMINISTRATION. The Plan will be administered by the
Compensation Committee of the Board, or by any other Committee appointed by the
Board, which Committee (unless otherwise determined by the Board) will satisfy:
(a) the "outside director" provisions of Code Section 162(m), or any successor
regulation or provision and (b) the "non-employee director" provisions of Rule
16b-3 promulgated under the Exchange Act. The members of the
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Committee will be appointed from time to time by, and serve at the discretion
of, the Board of Directors. The Committee will act by a majority of its members
at the time in office and eligible to vote on any particular matter, and
Committee action may be taken either by a vote at a meeting or in writing
without a meeting.
3.2 AUTHORITY OF THE COMMITTEE. Except as limited by law and subject
to the provisions of this Plan, the Committee will have full power to: select
eligible persons to participate in the Plan; determine the sizes and types of
Awards; determine the class of the Company's Shares to which an Award relates;
determine the terms and conditions of Awards in a manner consistent with the
Plan; construe and interpret the Plan and any agreement or instrument entered
into under the Plan; establish, amend or waive rules and regulations for the
Plan's administration; and (subject to the provisions of Article 13) amend the
terms and conditions of any outstanding Award to the extent they are within the
discretion of the Committee as provided in the Plan. Further, the Committee will
make all other determinations that may be necessary or advisable to administer
the Plan. As permitted by law and consistent with Section 3.1, the Committee may
delegate some or all of its authority under the Plan.
3.3 DECISIONS BINDING. All determinations and decisions made by the
Committee pursuant to the provisions of the Plan will be final, conclusive and
binding on all persons, including, without limitation, the Company, its Board of
Directors, its stockholders, all Affiliates, Participants and their estates and
beneficiaries.
3.4 AUTHORITY OF DESIGNATED OFFICERS. Notwithstanding any provision of
the Plan to the contrary, the Company may, by resolution of the Board, authorize
one or more officers of the Company or any Affiliate to designate Employees to
receive Awards under the Plan and to determine the number of Shares subject to
such Awards; provided, however, that the resolution authorizing any officer or
officers must specify the total number of Shares subject to Awards that the
officer or officers may award. No officer of officer may designate himself or
herself or a Director as a recipient of an Award pursuant to this Section 3.4.
ARTICLE 4. SHARES SUBJECT TO THE PLAN AND MAXIMUM AWARDS
4.1 NUMBER OF SHARES AVAILABLE FOR AWARDS. Subject to adjustment as
provided below and in Section 4.3, the maximum number of Shares that may be
issued or transferred to Participants under the Plan will be 2,500,000; provided
that, beginning January 1, 2003, and effective each January 1 thereafter, the
maximum number of Shares that may be issued or transferred to Participants under
the Plan will increase by an amount equal to two percent (2%) of the number of
Company Shares then outstanding (on a fully-diluted basis, counting all Shares
subject to Awards under this Plan as outstanding). Notwithstanding the
foregoing, the maximum number of Shares that may be issued or transferred to
Participants as Incentive Stock Options is 2,500,000, and the maximum number of
Shares that may be issued or transferred to Participants under Restricted Stock
is 2,500,000. The maximum number of Shares and Share equivalent units that may
be granted during any calendar year to any one Participant under all types of
Awards available under the Plan is 2,000,000 (on an aggregate basis); the
foregoing limit will apply whether the Awards are paid in Shares or in cash. All
limits described in this Section 4.1 are subject to adjustment as provided in
Section 4.3
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4.2 LAPSED AWARDS. If any Award granted under this Plan is canceled,
terminates, expires or lapses for any reason, any Shares subject to the Award
will again be available for the grant of an Award under the Plan.
4.3 ADJUSTMENTS IN AUTHORIZED SHARES.
(a) If the Shares, as currently constituted, are changed into
or exchanged for a different number or kind of shares of stock or other
securities of the Company or of another corporation (whether because of
merger, consolidation, recapitalization, reclassification, split,
reverse split, combination of shares, or otherwise) or if the number of
Shares is increased through the payment of a stock dividend, then the
Committee will substitute for or add to each Share previously
appropriated, later subject to, or which may become subject to, an
Award, the number and kind of shares of stock or other securities into
which each outstanding Share was changed for which each such Share was
exchanged, or to which each such Share is entitled, as the case may be.
The Committee, in its sole discretion, also may amend outstanding
Awards as to price and other terms, to the extent necessary to reflect
the events described above. If there is any other change in the number
or kind of the outstanding Shares, of any stock or other securities
into which the outstanding Shares have been changed, or for which they
have been exchanged, the Committee, in its sole discretion, may adjust
any Award already granted or which may be afterward granted.
(b) Fractional Shares resulting from any adjustment in Awards
pursuant to this Section 4.3 may be settled in cash or otherwise as the
Committee determines. The Company will give notice of any adjustment to
each Participant who holds an Award that has been adjusted and the
adjustment (whether or not such notice is given) will be effective and
binding for all Plan purposes.
ARTICLE 5. ELIGIBILITY AND PARTICIPATION
5.1 ELIGIBILITY. The following persons are eligible to receive Awards
under this Plan:
(a) any Employee;
(b) any Advisor; and
(c) any non-employee member of the Company's Board or the
board of directors of any of the Company Parties.
5.2 ACTUAL PARTICIPATION. Except as provided in Section 3.4, the
Committee will determine, within the limits set forth below, those eligible
persons to whom it will grant Awards. Each eligible person who has been selected
to receive an Award will become a Participant in the Plan upon execution of an
Award Agreement.
ARTICLE 6. STOCK OPTIONS
6.1 GRANT OF OPTIONS. Subject to the terms and provisions of the Plan,
the Committee may grant Options to any Employee, Advisor or non-Employee
Director in the
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number, and upon the terms, and at any time and from time to time, as the
Committee determines and set forth in the Award Agreement.
6.2 AWARD AGREEMENT. Each Option grant will be evidenced by an Award
Agreement that specifies the duration of the Option, the number of Shares to
which the Option pertains, the class of the Company's Common Stock to which the
Option pertains, the manner, time, and rate of exercise and/or vesting of the
Option, and such other provisions as the Committee determines. The Award
Agreement will also specify whether the Option is intended to be an ISO or an
NQSO, and whether reload options will be granted.
6.3 EXERCISE PRICE. Each Option grant and Award Agreement will specify
the Exercise Price for each Share subject to an Option, which Exercise Price
will be determined by the Committee and, if the Option is an ISO, will be at
least 100% of the Share's Fair Market Value on the date the Option is granted.
If the Option is an ISO and the Employee to whom the Option is granted is a Ten
Percent Owner, the Exercise Price for each Share subject to an Option will be at
least 110% of the Share's Fair Market Value on the date the Option is granted.
6.4 DURATION OF OPTIONS. Each Option will expire at the time
determined by the Committee at the time of grant and specified in the Award
Agreement, but no later than the tenth anniversary of the date of grant.
If the Option is an ISO and the Employee to whom the Option is granted
is a Ten Percent Owner, the Option will expire upon the earlier of (i) the time
specified by the Committee in the Award Agreement, or (ii) the fifth anniversary
of the date of grant.
6.5 DIVIDEND EQUIVALENTS. The Committee may, but shall not be required
to, grant payments in connection with Options that are equivalent to dividends
declared and paid on the Shares underlying the Options. Such dividend equivalent
payments may be made in cash or in Shares, upon such terms as the Committee, in
its sole discretion, deems appropriate.
6.6 EXERCISE OF OPTIONS. Options will be vested and exercisable at
such times and be subject to such restrictions and conditions as the Committee
in each instance approves, which need not be the same for each Award or for each
Participant, and sets forth in the Award Agreement.
6.7 PAYMENT. The holder of an Option may exercise the Option only by
delivering a written notice of exercise to the Company setting forth the number
of Shares as to which the Option is to be exercised, together with full payment
at the Exercise Price for the Shares as to which the Option is exercised and any
withholding tax relating to the exercise of the Option.
The Exercise Price and any related withholding taxes shall be payable
to the Company in full: (i) in cash, or its equivalent, in United States
dollars; (ii) if permitted by the governing Award Agreement, by tendering,
either by actual delivery or by attestation, of shares of Common Stock the
Participant has held for a period sufficient to avoid a charge to the Company's
earnings for financial reporting purposes, with such shares to be valued at the
Fair Market Value on the date of exercise; or (iii) in any combination of cash,
certified or cashier's check and shares of Common Stock described in clause
(ii).
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The Committee may permit a Participant to elect to pay the Exercise
Price and any applicable withholding taxes through a special sale and remittance
procedure pursuant to which the Participant concurrently provides irrevocable
written instructions to (i) a Company-designated brokerage firm to effect the
immediate sale of the purchased Shares and remit to the Company, out of the sale
proceeds available on the settlement date, sufficient funds to cover the
aggregate Exercise Price payable for the purchased Shares plus all applicable
federal, state and local income and employment taxes required to be withheld by
the Company by reason of such exercise, and (ii) the Company to deliver the
certificates for the purchased Shares directly to such brokerage firm in order
to complete the sale. Cashless exercise must meet the requirements of the
Federal Reserve Board's Regulation T and any applicable securities law
restrictions.
The Company will issue, in the name of the Participant (or, if
applicable, the legatee(s), executor(s), personal representative(s), or
distributee(s) of a deceased Participant), stock certificates representing the
total number of Shares issuable pursuant to the exercise of any Option as soon
as reasonably practicable after such exercise.
6.8 RESTRICTIONS ON SHARE TRANSFERABILITY. The Committee may impose
such restrictions on any Shares acquired through exercise of an Option as it
deems necessary or advisable, including, without limitation, restrictions under
applicable federal securities laws, under the requirements of any stock exchange
or market upon which the Shares are then listed and/or traded, and under any
blue sky or state securities laws applicable to the Shares.
6.9 TERMINATION OF SERVICE. Each Option Award Agreement will set forth
the extent to which the Participant has the right to exercise the Option after
his or her termination of Service. These terms will be determined by the
Committee in its sole discretion, need not be uniform among all Options, and may
reflect, among other things, distinctions based on the reasons for termination
of Service.
6.10 NONTRANSFERABILITY OF OPTIONS. Except as otherwise provided in a
Participant's Award Agreement, no Option granted under the Plan may be sold,
transferred, pledged, assigned, or otherwise alienated or hypothecated, other
than by will or by the laws of descent and distribution. Further, except as
otherwise provided in a Participant's Award Agreement, all Options will be
exercisable during the Participant's lifetime only by the Participant or his or
her guardian or legal representative. The Committee may, in its discretion,
require a Participant's guardian or legal representative to supply it with the
evidence the Committee deems necessary to establish the authority of the
guardian or legal representative to act on behalf of the Participant.
6.11 RELOAD OPTIONS. The Committee may provide, at the time of grant
of an Option, in its discretion, for the grant to a Participant who exercises
all or any portion of an Option (the "EXERCISED OPTION") and who pays all or
part of such Exercise Price with Shares, of an additional option (a "RELOAD
OPTION") for a number of Shares equal to the sum (the "RELOAD NUMBER") of the
number of Shares tendered or withheld in payment of such Exercise Price for the
Exercised Option plus, if so provided by the Committee, the number of Shares, if
any, tendered or withheld by the Participant or withheld by the Company in
connection with the exercise of the Exercised Option to satisfy any federal,
state or local tax withholding requirements. The terms of each Reload Option,
including the date of its expiration and the terms and conditions of its
exercisability and transferability, shall be the same as the terms of the
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Exercised Option to which it relates, except that (i) the grant date for each
Reload Option shall be the date of exercise of the Exercised Option to which it
relates and (ii) the Exercise Price for each Reload Option shall be the Fair
Market Value of the Common Stock on the grant date of the Reload Option.
6.12 LIMITATION ON GRANT OF INCENTIVE STOCK OPTIONS. The Committee may
grant Incentive Stock Options only to Employees. The Committee will not grant an
Option under this Plan as an incentive stock option if it would cause the
aggregate fair market value of stock with respect to which incentive options are
exercisable by the Participant for the first time during a calendar year (under
all plans of the Company and its Affiliates) to exceed $100,000.
ARTICLE 7. STOCK APPRECIATION RIGHTS
7.1 GRANT OF SARS. Subject to the terms and conditions of the Plan,
the Committee may grant SARs to Employees, Advisors and/or non-employee
Directors at any time and from time to time, as it determines. Within the limits
of Article 4, the Committee will have sole discretion to determine the number of
SARs granted to any Employee, Advisor and/or non-employee Director and,
consistent with the provisions of the Plan, to determine the terms and
conditions pertaining to SARs. The grant price of an SAR will equal the Fair
Market Value of a Share on the date of grant, and will be specified in the Award
Agreement.
7.2 EXERCISE OF SARS. SARs may be exercised upon whatever terms and
conditions the Committee, in its sole discretion, imposes and sets forth in the
Award Agreement.
7.3 AWARD AGREEMENT. Each SAR grant will be evidenced by an Award
Agreement that specifies the grant price, the term of the SAR and such other
provisions as the Committee determines.
7.4 TERM OF SARS. The term of an SAR will be determined by the
Committee, in its sole discretion and set forth in the Award Agreement, but may
not exceed ten years.
7.5 PAYMENT OF SAR AMOUNT. Upon exercise of an SAR, a Participant will
be entitled to receive payment from the Company in an amount determined by
multiplying:
(a) the excess (or some portion of the excess as determined at
the time of the grant by the Committee and specified in the Award
Agreement) if any, of the Fair Market Value on the date of exercise of
the SAR over the grant price specified in the Award Agreement; by
(b) the number of Shares as to which the SAR is exercised.
At the discretion of the Participant, the payment upon SAR exercise may
be made in cash, in Shares of equivalent Fair Market Value or in some
combination of the two.
7.6 TERMINATION OF SERVICE. Each SAR Award Agreement will set forth
the extent to which the Participant has the right to exercise the SAR after his
or her termination of Service. These terms will be determined by the Committee
in its sole discretion, need not be uniform
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among all SARs issued under the Plan, and may reflect, among other things,
distinctions based on the reasons for termination of Service.
7.7 NONTRANSFERABILITY OF SARS. Except as otherwise provided in a
Participant's Award Agreement, no SAR may be sold, transferred, pledged,
assigned, or otherwise alienated or hypothecated, other than by will or by the
laws of descent and distribution. Further, except as otherwise provided in a
Participant's Award Agreement, all SARs will be exercisable during the
Participant's lifetime only by the Participant or the Participant's guardian or
legal representative. The Committee may, in its discretion, require a
Participant's guardian or legal representative to supply it with evidence the
Committee deems necessary to establish the authority of the guardian or legal
representative to act on behalf of the Participant.
ARTICLE 8. RESTRICTED STOCK
8.1 GRANT OF RESTRICTED STOCK. Subject to the terms and provisions of
the Plan, the Committee may, at any time and from time to time, grant Restricted
Stock to Employees, Advisors, and/or non-employee Directors, in such amounts as
the Committee determines.
8.2 DEFERRAL OF COMPENSATION INTO RESTRICTED STOCK. Subject to the
terms and provisions of the Plan, the Committee may, at any time and from time
to time, allow (or require, as to bonuses) selected Employees or non-employee
Directors to defer the payment of any portion of their fees, salary and/or
annual bonuses pursuant to this Section 8.2. A Participant's deferral under this
Section 8.2 will be credited to the Participant in the form of Shares of
Restricted Stock. The Committee will establish rules and procedures for the
deferrals, as it deems appropriate.
In consideration for forgoing compensation, the dollar amount deferred
by a Participant may be increased by such percentage as the Committee may
determine for purposes of determining the number of Shares of Restricted Stock
to grant the Participant. If a Participant's compensation is deferred under this
Section 8.2, he or she will be credited, as of the date specified in the Award
Agreement, with a number of Shares of Restricted Stock equal to the amount of
the deferral (increased as described above) divided by the Fair Market Value of
the Common Stock on that date.
8.3 AWARD AGREEMENT. Each Restricted Stock grant will be evidenced by
an Award Agreement that specifies the Restriction Periods, the number of Shares
granted, and such other provisions as the Committee determines.
8.4 NONTRANSFERABILITY OF RESTRICTED STOCK. The Restricted Stock
granted herein may not be sold, transferred, pledged, assigned, or otherwise
alienated or hypothecated, other than by will or by the laws of descent and
distribution, until the end of the applicable Restriction Period as specified in
the Award Agreement, or upon earlier satisfaction of any other conditions
specified by the Committee in its sole discretion and set forth in the Award
Agreement. All rights with respect to Restricted Stock will be available during
the Participant's lifetime only to the Participant or the Participant's guardian
or legal representative. The Committee may, in its discretion, require a
Participant's guardian or legal representative to supply it with evidence the
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Committee deems necessary to establish the authority of the guardian or legal
representative to act on behalf of the Participant.
8.5 OTHER RESTRICTIONS. The Committee may impose such other conditions
and/or restrictions on any Restricted Stock as it deems advisable and sets forth
in the applicable Award Agreement including, without limitation, restrictions
based upon the achievement of specific performance objectives (Company-wide,
business unit, and/or individual), time-based restrictions on vesting following
the attainment of the performance objectives, and/or restrictions under
applicable federal or state securities laws. The Committee may provide that
restrictions established under this Section 8.5 as to any given Award will lapse
all at once or in installments.
The Company may retain the certificates representing Shares of
Restricted Stock in its possession until all conditions and/or restrictions
applicable to the Shares have been satisfied.
8.6 PAYMENT OF AWARDS. Except as otherwise provided in this Article 8,
Shares covered by each Restricted Stock grant will become freely transferable by
the Participant after the last day of the applicable Restriction Period.
8.7 VOTING RIGHTS. The applicable Award Agreement may specify that,
during the Restriction Period, Participants holding Shares of Restricted Stock
may exercise full voting rights with respect to those Shares.
8.8 DIVIDENDS AND OTHER DISTRIBUTIONS. The applicable Award Agreement
may specify that, during the Restriction Period, Participants awarded Shares of
Restricted Stock thereunder will be credited with regular cash dividends paid on
those Shares. Dividends may be paid currently, accrued as contingent cash
obligations, or converted into additional Shares of Restricted Stock, upon such
terms as the Committee establishes and sets forth in the Award Agreement.
The Committee may specify in the applicable Award Agreement, any
restrictions it deems advisable to the crediting and payment of dividends and
other distributions. Without limiting the generality of the preceding sentence,
if the grant or vesting of Restricted Stock is designed to qualify for the
Performance-Based Exception, the Committee may apply any restrictions it deems
appropriate to the payment of dividends declared with respect to the Restricted
Stock, so that the dividends and/or the Restricted Stock continue to be eligible
for the Performance-Based Exception.
8.9 TERMINATION OF SERVICE. Each Award Agreement will set forth the
extent to which the Participant has the right to retain unvested Restricted
Stock after his or her termination of Service. These terms will be determined by
the Committee in its sole discretion, need not be uniform among all Awards of
Restricted Stock, and may reflect, among other things, distinctions based on the
reasons for termination of Service.
ARTICLE 9. PERFORMANCE SHARES
9.1 GRANT OF PERFORMANCE SHARES. Subject to the terms of the Plan, the
Committee may grant Performance Shares to Participants in such amounts and upon
such terms, and at any time and from time to time, as the Committee determines
and sets forth in an Award Agreement.
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9.2 VALUE OF PERFORMANCE SHARES. Each Performance Share will have an
initial value equal to the Fair Market Value on the date of grant. The Committee
will set performance objectives in its discretion that, depending on the extent
to which they are met, will determine the number and/or value of Performance
Shares that will be paid out to the Participant. For purposes of this Article 9,
the time period during which the performance objectives must be met will be
called a "PERFORMANCE PERIOD" and will be determined by the Committee in its
discretion and set forth in an Award Agreement.
9.3 EARNING OF PERFORMANCE SHARES. Subject to the terms of this Plan,
after the applicable Performance Period has ended, the holder of Performance
Shares will be entitled to receive payout on the number and value of Performance
Shares earned by the Participant over the Performance Period, to be determined
as a function of the extent to which the corresponding performance objectives
have been achieved.
9.4 AWARD AGREEMENT. Each grant of Performance Shares will be
evidenced by an Award Agreement specifying the material terms and conditions of
the Award including the form of payment of earned Performance Shares, the class
of Shares to which the Award pertains, and such other provisions as the
Committee determines.
9.5 FORM AND TIMING OF PAYMENT OF PERFORMANCE SHARES. Payment of
earned Performance Shares will be made as soon as practicable after the close of
the applicable Performance Period, in a manner determined by the Committee in
its sole discretion and set forth in an Award Agreement. The Committee will pay
earned Performance Shares in the form of cash, in Shares, or in a combination of
cash and Shares, as specified in the Award Agreement. Performance Shares may be
paid subject to any restrictions deemed appropriate by the Committee.
9.6 TERMINATION OF SERVICE DUE TO DEATH OR DISABILITY. Unless
determined otherwise by the Committee and set forth in the Participant's Award
Agreement, if a Participant's Service is terminated by reason of death or
Disability during a Performance Period, the Participant will receive a prorated
payout of the Performance Shares, as specified by the Committee in its
discretion in the Award Agreement. Payment of earned Performance Shares will be
made at a time specified by the Committee in its sole discretion and set forth
in the Participant's Award Agreement.
9.7 TERMINATION OF SERVICE FOR OTHER REASONS. If a Participant's
Service terminates during a Performance Period for any reason other than death
or Disability, the Participant will forfeit all Performance Shares to the
Company, unless the Participant's Award Agreement provides otherwise.
9.8 NONTRANSFERABILITY OF PERFORMANCE SHARES. Except as otherwise
provided in a Participant's Award Agreement, Performance Shares may not be sold,
transferred, pledged, assigned or otherwise alienated or hypothecated, other
than by will or by the laws of descent and distribution. Further, except as
otherwise provided in a Participant's Award Agreement, a Participant's rights
under the Plan will be exercisable during the Participant's lifetime only by the
Participant or Participant's guardian or legal representative. The Committee
may, in its discretion, require a Participant's guardian or legal representative
to supply it with evidence the
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Committee deems necessary to establish the authority of the guardian or legal
representative to act on behalf of the Participant.
ARTICLE 10. BREACH OF RESTRICTIVE COVENANTS
An Award Agreement may provide that, notwithstanding any other
provision of this Plan to the contrary, if the Participant breaches the
non-compete, non-solicitation, non-disclosure or other restrictive covenants of
an Award Agreement, whether during or after termination of Service, in addition
to any other penalties or restrictions that may apply under any employment
agreement, state law, or otherwise, the Participant will forfeit:
(a) any and all Awards granted or transferred to him or her
under the Plan, including Awards that have become vested and
exercisable;
(b) any and all Shares awarded or transferred to him or her
under the Plan, including Awards as to which all other applicable
restrictions have lapsed; and/or
(c) the profit the Participant has realized on the exercise of
any Options, which is the difference between the Exercise Price of the
Options and the applicable Fair Market Value of the Shares (the
Participant may be required to repay such difference to the Company).
ARTICLE 11. DEFERRALS
The Committee may permit or require a Participant to defer receipt of
cash or Shares that would otherwise be due to him or her by virtue of an Option
or SAR exercise, the lapse or waiver of restrictions on Restricted Stock, or the
satisfaction of any requirements or objectives with respect to Performance
Shares. If any such deferral election is permitted or required, the Committee
will, in its sole discretion, establish rules and procedures for such deferrals.
Notwithstanding the foregoing, the Committee in its sole discretion may defer
payment of cash or the delivery of Shares that would otherwise be due to a
Participant under the Plan if payment or delivery would result in the Company's
or any Company Parties' being unable to deduct compensation under Code Section
162(m). Deferral of payment or delivery by the Committee may continue until the
Company Party is able to deduct the payment or delivery under the Code.
ARTICLE 12. RIGHTS OF PARTICIPANTS
12.1 SERVICE. Nothing in the Plan will interfere with or limit in any
way the right of the Company or any Affiliate to terminate any Participant's
Service at any time, or confer upon any Participant any right to continue in the
Service of the Company or any Affiliate.
12.2 PARTICIPATION. No Employee, Advisor, Director or Participant will
have the right to receive an Award under this Plan, or, having received any
Award, to receive a future Award.
ARTICLE 13. AMENDMENT, MODIFICATION AND TERMINATION
13.1 AMENDMENT, MODIFICATION AND TERMINATION. Subject to Section 13.2,
the Board may at any time and from time to time, alter, amend, modify or
terminate the Plan in
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whole or in part. Subject to the terms and conditions of the Plan, the Committee
may modify, extend or renew outstanding Awards under the Plan, or accept the
surrender of outstanding Awards (to the extent not already exercised) and grant
new Awards in substitution of them (to the extent not already exercised). The
Committee will not, however, modify any outstanding Incentive Stock Option so as
to specify a lower Exercise Price. Notwithstanding the foregoing, no
modification of an Award will, without the prior written consent of the
Participant, materially impair any rights or obligations under any Award already
granted under the Plan.
13.2 ADJUSTMENT OF AWARDS UPON THE OCCURRENCE OF CERTAIN UNUSUAL OR
NONRECURRING EVENTS. In recognition of unusual or nonrecurring events
(including, without limitation, the events described in Section 4.3) affecting
the Company or its financial statements, or in recognition of changes in
applicable laws, regulations, or accounting principles, and, whenever the
Committee determines that adjustments are appropriate in order to prevent
dilution or enlargement of the benefits or potential benefits intended to be
made available under the Plan, the Committee may, using reasonable care, make
adjustments in the terms and conditions of, and the criteria included in,
Awards. In case of an Award designed to qualify for the Performance-Based
Exception, the Committee will take care not to make an adjustment that would
disqualify the Award.
13.3 COMPLIANCE WITH CODE SECTION 162(m). Awards will comply with the
requirements of Code Section 162(m), unless the Committee determines that such
compliance is not desired with respect to an Award available for grant under the
Plan. In addition, if changes are made to Code Section 162(m) to permit greater
flexibility as to any Award available under the Plan, the Committee may, subject
to this Article 13, make any adjustments it deems appropriate.
ARTICLE 14. WITHHOLDING
14.1 TAX WITHHOLDING. The Company will have the power and the right to
deduct or withhold, or require a Participant to remit to the Company, an amount
(either in cash or Shares) sufficient to satisfy federal, state, and local
taxes, domestic or foreign, required by law or regulation to be withheld with
respect to any taxable event arising under this Plan. Each Award Agreement will
specify whether reload options will be granted in connection with payment of tax
withholding by tendering Shares owned by the Participant.
14.2 SHARE WITHHOLDING. With respect to withholding required upon the
exercise of Options or SARs, upon the lapse of restrictions on Restricted Stock,
or upon any other taxable event arising as a result of Awards granted hereunder,
the Company may satisfy the minimum withholding requirement for supplemental
wages, in whole or in part, by withholding Shares having a Fair Market Value
(determined on the date the Participant recognizes taxable income on the Award)
equal to the withholding tax required to be collected on the transaction. The
Participant may elect, subject to the approval of the Committee, to deliver the
necessary funds to satisfy the withholding obligation to the Company, in which
case there will be no reduction in the Shares otherwise distributable to the
Participant.
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ARTICLE 15. SUCCESSORS
All obligations of the Company under the Plan or any Award Agreement
will be binding on any successor to the Company, whether the existence of the
successor results from a direct or indirect purchase of all or substantially all
of the Company's Shares, or a merger, consolidation, or otherwise.
ARTICLE 16. LEGAL CONSTRUCTION
16.1 NUMBER. Except where otherwise indicated by the context, any
plural term used in this Plan includes the singular and a singular term includes
the plural.
16.2 SEVERABILITY. If any provision of the Plan is held illegal or
invalid for any reason, the illegality or invalidity will not affect the
remaining parts of the Plan, and the Plan will be construed and enforced as if
the illegal or invalid provision had not been included.
16.3 REQUIREMENTS OF LAW. The granting of Awards and the issuance of
Shares and/or cash payouts under the Plan will be subject to all applicable
laws, rules, and regulations, and to any approvals by governmental agencies or
national securities exchanges as may be required.
16.4 SECURITIES LAW COMPLIANCE. As to any individual who is, on the
relevant date, an officer, director or ten percent beneficial owner of any class
of the Company's equity securities that is registered pursuant to Section 12 of
the Exchange Act, all as defined under Section 16 of the Exchange Act,
transactions under this Plan are intended to comply with all applicable
conditions of Rule 16b-3 under the Exchange Act, or any successor rule. To the
extent any provision of the Plan or action by the Committee (or a designated
officer pursuant to Section 3.4) fails to so comply, it will be deemed null and
void, to the extent permitted by law and deemed advisable by the Committee.
16.5 AWARDS TO FOREIGN NATIONALS AND EMPLOYEES OUTSIDE THE UNITED
STATES. To the extent the Committee deems it necessary, appropriate or desirable
to comply with foreign law of practice and to further the purposes of this Plan,
the Committee may, without amending the Plan, (i) establish rules applicable to
Awards granted to Participants who are foreign nationals, are employed outside
the United States, or both, including rules that differ from those set forth in
this Plan, and (ii) grant Awards to such Participants in accordance with those
rules.
16.6 UNFUNDED STATUS OF THE PLAN. The Plan is intended to constitute
an "unfunded" plan for incentive and deferred compensation. With respect to any
payments or deliveries of Shares not yet made to a Participant by the Company,
the Participant's rights are no greater than those of a general creditor of the
Company. The Committee may authorize the establishment of trusts or other
arrangements to meet the obligations created under the Plan, so long as the
arrangement does not cause the Plan to lose its legal status as an unfunded
plan.
16.7 GOVERNING LAW. To the extent not preempted by federal law, the
Plan and all agreements hereunder will be construed and enforced in accordance
with and governed by the laws of the State of Delaware, without giving effect to
its conflict of laws principles.
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16.8 NON-EXCLUSIVITY OF PLAN. Nothing in this Plan will limit or be
deemed to limit the authority of the Board or the Committee to grant awards or
authorize any other compensation, with or without reference to the Common Stock,
under any other plan or authority.
16.9 NO RESTRICTION ON COMPANY POWERS. The existence of this Plan, the
Award Agreements, and the Awards granted hereunder, shall not limit, affect or
restrict in any way the right or power of the Board or the stockholders of the
Company to make or authorize: (a) any adjustment, recapitalization,
reorganization or other change in the Company's or any Affiliate's capital
structure or its business; (b) any merger, amalgamation, consolidation or change
in the ownership of the Company or any Affiliate; (c) any issue of bonds,
debentures, capital, preferred or prior preference stocks ahead of or affecting
the Company's capital stock or the rights thereof; (d) any dissolution or
liquidation of the Company or any Affiliate; (e) any sale or transfer of all or
any part of the Company's or any Affiliate's assets or business; or (f) any
other corporate act or proceeding by the Company or any Affiliate. No
Participant, Designated Beneficiary or any other Person shall have any claim
under any Award or Award Agreement against any member of the Board or the
Committee, or the Company or any employees, officers or agents of the Company or
any Affiliate, as a result of any such action.
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