EXHIBIT 10.1
AMENDED AND RESTATED
1996 CS WIRELESS SYSTEMS, INC.
INCENTIVE STOCK PLAN
EXHIBIT 10.1
AMENDED AND RESTATED
1996 CS WIRELESS SYSTEMS, INC. INCENTIVE STOCK PLAN
1. Purpose
The purpose of the Amended and Restated 1996 CS Wireless System, Inc.
Incentive Stock Plan is to motivate and reward superior performance on the part
of employees of the Company and its subsidiaries and to thereby attract and
retain employees of superior ability. In addition, the Plan is intended to
further opportunities for stock ownership by such employees in order to increase
their proprietary interest in the Company and, as a result, their interest in
the success of the Company. Awards will be made, in the discretion of the
Committee, to Key Employees (including officers and directors who are also
employees) whose responsibilities and decisions directly affect the performance
of any Participating Company. Such incentive awards may consist of stock
options, stock appreciation rights payable in stock or cash, performance shares,
restricted stock or any combination of the foregoing, as the Committee may
determine.
2. Definitions
When used herein, the following terms shall have the following meanings:
"Act" means the Securities Exchange Act of 1934.
"Award" means an award granted to any Key Employee in accordance with the
provisions of the Plan in the form of Options, Rights, Performance Shares
or Restricted Stock, or any combination of the foregoing.
"Award Agreement" means the written agreement evidencing each Award
granted to a Key Employee under the Plan.
"Beneficiary" means the beneficiary or beneficiaries designated pursuant
to Section 9 to receive the amount, if any, payable under the Plan upon
the death of a Key Employee.
"Board" means the Board of Directors of the Company.
"Code" means the Internal Revenue Code of 1986, as now in effect or as
hereafter amended. (All citations to sections of the Code are to such
sections as they may from time to time be amended or renumbered.)
"Committee" means the Stock Option or Compensation Committee of the Board
or such other committee as may be designated by the Board to administer
the Plan.
"Company" means CS Wireless Systems, Inc. and its successors and assigns.
"Fair Market Value" means the fair market value as determined by rules to
be adopted by the Committee.
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AMENDED AND RESTATED 1996 CS WIRELESS SYSTEMS, INC. INCENTIVE PLAN PAGE 1
"Incentive Stock Option" means a stock option qualified under Section 422
of the Code.
"Key Employee" means an employee (including any officer or director who is
also an employee), and with respect to any Awards other than an Incentive
Stock Option, also includes independent contractors and service providers,
of any Participating Company whose responsibilities and decisions, in the
judgment of the Committee, directly affect the performance of the Company
and its subsidiaries.
"Option" means an option awarded under Section 5 of the Plan to purchase
Stock of the Company, which option may be an Incentive Stock Option or a
non-qualified stock option.
"Participating Company" means the Company or (i) with respect to the Award
of an Incentive Stock Option, any corporation that at the time an Award is
granted qualifies as a "subsidiary" of the Company under Section 424(f) of
the Code or (ii) with respect to any other Awards, any entity that at the
time an Award is granted is controlling, controlled by or under common
control with the Company, including without limitation, partnerships in
which the Company or any Participating Company may invest as a limited or
general partner and limited liability companies in which the Company or
any Participating Company may become a member.
"Performance Share" means a performance share awarded under Section 6 of
the Plan.
"Plan" means the Amended and Restated 1996 CS Wireless Systems, Inc.
Incentive Stock Plan, as the same may be amended, administered or
interpreted from time to time.
"Restricted Stock" means Stock awarded under Section 7 of the Plan
subject to such restrictions as the Committee deems appropriate or
desirable.
"Right" means a stock appreciation right awarded in connection with an
Option under Section 5 of the Plan.
"Stock" means the common shares of the Company.
"Total Disability" means a permanent and total disability as defined
in Section 22(e)(3) of the Code.
3. Shares Subject to the Plan
In no event shall more than 1,500,000 shares of Stock be cumulatively
available for Awards under the Plan.
Subject to the above limitation, shares of Stock to be issued under the
Plan may be made available from the authorized but unissued shares, or from
shares purchased in the open market. For the purpose of computing the total
number of shares of Stock available for Awards under the Plan, there shall be
counted against the foregoing limitation the number of shares of Stock which
equal the value of Performance Share Awards, in each case determined as at the
dates on which such Awards are granted. If any Awards under the Plan are
forfeited, terminated, expire unexercised, are settled in cash in lieu of
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AMENDED AND RESTATED 1996 CS WIRELESS SYSTEMS, INC. INCENTIVE PLAN PAGE 2
Stock or are exchanged for other Awards, the shares of Stock which were
theretofore subject to such Awards shall again be available for Awards under
the Plan to the extent of such forfeiture or expiration of such Awards.
4. Grant of Awards and Award Agreements
(a) Subject to the provisions of the Plan, the Committee shall (i)
determine and designate from time to time those Key Employees or groups of
Key Employees to whom Awards are to be granted; (ii) determine the form or
forms of Award to be granted to any Key Employee; (iii) determine the amount
or number of shares of Stock subject to each Award; and (iv) determine the
terms and conditions of each Award.
(b) Each Award granted under the Plan shall be evidenced by a written
Award Agreement. Such agreement shall be subject to and incorporate the
express terms and conditions, if any, required under the Plan or required by
the Committee.
5. Stock Options and Rights
(a) With respect to Options and Rights, the Committee shall (i) authorize
the granting of Incentive Stock Options, non-qualified stock options, or a
combination of Incentive Stock Options and non-qualified stock options; (ii)
authorize the granting of Rights which may be granted in connection with all or
part of any Option granted under this Plan, either concurrently with the grant
of the Option or at any time thereafter during the term of the Option; (iii)
determine the number of shares of Stock subject to each Option or the number of
shares of Stock that should be used to determine the value of a Right; and (iv)
determine the time or times when and the manner in which each Option or Right
shall be exercisable and the duration of the exercise period.
(b) Any option issued hereunder which is intended to qualify as an
Incentive Stock Option shall be subject to such limitations or requirements as
may be necessary for the purposes of Section 422 of the Code or any regulations
and rulings thereunder to the extent and in such form as determined by the
Committee in its discretion.
(c) The exercise period for a non-qualified stock option and any related
Right shall not exceed ten years and two days from the date of grant, and the
exercise period for an Incentive Stock Option and any related Right shall not
exceed ten years from the date of grant.
(d) The Option price per share shall be determined by the Committee at the
time any Option is granted and shall be not less than the Fair Market Value of
one share of Stock on the date the Option is granted.
(e) No part of any Option or Right may be exercised until the Key Employee
who has been granted the Award shall have remained in the employ of a
Participating Company for such period after the date of grant as the Committee
may specify, if any, and the Committee may further require exercisability in
installments; provided, however, the period during which a Right is exercisable
shall commence no earlier than six months following the date the Option or Right
is granted.
(f) The purchase price of the shares as to which an Option shall be
exercised shall be paid to the Company at the time of exercise either in cash
or Stock already owned by the optionee having a total
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AMENDED AND RESTATED 1996 CS WIRELESS SYSTEMS, INC. INCENTIVE PLAN PAGE 3
Fair Market Value equal to the purchase price, or a combination of cash and
Stock having a total fair market value, as so determined, equal to the
purchase price. The Committee shall determine acceptable methods for
tendering Stock as payment upon exercise of an Option and may impose such
limitations and prohibitions on the use of Stock to exercise an Option as it
deems appropriate.
(g) In case of termination of employment, the following provisions
shall apply, unless the Committee determines otherwise and so specifies in the
applicable Award Agreement:
(A) If a Key Employee who has been granted an Option shall die
before such Option has expired, his or her Option may be exercised to the
extent it was exercisable as of the date of death by the person or persons
to whom the Key Employee's rights under the Option pass by will, or if no
such person has such right, by his or her executors or administrators, at any
time, or from time to time, within one year after the date of the Key
Employee's death or within such other period, and subject to such terms and
conditions as the Committee may specify, but not later than the expiration
date specified in Section 5(d) above.
(B) If the Key Employee's employment by any Participating
Company terminates because of his or her Total Disability, he or she may
exercise his or her Options to the extent they were exercisable as of the date
of termination of employment at any time, or from time to time, within one year
after the date of the termination of his or her employment or within such other
period, and subject to such terms and conditions as the Committee may specify,
but not later than the expiration date specified in Section 5(d) above.
(C) If the Key Employee is terminated for cause, defined as
neglect of duty or misconduct, as reasonably determined by the Committee, the
Options or Rights shall be canceled coincident with the effective date of the
termination of employment.
(D) If the Key Employee's employment terminates for any other
reason, he or she may exercise his or her Options, to the extent that he or she
shall have been entitled to do so at the date of the termination of his or her
employment, at any time, or from time to time, within three months after the
date of the termination of his or her employment or within such other period,
and subject to such terms and conditions as the Committee may specify, but not
later than the expiration date specified in Section 5(c) above.
(h) No Option or Right granted under the Plan shall be transferable other
than by will or by the laws of descent and distribution. During the lifetime
of the optionee, an Option or Right shall be exercisable only by the Key
Employee to whom the Option or Right is granted.
(i) With respect to an Incentive Stock Option, the Committee shall specify
such terms and provisions as the Committee may determine to be necessary or
desirable in order to qualify such Option as an "incentive stock option" within
the meaning of Section 422 of the Code.
(j) With respect to the exercisability and settlement of Rights:
(i) Upon exercise of a Right, the Key Employee shall be
entitled, subject to such terms and conditions the Committee may specify, to
receive upon exercise thereof all or a portion of the excess of (A) the Fair
Market Value of a specified number of shares of Stock at the time of exercise,
as determined by the Committee, over (B) a specified amount which shall not,
subject to Section 5(d), be
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AMENDED AND RESTATED 1996 CS WIRELESS SYSTEMS, INC. INCENTIVE PLAN PAGE 4
less than the Fair Market Value of such specified number of shares of Stock
at the time the Right is granted. Upon exercise of a Right, payment of such
excess shall be made as the Committee shall specify in cash, the issuance or
transfer to the Key Employee of whole shares of Stock with a Fair Market
Value at such time equal to any excess, or a combination of cash and shares
of Stock with a combined Fair Market Value at such time equal to any such
excess, all as determined by the Committee. The Company will not issue a
fractional share of Stock and, if a fractional share would otherwise be
issuable, the Company shall pay cash equal to the Fair Market Value of the
fractional share of Stock at such time.
(ii) In the event of the exercise of such Right, the Company's
obligation in respect of any related Option or such portion thereof will be
discharged by payment of the Right so exercised.
6. Performance Shares
(a) Subject to the provisions of the Plan, the Committee shall (i)
determine and designate from time to time those Key Employees or groups of
Key Employees to whom Awards of Performance Shares are to be made, (ii)
determine the Performance Period (the "Performance Period") and Performance
Objectives (the "Performance Objectives") applicable to such Awards, (iii)
determine the form of settlement of a Performance Share and (iv) generally
determine the terms and conditions of each such Award. At any date, each
Performance Share shall have value equal to the Fair Market Value of a share
of Stock at such date; provided that the Committee may limit the aggregate
amount payable upon the settlement of any Award.
(b) The Committee shall determine a Performance Period of not less than
two nor more than five years. Performance Periods may overlap and Key
Employees may participate simultaneously with respect to Performance Shares
for which different Performance Periods are prescribed.
(c) The Committee shall determine the Performance Objectives of Awards
of Performance Shares. Performance Objectives may vary from Key Employee to
Key Employee and between groups of Key Employees and shall be based upon such
performance criteria or combination of factors as the Committee may deem
appropriate, including, but not limited to, minimum earnings per share or
return on equity. If during the course of a Performance Period there shall
occur significant events which the Committee expects to have a substantial
effect on the applicable Performance Objectives during such period, the
Committee may revise such Performance Objectives.
(d) At the beginning of a Performance Period, the Committee shall
determine for each Key Employee or group of Key Employees the number of
Performance Shares or the percentage of Performance Shares which shall be
paid to the Key Employee or member of the group of Key Employees if
Performance Objectives are met in whole or in part.
(e) If a Key Employee terminates with all Participating Companies
during a Performance Period because of death, Total Disability, or under
other circumstances where the Committee in its sole discretion finds that a
waiver would be in the best interests of the Company, that Key Employee may,
as determined by the Committee, be entitled to an Award of Performance Shares
at the end of the Performance Period based upon the extent to which the
Performance Objectives were satisfied at the end of such period and prorated
for the portion of the Performance Period during which the Key Employee was
employed by any Participating Company; provided, however, the Committee may
provide for an earlier payment in settlement of such Performance Shares in
such amount and under such terms and conditions as the Committee deems
appropriate or desirable. If a Key Employee terminates service with
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AMENDED AND RESTATED 1996 CS WIRELESS SYSTEMS, INC. INCENTIVE PLAN PAGE 5
all Participating Companies during a Performance Period for any other reason,
then such Key Employee shall not be entitled to any Award with respect to
that Performance Period unless the Committee shall otherwise determine.
(f) Each Award of a Performance Share shall be paid in whole
shares of Stock, or cash, or a combination of Stock and cash either as a lump
sum payment or in annual installments, all as the Committee shall determine,
with payment to commence as soon as practicable after the end of the relevant
Performance Period.
7. Restricted Stock
(a) Restricted Stock shall be subject to a restriction period (after
which restrictions will lapse) which shall mean a period commencing on the
date the Award is granted and ending on such date as the Committee shall
determine (the "Restriction Period"). The Committee may provide for the
lapse of restrictions in installments where deemed appropriate.
(b) Except when the Committee determines otherwise pursuant to Section
7(d), if a Key Employee terminates employment with all Participating
Companies for any reason before the expiration of the Restriction Period, all
shares of Restricted Stock still subject to restriction shall be forfeited by
the Key Employee and shall be reacquired by the Company.
(c) Except as otherwise provided in this Section 7, no shares of
Restricted Stock received by a Key Employee shall be sold, exchanged,
transferred, pledged, hypothecated or otherwise disposed of during the
Restriction Period.
(d) In cases of death or Total Disability or in cases of special
circumstances, the Committee may, in its sole discretion when it finds that a
waiver would be in the best interests of the Company, elect to waive any or
all remaining restrictions with respect to such Key Employee's Restricted
Stock.
(e) The Committee may require, under such terms and conditions as it
deems appropriate or desirable, that the certificates for Stock delivered
under the Plan may be held in custody by a bank or other institution, or that
the Company may itself hold such shares in custody until the Restriction
Period expires or until restrictions thereon otherwise lapse, and may
require, as a condition of any Award of Restricted Stock that the Key
Employee shall have delivered a stock power endorsed in blank relating to the
Restricted Stock.
(f) Nothing in this Section 7 shall preclude a Key Employee from
exchanging any shares of Restricted Stock subject to the restrictions
contained herein for any other shares of Stock that are similarly restricted.
(g) Subject to Section 7(e) and Section 8, each Key Employee entitled
to receive Restricted Stock under the Plan shall be issued a certificate for
the shares of Stock. Such certificate shall be registered in the name of the
Key Employee, and shall bear an appropriate legend reciting the terms,
conditions and restrictions, if any, applicable to such Award and shall be
subject to appropriate stop transfer orders.
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AMENDED AND RESTATED 1996 CS WIRELESS SYSTEMS, INC. INCENTIVE PLAN PAGE 6
8. Certificates for Awards of Stock
(a) The Company shall not be required to issue or deliver any
certificates for shares of Stock prior to (1) the listing of such shares on
any stock exchange on which the Stock may then be listed and (ii) the
completion of any registration or qualification of such shares under any
federal or state law, or any ruling or regulation of any government body
which the Company shall, in its sole discretion, determine to be necessary or
advisable.
(b) All certificates for shares of Stock delivered under the Plan shall
also 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 Stock is then listed and any applicable federal or state
securities laws, and the Committee may cause a legend or legends to be placed
on any such certificates to make appropriate reference to such restrictions.
The foregoing provisions of this Section 8(b) shall not be effective if and
to the extent that the shares of Stock delivered under the Plan are covered
by an effective and current registration statement under the Securities Act
of 1933, or if and so long as the Committee determines that application of
such provisions is not required or desirable. In making such determination,
the Committee may rely upon an opinion of counsel for the Company.
(c) Except for the restrictions on Restricted Stock under Section 7,
each Key Employee who receives Stock in settlement of an Award of Stock,
shall have all of the rights of a stockholder with respect to such shares,
including the right to vote the shares and receive dividends and other
distributions. No Key Employee awarded an Option, a Right or Performance
Share shall have any right as a stockholder with respect to any shares
covered by his or her Option, Right or Performance Share prior to the date of
issuance to him or her of a certificate or certificates for such shares.
9. Beneficiary
(a) Each Key Employee shall file with the Company a written designation
of one or more persons as the Beneficiary who shall be entitled to receive
the Award, if any, payable under the Plan upon his or her death. A Key
Employee may from time-to-time revoke or change his or her Beneficiary
designation without the consent of any prior Beneficiary by filing a new
designation with the Company. The last such designation received by the
Company shall be controlling; provided, however, that no designation, or
change or revocation thereof, shall be effective unless received by the
Company prior to the Key Employee's death, and in no event shall it be
effective as of a date prior to such receipt.
(b) If no such Beneficiary designation is in effect at the time of a
Key Employee's death, or if no designated Beneficiary survives the Key
Employee or if such designation conflicts with law, the Key Employee's estate
shall be entitled to receive the Award, if any, payable under the Plan upon
his or her death. If the Committee is in doubt as to the right of any person
to receive such Award, the Company may retain such Award, without liability
for any interest thereon, until the Committee determines the rights thereto,
or the Company may pay such Award into any court of appropriate jurisdiction
and such payment shall be a complete discharge of the liability of the
Company therefor.
10. Administration of the Plan
(a) Each member of the Committee shall be a "disinterested person"
within the meaning of Rule 16b-3 under the Act or successor rule or
regulation. No member of the Committee shall be, or shall
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AMENDED AND RESTATED 1996 CS WIRELESS SYSTEMS, INC. INCENTIVE PLAN PAGE 7
have been, eligible to receive an Award under the Plan or any other plan
maintained by any Participating Company to acquire stock, stock options,
stock appreciation rights, performance shares or restricted stock of a
Participating Company at any time within the one year immediately preceding
the member's appointment to the Committee.
(b) All decisions, determinations or actions of the Committee made or
taken pursuant to grants of authority under the Plan shall be made or taken
in the sole discretion of the Committee and shall be final, conclusive and
binding on all persons for all purposes.
(c) The Committee shall have full power, discretion and authority to
interpret, construe and administer the Plan and any part thereof, and its
interpretations and constructions thereof and actions taken thereunder shall
be, except as otherwise determined by the Board, final, conclusive and
binding on all persons for all purposes.
(d) The Committee's decisions and determinations under the Plan need
not be uniform and may be made selectively among Key Employees, whether or
not such Key Employees are similarly situated.
(e) The Committee may, in its sole discretion, delegate such of its
powers as it deems appropriate.
11. Amendment, Extension or Termination
The Board may, at any time, amend or terminate the Plan and,
specifically, may make such modifications to the Plan as it deems necessary
to avoid the application of Section 162(m) of the Code and the Treasury
regulations issued thereunder. However, no amendment shall, without approval
by a majority of the Company's stockholders, (a) alter the group of persons
eligible to participate in the Plan, (b) except as provided in Section 12
increase the maximum number of shares of Stock which are available for Awards
under the Plan, (c) materially increase the benefits available to persons
under the Plan, or (d) extend the period during which awards may be granted
beyond March 27, 2005. No amendment or termination shall impair the rights
of any person with respect to a prior Award.
12. Adjustments in Event of Change in Common Stock
In the event of any recapitalization, reclassification, split-up or
consolidation of shares of Stock, or stock dividend, merger or consolidation
of the Company or sale by the Company of all or a portion of its assets, the
Committee may make such adjustments in the Stock subject to Awards, including
Stock subject to purchase by an Option, or the terms, conditions or
restrictions on Stock or Awards, including the price payable upon the
exercise of such Option, as the Committee deems equitable.
13. Miscellaneous
(a) Nothing in this Plan or any Award granted hereunder shall confer
upon any employee any right to continue in the employ of any Participating
Company or interfere in any way with the right of any Participating Company
to terminate his or her employment at any time. No Award payable under the
Plan shall be deemed salary or compensation for the purpose of computing
benefits under any employee benefit plan or other arrangement of any
Participating Company for the benefit of its employees unless the Company
shall determine otherwise. No Key Employee shall have any claim to an
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AMENDED AND RESTATED 1996 CS WIRELESS SYSTEMS, INC. INCENTIVE PLAN PAGE 8
Award until it is actually granted under the Plan. To the extent that any
person acquires a right to receive payments from the Company under this Plan,
such right shall be no greater than the right of an unsecured general
creditor of the Company. All payments to be made hereunder shall be paid
from the general funds of the Company and no special or separate fund shall
be established and no segregation of assets shall be made to assure payment
of such amounts except as provided in Section 7(e) with respect to Restricted
Stock.
(b) The Committee may cause to be made, as a condition precedent to the
payment of any Award, or otherwise, appropriate arrangements with the Key
Employee or his or her Beneficiary, for the withholding of any federal,
state, local or foreign taxes.
(c) The Plan and the grant of Awards shall be subject to all applicable
federal and state laws, rules, and regulations and to such approvals by any
government or regulatory agency as may be required.
(d) The terms of the Plan shall be binding upon the Company and its
successors and assigns.
(e) Captions preceding the sections hereof are inserted solely as a
matter of convenience and in no way define or limit the scope or intent of
any provision hereof.
14. Effective Date, Term of Plan and Stockholder Approval
The effective date of the Plan shall be February 23, 1996; provided that
the Plan shall be approved by the Company's stockholders within twelve months
before or after such date. No Award shall be granted under this Plan after
the Plan's termination date. The Plan's termination date shall be February
22, 2006. The Plan will continue in effect for existing Awards as long as
any such Award is outstanding.
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