EXHIBIT 10.8(a)
NEW SAC 2001 RESTRICTED SHARE PLAN
1. PURPOSE OF THE PLAN
The purpose of the Plan is to aid New SAC (the "Company") and its
affiliates in securing and retaining key employees, directors and consultants of
outstanding ability and to motivate such employees, directors and consultants to
exert their best efforts on behalf of the Company and its affiliates by
providing incentive through the grant of restricted share awards ("Awards"). The
Company expects that it will benefit from the added interest which such key
employees and directors will have in the welfare of the Company as a result of
their proprietary interest in the Company's success.
2. SHARES SUBJECT TO THE PLAN
The total number of ordinary shares, par value $.0001, of the Company
(the "Shares") that may be issued under the Plan is 500,000. If any Shares
awarded under the Plan are forfeited by a Participant pursuant to the Plan, such
Shares may thereafter be reissued under the Plan.
3. ADMINISTRATION
The Plan shall be administered by the Compensation Committee of the
Board of Directors of the Company (the "Committee"); provided, however, that any
-------- -------
action permitted to be taken by the Committee may be taken by the Board of
Directors of the Company (the "Board"), in its discretion. The Committee is
authorized to interpret the Plan, to establish, amend and rescind any rules and
regulations relating to the Plan, and to make any other determinations that it
deems necessary or desirable for the administration of the Plan. The Committee
may correct any defect or omission or reconcile any inconsistency in the Plan in
the manner and to the extent the Committee deems necessary or desirable. Awards
may, in the discretion of the Committee, be made under the Plan in assumption
of, or in substitution for, outstanding awards previously granted by the Company
or its affiliates or a company acquired by the Company or with which the Company
combines. The number of Shares underlying such substitute awards shall be
counted against the aggregate number of Shares available for Awards under the
Plan. Any decision of the Committee in the interpretation and administration of
the Plan, as described herein, shall lie within its sole and absolute discretion
and shall be final, conclusive and binding on all parties concerned (including,
but not limited to, participants and their beneficiaries or successors). The
Committee shall have the full power and authority to establish the terms and
conditions of any Award consistent with the provisions of the Plan and to waive
any such terms and conditions at any time.
4. ELIGIBILITY
Key management and other employees, directors and consultants of the
Company and its affiliates, who are from time to time responsible for the
management, growth or protection of the business of the Company and its
affiliates, are eligible to be granted Awards under the Plan. The participants
under the Plan shall be selected from time to time by the Committee, in its
discretion, from among those eligible, and the Committee shall determine, in
its discretion, consistent with the terms of the Plan, the terms and conditions
of the Awards granted to each participant.
5. LIMITATION
No Award may be granted under the Plan after the tenth anniversary of
the Effective Date, but Awards theretofore granted may extend beyond that date.
6. RESTRICTED SHARE AWARDS
Awards granted under this Plan shall be subject to the following terms
and conditions:
(a) The prospective recipient of an Award shall not, with respect to
such Award, be deemed to have become a participant or to have any
rights with respect to such Award until and unless such recipient
(i) shall have executed an Agreement or other instrument
evidencing the Award and its terms and conditions and delivered a
fully executed copy thereof to the Company, (ii) shall become a
signatory to the Management Shareholders Agreement dated as of
November 22, 2000 among the Company and certain individuals
identified therein and (iii) otherwise complied with the then
applicable terms and conditions under the Plan.
(b) The name of each participant will be entered into the Register of
Members and each participant shall be issued a certificate in
respect of restricted shares awarded under the Plan. Such
certificate shall be registered in the name of the participant,
and shall bear an appropriate legend referring to the terms,
conditions and restrictions applicable to such Award
substantially in the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
(I) A MANAGEMENT SHAREHOLDERS AGREEMENT AMONG NEW SAC (THE
"COMPANY") AND THE MANAGEMENT SHAREHOLDERS LISTED THEREIN,
DATED AS OF NOVEMBER 22, 2000, AS AMENDED AND SUPPLEMENTED
FROM TIME TO TIME IN ACCORDANCE WITH THE TERMS THEREOF, AND
(II) A RESTRICTED SHARE AGREEMENT WITH THE COMPANY RELATING
TO SUCH SHARES, A COPY OF EACH OF WHICH IS ON FILE WITH THE
SECRETARY OF THE COMPANY. THE MANAGEMENT SHAREHOLDERS
AGREEMENT CONTAINS, AMONG OTHER THINGS, CERTAIN PROVISIONS
RELATING TO THE VOTING AND TRANSFER
2
OF THE SHARES SUBJECT TO THE AGREEMENT, AND THE RESTRICTED
SHARE AGREEMENT CONTAINS, AMONG OTHER THINGS, CERTAIN
PROVISIONS RELATING TO THE VESTING OF SUCH SHARES. NO
TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER
DISPOSITION OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE, DIRECTLY OR INDIRECTLY, MAY BE MADE EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF SUCH MANAGEMENT
SHAREHOLDERS AGREEMENT AND RESTRICTED SHARE AGREEMENT. THE
HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE OF THIS
CERTIFICATE, AGREES TO BE BOUND BY ALL OF THE PROVISIONS OF
SUCH MANAGEMENT SHAREHOLDERS AGREEMENT AND RESTRICTED SHARE
AGREEMENT."
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAss. Y NOT
BE TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS THEY HAVE
BEEN REGISTERED UNDER THAT ACT OR AN EXEMPTION FROM
REGISTRATION IS AVAILABLE."
(c) All certificates for restricted shares delivered under this Plan
shall be subject to such share 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 Company's Shares
are then listed and any applicable federal or state securities
law, and the Committee may cause a legend or legends to be put on
any such certificates to make appropriate reference to such
restrictions.
(d) The Committee may adopt rules which provide that the share
certificates evidencing such shares may be held in custody by a
bank or other institution, or that the Company may itself hold
such shares in custody until the restrictions thereon shall have
lapsed, and may require as a condition of any Award that the
participant shall have delivered a stock power endorsed in blank
relating to the share covered by such Award.
(e) Until such time as the Company is subject to the periodic
reporting requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Company shall deliver a balance sheet
and an income statement at least annually to each individual
holding Shares issued under the Plan, unless such individual is a
key employee of the Company or its Affiliates whose duties in
connection with the Company (or any Affiliate) assure such
individual access to equivalent information.
3
7. RESTRICTIONS AND FORFEITURES
The Shares awarded pursuant to the Plan shall be subject to the
following restrictions and conditions:
(a) During a period set by the Committee of no more than ten years
commencing with the date of an Award (the "Restriction Period"),
the participant will not be permitted to sell, transfer, pledge,
assign or otherwise dispose of restricted shares awarded pursuant
to such Award. If a participant's employment by the Company
should terminate for any reason during the Restriction Period,
unless otherwise provided by the Committee, the participant shall
forfeit the restricted shares and it shall be returned to the
Company in full and cancelled. However, such forfeiture
provisions shall in all events lapse as to the Shares issued to
each participant at the rate not less than twenty percent (20%)
of those Shares per year of service over the five (5)-year period
measured from the issue date of the Shares and shall immediately
lapse as all the Shares issued to the participant upon the
termination of his or her service by reason of death or permanent
disability. Within these limits the Committee may provide for the
lapse of such restrictions in installments where deemed
appropriate.
(b) Except as provided in Section 7(a), the participant shall have
with respect to the restricted shares all of the rights of a
shareholder of the Company, including the right to vote the
shares and receive dividends and other distributions; provided,
however, that distributions (other than tax distributions) with
respect Shares subject to the Restriction Period, shall be held
by the Company and distributed upon vesting.
(c) The Committee may impose any conditions on an Award it deems
advisable to ensure the participant's payment to the Company of
any federal, state or local taxes required to be withheld with
respect to such Award.
(f) If the Company provides for the repurchase of the Shares, the
purchase price for such Shares shall be deemed reasonable if (1)
it is not less than the fair market value of the securities to be
repurchased on the date of termination of employment and the
right to repurchase is exercised for cash or cancellation of
purchase money indebtedness for the Shares within 90 days of
termination of employment, and the right terminates when the
Company's securities become publicly traded or (2) it is at the
original purchase price, provided that the right to repurchase at
the original purchase price lapses at the rate of at least 20% of
the Shares per year over 5 years from the date the Award is
granted and the right to repurchase must be exercised for cash or
cancellation of purchase money indebtedness for the Shares within
90 days of termination of employment;
4
provided, that the securities held by an officer, director, or
consultant of the Company may be subject to additional or greater
restrictions than those provided in (1) and (2) above.
8. ADJUSTMENTS UPON CERTAIN EVENTS
Notwithstanding any other provisions in the Plan to the contrary, the
following provisions shall apply to all Awards granted under the Plan:
(a) Generally. In the event of any change in the outstanding Shares
---------
after the Effective Date by reason of any Share dividend or split,
reorganization, recapitalization, merger, consolidation, spin-off, combination,
combination or transaction or exchange of Shares or other corporate exchange or
similar or other transaction effecting the value of the Shares including,
without limitation, the repayment of Company indebtedness by an affiliate or
shareholder, or any distribution to shareholders of Shares or the receipt of
proceeds from the sale or other disposition of a subsidiary of the Company other
than regular cash dividends or any transaction similar to the foregoing, the
Committee in its sole discretion and without liability to any person may make
such substitution or adjustment, if any, as it deems to be equitable, as to the
number or kind of Shares or other securities issued or reserved for issuance
pursuant to the Plan.
(b) Change in Control. Except as otherwise provided in an Award
-----------------
Agreement, in the event of a Change in Control, the Committee in its sole
discretion and without liability to any person may take such actions, if any, as
it deems necessary or desirable with respect to any Award (including, without
limitation, the lapse of the restrictions on an Award); provided, however, that
-------- -------
if the Award is not assumed, substituted or otherwise continued following the
Change in Control, the restrictions on the Award shall lapse immediately prior
to the Change in Control. Change in Control shall mean: (i) (A) the sale or
disposition, in one or a series of related transactions, of all, or
substantially all, of the assets of the Company to any "person" or "group" (as
such terms are defined in Sections 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended) other than Silver Lake Partners, L.P., Texas
Pacific Group, August Capital Partners, Chase Capital Partners and GS Capital
Partners III, L.P. or their affiliates (the "Investors") or (B) any person or
group, other than the Investors, is or becomes the beneficial owner (as defined
in Rule 13d-3 under the Securities Exchange Act of 1934, as amended), directly
or indirectly, of more than 50% of the total voting power of the voting shares
of the Company, including by way of merger, consolidation or otherwise and (ii)
the representative of the Investors (individually or in the aggregate) cease to
comprise a majority of the Board.
9. AMENDMENT OR TERMINATION
The Board or the Committee may amend, alter or discontinue the Plan,
but no amendment, alteration or discontinuation shall be made which, without the
consent of a participant, would diminish any of the rights under any Award
theretofore granted to such participant under the Plan; provided, however, that
-------- -------
the Board or the Committee may amend the Plan in such manner as it deems
necessary to permit the granting of Awards meeting the requirements of the Code
or other applicable laws.
5
10. NO RIGHT TO EMPLOYMENT
The granting of an Award under the Plan shall impose no obligation on
the Company or any subsidiary to continue the employment of a participant and
shall not lessen or affect the Company's or such subsidiary's right to terminate
the employment of such participant.
11. SUCCESSORS AND ASSIGNS
The Plan shall be binding on all successors and assigns of the
Company and a participant, including without limitation, the estate of such
participant and the executor, administrator or trustee of such estate, or any
receiver or trustee in bankruptcy or representative of the participant's
creditors.
12. CHOICE OF LAW
The Plan shall be governed by, and construed in accordance with, the
laws of the State of New York, without regard to the conflict of laws provisions
thereof.
13. EFFECTIVENESS OF THE PLAN
The Plan shall be effective as of the date the Plan is adopted by the
Board of Directors and approved by the shareholders of the Company (the
"Effective Date").
6