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EXHIBIT 10.90
SPACEHAB, INCORPORATED
1994 STOCK INCENTIVE PLAN
(as amended and restated effective October 14, 1999)
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SPACEHAB INCORPORATED
1994 STOCK INCENTIVE PLAN
(as amended and restated effective October 14, 1999)
SECTION 1. PURPOSE
The purpose of the SPACEHAB, Incorporated 1994 Stock Incentive
Plan (the "Plan") is to enable SPACEHAB, Incorporated (the "Company") and its
subsidiaries (as defined below) to provide a select group of employees the
opportunity to acquire a proprietary interest in the company and to benefit from
the appreciation in the value of its common shares and thereby to enhance the
ability of the company to attract and retain employees of exceptional ability
who, by their participation in the Plan, will have a greater incentive to
contribute to the company's long-term success and growth. For purposes of the
Plan, a "subsidiary" means any subsidiary corporation as defined in Section
424(f) of the Internal Revenue Code of 1986, as amended, (the "Code").
SECTION 2. TYPES OF AWARDS
2.1. Awards under the Plan may be in the form of (i) incentive stock
options or non-qualified stock options ("Stock Options"); (ii) Stock
Appreciation Rights; (iii) Restricted Stock; (iv) Performance Shares; (v) Loans;
and/or (vi) Tax Offset Payments.
2.2. An eligible employee may be granted one or more types of awards,
which may be independent or granted in tandem. If two awards are granted in
tandem the employee may exercise (or otherwise receive the benefit of) one award
only to the extent he or she relinquishes the tandem award.
SECTION 3. ADMINISTRATION
3.1. The Plan shall be administered by the Compensation Committee of
the Company's Board of Directors (the "Board") or such other committee of
directors as the Board shall designate (the "Committee"), which shall consist of
two or more directors who are "non-employee directors" within the meaning of
Rule 16B-3 ("Rule 16b-3") promulgated under the Securities Exchange Act of 1934,
as amended (the "Act"), and who are "outside directors" within the meaning of
Section 162(m) of the Code.
3.2. The Committee shall have the authority to grant awards to eligible
employees under the Plan; to adopt, alter and repeal such administrative rules,
guidelines and practices governing the Plan as it shall deem advisable; to
interpret the terms and provisions of the Plan and any award granted under the
Plan; and to otherwise supervise the administration of the Plan. In particular,
and without limiting its authority and powers, the Committee shall have the
authority:
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(a) to determine whether and to what extent any award
or combination of awards will be granted hereunder, including whether any awards
will be granted in tandem with each other;
(b) to select the employees to whom awards will be
granted;
(c) to determine the number of shares of the common
stock of the Company (the "Stock") to be covered by each award granted
hereunder;
(d) to determine the terms and conditions of any
award granted hereunder, including, but not limited to, any vesting or other
restrictions based on performance and such other factors as the Committee may
determine, and to determine whether the terms and conditions of the award are
satisfied;
(e) to determine the treatment of awards upon an
employee's retirement, disability, death, termination for cause or other
termination of employment;
(f) to determine pursuant to a formula or otherwise
the fair market value of the stock on a given date; provided, however, that if
the Committee fails to make such a determination, fair market value shall, in
the event the Stock is traded on a national exchange, mean the closing sale
price of the Stock on a given date;
(g) to determine whether the amount of any dividends
declared with respect to the number of shares covered by an award (i) will be
paid to the employee currently or (ii) will be deferred and deemed to be
reinvested or (iii) will otherwise be credited to the employee, or that the
employee has no rights with respect to such dividends;
(h) to determine whether to what extent, and under
what circumstances Stock and other amounts payable with respect to an award will
be deferred either automatically or at the election of an employee, including
providing for and determining the amount (if any) of deemed earnings on any
deferred amount during any deferral period;
(i) to provide that the shares of Stock received as a
result of an award shall be subject to a right of first refusal, pursuant to
which the employee shall be required to offer to the Company any shares that the
employee wishes to sell, subject to such terms and conditions as the Committee
may specify;
(j) to amend the terms of any award, prospectively or
retroactively; provided, however, that no amendment shall impair the rights of
the award holder without his or her consent;
(k) to substitute new Stock Options for previously
granted Stock Options, or for options granted under other plans, in each case
including previously granted options having higher option prices; and
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(l) to allow an option holder to exercise his or her
option prior to its expiration and pay for the acquired shares with currently
owned shares, while at the same time receiving replacement options, at the then
current market price, for the same remaining term as the option exercised.
3.3. All determinations made by the Committee pursuant to the
provisions of the Plan shall be final and binding on all persons, including the
Company and Plan participants.
3.4. The Committee may from time to time delegate to one or
more officers of the Company any or all of its authority granted hereunder
except with respect to awards granted to persons subject to Section 16 of the
Act. The committee shall specify the maximum number of shares that the officer
or officers to whom such authority is delegated may award.
SECTION 4. STOCK SUBJECT TO PLAN
4.1. The total number of shares of Stock reserved and
available for distribution under the Plan shall be 3,950,000 (subject to further
adjustment as provided below). Such shares may consist of authorized but
unissued shares or treasury shares. The exercise of a Stock Appreciation Right
for cash, the payment of any other award in cash shall not count against this
share limit.
4.2. To the extent an option terminates without having been
exercised, or an award terminates without the employee having received payment
of the award, or shares awarded are forfeited, the shares subject to such award
shall again be available for distribution in connection with future awards under
the Plan. At no time will the number of shares issued under the Plan plus the
number of shares covered by outstanding awards under the Plan exceed the number
of shares authorized under the Plan.
4.3. In the event of any merger, reorganization,
consolidation, sale of substantially all assets, recapitalization, Stock
dividend, Stock split, spin-off, split-up, split-off, distribution of assets or
other change in corporate structure affecting the Stock, a substitution or
adjustment, as may be determined to be appropriate by the Committee in its sole
discretion shall be made in the aggregate number of shares reserved for issuance
under the Plan, the number of shares subject to outstanding awards and the
amounts to be paid by employees or the Company, as the case may be, with respect
to outstanding awards.
4.4. The number of shares of Stock underlying Stock Options or
free-standing Stock Appreciation Rights that may be granted under the Plan to
any one participant during any one calendar year shall not exceed 200,000
shares, subject to adjustment in the same manner as provided in subsection 4.3
above. To the extent required for exemption under Section 162(m) of the Code,
any Stock Options or Stock
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Appreciation Rights that are canceled or repriced shall not again be available
for grant under this maximum share limit.
SECTION 5. ELIGIBILITY
Officers and other key employees and consultants of the
Company or a subsidiary are eligible to be granted awards under the Plan. A
director of the Company or a subsidiary who is not also an employee of the
Company or a subsidiary will not be 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 sole discretion, from among those eligible employees.
SECTION 6. STOCK OPTIONS
6.1. The Stock Options awarded under the Plan may be of two
types: (i) Incentive Stock Options within the meaning of Section 422 of the Code
or any successor provision thereto; and (ii) Non-Qualified Stock Options. To the
extent that any Stock Option does not qualify as an Incentive Stock Option, it
shall constitute a Non-Qualified Stock Option.
6.2. Subject to the following provisions, Stock Options
awarded under the Plan shall be in such form and shall have such terms and
conditions as the Committee may determine:
(a) Option Price. The option price per share of Stock
purchasable under a Stock Option shall be determined by the Committee.
(b) Option Term. The term of each Stock Option shall
be fixed by the Committee.
(c) Exercisability. Stock Options shall be
exercisable at such time or times and subject to such terms and conditions as
shall be determined by the Committee. If the Committee provides that any Stock
Option is exercisable only in installments, the Committee may waive such
installment exercise provisions at any time in whole or in part.
(d) Method of Exercise. Stock Options may be
exercised in whole or in part at any time during the option period by giving
written notice of exercise to the Company specifying the number of shares to be
purchased, accompanied by payment of the purchase price. Payment of the purchase
price shall be made in such manner as the Committee may provide in the award,
which may include cash (including cash equivalents), delivery of shares of Stock
already owned by the optionee or subject to awards hereunder through the
delivery of irrevocable instructions to a broker to deliver promptly to the
Company an amount equal to the purchase price, or by any other manner permitted
by law and determined by the Committee, or any combination of the foregoing. The
Committee may provide that all or part of the shares received upon the exercise
of a
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Stock Option which are paid for using Restricted Stock or Performance Shares
shall be restricted or deferred in accordance with the original terms of the
award in question. The Committee shall determine acceptable methods for
providing notice of exercise for tendering shares of Stock and for delivery of
irrevocable instructions to a broker and may impose such limitations and
prohibitions on the use of Stock or irrevocable instructions to a broker to
exercise as it deems appropriate.
(e) No Shareholder Rights. An optionee shall have
neither rights to dividends or other rights of a shareholder with respect to
shares subject to a Stock Option until the Optionee has given written notice of
exercise and has paid for such shares.
(f) Surrender Rights. The Committee may provide that
options may be surrendered for cash upon any terms and conditions set by the
Committee.
(g) Non-transferability. No Stock Option shall be
transferable by the optionee other than by will or by the laws of descent and
distribution. During the optionee's lifetime, all Stock Options shall be
exercisable only by the optionee.
(h) Termination of Employment. If an optionee's
employment with the Company or a subsidiary terminates by reason of death,
disability, retirement, voluntary or involuntary termination or otherwise, the
Stock Option shall be exercisable to the extent determined by the Committee. The
Committee may provide that, notwithstanding the option term fixed pursuant to
Section 6.2(b), a Stock Option which is outstanding on the date of an optionee's
death shall remain outstanding for an additional period after the date of such
death.
6.3. Notwithstanding the provision of Section 6.2, no
Incentive Stock Option shall (i) have an option price which is less than 100% of
the fair market value of the Stock on the date of the award of the Stock Option,
(ii) be exercisable more than ten years after the date such Incentive Stock
Option is awarded or (iii) be awarded more than ten years after the effective
date of the Plan. No Incentive Stock Option shall be granted to an employee who,
at the time the option is granted, owns stock possessing more than 10% of the
total combined voting power of all classes of stock of the Company or of its
subsidiary, unless the option price, at the time of the award, is at least 110%
of the fair market value of the stock subject to the option and such option is
not exercisable after the expiration of five years from the date of the award.
SECTION 7. STOCK APPRECIATION RIGHTS
7.1. A Stock Appreciation Right shall entitle the holder
thereof to receive payment of an amount, in cash, shares of Stock or a
combination thereof, as determined by the Committee, equal in value to the
excess of the fair market value of the shares as to which the award is granted
on the date of exercise over an amount specified by the Committee. Any such
award shall be in such form and shall have such terms and conditions as the
Committee may determine.
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7.2. The Committee may provide that a Stock Appreciation Right
may be exercised only within a 60-day period following occurrence of a Change of
Control (as defined in Section 15.2). The Committee may also provide that in the
event of a Change of Control the amount to be paid upon the exercise of a Stock
Appreciation Right shall be based on the Change of Control Price (as defined in
Section 15.3).
SECTION 8. RESTRICTED STOCK
Subject to the following provisions, all awards of Restricted
Stock shall be in such form and shall have such terms and conditions as the
Committee may determine:
(a) The Restricted Stock award shall specify the
number of shares of Restricted Stock to be awarded, the price, if any, to be
paid by the recipient of the Restricted Stock and the date or dates on which, or
the conditions upon the satisfaction of which, the Restricted Stock will vest.
The vesting of Restricted Stock may be conditioned upon the completion of a
specified period of service with the Company or a subsidiary, upon the
attainment of specified performance goals or upon such other criteria as the
Committee may determine.
(b) Stock certificates representing the Restricted
Stock awarded to an employee shall be registered in the employee's name, but the
Committee may direct that such certificates shall be held by the Company on
behalf of the employee. Except as may be permitted by the Committee, no share of
Restricted Stock may be sold, transferred, assigned, pledged or otherwise
encumbered by the employee until such share has vested in accordance with the
terms of the Restricted Stock award. At the time Restricted Stock vests, a
certificate for such vested shares shall be delivered to the employee (or his or
her designated beneficiary in the event of death), free of all restrictions.
(c) The Committee may provide that the employee shall
have the right to vote or receive dividends on Restricted Stock. The Committee
may provide that Stock received as a dividend on, on in connection with a stock
split of Restricted Stock, shall be subject to the same restrictions as the
Restricted Stock.
(d) Except as may be provided by the Committee, in
the event of an employee's termination of employment before all of his or her
Restricted Stock has vested, or in the event any conditions to the vesting of
Restricted Stock have not been satisfied prior to any deadline for the
satisfaction of such conditions set forth in the award, the shares of Restricted
Stock which have not vested shall be forfeited, and the Committee may provide
that (i) any purchase price paid by the employee shall be returned to the
employee or (ii) a cash payment equal to the Restricted Stock's fair market
value on the date of forefeiture, if lower, shall be paid to the employee.
(e) The Committee may waive, in whole or in part, any
or all of the conditions to receipt of, or restrictions with respect to, any or
all of the employee's Restricted Stock.
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SECTION 9. PERFORMANCE SHARES AWARDS
Subject to the following provisions, all awards of Performance
Shares shall be in such form and shall have such terms and conditions as the
Committee may determine:
(a) The Performance Shares shall specify the number
of Performance Shares to be awarded to any employee and the duration of the
period (the "Performance Period") after which, and the terms pursuant to which,
the Performance Shares will be issued to the employee. The Committee may
condition the award of Performance Shares, or receipt of Stock or cash at the
end of the Performance Period, upon the attainment of specified performance
goals or such other criteria as the Committee may determine.
(b) Except as may be permitted by the Committee,
Performance Share awards may not be sold, assigned, transferred, pledged or
otherwise encumbered during the Performance Period.
(c) At the expiration of the Performance Period, the
employee (or his or her designated beneficiary in the event of death) shall
receive (i) certificates for the number of shares of Stock equal to the number
of shares covered by the Performance Share award, (ii) cash equal to the fair
market value of such Stock or (iii) a combination of shares and cash, as the
Committee may determine.
(d) Except as may be provided by the Committee, in
the event of an employee's termination of employment before the end of the
Performance Period, his or her Performance Share award shall be forfeited.
(e) The Committee may waive, in whole or in part, any
or all of the conditions to receipt of, or restrictions with respect to, Stock
or cash under a Performance Share award.
SECTION 10. LOANS
The Committee may provide that the Company shall make, or
arrange for, a loan or loans to an employee with respect to the exercise of any
Stock Option awarded under the Plan, with respect to the payment of the purchase
price, if any, of any Restricted Stock awarded hereunder, or with respect to any
taxes arising from an award hereunder; provided, however, that the Company shall
not loan to an employee more than the excess of the purchase or exercise price
of an award (together with the amount of any taxes arising from such award) over
the par value of any shares of Stock awarded. The Committee shall have full
authority to decide whether a loan will be made hereunder and to determine the
amount, term and provisions of any such loan, including the interest rate to be
charged, whether the loan will be with or without recourse against the borrower,
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any security for the loan, the terms on which the loan is to be repaid and the
conditions, if any, under the loan may be forgiven.
SECTION 11. TAX OFFSET PAYMENTS
The Committee may provide for a Tax Offset Payment by the
Company to the employee in an amount specified by the Committee, which shall not
exceed the amount necessary to pay the federal, state, local and other taxes
payable with respect to any award and receipt of the Tax Offset Payment,
assuming the employee is taxed at the maximum tax rate applicable to such
income. The Tax Offset Payment may be paid in cash, Stock or a combination
thereof, as determined by the Committee.
SECTION 12. ELECTION TO DEFER AWARDS
The Committee may permit an employee to elect to defer receipt
of an award for a specified period or until a specified event, upon such terms
as are determined by the Committee.
SECTION 13. TAX WITHHOLDING
13.1. Each employee shall, no later than the date as of which
the value of an award first becomes includible in the employee's gross income
for applicable tax purposes, pay to the Company, or make arrangements
satisfactory to the Committee regarding payment of any federal, state, local or
other taxes of any kind required by law to be withheld with respect to the
award. The obligations of the Company under the Plan shall be conditional on
such payment or arrangements, and the Company (and, where applicable, any
subsidiary), shall, to the extent permitted by law, have the right to deduct any
such taxes from any payment of any kind otherwise due to the employee.
13.2. To the extent permitted by the Committee, and subject to
such terms and conditions as the Committee may provide, an employee may
irrevocably elect to have the withholding tax obligation, or any additional tax
obligation with respect to any awards hereunder, satisfied by (i) having the
Company withhold shares of Stock otherwise deliverable to the employee with
respect to the award or (ii) delivering to the Company, shares of unrestricted
Stock.
SECTION 14. AMENDMENTS AND TERMINATION
The Board may discontinue the Plan at any time and may amend
it from time to time. Solely to the extent deemed necessary or advisable by the
Board, for purposes of complying with Section 422 of the Code, Section 162(m) of
the Code or the rules of any securities exchange or for any other reason, the
Board may seek the approval of any such amendment by the Company's shareholders.
Notwithstanding the foregoing, no termination or amendment of the Plan shall in
any manner affect any award theretofore granted without the holder's consent.
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SECTION 15. CHANGE OF CONTROL
15.1. In the event of a Change of control, unless otherwise
determined by the Committee at the time of grant or by amendment (with the
holder's consent) of such grant:
(a) all outstanding Stock Options and all outstanding
Stock Appreciation Rights awarded under the Plan shall become fully exercisable
and vested;
(b) the restrictions and deferral limitations
applicable to any outstanding Restricted Stock and Deferred Stock awards under
the Plan shall lapse and such shares and awards shall be deemed fully vested;
and
(c) to the extent the cash payment of any award is
based on the fair market value of Stock, such fair market value shall be the
Change of Control Price.
15.2. A "Change of Control" shall be deemed to occur on:
(a) The date that any person or group deemed a person
under Sections 3(a)(9) and 13(d)(3) of the Act, other than the Company and its
subsidiaries as determined immediately prior to that date, in a transaction or
series of transactions has become the beneficial owner, directly or indirectly
(with beneficial ownership determined as provided in Rule 13d-3, or any
successor rule, under such Act) of 20% or more of the outstanding securities of
the Company having the right under ordinary circumstances to vote at an election
of the Board;
(b) the date on which one-third or more of the
members of the Board shall consist of persons other than Current Directors (for
these purposes, a "Current Director" shall mean any member of the Board as of
the effective date of the Plan and any successor of a Current Director whose
nomination or election has been approved by a majority of the Current Directors
then on the Board); or
(c) the date of approval by the shareholders of the
Company of an agreement providing for (A) the merger or consolidation of the
Company with another corporation where the shareholders of the Company,
immediately prior to the merger or consolidation, would not beneficially own,
immediately after the merger or consolidation, shares entitling such
shareholders to 50% or more of all votes (without consideration of the rights of
any class of stock to elect directors by a separate class vote) to which all
shareholders of the corporation issuing cash or securities in the merger or
consolidation would be entitled in the election of directors or where the
members of the Board, immediately prior to the merger or consolidation, would
not, immediately after the merger or consolidation or (B) the sale or other
disposition of all or substantially all the assets of the Company.
15.3. "Change of Control Price" means the highest price per
share paid for the Company's Stock in any transaction reported on any national
stock exchange or in
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the over-the-counter market, or paid or offered in any transaction related to a
Change of Control at any time during the 90-day period ending with the Change of
Control. Notwithstanding the foregoing sentence, in the case of Stock
Appreciation Rights granted in tandem with Incentive Stock Options, the Change
of Control Price shall be the highest price paid on the date on which the Stock
Appreciation Right is exercised.
SECTION 16. GENERAL PROVISIONS
16.1. Each award under the Plan shall be subject to the
requirement that, if at any time the Committee shall determine that (i) the
listing, registration or qualification of the Stock subject to the award or
related thereto upon any securities exchange or under any state or federal law,
or (ii) the consent or approval of any government regulatory body or (iii) an
agreement by the recipient of an award with respect to the disposition of Stock,
is necessary or desirable (in connection with any requirement or interpretation
of any federal or state securities law, rule or regulation) as a condition of,
or in connection with, the granting of such award or the issuance, purchase or
delivery of Stock thereunder, such award shall not be granted or exercised, in
whole or in part, unless such listing, registration, qualification, consent,
approval or agreement shall have been effected or obtained free of any
conditions not acceptable to the Committee.
16.2. Nothing set forth in this Plan shall prevent the Board
from adopting other or additional compensation arrangements. Neither the
adoption of the Plan nor any award hereunder shall confer upon any employee of
the Company, or of a subsidiary, any right to continued employment.
16.3. Determinations by the Committee under the Plan relating
to the form, amount and terms and conditions of awards need not be uniform, and
may be made selectively among persons who receive or are eligible to receive
awards under the Plan, whether or not such persons are similarly situated.
16.4. No member of the Board or the Committee, nor any officer
or employee of the Company acting on behalf of the Board or the Committee, shall
be personally liable for any action, determination or interpretation taken or
made with respect to the Plan, and all members of the Board or the Committee and
all officers or employees of the Company acting on their behalf shall, to the
extent permitted by law, be fully indemnified and protected by the Company in
respect of any such action, determination or interpretation.
SECTION 17. EFFECTIVE DATE OF PLAN
The Plan shall become effective upon approval by the Company's
shareholders.
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