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EXHIBIT 4.6
E-SYNC NETWORKS, INC.'S 1999 LONG-TERM INCENTIVE PLAN
SECTION 1. PURPOSES. The purposes of E-Sync Networks, Inc.'s 1999
Long-Term Incentive Plan, as amended (the "Plan") are to encourage selected key
employees and consultants, and the directors, of E-Sync Networks, Inc. (the
"Company") and its Affiliates (as hereinafter defined) to acquire a proprietary
and vested interest in the growth and performance of the Company and to generate
an increased incentive to contribute to the Company's future success and
prosperity, thereby enhancing the value of the Company for the benefit of
stockholders and the ability of the Company to attract and retain individuals of
exceptional talent.
SECTION 2. DEFINITIONS. As used in the Plan, the following terms shall
have the meanings set forth below:
(a) "Affiliate" of a specified person shall mean a person that
directly, or indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with, the person specified.
(b) "Award" shall mean any Option, Stock Appreciation Right, Limited
Stock Appreciation Right, Restricted Stock Award, Performance Share or any
other right, interest, or option granted pursuant to the provisions of the
Plan.
(c) "Award Agreement" shall mean any written agreement, contract, or
other instrument or document evidencing any Award granted hereunder and
signed by both the Company and the Participant or by both the Company and a
Non-Employee Director.
(d) "Board" shall mean the Board of Directors of the Company.
(e) "Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time, including the rules, regulations, and interpretations
promulgated thereunder.
(f) "Committee" shall mean the Compensation Committee of the Board,
composed of not less than two directors each of whom is a Non-Employee
Director.
(g) "Company" shall mean E-Sync Networks, Inc.
(h) "Consultant" shall mean any consultant of the Company or any
Affiliate.
(i) "Dividend Equivalent" shall mean any right granted pursuant to
Section 14(i) hereof to receive an equivalent amount of interest or
dividends with respect to the number of shares covered by an Award.
(j) "Employee" shall mean any salaried employee of the Company or of
any Affiliate.
(k) "Fair Market Value" shall mean, with respect to any property, the
market value of such property determined by such methods or procedures as
shall be established from time to time by the Committee.
(l) "Incentive Stock Option" shall mean an Option granted under
Section 6 hereof that is intended to meet the requirements of Section 422
of the Code or any successor provision thereto.
(m) "Limited Stock Appreciation Right" shall mean a Stock Appreciation
Right that can only be exercised in the event of a change in control,
according to the definition and provisions of Section 8 of the Plan.
(n) "Non-Employee Director" shall mean a person described in both (i)
Rule 16b-3(b)(3) promulgated by the Securities and Exchange Commission
under the Securities Exchange Act of 1934, as amended, or any successor
definition adopted by the Securities and Exchange Commission, and
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(ii) Treasury Regulation Section 1.162-27(e)(3)(i), or any successor
provision, adopted by the Department of the Treasury.
(o) "Non-qualified Stock Option" shall mean an Option granted to a
Participant under Section 6 hereof that is not intended to be an Incentive
Stock Option.
(p) "Option" shall mean any right granted to a Participant under the
Plan allowing such Participant to purchase Shares at such price or prices
and during such period or periods as the Committee shall determine.
(q) "Participant" shall mean an Employee or Consultant who is selected
by the Committee to receive an Award under the Plan.
(r) "Payment Value" shall mean the dollar amount assigned to a
Performance Share which shall be equal to the Fair Market Value per Share
on the close of business on the last day of a Performance Cycle.
(s) "Person" shall include, without limitation, any individual,
corporation, partnership, limited liability company, association,
joint-stock company, trust, unincorporated organization, or government or
political subdivision thereof.
(t) "Performance Cycle" or "Cycle" shall mean the period of time
selected by the Committee during which the performance is measured for the
purpose of determining the extent to which an award of Performance Shares
has been earned.
(u) "Performance Goals" shall mean the objectives established by the
Committee for a Performance Cycle, for the purpose of determining the
extent to which Performance Shares which have been contingently awarded for
such Cycle are earned.
(v) "Performance Share" shall mean an Award granted pursuant to
Section 10 hereof which shall represent the right, subject to the terms set
forth in Section 10 hereof, to either one Share or the Payment Value in
cash of one Share.
(w) "Restricted Stock" shall mean any Share issued with the
restriction that the holder may not sell, transfer, pledge, or assign such
Share and with such other restrictions as the Committee, in its sole
discretion, may impose (including, without limitation, any restriction on
the right to vote such Share, and the right to receive any cash dividends),
which restrictions may lapse separately or in combination at such time or
times, in installments or otherwise, as the Committee may deem appropriate.
(x) "Restricted Stock Award" shall mean an award of Restricted Stock
under Section 9 hereof.
(y) "Shares" shall mean shares of the common stock of the Company,
$.01 par value per share, and such other securities of the Company as the
Committee may from time to time determine.
(z) "Stock Appreciation Right" shall mean any right granted to a
Participant pursuant to Section 7 hereof to receive, upon exercise by the
Participant, the excess of (i) the Fair Market Value of one Share on the
date of exercise or, if the Committee shall so determine in the case of any
such right other than one related to any Incentive Stock Option, at any
time during a specified period before the date of exercise over (ii) the
grant price of the right as specified by the Committee, in its sole
discretion, on the date of grant, which shall not be less than the Fair
Market Value of one Share on such date. Any payment by the Company in
respect of such right may be made in cash, Shares, other property, or any
combination thereof, as the Committee, in its sole discretion, shall
determine.
(aa) "Stockholder Meeting" shall mean the annual meeting of
stockholders of the Company held each year.
SECTION 3. ADMINISTRATION. The Plan shall be administered by the
Committee, or in the absence of a designated Committee, by the Board, in which
case the term "Committee" shall, for purposes of the Plan, be deemed to refer to
the Board. The Committee shall have full power and authority, subject to such
orders or resolutions not inconsistent with the provisions of the Plan as may
from time to time be adopted by the Board, to: (i) select the Employees and
Consultants of the Company to whom Awards may from time to time be
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granted hereunder; (ii) determine the type or types of Award to be granted to
each Participant hereunder; (iii) determine the number of Shares to be covered
by each Award granted hereunder; provided, however, that Shares subject to any
form of award granted to any individual employee during any calendar year shall
not exceed a total of 180,000 Shares; (iv) determine the terms and conditions,
not inconsistent with the provisions of the Plan, of any Award granted
hereunder; (v) determine whether, to what extent and under what circumstances
Awards may be settled in cash, Shares or other property or canceled or
suspended; (vi) determine whether, to what extent and under what circumstances
cash, Shares and other property and other amounts payable with respect to an
Award under this Plan shall be deferred either automatically or at the election
of the Participant; (vii) interpret and administer the Plan and any instrument
or agreement entered into under the Plan; (viii) establish such rules and
regulations and appoint such agents as it shall deem appropriate for the proper
administration of the Plan; and (ix) make any other determination and take any
other action that the Committee deems necessary or desirable for administration
of the Plan. Decisions of the Committee shall be final, conclusive and binding
upon all persons, including the Company, any Participant, any stockholder, and
any Employee of the Company or of any Affiliate. Notwithstanding the above, the
Committee shall not have discretion with respect to any Shares granted to
Non-Employee Directors pursuant to Section 11 hereof. A majority of the members
of the Committee may determine its actions and fix the time and place of its
meetings.
SECTION 4. SHARES SUBJECT TO THE PLAN.
(a) Subject to adjustment as provided in Section 4(b), the total number of
Shares available for grant under the Plan shall be 750,000 Shares. In addition,
any Shares issued by the Company through the assumption or substitution of
outstanding grants from an acquired company shall not reduce the shares
available for grants under the Plan. Any Shares issued hereunder may consist, in
whole or in part, of authorized and unissued shares or treasury shares. If any
Shares subject to any Award granted hereunder are forfeited or such Award
otherwise terminates without the issuance of such Shares or of other
consideration in lieu of such Shares, the Shares subject to such Award, to the
extent of any such forfeiture or termination, shall again be available for grant
under the Plan.
(b) In the event of any merger, reorganization, consolidation,
recapitalization, stock dividend, or other change in corporate structure
affecting the Shares, such adjustment shall be made in the type and aggregate
number of Shares which may be delivered under the Plan or such other securities
to be delivered in place thereof, and in the number of Shares subject to
outstanding Options granted under the Plan, and in the value or number of Shares
subject to Awards granted under the Plan as may be determined to be appropriate
by the Committee, in its sole discretion, provided that the number of Shares
subject to any Award shall always be a whole number, and provided further, that
the number of Shares granted to Non-Employee Directors pursuant to Section 11
hereof and the number of Shares subject in the future to be granted pursuant to
Section 11 hereof shall be subject to adjustment only as set forth in Section
11.
SECTION 5. ELIGIBILITY. Any Employee and/or Consultant (excluding any
member of the Committee) shall be eligible to be selected as a Participant. All
Non-Employee Directors shall automatically be eligible to receive Awards
pursuant to Section 11.
SECTION 6. STOCK OPTIONS. Options may be granted hereunder to
Participants either alone or in addition to other Awards granted under the Plan.
Options granted under the Plan shall be, in the discretion of the Committee,
either Incentive Stock Options or Non-Qualified Stock Options. Incentive Stock
Options may be granted only to Employees. Any Option granted to a Participant
under the Plan shall be evidenced by an Award Agreement in such form as the
Committee may from time to time approve. Any such Option shall be subject to the
following terms and conditions and to such additional terms and conditions, not
inconsistent with the provisions of the Plan, as the Committee shall deem
desirable:
(a) Option Price. The purchase price per Share purchasable under an
Option shall be determined by the Committee in its sole discretion;
provided that such purchase price in the case of Incentive Stock Options
shall not be less than the Fair Market Value of the Share on the date of
the grant of the Option; provided further that the purchase price per Share
for an Incentive Stock Option granted to an Employee who, at the time of
grant, owns stock having more than 10 percent of the total combined voting
power of
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all classes of stock of the Company (a "Ten Percent Stockholder"), shall
not be less than 110 percent of the Fair Market Value on the date of grant,
all as determined by the Committee.
(b) Option Period. The term of each Option shall be fixed by the
Committee in its sole discretion; provided that no Incentive Stock Option
shall be exercisable after the expiration of ten years from the date the
Option is granted; provided further that no Incentive Stock Option granted
to an Employee who is a Ten Percent Stockholder shall be exercisable after
the expiration of five years from the date the Option is granted.
(c) Exercisability. Options shall be exercisable at such time or
times as determined by the Committee at or subsequent to grant.
(d) Method of Exercise. Subject to the other provisions of the Plan
and any applicable Award Agreement, any Option may be exercised by the
Participant in whole or in part at any time or times, and the Participant
may make payment of the option price in such form or forms, including,
without limitation, payment by delivery of cash, Shares or other
consideration, or through an arrangement with a broker in which the
Participant delivers to the Company an irrevocable notice of exercise
accompanied by the broker's payment in full and an irrevocable instruction
to the Company to deliver the Shares issuable upon exercise to the broker
for the Participant's account.
(e) Incentive Stock Options. In accordance with rules and procedures
established by the Committee, the aggregate Fair Market Value (determined
as of the time of grant) of the Shares with respect to which Incentive
Stock Options held by any Participant which are exercisable for the first
time by such Participant during any calendar year under the Plan (and under
any other benefit plans of the Company or subsidiary of the Company) shall
not exceed $100,000 or, if different, the maximum limitation in effect at
the time of grant under Section 422 of the Code, or any successor
provision, and any regulations promulgated thereunder. The terms of any
Incentive Stock Option granted hereunder shall comply in all respects with
the provisions of Section 422 of the Code, or any successor provision, and
any regulations promulgated thereunder.
SECTION 7. STOCK APPRECIATION RIGHTS. Stock Appreciation Rights may be
granted hereunder to Participants either alone or in addition to other Awards
granted under the Plan and may, but need not, relate to a specific Option
granted under Section 6. The provisions of Stock Appreciation Rights need not be
the same with respect to each recipient. Any Stock Appreciation Right related to
a Non-qualified Stock Option may be granted at the same time such Option is
granted or at any time thereafter before exercise or expiration of such Option.
Any Stock Appreciation Right related to an Incentive Stock Option must be
granted at the same time such Option is granted. In the case of any Stock
Appreciation Right related to any Option, the Stock Appreciation Right or
applicable portion thereof shall terminate and no longer be exercisable upon the
termination or exercise of the related Option, except that a Stock Appreciation
Right granted with respect to less than the full number of Shares covered by a
related Option shall not be reduced until the exercise or termination of the
related Option exceeds the number of shares not covered by the Stock
Appreciation Right. Any Option related to any Stock Appreciation Right shall no
longer be exercisable to the extent the related Stock Appreciation Right has
been exercised. The Committee may impose such conditions or restrictions on the
exercise of any Stock Appreciation Right as it shall deem appropriate.
SECTION 8. LIMITED STOCK APPRECIATION RIGHTS.
Limited Stock Appreciation Rights may be granted hereunder to Participants
in relation to any Option or Stock Appreciation Right granted under the Plan. A
Limited Stock Appreciation Right may be granted at the time the Option or Stock
Appreciation Right is granted or at any time thereafter. Limited Stock
Appreciation Rights are exercisable in full for a period of seven months
following the date of a Change in Control as defined in Section 12(b).
(a) Amount of Payment. The amount of payment to which a Participant shall
be entitled upon the exercise of each Limited Stock Appreciation Right shall be
equal to the difference between the Option price of the Shares covered by the
related Option or Stock Appreciation Right and the Market Price of such Shares.
Market Price is defined to be the greater of (i) the highest price of the Shares
paid in connection with a
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Change in Control and (ii)(a) if the Shares are traded on an exchange, the
highest closing trade price per Share on such exchange during the 60-day period
prior to the Change in Control, and (b) if the Shares are not traded on an
exchange, but are traded over-the-counter, the average of the highest daily
closing bid and ask price per Share during the 60-day period prior to the Change
in Control, in either case as reasonably determined by the Committee.
(b) Form of Payment. Payments to Participants upon the exercise of Limited
Stock Appreciation Rights shall be made solely in cash.
(c) Effect of Exercise. If Limited Stock Appreciation Rights are
exercised, the Options and Stock Appreciation Rights related to them cease to be
exercisable. Upon the exercise or termination of the Options or Stock
Appreciation Rights, the related unexercised Limited Stock Appreciation Rights
terminate.
SECTION 9. RESTRICTED STOCK.
(a) Issuance. Restricted Stock Awards may be issued hereunder to
Participants, for no cash consideration or such consideration as may be
determined by the Committee to be appropriate, either alone or in addition to
other Awards granted under the Plan. The provisions of Restricted Stock Awards
need not be the same with respect to each recipient.
(b) Registration. Any Restricted Stock issued hereunder may be evidenced
in such manner as the Committee in its sole discretion shall deem appropriate,
including, without limitation, book-entry registration or issuance of a stock
certificate or certificates. In the event any stock certificate is issued in
respect of shares of Restricted Stock 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.
(c) Forfeiture. Except as otherwise determined by the Committee at the
time of grant, upon termination of employment for any reason during the
restriction period specified in connection with such award, all shares of
Restricted Stock still subject to restriction shall be forfeited by the
Participant and reacquired by the Company; provided that in the event of a
Participant's retirement, permanent disability or death, 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, waive in whole or in part
any or all remaining restrictions with respect to such Participant's shares of
Restricted Stock. Unrestricted Shares, evidenced in such manner as the Committee
shall deem appropriate, shall be issued to the grantee promptly after the period
of forfeiture upon satisfaction of all requirements under the applicable
Restricted Stock Award, as determined or modified by the Committee.
SECTION 10. PERFORMANCE SHARES.
(a) Issuance. Performance Shares may be issued hereunder to Participants
either alone or in addition to other Awards granted under the Plan. The terms of
Performance Shares need not be the same with respect to each recipient.
Performance Shares shall entitle the recipient thereof to convert same into
Shares, cash, or a combination thereof, as determined by the Committee, based
upon satisfaction of pre-determined performance targets or goals. The Committee
shall have sole and complete authority to determine the Employees who shall
receive Performance Shares and the number of such Shares for each Performance
Cycle, and to determine the duration of each Performance Cycle. There may be
more than one Performance Cycle in existence at any one time, and the duration
of Performance Cycles may differ from each other.
(b) Performance Goals. The Committee shall establish Performance Goals for
each Cycle based on any one or more of the following, or any other factor the
Committee deems to be relevant: the operating earnings, net earnings, return on
equity, income, market share, stockholder return, combined ratio, level of
expenses or growth in revenue. During any Cycle, the Committee may adjust the
Performance Goals for such Cycle as it deems equitable in recognition of unusual
or non-recurring events affecting the Company, changes in applicable tax laws or
accounting principles, or such other factors as the Committee may determine;
provided, however, that no such adjustment shall be applicable to the extent
such adjustment would result in a disallowance of a tax deduction pursuant to
Section 162(m) of the Code.
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(c) Determination of Earned Performance Shares. As soon as practicable
after the end of a Performance Cycle, the Committee shall determine the number
of Performance Shares which have been earned on the basis of performance in
relation to the established Performance Goals.
(d) Payment Values. As soon as practicable after the expiration of the
Performance Cycle and the Committee's determination under paragraph (c), above,
the Committee shall determine whether the Participant should be distributed cash
and/or Shares. To the extent that distributions are made in cash, the amount of
cash distributed shall be equal to the number of earned Performance Shares for
which cash is being distributed, times the Payment Value. Award payments made in
cash rather than by the issuance of Shares shall not result in additional Shares
being available under the Plan. To the extent that distributions are made in
Shares, the number of Shares distributed shall be equal to the number of earned
Performance Shares for which Shares are being distributed.
SECTION 11. NON-EMPLOYEE DIRECTORS' STOCK GRANTS.
(a) Grant of Options. Each Non-Employee Director in office on the date of
the approval of this Plan by the Company's Board of Directors, and each Person
who thereafter becomes a Non-Employee Director, on the date they become a
Non-Employee Director, shall receive a Non-qualified Stock Option to purchase
20,000 Shares of the Company's Common Stock (as constituted on the date hereof)
at a price equal to the fair market value of such a Share (determined pursuant
to the following sentence) on such date, exercisable after the first anniversary
of the date of grant thereof and through the tenth anniversary of the date of
grant thereof. For purposes of the foregoing, the fair market value of a Share
shall be the last reported trading price on the last trading day before the date
such Non-Employee Director becomes entitled to receive the Options (or, if there
were no trades on such date, the average of the bid and asked prices per Share
on such date).
(b) Vesting and Forfeiture. All Options granted to Non-Employee Directors
pursuant to this Section 11 shall be "restricted" and subject to forfeiture
until such Shares vest on the first anniversary of the date of grant. Prior to
vesting, such Options shall be subject to forfeiture upon the voluntary
resignation of such Non-Employee Director, but excluding voluntary resignations
within one year of a Change of Control (as defined below). For purposes of this
Section 11, "Change of Control" shall mean (i) any merger or consolidation or
other corporate reorganization of the Company in which the Company is not the
surviving entity; or (ii) any sale of all or substantially all of the Company's
assets, in either a single transaction or a series of transactions; or (iii) a
liquidation of all or substantially all of the Company's assets; or (iv) if
there is a change within one twelve-month period of a majority of the directors
constituting the Company's Board of Directors at the beginning of such
twelve-month period; or (v) if a single person or entity, or a related group of
persons or entities, at any time subsequent to the date of grant acquires
beneficial ownership of 25% or more of the Company's outstanding voting
securities; unless, with respect to clause (iv), the change of directors is
approved by the Board of Directors as constituted prior to such change and no
event described in clause (v) has occurred.
(c) Adjustment of Award. In case there shall be a merger, reorganization,
consolidation, recapitalization, stock dividend or other change in corporate
structure such that the Shares of the Company are changed into or become
exchangeable for a different security, thereafter the Options subject to be
granted to Non-Employee Directors pursuant to the provisions of this Section 11
shall be adjusted accordingly.
SECTION 12. CHANGE IN CONTROL.
(a) In order to maintain the Participants' rights in the event of any
Change in Control of the Company, as hereinafter defined, the Committee, as
constituted before such Change in Control, may, in its sole discretion, as to
any Award (except Options granted pursuant to Section 11), either at the time an
Award is made hereunder or any time thereafter, take any one or more of the
following actions: (i) provide for the acceleration of any time periods relating
to the exercise or realization of any such Award so that such Award may be
exercised or realized in full on or before a date fixed by the Committee; (ii)
provide for the purchase of any such Award, upon the Participant's request, for
an amount of cash equal to the amount that could have been attained upon the
exercise of such Award or realization of the Participant's rights had such Award
been currently exercisable or payable; or (iii) make such adjustment to any such
Award then outstanding as the
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Committee deems appropriate to reflect such Change in Control. In addition, the
Committee, upon receiving approval of a majority of the full Board, may, in its
discretion, cause any Award outstanding at such time to be assumed, or new
rights substituted therefor, by the acquiring or surviving corporation after
such Change in Control. The Committee may, in its discretion, include such
further provisions and limitations in any agreement documenting such Awards as
it may deem equitable and in the best interests of the Company.
(b) A "Change in Control" shall be deemed to have occurred if, subsequent
to the date of adoption of the Plan by the Company's stockholders (i) any Person
other than a trustee or other fiduciary holding securities under an employee
benefit plan of the Company, and other than the Company or a corporation owned,
directly or indirectly, by the stockholders of the Company in substantially the
same proportions as their ownership of stock of the Company, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange Act
of 1934), directly or indirectly, of securities of the Company representing 25%
or more of the combined voting power of the Company's then outstanding
securities; or (ii) during any period of two consecutive years, individuals who
at the beginning of such period constitute the Board and any new Director (other
than a Director designated by a person who has entered into an agreement with
the Company to effect a transaction described in (i) above) whose election by
the Board or nomination for election by the Company's stockholders was approved
by a vote of at least two-thirds ( 2/3) of the Directors then still in office
who either were Directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any reason to
constitute a majority thereof.
SECTION 13. AMENDMENTS AND TERMINATION. The Committee may amend, alter or
discontinue the Plan, but no amendment, alteration, or discontinuation shall be
made that would impair the rights of a Participant under an Award theretofore
granted, without the Participant's consent, or that without the approval of the
Company's stockholders as required by applicable law would:
(a) except as is provided in Section 4(b) or 11(d) of the Plan,
increase the total number of Shares reserved for the purposes of the Plan;
(b) change the Employees or class of Employees eligible to participate
in the Plan; or
(c) change in any way the Shares provided for in Section 11 of the
Plan.
The Committee may amend the terms of any Award theretofore granted (except
Options granted pursuant to Section 11 hereof), prospectively or retroactively,
but no such amendment shall impair the rights of any Participant without his
consent. The Committee may also substitute new Awards for Awards previously
granted to Participants, including without limitation previously granted Options
having Fair Market Value or higher option prices.
SECTION 14. GENERAL PROVISIONS.
(a) At the sole discretion of the Committee at the time of grant, Awards
may be assignable or transferable by a Participant or a Non-Employee Director;
provided that no Award shall be assignable or transferable unless the exercise
of such Award and subsequent sale may be covered by a Registration Statement on
Form S-8.
(b) The term of each Award shall be for such period of months or years from
the date of its grant as may be determined by the Committee; provided that in no
event shall the term of any Incentive Stock Option, or any Stock Appreciation
Right related to any Incentive Stock Option, exceed a period of ten (10) years
from the date of its grant; provided further that in no event shall the term of
any Incentive Stock Option, or any Stock Appreciation Right related to any
Incentive Stock Option granted to a Ten Percent Stockholder exceed a period of
five (5) years from the date of its grant.
(c) Nothing in this Plan shall confer upon any Employee or Participant any
right to continue in the employ of the Company or any Affiliate or interfere in
any way with the right of any Company or any Affiliate to terminate his or her
employment at any time. No Employee or Participant shall have any claim to be
granted any Award under the Plan and there is no obligation for uniformity of
treatment of Employees or Participants under the Plan.
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(d) The prospective recipient of any Award under the Plan 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 shall have
executed an Award Agreement or other instrument evidencing the Award and
delivered a fully executed copy thereof to the Company, and otherwise complied
with the then applicable terms and conditions.
(e) Subject to Section 13 hereof, the Committee shall be authorized to make
adjustments in performance award standards or in the terms and conditions of
other Awards in recognition of unusual or nonrecurring events affecting the
Company or its financial statements or changes in applicable laws, regulations
or accounting principles. The Committee may correct any defect, supply any
omission or reconcile any inconsistency in the Plan or any Award in the manner
and to the extent it shall deem desirable to carry it into effect. In the event
the Company shall assume outstanding employee benefit awards or the right or
obligation to make future such awards in connection with the acquisition of
another corporation or business entity, the Committee may, in its discretion,
make such adjustments in the terms of Awards under the Plan as it shall deem
appropriate. Notwithstanding the above, the Committee shall not have the right
to make any adjustments in the terms or conditions of Shares granted pursuant to
Section 11 hereof.
(f) The Committee shall have full power and authority to determine any
other type and form of Award beyond those enumerated above to grant a
Participant for the furtherance of the purposes of the Plan.
(g) The Committee shall have full power and authority to determine whether,
to what extent and under what circumstances any Award (other than Options
granted pursuant to Section 11 hereof) shall be canceled or suspended. In
particular, but without limitation, all outstanding Awards to any Participant
shall be canceled if the Participant, without the consent of the Committee,
while employed by the Company or after termination of such employment, becomes
associated with, employed by, renders services to, or owns any interest in
(other than any nonsubstantial interest, as determined by the Committee), any
business that is in competition with the Company or with any business in which
the Company has a substantial interest as determined by the Committee.
(h) All certificates for Shares delivered under the Plan pursuant to any
Award shall be subject to such stock-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 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.
(i) Subject to the provisions of this Plan and any Award Agreement, the
recipient of an Award may, if so determined by the Committee, be entitled to
receive, currently or on a deferred basis, interest or dividends, or interest or
Dividend Equivalents, with respect to the number of Shares covered by the Award,
as determined by the Committee, in its sole discretion, and the Committee may
provide that such amounts (if any) shall be deemed to have been reinvested in
additional Shares or otherwise reinvested.
(j) As circumstances may from time to time require, the Committee may in
its sole discretion make available to Participants loans for the purpose of
exercising Options.
(k) The Company shall be authorized to withhold from any Award granted or
payment due under the Plan the amount of withholding taxes due with respect to
an Award or payment hereunder and to take such other action as may be necessary
in the opinion of the Company to satisfy all obligations for the payment of such
taxes. The Company shall also be authorized to accept the delivery of shares by
a Participant in payment for the withholding of federal, state and local taxes
(but not for social security and Medicare taxes) up to the Participant's
marginal tax rate.
(l) Nothing contained in this Plan shall prevent the Board of Directors
from adopting other or additional compensation arrangements, subject to
stockholder approval if such approval is required; and such arrangements may be
either generally applicable or applicable only in specific cases.
(m) The validity, construction, and effect of the Plan and any rules and
regulations relating to the Plan shall be determined in accordance with the laws
of the State of Connecticut and applicable Federal law.
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(n) If any provision of this Plan is or becomes or is deemed invalid,
illegal or unenforceable in any jurisdiction, or would disqualify the Plan or
any Award under any law deemed applicable by the Committee, such provision shall
be construed or deemed amended to conform to applicable laws or if it cannot be
construed or deemed amended without, in the determination of the Committee,
materially altering the intent of the Plan, it shall be stricken and the
remainder of the Plan shall remain in full force and effect.
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