1
EXHIBIT 10.8
FIRST WAVE MARINE, INC.
CERTIFICATE
I, David B. Ammons, Secretary of First Wave Marine, Inc., having in my
custody and possession the corporate records of said corporation, do hereby
certify that attached hereto is a true and correct copy of the First Wave
Marine, Inc. Amended and Restated 1997 Incentive Equity Plan as in effect as of
December 30, 1997.
WITNESS my hand this 30th day of December, 1997
/s/ David B. Ammons
-------------------------------
As Aforesaid
Page 1 of 14
2
FIRST WAVE MARINE, INC.
AMENDED AND RESTATED 1997 INCENTIVE EQUITY PLAN
SECTION 1
GENERAL
1.1. Purpose. The Amended and Restated 1997 Incentive Equity Plan
(the "Plan") has been established by First Wave Marine, Inc. (the "Company") to
(i) attract and retain persons eligible to participate in the Plan; (ii)
motivate Participants, by means of appropriate incentives, to achieve
long-range goals; (iii) provide incentive compensation opportunities that are
competitive with those of other similar companies; and (iv) further identify
Participants' interests with those of the Company's other shareholders through
compensation that is based on the Company's common stock; and thereby promote
the long-term financial interest of the Company and the Related Companies,
including the growth in value of the Company's equity and enhancement of
long-term shareholder return.
1.2. Participation. Subject to the terms and conditions of the
Plan, the Committee shall determine and designate, from time to time, from
among the Eligible Employees, those persons who will be granted one or more
Awards under the Plan, and thereby become "Participants" in the Plan. In the
discretion of the Committee, a Participant may be granted any Award permitted
under the provisions of the Plan, and more than one Award may be granted to a
Participant. Awards may be granted as alternative to or replacement of awards
outstanding under the Plan, or any other plan or arrangement of the Company or
a Related Company (including a plan or arrangement of a business or entity, all
or a portion of which is acquired by the Company or a Related Company.)
1.3. Operation, Administration, and Definitions. The operation and
administration of the Plan, including the Awards made under the Plan, shall be
subject to the provisions of Section 4 (relating to operation and
administration). Capitalized terms in the Plan shall be defined as set forth
in the Plan (including the definition provisions of Section 7 of the Plan).
SECTION 2
2.1. Options and SARs Definitions.
(a) The grant of an "Option" entitles the Participant to
purchase shares of Stock at an Exercise Price
established by the Committee. Options granted under
this Section 2 may be either Incentive Stock Options
or Non-Qualified Stock Options, as determined in the
discretion of the Committee. An "Incentive Stock
Option" is an Option that is intended to satisfy the
requirements applicable to an "incentive stock
option" described in Section 422(b) of the Code. A
"Non-Qualified Option" is an Option that is not
intended to be an
Page 2 of 14
3
"incentive stock option" as that term is described in
Section 422(b) of the Code. To the extent that the
aggregate fair market value of Stock with respect to
which Incentive Stock Options are exercisable for the
first time by the Participant during any calendar
year (under all plans of the Company and all Related
Companies) exceeds $100,000, such options shall be
treated as Non-Qualified Stock Options, to the extent
required by section 422 of the Code.
(b) A stock appreciation right (an "SAR") entitles the
Participant to receive, in cash or Stock (as
determined in accordance with Subsection 2.5), value
equal to 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; over (b) an Exercise
Price established by the Committee.
2.2. Exercise Price. The "Exercise Price" of each Option and SAR
granted under this Section 2 shall be established by the Committee or shall be
determined by a method established by the Committee at the time the Option or
SAR is granted; except that the Exercise Price shall not be less than 100% of
the Fair Market Value of a share of Stock as of the Pricing Date. For purposes
of the preceding sentence, the "Pricing Date" shall be the date on which the
Option or SAR is granted.
2.3. Exercise. An Option and an SAR shall be exercisable in
accordance with such terms and conditions and during such periods as may be
established by the Committee.
No Option may be exercised by a Participant: (i) prior to the date on
which the Participant completes one continuous year of employment with the
Company, or any Related Company, after the date as of which the Option is
granted (provided, however, that the Committee may permit earlier exercise
following the Participant's Date of Termination by reason of death or
Disability or a change in control of the Company); or (ii) after the Expiration
Date applicable to that Option.
2.4 Expiration Date. The "Expiration Date" with respect to an
Option means the date established as the Expiration Date by the Committee at
the time of the grant; provided, however, that the Expiration Date with respect
to any Option shall not be later than the earliest to occur of:
(a) the ten-year anniversary of the date on which the
Option is granted;
(b) if the Participant's Date of Termination occurs by
reason of death or Disability, the one-year
anniversary of such Date of Termination; or
(c) if the Participant's Date of Termination occurs by
reason of Employment Separation, the one- year
anniversary of such Date of Termination;
Page 3 of 14
4
2.5. Payment of Option Exercise Price. The payment of the Exercise
Price of an Option granted under this Section 2 shall be subject to the
following:
(a) Subject to the following provisions of this
Subsection 2.5, the full Exercise Price for shares of
Stock purchased upon the exercise of any Option shall
be paid at the time of such exercise (except that, in
the case of an exercise arrangement approved by the
Committee and described in Paragraph 2.5(c), payment
may be made as soon as practicable after the
exercise).
(b) The Exercise Price shall be payable in cash or by
tendering shares of Stock (by either actual delivery
of shares or by attestation, with such shares valued
at Fair Market Value as of the day of exercise), or
in any combination thereof, as determined by the
Committee.
(c) The Committee may permit a Participant to elect to
pay the Exercise Price upon the exercise of an Option
by authorizing a third party to sell shares of Stock
(or a sufficient portion of the shares) acquired upon
exercise of the Option and remit to the Company a
sufficient portion of the sale proceeds to pay the
entire Exercise Price and any tax withholding
resulting from such exercise.
2.6. Settlement of Award. Distribution following exercise of an
Option or SAR, and shares of Stock distributed pursuant to such exercise, shall
be subject to such conditions, restrictions and contingencies as the Committee
may establish. Settlement of SARs may be made in shares of Stock (valued at
their Fair Market Value at the time of exercise), in cash, or in a combination
thereof, as determined in the discretion of the Committee. The Committee, in
its discretion, may impose such conditions, restrictions and contingencies with
respect to shares of Stock acquired pursuant to the exercise of an Option or an
SAR as the Committee determines to be desirable.
SECTION 3
OTHER STOCK AWARDS
3.1. Stock Award Definition. A "Stock Award" is a grant of shares
of Stock or of a right to receive shares of Stock (or their cash equivalent or
a combination of both) in the future.
3.2. Restrictions on Stock Awards. Each Stock Award shall be
subject to such conditions, restrictions and contingencies as the Committee
shall determine. These may include continuous service and/or the achievement
of Performance Measures. The "Performance Measures" that may be used by the
Committee for such Awards shall be measured by a single goal criterion or
multiple goal criteria with the measurement based on absolute Company or
business unit performance and/or on performance as compared with that of other
similar companies. If the
Page 4 of 14
5
right to become vested in a Stock Award granted under this Section 3 is
conditioned on the completion of a specified period of service with the Company
and the Related Companies, without achievement of Performance Measures or other
objectives being required as a condition of vesting, then the required period
of service for vesting shall be not less than one year (subject to acceleration
of vesting, to the extent permitted by the Committee, in the event of the
Participant's death or Disability or a change in control of the Company).
SECTION 4
OPERATION AND ADMINISTRATION
4.1. Effective Date. Subject to the approval of the shareholders
of the Company at the Company's 1997 annual meeting of its shareholders, the
Plan shall be effective as of November 20, 1997 (the "Effective Date");
provided, however, that, to the extent that Awards are made under the Plan
prior to its approval by shareholders, they shall be contingent on approval of
the Plan by the shareholders of the Company. The Plan shall be unlimited in
duration and, in the event of Plan termination, shall remain in effect as long
as any Awards under it are outstanding; provided, however, that, to the extent
required by the Code, no Incentive Stock Options may be granted under the Plan
on a date that is more than ten years from the date the Plan is adopted or, if
earlier, the date the Plan is approved by shareholders.
4.2. Shares Subject to Plan.
(a) (i) Subject to the following provisions of this
Subsection 4.2, the maximum number shares of
Stock that may be delivered to Participants
and their beneficiaries under the Plan shall
be 1,800,000 shares of Stock.
(ii) Any shares of Stock granted under the Plan
that are forfeited because of the failure to
meet an Award contingency or condition shall
again be available for delivery pursuant to
new Awards granted under the Plan. To the
extent any shares of Stock covered by an
Award are not delivered to a Participant or
beneficiary because the Award is forfeited or
canceled, or the shares of Stock are not
delivered because the Award is settled in
cash, such shares shall not be deemed to have
been delivered for purposes of determining
the maximum number of shares of Stock
available for delivery under the Plan.
(iii) If the Exercise Price of any stock option
granted under the Plan is satisfied by
tendering shares of Stock to the Company (by
either actual delivery or by attestation),
only the number of shares of Stock issued
net of the shares of Stock tendered shall be
deemed delivered
Page 5 of 14
6
for purposes of determining the maximum
number of shares of Stock available for
delivery under the Plan.
(iv) Shares of Stock delivered under the Plan in
settlement, assumption or substitution of
outstanding awards (or obligations to grant
future awards) under the plans or
arrangements of another entity shall not
reduce the maximum number of shares of Stock
available for delivery under the Plan, to the
extent that such settlement, assumption or
substitution is as a result of the Company or
a Related Company acquiring another entity
(or an interest in another entity).
(b) Subject to Paragraph 4.2(c), the following additional
maximums are imposed under the Plan.
(i) The maximum number of shares of Stock that
may be issued upon exercise of Options
intended to be Incentive Stock Options shall
be 300,000 shares.
(ii) The maximum number of shares of Stock that
may be issued in conjunction with Awards
granted pursuant to Section 3 (relating to
Stock Awards) shall be 300,000 shares.
(iii) The maximum number of shares that may be
covered by Awards under this Plan granted to
any one individual pursuant to Section 2
(relating to Options and SARs) shall be
300,000 shares during any three consecutive
calendar years.
(iv) The maximum payment that can be made for
awards granted to any one individual pursuant
to Section 3 (relating to Stock Awards) shall
be $200,000 for any single or combined
performance goals established for any annual
performance period. If an Award granted
under Section 3 is, at the time of grant,
denominated in shares, the value of the
shares of Stock for determining this maximum
individual payment amount will be the Fair
Market Value of a share of Stock on the first
day of the applicable performance period.
(c) In the event of a corporate transaction involving the
Company (including, without limitation, any stock
dividend, stock split, extraordinary cash dividend,
recapitalization, reorganization, merger,
consolidation, split-up, spin-off, combination or
exchange of shares), the Committee may adjust Awards
to preserve the benefits or potential benefits of the
Awards. Action by the Committee may include
adjustment of: (i) the number and kind of shares
which mya be delivered under the Plan; (ii) the
number and kind of
Page 6 of 14
7
shares subject to outstanding Awards; and (iii) the
Exercise Price of outstanding Options and SARs; as
well as any other adjustments that the Committee
determines to be equitable.
4.3. Limit on Distribution. Distribution of shares of Stock or
other amounts under the Plan shall be subject to the following:
(a) Notwithstanding any other provision of the Plan, the
Company shall have no liability for failure to
deliver any shares of Stock under the Plan or make
any other distribution of benefits under the Plan
unless such delivery or distribution would comply
with all applicable laws (including, without
limitation, the requirements of the Securities Act of
1933), and the applicable requirements of any
securities exchange or similar entity.
(b) To the extent that the Plan provides for issuance of
stock certificates to reflect the issuance of shares
of Stock, the issuance may be effected on a
non-certificated basis, to the extent not prohibited
by applicable law or the applicable rules of any
stock exchange.
4.4. Tax Withholding. Whenever the Company proposes or is required
to distribute Stock under the Plan, the Company may require the recipient to
remit to the Company an amount sufficient to satisfy any Federal, state and
local tax withholding requirements prior to the delivery of any certificate for
such shares or, in the discretion of the Committee, the Company may withhold
from the shares to be delivered shares sufficient to satisfy all or a portion
of such tax withholding requirements. Whenever, under the Plan, payments are
to be made in cash, such payments may be net of an amount sufficient to satisfy
any Federal, state and local tax withholding requirements.
4.5. Payment Shares. Subject to the overall limitation on the
number of shares of Stock that may be delivered under the Plan, the Committee
may use available shares of Stock under the Plan as the form of payment for
compensation, grants or rights earned or due under any other compensation plans
or arrangements of the Company or a Related Company.
4.6. Dividends and Dividend Equivalents. An Award may provide the
Participant with the right to receive dividends or dividend equivalent payments
with respect to Stock which may be either paid currently or credited to an
account for the Participant and may be settled in cash or Stock as determined
by the Committee. Any such settlements, and any such crediting of dividends or
dividend equivalents or reinvestment in shares of Stock, may be subject to such
conditions, restrictions and contingencies as the Committee shall establish,
including the reinvestment of such credited amounts in Stock equivalents.
4.7. Payments. Awards may be settled through cash payments, the
delivery of shares of Stock, the granting of replacement Awards, or combination
thereof as the Committee shall determine. Any Award settlement, including
payment deferrals, may be subject to such
Page 7 of 14
8
conditions, restrictions and contingencies as the Committee shall determine.
The Committee may permit or require the deferral of any Award payment, subject
to such rules and procedures as it may establish, which may include provisions
for the payment or crediting of interest, or dividend equivalents, including
converting such credits into deferred Stock equivalents. Each Related Company
shall be liable for payment of cash due under the Plan with respect to any
Participant to the extent that such benefits are attributable to the services
rendered for that Related Company by the Participant. Any disputes relating to
liability of a Related Company for cash payments shall be resolved by the
Committee.
4.8. Proceeds. All cash proceeds from the purchase of Stock under
this Plan shall constitute part of the unrestricted general funds of the
Company, and may be used for such corporate purposes as the Company, in its
sole and exclusive discretion, may determine from time to time.
4.9. Transferability. The Committee may, in its discretion,
authorize all or a portion of any Award (other than Incentive Stock Options) to
be granted on terms which permit transfer by the Participant to (i) the spouse,
parents, children, stepchildren, adoptive relationships, sisters, brothers or
grandchildren of the Participant, (ii) a trust or trusts for the exclusive
benefit of the spouse, parents, children, stepchildren, adoptive relationships,
sisters, brothers or grandchildren of the Participant, or (iii) a partnership
or limited liability company in which the spouse, parents, children,
stepchildren, adoptive relationships, sisters, brothers or grandchildren of the
Participant are the only partners or members, as applicable; provided in each
case that (x) there may be no consideration for any such transfer (other than
in the case of Clause (iii), units in the partnership or membership interests
in the limited liability company), (y) the agreement pursuant to which such
Awards are granted must be approved by the Committee, and must expressly
provide for transferability in a manner consistent with this Subsection, and
(z) subsequent transfers of transferred Awards shall be prohibited except those
made in accordance with this Subsection or by will or by the laws of descent
and distribution. Following transfer, any such Awards shall continue to be
subject to the same terms and conditions as were applicable immediately prior
to transfer. The provisions with respect to termination set forth in
Subsection 2.4 shall continue to apply with respect to the original
Participant, in which event the Awards shall be exercisable by the transferee
only to the extent and for the periods specified herein. The original
Participant will remain subject to withholding taxes upon exercise of any such
Awards by the transferee. The Company shall have no obligation whatsoever to
provide notice to any transferee of any matter, including without limitation,
early termination of an Award on account of termination of the original option
pursuant to Subsection 2.4.
Except as set forth above and in the applicable agreement, no Awards
shall be voluntarily or involuntarily assigned, sold, transferred, pledged,
mortgaged or encumbered by the Participant otherwise than by will or by laws of
descent and distribution, and all Awards shall be exercisable, during the
Participant's lifetime, only by the Participant. At the request of a
Participant, Stock purchased upon exercise of an Option may be issued or
transferred into the name of the Participant and another person jointly with
rights of survivorship. All Awards issued under this Plan, and all rights
under this Plan, shall not be subject to involuntary seizure, or other process
by any creditor
Page 8 of 14
9
of any holder of any such Awards, and the Company shall not honor or recognize
any such involuntary seizure or other such process. Except as set forth above,
any attempted assignment, sale, transfer, pledge, mortgage or encumbrance
("Assignment") or any attempted involuntary seizure or other process shall be
null, void and without any effect whatsoever. Should it be determined, by a
court of law or otherwise, that any such Assignment or involuntary seizure or
other process is effective, then all Awards for which such is effective shall
terminate and be forfeited as of the moment of such involuntary seizure or
other process, and shall thereafter be null, void and without any effect
whatsoever.
4.10. Form and Time of Elections. Unless otherwise specified
herein, each election required or permitted to be made by any Participant or
other person entitled to benefits under the Plan, and any permitted
modification, or revocation thereof, shall be in writing filed with the
Committee at such times, in such form, and subject to such restrictions and
limitations, not inconsistent with the terms of the Plan, as the Committee
shall require.
4.11. Agreement With Company. At the time of an Award to a
Participant under the Plan, the Committee may require a Participant to enter
into an agreement with the Company (the "Agreement") in a form specified by the
Committee, agreeing to the terms and conditions of the Plan and to such
additional terms and conditions, not inconsistent with the Plan, as the
Committee may, in its sole discretion, prescribe.
4.12. Limitation of Implied Rights.
(a) Neither a Participant nor any other person shall, by
reason of the Plan, acquire any right in or title to
any assets, funds or property of the Company or any
Related Company whatsoever, including, without
limitation, any specific funds, assets, or other
property which the Company or any Related Company, in
their sole discretion, may set aside in anticipation
of a liability under the Plan. A Participant shall
have only a contractual right to the Stock or
amounts, if any, payable under the Plan, unsecured by
any assets of the Company or any Related Company.
Nothing contained in the Plan shall constitute a
guarantee that the assets of such companies shall be
sufficient to pay any benefits to any person.
(b) The Plan does not constitute a contract of
employment, and selection as a Participant will not
give any employee the right to be retained in the
employ of the Company or any Related Company, nor any
right or claim to any benefit under the Plan, unless
such right or claim has specifically accrued under
the terms of the Plan. Except as otherwise provided
in the Plan, no Award under the Plan shall confer
upon the holder thereof any right as a shareholder of
the Company prior to the date on which the individual
fulfills all conditions for receipt of such rights.
Page 9 of 14
10
4.13. Evidence. Evidence required of anyone under the Plan may be
by certificate, affidavit, document or other information which the person
acting on it considers pertinent and reliable, and signed, made or presented by
the proper party or parties.
4.14. Action by Company or Related Company. Any action required or
permitted to be taken by the Company or any Related Company shall be by
resolution of its board of directors, or by action of one or more members of
the board (including a committee of the board) who are duly authorized to act
for the board, or (except to the extent prohibited by applicable law or
applicable rules of any stock exchange) by a duly authorized officer of the
Company. No failure on the part of the Company or the Board to exercise, and
no delay on the part of the Company or the Board in exercising any right or
power established hereunder shall operate as a waiver of such right or power.
4.15. Gender and Number. Where the context admits, words in any
gender shall include any other gender, words in the singular shall include the
plural and the plural shall include the singular.
4.16 Headings. The various headings and captions in this Plan are
for convenience only and shall not affect the meaning, construction or
interpretation of this Plan.
SECTION 5
COMMITTEE
5.1. Administration. The authority to control and manage the
operation and administration of the Plan shall be vested in a committee (the
"Committee") in accordance with this Section 5.
5.2. Selection of Committee. The Committee shall be selected by
the Board, and shall consist of two or more members of the Board. If the Board
has not selected a Committee, the Committee shall consist of the entire Board
of Directors.
5.3. Powers of Committee. The authority to manage and control the
operation and administration of the Plan shall be vested in the Committee,
subject to the following:
(a) Subject to the provisions of the Plan, the Committee
will have the authority and discretion to select from
among the Eligible Employees those persons who shall
receive Awards, to determine the time or times of
receipt, to determine the types of Awards and the
number of shares covered by the Awards, to establish
the terms, conditions, performance criteria,
restrictions, and other provisions of such Awards,
and (subject to the restrictions imposed by Section
6) to cancel or suspend Awards. In making such Award
determinations, the Committee may take into account
the
Page 10 of 14
11
nature of services rendered by the individual, the
individual's present and potential contribution to
the Company's success and such other factors as the
Committee deems relevant.
(b) Subject to the provisions of the Plan, the Committee
will have the authority and discretion to determine
the extent to which Awards under the Plan will be
structured to conform to the requirements applicable
to performance-based compensation as described in
Code Section 162(m), and to take such action,
establish such procedures, and impose such
restrictions at the time such Awards are granted as
the Committee determines to be necessary or
appropriate to conform to such requirements.
(c) The Committee will have the authority and discretion
to establish terms and conditions of Awards as the
Committee determines to be necessary or appropriate
to conform to applicable requirements or practices of
jurisdictions outside of the United States.
(d) The Committee will have the authority and discretion
to interpret the Plan, to establish, amend, and
rescind any rules and regulations relating to the
Plan, to determine the terms and provisions of any
agreements made pursuant to the Plan, and to make all
other determinations that may be necessary or
advisable for the administration of the Plan.
(e) Any interpretation of the Plan by the Committee and
any decision made by it under the Plan is final and
binding.
(f) Except as otherwise expressly provided in the Plan,
where the Committee is authorized to make a
determination with respect to any Award, such
determination shall be made at the time the Award is
made, except that the Committee may reserve the
authority to have such determination made by the
Committee in the future (but only if such reservation
is made at the time the Award is granted and is
expressly stated in the Agreement reflecting the
Award).
(g) In controlling and managing the operation and
administration of the Plan, the Committee shall act
by a majority of its then members, by meeting or by
writing filed without a meeting. The Committee shall
maintain and keep adequate records concerning the
Plan and concerning its proceedings and acts in such
form and detail as the Committee may decide.
5.4. Delegation by Committee. Except to the extent prohibited by
applicable law or the applicable rules of a stock exchange, the Committee may
allocate all or any portion of its responsibilities and powers to any one or
more of its members and may delegate all or any part
Page 11 of 14
12
of its responsibilities and powers to any person or persons selected by it.
Any such allocation or delegation may be revoked by the Committee at any time.
5.5. Information to be Furnished to Committee. The Company and
Related Companies shall furnish the Committee with such data and information as
may be required for it to discharge its duties. The records of the Company and
Related Companies as to an employee's or Participant's employment, termination
of employment, leave of absence, reemployment and compensation shall be
conclusive on all persons unless determined to be incorrect. Participants and
other persons entitled to benefits under the Plan must furnish the Committee
such evidence, data or information as the Committee considers desirable to
carry out the terms of the Plan.
SECTION 6
AMENDMENT AND TERMINATION
The Board may, at any time, amend or terminate the Plan, provided
that, subject to Subsection 4.2 (relating to certain adjustments to shares), no
amendment or termination may (i) in the absence of written consent to the
change by the affected Participant (or, if the Participant is not then living,
the affected beneficiary), adversely affect the rights of any Participant or
beneficiary under any Award granted under the Plan prior to the date such
amendment is adopted by the Board or (ii) without the approval of the Company's
stockholders, increase (except as provided expressly in this Plan) the total
number of shares reserved for purposes of the Plan.
SECTION 7
DEFINED TERMS AND MISCELLANEOUS
7.1 For purposes of the Plan, the terms listed below shall be
defined as follows:
(a) Award. The term "Award" shall mean any award or
benefit granted to any Participant under the Plan,
including, without limitation, the grant of Options,
SARs, and Stock Awards.
(b) Board. The term "Board" shall mean the Board of
Directors of the Company.
(c) Code. The term "Code" means the Internal Revenue
Code of 1986, as amended. A reference to any
provision of the Code shall include reference to any
successor provision of the Code.
Page 12 of 14
13
(d) Date of Termination. The Participant's "Date of
Termination" shall be the first day occurring on or
after the date of Participant's Agreement, on which
the Participant's employment with the Company and all
Related Companies terminates for any reason (death,
Disability or Employment Separation); provided that a
termination of employment shall not be deemed to
occur by reason of a transfer of the Participant
between the Company and a Related Company or between
two Related Companies; and further provided that the
Participant's employment shall not be considered
terminated while the Participant is on a leave of
absence from the Company or a Related Company
approved by the Participant's employer. If, as a
result of a sale or other transaction, the
Participant's employer ceases to be the Company or a
Related Company, the occurrence of such transaction
shall be treated as the Participant's Date of
Termination caused by the Participant being
discharged by the employer.
(e) Disability. The term "Disability" means the
permanent and total disability of Participant as
determined by the Committee.
(f) Eligible Employee. The term "Eligible Employee"
shall mean any employee of the Company or a Related
Company or an individual to whom a bona fide written
offer of employment from the Company or a Related
Company, has been extended.
(g) Employment Separation. The term "Employment
Separation" means Participant's voluntary resignation
from employment, including retirement, or the
termination of a Participant from employment of the
Company or a Related Company.
(h) Fair Market Value. The "Fair Market Value" of a
share of Stock means the closing price of the Stock
on such date as reported on the principal United
States securities exchange on which the Stock is
listed, or if the Stock is not so listed, the closing
price as quoted on the NASDAQ National Market System,
or if the Stock is not so listed or quoted, the
closing bid as quoted on the NASDAQ over-the-counter
market; provided, that if no such prices are so
reported or quoted on that date or if, in the
discretion of the Committee, another means of
determining the Fair Market Value of a share of Stock
at such date is deemed necessary or advisable, the
Fair Market Value shall be determined in good faith
by the Committee.
(i) Related Company. The term "Related Company"
means (i) any corporation, partnership, joint venture
or other entity during any period in which it owns,
directly or indirectly, at least fifty percent of the
voting power of all classes of stock of the Company
(or successor to the Company) entitled to vote; and
(ii) any corporation, partnership, joint venture or
other
Page 13 of 14
14
entity during any period in which at least a fifty
percent voting or profits interest is owned, directly
or indirectly, by the Company, by an entity that is a
successor to the Company, or by an entity that is a
Related Company by reason of clause (i) next above.
(j) Stock. The term "Stock" shall mean shares of common
stock of the Company.
Page 14 of 14