EXHIBIT 99
BROWN-FORMAN NON-EMPLOYEE DIRECTORS' COMPENSATION PLAN
Brown-Forman Corporation
July 24, 1997
Unless the context clearly requires otherwise, references to "Sections" and
"Articles" are to sections and articles of this plan, and capitalized terms have
the meaning assigned to them below. All references to statutes or regulations
mean those statutes or regulations as amended from time to time, and any
successors to those statutes or regulations.
ARTICLE 1 - ESTABLISHMENT, OBJECTIVES, AND DURATION
1.1 ESTABLISHMENT: Brown-Forman Corporation, a Delaware corporation (the
"Company"), hereby establishes a compensation plan to be known as the
"Brown-Forman Non-Employee Directors' Compensation Plan" (the "Plan"), as
set out in this document. The Plan permits the Plan Administrator to
grant Awards (as defined below).
1.2 OBJECTIVES: The Plan's objectives are:
(a) to compensate the Company's Non-Employee Directors using the
Company's common stock to improve the linkage between the interests of
the Directors and those of the Company's shareholders;
(b) to provide, in conjunction with cash retainers and meeting fees,
appropriate compensation for Board service; and
(c) to allow Directors to share in the Company's success.
1.3 DURATION: Subject to the Board's right to amend or terminate the
Plan at any time pursuant to Article 11, the Plan shall take effect as of
the Effective Date, and remain in effect indefinitely.
ARTICLE 2 - DEFINITIONS
Whenever used in the Plan, the following terms shall have the following
meanings:
2.1 "Award" means, individually or collectively, a grant under this Plan.
2.2 "Award Agreement" means an agreement entered into by the Company and a
Participant setting forth the terms of Awards granted under this Plan.
2.3 "Award Opportunity" means the total Award which a Participant may earn
under the Plan, as established by the Plan Administrator.
2.4 "Beneficial Owner" or "Beneficial Ownership" shall have the meaning
ascribed to such term in Rule 13d-3 under the Exchange Act.
2.5 "Board" means the Company's board of directors.
2.6 "Change in Control" of the Company means, and shall be deemed to have
occurred upon, any of the following events:
(a) a merger, consolidation, or other reorganization of the Company
in which one or both classes of outstanding Common Stock are converted
into or exchanged for a different class of securities of the Company,
a class of securities of any other issuer (other than a direct or
indirect wholly owned Company subsidiary), cash, or other property;
(b) a sale, lease, or exchange of all or substantially all of the
Company's assets to any
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other corporation or entity (other than a direct or indirect wholly
owned Company subsidiary);
(c) the adoption by the Company's shareholders of a plan of
liquidation and dissolution; or
(d) as a result of or in connection with a contested election of
directors, the persons who were Directors before such election cease
to comprise a Board majority.
2.7 "Code" means the Internal Revenue Code of 1986.
2.8 "Company" means Brown-Forman Corporation, a Delaware corporation, and the
Company's Subsidiaries, as well as any successor to any of such entities
as provided in Section 14.4.
2.9 "Director" means any individual who is a Board member.
2.10 "Disability" shall mean a disability that the Plan Administrator has
reason to believe will be of extended duration, and that results in the
Non-Employee Director relinquishing his/her position on the Board of
Directors.
2.11 "Effective Date" means July 24, 1997.
2.12 "Employee" means any non-union employee of the Company.
2.13 "Exchange Act" means the Securities Exchange Act of 1934.
2.14 "Fair Market Value" means the closing sale price on the principal
securities exchange on which the Shares are traded on the relevant date
(or, if no Shares traded on the relevant date, the last previous day on
which a sale was reported).
2.15 "Freestanding SAR" means an SAR granted independently of any Options, as
described in Section 6.4.
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2.16 "Incentive Stock Option" or "ISO" means an option to buy Shares granted
under Section 6.3 which is designated an Incentive Stock Option and which
is intended to meet the requirements of Code Section 422.
2.17 "Indexed Option" means an Option with an exercise price which either
increases by a fixed percentage over time or changes by reference to a
published index.
2.18 "Insider" means an individual who is, on the relevant date, an officer,
Director, or 10% beneficial owner of any class of the Company's equity
securities that is registered pursuant to Section 12 of the Exchange Act,
all as defined under Section 16 of the Exchange Act.
2.19 "Non-employee Director" means a Director who is not an Employee.
2.20 "Nonqualified Stock Option" or "NQSO" means an option to buy
Shares granted under Section 6.3 which is not intended to meet the
requirements of Code Section 422.
2.21 "Option" means an Incentive Stock Option, Indexed Option or a
Nonqualified Stock Option, as described in Section 6.3.
2.22 "Option Price" means the price at which a Participant may buy a
Share under an Option.
2.23 "Participant" means a Non-Employee Director who has outstanding an Award
granted under the Plan. The term "Participant" shall not include Employee
Directors.
2.24 "Performance Period" means such period of time as determined by the Plan
Administrator.
2.25 "Period of Restriction" means the period during which the transfer of
Shares of Restricted Stock is limited in some way (based on the passage
of time, the achievement of performance goals, or upon the
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occurrence of other events as determined by the Plan Administrator), and
during which the Shares are subject to a substantial risk of forfeiture,
as provided in Section 6.2.
2.26 "Person" shall have the meaning ascribed to such term in Section 3(a)(9)
of the Exchange Act and used in Sections 13(d) and 14(d) thereof,
including a "group" as defined in Section 13(d) thereof.
2.27 "Plan Administrator" means such persons or committees appointed by the
Board or the Compensation Committee to administer the Plan with respect
to grants of Awards.
2.28 "Plan Year" means the Company's Fiscal Year.
2.29 "Restricted Stock" means an Award granted to a Participant pursuant to
Section 6.2.
2.30 "Retirement" shall mean the relinquishment of the Director's position on
the Board on or after age 60.
2.31 "Shares" means the shares of the Company's Class A or Class B Common
Stock, or any combination of Class A or Class B Common Stock, as the Plan
Administrator determines.
2.32 "Stock Appreciation Right" or "SAR" means an Award, granted alone or in
connection with a related Option, designated as an SAR, pursuant to
Section 6.4.
2.33 "Subsidiary" means any corporation, partnership, joint venture,
affiliate, or other entity in which the Company has a majority voting
interest, and which the Plan Administrator designates as a participating
entity in the Plan.
2.34 "Tandem SAR" means an SAR granted in connection with a related Option
pursuant to Section 6.4. A holder exercising a Tandem SAR must forfeit
the right to buy a Share under the related Option; conversely, a holder
of
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a Tandem SAR buying a Share under the Option will have the Tandem SAR
canceled proportionately.
ARTICLE 3 - ADMINISTRATION
3.1 THE PLAN ADMINISTRATOR:
(a) Disinterested Administration: For Non-Employee Directors, the Plan
Administrator shall be a committee comprising two or more Employee
Directors. If for any reason such committee does not qualify to
administer the Plan as contemplated under any Regulation or rule of
law, the Board may appoint a new committee so as to comply with such
regulation or rule.
(b) Code Compliance: Awards to Non-Employee Directors are intended to
qualify under appropriate section of the Code.
3.2 AUTHORITY: Except as limited by law or by the Company's Certificate of
Incorporation or By-laws, and subject to the Plan's terms, the Plan
Administrator shall have full power to:
(a) determine the sizes and types of Awards;
(b) determine the terms and conditions of Awards in a manner
consistent with the Plan;
(c) construe and interpret the Plan and any agreement or instrument
entered into under the Plan;
(d) establish, amend, or waive rules and regulations for the Plan's
administration;
(e) (subject to Article 11) amend the terms and conditions of any
outstanding Award to the extent such terms and conditions are within
the Plan Administrator's discretion;
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(f) determine the length of the Performance Period(s) and vesting
periods; and
(g) make all other determinations which may be necessary or advisable
to administer the Plan as it applies to Employees.
3.3 DECISIONS BINDING: All determinations and decisions made by the Plan
Administrator pursuant to the Plan and all related Board orders and
resolutions shall be final, conclusive, and binding on all persons,
including the Company, its shareholders, Employees, Participants, and their
estates and beneficiaries.
ARTICLE 4 - SHARES SUBJECT TO THE PLAN
No shares are reserved for Plan use. Shares issued under this plan will be
obtained by purchase on the open market.
ARTICLE 5 - ELIGIBILITY AND PARTICIPATION
5.1 EMPLOYEE ELIGIBILITY: No Employee, including Employees who are Directors,
is eligible for participation in this Plan.
5.2 NON-EMPLOYEE DIRECTOR ELIGIBILITY: Directors who are not Employees are
automatically eligible to participate in this Plan.
5.3 ACTUAL PARTICIPATION: The Plan Administrator may from time to time select,
from all eligible Non-Employee Directors, those to whom Awards shall be
granted and shall determine the nature and amount of each Award Opportunity
and Award.
5.4 RIGHTS NOT AFFECTED OR CREATED:
(a) Rights Not Affected: Nothing in the Plan shall interfere with or
limit in any way the Company's right to terminate any Director's
position on the Board at any time, nor confer upon any Participant
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any right to continue as a member or officer of the Board.
(b) No Right to Award: A Non-Employee Director's status confers no
right on that Participant to receive an Award under this Plan, or,
having received any Award, to receive a future Award.
5.5 PRO RATA PLAN YEAR OR PERFORMANCE PERIOD PARTICIPATION: The Plan
Administrator may allow Directors who join the Board after the Plan Year or
Performance Period begins to participate under this Article on a full year
or pro rata basis. Such situations include, but are not limited to:
(a) newly added positions to the Board during a Plan Year; or
(b) the replacement of a Director due to disability, retirement,
death, or other termination or removal from the Board during a Plan
Year.
5.6 AWARD OPPORTUNITIES:
(a) Timing: As soon as practicable in each Plan Year or Performance
Period, the Plan Administrator shall establish an Award Opportunity
for each Participant.
(b) Measures: An Award Opportunity may be a function of one or more
performance measures and goals selected by the Plan Administrator.
5.7 AWARD DETERMINATIONS:
(a) The Award shall be computed for each Participant as determined by
the Plan Administrator.
(b) Award amounts may vary as the Plan Administrator shall, from time
to time, determine, unless otherwise limited by the Plan.
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ARTICLE 6 - AWARDS OF COMMON STOCK
6.1 GENERALLY:
(a) Grant of Awards: Subject to Article 4, the Plan Administrator, at
any time and from time to time, may, in its discretion, grant or award
Options, Restricted Stock, Freestanding SAR's, Tandem SAR's, or any
combination thereof to Participants in such amounts as the Plan
Administrator shall determine. The Plan Administrator may apply
Performance Periods and performance measures, and may set threshold,
target, and maximum goals for each type of Award, as it chooses.
(b) Source of Shares: The source of Shares delivered to Participants
under this Plan shall be limited to Shares purchased by the Company
from time to time for the purpose of funding the operation of this
Plan. The Company shall maintain a separate accounting of Shares
purchased for this purpose.
(c) Termination of Employment: Each Participant's Award Agreement
shall set out the extent to which the Participant may (as the case may
be):
(1) receive unvested Restricted Shares;
(2) exercise Options; or
(3) exercise SAR's
following termination of employment with the Company and/or its
Subsidiaries. Under no circumstances will an Award vest prior to one
year from the date of grant.
Such provisions shall be determined in the Plan Administrator's
sole discretion, shall be included in the Award Agreement entered into
with each Participant, need not be uniform among all Awards
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granted or issued pursuant to this Article, and may reflect
distinctions based on the reasons for termination of employment.
(d) Other Restrictions: Subject to Article 7, the Plan Administrator
may impose such other conditions and/or restrictions on any Long-Term
Incentive Awards granted pursuant to the Plan as the Plan
Administrator deems advisable, including time-based restrictions on
vesting following the attainment of the performance goals, and/or
restrictions under applicable Federal or state securities laws.
6.2 RESTRICTED STOCK:
(a) Award Agreement: Each Restricted Stock grant shall be evidenced
by an Award Agreement that shall specify the Period(s) of Restriction,
the number of Shares of Restricted Stock granted, and such other terms
as the Plan Administrator shall determine.
(b) Non-Transferability: Except as provided in this Article, the
Shares of Restricted Stock granted herein may not be sold,
transferred, pledged, assigned, or otherwise alienated until the end
of the applicable Period of Restriction established by the Plan
Administrator and specified in the Award Agreement, or upon earlier
satisfaction of any other conditions, as specified by the Plan
Administrator and set out in the Award Agreement. During a
Participant's lifetime, only that Participant may exercise any rights
with respect to the Restricted Stock granted to that Participant.
(c) Other Restrictions on Restricted Stock:
(1) The Company shall keep custody of the certificates
representing Shares of Restricted Stock until all conditions
and/or restrictions applicable to such Shares have been
satisfied.
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(2) Except as otherwise provided in this Article, Shares of
Restricted Stock covered by each Restricted Stock grant made
under the Plan shall become freely transferable by the
Participant after the last day of the applicable Period of
Restriction.
(d) Voting Rights: During the Period of Restriction, Participants
holding Shares of Restricted Stock may exercise full voting rights
with respect to those Shares.
(e) Dividends and Other Distributions:
(1) During the Period of Restriction, Participants holding
Shares of Restricted Stock may be credited with regular cash
dividends paid with respect to the underlying Shares while they
are so held. The Plan Administrator may apply any restrictions to
the dividends that it deems appropriate.
(2) If any dividend constitutes a "derivative security" or
an "equity security" pursuant to Rule 16(a) under the Exchange
Act, such dividend shall be subject to a vesting period equal to
the remaining vesting period of the Shares of Restricted Stock
with respect to which the dividend is paid.
6.3 STOCK OPTIONS:
(a) Award Agreement: Each Option grant shall be evidenced by an Award
Agreement that shall specify the Option Price, the Option's duration,
the number of Shares to which the Option pertains, and such other
terms as the Plan Administrator shall determine. The Award Agreement
shall also specify whether the Option is intended to be an ISO,
Indexed Option, or an NQSO, and what Performance Period (if any)
applies. Even if an option is designated as an ISO, it shall be
treated as an NQSO to the extent the Fair Market Value of the
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Shares with respect to which ISO's are exercisable for the first time
by any Participant exceeds $100,000.
(b) Option Price and Duration: The Option Price for each grant of an
Option under this Plan shall be at least 100% of the Fair Market Value
of a Share on the date the Option is granted. Options may be Indexed
Options. Each Option granted to an Employee shall expire as the Plan
Administrator shall determine at the time of grant -- but no Option
shall be exercisable later than the tenth anniversary of its grant.
(c) Exercise of Options: Options granted under this Section shall be
exercisable at such times and be subject to such restrictions and
conditions as the Plan Administrator shall in each instance approve,
which need not be the same for each grant or for each Participant.
(d) Payment:
(1) Options granted under this Section shall be exercised by the
delivery of a written notice of exercise to the Company, setting forth
the number of Shares with respect to which the Option is to be
exercised, accompanied by full payment for the Shares.
(2) The Option Price upon exercise of any Option shall be
payable to the Company in full either:
(A) in cash or its equivalent,
or
(B) by tendering previously acquired Shares having an
aggregate Fair Market Value at the time of exercise equal to the
total Option Price (but only if the Shares which are tendered
have been held by the Participant for at least six months
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before their tender to satisfy the Option Price); or
(C) by a combination of (A) and (B).
(3) The Plan Administrator also may allow cashless exercise
as permitted under Federal Reserve Board's Regulation T, subject
to applicable securities law restrictions, or by any other means
which the Plan Administrator determines to be consistent with the
Plan's purpose and applicable law.
(4) As soon as practicable after receipt of a written
notification of exercise and full payment, the Company shall
deliver to the Participant, in the Participant's name, Share
certificates in an appropriate amount based upon the number of
Shares bought under the Option(s).
(e) Restrictions on Share Transferability: The Plan Administrator may
impose such restrictions on any Shares acquired pursuant to the
exercise of an Option granted under this Section as it may deem
advisable, including, without limitation, restrictions under
applicable Federal securities laws, under the requirements of any
stock exchange or market upon which such Shares are then listed and/or
traded, and under any blue sky or state securities laws applicable to
such Shares.
(f) Non-transferability: During a Participant's lifetime, only the
Participant may exercise any Option granted to such Participant.
Participants may not sell, pledge, assign, or otherwise alienate their
Options. Participants may transfer Options only by will or by the laws
of descent and distribution.
6.4 STOCK APPRECIATION RIGHTS ("SAR'S"):
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(a) Award Agreement: Each SAR grant shall be evidenced by an Award
Agreement specifying the grant price, the SAR's duration, and such
other terms as the Plan Administrator shall determine.
(b) Grant Prices and Duration of SAR's: The grant price of a
Freestanding SAR shall equal the Fair Market Value of a Share on the
date of the SAR grant. The grant price of Tandem SAR's shall equal the
Option Price of the related Option. The term of an SAR granted under
the Plan shall be determined by the Plan Administrator -- but such
term shall not exceed ten years.
(c) Exercise of Tandem SAR's:
(1) Tandem SAR's may be exercised for all or part of the
Shares subject to the related Option upon the surrender of the
right to exercise the equivalent portion of the related Option. A
Tandem SAR may be exercised only with respect to the Shares for
which its related Option is then exercisable.
(2) Notwithstanding any other contrary Plan provision, with
respect to a Tandem SAR granted in connection with an ISO:
(A) the Tandem SAR will expire no later than the
expiration of the underlying ISO;
(B) the payout value with respect to the Tandem SAR
may not exceed 100% of the difference between the Option
Price of the underlying ISO and the Fair Market Value of the
Shares subject to the underlying ISO at the time the Tandem
SAR is exercised; and
(C) the Tandem SAR may be exercised only when the Fair
Market Value
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of the Shares subject to the ISO exceeds the Option Price of
the ISO.
(d) Exercise of Freestanding SAR's: Freestanding SAR's may be
exercised upon whatever terms and conditions the Plan Administrator
imposes upon them.
(e) Payment of SAR Amount:
(1) Upon exercise of an SAR, a Participant shall be
entitled to receive payment from the Company in an amount
determined by multiplying:
(A) the difference between the Fair Market Value of a
Share on the date of exercise and the grant price; by
(B) the number of Shares with respect to which the SAR
is exercised.
(2) The Plan Administrator may allow for payment upon SAR
exercise to be in cash, in Shares of equivalent value, or in some
combination of cash and Shares.
(f) Rule 16b-3 Requirements: Notwithstanding any other Plan term, the
Plan Administrator may impose such conditions on exercise of an SAR
(including limiting the exercise to specified periods) as may be
required to comply with Section 16 of the Exchange Act.
(g) Non-transferability: Except as otherwise provided in an Award
Agreement:
(1) During a Participant's lifetime, only the Participant
may exercise any SAR granted to such Participant.
(2) Participants may not sell, pledge, assign, or otherwise
alienate their SAR's.
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(3) Participants may transfer SAR's only by will or by the laws
of descent and distribution.
ARTICLE 7 - PERFORMANCE MEASURES
7.1 GENERALLY: The Plan Administrator may establish performance goals for
each Plan Year and Performance Period for each type of Award to be
awarded or granted under this Plan. The goals may be expressed as a
percentage of corporate, division, business unit, and/or individual goals
or financial measures, or such other measures as the Plan Administrator
shall, from time to time, determine, unless otherwise limited by the
Plan.
7.2 PERFORMANCE THRESHOLD: The Plan Administrator may establish minimum
levels of performance which must be achieved during a Plan Year or
Performance Period before any Awards shall be paid to Participants. Such
minimum levels of performance may be expressed as a percentage of
corporate, division, business unit, and/or individual goals or financial
measures, or such other measures as the Plan Administrator shall, from
time to time, determine, unless otherwise limited by the Plan.
7.3 MAXIMUM AWARDS: Subject to Section 4, the Plan Administrator may
establish guidelines governing the maximum Awards that Participants may
earn (either in the aggregate or among individual Participants) during
each Plan Year or Performance Period. Such guidelines may be expressed as
a percentage of corporate, division, business unit, and/or individual
goals or financial measures, or such other measures as the Plan
Administrator shall, from time to time, determine, unless otherwise
limited by the Plan.
ARTICLE 8 - BENEFICIARY DESIGNATION
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8.1 Each Participant under the Plan may, from time to time, name any
beneficiary or beneficiaries (who may be named contingently or
successively) to whom any benefit under the Plan is to be paid if the
Participant dies before receiving any or all of such benefit.
8.2 Each such designation shall revoke all prior designations by the same
Participant, shall be in a form prescribed by the Company, and will be
effective only when filed by the Participant in writing with the Company
during the Participant's lifetime.
8.3 Absent such designation, benefits remaining unpaid at the Participant's
death shall be paid to the Participant's estate.
ARTICLE 9 - DEFERRALS AND SPECIAL AWARDS/GRANTS
The Plan Administrator may permit a Participant to defer receipt of the payment
of cash or the delivery of Shares that would otherwise be due to such
Participant by virtue of the satisfaction of any requirements or goals with
respect to Awards, the exercise of an Option or SAR, or the lapse or waiver of
restrictions with respect to Restricted Stock. If any such deferral election is
required or permitted, the Plan Administrator shall establish rules and
procedures for such payment deferrals. Such rules and procedures shall be
consistent with the appropriate provisions of Code where applicable.
ARTICLE 10 - CHANGE IN CONTROL
10.1 TREATMENT OF OUTSTANDING AWARDS: Upon the occurrence of a Change in
Control, unless otherwise specifically prohibited under applicable laws, or
by the rules and regulations of any governing governmental agencies or
national securities exchanges:
(a) Any and all Options and SAR's granted shall become immediately and
shall remain exercisable throughout their entire term.
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(b) Any restriction periods and restrictions imposed on Restricted
Shares shall lapse.
(c) The target payout opportunities attainable under all outstanding
Awards shall be deemed to have been earned through the effective date
of the Change in Control. The vesting of all Awards shall be
accelerated as of the effective date of the Change in Control.
provided, however, that no payouts will be accelerated based on Awards
granted less than six months before the effective date of the Change
in Control.
(d) Subject to Article 11, the Plan Administrator may modify the
Awards as determined by the Plan Administrator to be appropriate
before the effective date of the Change in Control.
10.2 ACCELERATION OF AWARD VESTING: Notwithstanding any provision of this
Plan or any Award Agreement provision to the contrary, the Plan
Administrator may at any time accelerate the vesting of any Award granted
under the Plan to a Participant, including without limitation
acceleration to such a date that would result in said Awards becoming
immediately vested.
10.3 OPTIONAL GROSS-UP FOR EXCISE TAXES: If, for any reason, any part or all
of the amounts payable to a Participant pursuant to this Plan (or
otherwise, if the Company or any of its Subsidiaries pays amounts after
there has been a Change in Control) are deemed to be "excess parachute
payments" within the meaning of Code Section 280G(b)(1), the Plan
Administrator may, in its sole discretion, provide in the Award Agreement
that the Company shall pay to such Participant, in addition to any other
amounts the Participant may be entitled to receive pursuant to this Plan,
an amount which after all Federal, state, and local taxes (of whatever
kind) imposed on the Participant with respect to such amount are
subtracted therefrom, equals the excise taxes imposed on such excess
parachute payments under Code Section 4999.
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10.4 TERMINATION, AMENDMENT, AND MODIFICATIONS OF CHANGE IN CONTROL
PROVISIONS: Notwithstanding any other Plan term or any Award Agreement
term, this Article may not be terminated, amended, or modified on or
after the date of a Change in Control to affect adversely any Award
already granted under the Plan without the prior written consent of the
Participant with respect to said Participant's outstanding Awards -- but
the Board, upon recommendation of the Plan Administrator, may terminate,
amend, or modify this Article at any time and from time to time before
the date of a Change in Control.
ARTICLE 11 - AMENDMENT, MODIFICATION, AND TERMINATION
11.1 GENERALLY:
(a) The Board may at any time and from time to time, alter, amend,
suspend, or terminate the Plan in whole or in part -- but no amendment
needing shareholder approval in order for the Plan to continue to
comply with Rule 16b-3 under the Exchange Act shall be effective
unless such amendment shall be approved by the requisite vote of
Company shareholders entitled to vote on it.
(b) The Plan Administrator may not cancel outstanding Awards and issue
substitute Awards without the written consent of the Participant
holding such Award.
11.2 OUTSTANDING AWARDS: No termination, amendment, or modification of
the Plan shall adversely affect in any material way any outstanding Award
under the Plan without the written consent of the Participant holding
such Award.
ARTICLE 12 - WITHHOLDING
12.1 TAX WITHHOLDING: The Company may deduct or withhold, or require a
Participant to remit to the Company, an amount sufficient to satisfy
Federal,
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state, and local taxes, domestic or foreign, required by law or
regulation to be withheld with respect to any taxable event arising as a
result of this Plan.
12.2 SHARE WITHHOLDING: With respect to withholding required upon the
exercise of Options or SAR's, upon the lapse of restrictions on
Restricted Stock, or upon any other taxable event arising as a result of
Awards granted hereunder, Participants may elect, subject to the approval
of the Plan Administrator, to satisfy the withholding requirement, in
whole or in part, by having the Company withhold Shares having a Fair
Market Value on the date the tax is to be determined equal to the
statutory total tax which could be imposed on the transaction. All such
elections shall be irrevocable, shall be made in writing, shall be signed
by the Participant, and shall be subject to any restrictions or
limitations that the Plan Administrator deems appropriate.
ARTICLE 13 - INDEMNIFICATION
13.1 GENERALLY: The Company shall indemnify and hold harmless each
current and former Director against and from any loss, cost, liability,
or expense that may be imposed upon or reasonably incurred by such
Director in connection with or resulting from any claim, action, suit, or
proceeding to which such Director may be a party or in which such
Director may be involved by reason of any action taken or failure to act
under the Plan and against and from any and all amounts paid by such
Director in settlement thereof, with the Company's approval, or paid by
such Director in satisfaction of any judgment in any such action, suit,
or proceeding against such Director -- but only if such Director gives
the Company an opportunity, at its own expense, to handle and defend the
same before such Director undertakes to handle and defend it personally.
13.2 NON-EXCLUSIVITY: This right of indemnification shall not exclude
any other indemnification rights to which such persons may be entitled
under the Company's
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Certificate of Incorporation of Bylaws, as a matter of law, or otherwise,
or any power that the Company may have to indemnify them or hold them
harmless.
ARTICLE 14 - LEGAL CONSTRUCTION
14.1 SEVERABILITY: If any Plan section is held illegal or invalid for
any reason, the illegality or invalidity shall not affect the remaining
parts of the Plan, and the Plan shall be construed and enforced as if the
illegal or invalid provision had not been included.
14.2 REQUIREMENTS OF LAW: The granting of Awards and the issuance of Shares
under the Plan shall be subject to all applicable laws, rules, and
regulations, and to such approvals by any governmental agencies or
national securities exchanges as may be required.
14.3 SECURITIES LAW COMPLIANCE: With respect to Insiders, transactions
under this Plan are intended to comply with all applicable conditions or
Rule 16b-3. To the extent any Plan provision or action by the Plan
Administrator fails to so comply, it shall be deemed void, to the extent
permitted by law and deemed advisable by the Plan Administrator.
14.4 SUCCESSORS: All Company obligations under the Plan with respect to
Awards granted shall be binding on any successor to the Company, whether
the existence of such successor is the result of a direct or indirect
purchase, merger, consolidation, or otherwise, of all or substantially
all of the Company's business and/or assets.
14.5 GOVERNING LAW: To the extent not preempted by Federal law, the Plan,
and all agreements made under it, shall be construed in accordance with
and governed by the laws of the State of Delaware.
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