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EXHIBIT 10. HOTELBANK, INC. 1999 OMNIBUS STOCK INCENTIVE PLAN, WITH
RESTRICTED STOCK AWARD AGREEMENT.
hotelBANK, Inc.
1999 OMNIBUS STOCK INCENTIVE PLAN
1. Establishment, Purpose and Types of Awards
hotelBANK, Inc., a Delaware corporation (the "Company"), hereby
establishes the hotelBANK, Inc. 1999 OMNIBUS STOCK INCENTIVE PLAN (the "Plan").
The purpose of the Plan is to promote the long-term growth and profitability of
the Company by (i) providing key people with incentives to improve stockholder
value and to contribute to the growth and financial success of the Company, and
(ii) enabling the Company to attract, retain and reward the best-available
persons.
The Plan permits the granting of stock options (including incentive
stock options qualifying under Code section 422 and nonqualified stock options),
stock appreciation rights, restricted or unrestricted stock awards, phantom
stock, performance awards, other stock-based awards, or any combination of the
foregoing.
2. DEFINITIONS
Under this Plan, except where the context otherwise indicates, the
following definitions apply:
(a) "Affiliate" shall mean any entity, whether now or hereafter
existing, which controls, is controlled by, or is under common control with, the
Company (including, but not limited to, joint ventures, limited liability
companies, and partnerships). For this purpose, "control" shall mean ownership
of 50% or more of the total combined voting power or value of all classes of
stock or interests of the entity.
(b) "Award" shall mean any stock option, stock appreciation right,
stock award, phantom stock award, performance award, or other stock-based award.
(c) "Board" shall mean the Board of Directors of the Company.
(d) "Code" shall mean the Internal Revenue Code of 1986, as amended,
and any regulations promulgated thereunder.
(e) "Common Stock" shall mean shares of common stock of the Company,
par value of one tenth of one cent ($00.001) per share.
(f) "Fair Market Value" shall mean, with respect to a share of the
Company's Common Stock for any purpose on a particular date, the value
determined by the Administrator in good faith. However, if the Common Stock is
registered under Section 12(b) of the Securities Exchange Act of 1934, as
amended, "Fair Market Value" shall mean, as applicable, (i) either the closing
price or the average of the high and low sale price on the relevant date, as
determined in the Administrator's discretion, quoted on the New York Stock
Exchange, the American Stock Exchange, or the Nasdaq National Market; (ii) the
last sale price on the relevant date quoted on the Nasdaq Small Cap Market;
(iii) the average of the high bid and low asked prices on the relevant date
quoted on the Nasdaq OTC Bulletin Board Service or by the National Quotation
Bureau, Inc. or a comparable service as determined in the Administrator's
discretion; or (iv) if the Common Stock is not quoted by any
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of the above, the average of the closing bid and asked prices on the relevant
date furnished by a professional market maker for the Common Stock, or by such
other source, selected by the Administrator. If no public trading of the Common
Stock occurs on the relevant date, then Fair Market Value shall be determined as
of the next preceding date on which trading of the Common Stock does occur. For
all purposes under this Plan, the term "relevant date" as used in this Section
2(f) shall mean either the date as of which Fair Market Value is to be
determined or the next preceding date on which public trading of the Common
Stock occurs, as determined in the Administrator's discretion.
(g) "Grant Agreement" shall mean a written document memorializing
the terms and conditions of an Award granted pursuant to the Plan and shall
incorporate the terms of the Plan.
3. ADMINISTRATION
(a) Administration of the Plan. The Plan shall be administered by
the Board or by such committee or committees as may be appointed by the Board
from time to time (the Board, committee or committees hereinafter referred to as
the "Administrator").
(b) Powers of the Administrator. The Administrator shall have all
the powers vested in it by the terms of the Plan, such powers to include
authority, in its sole and absolute discretion, to grant Awards under the Plan,
prescribe Grant Agreements evidencing such Awards and establish programs for
granting Awards.
The Administrator shall have full power and authority to take all other
actions necessary to carry out the purpose and intent of the Plan, including,
but not limited to, the authority to: (i) determine the eligible persons to
whom, and the time or times at which Awards shall be granted; (ii) determine the
types of Awards to be granted; (iii) determine the number of shares to be
covered by or used for reference purposes for each Award; (iv) impose such
terms, limitations, restrictions and conditions upon any such Award as the
Administrator shall deem appropriate; (v) modify, amend, extend or renew
outstanding Awards, or accept the surrender of outstanding Awards and substitute
new Awards (provided however, that, except as provided in Section 7(d) of the
Plan, any modification that would materially adversely affect any outstanding
Award shall not be made without the consent of the holder); (vi) accelerate or
otherwise change the time in which an Award may be exercised or becomes payable
and to waive or accelerate the lapse, in whole or in part, of any restriction or
condition with respect to such Award, including, but not limited to, any
restriction or condition with respect to the vesting or exercisability of an
Award following termination of any grantee's employment or other relationship
with the Company; and (vii) establish objectives and conditions, if any, for
earning Awards and determining whether Awards will be paid after the end of a
performance period.
The Administrator shall have full power and authority, in its sole and
absolute discretion, to administer and interpret the Plan and to adopt and
interpret such rules, regulations, agreements, guidelines and instruments for
the administration of the Plan and for the conduct of its business as the
Administrator deems necessary or advisable.
Notwithstanding anything to the contrary herein, in the event that 40%
or more of the capital stock of the Company is owned directly or indirectly by
MICROS Systems, Inc. ("MICROS"), a Maryland corporation, the Administrator shall
not grant Awards under the Plan, or prescribe Grant Agreements
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evidencing such Awards, to individuals who are at the time of grant executive
employees of MICROS, unless the Compensation Committee of MICROS has recommended
the grant and terms of such Awards.
(c) Non-Uniform Determinations. The Administrator's determinations
under the Plan (including without limitation, determinations of the persons to
receive Awards, the form, amount and timing of such Awards, the terms and
provisions of such Awards and the Grant Agreements evidencing such Awards) need
not be uniform and may be made by the Administrator selectively among persons
who receive, or are eligible to receive, Awards under the Plan, whether or not
such persons are similarly situated.
(d) Limited Liability. To the maximum extent permitted by law, no
member of the Administrator shall be liable for any action taken or decision
made in good faith relating to the Plan or any Award thereunder.
(e) Indemnification. To the maximum extent permitted by law and by
the Company's charter and by-laws, the members of the Administrator shall be
indemnified by the Company in respect of all their activities under the Plan.
(f) Effect of Administrator's Decision. All actions taken and
decisions and determinations made by the Administrator on all matters relating
to the Plan pursuant to the powers vested in it hereunder shall be in the
Administrator's sole and absolute discretion and shall be conclusive and binding
on all parties concerned, including the Company, its stockholders, any
participants in the Plan and any other employee, or director of the Company, and
their respective successors in interest.
4. SHARES AVAILABLE FOR THE PLAN; MAXIMUM AWARDS
Subject to adjustments as provided in Section 7(d) of the Plan, the
shares of Common Stock that may be issued with respect to Awards granted under
the Plan in each calendar year during any part of which the Plan is in effect
shall not exceed two percent (2%) of the total shares of Common Stock
outstanding on the first day of such year, plus the number of shares available
for Awards in the previous calendar year that were not awarded under the Plan;
provided, however, that no more than an aggregate of 1,000,000 shares of Common
Stock may be issued pursuant to incentive stock options intended to qualify
under Code section 422. The Company shall reserve such number of shares for
Awards under the Plan, subject to adjustments as provided in Section 7(d) of the
Plan. If any Award, or portion of an Award, under the Plan expires or terminates
unexercised, becomes unexercisable or is forfeited or otherwise terminated,
surrendered or canceled as to any shares, or if any shares of Common Stock are
surrendered to the Company in connection with any Award (whether or not such
surrendered shares were acquired pursuant to any Award), or if any shares are
withheld by the Company, the shares subject to such Award and the surrendered
and withheld shares shall thereafter be available for further Awards under the
Plan; provided, however, that any such shares that are surrendered to or
withheld by the Company in connection with any Award or that are otherwise
forfeited after issuance shall not be available for purchase pursuant to
incentive stock options intended to qualify under Code section 422.
5. PARTICIPATION
Participation in the Plan shall be open to all employees, officers, and
directors of, and other individuals providing bona fide services to or for, the
Company, or of any Affiliate of the Company, as may be selected by the
Administrator from time to time. The Administrator may also grant Awards to
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individuals in connection with hiring, retention or otherwise, prior to the date
the individual first performs services for the Company or an Affiliate provided
that such Awards shall not become vested prior to the date the individual first
performs such services.
6. AWARDS
The Administrator, in its sole discretion, establishes the terms of all
Awards granted under the Plan. Awards may be granted individually or in tandem
with other types of Awards. All Awards are subject to the terms and conditions
provided in the Grant Agreement. The Administrator may permit or require a
recipient of an Award to defer such individual's receipt of the payment of cash
or the delivery of Common Stock that would otherwise be due to such individual
by virtue of the exercise of, payment of, or lapse or waiver of restrictions
respecting, any Award. If any such payment deferral is required or permitted,
the Administrator shall, in its sole discretion, establish rules and procedures
for such payment deferrals.
(a) Stock Options. The Administrator may from time to time grant to
eligible participants Awards of incentive stock options as that term is defined
in Code section 422 or nonqualified stock options; provided, however, that
Awards of incentive stock options shall be limited to employees of the Company
or of any current or hereafter existing "parent corporation" or "subsidiary
corporation," as defined in Code sections 424(e) and (f), respectively, of the
Company. Options intended to qualify as incentive stock options under Code
section 422 must have an exercise price at least equal to Fair Market Value as
of the date of grant, but nonqualified stock options may be granted with an
exercise price less than Fair Market Value. No stock option shall be an
incentive stock option unless so designated by the Administrator at the time of
grant or in the Grant Agreement evidencing such stock option.
(b) Stock Appreciation Rights. The Administrator may from time to
time grant to eligible participants Awards of Stock Appreciation Rights ("SAR").
An SAR entitles the grantee to receive, subject to the provisions of the Plan
and the Grant Agreement, a payment having an aggregate value equal to the
product of (i) the excess of (A) the Fair Market Value on the exercise date of
one share of Common Stock over (B) the base price per share specified in the
Grant Agreement, times (ii) the number of shares specified by the SAR, or
portion thereof, which is exercised. Payment by the Company of the amount
receivable upon any exercise of an SAR may be made by the delivery of Common
Stock or cash, or any combination of Common Stock and cash, as determined in the
sole discretion of the Administrator. If upon settlement of the exercise of an
SAR a grantee is to receive a portion of such payment in shares of Common Stock,
the number of shares shall be determined by dividing such portion by the Fair
Market Value of a share of Common Stock on the exercise date. No fractional
shares shall be used for such payment and the Administrator shall determine
whether cash shall be given in lieu of such fractional shares or whether such
fractional shares shall be eliminated.
(c) Stock Awards. The Administrator may from time to time grant
restricted or unrestricted stock Awards to eligible participants in such
amounts, on such terms and conditions, and for such consideration, including no
consideration or such minimum consideration as may be required by law, as it
shall determine. A stock Award may be paid in Common Stock, in cash, or in a
combination of Common Stock and cash, as determined in the sole discretion of
the Administrator.
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(d) Phantom Stock. The Administrator may from time to time grant
Awards to eligible participants denominated in stock-equivalent units ("phantom
stock") in such amounts and on such terms and conditions as it shall determine.
Phantom stock units granted to a participant shall be credited to a bookkeeping
reserve account solely for accounting purposes and shall not require a
segregation of any of the Company's assets. An Award of phantom stock may be
settled in Common Stock, in cash, or in a combination of Common Stock and cash,
as determined in the sole discretion of the Administrator. Except as otherwise
provided in the applicable Grant Agreement, the grantee shall not have the
rights of a stockholder with respect to any shares of Common Stock represented
by a phantom stock unit solely as a result of the grant of a phantom stock unit
to the grantee.
(e) Performance Awards. The Administrator may, in its discretion,
grant performance awards which become payable on account of attainment of one or
more performance goals established by the Administrator. Performance awards may
be paid by the delivery of Common Stock or cash, or any combination of Common
Stock and cash, as determined in the sole discretion of the Administrator.
Performance goals established by the Administrator may be based on the Company's
or an Affiliate's operating income or one or more other business criteria
selected by the Administrator that apply to an individual or group of
individuals, a business unit, or the Company or an Affiliate as a whole, over
such performance period as the Administrator may designate.
(f) Other Stock-Based Awards. The Administrator may from time to
time grant other stock-based awards to eligible participants in such amounts, on
such terms and conditions, and for such consideration, including no
consideration or such minimum consideration as may be required by law, as it
shall determine. Other stock-based awards may be denominated in cash, in Common
Stock or other securities, in stock-equivalent units, in stock appreciation
units, in securities or debentures convertible into Common Stock, or in any
combination of the foregoing and may be paid in Common Stock or other
securities, in cash, or in a combination of Common Stock or other securities and
cash, all as determined in the sole discretion of the Administrator.
7. MISCELLANEOUS
(a) Withholding of Taxes. Grantees and holders of Awards shall pay
to the Company or its Affiliate, or make provision satisfactory to the
Administrator for payment of, any taxes required to be withheld in respect of
Awards under the Plan no later than the date of the event creating the tax
liability. The Company or its Affiliate may, to the extent permitted by law,
deduct any such tax obligations from any payment of any kind otherwise due to
the grantee or holder of an Award. In the event that payment to the Company or
its Affiliate of such tax obligations is made in shares of Common Stock, such
shares shall be valued at Fair Market Value on the applicable date for such
purposes.
(b) Loans. The Company or its Affiliate may make or guarantee loans
to grantees to assist grantees in exercising Awards and satisfying any
withholding tax obligations.
(c) Transferability. Except as otherwise determined by the
Administrator, and in any event in the case of an incentive stock option or a
stock appreciation right granted with respect to an incentive stock option, no
Award granted under the Plan shall be transferable by a grantee otherwise than
by will or the laws of descent and distribution. Unless otherwise
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determined by the Administrator in accord with the provisions of the immediately
preceding sentence, an Award may be exercised during the lifetime of the
grantee, only by the grantee or, during the period the grantee is under a legal
disability, by the grantee's guardian or legal representative.
(d) Adjustments; Business Combinations.
(i) Upon a stock dividend of, or stock split or reverse
stock split affecting, the Common Stock of the Company, (A) the maximum number
of shares reserved for issuance or with respect to which Awards may be granted
under the Plan and the maximum number of shares with respect to which Awards may
be granted during any one fiscal year of the Company to any individual, as
provided in Section 4 of the Plan, and (B) the number of shares covered by and
the exercise price and other terms of outstanding Awards, shall, without further
action of the Board, be adjusted to reflect such event. The Administrator may
make adjustments, in its discretion, to address the treatment of fractional
shares and fractional cents that arise with respect to outstanding Awards as a
result of the stock dividend, stock split or reverse stock split.
(ii) In the event of any other changes affecting the Company,
the capitalization of the Company or the Common Stock of the Company by reason
of any spin-off, split-up, dividend, recapitalization, merger, consolidation,
business combination or exchange of shares and the like, the Administrator, in
its discretion and without the consent of holders of Awards, shall make: (A)
appropriate adjustments to the maximum number and kind of shares reserved for
issuance or with respect to which Awards may be granted under the Plan, in the
aggregate and with respect to any individual during any one fiscal year of the
Company, as provided in Section 4 of the Plan, and to the number, kind and price
of shares covered by outstanding Awards; and (B) any other adjustments in
outstanding Awards, including but not limited to reducing the number of shares
subject to Awards or providing or mandating alternative settlement methods such
as settlement of the Awards in cash or in shares of Common Stock or other
securities of the Company or of any other entity, or in any other matters which
relate to Awards as the Administrator shall, in its sole discretion, determine
to be necessary or appropriate.
(iii) Notwithstanding anything in the Plan to the contrary and
without the consent of holders of Awards, the Administrator, in its sole
discretion, may make any modifications to any Awards, including but not limited
to cancellation, forfeiture, surrender or other termination of the Awards in
whole or in part regardless of the vested status of the Award, in order to
facilitate any business combination that is authorized by the Board to comply
with requirements for treatment as a pooling of interests transaction for
accounting purposes under generally accepted accounting principles.
(iv) The Administrator is authorized to make, in its
discretion and without the consent of holders of Awards, adjustments in the
terms and conditions of, and the criteria included in, Awards in recognition of
unusual or nonrecurring events affecting the Company, or the financial
statements of the Company or any Affiliate, or of changes in applicable laws,
regulations, or accounting principles, whenever the Administrator determines
that such adjustments are appropriate in order to prevent dilution or
enlargement of the benefits or potential benefits intended to be made available
under the Plan and outstanding Awards.
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(e) Substitution of Awards in Mergers and Acquisitions. Awards may
be granted under the Plan from time to time in substitution for Awards held by
employees, officers, consultants or directors of entities who become or are
about to become employees, officers, consultants or directors of the Company or
an Affiliate as the result of a merger or consolidation of the employing entity
with the Company or an Affiliate, or the acquisition by the Company or an
Affiliate of the assets or stock of the employing entity. The terms and
conditions of any substitute Awards so granted may vary from the terms and
conditions set forth herein to the extent that the Administrator deems
appropriate at the time of grant to conform the substitute Awards to the
provisions of the awards for which they are substituted.
(f) Termination, Amendment and Modification of the Plan. The Board
may terminate, amend or modify the Plan or any portion thereof at any time.
(g) Non-Guarantee of Employment or Service. Nothing in the Plan or
in any Grant Agreement thereunder shall confer any right on an individual to
continue in the service of the Company or shall interfere in any way with the
right of the Company to terminate such service at any time with or without cause
or notice.
(h) No Trust or Fund Created. Neither the Plan nor any Award shall
create or be construed to create a trust or separate fund of any kind or a
fiduciary relationship between the Company and a grantee or any other person. To
the extent that any grantee or other person acquires a right to receive payments
from the Company pursuant to an Award, such right shall be no greater than the
right of any unsecured general creditor of the Company.
(i) Governing Law. The validity, construction and effect of the
Plan, of Grant Agreements entered into pursuant to the Plan, and of any rules,
regulations, determinations or decisions made by the Administrator relating to
the Plan or such Grant Agreements, and the rights of any and all persons having
or claiming to have any interest therein or thereunder, shall be determined
exclusively in accordance with applicable federal laws and the laws of the State
of Maryland, without regard to its conflict of laws principles.
(j) Effective Date; Termination Date. The Plan is effective as of
the date on which the Plan is adopted by the Board, subject to approval of the
stockholders within twelve months before or after such date. No Award shall be
granted under the Plan after the close of business on the day immediately
preceding the tenth anniversary of the effective date of the Plan, or if
earlier, the tenth anniversary of the date this Plan is approved by the
stockholders. Subject to other applicable provisions of the Plan, all Awards
made under the Plan prior to such termination of the Plan shall remain in effect
until such Awards have been satisfied or terminated in accordance with the Plan
and the terms of such Awards.
(k) Stock Restriction Agreement and Voting Trust. Provided the
Company has not sold any of its common stock in a firm commitment underwritten
public offering pursuant to a registration statement under the Securities Act of
1933, as amended (the "Act"), as a condition precedent to the grant of any Award
under the Plan, the exercise pursuant to such an Award, or to the delivery of
certificates for shares issued pursuant to any Award, the Administrator may
require the grantee or the grantee's successor or permitted transferee, as the
case may be, to become a party to a Stock Restriction Agreement of the Company
and/or a Voting Trust Agreement in such form(s) as the Administrator may
determine from time to time. Such agreements may require, among other things,
that a grantee, as a condition to
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exercise of an Award, and as a condition to the delivery of any share
certificate, make such written representations (including representations to the
effect that such person will not dispose of the Common Stock so acquired in
violation of federal or state securities laws) and furnish such information as
may, in the opinion of counsel for the Company, be appropriate to permit the
Company to issue the Common Stock in compliance with applicable federal and
state securities laws. The stock certificates for any shares of Common Stock
issued pursuant to this Plan may bear a legend restricting transferability of
the shares of Common Stock unless such shares are registered or an exemption
from registration is available under the Securities Act of 1933, as amended, and
applicable state securities laws.
(l) Compliance with Securities Laws; Listing and Registration. If at
any time the Administrator determines that the delivery of Common Stock under
the Plan is or may be unlawful under the laws of any applicable jurisdiction, or
federal or state securities laws, the right to exercise an Award or receive
shares of Common Stock pursuant to an Award shall be suspended until the
Administrator determines that such delivery is lawful. The Company shall have no
obligation to effect any registration or qualification of the Common Stock under
federal or state laws.
Date Approved by the Board: December 17, 1999
Date Approved by the Stockholders: December 17, 1999
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APPENDIX A
PROVISIONS FOR CALIFORNIA RESIDENTS
With respect only to California residents, the following sections shall
be substituted for the sections set forth in the Plan:
1. ESTABLISHMENT, PURPOSE AND TYPES OF AWARDS
hotelBANK, a Delaware corporation (the "Company"), hereby establishes
the hotelBANK 1999 STOCK INCENTIVE PLAN (the "Plan"). The purpose of the Plan is
to promote the long-term growth and profitability of the Company by (i)
providing key people with incentives to improve stockholder value and to
contribute to the growth and financial success of the Company, and (ii) enabling
the Company to attract, retain and reward the best-available persons. The Plan
is intended to be a written compensatory benefit plan within the meaning of Rule
701 promulgated under the Securities Act of 1933, as amended.
The Plan permits the granting of stock options (including incentive
stock options qualifying under Code section 422 and nonqualified stock options),
restricted or unrestricted stock awards or any combination of the foregoing.
6. AWARDS
The Administrator, in its sole discretion, establishes the terms of all
Awards granted under the Plan. Awards may be granted individually or in tandem
with other types of Awards. All Awards are subject to the terms and conditions
provided in the Grant Agreement.
(a) Stock Options. The Administrator may from time to time grant to
eligible participants Awards of incentive stock options as that term is defined
in Code section 422 or nonqualified stock options; provided, however, that
Awards of incentive stock options shall be limited to employees of the Company
or of any Parent or Subsidiary of the Company. No stock option shall be an
incentive stock option unless so designated by the Administrator at the time of
grant or in the Grant Agreement evidencing such stock option.
(i) Exercise Price. Options intended to qualify as incentive
stock options under Code section 422 must have an exercise price at least equal
to Fair Market Value on the date of grant; provided, however, that the exercise
price of any incentive stock option granted to a person who directly or by
attribution owns more than ten percent (10%) of the total combined voting power
of all classes of stock of the Company or any Parent or Subsidiary of the
Company (a "Ten Percent Stockholder") must not be less than one hundred ten
percent (110%) of the Fair Market Value on the date of grant. The exercise price
of a nonqualified stock option granted to anyone other than a Ten Percent
Stockholder must not be less than eighty-five percent (85%) of the Fair Market
Value on the date of grant, and the exercise price of a nonqualified stock
option granted to a Ten Percent Stockholder must not be less than one hundred
ten percent (110%) of the Fair Market Value on the date of grant.
(ii) Exercise Period. No option will be exercisable after the
expiration of ten (10) years from the date the option is granted. Subject to
earlier termination of the option as provided herein, each optionee who is not
an officer, director or consultant of the Company or of a Parent or
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Subsidiary of the Company shall have the right to exercise an option granted
hereunder at the rate of no less than twenty percent (20%) per year over five
(5) years from the date such option is granted.
(b) Stock Awards. The Administrator may from time to time grant
restricted or unrestricted stock Awards to eligible participants in such amounts
and on such terms and conditions as it shall determine. The purchase price of
shares sold pursuant to a restricted or unrestricted stock Award shall be at
least eighty-five percent (85%) of the Fair Market Value on the date of grant or
at the time the purchase is consummated; provided, however, that the purchase
price of shares sold to a Ten Percent Stockholder must be at least one hundred
percent (100%) of the Fair Market Value on the date of grant or at the time the
purchase is consummated.
7. MISCELLANEOUS
(a) [Same as Plan]
(b) [Same as Plan]
(c) Transferability. No Award granted under the Plan shall be
transferable by a grantee otherwise than by will or the laws of descent and
distribution. An Award may be exercised during the lifetime of the grantee, only
by the grantee or, during the period the grantee is under a legal disability, by
the grantee's guardian or legal representative.
(d) [Same as Plan]
(e) [Same as Plan]
(f) [Same as Plan]
(g) [Same as Plan]
(h) [Same as Plan]
(i) Compliance with Securities Laws; Listing and Registration. This
Plan is intended to comply with Section 25102(o) of the California Corporations
Code. Any provision of this Plan which is inconsistent with Section 25102(o)
shall, without further act or amendment by the Administrator, be reformed to
comply with the requirements of Section 25102(o). If at any time the
Administrator determines that the delivery of Common Stock under the Plan is or
may be unlawful under the laws of any applicable jurisdiction, or federal or
state securities laws, the right to exercise an Award or receive shares of
Common Stock pursuant to an Award shall be suspended until the Administrator
determines that such delivery is lawful. The Company shall have no obligation to
effect any registration or qualification of the Common Stock under federal or
state laws.
The Company may require that a grantee, as a condition to exercise of an
Award, and as a condition to the delivery of any share certificate, make such
written representations (including representations to the effect that such
person will not dispose of the Common Stock so acquired in violation of federal
or state securities laws) and furnish such information as may, in the opinion of
counsel for the Company, be appropriate to permit the Company to issue the
Common Stock in compliance with applicable federal and state securities laws.
The stock certificates for any shares of Common Stock issued pursuant to this
Plan may bear a legend restricting transferability of the shares of Common Stock
unless such shares are registered or an exemption
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from registration is available under the Securities Act of 1933, as amended, and
applicable state securities laws.
(j) [Same as Plan]
(k) [Same as Plan]
(l) [Same as Plan]
(m) Financial Statements. The Company will provide financial
statements to each Award recipient annually during the period such individual
has Awards outstanding, or as otherwise required under Section 260.140.46 of
Title 10 of the California Code of Regulations. Notwithstanding the foregoing,
the Company will not be required to provide such financial statements to Award
recipients when issuance is limited to key employees whose services in
connection with the Company assure them access to equivalent information.
(n) Voting Rights. The Company will comply with Section 260.140.1 of
Title 10 of the California Code of Regulations with respect to the voting rights
of Common Stock.
8. TERMINATION OF EMPLOYMENT OR SERVICE.
(a) Exercise Period Following Cessation of Employment or Service, In
General. If an optionee's employment or other service relationship with the
Company is terminated voluntarily by the optionee for any reason (excluding
death, total and permanent disability (as defined in Section 8(b) below), or
retirement after attaining age 62), (i) the optionee's stock options granted
hereunder shall terminate immediately upon such cessation of relationship to the
extent of any unvested shares and (ii) the optionee's stock options granted
hereunder shall be exercisable during the 30-day period, or such longer period
as may be specified in the relevant grant agreement, following such cessation of
relationship with respect to any vested shares, but in no event after the
expiration date. Unless sooner terminated, stock options granted hereunder shall
terminate upon the expiration of such 30-day or longer-specified period, as
applicable.
If the optionee's employment or other service relationship with the
Company is terminated involuntarily by the Company for any reason other than
death, total and permanent disability (as defined in Section 8(b) below),
retirement on or after attainment of age 62, or discharge for "Cause" (as
defined in Section 8(d) below), (i) the optionee's stock options granted
hereunder shall terminate immediately upon such cessation of relationship to the
extent of any unvested shares and (ii) the optionee's stock options granted
hereunder shall be exercisable during the 90-day period, or such longer period
as may be specified in the relevant grant agreement, following such cessation of
relationship with respect to any vested shares, but in no event after the
expiration date. Unless sooner terminated, stock options granted hereunder shall
terminate upon the expiration of such 90-day or longer-specified period, as
applicable.
(b) Disability of Optionee. Notwithstanding the provisions of
Section 8(a) above, if the optionee ceases his employment or other service
relationship with the Company as a result of his or her total and permanent
disability, all of the optionee's stock options granted hereunder shall be
vested and exercisable during the 180-day period, or such longer period as may
be specified in the relevant grant agreement, following such cessation,
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but in no event after the expiration date. Unless sooner terminated, stock
options granted hereunder shall terminate upon the expiration of such 180-day or
longer-specified period, as applicable.
For purposes of this Plan, "total and permanent disability" shall mean
the inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous
period of not less than twelve months. The Administrator may require such proof
of total and permanent disability as the Administrator in its sole discretion
deems appropriate and the Administrator's good faith determination as to whether
the optionee is totally and permanently disabled shall be final and binding on
all parties concerned.
(c) Death of Optionee. If the optionee dies prior to the expiration
date or other termination of a stock option granted hereunder, all of the
optionee's stock options granted hereunder shall be exercisable during the
one-year period following the death of the optionee, but in no event after the
expiration date, by the optionee's executor, personal representative, or the
person(s) to whom the option is transferred by will or the laws of descent and
distribution. Unless sooner terminated, the optionee's stock options granted
hereunder shall terminate upon the expiration of such one-year period.
(d) Retirement of Optionee If the optionee retires on or after
attainment of age 62 prior to the expiration date or other termination of a
stock option granted hereunder, all of the optionee's then remaining stock
options granted hereunder shall be exercisable during the remaining term of the
option, as specified in the relevant option agreement.
(e) Cause. Notwithstanding anything to the contrary herein, an
optionee's stock options granted hereunder shall terminate in their entirety,
regardless of whether such options are vested in whole or in part, immediately
upon the optionee's discharge of employment or other service relationship by the
Company for Cause. For purposes of this Agreement, if the optionee is a party to
a written employment agreement or other service agreement with the Company which
contains a definition of "cause", "termination for cause" or any other similar
term or phrase, whether the optionee is terminated for Cause pursuant to this
Section 8 shall be determined according to the terms of and in a manner
consistent with the provisions of such written agreement. If the optionee is not
party to such a written employment agreement or other service agreement with the
Company, then for purposes of this Section 8, "Cause" shall mean (i) conviction
of, or plea of nolo contendere to, a felony or crime involving moral turpitude;
(ii) fraud on or misappropriation of any funds or property of the Company; (iii)
personal dishonesty, incompetence, willful misconduct, willful violation of any
law, rule or regulation (other than minor traffic violations or similar
offenses) or breach of fiduciary duty which involves personal profit; (iv)
willful misconduct in connection with the optionee's duties or willful failure
to perform his responsibilities in the best interests of the Company; (v) breach
of any provision of any employment, non-disclosure, non-competition,
non-solicitation or other similar agreement executed by the optionee for the
benefit of the Company. The good faith determination by the Administrator of
whether the optionee's employment or other service relationship was terminated
by the Company for Cause shall be final and binding for all purposes hereunder.
9. COMPANY'S REPURCHASE OPTION.
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At the discretion of the Administrator, the Company may reserve to
itself and/or its assignee(s) in the Grant Agreement or Stock Restriction
Agreement a right to repurchase shares held by an Award recipient following such
Award recipient's termination at any time within ninety (90) days after such
Award recipient's termination date (or in the case of securities issued upon
exercise of an option after the termination date, within ninety (90) days after
the date of such exercise) for cash and/or cancellation of purchase money
indebtedness, at: (A) with respect to vested shares, the Fair Market Value of
such shares on the Award recipient's termination date, provided, that such right
to repurchase vested shares terminates when the Company's securities become
publicly traded; or (B) with respect to unvested shares, the Award recipient's
exercise price, provided, that to the extent the Award recipient is not an
officer, director or consultant of the Company or of a Parent or Subsidiary of
the Company such right to repurchase unvested shares at the exercise price
lapses at the rate of at least twenty percent (20%) per year over five (5) years
from the date of grant of the option.
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14
RESTRICTED STOCK AWARD AGREEMENT
Made Pursuant To The
HOTELBANK, INC.
1999 OMNIBUS STOCK INCENTIVE PLAN
THIS AGREEMENT, made effective as of December 20, 1999, by and between
hotelBANK, Inc., a Delaware corporation ("Company"), a wholly owned subsidiary
of MICROS Systems, Inc. ("MICROS") and ______________________________ (the
"Award Recipient"):
WHEREAS, the Company maintains the hotelBANK, Inc. 1999 Omnibus Stock
Incentive Plan (the "Omnibus Stock Plan") under which the Company's Compensation
Committee of the Board of Directors ("Committee") may, among other things, award
shares of the Company's Common Stock of $0.01 par value ("Common Stock") to such
members of the Company's management team as the Committee may determine, subject
to terms, conditions, or restrictions as the Committee may deem appropriate; and
WHEREAS, the Committee may award shares of the Company's Common Stock to
such members of MICROS' management team, as the Committee may determine, based
upon the recommendations of the compensation committee of the MICROS board of
directors, subject to terms, conditions, or restrictions as the Committee may
deem appropriate; and
WHEREAS, pursuant to the Omnibus Stock Plan, the Committee has awarded
to the Award Recipient a restricted stock award subject to this Agreement
setting forth all the terms and conditions applicable to such award in
accordance with Articles 4 and 7 of the Omnibus Stock Plan; and
WHEREAS, the Award Recipient desires to accept said award in accordance
with the terms and provisions of the Omnibus Stock Plan and this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements contained herein, the Company and Award Recipient agree as
follows:
1. AWARD AND SALE OF RESTRICTED SHARES:
Under the terms of the Omnibus Stock Plan, the Committee has awarded and
sold to the Award Recipient, and has caused same to be recorded on the books of
the Company, a restricted stock award on December 20, 1999 ("Award Date"), of
5,000 shares of Common Stock ("Award Shares"), for US$45,000.00. The award is
subject to the terms, conditions, and restrictions set forth in this Agreement.
The fair market value of the Award Shares on such date is $45,000.00, or $9.00
per share, as determined pursuant to the terms of the Omnibus Stock Plan.
2. AWARD RESTRICTIONS:
The Award Shares shall be nontransferable and subject to forfeiture
until such shares vest. The Award Shares granted hereunder shall vest 100% upon
the earliest of: (i) the latter of the date that the Company has a market
capitalization in excess of $25,000,000, as determined by either an independent
valuation company, or the capitalization established by an independent third
party investor, or the first year anniversary of the Award
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Date; or (ii) the latter of the date that some or all of the Company Common
Stock is acquired with consideration (whether acquirer stock, cash or a
combination thereof) with a value of no less than $25,000,000, or the first year
anniversary of the Award Date; or (iii) the latter of a public offering of
capital stock of the Company (or the capital stock of an entity that has been
exchanged for Company stock) that is effected pursuant to a registration
statement filed with, and declared effective by, the Securities and Exchange
Commission under the Securities Act of 1933, or the first year anniversary of
the Award Date; or (iv) the third (3rd) year anniversary of the Award Date.
Notwithstanding anything to the contrary herein, the Award Shares shall
immediately vest 100% upon the occurrence of a Change in Control. For purposes
of this Agreement, the term "Change in Control" shall mean: (i) the sale of all
or substantially all of the assets of the Company or MICROS; (ii) the sale of
more than 40% of the outstanding capital stock of the Company or MICROS; (iii)
the dissolution or liquidation of the Company or MICROS; or (iv) any merger,
share exchange, consolidation or other reorganization or business combination of
the Company or MICROS if immediately after such transaction either (A) persons
who were directors of the Company or MICROS immediately prior to such
transaction do not constitute at least a majority of the directors of the
surviving entity, or (B) persons who hold 40% or more of the voting capital
stock of the surviving entity are not persons who held 40% or more of the voting
capital stock of the Company or MICROS immediately prior to such transaction.
Upon the vesting of Award Shares by virtue of the lapse of the
restriction period set forth above or under Paragraph 4 of this Agreement, the
Company shall deliver to the Award Recipient (or his estate, as may be
applicable) a stock certificate covering the requisite number of vested shares
registered on the Company's books in the name of the Award Recipient within 30
days after vesting. Upon receipt of such stock certificate, the Award Recipient
is free to hold or dispose of such certificate at will, subject to any
applicable securities laws or regulations governing transferability of shares of
the Company.
During the restriction period, the Award Shares are not transferable by
the Award Recipient by means of sale, assignment, exchange, pledge,
hypothecation, or otherwise (other than by will or the laws of descent and
distribution).
3. STOCK CERTIFICATES:
The stock certificate(s) evidencing the Award Shares shall be registered
on the Company's books in the name of the Award Recipient as of the Award Date.
Physical possession or custody of such stock certificate(s) shall be retained by
the Company until such time as the shares are vested (i.e., the restriction
period lapses). While in its possession, the Company reserves the right to place
a legend on the stock certificate(s) restricting the transferability of such
certificate(s) and referring to the terms and conditions (including forfeiture)
approved by the Committee and applicable to the shares represented by the
certificate(s). The Award Recipient shall deliver to the Company a stock power,
endorsed in blank, with respect to the Award Shares to be held by the Company
during the restriction period.
During the restriction period, except as otherwise provided in Paragraph
2 of this Agreement, the Award Recipient shall be entitled to all rights of a
stockholder of the Company, including the right to vote the shares and receive
dividends and/or other distributions declared on such shares.
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4. TERMINATION OF EMPLOYMENT:
If the Award Recipient terminates employment with the Company or its
Affiliates due to death, total and permanent disability, or retirement after
attaining age 60 during the restriction period, the Award Shares shall be become
fully vested as of such date of termination of employment. If the Award
Recipient terminates employment with the Company or its Affiliates for any
reason other than death, total and permanent disability, or retirement during
the restriction period, any Award Shares that are not vested as of such date of
termination of employment shall be forfeited to the Company, and no further
vesting shall occur thereafter (subject to acceleration of vesting by the
Committee in its sole and absolute discretion). In the event of any forfeiture
of the Award Shares to the Company, the consideration paid by the Award
Recipient shall be refunded by the Company to the Award Recipient in full. The
refund in full to the Award Recipient shall be made by the Company within 15
days of the forfeiture of the Award Shares. The Committee shall have absolute
discretion to determine whether an authorized leave of absence or absence on
military or government service or otherwise shall constitute a termination of
employment for purposes of this Agreement. The Committee shall have absolute
discretion to determine whether an Award Recipient's termination of employment
is due to total and permanent disability or retirement. The Committee may
require the Award Recipient to provide whatever evidence the Committee deems
desirable to ascertain whether the Award Recipient is totally and permanently
disabled.
5. WITHHOLDING TAXES:
The Company or any Affiliate shall have the right to deduct from any
compensation or any other payment of any kind (including withholding the
issuance of shares of Common Stock) due the Award Recipient the amount of any
federal, state or local taxes required by law to be withheld as a result of the
grant of the restricted stock award or the lapse of the restriction period in
whole or in part; provided, however, that the value of the shares of Common
Stock withheld may not exceed the statutory minimum withholding amount required
by law. In lieu of such deduction, the Company may require the Award Recipient
to make a cash payment to the Company or an Affiliate equal to the amount
required to be withheld.
6. IMPACT ON OTHER BENEFITS:
The value of the restricted stock award (either on the Award Date or at
the time the shares are vested) shall not be includable as compensation or
earnings for purposes of any other benefit plan offered by the Company.
7. ADMINISTRATION:
The Committee shall have full authority and discretion (subject only to
the express provisions of the Omnibus Stock Plan) to decide all matters relating
to the administration, interpretation and implementation of the Omnibus Stock
Plan and this Agreement. All such Committee determinations shall be final,
conclusive, and binding upon the Company, the Award Recipient, and any and all
interested parties.
8. RIGHT TO CONTINUED EMPLOYMENT:
Nothing in the Omnibus Stock Plan or this Agreement shall be construed
as a contract of employment between the Company (or an Affiliate) and the Award
Recipient, or as a contractual right of the Award Recipient to continue
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in the employ of the Company or an Affiliate, or as a limitation of the right of
the Company or an Affiliate to discharge the Award Recipient at any time.
9. AMENDMENTS:
This Agreement contains the entire agreement between the parties with
respect to the subject matter contained herein and may not be modified, except
as provided in the Omnibus Stock Plan or in a written document signed by each of
the parties hereto.
10. FORCE AND EFFECT:
This Agreement is intended to conform in all respects with, and is
subject to all applicable provisions of, the Omnibus Stock Plan, which is
incorporated herein by reference. Inconsistencies between the Agreement and the
Omnibus Stock Plan shall be resolved in accordance with the terms of the Omnibus
Stock Plan. In the event of any ambiguity in the Agreement or any matters as to
which the Agreement is silent, the Omnibus Stock Plan shall govern.
11. PREVAILING LAWS:
This Agreement shall be construed and enforced in accordance with and
governed by the laws of the State of Maryland, without regard to the conflict of
laws principles thereof.
12. SUCCESSORS:
This Agreement shall be binding upon and inure to the benefit of the
successors, assigns and heirs of the respective parties.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
by its duly authorized officer, and the Award Recipient has hereunto set his
hand and seal, on this 20th day of December, 1999.
hotelBANK, Inc.
By:
--------------------------------------
Title:
------------------------------------
AR
-------------------------------------
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STOCK POWER
FOR VALUE RECEIVED, the undersigned, _______________________, an individual
residing at _________________________________________________________, whose
social security number is _______________, hereby sells, assigns and transfers
unto _____________________________ or its successor _______________ shares of
Common Stock, $0.01 par value per share, of hotelBANK, Inc. (the "Company"),
standing in my name of the books of the Company, represented by Certificate No.
____________, which is attached hereto, and hereby irrevocably constitutes and
appoints ________________________________ as my attorney to transfer the said
stock on the books of the Company with full power of substitution in the
premises.
WITNESS:
- --------------------------- ------------------------------------
Shareholder
Dated:
---------------------
Grants Under the Plan:
By resolution dated December 17, 1999, the Committee granted Options to certain
employees of the Company, and awarded Award Shares to certain hotelBANK officers
and directors. This award included grants of 5,000 Award Shares at $9.00 per
share, for a total price of $45,000, to the following three named executive
officers: A.L. Giannopoulos, Gary C. Kaufman and Thomas L. Patz. These named
executive officers did not receive any Options in hotelBANK.
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