EXHIBIT 10.3
021303
AMENDED AND RESTATED
CENTEX CORPORATION
2001 STOCK PLAN
1. PURPOSE
The purpose of the Plan is to assist the Company in attracting and
retaining as officers and key employees of the Company and its
Affiliates, and as Directors of the Company, individuals of training,
experience and ability, and to furnish additional incentive to such
individuals by encouraging them to become owners of Shares, by granting
to such individuals Options or Restricted Stock.
2. DEFINITIONS
Unless the context otherwise requires, the following words as used
herein shall have the following meanings:
"Affiliate" -- Any corporation or other entity that is a direct or
indirect parent or subsidiary (including, without limitation,
partnerships and limited liability companies) of the Company.
"Agreement" -- The written agreement, whether delivered on paper or by
electronic medium, between the Company and the Optionee or holder of
Restricted Stock evidencing the Option or Restricted Stock granted by
the Company, which shall be in such form and contain such provisions as
the Committee may prescribe.
"Board" -- The Board of Directors of the Company, as the same may be
constituted from time to time.
"Code" -- The Internal Revenue Code of 1986, as amended from time to
time.
"Committee" -- The Compensation and Stock Option Committee of the
Board, composed solely of two or more Directors who are appointed by
the Board from time to time and who satisfy the requirements of Rule
16b-3(b)(3) promulgated under the Securities Exchange Act of 1934, or
any successor provision.
"Company" -- Centex Corporation, a Nevada corporation.
"Director" -- An individual who is a member of the Board.
"Disability" -- Total and permanent disability as set forth in Section
22(e)(3) of the Code, or any successor provision.
"Fair Market Value" -- The closing price per Share reported on the
consolidated transaction reporting system for the New York Stock
Exchange as of a particular date or, if there shall have been no such
sale so reported on that date, on the last preceding date on which such
a sale was reported.
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"Option" -- A nonqualified option to purchase one or more Shares
granted under and pursuant to the Plan. A nonqualified option does not
satisfy the requirements of Section 422 of the Code, or any successor
provision.
"Optionee" -- An individual who has been granted an Option under the
Plan.
"Plan" -- This Centex Corporation 2001 Stock Plan.
"Restricted Stock" -- Shares issued pursuant to Section 17 of the Plan.
"Share" -- A share of the Company's present twenty-five cents ($0.25)
par value common stock and any share or shares of capital stock or
other securities of the Company hereafter issued or issuable upon, in
respect of or in substitution or in exchange for each present share.
Such Shares may be unissued or reacquired Shares, as the Board, in its
sole and absolute discretion, shall from time to time determine.
3. ADMINISTRATION
Subject to the provisions hereof, the Committee shall have full and
exclusive power and authority to administer this Plan and to take all
actions that are specifically contemplated hereby or are necessary or
appropriate in connection with the administration hereof. The Committee
shall also have full and exclusive power to interpret this Plan and to
adopt such rules, regulations and guidelines for carrying out this Plan
as it may deem necessary or proper, all of which powers shall be
exercised in the best interests of the Company and in keeping with the
objectives of this Plan. The Committee may, in its discretion, provide
for the extension of the exercisability of an Option, accelerate the
vesting or exercisability of an Option or Restricted Stock award,
eliminate or make less restrictive any restrictions applicable to an
Option or Restricted Stock award, waive any restriction or other
provision of this Plan or an Option or Restricted Stock award or
otherwise amend or modify an Option or Restricted Stock award in any
manner that is either (i) not adverse to the Optionee or holder of
Restricted Stock to whom such Option or Restricted Stock was granted or
(ii) consented to by the Optionee or holder of Restricted Stock. The
Committee may correct any defect or supply any omission or reconcile
any inconsistency in this Plan or in any award in the manner and to the
extent the Committee deems necessary or desirable to further the Plan
purposes. Any decision of the Committee in the interpretation and
administration of this Plan shall lie within its sole and absolute
discretion and shall be final, conclusive and binding on all parties
concerned.
4. SHARES SUBJECT TO PLAN
(a) A maximum of 1,750,000 Shares shall be subject to grants of
Options or awards of Restricted Stock under the Plan;
provided, however, that of such number of Shares, no more than
175,000 Shares shall be subject to awards of Restricted Stock;
and provided further, that such maximum shall be increased or
decreased as provided in Section 12 hereof. The Shares subject
to the Plan shall consist of unissued Shares or previously
issued Shares reacquired and held by the Company or any
Affiliate.
(b) At any time and from time to time after the Plan takes effect,
the Committee, pursuant to the provisions herein set forth,
may grant Options and award Restricted Stock until the maximum
number of Shares shall be exhausted or the Plan shall be
sooner terminated.
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(c) If any Option expires or is canceled without being fully
exercised or is settled in cash, or if any Restricted Stock
previously awarded is reacquired by the Company, the number of
Shares with respect to which such Option shall not have been
exercised prior to its expiration or cancellation and the
number of Shares of such Restricted Stock so reacquired may
again be optioned or awarded pursuant to the provisions
hereof.
(d) If the option price or any applicable tax withholding
obligation payable upon exercise of an Option is satisfied by
the tender or withholding of Shares to or by the Company (by
either actual delivery or attestation), the number of Shares
so tendered or withheld shall be eligible for reissuance under
the Plan.
5. ELIGIBILITY
Eligibility for receipt of a grant of Options under the Plan shall be
confined to (a) a limited number of persons who are employed by the
Company or an Affiliate and hold key positions in and for the Company
or an Affiliate and (b) Directors.
6. GRANTING OF OPTIONS
(a) From time to time while the Plan is in effect, the Committee
may in its absolute discretion select from among the persons
eligible to receive a grant of Options under the Plan
(including persons who have already received such grants of
Options) such one or more of them as in the opinion of the
Committee should be granted Options. The Committee shall
thereupon, likewise in its absolute discretion, determine the
number of Shares to be allotted for option to each person so
selected.
(b) Each person so selected shall be granted an Option to purchase
the number of Shares so allotted to him, upon such terms and
conditions, consistent with the provisions of the Plan, as the
Committee may specify.
(c) Each Option granted under the Plan shall be evidenced by an
Agreement setting forth the terms and conditions of the
Option. The date that the Committee specifies to be the grant
date of an Option to an individual shall constitute the date
on which the Option covered by such Agreement is granted. In
no event, however, shall an Optionee gain any rights in
addition to those specified by the Committee in its grant,
regardless of the time that may pass between the grant of the
Option and the actual execution of the Agreement by the
Company and the Optionee.
(d) No person may be granted Options under this Plan for more than
250,000 Shares in any one-year period.
7. OPTION PRICE
The option price for each Share covered by each Option shall not be
less than 100% of the Fair Market Value of the Share at the time the
Option is granted. Notwithstanding the foregoing, if there occurs any
transaction of a type described in Section 12(a), (b) or (c) hereof,
the option price of the Shares subject to each existing Option adjusted
pursuant to such provisions or any new Option or assumed option issued
pursuant to such provisions may be different than the Fair
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Market Value of the Shares at the time the Option is granted; provided,
however, in no event shall -
(a) the excess of the aggregate Fair Market Value of the Shares
subject to the Option immediately after the transaction over
the aggregate option price of such Shares be more than the
excess of the aggregate Fair Market Value of all shares
subject to the other option immediately prior to the
transaction over the aggregate option price of shares subject
to the other option; and
(b) the ratio of the option price to the Fair Market Value of the
Shares subject to the Option immediately after the transaction
be more favorable to the Optionee than the ratio of the option
price to the Fair Market Value of the shares subject to the
other option immediately prior to such transaction, determined
on a share-by-share basis.
8. OPTION PERIOD
Each Option shall run for such period of time as the Committee may
specify, but in no event for longer than seven (7) years from the date
when the Option is granted, including the period of time provided in
the subsections of this Section 8; and subject to the following limits:
(a) Except as provided below in this subsection (a), all rights to
exercise an Option shall terminate within four (4) months
after the date the Optionee ceases to be an employee of the
Company or an Affiliate, or after the date the Optionee ceases
to be a Director, whichever may occur later, for any reason
other than death or Disability (but in no event later than the
end of the original period of the Option); except that (i) in
the case of an Optionee who is a Director and, on the date the
Optionee ceases to be a Director (and if also an employee
ceases to be an employee), has (A) at least ten (10) years of
service as a Director, all Shares subject to such Option will
vest on such date and all rights to exercise such Option shall
terminate three (3) years after the date the Optionee ceases
to be a Director (but in no event later than the end of the
original period of the Option), or (B) less than ten (10)
years of service as a Director, all Shares subject to such
Option will continue to vest in accordance with its terms for
a period of three (3) years following such date, and all
rights to exercise such Option shall terminate three (3) years
after such date; and (ii) if the Optionee's employment or
service as a Director is terminated for cause, the entire
Option, including both exercisable and unexercisable Shares,
shall immediately terminate and thereafter be null and void
for all purposes.
(b) If the Optionee ceases to be employed by the Company and its
Affiliates, or ceases to be a Director, whichever may occur
later, by reason of his death, all rights to exercise any
Option held by such Optionee shall terminate fifteen (15)
months after his death (but in no event later than the end of
the original period of the Option).
(c) If the employment of the Optionee with the Company or any of
its Affiliates shall terminate as a result of a Disability, he
may, within six (6) months following such date (but in no
event later than the end of the original period of the
Option), exercise any Option held by such Optionee, in each
case, to the extent he was entitled to exercise such Option on
the date of termination of employment. To the extent that the
Shares covered by his Option were unexercisable as of such
termination of employment, the Option shall terminate. If the
Optionee does not exercise such Option (which he was entitled
to
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exercise as of such termination) within the time specified
herein, the Option shall thereupon terminate.
(d) If an Option is granted with a term shorter than seven (7)
years, the Committee may extend the term of the Option, but
for not more than seven (7) years from the date when the
Option was originally granted.
9. OPTIONS NOT TRANSFERABLE
Unless otherwise determined by the Committee and provided in the
Agreement, no Option or interest therein shall be transferable by an
Optionee otherwise than by will or by the applicable laws of descent
and distribution. The Committee may prescribe and include in an
Agreement any applicable restrictions or conditions on transfer of
Options. Any attempted assignment in violation of this Section 9 shall
be null and void.
10. EXERCISE OF OPTIONS
(a) During the lifetime of an Optionee, only he or his guardian or
legal representative or transferee may exercise an Option
granted to him. In the event of his death, any then
exercisable portion of his Option may, within fifteen (15)
months thereafter or earlier date of termination of the
original period of Option, be exercised in whole or in part by
any person empowered to do so under the deceased Optionee's
will or under the applicable laws of descent and distribution.
(b) At any time, and from time to time, during the period when any
Option, or a portion thereof, is exercisable, such Option, or
portion thereof, may be exercised in whole or in part;
provided, however, that the Committee may require in the
Agreement that any Option which is partially exercised be so
exercised with respect to at least a stated minimum number of
Shares.
(c) Each exercise of an Option or portion or part thereof shall be
evidenced by a notice in writing by or on behalf of the
Optionee to the Company. The purchase price of the Shares for
which an option is exercised must be paid prior to issuance of
the Shares. The Exercise price of an Option must be paid by
cash, certified or cashiers' check, wire transfer, delivery
(either actually or by attestation) of whole Shares that have
been acquired or held by the Optionee for at least six months
prior to the date the option is exercised, or any combination
of the aforementioned methods of payment, prior to issuance of
the Shares. For purposes of determining the amount, if any, of
the option price satisfied by in Shares, such Shares shall be
valued at their Fair Market Value on the date of exercise. Any
Shares actually delivered in satisfaction of all or a portion
of the option price shall be appropriately endorsed for
transfer and assignment to the Company.
(d) No Shares shall be issued until full payment therefor has been
made, and an Optionee shall have none of the rights of a
stockholder until Shares are issued to him.
(e) Nothing herein or in any Agreement evidencing an Option
granted hereunder shall require the Company to issue any
Shares upon exercise of an Option if such issuance would, in
the opinion of counsel for the Company, constitute a violation
of the Securities Act of 1933, as amended, or any similar or
superseding statute or statutes, or any other applicable
statute or regulation, as then in effect. Upon the exercise of
an Option or
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portion or part thereof, the Optionee shall give to the
Company satisfactory evidence that he is acquiring such Shares
for the purpose of investment only and not with a view to
their distribution; provided, however, if or to the extent
that the Shares subject to the Option shall be included in a
registration statement filed by the Company or an Affiliate,
such investment representation shall not be required.
11. DELIVERY OF SHARES UPON EXERCISE
As promptly as may be practicable after an Option, or a portion or part
thereof, has been exercised as hereinabove provided, the Company shall
make delivery of the Shares acquired upon exercise of such Option to
the Optionee or shall cause such Optionee's interest in such Shares to
be evidenced by an entry on the Company's books and records.
12. CHANGES IN COMPANY'S SHARES AND CERTAIN CORPORATE TRANSACTIONS
(a) If at any time while the Plan is in effect there shall occur
any subdivision or consolidation of outstanding Shares,
declaration of a dividend payable in Shares or other stock
split, then, and in each such event, the Committee shall make
proportionate adjustments to:
(i) the maximum number of Shares then subject to being
optioned or awarded as Restricted Stock under the
Plan, to the end that the same proportion of the
Company's issued and outstanding Shares shall
continue to be subject to being so optioned and
awarded;
(ii) the number of Shares and the option price per Share
thereof then subject to purchase pursuant to each
Option previously granted, to the end that the same
proportion of the Company's issued and outstanding
Shares shall remain subject to purchase at the same
aggregate option price;
(iii) the number of Shares of Restricted Stock previously
awarded under the Plan, to the end that each award
represents the same proportion of the Company's
issued and outstanding Shares; and
(iv) the number of Shares subject to Options that may be
granted to any person in any one-year period pursuant
to the limitation set forth in Section 6(d), to the
end that each such limitation represents the same
proportion of the Company's issued and outstanding
Shares.
(b) If at any time while the Plan is in effect there shall occur
any other recapitalization or capital reorganization of the
Company, any consolidation or merger of the Company with
another corporation or entity, the adoption by the Company of
any plan of exchange affecting the Shares or any distribution
to holders of Shares of securities or property (other than
normal cash dividends or dividends payable in Shares), the
Committee may make proportionate adjustments to:
(i) the number of Shares and the option price per Share
thereof then subject to purchase pursuant to each
Option previously granted;
(ii) the number of Shares of Restricted Stock previously
awarded under the Plan; and
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(iii) the number of Shares subject to Options that may be
granted to any person in any one-year period pursuant
to the limitation set forth in Section 6(d);
in each case, in order to reflect the transaction and (in the
case of clauses (i) and (ii) above) to the end of maintaining
the proportionate interest of the holders of Options and
Shares of Restricted Stock; provided, however, that such
adjustments shall only be made to the extent necessary to
preserve, without exceeding, the value of such Options and
Shares of Restricted Stock.
(c) In the event of a merger, consolidation, acquisition of
property or stock, separation, reorganization or liquidation,
the Committee shall be authorized to issue or assume new
Options or Shares of Restricted Stock as it determines is
appropriate in substitution for, or to reflect the assumption
of, any other option, restricted stock grant or other award,
whether or not awarded under this Plan.
(d) Except as is otherwise expressly provided herein, the issuance
by the Company of shares of its capital stock of any class or
securities convertible into shares of capital stock of any
class, either in connection with a direct sale or upon the
exercise of rights or warrants to subscribe therefor, or upon
conversion of shares or obligations of the Company convertible
into such shares or other securities, shall not affect, and no
adjustment by reason thereof shall be made with respect to,
the number of or option price of Shares then subject to
outstanding Options granted under the Plan. Furthermore, the
presence of outstanding Options granted under the Plan shall
not affect in any manner the right or power of the Company to
make, authorize or consummate (i) any or all adjustments,
recapitalizations, reorganizations or other changes in the
Company's capital structure or its business; (ii) any merger
or consolidation of the Company; (iii) any issuance by the
Company of debt securities or preferred or preference stock
that would rank above the Shares subject to outstanding
Options or Shares of Restricted Stock granted under the Plan;
(iv) the dissolution or liquidation of the Company; (v) any
sale, transfer or assignment of all or any part of the assets
or business of the Company; or (vi) any other corporate act or
proceeding, whether of a similar character or otherwise.
(e) Notwithstanding anything to the contrary above, a dissolution
or liquidation of the Company, a merger (other than a merger
effecting a reincorporation of the Company in another state)
or consolidation in which the Company is not the surviving
corporation (or survives only as a subsidiary of another
corporation in a transaction in which the stockholders of the
parent of the Company and their proportionate interests
therein immediately after the transaction are not
substantially identical to the stockholders of the Company and
their proportionate interests therein immediately prior to the
transaction) or a change in control (as specified below) shall
cause every Option then outstanding to become exercisable in
full and shall cause every restriction with respect to any
Shares of Restricted Stock to terminate immediately prior to
such dissolution, liquidation, merger, consolidation or change
in control, to the extent not theretofore exercisable or free
of restrictions, without regard to the determination as to the
periods and installments of exercisability or termination of
restrictions contained in the Agreements if, and only if, such
Options have not at that time theretofore expired or been
terminated or such Shares of Restricted Stock have not at that
time theretofore been cancelled or forfeited. For purposes of
this Section 12(c), a change in control shall be deemed to
have taken place if (i) a third person, including a "group" as
defined in Section 13(d)(3) of the Securities Exchange Act of
1934, becomes the beneficial owner of Shares of the Company
having
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50% or more of the total number of votes that may be cast for
the election of directors of the Company or (ii) as a result
of, or in connection with, a contested election for directors,
the persons who were directors of the Company immediately
before such election shall cease to constitute a majority of
the Board. Notwithstanding the foregoing provisions of this
paragraph, in the event of any such dissolution, merger,
consolidation or change in control, the Board may completely
satisfy all obligations of the Company and its Affiliates with
respect to any Options or Shares of Restricted Stock
outstanding on the date of such event and cancel such Options
or Shares of Restricted Stock by (A) in the case of Options,
delivering to the Optionee cash in an amount equal to the
difference between the aggregate option price for Shares under
the Options and the Fair Market Value of such Shares on the
date of such event and (B) in the case of Shares of Restricted
Stock, delivering to the holder of such Shares cash in an
amount equal to the Fair Market Value of such Shares on the
date of such event, which payment shall in either case be made
within a reasonable time after such event.
13. EFFECTIVE DATE
The Plan shall be effective on May 17, 2001, the date of its adoption
by the Board, but shall be submitted to the stockholders of the Company
for approval at the next regular or special meeting thereof to be held
within twelve (12) months after the Board shall have adopted the Plan.
If, at such a meeting of the stockholders of the Company, the Plan is
not approved by the affirmative vote of a majority of the $0.25 par
value common stock of the Company present and entitled to vote at such
meeting, then, and in such event, the Plan and all Options granted
under the Plan and all awards of Restricted Stock under the Plan shall
become null and void and of no further force or effect.
14. AMENDMENT, SUSPENSION OR TERMINATION OF THE PLAN
The Board may amend, suspend or terminate this Plan for the purpose of
meeting or addressing any changes in legal requirements or for any
other purpose permitted by law, except that (a) no amendment or
alteration that would adversely affect the rights of any holder under
any award previously granted to such person shall be made without the
consent of such person and (b) after the stockholders of the Company
have ratified the Plan, no amendment or alteration that would increase
the maximum number of Shares subject to the Plan (as provided in
Section 4(a)) or decrease the option price of an Option below 100% of
the Fair Market Value as of the date such Option was granted (as
provided in Section 7) may be made without obtaining approval of the
stockholders.
15. REQUIREMENTS OF LAW
Notwithstanding anything contained herein to the contrary, the Company
shall not be required to sell or issue Shares under any Option if the
issuance thereof would constitute a violation by the Optionee or the
Company of any provisions of any law or regulation of any governmental
authority or any national securities exchange. As a condition of any
sale or issuance of Shares under an Option, the Company may require
such agreements or undertakings, if any, as the Company may deem
necessary or advisable to ensure compliance with any such law or
regulation.
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16. MODIFICATION OF OPTIONS
Except as provided in Section 12, notwithstanding any other provision
of this Plan to the contrary, (i) after an Option has been awarded, the
price at which Shares may be purchased upon exercise of such Option
shall not be amended and (ii) no Option shall be granted in exchange
for a previously granted Option if the option price of such previously
granted Option is greater than the option price of such replacement
Option. Notwithstanding the foregoing provisions of this Section 16, no
modification or cancellation of an Option granted hereunder shall,
without the consent of the Optionee, alter or impair any rights or
obligations under any Option theretofore granted hereunder to such
Optionee under the Plan.
17. RESTRICTED STOCK
(a) Subject to the terms and conditions of, and within the
limitations of, the Plan, Shares of Restricted Stock may be
awarded by the Committee to such individuals as are eligible
for grants of Options, as the Committee may determine at any
time and from time to time before the termination of the Plan.
Each award of Restricted Stock shall be evidenced by an
Agreement setting forth the terms and conditions of the award.
(b) A Share of Restricted Stock is a Share that does not
irrevocably vest in the holder or that may not be sold,
exchanged, pledged, transferred, assigned or otherwise
encumbered or disposed of until the terms and conditions set
by the Committee at the time of the award of the Restricted
Stock have been satisfied. A Share of Restricted Stock shall
be subject to such other restrictions, terms and conditions as
the Committee may establish, which may include, without
limitation, the rendition of services to the Company or its
Affiliates for a specified time or the achievement of specific
goals.
(c) If an individual receives Shares of Restricted Stock, whether
or not escrowed as provided below, the individual shall be the
record owner of such Shares and shall have all the rights of a
stockholder with respect to such Shares (unless the escrow
agreement, if any, specifically provides otherwise), including
the right to vote and the right to receive dividends or other
distributions made or paid with respect to such Shares. Any
certificate or certificates representing Shares of Restricted
Stock may bear a legend similar to the following:
The shares represented by this certificate have been
issued pursuant to the terms of the Centex
Corporation 2001 Stock Plan and may not be sold,
pledged, transferred, assigned or otherwise
encumbered in any manner except as set forth in the
terms of such award dated ________________, 20___.
(d) In order to enforce the restrictions, terms and conditions
that may be applicable to an individual's Shares of Restricted
Stock, the Committee may require the individual, upon the
receipt of a certificate or certificates representing such
Shares, or at any time thereafter, to deposit such certificate
or certificates, together with stock powers and other
instruments of transfer, appropriately endorsed in blank, with
the Company or an escrow agent designated by the Company under
an escrow agreement in such form as shall be determined by the
Committee.
(e) After the satisfaction of the terms and conditions set by the
Committee at the time of an award of Restricted Stock to an
individual, if the original certificate was legended, a new
certificate, without the legend set forth above, for the
number of Shares that are no
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longer subject to such restrictions, terms and conditions
shall be delivered to the individual, either by delivery of a
physical certificate or an electronic transfer to a broker.
(f) The Committee may cancel all or any portion of any outstanding
restrictions prior to the expiration of such restrictions with
respect to any or all of the Shares of Restricted Stock
awarded to an individual hereunder on such terms as the
Committee may deem appropriate.
(g) Subject to the other provisions of this Section 17 and unless
otherwise determined by the Committee, if an individual to
whom Restricted Stock has been awarded ceases to be employed
by the Company or an Affiliate, or ceases to be a director of
the Company, whichever may occur later, for any reason prior
to the satisfaction of any terms and conditions of an award,
any Restricted Stock remaining subject to restrictions shall
thereupon be forfeited by the individual and transferred to,
and reacquired by, the Company or an Affiliate at no cost to
the Company or the Affiliate. In such event, the individual,
or in the event of his death, his personal representative,
shall forthwith deliver to the Secretary of the Company the
certificates for the Shares of Restricted Stock remaining
subject to such restrictions, accompanied by such instruments
of transfer, if any, as may reasonably be required by the
Secretary of the Company.
(h) The Committee may determine that an award of Restricted Stock
will be subject to restriction until one or more performance
goals established by the Committee have been achieved. With
respect to such an award, the restrictions shall lapse and the
award shall vest only upon achievement of the attainment of
one or more pre-established, objective performance goals
established by the Committee prior to the earlier to occur of
(x) 90 days after the commencement of the period of service to
which the performance goal relates and (y) the lapse of 25% of
the period of service (as established in good faith at the
time the goal is established), and in any event while the
outcome is substantially uncertain. A performance goal is
objective if a third party having knowledge of the relevant
facts could determine whether the goal is met. Such a
performance goal may be based on one or more business criteria
that apply to the individual, one or more business units of
the Company, or the Company as a whole, and may include one or
more of the following: operating income, operating margin,
earnings before interest, taxes, depreciation and amortization
(EBITDA), pre-tax income, net income, net earnings per share,
net earnings per share growth, return on beginning
stockholder's equity, return on average net assets, total
shareholder return relative to other companies in Centex
Corporation's industry group, debt/capitalization ratio and
customer satisfaction. Unless otherwise stated, such a
performance goal need not be based upon an increase or
positive result under a particular business criterion and
could include, for example, maintaining the status quo or
limiting economic losses (measured, in each case, by reference
to specific business criteria). In interpreting Plan
provisions applicable to performance goals, it is the intent
of the Plan to conform with the standards of Section 162(m) of
the Code and Treasury Regulation Section 1.162-27(e)(2)(i),
and the Committee in establishing such goals and interpreting
the Plan shall be guided by such provisions. Prior to the
payment of any compensation based on the achievement of
performance goals, the Committee must certify in writing that
applicable performance goals and any of the material terms
thereof were, in fact, satisfied. No individual may be granted
Restricted Stock awards subject to performance goals designed
to comply with Section 162(m) of the Code having a value of
more than $6,000,000 in any given one-year period.
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18. TAX WITHHOLDING
The Company shall have the right to take whatever affirmative actions
are required, in the opinion of the Committee, to enable the Company or
appropriate Affiliate to satisfy any applicable payroll tax withholding
requirements in connection with the exercise of Options granted or
Restricted Stock awarded under the Plan. Without limiting the
generality of the foregoing provision, the Company shall have the right
to (a) withhold cash from a same-day-sale exercise of an Option, (b)
deduct applicable taxes from any Option or Restricted Stock award by
withholding, at the time of delivery and/or vesting of Shares under the
Plan, an appropriate number of Shares for payment of taxes required by
law, (c) permit its withholding obligations to be satisfied by the
transfer to the Company of Shares theretofore owned by the holder of
the Option or recipient of Restricted Stock with respect to which
withholding is required, in which case such Shares shall be valued
based on the Fair Market Value thereof when the tax withholding is
required to be made, or (d) take such other action as may be necessary
in the opinion of the Company to satisfy all applicable tax withholding
obligations.
19. GENERAL
(a) The proceeds received by the Company from the sale of Shares
pursuant to Options shall be used for general corporate
purposes.
(b) Nothing contained in the Plan or in any Agreement shall confer
upon any Optionee or recipient of Restricted Stock the right
to continue in the employ of the Company or any Affiliate or
interfere in any way with the rights of the Company or any
Affiliate to terminate such Optionee's or recipient's
employment at any time.
(c) Neither the members of the Board nor any member of the
Committee shall be liable for any act, omission or
determination taken or made in good faith with respect to the
Plan or any Option or award of Restricted Stock granted under
it, and the members of the Board and the Committee shall be
entitled to indemnification and reimbursement by the Company
in respect of any claim, loss, damage or expense (including
counsel fees) arising therefrom to the full extent permitted
by law and under any directors and officers liability or
similar insurance coverage that may be in effect from time to
time.
(d) As partial consideration for the granting of each Option or
award of Restricted Stock hereunder, the Optionee or recipient
shall agree with the Company that he will keep confidential
all information and knowledge that he has relating to the
manner and amount of his participation in the Plan; provided,
however, that such information may be disclosed as required by
law or given in confidence to the individual's spouse, tax or
financial advisors or to a financial institution to the extent
that such information is necessary to secure a loan.
(e) Participation in the Plan shall not preclude an individual
from eligibility in any other stock option plan of the Company
or any Affiliate or any old-age benefit, insurance, pension,
profit sharing, retirement, bonus or other extra compensation
plans that the Company or any Affiliate has adopted or may, at
any time, adopt for the benefit of its employees or directors.
(f) Any payment of cash or any issuance or transfer of Shares to
the Optionee or to his legal representative, heir, legatee or
distributee in accordance with the provisions hereof shall,
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to the extent thereof, be in full satisfaction of all claims
of such persons hereunder. The Board or Committee may require
any Optionee or recipient of an award of Restricted Stock,
legal representative, heir, legatee or distributee, as a
condition precedent to such payment, to execute a release and
receipt therefor in such form as it shall determine.
(g) Neither the Committee, the Board nor the Company guarantees
the Shares from loss or depreciation.
(h) All expenses incident to the administration of the Plan,
including, but not limited to, legal and accounting fees,
shall be paid by the Company or its Affiliates.
(i) Records of the Company and its Affiliates regarding an
individual's period of employment, termination of employment
and the reason therefor, leaves of absence, reemployment,
tenure as a Director and other matters shall be conclusive for
all purposes hereunder, unless determined by the Board or
Committee to be incorrect.
(j) The Company and its Affiliates shall, upon request or as may
be specifically required hereunder, furnish or cause to be
furnished all of the information or documentation that is
necessary or required by the Board or Committee to perform
their duties and functions under the Plan.
(k) The Company assumes no obligation or responsibility to an
Optionee or recipient of Restricted Stock, or to such
Optionee's or recipient's personal representatives, heirs,
legatees or distributees, for any act of, or failure to act on
the part of, the Board or Committee.
(l) Any action required of the Company shall be by resolution of
the Board or by a person authorized to act by resolution of
the Board. Any action required of the Committee shall be by
resolution of the Committee or by a person authorized to act
by resolution of the Committee.
(m) If any provision of the Plan or any Agreement is held to be
illegal or invalid for any reason, the illegality or
invalidity shall not affect the remaining provisions of the
Plan or the Agreement, as the case may be, but such provision
shall be fully severable and the Plan or the Agreement, as the
case may be, shall be construed and enforced as if the illegal
or invalid provision had never been included herein or
therein.
(n) Whenever any notice is required or permitted hereunder, such
notice must be in writing and personally delivered or sent by
mail. Any notice required or permitted to be delivered
hereunder shall be deemed to be delivered on the date on which
it is personally delivered or, whether actually received or
not, on the third business day after it is deposited in the
United States mail, certified or registered, postage prepaid,
addressed to the person who is to receive it at the address
that such person has theretofore specified by written notice
delivered in accordance herewith. The Company, an Optionee or
a recipient of Restricted Stock may change, at any time and
from time to time, by written notice to the other, the address
that it, he or she had theretofore specified for receiving
notices. Until changed in accordance herewith, the Company and
each Optionee and recipient of Restricted Stock shall specify
as its and his address for receiving notices the address set
forth in the Agreement pertaining to the shares of Stock to
which such notice
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relates or otherwise provided to the other in accordance with
the Company's policies for maintaining such information.
(o) Any person entitled to notice hereunder may waive such notice.
(p) The Plan shall be binding upon the Optionee or recipient of
Restricted Stock, his heirs, legatees and legal
representatives, upon the Company, its successors and assigns,
and upon the Board and Committee and their successors.
(q) The titles and headings of Sections and paragraphs are
included for convenience of reference only and are not to be
considered in construction of the provisions hereof.
(r) All questions arising with respect to the provisions of the
Plan shall be determined by application of the laws of the
State of Nevada, except to the extent Nevada law is preempted
by federal law. The obligation of the Company to sell and
deliver Shares hereunder is subject to applicable laws and to
the approval of any governmental authority required in
connection with the authorization, issuance, sale or delivery
of such Shares.
(s) Words used in the masculine shall apply to the feminine where
applicable, and wherever the context of the Plan dictates, the
plural shall be read as the singular and the singular as the
plural.
(t) Transactions related to the Plan, including but not limited to
the delivery and acceptance of any Agreement and the exercise
of any Option, whether in whole or in part, may be evidenced
by either signed documentation or on-line transactions through
the Corporate Stock Benefit Services web site of the Company's
designated broker, UBS PaineWebber Inc., or the successor
thereof.
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