EXHIBIT 10.10(a)
NEW SAC 2000 RESTRICTED SHARE PLAN
1. PURPOSE OF THE PLAN
The purpose of the Plan is to aid New SAC (the "Company") and its
affiliates in securing and retaining key employees, directors and consultants of
outstanding ability and to motivate such employees, directors and consultants to
exert their best efforts on behalf of the Company and its affiliates by
providing incentive through the grant of restricted share awards ("Awards"). The
Company expects that it will benefit from the added interest which such key
employees and directors will have in the welfare of the Company as a result of
their proprietary interest in the Company's success.
2. SHARES SUBJECT TO THE PLAN
The total number of ordinary shares, par value $.0001, of the Company
(the "Ordinary Shares") that may be issued under the Plan is [ ] and the total
number of preferred shares, par value $.0001, of the Company (the "Preferred
Shares") that may be issued under the Plan is [ ] (the Ordinary Shares and the
Preferred Shares, together, the "Shares"). If any Shares awarded under the Plan
are forfeited by a Participant pursuant to the Plan, such Shares may thereafter
be reissued under the Plan.
3. ADMINISTRATION
The Plan shall be administered by the Compensation Committee of the
Board of Directors of the Company (the "Committee"); provided, however, that any
action permitted to be taken by the Committee may be taken by the Board of
Directors of the Company (the "Board"), in its discretion. The Committee is
authorized to interpret the Plan, to establish, amend and rescind any rules and
regulations relating to the Plan, and to make any other determinations that it
deems necessary or desirable for the administration of the Plan. The Committee
may correct any defect or omission or reconcile any inconsistency in the Plan in
the manner and to the extent the Committee deems necessary or desirable. Awards
may, in the discretion of the Committee, be made under the Plan in assumption
of, or in substitution for, outstanding awards previously granted by the Company
or its affiliates or a company acquired by the Company or with which the Company
combines. The number of Shares underlying such substitute awards shall be
counted against the aggregate number of Shares available for Awards under the
Plan. Any decision of the Committee in the interpretation and administration of
the Plan, as described herein, shall lie within its sole and absolute discretion
and shall be final, conclusive and binding on all parties concerned (including,
but not limited to, participants and their beneficiaries or successors). The
Committee shall have the full power and authority to establish the terms and
conditions of any Award consistent with the provisions of the Plan and to waive
any such terms and conditions at any time.
4. ELIGIBILITY
Key management and other employees, directors and consultants
of the Company and its affiliates, who are from time to time responsible for the
management, growth or protection of the business of the Company and its
affiliates, are eligible to be granted Awards under the Plan. The participants
under the Plan shall be selected from time to time by the Committee, in its
discretion, from among those eligible, and the Committee shall determine, in its
discretion, consistent with the terms of the Plan, the terms and conditions of
the Awards granted to each participant.
5. LIMITATION
No Award may be granted under the Plan after the tenth anniversary of
the Effective Date, but Awards theretofore granted may extend beyond that date.
6. RESTRICTED SHARE AWARDS
Awards granted under this Plan shall be subject to the
following terms and conditions:
(a) The prospective recipient of an Award shall not, with respect
to such Award, be deemed to have become a participant or to
have any rights with respect to such Award until and unless
such recipient (i) shall have executed an Agreement or other
instrument evidencing the Award and its terms and conditions
and delivered a fully executed copy thereof to the Company,
(ii) shall become a signatory to the Management Shareholders
Agreement dated as of November 22, 2000 among the Company and
certain individuals identified therein and (iii) otherwise
complied with the then applicable terms and conditions under
the Plan.
(b) The name of each participant will be entered into the Register
of Members and each participant shall be issued a certificate
in respect of restricted shares awarded under the Plan. Such
certificate shall be registered in the name of the
participant, and shall bear an appropriate legend referring to
the terms, conditions and restrictions applicable to such
Award substantially in the following form:
"THE TRANSFERABILITY OF THIS CERTIFICATE AND THE SHARES
REPRESENTED HEREBY ARE SUBJECT TO THE TERMS AND CONDITIONS
(INCLUDING FORFEITURE) OF THE NEW SAC 2000 RESTRICTED SHARE
PLAN AND AN AGREEMENT ENTERED INTO BETWEEN THE REGISTERED
OWNER AND NEW SAC. COPIES OF SUCH PLAN AND AGREEMENT ARE ON
FILE IN THE OFFICES OF THE SECRETARY OF NEW SAC."
(c) All certificates for restricted shares delivered under this
Plan shall be subject to such share transfer orders and other
restrictions as the Committee may deem advisable under the
rules, regulations and other requirements of the Securities
and Exchange Commission, any stock exchange upon which the
Company's Shares are then listed and any applicable federal or
state securities law, and the Committee may cause a legend or
legends to be put on any such certificates to make appropriate
reference to such restrictions.
(d) The Committee may adopt rules which provide that the share
certificates evidencing such shares may be held in custody by
a bank or other institution, or that the Company may itself
hold such shares in custody until the restrictions thereon
shall have lapsed, and may require as a
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condition of any Award that the participant shall have
delivered a stock power endorsed in blank relating to the
share covered by such Award.
(e) Until such time as the Company is subject to the periodic
reporting requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the Company shall deliver a
balance sheet and an income statement at least annually to
each individual holding Shares issued under the Plan, unless
such individual is a key employee of the Company or its
Affiliates whose duties in connection with the Company (or any
Affiliate) assure such individual access to equivalent
information.
7. RESTRICTIONS AND FORFEITURES
The Shares awarded pursuant to the Plan shall be subject to the
following restrictions and conditions:
(a) During a period set by the Committee of no more than ten years
commencing with the date of an Award (the "Restriction
Period"), the participant will not be permitted to sell,
transfer, pledge, assign or otherwise dispose of restricted
shares awarded pursuant to such Award. If a participant's
employment by the Company should terminate for any reason
during the Restriction Period, unless otherwise provided by
the Committee, the participant shall forfeit the restricted
shares and it shall be returned to the Company in full and
cancelled. However, such forfeiture provisions shall in all
events lapse as to the Shares issued to each participant at
the rate not less than twenty percent (20%) of those Shares
per year of service over the five (5)-year period measured
from the issue date of the Shares and shall immediately lapse
as all the Shares issued to the participant upon the
termination of his or her service by reason of death or
permanent disability. Within these limits the Committee may
provide for the lapse of such restrictions in installments
where deemed appropriate.
(b) Except as provided in Section 7(a), the participant shall have
with respect to the restricted shares all of the rights of a
shareholder of the Company, including the right to vote the
shares and receive dividends and other distributions;
provided, however, that distributions (other than tax
distributions) with respect Shares subject to the Restriction
Period, shall be held by the Company and distributed upon
vesting.
(c) The Committee may impose any conditions on an Award it deems
advisable to ensure the participant's payment to the Company
of any federal, state or local taxes required to be withheld
with respect to such Award.
(d) If the Company provides for the repurchase of the Shares, the
purchase price for such Shares shall be deemed reasonable if
(1) it is not less than the fair market value of the
securities to be repurchased on the date of
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termination of employment and the right to repurchase is
exercised for cash or cancellation of purchase money
indebtedness for the Shares within 90 days of termination of
employment, and the right terminates when the Company's
securities become publicly traded or (2) it is at the original
purchase price, provided that the right to repurchase at the
original purchase price lapses at the rate of at least 20% of
the Shares per year over 5 years from the date the Award is
granted and the right to repurchase must be exercised for cash
or cancellation of purchase money indebtedness for the Shares
within 90 days of termination of employment; provided, that
the securities held by an officer, director , or consultant of
the Company may be subject to additional or greater
restrictions than those provided in (1) and (2) above.
8. ADJUSTMENTS UPON CERTAIN EVENTS
Notwithstanding any other provisions in the Plan to the contrary, the
following provisions shall apply to all Awards granted under the Plan:
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(a) Generally. In the event of any change in the outstanding Shares
after the Effective Date by reason of any Share dividend or split,
reorganization, recapitalization, merger, consolidation, spin-off, combination,
combination or transaction or exchange of Shares or other corporate exchange or
similar or other transaction effecting the value of the Shares including,
without limitation, the repayment of Company indebtedness by an affiliate or
shareholder, or any distribution to shareholders of Shares or the receipt of
proceeds from the sale or other disposition of a subsidiary of the Company other
than regular cash dividends or any transaction similar to the foregoing, the
Committee in its sole discretion and without liability to any person may make
such substitution or adjustment, if any, as it deems to be equitable, as to the
number or kind of Shares or other securities issued or reserved for issuance
pursuant to the Plan.
(b) Change in Control. Except as otherwise provided in an Award
Agreement, in the event of a Change in Control, the Committee in its sole
discretion and without liability to any person may take such actions, if any, as
it deems necessary or desirable with respect to any Award (including, without
limitation, the lapse of the restrictions on an Award); provided, however, that
if the Award is not assumed, substituted or otherwise continued following the
Change in Control, the restrictions on the Award shall lapse immediately prior
to the Change in Control. Change in Control shall mean: (i) (A) the sale or
disposition, in one or a series of related transactions, of all, or
substantially all, of the assets of the Company to any "person" or "group" (as
such terms are defined in Sections 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended) other than Silver Lake Partners, L.P., Texas
Pacific Group, August Capital Partners, Chase Capital Partners and GS Capital
Partners III, L.P. or their affiliates (the "Investors") or (B) any person or
group, other than the Investors, is or becomes the beneficial owner (as defined
in Rule 13d-3 under the Securities Exchange Act of 1934, as amended), directly
or indirectly, of more than 50% of the total voting power of the voting shares
of the Company, including by way of merger, consolidation or otherwise and (ii)
the representative of the Investors (individually or in the aggregate) cease to
comprise a majority of the Board.
9. AMENDMENT OR TERMINATION
The Board or the Committee may amend, alter or discontinue the Plan,
but no amendment, alteration or discontinuation shall be made which, without the
consent of a participant, would diminish any of the rights under any Award
theretofore granted to such participant under the Plan; provided, however, that
the Board or the Committee may amend the Plan in such manner as it deems
necessary to permit the granting of Awards meeting the requirements of the Code
or other applicable laws.
10. NO RIGHT TO EMPLOYMENT
The granting of an Award under the Plan shall impose no obligation on
the Company or any subsidiary to continue the employment of a participant and
shall not lessen or affect the Company's or such subsidiary's right to terminate
the employment of such participant.
11. SUCCESSORS AND ASSIGNS
The Plan shall be binding on all successors and assigns of the Company
and a participant, including without limitation, the estate of such participant
and the executor,
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administrator or trustee of such estate, or any receiver or trustee in
bankruptcy or representative of the participant's creditors.
12. CHOICE OF LAW
The Plan shall be governed by, and construed in accordance with, the
laws of the State of New York, without regard to the conflict of laws provisions
thereof.
13. EFFECTIVENESS OF THE PLAN
The Plan shall be effective as of the date the Plan is adopted by the
Board of Directors and approved by the shareholders of the Company (the
"Effective Date").
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