EXHIBIT 10.11(a)
NEW SAC 2001 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 "Shares") that may be issued under the Plan is 500,000. 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.
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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 SHARES REPRESENTED BY THIS CERTIFICATE
ARE SUBJECT TO (I) A MANAGEMENT SHAREHOLDERS
AGREEMENT AMONG NEW SAC (THE "COMPANY") AND
THE MANAGEMENT SHAREHOLDERS LISTED THEREIN,
DATED AS OF NOVEMBER 22, 2000, AS AMENDED
AND SUPPLEMENTED FROM TIME TO TIME IN
ACCORDANCE WITH THE TERMS THEREOF, AND (II)
A RESTRICTED SHARE AGREEMENT WITH THE
COMPANY RELATING TO SUCH SHARES, A COPY OF
EACH OF WHICH IS ON FILE WITH THE SECRETARY
OF THE COMPANY. THE MANAGEMENT SHAREHOLDERS
AGREEMENT CONTAINS, AMONG OTHER THINGS,
CERTAIN PROVISIONS RELATING TO THE VOTING
AND TRANSFER OF THE SHARES SUBJECT TO THE
AGREEMENT, AND THE RESTRICTED SHARE
AGREEMENT CONTAINS, AMONG OTHER THINGS,
CERTAIN PROVISIONS RELATING TO THE VESTING
OF SUCH SHARES. NO TRANSFER, SALE,
ASSIGNMENT, PLEDGE,
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HYPOTHECATION OR OTHER DISPOSITION OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE,
DIRECTLY OR INDIRECTLY, MAY BE MADE EXCEPT
IN ACCORDANCE WITH THE PROVISIONS OF SUCH
MANAGEMENT SHAREHOLDERS AGREEMENT AND
RESTRICTED SHARE AGREEMENT. THE HOLDER OF
THIS CERTIFICATE, BY ACCEPTANCE OF THIS
CERTIFICATE, AGREES TO BE BOUND BY ALL OF
THE PROVISIONS OF SUCH MANAGEMENT
SHAREHOLDERS AGREEMENT AND RESTRICTED SHARE
AGREEMENT."
"THE SHARES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 AND MAss. Y NOT BE
TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS
THEY HAVE BEEN REGISTERED UNDER THAT ACT OR
AN EXEMPTION FROM REGISTRATION IS
AVAILABLE."
(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 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:
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(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 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.
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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:
(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.
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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, 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").