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EXHIBIT 10.(iii)(A)(8)
AMERICAN CLASSIC VOYAGES CO.
AMENDED AND RESTATED
1995 EMPLOYEE STOCK PURCHASE PLAN
(EFFECTIVE JULY 1, 1998)
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TABLE OF CONTENTS
PAGE NO.
1. Purpose of the Plan 1
2. Definitions 1
2.1 "Account" 1
2.2 "Base Pay" 1
2.3 "Board" 1
2.4 "Common Stock" 1
2.5 "Designated Affiliate" 1
2.6 "Eligible Employee" 1
2.7 "Fair Market Value" 2
2.8 "Offering" 2
2.9 "Offering Date" 2
2.10 "Parent" 2
2.11 "Participant" 2
2.12 "Pay Day" 2
2.13 "Plan Administrator" 2
2.14 "Subsidiary" or "Subsidiaries" 2
3. Offerings 3
4. Price 3
5. Stock Subject to the Plan 3
6. Changes in Capital Structure 3
7. Participation 4
8. Base Pay Deductions 4
9. Granting of Option 5
10. Exercise of Option 5
11. Employee's Rights as a Stockholder 5
12. Disposition of Common Stock 6
13. Withdrawal 6
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14. Carryover of Account 7
15. Interest 7
16. Rights Not Transferable 7
18. Administration of the Plan 8
19. Termination and Amendments to Plan 8
20. Approval of Stockholders 9
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AMERICAN CLASSIC VOYAGES CO.
AMENDED AND RESTATED
1995 EMPLOYEE STOCK PURCHASE PLAN
1. Purpose of the Plan. The American Classic Voyages Co. 1995 Employee
Stock Purchase Plan (the "Plan") was adopted by American Classic Voyages Co., a
Delaware corporation (the "Company"), to encourage stock ownership by all
eligible employees of the Company and its subsidiaries so that they may share in
the results of the Company's operations by acquiring or increasing their
proprietary interest in the Company. The Plan was designed to encourage
eligible employees to remain in the employ of the Company. It has been and is
intended that options issued pursuant to this Plan shall constitute options
issued pursuant to an "employee stock purchase plan" within the meaning of
Section423 of the Internal Revenue Code of 1986, as amended (the "Code").
The Board of Directors of the Company (the "Board") reserved the right
to amend the Plan and has amended the Plan from time to time. The Board hereby
further amends the Plan and restates the Plan and all amendments in this
document, effective as of July 1, 1998.
2. Definitions.
2.1 "Account" means the record of the funds accumulated with respect
to an individual employee as a result of deductions from his or her paycheck for
the purpose of purchasing stock under the Plan.
2.2 "Base Pay" means regular straight time earnings or draw, but
excludes compensation for overtime, commissions, bonuses, amounts paid as
reimbursement of expenses and other additional compensation.
2.3 "Board" means the Board of Directors of the Company.
2.4 "Common Stock" means the Company's Common Stock, $.01 par value.
2.5 "Designated Affiliate" means any corporation which is either a
Subsidiary or a Parent with respect to the Company and whose employees are
designated as eligible to participate in the Plan pursuant to Section 3.3.
2.6 "Eligible Employee" means any person who is an employee of the
Company or a Designated Affiliate on an Offering Date and who has then been an
employee of the Company or a Designated Affiliate continuously for at least
ninety (90) days prior thereto. Notwithstanding the foregoing, a person shall
not be an Eligible Employee if (i) his or her customary employment is 20 hours
or less per week; (ii) his
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or her customary employment is for not more than five months in the calendar
year; or (iii) immediately after the grant of options hereunder in the specific
Offering, he or she would own shares (including all shares which may be
purchased under outstanding options) possessing 5% or more of the total combined
voting power or value of all classes of shares of the Company, or, if
applicable, any Subsidiary or, if applicable, a Parent. For this purpose, the
rules of Section 424(d) of the Code shall apply in determining share ownership.
2.7 "Fair Market Value" (i) as of a day, means the last sale price for
the Common Stock as reported on the National Association of Securities Dealers
Automated Quotation System for such day; or (ii) for an Offering, means the
average of such prices for all of the business days during such Offering.
2.8 "Offering" means one of a series of periods described in Section
3.1 during which Base Pay deductions are made as described in Section 8.
2.9 "Offering Date" means the commencement date of an Offering if such
date is a regular business day or the first business day following such
commencement date.
2.10 "Parent" means any corporation, other than the Company, in the
unbroken chain of corporations ending with the Company if each of the
corporations other than the Company owns stock possessing fifty percent (50%) or
more of the total combined voting power of all classes of stock in one of the
other corporations in such chain.
2.11 "Participant" means an Eligible Employee who has elected to make
Base Pay deductions in connection with an Offering.
2.12 "Pay Day" means the day as of which Base Pay is paid to an
Eligible Employee.
2.13 "Plan Administrator" means the Board or the Committee described in
Section 18 and, except to the extent prohibited by Securities and Exchange
Commission Rule 16b-3, as amended from time to time ("SEC Rule 16b-3"), may
include an agent designated by the Board or such Committee.
2.14 "Subsidiary" or "Subsidiaries" means any corporation or
corporations other than the Company in an unbroken chain of corporations
beginning with the Company if each of the corporations other than the last
corporation in the broken chain owns stock possessing fifty percent (50%) or
more of the total combined voting power of all classes of stock in one of the
other corporations in such claim.
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3. Offerings.
3.1 The first Offering under the Plan shall commence on July 1, 1995,
and terminate on September30, 1995. Thereafter, Offerings shall commence on the
first day of each calendar quarter and terminate on the last day of each
calendar quarter until the Plan is terminated by the Board or no additional
shares of Common Stock of the Company are available for purchase under the Plan.
3.2 In connection with an Offering, each Eligible Employee with
respect to such Offering will be given the opportunity to elect Base Pay
deductions sufficient to purchase Common Stock subject to options granted in
such Offering.
3.3 Any corporation which is either a Parent or a Subsidiary may be
designated by the Plan Administrator as a Designated Affiliate and such
designation shall remain in effect unless and until revoked by the Plan
Administrator.
4. Price. The purchase price per share for each Offering shall be 85% of
the lesser of: (i) the Fair Market Value of the Common Stock on the last
business day of the Offering; or (ii) the greater of (A) the Fair Market Value
of the Common Stock for the Offering, and (B) the Fair Market Value of the
Common Stock on the first business day of the Offering.
5. Stock Subject to the Plan. The aggregate number of shares of Common
Stock available for grant under options shall not exceed 500,000, subject to
adjustment pursuant to Section 6 hereof. Shares of Common Stock subject to
options granted pursuant to the Plan may be either authorized but unissued
shares, shares now held in the treasury of the Company, or shares hereafter
acquired by the Company. In the event that any option granted under the Plan
expires unexercised or is terminated, surrendered or canceled without being
exercised, in whole or in part, for any reason, the number of shares of Common
Stock theretofore subject to such option shall again be available for grant
under an option pursuant to the Plan and shall not reduce the aggregate number
of shares of Common Stock available for grant under such options as set forth in
this Section.
6. Changes in Capital Structure.
6.1 In the event that the outstanding shares of Common Stock of the
Company are hereafter increased or decreased or changed into or exchanged for a
different number or kind of shares or other securities of the Company or of
another corporation, by reason of any reorganization, merger, consolidation,
recapitalization, reclassification, stock split-up, combination of shares, or
dividend payable in shares, appropriate adjustment shall be made by the Board in
the number or kind of shares as to which an option granted under this Plan shall
be exercisable, to the end that the option holder's proportionate interest shall
be maintained as before the occurrence of such
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event. Any such adjustment made by the Board shall be consistent with Section
424(a) of the Code and shall be conclusive.
6.2 If the Company is not the surviving or resulting corporation in
any reorganization, merger, consolidation or recapitalization, each outstanding
option shall be assumed by the surviving or resulting corporation and each
option shall continue in full force and effect, and shall apply to the same
number and class of securities of the surviving corporation as a holder of the
number of shares of Common Stock subject to such option would have received in
such consolidation or recapitalization.
7. Participation.
7.1 An Eligible Employee with respect to an Offering may become a
Participant in connection with the Offering by completing, signing and filing an
enrollment agreement ("Enrollment Agreement") and any other necessary papers
with the Company at least 15 days prior to the commencement of the particular
Offering. Base Pay deductions for a Participant shall commence on the first Pay
Day in the Offering and shall end on the last Pay Day in the Offering unless
earlier terminated by the Participant as provided in Section 13. Subject to
Section 7.2, participation in one Offering under the Plan shall neither limit,
or require, participation in any other offering.
7.2 Unless otherwise specified, an Enrollment Agreement will continue
to apply to succeeding Offerings unless modified or revoked.
8. Base Pay Deductions.
8.1 At the time a Participant files his or her Enrollment Agreement,
he or she shall elect to have deductions made from his or her Base Pay of not
less than $10 or more than 20% of his or her Base Pay on each Pay Day during the
time he or she is a Participant in the Offering.
8.2 All Base Pay deductions made for a Participant shall be credited
to his or her Account under the Plan. A Participant may not make any separate
cash payment into such Account nor may payment for shares be made other than by
Base Pay deduction.
8.3 A Participant may discontinue his or her Base Pay deductions or
participation in the Plan only as provided in Section 13.
8.4 A Participant may change the amount of his or her Base Pay
deductions, pursuant to procedures established by the Company, by submitting a
revised Enrollment Agreement. Any such change shall be effective as soon as
administratively feasible.
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9. Granting of Option.
9.1 On each Offering Date, the Plan shall be deemed to have granted to
the Participant an option for as many full shares as he or she will be able to
purchase with the Base Pay deductions credited to his or her Account during his
or her participation in that Offering.
9.2 Notwithstanding the foregoing, no employee shall be granted an
option which permits his or her rights to purchase Common Stock under the Plan
and any similar employee stock purchase plans of the Company and, if applicable,
a Subsidiary and, if applicable, a Parent to accrue at a rate which exceeds
$25,000 of Fair Market Value of such stock (determined at the time such option
is granted) for each calendar year in which such option is outstanding at any
time. The purpose of the limitation in the preceding sentence is to comply with
Section 423(b)(8) of the Code.
9.3 Except as specifically provided herein, all Eligible Employees
shall have the same rights and privileges under the Plan. All rules and
determinations of the Board in the administration of the Plan shall be uniformly
and consistently applied to all persons in similar circumstances.
9.4 If the total number of shares for which options are to be granted
on any Offering Date in accordance with Section 9.1 exceeds the number of shares
then available under the Plan (after deduction of all shares for which options
have been exercised or are then outstanding), the Company shall make a pro rata
allocation of the shares remaining available in as nearly a uniform manner as
shall be practical and as it shall determine to be equitable.
10. Exercise of Option. Each employee who continues to be a Participant in
an Offering on the last business day of that Offering shall be deemed to have
exercised his or her option on such date and shall be deemed to have purchased
from the Company such number of full shares of Common Stock reserved for the
purpose of the Plan as his or her accumulated Base Pay deductions on such date
will pay for the purchase price. Any balance remaining in a Participant's
Account after such purchase will be subject to Section 14.
11. Employee's Rights as a Stockholder.
11.1 No Eligible Employee shall have any right as a stockholder with
respect to any shares under the Plan until the shares have been purchased in
accordance with Section 10 above and the purchase has been evidenced on the
ownership records of the Company.
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11.2 Shares purchased in an Offering shall be reflected by means of a
book entry record maintained by the Company except to the extent that the
Participant requests that certificates be delivered with respect to such Shares
pursuant to procedures established by the Company, or that certificates are
required to be delivered pursuant to Section 17.3.
11.3 Shares to be delivered to a Participant under the Plan will be
registered in the name of the Participant, or, if the Participant so directs, by
written notice to the Company prior to the termination date of the pertinent
Offering, in the names of the Participant and one such other person as may be
designated by the Participant, as joint tenants with right of survivorship, to
the extent and in the manner permitted by applicable law.
11.4 The obligations of the Company to sell and deliver Common Stock
under the Plan shall be subject to all applicable laws, regulations, rules and
approvals, including, but not by way of limitation, the effectiveness of a
registration statement under the Securities Act of 1933 if deemed necessary or
appropriate by the Company.
11.5 Certificates for shares of Common Stock issued hereunder may be
legended as the Board shall deem appropriate, and may be legended to reflect the
restrictions of Section 12.
12. Disposition of Common Stock. Except as provided in the next sentence,
no "disposition" (as that term is defined in Section 424(c) of the Code) may be
made of any Common Stock purchased under the Plan until the first anniversary of
such purchase. Notwithstanding the foregoing, (i) if a Participant who owns
Common Stock subject to the foregoing restriction is determined by the Plan
Administrator in its discretion to have a serious financial need for the
proceeds of the sale of such Common Stock, then upon application made by the
Participant, the Plan Administrator shall consent to a disposition of such
Common Stock to the extent necessary to satisfy the serious financial need, and
shall give instructions to the transfer agent to register such disposition on
the stock records of the Company; and (ii) if a Participant is no longer an
employee, a director or consultant of the Company or a Designated Affiliate, the
foregoing restriction shall not apply.
13. Withdrawal.
13.1 A Participant may withdraw from the Plan, in whole but not in
part, by delivering a withdrawal notice ("Withdrawal Notice") to the Company at
least 15 days prior to the end of such Offering, in which event the Company will
refund the entire balance of his or her Account as soon as practicable
thereafter.
13.2 To re-enter the Plan, an Eligible Employee who has previously
withdrawn must file a new Enrollment Agreement in accordance with Section 7. His
or
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her re-entry into the Plan cannot, however, become effective before the
beginning of the next Offering following his or her withdrawal. A Participant
may not withdraw from and re-enter the Plan more than twice in any calendar
year.
13.3 A Participant may elect to discontinue his or her Base Pay
deductions during the course of a particular Offering and with respect to such
Offering, by delivering an election to discontinue deductions to the Company,
and such election shall be effective as soon as administratively feasible and
shall not constitute a withdrawal for the purpose of this Section13. In the
event that a Participant elects to discontinue his or her Base Pay deductions
pursuant to this Section 13.3, he or she shall remain a Participant in such
Offering and shall be entitled to purchase from the Company such number of full
shares of Common Stock as set forth in and in accordance with Section 10 of the
Plan. A discontinuance pursuant to this Section 13.3 shall not constitute a
modification or revocation of a Participant's Enrollment Agreement with respect
to subsequent Offerings.
14. Carryover of Account. Unless a Participant elects otherwise, the
Company shall carry over the remaining balance of his or her Account to the next
Offering; provided that only amounts less than the price of a single share in an
Offering may be carried over from the Offering to the next Offering. Upon
termination of the Plan, the balance of each employee's Account shall be
returned to him or her.
15. Interest. No interest will be paid or allowed on any money in the
Accounts of Participants.
16. Rights Not Transferable. No Participant shall be permitted to sell,
assign, transfer, pledge, or otherwise dispose of or encumber either the Base
Pay deductions credited to his or her Account or any rights with regard to the
exercise of an option or to receive shares under the Plan, other than by will or
the laws of descent and distribution, and such right and interest shall not be
liable for, or subject to, the debts, contracts, or liabilities of the
Participant. If any such action is taken by the Participant, or any claim is
perfected by any other party in respect of such right and interest whether by
garnishment, levy, attachment or otherwise, such action or claim will be treated
as an election to withdraw funds in accordance with Section 13.
17. Termination of Employee's Rights.
17.1 An Eligible Employee's rights under the Plan will terminate when
he or she ceases to be an employee because of resignation, layoff, or discharge.
Subject to Section 17.2, a Withdrawal Notice will be considered as having been
received from the employee on the day his or her employment ceases, and all Base
Pay deductions not used will be refunded.
17.2 If a Participant's employment shall be terminated by reason of
retirement, death, or disability prior to the end of an Offering, he or she (or
his or her
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designated beneficiary, in the event of his or her death, or if none, his or her
legal representative) shall have the right, within ninety (90) days of such
retirement, death or disability, to elect to have the balance of his or her
Account either paid to him or her in cash or applied at the end of the current
Offering toward the purchase of Common Stock.
17.3 If a Participant's employment is terminated for any reason,
certificates for shares of Common Stock purchased for him or her (or his or her
designated beneficiary, in the event of his or her death, or if none, his or her
legal representative) shall be distributed, to the extent not previously
distributed, no later than thirty (30) days after the later of (i) the end of
the Offering during which such employment is terminated; or (ii) if applicable,
the end of the Offering during which the election under Section 17.2 is made.
18. Administration of the Plan.
18.1 The Plan shall be administered by the Board, or by a committee
consisting of two or more members of the Board, each of whom shall be a
"non-employee director," which committee (the "Committee") may be an executive,
compensation or other committee, including a separate committee especially
created for this purpose. The Committee shall have such of the powers and
authority vested in the Board hereunder as the Board may delegate to it
(including the power and authority to interpret any provision of this Plan or of
any option). The members of such Committee shall serve at the discretion of the
Board. A majority of the members of the Committee shall constitute a quorum,
and all actions of the Committee shall be taken by a majority of the members
present. Any action may be taken by a written instrument signed by all of the
members of the Committee and any action so taken shall be fully effective as if
it had been taken at a meeting. The Board and/or the Committee, if one has been
established by the Board, shall be referred to in this Plan as the "Plan
Administrator." "Non-Employee Director" shall be defined by reference to the
rules and regulations promulgated under Section 16(b) of the Securities Exchange
Act of 1934, as amended (the "Act").
18.2 Subject to the provisions of the Plan, and with a view to
effecting its purpose, the Plan Administrator shall have sole authority, in its
absolute discretion, to (i) construe and interpret the Plan; (ii) define the
terms used in the Plan; (iii) prescribe, amend and rescind rules and regulations
relating to the Plan; (iv) correct any defect, supply any omission or reconcile
any inconsistency in the Plan; (v) determine the time or times at which options
shall be granted under the Plan; (vi) determine all other terms and conditions
of options; and (vii) make all other determinations necessary or advisable for
the administration of the Plan. All decisions, determinations and
interpretations made by the Plan Administrator shall be binding and conclusive
on all Participants in the Plan and on their legal representatives, heirs and
beneficiaries.
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18.3 Expenses of administration of the Plan will be paid by the
Company.
19. Termination and Amendments to Plan. The Plan may be terminated at any
time by the Board. It will terminate in any case on the earlier of (a) the date
on which all or substantially all of the unissued shares of Common Stock
reserved for the purpose of the Plan have been purchased, or (b) 10 years from
the date the Plan is adopted by the Board. Upon termination of the Plan, all
Base Pay deductions not used to purchase shares will be refunded.
The Board also reserves the right to amend the Plan from time to time in
any respect, provided, however, that no amendment shall be effective without
prior approval of the stockholders (a) which would, except as provided in
Sections 5 and 6, increase the aggregate number of shares of Common Stock to be
issued under the Plan, (b) which would change the class of employees eligible to
receive options under the Plan, or (c) if such amendment requires stockholder
approval for any other reason in order for the Plan to be eligible or continue
to qualify for the benefits conferred by SEC Rule 16b-3, or any successor rule
or regulatory requirements. No amendment may adversely affect an outstanding
option without the consent of the holder thereof unless such amendment is
required by law.
20. Approval of Stockholders. The Plan shall not take effect until
approved by the holders of a majority of the outstanding shares of Common Stock
of the Company, which approval must occur within the period beginning twelve
months before and ending twelve months after the date the Plan is adopted by the
Board.
Date Approved by Board: June 3, 1998
Date Approved by Stockholders: July 1, 1995
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