EXHIBIT 10.16
INTEGRATED BUSINESS SYSTEMS AND SERVICES, INC.
2001 STOCK INCENTIVE PLAN
AMENDED AND RESTATED AS OF MARCH 18, 2004
1. PURPOSES
1.1. The purposes of the Integrated Business Systems and Services, Inc.
2001 Stock Incentive Plan are to (a) provide an incentive and reward to
directors and employees of the Company, and consultants and advisors to the
Company, who are and have been in a position to contribute materially to
improving the Company's profits, (b) aid in the growth of the Company, and (c)
encourage ownership of Shares by directors and employees.
2. DEFINITIONS
2.1. For purposes of this Plan, the following capitalized terms shall
have the definitions which are attributed to them below, unless another
definition is clearly indicated by a particular usage and context.
(a) "Agreement" means the written document issued by the
Committee to a Participant whereby an Award is made to that Participant.
(b) "Award" means the issuance of an Option, an SAR or
Restricted Stock pursuant to this Plan.
(c) "Awarded Shares" means Shares subject to outstanding
Awards.
(d) "Board" means the Company's Board of Directors.
(e) "Cause" means (1) theft or destruction of property of the
Company, a Parent or Subsidiary; (2) disregard of Company rules or policies; or
(3) conduct evidencing willful or wanton disregard of the interest of the
Company. Such determination shall be made by the Committee based on information
presented by the Company and the Participant and shall be final and binding on
all parties.
(f) "Code" means the Internal Revenue Code of 1986, as
amended.
(g) "Committee" means the Stock Incentive Plan Committee(s)
appointed by the Board pursuant to Section 3.1.
(h) "Company" means Integrated Business Systems and Services,
Inc., a corporation incorporated under the laws of the state of South Carolina,
and any successor thereto.
(i) "Consultant" means any person or entity that provides
services to the Company as a consultant or advisor.
(j) "Director" means any individual appointed or elected to
the Board.
(k) "Effective Date of Grant" means the effective date on
which the Committee makes an Award.
(l) "Employee" means any individual who performs services as a
common law employee for the Company, a Parent or Subsidiary, and is included on
the regular payroll of the Company, a Parent or Subsidiary.
(m) "Fair Market Value" means the value established by the
Committee based upon such factors as the Committee in its sole discretion shall
decide, including, but not limited to, a valuation prepared by an independent
third party appraiser selected or approved by the Committee. If at any time the
Shares are traded on an established trading system, it means the last sale price
reported on any stock exchange or over-the counter trading system on which
Shares are trading on a specified date or, if not so trading, the average of the
closing bid and asked prices for a Share on a specified date. If no sale has
been made (or there are no closing bid or asked prices) on the specified date,
then the sale price (or closing bid and asked prices) on the last preceding day
on which any such sale (or closing bid and asked prices) shall have occurred
shall be used in determining fair market value under the applicable method
prescribed in the previous sentence.
(n) "Incentive Stock Option" means any Option granted under
this Plan which meets the requirements of Section 422 of the Code and any
regulations or rulings promulgated thereunder and is designated by the Committee
as an Incentive Stock Option.
(o) "Nonqualified Stock Option" means any Option granted under
this Plan which is not an Incentive Stock Option.
(p) "Option" means the right to purchase from the Company a
stated number of Shares at a specified price.
(q) "Option Price" means the purchase price per Share subject
to an Option and shall be fixed by the Committee.
(r) "Parent" means any corporation (other than the Company) in
an unbroken chain of corporations ending with the Company if, at the time of the
granting of the Award, each of the corporations (other than the Company) owns
stock possessing 50% or more of the total combined voting power of all classes
of stock in one of the other corporations in such chain within the meaning of
Section 424(e) of the Code and any regulations or rulings promulgated
thereunder.
(s) "Participant" means a Director, an Employee or a
Consultant who has received an Award under this Plan.
(t) "Permanent and Total Disability" shall have the same
meaning as given to that term by Section 22(e)(3) of the Code and any
regulations or rulings promulgated thereunder.
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(u) "Plan" means this Integrated Business Systems and
Services, Inc. 2001 Stock Incentive Plan, amended and restated as of March 18,
2004, as evidenced herein and as amended from time to time.
(v) "Restricted Stock" means Shares issued to the Participant
pursuant to Section 9 which are subject to the restrictions of this Plan and the
Agreement.
(w) "Restriction Period" means a period commencing on the
Effective Date of Grant and ending on such date or upon the achievement of such
performance or other criteria as the Committee shall determine. The Restriction
Period may, in the sole discretion of the Committee, be structured to provide
for a release of restrictions in installments.
(x) "SAR" means stock appreciation rights issued to a
Participant pursuant to Section 8.
(y) "SAR Price" means the base value established by the
Committee for an SAR on the Effective Date of Grant used in determining the
amount of benefit, if any, paid to a Participant.
(z) "Share" means one share of the common stock of the
Company.
(aa) "Subsidiary" means any corporation in an unbroken chain
of corporations beginning with the Company if, at the time of the granting of
the Award, each of the corporations (other than the last corporation) in the
unbroken chain owns stock possessing 50% or more of the total combined voting
power of all classes of stock in one of the other corporations in such chain,
within the meaning of Section 424(f) of the Code and any regulations or rulings
promulgated thereunder.
(bb) "1933 Act" means the Securities Act of 1933, as amended.
(cc) "1934 Act" means the Securities Exchange Act of 1934, as
amended.
3. ADMINISTRATION
3.1. This Plan shall be administered by a Committee, or by more than
one Committee if desired and deemed necessary by the Board in order to provide
separate Committee authority for the granting of Awards to separate categories
of eligible Participants. Any such Committee shall consist of not less than two
members. The members of the Committee shall be appointed by the Board. The Board
may from time to time remove members from or add members to the Committee.
Vacancies on the Committee, howsoever caused, shall be filled by the Board. In
the absence of the appointment of such a Committee, the Board shall serve as the
Committee.
3.2. The action of a majority of the Committee at which a quorum is
present, or an action approved in writing by a majority of the Committee, shall
be the valid action of the Committee.
3.3. The Committee shall from time to time at its discretion designate
the Directors, Employees and Consultants who shall be Participants, determine
all the terms and conditions of
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Awards as set forth in Section 6.1 or otherwise, including the type of Award to
be granted, the exercise period, expiration date and other applicable time
periods for each Award, the number of Shares subject to each Award, whether an
Option is an Incentive Stock Option or Nonqualified Stock Option and, if
applicable, the Option Price or SAR Price and the general terms of the Award.
3.4. The interpretation and construction by the Committee of any
provisions of this Plan or of any Award granted under it and all actions of the
Committee shall be final and binding on all parties. No member of the Board or
the Committee shall be liable for any action or determination made in good faith
with respect to this Plan or any Award granted under it.
4. ELIGIBILITY
4.1. Each Participant shall be a Director, an Employee or a Consultant
of the Company, a Parent or a Subsidiary as selected by the Committee in its
sole discretion from time to time.
4.2. A Participant may hold more than one Award, but only on the terms
and subject to the restrictions set forth in this Plan.
5. SHARES SUBJECT TO AWARD
5.1. The maximum number of securities that may be subject to Awards
under the Plan shall be 16,200,000 Shares. Such number shall be adjusted as
appropriate in order to give effect to changes made in the number of outstanding
Shares as a result of a merger, consolidation, recapitalization,
reclassification, combination, stock dividend, stock split, or other relevant
change.
5.2. In the event that any outstanding Award under this Plan expires or
is forfeited or canceled for any reason, the Awarded Shares subject to that
Award may again be the subject of an Award under this Plan.
6. TERMS AND CONDITIONS
6.1. Awards granted pursuant to this Plan shall be authorized by the
Committee under terms and conditions approved by the Committee and shall be
evidenced by Agreements in such form as the Committee shall from time to time
approve, which Agreements shall contain or shall be subject to the following
terms and conditions, whether or not such terms and conditions are specifically
included therein:
(a) Number of Shares. Each Award shall state the number of
Shares to which it pertains.
(b) Date. Each Award shall state the Effective Date of Grant.
(c) Price. With respect to an Option, the Award shall state
the Option Price. With respect to an SAR, it shall state the SAR Price.
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(d) Method and Time of Payment. With respect to an Option, the
Option Price shall be payable on the exercise of the Award and may be paid in or
by any one of the following means, or any combination thereof, to the extent not
otherwise designated by the Committee in the Agreement:
(1) Cash;
(2) Check (which clears in due course) payable to the
Company;
(3) Shares tendered to the Company, duly endorsed for
transfer and owned by the Participant to be credited against
the Option Price at the Fair Market Value of such tendered
Shares on the date of exercise; provided however, that no
fractional shares may be so transferred, and the Company shall
not be obligated to make any cash payments in consideration of
any amount by which the aggregate Fair Market Value of the
Shares so transferred exceeds the aggregate Option Price; and
(4) Unless otherwise provided by the Committee or the
Company, a note payable executed and delivered by the
Participant to the Company upon terms acceptable to the
Company in an amount equal to the aggregate Option Price or
relevant portion thereof, such note payable to be fully
secured by the pledge to the Company of any Shares whose
Option Price is covered by such note and the certificates
representing such Shares shall be held in the custody of the
Company until such note is paid in full.
The Option shall be deemed exercised and the Shares purchased thereby
shall be deemed issued as of the date such payment (in one or more of the
alternative forms permitted herein) is received in full by the Company.
(e) Conversion of Option. Unless the Committee elects
otherwise in the Agreement representing any Award, in lieu of the payment of all
or any portion of the Option Price in accordance with the preceding subparagraph
(d), a Participant may convert all or a portion of an Option by the surrender of
the Agreement and delivery of a Notice of Conversion in the form attached to the
Agreement, duly executed, at the principal executive offices of the Company,
into Shares as provided in this subparagraph (e). Upon exercise of this
conversion right, the Participant shall be entitled to receive that number of
Shares equal to the quotient obtained by dividing [(A-B)(X)] by (A), where:
A = the current Fair Market Value of one Share on the date of
conversion.
B = the Option Price for one Share under the Agreement.
X = the number of Shares with respect to which the Option is
being converted.
If the above calculation results in a negative number, then no Shares shall be
issued or be issuable upon conversion of the Option. By way of illustration, if
the Option Price is $10.00 per Share, the current Fair Market Value is $20.00
per Share, and the Option is being converted with respect to 100,000 Shares,
then 50,000 Shares would be issued on conversion [($20.00 -$10.00) x 100,000
divided by $20.00 = 50,000] and the number of Shares issuable upon exercise of
the Option would be reduced by 100,000.
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(f) Transfer of Option or Stock. No Award, Option, SAR, or
Restricted Stock (prior to the expiration of the Restriction Period) shall be
transferable by the Participant, except by will or the laws of descent and
distribution upon the Participant's death and subject to any other limitations
of this Plan. In addition to any other restriction hereunder or except as
otherwise provided in the Agreement with the Participant, no Shares acquired
pursuant to an Award of any type may be sold, transferred or otherwise disposed
of prior to the end of the six (6) month period which begins on the Effective
Date of Grant of such Award.
(g) Recapitalization. The Committee shall make appropriate
adjustments in the number of Awarded Shares or in the Option Price or SAR Price
under outstanding Awards in order to give effect to changes made in the number
of outstanding Shares as a result of a merger, consolidation, recapitalization,
reclassification, combination, stock dividend, stock split, or other relevant
change.
(h) Investment Purpose.
(1) The Company shall not be obligated to sell or
issue any Shares pursuant to any Award unless such Shares are
at that time effectively registered or exempt from
registration under the 1933 Act. The determination of whether
a Share is exempt from registration shall be made by the
Company's legal counsel and its determination shall be
conclusive and binding on all parties to the Agreement.
(2) Notwithstanding anything in this Plan to the
contrary, each Award under this Plan shall be granted on the
condition that the purchases of Shares thereunder shall be for
investment purposes and not with a view for resale or
distribution except that in the event the Shares subject to
such Award are registered under the 1933 Act, or in the event
of a resale of such Shares without such registration that
would otherwise be permissible, such condition shall be
inoperative if in the opinion of counsel for the Company such
condition is not required under the 1933 Act or any other
applicable law, regulation, or rule of any governmental
agency.
(i) Other Provisions. Awards authorized under this Plan may
contain any other provisions or restrictions as the Committee in its sole and
absolute discretion shall deem advisable including, but not limited to:
(1) Offering Options in tandem with or reduced by
other Options, SARs or other employee benefits and reducing
one Award by the exercise of another Option, SAR or benefit;
or
(2) Providing for the issuance to the Participant
upon exercise of an Option and payment of the exercise price
thereof with previously owned Shares, of an additional Award
for the number of shares so delivered, having such other terms
and conditions not inconsistent with this Plan as the
Committee shall determine.
(j) Duration of Award. Each Award shall be for a term of up to
ten (10) years from the Effective Date of Grant as determined in the sole
discretion of the Committee.
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6.2. The Company may place such legends on stock certificates
representing the Shares as the Company, in its sole discretion, deems necessary
or appropriate to reflect restrictions under this Plan, the Agreement, the Code,
securities laws or otherwise.
6.3. Notwithstanding any provision herein to the contrary, employment
shall be at the pleasure of the Board, of its designees, of the Company, a
Parent or Subsidiary, as the case may be, at such compensation as the
appropriate board, company or designee shall determine. Nothing contained in
this Plan or in any Award granted pursuant to it shall confer upon any
Participant any right to continue in the employ of the Company, Parent or
Subsidiary, as the case may be, or to interfere in any way with the right of the
Company, Parent or Subsidiary to terminate employment at any time. So long as
the Participant shall continue to be a Director, an Employee or a Consultant,
the Award shall not be affected by any change of the Participant's duties or
position except to the extent the Agreement with the Participant provides
otherwise.
6.4. Any person entitled to exercise an Option or an SAR may do so in
whole or in part by delivering to the Company at its principal office, attention
Corporate Secretary, a written notice of exercise. The written notice shall
specify the number of Shares for which an Option or SAR is being exercised.
(a) With respect to an Option, the notice shall be accompanied
by full payment of the Option Price for the Shares being purchased.
(b) During the Participant's lifetime, an Option or SAR may be
exercised only by the Participant, or on the Participant's behalf by the
Participant's legal guardian.
7. INCENTIVE STOCK OPTIONS AND NONQUALIFIED STOCK OPTIONS
7.1. The Committee in its sole discretion may designate whether an
Award to an Employee is to be considered an Incentive Stock Option or a
Nonqualified Stock Option. An Award to a non-Employee Director or Consultant may
be only a Nonqualified Stock Option. The Committee may grant both an Incentive
Stock Option and a Nonqualified Stock Option to the same Employee. However,
where both an Incentive Stock Option and a Nonqualified Stock Option are awarded
at one time, such Awards shall be deemed to have been awarded in separate
grants, shall be clearly identified, and in no event will the exercise of one
such Award affect the right to exercise the other such Award except to the
extent the Agreement with the Participant provides otherwise.
7.2. Any Award to an Employee designated by the Committee as an
Incentive Stock Option will be subject to the general provisions applicable to
all Awards granted under this Plan. In addition, the aggregate Fair Market Value
of Shares (determined at the Effective Date of Grant) with respect to which
Incentive Stock Options granted under all Incentive Stock Option Plans of the
Company, a Parent or Subsidiary, are exercisable by the Employee for the first
time during any calendar year shall not exceed $100,000 (or such other
applicable limitation set forth in Section 422 of the Code).
7.3. The Option Price shall be established by the Committee in its sole
discretion. With respect to an Incentive Stock Option, the Option Price shall
not be less than 100% of the
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Fair Market Value of a Share on the Effective Date of Grant. With respect to a
Nonqualified Stock Option, the Option Price shall not be less than 50% of the
Fair Market Value of a Share on the Effective Date of Grant.
7.4. Any Award to an Employee will be considered to be a Nonqualified
Stock Option to the extent that any or all of the grant is in conflict with
Section 7.2 or with any requirement for Incentive Stock Options pursuant to
Section 422 of the Code and the regulations issued thereunder.
7.5. An Option may be terminated as follows:
(a) During the period of continuous employment with the
Company, Parent or Subsidiary, an Option will be terminated only if it has been
fully exercised or it has expired by its terms.
(b) Upon termination of employment, the Option will terminate
upon the earliest of (i) the full exercise of the Option, (ii) the expiration of
the Option by its terms, and (iii) not more than three (3) months following the
date of employment termination; provided, however, should termination of
employment (A) result from the death or Permanent and Total Disability of the
Participant, such three month period shall be one (1) year or (B) be for Cause,
the Option will terminate on the date of employment termination. For purposes of
this Plan, a leave of absence approved by the Company shall not be deemed to be
termination of employment except with respect to an Incentive Stock Option as
required to comply with Section 422 of the Code and the regulations issued
thereunder or unless otherwise provided in the Agreement or by the Company on
the date of the leave of absence.
(c) Subject to the terms of the Agreement with the
Participant, if a Participant shall die or becomes subject to a Permanent and
Total Disability prior to the termination of employment with the Company, Parent
or Subsidiary and prior to the termination of an Option, such Option may be
exercised to the extent that the Participant shall have been entitled to
exercise it at the time of such death or disability, as the case may be, by the
Participant, the estate of the Participant or the person or persons to whom the
Option may have been transferred by will or by the laws of descent and
distribution.
7.6. Except as otherwise expressly provided in the Agreement with the
Participant, in no event will the continuation of the term of an Option beyond
the date of termination of employment allow the Participant, or the
beneficiaries or heirs of the Participant, to accrue additional rights under
this Plan, or to purchase more Shares through the exercise of an Option than
could have been purchased on the day that employment was terminated.
7.7. A Participant shall have no rights as a stockholder with respect
to any Shares subject to an Option until the date of the issuance of a stock
certificate to such Participant for such Shares. No adjustment shall be made for
dividends (ordinary or extraordinary, whether in cash, securities or other
property) or distributions or other rights for which the record date is prior to
the date such stock certificate is issued, except as provided in Section 6.1(g).
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7.8. Service as a non-Employee Director or Consultant shall be
considered employment for purposes of Sections 7.5 and 7.6 of the Plan. The
continuous service of a Consultant will be deemed terminated for purposes of
this Plan upon written notice from the Company to the effect that the Company
will no longer transact business with the Consultant or when the Consultant
otherwise ceases to perform services for the Company.
8. STOCK APPRECIATION RIGHTS
8.1. The Committee, in its sole discretion, may grant to a Participant
an SAR.
8.2. The SAR Price shall be established by the Committee in its sole
discretion. The SAR Price shall not be less than 100% of Fair Market Value of a
Share on the Effective Date of Grant for an SAR issued in tandem with an
Incentive Stock Option and for other SARs, shall not be less than 50% of Fair
Market Value of a Share on the Effective Date of Grant.
8.3. Upon exercise of an SAR, the Participant shall be entitled,
subject to the terms and conditions of this Plan and the Agreement, to receive
for each Share with respect to which the SAR is being exercised the excess of
(a) the Fair Market Value of a Share on the date of exercise over (b) the SAR
Price for such Share.
8.4. At the sole discretion of the Committee, the payment of such
excess shall be made in (a) cash, (b) Shares, or (c) a combination of cash and
Shares. Shares used for this payment shall be valued at their Fair Market Value
on the date of exercise of the applicable SAR.
8.5. An Award of an SAR shall be considered an Award for purposes of
the number of Shares subject to an Award pursuant to Section 5.1, unless the
Agreement making the Award of the SAR provides that the exercise of an SAR
results in the termination of an unexercised Option for the same number of
Shares.
8.6. An SAR may be terminated as follows:
(a) During the period of continuous employment with the
Company, Parent or Subsidiary, an SAR will be terminated only if it has been
fully exercised or it has expired by its terms.
(b) Upon termination of employment, the SAR will terminate
upon the earliest of (i) the full exercise of the SAR, (ii) the expiration of
the SAR by its terms, and (iii) not more than three (3) months following the
date of employment termination; provided, however, should termination of
employment (A) result from the death or Permanent and Total Disability of the
Participant, such three month period shall be one (1) year, or (B) be for Cause,
the SAR will terminate on the date of employment termination. For purposes of
this Plan, a leave of absence approved by the Company shall not be deemed to be
termination of employment unless otherwise provided in the Agreement or by the
Company on the date of the leave of absence.
(c) Subject to the terms of the Agreement with the
Participant, if a Participant shall die or becomes subject to a Permanent and
Total Disability prior to the termination of employment with the Company, Parent
or Subsidiary and prior to the termination of an SAR, such SAR may be exercised
to the extent that the Participant shall have been entitled to exercise
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it at the time of such death or disability, as the case may be, by the
Participant, the estate of the Participant or the person or persons to whom the
SAR may have been transferred by will or by the laws of descent and
distribution.
(d) Except as otherwise expressly provided in the Agreement
with the Participant, in no event will the continuation of the term of an SAR
beyond the date of termination of employment allow the Employee, or his
beneficiaries or heirs, to accrue additional rights under this Plan, have
additional SARs available for exercise or to receive a higher benefit than the
benefit payable as if the SAR was exercised on the date of employment
termination.
8.7. If an SAR which was considered an Award for purposes of Section
8.5 is terminated without being exercised in full for any reason, the number of
Shares with respect to which such SAR was unexercised shall be again available
for Awards under this Plan.
8.8. The Participant shall have no rights as a stockholder with respect
to an SAR. In addition, no adjustment shall be made for dividends (ordinary or
extraordinary, whether in cash, securities or other property) or distributions
or other rights except as provided in Section 6.1(g).
9. RESTRICTED STOCK
9.1. The Committee may award to a Participant Restricted Stock under
such terms or conditions as the Committee, in its sole discretion, shall
determine and as otherwise provided herein.
9.2. Restricted Stock shall be Shares which are subject to a
Restriction Period.
9.3. Should the Participant terminate employment for any reason, all
Restricted Stock which is still subject to the Restriction Period shall be
forfeited and returned to the Company for no payment.
9.4. Upon such forfeiture, Shares representing such forfeited
Restricted Stock shall again become available for Awards under the Plan.
9.5. The Committee may require under such terms and conditions as it
deems appropriate or desirable that the certificates for Restricted Stock
awarded under this Plan may be held by the Company or its designee until the
Restriction Period expires. In addition, the Committee may place upon such
certificate such legends as the Committee deems necessary or appropriate and may
require as a condition of any receipt of Restricted Stock that the Participant
shall deliver a stock power endorsed in blank relating to the Restricted Stock.
10. AMENDMENT OR DISCONTINUANCE OF PLAN
10.1. The Board may at any time amend, suspend, or discontinue this
Plan; provided, however, that without further approval of the shareholders of
the Company no amendments by the Board shall:
(a) Change the class of Employees eligible to participate; or
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(b) Except as provided in Section 5, increase the number of
Shares which may be subject to Awards granted under this Plan; or
(c) Modify the Plan in any other manner for which shareholder
approval would be required under the applicable requirements of the Code, the
Exchange Act or Rule 16b-3 thereunder, NASDAQ or other securities exchange
listing requirements or any other law or regulation.
10.2. No amendment to this Plan shall adversely alter or impair any
Award granted under this Plan without the consent of the holder of such Award.
11. INDEMNIFICATION OF COMMITTEE
In addition to such other rights of indemnification as they may have as
Directors or as members of the Committee, the members of the Committee shall be
indemnified by the Company against the reasonable expenses, including attorneys'
fees, actually incurred in connection with the defense of any pending,
threatened or possible action, suit or proceeding, or in connection with any
pending, threatened or possible appeal therein, to which they or any of them may
be a party by reason of any actual or alleged action taken or failure to act
under or in connection with this Plan or any Award granted hereunder, and
against all amounts paid by them in settlement thereof (provided such settlement
is approved by the Company) or paid by them in satisfaction of a judgment in any
such action, suit or proceeding, except in relation to matters as to which it
shall be adjudged in such action, suit or proceeding that such Committee member
is liable for gross negligence or willful misconduct in the performance of his
duties; provided, that within sixty days after institution of any such action,
suit or proceeding the Committee member shall in writing offer the Company the
opportunity, at its own expense, to handle and defend the same.
12. NO OBLIGATION TO EXERCISE OPTION OR SAR
The granting of an Option or SAR shall impose no obligation upon the
Participant to exercise such Option.
13. EFFECTIVE DATE; DURATION OF PLAN
13.1. This Plan originally became effective as of February 23, 2001
(the "Original Effective Date"). The Plan, as amended and restated herein, shall
be effective as of March 18, 2004, subject to requisite shareholder approval
within twelve months thereafter.
13.2. No Award may be made after the tenth anniversary of the Original
Effective Date of this Plan.
14. EFFECT OF PLAN
The making of an Award under this Plan shall not give the Participant
any right to similar grants in future years or any right to be retained in the
employ or service of the Company, the Parent or a Subsidiary, but a Participant
shall remain subject to discharge to the same extent as if this Plan were not in
effect.
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15. CHANGE IN CONTROL
15.1. Treatment of Outstanding Awards. Upon the occurrence of a Change
in Control, as defined below, unless otherwise specifically prohibited under
applicable laws, or by the rules and regulations of any governmental agencies or
national securities exchanges, or by the express provisions of any Agreement,
(a) each Option and each SAR then outstanding hereunder that is not otherwise
exercisable shall become immediately and fully exercisable, and shall remain
exercisable throughout their entire term, notwithstanding any provision in the
Agreement relating to such Option or SAR for the exercise of such Option or SAR
in installments or otherwise pursuant to a vesting schedule, and (b) any
Restriction Period and restrictions imposed on Restricted Stock shall lapse.
15.2. Change in Control Defined. For purposes of this Section, a Change
in Control shall mean that any of the following events shall have occurred:
(a) A person, partnership, joint venture, corporation or other
entity, or two or more of any of the foregoing acting as a group (or a "person"
within the meaning of Section 13(d)(3) of the 1934 Act), other than the Company,
a majority-owned subsidiary of the Company, an employee benefit plan (or related
trust) of the Company or such subsidiary, become(s) after the effective date of
this Plan the "beneficial owner" (as defined in Rule 13(d)(3) under the 1934
Act) of 25% or more of the then outstanding voting stock of the Company;
(b) During any period of two consecutive years, individuals
who at the beginning of such period constitute the Company's Board of Directors
(together with any new director whose election by the Company's Board of
Directors or whose nomination for election by the Company's shareholders, was
approved by the vote of at least two-thirds of the directors then still in
office who either were directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease for any
reason to constitute a majority of the directors then in office;
(c) The Board determines that a tender offer for the Company's
outstanding Shares indicates a serious intention by the offeror to acquire
control of the Company; or
(d) The shareholders of the Company approve (1) a plan of
complete liquidation of the Company; or (2) an agreement for the sale or
disposition of all or substantially all of the Company's assets; or (3) a
merger, consolidation, or reorganization of the Company with or involving any
other corporation, other than a merger, consolidation, or reorganization that
would result in the voting securities of the Company outstanding immediately
prior thereto continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity) at least
seventy-five percent (75%) of the combined voting power of the voting securities
of the Company (or such surviving entity) outstanding immediately after such
merger, consolidation or reorganization.
15.3. Termination, Amendment and Modifications of Change in Control
Provisions. Notwithstanding any other provision of this Plan or any Agreement,
the provisions of this Section 15 may not be terminated, amended or modified on
or after the effective date of a Change in Control to affect adversely the
operation of any Award theretofore granted under the
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Plan without the prior written consent of the Participant with respect to said
Participant's outstanding Awards.
16. SUCCESSORS; CONSOLIDATION, MERGER AND OTHER EVENTS
16.1. All obligations of the Company under this Plan or any Agreement
with respect to any Award granted hereunder shall be binding on any successor to
the Company, whether the existence of such successor is the result of a direct
or indirect purchase of all or substantially all of the business and/or assets
of the Company, or a merger, consolidation or otherwise. Specifically, in case
of any capital reorganization of the Company, or of any reclassification of any
Shares (other than a change as a result of subdivision or combination), or in
the case of the consolidation or merger of the Company with any other
corporation (other than a consolidation or merger in which (a) the Company is
the continuing corporation and (b) the holders of the Shares immediately prior
to such merger or consolidation continue as holders of Shares after such merger
or consolidation) or of the sale of the properties and assets of the Company as,
or substantially as, an entirety to any other corporation, each Option and each
SAR then outstanding shall after such reorganization, reclassification,
consolidation, merger or sale be exercisable, upon the terms and conditions
specified herein and in the Agreement relating to such Option or SAR, for or
with respect to the number of Shares or other securities or property to which a
holder of the number of Shares relating to such Option or SAR (at the time of
such reorganization, reclassification, consolidation, merger or sale) upon
exercise of such Option or SAR would have been entitled in connection with such
reorganization, reclassification, consolidation, merger or sale; and in any such
case, if necessary, the provisions set forth in this Section with respect to the
rights and interests thereafter of the holder of the Option or SAR shall be
appropriately adjusted so as to be applicable, as nearly as may reasonably be,
to any shares of stock or other securities or property thereafter deliverable on
the exercise of the Option or SAR.
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