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EXHIBIT 10.11
BARNETT INC.
1996 STOCK OPTION PLAN
FOR NON-EMPLOYEE DIRECTORS
1. NAME.
The name of this Plan is the Barnett Inc. 1996 Stock Option Plan for
Non-Employee Directors.
2. PURPOSE.
The purpose of the Plan is to enable the Company to secure non-employee
persons of requisite experience and ability to serve on the Board and to
motivate Non-Employee Directors to exert their best efforts on behalf of the
Company, thus enhancing the value of the Company for the benefit of the
Company's stockholders.
3. DEFINITIONS.
For the purposes of the Plan, the following terms shall be defined as set
forth below:
(a) "Award" means a grant of options to a Participant pursuant to
Section 8 of the Plan.
(b) "Award Agreement" means the written agreement between the Company
and the Participant that contains the terms and conditions pertaining to
the grant of options.
(c) "Board" means the Board of Directors of the Company.
(d) "Change in Control" means a change in control of the Company of a
nature that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under the Exchange Act (as in
effect on the date the Plan is adopted by the Board), whether or not the
Company is then subject to such reporting requirement; provided, that,
without limitation, such a Change in Control shall be deemed to have
occurred if:
(i) any "person" (as defined in Sections 13(d) and 14(d) of the
Exchange Act) is or becomes the "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of securities of
the Company representing thirty percent (30%) or more of the combined
voting power of the Company's then outstanding securities; provided,
however, that no Change of Control shall be deemed to have occurred if
prior to the acquisition of such thirty percent (30%) of the combined
voting power of the Company's then outstanding securities, a majority of
the Continuing Directors approves such acquisition; or
(ii) if there shall cease to be a majority of the Board comprised
of Continuing Directors; or
(iii) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than a
merger or consolidation which 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 eighty percent (80%)
of the combined voting power of the voting securities of the Company or
such surviving entity outstanding immediately after such merger or
consolidation; or
(iv) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition
by the Company of all or substantially all the Company's assets.
Notwithstanding anything in this definition to the contrary, an event or
occurrence (or a series of events or occurrences) which would otherwise
constitute a Change in Control under the foregoing shall not constitute a Change
in Control for purposes of this Plan if the Board, by majority vote, determines
that a Change in Control does not result therefrom; but only if Continuing
Directors constitute a majority of the directors voting in favor of such
determination. Further, an event or occurrence (or a series of events or
occurrences) which
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would not otherwise constitute a Change in Control under the foregoing shall be
deemed to constitute a Change in Control for purposes of this Plan if the Board,
by majority vote, determines that a Change in Control does result therefrom; but
only if Continuing Directors constitute a majority of the directors voting in
favor of such determination. A determination by the Board under the provisions
of this paragraph shall be made solely for purposes of this Plan and shall not
directly or indirectly affect any determination or analysis of whether a change
in control results for any other purpose. Any determination made with respect to
whether a change in control results for purposes of any other plan or agreement
of the Company shall have no effect for purposes of this Plan.
(e) "Chairman" means the individual appointed by the Committee to
serve as the chairman of the Committee.
(f) "Code" means the Internal Revenue Code of 1986, as amended from
time to time.
(g) "Committee" means the Committee established pursuant to Section 4
of the Plan.
(h) "Common Stock" means the common stock, par value $0.01 per share,
of the Company or any security of the Company identified by the Committee
as having been issued in substitution or exchange therefor or in lieu
thereof.
(i) "Company" means Barnett Inc.
(j) "Continuing Directors" means individuals who at the end of any
period of two (2) consecutive years constitute the Board and any new
director(s) whose election by the Board or nomination for election by the
Company's stockholders was approved by a vote of at least two-thirds ( 2/3)
of the directors then still in office who either were directors at the
beginning of the period or whose election or nomination for election was
previously approved.
(k) "Directors" means the members of the Board.
(l) "Effective Date" means the date on which the Plan becomes
effective, as provided in Section 5(a) hereof.
(m) "Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor statute.
(n) "Fair Market Value" means, with respect to the Shares, (a) if the
Common Stock is listed or admitted for trading on any national securities
exchange or included in The Nasdaq National Market or Nasdaq SmallCap
Market, the last reported sales price as reported on such exchange; (b) if
the Common Stock is not listed or admitted for trading on any national
securities exchange or included in The Nasdaq National Market or Nasdaq
SmallCap Market, the average of the last reported closing bid and asked
quotation for the Common Stock as reported on the Automated Quotation
System of NASDAQ or a similar service if NASDAQ is not reporting such
information; (c) if the Common Stock is not listed or admitted for trading
on any national securities exchange or included in The Nasdaq National
Market or Nasdaq SmallCap Market or quoted by NASDAQ or a similar service,
the average of the last reported bid and asked quotation for the Common
Stock as quoted by a market maker in the Common Stock (or if there is more
than one market maker, the bid and asked quotation shall be obtained from
two market makers and the average of the lowest bid and highest asked
quotation shall be the "Fair Market Value"); or (d) if the Common Stock is
not listed or admitted for trading on any national securities exchange or
included in The Nasdaq National Market or Nasdaq SmallCap Market or quoted
by NASDAQ and there is no market maker in the Common Stock, the fair market
value of the Shares as determined by the Committee in good faith.
(o) "Non-Employee Director" means an individual who: (i) is now, or
hereafter becomes, a member of the Board and (ii) is not an employee of the
Company on the date of the grant of an option.
(p) "NSO" means an option that does not meet the requirements of
Section 422(b) of the Code, which provides the right to purchase a Share at
a price and for a Term fixed in accordance with the Plan, and subject to
such other limitations and restrictions imposed by the Plan.
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(q) "Participant" means a Non-Employee Director who has been granted
an NSO under the Plan (or in the event of the death or disability of a
Non-Employee Director, the estate or personal representative of the
Non-Employee Director).
(r) "Person" means any individual, corporation, partnership,
association, joint-stock company, trust, unincorporated organization, or
government or political subdivision thereof.
(s) "Plan" means this Barnett Inc. 1996 Stock Option Plan for
NonEmployee Directors.
(t) "Rule 16b-3" means Rule 16b-3 promulgated by the Securities and
Exchange Commission under the Exchange Act, or any successor or replacement
rule or regulation thereto. Accordingly, all references in the Plan to a
specific paragraph of Rule 16b-3 shall be deemed to be references to such
paragraph or to the applicable successor or replacement paragraph thereto.
(u) "Share" or "Shares" means a share or shares of Common Stock,
adjusted in accordance with Section 9 hereof, as applicable.
(v) "Term" means the period during which a particular Award may be
exercised.
4. ADMINISTRATION.
(a) Generally.
The Plan shall be administered by the Committee. Unless otherwise expressly
provided in the Plan, all designations, determinations, interpretations and
other decisions under or with respect to the Plan or any NSO shall be within the
sole and absolute discretion of the Committee, may be made at any time, and
shall be final, conclusive and binding upon the Company, any Participant, any
holder or beneficiary of any NSO and any stockholder of the Company.
(b) Composition of the Committee.
The members of the Committee shall be appointed by the Board and shall
consist of no less than two members of the Board who are "disinterested persons"
as such term is used in Rule 16b-3. The Committee may from time to time remove
members from, or add members to, the Committee. Vacancies on the Committee,
however caused, shall be filled by the Board.
(c) Actions by the Committee.
The Committee shall hold meetings at such times and places as it may
determine. The Committee shall appoint one of its members as Chairman. Acts
approved by a majority of the members of the Committee present at a meeting at
which a quorum is present, or acts reduced to or approved in writing by a
majority of the members of the Committee, shall be the valid acts of the
Committee.
(d) Powers of the Committee.
Subject to the terms of the Plan and applicable law, the Committee shall
have full power and authority to administer the Plan in its sole and absolute
discretion. To this end, the Committee is authorized to construe and interpret
the Plan and to make all other determinations necessary or advisable for the
administration of the Plan. Subject to the foregoing, any determination,
decision or action of the Committee in connection with the construction,
interpretation, administration, or application of the Plan shall be final,
conclusive and binding upon all Participants and any person claiming under or
through a Participant.
(e) Reliance and Indemnification of Committee Members.
The Committee may employ attorneys, consultants, accountants or other
persons, and the Committee, the Company and its officers and directors shall be
entitled to rely upon the advice, opinions or valuations of any such persons. No
member of the Committee or the Board shall be personally liable for any action,
determination or interpretation taken or made in good faith by the Committee or
the Board with respect to the
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Plan or any NSO granted thereunder, and all members of the Committee and the
Board shall be fully indemnified and protected by the Company in respect of any
such action, determination or interpretation.
(f) NSO Accounts.
The Committee shall maintain or cause to be maintained a journal or other
record in which a separate account for each Participant shall be established.
Whenever NSOs are granted to, or exercised by, a Participant, the Participant's
account shall reflect such grant or exercise and the Participant's account shall
be appropriately adjusted in the event of any change in capitalization or
transaction pursuant to Section 9 hereof.
(g) Administrator.
An Administrator of the Plan may from time to time be appointed by the
Committee. If appointed, such Administrator shall be responsible for the general
administration of the Plan under the policy guidance of the Committee. The
Administrator shall be in the employ of the Company, and shall be compensated
for services and expenses by the Company according to its normal employment
policies without special or additional compensation, other than reimbursement of
expenses, if any, for his or her services as the Administrator.
5. APPROVAL OF THE PLAN; TERM OF THE PLAN.
(a) Approval of the Plan by Stockholders; Effective Date of the Plan.
The Plan was adopted by the Board effective as of September 27, 1996 (the
"Effective Date"). If, and to the extent, required by applicable law or the
rules and regulations of any stock exchange or similar body to which the Company
is subject, the Plan will be submitted for the approval of the Company's
stockholders within 12 months after such date. The date of stockholder approval
of the Plan, if so required, is the "Approval Date." Awards may be granted prior
to such stockholder approval; provided, however, that, to the extent such
stockholder approval is required, such Awards shall not be exercisable prior to
the Approval Date; provided, further, that if such required approval has not
been obtained at the end of said 12 month period, all Awards previously granted
under the Plan shall thereupon be cancelled and become null and void.
(b) Term of Plan.
No NSO shall be granted pursuant to the Plan on or after the tenth (10th)
anniversary of the Effective Date, but NSOs theretofore granted may be extended
beyond that date and the Committee shall have the authority to amend, alter,
adjust, suspend, discontinue, or terminate any such NSO or to waive any
conditions or rights under any such NSO, and to amend the Plan, beyond that
date.
6. SHARES SUBJECT TO THE PLAN.
(a) Limitation on Number of Shares.
The maximum aggregate number of Shares which may be subject to NSOs granted
to Participants pursuant to the Plan shall be 400,000. The limitation on the
number of Shares which may be subject to NSOs under the Plan shall be subject to
adjustment as provided in Section 9 hereof. If any NSO granted under the Plan
expires or is terminated for any reason without having been exercised in full,
the Shares allocable to the unexercised portion of such NSO shall again become
available for grant pursuant to the Plan. At all times during the term of the
Plan, the Company shall reserve and keep available for issuance such number of
Shares as the Company is obligated to issue upon the exercise of all then
outstanding NSOs.
(b) Accounting for NSOs.
For purposes of this Section 6, the number of Shares covered by an NSO, or
to which an NSO relates, shall be counted on the date of grant of such NSO
against the aggregate number of Shares available for granting NSOs under the
Plan. Any Shares that are delivered by the Company pursuant to any NSO, and any
NSOs that are granted by, or become obligations of, the Company, shall be
counted against the Shares available for granting NSOs under the Plan.
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7. SOURCE OF SHARES ISSUED UNDER THE PLAN.
Common Stock issued under the Plan may consist, in whole or in part, of
authorized and unissued Shares or treasury Shares, as determined in the sole and
absolute discretion of the Committee. No fractional Shares shall be issued under
the Plan.
8. NON-QUALIFIED STOCK OPTIONS.
(a) One Time Grant of NSOs.
(i) Each Non-Employee Director who occupies the office of either
Chairman of the Board or Vice-Chairman of the Board on the Effective
Date shall automatically be granted on such date NSOs exercisable to
purchase one hundred thousand (100,000) shares of Common Stock,
subject to all of the provisions of the Plan.
(ii) Each person who was a Non-Employee Director on the Effective Date
shall automatically be granted on such date NSOs exercisable to
purchase twenty-five thousand (25,000) shares of Common Stock,
subject to all the provisions of the Plan.
(iii) Each person who is either elected or appointed a Non-Employee
Director, and who has not previously received a grant of NSOs
pursuant to clause (ii) above, shall automatically be granted NSOs
exercisable to purchase twenty-five thousand (25,000) shares of
Common Stock on the date of their appointment or election, subject
to the provisions of the Plan.
(b) Annual Cash Compensation Grant of NSOs.
In addition to the grant of NSOs pursuant to Section 8(a) above, NSOs
exercisable to purchase five thousand (5,000) shares of Common Stock shall be
granted as of the date of the annual organizational meeting of the Board which
is held following the Company's annual meeting of stockholders, to any Non-
Employee Director who, no later than the date of such annual organizational
meeting of the Board (and subject to such other rules as the Committee may adopt
from time to time), has filed with the Company an irrevocable election to
receive an NSO in lieu of all, but not less that all, of the Annual Director
Compensation (as defined below) expected to be earned by such Non-Employee
Director for a twelve-month period beginning on the first day of the third
fiscal quarter of the Company ("Plan Year"). A separate election must be made
for each Plan Year, although a Non-Employee Director may specify that a
particular election shall apply to future Plan Years unless amended or revoked;
provided, however, that no amendment or revocation may be made during a Plan
Year with respect to such Plan Year.
"Annual Director Compensation" shall mean the amount of fees which the
Non-Employee Director will be entitled to receive during a Plan Year for serving
as a Non-Employee Director or as a member of any committee of the Board pursuant
to the policy in effect for each Plan Year, including retainers paid
periodically and fees paid for attendance at or participation in meetings of the
Board or any committee thereof.
(b) Exercise Price.
The price at which each Share covered by a NSO may be purchased pursuant to
this Plan shall be the Fair Market Value of a Share on the date of the NSO
grant.
(c) Terms and Conditions.
All NSOs granted pursuant to the Plan shall be evidenced by an Award
Agreement, approved as to form by the Committee, which shall be subject to the
following express terms and conditions and to the other terms and conditions
specified in this Section 8, and to such other terms and conditions as shall be
determined by the Committee in its sole and absolute discretion which are not
inconsistent with the Plan:
(i) after one (1) year from the date of the Award, it may be exercised
as to not more than 25% of the NSOs granted under the Award;
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(ii) after two (2) years from the date of the Award, it may be exercised as
to not more than 50% of the NSOs granted under the Award;
(iii) after three (3) years from the date of the Award, it may be exercised
as to not more than 75% of the NSOs granted under the Award;
(iv) after four (4) years after the date of the Award, it may be exercised
as to any part or all of the NSOs granted under the Award;
(v) the failure of a NSO to vest for any reason whatsoever shall cause the
NSO to expire and be of no further force or effect;
(vi) unless terminated earlier pursuant to Section 8(e) hereof, the term of
each NSO shall in no event be more than ten (10) years from the date
of the grant; and
(vii) no NSO or interest therein may be transferred, assigned, pledged or
hypothecated by a Participant during his lifetime or be made subject
to execution, attachment or similar process, in each case except by
will or by the laws of descent and distribution. NSOs shall be
exercised during the lifetime of the Participant only by the
Participant; provided, however, that if so determined by the
Committee, a Participant, in the manner established by the Committee,
may designate a beneficiary or beneficiaries to exercise the rights
of the Participant and to receive any property distributable with
respect to any NSO upon the death or permanent disability of the
Participant; and provided further that a Participant may transfer or
assign an NSO to, and in the event of any such assignment or transfer
such NSO may be exercised by, (x) such Participant's spouse or any
lineal ancestor or descendant of such Participant or (y) any trust,
the sole beneficiaries of which are any one or all of such
Participant or the spouse or any lineal ancestor or descendant of
such Participant.
(d) Exercise.
(i) Notice of Exercise. A Participant entitled to exercise a NSO may do so
by delivery of a written notice to that effect specifying the number of Shares
with respect to which the NSO is being exercised. Except as provided in Section
8(d)(ii) below, the notice shall be accompanied by payment in full of the
purchase price of any Shares to be purchased, which payment may be made in cash
or, with the Committee's approval (and subject to the requirements of Rule
16b-3), in Shares valued at Fair Market Value at the time of exercise or, with
the Committee's approval, a combination thereof. No Shares shall be issued upon
exercise of a NSO until full payment has been made therefor. All notices,
payments or requests provided for herein shall be delivered to the Chief
Financial Officer of the Company.
(ii) Cashless Exercise Procedures. The Company, in its sole discretion, may
establish procedures whereby a Participant, subject to the requirements of Rule
16b-3, Regulation T, federal income tax laws and other federal, state and local
tax and securities laws, can exercise a NSO or a portion thereof without making
a direct payment of the option price to the Company. If the Company so elects to
establish a cashless exercise program, the Company shall determine, in its sole
discretion, and from time to time, such administrative procedures and policies
as it deems appropriate, and such procedures and policies shall be binding on
any Participant wishing to utilize the cashless exercise program.
(e) Termination of NSOs.
NSOs granted under the Plan shall be subject to the following events of
termination:
(i) in the event a Participant is removed from the Board (other than
removal due to the death of a Participant or a Participant being
unable to perform his duties for the Company because of a disability
(as determined by the Board)), all unexercised NSOs held by such
Participant on the date of such removal (whether or not vested) will
expire immediately; and
(ii) in the event a Participant is no longer a member of the Board other
than by reason of removal, or is removed due to his death or his
being unable to perform his duties for the Company
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because of a disability (as determined by the Board), all
unexercised NSOs held by such Participant that shall have not
vested as of the date such Participant is no longer a member of the
Board (as determined in accordance with clauses (i), (ii) and (iii)
of Section 8(c)) shall terminate, and all NSOs vested as of such
date may be exercised by the Participant at any time within two (2)
years after such Participant ceased to be a Director, but not
beyond the original term thereof; provided, however, that an NSO
that is not exercised prior to the second anniversary of the
Non-Employee Director's death shall be deemed exercised on the
second anniversary of the date of death to the extent the then
aggregate Fair Market Value of the shares subject to the NSO
exceeds the aggregate exercise price of the NSOs and payment of
such exercise price shall be effected by withholding a number of
shares of Common Stock otherwise issuable pursuant to the option
the Fair Market Value of which on such anniversary is equal to the
exercise price. If the Fair Market Value of the Common Stock on the
second anniversary of the Non-Employee Director's death equals or
is less than the option exercise price, then the NSOs shall be
deemed to have expired unexercised.
(f) Share Certificates.
All certificates for Shares delivered under the Plan pursuant to any NSO or
the exercise thereof shall be subject to such stop transfer orders and other
restrictions as the Committee may deem advisable under the Plan or the rules,
regulations, and other restrictions of the Securities and Exchange Commission,
any stock exchange upon which such Shares or other securities are then listed,
and any applicable Federal or state securities laws, and the Committee may cause
a legend or legends to be put on any such certificates to make appropriate
reference to such restrictions.
(g) Stockholder Approval.
Notwithstanding anything to the contrary contained herein (i) no Award
shall be exercisable prior to the Approval Date, to the extent stockholder
approval is required as provided in Section 5(a) hereof, and (ii) if the
approval is not obtained as provided for in Section 5(a) hereof, all Awards
previously granted under the Plan shall thereupon be cancelled and become null
and void.
9. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION
In the event of changes in all of the outstanding Shares by reason of stock
dividends, stock splits, recapitalizations, mergers, consolidations,
combinations, exchanges of shares, separations, reorganizations or liquidations
or similar events or in the event of extraordinary cash or noncash dividends
being declared with respect to outstanding Shares or other similar transactions,
the number and class of Shares available under the Plan in the aggregate, the
number and class of Shares subject to Awards theretofore granted, applicable
purchase prices and all other applicable provisions, shall, subject to the
provisions of the Plan, be equitably adjusted by the Committee, which adjustment
may, but need not, include payment to the holder of a NSO, in cash or in Shares,
in an amount equal to the difference between the then current Fair Market Value
of the Shares subject to such Award, as equitably determined by the Committee,
and the option price of such NSO, as the case may be. The foregoing adjustment
and the manner of application of the foregoing provisions shall be determined by
the Committee in its sole discretion. Any such adjustment may provide for the
elimination of any fractional Share which might otherwise become subject to an
Award.
10. TERMINATION OF AWARDS UPON CHANGE IN CONTROL.
Notwithstanding anything to the contrary, in the case of a Change in
Control, each Award granted under the Plan shall terminate ninety (90) days
after the occurrence of such Change in Control, but, in the event of any such
termination the Award holder shall have the right, commencing at least five (5)
days prior to the Change in Control and subject to any other limitation on the
exercise of such Award in effect on the date of exercise to immediately exercise
any NSOs in full, without regard to any vesting limitations, to the extent they
shall not have been theretofore exercised.
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11. AMENDMENT AND TERMINATION.
(a) Modifications to the Plan.
The Committee, insofar as permitted by law, may from time to time, with
respect to any Shares at the time not subject to NSOs, suspend, discontinue or
terminate the Plan or revise, alter or amend the Plan in any respect whatsoever;
provided, however, that no amendment of the Plan shall cause the Plan to be in
violation of Rule 16b-3 (including Section (c)(2)(ii)(B) thereunder).
(b) Rights of Participant.
No amendment, suspension or termination of the Plan that would adversely
affect the right of any Participant with respect to a NSO previously granted
under the Plan will be effective without the written consent of the affected
Participant.
(c) Correction of Defects, Omissions and Inconsistencies.
The Committee may correct any defect, supply any omission or reconcile any
inconsistency in the Plan or any NSO in the manner and to the extent it shall
deem desirable to carry the Plan into effect.
12. MISCELLANEOUS.
(a) Rights of Stockholder.
No Participant and no beneficiary or other person claiming under or through
such Participant shall acquire any rights as a stockholder of the Company by
virtue of such Participant's having been granted a NSO under the Plan. No
Participant and no beneficiary or other person claiming under or through such
Participant will have any right, title or interest in or to any Shares allocated
or reserved under the Plan or subject to any NSO except as to Shares, if any,
that have been issued or transferred to such Participant. No adjustment shall be
made for dividends or distributions or other rights for which the record date is
prior to the date of exercise.
(b) Other Compensation Arrangements.
Nothing contained in the Plan shall prevent the Committee from adopting
other compensation arrangements for Non-Employee Directors, subject to
stockholder approval if such approval is required. Such other arrangements may
be either generally applicable or applicable only in specific cases.
(c) Treatment of Proceeds.
Proceeds realized from the exercise of NSOs under the Plan constitute
general funds of the Company.
(d) Withholding.
The Company shall be authorized to withhold from any NSO granted or any
payment due or transfer made under any NSO or under the Plan the amount of
withholding taxes due in respect of a NSO, its exercise, or any payment or
transfer under such NSO or under the Plan and to take such other action as may
be necessary in the opinion of the Company to satisfy all obligations for the
payment of such taxes. Upon the exercise of a NSO, the Participant receiving
Shares pursuant thereto may be required to pay the Company the amount of any
such withholding taxes which is required to be withheld with respect to such
Shares.
(e) Cost of the Plan.
The costs and expenses of administering the Plan shall be borne by the
Company.
(f) No Right to Continue as Director.
Nothing contained in the Plan or in any instrument executed pursuant to the
Plan will confer upon any Participant any right to continue as a member of the
Board or affect the right of the Company, the Committee or the stockholders of
the Company to terminate the directorship of any Participant at any time with or
without cause.
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(g) No Right to Participate as an Employee Director.
Subject to the other provisions of the Plan, including the succeeding
sentence, a Director's right to participate in the Plan shall automatically
terminate if and when a NonEmployee Director becomes an employee of the Company.
That portion of an NSO that is not vested as of the date that the Director
becomes an employee of the Company shall automatically abate and be cancelled,
and that portion of an NSO that is vested as of such date may be exercised in
accordance with the terms of the Plan.
(h) Severability.
The provisions of the Plan shall be deemed severable and the validity or
unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof.
(i) Binding Effect of Plan.
The Plan shall inure to the benefit of the Company, its successors and
assigns.
(j) Governing Law.
The validity, construction, and effect of the Plan and any rules and
regulations relating to the Plan shall be determined in accordance with the
internal laws of the State of Delaware, without regard to any principles of
conflicts of law, and applicable Federal law.
(k) No Waiver of Breach.
No waiver by any Person at any time or any breach by another Person of, or
compliance with, any condition or provision of the Plan to be performed by such
other Person shall be deemed a waiver of the same, any similar or any dissimilar
provisions or conditions at the same or at any prior or subsequent time.
(l) No Trust or Fund Created.
Neither the Plan nor any NSO shall create or be construed to create a trust
or separate fund of any kind or a fiduciary relationship between the Company and
a Participant or any other Person. To the extent that any Person acquires a
right to receive payments from the Company pursuant to an NSO, such right shall
be no greater than the right of any unsecured general creditor of the Company.
(m) Headings.
The headings contained herein are for references purposes only and shall
not affect in any way the meaning or interpretation of this Plan.
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