Exhibit 10.2
HCIA INC.
1994 STOCK AND INCENTIVE PLAN
As Amended Through November 13, 1996
Section 1. Purpose
The purpose of the HCIA Inc. 1994 Stock and Incentive Plan
(the "Plan") is to attract and retain outstanding individuals as Key Employees
of HCIA Inc. (the "Company") and its Affiliates, as hereinafter defined, and to
motivate such individuals to achieve the long-term performance goals of the
Company by providing incentives to such individuals in the form of stock
ownership or monetary payments based on the value of the capital stock of the
Company or its financial performance, or both, on the terms and conditions set
forth herein.
Section 2. Definitions
As used in the Plan and unless the context clearly indicates
otherwise, the following terms shall have the respective meanings set forth
below:
(a) "Affiliate" shall mean any entity that, directly
or indirectly, controls or is controlled by the Company.
(b) "Award" shall mean any Option, Stock Appreciation
Right, Restricted Stock, Restricted Stock Unit or Performance Award granted
under the Plan.
(c) "Award Agreement" shall mean any written agreement,
contract or other instrument or document evidencing any Award granted under the
Plan.
(d) "Beneficiary" shall mean the person designated by the
Participant, on a form provided by the Company, to exercise the Participant's
rights in accordance with Section 7(h) of the Plan in the event of death, or, if
no such person is designated, the estate or personal representatives of such
Participant.
(e) "Board of Directors" shall mean the Board of
Directors of the Company.
(f) "Code" shall mean the Internal Revenue Code of 1986,
as amended.
(g) "Commission" shall mean the United States Securities
and Exchange Commission or any successor agency.
(h) "Committee" shall mean the Compensation Committee of the
Board of Directors. The Committee shall be composed of two or more directors,
all of whom shall be "disinterested persons" within the meaning of Rule 16b-3
and "outside directors" within the meaning of Section 162(m)(4)(C) of the Code
and any regulations issued thereunder.
(i) "Disability" shall mean a total and permanent disability
within the meaning of the Company's long-term disability plan, as amended from
time to time.
(j) "Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
(k) "Fair Market Value" shall mean the average of the highest
and lowest selling prices of the Shares as reported on the National Association
of Securities Dealers Automated Quotation System National Market System or such
other national securities exchange as may be designated by the Committee or, in
the event that the Shares are not listed for trading on a national securities
exchange, the average of the highest and lowest quoted selling prices of the
Shares as reported by the National Association of Securities Dealers Automated
Quotation System ("NASDAQ") or, if not listed on NASDAQ, the fair market value
of the Shares as determined in good faith by the Board of Directors or the
Committee, in any such case as of the valuation date.
(l) "Incentive Stock Option" shall mean a stock option granted
under Section 7(a) of the Plan that is intended to meet the requirements of
Section 422 of the Code or any successor provision thereto.
(m) "Key Employee" shall mean any officer or other
employee of the Company or any Affiliate who is described in Section 6 of the
Plan.
(n) "Non-Qualified Stock Option" shall mean a stock option
granted under Section 7(a) of the Plan that is not intended to be an Incentive
Stock Option.
(o) "Option" shall mean an Incentive Stock Option or a
Non-Qualified Stock Option.
(p) "Participant" shall mean a Key Employee who is
designated to be granted or has received an Award under the Plan.
(q) "Performance Award" shall mean any Award granted
under Section 7(d) of the Plan.
(r) "Person" shall mean any individual, corporation,
partnership, limited liability company, association, joint-stock company, trust,
unincorporated organization or government or political subdivision thereof.
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(s) "Released Securities" shall mean Restricted Stock with
respect to which all applicable restrictions have expired, lapsed or been
waived.
(t) "Restricted Stock" shall mean any Shares granted and
issued under Section 7(c) of the Plan.
(u) "Restricted Stock Unit" shall mean any Award granted under
Section 7(c) of the Plan that is denominated in Shares.
(v) "Restriction Period" shall mean, with respect to
Restricted Stock or Restricted Stock Units, that period of time determined by
the Committee pursuant to Section 7(c) of the Plan.
(w) "Retirement" shall mean termination of a Participant's
employment with the Company or any Affiliate at his or her "normal retirement
date" as defined in the Company's Savings Incentive Plan or any successor plan.
(x) "Termination" shall mean any resignation or discharge from
employment with the Company or any Affiliate except in the event of Disability,
Retirement or death.
(y) "Rule 16b-3" shall mean Rule 16b-3 promulgated by the
Commission under the Exchange Act or any successor rule or regulation thereto.
(z) "Shares" shall mean shares of the common stock, par value
$.01 per share, of the Company and such other securities or property as may
become the subject of Awards or become subject to Awards pursuant to an
adjustment made under Section 8 of the Plan.
(aa) "Stock Appreciation Right" shall mean any Award
granted under Section 7(b) of the Plan.
Section 3. Effective Date; Stockholder Approval; Termination
(a) Effective Date and Stockholder Approval. Subject
to the approval of the Plan by the stockholders of the Company in accordance
with the provisions of Rule 16b-3, the Plan shall be effective as of December
22, 1994.
(b) Termination. No Award shall be granted under the Plan
after December 31, 2004; provided, however, that any Award granted on or before
December 31, 2004 may extend beyond such date unless expressly provided
otherwise herein or in the applicable Award Agreement; provided further, to the
extent set forth in Section 8 hereof, the authority of the Committee to amend,
alter, adjust, suspend, discontinue or terminate any Award or to waive any
conditions or restrictions with respect to any Award, and the authority of the
Board of Directors to amend the Plan, shall extend beyond such date.
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Section 4. Administration
(a) The Plan shall be administered by the Committee; provided,
however, that if at any time the Committee shall not be in existence, the
functions of the Committee as specified in the Plan shall be exercised by those
members of the Board of Directors who qualify as "disinterested persons" under
Rule 16b-3 and as "outside directors" under Section 162(m)(4)(C) of the Code and
any regulations issued thereunder.
Subject to the terms of the Plan and applicable law, the
Committee shall have full power and authority with respect to the Plan,
including, without limitation, the power to:
(i) designate Participants;
(ii) determine the types of Awards to be granted to
each Participant under the Plan;
(iii) determine the number of Shares to be covered
by (or with respect to which payments, rights or other matters are to be
calculated in connection with) Awards;
(iv) determine the terms and conditions of any Award;
(v) determine whether, to what extent, under what
circumstances and the method by which Awards may be settled or exercised in
cash, Shares, other securities, other Awards or other property, or canceled,
forfeited or suspended;
(vi) determine whether, to what extent and under what
circumstances cash, Shares, other securities, other Awards, other property
and other amounts payable with respect to an Award shall be deferred either
automatically or at the election of the holder thereof or of the Committee;
(vii) interpret and administer the Plan and any
instrument or agreement relating to, and any Award made under, the Plan
(including, without limitation, any Award Agreement);
(viii) establish, amend, suspend and waive such rules
and regulations and appoint such agents as it shall deem appropriate for the
proper administration of the Plan; and
(ix) make any other determination and take any other
action that the Committee deems necessary or desirable for the administration
of the Plan.
Unless otherwise expressly provided in the Plan, all
designations, determinations, interpretations and other decisions under or with
respect to the Plan, or any Award, shall be within the sole discretion of the
Committee, may be made at any time and shall be final, conclusive and
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binding upon all Persons, including the Company, any Affiliate, any Participant,
any holder or Beneficiary of any Award, any stockholder and any employee of the
Company or any Affiliate.
The Committee shall not have the authority to (i) amend the
exercise price of any outstanding Option without the approval of the
stockholders of the Company or (ii) grant an Award of Restricted Stock or a
Restricted Stock Unit which has a vesting period of less than 3 years.
Notwithstanding the foregoing, the Committee shall have the authority to amend
the exercise price of outstanding Options and/or grant Awards of Restricted
Stock or Restricted Stock Units with vesting periods of less than 3 years
provided that the aggregate number of shares subject to such amended Options or
Awards does not exceed 10% of the aggregate number of shares with respect to
which Awards may be granted under the Plan.
(b) No member of the Committee shall be liable for any action
or determination made in good faith, and the members of the Committee shall be
entitled to indemnification and reimbursement in the manner provided in the
Company's Charter and Bylaws, as amended from time to time.
(c) The Committee may designate persons other than its members
to carry out its responsibilities under such conditions or limitations as it may
set, except that the Committee may not delegate: (i) its authority with regard
to Awards (including decisions concerning the timing, pricing and amount of
Awards) granted to Key Employees who are officers or directors for purposes of
Section 16(b) of the Exchange Act; or (ii) its authority pursuant to Section 8
to amend the Plan.
Section 5. Grants of Awards; Shares Available for Award
(a) The Committee may, from time to time, grant Awards to one
or more Key Employees; provided, however, that:
(i) subject to any adjustment pursuant to Section
8, (x) the aggregate number of Shares available with respect to which Awards
may be granted under the Plan shall be 1,350,000 and (y) the aggregate number
of Shares with respect to which Awards may be made to any one Key Employee
during any single fiscal year of the Company may not exceed 250,000.
(ii) to the extent that any Shares covered by an
Award granted under the Plan, or to which any Award relates, are forfeited,
or if an Award otherwise terminates, expires or is canceled prior to the
delivery of all of the Shares or of other consideration issuable or payable
pursuant to such Award, then the number of Shares counted against the number
of Shares available under the Plan in connection with the grant of such Award,
to the extent of any such forfeiture, termination, expiration or cancellation,
shall be available for granting of Awards under the Plan;
(iii) Shares which have been issued, or any other
shares of the capital stock of the Company, which a Participant tenders to the
Company in satisfaction of income and payroll
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tax withholding obligations or in satisfaction of the exercise price of any
Award shall be available for granting of Awards under the Plan;
(iv) notwithstanding anything herein to the
contrary, the Committee may limit the application of Sections 5(a)(ii) and
5(a)(iii) in any manner that it considers necessary or appropriate to ensure
that the Plan complies with the requirements of Rule 16b-3 under the Exchange
Act or any successor provision; and
(v) notwithstanding anything herein to the
contrary, any Shares ceasing to be subject to an Award due to the exercise
of an Award or expiration of a Restriction Period shall no longer be
available for granting of Awards under the Plan.
(b) For purpose of this Section 5:
(i) if an Award is denominated in Shares, the
number of Shares covered by such Award, or to which such Award relates, shall
be counted on the date of grant of such Award against the number of Shares
available for granting of Awards under the Plan; and
(ii) if an Award is not denominated in Shares, the
number of Shares shall be counted on the date of grant of such Award against
the number of Shares available for granting Awards under the Plan equal to
the quotient of the Fair Market Value (calculated as of the date of grant) of
the maximum amount of cash or other consideration payable pursuant to such
Award, divided by the Fair Market Value of one Share on the date of grant.
(c) Any Shares delivered by the Company pursuant to an Award
may consist, in whole or in part, of authorized and unissued Shares or of
treasury Shares. In determining the size of any Award, the Committee may take
into account a Participant's responsibility level, performance, potential, cash
compensation level, the Fair Market Value of the Shares at the time of the Award
and such other considerations as it deems appropriate.
Section 6. Eligibility
Any employee, including any executive officer or
employee-director of the Company or any Affiliate, who is not a member of the
Committee and who, in the opinion of the Committee, contributes to the continued
growth, development and financial success of the Company or an Affiliate shall
be eligible to be designated as a Participant.
Section 7. Awards
(a) Options. The Committee is hereby authorized to grant
Options to Participants in the form of either Non-Qualified Stock Options or
Incentive Stock Options with the terms and conditions set forth in this Section
7 and with such additional terms and conditions, in either case not inconsistent
with the provisions of the Plan, as the Committee shall determine.
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(i) Limitations on Incentive Stock Options.
(A) In the event the Committee grants Incentive
Stock Options, the aggregate Fair Market
Value (determined at the time the Incentive
Stock Options are granted) of the Shares
underlying any such Incentive Stock Options,
together with the shares underlying any
incentive stock options (as defined in
Section 422 of the Code) under any other
plans of the Company or any Affiliate, which
shall be first exercisable by any one
Participant shall not, during any calendar
year, exceed $100,000, or such other
limitation as may be provided in the Code.
(B) The grant of Incentive Stock Options
hereunder shall be subject to guidelines
adopted by the Committee with respect to the
timing and size of Incentive Stock Options.
(C) The terms of any Incentive Stock Option
granted under the Plan shall comply in all
respects with the provisions of Section 422
of the Code, or any successor provision
thereto, and any regulations promulgated
thereunder.
(ii) Exercise Price. The exercise price per
Share purchasable under an Option shall be determined by the Committee;
provided, however, that such exercise price shall not be less than the Fair
Market Value of a Share on the date of grant of the Option (or, if the
Committee so determines, in the case of any Option granted in tandem with
or in substitution for another Award or any outstanding award granted
under any other plan of the Company, on the date of grant of such other Award
or award).
(iii) Option Term. The term of each Option
shall be fixed by the Committee; provided, however, that in no event shall
the term of an Incentive Stock Option exceed a period of ten years from the date
of its grant.
(iv) Exercisability and Method of Exercise. Except
for such limitations as may be set forth herein, an Option shall become
exercisable in such manner and within such period or periods and in such
installments as shall be determined by the Committee and set forth in the
Award Agreement evidencing the Option. The Committee also shall determine
the method or methods by which, and the form or forms in which, payment of the
exercise price with respect to any Option may be made or deemed to have been
made.
(b) Stock Appreciation Rights. The Committee is hereby
authorized to grant Stock Appreciation Rights to Participants. Subject to the
terms of the Plan and any applicable Award Agreement, a Stock Appreciation Right
granted under the Plan shall confer on the holder thereof a right to receive,
upon exercise thereof, the difference of (i) the Fair Market Value of one Share
on the date of exercise or, if the Committee shall so determine in the case of
any such right
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other than one related to any Incentive Stock Option, at any time during a
specified period before or after the date of exercise, less (ii) the grant
price of the right as specified by the Committee, which shall not be less than
the Fair Market Value of one Share on the date of grant of the Stock
Appreciation Right (or, if the Committee so determines, in the case of any Stock
Appreciation Right granted in tandem with or in substitution for another Award
or any outstanding award granted under any other plan of the Company, on the
date of grant of such other Award or award). Subject to the terms of the Plan
and any applicable Award Agreement, the grant price, term, methods of exercise,
methods of settlement and any other terms and conditions of any Stock
Appreciation Right shall be as determined by the Committee. The Committee may
impose such conditions or restrictions on the exercise of any Stock Appreciation
Right as it may deem appropriate, including, without limitation, restricting the
time of exercise of the Stock Appreciation Right to specified periods as may be
necessary to satisfy the requirements of Rule 16b-3.
(c) Restricted Stock and Restricted Stock Units.
(i) Issuance. The Committee is hereby
authorized to grant Awards of Restricted Stock and Restricted Stock Units to
Participants, such Awards, including the total number of Shares to which
they pertain, to be evidenced by an Award Agreement.
(ii) Restrictions. Shares of Restricted Stock
and Restricted Stock Units shall be issued in the name of the Participant
without payment of consideration, and shall be subject to such restrictions
as the Committee may impose (including, without limitation, a Restriction
Period, any limitation on the right to vote a Share of Restricted Stock or the
right to receive any dividend or other right or property), which restrictions
may lapse separately or in combination at such time or times, in such
installments or otherwise, as the Committee may deem appropriate. Different
Restricted Stock or Restricted Stock Unit Awards may, among other things, have
different Restriction Periods.
(iii) Registration. Any Restricted Stock granted
under the Plan may be evidenced in such manner as the Committee may deem
appropriate, including, without limitation, book-entry registration or
issuance of a stock certificate or certificates. In the event any stock
certificate is issued to evidence Shares of Restricted Stock granted under the
Plan, such certificate shall be registered in the name of the Participant and
shall bear an appropriate legend (as determined by the Committee) referring to
the terms, conditions and restrictions applicable to such Restricted Stock. Upon
completion of the applicable Restriction Period, the related restriction or
restrictions upon the Award shall expire and new certificates representing
the Award shall be issued without the applicable restrictive legend
described herein. Such Shares shall be delivered in accordance with the
terms and conditions of such Participant's Award Agreement.
(d) Other Stock or Stock-Based Awards. An Award other than as
described in (a) through (c) above may be granted pursuant to which Shares are,
or in the future may be acquired, or which is valued or determined in whole or
in part by reference to, or otherwise based upon, Shares.
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(e) Code Section 162(m) Requirements. The Committee in its
sole discretion shall determine whether Awards made pursuant to the Plan shall
be designed to meet the requirements of performance-based compensation within
the meaning of Section 162(m) of the Code and any regulations issued thereunder.
(f) Termination of Employment. The Agreement relating to an
Award will set forth provisions governing the disposition of an Award in the
event of the retirement, disability, death or other termination of a
Participant's employment.
(g) Election to Recognize Income. If a Participant makes an
election in a timely manner pursuant to Section 83(b) of the Code to recognize
income for tax purposes when an Award is first made, the Participant shall
notify the Company within 10 days of the making of such election.
(h) General.
(i) Award Agreements. Each Award granted
under the Plan shall be evidenced by an Award Agreement in such form as shall
have been approved by the Committee.
(ii) Awards May Be Granted Separately or
Together. Awards may be granted either alone or in addition to, in tandem
with, or in substitution for any other Award or any award granted under any
other plan of the Company or any Affiliate. Awards granted in addition to or
in tandem with other Awards, or in addition to or in tandem with awards
granted under any other plan of the Company or any Affiliate, may be granted
either at the same time as or at a different time from the grant of such other
Awards or awards.
(iii) Forms of Payment Under Awards. Subject
to the terms of the Plan and of any applicable Award Agreement, payments or
transfers to be made by the Company or any Affiliate upon the grant, exercise
or payment of an Award may be made in such form or forms as the Committee
shall determine, including, without limitation, cash, Shares, other
securities, other Awards or other property, or any combination thereof, and
may be made in a single payment or transfer, in installments or on a deferred
basis, in each case in accordance with the rules and procedures established
by the Committee. Such rules and procedures may include, without limitation,
provisions for the payment or crediting of interest in installments or deferred
payments.
(iv) Limits on Transfer of Awards. No Award
(other than Released Securities), except as otherwise provided by the
Committee in its discretion, and no right under any such Award, shall be
assignable, alienable, saleable or transferable by a Participant otherwise
than by will or by the laws of descent and distribution or pursuant to a
qualified domestic relations order as defined in the Code or Title I of ERISA
(or, in the case of an Award of Restricted Stock, to the Company); provided,
however, that, if so determined by the Committee, a Participant may, in the
manner established by the Committee, designate a Beneficiary to exercise
the rights of the Participant, and to receive any property distributable
with respect to any Award upon the death of the Participant. Each
Award, and each right under any Award, shall be exercisable, during the
Participant's lifetime, only by the Participant or, if permissible under
applicable law, by the
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Participant's guardian or legal representative. No Award (other than Released
Securities), and no right under any such Award, may be pledged, alienated,
attached or otherwise encumbered, and any purported pledge, alienation,
attachment or encumbrance thereof shall be void and unenforceable against
the Company or any Affiliate.
(v) Term of Awards. Except as otherwise
provided herein, the term of each Award shall be for such period as may be
determined by the Committee.
(vi) Share Certificates and Representation by
Participants. All certificates for Shares or other securities delivered under
the Plan pursuant to any Award 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 requirements of
the Commission, any stock exchange or other market upon which such Shares
or other securities are then listed or traded, and any applicable federal
or state securities laws, and the Committee may cause a legend or legends to be
inscribed upon any such certificate(s) to make appropriate reference to such
restrictions. The Committee may require each Participant or other Person who
acquires Shares or other securities under the Plan to represent to the
Company in writing that such Participant or other Person is acquiring the
Shares or other securities without a view to the distribution thereof.
Section 8. Amendment and Termination; Adjustments; Corrections
(a) Amendments to the Plan. The Committee may, at any time or
from time to time, amend, alter, suspend, discontinue or terminate the Plan in
whole or in part; provided, however, that no amendment, alteration, suspension,
discontinuation or termination of the Plan shall in any manner (except as
otherwise provided in this Section 8) adversely affect the rights of any
Participant under any Award granted and then outstanding under the Plan, without
the consent of the respective Participant; provided further, however, that any
amendment which under the requirements of applicable law must be approved by the
stockholders of the Company shall not be effective unless and until such
stockholder approval has been obtained in compliance with such law, and
provided, further, that any amendment that must be approved by the stockholders
of the Company in order to maintain the continued qualification of the Plan
under Rule 16b-3 under the Exchange Act, or any successor provision, shall not
be effective unless and until such stockholder approval has been obtained in
compliance with such rule. No termination or amendment of the Plan may, without
the consent of the Participant to whom an Award has been granted, adversely
affect the rights of such Participant under such Award.
(b) Certain Adjustments of Awards.
(i) In the event the Company or any Affiliate
shall assume outstanding employee awards or the right or obligation to make
future such awards in connection with the acquisition of another business or
business entity, the Committee may make such adjustments in the terms of
Awards, not inconsistent with the terms of the Plan, as it shall deem
appropriate in
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order to achieve reasonable comparability or other equitable relationship
between the assumed awards and the Awards granted under the Plan, as so
adjusted.
(ii) In the event that the Committee shall
determine that any dividend or other distribution (whether in the form of
cash, Shares, other securities or other property), recapitalization, stock
split, reverse stock split, reorganization, merger, consolidation, split-up,
spin-off, combination, repurchase or exchange of Shares or other securities
of the Company, issuance of warrants or other rights to purchase Shares or
other securities of the Company, or other similar corporate transaction,
change in applicable laws, regulations or financial accounting principles or
other event affects the Shares, such that an adjustment is determined by the
Committee to be appropriate in order to prevent dilution or enlargement of the
benefits or potential benefits intended to be made available under the Plan,
then the Committee may, in such manner as it may deem equitable, adjust any or
all of: (A) the number and type of Shares (or other securities or property)
which thereafter may be made the subject of Awards under the Plan; (B) the
number and type of Shares (or other securities or property) subject to
outstanding Awards; and (C) the grant, purchase or exercise price with respect
to any Award, or, if deemed appropriate, make provision for a cash payment to
the holder of an outstanding Award; provided, however, in each case, that with
respect to Awards of Incentive Stock Options, no such adjustment shall be
authorized to the extent that such authority would cause the Plan to violate
Section 422(b)(1) of the Code or any successor provision thereto; provided
further, that the number of Shares subject to any Award denominated in Shares
shall always by a whole number. The foregoing adjustments shall be determined by
the Committee in its sole discretion.
(c) Correction of Defects, Omissions and
Inconsistencies. The Committee may correct any defect, supply any omission or
reconcile any inconsistency in any Award or Award Agreement in the manner and
to the extent it shall deem desirable to carry the Plan into effect.
Section 9. General Provisions
(a) No Rights to Awards. No Key Employee, Participant or other
Person shall have any claim to be granted any Award under the Plan, and there is
no obligation for uniformity of treatment of Key Employees, Participants or
holders or Beneficiaries of Awards under the Plan. The terms and conditions of
Awards need not be the same with respect to each Participant.
(b) Withholding. No later than the date as of which an amount
first becomes includable in the gross income of a Participant for federal income
tax purposes with respect to any Award under the Plan, the Participant shall pay
to the Company, or make arrangements satisfactory to the Company regarding the
payment of, any federal, state, local or foreign taxes of any kind required by
law to be withheld with respect to such amount. Unless otherwise determined by
the Committee, withholding obligations arising with respect to Awards under the
Plan may be settled with Shares (other than Restricted Stock), including Shares
that are part of, or are received upon exercise of, the Award that gives rise to
the withholding requirement. The obligations of the Company under the Plan shall
be conditioned on such payment or arrangements, and the Company and any
Affiliate shall, to the extent permitted by law, have the right to deduct any
such taxes from
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any payment otherwise due to the Participant. The Committee may establish such
procedures as it deems appropriate for the settling of withholding
obligations with Shares, including, without limitation, the
establishment of such procedures as may be necessary to satisfy the requirements
of Rule 16b-3.
(c) Acceleration. Except as otherwise provided hereunder, the
Committee may, in its discretion, (i) accelerate the time at which an
outstanding Award granted hereunder may be exercised and (ii) extend the
post-termination of employment exercise period of any outstanding Award. With
respect to Restricted Stock, in the event of a public tender offer for all or
any portion of the Shares of the Company, or in the event that any proposal to
merge or consolidate the Company with another entity is submitted to the
stockholders of the Company for a vote, the Committee, in its sole discretion,
may shorten or eliminate the Restriction Period consistent with the best
interests of the Company.
(d) No Right to Employment. The grant of an Award shall not be
construed as giving a Participant the right to be retained in the employ of the
Company or any Affiliate. Further, the Company or any Affiliate may at any time
dismiss a Participant from employment, free from any liability or any claim
under the Plan, unless otherwise expressly provided in the Plan or in any Award
Agreement.
(e) Unfunded Status of the Plan. Unless otherwise determined
by the Committee, the Plan shall be unfunded and shall not create (or be
construed to create) a trust or a separate fund or funds. The Plan shall not
establish any fiduciary relationship between the Company and any Participant or
other Person. To the extent any Person holds any right by virtue of the grant of
an Award under the Plan, such right (unless otherwise determined by the
Committee) shall be no greater than the right of an unsecured general creditor
of the Company.
(f) Government and Other Regulations. The obligation of the
Company to make payment of Awards in Shares or otherwise shall be subject to all
applicable laws, rules and regulations, and to such approvals by any government
agencies as may be required. If Shares awarded hereunder may in certain
circumstances be exempt from registration under the Securities Act of 1933, as
amended, the Company may restrict its transfer in such manner as it deems
advisable to ensure such exempt status.
(g) No Restriction on Right of Company to Effect Corporate
Changes. The Plan shall not affect in any way the right or power of the Company
or its stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the Company's capital
structure or its business, or any merger or consolidation of the Company, or any
issue of stock or options, warrants or rights to purchase stock or of bonds,
debentures, preferred or prior preference stocks whose rights are superior to or
affect the Shares or the rights thereof or which are convertible into or
exchangeable for the Shares, or dissolution or liquidation of the Company, or
any sale or transfer of all or any part of its assets or business, or any other
corporate act or proceeding, whether of a similar character or otherwise.
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(h) 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 laws of the State of Maryland,
exclusive of its conflicts of law provisions, and applicable Federal law.
(i) Severability. If any provision of the Plan, any Award
Agreement or any Award is or becomes or is deemed to be invalid, illegal or
unenforceable in any jurisdiction, or as to any Person or Award, or would
disqualify the Plan, any Award Agreement or any Award under any law deemed
applicable by the Committee, such provision shall be construed or deemed amended
to conform to applicable laws, or, if it cannot be so construed or deemed
amended without, in the determination of the Committee, materially altering the
intent of the Plan, the Award Agreement or the Award, such provision shall be
stricken as to such jurisdiction, Person or Award, and the remainder of the
Plan, such Award Agreement and such Award shall remain in full force and effect.
(j) No Fractional Shares. No fractional Shares shall be issued
or delivered pursuant to the Plan, any Award Agreement or any Award, and the
Committee shall determine whether cash, other securities or other property shall
be paid or transferred in lieu of any fractional Shares, or whether such
fractional Shares or any rights thereto shall be canceled, terminated or
otherwise eliminated.
(k) Headings. Headings are given to the sections and
subsections of the Plan solely as a convenience to facilitate reference. Such
headings shall not be deemed in any way material or relevant to the construction
or interpretation of the Plan or any provision thereof.
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