GABELLI ASSET MANAGEMENT INC.
1999 STOCK AWARD AND INCENTIVE PLAN
Section Page
1. Purposes; Types of Awards; Construction . . . . . . . . . . . 1
2. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . 1
3. Administration . . . . . . . . . . . . . . . . . . . . . . . 5
4. Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . 6
5. Stock Subject to the Plan . . . . . . . . . . . . . . . . . . 6
6. Specific Terms of Awards . . . . . . . . . . . . . . . . . . 7
7. General Provisions . . . . . . . . . . . . . . . . . . . . . 13
GABELLI ASSET MANAGEMENT INC.
1999 STOCK AWARD AND INCENTIVE PLAN
1. Purpose; Types of Awards; Construction.
The purpose of the 1999 Stock Award and Incentive Plan of Gabelli
Asset Management Inc. (the "Plan") is to afford an incentive to selected
employees, directors and independent contractors of Gabelli Asset
Management Inc. (the "Company"), or any Subsidiary or Affiliate which now
exists or hereafter is organized or acquired, to acquire a proprietary
interest in the Company, to continue as employees or independent
contractors, as the case may be, to increase their efforts on behalf of the
Company and to promote the success of the Company's business. Pursuant to
Section 6 of the Plan, there may be granted stock options (including
"incentive stock options" and "nonqualified stock options"), stock
appreciation rights (either in connection with stock options granted under
the Plan or independently of options), restricted stock, restricted stock
units, dividend equivalents and other stock- or cash-based awards. From
and after the consummation of the Initial Public Offering, as hereunder
defined, awards made under the Plan are intended to satisfy the
requirements of Rule 16b-3 promulgated under Section 16 of the Exchange Act
and the Plan shall be interpreted in a manner consistent therewith.
2. Definitions.
For purposes of the Plan, the following terms shall be defined as
set forth below:
(a) "Affiliate" means any entity if, at the time of
granting of an Award or a Loan, (i) the Company, directly or indirectly,
owns at least 20% of the combined voting power of all classes of stock of
such entity or at least 20% of the ownership interests in such entity or
(ii) such entity, directly or indirectly, owns at least 20% of the combined
voting power of all classes of stock of the Company.
(b) "Award" means any Option, SAR, Restricted Stock,
Restricted Stock Unit, Dividend Equivalent or Other Stock-Based Award or
Other Cash-Based Award granted under the Plan.
(c) "Award Agreement" means any written agreement,
contract, or other instrument or document evidencing an Award.
(d) "Beneficiary" means the person, persons, trust or
trusts which have been designated by a Grantee in his or her most recent
written beneficiary designation filed with the Company to receive the
benefits specified under the Plan upon his or her death, or, if there is no
designated Beneficiary or surviving designated Beneficiary, then the
person, persons, trust or trusts entitled by will or the laws of descent
and distribution to receive such benefits.
(e) "Board" means the Board of Directors of the Company.
(f) A "Change in Control" shall be deemed to have occurred
if the event set forth in any one of the following paragraphs shall have
occurred:
(I) any Person (as defined below in this Section 2(f))
is or becomes the Beneficial Owner (as defined below in this
Section 2(f)), directly or indirectly, of securities of the
Company representing 25% or more of the combined voting power of
the Company's then outstanding securities, excluding any Person
who becomes such a Beneficial Owner in connection with a
transaction described in clause (i) of paragraph (III) below; or
(II) the following individuals cease for any reason to
constitute a majority of the number of directors then serving:
individuals who, on the date hereof, constitute the Board and any
new director (other than a director whose initial assumption of
office is in connection with an actual or threatened election
contest, including but not limited to a consent solicitation,
relating to the election of directors of the Company) whose
appointment or election by the Board or nomination for election
by the Company's stockholders was approved or recommended by a
vote of at least two-thirds (2/3) of the directors then still in
office who either were directors on the date hereof or whose
appointment, election or nomination for election was previously
so approved or recommended; or
(III) there is consummated a merger or consolidation
of the Company or any direct or indirect subsidiary of the
Company with any other corporation, other than (i) a merger or
consolidation that would result in the voting securities of the
Company outstanding immediately prior to such merger or
consolidation continuing to represent (either by remaining
outstanding or by being converted into voting securities of the
surviving entity or any parent thereof) at least 60% of the
combined voting power of the securities of the Company or such
surviving entity or any parent thereof outstanding immediately
after such merger or consolidation, or (ii) a merger or
consolidation effected to implement a recapitalization of the
Company (or similar transaction) in which no Person is or becomes
the Beneficial Owner, directly or indirectly, of securities of
the Company representing 25% or more of the combined voting power
of the Company's then outstanding securities; or
(IV) the stockholders of the Company approve a plan of
complete liquidation or dissolution of the Company or there is
consummated an agreement for the sale or disposition by the
Company of all or substantially all of the Company's assets,
other than a sale or disposition by the Company of all or
substantially all of the Company's assets to an entity, at least
60% of the combined voting power of the voting securities of
which are owned by stockholders of the Company in substantially
the same proportions as their ownership of the Company
immediately prior to such sale.
For purposes of this Section 2(f), "Person" shall mean any person
(as defined in Section 3(a)(9) of the Securities Exchange Act (the
"Exchange Act"), as such term is modified in Sections 13(d) and 14(d) of
the Exchange Act) other than (1) any employee plan established by the
Company, (2) the Company or any of its affiliates (as defined in Rule 12b-2
promulgated under the Exchange Act), (3) an underwriter temporarily holding
securities pursuant to an offering of such securities, or (4) a corporation
owned, directly or indirectly, by stockholders of the Company in
substantially the same proportions as their ownership of the Company.
For purposes of this Section 2(f), "Beneficial Owner" shall have the
meaning set forth in Rule 13d-3 under the Exchange Act
(g) "Code" means the Internal Revenue Code of 1986, as
amended from time to time.
(h) "Committee" means the committee established by the
Board to administer the Plan from and after the consummation of the Initial
Public Offering, the composition of which shall at all times satisfy the
provisions of Rule 16b-3. With respect to the period prior to consummation
of the Initial Public Offering, references to the "Committee" shall be
deemed to refer to the Board.
(i) "Company" means Gabelli Asset Management Inc., a
corporation organized under the laws of the State of New York, or any
successor corporation.
(j) "Dividend Equivalent" means a right, granted to a
Grantee under Section 6(g), to receive cash, Stock, or other property equal
in value to dividends paid with respect to a specified number of shares of
Stock. Dividend Equivalents may be awarded on a free-standing basis or in
connection with another Award, and may be paid currently or on a deferred
basis.
(k) "Exchange Act" means the Securities Exchange Act of
1934, as amended from time to time, and as now or hereafter construed,
interpreted and applied by regulations, rulings and cases.
(l) "Fair Market Value" means, with respect to Stock or
other property, the fair market value of such Stock or other property
determined by such methods or procedures as shall be established from time
to time by the Committee. Unless otherwise determined by the Committee in
good faith, the per share Fair Market Value of Stock as of a particular
date shall mean (i) the closing sales price per share of Stock on the
national securities exchange on which the Stock is principally traded, for
the last preceding date on which there was a sale of such Stock on such
exchange, or (ii) if the shares of Stock are then traded in an over-the-
counter market, the average of the closing bid and asked prices for the
shares of Stock in such over-the-counter market for the last preceding date
on which there was a sale of such Stock in such market, or (iii) if the
shares of Stock are not then listed on a national securities exchange or
traded in an over-the-counter market, such value as the Committee, in its
sole discretion, shall determine.
(m) "Grantee" means a person who, as an employee or
independent contractor of the Company, a Subsidiary or an Affiliate, has
been granted an Award under the Plan.
(n) "Initial Public Offering" shall mean the initial public
offering of shares of Stock of the Company, as more fully described in the
Registration Statement on Form S-1 (No. 333-51023) filed with the
Securities and Exchange Commission on or about April 24, 1998, as such
Registration Statement may be amended from time to time.
(o) "ISO" means any Option intended to be and designated as
an incentive stock option within the meaning of Section 422 of the Code.
(p) "NQSO" means any Option that is designated as a
nonqualified stock option.
(q) "Option" means a right, granted to a Grantee under
Section 6(b), to purchase shares of Stock. An Option may be either an ISO
or an NQSO, provided that ISO's may not be granted to independent
contractors.
(r) "Other Cash-Based Award" means cash awarded under
Section 6(h), including cash awarded as a bonus or upon the attainment of
specified performance criteria or otherwise as permitted under the Plan.
(s) "Other Stock-Based Award" means a right or other
interest granted to a Grantee under Section 6(h) that may be denominated or
payable in, valued in whole or in part by reference to, or otherwise based
on, or related to, Stock, including, but not limited to (1) unrestricted
Stock awarded as a bonus or upon the attainment of specified performance
criteria or otherwise as permitted under the Plan, and (2) a right granted
to a Grantee to acquire Stock from the Company for cash and/or a promissory
note containing terms and conditions prescribed by the Committee.
(t) "Plan" means this Gabelli Asset Management Inc. 1999
Stock Award and Incentive Plan, as amended from time to time.
(u) "Restricted Stock" means an Award of shares of Stock to
a Grantee under Section 6(d) that may be subject to certain restrictions
and to a risk of forfeiture.
(v) "Restricted Stock Unit" means a right granted to a
Grantee under Section 6(e) to receive Stock or cash at the end of a
specified deferral period, which right may be conditioned on the
satisfaction of specified performance or other criteria.
(w) "Rule 16b-3" means Rule 16b-3, as from time to time in
effect promulgated by the Securities and Exchange Commission under Section
16 of the Exchange Act, including any successor to such Rule.
(x) "Stock" means shares of the Class A common stock, par
value $.001 per share, of the Company.
(bb) "SAR" or "Stock Appreciation Right" means the right,
granted to a Grantee under Section 6(c), to be paid an amount measured by
the appreciation in the Fair Market Value of Stock from the date of grant
to the date of exercise of the right, with payment to be made in cash,
Stock, or property as specified in the Award or determined by the
Committee.
(cc) "Subsidiary" means any corporation in an unbroken
chain of corporations beginning with the Company if, at the time of
granting of an 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 the chain.
3. Administration.
The Plan shall be administered by the Committee. The Committee
shall have the authority in its discretion, subject to and not inconsistent
with the express provisions of the Plan, to administer the Plan and to
exercise all the powers and authorities either specifically granted to it
under the Plan or necessary or advisable in the administration of the Plan,
including, without limitation, the authority to grant Awards; to determine
the persons to whom and the time or times at which Awards shall be granted;
to determine the type and number of Awards to be granted, the number of
shares of Stock to which an Award may relate and the terms, conditions,
restrictions and performance criteria relating to any Award; and to
determine whether, to what extent, and under what circumstances an Award
may be settled, cancelled, forfeited, exchanged, or surrendered; to make
adjustments in the terms and conditions of, and the criteria and
performance objectives (if any) included in, Awards in recognition of
unusual or non-recurring events affecting the Company or any Subsidiary or
Affiliate or the financial statements of the Company or any Subsidiary or
Affiliate, or in response to changes in applicable laws, regulations, or
accounting principles; to designate Affiliates; to construe and interpret
the Plan and any Award; to prescribe, amend and rescind rules and
regulations relating to the Plan; to determine the terms and provisions of
the Award Agreements (which need not be identical for each Grantee); and to
make all other determinations deemed necessary or advisable for the
administration of the Plan.
The Committee may appoint a chairperson and a secretary and may
make such rules and regulations for the conduct of its business as it shall
deem advisable, and shall keep minutes of its meetings. All determinations
of the Committee shall be made by a majority of its members either present
in person or participating by conference telephone at a meeting or by
written consent. The Committee may delegate to one or more of its members
or to one or more agents such administrative duties as it may deem
advisable, and the Committee or any person to whom it has delegated duties
as aforesaid may employ one or more persons to render advice with respect
to any responsibility the Committee or such person may have under the Plan.
All decisions, determinations and interpretations of the Committee shall be
final and binding on all persons, including the Company, and any
Subsidiary, Affiliate or Grantee (or any person claiming any rights under
the Plan from or through any Grantee) and any stockholder.
No member of the Board or Committee shall be liable for any
action taken or determination made in good faith with respect to the Plan
or any Award granted made hereunder.
4. Eligibility.
Awards may be granted to selected employees, independent
contractors and directors of the Company and its present or future
Subsidiaries and Affiliates, in the discretion of the Committee. In
determining the persons to whom Awards shall be granted and the type of
any Award (including the number of shares to be covered by such Award), the
Committee shall take into account such factors as the Committee shall deem
relevant in connection with accomplishing the purposes of the Plan.
5. Stock Subject to the Plan.
The number of shares of Stock reserved for the grant of Awards
under the Plan shall be 1,500,000, subject to adjustment as provided
herein. Such shares may, in whole or in part, be authorized but unissued
shares or shares that shall have been or may be reacquired by the Company
in the open market, in private transactions or otherwise. If any shares
subject to an Award are forfeited, cancelled, exchanged or surrendered or
if an Award otherwise terminates or expires without a distribution of
shares to the Grantee, the shares of stock with respect to such Award
shall, to the extent of any such forfeiture, cancellation, exchange,
surrender, termination or expiration, again be available for Awards under
the Plan. Upon the exercise of any Award granted in tandem with any other
Awards or awards, such related Awards or awards shall be cancelled to the
extent of the number of shares of Stock as to which the Award is exercised
and, notwithstanding the foregoing, such number of shares shall no longer
be available for Awards under the Plan.
In the event that the Committee shall determine that any dividend
or other distribution (whether in the form of cash, Stock, or other
property), recapitalization, Stock split, reverse split, reorganization,
merger, consolidation, spin-off, combination, repurchase, or share
exchange, or other similar corporate transaction or event, affects the
Stock so that an adjustment is appropriate in order to prevent dilution or
enlargement of the rights of Grantees under the Plan, then the Committee
shall make such equitable changes or adjustments as it deems necessary or
appropriate to any or all of (i) the number and kind of shares of Stock
which may thereafter be issued in connection with Awards, (ii) the number
and kind of shares of Stock issued or issuable in respect of outstanding
Awards, and (iii) the exercise price, grant price, or purchase price
relating to any Award; provided that, with respect to ISOs, such adjustment
shall be made in accordance with Section 424(h) of the Code.
6. Specific Terms of Awards.
(a) General. The term of each Award shall be for such
period as may be determined by the Committee. Subject to the terms of the
Plan and any applicable Award Agreement, payments to be made by the Company
or a Subsidiary or Affiliate upon the grant, maturation, or exercise of an
Award may be made in such forms as the Committee shall determine at the
date of grant or thereafter, including, without limitation, cash, Stock, or
other property, and may be made in a single payment or transfer, in
installments, or on a deferred basis. The Committee may make rules
relating to installment or deferred payments with respect to Awards,
including the rate of interest to be credited with respect to such
payments. In addition to the foregoing, the Committee may impose on any
Award or the exercise thereof, at the date of grant or thereafter, such
additional terms and conditions, not inconsistent with the provisions of
the Plan, as the Committee shall determine.
(b) Options. The Committee is authorized to grant Options
to Grantees on the following terms and conditions:
(i) Type of Award. The Award Agreement evidencing the
grant of an Option under the Plan shall designate the Option as
an ISO or an NQSO.
(ii) Exercise Price. The exercise price per share of
Stock purchasable under an Option shall be determined by the
Committee; provided that, in the case of an ISO, such exercise
price shall be not less than the Fair Market Value of a share on
the date of grant of such Option, and in no event shall the
exercise price for the purchase of shares be less than par value.
The exercise price for Stock subject to an Option may be paid (i)
in cash, or (ii) at the discretion of the Committee, by an
exchange of Stock previously owned by the Grantee, by the
withholding of Stock otherwise issuable upon exercise or (iii) a
combination of thereof, in an amount having a combined value
equal to such exercise price. A Grantee may also elect to pay
all or a portion of the aggregate exercise price by having shares
of Stock with a Fair Market Value on the date of exercise equal
to the aggregate exercise price withheld by the Company or sold
by a broker-dealer under circumstances meeting the requirements
of 12 C.F.R. section220 or any successor thereof.
(iii) Term and Exercisability of Options. The date on
which the Committee adopts a resolution expressly granting an
Option shall be considered the day on which such Option is
granted; provided that Option grants in connection with the
Initial Public Offering shall be deemed to have been granted on
the date of consummation of the Initial Public Offering. Options
shall be exercisable over the exercise period (which shall not
exceed ten years from the date of grant), at such times and upon
such conditions as the Committee may determine, as reflected in
the Award Agreement; provided that the Committee shall have the
authority to accelerate the exercisability of any outstanding
Option at such time and under such circumstances as it, in its
sole discretion, deems appropriate (subject to the provisions of
Section 7 hereof). An Option may be exercised to the extent of
any or all full shares of Stock as to which the Option has become
exercisable, by giving written notice of such exercise to the
Committee or its designated agent.
(iv) Termination of Employment, Etc. Unless otherwise
determined by the Committee, an Option may not be exercised
unless the Grantee is then in the employ of, or then maintains an
independent contractor relationship with, the Company or a
Subsidiary or an Affiliate (or a company or a parent or
subsidiary company of such company issuing or assuming the Option
in a transaction to which Section 424(a) of the Code applies),
and unless the Grantee has remained continuously so employed, or
continuously maintained such relationship, since the date of
grant of the Option; provided that the Award Agreement may
contain provisions extending the exercisability of Options, in
the event of specified terminations, to a date not later than the
expiration date of such Option.
(v) Other Provisions. Options may be subject to such
other conditions including, but not limited to, restrictions on
transferability of the shares acquired upon exercise of such
Options, as the Committee may prescribe in its discretion.
(c) SARs. The Committee is authorized to grant
SARs to Grantees on the following terms and conditions:
(i) In General. Unless the Committee determines
otherwise, an SAR (1) granted in tandem with an NQSO may be
granted at the time of grant of the related NQSO or at any time
thereafter or (2) granted in tandem with an ISO may only be
granted at the time of grant of the related ISO. An SAR granted
in tandem with an Option shall be exercisable only to the extent
the underlying Option is exercisable.
(ii) SARs. An SAR shall confer on the Grantee a right
to receive with respect to each share subject thereto, upon
exercise thereof, the excess of (1) the Fair Market Value of one
share of Stock on the date of exercise over (2) the grant price
of the SAR (which in the case of an SAR granted in tandem with an
Option shall be equal to the exercise price of the underlying
Option, and which in the case of any other SAR shall be such
price as the Committee may determine).
(d) Restricted Stock. The Committee is
authorized to grant Restricted Stock to Grantees on the following
terms and conditions:
(i) Issuance and Restrictions. Restricted Stock shall
be subject to such restrictions on transferability and other
restrictions, if any, as the Committee may impose at the date of
grant or thereafter, which restrictions may lapse separately or
in combination at such times, under such circumstances, in such
installments, or otherwise, as the Committee may determine
(subject to the provisions of Section 7 hereof). Except to the
extent restricted under the Award Agreement relating to the
Restricted Stock, a Grantee granted Restricted Stock shall have
all of the rights of a stockholder including, without limitation,
the right to vote Restricted Stock and the right to receive
dividends thereon.
(ii) Forfeiture. Upon termination of employment or
termination of the independent contractor relationship during the
applicable restriction period, Restricted Stock and any accrued
but unpaid dividends or Dividend Equivalents that are at that
time subject to restrictions shall be forfeited; provided that
the Committee may provide, by rule or regulation or in any Award
Agreement, or may determine in any individual case, that
restrictions or forfeiture conditions relating to Restricted
Stock will be waived in whole or in part in the event of
terminations resulting from specified causes, and the Committee
may in other cases waive in whole or in part the forfeiture of
Restricted Stock.
(iii) Certificates for Stock. Restricted Stock
granted under the Plan may be evidenced in such manner as the
Committee shall determine. If certificates representing
Restricted Stock are registered in the name of the Grantee, such
certificates shall bear an appropriate legend referring to the
terms, conditions, and restrictions applicable to such Restricted
Stock, and the Company shall retain physical possession of the
certificate.
(iv) Dividends. Dividends paid on Restricted Stock
shall be either paid at the dividend payment date, or deferred
for payment to such date as determined by the Committee, in cash
or in shares of unrestricted Stock having a Fair Market Value
equal to the amount of such dividends. Stock distributed in
connection with a stock split or stock dividend, and other
property distributed as a dividend, shall be subject to
restrictions and a risk of forfeiture to the same extent as the
Restricted Stock with respect to which such Stock or other
property has been distributed.
(e) Restricted Stock Units. The Committee is
authorized to grant Restricted Stock Units to Grantees, subject
to the following terms and conditions:
(i) Award and Restrictions. Delivery of Stock or
cash, as determined by the Committee, will occur upon expiration
of the deferral period specified for Restricted Stock Units by
the Committee. In addition, Restricted Stock Units shall be
subject to such restrictions as the Committee may impose, at the
date of grant or thereafter, which restrictions may lapse at the
expiration of the deferral period or at earlier or later
specified times, separately or in combination, in installments or
otherwise, as the Committee may determine.
(ii) Forfeiture. Upon termination of employment or
termination of the independent contractor relationship during the
applicable deferral period or portion thereof to which forfeiture
conditions apply, or upon failure to satisfy any other conditions
precedent to the delivery of Stock or cash to which such
Restricted Stock Units relate, all Restricted Stock Units that
are then subject to deferral or restriction shall be forfeited;
provided that the Committee may provide, by rule or regulation or
in any Award Agreement, or may determine in any individual case,
that restrictions or forfeiture conditions relating to Restricted
Stock Units will be waived in whole or in part in the event of
termination resulting from specified causes, and the Committee
may in other cases waive in whole or in part the forfeiture of
Restricted Stock Units.
(f) Stock Awards in Lieu of Cash Awards. The
Committee is authorized to grant Stock as a bonus, or to grant
other Awards, in lieu of Company commitments to pay cash under
other plans or compensatory arrangements. Stock or Awards
granted hereunder shall have such other terms as shall be
determined by the Committee.
(g) Dividend Equivalents. The Committee is
authorized to grant Dividend Equivalents to Grantees. The
Committee may provide, at the date of grant or thereafter, that
Dividend Equivalents shall be paid or distributed when accrued or
shall be deemed to have been reinvested in additional Stock, or
other investment vehicles as the Committee may specify, provided
that Dividend Equivalents (other than freestanding Dividend
Equivalents) shall be subject to all conditions and restrictions
of the underlying Awards to which they relate.
(h) Other Stock - or Cash-Based Awards. The
Committee is authorized to grant to Grantees Other Stock-Based
Awards or Other Cash-Based Awards as an element of or supplement
to any other Award under the Plan, as deemed by the Committee to
be consistent with the purposes of the Plan. Such Awards may be
granted with value and payment contingent upon performance of the
Company or any other factors designated by the Committee, or
valued by reference to the performance of specified Subsidiaries
or Affiliates. The Committee shall determine the terms and
conditions of such Awards at the date of grant or thereafter.
7. Change in Control. In the event of a Change in Control, all
outstanding Options and SARs not then exercisable shall become fully
exercisable, and all outstanding Restricted Stock, Restricted Stock Unit,
Dividend Equivalent or Other Stock-Based Award or Other Cash-Based Award
Awards not then fully vested shall become fully vested.
8. General Provisions.
(a) Compliance with Local and Exchange Requirements. The
Plan, the granting and exercising of Awards thereunder, and the other
obligations of the Company under the Plan and any Award Agreement or other
agreement shall be subject to all applicable federal and state laws, rules
and regulations, and to such approvals by any regulatory or governmental
agency as may be required. The Company, in its discretion, may postpone
the issuance or delivery of Stock under any Award until completion of such
stock exchange listing or registration or qualification of such Stock or
other required action under any state, federal or foreign law, rule or
regulation as the Company may consider appropriate, and may require any
Grantee to make such representations and furnish such information as it may
consider appropriate in connection with the issuance or delivery of Stock
in compliance with applicable laws, rules and regulations.
(b) Nontransferability. Unless otherwise determined by the
Committee and set forth in the applicable Award Agreement, Awards shall not
be transferable by a Grantee except by will or the laws of descent and
distribution or, if then permitted under Rule 16b-3, pursuant to a
qualified domestic relations order as defined under the Code or Title I of
the Employee Retirement Income Security Act of 1974, as amended, or the
rules thereunder, and shall be exercisable during the lifetime of a Grantee
only by such Grantee or his guardian or legal representative.
(c) No Right to Continued Employment, etc. Nothing in the
Plan or in any Award granted or any Award Agreement or other agreement
entered into pursuant hereto shall confer upon any Grantee the right to
continue in the employ of or to continue as an independent contractor of
the Company, any subsidiary or any Affiliate or to be entitled to any
remuneration or benefits not set forth in the Plan or such Award Agreement
or other agreement or to interfere with or limit in any way the right of
the Company or any such Subsidiary or Affiliate to terminate such Grantee's
employment or independent contractor relationship.
(d) Taxes. The Company or any Subsidiary or Affiliate is
authorized to withhold from any Award granted, any payment relating to an
Award under the Plan, including from a distribution of Stock, or any other
payment to a Grantee, amounts of withholding and other taxes due in
connection with any transaction involving an Award, and to take such other
action as the Committee may deem advisable to enable the Company and
Grantees to satisfy obligations for the payment of withholding taxes and
other tax obligations relating to any Award. This authority shall include
authority to withhold or receive Stock or other property and to make cash
payments in respect thereof in satisfaction of a Grantee's tax obligations.
(e) Amendment and Termination of the Plan. The Board may
at any time and from time to time alter, amend, suspend, or terminate the
Plan in whole or in part; provided that no amendment which requires
stockholder approval in order for the Plan to continue to comply with
applicable law or stock exchange requirements shall be effective unless the
same shall be approved by the requisite vote of the stockholders of the
Company entitled to vote thereon. Notwithstanding the foregoing, no
amendment shall affect adversely any of the rights of any Grantee, without
such Grantee's consent, under any Award theretofore granted under the Plan.
(f) No Rights to Awards; No Stockholder Rights. No Grantee
shall have any claim to be granted any Award under the Plan, and there is
no obligation for uniformity of treatment of Grantees. Except as provided
specifically herein, a Grantee or a transferee of an Award shall have no
rights as a stockholder with respect to any shares covered by the Award
until the date of the issuance of a stock certificate to him for such
shares.
(g) Unfunded Status of Awards. The Plan is intended to
constitute an "unfunded" plan for incentive and deferred compensation.
With respect to any payments not yet made to a Grantee pursuant to an
Award, nothing contained in the Plan or any Award shall give any such
Grantee any rights that are greater than those of a general creditor of the
Company.
(h) No Fractional Shares. No fractional shares of Stock
shall be issued or delivered pursuant to the Plan or any Award. The
Committee shall determine whether cash, other Awards, or other property
shall be issued or paid in lieu of such fractional shares or whether such
fractional shares or any rights thereto shall be forfeited or otherwise
eliminated.
(i) Governing Law. The Plan and all determinations made
and actions taken pursuant hereto shall be governed by the laws of the
State of New York without giving effect to the conflict of laws principles
thereof.
(j) Effective Date; Plan Termination. The Plan shall take
effect upon its adoption by the Board (the "Effective Date"), but the Plan
(and any grants of Awards made prior to the stockholder approval mentioned
herein) shall be subject to the approval of the holders of a majority of
the issued and outstanding shares of voting securities of the Company
entitled to vote, which approval must occur within twelve months of the
date the Plan is adopted by the Board. In the absence of such approval,
such Awards shall be null and void. Notwithstanding the foregoing, the
effectiveness of the Plan and the validity of any Award granted hereunder
is conditioned upon the consummation of the Initial Public Offering, and
shall be of no force and effect if the Initial Public Offering is not
consummated.