Exhibit 99.
CINEMA RIDE, INC.
2003 CONSULTANT STOCK PLAN
PURPOSE OF PLAN
WHEREAS, the purpose of this 2003 Consultant Stock Plan is to advance the
interests of the Company by helping the Company obtain and retain the services
of persons providing consulting services upon whose judgment, initiative,
efforts and/or services the Company is substantially dependent, by offering to
or providing those persons with incentives or inducements affording such persons
an opportunity to become owners of capital stock of the Company.
TERMS AND CONDITIONS OF PLAN
1. DEFINITIONS.
Set forth below are definitions of capitalized terms that are generally
used throughout this Plan, or references to provisions containing such
definitions (capitalized terms whose use is limited to specific provisions are
not referenced in this Section):
(a) Affiliate - The term "Affiliate" is defined as any person controlling the
Company, controlled by the Company, or under common control with the
Company.
(b) Award - The term "Award" is collectively and severally defined as any
Options or Award Shares granted under this Plan.
(c) Award Shares - The term "Award Shares" is defined as shares of Common Stock
granted by the Plan Committee in accordance with Section 6 of this Plan.
(d) Board - The term "Board" is defined as the Board of Directors of the
Company, as such body may be reconstituted from time to time.
(e) Common Stock - The term "Common Stock" is defined as the Company's common
stock, par value $0.08.
(f) Company - The term "Company" is defined as Cinema Ride, Inc., a Delaware
corporation.
(g) Disposed - The term "Disposed" (or the equivalent terms "Disposition" or
"Dispose") is defined as any transfer or alienation of an Award which would
directly or indirectly change the legal or beneficial ownership thereof,
whether voluntary or by operation of law, or with or without the payment or
provision of consideration, including, by way of example and not
limitation: (i) the sale, assignment, bequest or gift of the Award; (ii)
any transaction that creates or grants an option, warrant, or right to
obtain an interest in the Award; (iii) any transaction that creates a form
of joint ownership in the Award between the Recipient and one or more other
Persons; (iv) any Disposition of the Award to a creditor of the Recipient,
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including the hypothecation, encumbrance or pledge of the Award or any
interest therein, or the attachment or imposition of a lien by a creditor
of the Recipient of the Award or any interest therein which is not released
within thirty (30) days after the imposition thereof; (v) any distribution
by a Recipient which is an entity to its stockholders, partners,
co-venturers or members, as the case may be, or (vi) any distribution by a
Recipient which is a fiduciary such as a trustee or custodian to its
settlors or beneficiaries.
(h) Eligible Person - The term "Eligible Person" means any Person who, at a
particular time, is a consultant to the Company or an Affiliate who
provides bona fide consulting services to the Company or the Affiliate,
provided, however, no Award hereunder may be granted to any Person in
connection with the provision of any services incident to the raising of
capital or promotion or maintenance of a market for the Company's
securities.
(i) Fair Market Value - The term "Fair Market Value" means the fair market
value as of the applicable valuation date of the Option Shares, Award
Shares, or other shares of Common Stock, as the case may be, to be valued
(the "Subject Shares"), determined by the Plan Committee in its good faith
judgment, but in no event shall the Fair Market Value be less than the par
value of the Subject Shares.
(j) Issued Shares - The term "Issued Shares" is defined as shares of Common
Stock issued pursuant to the terms of this Plan.
(k) Option - The term "Option" is defined as an option to purchase Common Stock
granted by the Plan Committee pursuant to the terms of the Plan and, in
particular, the terms of Section 5 of the Plan.
(l) Option Price - The term "Option Price" is defined in Section 5(b) of this
Plan.
(m) Option Shares - The term "Option Shares" is defined as the shares of Common
Stock which an Option entitles the holder thereof to purchase.
(n) Person - The term "Person" is defined, in its broadest sense, as any
individual, entity or fiduciary such as, by way of example and not
limitation, individual or natural persons, corporations, partnerships
(limited or general), joint-ventures, associations, limited liability
companies/partnerships, or fiduciary arrangements, such as trusts.
(o) Plan - The term "Plan" is defined as this 2003 Consultant Stock Plan. ----
(p) Plan Committee - The term "Plan Committee" is defined as that Committee
appointed by the Board to administer and interpret this Plan as more
particularly described in Section 3 of the Plan; provided, however, that
the term Plan Committee will refer to the Board during such times as no
Plan Committee is appointed by the Board.
(q) Restricted Shares - The term "Restricted Shares" is defined as Option
Shares or Award Shares, as the case may be, that are subject to
restrictions as more particularly set forth in Section 7 of this Plan.
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(r) Recipient - The term "Recipient" is defined as any Eligible Person who, at
a particular time, receives the grant of an Award.
(s) Securities Act - The term "Securities Act" is defined as the Securities Act
of 1933, as amended (references herein to Sections of the Securities Act
are intended to refer to Sections of the Securities Act as enacted at the
time of the adoption of this Plan by the Board and as subsequently amended,
or to any substantially similar successor provisions of the Securities Act
resulting from recodification, renumbering or otherwise).
2. TERM OF PLAN.
This Plan shall be effective as of such time and date as this Plan is
adopted by the Board, and this Plan shall terminate on the first business
day prior to the ten (10) year anniversary of the date this Plan became
effective. No grants of Options shall be made under this Plan before the
date this Plan becomes effective or after the date this Plan terminates;
provided, however, that (i) all Awards granted pursuant to this Plan prior
to the effective date of this Plan shall not be affected by the termination
of this Plan and (ii) all other provisions of this Plan shall remain in
effect until the terms of all outstanding Awards have been satisfied or
terminated in accordance with this Plan and the terms of such Awards.
3. PLAN ADMINISTRATION.
(a) Plan Committee.
(i) The Plan shall be administered and interpreted by a committee
consisting of two (2) or more members of the Board; provided, however,
no member of the Board who may serve as a member of the Plan Committee
if such person serves or served as a member of the plan committee with
respect to any plan (other than this Plan) of the Company or its
Affiliates which plan was or is established to comply with the
provisions of Rule 16b-3(c)(2)(i) to the Securities and Exchange Act
of 1934, as amended (i.e., pertaining to the establishment of
so-called "Section 16b-3 Plans"), and, by reason of such person's
proposed service as a member of the Plan Committee, such person would
not be considered a "disinterested" person within the meaning of said
Rule with respect to such other plan.
(ii) Members of the Plan Committee may resign at any time by delivering
written notice to the Board. Vacancies in the Plan Committee shall be
filled by the Board. The Plan Committee shall act by a majority of its
members in office. The Plan Committee may act either by vote at a
meeting or by a memorandum or other written instrument signed by a
majority of the Plan Committee.
(iii) If the Board, in its discretion, does not appoint a Plan Committee,
the Board itself will administer and interpret the Plan and take such
other actions as the Plan Committee is authorized to take hereunder;
provided that the Board may take such actions hereunder in the same
manner as the Board may take other actions under the Certificate of
Incorporation and bylaws of the Company generally.
(b) Eligibility of Plan Committee Members to Receive Awards. While serving on
the Plan Committee, such members shall not be eligible for selection as
Eligible Persons to whom an Award may be granted under the Plan.
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(c) Power to Make Awards. The Plan Committee shall have the full and final
authority in its sole discretion, at any time and from time-to-time,
subject only to the express terms, conditions and other provisions of the
Certificate of Incorporation of the Company and this Plan, and the specific
limitations on such discretion set forth herein, to:
(i) Designate the Eligible Persons or classes of Eligible Persons eligible
to receive Awards from among the Eligible Persons;
(ii) Grant Awards to such selected Eligible Persons or classes of Eligible
Persons in such form and amount (subject to the terms of the Plan) as
the Plan Committee shall determine;
(iii) Impose such limitations, restrictions and conditions upon any Award
as the Plan Committee shall deem appropriate and necessary including,
without limitation, the term of Options and any vesting conditions
attached thereto, and any vesting and repurchase conditions described
in Sections 5 or 7 placed upon grants of Option Shares or Award
Shares;
(iv) Interpret the Plan, adopt, amend and rescind rules and regulations
relating to the Plan, and make all other determinations and take all
other action necessary or advisable for the implementation and
administration of the Plan; and
(v) Delegate all or a portion of its authority under subsections (i)
through (iii) of this Section 3(c) to one or more directors of the
Company who are executive officers of the Company, subject to such
restrictions and limitations (such as the aggregate number of shares
of Common Stock that may be awarded) as the Plan Committee may decide
to impose on such delegate directors.
In determining the recipient, form and amount of Awards, the Plan
Committee shall consider any factors deemed relevant, including the
individual's functions, responsibilities, value of services to the
Company and past and potential contributions to the Company's
profitability and sound growth.
(d) Interpretation Of Plan. The Plan Committee shall, in its sole and absolute
discretion, interpret and determine the effect of all matters and questions
relating to this Plan. The interpretations and determinations of the Plan
Committee under the Plan (including without limitation determinations
pertaining to the eligibility of Persons to receive Awards, the form,
amount and timing of Awards, the methods of payment for Awards, the
restrictions and conditions placed upon Awards, and the other terms and
provisions of Awards and the certificates or agreements evidencing same)
need not be uniform and may be made by the Plan Committee selectively among
Persons who receive, or are eligible to receive, Awards under the Plan,
whether or not such Persons are similarly situated. All actions taken and
all interpretations and determinations made under this Plan in good faith
by the Plan Committee shall be final and binding upon the Recipient, the
Company, and all other interested Persons. No member of the Plan Committee
shall be personally liable for any action taken or decision made in good
faith relating to this Plan, and all members of the Plan Committee shall be
fully protected and indemnified to the fullest extent permitted under
applicable law by the Company in respect to any such action, determination,
or interpretation.
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(e) Compensation; Advisors. Members of the Plan Committee shall receive such
compensation for their services as members as may be determined by the
Board. All expenses and liabilities incurred by members of the Plan
Committee in connection with the administration of the Plan shall be borne
by the Company. The Plan Committee may, with the approval of the Board,
employ attorneys, consultants, accountants, appraisers, brokers, or other
Persons, at the cost of the Company. The Plan Committee, the Company and
its officers and directors shall be entitled to rely upon the advice,
opinions, or valuations of any such Persons.
4. STOCK POOL.
(a) Maximum Number of Shares Authorized Under Plan. Shares of stock which may
be issued or granted under the Plan shall be authorized and unissued or
treasury shares of Common Stock. The aggregate maximum number of shares of
Common Stock which may be issued in exercise of Options or as a grant of
Award Shares, as the case may be, shall not exceed 1,600,000 shares of
Common Stock (the "Stock Pool"); provided, however, that such number shall
be increased by the following:
(i) Any shares of Common Stock tendered by a Recipient as payment for
Option Shares or Award Shares;
(ii) Any rights to shares of Common Stock surrendered by a Recipient as
payment for Option Shares or Award Shares;
(iii) Any shares of Common Stock subject to an Option which for any reason
is terminated unexercised or expires; and
(iv) Any Restricted Shares which are granted as Option Shares or Award
Shares, and are subsequently forfeited by the holders thereof.
(b) Calculating Shares Available For Awards. For purposes of calculating the
maximum number of shares of Common Stock in the Stock Pool which may be
issued under the Plan, the following rules shall apply:
(i) When Options are exercised, and when cash is used as full payment for
shares issued upon exercise of such Options, all the shares issued
(including the shares, if any, withheld for tax withholding
requirements) shall be counted;
(ii) When Options are exercised, and when shares of Common Stock are used
as full or partial payment for shares issued upon exercise of such
Options, if permitted by the Plan Committee, only the net shares
issued (including the shares, if any, withheld for tax withholding
requirements) shall be counted; and
(iii) When Award Shares are granted and the Plan Committee elects to
require payment with respect to such grant, and when shares of Common
Stock are used as full or partial payment for the grant of such
shares, only the net shares issued (including the shares, if any,
withheld for tax withholding requirements) shall be counted.
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(c) Date of Award. The date an Award is granted shall mean the date selected by
the Plan Committee as of which the Plan Committee allots a specific number
of shares to a Recipient with respect to such Award pursuant to the Plan.
5. OPTIONS (TO PURCHASE OPTION SHARES).
(a) Grant. The Plan Committee may from time to time, and subject to the
provisions of the Plan and such other terms and conditions as the Plan
Committee may prescribe, grant to any Eligible Person one or more options
to purchase for cash or shares the number of shares of Common Stock
("Options") allotted by the Plan Committee; provided, however, no Option
shall be granted to any Eligible Person who is a member of the Plan
Committee. The grant of an Option shall be evidenced by either a written
consulting agreement or a written option certificate separate from such
agreement, executed by the Company and the Recipient, stating the number of
shares of Common Stock subject to the Option, and stating all terms and
conditions of such Option.
(b) Option Price. The purchase price per Option Share deliverable upon the
exercise of an Option (the "Option Price") shall be such price as may be
determined by the Plan Committee; provided, however, the Option Price may
not be less than the eighty five percent (85%) of Fair Market Value of the
underlying Option Shares as of the date of the grant of the Option.
(c) Option Term; Expiration. The term of each Option shall commence at the
grant date for such Option as determined by the Plan Committee, and shall
expire, unless an earlier expiration date is expressly provided in the
underlying consulting agreement or separate option certificate or another
Section of this Plan, on the first business day prior to the ten (10) year
anniversary of the date of grant thereof.
(d) Exercise Date. Unless a later exercise date is expressly provided in the
underlying consulting agreement or option certificate or another Section of
the Plan, each Option shall become exercisable on the date of its grant as
determined by the Plan Committee. No Option shall be exercisable after the
expiration of its applicable term. Subject to the foregoing, each Option
shall be exercisable in whole or in part during its applicable term unless
expressly provided otherwise in the underlying consulting agreement or
option certificate.
(e) Vesting Provisions. The Plan Committee may, in its sole discretion, subject
Options granted to Recipients to such vesting conditions pertaining to
continued provision of consulting services to the Company or any Affiliate
or the attainment of goals as the Plan Committee, in its sole discretion,
determines are appropriate; provided, however, in no case shall any Option
provide for the vesting of Option Shares for a period of time which exceeds
five (5) years from date of grant of the Option, or on a cumulative
incremental percentage basis which is less than twenty percent (20%) per
year. If no vesting is expressly provided in the underlying consulting
agreement or separate option certificate, the Option shares shall be deemed
fully vested upon date of grant.
(f) Manner of Exercise and Payment. An exercisable Option, or any exercisable
portion thereof, may be exercised solely by delivery of all of the
following to the Secretary of the Company at his or her office at the
Company prior to the time when such Option or such portion becomes
unexercisable under this Section 5:
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(i) Notice in writing signed by the Recipient or other Person then
entitled to exercise the Option or portion thereof stating that such
Option or portion is exercised, such notice complying with the
procedures set forth in the applicable consulting agreement or option
certificate which governs the exercise of the Option, and any other
applicable rules established by the Plan Committee.
(ii) Full payment for the shares with respect to which such Option or
portion is thereby exercised as follows (or any combination of the
following):
(1) In good funds (in U.S. dollars) by cash or by check; and/or
(2) If expressly permitted in the underlying consulting agreement or
option certificate, or otherwise consented to by the Plan Committee in
writing:
(A) Shares of Common Stock owned by the Recipient duly endorsed for
transfer to the Company with a Fair Market Value on the date of
delivery equal to the aggregate Option Price of the Option Shares
with respect to which the Option or portion is thereby exercised;
(B) The surrender or relinquishment of rights to acquire Common Stock
owned by the Recipient with a Fair Market Value on the date of
delivery equal to the aggregate Option Price of the Option Shares
with respect to which the Option or portion is thereby exercised;
or
(iii) Such representations and documents as the Plan Committee,
in its absolute discretion, deems necessary or advisable to
effect compliance with all applicable provisions of the
Securities Act and any other federal or state securities
laws or regulations. The Plan Committee may, in its absolute
discretion, also take whatever additional actions it deems
appropriate to effect such compliance including, without
limitation, placing legends on share certificates and
issuing stop-transfer orders to transfer agents and
registrars.
(iv) In the event that the Option or portion thereof shall be
exercised by any Person other than the Recipient,
appropriate proof of the right of such person or persons to
exercise the Option or portion thereof.
(g) Non-Assignability. Except as expressly provided in the underlying
consulting agreement or option certificate, Options may not be Disposed by
the Recipient, nor exercised by any Person other than the Recipient,
without the prior written consent of the Company, which consent the Company
may withhold in its sole and absolute discretion, and such Options shall,
upon the Disposition or exercise of such Option without the Company's prior
written consent, terminate and be null and void ab initio and of no further
force and effect.
(h) No Stockholder Rights. The Recipient shall not be, nor have any of the
rights or privileges of, a stockholder of the Company with respect to the
Option Shares unless and until all conditions for exercise of the Option
and the issuance of certificates for the Option Shares shall be satisfied,
at which time the Recipient shall become a stockholder of the Company with
respect to the Option Shares and as such shall thereafter be fully entitled
to receive dividends (if any are declared and paid), to vote and to
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exercise all other rights of a stockholder with respect to the Option
Shares.
6. AWARD SHARES.
(a) Grant. The Plan Committee may from time to time, and subject to the
provisions of the Plan and such other terms and conditions as the Plan
Committee may prescribe, grant to any Eligible Person one or more shares of
Common Stock ("Award Shares") allotted by the Plan Committee. The grant of
Award Shares or grant of the right to receive Award Shares shall be
evidenced by either a written consulting agreement or a separate written
agreement confirming such grant, executed by the Company and the Recipient,
stating the number of Award Shares granted and stating all terms and
conditions of such grant.
(b) Purchase Price and Manner of Payment. The Plan Committee, in its sole
discretion, may grant Award Shares in any of the following instances:
(i) as a "bonus" or "reward" for services previously rendered and
compensated, in which case the recipient of the Award Shares shall not
be required to pay any consideration for such Award Shares, and the
value of such Award Shares shall be the Fair Market Value of such
Award Shares on the date of grant;
(ii) as "compensation" for the previous performance or future performance
of services or attainment of goals, in which case the recipient of the
Award Shares shall not be required to pay any consideration for such
Award Shares (other than the performance of his services), and the
value of such Award Shares received (together with the value of such
services or attainment of goals attained by the Recipient), may not be
less than eighty-five percent (85%) of the Fair Market Value of such
Award Shares on the date of grant; or
(iii) in consideration for the payment of a purchase price for such Award
Shares in an amount established by the Plan Committee, which purchase
price may not be less than eighty-five percent (85%) of the Fair
Market Value of such Award Shares as of the date of grant of such
purchase right.
7. RESTRICTED SHARES.
(a) Vesting Conditions; Forfeiture of Unvested Shares. The Plan Committee may
subject or condition the grant of Issued Shares (hereinafter referred to as
"Restricted Shares") to such vesting conditions based upon continued
provision of services or attainment of goals subsequent to such grant of
Restricted Shares as the Plan Committee, in its sole discretion, may deem
appropriate. In the event the Recipient does not satisfy such vesting
conditions, the Company may require the Recipient, subject to the payment
terms of Section 7(b), to forfeit such unvested Restricted Shares. All
vesting conditions imposed on the grant of Restricted Shares, including
payment terms complying with Section 7(b), shall be set forth in either a
written consulting agreement or a separate written restricted stock
agreement, executed by the Company and the Recipient on or before the time
of the grant of such Restricted Shares, stating the number of said
Restricted Shares subject to such conditions and further specifying the
vesting conditions. If no vesting conditions are expressly provided in the
underlying consulting agreement or in a separate restricted stock
agreement, the Issued Shares shall not be deemed to be Restricted Shares,
and will not be required to be forfeited. Any grant of Restricted Shares
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shall be subject to the following limitations:
(i) In no case shall such vesting conditions require continued provision
of services or attainment of goals, as the case may be, subsequent to
the grant of Restricted Shares, for a period of time which exceeds
five (5) years from the date of grant, or on a cumulative incremental
percentage basis which is less than twenty percent (20%) per year;
(ii) In no case shall the Recipient be required to forfeit any vested
Restricted Shares; and
(iii) In the event of the forfeiture of any unvested Restricted Shares, the
Company shall pay to the Recipient with respect to all of such
unvested Restricted Shares an amount equal to the original purchase
price, if any, paid by the Recipient for such unvested Restricted
Shares.
(b) Repurchase Price for Forfeited Restricted Shares. In the event a Recipient
does not satisfy applicable vesting conditions placed upon Restricted
Shares, and the Company exercises its right to require the Recipient to
forfeit such unvested Restricted Shares, the Company shall be required to
pay the Recipient an amount not less than:
(i) The higher of the original purchase price for such forfeited
Restricted Shares or the Fair Market Value of such forfeited
Restricted Shares on the date of the event triggering such repurchase
rights; or
(ii) The original purchase price for such vested Restricted Shares;
provided, however, that the right to repurchase in favor of the
Company must lapse at the rate of at least twenty percent (20%) per
year over five (5) years from the date of grant of the Restricted
Shares.
The payments to be made by the Company to a Recipient for
forfeited Restricted Shares pursuant to Subsection (ii) may only be in
the form of cash or cancellation of purchase money indebtedness with
respect to the purchase of said Restricted Shares by the Recipient, if
any, and must be paid no later than ninety (90) days of the date of
termination.
(c) Restrictive Legend. Until such time as all conditions placed upon
Restricted Shares lapse, the Plan Committee may place a restrictive legend
on the share certificate representing such Restricted Shares which
evidences said restrictions in such form and subject to such stop
instructions as the Plan Committee shall deem appropriate. The conditions
shall similarly apply to any new, additional or different securities the
Recipient may become entitled to receive with respect to such Restricted
Shares by virtue of a stock split or stock dividend or any other change in
the corporate or capital structure of the Company. The Plan Committee shall
also have the right, should it elect to do so, to require the Recipient to
deposit the share certificate for the Restricted Shares with the Company or
its agent, endorsed in blank or accompanied by a duly executed irrevocable
stock power or other instrument of transfer, until such time as the
conditions lapse. The Company shall remove the legend with respect to any
Restricted Shares which become vested.
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(d) Stockholder Rights. The Recipient of Restricted Shares shall have all
rights or privileges of a stockholder of the Company with respect to the
Restricted Shares notwithstanding the terms of this Section 7 (with the
exception of Subsection (e) hereof) and, as such, shall be fully entitled
to receive dividends (if any are declared and paid), to vote and to
exercise all other rights of a stockholder with respect to the Restricted
Shares.
(e) Non-Assignability. Except as expressly provided in the underlying
consulting agreement or restricted stock agreement, unvested Restricted
Shares may not be Disposed by the Recipient without the prior written
consent of the Company, which consent the Company may withhold in its sole
and absolute discretion, and such purported Disposition shall be null and
void ab initio and of no force and effect.
8. REGISTRATION OF ISSUED SHARES.
(a) Registration or Exemption from Registration. Unless expressly stipulated in
the underlying consulting agreement or separate option certificate or
agreement, in no event shall the Company be required at any time to
register the Issued Shares under the Securities Act (including, without
limitation, as part of any primary or secondary offering, or pursuant to
Form S-8) or to register or qualify the Issued Shares under the securities
laws of any state or territory.
In the event the Company is not required to register or qualify the
Issued Shares, the Issued Shares shall be issued in reliance upon such
exemptions from registration or qualification under federal and state
securities laws, as the case may be, that the Company and its legal
counsel, in their reasonable discretion, shall determine to be appropriate.
If requested by the Company, the Recipient shall provide such further
representations or documents as the Company or its legal counsel, in their
reasonable discretion, deem necessary or advisable in order to effect
compliance with the conditions of any and all of the aforesaid exemptions
from federal or state registration or qualification which it is relying
upon, or with all applicable rules and regulations of any applicable
securities exchanges. If required by the Company, the Recipient shall
provide a letter from a purchaser representative with credentials
reasonably acceptable to the Company to the effect that such purchaser
representative has reviewed the Recipient's proposed investment in the
Issued Shares and has determined that an investment in the Issued Shares:
(A) is appropriate in light of the Recipient's financial circumstances, (B)
that the purchaser representative and, if applicable, the Recipient, have
such knowledge and experience in financial and business matters that the
such persons are capable of evaluating the merits and risks of an
investment in the Issued Shares, and (C) that the purchaser representative
and, if applicable, the Recipient, have such business or financial
experience to be reasonably assumed to have the capacity to protect the
Recipient's interests in connection with the purchase of the Issued Shares.
In the event the Company is unable to obtain, without undue burden or
expense, such consents or approvals that may be required from any
applicable regulatory authority (or may be deemed reasonably necessary or
advisable by legal counsel for the Company) with respect to the applicable
exemptions from federal or state registration or qualification which the
Company is reasonably relying upon, the Company shall have no obligation
under this Agreement to issue or sell the Issued Shares until such time as
such consents or approvals may be reasonably obtained without undue burden
or expense, and the Company shall be relieved of all liability with respect
to its inability to issue or sell the Issued Shares.
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(b) Legend. In the event the Company delivers unregistered shares, the Company
reserves the right to place a restricted legend on the share certificate or
certificates to comply with the Securities Act and any state and territory
securities laws or any exemption from registration or qualification
thereunder which is being relied upon by the Company.
9. ADJUSTMENTS.
(a) Subdivision or Stock Dividend. If (i) outstanding shares of Common Stock
shall be subdivided into a greater number of shares by reason of
recapitalization or reclassification, the number of shares of Common Stock,
if any, available for issuance in the Stock Pool shall, simultaneously with
the effectiveness of such subdivision or immediately after the record date
of such dividend, be proportionately increased, and the Option Price of any
outstanding Options in effect immediately prior to such subdivision or at
the record date of such dividend shall, simultaneously with the
effectiveness of such subdivision or immediately after the record date of
such dividend, be proportionately reduced, and (ii) conversely, if the
outstanding shares of Common Stock shall be combined into a smaller number
of shares, the number of shares of Common Stock, if any, available for
issuance in the Stock Pool shall, simultaneously with the effectiveness of
such combination, be proportionately increased, and the Option Price of any
outstanding Option in effect immediately prior to such combination shall,
simultaneously with the effectiveness of such combination, be
proportionately increased.
(b) Adjustment to Option Price. When any adjustment is required to be made in
the Option Price, the number of shares purchasable upon the exercise of any
outstanding Option shall be adjusted to that number of shares determined
by: (i) multiplying an amount equal to the number of shares purchasable
upon the exercise of the Option immediately prior to such adjustment by the
Option Price in effect immediately prior to such adjustment, and then (ii)
dividing that product by the Option Price in effect immediately after such
adjustment. Provided, however, no fractional shares shall be issued, and
any fractional shares resulting from the computations pursuant to this
Section 10 shall be eliminated from the Option.
(c) Capital Reorganization or Reclassification; Consolidation or Merger. In
case of any capital reorganization or any reclassification of Common Stock
(other than a recapitalization hereinabove described in Section 10(a), or
the consolidation, merger, combination or exchange of shares with another
entity, or the divisive reorganization of the Company, the Recipient shall
thereafter be entitled upon exercise of the Option to purchase the kind and
number of shares of stock or other securities or property of the Company
(or its successor{s}) receivable upon such event by a Recipient of the
number of shares of Common Stock of the Company which such Option entitles
the Recipient to purchase from the Company immediately prior to such event.
In every such case, the Company may appropriately adjust the number of
shares of Common Stock in the Pool which may be issued under the Plan, the
number of shares of Common Stock subject to Options theretofore granted
under the Plan, the Option Price of Options theretofore granted under the
Plan, and any and all other matters deemed appropriate by the Plan
Committee.
(d) Adjustments Determined in Sole Discretion of Board. To the extent that the
foregoing adjustments relate to stock or securities of the Company, such
adjustments shall be made by the Plan Committee, whose determination in
that respect shall be final, binding and conclusive.
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(e) No Other Rights to Recipient. Except as expressly provided in this Section
10, (i) the Recipient shall have no rights by reason of any subdivision or
consolidation of shares of stock of any class or the payment of any stock
dividend or any other increase or decrease in the number of shares of stock
of any class, and (ii) the dissolution, liquidation, merger, consolidation
or divisive reorganization or sale of assets or stock to another
corporation, or any issue by the Company of shares of stock of any class,
or securities convertible into shares of stock of any class, shall not
affect, and no adjustment by reason thereof shall be made with respect to,
the number of, or the Option Price for, the shares. The grant of an Award
pursuant to this Plan shall not affect in any way the right or power of the
Company to make adjustments, reclassifications, reorganizations or changes
of its capital or business structure or to merge, consolidate, dissolve or
liquidate, or to sell or transfer all or any part of its business or
assets.
10. PERFORMANCE ON BUSINESS DAY.
In the event the date on which a party to this Plan is required to
take any action under the terms of this Plan is not a business day, the
action shall, unless otherwise provided herein, be deemed to be required to
be taken on the next succeeding business day.
11. EMPLOYMENT STATUS.
In no event shall the granting of an Award be construed as granting a
continued right of employment to a Recipient if such Person is employed by
the Company, nor effect any right which the Company may have to terminate
the employment of such Person, at any time, with or without cause, except
to the extent that such Person and the Company have agreed otherwise in
writing.
12. NON-LIABILITY FOR DEBTS.
No Options granted hereunder, or unvested Restricted Shares granted
hereunder, or any part thereof, shall be liable for the debts, contracts,
or engagements of a Recipient or such Recipient's successors in interest or
shall be subject to disposition by transfer, alienation, or any other means
whether such disposition be voluntary or involuntary or by operation of
law, by judgment, levy, attachment, garnishment, or any other legal or
equitable proceeding (including bankruptcy), and any attempted disposition
thereof shall be null and void ab initio and of no further force and
effect.
13. AMENDMENT AND DISCONTINUATION OF PLAN; MODIFICATION OF AWARDS.
(a) Amendment, Modification or Termination of Plan. The Board may amend the
Plan or suspend or discontinue the Plan at any time or from time-to-time;
provided, however no such action may adversely alter or impair any Award
previously granted under this Plan without the consent of each Recipient
affected thereby.
(b) Modification of Terms of Outstanding Options. Subject to the terms and
conditions and within the limitations of this Plan, the Plan Committee may
modify, extend or renew outstanding Options granted under this Plan,
including vesting conditions, or accept the surrender of outstanding
Options (to the extent not theretofore exercised) and authorize the
granting of new Options in substitution therefor (to the extent not
theretofore exercised). Notwithstanding the foregoing, however, no
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modification of any outstanding Option may, without the consent of the
Recipient affected thereby, adversely alter or impair such Recipients
rights under such Option.
(c) Modification of Restricted Share Vesting Conditions. Subject to the terms
and conditions and within the limitations of this Plan, including vesting
conditions, the Plan Committee may modify the conditions placed upon the
grant of any Restricted Shares, provided, however, no modification of any
conditions placed upon Restricted Shares may, without the consent of the
Recipient thereof, adversely alter or impair such Recipient's rights with
respect to such Restricted Shares.
(d) Compliance with Laws. The Plan Committee may at any time or from
time-to-time, without receiving further consideration from any Person who
may become entitled to receive or who has received the grant of an Award
hereunder, modify or amend Awards granted under this Plan as required to:
(i) comport with changes in securities, tax or other laws or rules,
regulations or regulatory interpretations thereof applicable to this Plan
or Awards thereunder or to comply with stock exchange rules or requirements
and/or (ii) ensure that this Plan is and remains or shall become exempt
from the application of any participation, vesting, benefit accrual,
funding, fiduciary, reporting, disclosure, administration or enforcement
requirement of either the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), or the corresponding provisions of the Internal
Revenue Code of 1986, as amended (Subchapter D of Title A, Chapter 1 of the
Code {encompassing Sections 400 to 420 of the Code}). Provided, however, no
such modification may, without the consent of the holder thereof, adversely
alter or impair his or her rights with respect to such Award Shares.
14. WITHHOLDING TAXES.
As a condition of the grant of any Award and/or exercise of any
Option, as the case may be, the Company shall have the right to require the
Recipient to remit to the Company an amount sufficient to satisfy any
federal, state and/or local withholding tax requirements incident to such
grant or exercise. Provided, however, whenever the Company is delivering
any shares of Common Stock the Company may, in its sole discretion, but
without obligation to do so, issue or transfer such shares of Common Stock
net of the number of shares sufficient to satisfy any withholding tax
requirements incident to such issuance or transfer. For withholding tax
purposes, the shares of Common Stock shall be valued on the date the
withholding obligation is incurred.
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