EXHIBIT 10.1
Eagle Broadband, Inc.
JUNE 2004 COMPENSATORY STOCK OPTION PLAN
SECTION 1. Purpose
The purpose of the June 2004 Compensatory Stock Option Plan (the "Plan") is
to promote the interests of Eagle Broadband, Inc. (the "Company") and its
stockholders by giving the Company a competitive advantage in attracting,
retaining and motivating employees, officers, consultants and Directors capable
of assuring the future success of the Company, to offer such persons incentives
that are directly linked to the profitability of the Company's business and
increases in stockholder value, and to afford such persons an opportunity to
acquire a proprietary interest in the Company.
SECTION 2. Definitions
"Act" shall mean the Securities Act of 1933, as amended from time to time.
"Affiliate" shall mean any entity that, directly or indirectly through one
or more intermediaries, is controlled by, controlling or under common control
with the Company.
"Applicable Laws" shall mean the legal requirements relating to the
administration of stock incentive plans, if any, under applicable provisions of
federal securities laws, state corporate and securities laws, the Code, the
rules of any applicable stock exchange or national market system, and the rules
of any foreign jurisdiction applicable to Awards granted to residents therein.
"Award" shall mean a grant or award granted under the Plan, as evidenced by
an Award Agreement.
"Award Agreement" shall mean any written agreement, contract or other
instrument or document evidencing any Award granted under the Plan. Each Award
Agreement shall be subject to the applicable terms and conditions of the Plan
and any other terms and conditions (not inconsistent with the Plan) determined
by the Committee.
"Board of Directors" or "Board" shall mean the Board of Directors of the
Company.
"Change in Control" shall have the meaning set forth in Section 12 of the
Plan.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time, and any regulations promulgated thereunder.
"Committee" shall mean a committee of Directors designated by the Board to
administer the Plan, which shall initially be the Compensation Committee of the
Board of Directors. The Committee shall be composed of not less than such number
of Directors as shall be required to permit Awards granted under the Plan to
qualify under Rule 16b-3 and under Section 162(m) of the Code, and each member
of the Committee shall be an Outside Director.
"Common Stock" or "Stock" shall mean the common stock of the Company.
"Company" shall mean Eagle Broadband, Inc., a Texas corporation.
"Covered Employee" shall mean a Participant designated prior to the grant
of an Award by the Committee who is or may be a "covered employee" within the
meaning of Section 162(m)(3) of the Code in the year in which any such Award is
granted or in the year in which such Award is expected to be taxable to such
Participant.
"Designated Beneficiary" shall mean the beneficiary designated by the
Participant, in a manner determined by the Committee, to receive amounts due the
Participant in the event of the Participant's death. In the absence of an
effective designation by the Participant, the term "Designated Beneficiary"
shall mean the Participant's estate.
"Director" shall mean a member of the Board, including any Outside
Director.
"Effective Date" shall have the meaning set forth in Section 13 of the
Plan.
"Eligible Individual" shall mean any employee, officer, Director or
consultant providing services to the Company or any Affiliate, and prospective
employees and consultants who have accepted offers of employment or consultancy
from the Company or any Affiliate, whom the Committee determines to be an
Eligible Individual.
"Employee" shall mean any person treated as an employee (including an
officer or a Director who is also treated as an employee) in the records of the
Company or any Affiliate and, with respect to any Incentive Stock Option granted
to such person, who is an employee for purposes of Section 422 of the Code;
provided, however, that neither service as a Director nor payment of a
Director's fee shall be sufficient to constitute employment for purposes of the
Plan. The Company shall determine in good faith and in the exercise of its
discretion whether an individual has become or has ceased to be an Employee and
the effective date of such individual's employment or termination of employment
without regard to any notice period or period of "leave", as the case may be.
For purposes of an individual's rights, if any, under the Plan as of the time of
the Company's determination, all such determinations by the Company shall be
final, binding and conclusive, notwithstanding that the Company or any court of
law or governmental agency subsequently makes a contrary determination.
"Employer" shall mean the Company or any Affiliate.
"Exercise Price" has the meaning set forth in Section 6 of the Plan.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time.
"Fair Market Value" shall mean the closing price of the Common Stock on the
last day prior to the date in question on which the Stock was traded on the
American Stock Exchange or such other national securities market or exchange as
may at the time be the principal market for the Common Stock as designated by
the Committee, or if the Shares were not traded on such national securities
market or exchange on such date, then on the next preceding date on which the
Shares are traded, all as reported by such source as the Committee may select.
"Fiscal Year" shall mean the fiscal year of the Company beginning on
September 1 and ending on the following August 31.
"Incentive Stock Option" means any Stock Option granted under Section 6 of
the Plan that is designated as, and intended to qualify as, an "incentive stock
option" within the meaning of Section 422 of the Code.
"Non-Stock-Based Incentive Compensation" refers to incentive compensation
whose value is not based in whole or in part on the value of Common Stock.
"Nonqualified Stock Option" means any Option granted under Section 6 of the
Plan that is not an Incentive Stock Option.
"Option" shall mean an Incentive Stock Option or a Nonqualified Stock
Option.
"Outside Director" means any Director who qualifies as an "outside
director" within the meaning of Section 162(m) of the Code, as a "non-employee
director" within the meaning of Rule 16b-3 and as an "independent director"
within the meaning of the listing requirements of the American Stock Exchange or
such other national securities market or exchange as may at the time be the
principal market for the Common Stock.
"Participant" means an Eligible Individual designated to be granted an
Award under the Plan.
"Payment Value" shall mean the dollar amount assigned to a Performance
Share, which shall be equal to the Fair Market Value of the Common Stock on the
day of the Committee's determination under Section 8(c) with respect to the
applicable Performance Cycle.
"Performance Cycle" or "Cycle" shall mean the period of years selected by
the Committee during which performance is measured for the purpose of
determining the extent to which an award of Performance Shares has been earned.
"Performance Goals" means the performance goals established by the
Committee in connection with the grant of an Award. In the case of Qualified
Performance-Based Awards, (i) such goals shall be based on the attainment of one
or more of the following objective measures with respect to the Company or an
Affiliate, or such subsidiary, division or department of the Company or an
Affiliate for or within which the Participant performs services: revenue growth;
earnings before interest, taxes, depreciation, and amortization; earnings before
interest and taxes; operating income; pre- or after- tax income; earnings per
share; earnings per share from continuing operations; other board or committee
approved performance measurements; cash flow; cash flow per share; return on
equity; return on invested capital; return on assets; economic value added (or
an equivalent metric); share price performance; total stockholder return;
improvement in or attainment of expense levels; improvement in or attainment of
working capital levels; (ii) such Performance Goals shall be set by the
Committee in writing within the time period prescribed by Section 162(m) of the
Code so that the outcome is substantially uncertain at the time the Performance
Goals are established; and (iii) the Committee certifies that such Performance
Goals were met. Such Performance Goals also may be based upon the attaining of
specified levels of Company performance under one or more of the measures
described above relative to the performance of other companies.
"Qualified Performance-Based Award" means an Award of Restricted Stock,
Restricted Stock Units or Performance Shares designated as such by the Committee
at the time of grant, based upon a determination that (i) the recipient is or
may be a Covered Employee in the year in which the Company would expect to be
able to claim a tax deduction with respect to such Restricted Stock, Restricted
Stock Units, Options or Performance Shares and (ii) the Committee wishes such
Award to qualify for the Section 162(m) Exemption.
"Restricted Period" shall mean the period of years selected by the
Committee during which a grant of Restricted Stock or Restricted Stock Units may
be forfeited to the Company.
"Restricted Stock" shall mean shares of Common Stock contingently granted
to a Participant under Section 9 of the Plan.
"Restricted Stock Unit" shall mean any unit granted under Section 9 of the
Plan evidencing the right to receive a Share (or the cash payment equal to the
Fair Market Value of a Share) at some future date.
"Rule 16b-3" shall mean Rule 16b-3, as promulgated by the Securities and
Exchange Commission under Section 16(b) of the Exchange Act, as amended from
time to time.
"Section 162(m) Exemption" shall mean the exemption from the limitation on
deductibility imposed by Section 162(m) of the Code that is set forth in Section
162(m)(4)(C) of the Code.
"Share" or "Shares" shall mean a share or shares of Common Stock.
"Stock Appreciation Right" shall mean a right granted under Section 7 of
the Plan.
"Stock Exchange" shall mean the American Stock Exchange or such other
national securities market or exchange as may at the time be the principal
market for the Shares.
"Stock Unit Award" shall mean an award of Common Stock or units granted
under Section 10 of the Plan.
"Stockholders Meeting" shall mean the annual meeting of stockholders of the
Company in each year.
SECTION 3. Administration
(a) Power and Authority of the Committee. The Plan shall be administered by
the Committee. Subject to the terms of the Plan and to applicable law, the
Committee shall have full power and authority to:
(i) designate Participants;
(ii) determine whether and to what extent any type (or types) of Award is
to be granted hereunder;
(iii) determine the number of Shares to be covered by (or the method by
which payments or other rights are to be determined in connection with)
each Award;
(iv) determine the terms and conditions of any Award or Award Agreement;
(v) subject to Section 11 hereof, amend the terms and conditions of any
Award or Award Agreement and accelerate the vesting and/or exercisability
of any Option or waive any restrictions relating to any Award; provided,
however, that (A) except for adjustments pursuant to Section 5(c) of the
Plan, in no event may any Option granted under this Plan be (x) amended to
decrease the Exercise Price thereof, (y) cancelled in conjunction with the
grant of any new Option with a lower Exercise Price, or (z) otherwise
subject to any action that would be treated, for accounting purposes, as a
"repricing" of such Option, unless such amendment, cancellation, or action
is approved by the stockholders of the Company to the extent required by
applicable law and stock exchange rules and (B) the Committee may not
adjust upward the amount payable to a Covered Employee with respect to a
Qualified Performance-Based Award or waive or alter the Performance Goals
associated herewith in a manner that would violate Section 162(m) of the
Code;
(vi) determine whether, to what extent and under what circumstances the
exercise price of Awards may be paid in cash, Shares, other securities,
other Awards or other property, or canceled, forfeited or suspended; (vii)
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 under the Plan shall be deferred either
automatically or at the election of the holder thereof or the Committee;
(viii) interpret and administer the Plan and any instrument or agreement,
including an Award Agreement, relating to the Plan;
(ix) adopt, alter, suspend, waive or repeal such rules, guidelines and
practices and appoint such agents as it shall deem advisable or appropriate
for the proper administration of the Plan; and
(x) 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 or Award Agreement shall be within the sole
discretion of the Committee, may be made at any time, and shall be final,
conclusive and binding upon all persons, including without limitation, the
Company, its Affiliates, subsidiaries, stockholders, Eligible Individuals
and any holder or beneficiary of any Award.
(b) Action by the Committee; Delegation. Except to the extent prohibited by
applicable law or the applicable rules of a Stock Exchange, the Committee may
delegate all or any part of its duties and powers under the Plan to one or more
persons, including Directors or a committee of Directors, subject to such terms,
conditions and limitations as the Committee may establish in its sole
discretion; provided, however, that the Committee shall not delegate its powers
and duties under the Plan (i) with regard to officers or Directors of the
Company or any Affiliate who are subject to Section 16 of the Exchange Act or
(ii) in a manner that would cause an Award designated as a Qualified
Performance-Based Award not to qualify for, or to cease to qualify for, the
Section 162(m) Exemption; and provided, further, that any such delegation may be
revoked by the Committee at any time.
(c) Power and Authority of the Board. Notwithstanding anything to the
contrary contained herein, except to the extent that the grant or exercise of
such authority would cause any Award or transaction to become subject to (or
lose an exemption under) the short-swing profit recovery provisions of Section
16 of the Exchange Act or cause an Award designated as a Qualified
Performance-Based Award not to qualify for, or to cease to qualify for, the
Section 162(m) Exemption, the Board may, at any time and from time to time,
without any further action of the Committee, exercise the powers and duties of
the Committee under the Plan. To the extent that any permitted action taken by
the Board conflicts with action taken by the Committee, the Board action shall
control.
SECTION 4. Eligibility
Any Eligible Individual shall be eligible to be designated a Participant.
In determining which Eligible Individuals shall receive an Award and the terms
of any Award, the Committee may take into account the nature of the services
rendered by the respective Eligible Individuals, their present and potential
contributions to the success of the Company, or such other factors as the
Committee, in its discretion, shall deem relevant. All Awards and the terms of
any Award to Eligible Individuals who are members of the Committee must also be
approved by the Board of Directors. Notwithstanding the foregoing, Incentive
Stock Options may be granted only to full-time or part-time Employees (which
term as used herein includes, without limitation, officers and Directors who
also are Employees), and an Incentive Stock Option shall not be granted to an
Employee of an Affiliate unless such Affiliate also is a "subsidiary
corporation" of the Company within the meaning of Section 424(f) of the Code or
any successor provision.
SECTION 5. Shares Available for Awards
(a) Shares Available. Subject to adjustment as provided in Section 5(c) of
the Plan, the aggregate number of Shares that may be issued under the Plan shall
be 10,000,000. Shares that may be issued under the Plan may be authorized but
unissued Shares or Shares re-acquired and held in treasury.
(b) Accounting for Awards. For purposes of this Section 5, if an Award
entitles the holder thereof to receive or purchase 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 aggregate number of Shares available for
granting Awards under the Plan. Any Shares that are used by a Participant as
full or partial payment to the Company of the purchase price relating to an
Award, including in connection with the satisfaction of tax obligations relating
to an Award, shall again be available for granting Awards (other than Incentive
Stock Options) under the Plan. In addition, if any Shares covered by an Award or
to which an Award relates are not purchased or are forfeited, or if an Award
otherwise terminates without delivery of any Shares, then the number of Shares
counted against the aggregate number of Shares available under the Plan with
respect to such Award, to the extent of any such forfeiture or termination,
shall again be available for granting Awards under the Plan.
(c) Adjustments. In the event of any change in corporate capitalization
(including, but not limited to, a change in the number of Shares outstanding),
such as a stock split or a corporate transaction, such as any merger,
consolidation, separation, including a spin-off, or other distribution of stock
or property of the Company (including any extraordinary cash or stock dividend),
any reorganization (whether or not such reorganization comes within the
definition of such term in Section 368 of the Code) or any partial or complete
liquidation of the Company, the Committee or Board may make such substitution or
adjustments in the aggregate number and kind of shares reserved for issuance
under the Plan, and the maximum limitation upon Stock Options and Stock
Appreciation Rights and other Awards to be granted to any Participant, in the
number, kind and Exercise Price of shares subject to outstanding Stock Options
and Stock Appreciation Rights, in the number and kind of shares subject to other
outstanding Awards granted under the Plan and/or such other equitable
substitution or adjustments as it may determine to be appropriate in its sole
discretion (including, without limitation, the provision of an amount in cash in
consideration for any such Awards); provided, however, that the number of shares
subject to any Award shall always be a whole number. Without limiting the
generality of the foregoing, in connection with any Disaffiliation of a
subsidiary of the Company, the Committee shall have the authority to arrange for
the assumption or replacement of Awards with new awards based on shares of the
affected subsidiary or by an affiliate of an entity that controls the subsidiary
following the Disaffiliation. For purposes hereof, "Disaffiliation" of a
subsidiary shall mean the subsidiary's ceasing to be a subsidiary of the Company
for any reason (including, without limitation, as a result of a public offering,
spinoff, sale or other distribution or transfer by the Company of the stock of
the subsidiary).
(d) Award Limitations. No more than 100,000 shares of Common Stock may be
subject to Qualified Performance-Based Awards granted to any Eligible
Individual, including a Covered Employee, in any Fiscal Year.
SECTION 6. Stock Options
(a) Grant. Subject to the provisions of the Plan, the Committee shall have
sole and complete authority to determine the Eligible Individuals to whom
Options shall be granted (which may be Nonqualified Stock Options or Incentive
Stock Options), the number of shares to be covered by each Option, the exercise
price for each Option, and the conditions and limitations applicable to the
exercise of each Option. In the case of Incentive Stock Options, the terms and
conditions of such grants shall be subject to and comply with such rules as may
be prescribed by Section 422 of the Code.
(b) Exercise Price. The Exercise Price per Share purchasable under a Option
shall be determined by the Committee; provided, however, that, unless otherwise
determined by the Committee, such Exercise Price shall not be less than 100% of
the Fair Market Value of a Share on the date of grant of such Option.
(c) Time and Method of Exercise. The Committee shall determine the time or
times at which an Option may be exercised in whole or in part and the method or
methods by which, and the form or forms (including, without limitation, cash,
Shares, other securities, other Awards or other property, or any combination
thereof, having a Fair Market Value on the exercise date equal to the applicable
Exercise Price) in which, payment of the Exercise Price with respect thereto may
be made or deemed to have been made.
(d) Option Term. The term of each Stock Option shall be fixed by the
Committee at the time of grant, but in no event shall be more than 10 years from
the date of grant.
(e) Incentive Stock Options. The Committee may designate Options as
Nonqualified Stock Options or as Incentive Stock Options. Any Incentive Stock
Option authorized under the Plan shall contain such provisions as the Committee
shall deem advisable, but shall in all events be consistent with and contain all
provisions required in order to qualify the Stock Option as an Incentive Stock
Option. To the extent that any Stock Option is not designated as an Incentive
Stock Option or even if so designated does not qualify as an Incentive Stock
Option on or subsequent to its grant date, it shall constitute a Nonqualified
Stock Option.
SECTION 7. Stock Appreciation Rights
The Committee is hereby authorized to grant Stock Appreciation Rights to
Eligible Individuals subject to the terms of the Plan. Each Stock Appreciation
Right granted under the Plan shall confer on the holder upon exercise the right
to receive, as determined by the Committee, cash or a number of Shares or a
combination of cash and Shares equal to the excess of (A) the Fair Market Value
of one Share on the date of exercise (or, if the Committee shall so determine,
at any time during a specified period before or after the date of exercise) over
(B) the grant price of the Stock Appreciation Right as determined by the
Committee, which grant price shall not be less than 100% of the Fair Market
Value of one Share on the date of grant of the Stock Appreciation Right, unless
otherwise determined by the Committee. Subject to the terms of the Plan, the
grant price, term, methods of exercise, dates of exercise, methods of
settlement, the effect of termination of employment (by reason of death,
disability, retirement or otherwise) on the exercisability and any other terms
and conditions (including conditions or restrictions on the exercise thereof) of
any Stock Appreciation Right shall be as determined by the Committee, provided,
that in no event shall the term of a Stock Appreciation Right be longer than ten
years.
SECTION 8. Performance Shares
(a) The Committee shall have sole and complete authority to determine the
Eligible Individuals who shall receive Performance Shares, the number of such
shares for each Performance Cycle, the Performance Goals on which each Award
shall be contingent, the duration of each Performance Cycle, and the value of
each Performance Share. There may be more than one Performance Cycle in
existence at any one time, and the duration of Performance Cycle may differ from
each other. The Committee may, prior to or at the time of the grant, designate
Performance Awards as Qualified Performance-Based Awards, in which event it
shall condition the settlement thereof upon the Committee's certification of the
attainment of the Performance Goals.
(b) The Committee shall establish Performance Goals for each Cycle on the
basis of such criteria and to accomplish such objectives as the Committee may
from time to time select.
(c) As soon as practicable after the end of a Performance Cycle, the
Committee shall determine the number of Performance Shares which have been
earned on the basis of performance in relation to the established Performance
Goals.
(d) Payment Values of earned Performance Shares shall be distributed to the
Participant or, if the Participant has died, to the Participant's Designated
Beneficiary, as soon as practicable after the expiration of the Performance
Cycle and the Committee's determination under paragraph (c), above. The
Committee shall determine whether Payment Values are to be distributed in the
form of cash or shares of Common Stock or a combination of cash and shares of
Common Stock.
SECTION 9. Restricted Stock and Restricted Stock Units
The Committee is hereby authorized to grant Restricted Stock and Restricted
Stock Units to Eligible Individuals with the following terms and conditions and
with such additional terms and conditions not inconsistent with the provisions
of the Plan as the Committee shall determine:
(i) Restrictions. Shares of Restricted Stock and Restricted Stock Units
shall be subject to such restrictions as the Committee may impose (including,
without limitation, limitation on transfer, forfeiture conditions, limitation on
the right to vote a Share of Restricted Stock or the right to receive any
dividend or other right or property with respect thereto), which restrictions
may lapse separately or in combination at such time or times, in such
installments or otherwise as the Committee may deem appropriate. The grant or
vesting of Restricted Stock and Restricted Stock Units may be performance-based
or time-based or both. Restricted Stock and Restricted Stock Units may be
Qualified Performance-Based Awards, in which event the grant or vesting, as
applicable, of such Restricted Stock or Restricted Stock Units shall be
conditioned upon the attainment of Performance Goals.
(ii) Stock Certificates; Delivery of Shares.
(A) Any Restricted Stock granted under the Plan shall be evidenced in
such manner as the Committee may deem appropriate, including
book-entry registration or issuance of one or more stock certificates.
Any certificate issued in respect of shares of Restricted Stock shall
be registered in the name of such Participant and shall bear an
appropriate legend referring to the applicable Award Agreement and
possible forfeiture of such shares of Restricted Stock. The Committee
may require that the certificates evidencing such shares be held in
custody by the Company until the restrictions thereon shall have
lapsed and that, as a condition of any Award of Restricted Stock, the
Participant shall have delivered a stock power, endorsed in blank,
relating to the Shares covered by such Award.
(B) In the case of Restricted Stock Units, no Shares or other property
shall be issued at the time such Awards are granted. Upon the lapse or
waiver of restrictions and the restricted period relating to
Restricted Stock Units (or at such later time as may be determined by
the Committee), Shares or other cash or property shall be issued to
the holder of the Restricted Stock Units and evidenced in such manner
as the Committee may deem appropriate, including book-entry
registration or issuance of one or more stock certificates.
(iii) Forfeiture. Except as otherwise determined by the Committee, upon a
Participant's termination of employment (as determined under criteria
established by the Committee) during the applicable restriction period, all
applicable Shares of Restricted Stock and Restricted Stock Units at such time
subject to restriction shall be forfeited and reacquired by the Company.
SECTION 10. Other Stock-Based Awards
(a) In addition to granting Options, Stock Appreciation Rights, Performance
Shares, Restricted Stock and Restricted Stock Units, the Committee shall have
authority to grant to Participants Stock Unit Awards that can be in the form of
Common Stock or units, the value of which is based, in whole or in part, on the
value of Common Stock. Subject to the provisions of the Plan, including Section
10(b) below, Stock Unit Awards shall be subject to such terms, restrictions,
conditions, vesting requirements and payment rules (all of which are sometimes
hereinafter collectively referred to as "rules") as the Committee may determine
in its sole and complete discretion at the time of grant. The rules need not be
identical for each Stock Unit Award.
(b) In the sole and complete discretion of the Committee, a Stock Unit
Award may be granted subject to the following rules:
(1) Any shares of Common Stock which are part of a Stock Unit Award
may not be assigned, sold, transferred, pledged or otherwise
encumbered prior to the date on which the Shares are issued or, if
later, the date provided by the Committee at the time of grant of the
Stock Unit Award.
(2) Stock Unit Awards may provide for the payment of cash
consideration by the person to whom such Award is granted or provide
that the Award, and any Common Stock to be issued in connection
therewith, if applicable, shall be delivered without the payment of
cash consideration, provided that for any Common Stock to be purchased
in connection with a Stock Unit Award the purchase price shall be at
least 50% of the Fair Market Value of such Common Stock on the date
such Award is granted.
(3) Stock Unit Awards may relate in whole or in part to certain
performance criteria established by the Committee at the time of
grant.
(4) Stock Unit Awards may provide for deferred payment schedules
and/or vesting over a specified period of employment.
(5) In such circumstances as the Committee may deem advisable, the
Committee may waive or otherwise remove, in whole or in part, any
restriction or limitation to which a Stock Unit Award was made subject
at the time of grant.
(d) In the sole and complete discretion of the Committee, an Award,
whether made as a Stock Unit Award under this Section 10 or as an
Award granted pursuant to Sections 6 through 9, may provide the
Participant with (i) dividends or dividend equivalents (payable on a
current or deferred basis) and (ii) cash payments in lieu of or in
addition to an Award.
SECTION 11. Amendment and Termination
(a) Amendments to the Plan. The Board may amend, alter, suspend,
discontinue or terminate the Plan at any time; provided, however, that,
notwithstanding any other provision of the Plan or any Award Agreement, without
the approval of the stockholders of the Company, no amendment, alteration,
suspension, discontinuation or termination shall be made that, absent such
approval:
(i) requires stockholder approval under the rules or regulations of the
Stock Exchange, or any other securities exchange that are applicable
to the Company;
(ii) increases the number of Shares authorized under the Plan as specified
in Section 5(a) of the Plan; or
(iii) without such stockholder approval, would cause the Company to be
unable, under the Code, to grant Incentive Stock Options under the Plan.
(b) Amendments to Awards. The Committee may waive any conditions or rights
of the Company under any outstanding Award, prospectively or retroactively.
Except as otherwise provided herein or in an Award Agreement, the Committee may
not amend, alter, suspend, discontinue or terminate any outstanding Award,
prospectively or retroactively, if such action would adversely affect the rights
of the holder of such Award, without the consent of the Participant or holder or
beneficiary thereof or such amendment would cause a Qualified Performance-Based
Award to cease to qualify for the Section 162(m) Exemption.
(c) Correction of Defects, Omissions and Inconsistencies. The Committee may
correct any defect, supply any omission or reconcile any inconsistency in the
Plan or any Award in the manner and to the extent it shall deem desirable to
carry the Plan into effect.
SECTION 12. General Provisions
(a) Withholding. No later than the date as of which an amount first becomes
includible in the gross income of a Participant for federal income tax purposes
(or the income tax laws of any other foreign jurisdiction) 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. The obligations of the Company under the Plan shall be
conditional on such payment or arrangements, and the Company and its Affiliates
shall, to the extent permitted by law, be entitled to take such action and
establish such procedures as it deems appropriate to withhold or collect all
applicable payroll, withholding, income or other taxes from such Participant. In
order to assist a Participant in paying all or a portion of the federal, state,
local and foreign taxes to be withheld or collected upon exercise or receipt of
(or the lapse of restrictions relating to) an Award, the Committee, in its
discretion and subject to such additional terms and conditions as it may adopt,
may permit the Participant to satisfy such tax obligation by (i) electing to
have the Company withhold a portion of the Shares or other property otherwise to
be delivered upon exercise or receipt of (or the lapse of restrictions relating
to) such Award with a Fair Market Value equal to the amount of such taxes or
(ii) delivering to the Company Shares or other property other than Shares
issuable upon exercise or receipt of (or the lapse of restrictions relating to)
such Award with a Fair Market Value equal to the amount of such taxes, provided
that, in either case, not more than the legally required minimum withholding may
be settled with Shares. Any such election must be made on or before the date
that the amount of tax to be withheld is determined.
(b) Awards. Each Award hereunder shall be evidenced by an Award Agreement,
delivered to the Participant or Outside Director and shall specify the terms and
conditions thereof and any rules applicable thereto, including but not limited
to the effect on such Award of the death, retirement or other termination of
employment of the Participant or Outside Director and the effect thereon, if
any, of a Change in Control of the Company.
(c) No Rights to Awards. No Eligible Individual 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 Eligible Individuals or holders or beneficiaries of
Awards under the Plan. The terms and conditions of Awards need not be the same
with respect to any Participant or with respect to different Participants.
(d) No Right to Employment. No person shall have any claim or right to be
granted an Award, and the grant of an Award shall not be construed as giving a
Participant the right to be retained in the employ of the Employer. Further, the
Employer expressly reserves the right at any time to dismiss a Participant free
from any liability, or any claim under the Plan, except as provided herein or in
any agreement entered into with respect to an Award.
(e) No Rights as Stockholder. Subject to the provisions of the applicable
Award, no Participant or Designated Beneficiary shall have any rights as a
stockholder with respect to any shares of Common Stock to be distributed under
the Plan until he or she has become the holder thereof. Notwithstanding the
foregoing, in connection with each grant of Restricted Stock or Stock Unit Award
hereunder, the applicable Award shall specify if and to what extent the
Participant shall not be entitled to the rights of a stockholder in respect of
such Restricted Stock or Stock Unit Award.
(f) Construction of the Plan. The validity, construction, interpretation,
administration and effect of the Plan and of its rules and regulations, and
rights relating to the Plan, shall be determined solely in accordance with the
laws of the State of Texas.
(g) Change in Control. In order to preserve Participant's rights under an
Award in the event of a transaction or occurrence that the Committee reasonably
determines to constitute a change in control of the Company (a
"Change-in-Control"), the Committee in its discretion may, at the time an Award
is made or any time thereafter, take one or more of the following actions: (i)
provide for the acceleration of any time period relating to the exercise of the
Award, (ii) provide for the purchase of the Award upon the Participant's request
for an amount of cash or other property that could have been received upon the
exercise or realization of the Award had the Award been currently exercisable or
payable, (iii) adjust the terms of the Award in a manner determined by the
Committee to reflect the Change in Control, (iv) cause the Award to be assumed,
or new rights substituted therefore, by another entity, or (v) make such other
provision as the Committee may consider equitable and in the best interests of
the Company.
(h) Forms of Payment Under Awards. Subject to the terms of the Plan,
payments or transfers to be made by the Company or an Affiliate upon the grant,
exercise or settlement of an Award may be made in such form or forms as the
Committee shall determine (including, without limitation, cash, Shares,
promissory notes (provided, however, that the acceptance of such notes does not
conflict with Section 402 of the Sarbanes-Oxley Act of 2002), 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 rules and procedures established by the Committee. Such rules
and procedures may include, without limitation, provisions for the payment or
crediting of reasonable interest on installment or deferred payments or the
grant or crediting of dividend equivalents with respect to installment or
deferred payments.
(i) Section 16 Compliance; Section 162(m) Administration. The Plan is
intended to comply in all respects with Rule 16b-3 or any successor provision,
as in effect from time to time, and in all events the Plan shall be construed in
accordance with the requirements of Rule 16b-3. If any Plan provision does not
comply with Rule 16b-3 as hereafter amended or interpreted, the provision shall
be deemed inoperative. The Board, in its absolute discretion, may bifurcate the
Plan so as to restrict, limit or condition the use of any provision of the Plan
with respect to persons who are officers or Directors subject to Section 16 of
the Exchange Act without so restricting, limiting or conditioning the Plan with
respect to other Eligible Individuals. The Company intends that all Stock
Options and Stock Appreciation Rights granted under the Plan to individuals who
are or who the Committee believes will be Covered Employees will constitute
"qualified performance-based compensation" within the meaning of Section 162(m)
of the Code.
(j) Restrictions. Shares shall not be issued pursuant to the exercise or
payment of the Exercise Price or purchase price relating to an Award unless such
exercise or payment and the issuance and delivery of such Shares pursuant
thereto shall comply with all relevant provisions of law, including, without
limitation, the Act, the Exchange Act, the rules and regulations promulgated
thereunder, the requirements of any applicable stock exchange and the Texas
Business Corporations Act, as amended from time to time. As a condition to the
exercise or payment of the Exercise Price or purchase price relating to such
Award, the Company may require that the person exercising or paying the Exercise
Price or purchase price represent and warrant that the Shares are being
purchased only for investment and without any present intention to sell or
distribute such Shares if, in the opinion of counsel for the Company, such a
representation and warranty is required by law. All 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, and the Committee may direct appropriate stop transfer orders
and cause other legends to be placed on the certificates for such Shares or
other securities to reflect such restrictions.
(k) Limits on Transfer of Awards. No Award and no right under any such
Award shall be transferable by a Participant otherwise than by will or by the
laws of descent and distribution and the Company shall not be required to
recognize any attempted assignment of such rights by any Participant; provided,
however, that, if so determined by the Committee, a Participant may, in the
manner established by the Committee, designate a beneficiary or beneficiaries to
exercise the rights of the Participant and receive any property distributable
with respect to any Award upon the death of the Participant; and provided,
further, that, if so determined by the Committee, a Participant may transfer a
Nonqualified Stock Option to any Family Member (as such term is defined in the
General Instructions to Form S-8 (or successor to such Instructions or such
Form)) at any time that such Participant holds such Stock Option, whether
directly or indirectly or by means of a trust or partnership or otherwise,
PROVIDED that the Participant may not receive any consideration for such
transfer, the Family Member may not make any subsequent transfers other than by
will or by the laws of descent and distribution and the Company receives written
notice of such transfer. Except as otherwise determined by the Committee, each
Award (other than an Incentive Stock Option) or right under any such Award shall
be exercisable during the Participant's lifetime only by the Participant or, if
permissible under applicable law, by the Participant's guardian or legal
representative. Except as otherwise determined by the Committee, no Award (other
than an Incentive Stock Option) or right under any such Award may be pledged,
alienated, attached or otherwise encumbered, and any purported pledge,
alienation, attachment or other encumbrance thereof shall be void and
unenforceable against the Company or any Affiliate. Notwithstanding the above,
in the discretion of the Committee, awards may be transferable pursuant to a
Qualified Domestic Relations Order ("QDRO"), as determined by the Committee or
its designee.
(1) Severability. If any provision of the Plan or any Award is or becomes
or is deemed to be invalid, illegal or unenforceable in any jurisdiction or
would disqualify the Plan 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 purpose or intent of
the Plan or the Award, such provision shall be stricken as to such jurisdiction
or Award, and the remainder of the Plan or any such Award shall remain in full
force and effect.
SECTION 13. Effective Date of Plan
Upon its adoption by the Board, the Plan shall be submitted for approval by
the stockholders of the Company and shall be effective as of the date of such
approval (the "EFFECTIVE DATE").
SECTION 14. Term of the Plan
The Plan will terminate on the tenth anniversary of the Effective Date or
any earlier date of discontinuation or termination established pursuant to
Section 3 of the Plan. However, unless otherwise expressly provided in the Plan
or in an applicable Award Agreement, any Award theretofore granted may extend
beyond such date, and the authority of the Committee provided for hereunder with
respect to the Plan and any Awards, and the authority of the Board to amend the
Plan, shall extend beyond the termination of the Plan.