EXHIBIT 10.1
INVESTORS TITLE COMPANY
2001 STOCK OPTION AND RESTRICTED STOCK PLAN
(AS AMENDED AND RESTATED)
ARTICLE I
GENERAL PROVISIONS
Section 1.1 Purpose. Investors Title Company and its subsidiaries (the
"Company") previously adopted the 2001 Stock Option and Restricted Stock Plan in
order to induce those persons who are in a position to contribute materially to
the success of the Company to remain with the Company, to offer them rewards in
recognition of their contributions to the Company and to offer them incentives
to continue to promote the Company's best interests. This 2001 Stock Option and
Restricted Stock Plan, as amended and restated, is adopted by the Company
effective as of May 17, 2006, in order to (i) allow for the award of stock
appreciation rights under the Plan, (ii) achieve compliance with the
requirements of Section 409A of the Internal Revenue Code of 1986, as amended
(the "Code"), and (iii) otherwise meet current needs.
Section 1.2 Elements of the Plan. The Plan provides for the grant of stock
options pursuant to ARTICLE II of the Plan ("Options"), the grant of stock
appreciation rights pursuant to ARTICLE II of the Plan ("SARs") and restricted
stock awards pursuant to ARTICLE IV of the Plan ("Restricted Stock Awards").
Each Option granted pursuant to the Plan shall be designated as provided in
ARTICLE II as either an Incentive Stock Option or a Nonqualified Stock Option.
Incentive Stock Options granted under the Plan are intended to qualify as such
under Section 422 of the Code, and shall be construed and interpreted to comply
with the requirements of that section and any regulations promulgated
thereunder.
Section 1.3 Administration. The Plan shall be administered by an option
committee (the "Committee") appointed by the Board of Directors of the Company
(the "Board"). The Committee shall be comprised of not less than two members,
all of whom must be persons who are both "Non-Employee Directors" within the
meaning of Rule 16b-3 as promulgated by the Securities and Exchange Commission
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
"outside directors" within the meaning of Section 162(m) of the Code and the
regulations promulgated thereunder. The Board from time to time may appoint
members of the Committee in substitution for or in addition to members
previously appointed, and may fill vacancies in the Committee, however caused.
Any action by the Committee shall be taken by majority vote at a meeting thereof
called in accordance with procedures adopted thereby, or by unanimous written
consent of the Committee.
Section 1.4 Authority of Committee.
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(a) Subject to the other provisions of this Plan, the Committee shall
have sole authority in its absolute discretion: to grant Options, SARs and
Restricted Stock Awards under the Plan; to determine the officers,
employees and directors to whom Options, SARs and/or Restricted Stock
Awards shall be granted under the Plan; to determine the number of shares
subject to any Option, SAR or Restricted Stock Award under the Plan; to fix
the exercise price and the duration of each Option or SAR; to establish
corporate or individual performance or other vesting standards for Options,
SARs or Restricted Stock Awards; to establish any other terms and
conditions of Options, SARs and Restricted Stock Awards; and to accelerate
the time at which any outstanding Option or SAR may be exercised or the
time when restrictions and conditions on Restricted Stock Awards will
lapse. The Board may also grant Options, SARs and/or Restricted Stock
Awards from time to time to consultants who are not employees of the
Company. No member of the Board or of the Committee shall be liable for any
action or determination made in good faith with respect to the Plan or any
Option, SAR or Restricted Stock Award granted thereunder. In addition,
directors or former directors of the Company, including members or former
members of the Committee, shall be entitled to indemnification by the
Company to the extent permitted by applicable law and by the Company's
Articles of Incorporation or Bylaws with respect to any liability or
expense arising out of such person's participation in the administration of
this Plan.
(b) Subject to the other provisions of this Plan, and with a view to
effecting its purpose, the Committee shall have sole authority in its
absolute discretion: to construe and interpret the Plan; to prescribe,
amend, and rescind rules and regulations relating to the Plan; to make any
other determinations relating to the Plan; and to do everything necessary
or advisable to administer the Plan.
(c) All decisions, determinations, and interpretations made by the
Committee shall be binding and conclusive on all optionees and holders of
restricted stock and on their legal representatives, heirs and
beneficiaries.
Section 1.5 Shares Subject to the Plan: Reservation of Shares. The maximum
aggregate number of shares of common stock of the Company available pursuant to
the Plan for the grant of Options and for Restricted Stock Awards, subject to
adjustments as provided in Section 1.7, shall be 250,000 shares of the Company's
common stock, no par value (the "Common Stock"). The aggregate number of shares
of Common Stock with respect to which Options, SARs and Restricted Stock Awards
under the Plan may be granted to any individual (including Options and
Restricted Stock Awards that are subsequently cancelled) shall not exceed an
aggregate of 50,000 shares of Common Stock. If any Option or SAR granted
pursuant to the Plan expires or terminates for any reason before it has been
exercised in full, the unpurchased shares subject to that Option or SAR shall
again be available for the purposes of the Plan. If any shares issued pursuant
to a Restricted Stock Award are forfeited, they shall again be available for the
purposes of the Plan. The Company shall at all times reserve and keep available
such number of shares of its Common Stock as shall be sufficient to satisfy the
requirements of the Plan.
Section 1.6 Eligibility. Options, SARs and Restricted Stock Awards may be
granted under the Plan to such key employees (including statutory employees
within the meaning of Section 3121(d) of the Code), officers, directors or
consultants of the Company or a subsidiary of the Company, whether or not
employees, as the Committee shall select from time to time in its discretion.
Incentive Stock Options, however, may be granted under the Plan only to key
employees of the Company or a subsidiary of the Company who qualify for the
grant of an Incentive Stock Option under Section 422 of the Code.
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Section 1.7 Adjustments. If the shares of Common Stock of the Company are
increased, decreased, changed into or exchanged for a different number or kind
of shares or securities through merger, consolidation, combination, exchange of
shares, other reorganization, recapitalization, reclassification, stock
dividend, stock split or reverse stock split in which the Company is the
surviving entity, an appropriate and proportionate adjustment shall be made in
the maximum number and kind of shares as to which Options, SARs and Restricted
Stock Awards may be granted under this Plan. A corresponding adjustment changing
the number or kind of shares allocated to unexercised Options, SARs or unvested
Restricted Stock Awards that shall have been granted prior to any such change
shall likewise be made. Any such adjustment in outstanding Options or SARs shall
be made without change in the aggregate purchase price applicable to the
unexercised portion of any such Option or SAR, but with a corresponding
adjustment in the price for each share covered by the Option or SAR, and shall
be made in a manner as not to constitute a modification, within the meaning of
Section 424(h) of the Code, of outstanding Incentive Stock Options, and
consistent with the requirements of Section 409A of the Code in order for any
such Option or SAR to remain exempt from the requirements of Section 409A of the
Code. In making any adjustment pursuant to this Section 1.7, any fractional
shares shall be disregarded.
In the event of a change in the Common Stock of the Company as
presently constituted, which is limited to a change of all of its authorized
shares with par value into the same number of shares with a different par value
or without par value, the shares resulting from any such change shall be deemed
to be Common Stock within the meaning of the Plan.
The grant of an Option, SAR or Restricted Stock Award under the Plan
shall not affect in any way the right or power of the Company to make
adjustments, reclassifications, reorganizations or changes in its capital or
business structure.
ARTICLE II
STOCK OPTIONS
Section 2.1 Grant. The Committee may cause the Company to grant Stock
Options for the purchase of shares of Common Stock to eligible participants
under the Plan in such amounts as the Committee, in its sole discretion shall
determine. Options granted pursuant to the Plan that are intended to qualify as
"incentive stock options" under Section 422 of the Code shall be designated as
such at the time of their grant and are referred to herein as Incentive Stock
Options. Options not intended to qualify as Incentive Stock Options are referred
to herein as Nonqualified Stock Options and shall be designated as such in the
applicable option agreement.
Section 2.2 Terms and Conditions of Options. Options granted under the Plan
shall be evidenced by written agreements ("option agreements") in such form as
the Committee may from time to time approve. The terms and conditions of Options
granted under the Plan, including the satisfaction of corporate or individual
performance or other vesting standards, may differ one from another as the
Committee shall in its discretion determine, as long as all Options granted
under the Plan satisfy the terms and conditions applicable to Options set forth
in this Plan.
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(a) Number of Shares; Designation. Each Option shall state the number
of shares of Common Stock to which it pertains and that it is either an
Incentive Stock Option or a Nonqualified Stock Option.
(b) Option Price. Each Option shall state the option price, which
shall not be less than the fair market value (as hereinafter defined) per
share of the Common Stock at the time the option is granted (except that
for Incentive Stock Options granted to any employee who owns more than 10%
of the combined voting power of all classes of stock of the Company, the
option price shall not be less than 110% of fair market value). For the
purpose of the Plan, the "fair market value" per share of Common Stock on
any date of reference shall be the Closing Price of the Common Stock
referred to in clauses (i), (ii) or (iii) below, whichever appropriate, on
the business day immediately preceding such date. For this purpose, the
Closing Price of the Common Stock on any business day shall be: (i) if the
Common Stock is listed or admitted for trading on any United States
national securities exchange, or if actual transactions are otherwise
reported on the National Market System of the National Association of
Securities Dealers Automated Quotation System ("NASDAQ") or other
consolidated transaction reporting system, the last reported sale price of
Common Stock on such exchange or reporting system on which the Common Stock
is principally traded, as reported in any newspaper of general circulation;
(ii) if clause (i) is not applicable and the Common Stock is otherwise
quoted on NASDAQ, or any similar system of automated dissemination of
quotations of securities prices in common use, the mean between the closing
high bid and low asked quotations for the Common Stock on such system for
such day; or (iii) if neither clause (i) nor (ii) is applicable, the mean
between the high bid and low asked quotations for the Common Stock as
reported by the National Quotation Bureau, Incorporated if at least two
securities dealers have inserted both bid and asked quotations for Common
Stock on at least five of the preceding ten days. If neither clause (i) nor
clauses (ii) or (iii) are applicable, "fair market value" per share of
Common Stock shall be such value as shall be determined by the Committee in
its sole discretion, unless the Committee shall identify a different method
for determining fair market value in a fair and uniform manner.
(c) Exercise of Options. Each Option shall be exercisable in one or
more installments during its term, as provided in the applicable Option
agreement, and the right to exercise may be cumulative. No Option may be
exercised for a fraction of a share of Common Stock. Unless otherwise
provided by the applicable Option agreement, the purchase price of any
shares purchased shall be paid in full in cash or by cashier's check
payable to the order of the Company, by surrender of shares of Common Stock
held by the grantee for more than six months and having a value at the
exercise date equal to the exercise price, or through a cashless exercise
through a broker-dealer registered with the Securities and Exchange
Commission, or by a combination of any of the foregoing. If any portion of
the purchase price is paid in shares of Common Stock, those shares shall be
valued at their fair market value as of the day of delivery, as determined
in accordance with Section 2.2(b). No optionee, or optionee's executor,
administrator, legatee, or distributee, shall be deemed to be a holder of
any shares subject to an Option unless and until a stock certificate or
certificates for such are issued to such person(s) under the terms of the
Plan. No adjustment shall be made for dividends (ordinary or extraordinary,
whether in cash, securities or other property) or distributions or other
rights for which the record date is prior to the date such stock
certificate is issued, except as provided in Section 1.7. The exercise of
Options under the Plan shall be subject to the withholding requirements as
set forth in Section 5.2.
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(d) Written Notice Required. An Option granted pursuant to the terms
of this Plan shall be exercised when written notice of that exercise,
stating the number of shares with respect to which the Option is being
exercised, has been given to the Company at its principal office, from the
person entitled to exercise the Option and full payment for the shares with
respect to which the Option is exercised has been received by the Company.
(e) Options Not Transferable. Options granted pursuant to this Plan
may not be sold, pledged, assigned or transferred in any manner other than
by will or the laws of descent or distribution and may be exercised during
the lifetime of an optionee only by that optionee.
(f) Duration of Options. Each Option and all rights thereunder granted
pursuant to the terms of this Plan shall expire on the date specified in
the applicable option agreement, but in no event shall any Option expire
later than ten (10) years from the date on which the Option is granted;
provided, however, that any Incentive Stock Option granted to an employee
who owns more than 10% of the combined voting power of all classes of stock
of the Company may not be exercisable after the date five (5) years from
the date the Option is granted. In addition, each Option shall be subject
to early termination as provided in this Plan or the applicable option
agreement.
(g) Termination of Employment, Disability or Death.
(i) If an optionee ceases to be employed by the Company, or any
subsidiary corporation, for any reason other than death or disability,
any Option granted to such optionee that is unexercised or still
subject to any restrictions or conditions shall be terminated and
forfeited, unless otherwise provided in the applicable option
agreement.
(ii) If an optionee becomes disabled within the meaning of
Section 22(e)(3) of the Code while employed by the Company, or any
subsidiary corporation, any Option may be exercised at any time within
three months after the date of termination of employment due to
disability, unless a longer or shorter period is provided in the
applicable option agreement.
(iii) If an optionee dies while employed by the Company, or any
subsidiary corporation, any Option shall expire one year after the
date of death, unless a longer or shorter period of exercise is
provided in the applicable option agreement. During this period, the
Option may be exercised, except as otherwise provided in the
applicable option agreement, by the person or persons to whom the
optionee's rights under the Option shall pass by will or by the laws
of descent and distribution, but in no event may the Option be
exercisable more than ten years from the date of grant.
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(iv) Unless otherwise provided in the applicable option
agreement, any Option that may be exercised for a period following
termination of the optionee's employment may be exercised only to the
extent it was exercisable immediately before such termination and in
no event after the Option would expire by its terms without regard to
such termination.
(v) If a nonemployee director ceases to serve the Company in that
capacity, the optionee's rights upon such termination shall be
governed in the manner of a optionee's rights upon termination of
employment as set forth above.
(h) Reorganizations. If the Company shall be a party to any merger or
consolidation in which it is not the surviving entity or pursuant to which
the shareholders of the Company exchange their Common Stock for other
securities or for cash in any acquisition transaction, or if the Company
shall dissolve or liquidate or sell all or substantially all of its assets,
or upon consummation of a tender offer approved by the Board, all Options
outstanding under this Plan, unless otherwise provided in the applicable
option agreement, shall terminate on the effective date of such merger,
consolidation, dissolution, liquidation, sale or tender offer; provided,
however, that prior to such effective date, the Committee may, in its
discretion, either (i) make any or all outstanding Options immediately
exercisable, (ii) authorize a payment to any optionee that approximates the
economic benefit that he would realize if his option were exercised
immediately before such effective date, (iii) authorize a payment in such
other amount as it deems appropriate to compensate any optionee for the
termination of his Option, or (iv) arrange for the granting of a substitute
Option to any optionee.
Section 2.3 Maximum Amount of Incentive Stock Options. The maximum
aggregate fair market value of Common Stock, determined as of the time the
Incentive Stock Option is granted, with respect to which Incentive Stock Options
are exercisable by an optionee for the first time during any calendar year,
under this Plan and all other incentive stock option plans of the Company and
any parent, subsidiary, and predecessor corporations, shall not exceed $100,000.
Any Option in excess of the foregoing limitation shall be deemed a Nonqualified
Stock Option to the extent of such excess.
ARTICLE III
STOCK APPRECIATION RIGHTS
Section 3.1 Grant. The Committee may cause the Company to grant SARs to
eligible participants under the Plan in such amounts as the Committee, in its
sole discretion shall determine. The Committee shall have complete discretion in
determining the terms and conditions pertaining to such SARs consistent with the
provisions of the Plan. The grant price of an SAR shall not be less than the
fair market value (as defined in Section 2.2(b)) per share of the Common Stock
at the time the SAR is granted.
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Section 3.2 Exercise of SARs. SARs may be exercised upon whatever terms and
conditions the Committee, in its sole discretion, imposes upon them.
Section 3.3 SAR Agreement. Each SAR grant shall be evidenced by a SAR
agreement that shall specify the grant price, the term of the SAR, and such
other provisions as the Committee shall determine.
Section 3.4 Term of SARs. The term of a SAR granted under the Plan shall be
determined by the Committee, in its sole discretion; provided, however, that
such term shall not exceed ten (10) years.
Section 3.5 Payment of SAR Amount. Upon exercise of a SAR, the grantee of
the SAR shall be entitled to receive payment from the Company in an amount
determined by multiplying:
(a) The difference between the fair market value (as defined in
Section 2.2(b))of a share of Common Stock on the date of exercise over the
grant price; by
(b) The number of shares of Common Stock with respect to which the SAR
is exercised.
At the discretion of the Committee or as otherwise provided in the
applicable SAR agreement, the payment upon SAR exercise shall be in cash, in
shares of Common Stock of equivalent value, or in some combination thereof.
Section 3.6 Other Terms and Conditions. The provisions of Sections 2.2(e),
(g) and (h) shall apply to SARs, except as otherwise provided in any applicable
SAR agreement.
ARTICLE IV
RESTRICTED STOCK AWARDS
Section 4.1 Grant of Restricted Shares. The Committee may cause the Company
to grant Restricted Stock Awards to eligible participants under the Plan in such
amounts as the Committee, in its sole discretion, shall determine. Restricted
Stock Awards may be issued either alone or in addition to Options granted under
the Plan.
Section 4.2 Agreement. Each Restricted Stock Award shall be evidenced by a
written agreement in such form and containing such provisions not inconsistent
with the Plan as the Committee may from time to time approve. Each Restricted
Stock Award shall be effective as of the date so stated in the resolution of the
Committee making the award.
Section 4.3 Restrictions and Conditions. Shares of Common Stock awarded
under this ARTICLE IV shall be subject to such restrictions and conditions, if
any, as may be imposed by the Committee at the time of making the award. Such
restrictions and conditions may include, without limitation, the satisfaction of
specified performance criteria by the Company or by the grantee of the
Restricted Stock Award, or other vesting standards; provided, however, that no
award shall require any payment of cash consideration by the grantee.
Restrictions and conditions imposed on shares of Common Stock awarded under this
ARTICLE IV may differ from one award to another as the Committee shall, in its
discretion, determine. Any restrictions and conditions shall lapse, in whole or
in part, as provided in the agreement evidencing the Restricted Stock Award, but
must lapse, if at all, not later than ten (10) years from the date of the award.
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Shares with respect to which no restrictions or conditions are imposed
and shares with respect to which the restrictions and conditions imposed thereon
have lapsed are hereinafter referred to as "Unrestricted Shares." Shares with
respect to which the restrictions and conditions imposed thereon have not lapsed
are hereinafter referred to as "Restricted Shares."
Section 4.4 Rights as a Shareholder. A holder of Unrestricted Shares shall
have all of the rights of a shareholder of the Company with respect thereto and
shall be entitled to receive a stock certificate evidencing such Unrestricted
Shares. Such certificate shall be issued without legend, except to the extent
that a legend may be necessary for compliance with applicable securities laws.
A holder of Restricted Shares shall be the record owner thereof and shall,
subject to the restrictions and conditions, have all of the rights of a
shareholder with respect thereto, including, but not limited to, the right to
receive all dividends paid on the Common Stock (ordinary or extraordinary,
whether in cash, securities or other property) and the right to vote the
Restricted Shares; provided, however, that each stock certificate evidencing
Restricted Shares shall bear a conspicuous legend stating that the shares
evidenced thereby are subject to restrictions as to transferability as provided
in Section 4.6 and to such other restrictions and conditions as have been
imposed by the Committee, and each such certificate shall be deposited by the
Holder with the Company or its designee together with a stock power endorsed in
blank.
Section 4.5 Forfeiture. Unless otherwise provided in the applicable
Restricted Stock Award agreement, upon termination of the grantee's employment
with the Company or any of its subsidiaries for any reason whatsoever
(voluntarily or involuntarily, with or without cause), all Restricted Shares
then owned by him shall automatically and without any action on his part be
forfeited and transferred to the Company.
Section 4.6 Transferability. Restricted Shares held by a grantee shall not
be subject to alienation, sale, transfer, assignment, pledge, attachment or
encumbrances of any kind, and any attempt to alienate, sell, transfer, assign,
pledge or otherwise encumber any Restricted Shares shall be void. In addition,
the Company may impose such restrictions on the transfer of Unrestricted Shares
as it deems necessary or desirable to assure compliance with all applicable
federal and state securities laws.
Section 4.7 Adjustments. If there is a change in the Common Stock of the
Company as described in Section 1.7 of this Plan, any stock or other securities
or other property issued with respect to Restricted Shares shall be subject to
the same restrictions and conditions as are applicable to such Restricted
Shares, and the certificates or other evidence of such stock, securities or
other property, together with an appropriate stock power or power of attorney,
shall be delivered to the Company or its designee and held until such time as
the restrictions and conditions applicable thereto lapse or until the stock,
securities or other property is forfeited in accordance with the provisions of
this ARTICLE IV.
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If the Company shall be a party to any merger or consolidation in which
it is not the surviving company or pursuant to which the shareholders of the
Company exchange their Common Stock for other securities or for cash in any
acquisition transaction, if the Company shall dissolve or liquidate or sell all
or substantially all of its assets, or upon consummation of a tender offer
approved by the Board, the Committee may, in its discretion, cause all
Restricted Stock Awards that are still subject to any restrictions and
conditions to become immediately vested in full on the effective date of any
such transaction, unless otherwise provided in the applicable agreement
evidencing such Restricted Stock Award.
ARTICLE V
MISCELLANEOUS PROVISIONS
Section 5.1 Tax Reimbursement Payments or Loans. In view of the federal and
state income tax savings expected to be realized by the Company upon exercise of
a Nonqualified Stock Option or SAR or the lapse of restrictions and conditions
imposed upon Restricted Shares, the Committee may, in its discretion, provide
that the Company will make a cash payment or a loan or a combination thereof to
the grantee of a Nonqualified Stock Option or SAR or the recipient of a
Restricted Stock Award (or his personal representatives or heirs) for the
purpose of assisting such optionee or grantee in the payment of personal income
taxes arising from such exercise or lapse of restrictions and conditions. The
basis for determining the amount and conditions of such cash payment or loan or
combination thereof and the terms and conditions of any such loan shall be
specified in the agreement pursuant to which the grant or award is made or may
be subsequently determined by the Committee. The Committee, in its discretion,
may from time to time forgive any such loan in whole or in part.
Section 5.2 Tax Withholding. No optionee or SAR grantee shall be entitled
to issuance of a stock certificate representing shares purchased upon exercise
of a Nonqualified Stock Option or SAR, and no grantee of a Restricted Stock
Award shall be entitled to issuance of a stock certificate evidencing
Unrestricted Shares, until such optionee or grantee has paid, or made
arrangements for payment, to the Company of an amount equal to the income and
other taxes that the Company is required to withhold from such person as a
result of his exercise of a Nonqualified Stock Option or SAR or his receipt of
Unrestricted Shares. In addition, such amounts as the Company is required to
withhold by reason of any tax reimbursement payments made pursuant to Section
5.1 may be deducted from such payments.
Section 5.3 Employment. Nothing in the Plan or in any Option, SAR or
Restricted Stock Award shall confer upon any eligible employee any right to
continued employment by the Company or any subsidiary of the Company, or limit
in any way the right of the Company or any subsidiary of the Company at any time
to terminate or alter the terms of that employment.
Section 5.4 Effective Date of Plan. The 2001 Stock Option and Restricted
Stock Plan, as originally adopted, became effective as of February 12, 2001, the
date of adoption of the Plan by the Board of Directors of the Company, and was
duly approved by the shareholders of the Company at a meeting held within 12
months of the date of adoption of the Plan by the Board. This Plan shall be
effective May 17, 2006.
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Section 5.5 Termination and Amendment of Plan. The Plan may be amended,
revised or terminated at any time by the Board; provided, however, that no
amendment or revision shall, without the approval of the Company's shareholders,
(a) increase the maximum aggregate number of shares subject to this Plan, except
as permitted under Section 1.7; (b) change the minimum purchase price for
shares subject to Options or SARs granted under the Plan; (c) extend the maximum
duration established under the Plan for any Option or SAR or for a Restricted
Stock Award; or (d) permit the granting of an Option, SAR or Restricted Stock
Award to anyone other than those individuals described in Section 1.6 hereof.
Unless sooner terminated, the Plan shall terminate on February 11, 2011. No
Option, SAR or Restricted Stock Award shall be granted under the Plan after the
Plan is terminated.
Section 5.6 Prior Rights and Obligations. No amendment, suspension, or
termination of the Plan shall, without the consent of the person who has
received an Option, SAR or Restricted Stock Award, alter or impair any of that
person's rights or obligations under any Option, SAR or Restricted Stock Award
granted under the Plan prior to such amendment, suspension, or termination.
Section 5.7 Securities Laws. Shares of Common Stock issuable pursuant to
this Plan may, at the option of the Company, be registered under applicable
federal and state securities laws, but the Company shall have no obligation to
undertake such registrations and may, in lieu thereof, issue shares hereunder
only pursuant to applicable exemptions from such registrations. In the event
that no such registrations are undertaken, the shares shall be issued only to
persons who qualify to receive such shares in accordance with the exemption from
registration on which the Company relies. In connection with any award of shares
or the reissuance of certificates under the Plan, the Committee may require
appropriate representations from the recipient of such shares and take such
other action as the Committee may deem necessary, including but not limited to
placing restrictive legends on certificates evidencing such shares and placing
stop transfer instructions in the Company's stock transfer records, or
delivering such instructions to the Company's transfer agent, in order to assure
compliance with any such exemptions. Notwithstanding any other provision of the
Plan, no shares will be issued pursuant to the Plan unless such shares have been
registered under all applicable federal and state securities laws or unless, in
the opinion of counsel satisfactory to the Company, exemptions from such
registrations are available.
Section 5.8 Compliance With Section 409A of the Code. The Plan is intended
to comply with Section 409A of the Code, to the extent applicable.
Notwithstanding any provision of the Plan to the contrary, the Plan shall be
interpreted, operated and administered consistent with this intent. In that
regard, and notwithstanding any provision of the Plan to the contrary, the
Company reserves the right to amend the Plan or any award granted under the
Plan, by action of the Committee, without the consent of any affected
participant, to the extent deemed necessary or appropriate for purposes of
maintaining compliance with Section 409A of the Code and the regulations
promulgated thereunder.
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