Exhibit 10.01
2009 Praxair, Inc.
Long Term Incentive
Plan
Effective April 28,
2009
Contents
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Article 1.
Establishment, Purpose, and Duration
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2
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Article 2.
Definitions
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2
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Article 3.
Administration
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Article 4.
Shares Subject to this Plan and Maximum Awards
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Article 5.
Eligibility and Participation
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Article 6.
Stock Options
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Article 7.
Stock Appreciation Rights
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Article 8.
Restricted Stock Grants
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Article 9.
Performance Units
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Article 10.
Other Stock-Based Awards
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Article 11.
Transferability of Awards
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Article 12.
Performance Measures
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19
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Article 13.
Dividend Equivalents
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Article 14.
Beneficiary Designation
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Article 15.
Rights of Participants
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Article 16.
Change in Control
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Article 17.
Amendment, Modification, Suspension, and Termination
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Article 18.
Withholding
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Article 19.
Successors
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Article 20.
General Provisions
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2009 Praxair, Inc.
Long Term Incentive
Plan
Article 1. Establishment,
Purpose, and Duration
1.1 Establishment
. Praxair, Inc., a Delaware
corporation (hereinafter referred to as the “Company”),
establishes an incentive compensation plan to be known as the 2009
Praxair, Inc. Long Term Incentive Plan (hereinafter referred to as
the “Plan”), as set forth in this document.
This Plan permits the grant of
Nonqualified Stock Options, Incentive Stock Options, Stock
Appreciation Rights (“SARs”), Restricted Stock,
Restricted Stock Units, Performance Units, and Other Stock-Based
Awards.
This Plan was adopted by the Board
on February 24, 2009. This Plan shall become effective upon
shareholder approval (the “Effective Date”) and shall
remain in effect as provided in Section 1.3 hereof.
1.2 Purpose of this
Plan . The purpose of
this Plan is to provide a means whereby Employees develop personal
involvement in the financial success of the Company, and to
encourage them to devote their best efforts to the business of the
Company, thereby advancing the interests of the Company and its
shareholders. A further purpose of this Plan is to provide a means
through which the Company may attract and retain able Employees and
to provide a means whereby those individuals can acquire and
maintain stock ownership, thereby strengthening their concern for
the welfare of the Company.
1.3 Duration of this
Plan . Unless sooner
terminated as provided herein, this Plan shall terminate
February 24, 2019. After this Plan is terminated, no Awards
may be granted but Awards previously granted shall remain
outstanding in accordance with their applicable terms and
conditions and this Plan’s terms and conditions.
Article 2.
Definitions
Whenever used in this Plan, the
following terms shall have the meanings set forth below, and when
the meaning is intended, the initial letter of the word shall be
capitalized.
2.1
“Award” means, individually or collectively,
a grant under this Plan of Nonqualified Stock Options,
Incentive Stock Options, SARs, Restricted Stock, Restricted Stock
Units, Performance Units, or Other Stock-Based Awards, in each case
subject to the terms of this Plan.
2.2 “Award Agreement” means
either (a) a written agreement entered into by the Company and
a Participant setting forth the terms and provisions applicable to
an Award granted under this Plan, or (b) a written or
electronic statement issued by the Company to a Participant
describing the terms and provisions of such Award,
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including any amendment or modification thereof.
The Committee may provide for the use of electronic, internet or
other non-paper Award Agreements, and the use of electronic,
internet or other non-paper means for the acceptance thereof and
actions thereunder by a Participant.
2.3 “Beneficial
Owner” or
“Beneficial Ownership” shall have the meaning
ascribed to such term in Rule 13d-3 of the General Rules and
Regulations under the Exchange Act.
2.4 “Board” means the Board of
Directors of the Company.
2.5 “Change in
Control” means the
occurrence of any one of the following events with respect to the
Company:
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(a)
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individuals
who, on January 1, 2009, constitute the Board (the
“Incumbent Directors”) cease for any reason to
constitute at least a majority of the Board, provided that any
person becoming a director subsequent to January 1, 2009,
whose election or nomination for election was approved by a vote of
at least two-thirds of the Incumbent Directors then on the Board
(either by a specific vote or by approval of the Company proxy
statement in which such person is named as a nominee for director,
without objection to such nomination) shall be an Incumbent
Director; provided, however, that no individual elected or
nominated as a director of the Company initially as a result of an
actual or threatened election contest with respect to directors or
any other actual or threatened solicitation of proxies or consents
by or on behalf of any person other than the Board shall be deemed
an Incumbent Director;
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(b)
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any
“person” (as such term is defined in
Section 3(a)(9) of the Exchange Act and as used in Sections
13(d)(3) and 14(d)(2) of the Exchange Act) is or becomes a
Beneficial Owner, directly or indirectly, of securities of the
Company representing 20% or more of the combined voting power of
the Company’s then outstanding securities eligible to vote
for the election of the Board (the “Praxair Voting
Securities”); provided, however, that the event described in
this Subsection 2.5(b) shall not be deemed to be a Change in
Control by virtue of any of the following acquisitions: (A) by
the Company or any of its subsidiaries; (B) by any employee
benefit plan sponsored or maintained by the Company or any of its
subsidiaries; (C) by any underwriter temporarily holding
securities pursuant to an offering of such securities; or
(D) pursuant to a Non-Qualifying Transaction (as defined in
Subsection 2.5(c));
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(c)
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the consummation of a merger,
consolidation, statutory share exchange or similar form of
corporate transaction involving the Company or any of its
subsidiaries that requires the approval of the Company’s
stockholders, whether for such transaction or the issuance of
securities in the transaction (a “Business
Combination”), unless immediately following such Business
Combination: (A)
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more than 50% of the total voting
power of (x) the corporation resulting from such Business
Combination (the “Surviving Corporation”), or
(y) if applicable, the ultimate parent corporation that
directly or indirectly has Beneficial Ownership of 100% of the
voting securities eligible to elect directors of the Surviving
Corporation (the “Parent Corporation”), is represented
by Praxair Voting Securities that were outstanding immediately
prior to such Business Combination (or, if applicable, shares into
which such Praxair Voting Securities were converted pursuant to
such Business Combination), and such voting power among the holders
thereof is in substantially the same proportion as the voting power
of such Praxair Voting Securities among the holders thereof
immediately prior to the Business Combination, (B) no person
(other than any employee benefit plan sponsored or maintained by
the Surviving Corporation or the Parent Corporation), is or becomes
the Beneficial Owner, directly or indirectly, of 20% or more of the
total voting power of the outstanding voting securities eligible to
elect directors of the Parent Corporation (or, if there is no
Parent Corporation, the Surviving Corporation) and (C) at
least a majority of the members of the board of directors of the
Parent Corporation (or, if there is no Parent Corporation, the
Surviving Corporation) were Incumbent Directors at the time of the
Board’s approval of the execution of the initial agreement
providing for such Business Combination (any Business Combination
which satisfies all of the criteria specified in (A), (B) and
(C) above shall be deemed to be a “Non-Qualifying
Transaction”); or
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(d)
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the
stockholders of the Company approve a plan of complete liquidation
or dissolution of the Company or a sale or disposition of all or
substantially all of the Company’s assets.
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Notwithstanding the foregoing, to
the extent an Award is subject to Code Section 409A, the
Committee shall have the discretion to define Change in Control for
such Award in a manner which complies with such Code
Section.
2.6 “Code” means the U.S.
Internal Revenue Code of 1986, as amended from time to time. For
purposes of this Plan, references to sections of the Code shall be
deemed to include references to any applicable regulations
thereunder and any successor or similar provision.
2.7 “Committee” means the
Compensation and Management Development Committee of the Board, or
any other committee designated by the Board to administer this
Plan. The Committee shall consist of not less than two directors.
However, if a member of the Committee is not an “outside
director” within the meaning of Code Section 162(m) or
is not a “non-employee director” within the meaning of
Rule 16b-3 under the Exchange Act, the Committee may from time
to time delegate some or all of its functions under the Plan to a
committee or subcommittee composed of members that meet the
relevant requirements. The term “Committee” includes
any such committee or subcommittee, to the extent of the
Compensation and Management Development
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Committee’s delegation. If the Committee
does not exist or cannot function for any reason, the Board may
take any action under the Plan that would otherwise be the
responsibility of the Committee, other than any actions required to
be carried out by a committee of at least two “outside
directors” or “non-employee
directors”.
2.8
“Company” means Praxair, Inc., a Delaware corporation, and
any successor thereto as provided in Article 19
herein.
2.9 “Covered Employee” means any
Employee who is or may become a “Covered Employee,” as
defined in Code Section 162(m), and who is designated, either
as an individual Employee or class of Employees, by the Committee
within the shorter of (a) ninety (90) days after the
beginning of the Performance Period, or (b) the period prior
to the date twenty-five percent (25%) of the Performance
Period has elapsed, as a “Covered Employee” under this
Plan for such applicable Performance Period.
2.10 “Effective
Date” has the
meaning set forth in Section 1.1.
2.11
“Employee” means any individual performing services for the
Company or a Subsidiary and designated as an employee of the
Company or its Subsidiaries on the payroll records thereof. An
Employee shall not include any individual during any period he or
she is classified or treated by the Company or its Subsidiary as an
independent contractor, a consultant, or any employee of an
employment, consulting, or temporary agency or any other entity
other than the Company or its Subsidiary, without regard to whether
such individual is subsequently determined to have been, or is
subsequently retroactively reclassified as a common-law employee of
the Company or its Subsidiary during such period.
2.12 “Exchange
Act” means the
Securities Exchange Act of 1934, as amended from time to time, or
any successor act thereto.
2.13 “Fair Market
Value” or
“FMV” means, in respect of any date on or as of
which a determination thereof is being or to be made, the closing
market price of a Share reported on the New York Stock Exchange
Composite Transactions tape on such date, or, if no Shares were
traded on such date, on the next preceding day on which sales of
Shares were reported on the New York Stock Exchange Composite
Transactions tape.
2.14 “Grant
Date” means the
date an Award is granted to a Participant pursuant to the
Plan.
2.15 “Grant
Price” means the
price established at the time of grant of a SAR pursuant to Article
7, used to determine whether there is any payment due upon exercise
of the SAR.
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2.16 “Incentive Stock
Option” or
“ISO” means an Option to purchase Shares granted
under Article 6 to an Employee that is designated as an
Incentive Stock Option and that is intended to meet the
requirements of Code Section 422, or any successor
provision.
2.17
“Insider” shall mean an individual who is, on the relevant
date, an executive officer of the Company or a more than
ten percent (10%) Beneficial Owner of any class of the
Company’s equity securities that is registered pursuant to
Section 12 of the Exchange Act, as determined by the Board in
accordance with Section 16 of the Exchange Act.
2.18 “Market
Price” means, in
respect of any date on or as of which a determination thereof is
being or to be made, the average of the high and low prices of a
Share reported on the New York Stock Exchange Composite
Transactions tape on such date, or, if no Shares were traded on
such date, on the next preceding day on which sales of Shares were
reported on the New York Stock Exchange Composite Transactions
tape.
2.19 “Nonqualified Stock
Option” or
“NQSO” means an Option that is not intended
to meet the requirements of Code Section 422, or that
otherwise does not meet such requirements.
2.20 “Option” means an Incentive
Stock Option or a Nonqualified Stock Option, as described in
Article 6.
2.21 “Option Price” means the
price at which a Share may be purchased by a Participant pursuant
to an Option.
2.22 “Other Stock-Based
Award” means an
equity-based or equity-related Award not otherwise described by the
terms of this Plan, granted pursuant to Article 10.
2.23 “Participant” means any
Employee to whom an Award is granted.
2.24 “Performance-Based
Compensation” means compensation under an Award that is
intended to satisfy the requirements of Code Section 162(m)
for certain performance-based compensation paid to Covered
Employees. Any Award granted hereunder that is intended to be
Performance-Based Compensation within the meaning of Code
Section 162(m) shall be subject to the terms and provisions of
this Plan and not the Praxair, Inc. Plan for Determining
Performance-Based Awards Under Section 162(m).
2.25 “Performance
Goal” means, with
respect to any applicable Award, the one or more targets, goals or
levels of attainment required to be achieved in terms of the
specified Performance Measures during the specified Performance
Period, as set forth in the related Award Agreement.
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2.26 “Performance
Measures” means:
(a) with respect to any Award intended to qualify as
Performance-Based Compensation, any one or more of the measures
described in Article 12 on which the Performance Goals are based
and which are approved by the Company’s shareholders pursuant
to this Plan in order to qualify Awards as Performance-Based
Compensation; and (b) with respect to any other Award, such
performance measures as determined by the Committee in its sole
discretion and set forth in the applicable Award Agreement for
purposes of determining the applicable Performance Goal.
2.27 “Performance Period” means
the period of time during which the Performance Goals must be met
in order to determine the degree of payout and/or vesting with
respect to an Award.
2.28 “Performance Unit” means an
Award under Article 9 herein and subject to the terms of this Plan,
denominated in Units, the value of which at the time it is payable
is determined as a function of the extent to which corresponding
Performance Goal(s) has been achieved during the applicable
Performance Period.
2.29
“Plan” means
this 2009 Praxair, Inc. Long Term Incentive Plan.
2.30 “Restricted
Stock ” means
Shares issued pursuant to a Restricted Stock Grant under Article 8
so long as the Shares remain subject to the restrictions and
conditions specified in the Award Agreement pursuant to which such
Restricted Stock Grant is made.
2.31 “Restricted Stock Grant”
means an Award of Restricted Stock or Restricted Stock Units made
pursuant to the provisions of Article 8.
2.32 “Restricted Stock
Unit” means a Unit
issued pursuant to a Restricted Stock Grant under Article 8 so long
as the Units remain subject to the restrictions and conditions
specified in the Award Agreement.
2.33 “Restriction
Period” means the
period when Restricted Stock or Restricted Stock Units are subject
to a substantial risk of forfeiture (based on the passage of time,
the achievement of Performance Goals, or upon the occurrence of
other events as determined by the Committee, in its discretion), as
provided in Article 8.
2.34
“Share” means
a share of common stock of the Company, $0.01 par value per share
or any security issued by the Company in substitution or exchange
therefor or in lieu thereof.
2.35 “Share
Equivalent” means a
Unit (or fraction thereof, if authorized by the Committee)
substantially equivalent to a hypothetical Share, credited to the
Participant and having a value at any time equal to the FMV of a
Share (or fraction thereof) at such time.
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2.36 “Stock Appreciation
Right” or “
SAR ” means an Award, designated as a SAR, pursuant to
the terms of Article 7 herein.
2.37
“Subsidiary” means any corporation or other entity, whether
domestic or foreign, in which the Company has or obtains, directly
or indirectly, a proprietary interest of fifty percent
(50%) or greater by reason of stock ownership or otherwise;
provided, however, that (a) for purposes of determining
whether any Employee can be a Participant with respect to any Award
of Incentive Stock Option, the term “Subsidiary” has
the meaning given to such term in Code Section 424, as
interpreted by the regulations thereunder and applicable law; and
(b) for purposes of determining whether any individual may be
a Participant with respect to any Award of Options or SARs that are
intended to be exempt from Code Section 409A, the term
“Subsidiary” means any corporation or other entity to
which the Company is an “eligible issuer of service recipient
stock” within the meaning of Code
Section 409A.
2.38
“Unit” means
a bookkeeping entry used by the Company to record and account for
the grant or settlement of an Award until such time as the Award is
paid, canceled, forfeited or terminated, as the case may be, which,
except as otherwise specified by the Committee, shall be equal to
one Share Equivalent.
Article 3.
Administration
3.1 General
. The Committee shall be responsible
for administering this Plan, subject to this Article 3 and the
other provisions of this Plan. The Committee may employ attorneys,
consultants, accountants, agents, and other individuals, any of
whom may be an Employee, and the Committee, the Company, and its
officers and directors shall be entitled to rely upon the advice,
opinions, or valuations of any such individuals. All actions taken
and all interpretations and determinations made by the Committee
shall be final and binding upon the Participants, the Company, and
all other interested individuals.
3.2 Authority of the
Committee . The Committee
shall have full and exclusive discretionary power to interpret the
terms and the intent of this Plan and any Award Agreement or other
agreement or document ancillary to, or in connection with, this
Plan, to determine eligibility for Awards and to adopt such rules,
regulations, forms, instruments, and guidelines for administering
this Plan as the Committee may deem necessary or proper. Such
authority shall include, but not be limited to, selecting
Participants, establishing all Award terms and conditions,
including the terms and conditions set forth in Award Agreements,
granting Awards as an alternative to or as the form of payment for
grants or rights earned or due under compensation plans or
arrangements of the Company, construing any ambiguous provision of
the Plan or any Award Agreement, and, subject to Article 17,
adopting modifications and amendments to this Plan or any Award
Agreement, including without limitation, any that are necessary to
comply with the laws of the countries and other jurisdictions in
which the Company and/or its Subsidiaries operate.
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3.3 Delegation.
The Committee may delegate to one
or more of its members or to one or more officers of the Company,
and/or its Subsidiaries or to one or more agents or advisors, such
administrative duties or powers as it may deem advisable, and the
Committee or any individuals to whom it has delegated duties or
powers as aforesaid may employ one or more individuals to render
advice with respect to any responsibility the Committee or such
individuals may have under this Plan. The Committee may, by
resolution, authorize the Chief Executive Officer of the Company
(the “CEO”) or any other officer of the Company, to do
one or both of the following on the same basis as can the
Committee: (a) designate Employees to be recipients of Awards
and (b) determine the size of any such Awards; provided,
however, (i) the Committee shall not delegate such
responsibilities for any Awards to be granted to an Employee who is
considered an Insider; (ii) the resolution providing such
authorization sets forth the total number of Awards the CEO or
officer may grant; and (iii) the CEO or officer, as
applicable, shall report periodically to the Committee regarding
the nature and scope of the Awards granted pursuant to the
authority delegated.
Article 4. Shares Subject to this
Plan and Maximum Awards
4.1 Number of Shares Available
for Awards . Subject to
adjustment as provided in Section 4.4, the maximum number of
Shares which may be issued pursuant to Awards under this Plan on or
after the Effective Date shall be 12,000,000 Shares (the
“Share Authorization”). The Shares available for
issuance under this Plan may be authorized and unissued Shares or
treasury Shares. The maximum number of Shares of the Share
Authorization that may be issued pursuant to ISOs under this Plan
shall be 12,000,000 Shares. The maximum number of Shares of the
Share Authorization that may be issued under this Plan pursuant to
Awards other than Options or SARs shall be 4,000,000
Shares.
4.2 Share Usage.
Shares subject to an Award that
expires according to its terms or is forfeited, terminated,
canceled or surrendered, in each case, without having been
exercised or settled, or can be paid only in cash, will be
available again for grant under the Plan, without reducing the
number of Shares that are available for Awards under the Plan. In
no event shall (a) any Shares subject to an Option that is
cancelled upon the exercise of a tandem SAR; (b) any Shares
subject to an Award that are surrendered in payment of the exercise
price of an Option or in payment of the taxes associated with an
Award; or (c) any Shares subject to a SAR that are not issued
in connection with the stock settlement of the SAR upon exercise
thereof become available for grant under the Plan pursuant to this
Section.
4.3 Annual Award
Limits. Unless and until
the Committee determines that an Award to a Covered Employee shall
not be designed to qualify as Performance-Based Compensation, the
following limits (each an “Annual Award Limit” and,
collectively, “Annual Award Limits”), as adjusted
pursuant to Sections 4.4, shall apply to grants of such Awards
under this Plan:
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(a)
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Options : The maximum aggregate number of Shares subject
to Options granted in any one calendar year to any one Participant
shall be 1,000,000.
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(b)
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SARs :
The maximum number of Shares subject to SARs granted in any one
calendar year to any one Participant shall be 1,000,000.
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(c)
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Restricted
Stock or Restricted Stock Units : The maximum aggregate Restricted Stock Grant
in any one calendar year to any one Participant shall be 300,000
Shares, or equal to the Fair Market Value of 300,000 Shares,
determined as of the date of vesting or payout, as
applicable.
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(d)
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Performance
Units : The maximum
aggregate Award of Performance Units that a Participant may receive
in any one calendar year shall be 300,000 Shares, or equal to the
Fair Market Value of 300,000 Shares, determined as of the date of
vesting or payout, as applicable.
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(e)
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Other
Stock-Based Awards : The
maximum aggregate grant with respect to Other Stock-Based Awards
pursuant to Section 10.1 in any one calendar year to any one
Participant shall be 300,000 Shares.
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4.4 Adjustments in Authorized
Shares . In the event of
any corporate event or transaction (including, but not limited to,
a change in the Shares of the Company or the capitalization of the
Company) such as a merger, consolidation, reorganization,
recapitalization, separation, partial or complete liquidation,
stock dividend, stock split, reverse stock split, split up,
spin-off, or other distribution of stock or property of the
Company, combination of Shares, exchange of Shares, dividend in
kind, or other like change in capital structure, number of
outstanding Shares or distribution (other than normal cash
dividends) to shareholders of the Company, or any similar corporate
event or transaction, the Committee, in order to prevent dilution
or enlargement of Participants’ rights under this Plan, shall
substitute or adjust, as applicable, the number and kind of Shares
that may be issued under this Plan or under particular forms of
Awards, the number and kind of Shares subject to outstanding
Awards, the Option Price or Grant Price applicable to outstanding
Awards, the Annual Award Limits, and other value determinations
applicable to outstanding Awards.
To further reflect any of the
foregoing events, transactions or adjustments, the Committee, in
its sole discretion, may also make adjustments in the terms of any
Awards under this Plan and may modify any other terms of
outstanding Awards, including modifications of Performance Goals
and changes in the length of Performance Periods, as it deems
necessary or appropriate. The determination of the Committee as to
the foregoing adjustments, if any, shall be conclusive and binding
on Participants under this Plan.
Subject to the provisions of Article
17 and notwithstanding anything else herein to the contrary,
without affecting the number of Shares reserved or available
hereunder, the Committee may authorize the issuance or assumption
of benefits under this Plan in connection with any merger,
consolidation, acquisition of property or stock, or reorganization
upon such terms and conditions as it may deem appropriate
(including, but not limited to, a conversion of equity awards into
Awards under this Plan in a manner consistent with paragraph 53 of
FASB Interpretation No. 44), subject to compliance with the
rules under Code Sections 422 and 424, as and where
applicable.
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Article 5. Eligibility and
Participation
Only Employees shall be eligible to
participate in this Plan. Subject to the provisions of this Plan,
the Committee may, from time to time, select those Employees to
whom Awards shall be granted and shall determine, in its sole
discretion, the nature of, any and all terms permissible by law,
and the amount of each Award.
Article 6. Stock
Options
6.1 Grant of Options
. Subject to the terms and
provisions of this Plan, Options may be granted to Participants in
such number, and upon such terms, and at any time and from
time to time as shall be determined by the Committee, in its sole
discretion. Options may be granted in addition to, or in tandem
with or independent of, SARs or any other Awards under the
Plan.
6.2 Award Agreement
. Each Option grant shall be
evidenced by an Award Agreement that shall specify the Option
Price, the term of the Option, the number of Shares to which the
Option pertains, the conditions, including any Performance Goals,
upon which an Option shall become vested and exercisable, and such
other terms and conditions as the Committee shall determine which
are not inconsistent with the terms of this Plan. The Award
Agreement also shall specify whether the Option is intended to be
an ISO or a NQSO.
6.3 Option Price
. The Option Price for each grant of
an Option under this Plan shall be determined by the Committee in
its sole discretion and shall be specified in the Award Agreement;
provided, however, the Option Price must be at least equal to 100%
of the FMV of the Shares as determined on the Grant
Date.
6.4 Term of Options
. Each Option granted to a
Participant shall expire at such time as the Committee shall
determine at the time of grant; provided, however, no Option shall
be exercisable later than the day before the tenth (10
th ) anniversary of its Grant Date.
6.5 Exercise of
Options . Options granted
under this Article 6 shall be exercisable at such times and be
subject to such restrictions and conditions as the Committee shall
in each instance approve, which terms and restrictions need not be
the same for each grant or for each Participant. Except upon a
Change in Control and in certain limited situations (including, but
not limited to, the death or disability of the Participant):
(a) Awards of Options subject solely to the continued service
of the Participant shall become exercisable no earlier than three
(3) years after the Grant Date provided that such Option may
partially vest after no less than one year following such Grant
Date; and (b) any other Award of Options shall become
exercisable no earlier than one (1) year after the Grant
Date.
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6.6 Payment
. Options granted under this Article
6 shall be exercised by the delivery of a notice of exercise to the
Company or an agent designated by the Company in a form specified
or accepted by the Committee, or by complying with any alternative
procedures which may be authorized by the Committee, setting forth
the number of Shares with respect to which the Option is to be
exercised, accompanied by full payment for the Shares.
A condition of the issuance of the
Shares as to which an Option shall be exercised shall be the
payment of the Option Price. The Option Price of any Option shall
be payable to the Company in full either: (a) in cash or its
equivalent; (b) by tendering (either by actual delivery or
attestation) previously acquired Shares having an aggregate Market
Price at the time of exercise equal to the Option Price (provided
that except as otherwise determined by the Committee,
