Exhibit 10.1
BEACON SOLUTIONS
2008 LONG TERM INCENTIVE PLAN
Section 1. Establishment and Purpose.
Beacon Enterprise
Solutions Group, Inc., a Nevada corporation (the
“Company”), hereby establishes this long term incentive
plan to be named the Beacon Solutions 2008 Long Term Incentive Plan
for certain employees of the Group (as defined below) and
non-employee directors of the Company. The purpose of the Plan is
to encourage certain employees of the Group and non-employee
directors of the Company to acquire Stock of the Company or to
receive monetary payments based on the value of such stock or based
upon achieving certain goals on a basis mutually advantageous to
such employees and non-employee directors and the Company and thus
provide an incentive for continuation of the efforts of employees
and non-employee directors for the success of the Company and for
continuity of service.
Section 2. Definitions.
Whenever used
herein, the following terms shall have the respective meanings set
forth below:
|
|
(a)
|
Act means the Securities Exchange Act of 1934, as
amended from time to time.
|
|
|
|
|
(b)
|
Award means any Option, Stock Appreciation Right,
Restricted Stock or Performance Award granted under the
Plan.
|
|
|
|
|
(c)
|
Base
Price means, in the case
of an Option or a Stock Appreciation Right, 100% of the Fair Market
Value of a share of Stock on the date of grant of such option or
right.
|
|
|
|
|
(d)
|
Board means the Board of Directors of the
Company.
|
|
|
|
|
(e)
|
Cause means with respect to a Participant’s
Termination of Employment, the following: (a) in the case where
there is no employment agreement, consulting agreement, change in
control agreement or similar agreement in effect between the Group
and the Participant at the time of the grant of the Award (or where
there is such an agreement but it does not define
“cause” (or words of like import)), termination due to
a Participant’s insubordination, dishonesty, fraud,
incompetence, moral turpitude, willful misconduct, refusal to
perform his or her duties or responsibilities for any reason other
than illness or incapacity or materially unsatisfactory performance
of his or her duties for the Group, as determined by the Committee
in its sole discretion; or (b) in the case where there is an
employment agreement, consulting agreement, change in control
agreement or similar agreement in effect between the Group and the
Participant at the time of the grant of the Award that defines
“cause” (or
|
1
|
|
|
words of like
import), “cause” as defined under such agreement;
provided, however, that with regard to any agreement under which
the definition of “cause” only applies on occurrence of
a change in control, such definition of “cause” shall
not apply until a change in control actually takes place and then
only with regard to a termination thereafter. With respect to a
Participant’s Termination of Directorship,
“cause” means an act or failure to act that constitutes
cause for removal of a director under applicable Nevada
law.
|
|
|
|
|
(f)
|
Change of
Control is defined in
Section 14.
|
|
|
|
|
(g)
|
Code means the Internal Revenue Code of 1986, as
amended and in effect from time to time.
|
|
|
|
|
(h)
|
Committee means a committee or subcommittee of the Board
that shall administer the Plan, which committee or subcommittee
shall consist of no fewer than two members, each of whom shall be a
“nonemployee director” within the meaning of Rule 16b-3
(or any successor rule or regulation) promulgated under the Act, an
“outside director” within the meaning of Section
162(m)(4)(C)(i) of the Code and to the extent required by
applicable stock exchange rules, “independent” as
defined under applicable stock exchange rules. With respect to the
application of the Plan to Non-Employee Directors, the Committee
shall refer to the Board. Notwithstanding the foregoing, if, and to
the extent that no Committee exists that has the authority to
administer the Plan, the functions of the Committee shall be
exercised by the Board and all references herein to the Committee
shall be deemed to be references to the Board.
|
|
|
|
|
(i)
|
Covered
Employee means a
Participant who, as of the date of vesting and/or payout of an
Award, as applicable, is one of the group of “covered
employees,” as defined in the regulations promulgated under
Section 162(m) of the Code, or any successor statute.
|
|
|
|
|
(j)
|
Disability means permanent and total disability as defined
in Section 22(e)(3) of the Code, as determined by the Committee in
good faith, upon receipt of and in reliance on sufficient competent
medical advice. Notwithstanding the foregoing, for Awards that are
subject to Section 409A of the Code, Disability shall mean that a
Participant is disabled under Section 409A(a)(2)(C)(i) of the
Code.
|
|
|
|
|
(k)
|
Employee means a salaried employee (including officers
and directors who are also employees) of any member of the
Group.
|
|
|
|
|
(l)
|
Fair Market
Value means, for any
particular date, (i) for any period during which the Stock shall
not be listed for trading on a national securities exchange, but
when prices for the Stock shall be reported on an automated
quotation system sponsored by the National Association of
Securities Dealers, Inc., the last transaction price per share as
quoted by such system, (ii) for any period during which the Stock
shall be listed for
|
2
|
|
|
trading on a
national securities exchange, the closing price per share of Stock
on such exchange as of the close of such trading day; or (iii) if
the Common Stock is not readily tradable on an established
securities market as determined under Section 409A of the Code or
any regulations or other guidance promulgated thereunder, a value
determined by the reasonable application of a reasonable valuation
method in accordance with Section 409A of the Code or any
regulations or other guidance promulgated thereunder. If the Fair
Market Value is to be determined as of a day when the securities
markets are not open, the Fair Market Value on that day shall be
the Fair Market Value on the preceding day when the markets were
open.
|
|
|
|
|
(m)
|
Group means the Company, its Parent and every
Subsidiary of the Company.
|
|
|
|
|
(n)
|
Non-Employee
Director means a director
of the Company who is not an active employee of the
Group.
|
|
|
|
|
(o)
|
Option means the right to purchase Stock at the Base
Price for a specified period of time. For purposes of the Plan, an
Option may be an “Incentive Stock Option” within the
meaning of Section 422 of the Code, or a “Nonqualified Stock
Option.”
|
|
|
|
|
(p)
|
Parent means any parent corporation of the Company
within the meaning of Section 424(e) of the Code.
|
|
|
|
|
(q)
|
Participant means any Employee or Non-Employee Director
designated by the Committee to participate in the Plan.
|
|
|
|
|
(r)
|
Performance
Award means a right to
receive awards of Stock and such other awards (including awards of
cash) that are valued in whole or in part by reference to, or are
payable in or otherwise based on, Stock or performance during a
Performance Period.
|
|
|
|
|
(s)
|
Performance-Based Exception
means the performance-based
exception from the tax deductibility limitations of Section 162(m)
of the Code.
|
|
|
|
|
(t)
|
Performance
Period means a period of
not more than ten years established by the Committee during which
certain performance goals set by the Committee are to be
met.
|
|
|
|
|
(u)
|
Period of
Restriction means the
period during which a grant of Restricted Stock is restricted
pursuant to Section 11 of the Plan.
|
|
|
|
|
(v)
|
Reporting
Person means a person
subject to Section 16 of the Act.
|
|
|
|
|
(w)
|
Restricted
Stock means Stock granted
pursuant to Section 11 of the Plan, but a share of such Stock shall
cease to be Restricted Stock when the
|
3
|
|
|
conditions to
and limitations on transferability under Section 11 have been
satisfied or have expired, respectively.
|
|
|
|
|
(x)
|
Retirement means a Termination of Employment without Cause
at or after age 65 or such earlier date after age 50 as may be
approved by the Committee with regard to such Participant and as
stated in the applicable Award Agreement. With respect to a
Participant’s Termination of Directorship, Retirement means
the failure to stand for reelection (other than a Termination for
Cause) on or after a Participant has attained age 65 or such
earlier date after age 50 as may be approved by the Board with
regard to such Participant.
|
|
|
|
|
(y)
|
Stock means the authorized and unissued shares of the
Company’s common stock, pat value $.001 per share.
|
|
|
|
|
(z)
|
Stock
Appreciation Right or
SAR means the right to receive cash or a number of shares of
Stock representing the Fair Market Value of a share of Stock at the
date of exercise over the Base Price. In the case of a Stock
Appreciation Right which is granted in conjunction with an Option,
the Base Price shall be the Option exercise price.
|
|
|
|
|
(aa)
|
Subsidiary means a subsidiary corporation as defined in
Section 424(f) of the Code.
|
|
|
|
|
(bb)
|
Ten Percent
Stockholder means a
person owning stock possessing more than 10% of the total combined
voting power of all classes of stock of the Company, its
Subsidiaries or its Parent.
|
|
|
|
|
(cc)
|
Termination
of Directorship means
that the Non-Employee Director has ceased to be a director of the
Company. In the event that a Non-Employee Director becomes an
Employee or a consultant upon the termination of his or her
directorship, no Termination of Directorship shall be deemed to
occur until such time as such Non-Employee Director is no longer an
Employee, consultant or Non-Employee Director.
|
|
|
|
|
(dd)
|
Termination
of Employment means a
termination of employment (for reasons other than a military or
personal leave of absence granted by the Company) of a Participant
from the Group. In the event that an Employee becomes a consultant
or a Non-Employee Director upon the termination of his or her
employment, no Termination of Employment shall be deemed to occur
until such time as such Employee is no longer an Employee, a
consultant or a Non-Employee Director. Notwithstanding the
foregoing, the Committee may otherwise define Termination of
Employment in the Award agreement.
|
|
|
|
|
(ee)
|
Window
Period means the third to
the twelfth business day following the release for publication of
the Company’s quarterly or annual earnings report.
|
4
Section 3. Administration.
The
Plan will be administered by the Committee. The determinations of
the Committee shall be made in accordance with their judgment as to
the best interests of the Company and its stockholders and in
accordance with the purpose of the Plan. A majority of members of
the Committee shall constitute a quorum, and all determinations of
the Committee shall be made by a majority of its members. Any
determination of the Committee under the Plan may be made without
notice or meeting of the Committee, by a writing signed by a
majority of the Committee members. Determinations, interpretations,
or other actions made or taken by the Committee pursuant to the
provisions of the Plan shall be final and binding and conclusive
for all purposes and upon all persons whomsoever.
Subject to
compliance with Code Section 409A, the Committee may offer to buy
out an Award previously granted, based on such terms and conditions
as the Committee shall establish and communicate to the Participant
at the time such offer is made.
The
Committee may designate employees of the Group and professional
advisors to assist the Committee in the administration of the Plan
and, to the extent permitted by applicable law and applicable
exchange rules, may grant authority to officers to grant Awards
and/or execute agreements or other documents on behalf of the
Committee.
Section 4. Shares Reserved Under the
Plan.
There is hereby
reserved for issuance under the Plan an aggregate of 1,000,000
shares of Stock (subject to any increase or decrease pursuant to
Section 13); provided, however, that notwithstanding the foregoing,
no more than 200,000 shares of Stock (subject to any increase or
decrease pursuant to Section 13) whether subject to Options, Stock
Appreciation Rights, Awards of Restricted Stock or Performance
Awards denominated in shares of Stock may be granted in any one
fiscal year to any one single Participant and the maximum aggregate
payout (determined as of the end of the applicable performance
period) with respect to Awards of Performance Shares granted in any
one fiscal year to any one single Participant shall not exceed
$500,000 in value.
Stock underlying
outstanding Options, Stock Appreciation Rights or Performance
Awards will be counted against the Plan maximum while such Options
or Performance Awards are outstanding. Shares underlying expired,
canceled or forfeited Awards (except Restricted Stock) may be added
back to the Plan maximum, subject to the provisions of Section 10.
When the exercise price of an Option is paid by delivery of shares
of Stock, the number of shares available for issuance under the
Plan shall continue to be reduced by the gross (rather than the
net) number of shares issued pursuant to such exercise, regardless
of the number of shares surrendered in payment. Restricted Stock
issued pursuant to the Plan will be counted against the Plan
maximum while outstanding even while subject to restrictions and
following forfeiture.
If
any Award is cancelled (or is amended in a way that is treated as a
cancellation), the shares related to the cancelled Award shall
count against the above maximum limitations for the applicable
fiscal year.
5
Section 5. Participants.
Participants will
consist of such Employees of the Group as the Committee in its sole
discretion determines have a major impact on the success and future
growth and profitability of the Company and Non-Employee Directors.
Designation of a Participant in any year shall not require the
Committee to designate such person to receive an Award in any other
year or to receive the same type or amount of Award as granted to
the Participant in any other year or as granted to any other
Participant in any year. The Committee shall consider such factors
as it deems pertinent in selecting Participants and in determining
the type and amount of their respective Awards. Only Employees of
the Group may be granted Incentive Stock Options under the
Plan.
Section 6. Types of Awards.
The
following Awards may be granted under the Plan: (a) Incentive Stock
Options; (b) Nonqualified Stock Options; (c) Stock Appreciation
Rights; (d) Restricted Stock; and (e) Performance Awards; all as
described below. Except as specifically limited herein, the
Committee shall have complete discretion in determining the type
and number of Awards to be granted to any Participant, and the
terms and conditions which attach to each Award, which terms and
conditions need not be uniform as between different participants.
All Awards shall be evidenced in writing and shall be subject to
the terms and conditions of the Plan.
Section 7. Date of Granting
Awards.
All
Awards granted under the Plan shall be granted as of an Award date,
as determined by the Committee. Promptly after each Award date, the
Company shall notify the Participant of the grant of the Award, and
shall deliver to the Participant an Award agreement, duly executed
by and on behalf of the Company, with the request that the
Participant execute and return the Award agreement within thirty
days (or such other period determined by the Committee) after the
date of delivery by the Company of the Award agreement to the
Participant. If the Participant shall fail to execute and return
the written Award agreement within such period, his or her Award
shall be automatically terminated, except that if the Participant
dies within such period such Award agreement shall be effective
notwithstanding the fact that it has not been signed prior to
death.
Section 8. Incentive Stock
Options.
Incentive Stock
Options shall consist of options to purchase shares of Stock at
purchase prices not less than 100% (or, in the case of an Incentive
Stock Option granted to a Ten Percent Stockholder, 110%) of the
Fair Market Value of a share of Stock on the date of grant of the
Incentive Stock Option. The purchase price may be paid by check or,
in the discretion of the Committee, by the delivery of shares of
Stock then owned by the Participant, by cashless exercise or such
other method acceptable to the Committee. Unless otherwise provided
in the Award agreement, Incentive Stock Options will be exercisable
not earlier than six months and not later than ten years (or, five
years in the case of an Incentive Stock Option granted to a Ten
Percent Stockholder) after the date
6
they are granted and, except as
provided below, will terminate three months after Termination of
Employment for any reason other than death or Disability. Unless
otherwise provided in the Award agreement, in the event Termination
of Employment occurs as a result of death or Disability, the vested
portion of the Option will be exercisable for 12 months after such
termination. Unless otherwise provided in the Award agreement, if
the Participant dies within 12 months after Termination of
Employment by reason of Disability, then the period of exercise
following death with respect to then vested Options shall be the
remainder of the 12-month period, or three months, whichever is
longer. Unless otherwise provided in the Award agreement, if the
Participant dies within three months after Termination of
Employment for any other reason, then the period of exercise
following death with respect to then vested Options shall be three
months. Notwithstanding anything herein to the contrary, in no
event shall any Incentive Stock Option be exercised more than ten
years after its grant (or, five years in the case of an Incentive
Stock Option granted to a Ten Percent Stockholder). The aggregate
Fair Market Value (determined as of the time an Option is granted)
of the Stock with respect to which an Incentive Stock Option is
exercisable for the first time during any calendar year (under all
option plans of the Group) shall not exceed $100,000 per
Participant. Unless provided otherwise in the Award agreement,
Incentive Stock Options that are not exercisable at the time of
Termination of Employment for any reason shall immediately
terminate. Unless provided otherwise in the Award agreement, upon a
Participant’s Termination of Employment for Cause all
outstanding Incentive Stock Options (whether vested or unvested)
shall immediately terminate.
Section 9. Nonqualified Stock
Options.
Nonqualified Stock
Options shall consist of nonqualified options to purchase shares of
Stock at purchase prices not less than 100% of the Fair Market
Value of a share of Stock on the date of grant of the Nonqualified
Stock Option. The purchase price may be paid by check or, in the
discretion of the Committee, by the delivery of shares of Stock
then owned by the Participant, by cashless exercise or such other
method acceptable to the Committee. Notwithstanding anything herein
to the contrary, Nonqualified Stock Options will be exercisable as
provided in the Award agreement except that such options will not
be exercisable later than ten years after the date they are
granted. Unless provided otherwise in the Award agreement,
Nonqualified Stock Options that are not exercisable at the time of
Termination of Employment or Termination of Directorship for any
reason shall immediately terminate. Unless provided otherwise in
the Award agreement, upon a Participant’s Termination of
Employment or Termination of Directorship for Cause all outstanding
Nonqualified Stock Options (whether vested or unvested) shall
immediately terminate. Unless provided otherwise in the Award
agreement, Nonqualified Stock Options that are exercisable at the
time of Termination of Employment or Termination of Directorship
shall terminate three months after Termination of Employment or
Termination of Directorship for any reason other than death,
Retirement or Disability. In the event Termination of Employment or
Termination of Directorship occurs as a result of death, Retirement
or Disability, the vested portion of the Nonqualified Stock Options
will remain exercisable for 12 months after such termination unless
provided otherwise in the Award agreement. If the Participant dies
during any post-termination exercise period, then the period of
exercise following death shall be the remainder of the applicable
post-termination exercise period, or three months,
7
whichever is longer unless
provided otherwise in the Award agreement but not longer than the
end of the original term of the Option. The Committee shall have
the right to determine at the time the Option is granted whether
shares issued upon exercise of a Nonqualified Stock Option shall be
subject to restrictions, and if so, the nature of the
restrictions.
Section 10. Stock Appreciation
Rights.
Stock Appreciation
Rights may be granted which, at the discretion of the Committee,
may be exercised (1) in lieu of exercise of an Option, (2) in
conjunction with the exercise of an Option, (3) upon lapse of an
Option, (4) independent of an Option, or (5) each of the above in
connection with a previously awarded Option under the Plan. SARs
issued to Reporting Persons shall be held for at least six months
prior to exercise. If the Option referred to in (1), (2) or (3)
above qualified as an Incentive Stock Option pursuant to Section
422 of the Code, the related SAR shall comply with the applicable
provisions of the Code and the regulations issued thereunder. At
the time of grant, the Committee may impose such conditions on
exercise of an SAR (including, without limitation, the right of the
Committee to limit the time of exercise to specified periods) as
may be required to satisfy the requirements of Rule 16b-3 (or any
successor rule), under the Act. Settlement for SARs shall be made
in Stock. Unless otherwise provided in the Award agreement, the
following will apply upon exercise of an SAR:
|
|
(a)
|
Exercise of
SARs in Lieu of Exercise of Options . SARs exercisable in lieu of Options may be
exercised for all or part of the shares of Stock subject to the
related Option upon the exercise of the right to exercise an
equivalent number of Options. A SAR may be exercised only with
respect to the shares of Stock for which its related Option is then
exercisable. Upon exercise of a SAR in lieu of exercise of an
Option, shares of Stock equal to the number of SARs exercised shall
no longer be available for Awards under the Plan.
|
|
|
|
|
(b)
|
Exercise of
SARs in Conjunction with Exercise of Options
. SARs exercisable in conjunction
with the exercise of Options shall be deemed to be exercised upon
the exercise of the related Options, and shares of Stock equal to
the sum of the number of shares acquired by exercise of the Option
plus the number of SARs exercised shall no longer be available for
Awards under the Plan.
|
|
|
|
|
(c)
|
Exercise of
SARs Upon Lapse of Options . SARs exercisable upon lapse of Options shall
be deemed to have been exercised upon the lapse of the related
Options as to the number of shares of Stock subject to the Options.
Shares of Stock equal to the number of SARs deemed to have been
exercised shall not be available again for Awards under the
Plan.
|
|
|
|
|
(d)
|
Exercise of
SARs Independent of Options . SARs exercisable independent of Options may be
exercised upon whatever terms and conditions the Committee, in its
sole discretion, imposes upon the SARs, and shares of Stock equal
to the number of SARs exercised shall no longer be
available
|
8
|
|
|
for Awards
under the Plan. The exercise price of such a SAR shall be equal to
the Fair Market Value of the Stock on the date of grant.
|
Section 11. Restricted Stock.
Restricted Stock
shall consist of Stock issued or transferred under the Plan (other
than upon exercise of Options or as Performance Awards) or as a
bonus. Unless otherwise provided in the Award agreement, in the
case of any Restricted Stock:
|
|
(a)
|
The purchase
price, if any, will be determined by the Committee. The purchase
price for shares of Restricted Stock may be zero to the extent
permitted by applicable law, and, to the extent not so permitted,
such purchase price may not be less than par value.
|
|
|
|
|
(b)
|
Restricted
Stock may be subject to (i) restrictions on the sale or other
disposition thereof, provided, however, that Restricted Stock
granted to a Reporting Person shall, in addition to any other
restrictions thereon, not be sold or disposed of for not less than
six (6) months following the date of grant; (ii) rights of the
Company to reacquire such Restricted Stock at the purchase price,
if any, originally paid therefor upon a Termination of Employment
or Termination of Directorship within specified periods, (iii)
representation by the Employee or Non-Employee Director that he or
she intends to acquire Restricted Stock for investment and not for
resale, and (iv) such other restrictions, conditions and terms as
the Committee deems appropriate.
|
|
|
|
|
(c)
|
The Participant
shall have all of the rights of a holder of Stock during the Period
of Restriction, including, without limitation, the right to vote
the Stock, the right to receive any dividends, and, subject to and
conditioned upon the full vesting of shares of Restricted Stock,
the right to tender such shares.
|
|
|
|
|
(d)
|
The Committee
shall determine whether Restricted Stock is to be delivered to the
Participant with an appropriate legend imprinted on the certificate
or if the shares are to be deposited in escrow pending removal of
the restrictions. If and when the Period of Restriction expires
without a prior forfeiture of the Restricted Stock subject to such
Period of Restriction, the certificates for such shares shall be
delivered to the Participant. All legends shall be removed from
said certificates at the time of delivery to the Participant except
as otherwise required by applicable law.
|
|
|
|
|
(e)
|
The Committee
may require that any stock certificates evidencing Restricted Stock
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 duly
signed stock power, endorsed in blank, relating to the Stock
covered by such Award.
|
9
|
|
(f)
|
The Committee
may condition the grant or vesting of Restricted Stock upon the
attainment of specified performance goals (including the goals set
forth on Exhibit A) as the Committee may determine in its sole
discretion, including to comply with the requirements of Section
162(m) of the Code. Unless and until the Committee determines that
Restricted Stock granted to a Covered Employee need not comply with
the Performance-Based Exception, one or more of the performance
goals set forth on Exhibit A shall apply.
|
|
|
|
|
(g)
|
The Participant
shall not be permitted to transfer shares of Restricted Stock
awarded under the Plan during a period set by the Committee (the
“Period of Restriction”) commencing with the date of
such Award, as set forth in the Award agreement or grant letter,
and such agreement or grant letter shall set forth a vesting
schedule and any events that would accelerate vesting of the shares
of Restricted Stock. Within these limits, based on service,
attainment of performance goals and/or such other factors or
criteria as the Committee may determine in its sole discretion, the
Committee may provide for the lapse of such restrictions in
installments in whole or in part, or may accelerate the vesting of
all or any part of any Award of Restricted Stock and/or waive the
deferral limitations for all or any part of any Award of Restricted
Stock.
|
|
|
|
|
(h)
|
Unless and
until the Committee determines that Restricted Stock granted to a
Covered Employee need not comply with the Performance-Based
Exception, any performance goal and the vesting percentage must be
established in writing by the Committee prior to the beginning of
the applicable fiscal year or at such later date as otherwise
determined by the Committee and while the outcome of the
performance goals is substantially uncertain (but in no event later
than after 25% of the period of service to which the performance
goal relates has elapsed). Such performance goals may incorporate
provisions for disregarding (or adjusting for) changes in
accounting methods, corporate transactions (including, without
limitation, dispositions and acquisitions) and other similar type
events or circumstances.
|
|
|
|
|
(i)
|
Upon a
Participant’s Termination of Employment or Termination of
Directorship for any reason during the relevant Period of
Restriction, all Restricted Stock still subject to restriction will
vest or be forfeited in accordance with the terms and conditions
established by the Committee at grant or thereafter.
|
Section 12. Performance Awards.
The Committee is authorized to
grant to Participants Performance Awards that are payable in,
valued in whole or in part by reference to, or otherwise based on
or related to shares of Stock, including but not limited to, Stock
awarded purely as a bonus and not subject to any restrictions or
conditions, shares of Stock in payment of the amounts due under an
incentive or performance plan sponsored or maintained by the
Company, stock
10
equivalent units, restricted
stock units, deferred stock units, and Awards valued by reference
to book value of Stock.
Stock issued on a bonus basis
under this Section may be issued for no cash consideration; Stock
purchased pursuant to a purchase right awarded under this Section
shall be priced, as determined by the Committee in its sole
discretion.
For a Performance Award that the
Committee determines shall not be designed to comply with the
Performance Based Exception, the performance goals shall be
established by the Committee. Unless and until the Committee
determines that a Performance Award to a Covered Employee shall not
be designed to comply with the Performance-Based Exception, any
performance goal related to a Performance Award must be established
in writing by the Committee prior to the beginning of the
applicable fiscal year or at such later date as otherwise
determined by the Committee and while the outcome of the
performance goals is substantially uncertain (but in no event later
than after 25% of the period of service to which the performance
goal relates has elapsed).
Any Performance Award and any
Stock covered by any such Award shall vest or be forfeited to the
extent so provided in the Award agreement, as determined by the
Committee, in its sole discretion.
Unless otherwise provided in the
Award agreement, in the event the minimum corporate goal is not
achieved at the conclusion of the Performance Period, no payment
shall be made to the Participant. Actual payment of the Performance
Award earned shall be in cash or in Stock or in a combination of
both, in a single sum or in periodic installments, all as the
Committee in its sole discretion determines. If Stock is used, the
Participant shall not have the right to vote and receive dividends
until the goals are achieved and the actual shares are issued. In
the event a Reporting Person received a Performance Award which
includes Stock, such stock shall not be sold or disposed of for six
(6) months following the date of issuance pursuant to such award.
In the event a Performance Award is paid in cash instead of Stock,
the number of shares reserved for issuance hereunder and the number
of shares which may be granted in the form of Restricted Stock or
Performance Awards shall be reduced as if shares had been issued
The Committee shall certify in writing that any performance goals
and any other material terms of a Performance Award have been
achieved prior to the actual payment of the Performance Award.
Unless otherwise provided in the Award agreement, amounts equal to
any dividends declared during the Performance Period with respect
to the number of shares of Stock covered by a Performance Share
will not be paid to the Participant.
Subject to the applicable
provisions of the Award agreement and the Plan, upon a
Participant’s Termination of Employment or Termination of
Directorship for any reason during the Performance Period, the
Performance Awards in question will vest or be forfeited in
accordance with the terms and conditions established by the
Committee at grant.
Based on service, performance
and/or such other factors or criteria, if any, as the Committee may
determine, the Committee may, at or after grant, accelerate the
vesting of all or any part of any Performance Award and/or waive
the deferral limitations for all or any part of such
Award.
11
Section 13. Adjustment
Provisions.
|
|
(a)
|
If the Company
shall at any time change the number of issued shares of Stock
without new consideration to the Company (such as by stock
dividends or stock splits), the total number of shares reserved for
issuance under the Plan, the maximum number of shares available to
a particular Participant, and the number of shares covered by each
outstanding Award (and the exercise or purchase price thereof),
shall be adjusted by the Committee to prevent substantial dilution
or enlargement of the rights granted to, or available for,
Participants under the Plan. Awards may also contain provisions for
their continuation or for other equitable adjustments after changes
in the Stock resulting from reorganization, sale, merger,
consolidation, issuance of stock rights or warrants, or similar
occurrence.
|
|
|
|
|
(b)
|
Notwithstanding
any other provision of the Plan, and without affecting the number
of shares reserved or available hereunder, the Board may authorize
the equitable adjustment of benefits in connection with any merger,
consolidation, acquisition of property or stock, or reorganization
upon such terms and conditions as it may deem
appropriate.
|
Section 14. Change of Control.
