Exhibit 10.1
COVANTA HOLDING CORPORATION
EQUITY AWARD PLAN
FOR EMPLOYEES AND OFFICERS,
as amended by the
Board of Directors through
February 26, 2009
TABLE OF CONTENTS
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Page
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Purpose; Definitions
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1
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“Administrator”
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1
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“Affiliate”
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1
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“Applicable
Laws”
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1
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“Award”
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1
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“Award
Agreement”
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1
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“Board”
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1
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“Cause”
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1
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“Code”
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1
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“Committee”
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1
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“Common
Stock”
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1
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“Company”
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1
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“Director”
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1
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“Disability”
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1
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“Effective
Date”
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2
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“Employee”
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2
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“Exchange
Act”
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2
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“Fair Market
Value”
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2
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“Incentive Stock
Option”
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2
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“Mature
Shares”
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2
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“Non-Qualified Stock
Option”
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2
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“Officer”
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2
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“Option”
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2
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“Participant”
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2
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“Performance
Award”
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2
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“Performance
Share”
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2
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“Performance
Unit”
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2
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“Plan”
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2
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“Recipient”
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2
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“Restricted
Stock”
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3
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“Restricted Stock
Unit”
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3
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“Retirement”
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3
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“Service
Provider”
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3
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“Stock Appreciation
Right”
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3
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Share
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3
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“Subsidiary”
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3
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Stock Subject to the Plan
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3
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Administration of the
Plan
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3
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Administration
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3
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Powers of the Committee
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4
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Eligibility for Awards
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4
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Limitations on Options
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4
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Term of Plan
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5
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Term of Option
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5
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Option Exercise Price and
Consideration
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5
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Exercise Price
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5
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Waiting Period and Exercise
Dates
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5
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Form of Consideration
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5
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i
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Page
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Exercise of Option
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6
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Procedure for Exercise; Rights as a
Stockholder
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6
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Termination of Relationship as
Employee or Officer
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6
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Disability of Recipient
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7
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Death of Recipient
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7
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Retirement of Recipient
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7
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Cash out Provisions
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8
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Restricted Stock and Restricted
Stock Units
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8
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Awards of Restricted Stock and
Restricted Stock Units
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8
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Awards and Certificates
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8
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Terms and Conditions
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9
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Other Provisions
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9
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Deferral of Restricted Stock
Award
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10
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Other Awards
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10
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Stock Appreciation Right
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10
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Performance Award
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10
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Performance Shares
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11
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Performance Units
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11
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Other Stock-Based Awards
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11
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Non-Transferability of
Awards
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11
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Adjustments Upon Changes in
Capitalization
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11
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Date of Grant
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12
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Term; Amendment and Termination of
the Plan
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12
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Amendment and Termination
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12
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Stockholder Approval
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12
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Effect of Amendment or
Termination
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12
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Conditions Upon Issuance of
Shares
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12
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Legal Compliance
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12
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Withholding Obligations
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12
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Inability to Obtain
Authority
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12
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Grants Exceeding Allotted
Shares
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13
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General Provisions
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13
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Term of Plan
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13
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No
Contract of Employment
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13
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Severability
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13
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Governing Law
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13
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Dividends
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13
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Prohibition on Loans to
Participants
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13
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Performance-Based
Compensation
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13
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Unfunded Status of Plan
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14
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Liability of Committee
Members
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14
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ii
COVANTA HOLDING CORPORATION EQUITY
AWARD PLAN FOR
EMPLOYEES AND OFFICERS
Section 1.
Purpose;
Definitions .
The purposes of this
Plan are to promote the interests of the Company (including any
Subsidiaries and Affiliates) and its stockholders by using equity
interests in the Company to attract, retain and motivate its
management and other eligible persons and to encourage and reward
their contributions to the Company’s performance and
profitability.
The following
capitalized terms shall have the following respective meanings when
used in this Plan:
(a)
“Administrator” means the Board or any one of
its Committees as shall be administering the Plan, in accordance
with Section 3 of the Plan.
(b)
“Affiliate” means any corporation or other
entity controlled by the Company and designated by the Committee as
such.
(c)
“Applicable Laws” means the legal requirements
relating to the administration of plans providing one or more of
the types of Awards described in the Plan and the issuance of
Shares thereunder pursuant to U.S. state corporate laws,
U.S. federal and state securities laws, the Code and the
applicable laws of any foreign country or jurisdiction where Awards
are, or will be, granted under the Plan.
(d)
“Award” means a grant of an Option, Restricted
Stock, Stock Appreciation Right, Restricted Stock Unit, Performance
Share, Performance Unit or other stock-based Award under the Plan,
all on a stand alone, combination or tandem basis, as described in
or granted under the Plan.
(e)
“Award Agreement” means a written agreement
between the Company and a Participant evidencing the terms and
conditions of an individual Award. The Award Agreement is subject
to the terms and conditions of the Plan.
(f)
“Board” means the Board of Directors of the
Company.
(g)
“Cause” shall mean, unless otherwise determined
by the Committee, (i) the conviction of the Recipient for
committing, or entering a plea of nolo contendere by the Recipient
with respect to, a felony under federal or state law or a crime
involving moral turpitude; (ii) the commission of an act of
personal dishonesty or fraud involving personal profit in
connection with the Recipient’s employment by the Company;
(iii) the willful misconduct, gross negligence or deliberate
failure on the part of the Recipient to perform his or her
employment duties with the Company in any material respect; or
(iv) the failure to comply with Company policies or agreements
with the Company, in any material respect.
(h)
“Code” means the Internal Revenue Code of 1986,
as amended or replaced from time to time.
(i)
“Committee” means the Compensation Committee of
the Board, or another committee appointed by the Board to
administer the Plan, in accordance with Section 3 of the
Plan.
(j)
“Common Stock” means the common stock, par value
$.10, of the Company.
(k)
“Company” means Covanta Holding Corporation, a
Delaware corporation.
(l)
“Director” means a director serving on the Board
of the Company who is not also an employee of the Company or any
Subsidiary or Affiliate thereof; who has not been an employee of
the Company during the taxable year or an officer of the Company at
any time; and who has been duly elected to the Board by the
stockholders of the Company or by the Board under applicable
corporate law. Neither service as a Director nor payment of a
director’s fee by the Company shall, without more, constitute
“employment” by the Company.
(m)
“Disability” means permanent and total
disability as determined under procedures established by the
Committee for the purposes of the Plan; provided, however,
that (i) with respect to an Incentive Stock Option, such
Disability must also fall within the meaning of “permanent
and total disability” as defined in Section 22(e)(3) of
the Code, and (ii) with respect to all Awards, to the extent
required by Section 409A of the Code, such Disability must
also fall within the meaning of “disability” as defined
in Section 409A of the Code.
1
(n)
“Effective Date” means the date described in
Section 18(a) of the Plan.
(o)
“Employee” means any common-law employee of the
Company or a Subsidiary or Affiliate of the Company, including
Officers employed by the Company or any Subsidiary or Affiliate of
the Company. Neither service as a Director nor payment of a
director’s fee by the Company shall, without more, constitute
“employment” by the Company.
(p)
“Exchange Act” means the Securities Exchange Act
of 1934, as amended from time to time, and any successor thereto,
or the rules and regulations promulgated thereunder.
(q) “Fair
Market Value” means, as of any date, the value of Common
Stock determined as follows:
(i) If the Common
Stock is listed on the American Stock Exchange Composite Tape, its
Fair Market Value shall be either the mean of the highest and
lowest reported sale prices of the stock (or, if no sales were
reported, the average of the closing bid and asked price) or the
last reported sales price of the stock, as determined by the
Committee in its discretion, on the American Stock Exchange for any
given day or, if not listed on such exchange, on any other national
securities exchange on which the Common Stock is listed or on the
NASDAQ Stock Market as reported in The Wall Street Journal or such
other source as the Committee deems reliable;
(ii) If the Common
Stock is regularly quoted by a recognized securities dealer but
selling prices are not reported, the Fair Market Value of a Share
of Common Stock shall be either the mean between the high bid and
low asked prices or the last asked price, as determined by the
Committee for the Common Stock on any given day, as reported in The
Wall Street Journal or such other source as the Committee deems
reliable;
(iii) In the
absence of an established regular public market for the Common
Stock, the Fair Market Value shall be determined in good faith by
the Committee pursuant to a reasonable application of a reasonable
valuation method in accordance with the provisions of
Section 409A of the Code and the regulations thereunder and,
with respect to an Incentive Stock Option, in accordance with such
regulations as may be issued under the Code; provided that
with respect to an individual described in Section 8(a)(i)(A)
hereof, this Section 1(q)(iii) shall not be available if the
resulting price fails to represent the Fair Market Value of the
stock on the date of grant as determined in accordance with
Sections 1(q)(i) or (ii) above.
(r)
“Incentive Stock Option” means an Option
intended to qualify as an incentive stock option within the meaning
of Section 422 of the Code and the regulations promulgated
thereunder.
(s)
“Mature Shares” means any shares held by the
Recipient for a minimum period of 6 months.
(t)
“Non-Qualified Stock Option” means any Option
that is not an Incentive Stock Option.
(u)
“Officer” unless otherwise noted herein, means a
person who is an officer of the Company or a Subsidiary or
Affiliate.
(v)
“Option” means a stock option granted pursuant
to the Plan.
(w)
“Participant” means an Employee or Officer who
holds an outstanding Award.
(x)
“Performance Award” means an Award granted
pursuant to Section 11(b) of the Plan.
(y) “Performance Share
” means an Award granted pursuant to
Section 13(c) of the Plan.
(z)
“Performance Unit ” means an Award
granted pursuant to Section 13(d) of the Plan.
(aa)
“Plan” means this Equity Award Plan.
(bb)
“Recipient” means an Employee or Officer who
holds an outstanding Award.
(cc)
“Restricted Stock” means shares of Common Stock
acquired pursuant to an Award granted pursuant to Section 10
of the Plan.
2
(dd)
“Restricted Stock Unit” means a notional account
established pursuant to an Award granted pursuant to
Section 10 of the Plan that is (i) valued solely by
reference to shares of Common Stock, (ii) subject to
restrictions specified in the Award Agreement, and
(iii) payable in Common Stock, cash or a combination thereof.
The Restricted Stock Unit awarded to the Participant will vest
according to time-based or performance-based criteria specified in
the Award Agreement.
(ee)
“Retirement” means a Service Provider’s
retirement from active employment with the Company or any
Subsidiary or Affiliate as determined under a pension plan of the
Company or any Subsidiary or Affiliate applicable to the Service
Provider; or the Service Provider’s termination of employment
at or after age 55 under circumstances that the Committee, in
its sole discretion, deems equivalent to retirement.
(ff)
“Service Provider” means an Employee or Officer.
A Service Provider who is an Employee shall not cease to be a
Service Provider (i) during any leave of absence approved by
the Company; provided that , for purposes of Incentive Stock
Options, no such leave may exceed ninety (90) days, unless
reemployment upon expiration of such leave is guaranteed by statute
or contract; or (ii) as a result of transfers between
locations of the Company or between the Company and any Subsidiary
or Affiliate. If reemployment upon expiration of a leave of absence
approved by the Company is not guaranteed by statute or contract,
then on the 91st day of such leave any Incentive Stock Option
held by the Recipient shall cease to be treated as an Incentive
Stock Option and shall be treated for tax purposes as a
Non-Qualified Stock Option.
(gg)
“Stock Appreciation Right” means an Award
granted pursuant to Section 11(a) of the Plan.
(hh)
“Share” means a share of the Common Stock, as
adjusted in accordance with Section 14 of the Plan.
(ii)
“Subsidiary” means a “subsidiary
corporation,” whether now or hereafter existing, as defined
in Section 424(f) of the Code.
Section 2.
Stock
Subject to the Plan .
Subject to the
provisions of Section 14 of the Plan, the maximum aggregate
number of Shares available for grants of Awards under the Plan is
12,000,000 Shares. The maximum aggregate number of Incentive
Stock Options that may be issued under the Plan is 12,000,000. The
Shares subject to an Award under the Plan may be authorized but
unissued, or reacquired Common Stock or treasury shares. Except as
otherwise provided in Section 14 of the Plan, no Recipient may
be granted Awards in any calendar year with respect to more than
250,000 Shares of Restricted Stock or Restricted Stock Units
and Options to purchase 650,000 Shares, 250,000 Performance
Shares or $5.0 million of Performance Units. In determining
the number of Shares with respect to which a Recipient may be
granted an Award in any calendar year, any Award which is cancelled
shall count against the maximum number of Shares for which an Award
may be granted to a Recipient.
If an Award expires or
becomes unexercisable without having been exercised in full, the
unpurchased Shares which were subject thereto shall become
available for future grant or sale under the Plan (unless the Plan
has terminated); provided, however , that Shares that have
actually been issued under the Plan, whether upon exercise of an
Option or other Award, shall not be returned to the Plan and shall
not become available for future distribution under the Plan, except
that if Shares of Restricted Stock are repurchased by the Company
at their original purchase price, and the original Recipient of
such Shares did not receive any benefits of ownership of such
Shares, such Shares shall become available for future grant under
the Plan. For purposes of the preceding sentence, voting rights
shall not be considered a benefit of Share ownership.
Section 3.
Administration of the Plan .
(a)
Administration. The Plan shall be administered
by the Compensation Committee of the Board, or another Committee
that may be appointed by the Board for this purpose in accordance
with Applicable Laws. Such Committee shall consist of two or more
members of the Board each of whom is a “disinterested
person” as defined in Rule 16b-3(c)(2)(i) of the General
Rules and Regulations promulgated under the Exchange Act; and all
of whom, in addition, shall constitute “outside
directors” for purposes of granting “performance-based
compensation” awards under Treas. Reg. Sec. 1.162-27(e)(3)
and Section 162(m)(4)(C) of the Code. (Such “outside
directors” shall be appointed by, and may be removed by, such
Board.) Committee members shall serve for such term(s) as the Board
may determine, subject to removal by the Board at any time. The
Committee shall act by a majority of its members,
3
or if there are only two members of
such Committee, by unanimous consent of both members. If at any
time there is no Committee in office, the functions of the
Committee specified in the Plan shall be carried out by the
Board.
(b) Powers of
the Committee. Except for the terms and conditions
explicitly set forth in the Plan, the Committee shall have
exclusive authority, in its discretion, to determine the Fair
Market Value of the Common Stock in accordance with
Section 1(q) of the Plan and to determine all matters relating
to Awards under the Plan, including the selection of individuals to
be granted an Award, the type of Award, the number of shares of
Common Stock subject to an Award, all terms, conditions,
restrictions and limitations, if any, including, without
limitation, vesting, acceleration of vesting, exercisability,
termination, substitution, cancellation, forfeiture, or repurchase
of an Award and the terms of any instrument that evidences the
Award. The Committee shall also have exclusive authority to
interpret the Plan and its rules and regulations, and to make all
other determinations deemed necessary or advisable under or for
administering the Plan, subject to Section 16 of the Plan. All
actions taken and determinations made by the Committee pursuant to
the Plan shall be conclusive and binding on all parties involved or
affected. The Committee may, by a majority of its members then in
office, authorize any one or more of its members or any Officer of
the Company to execute and deliver documents on behalf of the
Committee, or delegate to an Officer of the Company the authority
to make decisions pursuant to Section 8 of the Plan,
provided that the Committee may not delegate its authority
with regard to the selection for participation of or the granting
of Awards to persons subject to Section 16 of the Exchange
Act.
(c) Compliance
with Section 409A of the Code. Awards granted
under this Plan shall be designed and administered in such a manner
that they are either exempt from the application of, or comply
with, the requirements of Section 409A of the Code and the
regulations thereunder. To the extent that the Committee determines
that any Award granted under the Plan is subject to
Section 409A of the Code, the Award Agreement shall
incorporate the terms and conditions necessary to avoid the
imposition of an additional tax under Section 409A of the Code
upon a Participant. Notwithstanding any other provision of the Plan
or any Award Agreement (unless the Award Agreement provides
otherwise with respect to this Section): (i) an Award shall
not be granted, deferred, accelerated, extended, paid out, settled,
substituted or modified under this Plan in a manner that would
result in the imposition of an additional tax under
Section 409A of the Code upon a Participant; and (ii) if
an Award constitutes “deferred compensation” within the
meaning of Section 409A of the Code, and if the Participant
holding the Award is a “specified employee” (as defined
in Section 409A of the Code, with such classification to be
determined in accordance with the methodology established by the
Company), no distribution or payment of any amount shall be made
before a date that is six months following the date of such
Participant’s “separation from service” (as
defined in Section 409A of the Code) or, if earlier, the date
of the Participant’s death. Although the Company intends to
administer the Plan so that Awards will be exempt from, or will
comply with, the requirements of Section 409A of the Code, the
Company does not warrant that any Award under the Plan will qualify
for favorable tax treatment under Section 409A of the Code or
any other provision of federal, state, local or non-United States
law. Neither the Company, its Subsidiaries and Affiliates, nor
their respective directors, officer, employees or advisers shall be
liable to any Participant (or any other individual claiming a
benefit through the Participant) for any tax, interest, or
penalties the Participant might owe as a result of the grant,
holding, vesting, exercise, or payment of any Award under the
Plan.
Section 4.
Eligibility for Awards .
Non-Qualified Stock
Options and other Awards may be granted to Employees and Officers
who are Employees. In addition, an Award may be granted to a person
who is offered employment by the Company, a Subsidiary or an
Affiliate, provided that such Award shall be immediately
forfeited if such person does not accept such offer of employment
within such time period as the Company, Subsidiary or Affiliate may
establish. If otherwise eligible, an Employee or Officer who has
been granted an Option or other Award may be granted additional
Options or other Awards.
Section 5.
Limitations on Options .
Each Option shall be
designated in the written Award Agreement as either an Incentive
Stock Option or a Non-Qualified Stock Option. However,
notwithstanding such designation, to the extent that the Options
are amended; the aggregate Fair Market Value of the Shares with
respect to which Incentive Stock Options are exercisable for the
first time by the Recipient during any calendar year (under all
plans of the Company and any Subsidiary or Affiliate)
4
exceeds $100,000; or other
circumstances exist that would cause the Options to lose their
status as Incentive Stock Options, such Options shall be treated as
Non-Qualified Stock Options. For purposes of this Section 5,
Incentive Stock Options shall be taken into account in the order in
which they were granted. The Fair Market Value of the Shares shall
be determined as of the time the Option with respect to such Shares
is granted. If an Option is granted hereunder that is
part Incentive Stock Option and part Non-Qualified Stock
Option due to becoming first exercisable in any calendar year in
excess of $100,000, the Incentive Stock Option portion of such
Option shall become exercisable first in such calendar year, and
the Non-Qualified Stock Option portion shall commence becoming
exercisable once the $100,000 limit has been reached.
Section 6.
Term of
Plan .
The Plan shall become
effective upon the approval by the stockholders of the Company as
described in Section 16 of the Plan. It shall continue in
effect for a term of ten (10) years unless terminated earlier
under Section 16 of the Plan.
Section 7.
Term of
Option .
The term of each Option
shall be stated in the Award Agreement but shall be no longer than
ten (10) years from the date of grant or such shorter term as
may be provided in the Award Agreement. Moreover, in the case of an
Incentive Stock Option granted to a Recipient who, at the time the
Incentive Stock Option is granted, owns stock representing more
than ten percent (10%) of the voting power of all classes of stock
of the Company or any Subsidiary (taking into account the
attribution rules under Section 424(d) of the Code), the term
of the Incentive Stock Option shall be five (5) years from the
date of grant or such shorter term as may be provided in the Award
Agreement.
Section 8.
Option
Exercise Price and Consideration .
(a) Exercise
Price. The per share exercise price for the Shares
to be issued pursuant to exercise of an Option shall be determined
by the Committee, subject to the following:
(i) In the case of
an Incentive Stock Option
(A) granted to an
Employee who, at the time the Incentive Stock Option is granted,
owns stock representing more than ten percent (10%) of the voting
power of all classes of stock of the Company or any Subsidiary
(taking into account the attribution rules under
Section 424(d) of the Code), the per Share exercise price
shall be not less than 110% of the Fair Market Value per Share on
the date of grant, or
(B) granted to any
Employee other than an Employee described in paragraph
(A) immediately above, the per Share exercise price shall be
not less than 100% of the Fair Market Value per Share on the date
of grant.
(ii) In the case of
a Non-Qualified Stock Option, the per Share exercise price shall be
not less than 100% of the Fair Market Value per Share on the date
of grant.
(b) Waiting
Period and Exercise Dates. The Committee shall have
the authority, subject to the terms of the Plan, to determine any
vesting restriction or limitation or waiting period with respect to
any Option granted to a Recipient or the Shares acquired pursuant
to the exercise of such Option.
(c) Form of
Consideration. The Committee shall determine the
acceptable form of consideration for exercising an Option,
including the method of payment. In the case of an Incentive Stock
Option, the Committee shall determine the acceptable form of
consideration at the time of grant. Such consideration may consist
entirely of:
(i) cash (in the
form of a certified or bank check or such other instrument as the
Company may accept);
(ii) other Mature
Shares owned on the date of exercise of the Option by the Recipient
(and, in the case of the exercise of a Non-Qualified Stock Option,
Restricted Stock subject to an Award hereunder) based on the Fair
Market Value of the Common Stock on the date the Option is
exercised; provided, however , that in the case of an
Incentive Stock Option, the right to make a payment in the form of
already owned Shares may be authorized only at the time the Option
is granted; and provided that if payment is made in the form
of Restricted Stock, the number of equivalent shares of Common
Stock to be received shall be subject to the same
5
forfeiture restrictions to which
such Restricted Stock was subject, unless otherwise determined by
the Committee;
(iii) any
combination of (i) and (ii) above;
(iv) at the
discretion of the Committee, by delivery of a properly executed
exercise notice together with such other documentation as the
Committee and a qualified broker, if applicable, shall require to
effect an exercise of the Option, and
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