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EXHIBIT 4.1
NASCENT WINE COMPANY, INC
(AKA NASCENT FOOD SERVICE, INC.)
A NEVADA CORPORATION
2008 STOCK OPTION PLAN
Article I.
Establishment and Purpose
------------------------------------
1.1 ESTABLISHMENT. Nascent Wine Company, a Nevada corporation
(the
"Company"), hereby establishes a stock option plan for officers,
directors,
employees and consultants who provide services to the Company, as
described
herein, which shall be known as the 2008 Stock Option Plan (the
"Plan"). It is
intended that certain of the options issued under the Plan to
employees of the
Company shall constitute "Incentive Stock Options" within the
meaning of section
422A of the Internal Revenue Code ("Code"), and that other options
issued under
the Plan shall constitute "Nonstatutory Options" under the Code.
The Board of
Directors of the Company (the "Board") shall determine which
options are to be
Incentive Stock Options and which are to be Nonstatutory Options
and shall enter
into option agreements with recipients accordingly.
1.2 PURPOSE. The purpose of this Plan is to enhance the
Company's
stockholder value and financial performance by attracting,
retaining and
motivating the Company's officers, directors, key employees and
consultants and
to encourage stock ownership by such individuals by providing them
with a means
to acquire a proprietary interest in the Company's success through
stock
ownership.
Article II. Definitions
-----------------------
2.1 DEFINITIONS. Whenever used herein, the following capitalized
terms
shall have the meanings set forth below, unless the context clearly
requires
otherwise.
(a) "Board" means the Board of Directors of the Company.
(b) "Code" means the Internal Revenue Code of 1986, as amended.
(c) "Committee" shall mean the Committee provided for by Article
IV
hereof.
(d) "Company" means Nascent Wine Company, a Nevada corporation and
its
successor and/or surviving corporations .
(e) "Consultant" means any person or entity, including an officer
or
director of the Company who provides services (other than as an
Employee) to the Company and shall include a Nonemployee Director,
as
defined below.
(f) "Date of Exercise" means the date the Company receives notice,
by
an Optionee, of the exercise of an Option pursuant to section 8.1
of
the Plan. Such notice shall indicate the number of shares of Stock
the
Optionee intends to exercise.
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(g) "Employee" means any person, including an officer or director
of
the Company who is employed by the Company.
(h) "Fair Market Value" means the fair market value of Stock upon
which
an Option is granted under this Plan.
(i) "Incentive Stock Option" means an Option granted under this
Plan
which is intended to qualify as an "incentive stock option" within
the
meaning of section 422A of the Code.
(j) "Nonemployee Director" means a member of the Board who is not
an
employee of the Company at the time an Option is granted
hereunder.
(k) "Nonstatutory Option" means an Option granted under the Plan
which
is not intended to qualify as an Incentive Stock Option within
the
meaning of section 422A of the Code. Nonstatutory Options may
be
granted at such times and subject to such restrictions as the
Board
shall determine without conforming to the statutory rules of
section
422A of the Code applicable to Incentive Stock Options.
(l) "Option" means the right, granted under the Plan, to purchase
Stock
of the Company at the option price for a specified period of time.
For
purposes of this Plan, an Option may be either an Incentive
Stock
Option or a Nonstatutory Option.
(l. a) "Performance -Based Deferred Stock" means a right, granted
under
the Plan, to purchase Stock of the Company at Performance price for
a
specific period of time meeting certain agreed performance
based
criteria.
(m) "Optionee" means an Employee or Consultant holding an Option
under
the Plan.
(n) "Parent Corporation" shall have the meaning set forth in
section
425(e) of the Code with the Company being treated as the
employer
corporation for purposes of this definition.
(o) "Significant Shareholder" means an individual who, within
the
meaning of section 422A(b)(6) of the Code, owns securities
possessing
more than ten percent of the total combined voting power of all
classes
of securities of the Company. In determining whether an individual
is a
Significant Shareholder, an individual shall be treated as
owning
securities owned by certain relatives of the individual and
certain
securities owned by corporations in which the individual is a
shareholder; partnerships in which the individual is a partner;
and
estates or trusts of which the individual is a beneficiary, all
as
provided in section 425(d) of the Code.
(p) "Stock" means the $0.001 par value common stock of the
Company.
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2.2 GENDER AND NUMBER. Except when otherwise indicated by the
context,
any masculine terminology when used in this Plan also shall include
the feminine
gender, and the definition of any term herein in the singular also
shall include
the plural.
Article III. Eligibility and Participation
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3.1 ELIGIBILITY AND PARTICIPATION. All Employees are eligible
to
participate in this Plan and receive Incentive Stock Options and/or
Nonstatutory
Options hereunder. All Consultants are eligible to participate in
this Plan and
receive Nonstatutory Options hereunder. Optionees in the Plan shall
be selected
by the Board from among those Employees and Consultants who, in the
opinion of
the Board, are in a position to contribute materially to the
Company's continued
growth and development and to its long-term financial success.
Article IV. Administration
--------------------------
4.1 ADMINISTRATION. The Board shall be responsible for
administering
the Plan.
The Board is authorized to interpret the Plan; to prescribe, amend,
and
rescind rules and regulations relating to the Plan; to provide for
conditions
and assurances deemed necessary or advisable to protect the
interests of the
Company; and to make all other determinations necessary or
advisable for the
administration of the Plan, but only to the extent not contrary to
the express
provisions of the Plan. Determinations, interpretations or other
actions made or
taken by the Board, pursuant to the provisions of this Plan, shall
be final and
binding and conclusive for all purposes and upon all persons.
The Plan shall be administered by the Board until the Board
establishes
a Compensation Committee of the Board (the "Committee") which will
be an
executive committee of the Board, consisting of not less than two
(2) members of
the Board, at least one of whom are not executive officers or
salaried employees
of the Company. The members of the Committee may be directors who
are eligible
to receive Options [as defined in section 2.1 paragraph L]. under
the Plan, but
Options may be granted to such persons only by action of the full
Board and not
by action of the Committee. The Committee shall have full power and
authority,
subject to the limitations of the Plan and any limitations imposed
by the Board,
to construe, interpret and administer the Plan and to make
determinations which
shall be final, conclusive and binding upon all persons, including,
without
limitation, the Company, the stockholders, the directors and any
persons having
any interests in any Options which may be granted under the Plan,
and, by
resolution or resolution providing for the creation and issuance of
any such
Option, to fix the terms upon which, the time or times at or within
which, and
the price or prices at which any Stock may be purchased from the
Company upon
the exercise of Options, which terms, time or times and price or
prices shall,
in every case, be set forth or incorporated by reference in the
instrument or
instruments evidencing such Option, and shall be consistent with
the provisions
of the Plan.
The Board may from time to time remove members from or add members
to,
the Committee. The Board may terminate the Committee at any time.
Vacancies on
the Committee, howsoever caused, shall be filled by the Board. The
Committee
shall select one of its members as Chairman, and shall hold
meetings at such
times and places as the Chairman may determine. A majority of the
Committee at
which a quorum is present, or acts reduced to or approved in
writing by all of
the members of the Committee, shall be the valid acts of the
Committee.
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Where the Committee has been created by the Board, references
herein to
actions to be taken by the Board shall be deemed to refer to the
Committee as
well, except where limited by the Plan or the Board.
The Board shall have all of the enumerated powers of the Committee
but
shall not be limited to such powers. No member of the Board or the
Committee
shall be liable for any action or determination made in good faith
with respect
to the Plan or any Option granted under it.
4.2 SPECIAL PROVISIONS FOR GRANTS TO OFFICERS OR DIRECTORS. Rule
16b-3
under the Securities and Exchange Act of 1934 (the "Act") provides
that the
grant of a stock option to a director or officer of a company
subject to the Act
will be exempt from the provisions of section 16(b) of the Act if
the conditions
set forth in said Rule are satisfied. Unless otherwise specified by
the Board,
grants of Options hereunder to individuals who are officers or
directors of the
Company shall be made in a manner that satisfies the conditions of
said Rule.
Article V. Stock Subject to the Plan
------------------------------------
5.1 NUMBER. The total number of shares of Stock hereby made
available
and reserved for issuance under the Plan shall be 30,000,000. The
aggregate
number of shares of Stock available under this Plan shall be
subject to
adjustment as provided in section 5.3. The total number of shares
of Stock may
be authorized but unissued shares of Stock, or shares acquired by
purchase as
directed by the Board from time to time in its discretion, to be
used for
issuance upon exercise of Options granted hereunder.
5.2 UNUSED STOCK. If an Option shall expire or terminate for any
reason
without having been exercised in full, the unpurchased shares of
Stock subject
thereto shall (unless the Plan shall have terminated) become
available for other
Options under the Plan.
5.3 ADJUSTMENT IN CAPITALIZATION. In the event of any change in
the
outstanding shares of Stock by reason of a stock dividend or
split,
recapitalization, reclassification or other similar corporate
change, the
aggregate number of shares of Stock set forth in section 5.1 shall
be
appropriately adjusted by the Board to reflect such change. The
Board's
determination shall be conclusive; provided, however, that
fractional shares
shall be rounded to the nearest whole share. In any such case, the
number and
kind of shares of Stock that are subject to any Option (including
any Option
outstanding after termination of employment) and the Option price
per share
shall be proportionately and appropriately adjusted without any
change in the
aggregate Option price to be paid therefor upon exercise of the
Option.
Article VI. Duration of the Plan
--------------------------------
6.1 DURATION OF THE PLAN. The Plan shall be in effect until ten
years
from the effective date of the Plan. Any Options outstanding at the
end of said
period shall remain in effect in accordance with their terms. The
Plan shall
terminate before the end of said period, if all Stock subject to it
has been
purchased pursuant to the exercise of Options granted under the
Plan.
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Article VII. Terms of Stock Options
-----------------------------------
7.1 GRANT OF OPTIONS. Subject to section 5.1, Options may be
granted to
Employees or Consultants at any time and from time to time as
determined by the
Board; provided, however, that Consultants may receive only
Nonstatutory
Options, and may not receive Incentive Stock Options. The Board
shall have
complete discretion in determining the number of Options granted to
each
Optionee. In making such determinations, the Board may take into
account the
nature of services rendered by such Employees or Consultants, their
present and
potential contributions to the Company, and such other factors as
the Board in
its discretion shall deem relevant. The Board also shall determine
whether an
Option is to be an Incentive Stock Option or a Nonstatutory
Option.
In the case of Incentive Stock Options the total Fair Market
Value
(determined at the date of grant) of shares of Stock with respect
to which
incentive stock options are exercisable for the first time by the
Optionee
during any calendar year under all plans of the Company under which
incentive
stock options may be granted (and all such plans of any Parent
Corporations and
any subsidiary corporations of the Company) shall not exceed
$100,000.
(Hereinafter, this requirement is sometimes referred to as the
"$100,000
Limitation.")
Nothing in this Article VII shall be deemed to prevent the grant
of
Options permitting exercise in excess of the maximums established
by the
preceding paragraph where such excess amount is treated as a
Nonstatutory
Option.
The Board is expressly given the authority to issue amended or
replacement Options with respect to shares of Stock subject to an
Option
previously granted hereunder. An amended Option amends the terms of
an Option
previously granted (including an extension of the terms of such
Option) and
thereby supersedes the previous Option. A replacement Option is
similar to a new
Option granted hereunder except that it provides that it shall be
forfeited to
the extent that a previously granted Option is exercised, or except
that its
issuance is conditioned upon the termination of a previously
granted Option.
7.2 NO TANDEM OPTIONS. Where an Option granted under the Plan
is
intended to be an Incentive Stock Option, the Option shall not
contain terms
pursuant to which the exercise of the Option would affect the
Optionee's right
to exercise another Option, or vice versa, such that the Option
intended to be
an Incentive Stock Option would be deemed a tandem stock option
within the
meaning of the regulations under section 422A of the Code.
7.3 OPTION AGREEMENT; TERMS AND CONDITIONS TO APPLY UNLESS
OTHERWISE
SPECIFIED. As determined by the Board on the date of grant, each
Option shall be
evidenced by an Option agreement (the "Option Agreement") that
includes the
nontransferability provisions required by section 10.2 hereof and
specifies:
whether the Option is an Incentive Stock Option or a Nonstatutory
Option; the
Option price; the term (duration) of the Option; the number of
shares of Stock
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to which the Option applies; any vesting or exercisability
restrictions which
the Board may impose; in the case of an Incentive Stock Option, a
provision
implementing the $100,000 Limitation; and any other terms or
conditions which
the Board may impose. All such terms and conditions shall be
determined by the
Board at the time of grant of the Option.
If not otherwise specified by the Board, the following terms
and
conditions shall apply to Options granted under the Plan:
(a) TERM. The Option shall be exercisable to purchase Stock for
a
period of ten years from the date of grant, as evidenced by the
execution date of the Option Agreement.
(b) EXERCISE OF
OPTION. Unless an Option is terminated as provided
hereunder, an Optionee may exercise his Option for up to, but not
in
excess of, the number of shares of Stock subject to the Option
specified below, based on the terms and conditions of the
option.
The Board may specify terms and conditions at its sole
discretion.
All Option Agreements shall incorporate the provisions of the Plan
by
reference, with certain provisions to apply depending upon whether
the Option
Agreement applies to an Incentive Stock Option or to a Nonstatutory
Option.
7.4 OPTION PRICE. No Incentive Stock Option granted pursuant to
this
Plan shall have an Option price that is less than the Fair Market
Value of the
Stock on the date the Option is granted. Incentive Stock Options
granted to
Significant Stockholders shall have an Option price of not less
than 110 percent
of the Fair Market Value of the Stock on the date of grant. The
Option price for
Nonstatutory Options shall be established by the Board and shall
not be less
than 100 percent of the Fair Market Value of the Stock on the date
of grant.
7.5 TERM OF OPTIONS. Each Option shall expire at such time as the
Board
shall determine, provided, however, that no Option shall be
exercisable later
than ten years from the date of its grant.
7.6 EXERCISE OF OPTIONS. Options granted under the Plan shall
be
exercisable at such times and be subject to such restrictions and
conditions as
the Board shall in each instance approve, which need not be the
same for all
Optionees.
7.7 PAYMENT. Payment for all shares of Stock shall be made at the
time
that an Option, or any part thereof, is exercised, and no shares
shall be issued
until full payment therefor has been made. Payment shall be made
(i) in cash or
certified funds, or (ii) if acceptable to the Board, in Stock or in
some other
form; provided, however, in the case of an Incentive Stock Option,
that said
other form of payment does not prevent the Option from qualifying
for treatment
as an Incentive Stock Option within the meaning of the Code.
Article VIII. Written Notice, Issuance Of
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Stock Certificates, Stockholder Privileges
------------------------------------------
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8.1 WRITTEN NOTICE. An Optionee wishing to exercise an Option
shall
give written notice to the Company, in the form and manner
prescribed by the
Board. Full payment for the shares exercised pursuant to the Option
must
accompany the written notice.
8.2 ISSUANCE OF STOCK CERTIFICATES. As soon as practicable after
the
receipt of written notice and payment, the Company shall deliver to
the Optionee
or to a nominee of the Optionee a certificate or certificates for
the requisite
number of shares of Stock.
8.3 PRIVILEGES OF A STOCKHOLDER. An Optionee or any other
person
entitled to exercise an Option under this Plan shall not have
stockholder
privileges with respect to any Stock covered by the Option until
the date of
issuance of a stock certificate for such stock.
Article IX. Termination of Employment or Services
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Except as otherwise expressly specified by the Board for
Nonstatutory
Options, all Options granted under this Plan shall be subject to
the following
termination provisions:
9.1 DEATH. If an Optionee's employment in the case of an Employee,
or
provision of services as a Consultant, in the case of a Consultant,
terminates
by reason of death, the Option may thereafter be exercised at any
time prior to
the expiration date of the Option or within 12 months after the
date of such
death, whichever period is the shorter, by the person or persons
entitled to do
so under the Optionee's will or, if the Optionee shall fail to make
a
testamentary disposition of an Option or shall die intestate, the
Optionee's
legal representative or representatives. The Option shall be
exercisable only to
the extent that such Option was exercisable as of the date of
Optionee's death.
9.2 TERMINATION OTHER THAN FOR CAUSE OR DUE TO DEATH. In the event
of
an Optionee's termination of employment, in the case of an
Employee, or
termination of the provision of services as a Consultant, in the
case of a
Consultant, other than by reason of death, the Optionee may
exercise such
portion of his Option as was exercisable by him at the date of such
termination
(the "Termination Date") at any time within three (3) months of the
Termination
Date; provided, however, that where the Optionee is an Employee,
and is
terminated due to disability within the meaning of Code section
422A, he may
exercise such portion of his Option as was exercisable by him on
his Termination
Date within one year of his Termination Date. In any event, the
Option cannot be
exercised after the expiration of the term of the Option. Options
not exercised
within the applicable period specified above shall terminate.
In the case of an Employee, a change of duties or position within
the
Company, shall not be considered a termination of employment for
purposes of
this Plan. The Option Agreements may contain such provisions as the
Board shall
approve with reference to the effect of approved leaves of absence
upon
termination of employment.
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9.3 TERMINATION FOR CAUSE. In the event of an Optionee's
termination of
employment, in the case of an Employee, or termination of the
provision of
services as a Consultant, in the case of a Consultant, which
termination is by
the Company for cause, any Option or Options held by him under the
Plan, to the
extent not exercised before such termination, shall forthwith
terminate.
Article X. Rights of Optionees
------------------------------
10.1 SERVICE. Nothing in this Plan shall interfere with or limit in
any
way the right of the Company to terminate any Employee's
employment, or any
Consultant's services, at any time, nor confer upon any Employee
any right to
continue in the employ of the Company, or upon any Consultant any
right to
continue to provide services to the Company.
10.2 NONTRANSFERABILITY. Except as otherwise specified by the Board
for
Nonstatutory Options, Options granted under this Plan shall be
nontransferable
by the Optionee, other than by will or the laws of descent and
distribution, and
shall be exercisable during the Optionee's lifetime only by the
Optionee.
Article XI. Optionee-Employee's
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Transfer or Leave of Absence
----------------------------
11.1 OPTIONEE-EMPLOYEE'S TRANSFER OR LEAVE OF ABSENCE. For Plan
purposes:
(a) A transfer of an Optionee who is an Employee within the
Company, or
(b) a leave of absence for such an Optionee (i) which is duly
authorized in writing by the Company, and (ii) if the Optionee
holds an
Incentive Stock Option, which qualifies under the applicable
regulations under the Code which apply in the case of Incentive
Stock
Options, shall not be deemed a termination of employment.
However,
under no circumstances may an Optionee exercise an Option during
any
leave of absence, unless authorized by the Board.
Article XII. Amendment, Modification
------------------------------------
and Termination of the Plan
---------------------------
12.1 AMENDMENT, MODIFICATION AND TERMINATION OF THE PLAN. The Board
may
at any time terminate, and from time to time may amend or modify
the Plan,
provided, however, that no such action of the Board, without
approval of the
stockholders, may:
(a) increase the total amount of Stock which may be purchased
through
Options granted under the Plan, except as provided in Article
V;
(b) change the class of Employees or Consultants eligible to
receive
Options;
No amendment, modification or termination of the Plan shall in any
manner
adversely affect any outstanding Option under the Plan without the
consent of
the Optionee holding the Option.
Article XIII. Acquisition, Merger and Liquidation
-------------------------------------------------
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13.1 ACQUISITION. In the event that an Acquisition occurs with
respect
to the Company, the Company shall have the option, but not the
obligation, to
cancel Options outstanding as of the effective date of Acquisition,
whether or
not such Options are then exercisable, in return for payment to the
Optionees of
an amount equal to a reasonable estimate of an amount (hereinafter
the "Spread")
equal to the difference between the net amount per share of Stock
payable in the
Acquisition, or as a result of the Acquisition, less the exercise
price of the
Option. In estimating the Spread, appropriate adjustments to give
effect to the
existence of the Options shall be made, such as deeming the Options
to have been
exercised, with the Company receiving the exercise price payable
thereunder, and
treating the shares receivable upon exercise of the Options as
being outstanding
in determining the net amount per share. For purposes of this
section, an
"Acquisition" shall mean any transaction in which substantially all
of the
Company's assets are acquired or in which a controlling amount of
the Company's
outstanding shares are acquired, in each case by a single person or
entity or an
affiliated group of persons and/or entities. For purposes of this
section a
controlling amount shall mean more than 50% of the issued and
outstanding shares
of stock of the Company. The Company shall have such an option
regardless of how
the Acquisition is effectuated, whether by direct purchase, through
a merger or
similar corporate transaction, or otherwise. In cases where the
acquisition
consists of the acquisition of assets of the Company, the net
amount per share
shall be calculated on the basis of the net amount receivable with
respect to
shares upon a distribution and liquidation by the Company after
giving effect to
expenses and charges, including but not limited to taxes, payable
by the Company
before the liquidation can be completed.
Where the Company does not exercise its option under this section
13.1,
the remaining provisions of this Article XIII shall apply, to the
extent
applicable.
13.2 MERGER OR CONSOLIDATION. Subject to any required action by
the
stockholders, if the Company shall be the surviving corporation in
any merger or
consolidation, any Option granted hereunder shall pertain to and
apply to the
securities to which a holder of the number of shares of Stock
subject to the
Option would have been entitled in such merger or
consolidation.
13.3 OTHER TRANSACTIONS. A dissolution or a liquidation of the
Company
or a merger and consolidation in which the Company is not the
surviving
corporation shall cause every Option outstanding hereunder to
terminate as of
the effective date of such dissolution, liquidation, merger or
consolidation.
However, the Optionee either (i) shall be offered a firm commitment
whereby the
resulting or surviving corporation in a merger or consolidation
will tender to
the Optionee an option (the "Substitute Option") to purchase its
shares on terms
and conditions both as to number of shares and otherwise, which
will
substantially preserve to the Optionee the rights and benefits of
the Option
outstanding hereunder granted by the Company, or (ii) shall have
the right
immediately prior to such dissolution, liquidation, merger, or
consolidation to
exercise any unexercised Options whether or not then exercisable,
subject to the
provisions of this Plan. The Board shall have absolute and
uncontrolled
discretion to determine whether the Optionee has been offered a
firm commitment
and whether the tendered Substitute Option will substantially
preserve to the
Optionee the rights and benefits of the Option outstanding
hereunder. In any
event, any Substitute Option for an Incentive Stock Option shall
comply with the
requirements of Code section 425(a).
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Article XIV. Securities Registration
------------------------------------
14.1 SECURITIES REGISTRATION. In the event that the Company shall
deem
it necessary or desirable to register under the Securities Act of
1933, as
amended, or any other applicable statute, any Options or any Stock
with respect
to which an Option may be or shall have been granted or exercised,
or to qualify
any such Options or Stock under the Securities Act of 1933, as
amended, or any
other statute, then the Optionee shall cooperate with the Company
and take such
action as is necessary to permit registration or qualification of
such Options
or Stock.
Unless the Company has determined that the following representation
is
unnecessary, each person exercising an Option under the Plan may be
required by
the Company, as a condition to the issuance of the shares pursuant
to exercise
of the Option, to make a representation in writing (a) that the
Optionee is
acquiring such shares for his own account for investment and not
with a view to,
or for sale in connection with, the distribution of any part
thereof, (b) that
before any transfer in connection with the resale of such shares,
the Optionee
will obtain the written opinion of counsel for the Company, or
other counsel
acceptable to the Company, that such shares may be transferred. The
Company may
also require that the certificates representing such shares contain
legends
reflecting the foregoing.
Article XV. Tax Withholding
---------------------------
15.1 TAX WITHHOLDING. Whenever shares of Stock are to be issued
in
satisfaction of Options exercised under this Plan, the Company
shall have the
power to require the recipient of the Stock to remit to the Company
an amount
sufficient to satisfy federal, state and local withholding tax
requirements.
Article XVI. Indemnification
----------------------------
16.1 INDEMNIFICATION. To the extent permitted by law, each person
who
is or shall have been a member of the Board shall be indemnified
and held
harmless by the Company against and from any loss, cost, liability,
or expense
that may be imposed upon or reasonably incurred by him in
connection with or
resulting from any claim, action, suit, or proceeding to which he
may be a party
or in which he may be involved by reason of any action taken or
failure to act
under the Plan and against and from any and all amounts paid by him
in
settlement thereof, with the Company's approval, or paid by him in
satisfaction
of judgment in any such action, suit or proceeding against him,
provided he
shall give the Company an opportunity, at its own expense, to
handle and defend
the same before he undertakes to handle and defend it on his own
behalf. The
foregoing right of indemnification shall not be exclusive of any
other rights of
indemnification to which such persons may be entitled under the
Company's
articles of incorporation or bylaws, as a matter of law, or
otherwise, or any
power that the Company may have to indemnify them or
Article XVII Performance -Based Deferred Stock
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FORM OF PERFORMANCE-BASED DEFERRED STOCK AWARD AGREEMENT
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This
AWARD AGREEMENT (the "Award Agreement") is made effective as of
,
between the Company, and (the "Participant").
WHEREAS, the Company desires to grant an award (the "Award") of
performance-based deferred stock pursuant to the Plan and the terms
and
conditions set forth herein;
NOW
THEREFORE, in consideration of the mutual covenants hereinafter
set
forth, the parties agree as follows:
1. GRANT OF AWARD. The Company hereby grants to Participant an
Award
consisting of shares of Common Stock of the Company ("Stock"). The
Award granted
under this Award Agreement is intended to qualify under Sections
7(c) and (g) of
the Plan. The grant of this Award is subject to the Participant's
execution and
return of this Award Agreement to the Company.
2. NATURE OF AWARD. The Company agrees to issue the number of
shares of
Stock provided in Section 1 to Participant (or, in the event of
Participant's
death, to Participant's beneficiary designated prior to death in a
manner
acceptable to the Company, or, if no such beneficiary has been so
designated, to
Participant's estate) (such designated beneficiary or the estate,
as the case
may be, being herein referred to as Participant's "Beneficiary") at
the times
and upon achievement of the conditions specified in Section 4,
subject to the
terms and conditions of the Plan and the Award Agreement. The Award
is unfunded
and unsecured, and Participant's rights to any Stock hereunder
shall be no
greater than those of an unsecured general creditor of the Company.
The Award
may not be assigned, transferred, pledged, hypothecated or
otherwise disposed
of, except for disposition at death as provided above. The Award
does not
entitle Participant to any rights as a shareholder with respect to
any shares of
Stock subject to the Award, unless and until such shares of Stock
have been
issued to Participant. The Award is intended to constitute an
arrangement that
qualifies as a "short term deferral" exempt from the requirements
of Section
409A of the Code, and shall be construed accordingly. The Award is
intended to
constitute "qualified performance-based compensation" within the
meaning of
Section 162(m) of the Code and regulations thereunder.
3. INCORPORATION OF PLAN. The Award is subject to the terms and
conditions of the Plan, as from time to time amended, the
provisions of which
are incorporated by reference in this Award Agreement. The
Participant hereby
acknowledges receipt of a copy of the Plan and agrees to be bound
by all the
terms and provisions thereof. In the event of a conflict between
any term or
provision contained herein and a term or provision of the Plan, the
applicable
terms or provisions of the Plan shall govern and prevail.
11
<PAGE>
4. PERFORMANCE VESTING CRITERIA.
(a) Participant shall be entitled to have issued to Participant
the
number of shares of Stock subject to the Award upon the
satisfaction of the
performance condition(s) at the times or within the time frames
(the
"Performance Period(s)") set forth in Appendix A or in connection
with a Change
in Control as provided in Section 5. None of the foregoing
performance
conditions shall be deemed to have been satisfied unless the
Committee shall
have so certified in accordance with Section 162(m) of the
Code.
(b) If a performance condition required for the vesting of any
portion
of the Award is not satisfied by the end of the last Performance
Period in
Appendix A for achieving such performance conditions, such portion
of the Award
shall thereupon be immediately forfeited.
(c) At the end of each Performance Period, or at such earlier
time
selected by the Committee, the Committee shall determine whether
and to what
extent the performance condition(s) have been met. Such results
shall be
certified in writing by the Committee prior to any Stock being
issued hereunder.
Except as provided in Section 5, in no event shall the Participant
be deemed to
be vested in any Award prior to the achievement of the performance
conditions
and certification of the Committee as provided above.
5.
CHANGE IN CONTROL. Upon the occurrence of a Change in Control,
Participant shall immediately and automatically be entitled to have
issued to
Participant any shares of Stock to which Participant has not yet
become entitled
pursuant to Section 4 and which prior to the Change in Control had
not been
forfeited (whether or not the performance condition(s) specified
under Section 4
above has/have been satisfied).
6. ISSUANCE OF STOCK. As soon as practicable after Participant's
right
to have issued to Participant any share of Stock subject to the
Award has
