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(a)
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Administration by Board of
Directors. The Plan will be administered by the Board. The Board
shall have authority to grant Awards and to adopt, amend and repeal such
administrative rules, guidelines and practices relating to the Plan as it
shall deem advisable, provided that awards to
a director may only be recommended by a committee comprised solely of
independent directors and approved only by all independent directors of
the board. The Board may correct any defect, supply any omission or
reconcile any inconsistency in the Plan or any Award in the manner and to
the extent it shall deem expedient to carry the Plan into effect and it
shall be the sole and final judge of such expediency. All decisions by the
Board shall be made in the Board’s sole discretion and shall be final and
binding on all persons having or claiming any interest in the Plan or in
any Award. No director or person acting pursuant to the authority
delegated by the Board shall be liable for any action or determination
relating to or under the Plan made in good
faith.
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(b)
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Appointment of
Committees. To the extent permitted by applicable law, the Board
may delegate any or all of its powers under the Plan to one or more
committees or subcommittees of the Board (a “Committee”). All references
in the Plan to the “Board” shall mean the Board or a Committee of the
Board or the executive officers referred to in Section 3(c) to the extent
that the Board’s powers or authority under the Plan have been delegated to
such Committee or executive
officers.
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(c)
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Delegation to Executive
Officers. To the extent permitted by applicable law, the Board may
delegate to one or more executive officers of the Company the power to
grant Awards to employees or officers of the Company or any of its present
or future subsidiary corporations and to exercise such other powers under
the Plan as the Board may determine, provided that the Board
shall fix the terms of the Awards to be granted by such executive officers
(including the exercise price of such Awards, which may include a formula
by which the exercise price will be determined) and the maximum number of
shares subject to Awards that the executive officers may grant; provided further,
however, that no executive officer shall be authorized to grant
Awards to any “executive officer” of the Company, as
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defined by Rule 3b-7 under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), or to
any “officer” of the Company (as defined by Rule 16a-1 under the Exchange
Act).
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(a)
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Number of Shares.
Subject to adjustment under Section 7, Awards may be made under the Plan
for up to 6,900,000 shares of common stock, $.001 par value per share, of
the Company (“Common Stock”). For purposes of counting the number of
shares available for the grant of Awards under the
Plan,
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(1)
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shares
of Common Stock covered by independent SARs (as hereinafter defined) shall
be counted against the number of shares available for the grant of Awards
under the Plan; provided that independent SARs that may be settled in cash
only shall not be so counted;
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(2)
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if
any Award (A) expires or is terminated, surrendered or canceled without
having been fully exercised or is forfeited in whole or in part (including
as the result of shares of Common Stock subject to such Award being
repurchased by the Company at the original issuance price pursuant to a
contractual repurchase right) or (B) results in any Common Stock not being
issued (including as a result of an independent SAR that was settleable
either in cash or in stock actually being settled in cash), the unused
Common Stock covered by such Award shall again be available for the grant
of Awards under the Plan; provided, however, in the case of Incentive
Stock Options (as hereinafter defined), the foregoing shall be subject to
any limitations under the Code; and
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(3)
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shares
of Common Stock tendered to the Company by a Participant to (A) purchase
shares of Common Stock upon the exercise of an Award or (B) satisfy tax
withholding obligations (including shares retained from the Award creating
the tax obligation) shall not be added back to the number of shares
available for the future grant of Awards under the Plan. Shares issued
under the Plan may consist in whole or in part of authorized but unissued
shares or treasury shares.
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(b)
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Sub-limits. Subject to
adjustment under Section 8, the following sub-limits on the number of
shares subject to Awards shall
apply:
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(1)
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Per-Participant Limit.
The maximum number of shares of Common Stock with respect to which Awards
may be granted to any Participant under the Plan shall be 1,500,000 per
calendar year. For purposes of the foregoing limit, the combination of an
Option in tandem with a SAR shall be treated as a single Award. The
per-Participant limit described in this Section 4(b)(1) shall be construed
and applied consistently with Section 162(m) of the Code or any successor
provision thereto (“Section
162(m)”).
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(a)
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General. The Board may
grant options to purchase Common Stock (each, an “Option”) and determine
the number of shares of Common Stock to be covered by each Option, the
exercise price of each Option and the conditions and limitations
applicable to the exercise of each Option, including conditions relating
to applicable federal or state securities laws, as it considers necessary
or advisable. An Option that is not intended to be an Incentive Stock
Option (as hereinafter defined) shall be designated a “Nonstatutory Stock
Option.”
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(b)
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Incentive Stock
Options. An Option that the Board intends to be an “incentive stock
option” as defined in Section 422 of the Code (an “Incentive Stock
Option”) shall only be granted to employees of Centene Corporation, any of
Centene Corporation’s present or future parent or subsidiary corporations
as defined in Sections 424(e) or (f) of the Code, and any other entities
the employees of which are eligible to receive Incentive Stock Options
under the Code, and shall be subject to and shall be construed
consistently with the requirements of Section 422 of the Code. The Company
shall have no liability to a Participant, or any other party, if an Option
(or any part thereof) that is intended to be an Incentive Stock Option is
not an Incentive Stock Option.
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(c)
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Exercise Price. The
Board shall establish the exercise price at the time each Option is
granted and specify it in the applicable option agreement, provided, however, that
the exercise price shall be not less than 100% of the fair market value of
the Common Stock, as determined by the Board, at the time the Option is
granted.
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(d)
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Duration of Options.
Each Option shall be exercisable at such times and subject to such terms
and conditions as the Board may specify in the applicable option
agreement, provided,
however, that no Option will be granted for a term in excess of 10
years.
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(e)
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Exercise of Option.
Options may be exercised by delivery to the Company of a written notice of
exercise signed by the proper person or by any other form of notice
(including electronic notice) approved by the Board together with payment
in full as specified in Section 5(f) for the number of shares for which
the Option is exercised.
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(f)
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Payment Upon Exercise.
Common Stock purchased upon the exercise of an Option granted under the
Plan shall be paid for as follows:
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(1)
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in
cash or by check, payable to the order of the
Company;
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(2)
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except
as the Board may, in its sole discretion, otherwise provide in an option
agreement, by (i) delivery of an irrevocable and unconditional undertaking
by a creditworthy broker to deliver promptly to the Company sufficient
funds to pay the exercise price and any required tax withholding or (ii)
delivery by the Participant to the Company of a copy of irrevocable and
unconditional instructions to a creditworthy broker to deliver promptly to
the Company cash or a check sufficient to pay the exercise price and any
required tax withholding;
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(3)
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when
the Common Stock is registered under the Exchange Act, by delivery of
shares of Common Stock owned by the Participant valued at their fair
market value as determined by (or in a manner approved by) the Board in
good faith (“Fair Market Value”), provided (i) such method of payment is
then permitted under applicable law and (ii) such Common Stock, if
acquired directly from the Company was owned by the Participant at least
six months prior to such delivery;
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(4)
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such
other lawful consideration as the Board may determine in its sole
discretion, provided that (i) at least an amount equal to the par value of
the Common Stock being purchased shall be paid in cash and (ii) no such
consideration shall consist in whole or in part of a promissory note or
other evidence of indebtedness; or
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(5)
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by
any combination of the above permitted forms of
payment.
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(g)
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Substitute Options. In
connection with a merger or consolidation of an entity with the Company or
the acquisition by the Company of property or stock of an entity, the
Board may grant Options in substitution for any options or other stock or
stock-based Awards granted by such entity or an affiliate thereof.
Substitute Options may be granted on such terms as the Board deems
appropriate in the circumstances, notwithstanding any limitations on
Options contained in the other sections of this Section 5 or in Section
2.
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(a)
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Grants. The Board may
grant Awards entitling recipients to acquire shares of Common Stock
(“Restricted Stock”), subject to the right of the Company to repurchase
all or part of such shares at their issue price or other stated or formula
price (or to require forfeiture of such shares if issued at no cost) from
the recipient in the event that conditions specified by the Board in the
applicable Award are not satisfied prior to the end of the applicable
restriction period or periods established by the Board for such Award.
Instead of granting Awards for Restricted Stock, the Board may grant
Awards entitling the recipient to receive shares of Common Stock to be
delivered in the future (“Restricted Stock Units”) subject to such terms
and conditions on the delivery of the shares of Common Stock as the Board
shall determine (each Award for Restricted Stock or Restricted Stock
Units, a “Restricted Stock Award”). The Board may also permit an exchange
of unvested shares of Common Stock that
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have already been delivered to
a Participant for an instrument evidencing the right to future delivery of
Common Stock at such time or times, and on such conditions, as the Board
shall specify.
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(b)
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Terms and
Conditions.
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(1)
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The
Board shall determine the terms and conditions of any such Restricted
Stock Award, including the conditions for repurchase (or forfeiture) and
the issue price, if any.
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(2)
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If
the Board determines to grant any Restricted Stock Awards designed to
satisfy the requirements of Section 162(m)(4)(C) of the Code with respect
to remuneration payable to a covered employee as defined in Section
162(m)(3) of the Code (“Covered Employee”) solely on account of one or
more performance goals (“Performance Goals”) to be achieved during a
performance period (“Performance Period”), the following requirements
shall apply:
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(A)
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A
Committee consisting of two or more outside
directors:
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(i)
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who
are not current employees of the Company or any subsidiary or affiliate of
the Company,
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(ii)
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who
are not former employees of the Company or any subsidiary or affiliate of
the Company who receive compensation for prior services (other than
benefits under a tax-qualified retirement plan) from the Company or any
subsidiary or affiliate of the Company during the taxable
year,
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(iii)
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who
have not been officers of the Company or a subsidiary or affiliate of the
Company, and
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(iv)
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who
do not receive direct or indirect compensation from the Company or any
subsidiary or affiliate of the Company in any capacity other than as a
director,
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shall
determine and administer the grants provided for under this Section
6(b)(2).
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(B)
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(i)
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The
Performance Goals upon which the payment or vesting of an Award to a
Covered Employee pursuant to this Section 6(b)(2) shall be limited to the
following performance measures (“Performance
Measures”):
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(a)
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net
earnings or net income (before or after
taxes),
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(b)
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earnings
per share,
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(c)
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net
sales or revenue growth,
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(d)
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net
operating profit,
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(e)
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return
measures (including, but not limited to, return on assets, capital,
invested capital, equity, sales, or
revenue),
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(f)
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cash
flow (including, but not limited to, operating cash flow, free cash flow,
cash flow return on equity, and cash flow return on
investment),
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(g)
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earnings
before or after taxes, interest, depreciation, and/or
amortization,
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(h)
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gross
or operating margins,
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(i)
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productivity
ratios,
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(j)
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share
price (including, but not limited to, growth measures and total
shareholder return),
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(k)
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expense
targets,
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(l)
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margins,
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(m)
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operating
efficiency,
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(n)
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market
share,
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(o)
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customer
satisfaction,
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(p)
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working
capital targets, and
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(q)
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economic
value added or EVA® (net operating profit after tax minus the sum of
capital multiplied by the cost of
capital).
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(ii)
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As
the Committee may deem appropriate:
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(a)
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any
of the foregoing Performance Measure(s) may be used to measure the
performance of the Company, a subsidiary, and/or affiliate of the Company
as a whole or any business unit of the Company, subsidiary, and/or
affiliate or any combination thereof during the Performance
Period;
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(b)
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any
of the foregoing Performance Measures may be used to compare the
performance of the Company, a subsidiary and/or affiliate of the Company
as a whole or any business unit of the Company, subsidiary and/or
affiliate to the performance of a group of comparator companies, or
published or special index that the Committee, in its sole discretion,
deems appropriate;
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(c)
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the
Committee may select Performance Measure (j) above as compared to various
stock market indices; and
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(d)
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the
Committee shall have authority to provide for accelerated vesting of any
Award based on the achievement of
Performance Goals pursuant to the foregoing Performance
Measures.
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(iii)
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The
Committee may provide in any such Award that any evaluation of performance
may include or exclude any of the following events that occurs during a
Performance Period:
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(a)
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asset
write-downs,
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(b)
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litigation
or claim judgments or settlements,
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(c)
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the
effect of changes in tax laws, accounting principles, or other laws or
provisions affecting reported
results,
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(d)
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any
reorganization and restructuring
programs,
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(e)
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extraordinary
nonrecurring items as described in Accounting Principles Board Opinion No.
30 and/or in management’s discussion and analysis of financial condition
and results of operations appearing in the Company’s annual report to
shareholders for the applicable
year,
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(f)
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acquisitions
or divestitures, and
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(g)
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foreign
exchange gains and losses.
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Such
inclusions or exclusions shall be prescribed in a form that meets the
requirements of Code Section 162(m) for deductibility.
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(C)
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The
Performance Period for any Award pursuant to this Section 6(b)(2) shall
not be less than one taxable year of the
Company.
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(D)
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The
maximum number of shares the Committee may grant to a Covered Employee
during a taxable year of the Company pursuant to this Section 6(b)(2)
shall be 1,000,000 shares.
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(E)
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The
Performance Goals for any Award pursuant to this Section 6(b)(2) shall be
memorialized in writing and furnished to affected Covered Employees not
later than 90 days after the beginning of the Performance Period to which
they apply.
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(F)
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The
Committee shall certify in writing the accomplishment of the Performance
Goals related to an Award before the Award can become
unconditional.
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(G)
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Awards
that are intended to qualify as Performance-Based Compensation may not be
adjusted upward. The Committee shall retain the discretion to adjust such
Awards downward, either on a formula or discretionary basis or any
combination, as the Committee
determines.
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(H)
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In
the event that applicable tax and/or securities laws change to permit
Committee discretion to alter the governing Performance Measures without
obtaining shareholder approval of such changes, the Committee shall have
sole discretion to make such changes without obtaining shareholder
approval, provided the exercise of such discretion does not violate Code
Section 409A. In addition, in the event that the Committee determines that
it is advisable to grant Awards that shall not qualify as
Performance-Based Compensation, the Committee may make such grants without
satisfying the requirements of Code Section 162(m) and base vesting on
Performance Measures other than those set forth in this Section
6(b)(2).
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(I)
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This
Section 6(b)(2) is designed to comply with the requirements of Section
162(m)(4)(C) of the Code and regulations issued thereunder and all
provisions of this Section 6(b)(2) shall be applied consistent
therewith.
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(c)
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Stock Certificates. Any
stock certificates issued in respect of a Restricted Stock Award, if
applicable, shall be registered in the name of the Participant and, unless
otherwise determined by the Board, deposited by the Participant, together
with a stock power endorsed in blank, with the Company (or its designee).
At the expiration of the applicable restriction periods, the Company (or
such designee) shall deliver the certificates no longer subject to such
restrictions to the Participant or if the Participant has died, to the
beneficiary designated, in a manner determined by the Board, by a
Participant to receive amounts due or exercise rights of the Participant
in the event of the Participant’s death (the “Designated Beneficiary”). In
the absence of an effective designation by a Participant, Designated
Beneficiary shall mean the Participant’s
estate.
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(a)
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General. A Stock
Appreciation Right (“SAR”) is an Award entitling the holder, upon
exercise, to receive an amount in Common Stock determined by reference to
appreciation, from and after the date of grant, in the fair market value
of a share of Common Stock. The date as of which such appreciation or
other measure is determined shall be the exercise
date.
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(b)
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Grants. SARs may be
granted in tandem with, or independently of, Options granted under the
Plan. The Board shall establish the exercise price at the time each SAR is
granted and specify it in the applicable SAR agreement, provided, however,
that the exercise price shall be not less than 100% of the fair market
value of the Common Stock, as determined by the Board, at the time the SAR
is granted.
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(1)
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Tandem Awards. When
SARs are expressly granted in tandem with Options, (i) the SAR will be
exercisable only at such time or times, and to the extent, that the
related Option is exercisable (except to the extent designated by the
Board in connection with a Reorganization Event) and will be exercisable
in accordance with the procedure required for exercise of the related
Option; (ii) the SAR will terminate and no longer be exercisable upon the
termination or exercise of the related Option, except to the extent
designated by the Board in connection with a Reorganization Event and
except that a SAR granted with respect to less than the full number of
shares covered by an Option will not be reduced until the number of shares
as to which the related Option has been exercised or has terminated
exceeds the number of shares not covered by the SAR; (iii) the Option will
terminate and no longer be exercisable upon the exercise of the related
SAR; and (iv) the SAR will be transferable only with the related
Option.
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(2)
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Independent SARs. A SAR
not expressly granted in tandem with an Option will become exercisable at
such time or times, and on such conditions, as the Board may specify in
the SAR Award.
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(c)
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Exercise. SARs may be
exercised by delivery to the Company of a written notice of exercise
signed by the proper person or by any other form of notice (including
electronic notice) approved by the Board, together with any other
documents required by the Board.
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(a)
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Changes in
Capitalization. In the event of any stock split, reverse stock
split, stock dividend, recapitalization, combination of shares,
reclassification of shares, spin-off or other similar change in
capitalization or event, or any distribution to holders of Common Stock
other than a normal cash dividend, (i) the number and class of securities
available under the Plan, (ii) the per-Participant limit set forth in
Section 4(b), (iii) the number and class of securities and exercise price
per share subject to each outstanding Option, and (iv) the repurchase
price per share subject to each outstanding Restricted Stock Award shall
be appropriately adjusted by the Company (or substituted Awards may be
made, if applicable) to the extent the Board shall determine, in good
faith, that such an adjustment (or substitution) is necessary and
appropriate. If this Section 8(a) applies and Section 8(c) also applies to
any event, Section 8(c) shall be applicable to such event, and this
Section 8(a) shall not be
applicable.
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(b)
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Liquidation or
Dissolution. In the event of a proposed liquidation or dissolution
of the Company, the Board shall upon written notice to the Participants
provide that all then unexercised Options will (i) become exercisable in
full as of a specified time at least 10 business days prior to the
effective date of such liquidation or dissolution and (ii) terminate
effective upon such liquidation or dissolution, except to the extent
exercised before such effective date. The Board may specify the effect of
a liquidation or dissolution on any Restricted Stock Award granted under
the Plan at the time of the grant.
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(c)
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Reorganization
Events.
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(1)
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Definition. A
“Reorganization Event” shall mean: (a) any merger or consolidation of the
Company with or into another entity as a result of which all of the Common
Stock of the Company is converted into or exchanged for the right to
receive cash, securities or other property or (b) any exchange of all of
the Common Stock of the Company for cash, securities or other property
pursuant to a share exchange
transaction.
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(2)
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Consequences of a
Reorganization Event on Options. Upon the occurrence of a
Reorganization Event, or the execution by the Company of any agreement
with respect to a Reorganization Event, the Board shall provide that all
outstanding Options shall be assumed, or equivalent options shall be
substituted, by the acquiring or succeeding corporation (or an affiliate
thereof). For purposes hereof, an Option shall be considered to be assumed
if, following consummation of the Reorganization Event, the Option confers
the right to purchase, for each share of Common Stock subject to the
Option immediately prior to the consummation of the Reorganization Event,
the consideration (whether cash, securities or other property) received as
a result of the Reorganization Event by holders of Common Stock for each
share of Common Stock held immediately prior to the consummation of the
Reorganization Event (and if holders were offered a choice of
consideration, the type of consideration chosen by the holders of a
majority of the outstanding shares of Common Stock); provided, however, that if the
consideration received as a result of the Reorganization Event is not
solely common stock of the acquiring or succeeding corporation (or an
affiliate thereof), the Company may, with the consent of the acquiring or
succeeding corporation, provide for the consideration to be received upon
the exercise of Options to consist solely of common stock of the acquiring
or succeeding corporation (or an affiliate thereof) equivalent in fair
market value to the per share consideration received by holders of
outstanding shares of Common Stock as a result of the Reorganization
Event.
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(3)
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Consequences
of a Reorganization Event on Restricted Stock Awards. Upon the occurrence
of a Reorganization Event, the repurchase and other rights of the Company
under each outstanding Restricted Stock Award shall inure to the benefit
of the Company’s successor and shall apply to the cash, securities or
other property that the Common Stock was converted into or exchanged for
pursuant to such Reorganization Event in the same manner and to the same
extent as they applied to the Common Stock subject to such Restricted
Stock Award.
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(a)
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Transferability of
Awards. Awards shall not be sold, assigned, transferred, pledged or
otherwise encumbered by the person to whom they are granted, either
voluntarily or by operation of law, except by will or the laws of descent
and distribution or, other than in the case of an Incentive Stock Option,
pursuant to a qualified domestic relations order, and, during the life of
the Participant, shall be exercisable only by the Participant; provided that the Board
may permit or provide in an Award for the gratuitous transfer of the Award
by the Participant to or for the benefit of any immediate family member,
family trust or family partnership established solely for the benefit of
the Participant and/or an immediate family member thereof if, with respect
to such proposed transferee, the Company would be eligible to use a
registration statement on Form S-8 for the registration of the sale of the
Common Stock subject to such Award under the Securities Act of 1933, as
amended and provided
further that the Company shall not be required to recognize any
such transfer until such time as the Participant and such permitted
transferee shall, as a condition to such transfer, deliver to the Company
a written instrument in form and substance satisfactory to the Company
confirming that such transferee shall be bound by all of the terms and
conditions of the Award. References to a Participant, to the extent
relevant in the context, shall include references to authorized
transferees.
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(b)
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Documentation. Each
Award shall be evidenced in such form (written, electronic or otherwise)
as the Board shall determine. Each Award may contain terms and conditions
in addition to those set forth in the
Plan.
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(c)
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Board Discretion.
Except as otherwise provided by the Plan, each Award may be made alone or
in addition or in relation to any other Award. The terms of each Award
need not be identical, and the Board need not treat Participants
uniformly.
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(d)
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Termination of Status.
The Board shall determine the effect on an Award of the disability, death,
retirement, authorized leave of absence or other change in the employment
or other status of a Participant and the extent to which, and the period
during which, the Participant, the Participant’s legal representative,
conservator, guardian or Designated Beneficiary may exercise rights under
the Award.
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(e)
|
Withholding. Each
Participant shall pay to the Company, or make provision satisfactory to
the Board for payment of, any taxes required by law to be withheld in
connection with Awards to such Participant no later than the date of the
event creating the tax liability. Except as the Board may otherwise
provide in an Award, when the Common Stock is registered under the
Exchange Act, Participants may satisfy such tax obligations in whole or in
part by delivery of shares of Common Stock, including shares retained from
the Award creating the tax obligation, valued at their Fair Market Value;
provided,
however, that the total tax withholding where stock is being used
to satisfy such tax obligations cannot exceed the Company’s minimum
statutory withholding obligations (based on minimum statutory withholding
rates for federal and state tax purposes, including payroll taxes, that
are applicable to such supplemental taxable income). The Company may, to
the extent permitted by law, deduct any such tax obligations from any
payment of any kind otherwise due to a
Participant.
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(f)
|
Amendment of Award. The
Board may amend, modify or terminate any outstanding Award, including but
not limited to, substituting therefore another Award of the same or a
different type, changing the date of exercise or realization, and
converting an Incentive Stock Option to a Nonstatutory Stock Option, provided that the
Participant’s consent to such action shall be required unless the Board
determines that the action, taking into account any related action, would
not materially and adversely affect the Participant, and would not cause
adverse tax consequences to the Participant under Section 409A of the
Code.
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(g)
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Conditions on Delivery of
Stock. The Company will not be obligated to deliver any shares of
Common Stock pursuant to the Plan or to remove restrictions from shares
previously delivered under the Plan until (i) all conditions of the Award
have been met or removed to the satisfaction of the Company, (ii) in the
opinion of the Company’s counsel, all other legal matters in connection
with the issuance and delivery of such shares have been satisfied,
including any applicable securities laws and any applicable stock exchange
or stock market rules and regulations, and (iii) the Participant has
executed and delivered to the Company such representations or agreements
as the Company may consider appropriate to satisfy the requirements of any
applicable laws, rules or
regulations.
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(h)
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Vesting of Awards. No
Award granted under the Plan after July 19, 2005 to any employee of the
Company may vest or become exercisable in increments greater than
one-third of the total Award in any period of twelve consecutive months
following the date of grant.
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(i)
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Repricing of Awards.
Unless such action is approved by the
Company’s stockholders and does not cause an Award to become subject to
Section 409A of the Code: (1) no outstanding Award granted under the Plan
may be amended to provide for an exercise price per share that is less
than the then-existing exercise price per share of such outstanding Award
(other than adjustments pursuant to Section 8), (2) the Board may not
cancel any outstanding Award (whether or not granted under the Plan) and
grant in substitution therefore new Awards under the Plan covering the
same or a different number of shares of Common Stock and having an
exercise price per share less than the then-existing exercise price per
share of the cancelled Award, and (3) the Board may not repurchase any
outstanding Award granted under the Plan at a price greater than the
current fair market value of the existing
award.
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(a)
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No Right To Employment or
Other Status. No person shall have any claim or right to be granted
an Award, and the grant of an Award shall not be construed as giving a
Participant the right to continued employment or any other relationship
with the Company. The Company expressly reserves the right
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at any time to dismiss or
otherwise terminate its relationship with a Participant free from any
liability or claim under the Plan, except as expressly provided in the
applicable
Award.
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(b)
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No Rights As
Stockholder. Subject to the provisions of the applicable Award, no
Participant or Designated Beneficiary shall have any rights as a
stockholder with respect to any shares of Common Stock to be distributed
with respect to an Award until becoming the record holder of such shares.
Notwithstanding the foregoing, in the event the Company effects a split of
the Common Stock by means of a stock dividend and the exercise price of
and the number of shares subject to such Option are adjusted as of the
date of the distribution of the dividend (rather than as of the record
date for such dividend), then an optionee who exercises an Option between
the record date and the distribution date for such stock dividend shall be
entitled to receive, on the distribution date, the stock dividend with
respect to the shares of Common Stock acquired upon such Option exercise,
notwithstanding the fact that such shares were not outstanding as of the
close of business on the record date for such stock
dividend.
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(c)
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Effective Date and Term of
Plan. The Plan shall become effective on the date on which it is
adopted by the Board, but no Award granted to a Participant that is
intended to comply with Section 162(m) shall become exercisable, vested or
realizable, as applicable to such Award, unless and until the Plan has
been approved by the Company’s stockholders to the extent stockholder
approval is required by Section 162(m) in the manner required under
Section 162(m), including the vote required under Section 162(m). No
Awards shall be granted under the Plan after the completion of ten years
from the earlier of (i) the date on which the Plan was adopted by the
Board or (ii) the date the Plan was approved by the Company’s
stockholders, but Awards previously granted may extend beyond that
date.
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(d)
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Amendment of Plan. The
Board may amend, suspend or terminate the Plan or any portion thereof at
any time, provided that (i) any
“material revision” to the Plan (as defined in the New York Stock Exchange
Listed Company Manual, as in effect as of July 22, 2005) must be approved
by the Company’s stockholders prior to such revision becoming effective
and (ii) to the extent required by Section 162(m), no Award granted to a
Participant that is intended to comply with Section 162(m) after the date
of such amendment shall become exercisable, realizable or vested, as
applicable to such Award, unless and until such amendment shall have been
approved by the Company’s stockholders if required by Section 162(m),
including the vote required under Section
162(m).
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(e)
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Governing Law. The
provisions of the Plan and all Awards made hereunder shall be governed by
and interpreted in accordance with the laws of the State of Delaware,
without regard to any applicable conflicts of
law.
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