EXHIBIT 10.36
UNIVERSAL CORPORATION
2002 EXECUTIVE STOCK PLAN
(as amended and restated August 7, 2003)
Article I
DEFINITIONS
1.1. Affiliate means any "subsidiary" or "parent corporation" (within
the meaning of Section 424 of the Code) of the Company.
1.2. Agreement means a written agreement (including any amendment or
supplement thereto) between the Company and a Participant specifying the terms
and conditions of a Grant or an Award issued to such Participant.
1.3. Award means an award of Common Stock, Restricted Stock and/or
Phantom Stock.
1.4. Board means the Board of Directors of the Company.
1.5. Change of Control means and shall be deemed to have taken place
if: (i) any individual, entity or "group" (within the meaning of Sections
13(d)(3) or 14(d)(2) of the Exchange Act) becomes the beneficial owner of shares
of the Company having 20 percent or more of the total number of votes that may
be cast for the election of directors of the Company, other than (a) as a result
of any acquisition directly from the Company, or (b) as a result of any
acquisition by any employee benefit plans (or related trusts) sponsored or
maintained by the Company or its Subsidiaries; or (ii) there is a change in the
composition of the Board such that the individuals who, as of the date hereof,
constitute the Board (the Board as of the date hereof shall be hereinafter
referred to as the "Incumbent Board") cease for any reason to constitute at
least a majority of the Board; provided, however, for purposes of this Section,
that any individual who becomes a member of the Board subsequent to the date
hereof whose election, or nomination for election by the Company's shareholders,
was approved by a vote of at least a majority of those individuals who are
members of the Board and who were also members of the Incumbent Board (or deemed
to be such pursuant to this proviso) shall be considered as though such
individual were a member of the Incumbent Board; but, provided further, that any
such individual whose initial assumption of office occurs as a result of either
an actual or threatened election contest (as such terms are used in Rule 14a-11
of Regulation 14A promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies or consents by or on behalf of a person other
than the Board shall not be so considered as a member of the Incumbent Board; or
(iii) if at any time, (w) the Company shall consolidate with, or merge with, any
other Person and the Company shall not be the continuing or surviving
corporation, (x) any Person shall consolidate with, or merge with, the Company,
and the Company shall be the continuing or
surviving corporation and in connection therewith, all or part of the
outstanding Common Stock shall be changed into or exchanged for stock or other
securities of any other person or cash or any other property, (y) the Company
shall be a party to a statutory share exchange with any other Person after which
the Company is a Subsidiary of any other Person, or (z) the Company shall sell
or otherwise transfer 50% or more of the assets or earning power of the Company
and its Subsidiaries (taken as a whole) to any Person or Persons.
1.6. Change of Control Date is the date on which an event described in
(i), (ii) or (iii) of Section 1.5 occurs.
1.7. Code means the Internal Revenue Code of 1986, as amended from time
to time. References to the Code shall include the valid and binding governmental
regulations, court decisions and other regulatory and judicial authority issued
or rendered thereunder.
1.8. Commission means the Securities and Exchange Commission or any
successor agency.
1.9. Committee means the Executive Compensation and Nominating
Committee of the Board.
1.10. Common Stock means the Common Stock of the Company.
1.11. Company means Universal Corporation.
1.12. Disability, with respect to a Participant, means "disability" as
defined from time to time under any long-term disability plan of the Company or
Subsidiary with which the Participant is employed.
1.13. Exchange Act means the Securities Exchange Act of 1934, as
amended from time to time, and any successor thereto.
1.14. Fair Market Value of a share of Common Stock as of any given date
(i) prior to August 7, 2003, means the closing sale price of a share of Common
Stock on the New York Stock Exchange Composite Tape on such date, or (ii) on or
after August 7, 2003, means the closing sale price of a share of Common Stock on
the New York Stock Exchange Composite Tape on the next preceding date that the
Common Stock was traded on such exchange, in either case as reported by such
source as the Committee may select.
1.15. Grant means the grant of an Option or an SAR, or both.
1.16. Incentive Stock Option means an Option that is intended to
qualify as an "incentive stock option" under Section 422 of the Code.
1.17. Initial Value means, with respect to an SAR, the Fair Market
Value of one share of Common Stock on the date of grant, as set forth in an
Agreement.
2
1.18. Non-Qualified Stock Option means an Option other than an
Incentive Stock Option.
1.19. Option means a stock option that entitles the holder to purchase
from the Company a stated number of shares of Common Stock at the price set
forth in an Agreement.
1.20. Option Price means the price per share for Common Stock purchased
on the exercise of an Option as provided in Article VI.
1.21. Participant means an officer, director or employee of the Company
or of a Subsidiary who satisfies the requirements of Article IV and is selected
by the Committee to receive a Grant or an Award.
1.22. Phantom Stock means a bookkeeping entry on behalf of a
Participant by which his account is credited (but not funded) as though Common
Stock had been transferred to such account.
1.23. Plan means the Universal Corporation 2002 Executive Stock Plan,
as amended.
1.24. Prior Plans mean, collectively, the Universal Corporation 1997
Executive Stock Plan and the Universal Corporation 1989 Executive Stock Plan.
1.25. Restricted Stock means shares of Common Stock awarded to a
Participant under Article IX. Shares of Common Stock shall cease to be
Restricted Stock when, in accordance with the terms of the applicable Agreement,
they become transferable and free of substantial risks of forfeiture.
1.26. Rule 16b-3 means Rule 16b-3, as promulgated by the Commission
under Section 16(b) of the Exchange Act, as amended from time to time.
1.27. SAR means a stock appreciation right granted pursuant to this
Plan that entitles the holder to receive, with respect to each share of Common
Stock encompassed by the exercise of such SAR, the excess of the Fair Market
Value at the time of exercise over the Initial Value of the SAR; provided, that
any limited stock appreciation right granted by the Committee and exercisable
upon a Change of Control shall entitle the holder to receive, with respect to
each share of Common Stock encompassed by the exercise of such SAR, the higher
of (x) the highest sales price of a share of Common Stock as reported on the New
York Stock Exchange composite tape during the 60-day period prior to and
including the Change of Control Date, or (y) the highest price per share paid in
a Change of Control transaction, over the Initial Value of such SAR, except that
in the case of SARs related to Incentive Stock Options, such price shall be
based only on the Fair Market Value of the Common Stock on the date that the
Incentive Stock Option is exercised.
3
1.28. Securities Broker means the registered securities broker
acceptable to the Company who agrees to effect the cashless exercise of an
Option pursuant to Section 8.4 hereof.
1.29. Subsidiary means any corporation, partnership, joint venture or
other entity during any period in which at least a 50% voting or profits
interest is owned, directly or indirectly, by the Company (or by any entity that
is a successor to the Company), and any other business venture designated by the
Committee in which the Company (or an entity that is a successor to the Company)
has a significant interest, as determined in the discretion of the Committee.
Article II
PURPOSES
The Plan is intended to assist the Company in recruiting and retaining
officers, directors and key employees with ability and initiative by enabling
such persons who contribute significantly to the Company or an Affiliate to
participate in its future success and to associate their interests with those of
the Company and its shareholders. The Plan is intended to permit the award of
Common Stock, Restricted Stock and Phantom Stock, and the issuance of Options
qualifying as Incentive Stock Options or Non-Qualified Stock Options as
designated by the Committee at time of grant, and SARs. No Option that is
intended to be an Incentive Stock Option, however, shall be invalid for failure
to qualify as an Incentive Stock Option under Section 422 of the Code but shall
be treated as a Non-Qualified Stock Option.
Article III
ADMINISTRATION
The Plan shall be administered by the Committee. No Person shall be
appointed to or serve as a member of the Committee unless at the time of such
appointment and service he shall be a "non-employee director" as defined in Rule
16b-3, an "outside director" within the meaning of Section 162(m) of the Code,
and an "independent director" within the meaning of any applicable listing
requirement of the New York Stock Exchange applicable to the Committee. The
Committee shall have authority to issue Grants and Awards upon such terms (not
inconsistent with the provisions of this Plan) as the Committee may consider
appropriate. The terms of such Grants and Awards may include conditions (in
addition to those contained in this Plan) on (i) the exercisability of all or
any part of an Option or SAR and (ii) the transferability or forfeitability of
Restricted Stock or Phantom Stock. In addition, the Committee shall have
complete authority to interpret all provisions of this Plan; to prescribe the
form of Agreements; to adopt, amend, and rescind rules and regulations
pertaining to the administration of the Plan; and to make all other
determinations necessary or advisable for the administration of this Plan. To
fulfill the purposes of the Plan without amending the Plan, the Committee may
also modify any Grants or Awards issued to Participants who are nonresident
aliens or employed outside of the United States to recognize differences in
local law, tax policy or custom.
4
The express grant in the Plan of any specific power to the Committee
shall not be construed as limiting any power or authority of the Committee. Any
decision made, or action taken, by the Committee or in connection with the
administration of this Plan shall be final and conclusive. All expenses of
administering this Plan shall be borne by the Company.
Article IV
ELIGIBILITY
4.1. General. Any officer, director or employee of the Company or of
any Subsidiary (including any corporation that becomes a Subsidiary after the
adoption of this Plan) who, in the judgment of the Committee, has contributed
significantly or can be expected to contribute significantly to the profits or
growth of the Company or a Subsidiary may receive one or more Awards or Grants,
or any combination or type thereof. Employee and non-employee directors of the
Company are eligible to participate in this Plan.
4.2. Grants and Awards. The Committee will designate individuals to
whom Grants and/or Awards are to be issued and will specify the number of shares
of Common Stock subject to each such Grant or Award. An Option may be granted
alone or in addition to other Grants and/or Awards under the Plan. The Committee
shall have the authority to grant any Participant Incentive Stock Options,
Non-Qualified Stock Options or both types of Options (in each case with or
without a related SAR); provided, however, that Incentive Stock Options may be
granted only to employees of the Company and its subsidiaries (within the
meaning of Section 424(f) of the Code). An SAR may be granted with or without a
related Option. All Grants or Awards issued under this Plan shall be evidenced
by Agreements, which shall be subject to applicable provisions of this Plan and
to such other provisions as the Committee may determine. No Participant may be
granted Options that are Incentive Stock Options, or related SARs (under all
Incentive Stock Option plans of the Company and Affiliates) which are first
exercisable in any calendar year for stock having an aggregate Fair Market Value
(determined as of the date an Option is granted) exceeding $100,000. A
Participant may not receive Grants and Awards under this Plan with respect to
more than 200,000 shares of Common Stock during any calendar year.
4.3. Reload Options. The Committee shall have the authority to specify
at the time of Grant that an optionee shall be granted the right to a further
Non-Qualified Stock Option (a "Reload Option") in the event such optionee
exercises all or a part of an Option, including a Reload Option (an "Original
Option"), by surrendering in accordance with Section 8.2 hereof already owned
shares of Common Stock in full or partial payment of the Option Price under such
Original Option. Each Reload Option shall be granted on the date of exercise of
the Original Option, shall cover a number of shares of Common Stock not
exceeding the whole number of shares of Common Stock surrendered in payment of
the Option Price under such Original Option, shall have an Option Price equal to
the Fair Market Value on the date of Grant of such Reload Option, shall expire
on the stated expiration date of the Original Option and shall be subject to
such other terms and conditions as the Committee may determine.
5
4.4. Designation of Option as an Incentive Stock Option or a
Non-Qualified Stock Option. The Committee will designate at the time an Option
is granted whether the Option is to be treated as an Incentive Stock Option or a
Non-Qualified Stock Option. In the absence, however, of any such designation,
such Option shall be treated as a Non-Qualified Stock Option.
4.5. Qualification of Incentive Stock Option under Section 422 of the
Code. Anything in the Plan to the contrary notwithstanding, no term of the Plan
relating to Incentive Stock Options shall be interpreted, amended or altered nor
shall any discretion or authority granted under the Plan be exercised so as to
disqualify the Plan under Section 422 of the Code or, without the consent of the
optionee affected, to disqualify any Incentive Stock Option under such Section
422. No Option that is intended to be an Incentive Stock Option, however, shall
be invalid for failure to qualify as an Incentive Stock Option under Section 422
of the Code but shall be treated as a Non-Qualified Stock Option.
Article V
STOCK SUBJECT TO PLAN
5.1. Maximum Number of Shares to be Issued. Subject to the adjustment
provisions of Article XI and the provisions of (a) through (c) of this Article
V, up to 2,000,000 shares of Common Stock may be issued under the Plan. In
addition to such authorization, the following shares of Common Stock may be
issued under the Plan:
(a) Shares of Common Stock that are forfeited under the Prior
Plans and shares of Common Stock that are not issued under the Prior Plans
because of a payment of cash in lieu of shares of Common Stock, the
cancellation, termination or expiration of Grants and Awards, and/or other
similar events under the Prior Plans shall be available for issuance under this
Plan.
(b) If a Participant tenders, or has withheld, shares of Common
Stock in payment of all or part of the Option Price under an Option granted
under the Plan, or in satisfaction of withholding tax obligations thereunder,
the shares of Common Stock so tendered by the Participant or so withheld shall
become available for issuance under the Plan.
(c) If shares of Common Stock that are issued under the Plan are
subsequently forfeited in accordance with the terms of the Grant or Award, the
forfeited shares of Common Stock shall become available for issuance under the
Plan.
Notwithstanding (a) above, any shares of Common Stock that are
authorized to be issued under the Prior Plans prior to the expiration of its
term, but that are not issued or covered by Grants or Awards under the Prior
Plans, shall not be available for issuance under this Plan.
Subject to the adjustment provisions of Article XI, not more than
500,000 shares of Common Stock shall be issued under this Plan pursuant to
Awards of Common Stock, Restricted Stock and/or Phantom Stock.
6
Subject to the foregoing provisions of this Article V, if a Grant or an
Award may be paid only in shares of Common Stock, or in either cash or shares of
Common Stock, the shares of Common Stock shall be deemed to be issued hereunder
only when and to the extent that payment is actually made in shares of Common
Stock. However, the Committee may authorize a cash payment under a Grant or an
Award in lieu of shares of Common Stock if there are insufficient shares of
Common Stock available for issuance under the Plan.
5.2. Independent SARs. Upon the exercise of an SAR granted
independently of an Option, the Company may deliver to the Participant
authorized but previously unissued Common Stock, cash, or a combination thereof
as provided in Section 8.6. The maximum aggregate number of shares of Common
Stock that may be issued pursuant to SARs that are granted independently of
Options is subject to the provisions of Section 5.1. hereof.
Article VI
OPTION PRICE
The price per share for Common Stock purchased on the exercise of an
Option shall be fixed by the Committee, but shall not be less than the Fair
Market Value on the date of grant.
Article VII
EXERCISE OF OPTIONS AND SARS
7.1. Maximum Option Period or SAR Period. The period in which an Option
or SAR may be exercised shall be determined by the Committee on the date of
grant; provided, however that an Incentive Stock Option shall not be exercisable
after the expiration of 10 years from the date the Incentive Stock Option was
granted and any SAR related to an Incentive Stock Option may not be exercised
after the expiration of the underlying Incentive Stock Option.
7.2. Non-Transferability of Options and SARs. Non-Qualified Stock
Options and SARs may be transferable by a Participant and exercisable by a
person other than a Participant, but only to the extent specifically provided in
an Option or SAR Agreement. Incentive Stock Options and any related SARs, by
their terms, shall not be transferable except by will or by the laws of descent
and distribution and shall be exercisable, during the Participant's lifetime,
only by the Participant. No right or interest of a Participant in any Option or
SAR shall be liable for, or subject to, any lien, obligation or liability of
such Participant.
7.3. Employee Status. For purposes of determining the applicability of
Section 422 of the Code (relating to Incentive Stock Options), or in the event
that the terms of any Grant provide that it may be exercised only during
employment or within a specified period of time after termination of employment,
the Committee may decide to what extent leaves of absence for governmental or
military service, illness, temporary Disability, or other reasons shall not be
deemed interruptions of continuous employment.
7
Article VIII
METHOD OF EXERCISE
8.1. Exercise. Subject to the provisions of Articles VII and XII, an
Option or SAR may be exercised in whole at any time or in part from time to time
at such times and in compliance with such requirements as the Committee shall
determine; provided, however, that an SAR that is related to an Incentive Stock
Option may be exercised only to the extent that the related Option is
exercisable and when the Fair Market Value exceeds the Option Price of the
related Option. An Option or SAR granted under this Plan may be exercised with
respect to any number of whole shares less than the full number for which the
Option or SAR could be exercised. Such partial exercise of an Option or SAR
shall not affect the right to exercise the Option or SAR from time to time in
accordance with this Plan with respect to remaining shares subject to the Option
or SAR. The exercise of an Option shall result in the termination of any related
SAR to the extent of the number of shares with respect to which the Option is
exercised.
8.2. Payment. Unless otherwise provided by the Agreement, payment of
the Option Price shall be made in cash. If the Agreement provides, payment of
all or part of the Option Price may be made by surrendering (by either actual
delivery or attestation) already owned shares of Common Stock to the Company and
the payment of applicable withholding taxes may be made by the Company
withholding shares of Common Stock from the Participant upon exercise, provided
the shares surrendered or withheld have a Fair Market Value (determined as of
the day preceding the date of exercise) that is not less than such price or part
thereof and any such withholding taxes. In addition, the Committee may establish
such payment or other terms as it may deem to be appropriate and consistent with
these purposes.
8.3. Shareholder Rights. No Participant shall have any rights as a
shareholder with respect to shares subject to his Option or SAR until the date
he exercises such Option or SAR.
8.4. Cashless Exercise. To the extent permitted under the applicable
laws and regulations, at the request of the Participant and with the consent of
the Committee, the Company agrees to cooperate in a "cashless exercise" of the
Option. The cashless exercise shall be effected by the Participant delivering to
the Securities Broker instructions to exercise all or part of the Option,
including instructions to sell a sufficient number of shares of Common Stock to
cover the costs and expenses associated therewith. The Committee may permit a
Participant to elect to pay any applicable withholding taxes by requesting that
the Company withhold the number of shares of Common Stock equivalent at current
Fair Market Value to the withholding taxes due.
8.5. Cashing Out of Option. The Committee may elect to cash out all or
part of the portion of any Option to be exercised by paying the optionee an
amount, in cash or Common Stock, equal to the excess of the Fair Market Value of
the Common Stock that is the subject of the portion of the Option to be
exercised over the Option Price times the number of shares of Common Stock
subject to the portion of the Option to be exercised on the effective date of
such cash out.
8
8.6. Determination of Payment of Cash and/or Common Stock Upon Exercise
of SAR. At the Committee's discretion, the amount payable as a result of the
exercise of an SAR may be settled in cash, Common Stock, or a combination of
cash and Common Stock. No fractional shares shall be delivered upon the exercise
of an SAR but a cash payment will be made in lieu thereof.
Article IX
COMMON STOCK AND RESTRICTED STOCK
9.1. Award. In accordance with the provisions of Article IV, the
Committee will designate persons to whom an Award of Common Stock and/or
Restricted Stock is to be made and will specify the number of shares of Common
Stock covered by such Award or Awards.
9.2. Vesting. In the case of Restricted Stock, on the date of the
Award, the Committee may prescribe that the Participant's rights in the
Restricted Stock shall be forfeitable or otherwise restricted. Subject to the
provisions of Article XII hereof, the Committee may award Common Stock to a
Participant which is not forfeitable and is free of any restrictions on
transferability.
9.3. Shareholder Rights. Prior to their forfeiture in accordance with
the terms of the Agreement and while the shares are Restricted Stock, a
Participant will have all rights of a shareholder with respect to Restricted
Stock, including the right to receive dividends and vote the shares; provided,
however, that (i) a Participant may not sell, transfer, pledge, exchange,
hypothecate, or otherwise dispose of Restricted Stock, (ii) the Company shall
retain custody of the certificates evidencing shares of Restricted Stock, and
(iii) the Participant will deliver to the Company a stock power, endorsed in
blank, with respect to each award of Restricted Stock.
Article X
PHANTOM STOCK
10.1 Award. Pursuant to this Plan or an Agreement establishing
additional terms and conditions, the Committee may designate employees to whom
Awards of Phantom Stock may be made and will specify the number of shares of
Common Stock covered by the Award.
10.2 Vesting. On the date of the Award, the Committee may prescribe
that the Participant's right to receive payment for Phantom Stock shall be
forfeitable or otherwise restricted in any manner in the discretion of the
Committee for such period of time set forth in the Agreement.
10.3 Shareholder Rights. A Participant for whom Phantom Stock has been
credited generally shall have none of the rights of a shareholder with respect
to such Phantom Stock. However, a plan or Agreement for the use of Phantom Stock
may provide for the crediting of a
9
Participant's Phantom Stock account with cash or stock dividends declared with
respect to Common Stock represented by such Phantom Stock.
10.4 Payment. At the Committee's discretion, the amount payable to a
Participant for Phantom Stock credited to his account shall be made in cash,
Common Stock or a combination of cash and Common Stock.
10.5 Transferability of Phantom Stock. Phantom Stock may be
transferable by a Participant, but only to the extent specifically provided in
the Agreement. No right or interest of a Participant in any Phantom Stock shall
be liable for, or subject to, any lien, obligation or liability of such
Participant.
Article XI
ADJUSTMENT UPON CHANGE IN COMMON STOCK
Should the Company effect one or more (x) stock dividends, stock
split-ups, subdivisions or consolidations of shares or other similar changes in
capitalization; (y) spin-offs, spin-outs, split-ups, split-offs, or other such
distribution of assets to shareholders; or (z) direct or indirect assumptions
and/or conversions of outstanding Options due to an acquisition of the Company,
then the maximum number of shares as to which Grants and Awards may be issued
under this Plan shall be proportionately adjusted and their terms shall be
adjusted as the Committee shall determine to be equitably required, provided
that the number of shares subject to any Grant or Award shall always be a whole
number. Any determination made under this Article XI by the Committee shall be
final and conclusive.
The issuance by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, for cash or property
or for labor or services, either upon direct sale or upon the exercise of rights
or warrants to subscribe therefor, or upon conversion of shares or obligations
of the Company convertible into such shares or other securities, shall not
affect, and no adjustment by reason thereof shall be made with respect to any
Grant or Award.
Article XII
COMPLIANCE WITH LAW AND APPROVAL OF REGULATORY BODIES
No Grant shall be exercisable, no Common Stock shall be issued, no
certificates for shares of Common Stock shall be delivered, and no payment shall
be made under this Plan except in compliance with all applicable federal and
state laws and regulations (including, without limitation, withholding tax
requirements) and the rules of all domestic stock exchanges on which the
Company's shares may be listed. The Company may rely on an opinion of its
counsel as to such compliance. Any share certificate issued to evidence Common
Stock for which a Grant is exercised or an Award is issued may bear such legends
and statements as the Committee may deem advisable to assure compliance with
federal and state laws and regulations. No Grant shall be exercisable, no Common
Stock shall be issued, no certificate for shares shall
10
be delivered, and no payment shall be made under this Plan until the Company has
obtained such consent orapproval as the Committee may deem advisable from
regulatory bodies having jurisdiction over such matters.
Article XIII
GENERAL PROVISIONS
13.1 Effect on Employment. Neither the adoption of this Plan, its
operation, nor any documents describing or referring to this Plan (or any part
thereof) shall confer upon any employee any right to continue in the employ of
the Company or a Subsidiary or in any way affect any right and power of the
Company or a Subsidiary to terminate the employment of any employee at any time
with or without assigning a reason therefor.
13.2 Unfunded Plan. The Plan, insofar as it provides for a Grant or an
Award of Phantom Stock, is not required to be funded, and the Company shall not
be required to segregate any assets that may at any time be represented by a
Grant or an Award of Phantom Stock under this Plan.
13.3 Change of Control. Notwithstanding any other provision of the Plan
to the contrary, in the event of a Change of Control:
(a) Unless otherwise provided by the Committee in an Agreement,
any outstanding Option or SAR (including any limited SAR) or Phantom Stock which
is not presently exercisable and vested as of a Change of Control Date shall
become fully exercisable and vested to the full extent of the original Grant
upon such Change of Control Date.
(b) Unless otherwise provided by the Committee in an Agreement,
the restrictions applicable to any outstanding Restricted Stock shall lapse, and
such Restricted Stock shall become free of all restrictions and become fully
vested, nonforfeitable and transferable to the full extent of the original
Award. The Committee may also provide in an Agreement that a Participant may
elect, by written notice to the Company within 60 days after a Change of Control
Date, to receive, in exchange for shares that were Restricted Stock immediately
before the Change of Control Date, a cash payment equal to the Fair Market Value
of the shares surrendered on the last business day the Common Stock is traded on
the New York Stock Exchange prior to receipt by the Company of such written
notice.
(c) The Committee may, in its complete discretion, cause the
acceleration or release of any and all restrictions or conditions related to a
Grant or Award, in such manner, in the case of officers and directors of the
Company who are subject to Section 16(b) of the Exchange Act, as to conform to
the provisions of Rule 16b-3.
13.4 Rules of Construction. Headings are given to the articles and
sections of this Plan solely for ease of reference and are not to be considered
in construing the terms and
11
conditions of the Plan. The reference to any statute, regulation, or other
provision of law shall be construed to refer to any amendment to or successor of
such provision of law.
13.5 Rule 16b-3 Requirements. Notwithstanding any other provisions of
the Plan, the Committee may impose such conditions on any Grant or Award, and
the Board may amend the Plan in any such respects, as they may determine, on the
advice of counsel, are necessary or desirable to satisfy the provisions of Rule
16b-3. Any provision of the Plan to the contrary notwithstanding, and except to
the extent that the Committee determines otherwise: (a) transactions by and with
respect to officers and directors of the Company who are subject to Section
16(b) of the Exchange Act shall comply with any applicable conditions of Rule
16b-3; and (b) every provision of the Plan shall be administered, interpreted,
and construed to carry out the foregoing provisions of this sentence.
13.6 Amendment, Modification, and Termination. At any time and from
time to time, the Board may terminate, amend, or modify the Plan. Such amendment
or modification may be without shareholder approval except to the extent that
such approval is required by the Code, pursuant to the rules under Section 16 of
the Exchange Act, by any national securities exchange or system on which the
Common Stock is then listed or reported, by any regulatory body having
jurisdiction with respect thereto, or under any other applicable laws, rules, or
regulations. No termination, amendment, or modification of the Plan, other than
pursuant to Section 13.5 herein, shall in any manner adversely affect any Grant
or Award theretofore issued under the Plan, without the written consent of the
Participant. The Committee may amend the terms of any Grant or Award theretofore
issued under this Plan, prospectively or retrospectively, but no such amendment
shall impair the rights of any Participant without the Participant's written
consent except an amendment provided for or contemplated in the terms of the
Grant or Award, an amendment made to cause the Plan, or Grant or Award, to
qualify for the exemption provided by Rule 16b-3, or an amendment to make an
adjustment under Article XI. Except as provided in Article XI, the Option Price
of any outstanding Option may not be adjusted or amended, whether through
amendment, cancellation or replacement, unless such adjustment or amendment is
approved by the shareholders of the Company.
13.7 Governing Law. The validity, construction and effect of the Plan
and any actions taken or related to the Plan shall be determined in accordance
with the laws of the Commonwealth of Virginia and applicable federal law.
13.8 Successors and Assigns. All obligations of the Company under the
Plan, with respect to Grants and Awards issued hereunder shall be binding on any
successor to the Company, whether the existence of such successor is the result
of a direct or indirect purchase, merger, consolidation, or otherwise, of all or
substantially all of the business and/or assets of the Company. The Plan shall
be binding on all successors and permitted assigns of a Participant, including,
but not limited to, the estate of such Participant and the executor,
administrator or trustee of such estate, and the guardians or legal
representative of the Participant.
13.9 Effect on Prior Plans and Other Compensation Arrangements. The
adoption of this Plan shall have no effect on Grants and Awards made or to be
made pursuant to the Prior
12
Plans and the Company's other compensation arrangements. Nothing contained in
this Plan shall prevent the Company from adopting other or additional
compensation plans or arrangements for its officers, directors or employees.
13.10 Limitation of Implied Rights. Neither a Participant nor any other
person shall, by reason of participation in the Plan, acquire any right in or
title to any assets, funds or property of the Company or any Subsidiary
whatsoever, including, without limitation, any specific funds, assets, or other
property which the Company or any Subsidiary, in its sole discretion, may set
aside in anticipation of a liability under the Plan. Except for those rights in
Restricted Stock specifically set forth in subsection 9.3 hereof, a Participant
shall have only a contractual right to the Stock or amounts if any, payable
under the Plan, unsecured by any assets of the Company or any Subsidiary, and
nothing contained in the Plan shall constitute a guarantee that the assets of
the Company or any Subsidiary shall be sufficient to pay any benefits to any
person. The Plan does not constitute a contract of employment, and selection as
a Participant will not give any participating employee the right to be retained
in the employ of the Company or any Subsidiary, nor any right or claim to any
benefit under the Plan, unless such right or claim has specifically accrued
under the terms of the Plan. Except as otherwise provided in the Plan, no Award
or Grant under the Plan shall confer upon the holder thereof any rights as a
shareholder of the Company prior to the date on which the individual fulfills
all conditions for receipt of such rights.
13.11 Duration of Plan. No Grant or Award may be issued under this Plan
before July 1, 2002, or after June 30, 2012; provided, however, a Grant of a
Reload Option may be issued after June 30, 2012, upon the exercise of an
Original Option as provided in Section 4.3 hereof. Grants and Awards issued on
or after July 1, 2002, but on or before June 30, 2012, and Grants of Reload
Options issued after June 30, 2012 upon the exercise of an Original Option as
provided in Section 4.3 hereof, shall remain valid in accordance with their
terms.
13.12 Effective Date. This Plan has been approved by the Board,
effective as of July 1, 2002, and by the shareholders of the Company entitled to
vote at the 2002 Annual Meeting of the Shareholders. Amendments to the Plan were
approved by the Executive Committee of the Board, effective as of January 14,
2003, and such action of the Executive Committee was approved and ratified by
the Board on February 6, 2003. Amendments to the Plan were approved by the Board
of Directors of the Company effective as of August 7, 2003.
13
