SPORTSQUEST, INC.
Exhibit
4.1
Article
I
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 Stock Units, a Stock Award or an Incentive Award.
1.4. Board
means
the Board of Directors of the Company.
1.5. 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.
1.6. Commission
means
the Securities and Exchange Commission or any successor agency.
1.7. Committee
means
the Compensation Committee of the Board.
1.8. Common
Stock
means
the Common Stock of the Company.
1.9. Company
means
SportsQuest, Inc.
1.10. 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.
1.11. Exchange
Act
means
the Securities Exchange Act of 1934, as amended from time to time, and any
successor thereto.
1.12. Fair
Market Value
of a
share of Common Stock as of any given date means the closing sale price of
a
share of Common Stock on the exchange or other market on which the Common
Stock
then trades on such date, or if the Common Stock was not traded on such date,
then the next succeeding date that the Common Stock was traded on such exchange,
in either case as reported by such source as the Committee may
select.
1.13. Grant
means
the grant of an Option or an SAR, or both.
1.14. Incentive
Award
means a
cash-denominated Award which, subject to such terms and conditions as may
be
prescribed by the Committee, entitles the Participant to receive a payment,
in
(i) cash, (ii) Common Stock, (iii) Stock Units or (iv) a combination of cash,
Common Stock or Stock Units.
1.15. Incentive
Stock Option
means an
Option that is intended to qualify as an “incentive stock option” under Section
422 of the Code.
1.16. 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.
1.17. Non-Qualified
Stock Option
means an
Option other than an Incentive Stock Option.
1.18. 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.
1.19. Option
Price
means
the price per share for Common Stock purchased on the exercise of an Option
as
provided in Article VI.
1.20. Participant
means an
officer, director, employee or consultant 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.
1.21. Performance
Measure
means
one or more of the following selected by the Committee to measure Company
and/or
business unit performance: net income; basic or diluted earnings per share;
net
revenues; gross profit; income before income taxes; earnings before interest
and
taxes; earnings before interest, taxes, depreciation and amortization; economic
profit; free cash flow; operating income; return on assets; return on funds
employed; return on equity; and the price of Common Stock; each as determined
in
accordance with generally accepted accounting principles, where applicable,
as
consistently applied by the Company and, if so determined by the Committee
prior
to the expiration of the performance period, adjusted, to the extent permitted
under Section 162(m) of the Code, to omit the effects of extraordinary items,
the gain or loss on the disposal of a business segment, unusual or infrequently
occurring events and transactions, and cumulative effects of changes in
accounting principles. Performance Measure may vary from performance period
to
performance period and from Participant to Participant and may be established
on
a stand-alone basis, in tandem or in the alternative.
1.22. Plan
means
the SportsQuest, Inc. 2007 Stock Incentive Plan.
1.23. 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.
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1.24. 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.
1.25. 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.
1.26. Stock
Award
means
Common Stock awarded to a Participant pursuant to Article IX.
1.27. Stock
Unit
means an
award stated with reference to a share of Common Stock that entitles the
holder
to receive a payment for each Stock Unit equal to the Fair Market Value of
a
share of Common Stock on the date of payment. At the Committee’s discretion, the
Participant’s rights in Stock Units may be forfeitable or otherwise restricted
and may be paid in cash, Common Stock or a combination of cash or Common
Stock.
1.28. 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
The
Plan
is intended to assist the Company in recruiting and retaining officers,
directors, employees and consultants 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 better align their interests with
those
of the Company and its shareholders. The Plan is intended to permit the award
of
Stock Awards, Stock Units and Incentive Awards, and the grant 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.
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Article
III
The
Plan
shall be administered by the Committee. If no Committee is established at
any
time, the Plan shall be administered by the Board. 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 a Stock Award,
Incentive Award or award of Stock Units, including, by way of example and
not of
limitation, requirements that a Participant complete a specified period of
employment or service with the Company or a Subsidiary, requirements that
the
Company achieve a specified level of financial performance or financial return.
Notwithstanding any such conditions, the Committee may, in its discretion,
accelerate the time at which any Option or SAR may be exercised or the time
at
which a Stock Award may become transferable or nonforfeitable or both; provided,
however, that if an Award is subject to Code section 409A, any acceleration
must
satisfy the requirements of such Code section. 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 provided such modifications are permitted
by
Code section 409A, if applicable.
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
4.1. General.
Any
officer, director, employee or consultant 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 performance 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.
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4.3. 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.
4.4. 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
5.1. Maximum
Number of Shares to be Issued.
Subject
to the adjustment provisions of Article XII and the provisions of (a) and
(b) of
this Section 5.1, up to 2,000,000 shares of Common Stock plus any shares
remaining under the Prior Plan on the effective date 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 Plan and shares of Common
Stock
that are not issued under the Prior Plan because of the cancellation,
termination or expiration of Grants and Awards, and/or other similar events
under the Prior Plan shall be available for issuance under this
Plan.
(b) Shares
of
Common Stock that are forfeited under the Plan and shares of Common Stock
that
are not issued under the Plan because of the cancellation, termination or
expiration of Grants and Awards and/or other similar events under the Plan,
shall be available for issuance under the Plan.
Subject
to the adjustment provisions of Article XII, not more than 500,000 shares
of
Common Stock shall be issued under this Plan pursuant to Stock Awards, Stock
Units or Incentive Awards.
Subject
to the foregoing provisions of this Section 5.1, 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.
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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
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
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. The term of exercisability of any Option may not be extended
or
renewed except as may be permitted by Code section 409A.
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 such transfer is
not
made for value, specifically provided for in an Option or SAR Agreement and
subject to applicable securities laws requirements. 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.
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Article
VIII
8.1. Exercise.
Subject
to the provisions of Articles VII and XIII, 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
minimum statutory withholding taxes may be made by the Company withholding
whole
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 minimum statutory 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 to shareholder of the Company with respect
to shares subject to his Option or SAR until the date he exercises his 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 minimum statutory
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.
8.6. 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.
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Article
IX
9.1. Award.
In
accordance with the provisions of Article IV, the Committee will designate
persons to whom a Stock Award is to be made and will specify the number of
shares of Common Stock covered by such Award or Awards.
9.2. Vesting.
The
Committee, on the date of the Award, may prescribe that the Participant’s rights
in a Stock Award shall be forfeitable or otherwise restricted for a period
of
time or subject to the satisfaction of performance objectives, including
performance objectives stated with reference to Performance Measures, or
such
other conditions as may be set forth in an Agreement. Subject to the provisions
of Article XIII hereof, the Committee may award a Stock Award 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 shares
of
Common Stock granted pursuant to a Stock Award may be forfeited or are
nontransferable), a Participant will have all rights of a shareholder with
respect to a Stock Award, 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 shares of Stock granted
pursuant to a Stock Award, (ii) the Company shall retain custody of the
certificates evidencing shares of Common Stock granted pursuant to a Stock
Award, and (iii) the Participant will deliver to the Company a stock power,
endorsed in blank, with respect to each Stock Award.
Article
X
10.1. Award.
Pursuant
to this Plan or an Agreement establishing additional terms and conditions,
the
Committee may designate each individual to whom an award of Stock Units is
to be
made and will specify the number of Stock Units covered by the
Award.
10.2. Earning
the Award.
The
Committee, on the date of grant of the Award, may prescribe that the Stock
Units
or a portion thereof, will be earned only upon, and the Participant will
be
entitled to receive a payment pursuant to the Award of Stock Units, only
upon
the satisfaction of performance objectives or such other criteria as may
be
prescribed by the Committee and set forth in the Agreement, including
performance objectives stated with reference to Performance Measures.
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10.3. Shareholder
Rights.
No
Participant shall, as a result of receiving a Stock Unit Award, have any
of the
rights of a shareholder with respect to such Stock Unit Award until and to
the
extent such Stock Units are earned and settled in shares of Common Stock.
10.4. Payment.
At the
Committee’s discretion, the amount payable when an award of Stock Units is
earned may be settled in cash, Common Stock or a combination of cash and
Common
Stock. Fractional shares shall be deliverable when an Award of Stock Units
is
earned.
10.5. Nontransferability.
A
Participant may not sell, transfer, pledge, exchange, hypothecate or otherwise
dispose of a Stock Unit Award other than by will or the laws of descent and
distribution and the Participant’s right or interest in a Stock Unit Award may
not be liable for, or subject to, any lien, obligation or liability of such
Participant.
Article
XI
11.1. Award.
The
Committee shall designate Participants to whom Incentive Awards are made.
All
Incentive Awards shall be finally determined exclusively by the Committee
under
the procedures established by the Committee. With respect to an Incentive
Award
based on a performance period of one year, no Participant may receive an
Incentive Award payment in any calendar year that exceeds $2,500,000. With
respect to an Incentive Award based on a performance period of more than
one
year, no Participant may receive an Incentive Award payment in any calendar
year
that exceeds the product of (i) $200,000 and (ii) the number of months in
the
performance period.
11.2. Terms
and Conditions.
The
Committee, at the time an Incentive Award is made, shall specify the terms
and
conditions which govern the Award. The restrictions set forth in the Agreement
must include the attainment of performance objectives, including performance
objectives stated with reference to Performance Measures. By way of example
and
not of limitation, the performance objectives may provide that the Incentive
Award will be earned only if the Company, a Subsidiary or the Company and
its
Subsidiaries or the Participant achieve stated objectives, including objectives
stated with reference to Performance Measures.
11.3. Payment.
In
the
discretion of the Committee, the Award payable when an Incentive Award is
earned, may be settled in cash, by the issuance of Common Stock, grant of
Stock
Units, or a combination of cash, Common Stock and/or Stock Units.
11.4. Nontransferability.
Incentive
Awards granted under this Plan shall be nontransferable except by will or
by the
laws of descent and distribution. No right or interest of a Participant in
an
Incentive Award shall be liable for, or subject to, any lien, obligation,
or
liability of such Participant.
11.5. Employee
Status.
If
the
terms of an Incentive Award provide that a payment will be made thereunder
only
if the Participant completes a stated period of employment or service, 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 or service.
11.6. Shareholder
Rights.
No
Participant shall, as a result of receiving an Incentive Award, have any
rights
as to shareholder of the Company or any Subsidiary on account of such Award
until, and except to the extent that, the Incentive Award is earned and settled
in shares of Common Stock.
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Article
XII
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 XII 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
XIII
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 be delivered, and no payment shall be made
under
this Plan until the Company has obtained such consent or approval as the
Committee may deem advisable from regulatory bodies having jurisdiction over
such matters.
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Article
XIV
14.1. 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.
14.2. Unfunded
Plan.
The
Plan, insofar as it provides for a Grant or an Award, 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 under this Plan.
14.3. 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 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.
14.4. 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.
14.5. 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 14.4 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 XII.
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14.6. Repricing
of Options and SARs.
An
Option
or SAR may not be repriced
without the approval of the shareholders of the Company after the date of
grant
of such Option or SAR. For this purpose, a repricing means any of the following
(or such other action that has the same effect as any of the following):
(a)
amending the terms of an Option or SAR to reduce the exercise price of such
Option or the xxxxx xxxxx of an SAR; (b) taking any action that is treated
as a
repricing under generally accepted accounting principles; and (c) repurchasing
for cash or canceling an Option or SAR in exchange for another Award at a
time
when the exercise price of such Option or xxxxx xxxxx of such SAR is greater
than the Fair Market Value of Common Stock, unless the cancellation and exchange
occurs in connection with an event set forth in Article XII. Such cancellation
and exchange is considered a repricing regardless of whether it is treated
as a
repricing under generally accepted accounting principles and regardless of
whether it is voluntary on the part of the Participant.
14.7. 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 State
of
Delaware and applicable federal law.
14.8. 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.
14.9. 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 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, employees or consultants.
14.10. 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 Stock Awards 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.
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14.11. Duration
of Plan. No
Grant
or Award may be issued under this Plan before November 21, 2007, or after
November 21, 2017. Grants and Awards issued on or after November 21, 2007,
but
on or before November 21, 2017, shall remain valid in accordance with their
terms.
14.12. Effective
Date.
This
Plan has been approved by the Board, effective as of November 21, 2007. The
Board may decide whether to place the approval of the plan before the
shareholders of the Company entitled to vote.
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