Exhibit
1
AEGEAN
MARINE PETROLEUM NETWORK INC.
AMENDED
AND RESTATED
2006
EQUITY INCENTIVE PLAN
ARTICLE
I.
General
1.1. Purpose
The
Aegean Marine Petroleum Network Inc. 2006 Equity Incentive Plan
(the ”Plan”), as amended and restated, is designed to provide certain key
persons, whose initiative and efforts are deemed to be important to the
successful conduct of the business of Aegean Marine Petroleum Network Inc.
(the ”Company”), with incentives to (a) enter into and remain in the
service of the Company, (b) acquire a proprietary interest in the success
of the Company, (c) maximize their performance and (d) enhance the
long-term performance of the Company.
1.2. Administration
(a) Administration. The
Plan shall be administered by the Compensation Committee of the Company’s Board
of Directors (the ”Board”), or such other committee of the Board as may be
designated by the Board to administer the Plan (the ”Administrator”);
provided that (i) the Administrator shall be composed solely of two or
more directors who are “outside” directors for purposes of Section 162(m)
of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) in
the event the Company is subject to Section 16 of the Securities Exchange
Act of 1934, as amended (the “1934 Act”), the Administrator shall be
composed of two or more directors, each of whom is a “Non-Employee Director” (a
“Non-Employee Director”) under Rule 16b-3 (as promulgated and interpreted
by the Securities and Exchange Commission (the ”SEC”) under the 1934, or
any successor rule or regulation thereto as in effect from time to time);
provided further, however, that, prior to the date of the
consummation of the initial public offering of the Company’s Common Stock (as
defined below), the Administrator may be composed of one or more members
of the
Board, as determined by the Board. Subject to the terms of the Plan
and applicable law, and in addition to other express powers and authorizations
conferred on the Administrator by the Plan, the Administrator shall have
the
full power and authority to: (1) designate the persons to receive Awards
(as defined below) under the Plan; (2) determine the types of Awards
granted to a participant under the Plan; (3) determine the number of shares
to be covered by, or with respect to which payments, rights or other matters
are
to be calculated with respect to, Awards; (4) determine the terms and
conditions of any Awards; (5) determine whether, and to what extent, and
under what circumstances, Awards may be settled or exercised in cash, shares,
other securities, other Awards or other property, or cancelled, forfeited
or
suspended, and the methods by which Awards may be settled, exercised, cancelled,
forfeited or suspended; (6) determine whether, to what extent, and under
what circumstances cash, shares, other securities, other Awards, other property
and other amounts payable with respect to an Award shall be deferred, either
automatically or at the election of the holder thereof or the Administrator;
(7) construe, interpret and implement the Plan and any Award Agreement (as
defined below); (8) prescribe, amend, rescind or waive rules and
regulations relating to the Plan, including rules governing its operation;
(9) make all determinations necessary or advisable in administering the
Plan; (10) correct any defect, supply any omission and reconcile any
inconsistency in the Plan or any Award Agreement; and (11) make any other
determination and take any other action that the Administrator deems necessary
or desirable for the administration of the Plan. Unless otherwise
expressly provided in the Plan, all designations, determinations,
interpretations and other decisions under or with respect to the Plan or
any
Award shall be within the sole discretion of the Administrator, may be made
at
any time and shall be final, conclusive and binding upon all
persons.
(b) General
Right of Delegation. Except to the extent prohibited by
applicable law, the applicable rules of a stock exchange or any charter,
by-laws
or other agreement governing the Administrator, the Administrator may delegate
all or any part of its responsibilities to any person or persons selected
by it
and may revoke any such allocation or delegation at any time.
(c) Indemnification. No
member of the Board, the Administrator or any employee of the Company (each
such
person, a ”Covered Person”) shall be liable for any action taken or omitted
to be taken or any determination made in good faith with respect to the Plan
or
any Award hereunder. Each Covered Person shall be indemnified and
held harmless by the Company against and from (i) any loss, cost, liability
or expense (including attorneys' fees) that may be imposed upon or incurred
by
such Covered Person in connection with or resulting from any action, suit
or
proceeding to which such Covered Person may be a party or in which such Covered
Person may be involved by reason of any action taken or omitted to be taken
under the Plan or any Award Agreement and (ii) any and all amounts paid by
such
Covered Person, with the Company's approval, in settlement thereof, or paid
by
such Covered Person in satisfaction of any judgment in any such action, suit
or
proceeding against such Covered Person; provided that the Company shall
have the right, at its own expense, to assume and defend any such action,
suit
or proceeding and, once the Company gives notice of its intent to assume
the
defense, the Company shall have sole control over such defense with counsel
of
the Company's choice. The foregoing right of indemnification shall
not be available to a Covered Person to the extent that a court of competent
jurisdiction in a final judgment or other final adjudication, in either case
not
subject to further appeal, determines that the acts or omissions of such
Covered
Person giving rise to the indemnification claim resulted from such Covered
Person's bad faith, fraud or willful criminal act or omission or that such
right
of indemnification is otherwise prohibited by law or by the Company's Articles
of Incorporation or Bylaws. The foregoing right of indemnification
shall not be exclusive of any other rights of indemnification to which Covered
Persons may be entitled under the Company's Articles of Incorporation or
Bylaws,
as a matter of law, or otherwise, or any other power that the Company may
have
to indemnify such persons or hold them harmless.
(d) Delegation
of Authority to Senior Officers. The Administrator may delegate,
on such terms and conditions as it determines, to one or more senior officers
of
the Company the authority to make grants of Awards to key employees (other
than
officers) of the Company and its Subsidiaries (including any such prospective
key employee) and consultants of the Company and its Subsidiaries.
(e) Awards
to Non-Employee Directors. Notwithstanding anything to the
contrary contained herein, the Board may, in its sole discretion, at any
time
and from time to time, grant Awards to Non-Employee Directors or administer
the
Plan with respect to such Awards. In any such case, the Board shall
have all the authority and responsibility granted to the Administrator
herein.
1.3. Persons
Eligible for Awards
The
persons eligible to receive Awards under the Plan are those officers, directors,
and key employees (including any prospective officer or key employee) and
consultants of the Company and its Subsidiaries (collectively, “Key Persons”) as
the Administrator shall select.
1.4. Types
of Awards
Awards
may be made under the Plan in the form of (a) stock options, (b) stock
appreciation rights, (c) restricted stock, (d) restricted stock units
and (e) unrestricted stock, all as more fully set forth in the
Plan. The term “Award” means any of the foregoing that are granted
under the Plan.
1.5. Shares
Available for Awards; Adjustments for Changes in
Capitalization
(a) Maximum
Number. Subject to adjustment as provided in Section 1.5(c),
the aggregate number of shares of common stock of the Company, par
value $0.01 (“Common Stock”), with respect to which Awards may at any time
be granted under the Plan shall be 4,053,500. The following shares of
Common Stock shall again become available for Awards under the Plan:
(i) any shares that are subject to an Award under the Plan and that remain
unissued upon the cancellation or termination of such Award for any reason
whatsoever; (ii) any shares of restricted stock forfeited pursuant to the
Plan or the applicable Award Agreement; provided that any dividend
equivalent rights with respect to such shares that have not theretofore been
directly remitted to the grantee are also forfeited; and (iii) any shares
in respect of which a stock appreciation right or restricted stock unit is
settled for cash.
(b) Source
of Shares. Shares issued pursuant to the Plan may be authorized
but unissued Common Stock or treasury shares. The Administrator may
direct that any stock certificate evidencing shares issued pursuant to the
Plan
shall bear a legend setting forth such restrictions on transferability as
may
apply to such shares.
(c) Adjustments. (i) In
the event that the Administrator determines that any dividend or other
distribution (whether in the form of cash, Company shares, other securities
or
other property), recapitalization, stock split, reverse stock split,
reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase or exchange of Company shares or other securities of the Company,
issuance of warrants or other rights to purchase Company shares or other
securities of the Company, or other similar corporate transaction or event
affects the Company shares such that an adjustment is determined by the
Administrator to be appropriate or desirable, then the Administrator shall,
in
such manner as it may deem equitable or desirable, adjust the number of shares
or other securities of the Company (or number and kind of other securities
or
property) with respect to which Awards may be granted under the
Plan.
(ii) The
Administrator is authorized to make adjustments in the terms and conditions
of,
and the criteria included in, Awards in recognition of unusual or nonrecurring
events (including the events described in Section 1.5(c)(i) or the
occurrence of a Change in Control (as defined below)) affecting the Company,
any
Affiliate, or the financial statements of the Company or any Affiliate, or
of
changes in applicable rules, rulings, regulations or other requirements of
any
governmental body or securities exchange, accounting principles or law, whenever
the Administrator determines that such adjustments are appropriate or desirable,
including providing for (A) adjustment to (1) the number of shares or
other securities of the Company (or number and kind of other securities or
property) subject to outstanding Awards or to which outstanding Awards relate
and (2) the Exercise Price (as defined below) with respect to any Award and
(B) a substitution or assumption of Awards, accelerating the exercisability
or vesting of, or lapse of restrictions on, Awards, or accelerating the
termination of Awards by providing for a period of time for exercise prior
to
the occurrence of such event, or, if deemed appropriate or desirable, providing
for a cash payment to the holder of an outstanding Award in consideration
for
the cancellation of such Award (it being understood that, in such event,
any
option or stock appreciation right having a per share Exercise Price equal
to,
or in excess of, the Fair Market Value of a share subject to such option
or
stock appreciation right may be cancelled and terminated without any payment
or
consideration therefor).
(iii) In
the event of (A) a dissolution or liquidation of the Company, (B) a
sale of all or substantially all the Company’s assets or (C) a merger,
reorganization or consolidation involving the Company or one of its Subsidiaries
(as defined below), the Administrator shall have the power to:
(1) provide
that outstanding options, stock appreciation rights and/or restricted stock
units (including any related dividend equivalent right) shall either continue
in
effect, be assumed or an equivalent award shall be substituted therefor by
the
successor corporation or a “parent corporation” (as defined in
Section 424(e) of the Code or “subsidiary corporation” (as defined in
Section 424(f) of the Code);
(2) cancel,
effective immediately prior to the occurrence of such event, options, stock
appreciation rights and/or restricted stock units (including each dividend
equivalent right related thereto) outstanding immediately prior to such event
(whether or not then exercisable) and, in full consideration of such
cancellation, pay to the holder of such Award a cash payment in an amount
equal
to the excess, if any, of the Fair Market Value (as of a date specified by
the
Administrator) of the shares subject to such Award over the aggregate Exercise
Price of such Award (it being understood that, in such event, any option
or
stock appreciation right having a per share Exercise Price equal to, or in
excess of, the Fair Market Value of a share subject to such option or stock
appreciation right may be cancelled and terminated without any payment or
consideration therefor); or
(3) notify
the holder of an option or stock appreciation right in writing or electronically
that each option and stock appreciation right shall be fully vested and
exercisable for a period of 30 days from the date of such notice, or such
shorter period as the Administrator may determine to be reasonable, and the
option or stock appreciation right shall terminate upon the expiration of
such
period (which period shall expire no later than immediately prior to the
consummation of the corporate transaction).
(d) Individual
Limit. Except for the limits set forth in this Section 1.5(d),
no provision of this Plan shall be deemed to limit the number or value of
shares
of Common Stock with respect to which the Administrator may make Awards to
any
Key Person. Subject to adjustment as provided in Section 1.5(c),
the total number of shares of Common Stock with respect to which Awards may
be
granted to any one employee of the Company and its Subsidiaries during any
one
calendar year shall not exceed 2,000,000. Options and stock
appreciation rights granted and subsequently cancelled or deemed to be cancelled
(e.g., as a result of re-pricing) in a calendar year count against this
limit even after their cancellation. The provisions of this
Section 1.5(d) shall not apply in any circumstance with respect to which
the Administrator determines that compliance with Section 162(m) of the
Code is not necessary.
1.6. Definitions
of Certain Terms
(a) The
“Fair Market Value” of a share of Common Stock on any day shall be the closing
price on the New York Stock Exchange or, if the Common Stock is not listed
on
the New York Stock Exchange, the Nasdaq Stock Market, as reported for such
day
in The Wall Street Journal, or, if no such price is reported for such day,
the
average of the high bid and low asked price of Common Stock as reported for
such
day. If no quotation is made for the applicable day, the Fair Market
Value of a share of Common Stock on such day shall be determined in the manner
set forth in the preceding sentence for the next preceding trading
day. Notwithstanding the foregoing, if there is no reported closing
price or high bid/low asked price that satisfies the preceding sentences,
or if
otherwise deemed necessary or appropriate by the Administrator, the Fair
Market
Value of a share of Common Stock on any day shall be determined by such methods
and procedures as shall be established from time to time by the
Administrator. The “Fair Market Value” of any property other than
Common Stock shall be the fair market value of such property determined by
such
methods and procedures as shall be established from time to time by the
Administrator.
(b) Unless
otherwise set forth in an Award Agreement, in connection with a termination
of
employment or consultancy relationship or a dismissal from Board membership,
for
purposes of the Plan, the term “for Cause” shall be defined as
follows:
(i) if
there is an employment, severance, change in control or other agreement
governing the relationship between the grantee, on the one hand, and the
Company
or a Subsidiary, on the other hand, that contains a definition of “cause” (or
similar phrase), for purposes of the Plan, the term “for Cause” shall mean those
acts or omissions that would constitute “cause” under such agreement;
or
(ii) if
the preceding clause (i) is not applicable to the grantee, for purposes of
the Plan, the term “for Cause” shall mean any of the following:
(A) any
failure by the grantee substantially to perform the grantee’s employment or
Board membership duties;
(B) any
excessive unauthorized absenteeism by the grantee;
(C) any
refusal by the grantee to obey the lawful orders of the Board or any other
person to whom the grantee reports;
(D) any
act or omission by the grantee that is or may be injurious to the Company
or any
Affiliate, whether monetarily, reputationally or otherwise;
(E) any
act by the grantee that is inconsistent with the best interests of the Company
or any Affiliate;
(F) the
grantee’s gross negligence that is injurious to the Company or any Affiliate,
whether monetarily, reputationally or otherwise;
(G) the
grantee’s material violation of any of the Company’s policies, including,
without limitation, those policies relating to discrimination or sexual
harassment;
(H) the
grantee’s material breach of his or her employment or service contract with the
Company or any Affiliate;
(I) the
grantee’s unauthorized (1) removal from the premises of the Company or an
Affiliate of any document (in any medium or form) relating to the Company
or an
Affiliate or the customers or clients of the Company or an Affiliate or
(2) disclosure to any person or entity of any of the Company’s, or any
Affiliate’s, confidential or proprietary information;
(J) the
grantee’s being convicted of, or entering a plea of guilty or nolo contendere
to, any crime that constitutes a felony or involves moral turpitude;
and
(K) the
grantee’s commission of any act involving dishonesty or fraud.
Any
rights the Company may have under the Plan in respect of the events giving
rise
to a termination or dismissal “for Cause” shall be in addition to any other
rights the Company may have under any other agreement with a grantee or at
law
or in equity. Any determination of whether a grantee’s employment,
consultancy relationship or Board membership is (or is deemed to have been)
terminated “for Cause” shall be made by the Administrator. If,
subsequent to a grantee’s voluntary termination of employment or consultancy
relationship or voluntarily resignation from the Board or involuntary
termination of employment or consultancy relationship without Cause or removal
from the Board other than “for Cause”, it is discovered that the grantee’s
employment or consultancy relationship or Board membership could have been
terminated “for Cause”, the Administrator may deem such grantee’s employment or
consultancy relationship or Board membership to have been terminated “for Cause”
upon such discovery and determination by the Administrator.
(c) “Affiliate”
shall mean (i) any entity that, directly or indirectly, is controlled by,
controls or is under common control with, the Company and (ii) any entity
in which the Company has a significant equity interest, in either case as
determined by the Administrator.
(d) “Subsidiary”
shall mean any entity in which the Company, directly or indirectly, has a
50% or
more equity interest.
(e) “Exercise
Price” shall mean (i) in the case of options, the price specified in the
applicable Award Agreement as the price-per-share at which such share can
be
purchased pursuant to the option or (ii) in the case of stock appreciation
rights, the price specified in the applicable Award Agreement as the reference
price-per-share used to calculate the amount payable to the
grantee.
ARTICLE
II.
Awards Under The Plan
2.1. Agreements
Evidencing Awards
Each
Award granted under the Plan shall be evidenced by a written certificate
(“Award
Agreement”), which shall contain such provisions as the Administrator may deem
necessary or desirable and which may, but need not, require execution or
acknowledgment by a grantee. The Award shall be subject to all of the
terms and provisions of the Plan and the applicable Award
Agreement.
2.2. Grant
of Stock Options and Stock Appreciation Rights
(a) Stock
Option Grants. The Administrator may grant stock options
(“options”) to purchase shares of Common Stock from the Company to such Key
Persons, and in such amounts and subject to such vesting and forfeiture
provisions and other terms and conditions, as the Administrator shall determine,
subject to the provisions of the Plan. No option will be treated as
an “incentive stock option” for purposes of the Code.
(b) Stock
Appreciation Right Grants; Types of Stock Appreciation
Rights. The Administrator may grant stock appreciation rights to
such Key Persons, and in such amounts and subject to such vesting and forfeiture
provisions and other terms and conditions, as the Administrator shall determine,
subject to the provisions of the Plan. The terms of a stock
appreciation right may provide that it shall be automatically exercised for
a
payment upon the happening of a specified event that is outside the control
of
the grantee and that it shall not be otherwise exercisable. Stock
appreciation rights may be granted in connection with all or any part of,
or
independently of, any option granted under the Plan.
(c) Nature
of Stock Appreciation Rights. The grantee of a stock appreciation
right shall have the right, subject to the terms of the Plan and the applicable
Award Agreement, to receive from the Company an amount equal to (i) the
excess of the Fair Market Value of a share of Common Stock on the date of
exercise of the stock appreciation right over the Exercise Price of the stock
appreciation right, multiplied by (ii) the number of shares with respect to
which the stock appreciation right is exercised. Each Award Agreement
with respect to a stock appreciation right shall set forth the Exercise Price
of
such Award and, unless otherwise specifically provided in the Award Agreement,
the Exercise Price of a stock appreciation right shall equal the Fair Market
Value of a share of Common Stock on the date of grant; provided that in
no event may such Exercise Price be less than the greater of (A) the Fair
Market Value of a share of Common Stock on the date of grant and (B) the
par value of a share of Common Stock. Payment upon exercise of a
stock appreciation right shall be in cash or in shares of Common Stock (valued
at their Fair Market Value on the date of exercise of the stock appreciation
right) or both, all as the Administrator shall determine. Upon the
exercise of a stock appreciation right granted in connection with an option,
the
number of shares subject to the option shall be reduced by the number of
shares
with respect to which the stock appreciation right is exercised. Upon
the exercise of an option in connection with which a stock appreciation right
has been granted, the number of shares subject to the stock appreciation
right
shall be reduced by the number of shares with respect to which the option
is
exercised.
(d) Option
Exercise Price. Each Award Agreement with respect to an option
shall set forth the Exercise Price of such Award and, unless otherwise
specifically provided in the Award Agreement, the Exercise Price of an option
shall equal the Fair Market Value of a share of Common Stock on the date
of
grant; provided that in no event may such Exercise Price be less than the
greater of (i) the Fair Market Value of a share of Common Stock on the date
of grant and (ii) the par value of a share of Common Stock.
2.3. Exercise
of Options and Stock Appreciation Rights
Subject
to the other provisions of this Article II and the Plan, each option and
stock appreciation right granted under the Plan shall be exercisable as
follows:
(a) Timing
and Extent of Exercise. Options and stock appreciation rights
shall be exercisable at such times and under such conditions as determined
by
the Administrator and set forth in the corresponding Award Agreement, but
in no
event shall any portion of such Award be exercisable subsequent to the tenth
anniversary of the date on which such Award was granted. Unless the
applicable Award Agreement otherwise provides, an option or stock appreciation
right may be exercised from time to time as to all or part of the shares
as to
which such Award is then exercisable.
(b) Notice
of Exercise. An option or stock appreciation right shall be
exercised by the filing of a written notice with the Company or the Company’s
designated exchange agent (the “Exchange Agent”), on such form and in such
manner as the Administrator shall prescribe.
(c) Payment
of Exercise Price. Any written notice of exercise of an option
shall be accompanied by payment for the shares being purchased. Such
payment shall be made: (i) by certified or official bank check (or the
equivalent thereof acceptable to the Company or its Exchange Agent) for the
full
option Exercise Price; (ii) with the consent of the Administrator, which
consent shall be given or withheld in the sole discretion of the Administrator,
by delivery of shares of Common Stock having a Fair Market Value (determined
as
of the exercise date) equal to all or part of the option Exercise Price and
a
certified or official bank check (or the equivalent thereof acceptable to
the
Company or its Exchange Agent) for any remaining portion of the full option
Exercise Price; or (iii) at the sole discretion of the Administrator and
to the
extent permitted by law, by such other provision, consistent with the terms
of
the Plan, as the Administrator may from time to time prescribe (whether directly
or indirectly through the Exchange Agent).
(d) Delivery
of Certificates Upon Exercise. Subject to the provision of
Sections 3.2, 3.4 and 3.13, promptly after receiving payment of the
full option Exercise Price, or after receiving notice of the exercise of
a stock
appreciation right for which the Administrator determines payment will be
made
partly or entirely in shares, the Company or its Exchange Agent shall (i)
deliver to the grantee, or to such other person as may then have the right
to
exercise the Award, a certificate or certificates for the shares of Common
Stock
for which the Award has been exercised or, in the case of stock appreciation
rights, for which the Administrator determines will be made in shares or
(ii)
establish an account evidencing ownership of the stock in uncertificated
form.
If the method of
payment employed upon an option exercise so requires, and if applicable law
permits, an optionee may direct the Company or its Exchange Agent, as the
case
may be, to deliver the stock certificate(s) to the optionee’s
stockbroker.
(e) No
Stockholder Rights. No grantee of an option or stock appreciation
right (or other person having the right to exercise such Award) shall have
any
of the rights of a stockholder of the Company with respect to shares subject
to
such Award until the issuance of a stock certificate to such person for such
shares. Except as otherwise provided in Section 1.5(c), no
adjustment shall be made for dividends, distributions or other rights (whether
ordinary or extraordinary, and whether in cash, securities or other property)
for which the record date is prior to the date such stock certificate is
issued.
2.4. Termination
of Employment; Death Subsequent to a Termination of
Employment
(a) General
Rule. Except to the extent otherwise provided in
paragraphs (b), (c), (d), (e) or (f) of this Section 2.4 or
Section 3.5(b)(iii), a grantee who incurs a termination of employment or
consultancy relationship or dismissal from the Board may exercise any
outstanding option or stock appreciation right on the following terms and
conditions: (i) exercise may be made only to the extent that the grantee
was entitled to exercise the Award on the date of termination of employment
or
consultancy relationship or dismissal from the Board, as applicable; and
(ii) exercise must occur within three months after termination of
employment or consultancy relationship or dismissal from the Board but in
no
event after the original expiration date of the Award.
(b) Dismissal
“for Cause”. If a grantee incurs a termination of employment or
consultancy relationship or dismissal from the Board, in either case “for
Cause”, all options and stock appreciation rights not theretofore exercised
shall terminate upon the grantee’s termination of employment or consultancy
relationship or dismissal from the Board.
(c) Retirement. If
a grantee incurs a termination of employment as the result of his or her
retirement (as defined below), then any outstanding option or stock appreciation
right shall, to the extent exercisable at the time of such retirement, remain
exercisable for a period of three years after such termination of employment;
provided that in no event may such option or stock appreciation right be
exercised following the original expiration date of the Award. For
this purpose, “retirement” shall mean a grantee’s resignation of employment,
with the Company’s prior consent, on or after (i) his or her 65th birthday,
(ii) the date on which he or she has attained age 60 and completed at
least five years of service with the Company (using any method of calculation
the Administrator deems appropriate) or (iii) if approved by the
Administrator, on or after his or her having completed at least 20 years of
service with the Company (using any method of calculation the Administrator
deems appropriate).
(d) Disability. If
a grantee incurs a termination of employment or a dismissal from the Board
by
reason of a disability (as defined below), then any outstanding option or
stock
appreciation right shall, to the extent exercisable at the time of such
termination, remain exercisable for a period of one year after such termination
of employment; provided that in no event may such option or stock
appreciation right be exercised following the original expiration date of
the
Award. For this purpose, “disability” shall mean any physical or
mental condition that would qualify the grantee for a disability benefit
under
the long-term disability plan maintained by the Company or, if there is no
such
plan, a physical or mental condition that prevents the grantee from performing
the essential functions of the grantee’s position (with or without reasonable
accommodation) for a period of six consecutive months. The existence
of a disability shall be determined by the Administrator.
(e) Death.
(i) Termination
of Employment as a Result of Grantee’s Death. If a grantee
incurs a termination of employment or leaves the Board as the result of his
or
her death, then any outstanding option or stock appreciation right shall,
to the
extent exercisable at the time of such termination, remain exercisable for
a
period of one year after such termination of employment; provided that in
no event may such option or stock appreciation right be exercised following
the
original expiration date of the Award.
(ii) Restrictions
on Exercise Following Death. Any such exercise of an Award
following a grantee’s death shall be made only by the grantee’s executor or
administrator or other duly appointed representative reasonably acceptable
to
the Administrator, unless the grantee’s will specifically disposes of such
Award, in which case such exercise shall be made only by the recipient of
such
specific disposition. If a grantee’s personal representative or the
recipient of a specific disposition under the grantee’s will shall be entitled
to exercise any Award pursuant to the preceding sentence, such representative
or
recipient shall be bound by all the terms and conditions of the Plan and
the
applicable Award Agreement which would have applied to the grantee.
(f) Administrator
Discretion. The Administrator, in the applicable Award Agreement,
may waive or modify the application of the foregoing provisions of this
Section 2.4.
2.5. Transferability
of Options and Stock Appreciation Rights
Except
as otherwise provided in an applicable Award Agreement evidencing an option
or
stock appreciation right, during the lifetime of a grantee, each such Award
granted to a grantee shall be exercisable only by the grantee, and no such
Award
shall be assignable or transferable other than by will or by the laws of descent
and distribution. The Administrator may, in any applicable Award
Agreement evidencing an option or stock appreciation right, permit a grantee
to
transfer all or some of the options or stock appreciation rights to (a) the
grantee’s spouse, children or grandchildren (“Immediate Family Members”),
(b) a trust or trusts for the exclusive benefit of such Immediate Family
Members or (c) other parties approved by the
Administrator. Following any such transfer, any transferred options
and stock appreciation rights shall continue to be subject to the same terms
and
conditions as were applicable immediately prior to the transfer.
2.6. Grant
of Restricted Stock
(a) Restricted
Stock Grants. The Administrator may grant restricted shares of
Common Stock to such Key Persons, in such amounts and subject to such vesting
and forfeiture provisions and other terms and conditions as the Administrator
shall determine, subject to the provisions of the Plan. A grantee of
a restricted stock Award shall have no rights with respect to such Award
unless
such grantee accepts the Award within such period as the Administrator shall
specify by accepting delivery of a restricted stock agreement in such form
as
the Administrator shall determine and, in the event the restricted shares
are
newly issued by the Company, makes payment to the Company or its Exchange
Agent
by certified or official bank check (or the equivalent thereof acceptable
to the
Company and the Administrator) in an amount at least equal to the par value
of
the shares covered by the Award (which payment may be deemed satisfied and
waived by the Company at the time of grant of the restricted stock Award
to the
extent the restricted shares granted hereunder are otherwise deemed to be
fully
paid and non-assessable under applicable law).
(b) Issuance
of Stock Certificate. Promptly after a grantee accepts a
restricted stock Award in accordance with Section 2.6(a), subject to
Sections 3.2, 3.4 and 3.13, the Company or its Exchange Agent shall issue
to the grantee a stock certificate or stock certificates for the shares of
Common Stock covered by the Award or shall establish an account evidencing
ownership of the stock in uncertificated form. Upon the issuance of
such stock certificates, or establishment of such account, the grantee shall
have the rights of a stockholder with respect to the restricted stock, subject
to: (i) the nontransferability restrictions and forfeiture provision
described in the Plan (including paragraphs (d) and (e) of this
Section 2.6); (ii) in the Administrator’s sole discretion, a
requirement, as set forth in the Award Agreement, that any dividends paid
on
such shares shall be held in escrow and shall remain forfeitable until all
restrictions on such shares have lapsed; and (iii) any other restrictions
and conditions contained in the applicable Award Agreement.
(c) Custody
of Stock Certificate. Unless the Administrator shall otherwise
determine, any stock certificates issued evidencing shares of restricted
stock
shall remain in the possession of the Company until such shares are free
of any
restrictions specified in the applicable Award Agreement. The
Administrator may direct that such stock certificates bear a legend setting
forth the applicable restrictions on transferability.
(d) Nontransferability. Shares
of restricted stock may not be sold, assigned, transferred, pledged or otherwise
encumbered or disposed of prior to the lapsing of all restrictions thereon,
except as otherwise specifically provided in this Plan or the applicable
Award
Agreement. The Administrator at the time of grant shall specify the
date or dates (which may depend upon or be related to the attainment of
performance goals and other conditions) on which the nontransferability of
the
restricted stock shall lapse.
(e) Consequence
of Termination of Employment. A grantee’s termination of
employment or consultancy relationship or dismissal from the Board for any
reason (including death) shall cause the immediate forfeiture of all shares
of
restricted stock that have not yet vested as of the date of such termination
of
employment or consultancy relationship or dismissal from the
Board. All dividends paid on such shares that have not theretofore
been directly remitted to the grantee shall also be forfeited, whether by
termination of any escrow arrangement under which such dividends are held
or
otherwise.
2.7. Grant
of Restricted Stock Units
(a) Restricted
Stock Unit Grants. The Administrator may grant restricted stock
units to such Key Persons, and in such amounts and subject to such vesting
and
forfeiture provisions and other terms and conditions, as the Administrator
shall
determine, subject to the provisions of the Plan. A restricted stock
unit granted under the Plan shall confer upon the grantee a right to receive
from the Company, upon the occurrence of such vesting event as shall be
determined by the Administrator and specified in the Award Agreement, the
number
of such grantee’s restricted stock units that vest upon the occurrence of such
vesting event multiplied by the Fair Market Value of a share of Common Stock
on
the date of vesting. Payment upon vesting of a restricted stock unit
shall be in cash or in shares of Common Stock (valued at their Fair Market
Value
on the date of vesting) or both, all as the Administrator shall
determine.
(b) Dividend
Equivalents. The Administrator may include in any Award Agreement
with respect to a restricted stock unit a dividend equivalent right entitling
the grantee to receive amounts equal to the ordinary dividends that would
be
paid, during the time such Award is outstanding and unvested, on the shares
of
Common Stock underlying such Award if such shares were then
outstanding. In the event such a provision is included in a Award
Agreement, the Administrator shall determine whether such payments shall
be
(i) paid to the holder of the Award, as specified in the Award Agreement,
either (A) at the same time as the underlying dividends are paid,
regardless of the fact that the restricted stock unit has not theretofore
vested, or (B) at the time at which the Award’s vesting event occurs,
conditioned upon the occurrence of the vesting event, (ii) made in cash,
shares of Common Stock or other property and (iii) subject to such other
vesting and forfeiture provisions and other terms and conditions as the
Administrator shall deem appropriate and as shall set forth in the Award
Agreement.
(c) Consequence
of Termination of Employment. A grantee’s termination of
employment or consultancy relationship or dismissal from the Board for any
reason (including death) shall cause the immediate forfeiture of all restricted
stock units that have not yet vested as of the date of such termination of
employment or consultancy relationship or dismissal from the
Board. Any dividend equivalent rights that have not theretofore been
directly remitted to the grantee shall also be forfeited, whether by termination
of any escrow arrangement under which such dividends are held or
otherwise.
(d) No
Stockholder Rights. No grantee of a restricted stock unit shall
have any of the rights of a stockholder of the Company with respect to such
Award unless and until a stock certificate is issued with respect to such
Award
upon the vesting of such Award (it being understood that the Administrator
shall
determine whether to pay any vested restricted stock unit in the form of
cash or
Company shares or both). Except as otherwise provided in
Section 1.5(c), no adjustment to any restricted stock unit shall be made
for dividends, distributions or other rights (whether ordinary or extraordinary,
and whether in cash, securities or other property) for which the record date
is
prior to the date such stock certificate, if any, is issued.
(e) Transferability
of Restricted Stock Units. Except as otherwise provided in an
applicable Award Agreement evidencing a restricted stock unit, no restricted
stock unit granted under the Plan shall be assignable or
transferable. The Administrator may, in any applicable Award
Agreement evidencing a restricted stock unit, permit a grantee to transfer
all
or some of the restricted stock units to (i) the grantee’s Immediate Family
Members, (ii) a trust or trusts for the exclusive benefit of such Immediate
Family Members or (iii) other parties approved by the
Administrator. Following any such transfer, any transferred
restricted stock units shall continue to be subject to the same terms and
conditions as were applicable immediately prior to the transfer.
2.8. Grant
of Unrestricted Stock
The
Administrator may grant (or sell at a purchase price at least equal to par
value) shares of Common Stock free of restrictions under the Plan to such
Key
Persons and in such amounts and subject to such forfeiture provisions as
the
Administrator shall determine. Shares may be thus granted or sold in
respect of past services or other valid consideration.
ARTICLE
III.
Miscellaneous
3.1. Amendment
of the Plan; Modification of Awards
(a) Amendment
of the Plan. The Board may from time to time suspend,
discontinue, revise or amend the Plan in any respect whatsoever, except that
no
such amendment shall materially impair any rights or materially increase
any
obligations under any Award theretofore made under the Plan without the consent
of the grantee (or, upon the grantee’s death, the person having the right to
exercise the Award). For purposes of this Section 3.1, any
action of the Board or the Administrator that in any way alters or affects
the
tax treatment of any Award shall not be considered to materially impair any
rights of any grantee.
(b) Stockholder
Approval Requirement. Stockholder approval shall be required with
respect to any amendment to the Plan that (i) expands the types of Awards
available under the Plan (provided such approval shall not be required if
the
Company is a “foreign private issuer”, as defined in the rules of the SEC, or to
the extent the Administrator determines that compliance with Section 162(m)
of
the Code would not be necessary),(ii) increases the number of shares which
may be issued under the Plan (in the aggregate or to any individual), except
as
permitted pursuant to Section 1.5(c), (iii) has the effect of a
“re-pricing” of any outstanding Award, (iv) modifies the eligibility
requirements of persons eligible to receive Awards under the Plan or
(v) extends the term of the Plan.
(c) Modification
of Awards. The Administrator may cancel any Award under the
Plan. The Administrator also may amend any outstanding Award
Agreement, including, without limitation, by amendment which would:
(i) accelerate the time or times at which the Award becomes unrestricted,
vested or may be exercised; (ii) waive or amend any goals, restrictions or
conditions set forth in the Award Agreement; or (iii) waive or amend the
operation of Section 2.4 with respect to the termination of the Award upon
termination of employment or consultancy relationship or dismissal from the
Board. However, any such cancellation or amendment that materially
impairs the rights or materially increases the obligations of a grantee under
an
outstanding Award shall be made only with the consent of the grantee (or,
upon
the grantee’s death, the person having the right to exercise the
Award). In making any modification to an Award (e.g., an amendment
resulting in a direct or indirect reduction in the Exercise Price), the
Administrator may consider the implications under Section 409A of the Code
from
such modification.
3.2. Consent
Requirement
(a) No
Plan Action Without Required Consent. If the Administrator shall
at any time determine that any Consent (as defined below) is necessary or
desirable as a condition of, or in connection with, the granting of any Award
under the Plan, the issuance or purchase of shares or other rights thereunder,
or the taking of any other action thereunder (each such action being hereinafter
referred to as a “Plan Action”), then such Plan Action shall not be taken, in
whole or in part, unless and until such Consent shall have been effected
or
obtained to the full satisfaction of the Administrator.
(b) Consent
Defined. The term “Consent” as used herein with respect to any
Plan Action means (i) any and all listings, registrations or qualifications
in respect thereof upon any securities exchange or under any federal, state
or
local law, rule or regulation, (ii) any and all written agreements and
representations by the grantee with respect to the disposition of shares,
or
with respect to any other matter, which the Administrator shall deem necessary
or desirable to comply with the terms of any such listing, registration or
qualification or to obtain an exemption from the requirement that any such
listing, qualification or registration be made and (iii) any and all
consents, clearances and approvals in respect of a Plan Action by any
governmental or other regulatory bodies.
3.3. Nonassignability
Except
as provided in Sections 2.4(e), 2.5, 2.6(d)
or 2.7(e), (a) no Award or right
granted to any person under the Plan or under any Award Agreement shall be
assignable or transferable other than by will or by the laws of descent and
distribution and (b) all rights granted under the Plan or any Award
Agreement shall be exercisable during the life of the grantee only by the
grantee or the grantee’s legal representative or the grantee’s permissible
successors or assigns (as authorized and determined by the
Administrator). All terms and conditions of the Plan and the
applicable Award Agreements will be binding upon any permitted successors
or
assigns.
3.4. Taxes
(a) Withholding. A
grantee or other Award holder under the Plan shall be required to pay, in
cash,
to the Company, and the Company and Affiliates shall have the right and are
hereby authorized to withhold from any Award, from any payment due or transfer
made under any Award or under the Plan or from any compensation or other
amount
owing to such grantee or other Award holder, the amount of any applicable
withholding taxes in respect of an Award, its grant, its exercise, its vesting,
or any payment or transfer under an Award or under the Plan, and to take
such
other action as may be necessary in the opinion of the Company to satisfy
all
obligations for payment of such taxes. Whenever shares of Common
Stock are to be delivered pursuant to an Award under the Plan, with the approval
of the Administrator, which the Administrator shall have sole discretion
whether
or not to give, the grantee may satisfy the foregoing condition by electing
to
have the Company withhold from delivery shares having a value equal to the
amount of minimum tax required to be withheld. Such shares shall be
valued at their Fair Market Value as of the date on which the amount of tax
to
be withheld is determined. Fractional share amounts shall be settled
in cash. Such a withholding election may be made with respect to all
or any portion of the shares to be delivered pursuant to an Award.
(b) Liability
for Taxes. Grantees and holders of Awards are solely responsible
and liable for the satisfaction of all taxes and penalties that may arise
in
connection with Awards (including, without limitation, any taxes arising
under
Section 409A of the Code), and the Company shall not have any obligation to
indemnify or otherwise hold any such person harmless from any or all of such
taxes. The Administrator shall have the discretion to organize any
deferral program, to require deferral election forms, and to grant or to
unilaterally modify any Award in a manner that (i) conforms with the
requirements of Section 409A of the Code, (ii) voids any participant
election to the extent it would violate Section 409A of the Code and
(iii) for any distribution event or election that could be expected to
violate Section 409A of the Code, make the distribution only upon the
earliest of the first to occur of a “permissible distribution event” within the
meaning of Section 409A of the Code or a distribution event that the
participant elects in accordance with Section 409A of the
Code. The Administrator shall have the sole discretion to interpret
the requirements of the Code, including, without limitation, Section 409A,
for purposes of the Plan and all Awards.
3.5. Change
in Control
(a) Change
in Control Defined. For purposes of the Plan, “Change in Control”
shall mean the occurrence of any of the following:
(i) any
“person” (as defined in Section 13(d)(3) of the 1934 Act), corporation
or other entity (other than (A) the Company, (B) any trustee or other
fiduciary holding securities under an employee benefit plan of the Company
or an
Affiliate, (C) any company or other entity owned, directly or indirectly,
by the holders of the voting stock of the Company in substantially the same
proportions as their ownership of the aggregate voting power of the capital
stock ordinarily entitled to elect directors of the Company or (D) any
entity which Mr. Dimitris Melisanidis directly or indirectly “controls” (as
defined in Rule 12b-2 under the 1934 Act)) acquires “beneficial
ownership” (as defined in Rule 13d-3 under the 1934 Act), directly or
indirectly, of more than 50% of the aggregate voting power of the capital
stock
ordinarily entitled to elect directors of the Company;
(ii) the
sale of all or substantially all the Company’s assets in one or more related
transactions to a person or group of persons, other than such a sale (A) to
a Subsidiary which does not involve a change in the equity holdings of the
Company, (B) to an entity which Mr. Dimitris Melisanidis directly or
indirectly controls or (C) to an entity which has acquired all or
substantially all the Company’s assets (any such entity described in
clause (A), (B) or (C), the “Acquiring Entity”) if, immediately following
such sale, 50% or more of the aggregate voting power of the capital stock
ordinarily entitled to elect directors of the Acquiring Entity (or, if
applicable, the ultimate parent entity that directly or indirectly has
beneficial ownership of more than 50% of the aggregate voting power of the
capital stock ordinarily entitled to elect directors of the Acquiring Entity)
is
beneficially owned by the holders of the voting stock of the Company, and
such
voting power among the persons who were holders of the voting stock of the
Company immediately prior to such sale is, immediately following such sale,
held
in substantially the same proportions as the aggregate voting power of the
capital stock ordinarily entitled to elect directors of the Company immediately
prior to such sale;
(iii) any
merger, consolidation, reorganization or similar event of the Company or
any
Subsidiary as a result of which the holders of the voting stock of the Company
immediately prior to such merger, consolidation, reorganization or similar
event
do not directly or indirectly hold 50% or more of the aggregate voting power
of
the capital stock of the surviving entity (or, if applicable, the ultimate
parent entity that directly or indirectly has beneficial ownership of more
than
50% of the aggregate voting power of the capital stock ordinarily entitled
to
elect directors of the surviving entity) and such voting power among the
persons
who were holders of the voting stock of the Company immediately prior to
such
sale is, immediately following such sale, held in substantially the same
proportions as the aggregate voting power of the capital stock ordinarily
entitled to elect directors of the Company immediately prior to such
sale;
(iv) the
approval by the Company’s stockholders of a plan of complete liquidation or
dissolution of the Company; or
(v) during
any period of 24 consecutive calendar months, individuals:
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(A)
|
who
were directors of the Company on the first day of such period,
or
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|
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(B)
|
whose
election or nomination for election to the Board was recommended
or
approved by at least a majority of the directors then still in
office who
were directors of the Company on the first day of such period,
or whose
election or nomination for election were so
approved,
|
shall cease to constitute a majority of the Board;
provided,
however, that (1) in no event shall a Change in Control be deemed to
have occurred in connection with the initial public offering of Common Stock
and
(2) notwithstanding the foregoing, for each Award subject to
Section 409A of the Code, a Change in Control shall be deemed to occur
under this Plan with respect to such Award only if a change in the ownership
or
effective control of the Company or a change in the ownership of a substantial
portion of the assets of the Company shall also be deemed to have occurred
under
Section 409A, provided that this clause (2) shall apply to such
Award only to the extent necessary to avoid adverse tax effects under
Section 409A of the Code.
(b) Effect
of a Change in Control. Unless the Administrator provides
otherwise in a Award Agreement, upon the occurrence of a Change in
Control:
(i) notwithstanding
any other provision of this Plan, any Award then outstanding shall become
fully
vested and any Award in the form of an option or stock appreciation right
shall
be immediately exercisable;
(ii) to
the extent permitted by law and not otherwise limited by the terms of the
Plan,
the Administrator may amend any Award Agreement in such manner as it deems
appropriate;
(iii) a
grantee who incurs a termination of employment or consultancy relationship
or
dismissal from the Board for any reason, other than a termination or dismissal
“for Cause”, concurrent with or within one year following the Change in Control
may exercise any outstanding option or stock appreciation right, but only
to the
extent that the grantee was entitled to exercise the Award on the date of
his or
her termination of employment or consultancy relationship or dismissal from
the
Board, until the earlier of (A) the original expiration date of the Award
and (B) the later of (x) the date provided for under the terms of
Section 2.4 without reference to this Section 3.5(b)(iii) and
(y) the first anniversary of the grantee’s termination of employment or
consultancy relationship or dismissal from the Board.
(c) Miscellaneous. Whenever
deemed appropriate by the Administrator, any action referred to in
paragraph (b)(ii) of this Section 3.5 may be made conditional upon the
consummation of the applicable Change in Control transaction.
3.6. Operation
and Conduct of Business
Nothing
in the Plan or any Award Agreement shall be construed as limiting or preventing
the Company or any Affiliate from taking any action with respect to the
operation and conduct of their business that they deem appropriate or in
their
best interests, including any or all adjustments, recapitalizations,
reorganizations, exchanges or other changes in the capital structure of the
Company or any Affiliate, any merger or consolidation of the Company or any
Affiliate, any issuance of Company shares or other securities or subscription
rights, any issuance of bonds, debentures, preferred or prior preference
stock
ahead of or affecting the Common Stock or other securities or rights thereof,
any dissolution or liquidation of the Company or any Affiliate, any sale
or
transfer of all or any part of the assets or business of the Company or any
Affiliate, or any other corporate act or proceeding, whether of a similar
character or otherwise.
3.7. No
Rights to Awards
No
Key Person or other person shall have any claim to be granted any Award under
the Plan.
3.8. Right
of Discharge Reserved
Nothing
in the Plan or in any Award Agreement shall confer upon any grantee the right
to
continue his or her employment with the Company or any of its Affiliates,
his or
her consultancy relationship with the Company or any of its Affiliates, or
his
or her position as a director of the Company or any of its Affiliates, or
affect
any right that the Company or any of its Affiliates may have to terminate
such
employment or consultancy relationship or service as a director.
3.9. Non-Uniform
Determinations
The
Administrator’s determinations and the treatment of Key Persons and grantees and
their beneficiaries under the Plan need not be uniform and may be made and
determined by the Administrator selectively among persons who receive, or
who
are eligible to receive, Awards under the Plan (whether or not such persons
are
similarly situated). Without limiting the generality of the
foregoing, the Administrator shall be entitled, among other things, to make
non-uniform and selective determinations, and to enter into non-uniform and
selective Award Agreements, as to (a) the persons to receive Awards under
the Plan, (b) the types of Awards granted under the Plan, (c) the
number of shares to be covered by, or with respect to which payments, rights
or
other matters are to be calculated with respect to, Awards and (d) the
terms and conditions of Awards.
3.10. Other
Payments or Awards
Nothing
contained in the Plan shall be deemed in any way to limit or restrict the
Company from making any award or payment to any person under any other plan,
arrangement or understanding, whether now existing or hereafter in
effect.
3.11. Headings
Any
section, subsection, paragraph or other subdivision headings contained herein
are for the purpose of convenience only and are not intended to expand, limit
or
otherwise define the contents of such subdivisions.
3.12. Effective
Date and Term of Plan
(a) Adoption;
Stockholder Approval. The Plan was adopted by the Board on
November 2, 2006 , 2006. The Board may, but need not, make the
granting of any Awards under the Plan subject to the approval of the Company’s
stockholders.
(b) Termination
of Plan. The Board may terminate the Plan at any
time. All Awards made under the Plan prior to its termination shall
remain in effect until such Awards have been satisfied or terminated in
accordance with the terms and provisions of the Plan and the applicable Award
Agreements. No Awards may be granted under the Plan following the
tenth anniversary of the date on which the Plan was adopted by the
Board.
3.13. Restriction
on Issuance of Stock Pursuant to Awards
The
Company shall not permit any shares of Common Stock to be issued pursuant
to
Awards granted under the Plan unless such shares of Common Stock are fully
paid
and non-assessable under applicable law. Notwithstanding anything to
the contrary in the Plan or any Award Agreement, at the time of the exercise
of
any Award, at the time of vesting of any Award or at the time of grant of
any
unrestricted shares under the Plan, the Company and the Administrator may,
if
either shall deem it necessary or advisable for any reason, require the holder
of an Award (a) to represent in writing to the Company that it is the Award
holder’s then-intention to acquire the shares with respect to which the Award is
granted for investment and not with a view to the distribution thereof or
(b) to postpone the date of exercise until such time as the Company has
available for delivery to the Award holder a prospectus meeting the requirements
of all applicable securities laws; and no
shares shall be issued or transferred in
connection with any Award unless and until all legal requirements applicable
to
the issuance or transfer of such shares have been complied with to the
satisfaction of the Company and the Administrator. The Company and
the Administrator shall have the right to condition any issuance of shares
to
any Award holder hereunder on such person’s undertaking in writing to comply
with such restrictions on the subsequent transfer of such shares as the Company
or the Administrator shall deem necessary or advisable as a result of any
applicable law, regulation or official interpretation thereof, and all share
certificates delivered under the Plan shall be subject to such stop transfer
orders and other restrictions as the Company or the Administrator may deem
advisable under the Plan, the applicable Award Agreement or the rules,
regulations and other requirements of the SEC, any stock exchange upon which
such shares are listed, and any applicable securities or other laws, and
certificates representing such shares may contain a legend to reflect any
such
restrictions. The Administrator may refuse to issue or transfer any
shares or other consideration under an Award if it determines that the issuance
or transfer of such shares or other consideration might violate any applicable
law or regulation or entitle the Company to recover the same under
Section 16(b) of the 1934 Act, and any payment tendered to the Company
by a grantee or other Award holder in connection with the exercise of such
Award
shall be promptly refunded to the relevant grantee or other Award
holder. Without limiting the generality of the foregoing, no Award
granted under the Plan shall be construed as an offer to sell securities
of the
Company, and no such offer shall be outstanding, unless and until the
Administrator has determined that any such offer, if made, would be in
compliance with all applicable requirements of any applicable securities
laws.
3.14. Requirement
of Notification of Election Under Section 83(b) of the
Code
If
an Award recipient, in connection with the acquisition of Company shares
under
the Plan, makes an election under Section 83(b) of the Code (to include in
gross income in the year of transfer the amounts specified in Section 83(b)
of the Code), the grantee shall notify the Administrator of such election
within
ten days of filing notice of the election with the U.S. Internal Revenue
Service, in addition to any filing and notification required pursuant to
regulations issued under Section 83(b) of the Code.
3.15. Severability
If
any provision of the Plan or any Award is or becomes or is deemed to be invalid,
illegal, or unenforceable in any jurisdiction or as to any person or Award,
or
would disqualify the Plan or any Award under any law deemed applicable by
the
Administrator, such provision shall be construed or deemed amended to conform
to
the applicable laws or, if it cannot be construed or deemed amended without,
in
the determination of the Administrator, materially altering the intent of
the
Plan or the Award, such provision shall be stricken as to such jurisdiction,
person or Award and the remainder of the Plan and any such Award shall remain
in
full force and effect.
3.16. Governing
Law
The
Plan will be construed and administered in accordance with the laws of the
State
of New York, without giving effect to principles of conflict of
laws.
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