(a) The purpose of the Community Bankers Trust Corporation 2009 Stock Incentive Plan (the
“Plan”) is to further the long-term stability and financial success of Community Bankers Trust
Corporation (the “Company”) by attracting and retaining personnel, including employees or
directors, through the use of stock incentives. The Company believes that ownership of Company
Stock will stimulate the efforts of those persons upon whose judgment, interest and efforts the
Company is and will be largely dependent for the successful conduct of its business and will
further the identification of those persons’ interests with the interests of the Company’s
stockholders.
(b) The Plan was adopted by the Board of Directors of the Company on April 30, 2009, and shall
be effective such date, subject to the approval of the Plan by the Company’s stockholders.
2. Definitions.
(a) Act. The Securities Exchange Act of 1934, as amended.
(b) Applicable Withholding Taxes. The aggregate amount of federal, state and local
income and payroll taxes that the Company is required to withhold (based on the minimum applicable
statutory withholding rates) in connection with any exercise of an Option or the award, lapse of
restrictions or payment with respect to Restricted Stock.
(c) Award. The award of an Option, Restricted Stock, Stock Appreciation Right or
Other Stock-Based Award under the Plan.
(e) Cause. Dishonesty, fraud, misconduct, incompetence, negligence, breach of a
material fiduciary duty, material breach of an agreement with the Company, unauthorized use or
disclosure of confidential information or trade secrets, or conviction or confession of a crime
punishable by law (except minor violations), in each case as determined by the Committee, which
determination shall be binding. Notwithstanding the foregoing, if “Cause” is defined in an
employment agreement between a Participant and the Company, “Cause” shall have the meaning assigned
to it in such agreement.
(f) Change in Control.
(i) The acquisition by any Person (as defined below) of beneficial ownership of
more than 25% of the total fair market value or total voting power
(ii) Individuals who constitute the Board on the effective date of this Plan
(the “Incumbent Board”) cease to constitute at least a majority of the Board,
provided that any director whose nomination was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board will be considered a
member of the Incumbent Board;
(iii) The Company consummates a reorganization, merger, share exchange or
consolidation (a “Reorganization”), provided that no change in control will be
deemed to have occurred in connection with any Reorganization involving a
corporation or entity owned or proposed to be owned, directly or indirectly, by
stockholders of the Company if the stockholders’ ownership of the total voting power
of the corporation or entity resulting from such transaction constitutes at least a
majority of the ownership of the total voting power of the resulting entity and at
least a majority of the members of the board of directors of the resulting entity
were members of the Incumbent Board at the time of the execution of the initial
agreement providing for such transaction;
(iv) Approval by the stockholders of the Company of a complete liquidation or
dissolution of the Company, or of the sale or other disposition of all or
substantially all of the assets of the Company.
(v) For purposes of this Section 2(f), “Person” means any individual, entity or
group (within the meaning of Section 13(d)(3) of the Act), other than any employee
benefit plan (or related trust) sponsored or maintained by the Company or any
affiliated company, and “beneficial ownership” has the meaning given the term in
Rule 13d-3 under the Act.
(g) Code. The Internal Revenue Code of 1986, as amended.
(h) Committee. The Committee appointed to administer the Plan pursuant to Plan
Section 16, or if no such Committee has been appointed, the Board.
(i) Company. Community Bankers Trust Corporation, a Delaware corporation.
(j) Company Stock. Common stock of the Company. If the par value of the Company
Stock is changed, or in the event of a change in the capital structure of the Company (as provided
in Section 14 below), the shares resulting from such a change shall be deemed to be Company Stock
within the meaning of the Plan.
(k) Date of Grant. The effective date of an Award granted by the Committee.
(l) Disability or Disabled. As to an Incentive Stock Option, a Disability within the
meaning of Code Section 22(e)(3). As to all other Awards, the Committee shall determine whether a
Disability exists and such determination shall be conclusive.
(m) Fair Market Value.
(i) If the Company Stock is listed on any established stock exchange, its Fair
Market Value shall be the closing price for such stock on the Date of Grant as
reported by such exchange, or, if there are no trades on such date, the value shall
be determined as of the last preceding day on which the Company Stock was traded.
(ii) If the Company Stock is not publicly traded, the Fair Market Value shall
be determined by the Committee using any reasonable method in good faith.
(iii) Fair Market Value shall be determined as of the Date of Grant specified
in the Award.
(n) Incentive Stock Option. An Option intended to meet the requirements of, and
qualify for favorable federal income tax treatment under, Code Section 422.
(o) Nonstatutory Stock Option. An Option that does not meet the requirements of Code
Section 422, or that is otherwise not intended to be an Incentive Stock Option and is so
designated.
(p) Option. A right to purchase Company Stock granted under the Plan, at a price
determined in accordance with Section 6 of the Plan.
(q) Other Stock-Based Awards. Other types of equity-based or equity-related Awards
not otherwise described by the terms of the plan.
(r) Participant. Any individual who is granted an Award under the Plan.
(s) Related Option. An Option with respect to which a Stock Appreciation Right has
been granted.
(t) Restricted Stock. Company Stock awarded upon the terms and subject to the
restrictions set forth in Section 8 below.
(u) Rule 16b-3. Rule 16b-3 promulgated under the Act, including any corresponding
subsequent rule or any amendments to Rule 16b-3 enacted after the effective date of the Plan.
(v) Stock Appreciation Right or SAR. An Award, designated as a stock appreciation
right, granted to a Participant under the Plan as provided in Section 9.
(w) 10% Stockholder. A person who owns, directly or indirectly, stock possessing more
than 10% of the total combined voting power of all classes of stock of the Company or any parent or
subsidiary of the Company. Indirect ownership of stock shall be determined in accordance with Code
Section 424(d).
3. General. Awards of Options or Restricted Stock may be granted under the Plan.
Options granted under the Plan may be Incentive Stock Options or Nonstatutory Stock Options.
4. Stock.
(a) Subject to Section 14 of the Plan, there shall be reserved for issuance under the Plan an
aggregate of 2,650,000 shares of Company Stock, which may include authorized, but unissued, shares.
Shares allocable to Options granted under the Plan that expire or otherwise terminate unexercised
and shares that are forfeited pursuant to restrictions on Restricted Stock awarded under the Plan
may again be subjected to an Award under this Plan. For purposes of determining the number of
shares that are available for Awards under the Plan, such number shall include the number of shares
surrendered by a Participant or retained by the Company (i) in connection with the exercise of an
Option or (ii) in payment of Applicable Withholding Taxes.
(b) Subject to adjustment as provided in Section 14, no more than an aggregate of 1,500,000
shares of Company Stock may be issued pursuant to the exercise of Incentive Stock Options granted
under the Plan (including shares issued pursuant to the exercise of Incentive Stock Options that
are the subject of disqualifying dispositions within the meaning of Sections 421, 422 and 423 of
the Code).
(c) The maximum number of shares with respect to which Awards may be granted in any calendar
year to any employee during such calendar year shall be 500,000 shares.
5. Eligibility.
(a) Any employee or director of the Company (including an employee or director of a subsidiary
or affiliate of the Company) or consultant retained by the Company or any of its subsidiaries who,
in the judgment of the Committee, has contributed or can be expected to contribute to the profits
or growth of the Company is eligible to become a Participant. The Committee shall have the power
and complete discretion, as provided in Section 16, to select eligible Participants and to
determine for each Participant the terms, conditions and nature of the Award and the number of
shares to be allocated as part of the Award; provided, however, that any Award made to a member of
the Committee must be approved by the Board. The Committee is expressly authorized to make an
Award to a Participant conditioned on the surrender for cancellation of an existing Award.
(b) The grant of an Award shall not obligate the Company to pay an employee any particular
amount of remuneration, to continue the employment of the employee after the grant, or to make
further grants to the employee at any time thereafter.
(c) Non-employee directors shall not be eligible to receive the Award of an Incentive Stock
Option.
6. Stock Options.
(a) Whenever the Committee deems it appropriate to grant Options, notice shall be given to the
Participant stating the number of shares for which Options are granted, the exercise price per
share, whether the options are Incentive Stock Options or Nonstatutory Stock Options, and the
conditions to which the grant and exercise of the Options are subject. This notice, when duly
accepted in writing by the Participant, shall become a stock option agreement between the Company
and the Participant.
(b) The Committee shall establish the exercise price of Options. The exercise price of an
Incentive Stock Option shall be not less than 100% of the Fair Market Value of such shares on the
Date of Grant, provided that if the Participant is a 10% Stockholder, the exercise price of an
Incentive Stock Option shall not be less than 110% of the Fair Market Value of such shares on the
Date of Grant. The exercise price of Nonstatutory Stock Option Awards intended to be
performance-based for purposes of Code Section 162(m) shall not be less than 100% of the Fair
Market Value of such shares on the Date of Grant.
(c) Subject to subsection (d) below, Options may be exercised in whole or in part at such
times as may be specified by the Committee in the Participant’s stock option agreement. The
Committee may impose such vesting conditions and other requirements as the Committee deems
appropriate, and the Committee may include such provisions regarding a Change in Control as the
Committee deems appropriate.
(d) The Committee shall establish the term of each Option in the Participant’s stock option
agreement. The term of an Incentive Stock Option shall not be longer than ten years from the Date
of Grant, except that an Incentive Stock Option granted to a 10% Stockholder shall not have a term
in excess of five years. No Option may be exercised after the expiration of its term or, except as
set forth in the Participant’s stock option agreement, after the termination of the Participant’s
employment. The Committee shall set forth in the Participant’s stock option agreement when, and
under what circumstances, an Option may be exercised after termination of the Participant’s
employment or period of service; provided that no Incentive Stock Option may be exercised after (i)
three months from the Participant’s termination of employment with the Company for reasons other
than Disability or death, or (ii) one year from the Participant’s termination of employment on
account of Disability or death. The Committee may, in its sole discretion, amend a previously
granted Incentive Stock Option to provide for more liberal exercise provisions, provided, however,
that if the Incentive Stock Option as amended no longer meets the requirements of Code Section 422,
and, as a result the Option no longer qualifies for favorable federal income tax treatment under
Code Section 422, the amendment shall not become effective without the written consent of the
Participant.
(e) An Incentive Stock Option, by its terms, shall be exercisable in any calendar year only to
the extent that the aggregate Fair Market Value (determined at the Date of Grant) of the Company
Stock with respect to which Incentive Stock Options are exercisable by
the Participant for the first time during the calendar year does not exceed $100,000 (the
“Limitation Amount”). Incentive Stock Options granted under the Plan and all other plans of the
Company and any parent or subsidiary of the Company shall be aggregated for purposes of determining
whether the Limitation Amount has been exceeded. The Board may impose such conditions as it deems
appropriate on an Incentive Stock Option to ensure that the foregoing requirement is met. If
Incentive Stock Options that first become exercisable in a calendar year exceed the Limitation
Amount, the excess Options will be treated as Nonstatutory Stock Options to the extent permitted by
law.
(f) If a Participant dies and if the Participant’s stock option agreement provides that part
or all of the Option may be exercised after the Participant’s death, then such portion may be
exercised by the personal representative of the Participant’s estate during the time period
specified in the stock option agreement.
(g) If a Participant’s employment or services is terminated by the Company for Cause, the
Participant’s Options shall terminate as of the date of the misconduct.
7. Method of Exercise of Options.
(a) Options may be exercised by giving written notice of the exercise to the Company, stating
the number of shares the Participant has elected to purchase under the Option. Such notice shall
be effective only if accompanied by the exercise price in full in cash; provided that, if the terms
of an Option so permit, the Participant may (i) deliver Company Stock that the Participant has
previously acquired and owned (valued at Fair Market Value on the date of exercise), or (ii)
deliver a properly executed exercise notice together with irrevocable instructions to a broker to
deliver promptly to the Company, from the sale or loan proceeds with respect to the sale of Company
Stock or a loan secured by Company Stock, the amount necessary to pay the exercise price and, if
required by the Committee, Applicable Withholding Taxes. Unless otherwise specifically provided in
the Option, any payment of the exercise price paid by delivery of Company Stock acquired directly
or indirectly from the Company shall be paid only with shares of Company Stock that have been held
by the Participant for more than six months (or such longer or shorter period of time required to
avoid a charge to earnings for financial accounting purposes).
(b) The Company may place on any certificate representing Company Stock issued upon the
exercise of an Option any legend deemed desirable by the Company’s counsel to comply with federal
or state securities laws. The Company may require of the Participant a customary indication of his
or her investment intent. A Participant shall not possess stockholder rights with respect to
shares acquired upon the exercise of an Option until the Participant has made any required payment,
including payment of Applicable Withholding Taxes, and the Company has issued a certificate for the
shares of Company Stock acquired.
(c) Notwithstanding anything herein to the contrary, Awards shall always be granted and
exercised in such a manner as to conform to the provisions of Rule 16b-3.
8. Restricted Stock Awards.
(a) Whenever the Committee deems it appropriate to grant a Restricted Stock Award, notice
shall be given to the Participant stating the number of shares of Restricted Stock for which the
Award is granted, the Date of Grant, and the terms and conditions to which the Award is subject.
Certificates representing the shares shall be issued in the name of the Participant, subject to the
restrictions imposed by the Plan and the Committee. A Restricted Stock Award may be made by the
Committee in its discretion without cash consideration.
(b) The Committee may place such restrictions on the transferability and vesting of Restricted
Stock as the Committee deems appropriate, including restrictions relating to continued employment
and financial performance goals. Without limiting the foregoing, the Committee may provide
performance or Change in Control acceleration parameters under which all, or a portion, of the
Restricted Stock will vest on the Company’s achievement of established performance objectives or
upon the occurrence of a Change in Control. Restricted Stock may not be sold, assigned,
transferred, disposed of, pledged, hypothecated or otherwise encumbered until the restrictions on
such shares shall have lapsed or shall have been removed pursuant to subsection (c) below.
(c) The Committee shall establish as to each Restricted Stock Award the terms and conditions
upon which the restrictions on transferability set forth in paragraph (b) above shall lapse. Such
terms and conditions may include, without limitation, the passage of time, the meeting of
performance goals, the lapsing of such restrictions as a result of the Disability, death or
retirement of the Participant, or the occurrence of a Change in Control.
(d) A Participant shall hold shares of Restricted Stock subject to the restrictions set forth
in the Award agreement and in the Plan. In other respects, the Participant shall have all the
rights of a stockholder with respect to the shares of Restricted Stock, including, but not limited
to, the right to vote such shares and the right to receive all cash dividends and other
distributions paid thereon. Certificates representing Restricted Stock shall bear a legend
referring to the restrictions set forth in the Plan and the Participant’s Award agreement. If
stock dividends are declared on Restricted Stock, such stock dividends or other distributions shall
be subject to the same restrictions as the underlying shares of Restricted Stock.
(e) If a Participant’s employment or services is terminated by the Company for Cause, the
Participant’s unvested Restricted Stock shall be cancelled as of the date of the misconduct.
9. Stock Appreciation Rights.
(a) Whenever the Committee deems it appropriate, Stock Appreciation Rights may be granted in
connection with all or any part of an Option or in a separate Award. The following provisions
apply to all Stock Appreciation Rights that are not granted in connection with Options:
(i) Stock Appreciation Rights shall entitle the employee, upon exercise of all
or any part of the Stock Appreciation Rights, to receive in exchange from the
Company an amount equal to the excess of (x) the Fair Market Value on the date of
exercise of the Company Stock covered by the surrendered Stock Appreciation Rights
over (y) the price of the Company Stock on the Date of Grant of the Stock
Appreciation Right. The Committee may limit the amount that the employee will be
entitled to receive upon exercise of Stock Appreciation Rights.
(ii) A Stock Appreciation Right may only be exercised at a time when the Fair
Market Value of the Company Stock covered by the Stock Appreciation Right exceeds
the Fair Market Value of the Company Stock on the Date of Grant of the Stock
Appreciation Right.
(b) The following provisions apply to all Stock Appreciation Rights that are granted in
connection with Options:
(i) Stock Appreciation Rights shall entitle the employee, upon exercise of all
or any part of the Stock Appreciation Rights, to surrender to the Company
unexercised that portion of the underlying Option relating to the same number of
shares of Company Stock as is covered by the Stock Appreciation Rights (or the
portion of the Stock Appreciation Rights so exercised) and to receive in exchange
from the Company an amount in cash or shares of Company Stock (as provided in the
Stock Appreciation Right) equal to the excess of (x) the Fair Market Value on the
date of exercise of the Company Stock covered by the surrendered portion of the
underlying Option over (y) the exercise price of the Company Stock covered by the
surrendered portion of the underlying Option. The Committee may limit the amount
that the employee will be entitled to receive upon exercise of the Stock
Appreciation Right.
(ii) Upon the exercise of a Stock Appreciation Right and surrender of the
related portion of the underlying Option, the Option, to the extent surrendered,
shall not thereafter be exercisable.
(iii) Subject to any further conditions upon exercise imposed by the Committee,
a Stock Appreciation Right issued in tandem with an Option shall be exercisable only
to the extent that the Related Option is exercisable, except that in no event shall
a Stock Appreciation Right held by an executive officer or director of the Company
be exercisable for cash within the first six months after it is awarded even though
the Related Option is or becomes exercisable, and shall expire no later than the
date on which the Related Option expires.
(iv) A Stock Appreciation Right may only be exercised at a time when the Fair
Market Value of the Company Stock covered by the Stock Appreciation Right exceeds
the exercise price of the Company Stock covered by the underlying Option.
(c) The manner in which the Company’s obligation arising upon the exercise of a Stock
Appreciation Right shall be determined by the Committee and shall be set forth in the Option
agreement or the related Stock Appreciation Rights agreement. The Committee may provide for
payment in Company stock or cash, or a fixed combination of Company stock or cash, or the Committee
may reserve the right to determine the manner of payment at the time the Stock Appreciation Right
is exercised. Shares of Company Stock issued upon the exercise of a Stock Appreciation Right shall
be valued at their Fair Market Value on the date of exercise.
10. Other Stock-Based Awards.
(a) The Committee is authorized to grant other types of equity-based or equity-related Awards
not otherwise described by the terms of the Plan (including the grant or offer for sale of
unrestricted shares of Company Stock) to Participants in such amounts and subject to such terms and
conditions as the Committee shall determine. Such Awards shall be referred to as “Other
Stock-Based Awards.” Each such Other Stock-Based Award may involve the transfer of actual shares
to Participants or payment in cash or otherwise of amounts based on the value of shares of Company
Stock.
(b) Each Other Stock-Based Award shall be expressed in terms of shares or units or an
equivalent measurement based on shares, as determined by the Committee. If the value of an Other
Stock-Based Award will be based on the appreciation of shares from an initial value determined as
of the date of grant, then such initial value shall not be less than the Fair Market Value of a
share on the date of grant of such Other Stock-Based Award (or, if the Committee so determines, in
the case of any Other Stock-Based Award retroactively granted in tandem with or in substitution for
another Award or any other outstanding award, on the date of grant of such other Award or award).
11. Applicable Withholding Taxes. Each Participant shall agree, as a condition of
receiving an Award, to pay to the Company, or make arrangements satisfactory to the Company
regarding the payment of, all Applicable Withholding Taxes with respect to the Award. Until the
Applicable Withholding Taxes have been paid or arrangements satisfactory to the Company have been
made, no stock certificates (or, in the case of Restricted Stock, no stock certificates free of a
restrictive legend) shall be issued to the Participant. As an alternative to making a cash payment
to the Company to satisfy Applicable Withholding Tax obligations, the Committee may establish
procedures permitting the Participant to elect to (a) deliver shares of already owned Company Stock
or (b) have the Company retain that number of shares of Company Stock that would satisfy all or a
specified portion of the Applicable Withholding Taxes. Any such election shall be made only in
accordance with procedures established by the Committee to avoid a charge to earnings for financial
accounting purposes and in accordance with Rule 16b-3.
12. Nontransferability of Awards.
(a) In general, Awards, by their terms, shall not be transferable by the Participant except by
will or by the laws of descent and distribution or except as described
below. Options shall be exercisable, during the Participant’s lifetime, only by the Participant or
by his guardian or legal representative.
(b) Notwithstanding the provisions of (a) and subject to federal and state securities laws,
the Committee may grant or amend Nonstatutory Stock Options that permit a Participant to transfer
the Options to one or more immediate family members, to a trust for the benefit of immediate family
members, or to a partnership, limited liability company, or other entity the only partners,
members, or interest-holders of which are among the Participant’s immediate family members.
Consideration may not be paid for the transfer of Options. The transferee of an Option shall be
subject to all conditions applicable to the Option prior to its transfer. The agreement granting
the Option shall set forth the transfer conditions and restrictions. The Committee may impose on
any transferable Option and on stock issued upon the exercise of an Option such limitations and
conditions as the Committee deems appropriate.
13. Termination, Modification, Change. If not sooner terminated by the Board, this
Plan shall terminate at the close of business on June 17, 2019. No Awards shall be made under the
Plan after its termination. The Board may terminate the Plan or may amend the Plan in such
respects as it shall deem advisable; provided, that, unless authorized by the Company’s
stockholders, no change shall be made that (a) increases the total number of shares of Company
Stock reserved for issuance pursuant to Awards granted under the Plan (except pursuant to Section
14), (b) expands the class of persons eligible to receive Awards, (c) materially increases the
benefits accruing to Participants under the Plan, or (d) otherwise requires stockholder approval
under the Code, Rule 16b-3, or the rules of a domestic exchange on which Company Stock is traded.
Notwithstanding the foregoing, the Board may unilaterally amend the Plan and Awards as it deems
appropriate to ensure compliance with Rule 16b-3 and to cause Incentive Stock Options to meet the
requirements of the Code and regulations thereunder. Except as provided in the preceding sentence,
a termination or amendment of the Plan shall not, without the consent of the Participant, adversely
affect a Participant’s rights under an Award previously granted to the Participant.
14. Change in Capital Structure.
(a) In the event of a stock dividend, stock split or combination of shares, spin-off,
recapitalization or merger in which the Company is the surviving corporation, or other change in
the Company’s capital stock (including, but not limited to, the creation or issuance to
stockholders generally of rights, options or warrants for the purchase of common stock or preferred
stock of the Company), the number and kind of shares of stock or securities of the Company to be
issued under the Plan (under outstanding Awards and Awards to be granted in the future), the
exercise price of options, and other relevant provisions shall be appropriately adjusted by the
Committee, whose determination shall be binding on all persons. If the adjustment would produce
fractional shares with respect to any Award, the Committee may adjust appropriately the number of
shares covered by the Award so as to eliminate the fractional shares.
(b) In the event the Company distributes to its stockholders a dividend, or sells or causes to
be sold to a person other than the Company or a subsidiary shares of stock in
any corporation (a “Spinoff Company”) which, immediately before the distribution or sale, was a
majority owned subsidiary of the Company, the Committee shall have the power, in its sole
discretion, to make such adjustments as the Committee deems appropriate. The Committee may make
adjustments in the number and kind of shares or other securities to be issued under the Plan (under
outstanding Awards and Awards to be granted in the future), the exercise price of Options, and
other relevant provisions, and, without limiting the foregoing, may substitute securities of a
Spinoff Company for securities of the Company. The Committee shall make such adjustments as it
determines to be appropriate, considering the economic effect of the distribution or sale on the
interests of the Company’s stockholders and the Participants in the businesses operated by the
Spinoff Company. The Committee’s determination shall be binding on all persons. If the adjustment
would produce fractional shares with respect to any Award, the Committee may adjust appropriately
the number of shares covered by the Award so as to eliminate the fractional shares.
(c) Notwithstanding anything in the Plan to the contrary, the Committee may take the foregoing
actions without the consent of any Participant, and the Committee’s determination shall be
conclusive and binding on all persons for all purposes. The Committee shall make its
determinations consistent with Rule 16b-3 and the applicable provisions of the Code.
(d) To the extent required to avoid a charge to earnings for financial accounting purposes,
adjustments made by the Committee pursuant to this Section 14 to outstanding Awards shall be made
so that both (i) the aggregate intrinsic value of an Award immediately after the adjustment is not
greater than or less than the Award’s aggregate intrinsic value before the adjustment and (ii) the
ratio of the exercise price per share to the market value per share is not reduced.
15. Change in Control. In the event of a Change in Control of the Company, the
Committee may take such actions with respect to Awards as the Committee deems appropriate. These
actions may include, but shall not be limited to, the following:
(a) Provide for the purchase or settlement of any such Award by the Company for any amount of
cash equal to the amount which could have been obtained upon the exercise of such award or
realization of a Participant’s rights had such Award been currently exercisable or payable;
(b) Make adjustments to Awards then outstanding as the Committee deems appropriate to reflect
such Change in Control; provided, however, that such adjustments shall be made so that both (i) the
aggregate intrinsic value of an Award immediately after the adjustment is not less than or greater
than the Award’s aggregate intrinsic value before the Award and (ii) the ratio of the exercise
price per share to the market value per share is not reduced; or
(c) Cause any such Award then outstanding to be assumed, or new rights substituted therefore,
by the acquiring or surviving corporation in such Change in Control.
16. Administration of the Plan.
(a) The Plan shall be administered by the Committee, who shall be appointed by the Board. If
no Committee is appointed, the Plan shall be administered by the Board. To the extent required by
Rule 16b-3, all Awards shall be made by members of the Committee who are “Non-Employee Directors”
as that term is defined in Rule 16b-3, or by the Board. Awards that are intended to be
performance-based for purposes of Code Section 162(m) shall be made by the Committee, or
subcommittee of the Committee, comprised solely of two or more “outside directors” as that term is
defined for purposes of Code Section 162(m).
(b) The Committee shall have the authority to impose such limitations or conditions upon an
Award as the Committee deems appropriate to achieve the objectives of the Award and the Plan.
Without limiting the foregoing and in addition to the powers set forth elsewhere in the Plan, the
Committee shall have the power and complete discretion to determine (i) which eligible persons
shall receive an Award and the nature of the Award, (ii) the number of shares of Company Stock to
be covered by each Award, (iii) whether Options shall be Incentive Stock Options or Nonstatutory
Stock Options, (iv) the Fair Market Value of Company Stock, (v) the time or times when an Award
shall be granted, (vi) whether an Award shall become vested over a period of time, according to a
performance-based vesting schedule or otherwise, and when it shall be fully vested, (vii) the terms
and conditions under which restrictions imposed upon an Award shall lapse, (viii) whether a Change
in Control exists, (ix) factors relevant to the lapse of restrictions on Restricted Stock or
Options, (x) when Options may be exercised, (xi) whether to approve a Participant’s election with
respect to Applicable Withholding Taxes, (xii) conditions relating to the length of time before
disposition of Company Stock received in connection with an Award is permitted, (xiii) notice
provisions relating to the sale of Company Stock acquired under the Plan, and (xiv) any additional
requirements relating to Awards that the Committee deems appropriate. Notwithstanding the
foregoing, no “tandem stock options” (where two stock options are issued together and the exercise
of one option affects the right to exercise the other option) may be issued in connection with
Incentive Stock Options.
(c) The Committee shall have the power to amend the terms of previously granted Awards so long
as the terms as amended are consistent with the terms of the Plan and, where applicable, consistent
with the qualification of an Option as an Incentive Stock Option. The consent of the Participant
must be obtained with respect to any amendment that would adversely affect the Participant’s rights
under the Award, except that such consent shall not be required if such amendment is for the
purpose of complying with Rule 16b-3 or any requirement of the Code applicable to the Award.
(d) The Committee may adopt rules and regulations for carrying out the Plan. The Committee
shall have the express discretionary authority to construe and interpret the Plan and the Award
agreements, to resolve any ambiguities, to define any terms, and to make any other determinations
required by the Plan or an Award agreement. The interpretation and construction of any provisions
of the Plan or an Award agreement by the Committee shall be final and conclusive. The Committee
may consult with counsel, who may be counsel to the Company, and shall not incur any liability for
any action taken in good faith in reliance upon the advice of counsel.
(e) A majority of the members of the Committee shall constitute a quorum, and all actions of
the Committee shall be taken by a majority of the members present. Any action may be taken by a
written instrument signed by all of the members, and any action so taken shall be fully effective
as if it had been taken at a meeting.
17. Notice. All notices and other communications required or permitted to be given
under this Plan shall be in writing and shall be deemed to have been duly given if delivered
personally, electronically, or mailed first class, postage prepaid, as follows: (a) if to the
Company — at its principal business address to the attention of the Secretary; (b) if to any
Participant — at the last address of the Participant known to the sender at the time the notice or
other communication is sent.
18. Compliance with Code Section 409A. To the extent applicable, this Plan is
intended to comply with Section 409A of the Code, and the Committee shall interpret and administer
the Plan in accordance therewith. In addition, any provision, including, without limitation, any
definition, in this Plan document that is determined to violate the requirements of Section 409A of
the Code shall be void and without effect and any provision, including, without limitation, any
definition, that is required to appear in this Plan document under Section 409A of the Code that is
not expressly set forth shall be deemed to be set forth herein, and the Plan shall be administered
in all respects as if such provisions were expressly set forth. In addition, the timing of certain
payment of benefits provided for under this Plan shall be revised as necessary for compliance with
Section 409A of the Code.
19. Interpretation and Governing Law. The terms of this Plan and Awards granted
pursuant to the Plan shall be governed, construed and administered in accordance with the laws of
the State of Delaware. The Plan and Awards are subject to all present and future applicable
provisions of the Code and, to the extent applicable, they are subject to all present and future
rulings of the Securities and Exchange Commission with respect to Rule 16b-3. If any provision of
the Plan or an Award conflicts with any such Code provision or ruling, the Committee shall cause
the Plan to be amended, and shall modify the Award, so as to comply, or if for any reason
amendments cannot be made, that provision of the Plan or the Award shall be void and of no effect.
Dates Referenced Herein and Documents Incorporated by Reference