Exhibit
10.67


 


priceline.com Incorporated


1999 Omnibus Plan


 


1.             Establishment
and Purpose.


 


There is hereby adopted the priceline.com Incorporated
1999 Omnibus Plan (the “Plan”). The Plan is intended to promote the interests
of priceline.com Incorporated (the “Company”) by providing employees of the
Company with appropriate incentives and rewards to en courage them to enter
into and continue in the employ of the Company and to acquire a proprietary
interest in the long-term success of the Company; and to reward the performance
of individual officers, other employees, consultants and directors in
fulfilling their responsibilities for long-range achievements.


 


2.             Definitions.


 


As used in the Plan, the following definitions apply
to the terms indicated below:


 


(a)          “Affiliate” means an
affiliate of the Company, as defined in Rule 12b-2 promulgated under Section 12
of the Exchange Act.


 


(b)         “Agreement” shall mean
the written agreement between the Company and a Participant evidencing an
Award.


 


(c)          “Award” means any
Option, Restricted Stock or Other Stock-Based Award granted under the Plan.


 


(d)         “Beneficial Owner” shall
have the meaning set forth in Rule 13d-3 under the Exchange Act.


 


(e)          “Board” shall mean the
Board of Directors of the Company.


 


(f)            “Cause” shall mean (1)
the willful and continued failure by the Participant substantially to perform
his or her duties and obligations to the Company (other than any such failure
resulting from his or her incapacity due to physical or mental illness); (2)
the willful engaging by the Participant in misconduct which is materially
injurious to the Company; (3) the commission by the Participant of a felony; or
(4) the commission by the Participant of a crime against the Company which is
materially injurious to the Company. For purposes of this Section 2(f), no act,
or failure to act, on a Participant’s part shall be considered “willful” unless
done, or omitted to be done, by the Participant in bad faith and without
reasonable belief that his or her action or omission was in the best interest
of the Company. Determination of Cause shall be made by the Committee in its
sole discretion.


 


(g)         “Change in Control” means
the occurrence of any one of the following events:


 


(i)                       any
Person is or becomes the Beneficial Owner, directly or indirectly, of
securities of the Company (not including in the securities beneficially owned
by such person any securities acquired directly from the Company or its
Affiliates) representing 25% or more of the combined voting power of the Company’s
then outstanding voting securities;


 


(ii)                    the
following individuals cease for any reason to constitute a majority of the
number of directors then serving: individuals who, on the Effective Date,
constitute the Board and any new director (other than a director whose initial
assumption of office is in connection with an actual or threatened election
contest, including but not limited to a consent solicitation, relating to the
election of directors of the Company) whose appointment or election by the
Board or


 


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nomination for election
by the Company’s stock holders was approved or recommended by a vote of at
least two-thirds (2/3) of the directors then still in office who either were
directors on the Effective Date or whose appointment, election or nomination
for election was previously so approved or recommended;


 


(iii)                 there
is consummated a merger or consolidation of the Company or any direct or
indirect subsidiary of the Company with any other corporation, other than (A) a
merger or consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent (either
by remaining outstanding or by being converted into voting securities of the
surviving or parent entity) more than 50% of the combined voting power of the
voting securities of the Company or such surviving or parent entity out
standing immediately after such merger or consolidation or (B) a merger or
consolidation effected to implement a recapitalization of the Company (or
similar transaction) in which no Person, directly or indirectly, acquired 25%
or more of the combined voting power of the Company’s then outstanding
securities (not including in the securities beneficially owned by such person
any securities acquired directly from the Company or its Affiliates); or


 


(iv)                the
stockholders of the Company approve a plan of complete liquidation of the
Company or there is consummated an agreement for the sale or disposition by the
Company of all or substantially all of the Company’s assets (or any transaction
having a similar effect), other than a sale or disposition by the Company of
all or substantially all of the Company’s assets to an entity, at least 50% of
the combined voting power of the voting securities of which are owned by
stockholders of the Company in substantially the same proportions as their
ownership of the Company immediately prior to such sale.


 


(h)         “Code” shall mean the
Internal Revenue Code of 1986, as amended from time to time, and any
regulations promulgated thereunder.


 


(i)             “Committee” means (1)
with respect to the application of this Plan to employees and consultants, a
committee established by the Board, which committee shall be intended to consist
of two or more non-employee directors, each of whom shall be a “non-employee
director” as defined in Rule 16b-3 of the Exchange Act and an “outside director”
as defined under Section 162(m) of the Code and (2) with respect to the
application of this Plan to Non-Employee Directors, the Board.


 


(j)             “Company” means
priceline.com Incorporated, a corporation organized under the laws of the State
of Delaware, or any successor corporation.


 


(k)          “Director” shall mean a
member of the Board.


 


(l)             “Disability” shall
mean: (1) any physical or mental condition that would qualify a Participant for
a disability benefit under the long-term disability plan maintained by the
Company and applicable to him or her; (2) when used in connection with the
exercise of an Incentive Stock Option following termination of employment,
disability within the meaning of Section 22(e)(3) of the Code, or (3) such
other condition as may be determined in the sole discretion of the Committee to
constitute Disability.


 


(m)       “Effective Date” shall mean
the effective date of the Initial Public Offering, provided that the Plan had
been approved by the stockholders of the Company prior to the Initial Public
Offering.


 


(n)         “Exchange Act” shall mean
the Securities Exchange Act of 1934, as amended from time to time.


 


(o)         “Executive Officer” shall
have the meaning set forth in Rule 3b-7 promulgated under the Exchange Act.


 


(p)         The “Fair Market Value”
of a share of Stock as of a particular date shall mean the closing sales price
per


 


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share of Stock on
the national securities exchange on which the Stock is principally traded, for
the last preceding date on which there was a sale of such Stock on such
exchange.


 


(q)         “Incentive Stock Option”
shall mean an Option that is an “incentive stock option” within the meaning of
Section 422 of the Code, or any successor provision, and that is designated by
the Committee as an Incentive Stock Option.


 


(r)            “Initial Public
Offering” shall mean the initial public offering of shares of Stock of the
Company, as more fully described in the preliminary Registration Statement on
Form S-1 in tended to be filed with the Securities and Exchange Commission on
or about December 23, 1998, as such Registration Statement may be amended from
time to time.


 


(s)          “Issue Date” shall mean
the date established by the Company on which certificates representing
Restricted Stock shall be issued by the Company pursuant to the terms of
Section 8(e).


 


(t)            “Non-Employee Director”
shall mean a member of the Board who is not and has never been an employee of
the Company.


 


(u)         “Non-Qualified Option”
shall mean an Option other than an Incentive Stock Option.


 


(v)         “Option” shall mean an
option to purchase a number of shares of Stock granted pursuant to Section 7.


 


(w)       “Other Stock-Based Award”
shall mean an award granted pursuant to Section 9 hereof.


 


(x)           “Partial Exercise”
shall mean an exercise of an Award for less than the full extent permitted at
the time of such exercise.


 


(y)         “Participant” shall mean
(1) an employee, consultant or Non-Employee Director of the Company to whom an
Award is granted hereunder and (2) any such persons successors, heirs,
executors and administrators, as the case may be, in such capacity.


 


(z)           “Performance Goals”
means performance goals based on one or more of the following criteria: (i)
pre-tax income or after-tax income, (ii) operating profit, (iii) return on
equity, as sets, capital or investment, (iv) earnings or book value per share,
(v) sales or revenues, (vi) operating expenses, (vii) Stock price appreciation
and (viii) implementation or completion of critical projects or processes.
Where applicable, the Performance Goals may be expressed in terms of attaining
a specified level of the particular criteria or the attainment of a percentage
increase or decrease in the particular criteria, and may be applied to one or
more of the Company, a Subsidiary or Affiliate, or a division or strategic
business unit of the Company, or may be applied to the performance of the
Company relative to a market index, a group of other companies or a combination
thereof, all as determined by the Committee. The Performance Goals may include
a threshold level of performance below which no vesting will occur, levels of
performance at which specified vesting will occur, and a maximum level of
performance at which full vesting will occur. Each of the foregoing Performance
Goals shall be determined in accordance with generally accepted accounting
principles and shall be subject to certification by the Committee; provided
that the Committee shall have the authority to make equitable adjustments to
the Performance Goals in recognition of unusual or non-recurring events
affecting the Company or any Subsidiary or Affiliate or the financial
statements of the Company or any Subsidiary or Affiliate, in response to
changes in applicable laws or regulations, or to account for items of gain,
loss or expense determined to be extraordinary or unusual in nature or
infrequent in occurrence or related to the disposal of a segment of a business
or related to a change in accounting principles.


 


(aa)    “Person” shall have the
meaning set forth in Section 3(a)(9) of the Exchange Act, as modified and used
in Sections 13(d) and 14(d) thereof, except that such term shall not include
(1) the Company, (2) a trustee


 


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or other fiduciary
holding securities under an employee benefit plan of the Company, (3) an
underwriter temporarily holding securities pursuant to an offering of such securities
or (4) a corporation owned, directly or indirectly, by the stockholders of the
Company in substantially the same proportions as their ownership of shares of
Stock of the Company.


 


(bb)  “Plan” means the priceline.com
1999 Omnibus Plan, as amended from time to time.


 


(cc)    “Reload Option” shall mean a
Non-Qualified Stock Option granted pursuant to Section 7(c)(5).


 


(dd)  “Restricted Stock” shall mean a
share of Stock which is granted pursuant to the terms of Section 8 hereof and
which is subject to the restrictions set forth in Section 8(c).


 


(ee)    “Rule 16b-3” shall mean the
Rule 16b-3 promulgated under the Exchange Act, as amended from time to time.


 


(ff)        “Securities Act” shall
mean the Securities Act of 1933, as amended from time to time.


 


(gg)  “Stock” means shares of the
common stock, par value $.01 per share, of the Company.


 


(hh)  “Subsidiary” means any
corporation in an unbroken chain of corporations beginning with the Company if,
at the time of granting of an Award, each of the corporations (other than the
last corporation in the unbroken chain) owns stock possessing 50% or more of
the total combined voting power of all classes of stock in one of the other
corporations in the chain.


 


(ii)          “Vesting Date” shall
mean the date established by the Committee on which Restricted Stock may vest.


 


3.             Stock
Subject to the Plan.


 


The maximum number of shares of Stock reserved for the
grant or settlement of Awards under the Plan shall be 7,895,833 shares, subject
to adjustment as provided herein.  No
more than 1,250,000 shares of Stock may be awarded in respect of Options, no
more than 416,666 shares of Stock may be awarded in respect of Restricted Stock
and no more than 833,334 shares of Stock may be awarded in respect of Other
Stock-Based Awards to a single individual in any given year during the life of
the Plan, which amounts shall be subject to adjustment as provided herein.
Determinations made in respect of the limitation set forth in the preceding
sentence shall be made in a manner consistent with Section 162(m) of the Code.
Such shares may, in whole or in part, be authorized but unissued shares or
shares that shall have been or may be reacquired by the Company in the open
market, in private transactions or otherwise. If any shares subject to an Award
are forfeited, canceled, exchanged or surrendered or if an Award otherwise
terminates or expires without a distribution of shares to the holder of such
Award, the shares of Stock with respect to such Award shall, to the extent of
any such forfeiture, cancellation, exchange, surrender, termination or
expiration, again be available for Awards under the Plan.


 


Except as provided in an Award Agreement, in the event
that the Committee shall determine that any dividend or other distribution
(whether in the form of cash, Stock, or other property), recapitalization,
Stock split, reverse split, reorganization, merger, consolidation, spin-off,
combination, repurchase, or share exchange, or other similar corporate
transaction or event, affects the Stock such that an adjustment is appropriate
in order to prevent dilution or enlargement of the rights of holders of Awards
under the Plan, then the Committee shall make such equitable changes or
adjustments as it deems necessary or appropriate to any or all of (i) the
number and kind of shares of Stock or other property (including cash) that may
thereafter be issued in connection with Awards, (ii) the number and kind of
shares of Stock or other property (including cash) issued or issuable in
respect of outstanding Awards, (iii) the exercise price, grant price, or
purchase price relating to any Award; provided that, with respect to Incentive
Stock Options, such adjustment shall be made in accordance with Section 424(h)
of the Code, (iv) the Performance Goals and (v) the individual limitations
applicable to Awards.


 


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4.             Administration
of the Plan.


 


The Plan shall be administered by the Committee. The
Committee shall have the authority in its sole discretion, subject to and not
inconsistent with the express provisions of the Plan, to administer the Plan
and to exercise all the powers and authorities either specifically granted to
it under the Plan or necessary or advisable in the administration of the Plan,
including, with out limitation, the authority to grant Awards; to determine the
persons to whom and the time or times at which Awards shall be granted; to
determine the type and number of Awards to be granted, the number of shares of
Stock to which an Award may relate and the terms, conditions, restrictions and
Performance Goals relating to any Award; to determine whether, to what extent,
and under what circumstances an Award may be settled, canceled, forfeited,
exchanged, or surrendered; to make adjustments in the Performance Goals in recognition
of unusual or non-recurring events affecting the Company or the financial
statements of the Company (to the extent not inconsistent with Section 162(m)
of the Code, if applicable), or in response to changes in applicable laws,
regulations, or accounting principles; to construe and interpret the Plan and
any Award; to prescribe, amend and rescind rules and regulations relating to
the Plan; to determine the terms and provisions of Agreements; and to make all
other determinations deemed necessary or advisable for the administration of
the Plan.


 


The Committee may, in its absolute discretion, without
amendment to the Plan, (a) accelerate the date on which any Option granted
under the Plan becomes exercisable, waive or amend the operation of Plan
provisions respecting exercise after termination of employment or otherwise
adjust any of the terms of such Option, (b) accelerate the Vesting Date or
waive any condition imposed hereunder with respect to any Restricted Stock and
(c) otherwise adjust any of the terms applicable to any Award; provided,
however, in each case, that in the event of the occurrence of a Change in
Control, the provisions of Section 10 hereof shall govern vesting and
exercisability schedule of any Award granted hereunder.


 


No member of the Committee shall be liable for any
action, omission or determination relating to the Plan, and the Company shall
indemnify (to the extent permitted under Delaware law) and hold harmless each
member of the Committee and each other director or employee of the Company to
whom any duty or power relating to the administration or interpretation of the
Plan has been delegated against any cost or expense (including counsel fees) or
liability (including any sum paid in settlement of a claim with the approval of
the Committee) arising out of any action, omission or determination relating to
the Plan, unless, in either case, such action, omission or determination was
taken or made by such member, director or employee in bad faith and without
reasonable belief that it was in the best interests of the Company.


 


5.             Eligibility.


 


Incentive Stock Options shall be granted only to key
employees (including officers and directors who are also employees) of the
Company, its parent or any of its Subsidiaries. All other Awards may be granted
to officers, independent contractors, key employees and non-employee directors
of the Company or of any of its Subsidiaries and Affiliates.


 


6.             Awards
Under the Plan; Non-Employee Director Grants


 


(a) 
Grants.  The Committee may grant
Options, Restricted Stock and Other Stock-Based Awards to Participants in such
amounts and on such terms and conditions, not inconsistent with the Plan, as
the Committee shall determine in its sole and absolute discretion.


 


(b)  Non-Employee
Director Grants.  Unless determined
otherwise by the Committee in its sole and absolute discretion, and without
further action by the Board or the stockholders of the Company, each Non-Employee
Director shall, subject to the terms of the Plan, be granted a Non-Qualified
Option to purchase (1) 3,333 shares of Stock as of the date the Non-Employee
Director begins service as a Non-Employee Director and (2) an additional Option
to purchase 1,666 shares of Stock as of the first business day following each
annual meeting of stockholders of the Company, provided that the individual is
a Non-Employee Director on such date. Unless


 


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otherwise determined by the Committee at the time of
grant, each such Option shall be for a ten (10) year term, shall become
exercisable as to one-third of the shares subject to the Option on the first
anniversary of the date of grant and as to the balance monthly in equal
installments over the next twenty-four months following such first anniversary,
shall be granted at a per share exercise price equal to the Fair Market Value
and otherwise be in accordance with Section 7 of this Plan.


 


(c) 
Agreements.  Each Award granted
under the Plan shall be evidenced by an Agreement that shall contain such
provisions as the Committee may, in its sole and absolute discretion, deem
necessary or desirable.  By accepting an
Award, a Participant thereby agrees that the Award shall be subject to all
terms and provisions of the Plan and the applicable Agreement.


 


(d) 
Notwithstanding the above, no grants under Section (b) above shall
be made to the extent it would exceed the limitations set forth in Section 3 of
the Plan with any grants then due being cut back pari passu and such non-made
grants automatically being made at such time as they may be made under Section
3 (other than as a result of an amendment thereof).


 


7.             Options.


 


(a)                    Identification of Options. Each Option shall be clearly
identified in the applicable Agreement as either an Incentive Stock Option or a
Non-Qualified Option.


 


(b)                   Exercise Price. Each Agreement with respect to an Option
shall set forth the exercise price per share of Stock payable by the grantee to
the Company upon exercise of the Option. The exercise price per share of Stock
shall be determined by the Committee; provided, however, that in no case shall
an Option have an exercise price per share of Stock that is less than the Fair
Market Value of a share of Stock on the date the Option is granted.


 


(c)                    Term and Exercise of Options.


 


(1)                    Unless
the applicable Agreement provides otherwise, an Option shall become
cumulatively exercisable as to 33 1/3% percent of the Units covered thereby on
each of the first, second and third anniversaries of the date of grant. The
Committee shall determine the expiration date of each Option; provided,
however, that no Option shall be exercisable more than 10 years after the date
of grant. Unless the applicable Agreement provides otherwise and except in the
event of a Change in Control, no Option shall be exercisable prior to the first
anniversary of the date of grant.


 


(2)                    An
Option may be exercised for all or any portion of the Stock as to which it is
exercisable, provided that no Partial Exercise of an Option shall be for an aggregate
exercise price of less than $100.00. The Partial Exercise of an Option shall
not cause the expiration, termination or cancellation of the remaining portion
thereof.


 


(3)                    An
Option shall be exercised by delivering notice to the Company’s principal
office, to the attention of its Secretary. Such notice shall be accompanied by
the applicable Agreement, shall specify the number of shares of Stock with
respect to which the Option is being exercised and the effective date of the
proposed exercise and shall be signed by the Participant or other person then
having the right to exercise the Option. Payment for Stock purchased upon the
exercise of an Option shall be made on the effective date of such exercise by
one or a combination of the following means: (i) in cash or by personal check,
certified check, bank cashier’s check or wire transfer; (ii) subject to the
approval of the Committee, in Stock owned by the Participant for at least six
months prior to the date of exercise and valued at their Fair Market Value on
the effective date of such exercise; or (iii) subject to the approval of the
Committee, by such other provision as the Committee may from time to time
authorize.


 


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(4)                    Certificates
for Stock purchased upon the exercise of an Option shall be issued in the name
of the Participant or other per son entitled to receive such Stock, and
delivered to the Participant or such other person as soon as practicable
following the effective date on which the Option is exercised.


 


(5)                    The
Committee shall have the authority to specify, at the time of grant or, with
respect to Non-Qualified Options, at or after the time of grant, that a
Participant shall be granted a new Non-Qualified Option (a “Reload Option”) for
a number of shares of Stock equal to the number of shares of Stock surrendered
by the Participant upon exercise of all or a part of an Option in the manner
described in Section 7(c)(3)(ii) above, subject to the availability of Stock
under the Plan at the time of such exercise; provided, however, that no Reload
Option shall be granted to a Non-Employee Director. Reload Options shall be
subject to such conditions as may be specified by the Committee in its
discretion, subject to the terms of the Plan.


 


(d)                   Limitations on Incentive Stock Options.


 


(1)                    To
the extent that the aggregate Fair Market Value of Stock of the Company with
respect to which Incentive Stock Options are exercisable for the first time by
a Participant during any calendar year under the Plan and any other option plan
of the Company (or any Subsidiary) shall exceed $100,000, such Options shall be
treated as Non-Qualified Options. Such Fair Market Value shall be determined as
of the date on which each such Incentive Stock Option is granted.


 


(2)                    No
Incentive Stock Option may be granted to an individual if, at the time of the
proposed grant; such individual owns (or is attributed to own by virtue of the
Code) Stock possessing more than ten (10) percent of the total combined voting
power of all classes of stock of the Company or any Subsidiary unless (i) the
exercise price of such Incentive Stock Option is at least 110 percent of the
Fair Market Value of a share of Stock at the time such Incentive Stock Option
is granted and (ii) such Incentive Stock Option is not exercisable after the
expiration of five years from the date such Incentive Stock Option is granted.


 


(e)                    Effect of Termination of Employment.


 


(1)                    Unless
the applicable Agreement provides otherwise, in the event that the employment,
directorship or consultancy (together, hereinafter referred to as “employment”) of a Participant with the Company shall terminate for any
reason other than Cause, Disability or death, (i) Options granted to such
Participant, to the extent that they are exercisable at the time of such
termination, shall remain exercisable until the date that is 90 days after such
termination, on which date they shall expire, and (ii) Options granted to such
Participant, to the extent that they were not exercisable at the time of such
termination, shall expire at the close of business on the date of such
termination. The 90 day period described in this Section 7(e)(1) shall be
extended to one year from such termination, in the event of the Participant’s
death during such 90 day period. Notwithstanding the foregoing, no Option shall
be exercisable after the expiration of its term.


 


(2)                    Unless
the applicable Agreement provides otherwise, in the event that the employment
of a Participant with the Company shall terminate on account of the Disability
or death of the Participant, (i) Options granted to such Participant, to the
extent that they were exercisable at the time of such termination, shall remain
exercisable until the first anniversary of such termination, on which date they
shall expire, and (ii) Options granted to such Participant, to the extent that
they were not exercisable at the time of such termination, shall expire at the
close of business on the date of such termination; provided, however, that no
Option shall be exercisable


 


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after the
expiration of its term.


 


(3)                    In
the event of the termination of a Participant’s employment for Cause, all out
standing Options granted to such Participant shall expire as of the
commencement of business on the date of such termination.


 


8.             Restricted
Stock.


 


(a)                Issue Date And Vesting Date. At the time of the grant of
Restricted Stock, the Committee shall establish an Issue Date or Issue Dates
and a Vesting Date or Vesting Dates with respect to such shares of Restricted
Stock. The Committee may divide such shares of Restricted Stock into classes
and assign a different Issue Date and/or Vesting Date for each class. If the
grantee is employed by the Company on an Issue Date (which may be the date of
grant), the specified number of shares of Restricted Stock shall be issued in
accordance with the provisions of Section 8(e). Provided that all conditions to
the vesting of Restricted Stock imposed pursuant to Section 8(b) are satisfied,
and except as provided in Section 8(g), upon the occurrence of the Vesting Date
with respect to Restricted Stock, such Restricted Stock shall vest and the
restrictions of Section 8(c) shall lapse.


 


(b)               Conditions to Vesting. At the time of the grant of
Restricted Stock, the Committee may impose such restrictions or conditions to
the vesting of such Restricted Stock as it, in its absolute discretion, deems
appropriate, including the attainment of Performance Goals.


 


(c)                Restrictions on Transfer Prior to Vesting. Prior to the
vesting of any Restricted Stock, no transfer of a Participant’s rights with
respect to such Restricted Stock, whether voluntary or involuntary, by
operation of law or otherwise, shall be permitted. Immediately upon any attempt
to transfer such rights, such Restricted Stock, and all of the rights related
thereto, shall be forfeited by the Participant.


 


(d)               Dividends on Restricted Stock. The Committee in its
discretion may require that any dividends or distributions paid on Restricted
Stock be held in escrow until all restrictions on such Restricted Stock has
lapsed.


 


(e)                Issuance of Certificates.


 


(1)                    Reasonably
promptly after the Issue Date with respect to Restricted Stock, the Company
shall cause to be issued a certificate, registered in the name of the
Participant to whom such shares of Restricted Stock were granted, evidencing
such shares of Restricted Stock; provided that the Company shall not cause such
a certificate to be issued unless it has received a power of attorney duly
endorsed in blank with respect to such shares of Restricted Stock. Each such
certificate shall bear the following legend:


 


THE TRANSFERABILITY OF
THIS CERTIFICATE AND THE STOCK REPRESENTED HEREBY ARE SUBJECT TO THE
RESTRICTIONS, TERMS AND CONDITIONS (INCLUDING FORFEITURE PROVISIONS AND
RESTRICTIONS AGAINST TRANSFER) CONTAINED IN THE PRICELINE.COM 1999 OMNIBUS PLAN
AND AN AGREEMENT ENTERED INTO BETWEEN THE REGISTERED OWNER OF SUCH STOCK AND
PRICELINE.COM. A COPY OF THE 1999 OMNIBUS PLAN AND AGREEMENT IS ON FILE WITH
THE SECRETARY OF THE COMPANY.


 


Such legend shall not be
removed until such Stock vests pursuant to the terms hereof.


 


(2)                    Each
certificate issued pursuant to this Section 8(e), together with the powers
relating to the Restricted Stock evidenced by such certificate, shall be held
by the Company unless the


 


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Committee
determines otherwise.


 


(f)                  Consequences of Vesting. Upon the vesting of any Restricted
Stock pursuant to the terms hereof, the restrictions of Section 8(c) shall
lapse with respect to such Restricted Stock. Reasonably promptly after any
Restricted Stock vests, the Company shall cause to be delivered to the
Participant to whom such shares of Restricted Stock were granted a certificate
evidencing such Stock, free of the legend set forth in Section 8(e).


 


(g)               Effect of Termination of Employment. Subject to such other
provision as the Committee may set forth in the applicable Agreement, and to
the Committee’s amendment authority pursuant to Section 4, upon the termination
of a Participant’s employment for any reason other than Cause, any and all
Stock to which restrictions on transferability apply shall be immediately
forfeited by the Participant and transferred to, and reacquired by, the
Company; provided that if the Committee, in its sole discretion, shall within
thirty (30) days after such termination of employment notify the Participant in
writing of its decision not to terminate the Participant’s rights in such
shares of Stock, then the Participant shall continue to be the owner of such
shares of Stock subject to such continuing restrictions as the Committee may
prescribe in such notice. In the event of a forfeiture of Stock pursuant to
this section, the Company shall repay to the Participant (or the Participant’s
estate) any amount paid by the Participant for such shares of Stock. In the
event that the Company requires a return of Stock, it shall also have the right
to require the return of all dividends or distributions paid on such Stock,
whether by termination of any escrow arrangement under which such dividends or
distributions are held or otherwise.


 


(1)                    In
the event of the termination of a Participant’s employment for Cause, all
shares of Restricted Stock granted to such Participant which have not vested as
of the date of such termination shall immediately be returned to the Company,
together with any dividends or distributions paid on such shares of Stock, in
return for which the Company shall repay to the Participant any amount paid by
the Participant for such shares of Stock.


 


(h)               Special Provisions Regarding Awards. Notwithstanding anything
to the contrary contained herein, Restricted Stock granted pursuant to this
Section 8 to Executive Officers may be based on the attainment by the Company
(or a Subsidiary or division of the Company if applicable) of Performance Goals
pre-established by the Committee.


 


9.             Other
Stock-Based Awards.


 


Other forms of Awards valued in whole or in part by
reference to, or otherwise based on, shares of Stock (“Other Stock-Based Awards”)
may be granted either alone or in addition to other Awards under the Plan. Subject
to the provisions of the Plan, the Committee shall have sole and complete
authority to determine the persons to whom and the time or times at which such
Other Stock-Based Awards shall be granted, the number of shares of Stock to be
granted pursuant to such Other Stock-Based Awards and all other conditions of
such Other Stock-Based Awards, including the attainment of Performance Goals.


 


10.           Change in
Control.


 


Notwithstanding anything in the Plan to the contrary,
upon the occurrence of a Change in Control, any Award issued prior to April 25,
2000 carrying a right to exercise that was not previously exercisable and
vested, shall become fully exercisable and vested and the restriction and
forfeiture conditions applicable to any other such Award shall lapse and such
Award shall be deemed fully vested.  In
the case of any Award made on or after the aforesaid date, no acceleration of
exercisability, vesting or lapsing shall occur on a Change in Control except to
the extent, if any, provided in the specific Award Agreement or as otherwise
determined by the Committee or the Board. 
Notwithstanding anything in the Plan to the contrary, upon the
occurrence of a Change in Control, the purchaser(s) of the Company’s assets or
stock may, in his, her, or its discretion, deliver to the holder of an Award
the same kind of consideration that is delivered


 


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to the stockholders of
the Company as a result of such sale, conveyance or Change in Control, or the
Board may cancel all outstanding Options in exchange for consideration in cash
or in kind which consideration in both cases shall be equal in value to the
higher of (i) the Fair Market Value of those shares of Stock or other
securities the holder of such Option would have received had the Option been
exercised and no disposition of the shares acquired upon such exercise been
made prior to such sale, conveyance or Change in Control, less the exercise
price there for, and (ii) the Fair Market Value of those shares of Stock or
other securities the holder of the Option would have received had the Option
been exercised and no disposition of the shares acquired upon such exercise
been made immediately following such sale, conveyance or Change in Control,
less the exercise price therefor.


 


Upon dissolution or liquidation of the Company, all
Options and other Awards granted under this Plan shall terminate, but each
holder of an Option shall have the right, immediately prior to such dissolution
or liquidation, to exercise his or her Option to the extent then exercisable.


 


11.           Rights as a
Stockholder.


 


No person shall have any rights as a stockholder with
respect to any shares of Stock covered by or relating to any Award until the
date of issuance of a certificate with respect to such shares of Stock. Except
as otherwise expressly provided in Section 3(b), no adjustment to any Award
shall be made for dividends or other rights prior to the date such certificate
is issued.


 


12.           No Special
Employment Rights; No Right to Award.


 


Nothing contained in the Plan or any Agreement shall
confer upon any Participant any right with respect to the continuation of
employment by the Company or interfere in any way with the right of the
Company, subject to the terms of any separate employment agreement to the
contrary, at any time to terminate such employment or to increase or decrease
the compensation of the Participant.


 


No person shall have any claim or right to receive an
Award hereunder. The Committee’s granting of an Award to a participant at any
time shall neither require the Committee to grant any other Award to such
Participant or other person at any time or preclude the Committee from making
subsequent grants to such Participant or any other person.


 


13.           Securities
Matters.


 


(a)                    The
Company shall be under no obligation to effect the registration pursuant to the
Securities Act of any interests in the Plan or any Stock to be issued hereunder
or to effect similar compliance under any state laws. Notwithstanding anything
herein to the contrary, the Company shall not be obligated to cause to be
issued or delivered any certificates evidencing Stock pursuant to the Plan
unless and until the Company is advised by its counsel that the issuance and
delivery of such certificates is in compliance with all applicable laws,  regulations of governmental authority and the
requirements of any securities exchange on which shares of Stock are traded.
The Committee may require, as a condition of the issuance and delivery of
certificates evidencing shares of Stock pursuant to the terms hereof, that the
recipient of such shares of Stock make such agreements and representations, and
that such certificates bear such legends, as the Committee, in its sole
discretion, deems necessary or desirable.


 


(b)                   The
transfer of any shares of Stock hereunder shall be effective only at such time
as counsel to the Company shall have determined that the issuance and delivery
of such shares of Stock is in compliance with all applicable laws, regulations
of governmental authority, the requirements of any securities exchange on which
shares of Stock are traded. The Committee may, in its sole discretion, defer
the effectiveness of any transfer of Stock hereunder in order to allow the
issuance of such Stock to be made pursuant to registration or an exemption from
registration or other methods for compliance available under federal or state
securities laws. The Committee shall inform the Participant in writing of its
decision to defer the effectiveness of a transfer. During the period of such
deferral in connection with the exercise of an Option, the Participant may, by
written notice, withdraw such exercise and obtain the


 


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refund of any
amount paid with respect thereto.


 


14.           Withholding
Taxes.


 


Whenever shares of
Stock are to be delivered pursuant to an Award, the Company shall have the
right to require the Participant to remit to the Company in cash an amount
sufficient to satisfy any federal, state and local withholding tax requirements
related thereto. With the approval of the Committee, a Participant may satisfy
the foregoing requirement by electing to have the Company withhold from
delivery shares of Stock having a value equal to the amount of tax to be
withheld. Such shares of Stock shall be valued at their Fair Market Value on
the date of which the amount of tax to be withheld is deter mined (the “Tax
Date”). Fractional shares of Stock amounts shall be settled in cash. Such a
withholding election may be made with respect to all or any portion of the
Stock to be delivered pursuant to an Award.


 


15.           Notification
of Election Under Section 83(b) of the Code.


 


If any Participant shall, in connection with the
acquisition of Stock under the Plan, make the election permitted under Section
83(b) of the Code (i.e., an election to include in gross income in the year of
transfer the amounts specified in Section 83(b)), such Participant shall notify
the Company of such election within 10 days of filing notice of the election
with the Internal Revenue Service, in addition to any filing and a notification
required pursuant to regulation issued under the authority of Section 83(b) of
the Code.


 


16.           Notification
Upon Disqualifying Disposition Under Section 421(b) of the Code.


 


Each Participant shall notify the Company of any
disposition of Stock issued pursuant to the exercise of an Incentive Stock
Option under the circumstances described in Section 421(b) of the Code
(relating to certain disqualifying dispositions), within 10 days of such disposition.


 


17.           Amendment or
Termination of the Plan.


 


The Board may, at any time, suspend or terminate the
Plan or revise or amend it in any respect whatsoever; provided, however, that
stockholder approval shall be required if and to the extent the Board determines
that such approval is appropriate for purposes of satisfying Section 162(m) or
422 of the Code or is otherwise required by law or applicable stock exchange
requirements. Awards may be granted under the Plan prior to the receipt of such
approval but each such grant shall be subject in its entirety to such approval
and no award may be exercised, vested or otherwise satisfied prior to the
receipt of such approval. Nothing herein shall restrict the Committee’s ability
to exercise its discretionary authority pursuant to Section 4, which discretion
may be exercised without amendment to the Plan. No action hereunder may,
without the consent of a Participant, reduce the Participant’s rights under any
outstanding Award.


 


18.           Transfers
Upon Death; Nonassignability.


 


Upon the death of a Participant, outstanding Awards
granted to such Participant may be exercised only by the executor or
administrator of the Participant’s estate or by a person who shall have
acquired the right to such exercise by will or by the laws of descent and
distribution. No transfer of an Award by will or the laws of descent and
distribution shall be effective to bind the Company unless the Committee shall
have been furnished with (a) written notice thereof and with a copy of the will
and/or such evidence as the Committee may deem necessary to establish the
validity of the transfer and (b) an agreement by the transferee to comply with
all the terms and conditions of the Award that are or would have been
applicable to the Participant and to be bound by the acknowledgments made by
the Participant in connection with the grant of the Award.


 


During a Participant’s lifetime, the Committee may
permit the transfer, assignment or other encumbrance of an outstanding Option
unless (y) such Option is an Incentive Stock Option and the Committee and the Participant
intend that it shall retain such status, or (z) such Option is meant to qualify
for the exemptions available under Rule 16b-3, nontransferability is necessary
under Rule 16b-3 in order for the award to so qualify and the Committee and the



 


11





















 


Participant intend that
it shall continue to so qualify. Subject to any conditions as the Committee may
prescribe, a Participant may, upon providing written notice to the Secretary of
the Company, elect to transfer any or all Options granted to such Participant
pursuant to the Plan to members of his or her immediate family, including, but
not limited to, children, grandchildren and spouse or to trusts for the benefit
of such immediate family members or to partnerships in which such family
members are the only partners; provided, however, that no such transfer by any
Participant may be made in exchange for consideration.


 


19.           Expenses and
Receipts.


 


The expenses of the Plan shall be paid by the Company.
Any proceeds received by the Company in connection with any Award will be used
for general corporate purposes.


 


20.           Failure to
Comply.


 


In addition to the remedies of the Company elsewhere
provided for herein, failure by a Participant (or beneficiary) to comply with
any of the terms and conditions of the Plan or the applicable Agreement, unless
such failure is remedied by such Participant (or beneficiary) within ten days
after notice of such failure by the Committee, shall be grounds for the
cancellation and forfeiture of such Award, in whole or in part, as the
Committee, in its absolute discretion, may determine.


 


21.           Effective
Date and Term of Plan.


 


The Plan became effective on the Effective Date and,
unless earlier terminated by the Board, the right to grant Awards under the
Plan will terminate on the tenth anniversary of the Effective Date. Awards
outstanding at Plan termination will remain in effect according to their terms
and the provisions of the Plan.


 


22.           Applicable
Law.


 


Except to the extent preempted by any applicable
federal law, the Plan will be construed and administered in accordance with the
laws of the State of Delaware, without reference to its principles of conflicts
of law.


 


23.           Participant
Rights.


 


No Participant shall have any claim to be granted any
award under the Plan, and there is no obligation for uniformity of treatment
for Participants. Except as provided specifically herein, a Participant or a
transferee of an Award shall have no rights as a stockholder with respect to
any shares of Stock covered by any award until the date of the issuance of a
certificate or certificates to him or her for such shares of Stock.


 


24.           Unfunded
Status of Awards.


 


The Plan is intended to constitute an “unfunded” plan
for incentive and deferred compensation. With respect to any payments not yet
made to a Participant pursuant to an Award, nothing contained in the Plan or
any Agreement shall give any such Participant any rights that are greater than
those of a general creditor of the Company.


 


25.           Beneficiary.


 


A Participant may file with the Committee a written
designation of a beneficiary on such form as may be prescribed by the Committee
and may, from time to time, amend or revoke such designation. If no designated
beneficiary survives the Participant, the executor or administrator of the
Participant’s estate shall be deemed to be the grantee’s beneficiary.


 


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26.           Interpretation.


 


The Plan is designed and intended to comply with Rule
l6b-3 and, to the extent applicable, with Section 162(m) of the Code, and all
provisions hereof shall be construed in a manner to so comply.


 


27.           Severability.


 


If any provision of the Plan is held to be invalid or unenforceable,
the other provisions of the Plan shall not be affected but shall be applied as
if the invalid or unenforceable provision had not been included in the Plan.


 


 


 


Adopted:  January 24, 2005


 


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