Exhibit 4.16


 


SBS Broadcasting SA


2004 Share Incentive Plan


 

















 


	
  Article 1. Establishment, Purpose, and
  Duration

  	
   

  
	
   

  	
   

  
	
  Article 2. Definitions

  	
   

  
	
   

  	
   

  
	
  Article 3. Administration

  	
   

  
	
   

  	
   

  
	
  Article 4. Shares Subject to the Plan;
  Adjustments in Authorized Shares

  	
   

  
	
   

  	
   

  
	
  Article 5. Eligibility and
  Participation

  	
   

  
	
   

  	
   

  
	
  Article 6. Stock Options

  	
   

  
	
   

  	
   

  
	
  Article 7. Stock Appreciation Rights

  	
   

  
	
   

  	
   

  
	
  Article 8. Restricted Stock and
  Restricted Stock Units

  	
   

  
	
   

  	
   

  
	
  Article 9. Beneficiary Designation

  	
   

  
	
   

  	
   

  
	
  Article 10. Deferrals

  	
   

  
	
   

  	
   

  
	
  Article 11. Rights of
  Employees/Directors

  	
   

  
	
   

  	
   

  
	
  Article 12. Change in Control

  	
   

  
	
   

  	
   

  
	
  Article 13. Amendment, Modification,
  Suspension, and Termination

  	
   

  
	
   

  	
   

  
	
  Article 14. Withholding

  	
   

  
	
   

  	
   

  
	
  Article 15. Indemnification

  	
   

  
	
   

  	
   

  
	
  Article 16. Successors

  	
   

  
	
   

  	
   

  
	
  Article 17. General Provisions

  	
   

  



 


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Article 1.
Establishment, Purpose, and Duration


 


1.1                                 Establishment. SBS Broadcasting SA., a Luxembourg
corporation (hereinafter referred to as the “Company”), establishes an
incentive compensation plan to be known as the Global Stock and Incentive
Compensation Plan (hereinafter referred to as the “Plan”), as set forth in this
document. The Plan permits the grant of Nonqualified Stock Options, Incentive
Stock Options, Stock Appreciation Rights (“SARs”), Restricted Stock and
Restricted Stock Units. The Plan shall become effective as of 5 December, 2003
(the “Effective Date”) and shall remain in effect as provided in
Section 1.3 hereof.


 


1.2                                 Purpose of the Plan. The purpose of the Plan is to
promote the long-term interests of the Company and its stockholders by
strengthening the Company’s ability to attract, motivate, and retain Employees
and Directors of the Company upon whose judgment, initiative, and efforts the
financial success and growth of the business of the Company largely depend, and
to provide an additional incentive for such individuals through stock ownership
and other rights that promote and recognize the financial success and growth of
the Company and create value for stockholders.


 


1.3                                 Duration of the Plan. The Plan shall commence as of the
Effective Date, as described in Section 1.1 hereof, and shall remain in
effect, subject to the right of the Board of Directors to amend or terminate
the Plan at any time pursuant to Article 13 hereof, until all Shares
subject to it shall have been purchased or acquired according to the Plan’s
provisions.


 


Article 2. Definitions


 


Whenever used
in the Plan, the following terms shall have the meanings set forth below, and
when the meaning is intended, the initial letter of the word shall be
capitalized.


 


2.1                                 “Affiliate” shall have the meaning ascribed to
such term in Rule 12b-2 of the General Rules and Regulations of the Exchange
Act.


 


2.2                                 “Award” means, individually or collectively, a grant
under this Plan of Nonqualified Stock Options, Incentive Stock Options, Stock
Appreciation Rights, Restricted Stock and Restricted Stock Units.


 


2.3                                 “Award Agreement” means either (i) an agreement
entered into by the Company and each Participant setting forth the terms and
provisions applicable to Awards granted under this Plan, or (ii) a statement
issued by the Company to a Participant describing the terms and provisions of
such Award.


 


2.4                                 “Beneficial Owner” or “Beneficial Ownership” shall have
the meaning ascribed to such term in Rule 13d-3 of the General Rules and
Regulations under the Exchange Act.


 


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2.5                                 “Board” or “Board of Directors” means the Board of Directors of
the Company.


 


2.6                                 “Change in Control” shall occur if any of the following
events occur:


 


(a)                                  The acquisition by any individual,
entity, or group of Beneficial Owners of more than fifty percent (50%) or more
of the combined voting power of the Company’s then outstanding securities with
respect to the election of Directors of the Company;


 


(b)                                 The consummation of a
reorganization, merger, or consolidation of the Company or sale or other
disposition of all or substantially all of the assets of the Company (a
“Corporate Transaction”); excluding, however, a Corporate Transaction pursuant
to which all or substantially all of the individuals or entities who are the
Beneficial Owners of the Company immediately prior to the Corporate Transaction
will beneficially own, directly or indirectly, more than fifty percent (50%) of
the outstanding shares of common stock of the resulting entity and of the
combined voting power of the outstanding securities entitled to vote for the
election of directors of such entity; or


 


(c)                                  Individuals who, as of the Effective
Date, constitute the Board (the “Incumbent Board”) cease for any reason to
constitute at least a majority of such Board; provided, that any individual who
becomes a Director of the Company subsequent to the Effective Date, whose
election, or nomination for election by the Company’s stockholders, was
approved by the vote of at least a majority of the Directors then comprising
the Incumbent Board shall be deemed a member of the Incumbent Board; and
provided further, that any individual who was initially elected as a Director
of the Company as a result of an actual or threatened election contest, as such
terms are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange
Act, or any other actual or threatened solicitation of proxies or consents by
or on behalf of any Person other than the Board shall not be deemed a member of
the Incumbent Board.


 


2.7                                 “Code” means the U.S. Internal Revenue Code of 1986,
as amended from time to time.


 


2.8                                 “Committee” means any Committee appointed by
the Board to administer Awards to Participants, as specified in Article 3
herein.


 


2.9                                 “Company” means SBS Broadcasting SA., a
Luxembourg Corporation, and any successor thereto as provided in
Article 16 herein.


 


2.10                           “Covered Employee” means a Participant who is a
“covered employee,” as defined in Code Section 162(m) and the regulations
promulgated under Code Section 162(m), or any successor statute.


 


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2.11                           “Director” means any individual who is a
member of the Board of Directors of the Company; provided, however, that such
Director is not an Employee of the Company.


 


2.12                           “Employee” means any Employee of the Company,
its Affiliates and/or Subsidiaries.


 


2.13                           “Exchange Act” means the Securities Exchange Act
of 1934, as amended from time to time, or any successor act thereto


 


2.14                           “Fair Market Value” means, with respect to a Share as
of a given date, the closing sales price of the Share on the Nasdaq Stock
Market on the date in question or, if no sales of Shares were made on said
stock market on such date, on the next preceding day on which sales were made
on such stock market.


 


2.15                           “Family
Members” shall have the meaning set forth therefor in
Section 6.9(b)(ii) of this Plan.


 


2.16                           “Fiscal Year” means the year commencing on 1
January and ending 31 December or other time period as approved by
the Board.


 


2.17                           “Freestanding SAR” means an SAR that is granted
independently of any Options, as described in Article 7 herein.


 


2.18                           “Incentive Stock Option” or “ISO” means an Option to
purchase Shares granted under Article 6 herein and that is designated as
an Incentive Stock Option and that is intended to meet the requirements of Code
Section 422, or any successor provision.


 


2.19                           “Insider” shall mean an individual who is, on
the relevant date, an officer, Director, or more than ten percent (10%)
Beneficial Owner of any class of the Company’s equity securities that is
registered pursuant to Section 12 of the Exchange Act, as determined by
the Board in accordance with Section 16 of the Exchange Act.


 


2.20                           “Nonqualified Stock Option” or “NQSO” means an Option that is
not intended to meet the requirements of Code Section 422, or that
otherwise does not meet such requirements.


 


2.21                           “Option” means an Incentive Stock Option or a Nonqualified
Stock Option, as described in Article 6 herein.


 


2.22                           “Option Price” means the price at which a
Participant pursuant to an Option may purchase a Share.


 


2.23                           “Participant” means an Employee or Director who
has been selected to receive an Award or who has an outstanding Award granted
under the Plan.  The term “Participant” shall include any Permitted Transferee to
whom a Participant has


 


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transferred any NQSO, SAR, Restricted Stock or Restricted Stock Unit,
and a Permitted Transferee shall be bound by and benefit from the provisions of
this Plan that apply to a Participant with respect to any NQSO, SAR, Restricted
Stock or Restricted Stock Unit held by such Permitted Transferee.


 


2.24                           “Period of Restriction” means the period when Restricted
Stock or Restricted Stock Units are subject to a substantial risk of forfeiture
(based on the passage of time, or upon the occurrence of other events as
determined by the Board, at its discretion), as provided in Article 8
herein.


 


2.25                           “Permitted
Transferee” shall have the meaning set forth therefor in
Section 6.9(b)(ii) of this Plan. 
“Permitted Transferees” shall mean more than one Permitted Transferee.


 


2.26                           “Person” shall have the meaning ascribed to such term
in Section 3(a)(9) of the Exchange Act and used in Sections 13(d) and
14(d) thereof, including a “group” as defined in Section 13(d) thereof.


 


2.27                           “Restricted Stock” means an Award granted to a
Participant pursuant to Article 8 herein.


 


2.28                           “Restricted Stock Unit” means an Award granted to a
Participant pursuant to Article 8 herein.


 


2.29                           “Shares” means the common shares of the Company.


 


2.30                           “Stock Appreciation Right” or “SAR” means an Award, designated
as an SAR, pursuant to the terms of Article 7 herein.


 


2.31                           “Subsidiary” means any corporation, partnership,
joint venture, limited liability company, or other entity (other than the
Company) in an unbroken chain of entities beginning with the Company if, at the
time of the granting of an Award, each of the entities other than the last
entity in the unbroken chain owns at least fifty percent (50%) of the total
combined voting power in one of the other entities in such chain.


 


Article 3.
Administration


 


3.1                                 General. The Board shall be responsible for administering
the Plan. The Board may employ attorneys, consultants, accountants, and other
persons, and the Board, the Company, and its officers and Directors shall be
entitled to rely upon the advice, opinions, or valuations of any such persons.
All actions taken and all interpretations and determinations made by the Board
in good faith shall be final and binding upon the Participants, the Company,
and all other interested persons.


 


3.2                                 Authority of the Board. The Board shall have full and
exclusive discretionary power to interpret the Plan and to determine
eligibility for Awards and to adopt such rules, regulations, and guidelines for
administering the Plan as the Board


 


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may deem necessary or proper. Such authority shall
include, but not be limited to, selecting Award recipients, establishing all
Award terms and conditions and, subject to Article 13, adopting
modifications and amendments to the Plan or any Award Agreement, including
without limitation, any that are necessary to comply with the laws of the
countries in which the Company, its Affiliates, and/or its Subsidiaries
operate.


 


3.3                                 Delegation. The Board may delegate to a
Committee any or all of the administration of the Plan. The members of the
Committee shall be appointed from time to time by, and shall serve at the
discretion of, the Board. To the extent that the Board has delegated to the
Committee any authority and responsibility under the Plan, all applicable
references to the Board in the Plan shall be to the Committee.  The Board may delegate to one or more of its
members or to one or more agents or advisors such nondiscretionary
administrative duties as it may deem advisable, and the Board or any person to
whom it has delegated duties as aforesaid may employ one or more persons to
render advice with respect to any responsibility the Board or such person may
have under the Plan. The Board may, by resolution, authorize one or more
officers of the Company to do one or both of the following: (a) designate
officers and Employees of the Company, its Affiliates, and/or its Subsidiaries
to be recipients of Awards; and (b) determine the size of the Award; provided,
however, that the resolution providing such authorization sets forth the total
number of Awards such officer or officers may grant.


 


Article 4. Shares
Subject to the Plan; Adjustments
in Authorized Shares


 


4.1                                 Number of Shares Available for
Awards. Subject to
adjustment as provided in Section 4.2 herein, the number of Shares hereby
reserved for issuance to Participants under the Plan shall be two million five
hundred thousand (2,500,000). The Plan may be amended in accordance with
Section 13.1 to increase the number of Shares reserved for issuance to
Participants under the Plan.  All of the
reserved Shares, two million five hundred thousand (2,500,000), may be used for
grants of ISOs. Any Shares of common stock related to Awards which terminate by
expiration, forfeiture, cancellation, or otherwise without the issuance of such
Shares, are settled in cash in lieu of common stock, or are exchanged with the
Board’s permission for Awards not involving common stock, shall be available
again for grant under the Plan. Shares issued, or Shares related to Awards
issued, in accordance with Section 6.6 shall not be available again for
grant under the Plan. The maximum number of Shares available for issuance under
the Plan shall not be reduced to reflect any dividends or dividend equivalents
that are reinvested into additional Shares of common stock or credited as
additional Restricted Stock and Restricted Stock Units. In addition, the Board,
in its discretion, may establish any other appropriate methodology for
calculating the number of Shares issued pursuant to the Plan. The Shares of
common stock available for issuance under the Plan may be authorized and
unissued Shares or treasury Shares.


 


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4.2                                 Adjustments in Authorized Shares. In the event of any corporate event
or transaction (including, but not limited to, a change in the Shares of the
Company or the capitalization of the Company) such as a merger, consolidation,
reorganization, recapitalization, separation, stock dividend, stock split,
reverse stock split, split up, spin-off, or other distribution of stock or
property of the Company, combination of shares, exchange of shares, dividend in
kind, or other like change in capital structure or distribution (other than
normal cash dividends) to stockholders of the Company, or any similar corporate
event or transaction, the Board, in its sole discretion, in order to prevent
dilution or enlargement of Participants’ rights under the Plan, shall
substitute or adjust, in an equitable manner, as applicable, the number and
kind of Shares that may be issued under the Plan, the number and kind of Shares
subject to outstanding Awards, the Option Price applicable to outstanding
Awards, the Award Limits, and other value determinations applicable to
outstanding Awards. Appropriate adjustments may also be made by the Board in the
terms of any Awards under the Plan to reflect such changes or distributions and
to modify any other terms of outstanding Awards on an equitable basis. The
determination of the Board as to the foregoing adjustments, if any, shall be
conclusive and binding on Participants under the Plan. Subject to the
provisions of Article 12, without affecting the number of Shares reserved
or available hereunder the Board may authorize the issuance or assumption of
benefits under this Plan in connection with any merger, consolidation,
acquisition of property or stock, or reorganization upon such terms and
conditions as it may deem appropriate.


 


Article 5. Eligibility
and Participation


 


5.1                                 Eligibility. Persons eligible to participate in
this Plan include all Employees and Directors.


 


5.2                                 Actual Participation. Subject to the provisions of the
Plan, the Board may, from time to time, select from all eligible Employees and
Directors those to whom Awards shall be granted and shall determine the nature
and amount of each Award.


 


Article 6. Stock
Options


 


6.1                                 Grant of Options. Subject to the terms and provisions
of the Plan, Options may be granted to Participants in such number, and upon
such terms, and at any time and from time to time as shall be determined by the
Board, provided that ISOs shall not be granted to Directors. In addition, ISOs
may not be granted following the ten-year anniversary of the Board’s adoption
of the Plan, which is 5 December 2003.


 


6.2                                 Award Agreement. Each Option grant shall be
evidenced by an Award Agreement that shall specify the Option Price, the
duration of the Option, the number of


 


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Shares to which the Option pertains, the conditions
upon which an Option shall become vested and exercisable, and such other
provisions as the Board shall determine which are not inconsistent with the
terms of the Plan. The Award Agreement also shall specify whether the Option is
intended to be an ISO or an NQSO.


 


6.3                                 Option Price. The Option Price for each grant of
an Option under this Plan shall be as determined by the Board; provided,
however, the Option Price shall not be less than one hundred percent (100%) of
the Fair Market Value of the Shares on the date the Option is granted.
Notwithstanding the foregoing, for Options granted to Participants outside the
United States, the Board has the authority to grant Options at a price that is
less than the Fair Market Value of the Shares on the date of grant.


 


6.4                                 Duration of Options. Each Option granted to a
Participant shall expire at such time as the Board shall determine at the time
of grant; provided, however, no Option shall be exercisable later than the
tenth (10th) anniversary date of its grant.


 


6.5                                 Exercise of Options. Options granted under this
Article 6 shall be exercisable at such times and be subject to such
restrictions and conditions as the Board shall in each instance approve, which
need not be the same for each grant or for each Participant.


 


6.6                                 Redemption or Exchange of Awards.  The Board
may, in its discretion, cause, or offer to cause, outstanding Awards awarded
pursuant to this Plan to be cancelled in consideration of, or exchanged for,
the award of cash, Shares or different or additional Awards, or a combination
thereof, which latter Awards may have such terms, including any Option Price or
grant price of an SAR, as the Board shall determine and as are consistent with
the provisions of this Plan.  The Board
may also, in its discretion, cause, or offer to cause, the terms of outstanding
Awards, including Option Price or grant price of an SAR, to be amended,
provided that the terms as so amended are not inconsistent with the provisions
of this Plan.


 


6.7                                 Payment. Options granted under this Article 6
shall be exercised by the delivery of a written notice of exercise to the
Company, setting forth the number of Shares with respect to which the Option is
to be exercised, accompanied by full payment for the Shares. The Option Price
upon exercise of any Option shall be payable to the Company in full either: (a)
in cash or its equivalent, or (b) any other method approved by the Board in its
sole discretion at the time of grant and as set forth in the Award Agreement.
The Board also may allow cashless exercise as permitted under the Federal
Reserve Board’s Regulation T, subject to applicable law, or by any other means
which the Board determines to be consistent with the Plan’s purpose and
applicable law. Subject to any governing rules or regulations, as soon as
practicable after receipt of a written notification of exercise and full
payment, the Company shall deliver to the Participant, Share certificates or
evidence of book entry Shares, in an appropriate amount based upon the number
of Shares purchased under the Option(s). Unless otherwise determined by the
Board, all


 


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payments under all of the methods indicated above
shall be paid in United States dollars or such other currency as set forth in
the Award Agreement.


 


6.8                                 Restrictions on Share
Transferability.
The Board may impose such restrictions on any Shares acquired pursuant to the
exercise of an Option granted under this Article 6 as it may deem
advisable, including, without limitation, restrictions under applicable federal
securities laws, under the requirements of any stock exchange or market upon
which such Shares are then listed and/or traded, and under any blue sky or
state securities laws applicable to such Shares.


 


6.9                                 Termination of
Employment/Directorship. Each Participant’s Award Agreement shall set forth the extent to which
the Participant shall have the right to exercise the Option following
termination of the Participant’s employment or directorship with the Company,
its Affiliates, and/or its Subsidiaries, as the case may be. Such provisions
shall be determined in the sole discretion of the Board, shall be included in
the Award Agreement entered into with each Participant, need not be uniform
among all Options issued pursuant to this Article 6, and may reflect
distinctions based on the reasons for termination.


 


6.10                           Transferability of Options.


 


(a)                                  Incentive Stock Options. No ISO granted under the Plan may
be sold, transferred, pledged, assigned, or otherwise alienated or
hypothecated, other than by will or by the laws of descent and distribution.
Further, all ISOs granted to a Participant under this Article 6 shall be
exercisable during his or her lifetime only by such Participant.


 


(b)                                 Nonqualified Stock Options. 


 


(i)                                     Except
as otherwise provided in a Participant’s Award Agreement
in accordance with Section 6.9(b)(ii), no NQSO granted under this Article 6 may be sold,
transferred, pledged, assigned, or otherwise alienated or hypothecated, other
than by will or by the laws of descent and distribution. Further, except as
otherwise provided in a Participant’s Award Agreement, all NQSOs granted to a
Participant under this Article 6 shall be exercisable during his or her
lifetime only by such Participant.


 


(ii)                                  The
Board, in the applicable Award Agreement evidencing an NQSO granted under the Plan, or at any time thereafter, may provide
that an NQSO granted hereunder may be transferred without consideration by the
Participant, subject to such rules as the Board may adopt to preserve the
purposes of the Plan, to one or more of the following (each a “Permitted Transferee”):


 


(A)                              the
Participant’s spouse, children or grandchildren (including adopted and
step-children and grandchildren), parent, step-parent, grandparent, former
spouse (under a qualified domestic relations order, as defined in the Code),
sibling, niece, nephew, mother-in-law, father-in-law, son-in-law,
daughter-in-law, brother-in-law, or sister-in-law


 


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(including adopted
relationships) or any person sharing the Participant’s household (other than a
tenant or employee of the Participant’s household) (collectively, “Family
Members”);


 


(B)                                a  trust in which the Participant and/or his or
her Family Members hold more than 50% of the beneficial interests;


 


(C)                                a
foundation as to which the Participant and/or his or her Family Members control
the management of assets; or


 


(D)                               any
other entity (including a corporation, partnership or limited liability
company) in which the Participant and/or his or her Family Members own more
than 50% of the voting interests.


 


(iii)                               Before
any transfer described in Section 6.9(b)(ii) may be completed, the
Participant must give the Board written notice describing the terms and
conditions of the proposed transfer, and the Board must notify the Participant
in writing that such a transfer would comply with the requirements of the Plan
and any applicable Award Agreement evidencing the NQSO to be transferred.  The terms
of any NQSO transferred in
accordance with Section 6.9(b)(ii) shall apply to the Permitted Transferee
except that (A) the Permitted Transferee
shall not be entitled to transfer any NQSO (other than by
will or the laws of descent and distribution), and (B) the Permitted Transferee shall not be entitled to exercise any NQSO
or to transfer any Shares issued on exercise of such NQSO unless such exercise or transfer may be made in compliance with all
applicable federal, state and foreign securities laws.


 


6.11                           Notification of Disqualifying
Disposition. If any
Participant shall make any disposition of Shares 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), such Participant shall notify the Company of such disposition
within ten (10) days thereof.


 


Article 7. Stock
Appreciation Rights


 


7.1                                 Grant of SARs. Subject to the terms and conditions
of the Plan, Freestanding SARs may be granted to Participants at any time and
from time to time as shall be determined by the Board. Subject to the terms and
conditions of the Plan, the Board shall have complete discretion in determining
the number of SARs granted to each Participant and, consistent with the
provisions of the Plan, in determining the terms and conditions pertaining to
such SARs. The grant price of a Freestanding SAR shall be no less than the Fair
Market Value of a Share on the date of grant of the SAR. Notwithstanding the
foregoing, for SARs granted to Participants outside the United States, the
Board has the authority to grant SARs at a price that is less than the Fair
Market Value of a Share on the date of grant. 
The Board may in its discretion substitute SARs which can be paid out
only in


 


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stock for outstanding Stock options under the Plan and
any previous share incentive plans of the Company at any time when the Company
is subject to fair value accounting for stock based compensation.


 


7.2                                 SAR Agreement. An Award Agreement that shall
specify the grant price, the term of the SAR, and such other provisions, as the
Board shall determine, shall evidence each SAR Award.


 


7.3                                 Term of SARs. The term of a SAR granted under the
Plan shall be determined by the Board, in its sole discretion, and except as
determined otherwise by the Board and specified in the SAR Award Agreement, no
SAR shall be exercisable later than the tenth (10th) anniversary date of its
grant.


 


7.4                                 Exercise of Freestanding SARs. Freestanding SARs may be exercised
upon whatever terms and conditions the Board, in its sole discretion, imposes
upon them.


 


7.5                                 Payment of SAR Amount. Upon the exercise of a SAR, a
Participant shall be entitled to receive payment from the Company in an amount
determined by multiplying:


 


(a)                                  The difference between the Fair
Market Value of a Share on the date of exercise over the grant price; by


 


(b)                                 The number of Shares with respect to
which the SAR is exercised.


 


Such
entitlement constitutes an asset capable of economic assessment in accordance
with the provisions of the Luxembourg law of 10 August 1915, as amended on
commercial companies.  At the discretion
of the Board, the payment upon SAR exercise may be in cash, in Shares of
equivalent value, in some combination thereof, or in any other manner approved
by the Board at its sole discretion. Any shares covered by a SAR shall be
counted against the maximum number of Shares reserved under the Plan only to
the extent such Shares are actually issued to the Participant upon exercise of
the SAR.


 


7.6                                 Termination of
Employment/Directorship. Each Award Agreement shall set forth the extent to which the
Participant shall have the right to exercise the SAR following termination of
the Participant’s employment or directorship with the Company, its Affiliates,
and/or its Subsidiaries, as the case may be. Such provisions shall be determined
in the sole discretion of the Board, shall be included in the Award Agreement
entered into with a Participant, need not be uniform among all SARs issued
pursuant to the Plan, and may reflect distinctions based on the reasons for
termination.


 


7.7                                 Nontransferability of SARs. 


 


(a)                                  Except as otherwise provided in a Participant’s
Award Agreement in accordance with
Section 7.7(b), no SAR
granted under the Plan may be


 


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sold, transferred, pledged, assigned, or otherwise
alienated or hypothecated, other than by will or by the laws of descent and
distribution. Further, except as otherwise provided in a Participant’s Award
Agreement in accordance with Section 7.7(b), all SARs granted to a Participant
under the Plan shall be exercisable during his or her lifetime only by such
Participant.


 


(b)                                 The Board, in the applicable Award Agreement
evidencing an SAR granted under the Plan, or at any
time thereafter, may provide that an SAR granted hereunder may be transferred
without consideration by the Participant, subject to such rules as the Board
may adopt to preserve the purposes of the Plan, to one or more Permitted
Transferees.


 


(c)                                  Before any
transfer described in Section 7.7(b) may
be completed, the Participant must give the Board written notice describing the
terms and conditions of the proposed transfer, and the Board must notify the
Participant in writing that such a transfer would comply with the requirements
of the Plan and any applicable Award Agreement evidencing the SAR to be transferred.  The terms of any SAR transferred
in accordance with Section 7.7(b)
shall apply to the Permitted Transferee except that (i) the Permitted Transferee shall not be entitled to
transfer any SAR (other
than by will or the laws of descent and distribution), and (ii) the Permitted Transferee shall not be
entitled to exercise any SAR or to
transfer any Shares issued on exercise of such SAR unless such exercise or transfer may be made in
compliance with all applicable federal, state and foreign securities laws.


 


Article 8. Restricted
Stock and Restricted
Stock Units


 


8.1                                 Grant of Restricted Stock/Units. Subject to the terms and provisions
of the Plan, the Board, at any time and from time to time, may grant Shares of
Restricted Stock and/or Restricted Stock Units to Participants in such amounts
as the Board shall determine. Restricted Stock Units shall be similar to
Restricted Stock except that no Shares are actually awarded to the Participant
on the date of grant.


 


8.2                                 Restricted Stock/Unit Agreement. Each Restricted Stock and/or
Restricted Stock Unit grant shall be evidenced by an Award Agreement that shall
specify the Period(s) of Restriction, the number of Shares of Restricted Stock
or the number of Restricted Stock Units granted, and such other provisions as
the Board shall determine.


 


8.3                                 Transferability.


 


(a)                                  Except as provided in Section 8.3(b), the Shares of Restricted Stock and/or Restricted Stock Units granted
herein may not be sold, transferred, pledged, assigned, or otherwise alienated
or hypothecated until the end of


 


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the applicable Period of Restriction established by
the Board and specified in the Award Agreement (and in the case of Restricted
Stock Units until the date of delivery or other payment), or upon earlier
satisfaction of any other conditions, as specified by the Board in its sole
discretion and set forth in the Award Agreement. Except as otherwise provided in the Participant’s
Award Agreement in accordance with Section 8.3(b), all rights with respect to the
Restricted Stock and/or Restricted Stock Units granted to a Participant under
the Plan shall be available during his or her lifetime only to such
Participant.


 


(b)                                 The Board, in the applicable Award Agreement evidencing a grant of Shares
of Restricted Stock and/or Restricted Stock Units under the Plan, or at any
time thereafter, may provide that Shares of Restricted Stock and/or Restricted
Stock Units granted hereunder may be transferred without consideration by the
Participant, subject to such rules as the Board may adopt to preserve the
purposes of the Plan, to one or more Permitted Transferrees.


 


(c)                                  Before
any transfer described in Section 8.3(b) may be completed, the Participant must give the Board
written notice describing the terms and conditions of the proposed transfer,
and the Board must notify the Participant in writing that such a transfer would
comply with the requirements of the Plan and any applicable Award Agreement
evidencing the Shares of Restricted Stock
and/or Restricted Stock Units to be transferred.  The terms and conditions
applicable to any Shares of Restricted Stock and/or Restricted Stock Units
transferred in accordance with Section 8.3(b) shall apply to the Permitted Transferee except that
(i) the Permitted Transferee shall not be
entitled to transfer any Shares of Restricted
Stock and/or Restricted Stock Units (other than by will or the laws of descent and
distribution), and (ii) the
Permitted Transferee shall not be entitled to transfer any Shares of Restricted Stock and/or Restricted Stock
Units unless such transfer may be made in compliance with all applicable
federal, state and foreign securities laws.


 


8.4                                 Other Restrictions. The Board shall impose such other
conditions and/or restrictions on any Shares of Restricted Stock or Restricted
Stock Units granted pursuant to the Plan as it may deem advisable including,
without limitation, a requirement that Participants pay a stipulated purchase
price for each Share of Restricted Stock or each Restricted Stock Unit,
time-based restrictions, and/or restrictions under applicable federal or state
securities laws. To the extent deemed appropriate by the Board, the Company may
retain the certificates representing Shares of Restricted Stock in the
Company’s possession until such time as all conditions and/or restrictions
applicable to such Shares have been satisfied or lapse. Except as otherwise
provided in this Article 8, Shares of Restricted Stock covered by each
Restricted Stock Award shall become freely transferable by the Participant
after all conditions and restrictions applicable to such Shares have been
satisfied or lapse, and Restricted Stock Units shall be paid in cash, Shares,
or


 


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a combination of cash and Shares as the Board, in its
sole discretion shall determine.


 


8.5                                 Voting Rights. To the extent permitted or required
by law, as determined by the Board, Participants holding Shares of Restricted
Stock granted hereunder may be granted the right to exercise full voting rights
with respect to those Shares during the Period of Restriction. A Participant
shall have no voting rights with respect to any Restricted Stock Units granted
hereunder.


 


8.6                                 Dividends and Other Distributions. During the Period of Restriction,
Participants holding Shares of Restricted Stock or Restricted Stock Units
granted hereunder may, if the Board so determines, be credited with dividends
paid with respect to the underlying Shares or dividend equivalents while they are
so held in a manner determined by the Board in its sole discretion. The Board
may apply any restrictions to the dividends or dividend equivalents that the
Board deems appropriate. The Board, in its sole discretion, may determine the
form of payment of dividends or dividend equivalents, including cash, Shares,
Restricted Stock, or Restricted Stock Units.


 


8.7                                 Termination of
Employment/Directorship. Each Award Agreement shall set forth the extent to which the
Participant shall have the right to retain Restricted Stock and/or Restricted
Stock Units following termination of the Participant’s employment or
directorship with the Company, its Affiliates, and/or its Subsidiaries, as the
case may be. Such provisions shall be determined in the sole discretion of the
Board, shall be included in the Award Agreement entered into with each
Participant, need not be uniform among all Shares of Restricted Stock or
Restricted Stock Units issued pursuant to the Plan, and may reflect
distinctions based on the reasons for termination.


 


8.8                                 Section 83(b) Election. The Board may provide in an Award
Agreement that the Award of Restricted Stock is conditioned upon the
Participant making or refraining from making an election with respect to the
Award under Section 83(b) of the Code. If a Participant makes an election
pursuant to Section 83(b) of the Code concerning a Restricted Stock Award,
the Participant shall be required to promptly file a copy of such election with
the Company.


 


Article 9. Beneficiary
Designation


 


Each
Participant and Permitted Transferee under the Plan may, from time to time,
name any beneficiary or beneficiaries (who may be named contingently or
successively) to whom any benefit under the Plan is to be paid in case of his
or her death before he or she receives any or all of such benefit. Each such
designation shall revoke all prior designations by the same Participant or
Permitted Transferee, shall be in a form prescribed by the Company, and will be
effective only when filed by the Participant or Permitted Transferee in writing
with the Company during the Participant’s or Permitted Transferee’s lifetime. A
transfer of an NQSO, SAR, Restricted Stock or Restricted Stock


 


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Units to a
Permitted Transferee shall revoke any prior beneficiary designation that was
made with respect to such transferred NQSO, SAR, Restricted Stock or Restricted
Stock Units.  In the absence of any
beneficiary designation, benefits remaining unpaid at the  death of a Participant or Permitted Transferee
shall be paid to the estate of the Participant or Permitted Transferee, as the
case may be.


 


Article 10. Deferrals


 


The Board may
permit or require a Participant to defer such Participant’s receipt of the
payment of cash or the delivery of Shares that would otherwise be due to such
Participant by virtue of the exercise of an Option or SAR, the lapse or waiver
of restrictions with respect to Restricted Stock or Restricted Stock Units.


 


Article 11. Rights of
Employees/Directors


 


11.1                           Employment/Directorship. Nothing in the Plan or an Award
Agreement shall interfere with or limit in any way the right of the Company to
terminate any Participant’s employment or other service relationship at any
time, nor confer upon any Participant any right to continue in the capacity in
which he or she is employed or otherwise serves the Company. Neither an Award
nor any benefits arising under this Plan shall constitute part of an employment
contract with the Company, its Affiliates, and/or Subsidiaries and, accordingly,
subject to Article 3 and Section 13.1, this Plan and the benefits
hereunder may be terminated at any time in the sole and exclusive discretion of
the Board without giving rise to liability on the part of the Company, its
Affiliates, and/or its Subsidiaries for severance payments.


 


11.2                           Participation. No Employee or Director shall have
the right to be selected to receive an Award under this Plan, or, having been
so selected, to be selected to receive a future Award.


 


11.3                           Rights as a Stockholder. A Participant shall have none of
the rights of a stockholder with respect to Shares covered by any Award until
the Participant becomes the record holder of such Shares.


 


Article 12. Change in
Control


 


12.1                           Change in Control of the Company.
Upon the occurrence of a Change in Control, unless otherwise specifically
prohibited under applicable laws, or by the rules and regulations of any
governing governmental agencies or national securities exchanges, or unless the
Board shall determine otherwise in the Award Agreement:


 


16

















 


(a)                                  Any and all Options and SARs granted
hereunder shall become immediately vested and exercisable; additionally, if a
Participant’s employment or directorship is terminated for any other reason except
cause within twelve (12) months after such Change in Control, the Participant
shall have twelve (12) months following such termination date to exercise such
Options or SARs;


 


(b)                                 Any Period of Restriction and
restrictions imposed on Restricted Stock or Restricted Stock Units shall lapse;
and


 


(c)                                  The
vesting of all Awards denominated in Shares shall be accelerated to full
vesting as of the effective date of the Change in Control.


 


12.2                           Sale of a Division of the Company. Notwithstanding any other provisions
of this Plan, if there is a sale of a division of the Company, unless otherwise
specifically prohibited under applicable laws, or by the rules and regulations
of any governing governmental agencies or national securities exchanges, or
unless the Board shall determine otherwise in the Award Agreement with respect
to any Employee of such division:


 


(a)                                  Any and all Options and SARs granted
hereunder to such Employee shall become immediately vested and exercisable, and
shall remain exercisable for twelve (12) months following the sale of such
division of the Company;


 


(b)                                 Any Period of Restriction and
restrictions imposed on Restricted Stock or Restricted Stock Units granted to
such Employee shall lapse; and


 


(c)                                  The
vesting of all Awards denominated in Shares granted to such Employee shall be
accelerated to full vesting as of the effective date of the sale of the
division of the Company.


 


For purposes
of this Section 12.2, sale of a division means a sale of any segment of
the Company and its subsidiaries if the gross revenue of the segment exceeds
ten percent (10%) of the consolidated gross revenues of the Company and its
subsidiaries. For the purpose of this Section 12.2, subsidiaries means
ownership, directly or indirectly, by the Company, of more than fifty percent
(50%) of the outstanding voting shares or the total combined voting power of
any corporation, partnership, joint venture, limited liability company, or
other entity (other than the Company) in an unbroken chain of entities
beginning with the Company.


 


Article 13. Amendment,
Modification, Suspension,
and Termination


 


13.1                           Amendment, Modification, Suspension,
and Termination.
The Board may, at any time and from time to time, alter, amend, modify,
suspend, or terminate the Plan


 


17

















 


in whole or in part. Options issued under the Plan
will not be repriced, replaced, or regranted through cancellation, or by
lowering the exercise price of a previously granted Option without the prior
approval of the Company’s stockholders, provided that the Board may redeem or
exchange Awards in accordance with Section 6.6.  No amendment of the Plan shall be made without stockholder
approval if stockholder approval is required by law, regulation, or stock
exchange rule.


 


13.2                           Adjustment of Awards Upon the
Occurrence of Certain Unusual or Nonrecurring Events. The Board may make adjustments in
the terms and conditions of, and the criteria included in, Awards in
recognition of unusual or nonrecurring events (including, without limitation,
the events described in Section 4.2 hereof) affecting the Company or the
financial statements of the Company or of changes in applicable laws,
regulations, or accounting principles, whenever the Board determines that such
adjustments are appropriate in order to prevent unintended dilution or
enlargement of the benefits or potential benefits intended to be made available
under the Plan. The determination of the Board as to the foregoing adjustments,
if any, shall be conclusive and binding on Participants under the Plan.


 


13.3                           Awards Previously Granted. Notwithstanding any other
provision of the Plan to the contrary, no termination, amendment, suspension,
or modification of the Plan shall adversely affect in any material way any
Award previously granted under the Plan, without the written consent of the
Participant holding such Award.


 


Article 14. Withholding


 


14.1                           Tax Withholding. The Company shall have the power
and the right to deduct or withhold, or require a Participant or Permitted
Transferee, as the case may be, to remit to the Company, the minimum statutory
amount to satisfy federal, state, and local taxes, domestic or foreign,
required by law or regulation to be withheld with respect to any taxable event
arising as a result of this Plan.


 


14.2                           Share Withholding. With respect to withholding
required upon the exercise of Options or SARs, upon the lapse of restrictions
on Restricted Stock and Restricted Stock Units, or any other taxable event
arising as a result of Awards granted hereunder, Participants or Permitted
Transferees may elect, subject to the approval of the Board, to satisfy the
withholding requirement, in whole or in part, by having the Company withhold
Shares having a Fair Market Value on the date the tax is to be determined equal
to the minimum statutory total tax that could be imposed on the transaction.
All such elections shall be irrevocable, made in writing, and signed by the
Participant or Permitted Transferee, and shall be subject to any restrictions
or limitations that the Board, in its sole discretion, deems appropriate.


 


18

















 


Article 15.
Indemnification


 


Each person
who is or shall have been a member of the Board, or a Committee appointed by
the Board, or an officer of the Company to whom authority was delegated in
accordance with Article 3 shall be indemnified and held harmless by the
Company against and from any loss, cost, liability, or expense that may be
imposed upon or reasonably incurred by him or her in connection with or
resulting from any claim, action, suit, or proceeding to which he or she may be
a party or in which he or she may be involved by reason of any action taken or
failure to act under the Plan and against and from any and all amounts paid by
him or her in settlement thereof, with the Company’s approval, or paid by him
or her in satisfaction of any judgement in any such action, suit, or proceeding
against him or her, provided he or she shall give the Company an opportunity,
at its own expense, to handle and defend the same before he or she undertakes
to handle and defend it on his or her own behalf, unless such loss, cost,
liability, or expense is a result of his or her own wilful misconduct or except
as expressly provided by statute. The foregoing right of indemnification shall
not be exclusive of any other rights of indemnification to which such persons
may be entitled under the Company’s Articles of Incorporation or Bylaws, as a
matter of law, or otherwise, or any power that the Company may have to
indemnify them or hold them harmless.


 


Article 16. Successors


 


All
obligations of the Company under the Plan with respect to Awards granted
hereunder shall be binding on any successor to the Company, whether the
existence of such successor is the result of a direct or indirect purchase,
merger, consolidation, or otherwise, of all or substantially all of the
business and/or assets of the Company.


 


Article 17. General
Provisions


 


17.1                           Forfeiture Events. The Board may specify in an Award
Agreement that the Participant’s rights, payments, and benefits with respect to
an Award shall be subject to reduction, cancellation, forfeiture, or recoupment
upon the occurrence of certain specified events, in addition to any otherwise
applicable vesting or performance conditions of an Award. Such events shall
include, but shall not be limited to, termination of employment for cause,
violation of material Company, Affiliate, and/or Subsidiary policies, breach of
noncompetition, confidentiality, or other restrictive covenants that may apply
to the Participant, or other conduct by the Participant that is detrimental to
the business or reputation of the Company, its Affiliates, or its Subsidiaries.


 


17.2                           Legend. The certificates for Shares may include any
legend that the Board deems appropriate to reflect any restrictions on transfer
of such Shares.


 


17.3                           Gender and Number. Except where otherwise indicated by
the context, any masculine term used herein also shall include the feminine,
the plural shall include the singular, and the singular shall include the
plural.


 


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17.4                           Severability. In the event any provision of the
Plan shall be held illegal or invalid for any reason, the illegality or
invalidity shall not affect the remaining parts of the Plan, and the Plan shall
be construed and enforced as if the illegal or invalid provision had not been
included.


 


17.5                           Requirements of Law. The granting of Awards and the
issuance of Shares under the Plan shall be subject to all applicable laws,
rules, and regulations, and to such approvals by any governmental agencies or
national securities exchanges as may be required. The Company shall receive the
consideration required by law for the issuance of Awards under the Plan.


 


17.6                           Securities Law Compliance. With respect to Insiders,
transactions under this Plan are intended to comply with all applicable
conditions of Rule 16b-3 or its successor under the Exchange Act. To the extent
any provision of the Plan or action by the Board fails to so comply, it shall be
deemed null and void, to the extent permitted by law and deemed advisable by
the Board.


 


17.7                           Listing. The Company may use reasonable endeavours to
register Shares allotted pursuant to the exercise of an Award with the United
States Securities and Exchange Commission or to effect compliance with the
registration, qualification, and listing requirements of any national
securities laws, stock exchange, or automated quotation system.


 


17.8                           Delivery of Title. The Company shall have no
obligation to issue or deliver evidence of title for Shares issued under the
Plan prior to:


 


(a)                                  Obtaining any approvals from
governmental agencies that the Company determines are necessary or advisable;
and


 


(b)                                 Completion of any registration or
other qualification of the Shares under any applicable national or foreign law
or ruling of any governmental body that the Company determines to be necessary
or advisable


 


17.9                           Inability to Obtain Authority. The inability of the Company to
obtain authority from any regulatory body having jurisdiction, which authority
is deemed by the Company’s counsel to be necessary to the lawful issuance and
sale of any Shares hereunder, shall relieve the Company of any liability in
respect of the failure to issue or sell such Shares as to which such requisite
authority shall not have been obtained.


 


17.10                     Investment Representations. The Board may require each person
receiving Shares pursuant to an Award under this Plan to represent and warrant
in writing that the Participant is acquiring the Shares for investment and
without any present intention to sell or distribute such Shares.


 


17.11                     Employees Based Outside of the
United States.
Notwithstanding any provision of the Plan to the contrary, in order to comply
with the laws in countries other than the United States in which the Company,
its Affiliates, and its Subsidiaries


 


20

















 


operate or have Employees or Directors, the Board, in
their sole discretion, shall have the power and authority to:


 


(a)                                  Determine which Affiliates and
Subsidiaries shall be covered by the Plan;


 


(b)                                 Determine which Employees or
Directors outside the United States are eligible to participate in the Plan;


 


(c)                                  Modify the terms and conditions of
any Award granted to Employees or Directors outside the United States to comply
with applicable foreign laws;


 


(d)                                 Establish subplans and modify
exercise procedures and other terms and procedures, to the extent such actions
may be necessary or advisable. Any subplans and modifications to Plan terms and
procedures established under this Section 17.11 by the Board shall be
attached to this Plan document as appendices; and


 


(e)                                  Take any action, before or after an
Award is made, that it deems advisable to obtain approval or comply with any
necessary local government regulatory exemptions or approvals.


 


Notwithstanding
the above, the Board may not take any actions hereunder, and no Awards shall be
granted, that would violate the Exchange Act, the Code, any securities law, or
governing statute or any other applicable law.


 


17.12                     Uncertificated Shares. To the extent that the Plan
provides for issuance of certificates to reflect the transfer of Shares, the
transfer of such Shares may be effected on an uncertificated basis, to the
extent not prohibited by applicable law or the rules of any stock exchange.


 


17.13                     Unfunded Plan. Participants shall have no right,
title, or interest whatsoever in or to any investments that the Company may
make to aid it in meeting its obligations under the Plan. Nothing contained in
the Plan, and no action taken pursuant to its provisions, shall create or be
construed to create a trust of any kind, or a fiduciary relationship between
the Company and any Participant, beneficiary, legal representative, or any
other person. To the extent that any person acquires a right to receive
payments from the Company under the Plan, such right shall be no greater than
the right of an unsecured general creditor of the Company. All payments to be
made hereunder shall be paid from the general funds of the Company and no
special or separate fund shall be established and no segregation of assets
shall be made to assure payment of such amounts except as expressly set forth
in the Plan. The Plan is not intended to be subject to ERISA.


 


17.14                     No Fractional Shares. No fractional Shares shall be
issued or delivered pursuant to the Plan or any Award. The Board shall
determine whether cash, Awards, or other property shall be issued or paid in
lieu of fractional Shares or whether such fractional Shares or any rights
thereto shall be forfeited or otherwise eliminated.


 


21

















 


17.15                     Governing Law. The Plan and each Award Agreement
shall be governed by the laws of Luxembourg, excluding any conflicts or choice
of law rule or principle that might otherwise refer construction or
interpretation of the Plan to the substantive law of another jurisdiction.
Unless otherwise provided in the Award Agreement, recipients of an Award under
the Plan are deemed to submit to the exclusive jurisdiction and venue of the
courts of Luxembourg, to resolve any and all issues that may arise out of or
relate to the Plan or any related Award Agreement.


 


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