AND
HOW OTHER MATTERS ARE TO BE CALCULATED IN CONNECTION WITH AWARDS AND ACCOUNTS;
(II) DETERMINE THE TERMS AND CONDITIONS OF AWARDS; (III) DETERMINE WHETHER, TO
WHAT EXTENT, AND UNDER WHAT CIRCUMSTANCES AWARDS AND AMOUNTS PAYABLE PURSUANT TO
AN ACCOUNT SHALL BE DEFERRED AT THE ELECTION OF THE HOLDER THEREOF OR OF THE
BOARD; (IV) INTERPRET, ADMINISTER, RECONCILE ANY INCONSISTENCY, CORRECT ANY
DEFECT AND/OR SUPPLY ANY OMISSION IN THIS PLAN AND ANY INSTRUMENT OR AGREEMENT
RELATING TO THIS PLAN, OR AWARDS UNDER THIS PLAN; (V) ESTABLISH, AMEND, SUSPEND,
OR WAIVE SUCH RULES AND REGULATIONS AND APPOINT SUCH AGENTS AS IT SHALL DEEM
APPROPRIATE FOR THE PROPER ADMINISTRATION OF THIS PLAN; AND (VI) MAKE ANY OTHER
DETERMINATION AND TAKE ANY OTHER ACTION THAT THE BOARD DEEMS NECESSARY OR
DESIRABLE FOR
5
THE ADMINISTRATION OF THIS PLAN.
WHENEVER IN THIS AGREEMENT THE BOARD, OR A
COMMITTEE THEREOF IS PERMITTED OR REQUIRED TO MAKE A DECISION IN ITS "GOOD
FAITH" OR UNDER ANOTHER EXPRESS STANDARD, THE BOARD, OR A COMMITTEE THEREOF
SHALL ACT UNDER SUCH EXPRESS STANDARD AND SHALL NOT BE SUBJECT TO ANY OTHER OR
DIFFERENT STANDARD IMPOSED BY ANY OTHER AGREEMENT TO WHICH THE COMPANY MAY BE A
PARTY OR ANY OTHER APPLICABLE LAW.
THE DECISIONS OF THE BOARD SHALL BE FINAL,
CONCLUSIVE, AND BINDING UPON ALL PARTIES, INCLUDING, WITHOUT LIMITATION, THE
COMPANY, ANY PARTICIPANT, ANY HOLDER OR BENEFICIARY OF ANY ACCOUNT AND ANY
STOCKHOLDER OF THE COMPANY.
(B)
NO MEMBER OF THE BOARD OR A COMMITTEE THEREOF SHALL BE
LIABLE FOR ANY LOSS, DAMAGE OR CLAIM INCURRED BY REASON OF ANY ACT OR OMISSION
PERFORMED OR OMITTED BY THE BOARD OR A COMMITTEE THEREOF IN GOOD FAITH ON BEHALF
OF THE COMPANY, WITH RESPECT TO THE PLAN, ANY AWARD OR ANY ACCOUNT.
SECTION 4.
ELIGIBILITY.
THE PARTICIPANTS ARE THE
ONLY INDIVIDUALS ELIGIBLE TO PARTICIPATE IN THE PLAN.
SECTION 5.
PHANTOM STOCK AWARDS.
(A)
GENERAL.
THE BOARD SHALL DETERMINE THE NUMBER OF SHARES
OF PHANTOM STOCK TO BE GRANTED TO EACH PARTICIPANT AND SUCH NUMBER SHALL BE
DESIGNATED IN THE APPLICABLE AWARD AGREEMENT.
AN ACCOUNT SHALL BE ESTABLISHED
ON THE BOOKS AND RECORDS OF THE COMPANY TO WHICH THE NUMBER OF SHARES OF PHANTOM
STOCK SO GRANTED SHALL BE CREDITED.
(B)
VESTING.
CONTINGENT UPON A PARTICIPANT'S CONTINUED
EMPLOYMENT WITH THE COMPANY OR A SUBSIDIARY AND SUBJECT TO ACCELERATION PURSUANT
TO EACH OF SECTION 6(A) (DRAG-ALONG EVENT) AND SECTION 6(B) (TAG-ALONG EVENT),
EACH PARTICIPANT'S AWARD SHALL VEST AND BECOME NONFORFEITABLE RATABLY OVER 24
MONTHS IN 24 EQUAL MONTHLY INSTALLMENTS SUCH THAT ON THE SECOND ANNIVERSARY OF
THE EFFECTIVE DATE, THE AWARD SHALL BE 100% VESTED AND NONFORFEITABLE.
(C)
DIVIDENDS.
TO THE EXTENT THAT DIVIDENDS OR DISTRIBUTIONS
ARE DECLARED AND PAID TO HOLDERS OF COMMON STOCK, EACH PARTICIPANT WILL RECEIVE
THE AMOUNT THAT WOULD HAVE BEEN DISTRIBUTED TO THE PARTICIPANT AS IF THE PHANTOM
STOCK CREDITED TO THE PARTICIPANT'S ACCOUNT (SOLELY TO THE EXTENT VESTED) WAS
ISSUED AND OUTSTANDING COMMON STOCK AND SUCH DIVIDEND OR DISTRIBUTION SHALL BE
PAID AT THE SAME