Exhibit 6.11
XXXXXXXX.XXX, INC.
2000 STOCK INCENTIVE PLAN
1. DEFINITIONS. In this Plan, except where the context otherwise
indicates, the following definitions shall apply:
1.1. "Affiliate" means a corporation, partnership, business
trust, limited liability company or other form of business organization at least
a majority of the total combined voting power of all classes of stock or other
equity interests of which is owned by the Company, either directly or through
one or more other Affiliates.
1.2. "Agreement" means a written agreement evidencing an
Award.
1.3. "Award" means a grant of an Option or shares of
Restricted Stock.
1.4. "Board" means the Board of Directors of the Company.
1.5. "Code" means the Internal Revenue Code of 1986, as
amended.
1.6. "Committee" means such committee(s), subcommittee(s)
or person(s) appointed by the Board to administer this Plan or to make and/or
administer specific Awards hereunder. If no such appointment is in effect at
any time, "Committee" shall mean the Board.
1.7. "Common Stock" means the common stock, par value $1.00
per share, of the Company.
1.8. "Company" means Xxxxxxxx.xxx, Inc., and any successor
thereto.
1.9. "Date of Exercise" means the date on which the Company
receives notice of the exercise of an Option in accordance with the terms of
Section 7.1 hereof.
1.10. "Date of Grant" means the date on which an Option or
shares of Restricted Stock are granted under this Plan.
1.11. "Eligible Person" means any person who is (a) an
Employee (b) hired to be an Employee, (c) a Non-Employee Director or (d) a
consultant or independent contractor to the Company or an Affiliate and who is
determined by the Committee to render key services to the Company or an
Affiliate.
1.12. "Employee" means any person determined by the Committee
to be an employee of the Company or an Affiliate.
1.13. "Exchange Act" means the Securities Exchange Act of
1934, as amended.
1.14. "Fair Market Value" means an amount equal to the then
fair market value of a Share as determined by the Committee in good faith, or,
unless otherwise determined by the Committee, if the Shares become registered
under the Securities Act of 1933, as amended, and the Shares are traded on a
securities exchange or automated dealer quotation system, fair market value
shall be the last sale price for a Share, as of the relevant date, on such
securities exchange or automated dealer quotation system as reported by such
source as the Committee may select.
1.15. "Incentive Stock Option" means an Option granted under
this Plan that the Company designates as an incentive stock option under
Section 422 of the Code.
1.16. "Non-Employee Director" means any member of the
Company's or an Affiliate's Board of Directors who is not an Employee.
1.17. "Nonstatutory Stock Option" means an Option granted
under this Plan that is not an Incentive Stock Option.
1.18. "Option" means an option to purchase Shares granted
under this Plan in accordance with the terms of Section 6 hereof.
1.19. "Option Period" means the period during which an Option
may be exercised.
1.20. "Option Price" means the price per Share at which an
Option may be exercised.
1.21. "Participant" means an Eligible Person who has been
granted an Award hereunder.
1.22. "Performance Goals" means performance goals established
by the Committee which may be based on earnings or earnings growth, return on
assets, cash flow, total shareholder return, equity or investment, regulatory
compliance, satisfactory internal or external audits, improvement of financial
ratings, achievement of balance sheet or income statement objectives,
implementation or completion of one or more projects or transactions, or any
other objective goals established by the Committee, and may be absolute in their
terms or measured against or in relationship to other companies comparably,
similarly or otherwise situated. Such performance standards may be particular
to an Eligible Person or the department, branch, Affiliate or other division
in which he or she works, or may be based on the performance of the Company or
the Company and its Affiliates generally, and may cover such period as may be
specified by the Committee.
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1.23. "Plan" means the Xxxxxxxx.xxx, Inc. 2000 Stock Incentive
Plan, as amended from time to time.
1.24. "Restricted Stock" means Shares awarded under the Plan
pursuant to the provisions of Section 8 hereof.
1.25. "Section 422 Employee" means an Employee who is employed
by the Company or a "parent corporation" or "subsidiary corporation" (both as
defined in Section 424(e) and (f) of the Code) with respect to the Company.
1.26. "Share" means a share of Common Stock.
1.27. "Ten-Percent Stockholder" means a Section 422 Employee
who (applying the rules of Section 424(d) of the Code) owns stock possessing
more than 10% of the total combined voting power of all classes of stock of the
Company or an Affiliate.
2. PURPOSE. This Plan is intended to assist the Company and its
Affiliates in attracting and retaining Eligible Persons of outstanding ability
and to promote the identification of their interests with those of the
stockholders of the Company and its Affiliates.
3. ADMINISTRATION. The Committee shall administer this Plan and shall
have plenary authority, in its discretion, to grant Awards to Eligible Persons,
subject to the provisions of this Plan. The Committee shall have plenary
authority and discretion, subject to the provisions of this Plan, to determine
the Eligible Persons to whom Awards shall be granted, the terms (which terms
need not be identical) of all Awards, including without limitation the Option
Price of Options, the time or times at which Awards are made, the number of
Shares covered by Awards, whether an Option shall be an Incentive Stock Option
or a Nonstatutory Stock Option, any exceptions to non-transferability, any
Performance Goals applicable to Awards, any provisions relating to vesting, and
the period during which Options may be exercised and Restricted Stock shall be
subject to restrictions. In making these determinations, the Committee may take
into account the nature of the services rendered or to be rendered by Award
recipients, their present and potential contributions to the success of the
Company and its Affiliates, and such other factors as the Committee in its
discretion shall deem relevant. Subject to the provisions of the Plan, the
Committee shall have plenary authority to interpret the Plan, prescribe, amend
and rescind rules and regulations relating to it, and make all other
determinations deemed necessary or advisable for the administration of this
Plan. The determinations of the Committee on the matters referred to in this
Section 3 hereof shall be binding and final.
4. ELIGIBILITY. Awards may be granted only to Eligible Persons;
provided, however, that Incentive Stock Options may only be granted to Eligible
Persons who are Section 422 Employees on the Date of Grant.
5. STOCK SUBJECT TO PLAN.
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5.1. Subject to adjustment as provided in Section 9 hereof,
the maximum number of Shares that may be issued under this Plan is 5,000,000
Shares.
5.2. If an Option expires or terminates for any reason without
having been fully exercised or if shares of Restricted Stock are forfeited, the
unissued or forfeited Shares that had been subject to the Award shall available
for the grant of additional Awards.
6. OPTIONS.
6.1. Options granted under this Plan to Eligible Persons shall
be either Incentive Stock Options or Nonstatutory Stock Options, as designated
by the Committee; provided, however, that Incentive Stock Options may only be
granted to Eligible Persons who are Section 422 Employees on the Date of Grant.
Each Option granted under this Plan shall be clearly identified either as a
Nonstatutory Stock Option or an Incentive Stock Option and shall be evidenced by
an Agreement that specifies the terms and conditions of the grant. Options
shall be subject to the terms and conditions set forth in this Section 6 hereof
and such other terms and conditions not inconsistent with this Plan as the
Committee may specify.
6.2. The price per share of Common Stock at which an Incentive
Stock Option granted under this Plan may be exercised shall not be less than one
hundred percent (100%) of the Fair Market Value of the Common Stock on the Date
of Grant. Notwithstanding the foregoing, in the case of an Incentive Stock
Option granted to an Employee who, at the time of grant, is a Ten Percent
Shareholder, the exercise price per share shall not be less than one hundred and
ten percent (110%) of the Fair Market Value of the Common Stock on the date on
which the Option is granted.
6.3. The Option Period shall be determined by the Committee
and specifically set forth in the Agreement; provided, however, that an Option
shall not be exercisable after ten years (five years in the case of an Incentive
Stock Option granted to a Ten-Percent Stockholder) from its Date of Grant.
7. EXERCISE OF OPTIONS.
7.1. An Option may, subject to the terms of the applicable
Agreement under which it was granted, be exercised in whole or in part by the
delivery to the Company of written notice of the exercise, in such form as the
Committee may prescribe, accompanied by (a) full payment for the Shares with
respect to which the Option is exercised or (b) irrevocable instructions to a
broker to deliver promptly to the Company cash equal to the exercise price of
the Option. To the extent provided in the applicable Agreement, payment may be
made in whole or in part by delivery (including constructive delivery) of Shares
(provided that such Shares, if acquired pursuant to an option granted hereunder
or under any other plan maintained by the Company or any Affiliate, have been
held by the Participant for at least six (6) months) valued at Fair Market Value
on the Date of Exercise or by delivery of a promissory note as provided in
Section 7.2 hereof.
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7.2. To the extent provided in an Agreement and permitted by
applicable law, the Committee may accept as partial payment of the Option Price
a promissory note executed by the Participant evidencing his or her obligation
to make future cash payment thereof. Promissory notes made pursuant to this
Section 7.2 shall be payable upon such terms as may be determined by the
Committee, shall be secured by a pledge of the Shares received upon exercise of
the Option or other securities the Committee may deem to be acceptable for such
purposes, and shall bear interest at a rate fixed by the Committee.
7.3. Awards granted under this Plan shall not be transferable
except by will, the laws of descent and distribution, except to the extent
provided in an Agreement.
8. RESTRICTED STOCK AWARDS.
8.1. Awards of Restricted Stock under this Plan shall consist
of Shares that are restricted as to transfer, subject to forfeiture, and subject
to such other terms and conditions as may be determined by the Committee. Such
terms and conditions may provide, in the discretion of the Committee, for the
lapse of such transfer restrictions or forfeiture provisions to be contingent
upon the achievement of one or more specified Performance Goals.
8.2. Restricted Stock awards under this Plan shall be
evidenced by Agreements specifying the terms and conditions of the Award. Each
Agreement evidencing an Award of Restricted Stock shall, except to the extent
otherwise determined by the Committee, contain the following:
(a) prohibitions against the sale, assignment,
transfer, exchange, pledge, hypothecation, or other encumbrance of (i) the
Shares awarded as Restricted Stock, (ii) the right to vote the Shares, and
(iii) the right to receive dividends thereon, in each case during, the
restriction period applicable to the Shares; provided, however, that the
Participant shall have all the other rights of a stockholder including without
limitation the right to receive dividends and the right to vote the Shares;
(b) a requirement that each certificate representing
Restricted Stock shall be deposited with the Company, or its designee, and shall
bear the following legend:
"This certificate and the shares of stock represented
hereby are subject to the terms and conditions
(including the risks of forfeiture and restrictions
against transfer) contained in the Xxxxxxxx.xxx, Inc.
2000 Stock Incentive Plan (the "Plan"), and an
Agreement entered into between the registered owner
and Xxxxxxxx.xxx, Inc. Release from such terms and
conditions shall be made only in accordance with the
provisions of the Plan and the
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Agreement, a copy of each of which is on file in the
office of the Secretary of Xxxxxxxx.xxx, Inc."
(c) the terms and conditions upon which any
restrictions applicable to the Restricted Stock shall lapse and new certificates
free of the foregoing legend shall be issued to the Participant or the
Participant's legal representative; and
(d) such other terms, conditions and restrictions as
the Committee in its discretion may specify, including without limitation terms
that condition the lapse of forfeiture provisions and transfer restrictions upon
the achievement of one or more specified Performance Goals.
9. CAPITAL ADJUSTMENTS. In the event of any change in the outstanding
Common Stock by reason of any stock dividend, split-up, recapitalization,
reclassification, combination or exchange of shares, merger, consolidation,
liquidation or the like, the Committee may, in its discretion, provide for a
substitution for or adjustment in (a) the number and class of Shares subject to
outstanding Awards, (b) the Option Price of Options, and (c) the aggregate
number and class of Shares for which Awards thereafter may be made under this
Plan.
10. TERMINATION OR AMENDMENT. The Board may amend or terminate this
Plan in any respect at any time; provided, however, that, after this Plan has
been approved by the stockholders of the Company, no amendment or termination of
this Plan shall be made by the Board without approval of (a) the Company's
stockholders to the extent stockholder approval of the amendment is required by
applicable law or regulations or the requirements of the principal exchange or
interdealer quotation system on which the Common Stock is listed or quoted, if
any, and (b) each affected Participant if such amendment or termination would
adversely affect such Participant's rights or obligations under any Award made
prior to the date of such amendment or termination.
11. MODIFICATION AND SUBSTITUTION.
11.1. Subject to the terms and conditions of this Plan, the
Committee may modify the terms of any outstanding Awards; provided, however,
that no modification of an Award shall, without the consent of the Participant,
alter or impair any of the Participant's rights or obligations under such Award.
11.2. Anything contained herein to the contrary
notwithstanding, Awards may, at the discretion of the Committee, be granted
under this Plan in substitution for stock options and other awards covering
capital stock of another corporation which is merged into, consolidated with, or
all or a substantial portion of the property or stock of which is acquired by,
the Company or one of its Affiliates. The terms and conditions of the substitute
Awards so granted may vary from the terms and conditions set forth in this Plan
to such extent as the Committee may deem appropriate in order to conform, in
whole or part, to the provisions of the awards in substitution for which they
are granted.
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12. FOREIGN EMPLOYEES. Without amendment of this Plan, the Committee
may grant Awards to Eligible Persons, or to a trust established for the benefit
of Eligible Persons, who are subject to the laws of foreign countries or
jurisdictions on such terms and conditions different from those specified in
this Plan as may in the judgement of the Committee be necessary or desirable to
xxxxxx and promote achievement of the purposes of this Plan and, in furtherance
of such purposes. The Committee may make such modifications, amendments,
procedures, sub-plans and the like as may be necessary or advisable to comply
with provisions of laws of other countries or jurisdictions in which the Company
or any of its Affiliates operate or have employees.
13. EFFECTIVENESS OF THIS PLAN. This Plan and any amendments hereto
requiring stockholder approval pursuant to Section 10 hereof are subject to
approval by vote of the stockholders of the Company at the next annual or
special meeting of stockholders following adoption by the Board. Subject to such
stockholder approval, this Plan and any amendments hereto are effective on the
date on which they are adopted by the Board.
14. WITHHOLDING. The Company's obligation to deliver Shares pursuant to
the terms of any Award hereunder shall be subject to satisfaction of applicable
federal, state and local tax withholding requirements. To the extent provided in
the applicable Agreement and in accordance with rules prescribed by the
Committee, a Participant may satisfy any such withholding tax obligation by any
of the following means or by a combination of such means: (a) tendering a cash
payment, (b) authorizing the Company to withhold Shares otherwise issuable to
the Participant, or (c) delivering to the Company already-owned and unencumbered
Shares.
15. TERM OF PLAN. Unless sooner terminated by the Board pursuant to
Section 10, this Plan shall terminate on March 31, 2006, and no Awards may be
granted or awarded after such date. The termination of this Plan shall not
affect the validity of any Award outstanding on the date of termination.
16. INDEMNIFICATION OF COMMITTEE. In addition to such other rights of
indemnification as they may have as members of the Board or the Committee,
members of the Committee shall be indemnified by the Company against all
reasonable expenses, including attorneys' fees, actually and reasonably incurred
in connection with the defense of any action, suit or proceeding, or in
connection with any appeal therein, to which they or any of them may be a party
by reason of any action taken or failure to act under or in connection with this
Plan or any Award granted hereunder, and against all amounts reasonably paid by
them in settlement thereof or paid by them in satisfaction of a judgment in any
such action, suit or proceeding, if such members acted in good faith and in a
manner which they believed to be in, and not opposed to, the best interests of
the Company.
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17. GENERAL PROVISIONS.
17.1. The establishment of this Plan shall not confer upon any
Eligible Person any legal or equitable right against the Company, any Affiliate
or the Committee, except as expressly provided in this Plan.
17.2. Participation in this Plan shall not give an Eligible
Person any right to be retained in the service of the Company or any Affiliate.
17.3. Neither the adoption of this Plan nor its submission to
the stockholders, shall be taken to impose any limitations on the powers of the
Company or its Affiliates to issue, grant, or assume options, warrants, rights,
or restricted stock, or other awards otherwise than under this Plan, or to adopt
other stock option, restricted stock, or other plans or to impose any
requirement of stockholder approval upon the same.
17.4. The interests of any Eligible Person under this Plan are
not subject to the claims of creditors and may not, in any way, be assigned,
alienated or encumbered except to the extent provided in an Agreement.
17.5. This Plan shall be governed, construed and administered
in accordance with the laws of the State of Nevada.
17.6. The Committee may require each person acquiring Shares
pursuant to Awards hereunder to represent to and agree with the Company in
writing that such person is acquiring the Shares without a view to distribution
thereof. The certificates for such Shares may include any legend which the
Committee deems appropriate to reflect any restrictions on transfer. All
certificates for Shares issued pursuant to this Plan shall be subject to such
stock transfer orders and other restrictions as the Committee may deem advisable
under the rules, regulations and other requirements of the Securities and
Exchange Commission, any stock exchange upon which the Common Stock is then
listed or interdealer quotation system upon which the Common Stock is then
quoted, and any applicable federal or state securities laws. The Committee may
place a legend or legends on any such certificates to make appropriate reference
to such restrictions.
17.7. The Company shall not be required to issue any
certificate or certificates for Shares with respect to Awards under this Plan,
or record any person as a holder of record of such Shares, without obtaining,
to the complete satisfaction of the Committee, the approval of all regulatory
bodies deemed necessary by the Committee, and without complying to the Board's
or Committee's complete satisfaction, with all rules and regulations, under
federal, state or local law deemed applicable by the Committee.
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