{"id":38248,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/1996-incentive-plan-barnes-amp-amp-noble-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"1996-incentive-plan-barnes-amp-amp-noble-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/1996-incentive-plan-barnes-amp-amp-noble-inc.html","title":{"rendered":"1996 Incentive Plan &#8211; Barnes &#038; Noble Inc."},"content":{"rendered":"<pre>\n                              BARNES &amp; NOBLE, INC.\n                              1996 INCENTIVE PLAN*\n\n                  BARNES &amp; NOBLE, INC., a corporation formed under the laws of\nthe State of Delaware (the 'Company'), hereby establishes and adopts the\nfollowing 1996 Incentive Plan (the 'Plan').\n\n                                    RECITALS\n\n                  WHEREAS, the Company desires to encourage high levels of\nperformance by those individuals who are key to the success of the Company, to\nattract new individuals who are highly motivated and who will contribute to the\nsuccess of the Company and to encourage such individuals to remain as directors,\nemployees, consultants and\/or advisors of the Company and its subsidiaries by\nincreasing their proprietary interest in the Company's growth and success.\n\n                  WHEREAS, to attain these ends, the Company has formulated the\nPlan embodied herein to authorize the granting of incentive awards through\ngrants of stock options ('Options'), grants of stock appreciation rights, grants\nof Stock Purchase Awards (hereafter defined), and grants of Restricted Stock\nAwards (hereafter defined) to those individuals whose judgment, initiative and\nefforts are or have been responsible for the success of the Company.\n\n                  NOW, THEREFORE, the Company hereby constitutes, establishes\nand adopts the following Plan and agrees to the following provisions:\n\n                                   ARTICLE 1.\n\n                               PURPOSE OF THE PLAN\n\n                  1.1. Purpose. The purpose of the Plan is to assist the Company\nin attracting and retaining selected individuals to serve as directors,\nofficers, consultants, advisors and employees of the Company who will contribute\nto the Company's success and to achieve long-term objectives which will inure to\nthe benefit of all stockholders of the Company through the additional incentive\ninherent in the ownership of the Company's shares of common stock ('Shares').\nOptions granted under the Plan will be either 'incentive stock options,'\nintended to qualify as such under the provisions of section 422 of the Internal\nRevenue Code of 1986, as from time to time amended (the 'Code'), or\n'nonqualified stock options.' For purposes of the Plan, the term 'subsidiary'\nshall mean 'subsidiary corporation,' as such term is defined in section 424(f)\nof the Code, and 'affiliate' shall have the meaning set forth in Rule 12b-2 of\nthe Securities Exchange Act of 1934, as amended (the 'Exchange Act'). For\npurposes of the Plan, the term 'Award' shall mean a grant of an Option, a grant\nof a stock appreciation right, a grant of a Stock Purchase Award, a grant of a\nRestricted Stock Award, or any other award made under the terms of the Plan.\n\n-------------------------------\n* Revised to reflect two-for-one stock split effected September 22, 1997 and\n5,000,000 share increase in shares available for issuance effected June 3, 1998.\n\n\n                                   ARTICLE 2.\n\n                            SHARES SUBJECT TO AWARDS\n\n                  2.1. Number of Shares. Subject to the adjustment provisions of\nSection 9.10 hereof, the aggregate number of Shares which may be issued under\nAwards under the Plan, whether pursuant to Options, stock appreciation rights,\nStock Purchase Awards or Restricted Stock Awards shall not exceed 11,000,000. No\nOptions to purchase fractional Shares shall be granted or issued under the Plan.\nFor purposes of this Section 2.1, the Shares that shall be counted toward such\nlimitation shall include all Shares:\n\n                  (1) issued or issuable pursuant to Options that have been or \n                      may be exercised;\n\n                  (2) issued or issuable pursuant to Stock Purchase Awards; and\n\n                  (3) issued as, or subject to issuance as, a Restricted Stock\n                      Award.\n\n                  2.2. Shares Subject to Terminated Awards. The Shares covered\nby any unexercised portions of terminated Options granted under Articles 4 and\n6, Shares forfeited as provided in Section 8.2(a) and Shares subject to any\nAwards which are otherwise surrendered by the Participant without receiving any\npayment or other benefit with respect thereto may again be subject to new Awards\nunder the Plan. In the event the purchase price of an Option is paid in whole or\nin part through the delivery of Shares, the number of Shares issuable in\nconnection with the exercise of the Option shall not again be available for the\ngrant of Awards under the Plan. Shares subject to Options, or portions thereof,\nwhich have been surrendered in connection with the exercise of stock\nappreciation rights shall not again be available for the grant of Awards under\nthe Plan.\n\n                  2.3. Character of Shares. Shares delivered under the Plan may\nbe authorized and unissued Shares or Shares acquired by the Company, or both.\n\n                  2.4. Limitations on Grants to Individual Participant. Subject\nto adjustments pursuant to the provisions of Section 9.10 hereof, the number of\nShares which may be granted hereunder to any employee during any fiscal year\nunder all forms of Awards shall not exceed 700,000 Shares. If an Option is\ncancelled, the cancelled Option shall continue to be counted toward the 700,000\nlimit for the year granted. An Option (or a stock appreciation right) that is\nrepriced during any fiscal year is treated as the cancellation of the Option (or\nstock appreciation right) and a grant of a new Option (or stock appreciation\nright), both of which shall be counted toward the 700,000 limit for that fiscal\nyear.\n\n                                   ARTICLE 3.\n\n                         ELIGIBILITY AND ADMINISTRATION\n\n                  3.1. Awards to Employees and Directors. (a) Participants who\nreceive (i) Options under Articles 4 and 6 hereof or stock appreciation rights\nunder Article 5 ('Optionees'), and (ii) Stock Purchase Awards under Article 7 or\nRestricted Stock Awards under Article 8 (in either case, a 'Participant'), shall\nconsist of such key officers, employees, consultants, advisors and directors of\nthe Company or any of its subsidiaries or affiliates as the Committee shall\nselect from time to time, provided, however, that an Option that is intended to\nqualify as an 'incentive stock option' may be granted only to an individual that\nis an \n\n                                      -2-\n\nemployee of the Company or any of its subsidiaries. The Committee's designation\nof an Optionee or Participant in any year shall not require the Committee to\ndesignate such person to receive Awards or grants in any other year. The\ndesignation of an Optionee or Participant to receive Awards or grants under one\nportion of the Plan shall not require the Committee to include such Optionee or\nParticipant under other portions of the Plan.\n\n                       (b) No Option which is intended to qualify as an  \n'incentive stock option' may be granted to any employee who, at the time of such\ngrant, owns, directly or indirectly (within the meaning of sections 422(b)(6)\nand 424(d) of the Code), shares of stock possessing more than ten percent (10%)\nof the total combined voting power of all classes of stock of the Company or any\nof its subsidiaries or affiliates, unless at the time of such grant, (i) the\noption price is fixed at not less than 110% of the Fair Market Value (as defined\nbelow) of the Shares subject to such Option, determined on the date of the\ngrant, and (ii) the exercise of such Option is prohibited by its terms after the\nexpiration of five years from the date such Option is granted.\n\n                  3.2. Administration. (a) The Plan shall be administered by a\ncommittee (the 'Committee') consisting of not fewer than two directors of the\nCompany (the directors of the Company being hereinafter referred to as the\n'Directors'), as designated by the Directors. The Directors may remove from, add\nmembers to, or fill vacancies in the Committee. Each member of the Committee\nshall be a 'disinterested person' within the meaning of Rule 16b-3(c)(2)(i) of\nthe Exchange Act and an 'outside director' within the meaning of Section\n162(m)(4)(C)(i) of the Code, except that if the Directors determine that (i) the\nPlan cannot satisfy the requirements of Rule 16b-3 of the Exchange Act (such\nthat grants of Awards are not exempt from Section 16(b) of the Exchange Act),\nthen the members of the Committee need not be 'disinterested persons,' or (ii)\nthey no longer want the Plan to comply with the requirements of Code Section\n162(m), then the members of the Committee need not be 'outside directors.' Any\nAward to a member of the Committee shall be made strictly in accordance with the\nterms of Section 4.1(b).\n\n                       (b) The Committee is authorized, subject to the \nprovisions of the Plan, to establish such rules and regulations as it may deem\nappropriate for the conduct of meetings and proper administration of the Plan.\nAll actions of the Committee shall be taken by majority vote of its members.\n\n                       (c) Subject to the provisions of the Plan, the Committee\nshall have authority, in its sole discretion, to grant Awards under the Plan, to\ninterpret the provisions of the Plan and, subject to the requirements of\napplicable law, including Rule 16b-3 of the Exchange Act, to prescribe, amend,\nand rescind rules and regulations relating to the Plan or any Award thereunder\nas it may deem necessary or advisable. All decisions made by the Committee\npursuant to the provisions of the Plan shall be final, conclusive and binding on\nall persons, including the Company, its stockholders, Directors and employees,\nand other Plan participants.\n\n                                  ARTICLE 4.\n\n                                   OPTIONS\n\n                  4.1. Grant of Options. (a) Key Individuals, Directors and\nEmployees. The Committee shall determine, within the limitations of the Plan,\nthose key individuals and the Directors and employees of the Company and its\nsubsidiaries and affiliates to whom Options are to be granted under the Plan,\nthe \n\n                                      -3-\n\nnumber of Shares that may be purchased under each such Option and the option\nprice, and shall designate such Options at the time of the grant as either\n'incentive stock options' or 'nonqualified stock options'; provided, however,\nthat Options granted to employees of an affiliate (that is not also a\nsubsidiary) or to non-employees of the Company may only be 'nonqualified stock\noptions.'\n\n                       (b) Non-Employee Directors. Notwithstanding any provision\nof this Plan to the contrary, all persons who are Non-Employee Directors (as\ndefined below) shall receive Awards under this Plan only as follows: (i) all\nNon-Employee Directors on January 16, 1996 shall automatically be granted\nOptions to purchase 40,000 Shares at their then Fair Market Value, with 25% of\neach such Option (covering 10,000 Shares) exercisable immediately (or on such\nlater date as stockholder approval of this Plan is obtained) and an additional\n25% shall become exercisable on each January 1 thereafter through January 1,\n1999, at which time 100% of said Options shall be exercisable; and (ii) each\nperson who thereafter is elected or appointed to membership on the Board of\nDirectors of the Company and who is a Non-Employee Director on the date of his\nelection or appointment, shall on such effective date of election or appointment\nautomatically be granted Options to purchase 40,000 Shares at their then Fair\nMarket Value, with 25% of each such Option (covering 10,000 Shares) becoming\nexercisable on each of the next four anniversaries of said grant date, at which\ntime (said fourth anniversary) 100% of said Options shall be exercisable. For\npurposes of this paragraph (b), a 'Non-Employee Director' shall be a Director\nwho is not otherwise an employee of the Company or any of its affiliates or\nsubsidiaries on the grant date and has not been employed by the Company or any\nof its affiliates or subsidiaries for any part of the twelve months preceding\nsuch date. Each Option granted to a Non-Employee Director hereunder shall be\nexercisable for a period of ten years from the date of automatic grant and shall\nbe subject to the restrictions and limitations set forth in the Plan.\nNotwithstanding any provision of this Plan to the contrary, the provisions of\nthis Section 4.1(b) may not be amended more than once every six (6) months,\nother than to comport with changes in the Code, the Employee Retirement Income\nSecurity Act of 1974, as amended, or the rules thereunder.\n\n                  4.2. Stock Option Agreements; etc. All Options granted\npursuant to Article 4 and Article 6 herein (a) shall be authorized by the\nCommittee (other than Options to Non-Employee Directors under Section 4.1(b))\nand (b) shall be evidenced in writing by stock option agreements ('Stock Option\nAgreements') in such form and containing such terms and conditions as the\nCommittee shall determine which are not inconsistent with the provisions of the\nPlan, and, with respect to any Stock Option Agreement granting Options which are\nintended to qualify as 'incentive stock options,' are not inconsistent with\nSection 422 of the Code. Granting of an Option pursuant to the Plan shall impose\nno obligation on the recipient to exercise such option. Any individual who is\ngranted an Option pursuant to this Article 4 and Article 6 herein may hold more\nthan one Option granted pursuant to such Articles at the same time and may hold\nboth 'incentive stock options' and 'nonqualified stock options' at the same\ntime. To the extent that any Option does not qualify as an 'incentive stock\noption' (whether because of its provisions, the time or manner of its exercise\nor otherwise) such Option or the portion thereof which does not so qualify shall\nconstitute a separate 'nonqualified stock option.'\n\n                  4.3. Option Price. Subject to Section 3.1(b), the option price\nper each Share purchasable under any 'incentive stock option' granted pursuant\nto this Article 4 and any 'nonqualified stock option' granted pursuant to\nArticle 6 herein shall not be less than 100% of the Fair Market Value (as\nhereinafter defined) of such Share on the date of the grant of such Option. The\noption price per each Share purchasable under any 'nonqualified stock option'\ngranted pursuant to this Article 4 shall be such amount as the Committee shall\ndetermine at the time of the grant of such Option. Notwithstanding the\nforegoing, the option price per each Share purchasable under any Option granted\nto a Non-Employee Director \n\n                                      -4-\n\npursuant to Section 4.1(b) shall be equal to 100% of the Fair Market Value of\nsuch Share on the date of grant of such Option.\n\n                  4.4. Other Provisions. Options granted pursuant to this\nArticle 4 shall be made in accordance with the terms and provisions of Article 9\nhereof and any other applicable terms and provisions of the Plan.\n\n                                   ARTICLE 5.\n\n                            STOCK APPRECIATION RIGHTS\n\n                  5.1. Grant and Exercise. Stock appreciation rights may be\ngranted in conjunction with all or part of any Option granted under the Plan\nprovided such rights are granted at the time of the grant of such Option. A\n'stock appreciation right' is a right to receive cash or Shares, as provided in\nthis Article 5, in lieu of the purchase of a Share under a related Option. A\nstock appreciation right or applicable portion thereof shall terminate and no\nlonger be exercisable upon the termination or exercise of the related Option,\nand a stock appreciation right granted with respect to less than the full number\nof Shares covered by a related Option shall not be reduced until, and then only\nto the extent that, the exercise or termination of the related Option exceeds\nthe number of Shares not covered by the stock appreciation right. A stock\nappreciation right may be exercised by the holder thereof (the 'Holder'), in\naccordance with Section 5.2 of this Article 5, by giving written notice thereof\nto the Company and surrendering the applicable portion of the related Option.\nUpon giving such notice and surrender, the Holder shall be entitled to receive\nan amount determined in the manner prescribed in Section 5.2 of this Article 5.\nOptions which have been so surrendered, in whole or in part, shall no longer be\nexercisable to the extent the related stock appreciation rights have been\nexercised.\n\n                  5.2. Terms and Conditions. Stock appreciation rights shall be\nsubject to such terms and conditions, not inconsistent with the provisions of\nthe Plan, as shall be determined from time to time by the Committee, including\nthe following:\n\n                       (a) Stock appreciation rights shall be exercisable only\n         at such time or times and to the extent that the Options to which they\n         relate shall be exercisable in accordance with the provisions of the\n         Plan.\n\n                       (b) Upon the exercise of a stock appreciation right, a\n         Holder shall be entitled to receive up to, but no more than, an\n         amount in cash or whole Shares equal to the excess of the then Fair\n         Market Value of one Share over the option price per Share specified in\n         the related Option multiplied by the number of Shares in respect of\n         which the stock appreciation right shall have been exercised. The\n         Holder shall specify in his written notice of exercise, whether payment\n         shall be made in cash or in whole Shares; provided, however, in the\n         case of a stock appreciation right exercised by a person subject to\n         Section 16 of the Exchange Act, the Holder's written notice specifying\n         the form of payment is subject to the approval of the Committee. Each\n         stock appreciation right may be exercised only at the time and so long\n         as a related Option, if any, would be exercisable or as otherwise\n         permitted by applicable law; provided, however, that no stock\n         appreciation right granted under the Plan to a person then subject to\n         Section 16 of the Exchange Act shall be exercised during the first six\n         months of its term for cash.\n\n                                      -5-\n\n                       (c) No stock appreciation right shall be transferable\n         by a Holder otherwise than by will or by the laws of descent and\n         distribution, and stock appreciation rights shall be exercisable,\n         during the Holder's lifetime, only by the Holder.\n\n                       (d) Upon the exercise of a stock appreciation right,\n         the Option or part thereof to which such stock appreciation right is\n         related shall be deemed to have been exercised for the purpose of the\n         limitation of the number of Shares to be issued under the Plan, as set\n         forth in Section 2.1 of the Plan.\n\n                       (e) Stock appreciation rights granted in connection\n         with an Option may be exercised only when the Fair Market Value of the\n         Shares subject to the Option exceeds the option price at which Shares\n         can be acquired pursuant to the Option.\n\n                       (f) Stock appreciation rights may be exercised for cash\n         by a person subject to Section 16 of the Exchange Act only during the\n         period beginning on the third business day, and ending on the twelfth\n         business day, following the release of quarterly and annual summary\n         statements of sales and earnings, as set forth in Rule 16b-3(e)(1)(ii) \n         of the Exchange Act.\n\n                                   ARTICLE 6.\n\n                                 RELOAD OPTIONS\n\n                  6.1. Authorization of Reload Options. Concurrently with the\naward of any Option (such Option hereinafter referred to as the 'Underlying\nOption') to any participant in the Plan, the Committee may grant a reload option\n(a 'Reload Option') to such participant to purchase for cash or Shares a number\nof Shares as specified below. A Reload Option shall be exercisable for an amount\nof Shares equal to (i) the number of Shares delivered by the Optionee to the\nCompany to exercise the Underlying Option, and (ii) to the extent authorized by\nthe Committee, the number of Shares used to satisfy any tax withholding\nrequirement incident to the exercise of the Underlying Option, subject to the\navailability of Shares under the Plan at the time of such exercise. The grant of\na Reload Option shall become effective upon the exercise of an Underlying Option\nby delivering to the Company Shares held by the Optionee for at least six\nmonths. Notwithstanding the fact that the Underlying Option may be an 'incentive\nstock option,' a Reload Option is not intended to qualify as an 'incentive stock\noption' under Section 422 of the Code.\n\n                  6.2. Reload Option Amendment. Each Stock Option Agreement\nshall state whether the Committee has authorized Reload Options with respect to\nthe Underlying Option. Upon the exercise of an Underlying Option, the Reload\nOption will be evidenced by an amendment to the underlying Stock Option\nAgreement.\n\n                  6.3. Reload Option Price. The option price per Share\ndeliverable upon the exercise of a Reload Option shall be the Fair Market Value\nof a Share on the date the grant of the Reload Option becomes effective.\n\n                  6.4. Term and Exercise. Each Reload Option is fully\nexercisable six months from the effective date of grant. The term of each Reload\nOption shall be equal to the remaining option term of the Underlying Option.\n\n                                      -6-\n\n                  6.5. Termination of Employment. No Reload Option shall be\ngranted to an Optionee when Options are exercised pursuant to the terms of this\nPlan following termination of the Optionee's employment.\n\n                  6.6. Applicability of Other Sections. Except as otherwise\nprovided in this Article 6, the provisions of Article 9 applicable to Options\nshall apply equally to Reload Options.\n\n                                   ARTICLE 7.\n\n                              STOCK PURCHASE AWARDS\n\n                  7.1. Grant of Stock Purchase Awards. The term 'Stock Purchase\nAward' means the right to purchase Shares of the Company and to pay for such\nShares through a loan made by the Company to an employee (a 'Purchase Loan') as\nset forth in this Article 7.\n\n                  7.2. Terms of Purchase Loans. (a) Purchase Loan. Each Purchase\nLoan shall be evidenced by a promissory note. The term of the Purchase Loan\nshall be a period of years, as determined by the Committee, and the proceeds of\nthe Purchase Loan shall be used exclusively by the Participant for purchase of\nShares from the Company at a purchase price equal to their Fair Market Value on\nthe date of the Stock Purchase Award.\n\n                       (b) Interest on Purchase Loan. A Purchase Loan shall be\nnon-interest bearing or shall bear interest at whatever rate the Committee shall\ndetermine (but not in excess of the maximum rate permissible under applicable\nlaw), payable in a manner and at such times as the Committee shall determine.\nThose terms and provisions as the Committee shall determine shall be\nincorporated into the promissory note evidencing the Purchase Loan.\n\n                       (c) Forgiveness of Purchase Loan. Subject to Section 7.4 \nhereof, the Company may forgive the repayment of up to 100% of the principal\namount of the Purchase Loan, subject to such terms and conditions as the\nCommittee shall determine and set forth in the promissory note evidencing the\nPurchase Loan (the 'Conditions'). A Participant's Purchase Loan can be prepaid\nat any time, and from time to time, without penalty.\n\n                  7.3. Security for Loans. (a) Stock Power and Pledge. Purchase\nLoans granted to Participants shall be secured by a pledge of the Shares\nacquired pursuant to the Stock Purchase Award. Such pledge shall be evidenced by\na pledge agreement (the 'Pledge Agreement') containing such terms and conditions\nas the Committee shall determine. Purchase Loans shall be recourse or\nnon-recourse with respect to a Participant, as determined from time to time by\nthe Committee. The share certificates for the Shares purchased by a Participant\npursuant to a Stock Purchase Award shall be issued in the Participant's name,\nbut shall be held by the Company as security for repayment of the Participant's\nPurchase Loan together with a stock power executed in blank by the Participant\n(the execution and delivery of which by the Participant shall be a condition to\nthe issuance of the Stock Purchase Award). The Participant shall be entitled to\nexercise all rights applicable to such Shares, including, but not limited to,\nthe right to vote such Shares and the right to receive dividends and other\ndistributions made with respect to such Shares. When the Purchase Loan and any\naccrued but unpaid interest thereon has been repaid or otherwise satisfied in\n\n                                      -7-\n\nfull, the Company shall deliver to the Participant the share certificates for\nthe Shares purchased by a Participant under the Stock Purchase Award.\n\n                       (b) Release and Delivery of Share Certificates During \nthe Term of the Purchase Loan. The Company shall release and deliver to each\nParticipant certificates for Shares purchased by a Participant pursuant to a\nStock Purchase Award, in such amounts and on such terms and conditions as the\nCommittee shall determine, which shall be set forth in the Pledge Agreement.\n\n                       (c) Release and Delivery of Share Certificates Upon \nRepayment of the Purchase Loan. The Company shall release and deliver to each\nParticipant certificates for the Shares purchased by the Participant under the\nStock Purchase Award and then held by the Company, provided the Participant has\npaid or otherwise satisfied in full the balance of the Purchase Loan and any\naccrued but unpaid interest thereon. In the event the balance of the Purchase\nLoan is not repaid, forgiven or otherwise satisfied within 90 days after (i) the\ndate repayment of the Purchase Loan is due (whether in accordance with its term,\nby reason of acceleration or otherwise), or (ii) such longer time as the\nCommittee, in its discretion, shall provide for repayment or satisfaction, the\nCompany shall retain those Shares then held by the Company in accordance with\nthe Pledge Agreement.\n\n                  7.4. Termination of Employment. (a) Termination of Employment\nby Death, Disability or by the Company Without Cause; Change of Control. In the\nevent of a Participant's termination of employment by reason of death,\n'disability' or by the Company without 'cause,' or in the event of a 'change of\ncontrol,' the Committee shall have the right (but shall not be required) to\nforgive the remaining unpaid amount (principal and interest) of the Purchase\nLoan in whole or in part as of the date of such occurrence. 'Change of Control,'\n'disability' and 'cause' shall have the respective meanings as set forth in the\npromissory note evidencing the Purchase Loan.\n\n                       (b) Termination of Employment by Voluntary Resignation.  \nIn the event of a Participant's termination of employment for any reason other\nthan death or 'disability,' the Participant shall repay to the Company the\nentire balance of the Purchase Loan and any accrued but unpaid interest thereon,\nwhich amounts shall become immediately due and payable, unless otherwise\ndetermined by the Committee.\n\n                  7.5. Restrictions on Transfer. No Stock Purchase Award or\nShares purchased through such an Award and pledged to the Company as collateral\nsecurity for the Participant's Purchase Loan (and accrued and unpaid interest\nthereon) may be otherwise pledged, sold, assigned or transferred (other than by\nwill or by the laws of descent and distribution).\n\n                                      -8-\n\n                                   ARTICLE 8.\n\n                             RESTRICTED STOCK AWARDS\n\n                  8.1. Restricted Stock Awards. (a) Grant. A grant of Shares\nmade pursuant to this Article 8 is referred to as a 'Restricted Stock Award.'\nThe Committee may grant to any employee an amount of Shares in such manner, and\nsubject to such terms and conditions relating to vesting, forfeitability and\nrestrictions on delivery and transfer (whether based on performance standards,\nperiods of service or otherwise) as the Committee shall establish (such Shares,\n'Restricted Shares'). The terms of any Restricted Stock Award granted under this\nPlan shall be set forth in a written agreement (a 'Restricted Stock Agreement')\nwhich shall contain provisions determined by the Committee and not inconsistent\nwith this Plan. The provisions of Restricted Stock Awards need not be the same\nfor each Participant receiving such Awards.\n\n                       (b) Issuance of Restricted Shares. As soon as practicable\nafter the date of grant of a Restricted Stock Award by the Committee, the\nCompany shall cause to be transferred on the books of the Company, Shares\nregistered in the name of the Company, as nominee for the Participant,\nevidencing the Restricted Shares covered by the Award; provided, however, such\nShares shall be subject to forfeiture to the Company retroactive to the date of\ngrant, if a Restricted Stock Agreement delivered to the Participant by the\nCompany with respect to the Restricted Shares covered by the Award is not duly\nexecuted by the Participant and timely returned to the Company. All Restricted\nShares covered by Awards under this Article 8 shall be subject to the\nrestrictions, terms and conditions contained in the Plan and the Restricted\nStock Agreement entered into by and between the Company and the Participant.\nUntil the lapse or release of all restrictions applicable to an Award of\nRestricted Shares, the share certificates representing such Restricted Shares\nshall be held in custody by the Company or its designee.\n\n                       (c) Stockholder Rights. Beginning on the date of grant of\nthe Restricted Stock Award and subject to execution of the Restricted Stock\nAgreement as provided in Sections 8.1(a) and (b), the Participant shall become a\nstockholder of the Company with respect to all Shares subject to the Restricted\nStock Agreement and shall have all of the rights of a stockholder, including,\nbut not limited to, the right to vote such Shares and the right to receive\ndistributions made with respect to such Shares; provided, however, that any\nShares distributed as a dividend or otherwise with respect to any Restricted\nShares as to which the restrictions have not yet lapsed shall be subject to the\nsame restrictions as such Restricted Shares and shall be represented by book\nentry and held as prescribed in Section 8.1(b).\n\n                       (d) Restriction on Transferability. None of the \nRestricted Shares may be assigned or transferred (other than by will or the laws\nof descent and distribution), pledged or sold prior to lapse or release of the\nrestrictions applicable thereto.\n\n                       (e) Delivery of Shares Upon Release of Restrictions. Upon\nexpiration or earlier termination of the forfeiture period without a forfeiture\nand the satisfaction of or release from any other conditions prescribed by the\nCommittee, the restrictions applicable to the Restricted Shares shall lapse. As\npromptly as administratively feasible thereafter, subject to the requirements of\nSection 10.1, the Company shall deliver to the Participant or, in case of the\nParticipant's death, to the Participant's beneficiary, one or more stock\ncertificates for the appropriate number of Shares, free of all such\nrestrictions, except for any restrictions that may be imposed by law.\n\n                                      -9-\n\n                  8.2. Terms of Restricted Shares. (a) Forfeiture of Restricted\nShares. Subject to Section 8.2(b), all Restricted Shares shall be forfeited and\nreturned to the Company and all rights of the Participant with respect to such\nRestricted Shares shall terminate unless the Participant continues in the\nservice of the Company as an employee until the expiration of the forfeiture\nperiod for such Restricted Shares and satisfies any and all other conditions set\nforth in the Restricted Stock Agreement. The Committee in its sole discretion,\nshall determine the forfeiture period (which may, but need not, lapse in\ninstallments) and any other terms and conditions applicable with respect to any\nRestricted Stock Award.\n\n                       (b) Waiver of Forfeiture Period. Notwithstanding anything\ncontained in this Article 8 to the contrary, the Committee may, in its sole\ndiscretion, waive the forfeiture period and any other conditions set forth in\nany Restricted Stock Agreement under appropriate circumstances (including the\ndeath, disability or retirement of the Participant or a material change in\ncircumstances arising after the date of an Award) and subject to such terms and\nconditions (including forfeiture of a proportionate number of the Restricted\nShares) as the Committee shall deem appropriate.\n\n                                   ARTICLE 9.\n\n                         GENERALLY APPLICABLE PROVISIONS\n\n                  9.1. Option Period. Subject to Section 3.1(b), the period for\nwhich an Option is exercisable shall not exceed ten years from the date such\nOption is granted, provided, however, in the case of an Option that is not\nintended to be an 'incentive stock option,' the Committee may prescribe a period\nin excess of ten years. After the Option is granted, the option period may not \nbe reduced.\n\n                  9.2. Fair Market Value. If the Shares are listed or admitted\nto trading on a securities exchange registered under the Exchange Act, the 'Fair\nMarket Value' of a Share as of a specified date shall mean the per Share closing\nprice of the Shares for the day immediately preceding the date as of which Fair\nMarket Value is being determined (or if there was no reported closing price on\nsuch date, on the last preceding date on which the closing price was reported)\nreported on the principal securities exchange on which the Shares are listed or\nadmitted to trading. If the Shares are not listed or admitted to trading on any\nsuch exchange but are listed as a national market security on the National\nAssociation of Securities Dealers, Inc. Automated Quotations System ('NASDAQ'),\ntraded in the over-the-counter market or listed or traded on any similar system\nthen in use, the Fair Market Value of a Share shall be the last sales price for\nthe day immediately preceding the date as of which the Fair Market Value is\nbeing determined (or if there was no reported sale on such date, on the last\npreceding date on which any reported sale occurred) reported on such system. If\nthe Shares are not listed or admitted to trading on any such exchange, are not\nlisted as a national market security on NASDAQ and are not traded in the\nover-the-counter market or listed or traded on any similar system then in use,\nbut are quoted on NASDAQ or any similar system then in use, the Fair Market\nValue of a Share shall be the average of the closing high bid and low asked\nquotations on such system for the Shares on the date in question. If the Shares\nare not publicly traded, Fair Market Value shall be determined by the Committee\nin its sole discretion using appropriate criteria. An Option shall be considered\ngranted on the date the Committee acts to grant the Option or such later date as\nthe Committee shall specify.\n\n                  9.3. Exercise of Options. Options granted under the Plan shall\nbe exercised by the Optionee thereof (or by his executors, administrators,\nguardian or legal representative, as provided in \n\n                                      -10-\n\nSections 9.6 and 9.7 hereof) as to all or part of the Shares covered thereby, by\nthe giving of written notice of exercise to the Company, specifying the number\nof Shares to be purchased, accompanied by payment of the full purchase price for\nthe Shares being purchased. Full payment of such purchase price shall be made\nwithin five business days following the date of exercise and shall be made (i)\nin cash or by certified check or bank check, (ii) with the consent of the\nCommittee, by delivery of a promissory note in favor of the Company upon such\nterms and conditions as determined by the Committee, (iii) with the consent of\nCommittee, by tendering previously acquired Shares (valued at its Fair Market\nValue, as determined by the Committee as of the date of tender), or (iv) with\nthe consent of the Committee, any combination of (i), (ii) and (iii); provided,\nhowever, that payment may not be pursuant to (iii) above unless the Optionee\nshall have owned the Shares being tendered in payment for a period of at least\nsix months prior to the date of exercise of the Option. Such notice of exercise,\naccompanied by such payment, shall be delivered to the Company at its principal\nbusiness office or such other office as the Committee may from time to time\ndirect, and shall be in such form, containing such further provisions consistent\nwith the provisions of the Plan, as the Committee may from time to time\nprescribe. In no event may any Option granted hereunder be exercised for a\nfraction of a Share. The Company shall effect the transfer of Shares purchased\npursuant to an Option as soon as practicable, and, within a reasonable time\nthereafter, such transfer shall be evidenced on the books of the Company. No\nperson exercising an Option shall have any of the rights of a holder of Shares\nsubject to an Option until certificates for such Shares shall have been issued\nfollowing the exercise of such Option. No adjustment shall be made for cash\ndividends or other rights for which the record date is prior to the date of such\nissuance.\n\n                  9.4. Non-Transferability of Options. Except as provided in\nSection 9.11, no Option shall be assignable or transferable by the Optionee,\nother than by will or the laws of descent and distribution, and may be exercised\nduring the life of the Optionee only by the Optionee or his guardian or legal\nrepresentative.\n\n                  9.5. Termination of Employment. In the event of the\ntermination of employment of an Optionee or the termination or separation from\nservice of an advisor or consultant or a Director (who is an Optionee) for any\nreason (other than death or disability as provided below), any Option(s) granted\nto such Optionee under this Plan and not previously exercised or expired shall\nbe deemed cancelled and terminated on the day of such termination or separation,\nunless the Committee decides, in its sole discretion, to extend the term of the\nOption for a period not to exceed three months after the date of such\ntermination or separation, provided, however, that in no instance may the term\nof the Option, as so extended, exceed the maximum term established pursuant to\nSection 3.1(b)(ii) or 9.1 above. Notwithstanding the foregoing, in the event of\nthe termination or separation from service of an Optionee for any reason other\nthan death or disability, under conditions satisfactory to the Company, the\nCommittee may, in its sole discretion, allow any 'nonqualified stock options'\ngranted to such Optionee under the Plan and not previously exercised or expired\nto be exercisable for a period of time to be specified by the Committee,\nprovided, however, that in no instance may the term of the Option, as so\nextended, exceed the maximum term established pursuant to Section 9.1 above.\n\n                  9.6. Death. In the event an Optionee dies while employed by\nthe Company or any of its subsidiaries or affiliates or during his term as a\nDirector of the Company or any of its subsidiaries or affiliates, as the case\nmay be, any Option(s) granted to him not previously expired or exercised shall,\nto the extent exercisable on the date of death, be exercisable by the estate of\nsuch Optionee or by any person who acquired such Option by bequest or\ninheritance, at any time within one year after the death of the Optionee, unless\nearlier terminated pursuant to its terms, provided, however, that if the term of\nsuch Option would \n\n                                      -11-\n\nexpire by its terms within six months after the Optionee's death, the term of\nsuch Option shall be extended until six months after the Optionee's death,\nprovided further, however, that in no instance may the term of the Option, as so\nextended, exceed the maximum term established pursuant to Section 3.1(b)(ii) or\n9.1 above.\n\n                  9.7. Disability. In the event of the termination of employment\nof an Optionee or the separation from service of a Director (who is an Optionee)\ndue to total disability, the Optionee, or his guardian or legal representative,\nshall have the unqualified right to exercise any Option(s) which have not been\npreviously exercised or expired and which the Optionee was eligible to exercise\nas of the first date of total disability (as determined by the Committee), at\nany time within one year after such termination or separation, unless earlier\nterminated pursuant to its terms, provided, however, that if the term of such\nOption would expire by its terms within six months after such termination or\nseparation, the term of such Option shall be extended until six months after\nsuch termination or separation, provided further, however, that in no instance\nmay the term of the Option, as so extended, exceed the maximum term established\npursuant to Section 3.1(b)(ii) or 9.1 above. The term 'total disability' shall,\nfor purposes of this Plan, be defined in the same manner as such term is defined\nin Section 22(e)(3) of the Code.\n\n                  9.8. Six-Month Holding Period. Notwithstanding anything to the\ncontrary in the Plan, each Option (or the Shares underlying the Option) granted\nto an individual who is subject to Section 16 of the Exchange Act, must be held\nby such individual for a combined period of at least six months from the date\nthe Option is granted (or until such earlier date as satisfies any legal\nrequirement for exemption under Rule 16b-3 of the Exchange Act and as satisfies\nall other applicable law); provided that the sale, transfer or other disposition\nof any Shares underlying any Option shall be permitted within such period to the\nextent the sale, transfer or other disposition is exempt under Rule 16b-3 of the\nExchange Act and all other applicable law.\n\n                  9.9. Amendment and Modification of the Plan. The Board of\nDirectors of the Company may, from time to time, alter, amend, suspend or\nterminate the Plan as it shall deem advisable, subject to any requirement for\nstockholder approval imposed by applicable law or any rule of any stock exchange\nor quotation system on which Shares are listed or quoted; provided that the\nBoard of Directors may not amend the Plan in any manner that would result in\nnoncompliance with Rule 16b-3 of the Exchange Act or any applicable law, except\nas otherwise provided in Sections 3.2 or 9.11 hereof; and further provided that\nthe Board of Directors may not, without the approval of the Company's\nstockholders, amend the Plan to (a) increase the number of Shares that may be\nthe subject of Options under the Plan (except for adjustments pursuant to\nSection 9.10 hereof), (b) reduce the minimum option price specified by Sections\n3.1(b) and 4.3 hereof, (c) increase the maximum permissible term of any Option\nspecified by Section 3.1(b)(ii) or 9.1 hereof, and (d) remove responsibility for\nadministering the Plan from the Committee. In addition, no amendments to, or\ntermination of, the Plan shall in any way impair the rights of an Optionee or a\nParticipant under any Award previously granted without such Optionee's or\nParticipant's consent.\n\n                  9.10. Adjustments. In the event that the Committee shall \ndetermine that any dividend or other distribution (whether in the form of cash,\nShares, other securities, or other property), recapitalization, stock split,\nreverse stock split, reorganization, merger, consolidation, split-up, spin-off,\ncombination, repurchase, or exchange of Shares or other securities, the issuance\nof warrants or other rights to purchase Shares or other securities, or other\nsimilar corporate transaction or event affects the Shares with respect to which\nOptions have been or may be issued under the Plan, such that an adjustment is\ndetermined by the Committee to be appropriate in order to prevent dilution or\nenlargement of the benefits or potential benefits \n\n                                      -12-\n\nintended to be made available under the Plan, then the Committee shall, in such\nmanner as the Committee may deem equitable, adjust any or all of (i) the number\nand type of Shares that thereafter may be made the subject of Options, (ii) the\nnumber and type of Shares subject to outstanding Options and stock appreciation\nrights, and (iii) the grant or exercise price with respect to any Option, or, if\ndeemed appropriate, make provision for a cash payment to the holder of any\noutstanding Option; provided, in each case, that with respect to 'incentive\nstock options,' no such adjustment shall be authorized to the extent that such\nadjustment would cause such options to violate Section 422(b) of the Code or any\nsuccessor provision; and provided further, that the number of Shares subject to\nany Option denominated in Shares shall always be a whole number.\n\n                  9.11. Other Provisions. Notwithstanding anything in this Plan\nto the contrary, if the Board of Directors determine that the Plan cannot, or\nthat an Award need not, satisfy the requirements of Rule 16b-3 of the Exchange\nAct (such that grants of Awards are not exempt from Section 16(b) of the\nExchange Act), then the Committee shall have the authority to waive or modify\nthose provisions of the Plan which are intended to satisfy such Rule 16b-3\nrequirements and shall allow an Optionee who has been granted 'nonqualified\nstock options' to transfer any or all of such options to any one or more of the\nfollowing persons: (i) the spouse, parent, issue, spouse of issue, or issue of\nspouse ('issue' shall include all descendants whether natural or adopted) of\nsuch Optionee; or (ii) a trust for the benefit of those persons described in\nclause (i) above or for the benefit of such Optionee, or for the benefit of any\nsuch persons and such Optionee; provided, however, that such transferee shall be\nbound by all of the terms and conditions of this Plan and shall execute an\nagreement satisfactory to the Company evidencing such obligation; and provided\nfurther, however, that such Optionee shall remain bound by the terms and\nconditions of this Plan. The Company shall cooperate with an Optionee's\ntransferee and the Company's transfer agent in effectuating any transfer\npermitted pursuant to this Section 9.11.\n\n                                   ARTICLE 10.\n\n                                  MISCELLANEOUS\n\n                  10.1. Tax Withholding. The Company shall notify an Optionee or\nParticipant of any income tax withholding requirements arising as a result of\nthe grant of any Award, exercise of an Option or stock appreciation rights or\nany other event occurring pursuant to this Plan. The Company shall have the\nright to withhold from such Optionee or Participant such withholding taxes as\nmay be required by law, or to otherwise require the Optionee or Participant to\npay such withholding taxes. If the Optionee or Participant shall fail to make\nsuch tax payments as are required, the Company or its subsidiaries or affiliates\nshall, to the extent permitted by law, have the right to deduct any such taxes\nfrom any payment of any kind otherwise due to such Optionee or Participant or to\ntake such other action as may be necessary to satisfy such withholding\nobligations.\n\n                  10.2. Right of Discharge Reserved. Nothing in the Plan nor the\ngrant of an Award hereunder shall confer upon any employee, Director or other\nindividual the right to continue in the employment or service of the Company or\nany subsidiary or affiliate of the Company or affect any right that the Company\nor any subsidiary or affiliate of the Company may have to terminate the\nemployment or service of (or to demote or to exclude from future Options under\nthe Plan) any such employee, Director or other individual at any time for any\nreason. Except as specifically provided by the Committee, the Company shall not\nbe liable for the loss of existing or potential profit from an Award granted in\nthe event of termination of an \n\n                                      -13-\n\nemployment or other relationship even if the termination is in violation of an\nobligation of the Company or any subsidiary or affiliate of the Company to the\nemployee or Director.\n\n                  10.3. Nature of Payments. All Awards made pursuant to the Plan\nare in consideration of services performed or to be performed for the Company or\nany subsidiary or affiliate of the Company. Any income or gain realized pursuant\nto Awards under the Plan and any stock appreciation rights constitutes a special\nincentive payment to the Optionee, Participant or Holder and shall not be taken\ninto account, to the extent permissible under applicable law, as compensation\nfor purposes of any of the employee benefit plans of the Company or any\nsubsidiary or affiliate of the Company except as may be determined by the\nCommittee or by the Directors or directors of the applicable subsidiary or\naffiliate of the Company.\n\n                  10.4. Severability. If any provision of the Plan shall be held\nunlawful or otherwise invalid or unenforceable in whole or in part, such\nunlawfulness, invalidity or unenforceability shall not affect any other\nprovision of the Plan or part thereof, each of which remain in full force and\neffect. If the making of any payment or the provision of any other benefit\nrequired under the Plan shall be held unlawful or otherwise invalid or\nunenforceable, such unlawfulness, invalidity or unenforceability shall not\nprevent any other payment or benefit from being made or provided under the Plan,\nand if the making of any payment in full or the provision of any other benefit\nrequired under the Plan in full would be unlawful or otherwise invalid or\nunenforceable, then such unlawfulness, invalidity or unenforceability shall not\nprevent such payment or benefit from being made or provided in part, to the\nextent that it would not be unlawful, invalid or unenforceable, and the maximum\npayment or benefit that would not be unlawful, invalid or unenforceable shall be\nmade or provided under the Plan.\n\n                  10.5. Gender and Number. In order to shorten and to improve \nthe understandability of the Plan document by eliminating the repeated usage of\nsuch phrases as 'his or her' and any masculine terminology herein shall also\ninclude the feminine, and the definition of any term herein in the singular\nshall also include the plural except when otherwise indicated by the context.\n\n                  10.6. Governing Law. The Plan and all determinations made and\nactions taken thereunder, to the extent not otherwise governed by the Code or\nthe laws of the United States, shall be governed by the laws of the State of\nDelaware and construed accordingly.\n\n                  10.7. Effective Date of Plan; Termination of Plan. The Plan \nshall be effective on the date of the approval of the Plan by the holders of a\nmajority of the shares entitled to vote at a duly constituted meeting of the\nstockholders; provided, however, that the adoption of the Plan is subject to\nsuch stockholder approval within 12 months after the date of adoption of the\nPlan by the Board of Directors. The Plan shall be null and void and of no effect\nif the foregoing condition is not fulfilled and in such event each Award and\nrelated stock appreciation rights shall, notwithstanding any of the preceding\nprovisions of the Plan, be null and void and of no effect. Awards may be granted\nunder the Plan at any time and from time to time on or prior to May 28, 2006, on\nwhich date the Plan will expire except as to Awards and related stock\nappreciation rights then outstanding under the Plan. Such outstanding Awards and\nstock appreciation rights shall remain in effect until they have been exercised\nor terminated, or have expired.\n\n                  10.8. Captions. The captions in this Plan are for convenience\nof reference only, and are not intended to narrow, limit or affect the substance\nor interpretation of the provisions contained herein.\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6857],"corporate_contracts_industries":[9492],"corporate_contracts_types":[9539,9546],"class_list":["post-38248","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-barnes---noble-inc","corporate_contracts_industries-retail__books","corporate_contracts_types-compensation","corporate_contracts_types-compensation__incentive"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/38248","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=38248"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=38248"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=38248"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=38248"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}