{"id":38351,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/1999-long-term-incentive-plan-tom-brown-in2.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"1999-long-term-incentive-plan-tom-brown-in2","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/1999-long-term-incentive-plan-tom-brown-in2.html","title":{"rendered":"1999 Long Term Incentive Plan &#8211; Tom Brown Inc."},"content":{"rendered":"<pre>\n                                 TOM BROWN, INC.\n\n                          1999 LONG TERM INCENTIVE PLAN\n\n\n                                   I. PURPOSE\n\n         The purpose of the TOM BROWN, INC. 1999 LONG TERM INCENTIVE PLAN (the\n'Plan') is to provide a means through which TOM BROWN, INC., a Delaware\ncorporation (the 'Company'), and its subsidiaries may attract able persons to\nserve as directors, consultants, or advisors or to enter the employ of the\nCompany and its affiliates and to provide a means whereby those individuals upon\nwhom the responsibilities of the successful administration and management of the\nCompany and its affiliates rest, and whose present and potential contributions\nto the welfare of the Company and its affiliates are of importance, can acquire\nand maintain stock ownership, thereby strengthening their concern for the\nwelfare of the Company and its affiliates. A further purpose of the Plan is to\nprovide such individuals with additional incentive and reward opportunities\ndesigned to enhance the profitable growth of the Company and its affiliates.\nAccordingly, the Plan provides for granting Incentive Stock Options, options\nthat do not constitute Incentive Stock Options, Restricted Stock Awards,\nPerformance Awards, and Incentive Awards, or any combination of the foregoing,\nas is best suited to the circumstances of the particular Employee, consultant,\nadvisor, or director as provided herein.\n\n                                 II. DEFINITIONS\n\n         The following definitions shall be applicable throughout the Plan\nunless specifically modified by any paragraph:\n\n         (a) 'AFFILIATE' means any corporation, partnership, limited liability\ncompany or partnership, association, trust or other organization which, directly\nor indirectly, controls, is controlled by, or is under common control with, the\nCompany. For purposes of the preceding sentence, 'control' (including, with\ncorrelative meanings, the terms 'controlled by' and 'under common control\nwith'), as used with respect to any entity or organization, shall mean the\npossession, directly or indirectly, of the power (i) to vote more than 50% of\nthe securities having ordinary voting power for the election of directors of the\ncontrolled entity or organization, or (ii) to direct or cause the direction of\nthe management and policies of the controlled entity or organization, whether\nthrough the ownership of voting securities or by contract or otherwise.\n\n         (b) 'AWARD' means, individually or collectively, any Option, Restricted\nStock Award, Performance Award or Incentive Award.\n\n         (c) 'BOARD' means the Board of Directors of the Company.\n\n         (d) 'CODE' means the Internal Revenue Code of 1986, as amended.\nReference in the Plan to any section of the Code shall be deemed to include any\namendments or successor provisions to such section and any regulations under\nsuch section.\n\n\n\n\n\n         (e) 'COMMITTEE' means a committee of the Board that is selected by the\nBoard as provided in Paragraph IV(a).\n\n\n         (f) 'COMMON STOCK' means the common stock, par value $0.10 per share,\nof the Company, or any security into which such Common Stock may be changed by\nreason of any transaction or event of the type described in Paragraph XI.\n\n         (g) 'COMPANY' means Tom Brown, Inc., a Delaware corporation.\n\n         (h) 'CONSULTANT' means any person who is not an Employee and who is  \nproviding advisory or consulting services to the Company or any Affiliate.\n\n         (i) 'DIRECTOR' means an individual elected to the Board by the\nstockholders of the Company or by the Board under applicable corporate law who\nis serving on the Board on the date the Plan is adopted by the Board or is\nelected to the Board after such date.\n\n         (j) 'EMPLOYEE' means any person (including a Director) in an employment\nrelationship with the Company or any Affiliate.\n\n         (k) 'FAIR MARKET VALUE' means, as of any specified date, the mean of\nthe high and low sales prices of the Common Stock reported on the stock exchange\ncomposite tape on that date, or, if no prices are reported on that date, on the\nlast preceding date on which such prices of the Common Stock are so reported. In\nthe event Common Stock is not publicly traded at the time a determination of its\nvalue is required to be made hereunder, the determination of its fair market\nvalue shall be made by the Committee in such manner as it deems appropriate.\n\n         (l) 'HOLDER' means an Employee, Consultant, or Director who has been \ngranted an Award.\n\n         (m) 'IMMEDIATE FAMILY' means, with respect to a Holder, the Holder's\nspouse, children, or grandchildren (including adopted and stepchildren and\ngrandchildren).\n\n         (n) 'INCENTIVE AWARD' means an Award granted under Paragraph X of the \nPlan.\n\n         (o) 'INCENTIVE AWARD AGREEMENT' means a written agreement between the\nCompany and a Holder with respect to a Incentive Award.\n\n         (p) 'INCENTIVE STOCK OPTION' means an incentive stock option within the\nmeaning of section 422 of the Code.\n\n         (q) '1934 ACT' means the Securities Exchange Act of 1934, as amended.\n\n         (r) 'OPTION' means an Award granted under Paragraph VII of the Plan and\nincludes both Incentive Stock Options to purchase Common Stock and Options that\ndo not constitute Incentive Stock Options to purchase Common Stock.\n\n         (s) 'OPTION AGREEMENT' means a written agreement between the Company \nand a Holder with respect to an Option.\n\n                                       2\n\n\n\n         (t) 'PERFORMANCE AWARD' means an Award granted under Paragraph IX of \nthe Plan.\n\n         (u) 'PERFORMANCE AWARD AGREEMENT' means a written agreement between the\nCompany and a Holder with respect to a Performance Award.\n\n         (v) 'PLAN' means the Tom Brown, Inc. 1999 Long Term Incentive Plan, as\namended from time to time.\n\n         (w) 'RESTRICTED STOCK AGREEMENT' means a written agreement between the\nCompany and a Holder with respect to a Restricted Stock Award.\n\n         (x) 'RESTRICTED STOCK AWARD' means an Award granted under Paragraph \nVIII of the Plan.\n\n         (y) 'RULE 16B-3' means SEC Rule 16b-3 promulgated under the 1934 Act,\nas such may be amended from time to time, and any successor rule, regulation or\nstatute fulfilling the same or a similar function.\n\n         (z) 'STOCK APPRECIATION RIGHT' shall have the meaning assigned to such \nterm in Paragraph VII(d) of the Plan.\n\n                  III. EFFECTIVE DATE AND DURATION OF THE PLAN\n\n         The Plan shall become effective upon the date of its adoption by the\nBoard, provided the Plan is approved by the stockholders of the Company within\ntwelve months thereafter. Notwithstanding any provision in the Plan, no Option\nshall be exercisable and no Award shall vest or become satisfiable prior to such\nstockholder approval. No further Awards may be granted under the Plan after ten\nyears from the date the Plan is adopted by the Board. The Plan shall remain in\neffect (at least for the purpose of governing outstanding Awards) until all\nOption Awards granted under the Plan have been exercised or expired, all\nRestricted Stock Awards granted under the Plan have vested or been forfeited,\nand all Performance Awards and Incentive Awards have been satisfied or have\nterminated.\n\n                               IV. ADMINISTRATION\n\n         (a) COMPOSITION OF COMMITTEE. The Plan shall be administered by a\ncommittee of, and appointed by, the Board, and such committee shall be comprised\nsolely of two or more outside Directors (within the meaning of the term 'outside\ndirectors' as used in section 162(m) of the Code and applicable interpretive\nauthority thereunder and within the meaning of 'Non-Employee Director' as\ndefined in Rule 16b-3).\n\n         (b) POWERS. Subject to the express provisions of the Plan, the\nCommittee shall have authority, in its sole discretion, to determine which\nEmployees, Consultants, or Directors shall receive an Award, the time or times\nwhen such Award shall be made, whether an Incentive Stock Option or nonqualified\nOption shall be granted, and the number of shares to be subject to each Option\nor Restricted Stock Award, the number of shares subject to or the value of each\nPerformance Award, and the value of each Incentive Award. In making such\ndeterminations, the Committee shall take into account the nature of the services\nrendered by the respective Employees, Consultants, or \n\n                                       3\n\n\nDirectors, their present and potential contribution to the Company's success and\nsuch other factors as the Committee in its sole discretion shall deem relevant.\n\n         (c) ADDITIONAL POWERS. The Committee shall have such additional powers\nas are delegated to it by the other provisions of the Plan. Subject to the\nexpress provisions of the Plan, this shall include the power to construe the\nPlan and the respective agreements executed hereunder, to prescribe rules and\nregulations relating to the Plan, and to determine the terms, restrictions and\nprovisions of the agreement relating to each Award, including such terms,\nrestrictions and provisions as shall be requisite in the judgment of the\nCommittee to cause designated Options to qualify as Incentive Stock Options, and\nto make all other determinations necessary or advisable for administering the\nPlan. The Committee may correct any defect or supply any omission or reconcile\nany inconsistency in the Plan or in any agreement relating to an Award in the\nmanner and to the extent it shall deem expedient to carry it into effect. The\ndeterminations of the Committee on the matters referred to in this Paragraph IV\nshall be conclusive.\n\n                V. SHARES SUBJECT TO THE PLAN; GRANT OF OPTIONS;\n                        GRANT OF RESTRICTED STOCK AWARDS\n\n         (a) SHARES SUBJECT TO THE PLAN AND AWARD LIMITS. Subject to adjustment\nin the same manner as provided in Paragraph XI with respect to shares of Common\nStock subject to Options then outstanding, the aggregate number of shares of\nCommon Stock that may be issued under the Plan shall not exceed 2,000,000\nshares. Shares shall be deemed to have been issued under the Plan only to the\nextent actually issued and delivered pursuant to an Award. To the extent that an\nAward lapses, the rights of its Holder terminate, an Award is paid in cash or an\nAward is settled in a manner such that all or some of the shares of Common Stock\ncovered by the Award are not issued to the Holder, any shares of Common Stock\nsubject to such Award shall again be available for the grant of an Award under\nthe Plan. Notwithstanding any provision in the Plan to the contrary, the maximum\nnumber of shares of Common Stock that may be subject to Awards granted to any\none individual during the term of the Plan may not exceed 2,000,000 shares of\nCommon Stock (subject to adjustment in the same manner as provided in Paragraph\nXI with respect to shares of Common Stock subject to Options then outstanding)\nand the maximum value of any Performance Award granted to any one individual\nduring any calendar year may not exceed $500,000. The limitations set forth in\nthe preceding sentence shall be applied in a manner which will permit\ncompensation generated under the Plan to constitute 'performance-based'\ncompensation for purposes of section 162(m) of the Code, including, without\nlimitation, counting against such maximum number of shares, to the extent\nrequired under section 162(m) of the Code and applicable interpretive authority\nthereunder, any shares subject to Options that are canceled or repriced.\n\n         (b) GRANT OF AWARDS. The Committee may from time to time grant Awards\nto one or more Employees, Consultants, or Directors determined by it to be\neligible for participation in the Plan in accordance with the terms of the Plan.\n\n         (c) STOCK OFFERED. Subject to the limitations set forth in Paragraph\nV(a), the stock to be offered pursuant to the grant of an Award may be\nauthorized but unissued Common Stock or Common Stock previously issued and\noutstanding and reacquired by the Company. Any of such shares which remain\nunissued and which are not subject to outstanding Awards at the termination of\nthe Plan shall cease to be subject to the Plan but, until termination \n\n                                       4\n\n\n\nof the Plan, the Company shall at all times make available a sufficient number\nof shares to meet the requirements of the Plan.\n\n                                 VI. ELIGIBILITY\n\n         Awards may be granted only to persons who, at the time of grant, are\nEmployees, Consultants, or Directors. An Award may be granted on more than one\noccasion to the same person, and, subject to the limitations set forth in the\nPlan, such Award may include an Incentive Stock Option, an Option that is not an\nIncentive Stock Option, a Restricted Stock Award, a Performance Award, an\nIncentive Award, or any combination thereof.\n\n                               VII. STOCK OPTIONS\n\n         (a) OPTION PERIOD. The term of each Option shall be as specified by the\nCommittee at the date of grant.\n\n         (b) LIMITATIONS ON EXERCISE OF OPTION. An Option shall be exercisable \nin whole or in such installments and at such times as determined by the \nCommittee.\n\n         (c) SPECIAL LIMITATIONS ON INCENTIVE STOCK OPTIONS. An Incentive Stock\nOption may be granted only to an individual who is employed by the Company or\nany parent or subsidiary corporation (as defined in section 424 of the Code) at\nthe time the Option is granted. To the extent that the aggregate Fair Market\nValue (determined at the time the respective Incentive Stock Option is granted)\nof Common Stock with respect to which Incentive Stock Options granted after 1986\nare exercisable for the first time by an individual during any calendar year\nunder all incentive stock option plans of the Company and its parent and\nsubsidiary corporations exceeds $100,000, such Incentive Stock Options shall be\ntreated as Options which do not constitute Incentive Stock Options. The\nCommittee shall determine, in accordance with applicable provisions of the Code,\nTreasury Regulations and other administrative pronouncements, which of a\nHolder's Incentive Stock Options will not constitute Incentive Stock Options\nbecause of such limitation and shall notify the Holder of such determination as\nsoon as practicable after such determination. No Incentive Stock Option shall be\ngranted to an individual if, at the time the Option is granted, such individual\nowns stock possessing more than 10% of the total combined voting power of all\nclasses of stock of the Company or of its parent or subsidiary corporation,\nwithin the meaning of section 422(b)(6) of the Code, unless (i) at the time such\nOption is granted the option price is at least 110% of the Fair Market Value of\nthe Common Stock subject to the Option and (ii) such Option by its terms is not\nexercisable after the expiration of five years from the date of grant. An\nIncentive Stock Option shall not be transferable otherwise than by will or the\nlaws of descent and distribution, and shall be exercisable during the Holder's\nlifetime only by such Holder or the Holder's guardian or legal representative.\n\n         (d) OPTION AGREEMENT. Each Option shall be evidenced by an Option\nAgreement in such form and containing such provisions not inconsistent with the\nprovisions of the Plan as the Committee from time to time shall approve,\nincluding, without limitation, provisions to qualify an Incentive Stock Option\nunder section 422 of the Code. Each Option Agreement shall specify the effect of\ntermination of (i) employment, (ii) the consulting or advisory relationship, or\n(iii) membership on the Board, as applicable, on the exercisability of the\nOption. An Option Agreement \n\n                                       5\n\n\n\nmay provide for the payment of the option price, in whole or in part, by the\ndelivery of a number of shares of Common Stock (plus cash if necessary) having a\nFair Market Value equal to such option price. Moreover, an Option Agreement may\nprovide for a 'cashless exercise' of the Option by establishing procedures\nsatisfactory to the Committee with respect thereto. Further, an Option Agreement\nmay provide for the surrender of the right to purchase shares under the Option\nin return for a payment in cash or shares of Common Stock or a combination of\ncash and shares of Common Stock equal in value to the excess of the Fair Market\nValue of the shares with respect to which the right to purchase is surrendered\nover the option price therefor ('Stock Appreciation Rights'), on such terms and\nconditions as the Committee in its sole discretion may prescribe. In the case of\nany such Stock Appreciation Right that is granted in connection with an\nIncentive Stock Option, such right shall be exercisable only when the Fair\nMarket Value of the Common Stock exceeds the price specified therefor in the\nOption or the portion thereof to be surrendered. Finally, the Committee\n(concurrently with the grant of an Option or subsequent to such grant) may, in\nits sole discretion, provide in an Option Agreement respecting an Option that,\nif the Holder pays the Option exercise price in shares of Common Stock, upon the\ndate of such payment a new option shall be granted under this Plan or under\nanother available plan and the number of shares of Common Stock subject to such\nnew option shall be equal to the number of shares of Common Stock tendered in\npayment (plus the number of any shares of Common Stock respecting the exercised\nOption retained (not in excess of the minimum required) to satisfy any tax\nwithholding obligations); provided that such new option shall not be exercisable\nin any event after the original term of the exercised Option. The terms and\nconditions of the respective Option Agreements need not be identical.\n\n         (e) OPTION PRICE AND PAYMENT. The price at which a share of Common\nStock may be purchased upon exercise of an Option shall be determined by the\nCommittee but, subject to adjustment as provided in Paragraph XI shall not be\nless than the Fair Market Value of a share of Common Stock on the date such\nOption is granted. The Option or portion thereof may be exercised by delivery of\nan irrevocable notice of exercise to the Company, as specified by the Committee.\nThe purchase price of the Option or portion thereof shall be paid in full in the\nmanner prescribed by the Committee. Separate stock certificates shall be issued\nby the Company for those shares acquired pursuant to the exercise of an\nIncentive Stock Option and for those shares acquired pursuant to the exercise of\nany Option that does not constitute an Incentive Stock Option.\n\n         (f) STOCKHOLDER RIGHTS AND PRIVILEGES. The Holder shall be entitled to\nall the privileges and rights of a stockholder only with respect to such shares\nof Common Stock as have been purchased under the Option and for which\ncertificates of stock have been registered in the Holder's name.\n\n         (g) OPTIONS AND RIGHTS IN SUBSTITUTION FOR STOCK OPTIONS GRANTED BY\nOTHER CORPORATIONS. Options and Stock Appreciation Rights may be granted under\nthe Plan from time to time in substitution for stock options held by individuals\nemployed by corporations who become Employees as a result of a merger or\nconsolidation or other business combination of the employing corporation with\nthe Company or any subsidiary.\n\n                                       6\n\n\n\n                          VIII. RESTRICTED STOCK AWARDS\n\n         (a) FORFEITURE RESTRICTIONS TO BE ESTABLISHED BY THE COMMITTEE. Shares\nof Common Stock that are the subject of a Restricted Stock Award shall be\nsubject to restrictions on disposition by the Holder and an obligation of the\nHolder to forfeit and surrender the shares to the Company under certain\ncircumstances (the 'Forfeiture Restrictions'). The Forfeiture Restrictions shall\nbe determined by the Committee in its sole discretion, and the Committee may\nprovide that the Forfeiture Restrictions shall lapse upon (i) the attainment of\none or more performance measures established by the Committee that are based on\n(1) the price of a share of Common Stock, (2) the Company's earnings per share,\n(3) the Company's market share, (4) the market share of a business unit of the\nCompany designated by the Committee, (5) the Company's sales, (6) the sales of a\nbusiness unit of the Company designated by the Committee, (7) the net income\n(before or after taxes) of the Company or any business unit of the Company\ndesignated by the Committee, (8) the cash flow return on investment of the\nCompany or any business unit of the Company designated by the Committee, (9) the\nearnings before or after interest, taxes, depreciation, and\/or amortization of\nthe Company or any business unit of the Company designated by the Committee,\n(10) the economic value added, or (11) the return on stockholders' equity\nachieved by the Company, (ii) the Holder's continued employment with the Company\nfor a specified period of time, (iii) the occurrence of any event or the\nsatisfaction of any other condition specified by the Committee in its sole\ndiscretion, or (iv) a combination of any of the foregoing. The performance\nmeasures may be subject to adjustment for specified significant extraordinary\nitems or events, and may be absolute, relative to one or more other companies,\nor relative to one or more indexes, and may be contingent upon future\nperformance of the Company or any subsidiary, division, or department thereof by\nor in which the Holder is employed during the performance period. Each\nRestricted Stock Award may have different Forfeiture Restrictions, in the sole\ndiscretion of the Committee.\n\n         (b) OTHER TERMS AND CONDITIONS. Common Stock awarded pursuant to a\nRestricted Stock Award shall be represented by a stock certificate registered in\nthe name of the Holder of such Restricted Stock Award. The Holder shall have the\nright to receive dividends with respect to Common Stock subject to a Restricted\nStock Award, to vote Common Stock subject thereto and to enjoy all other\nstockholder rights, except that (i) the Holder shall not be entitled to delivery\nof the stock certificate until the Forfeiture Restrictions have expired, (ii)\nthe Company shall retain custody of the stock until the Forfeiture Restrictions\nhave expired, (iii) the Holder may not sell, transfer, pledge, exchange,\nhypothecate or otherwise dispose of the stock until the Forfeiture Restrictions\nhave expired, and (iv) a breach of the terms and conditions established by the\nCommittee pursuant to the Restricted Stock Agreement shall cause a forfeiture of\nthe Restricted Stock Award. At the time of such Award, the Committee may, in its\nsole discretion, prescribe additional terms, conditions or restrictions relating\nto Restricted Stock Awards, including, but not limited to, rules pertaining to\nthe termination of employment or service as a Consultant or Director (by\nretirement, disability, death or otherwise) of a Holder prior to expiration of\nthe Forfeitures Restrictions. Such additional terms, conditions or restrictions\nshall be set forth in a Restricted Stock Agreement made in conjunction with the\nAward.\n\n         (c) PAYMENT FOR RESTRICTED STOCK. The Committee shall determine the\namount and form of any payment for Common Stock received pursuant to a\nRestricted Stock Award, provided that in the absence of such a determination, a\nHolder shall not be required to make any payment for Common Stock received\npursuant to a Restricted Stock Award, except to the extent otherwise required by\nlaw.\n\n                                       7\n\n\n\n\n\n         (d) COMMITTEE'S DISCRETION TO ACCELERATE VESTING OF RESTRICTED STOCK\nAWARDS. The Committee may, in its discretion and as of a date determined by the\nCommittee, fully vest any or all Common Stock awarded to a Holder pursuant to a\nRestricted Stock Award and, upon such vesting, all restrictions applicable to\nsuch Restricted Stock Award shall terminate as of such date. Any action by the\nCommittee pursuant to this Subparagraph may vary among individual Holders and\nmay vary among the Restricted Stock Awards held by any individual Holder.\nNotwithstanding the preceding provisions of this Subparagraph, the Committee may\nnot take any action described in this Subparagraph with respect to a Restricted\nStock Award that has been granted to a 'covered Employee' (within the meaning of\nTreasury Regulation section 1.162-27(c)(2)) if such Award has been designed to\nmeet the exception for performance-based compensation under section 162(m) of\nthe Code.\n\n         (e) RESTRICTED STOCK AGREEMENTS. At the time any Award is made under\nthis Paragraph VIII, the Company and the Holder shall enter into a Restricted\nStock Agreement setting forth each of the matters contemplated hereby and such\nother matters as the Committee may determine to be appropriate. The terms and\nprovisions of the respective Restricted Stock Agreements need not be identical.\n\n                             IX. PERFORMANCE AWARDS\n\n         (a) PERFORMANCE PERIOD. The Committee shall establish, with respect to\nand at the time of each Performance Award, the number of shares of Common Stock\nsubject to, or the maximum value of, the Performance Award and the performance\nperiod over which the performance applicable to the Performance Award shall be\nmeasured.\n\n         (b) PERFORMANCE MEASURES. A Performance Award shall be awarded to a\nHolder contingent upon future performance of the Company or any subsidiary,\ndivision, or department thereof by or in which such Holder is employed during\nthe performance period. The Committee shall establish the performance measures\napplicable to such performance prior to the beginning of the performance period;\nprovided such measures may be made subject to adjustment for specified\nsignificant extraordinary items or events. The performance measures may be\nabsolute, relative to one or more other companies, or relative to one or more\nindexes. The performance measures established by the Committee may be based upon\n(i) the price of a share of Common Stock, (ii) the Company's earnings per share,\n(iii) the Company's market share, (iv) the market share of a business unit of\nthe Company designated by the Committee, (v) the Company's sales, (vi) the sales\nof a business unit of the Company designated by the Committee, (vii) the net\nincome (before or after taxes) of the Company or any business unit of the\nCompany designated by the Committee, (viii) the cash flow return on investment\nof the Company or any business unit of the Company designated by the Committee,\n(ix) the earnings before or after interest, taxes, depreciation, and\/or\namortization of the Company or any business unit of the Company designated by\nthe Committee, (x) the economic value added, (xi) the return on stockholders'\nequity achieved by the Company, or (xii) a combination of any of the foregoing.\nThe Committee, in its sole discretion, may provide for an adjustable Performance\nAward value based upon the level of achievement of performance measures.\n\n                                       8\n\n\n\n         (c) AWARDS CRITERIA. In determining the value of Performance Awards,\nthe Committee shall take into account a Holder's responsibility level,\nperformance, potential, other Awards, and such other considerations as it deems\nappropriate. The Committee, in its sole discretion, may provide for a reduction\nin the value of a Holder's Performance Award during the performance period.\n\n         (d) PAYMENT. Following the end of the performance period, the Holder of\na Performance Award shall be entitled to receive payment of an amount not\nexceeding the number of shares of Common Stock subject to or the maximum value\nof the Performance Award, based on the achievement of the performance measures\nfor such performance period, as determined by the Committee. Payment of a\nPerformance Award may be made in cash, Common Stock, or a combination thereof,\nas determined by the Committee. Payment shall be made in a lump sum or in\ninstallments as prescribed by the Committee. If a Performance Award covering\nshares of Common Stock is to be paid in cash, such payment shall be based on the\nFair Market Value of the Common Stock on the payment date.\n\n         (e) TERMINATION OF AWARD. A Performance Award shall terminate if the\nHolder does not remain continuously in the employ or in service as a Consultant\nor Director of the Company at all times during the applicable performance\nperiod, except as may be determined by the Committee.\n\n         (f) PERFORMANCE AWARD AGREEMENTS. At the time any Award is made under\nthis Paragraph IX, the Company and the Holder shall enter into a Performance\nAward Agreement setting forth each of the matters contemplated hereby, and such\nadditional matters as the Committee may determine to be appropriate. The terms\nand provisions of the respective Performance Award Agreements need not be\nidentical.\n\n                               X. INCENTIVE AWARDS\n\n         (a) INCENTIVE AWARDS. Incentive Awards are rights to receive shares of\nCommon Stock (or the Fair Market Value thereof), or rights to receive an amount\nequal to any appreciation or increase in the Fair Market Value of Common Stock\nover a specified period of time, which vest over a period of time as established\nby the Committee, without satisfaction of any performance criteria or\nobjectives. The Committee may, in its discretion, require payment or other\nconditions of the Holder respecting any Incentive Award.\n\n         (b) AWARD PERIOD. The Committee shall establish, with respect to and at\nthe time of each Incentive Award, a period over which the Award shall vest with\nrespect to the Holder.\n\n         (c) AWARDS CRITERIA. In determining the value of Incentive Awards, the\nCommittee shall take into account a Holder's responsibility level, performance,\npotential, other Awards, and such other considerations as it deems appropriate.\n\n         (d) PAYMENT. Following the end of the vesting period for an Incentive\nAward (or at such other time as the applicable Incentive Award Agreement may\nprovide), the Holder of an Incentive Award shall be entitled to receive payment\nof an amount, not exceeding the maximum value of the Incentive Award, based on\nthe then vested value of the Award. Payment of an Incentive Award may \n\n                                       9\n\n\n\nbe made in cash, Common Stock, or a combination thereof as determined by the\nCommittee. Payment shall be made in a lump sum or in installments as prescribed\nby the Committee. Any payment to be made in cash shall be based on the Fair\nMarket Value of the Common Stock on the payment date. Cash dividend equivalents\nmay be paid during or after the vesting period with respect to an Incentive\nAward, as determined by the Committee.\n\n         (e) TERMINATION OF AWARD. An Incentive Award shall terminate if the\nHolder does not remain continuously in the employ or in service as a Consultant\nor Director of the Company at all times during the applicable vesting period,\nexcept as may be otherwise determined by the Committee.\n\n         (f) INCENTIVE AWARD AGREEMENTS. At the time any Award is made under\nthis Paragraph X, the Company and the Holder shall enter into an Incentive Award\nAgreement setting forth each of the matters contemplated hereby, and such\nadditional matters as the Committee may determine to be appropriate. The terms\nand provisions of the respective Incentive Award Agreements need not be\nidentical\n\n                     XI. RECAPITALIZATION OR REORGANIZATION\n\n         (a) NO EFFECT ON RIGHT OR POWER. The existence of the Plan and the\nAwards granted hereunder shall not affect in any way the right or power of the\nBoard or the stockholders of the Company to make or authorize any adjustment,\nrecapitalization, reorganization or other change in the Company's or any\nsubsidiary's capital structure or its business, any merger or consolidation of\nthe Company or any subsidiary, any issue of debt or equity securities ahead of\nor affecting Common Stock or the rights thereof, the dissolution or liquidation\nof the Company or any subsidiary or any sale, lease, exchange or other\ndisposition of all or any part of its assets or business or any other corporate\nact or proceeding.\n\n         (b) SUBDIVISION OR CONSOLIDATION OF SHARES; STOCK DIVIDENDS. The shares\nwith respect to which Awards may be granted are shares of Common Stock as\npresently constituted, but if, and whenever, prior to the expiration of an Award\ntheretofore granted, the Company shall effect a subdivision or consolidation of\nshares of Common Stock or the payment of a stock dividend on Common Stock\nwithout receipt of consideration by the Company, the number of shares of Common\nStock with respect to which such Award may thereafter be exercised or satisfied,\nas applicable (i) in the event of an increase in the number of outstanding\nshares shall be proportionately increased, and the purchase price per share\nshall be proportionately reduced, and (ii) in the event of a reduction in the\nnumber of outstanding shares shall be proportionately reduced, and the purchase\nprice per share shall be proportionately increased. Any factional share\nresulting from such adjustment shall be rounded down to the next whole share.\n\n         (c) RECAPITALIZATIONS AND CORPORATE CHANGES. If the Company\nrecapitalizes, reclassifies its capital stock, or otherwise changes its capital\nstructure (a 'recapitalization'), the number and class of shares of Common Stock\ncovered by an Award theretofore granted shall be adjusted so that such Award\nshall thereafter cover the number and class of shares of stock and securities to\nwhich the Holder would have been entitled pursuant to the terms of the\nrecapitalization \n\n\n                                       10\n\n\nif, immediately prior to the recapitalization, the Holder had been the holder of\nrecord of the number of shares of Common Stock then covered by such Award. If\n(i) the Company shall not be the surviving entity in any merger or consolidation\n(or survives only as a subsidiary of an entity), (ii) the Company sells, leases\nor exchanges or agrees to sell, lease or exchange all or substantially all of\nits assets to any other person or entity, (iii) the Company is to be dissolved\nand liquidated, (iv) any person or entity, including a 'group' as contemplated\nby Section 13(d)(3) of the 1934 Act, acquires or gains ownership or control\n(including, without limitation, power to vote) of more than 50% of the\noutstanding shares of the Company's voting stock (based upon voting power), or\n(v) as a result of or in connection with a contested election of Directors, the\npersons who were Directors of the Company before such election shall cease to\nconstitute a majority of the Board (each such event is referred to herein as a\n'Corporate Change'), no later than (x) ten days after the approval by the\nstockholders of the Company of such merger, consolidation, reorganization, sale,\nlease or exchange of assets or dissolution or such election of Directors or (y)\nthirty days after a Corporate Change of the type described in clause (iv), the\nCommittee, acting in its sole discretion without the consent or approval of any\nHolder, shall effect one or more of the following alternatives, which\nalternatives may vary among individual Holders and which may vary among Options\nheld by any individual Holder: (1) accelerate the time at which Options then\noutstanding may be exercised so that such Options may be exercised in full for a\nlimited period of time on or before a specified date (before or after such\nCorporate Change) fixed by the Committee, after which specified date all\nunexercised Options and all rights of Holders thereunder shall terminate, (2)\nrequire the mandatory surrender to the Company by selected Holders of some or\nall of the outstanding Options held by such Holders (irrespective of whether\nsuch Options are then exercisable under the provisions of the Plan) as of a\ndate, before or after such Corporate Change, specified by the Committee, in\nwhich event the Committee shall thereupon cancel such Options and the Company\nshall pay (or cause to be paid) to each Holder an amount of cash per share equal\nto the excess, if any, of the amount calculated in Subparagraph (d) below (the\n'Change of Control Value') of the shares subject to such Option over the\nexercise price(s) under such Options for such shares, (3) make such adjustments\nto Options then outstanding as the Committee deems appropriate to reflect such\nCorporate Change (provided, however, that the Committee may determine in its\nsole discretion that no adjustment is necessary to Options then outstanding), or\n(4) provide that the number and class of shares of Common Stock covered by an\nOption theretofore granted shall be adjusted so that such Option shall\nthereafter cover the number and class of shares of stock or other securities or\nproperty (including, without limitation, cash) to which the Holder would have\nbeen entitled pursuant to the terms of the agreement of merger, consolidation or\nsale of assets and dissolution if, immediately prior to such merger,\nconsolidation or sale of assets and dissolution, the Holder had been the holder\nof record of the number of shares of Common Stock then covered by such Option.\n\n         (d) CHANGE OF CONTROL VALUE. For the purposes of clause (2) in\nSubparagraph (c) above, the 'Change of Control Value' shall equal the amount\ndetermined in clause (i), (ii) or (iii), whichever is applicable, as follows:\n(i) the per share price offered to stockholders of the Company in any such\nmerger, consolidation, sale of assets or dissolution transaction, (ii) the price\nper share offered to stockholders of the Company in any tender offer or exchange\noffer whereby a Corporate Change takes place, or (iii) if such Corporate Change\noccurs other than pursuant to a tender or exchange offer, the Fair Market Value\nper share of the shares into which such Options being surrendered are\nexercisable, as determined by the Committee as of the date determined by the\nCommittee to be the date of cancellation and surrender of such Options. In the\nevent that the consideration offered to \n\n                                       11\n\n\n\nstockholders of the Company in any transaction described in this Subparagraph\n(d) or Subparagraph (c) above consists of anything other than cash, the\nCommittee shall determine the fair cash equivalent of the portion of the\nconsideration offered which is other than cash.\n\n         (e) OTHER CHANGES IN THE COMMON STOCK. In the event of changes in the\noutstanding Common Stock by reason of recapitalizations, reorganizations,\nmergers, consolidations, combinations, split-ups, split-offs, spin-offs,\nexchanges or other relevant changes in capitalization or distributions to the\nholders of Common Stock occurring after the date of the grant of any Award and\nnot otherwise provided for by this Paragraph XI, such Award and any agreement\nevidencing such Award shall be subject to adjustment by the Committee at its\nsole discretion as to the number and price of shares of Common Stock or other\nconsideration subject to such Award. In the event of any such change in the\noutstanding Common Stock or distribution to the holders of Common Stock, the\naggregate number of shares available under the Plan and the maximum number of\nshares that may be subject to Awards granted to any one individual may be\nappropriately adjusted by the Committee, whose determination shall be\nconclusive.\n\n         (f) STOCKHOLDER ACTION. Any adjustment provided for in the above  \nSubparagraphs shall be subject to any required stockholder action.\n\n         (g) NO ADJUSTMENTS UNLESS OTHERWISE PROVIDED. Except as hereinbefore\nexpressly provided, the issuance by the Company of shares of stock of any class\nor securities convertible into shares of stock of any class, for cash, property,\nlabor or services, upon direct sale, upon the exercise of rights or warrants to\nsubscribe therefor, or upon conversion of shares or obligations of the Company\nconvertible into such shares or other securities, and in any case whether or not\nfor fair value, shall not affect, and no adjustment by reason thereof shall be\nmade with respect to, the number of shares of Common Stock subject to Awards\ntheretofore granted or the purchase price per share, if applicable.\n\n                    XII AMENDMENT AND TERMINATION OF THE PLAN\n\n         Subject to the last sentence of Paragraph III, the Board in its\ndiscretion may terminate the Plan at any time. The Board shall have the right to\nalter or amend the Plan or any part thereof from time to time; provided that no\nchange in any Award theretofore granted may be made which would impair the\nrights of the Holder without the consent of the Holder, and provided, further,\nthat the Board may not, without approval of the stockholders, amend the Plan to\n(a) increase the maximum aggregate number of shares that may be issued under the\nPlan or (b) change the class of individuals eligible to receive Awards under the\nPlan.\n\n                                       12\n\n\n\n                               XIII MISCELLANEOUS\n\n         (a) NO RIGHT TO AN AWARD. Neither the adoption of the Plan nor any\naction of the Board or of the Committee shall be deemed to give an Employee,\nConsultant, or Director any right to be granted an Option, a right to a\nRestricted Stock Award, a right to a Performance Award or a right to an\nIncentive Award, or any other rights hereunder except as may be evidenced by an\nAward agreement duly executed on behalf of the Company, and then only to the\nextent and on the terms and conditions expressly set forth therein. The Plan\nshall be unfunded. The Company shall not be required to establish any special or\nseparate fund or to make any other segregation of funds or assets to assure the\nperformance of its obligations under any Award.\n\n         (b) NO EMPLOYMENT\/MEMBERSHIP RIGHTS CONFERRED. Nothing contained in the\nPlan shall (i) confer upon any Employee or Consultant any right with respect to\ncontinuation of employment or of a consulting or advisory relationship with the\nCompany or any subsidiary or (ii) interfere in any way with the right of the\nCompany or any subsidiary to terminate his or her employment or consulting or\nadvisory relationship at any time. Nothing contained in the Plan shall confer\nupon any Director any right with respect to continuation of membership on the\nBoard.\n\n         (c) OTHER LAWS; WITHHOLDING. The Company shall not be obligated to\nissue any Common Stock pursuant to any Award granted under the Plan at any time\nwhen the shares covered by such Award have not been registered under the\nSecurities Act of 1933, as amended, and such other state and federal laws, rules\nand regulations as the Company or the Committee deems applicable and, in the\nopinion of legal counsel for the Company, there is no exemption from the\nregistration requirements of such laws, rules and regulations available for the\nissuance and sale of such shares. No fractional shares of Common Stock shall be\ndelivered, nor shall any cash in lieu of fractional shares be paid. The Company\nshall have the right to deduct in connection with all Awards any taxes required\nby law to be withheld and to require any payments required to enable it to\nsatisfy its withholding obligations.\n\n         (d) NO RESTRICTION ON CORPORATE ACTION. Nothing contained in the Plan\nshall be construed to prevent the Company or any subsidiary from taking any\ncorporate action which is deemed by the Company or such subsidiary to be\nappropriate or in its best interest, whether or not such action would have an\nadverse effect on the Plan or any Award made under the Plan. No Employee,\nConsultant, Director, beneficiary or other person shall have any claim against\nthe Company or any subsidiary as a result of any such action.\n\n         (e) RESTRICTIONS ON TRANSFER. An Award (other than an Incentive Stock\nOption, which shall be subject to the transfer restrictions set forth in\nParagraph VII(c)) shall not be transferable otherwise than (i) by will or the\nlaws of descent and distribution, (ii) pursuant to a qualified domestic\nrelations order as defined by the Code or Title I of the Employee Retirement\nIncome Security Act of 1974, as amended, or the rules thereunder, (iii) with\nrespect to Option Awards other than Incentive Stock Options, if such transfer is\npermitted in the sole discretion of the Committee, by transfer by a Holder to a\nmember of the Holder's Immediate Family, to a trust solely for the benefit of\nthe Holder and the Holder's Immediate Family, or to a partnership or limited\nliability company whose only partners or shareholders are the Holder and members\nof the Holder's Immediate Family, with the consent of the Committee, or (iv)\nwith the consent of the Committee.\n\n                                       13\n\n\n\n         (f) SECTION 162(m). It is intended that the Plan comply fully with and\nmeet all the requirements of section 162(m) of the Code so that Options and\nPerformance Awards granted hereunder and, if determined by the Committee,\nRestricted Stock Awards shall constitute 'performance-based' compensation within\nthe meaning of such section. If any provision of the Plan would disqualify the\nPlan or would not otherwise permit the Plan to comply with section 162(m) as so\nintended, such provision shall be construed or deemed amended to conform to the\nrequirements or provisions of section 162(m); provided that no such construction\nor amendment shall have an adverse effect on the economic value to a Holder of\nany Award previously granted hereunder.\n\n         (g) GOVERNING LAW. THE PLAN SHALL BE CONSTRUED IN ACCORDANCE WITH THE \nLAWS OF THE STATE OF DELAWARE.\n\n\n                                       14\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6962],"corporate_contracts_industries":[9409],"corporate_contracts_types":[9539,9546],"class_list":["post-38351","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-brown-tom-inc","corporate_contracts_industries-energy__exploration","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\/38351","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=38351"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=38351"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=38351"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=38351"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}