Initial Public Offering (IPO): Pre-Effective Amendment to Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1/A Registration Statement 93 448K
2: EX-1 Form of Underwriting Agreement 61 179K
3: EX-1.1 Form of Escrow Agreement 13 23K
4: EX-1.2 Underwriter's Warrant Agreement 39 99K
5: EX-5 Opinion of Doros & Brescia, P.C. 1 8K
7: EX-10.11 Share Exchange Agreement 17 34K
6: EX-10.7 Stock Option Plan 20 59K
8: EX-22.1 Consent of Eichler, Bergsman & Co., LLP 1 6K
9: EX-22.2 Consent of Lilling & Company 1 6K
10: EX-22.3 Consent of Hagan & Burns CPAs, Pc 1 6K
EX-10.7 — Stock Option Plan
EX-10.7 | 1st Page of 20 | TOC | ↑Top | Previous | Next | ↓Bottom | Just 1st |
---|
UNITED STATES FINANCIAL GROUP, INCORPORATED
1998 STOCK INCENTIVE PLAN
1. Purpose.
The purpose of this Plan is to enable United States Financial
Group, Incorporated and its subsidiaries and affiliates to recruit and retain
capable employees, consultants and advisors for the successful conduct of its
business and to provide an additional incentive to directors, officers and
other eligible key employees, consultants and advisors upon whom rest major
responsibilities for the successful operation and management of the Company and
its affiliates.
2. Definitions.
For purposes of the Plan:
2.1 "Adjusted Fair Market Value" means, in the event of a Change
in Control, the greater of (i) the highest price per Share of Common Stock paid
to holders of the Shares of Common Stock in any transaction (or series of
transactions) constituting or resulting in a Change in Control or (ii) the
highest Fair Market Value of a Share during the ninety (90) day period ending
on the date of a Change in Control.
2.2 "Affiliate Corporation" or "Affiliate" shall mean any
corporation, directly or indirectly, through one of more intermediaries,
controlling, controlled by or under common control with the Company.
2.3 "Agreement" means the written agreement between the Company
and an Optionee evidencing the grant of an Award.
2.4 "Award" means an Incentive Stock Option, Nonqualified Stock
Option or Stock Appreciation Right granted or to be granted pursuant to the
Plan.
2.5 "Board" means the Board of Directors of the Company.
2.6 "Cause" means:
(a) Solely with respect to Nonemployee Directors, the
commission of an act of fraud or an act of embezzlement, misappropriation or
conversion of assets or opportunities of the Company or any Affiliate, and
(b) For all other purposes, unless otherwise defined in the
Agreement evidencing a particular Award, an Optionee (other than a Nonemployee
Director) (i) intentional failure to perform reasonably assigned duties, (ii)
dishonesty or willful misconduct in the performance of duties, (iii)
involvement in a transaction in connection with the performance of duties to
the Company which transaction is adverse to the interests of the Company and
which is engaged in for personal profit, or (iv) willful violation of any law,
rule or regulation in connection with the performance of duties (other than
traffic violations or similar offenses).
2.7 "Change in Capitalization" means any increase or reduction
in the Number of Shares, or any change (including, but not limited to, a change
in value) in the Shares or exchange of Shares for a different number or kind of
shares or other securities of the Company, by reason of a reclassification,
recapitalization, merger, consolidation, reorganization, spin-off, split-up,
issuance of warrants or rights or debentures, stock dividend, stock split or
reverse stock split, combination or exchange of shares, repurchase of shares,
change in corporate structure or otherwise.
2.8 A "Change in Control" shall mean the occurrence during the
term of the Plan of either of any "person" (as such term is used in Section
13(c) and 14(d) of the Exchange Act), other than a trustee or other fiduciary
holding securities under an employee benefit plan of the Company or a
corporation owned directly or indirectly by the stockholders of the Company, is
or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of Securities of the Company representing 50% or
more of the total voting power represented by the Company's then outstanding
voting securities.
2.9 "Code" means the Internal Revenue Code of 1986, as amended.
2.10 "Committee" means a committee, as described in Section 3.1,
appointed by the Board to administer the Plan and to perform the functions set
forth herein.
2
2.11 "Company" means United States Financial Group, Incorporated
(including any and all subsidiaries currently existing or hereafter acquired or
established).
2.12 "Director Option" means an Option for Shares or Stock
Appreciation Rights granted pursuant to Section 6.
2.13 "Disability" means a physical or mental infirmity which
impairs an Optionee's ability to perform substantially his or her duties for a
period of one hundred eighty (180) consecutive days.
2.14 "Disinterested Director" means a director of the Company
who is "disinterested" within the meaning of Rule 16b-3 under the Exchange Act.
2.15 "Eligible Individual" means any director (other than a
Nonemployee Director), officer or employee of, or consultant or advisor to, the
Company or an Affiliate who is receiving cash compensation and who is
designated by the Committee as eligible to receive Awards subject to the
conditions set forth herein.
2.16 "Employee Option" means an option granted pursuant to
Section 5.
2.17 "Exchange Act" means the Securities Exchange Act of 1934,
as amended.
2.18 "Fair Market Value" on any date means the average of the
high and low sales prices of the Shares on such date on the principal
securities exchange on which such Shares are listed, or if such Shares are not
so listed or admitted to trading, the arithmetic mean of the per Share closing
bid price and closing asked price per Share on such date as quoted on the
quotation system of the Nasdaq Stock Market, Inc. or such other market in which
such prices are regularly quoted, or, if there have been no published bid or
asked quotations with respect to Shares on such date, the Fair Market Value as
established by the Board in good faith and, in the case of an Incentive Stock
Option, in accordance with Section 422 of the Code.
3
2.19 "Incentive Stock Option" means an Option satisfying the
requirements of Section 422 of the Code and designated by the Committee as an
Incentive Stock Option.
2.20 "Nonemployee Director" means a director of the Company who
is not an employee of the Company or an Affiliate.
2.21 "Nonqualified Stock Option" means an Option which is not an
Incentive Stock Option.
2.22 "Option" means a Nonqualified Stock Option, an Incentive
Stock Option, a Director Option, an Employee Option or any or all of them.
2.23 "Optionee" means a person to whom an Option is being
granted under the Plan.
2.24 "Outside Director" means a director of the Company who is
an "outside director" within the meaning of Section 162(m) of the Code and the
regulations promulgated thereunder.
2.25 "Parent" means any corporation which is a parent
corporation (within the meaning of Section 424(e) of the Code) with respect to
the Company.
2.26 "Plan" means the Thermo-Mizer Environmental Corp. 1996
Stock Option Plan.
2.27 "Pooling Transaction" means an acquisition of the Company
in a transaction which is intended to be treated as a "pooling of interests"
under generally accepted accounting principles as defined in Opinion No. 16 of
the Accounting Principles Board.
2.28 "Shares" means the common stock, par value $.0001 per
share, of the Company and any securities or other consideration issuable in
respect of Shares in connection with a Change in Capitalization or Change in
Control.
2.29 "Stock Appreciation Right" or "SARs" means a right to
receive all or some portion of the increase in the value of the Shares as
provided in Section 8 hereof.
4
2.30 "Subsidiary" means any corporation which is a subsidiary
corporation (within the meaning of Section 424(f) of the Code) with respect to
the Company.
2.31 "Successor Corporation" means a corporation, or a parent or
subsidiary thereof within the meaning of 424(a) of the Code, which issues or
assumes a stock option in a transaction to which Section 424(a) of the Code
applies.
2.32 "Ten Percent Stockholder" means an Eligible Individual,
who, at the time an Incentive Stock Option is to be granted to him or her owns
(within the meaning of Section 422(b) (6) of the Code) stock possessing more
than ten percent (10%) of the total combined voting power of all classes of
stock of the Company, or of a Parent or a Subsidiary thereof.
3. Administration.
3.1 The Plan shall be administered by the Committee which shall
hold meetings at such times as may be necessary for the proper administration
of the Plan. The Committee shall keep minutes of its meetings. A quorum shall
consist of not fewer than two (2) members of the Committee and a majority of a
quorum may authorize any action. Any decision or determination reduced to
writing and signed by a majority of all of the members shall be as fully
effective as if made by a majority vote at a meeting duly called and held. The
Committee shall consist of at least two (2) directors of the Company each of
whom shall be a Disinterested Director and an Outside Director. No member of
the Committee shall be liable for any action, failure to act, determination or
interpretation made in good faith with respect to this Plan or any transaction
hereunder, except for liability arising from his or her own willful
misfeasance, gross negligence or reckless disregard of his or her duties. The
Company hereby agrees to indemnify each member of the Committee for all costs
and expenses and, to the extent permitted by applicable law, any liability
incurred in connection with defending against, responding to, negotiating for
the settlement of or otherwise dealing with any claim, cause of action or
dispute of any kind arising in connection with any actions in administering
this Plan or in authorizing or denying authorization to any transaction
hereunder.
5
3.2 Subject to the express terms and conditions set forth
herein, the Committee shall have the power from time to time to:
(a) determine those Eligible Individuals to whom Employee
Options shall be granted under the Plan and the number of Employee Options to
be granted and to prescribe the terms and conditions (which need not be
identical) of each such Employee Option, including the purchase price per Share
subject to each Employee Option, and make any amendment or modification to any
Option Agreement consistent with the terms of this Plan;
(b) construe and interpret the Plan and the Options granted
hereunder and to establish, amend and revoke rules and regulations for the
administration of the Plan, including, but not limited to, correcting any
defect or supplying any omission, or reconciling any inconsistency in the Plan
or in any Agreement, in the manner and to the extent it shall deem necessary or
advisable so that the Plan complies with applicable law, including Rule 16b-3
under the Exchange Act and the Code to the extent applicable, and otherwise to
make the Plan fully effective. All decisions and determinations by the
Committee or the exercise of this power shall be final, binding and conclusive
upon the Company, its Affiliate Corporations, the Options, and all other
persons having any interest therein;
(c) determine the duration and purposes for leaves of
absence which may be granted to an Optionee on an individual basis without
constituting a termination of employment or service for purposes of this Plan;
(d) exercise its discretion with respect to the powers and
rights granted to it as set forth in the Plan; and
(e) exercise such powers and perform such acts as it deems
necessary or advisable to promote the best interests of the Company with
respect to the Plan.
4. Stock Subject to the Plan.
4.1 The maximum number of Shares that may be made the subject of
Options granted under the Plan is 500,000. Upon a Change in Capitalization the
maximum number of Shares shall be adjusted in number and kind pursuant to
Section 11. The Company shall reserve for purposes of the Plan, out of its
authorized but
6
unissued Shares or out of Shares held in the Company's treasury, or partly out
of each, such number of Shares as shall be determined by the Board.
4.2 Upon the granting of an Option, the number of Shares
available under Section 4.1 for the granting of further Options shall be
reduced by the number of shares subject to such Option granted. Whenever any
outstanding Option or portion thereof expires, is canceled or is otherwise
terminated for any reason without having been exercised or payment having been
made in respect of the entire Option, the Shares allocable to the expired,
canceled or otherwise terminated portion of the Option may again be the subject
of Options granted hereunder.
5. Option Grants for Eligible Individuals.
5.1 Authority of Committee. Subject to the provisions of the
Plan, the Committee shall have full and final authority to select those
Eligible Individuals who will receive Employee Options, the terms and
conditions of which shall be set forth in an Agreement.
5.2 Purchase Price. The purchase price or the manner in which
the purchase price is to be determined for Shares under each Employee Option
shall be determined by the Committee and set forth in the Agreement; provided,
however, that the purchase price per Share under each Incentive Stock Option
shall not be less than 100% of the Fair Market Value of a Share on the date the
Incentive Stock Option is granted (110% in the case of an Incentive Stock
Option granted to a Ten-Percent Stockholder).
5.3 Maximum Duration. Employee Options granted hereunder shall
be for such term as the Committee shall determine, provided that an Incentive
Stock Option granted hereunder shall not be exercisable after the expiration of
ten (10) years from the date it is granted (five (5) years in the case of an
Incentive Stock Option granted to a Ten-Percent Stockholder), and a
Nonqualified Stock Option shall not be exercisable after the expiration of ten
(10) years from the date it is granted. The Committee may, subsequent to the
granting of any Employee Option, extend the term thereof but in no event shall
the term as so extended exceed the maximum term provided for in the preceding
sentence.
7
5.4 Vesting. Subject to Section 7.5 hereof, each Employee Option
shall become exercisable in such installments (which need not be equal) and at
such times as may be designated by the Committee and set forth in the
Agreement. To the extent not exercised, installments shall accumulate and be
exercisable, in whole or in part, at any time after becoming exercisable, but
not later than the date the Employee Option expires. The Committee may
accelerate the exercisability of any Option or portion thereof at any time.
5.5 Modification. No modification of an Employee Option shall
adversely alter or impair any rights or obligations under the Employee Option
without the Optionee's consent.
6. Option Grants for Nonemployee Directors.
6.1 Purchase Price. The purchase price for Shares or SARs under
each Director Option shall be not less than to 100% of the Fair Market Value of
such Shares on the date immediately preceding the date of the grant unless
specifically determined to be otherwise by the Committee.
6.2 Vesting. Subject to Sections 6.3 and 7.5 each Director
Option shall become exercisable within four (4) equal annual installments
beginning on the date of grant; provided, however, that the Optionee continues
to serve as a Director as of such dates. If an Optionee ceases to serve as a
Director for any reason, the Optionee shall have no rights with respect to that
portion of a Director Option which has not then vested pursuant to the
preceding sentence and the Optionee shall automatically forfeit that portion of
the Director Option which remains unvested.
6.3 Limitations on Amendment. The provisions in this Section 6
and Section 7.1 shall not be amended more than once every six (6) months, other
than to comport with changes in the Code or the rules and regulations
thereunder.
7. Terms and Conditions Applicable to All Options.
7.1 Duration. Each Option shall terminate on the date which is
the tenth anniversary of the grant date, unless terminated earlier as follows:
8
(a) If an Optionee's employment or service terminates for
any reason other than Disability, death or Cause, the Optionee may for a period
of three (3) months after such termination exercise his or her Option to the
extent, and only to the extent, such Option or portion thereof was vested and
exercisable as of the date of the Optionee's employment or service terminated,
after which time the Option shall automatically terminate in full.
(b) If an Optionee's employment or service terminates by
reason of the Optionee's Disability, the Optionee may, for a period of one (1)
year after such termination, exercise his or her Option to the extent, and only
to the extent, such Option or portion thereof was vested and exercisable as of
the date the Optionee's employment or service terminated, after which time the
Option shall automatically terminate in full.
(c) If an Optionee's employment or service terminates for
Cause, the Option granted to the Optionee hereunder shall immediately terminate
in full and no rights thereunder may be exercised.
(d) If an Optionee dies while employed or in the service of
the Company or an Affiliate or within the three (3) month or twelve (12) month
period described in clause (a) or (b), respectively, of this Section 7.1 the
Option granted to the Optionee may be exercised at any time within twelve (12)
months after the Optionee's death by the person or persons to whom such rights
under the Option shall pass by will, or by the laws of descent and
distribution, after which time the Option shall terminate in full; provided,
however, that an Option may be exercised to the extent, and only to the extent,
such Option or portion thereof was exercisable on the date of death or earlier
termination of the Optionee's services as a Director.
Notwithstanding clauses (a) through (d) above, the Agreement evidencing the
grant of an Employee Option may, in the Committee's sole and absolute
discretion, set forth additional or different terms and conditions applicable
to Employee Options upon a termination or change in status of the employment or
service of an Eligible Individual. Such terms and conditions may be determined
at the time the Employee Option is granted or thereafter.
9
7.2 Non-transferability. No Option granted hereunder shall be
transferable by the Optionee to whom granted except by will or the laws of
descent and distribution, and an Option may be exercised during the lifetime of
such Optionee only by the Optionee or his or her guardian or legal
representative. The terms of such Option shall be final, binding and conclusive
upon the beneficiaries, executors, administrators, heirs and successors of the
Optionee.
7.3 Method of Exercise. The exercise of an option shall be made
only by a written notice delivered in person or by mail to the Secretary or
Chief Financial Officer of the Company at the Company's principal executive
office, specifying the number of Shares to be purchased and accompanied by
payment therefor and otherwise in accordance with the Agreement pursuant to
which the Option was granted. The purchase price for any Shares purchased
pursuant to the exercise of an Option shall be paid in full in cash upon such
exercise. Notwithstanding the foregoing, the Committee shall have discretion to
determine at the time of grant of each Employee Option or at any later date (up
to and including the date of exercise) that the form of payment acceptable in
respect of the exercise of such Employee Option may consist of either of the
following (or any combination thereof): (i) cash or (ii) the transfer of Shares
to the Company upon such terms and conditions as determined by the Committee.
The Optionee shall deliver the Agreement evidencing the Option to the Secretary
or Chief Financial Officer of the Company who shall endorse thereon a notation
of such exercise and return such Agreement to the Optionee. No fractional
Shares (or cash in lieu thereof) shall be issued upon exercise of an Option and
the number of Shares that may be purchased upon exercise shall be rounded to
the nearest number of whole Shares.
7.4 Rights of Optionees. No Optionee shall be deemed for any
purpose to be the owner of any Shares subject to any Option unless and until
(i) the Option shall have been exercised pursuant to the terms thereof, (ii)
the Company shall have issued and delivered the Shares to the Optionee and
(iii) the Optionee's name shall have been entered as a stockholder of record on
the books of the Company. Thereupon, the Optionee shall have full voting,
dividend and other ownership rights with respect to such Shares, subject to
such terms and conditions as may be set forth in the applicable Agreement.
10
7.5 Effect of Change in Control. In the event of a Change in
Control, all Options outstanding on the date of such Change in Control shall
become immediately and fully vested and exercisable. In addition, to the extent
set forth in an Agreement evidencing the grant of an Employee Option, an
Optionee will be permitted to surrender for cancellation within sixty (60) days
after such Change in Control, any Employee Option or portion of an Employee
Option to the extent not yet exercised and the Optionee will be entitled to
receive a cash payment in an amount equal to the excess, if any of (x) (A) in
the case of a Nonqualified Stock Option, the greater of (1) the Fair Market
Value, on the date preceding the date of surrender, of the Shares subject to
the Employee Option or portion thereof surrendered or (2) the Adjusted Fair
Market Value of the Shares subject to the Employee Option or portion thereof
surrendered or (B) in the case of an Incentive Stock Option, the Fair Market
Value, on the date preceding the date of surrender, of the Shares subject to
the Employee Option or portion thereof surrendered, over (y) the aggregate
purchase price for such Shares under the Employee Option or portion thereof
surrendered; provided, however, that in the case of an Employee Option granted
within six (6) months prior to the Change in Control to any Optionee who may be
subject to liability under Section 16(b) of the Exchange Act, such Optionee
shall be entitled to surrender for cancellation his or her Option during the
sixty (60) day period commencing upon the expiration of six (6) months from the
date of grant of any such Employee Option. In the event an Optionee's
employment or service with the Company is terminated by the Company following a
Change in Control, each Option held by the Optionee that was exercisable as of
the date of termination of the Optionee's employment or service shall remain
exercisable for a period ending not before the earlier of the first anniversary
of the termination of the Optionee's employment or service or the expiration of
the stated term of the Option.
8. Stock Appreciation Rights. The Committee may, in its discretion,
either alone or in connection with the grant of an Employee Option, grant Stock
Appreciation Rights in accordance with the Plan, the terms and conditions of
which shall be set forth in an Agreement. If granted in connection with an
Option, a Stock Appreciation Right shall cover the same Shares covered by the
Option (or such lesser number of Shares as the Committee may determine) and
shall, except as provided in this Section 8, be subject to the same terms.
11
8.1 Time of Grant. A Stock Appreciation Right may be granted (i)
at any time if unrelated to an Option, or (ii) if related to an Option, either
at the time of grant, or at any time thereafter during the term of the Option.
8.2 Stock Appreciation Right Related to an Option.
(a) Exercise. Subject to Section 8.8, a Stock Appreciation
Right granted in connection with an Option shall be exercisable at such time or
times and only to the extent that the related Options are exercisable, and will
not be transferable except to the extent the related Option may be
transferable. A Stock Appreciation Right granted in connection with an
Incentive Stock Option shall be exercisable only if the Fair Market Value of a
Share on the date of exercise exceeds the purchase price specified in the
related Incentive Stock Option Agreement.
(b) Amount Payable. Upon the exercise of a Stock
Appreciation Right related to an Option, the holder shall be entitled to
receive an amount determined by multiplying (A) the excess of the Fair Market
Value of a Share on the date preceding the date of exercise of such Stock
Appreciation Right over the per Share purchase price under the related Option,
by (B) the number of Shares as to which such Stock Appreciation Right is being
exercised. Notwithstanding the foregoing, the Committee may limit, in any
manner, the amount payable with respect to any Stock Appreciation Right by
including such a limit in the Agreement evidencing the Stock Appreciation Right
at the time it is granted.
(c) Treatment of Related Options and Stock Appreciation
Rights Upon Exercise. Upon the exercise of a Stock Appreciation Right granted
in connection with an Option, the Option shall be canceled to the extent of the
number of Shares as to which the Stock Appreciation Right is exercised, and
upon the exercise of an Option granted in connection with a Stock Appreciation
Right or the surrender of such Option pursuant to Section 7.3, the Stock
Appreciation Right shall be canceled to the extent of the number of Shares as
to which the Option is exercised or surrendered.
8.3 Stock Appreciation Right Unrelated to an Option. The
Committee may grant to Eligible Individuals Stock Appreciation Rights unrelated
to Options. Stock Appreciation Rights unrelated to Options shall contain such
terms and conditions as to exercisability (subject to Section 8.8), vesting and
duration as the Committee shall determine, but, in no event, shall they have a
term of greater
12
than ten (10) years. Upon exercise of a Stock Appreciation Right unrelated to
an Option, the holder shall be entitled to receive an amount determined by
multiplying (A) the excess of the Fair Market Value of a Share on the date
preceding the date of exercise of such Stock Appreciation Right over the Fair
Market Value of a Share on the date the Stock Appreciation Right was granted,
by (B) the number of Shares as to which the Stock Appreciation Right is being
exercised. Notwithstanding the foregoing, the Committee may limit, in any
manner, the amount payable with respect to any Stock Appreciation Right by
including such a limit in the Agreement evidencing the same Stock Appreciation
Right at the time it is granted.
8.4 Method of Exercise. Stock Appreciation Rights shall be
exercised by a holder only by a written notice delivered in person or by mail
to the Secretary or Chief Financial Officer of the Company at the Company's
principal executive office, specifying the number of Shares with respect to
which the Stock Appreciation Right is being exercised. If requested by the
Committee, the holder shall deliver the Agreement evidencing the Stock
Appreciation Right being exercised and the Agreement evidencing any related
Option to the Secretary or Chief Financial Officer of the Company who shall
endorse thereon a notation of such exercise and return such Agreement to the
holder.
8.5 Form of Payment. Payment of the amount determined under
Sections 8.2(b) or 8.3 may be made in the discretion of the Committee, solely
in whole Shares in a number determined at their Fair Market Value in the date
preceding the date of exercise of the Stock Appreciation Right, or solely in
cash, or in a combination of cash and Shares. If the Committee decides to make
full payment in Shares and the amount payable results in a fractional Share,
payment for the fractional Share will be made in cash. Notwithstanding the
foregoing, no payment in the form of cash may be made upon the exercise of a
Stock Appreciation Right pursuant to Sections 8.2(b) or 8.3 to an officer of
the Company who is subject to liability under Section 16(b) of the Exchange
Act, unless the exercise of such Stock Appreciation Right is made either (i)
during the period beginning on the third business day and ending on the twelfth
business day following the date of release for publication of the Company's
quarterly or annual statements of earnings (the "Window Period") or (ii)
pursuant to an irrevocable election to receive cash made at least six (6)
months prior to the exercise of such Stock Appreciation Right.
13
8.6 Restrictions. No Stock Appreciation Right may be exercised
before a date three (3) months after the date on which it is granted.
8.7 Modification. No modification of an Award shall adversely
alter or impair any rights or obligations under the Agreement without the
holder's consent.
8.8 Effect of Change in Control. In the event of a Change in
Control but subject to Section 8.6, all Stock Appreciation Rights shall become
immediately and fully exercisable. In addition, to the extent set forth in an
Agreement evidencing the grant of a Stock Appreciation Right, a holder will be
entitled to receive a payment in cash or stock, in either case, with a value
equal to the excess, if any, of (A) the greater of (x) the Fair Market Value,
on the date preceding the date of exercise, of the underlying Shares subject to
the Stock Appreciation Right or portion thereof exercised and (y) the Adjusted
Fair Market Value, on the date preceding the date of exercise, of the Shared
over (B) the aggregate Fair Market Value, on the date the Stock Appreciation
Right was granted, of the Shares subject to the Stock Appreciation Right or
portion thereof exercised; provided, however, that in the case of a Stock
Appreciation Right granted within six (6) months of the Change in Control to
any holder who may be subject to liability under Section 15(b) of the Exchange
Act, such holder shall be entitled to exercise his or her Stock Appreciation
Right during the sixty (60) day period commencing upon the expiration of six
months from the date of grant of any such Stock Appreciation Right. In the
event of a holder's employment or service with the Company is terminated by the
Company following a Change in Control, each Stock Appreciation Right held by
the holder that was exercisable as of the date of termination of the holder's
employment or service shall remain exercisable for a period ending but not
before the earlier of the first anniversary of the termination of the holder's
employment or service or the expiration of the stated term of the Stock
Appreciation Right.
9. Adjustment Upon Changes n Capitalization.
(a) In the event of a Change in Capitalization, the
Committee shall conclusively determine the appropriate adjustments, if any, to
the (i) maximum number of Shares with respect to which Options may be granted
under the Plan, (ii)
14
maximum number of Shares with respect to which Options may be granted to any
Eligible Individual during the term of the Plan, (iii) the number of Shares
which are subject to outstanding Options granted under the Plan, and the
purchase price therefor, if applicable, and (iv) the number of Shares in
respect of which Director Options are to be granted under Section 6.
(b) Any such adjustment in the Shares subject to Incentive
Stock Options (including any adjustments in the purchase price) shall be made
in such manner as not to constitute a modification as defined by Section
424(h)(3) of the Code and only to the extent otherwise permitted by Sections
422 and 424 of the Code.
(c) If, by reason of a Change of Capitalization, an
Optionee shall be entitled to exercise an Option with respect to new,
additional or different shares of stock, such new, additional or different
shares shall thereupon be subject to all of the conditions, restrictions and
performance criteria which were applicable to the Shares subject to the Option,
prior to such Change in Capitalization.
10. Effect of Certain Transactions. Subject to Sections 7.5 and 8.8
or as otherwise provided in an Agreement, in the event of (i) the liquidation
or dissolution of the Company or (ii) a merger or consolidation of the Company,
the Plan and the Options issued hereunder shall continue in effect in
accordance with their respective terms.
11. Interpretation.
(a) The Plan is intended to comply with Rule 16b-3
promulgated under the Exchange Act and the Committee shall interpret and
administer the provisions of the Plan or any Agreement in a manner consistent
therewith. Any provisions inconsistent with such Rule shall be inoperative and
shall not affect the validity of the Plan.
(b) The Director Options described in Section 6 are
intended to qualify as formula awards under Rule 16b-3 promulgated under the
Exchange Act (thereby preserving the disinterested status of Nonemployee
Directors receiving such Awards) and the Committee shall interpret and
administer the provisions of the Plan or any Agreement in a manner consistent
therewith. Any provisions inconsistent with the foregoing intent
15
shall be inoperative and shall interpret and administer the provisions of the
Plan or any Agreement in a manner consistent therewith. Any provisions
inconsistent with the foregoing intent shall be inoperative and shall not
affect the validity of the Plan.
(c) Unless otherwise expressly stated in the relevant
Agreement, each Option granted under the Plan is intended to be
performance-based compensation within the meaning of Section 162(m)(4)(C) of
the Code. The Committee shall not be entitled to exercise any discretion
otherwise authorized hereunder with respect to such Options if the ability to
exercise such discretion or the exercise of such discretion itself would cause
the compensation attributable to such Options to fail to qualify as
performance-based compensation.
12. Pooling Transactions.
Notwithstanding anything contained in the Plan or any Agreement to
the contrary, in the event of a Change in Control which is also intended to
constitute a Pooling Transaction, the Committee shall take such actions, if
any, which are specifically recommended by an independent public accounting
firm engaged by the Company to the extent reasonably necessary in order to
assure that the Pooling Transaction will qualify as such, including but not
limited to (i) deferring the vesting, exercise, payment or settlement in
respect of any Option, (ii) providing that the payment or settlement in respect
of any Option be made in the form of cash, Shares or securities of a successor
or acquiree of the Company, or a combination of the foregoing, and (iii)
providing for the extension of term of any Option to the extent necessary to
accommodate the foregoing, but not beyond the maximum term permitted for any
Option.
13. Termination and Amendment of the Plan.
The Plan shall terminate on the preceding the tenth anniversary of
the date of its adoption by the Company, and no Option may be granted
thereafter. Subject to Section 6.5, the Board may sooner terminate the Plan,
and the Board may at any time and from time to time amend, modify or suspend
the Plan; provided, however, that:
(a) No such amendment, modification, suspension or
termination shall impair or adversely alter any Award already
16
granted under the Plan, except with the consent of the Optionee or holder of an
SAR nor shall any amendment, modification or termination deprive any Optionee
or holder of an SAR of any Shares which he or she may have acquired through or
as a result of the Plan; and
(b) To the extent necessary under Section 16(b) of the
Exchange Act and the rules and regulations promulgated thereunder or other
applicable law, no amendment shall be effective unless approved by the
stockholders of the Company in accordance with applicable law and regulations.
14. Non-Exclusivity of the Plan.
The adoption of the Plan by the Board shall not be construed as
amending, modifying or rescinding any previously approved incentive arrangement
or as creating any limitations on the power of the Board to adopt such other
incentive arrangements as it may deem desirable, including, without limitation,
the granting of stock options otherwise than under the Plan, and such
arrangements may be either applicable generally or only in specific cases.
15. Limitation of Liability.
As illustrative of the limitations of liability of the Company, but
not intended to be exhaustive thereof, nothing in the Plan shall be construed
to:
(a) give any person any right to be granted an Option other
than at the sole discretion of the Committee;
(b) give any person any rights whatsoever with respect to
Shares except as specifically provided in the Plan;
(c) limit in any way the right of the Company to terminate
the employment of any person at any time; or
(d) be evidence of any agreement or understanding,
expressed or implied, that the Company will employ any person at any particular
rate of compensation or for any particular period of time.
16. Regulations and Other Approvals; Governing Law.
17
16.1 Except as to matters of Federal law, this Plan and the
rights of all persons claiming hereunder shall be construed and determined in
accordance with the laws of the State of New York.
16.2 The obligation of the Company to sell or deliver Shares
with respect to Options granted under the Plan shall be subject to all
applicable laws, rules and regulations, including all applicable Federal and
state securities laws, and the obtaining of all such approvals by governmental
agencies as may be deemed necessary or appropriate by the Committee.
16.3 The Board may make such changes as may be necessary or
appropriate to comply with the rules and regulations of any government
authority, or to obtain for Eligible Individuals granted Incentive Stock
Options the tax benefits under the applicable provisions of the Code and
regulations promulgated thereunder.
16.4 Each Option is subject to the requirement that, if at any
time the Committee determines, in its discretion, that the listing,
registration or qualification of Shares issuable pursuant to the Plan is
required by any securities exchange or under any state or federal law, or the
consent or approval or any governmental regulatory body is necessary or
desirable as a condition of, or in connection with, the grant of an Option or
the issuance of Shares, no Options shall be granted or payment made or Shares
issued, in whole or in part, unless listing, registration, qualification,
consent or approval has been effected or obtained free of any conditions as
acceptable to the Committee.
16.5 Notwithstanding anything contained in the Plan or any
Agreement to the contrary, in the event that the disposition of Shares acquired
pursuant to the Plan is not covered by a then current registration statement
under the Securities Act of 1933, as amended (the "Securities Act"), and is not
otherwise exempt from such registration, such Shares shall be restricted
against transfer to the extent required by the Securities Act and Rule 144 or
other regulations thereunder. The Committee may require an individual receiving
Shares pursuant to an Award granted under the Plan, as a condition precedent to
receipt of such Shares, to represent and warrant to the Company in writing that
the Shares acquired by such individual are acquired without a view to any
distribution thereof and will not be sold or transferred other
18
than pursuant to an exemption applicable under the Securities Act as amended,
or the rules and regulations promulgated thereunder. The certificates
evidencing any of such Shares shall be appropriately amended to reflect their
status as restricted securities as aforesaid.
17. Miscellaneous.
17.1 Multiple Agreements. The terms of each Award granted to an
Eligible Individual may differ from other Awards granted under the Plan at the
same time, or at some other time. The Committee may also grant more than one
Award to a given Eligible Individual during the term of the Plan, either in
addition to, or in substitution for, one or more Awards previously granted to
that Eligible Individual.
17.2 Withholding of Taxes.
(a) At such times as an Optionee or holder of an SAR
recognizes taxable income in connection with the receipt of Shares or cash
hereunder (a "Taxable Event"), the Optionee or holder shall pay other amounts
as may be required by law to be withheld by the Company in issuance or release
from escrow of such Shares or the payment of such cash. The Company shall have
the right to deduct from any payment of cash to an Optionee or holder an amount
equal to the Withholding Taxes in satisfaction of the obligation to pay
Withholding Taxes. In satisfaction of the obligation to pay Withholding Taxes
to the Company, the Optionee or holder may make a written election (the "Tax
Election"), which may be accepted or rejected in the discretion of the
Committee to have withheld a portion of the Shares then issuable to him or her
having an aggregate Fair Market Value, on the date preceding the date of such
issuance, equal to the Withholding Taxes, provided that in respect of an
Optionee or holder who may be subject to liability under Section 16(b) of the
Exchange Act either; (i)(A) the Tax Election is made at least six (6) months
prior to the date of the Taxable Event and (B) the Tax Election is irrevocable
with respect to all Taxable Events of a similar nature occurring prior to the
expiration of six (6) months following a revocation of the Tax Election; or
(ii)(A) the Tax Election is made at least six (6) months after the date the
Award was granted, (B) the Award is exercised during the Window Period and (C)
the Tax Election is made during the Window Period in which the related Award is
exercised or prior to such Window Period and subsequent to the immediately
preceding Window Period.
19
Notwithstanding the foregoing, the Committee may, by the adoption of rules or
otherwise, (i) modify this Section 17.2 (other than as regards Director
Options) or impose such other restrictions or limitations on Tax Elections to
be made at such times and subject to such other conditions as the Committee
determines will constitute exempt transactions under Section 16(b) of the
Exchange Act.
(b) If an Optionee makes a disposition, within the meaning
of Section 424 (c) of the Code and regulations promulgated thereunder, of any
Share or Shares issued to such Optionee pursuant to the exercise of an
Incentive Stock Option within the two-year period commencing on the day after
the date of the grant or within the one-year period commencing on the day after
the date of transfer of such Share or Shares to the Optionee pursuant to such
exercise, the Optionee shall, within ten (10) days of such disposition, notify
the Company thereof, by delivery of written notice to the Company at its
principal executive office.
17.3 Effective Date. The effective date of the Plan shall be as
determined by the Board.
20
↑Top
Filing Submission 0000950136-98-001346 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)
Copyright © 2024 Fran Finnegan & Company LLC – All Rights Reserved.
About — Privacy — Redactions — Help —
Thu., Apr. 25, 3:53:24.1am ET