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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
COLUMBIA BANCORP
(Name of registrant in its charter)
93-1193156
Oregon (I.R.S. Employer
(State of incorporation) Identification No.)
420 East Third Street, Suite 200
P. O. Box 1050
The Dalles, Oregon 97058
(Address of principal executive offices)
Issuer's telephone number: (541) 298-6649
Full Title of Plan
COLUMBIA BANCORP 1999 STOCK INCENTIVE PLAN
Agent for service: Neal T. McLaughlin, CFO
420 East Third Street, Suite 200
Telephone number: (541) 298-6649
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Calculation of Registration Fee
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
to be Registered Registered(1) per Unit (2) Offering Price Registration Fee(2)
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Columbia Bancorp
Common Stock 318,597 Shares $8.125 $2,588,600 $719.63
(no par value) (1)
</TABLE>
(1) This Registration Statement covers 318,597 shares of Registrant's
Common Stock, consisting of 4% of Registrant's 7,964,932 shares of Common Stock
issued and outstanding as of April 16, 1999. This Registration Statement also
covers any additional shares of Common Stock which become issuable under the
Columbia Bancorp 1999 Stock Incentive Plan by reason of any stock dividend,
stock split, recapitalization or other similar transaction effected without the
receipt of consideration which results in an increase in the number of the
Registrant's outstanding shares of Common Stock.
(2) Calculated solely for the purposes of this Registration Statement
under Rules 457(c) and 457(h) of the Securities Act of 1933 on the basis of the
average of the high and low selling prices per share of Common Stock of Columbia
Bancorp on May 21, 1999, as reported by the NASDAQ National Market System.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. Plan Information.*
ITEM 2. Registrant Information and Employee Plan Annual Information.*
* Information required by Part I to be contained in the Section 10(a) prospectus
is omitted from the Registration Statement in accordance with Rule 428 under the
Securities Act of 1933, as amended (the "1933 Act") and the Note to Part I of
Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Certain Documents by Reference.
Columbia Bancorp (the "Registrant" or "Columbia") hereby incorporates by
reference into this Registration Statement the following documents previously
filed with the Securities and Exchange Commission (the "Commission"):
(a) The Registrant's Annual Report filed with the Commission on Form 10-K,
File No. 000-27938, for the fiscal year ended December 31, 1998 filed on March
30, 1999, and the Registrant's Quarterly Reports on Form 10-Q, File No.
000-27938, filed on May 13, 1998, August 11, 1998, November 16, 1998 and May 12,
1999, excluding the information contained therein described in Item 402(a)(8) of
the Commission's Regulation S-K;
(b) The Registrant's Current Report filed with the Commission on Form 8-K,
File No.000-27938, on December 4, 1998;
(c) The description of Common Stock contained in the Registrant's
Registration Statement on Form S-1, File No. 000-27938, filed with the
Commission on September 25, 1998, and any amendment or report filed for the
purpose of updating such description filed after the date of this Registration
Statement.
All reports and definitive proxy or information statements filed pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "1934 Act") after the date of this Registration Statement and prior
to the filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities then remaining
unsold shall be deemed to be incorporated by reference into this Registration
Statement and to be a part hereof from the date of filing of such documents. Any
statement contained herein or in a document all or a portion of which is
incorporated or deemed to be incorporated by reference herein shall
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be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in any other
subsequently filed document that also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
ITEM 4. Description of Securities.
Not applicable.
ITEM 5. Interests of Named Experts and Counsel.
The consolidated financial statements of the Registrant and its
subsidiaries as of December 31, 1998 included in the Registrant's annual report
on Form 10-K for the years ended December 31, 1998, December 31, 1997 and
December 31, 1996, incorporated by reference herein, have been incorporated
herein in reliance upon the report of Moss Adams LLP, independent certified
public accountants, incorporated by reference herein and upon the authority of
said firm as experts in accounting and auditing.
The legality of the shares of Common Stock to which this Registration
Statement relates has been passed upon by Bennett H. Goldstein, outside counsel
of the Registrant. Mr. Goldstein beneficially owns shares of Common Stock. As of
the date of this Registration Statement, the number of shares Mr. Goldstein owns
is, in the aggregate, less than 0.1% of the outstanding shares of Common Stock.
ITEM 6. Indemnification of Directors and Officers.
Under the Oregon Business Corporation Act, a corporation's Articles of
Incorporation may provide for the limitation of liability of directors and
indemnification of directors and officers under some circumstances. In
accordance with Oregon law, Columbia's Articles of Incorporation provide that
directors are not personally liable to the corporation or its shareholders for
monetary damages for conduct as a director, except for (i) any breach of a
director's duty of loyalty to the corporation or its shareholders; (ii) acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of the law; (iii) any unlawful distributions to directors; (iv) any
transaction from which the director received an improper or illegal personal
benefit; or (v) any act or omission for which the elimination of liability is
not permitted under the Oregon Business Corporation Act.
Columbia's Articles allow it to indemnify any person who is or was a party,
or is threatened to be made a party, to any civil, administrative, or criminal
proceeding by reason of the fact that the person is or was a director or officer
of Columbia or any of its subsidiaries, is or was a fiduciary under the Employee
Retirement Income Security Act of 1974 with respect to any employee benefit plan
of Columbia or its subsidiaries, or is or was serving at Columbia's request as a
director, officer, partner, agent, or employee of
<PAGE> 4
another corporation or entity. The indemnification may include expenses,
including attorneys' fees, judgments, fines, and amounts paid in settlement,
actually and reasonably incurred by that person. Indemnification is available if
(i) the person acted in good faith; (ii) the person reasonably believed the
conduct was in the corporation's best interests, or at least was not opposed to
its best interests; and (iii) in the case of a criminal proceeding, the person
had no reasonable cause to believe the conduct was unlawful. In addition, a
person who is wholly successful, on the merits or otherwise, in the defense of a
proceeding in which the person was a party because the person was a director, is
entitled to indemnification for expenses actually and reasonably incurred by the
person in connection with the proceeding.
ITEM 7. Exemption from Registration Claimed.
Not applicable.
ITEM 8. Exhibits.
See Exhibit Index.
ITEM 9. Undertakings.
A. The undersigned Registrant hereby undertakes: (1) to file, during any
period in which offers or sales are being made, a post-effective amendment to
this Registration Statement (i) to include any prospectus required by Section
10(a)(3) of the 1933 Act, (ii) to reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
Registration Statement, and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the Registration
Statement; provided, however, that clauses (1)(i) and (1)(ii) shall not apply if
the information required to be included in a post-effective amendment by those
clauses is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the 1934 Act that are incorporated by reference
into the Registration Statement; (2) that for the purpose of determining any
liability under the 1933 Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof; and (3) to remove from registration by means
of a post-effective amendment any of the securities being registered which
remain unsold at the termination of the Columbia Bancorp 1999 Stock Incentive
Plan.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is
incorporated by reference into the Registration Statement shall be deemed to be
a new registration
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statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
C. Insofar as indemnification for liabilities arising under the 1933 Act
may be permitted to directors, officers or controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the SEC such indemnification is against public
policy as expressed in the 1933 Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the 1933 Act
and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of The Dalles, State of Oregon, on May 21, 1999.
COLUMBIA BANCORP, Registrant
By: /s/
----------------------------------------
Terry L. Cochran, President and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned officers and directors of Columbia Bancorp, an Oregon
corporation, do hereby constitute and appoint Terry L. Cochran, President and
Chief Executive Officer and Neal T. McLaughlin, Chief Financial Officer and each
of them, the lawful attorneys and agents, with full power and authority to do
any and all acts and things and to execute any and all instruments which said
attorneys and agents, and any one of them, determine may be necessary or
advisable or required to enable said corporation to comply with the Securities
Act of 1933, as amended, and any rules or regulations or requirements of the
Securities and Exchange Commission in connection with this Registration
Statement. Without limiting the generality of the foregoing power
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and authority, the powers granted include the power and authority to sign the
names of the undersigned officers and directors in the capacities indicated
below to this Registration Statement, to any and all amendments, both
pre-effective and post-effective, and supplements to this Registration
Statement, and to any and all instruments or documents filed as part of or in
conjunction with this Registration Statement or amendments or supplements
thereof, and each of the undersigned hereby ratifies and confirms all that said
attorneys and agents, or any of them, shall do or cause to be done by virtue
hereof. This Power of Attorney may be signed in several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURES AND TITLES DATE
<S> <C>
/s/
- -----------------------------------
Terry L. Cochran May 21, 1999
President, Chief Executive Officer and Director
/s/
- -----------------------------------
Neal T. McLaughlin May 21, 1999
Chief Financial Officer
/s/
- -----------------------------------
Robert R. L. Bailey, Director May 21, 1999
/s/
- -----------------------------------
Charles F. Beardsley, Director May 21, 1999
/s/
- -----------------------------------
William A. Booth, Director May 21, 1999
/s/
- -----------------------------------
Dennis Carver May 21, 1999
</TABLE>
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<TABLE>
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/s/
- -----------------------------------
Jane F. Lee, Director May 21, 1999
/s/
- -----------------------------------
Don T. Mitchell, Director and Chairman May 21, 1999
/s/
- -----------------------------------
Jean S. McKinney, Director May 21, 1999
/s/
- -----------------------------------
James B. Roberson, Director May 21, 1999
</TABLE>
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Exhibit Index
<TABLE>
<CAPTION>
Exhibit Number Exhibit
<S> <C>
5 Opinion of Bennett H. Goldstein, Esq.
23.1 Consent of Moss Adams LLP, Independent Auditors.
23.2 Consent of Bennett H. Goldstein - contained in Exhibit 5.
24 Power of attorney - included in the signature page of this Registration
Statement.
99.1 Columbia Bancorp 1999 Stock Incentive Plan.
</TABLE>
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Exhibit 5
LEGAL OPINION AND CONSENT
May 19, 1999
Columbia Bancorp
P.O. Box 1050
The Dalles, Oregon 97058
RE: COLUMBIA BANCORP - FORM S-8 REGISTRATION STATEMENT
To Columbia Bancorp:
I have served as counsel to Columbia Bancorp (the "Company") in
connection with the Registration Statement of the Company on Form S-8 (the
"Registration Statement") under the Securities Act of 1933, as amended, for the
registration of 318,597 shares of common stock, no par value, of the Company
(the "Shares"). The Shares are to be issued under and pursuant to the Company's
1999 Stock Incentive Plan (the "Plan").
In connection with the Registration Statement, I advise you that,
in my opinion, when the Shares have been issued and sold pursuant to the
provisions of the Plan, and in accordance with the Registration Statement, the
Shares will be duly authorized, validly issued, fully paid and non-assessable.
I hereby consent to the filing of this opinion letter as an
Exhibit to the Registration Statement.
Very truly yours,
/s/
-----------------------------
Bennett H. Goldstein
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Exhibit 23.1
May 21, 1999
Columbia Bancorp
P.O. Box 1050
The Dalles, Oregon 97058
RE: COLUMBIA BANCORP - FORM S-8 REGISTRATION STATEMENT
To Columbia Bancorp:
We consent to the incorporation by reference in this Registration
Statement of Columbia Bancorp on Form S-8 of the audited financial statements
for the years ended December 31, 1998, December 31, 1997 and December 31, 1996
incorporated by reference in the Annual Report on Form 10-K of Columbia Bancorp
for the year ended December 31, 1998.
/s/
---------------------------
Moss Adams LLP
<PAGE> 1
Exhibit 99.1
COLUMBIA BANCORP 1999 STOCK INCENTIVE PLAN
1. Purpose. The purpose of this 1999 Stock Incentive Plan (the "Plan")
is to enable Columbia Bancorp (the "Company") and its subsidiaries to attract
and retain experienced and able directors, officers, employees and other key
contributors and to provide an additional incentive to these individuals to
exert their best efforts for the Company, its subsidiaries and its shareholders.
2. Administration.
2.1 Board of Directors. The Plan shall be administered by the
board of directors of the Company (the "Board of Directors"), which shall
determine and designate from time to time the persons to whom grants and awards
shall be made and the amounts, terms and conditions of such grants and awards.
Subject to the provisions of the Plan, the Board of Directors may from time to
time adopt or amend rules and regulations relating to administration of the
Plan, and the interpretation and construction of the provisions of the Plan by
the Board of Directors shall be final and conclusive. Whenever the operation of
the Plan requires that the fair market value of the Company's common stock (the
"Stock") be determined, the fair market value shall be the closing price of the
Stock as quoted on the Nasdaq National Market on the date of the grant or award,
or on the next business day if the date of the grant or award is a holiday. No
employee who receives an option or other grant or award under the Plan shall
participate in the decision of the Board of Directors with respect to the grant
or award to that employee.
2.2 Committee. The Board of Directors may delegate to a committee
of the Board of Directors (the "Committee") any or all authority for
administration of the Plan. If authority is delegated to a Committee, all
references to the Board of Directors in the Plan shall mean and relate to the
Committee except (i) as otherwise provided by the Board of Directors and (ii)
that only the Board of Directors may amend or terminate the Plan as provided
elsewhere herein.
3. Eligibility. Grants and awards may be made under the Plan to
directors, officers and key employees of the Company or any parent or subsidiary
of the Company, and other key individuals such as consultants to the Company who
the Board of Directors believes have made or will make an essential contribution
to the Company; provided, however, that only employees of the Company or its
parent or subsidiary corporations shall be eligible to receive Incentive Stock
Options under the Plan.
<PAGE> 2
4. Shares Subject to the Plan. Only common stock may be issued under the
Plan. The total number of shares of Stock that may be issued upon the exercise
of all options or pursuant to grants of rights or stock bonuses under the Plan
shall at no time exceed in the aggregate four percent (4%) of the Company's
total issued and outstanding shares of Stock. If any option under the Plan or
stock appreciation right granted without a related option expires or is canceled
or terminated and is unexercised in whole or in part, the shares allocable to
the unexercised portion shall again become available for awards under the Plan,
except that shares that are issued on exercise of a stock appreciation right
that were allocable to an option, or portion thereof, surrendered in connection
with the exercise of the stock appreciation right shall not again become
available for awards under the Plan. If Stock awarded as a bonus under the Plan
is forfeited or repurchased pursuant to applicable restrictions, the number of
shares forfeited or purchased shall again be available under the Plan. Stock
issued under the Plan may be subject to such restrictions on transfer,
repurchase rights, or other restrictions as are determined by the Board of
Directors. Any certificates representing such Stock shall bear such legends as
are determined by the Board of Directors.
5. Effective Date and Duration of Plan.
5.1 Effective Date. The Plan was adopted by a majority vote of
the Board of Directors on February 19, 1999 subject to shareholder approval, and
shall become effective (the "Effective Date") on the date when the Plan is
approved by a vote of a simple majority of the shareholders of the Company
entitled to vote on the matter. The approval of the Plan shall be submitted to
shareholders for a vote at the 1999 Annual Meeting of the Company. Options and
stock appreciation rights may be granted and Stock may be awarded as bonuses
under the Plan at any time after the Effective Date and before termination of
the Plan.
5.2 Duration of the Plan. The Plan shall continue until, in the
aggregate, options and stock appreciation rights have been granted and exercised
and Stock has been awarded as bonuses and the restrictions on any such Stock
have lapsed with respect to all shares subject to the Plan under paragraph 4
(subject to any adjustments under paragraph 9). The Board of Directors may
suspend or terminate the Plan at any time except with respect to options, stock
appreciation rights and bonus rights, and Stock subject to restrictions then
outstanding under the Plan. Termination shall not affect any right of the
Company to repurchase shares or the forfeitability of shares issued under the
Plan.
6. Grants, Awards and Sales.
<PAGE> 3
6.1 Types of Securities. The Board of Directors may, from time to
time, take the following actions, separately or in combination, under the Plan:
(i) grant Incentive Stock Options, as defined in Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code"); (ii) grant options other than
Incentive Stock Options (hereinafter "Non-Statutory Stock Options"); (iii) grant
stock appreciation rights or bonus rights; and (iv) award bonuses of Stock. The
Board of Directors shall specify the action taken with respect to each person
granted or awarded any option or Stock under the Plan and shall specifically
designate each option granted under the Plan as an Incentive Stock Option or a
Non-Statutory Stock Option.
6.2 General Rules Relating to Options.
6.2.1 Time of Exercise. Except as provided in paragraph 8,
options granted under the Plan may be exercised over the period stated in each
option in amounts and at times prescribed by the Board of Directors and stated
in the option, provided that options shall not be exercised for fractional
shares. If the optionee does not exercise an option in any period with respect
to the full number of shares to which the optionee is entitled in that period,
the optionee's rights shall be cumulative and the optionee may purchase those
shares in any subsequent period during the term of the option.
6.2.2 Purchase of Shares. Shares may be purchased or
acquired pursuant to an option granted under the Plan only on receipt by the
Company of notice in writing from the optionee of the optionee's intention to
exercise, specifying the number of shares the optionee desires to purchase and
the date on which the optionee desires to complete the transaction, which may
not be more than 30 days after receipt of the notice. On or before the date
specified for completion of the purchase, the optionee must have paid the
Company the full purchase price in cash, including cash that may be the proceeds
of a loan from the Company, in shares of Stock previously acquired by the
optionee valued at fair market value, or in any combination of cash and shares
of Stock. No shares shall be issued until full payment therefor has been made.
Each optionee who has exercised an option shall, on notification of the amount
due, if any, and prior to or concurrently with delivery of the certificates
representing the shares for which the option was exercised, pay to the Company
amounts necessary to satisfy any applicable federal, state, and local
withholding tax requirements. If additional withholding becomes required beyond
any amount deposited before delivery of the certificates, the optionee shall pay
such amount to the Company on demand. If the employee fails to pay the amount
demanded, the Company shall have the right to withhold that amount from other
amounts payable by the Company to the optionee, including salary, subject to
applicable law.
6.3 Incentive Stock Options. Incentive Stock Options shall be
subject to the following additional terms and conditions:
<PAGE> 4
6.3.1 Limitation on Amount of Grants. No employee may be
granted Incentive Stock Options under the Plan such that the aggregate fair
market value on the date of grant of the Stock with respect to which Incentive
Stock Options are exercisable for the first time by that employee during any
calendar year, under the Plan and under any other incentive stock option plan
(within the meaning of Section 422 of the Code) of the Company or any parent or
subsidiary of the Company, exceeds $100,000.
6.3.2 Option Price. The option price per share under each
option granted under the Plan shall be determined by the Board of Directors, but
the option price with respect to an Incentive Stock Option shall be not less
than 100 percent of the fair market value of the shares covered by the option on
the date the option is granted.
6.3.3 Duration of Options. Subject to paragraphs 6.3.4 and
8, each option granted under the Plan shall continue in effect for the period
fixed by the Board of Directors, except that no Incentive Stock Option shall be
exercisable after the expiration of 10 years from the date it is granted.
6.3.4 Limitations on Grants to 10 Percent Shareholders. An
Incentive Stock Option may be granted under the Plan to an employee of the
Company, or of any parent or subsidiary of the Company, possessing more than 10
percent of the total combined voting power of all classes of stock of the
Company, or of any parent or subsidiary of the Company, only if the option price
is at least 110 percent of the fair market value of the Stock subject to the
option on the date it is granted, and the option by its terms is not exercisable
after the expiration of five years from the date it is granted.
6.3.5 Limitation on Time of Grant. No Incentive Stock
Option may be granted on or after the tenth anniversary of the Effective Date.
6.4 Non-Statutory Stock Options. Non-Statutory Stock Options
shall be subject to the following additional terms and conditions:
6.4.1 Option Price. The option price per share under each
option granted under the Plan shall be determined by the Board of Directors in
its discretion.
6.4.2 Duration of Options. Non-Statutory Stock Options
granted under the Plan shall continue in effect for the period fixed by the
Board of Directors.
6.5 Stock Bonuses. Stock awarded as a bonus shall be subject to
the terms, conditions, and restrictions determined by the Board of Directors at
the
<PAGE> 5
time the Stock is awarded as a bonus. The Board of Directors may require the
recipient to sign an agreement as a condition of the award, but may not require
the recipient to pay any money consideration except as provided in the last
sentence of this paragraph. The agreement may contain such terms, conditions,
representations, and warranties as the Board of Directors may require. The
Company may require any recipient of a Stock bonus to pay to the Company amounts
necessary to satisfy any applicable federal, state, or local tax withholding
requirements prior to delivery of certificates.
6.6 Stock Appreciation Rights.
6.6.1 Description. Each stock appreciation right shall
entitle the holder, on exercise, to receive from the Company in exchange
therefor an amount equal in value to the excess of the fair market value on the
date of exercise of one share of Stock over its fair market value on the date of
grant (or, in the case of a stock appreciation right granted in connection with
an option, the option price per share under the option to which the stock
appreciation right relates), multiplied by the number of shares covered by the
stock appreciation right or the option, or portion thereof, that is surrendered.
6.6.2 Exercise. A stock appreciation right shall be
exercisable only at the time or times established by the Board of Directors. If
a stock appreciation right is granted in connection with an option, then it
shall be exercisable only to the extent and on the same conditions that the
related option is exercisable. Upon exercise of a stock appreciation right, any
option or portion thereof to which the stock appreciation right relates must be
surrendered unexercised.
6.6.3 Payment. Payment by the Company upon exercise of a
stock appreciation right may be made in shares of Stock valued at fair market
value, or in cash, or partly in Stock and partly in cash, as determined by the
Board of Directors. No fractional shares shall be issued upon exercise of a
stock appreciation right. In lieu thereof, cash may be paid in an amount equal
to the value of the fraction or, in the discretion of the Board of Directors,
the number of shares may be rounded to the next whole share.
6.6.4 Adjustment. In the event of any adjustment pursuant
to paragraph 9 in the number of shares of Stock subject to an option granted
under the Plan, any stock appreciation right granted hereunder in connection
with such option shall be proportionately adjusted.
6.7 Cash Bonus Rights.
6.7.1 Grant. The Board of Directors may grant bonus rights
under the Plan in connection with: (i) an option or stock appreciation right
granted or previously granted, and (ii) Stock awarded, or previously awarded, as
a bonus.
<PAGE> 6
Bonus rights will be subject to such rules, terms, and conditions as the Board
of Directors may prescribe.
6.7.2 Bonus Rights in Connection with Options and Stock
Appreciation Rights. A bonus right granted in connection with an option will
entitle an optionee to a cash bonus when the related option is exercised (or is
surrendered in connection with the exercise of a stock appreciation right
related to the option) in whole or in part. A bonus right granted in connection
with a stock appreciation right will entitle the holder to a cash bonus when the
stock appreciation right is exercised. Upon exercise of an option, the amount of
the bonus shall be determined by multiplying the excess of the total fair market
value of the shares to be acquired upon the exercise over the total option price
for the shares by the applicable bonus percentage. Upon exercise of a stock
appreciation right, the bonus shall be determined by multiplying the total fair
market value of the shares or cash received pursuant to the exercise of the
stock appreciation right by the applicable bonus percentage. The bonus
percentage applicable to a bonus right shall be determined from time to time by
the Board of Directors but shall in no event exceed 100 percent.
6.7.3 Bonus Rights in Connection with Stock Bonus. A bonus
right granted in connection with Stock awarded as a bonus will entitle the
person awarded such Stock to a cash bonus either at the time the Stock is
awarded or at such time as restrictions, if any, to which the Stock is subject
lapse. If Stock awarded is subject to restrictions and is forfeited by the
holder, the bonus right granted in connection with such Stock shall terminate
and may not be exercised. The amount of cash bonus to be awarded and the time
such cash bonus is to be paid shall be determined from time to time by the Board
of Directors.
6.7.4 Bonus Rights in Connection with Stock Purchase. A
bonus right granted in connection with Stock purchased hereunder (excluding
Stock purchased pursuant to an option) shall terminate and may not be exercised
in the event the Stock is repurchased by the Company or forfeited by the holder
pursuant to restrictions applicable to the Stock. The amount of cash bonus to be
awarded and the time such cash bonus is to be paid shall be determined from time
to time by the Board of Directors.
7. Nontransferability. Each option, stock appreciation right, or cash
bonus right granted under the Plan by its terms shall be nonassignable and
nontransferable by the holder except by will or by the laws of descent and
distribution of the state or country of the holder's domicile at the time of
death, and each option, stock appreciation right, or cash bonus right by its
terms shall be exercisable during the holder's lifetime only by the holder.
<PAGE> 7
8. Termination of Employment.
8.1 Retirement or General Termination. Unless otherwise
determined by the Board of Directors, if an employee's employment by the Company
or by any parent or subsidiary of the Company is terminated by retirement or for
any reason other than in the circumstances specified in 8.2 below, any option,
stock appreciation right or cash bonus right held by the employee may be
exercised at any time prior to its expiration date or the expiration of three
months after the date of the termination, whichever is the shorter period, but
only if and to the extent the employee was entitled to exercise the option,
stock appreciation right or cash bonus right on the date of termination. The
transfer of an employee by the Company or any parent or subsidiary of the
Company to the Company or any parent or subsidiary of the Company shall not be
considered a termination for purposes of the Plan.
8.2 Death or Disability. Unless otherwise determined by the Board
of Directors, if an employee's employment by the Company or by any parent or
subsidiary of the Company is terminated because of death or physical disability
(within the meaning of Section 22(e)(3) of the Code), any option, stock
appreciation right or cash bonus right held by the employee may be exercised at
any time prior to its expiration date or the expiration of one year after the
date of termination, whichever is the shorter period, for the greater of (a),the
number of remaining shares for which the employee was entitled to exercise the
option, stock appreciation right or cash bonus right on the date of termination
or (b) the number of remaining shares for which the employee would have been
entitled to exercise the option, stock appreciation right or cash bonus right if
such option or right had been 50 percent exercisable on the date of termination.
If an employee's employment is terminated by death, any option, stock
appreciation right or cash bonus right held by the employee shall be exercisable
only by the person or persons to whom the employee's rights under the option,
stock appreciation right or cash bonus right pass by the employee's will or by
the laws of descent and distribution of the state or country of the employee's
domicile at the time of death.
8.3 Termination of Unexercised Rights. To the extent an option,
stock appreciation right or cash bonus right held by any deceased employee or by
any employee whose employment is terminated is not exercised within the limited
periods provided above, all further rights to exercise the option, stock
appreciation right or cash bonus right shall terminate at the expiration of such
periods.
8.4 Termination of Non-Employees. With respect to options, stock
appreciation rights and cash bonus rights granted to persons who are not
employees of the Company or its parents or subsidiaries, the Board of Directors
<PAGE> 8
may establish provisions relating to the termination of those persons' status
with the Company or its parents or subsidiaries.
9. Changes in Capital Structure. If the outstanding shares of Stock are
increased or decreased or changed into or exchanged for a different number or
kind of shares or other securities of the Company or of another corporation, by
reason of any reorganization, merger, consolidation, plan of exchange,
recapitalization, reclassification, stock split-up, combination of shares, or
dividend payable in shares, appropriate adjustment shall be made by the Board of
Directors in the number and kind of shares for the purchase of which options or
stock appreciation rights may be granted and for which Stock may be awarded as
bonuses subject to restrictions under the Plan. In addition, the Board of
Directors shall make appropriate adjustments in the number and kind of shares as
to which outstanding options, or portions thereof then unexercised, shall be
exercisable, and the number and kind of shares covered by outstanding stock
appreciation rights to the end that each optionee's proportionate interest shall
be maintained as before the occurrence of such event. Adjustments in outstanding
options shall be made without change in the total price applicable to the
unexercised portion of any option and with a corresponding adjustment in the
option price per share. Adjustments in outstanding stock appreciation rights
shall be made without change in their total value. Any such adjustment made by
the Board of Directors shall be conclusive. In the event of dissolution or
liquidation of the Company or a merger, consolidation, or plan of exchange
affecting the Company, in lieu of making adjustments as provided for above in
this paragraph 9, the Board of Directors may, in its sole discretion, provide a
30-day period prior to such event during which optionees shall have the right to
exercise options or stock appreciation rights.
10. Corporate Mergers, Acquisitions, Etc. The Board of Directors may
grant options and stock appreciation rights having terms and provisions which
vary from those specified in this Plan provided that any options and stock
appreciation rights granted pursuant to this section are granted in substitution
for, or in connection with the assumption of, existing options and stock
appreciation rights granted by another corporation and assumed or otherwise
agreed to be provided for by the Company pursuant to or by reason of a
transaction involving a corporate merger, consolidation, acquisition of property
or stock, separation, reorganization or liquidation to which the Company or a
parent or subsidiary is a party.
11. Amendment of Plan. The Board of Directors may amend the Plan in such
respects as it deems advisable because of changes in the law while the Plan is
in effect or for any other reason. Such amendments may include, without
limitation, an increase in the total number of shares that may be issued under
the Plan, and changes to the classes of persons eligible to receive awards or
grants under the Plan. No amendment to the Plan shall be made without
shareholder
<PAGE> 9
approval if such approval is necessary to comply with any regulatory
requirement, or if the Board of Directors deems the submission of the amendment
to shareholders for approval is desirable or appropriate. Without limitation of
the foregoing, shareholder approval shall be required for any amendment
increasing the total number of shares that may be issued under the Plan. Except
as may be required by applicable law, no amendment to the Plan shall affect or
change an option or stock appreciation right granted to any person prior to such
amendment without the written consent of such person.
12. Prior Plans. The Plan supersedes and replaces any prior plans of the
Company permitting or relating to the award of stock options, the grant of stock
bonuses, or the issuance of any other kinds of stock-based incentive
compensation described in the Plan; provided, that the adoption and approval of
the Plan shall not affect grants and awards made under any such prior plans or
the rights of recipients of such grants and awards, all of which such prior
grants and awards shall be and are deemed affirmed and ratified.
13. Approvals. The obligations of the Company under the Plan may be
subject to the approval of state and federal authorities or agencies with
jurisdiction in the matter. The Company will use its best efforts to take steps
required by state or federal law or applicable regulations in connection with
the granting of any option or the issuance or sale of any shares under the Plan.
The foregoing notwithstanding, the Company shall not be obligated to issue or
deliver shares of Stock under the Plan if the Company is advised by its legal
counsel that such issuance or delivery would violate applicable state or federal
laws.
14. Employment Rights. Nothing in the Plan or any grant or award made
pursuant to the Plan shall confer on any employee any right to be continued in
the employment of the Company or any parent or subsidiary of the Company, or
shall interfere in any way with the right of the Company or any parent or
subsidiary of the Company by whom such employee is employed to terminate such
employee's employment at any time, with or without cause.
15. Rights as a Shareholder. A holder of an option or a stock
appreciation right or a recipient of Stock awarded as a bonus shall have no
rights as a shareholder with respect to any shares covered by any option, stock
appreciation right, or bonus award until the date of issue of a stock
certificate to him or her for such shares. Except as otherwise provided in the
Plan, no adjustment shall be made for dividends or other rights for which the
record date is prior to the date such stock certificate is issued.
Date of Adoption by Board of Directors: February 19, 1999.
Shareholder Approval Date: April 16, 1999.
