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EXHIBIT (d)(1)
LANTE CORPORATION
AMENDED AND RESTATED 1998 STOCK OPTION PLAN
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1. Purpose
The purpose of the Plan is to reward and motivate Employees, Directors and
Advisors to put forth maximum efforts toward the continued growth, profitability
and success of the Company and its Subsidiaries by providing incentives to such
persons through the ownership of Common Stock. Toward this objective, the
Committee may grant Options to Employees, Directors and Advisors on the terms
and subject to the conditions set forth in the Plan. The Plan was originally
adopted effective June 1, 1998 and is amended and restated as of January 26,
2000, subject to the approval by the Company's stockholders within twelve (12)
months after such adoption date. Unless the Plan is discontinued earlier by the
Board as provided herein, no Option shall be granted hereunder on or after the
date ten (10) years after the Effective Date.
2. Definitions
As used in this Plan, the following definitions shall apply:
2.1. "Advisor" means any advisor or consultant who renders bona fide
services to the Company or a Subsidiary.
2.2. "Board" means the Board of Directors of the Company.
2.3. "Code" means the Internal Revenue Code of 1986, as amended from time
to time.
2.4. "Commission" means the Securities and Exchange Commission or any
successor agency.
2.5. "Committee" means the Board, or a committee of Directors, Employees,
shareholders or Advisors designated by the Board, which is authorized
to administer the Plan under paragraph 3 hereof. With respect to
Options granted at the time the Company is publicly held, if any,
insofar as the Committee is responsible for granting Options to
Participants hereunder, it shall consist solely of two (2) or more
directors, each of whom is a "Non-Employee Director" within the
meaning of Rule 16b-3 as promulgated under the Exchange Act and each
of whom is also an "outside director" under Section 162(m) of the
Code.
2.6. "Common Stock" means shares of common stock of the Company.
2.7. "Company" means Lante Corporation, a Delaware corporation, and any
successor entity.
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2.8. "Director" means a member of the Board.
2.9. "Disability" means the inability of a Participant to perform his
normal duties as a full time Employee, or as a Director or Advisor,
for a continuous period of ninety (90) days by reason of physical or
mental illness or incapacity. If there is any dispute as to whether
the termination of the Participant's employment or service was due to
his physical or mental illness or incapacity, such question shall be
submitted to a licensed physician for the purpose of making such
determination. An examination of the Participant shall be made within
thirty (30) days after written notice by the Committee or the
Participant by a licensed physician selected by the Committee. The
Participant shall submit to such examination and provide such
information as such physician may request and the determination of
such physician as to the question of the Participant's physical or
mental condition shall be binding and conclusive on all parties
concerned for purposes of this Plan. The disability shall be deemed
to be continuing unless the Participant performs his regular duties
as an Employee, Director or Advisor for a continuous period of ninety
(90) days.
2.10. "Effective Date" means January 26, 2000.
2.11. "Employee" means an employee of the Company or a Subsidiary.
2.12. "Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor thereto.
2.13. "Fair Market Value" means, as of any given date, the fair market
value of the Stock as determined by the Committee or under procedures
established by the Committee. Unless otherwise determined by the
Committee, the Fair Market Value per share shall be the closing sales
price per share of the Common Stock on Nasdaq (or the principal stock
exchange or market on which the Common Stock is then traded) on the
date as of which such value is being determined or the last previous
day on which a sale was reported.
2.14. "Incentive Stock Option" means any Option intended to be and
designated as an "incentive stock option" within the meaning of
Section 422 of the Code.
2.15. "Nasdaq" means The Nasdaq Stock Market, including the Nasdaq National
Market and the Nasdaq SmallCap Market.
2.16. "Non-Employee Director" means a Director who is not an officer or
employee of the Company.
2.17. "Non-Qualified Stock Option" means any Option that is not an
Incentive Stock Option.
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2.18. "Option" means any form of stock option granted under the Plan to a
Participant by the Committee pursuant to the terms, conditions,
restrictions and/or limitations, if any, as the Committee may
establish.
2.19. "Participant" means any individual to whom an Option has been granted
by the Committee under this Plan.
2.20. "Plan" means the Lante Corporation 1998 Stock Option Plan, as amended
and restated herein and as further amended from time to time.
2.21. "Representative" (i) the person or entity acting as the executor or
administrator of a Participant's estate pursuant to the last will and
testament of a Participant or pursuant to the laws of the
jurisdiction in which the Participant had his or her primary
residence at the date of the Participant's death; (ii) the person or
entity acting as the guardian or temporary guardian of a Participant;
(iii) the person or entity which is the beneficiary of the
Participant upon or following the Participant's death; or (iv) any
person to whom an Option has been transferred with the permission of
the Committee or by operation of law; provided that only one of the
foregoing shall be the Representative at any point in time as
determined under applicable law and recognized by the Committee.
2.22. "Subsidiary" means any company during any period in which it is a
"subsidiary corporation" (as such term is defined in Section 424(f)
of the Code) with respect to the Company.
2.23. "Tebbe Family" means Mark A. Tebbe, his spouse, heirs and any group
(within the meaning of Section 13(d)(3) of the Exchange Act) of which
any of the foregoing persons is a member for purposes of holding,
acquiring or disposing of securities of the Company, any trust
established by or for the benefit of any of the foregoing and any
other entity controlled by or for the benefit of any of the
foregoing.
2.24. "Ten Percent Holder" means an individual who owns, or is deemed to
own, stock possessing more than 10% of the total combined voting
power of all classes of stock of the Company or of any parent or
subsidiary corporation of the Company, determined pursuant to the
rules applicable to Section 422(b)(6) of the Code.
In addition, certain other terms used herein have the definitions given to them
in the first places in which they are used.
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3. Administration
The Plan shall be administered by the Committee. The Committee shall have
the authority to: (a) interpret the Plan; (b) establish such rules and
regulations as it deems necessary for the proper operations and administration
of the Plan; (c) select Employees, Directors and Advisors to receive Options
under the Plan; (d) determine the form of an Option, the number of shares
subject to the Option, all the terms, conditions, restrictions and/or
limitations, if any, of an Option, including the time and conditions of exercise
or vesting; (e) grant waivers of Plan terms, conditions, restrictions, and
limitations; (f) accelerate the vesting or exercise of an Option; (g) amend or
terminate an Option or this Plan in accordance with the terms hereof; and (h)
take any and all other action it deems necessary or advisable for the proper
operation or administration of the Plan. All determinations of the Committee
shall be made by a majority of its members, and its determinations shall be
final, binding and conclusive. The Committee, in its discretion, may delegate
its authority and duties under the Plan to any of the Company's Directors,
Employees, shareholders or Advisors under such conditions or limitations as the
Committee may establish.
4. Eligibility
Any Employee, Director or Advisor is eligible to become a Participant of
the Plan.
5. Shares Available
The maximum number of shares of Common Stock which shall be available for
grant of Options under the Plan shall not exceed 15,000,000 (such amount being
subject to adjustment as provided in paragraph 10). Any shares of Common Stock
related to Options which (a) terminate by expiration, forfeiture, cancellation
or otherwise without the issuance of such shares, or (b) are settled in cash in
lieu of Common Stock shall be available again for grant under the Plan.
Subject to adjustment as provided in this Section 5, the maximum number of
shares that may be covered by Options, in the aggregate, granted to any one
Participant during any calendar year shall be 2,000,000 shares.
6. Participation
The Committee shall select, from time to time, Participants from those
Employees, Directors and Advisors who, in the opinion of the Committee, can
further the Plan's purposes. Once a Participant is so selected, the Committee
shall determine the terms, conditions, restrictions and/or limitations, if any,
applicable to the Options in addition to those set forth in this Plan and the
administrative rules and regulations issued by the Committee.
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7. Stock Options
(a) Grants. Options shall be Non-Qualified Stock Options or Incentive
Stock Options, as determined by the Committee in its sole discretion, subject to
the limitations set forth herein. Incentive Stock Options may be granted only to
employees of the Company and its Subsidiaries. To the extent that any Option is
not designated as an Incentive Stock Option or, even if so designated, does not
qualify as an Incentive Stock Option, it shall constitute a Non-Qualified Stock
Option. Incentive Stock Options may be granted only within 10 years from the
date the Plan is adopted, or the date the Plan is approved by the Company's
stockholders, whichever is earlier. An option agreement shall indicate on its
face whether it is intended to be an agreement for an Incentive Stock Option or
a Non-Qualified Stock Option.
(b) Anything in the Plan to the contrary notwithstanding, no term of the
Plan relating to Incentive Stock Options shall be interpreted, amended or
altered, nor shall any discretion or authority granted under the Plan be
exercised, so as to disqualify the Plan under Section 422 of the Code or,
without the consent of the Participant affected, to disqualify any Incentive
Stock Option under Section 422 of the Code.
(c) Terms and Conditions of Options. An Option shall be exercisable in
whole or in such installments and at such times as may be determined by the
Committee. The price at which a share of Common Stock may be purchased upon
exercise of an Option shall be established by the Committee. However, no
Incentive Stock Option shall be exercisable more than ten (10) years (or five
years in the case of an individual who is a Ten Percent Holder) after the date
the Incentive Stock Option is granted.
(d) Additional Terms and Conditions. The Committee may establish such
other terms, conditions, restrictions and/or limitations, if any, of any Option,
including conditioning an Option upon the Participant's execution of a
shareholders agreement, provided they are not inconsistent with the Plan.
(e) Exercise Payment. The option price of any Option shall be paid in
full in cash (by certified or bank check or such other instrument as the Company
may accept) or, unless otherwise provided in the applicable option agreement, by
one or more of the following: (i) in the form of Common Stock already owned by
the Participant for a period of at least six months based in any such instance
on the Fair Market Value of the Common Stock on the date the Option is
exercised; (ii) by certifying to the satisfaction of the Committee ownership of
shares of Common Stock owned by the Participant for a period of at least six
months for later delivery to the Company as specified by the Company; (iii) by
irrevocably authorizing a third party to sell shares of Common Stock (or a
sufficient portion of the shares) acquired upon exercise of the Option and remit
to the Company a sufficient portion of the sale proceeds to pay the entire
exercise price and any tax withholding resulting from such exercise; or (iv) by
any combination of cash and/or any one or more of the methods specified in
clauses (i), (ii) and (iii). Notwithstanding the foregoing, a form of payment
shall not be permitted to the
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extent it would cause the Company to recognize a compensation expense (or
additional compensation expense) with respect to the Option for financial
reporting purposes.
(f) If the Option is intended to qualify as an Incentive Stock Option, the
exercise price per share shall be not less than the Fair Market Value per
share on the date the Option is granted, or if granted to an individual who
is a Ten Percent Holder, not less than 110% of such Fair Market Value per
share.
(g) Early Exercise. The Committee may permit a Director or Advisor to exercise
an Option, on terms acceptable to the Committee, prior to vesting of the
Option and/or prior to the lapse of restrictions on the exercisability of
the Option; provided, however, the stock so issuable in respect thereof
shall remain subject to such vesting requirements and/or restrictions and
shall be forfeited if the stock does not vest or if the restrictions do not
lapse; provided, further, such early exercise of Options will generally
only be permitted by the Committee (a) at the time of the grant of the
Option or if the Company will not otherwise be required to recognize a
compensation expense for financial reporting purposes as a result of such
early exercise and (b) the Director or Advisor commits to make an election
under Section 83(b) of the Code within 30 days of exercise of the Option.
(h) Transferability of Options. An Incentive Stock Option shall not be
transferable except by will or the laws of descent and distribution. An
Option shall be exercisable, during the Participant's lifetime, only by the
Participant or by the guardian or legal representative of the Participant,
it being understood that the terms "holder" and "Participant" include the
guardian and legal representative of the Participant named in the
applicable option agreement and any person to whom the Option is
transferred as permitted hereunder or in the applicable option agreement.
8. Nonassignability
Unless otherwise set forth in the form of Option or authorized by the
Committee, no Option shall be subject in any manner to alienation, anticipation,
sale, transfer (except by will or the laws of descent and distribution or
pursuant to a qualified domestic relations order as defined in the Code),
assignment, pledge, or encumbrance, and during the lifetime of the Participant,
only the Participant may exercise rights under the Plan. Following the death of
the Participant, such individual, trust or estate who or which by designation of
the Participant or operation of law succeeds to the rights of the Participant
under the Plan upon the Participant's death, may exercise the Participant's
rights to the extent they are exercisable under the Plan following the death of
the Participant. All beneficiary designations shall be made in such form and
subject to such limitations as may from time to time be acceptable to the
Committee and delivered to and accepted by the Committee.
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9. Adjustment Provisions
In the event of any Company stock dividend, stock split, combination or
exchange of shares, recapitalization or other change in the capital structure of
the Company, corporate separation or division of the Company (including, but not
limited to, a split-up, spin-off, split-off or distribution to Company
stockholders other than a normal cash dividend), sale by the Company of all or a
substantial portion of its assets (measured on either a stand-alone or
consolidated basis), reorganization, rights offering, partial or complete
liquidation, or any other corporate transaction, Company share offering or other
event involving the Company and having an effect similar to any of the
foregoing, the Committee may make such substitution or adjustments in the (i)
number and kind of shares that may be delivered under the Plan, (ii) number and
kind of shares subject to outstanding awards, (iii) exercise price of
outstanding Options and (iv) other characteristics or terms of the awards as it
may determine appropriate in its sole discretion to equitably reflect such
corporate transaction, share offering or other event; provided, however, that
any fractional shares resulting from such adjustment shall be eliminated by
rounding to the next lower whole number of shares with appropriate payment for
such fractional share as shall reasonably be determined by the Committee.
10. Change in Control Provisions
(a) Impact of Event.
(i) Notwithstanding any other provision of the Plan to the contrary,
in the event of a Change in Control, the Committee shall have
authority, in its sole discretion, to provide:
(A) for the full vesting of any Options outstanding as of the
date such Change in Control is determined to have occurred
and not then exercisable and vested (except to the extent
such vesting is prohibited by Section 19(e), in which case
the portion of the Option for which vesting does not occur
under this Section 10(a)(i)(A) shall vest pursuant to the
terms of the Option as if the Change in Control had not
occurred); and
(B) for the termination of all outstanding repurchase rights of
the Company with respect to any outstanding Options.
(ii) Outstanding Options shall be subject to any agreement of merger
or reorganization that effects such Change in Control, which
agreement shall provide for:
(A) The continuation of the outstanding Options by the Company,
if the Company is a surviving corporation;
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(B) The assumption of the outstanding Options by the surviving
corporation or its parent or subsidiary; or
(C) The substitution by the surviving corporation or its parent
or subsidiary of equivalent awards for the outstanding
Options.
(b) Definition of Change in Control. For purposes of the Plan, a "Change
in Control" shall be deemed to have occurred on the first to occur of
any of the following events:
(i) The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a
"Person") of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 50% or more of
either (A) the then outstanding shares of common stock of the
Company (the "Outstanding Company Common Stock") or (B) the
combined voting power of the then outstanding voting securities
of the Company entitled to vote generally in the election of
directors (the "Outstanding Company Voting Securities");
provided, however, that the following acquisitions shall not
constitute a Change of Control of the Company: (1) any
acquisition directly from the Company (excluding an acquisition
by virtue of the exercise of a conversion privilege unless the
security being so converted was itself acquired directly from the
Company), (2) any acquisition by the Company, (3) any acquisition
by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the
Company, (4) any acquisition by a lender of the Company pursuant
to a debt restructuring of the Company, (5) any acquisition by a
member or members of the Tebbe Family, or (6) any acquisition by
any Person pursuant to a transaction in which the conditions
described in clauses (A), (B) and (C) of subsection (iii) of this
Section 11(b) are satisfied; or
(ii) Individuals who, as of the Effective Date, constitute the Board
(such Board shall be hereinafter referred to as the "Incumbent
Board") cease for any reason to constitute at least a majority of
the Board; provided, however, for purposes of this Section 11(b),
that any individual becoming a member of the Board subsequent to
the date hereof, whose election, or nomination for election by
the Company's stockholders, was approved by a vote of at least a
majority of those individuals who are members of the Board and
who were also members of the Incumbent Board (or deemed to be
such pursuant to this proviso) shall be considered as though such
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individual were a member of the Incumbent Board; but excluding,
for this purpose, any such individual whose initial assumption
of office occurs as a result of either an actual or threatened
election contest (as such terms are used in Rule 14a-11 of
Regulation 14A promulgated under the Exchange Act) or other
actual or threatened solicitation of proxies or consents by or
on behalf of a Person other than the Board; or
(iii) The approval by the stockholders of the Company of a
reorganization, merger or consolidation, in each case, unless,
following such reorganization, merger or consolidation, (A)
more than fifty percent (50%) of, respectively, the then
outstanding shares of common stock of the corporation resulting
from such reorganization, merger or consolidation and the
combined voting power of the then outstanding voting securities
of such corporation entitled to vote generally in the election
of directors is then beneficially owned, directly or
indirectly, by the individuals and entities who were the
beneficial owners, respectively, of the Outstanding Company
Common Stock and Outstanding Company Voting Securities
immediately prior to such reorganization, merger or
consolidation in substantially the same proportions as their
ownership, immediately prior to such reorganization, merger or
consolidation, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be, (B)
no Person (excluding the Company, any employee benefit plan (or
related trust) of the Company or such corporation resulting
from such reorganization, merger or consolidation and any
Person beneficially owning immediately prior to such
reorganization, merger or consolidation, directly or
indirectly, twenty-five percent (25%) or more of the
Outstanding Company Common Stock or Outstanding Voting
Securities, as the case may be) beneficially owns, directly or
indirectly, twenty-five percent (25%) or more of, respectively,
the then outstanding shares of common stock of the corporation
resulting from such reorganization, merger or consolidation or
the combined voting power of the then outstanding voting
securities of such corporation entitled to vote generally in
the election of directors and (C) at least a majority of the
members of the board of directors of the corporation resulting
from such reorganization, merger or consolidation were members
of the Incumbent Board of the Company at the time of the
execution of the initial agreement providing for such
reorganization, merger or consolidation; or
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(iv) The approval by the stockholders of the Company of the sale or
other disposition of all or substantially all of the assets of
the Company, other than to a corporation, with respect to which
following such sale or other disposition, (A) more than fifty
percent (50%) of, respectively, the then outstanding shares of
common stock of such corporation and the combined voting power
of the then outstanding voting securities of such corporation
entitled to vote generally in the election of directors is then
beneficially owned, directly or indirectly, by the individuals
and entities who were the beneficial owners, respectively, of
the Outstanding Company Common Stock and Outstanding Company
Voting Securities immediately prior to such sale or other
disposition in substantially the same proportion as their
ownership, immediately prior to such sale or other disposition,
of the Outstanding Company Common Stock and Outstanding Company
Voting Securities, as the case may be, (B) no Person (excluding
the Company, any employee benefit plan (or related trust) of the
Company or such corporation and any Person beneficially owning,
immediately prior to such sale or other disposition, directly or
indirectly, twenty-five percent (25%) or more of the Outstanding
Company Common Stock or Outstanding Company Voting Securities,
as the case may be) beneficially owns, directly or indirectly,
twenty-five percent (25%) or more of, respectively, the then
outstanding shares of common stock of such corporation and the
combined voting power of the then outstanding voting securities
of such corporation entitled to vote generally in the election
of directors and (3) at least a majority of the members of the
board of directors of such corporation were members of the
Incumbent Board of the Company at the time of the execution of
the initial agreement or action of the Board providing for such
sale or other disposition of assets of the Company.
(c) Change in Control Price. For purposes of the Plan, "Change in Control
Price" means the higher of (i) the highest reported sales price,
regular way, of a share of Common Stock in any transaction reported on
the New York Stock Exchange Composite Tape or other national
securities exchange on which such shares are listed or on Nasdaq, as
applicable, during the 60-day period prior to and including the date
of a Change in Control, and (ii) if the Change in Control is the
result of a tender or exchange offer or a Corporate Transaction, the
highest price per share of Common Stock paid in such tender or
exchange offer or Corporate Transaction. To the extent that the
consideration paid in any such transaction described above consists
all or in part of securities or
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other non-cash consideration, the value of such securities or other
non-cash consideration shall be determined in the sole discretion of
the Board.
11. Withholding Taxes
The Company shall be entitled to deduct from any payment under the Plan,
regardless of the form of such payment, or from the Participant's gross pay, the
amount of all applicable income and employment taxes required by law to be
withheld with respect to the Plan or transactions in Common Stock or Options, or
may require the Participant to pay to the Company such tax prior to and as a
condition of the making of any payment or delivery under the Plan. If Common
Stock is used to satisfy tax withholding, such stock shall be valued based on
the Fair Market Value thereof when the tax withholding is required to be made.
12. Amendments to Options
The Committee may at any time unilaterally amend, any unexercised Option,
whether vested or unvested, earned or unearned, and/or substitute another Option
of the same or different type, to the extent it deems appropriate; provided,
however, that any amendment to an outstanding Option which, in the opinion of
the Committee, is materially adverse to the Participant, shall require the
Participant's consent.
13. Regulatory Approvals and Shareholders Agreement
Notwithstanding anything contained in this Plan or any Option to the
contrary, an Option shall not be exercisable, and the Company shall have no
obligation to issue or deliver certificates of Common Stock in respect thereof,
prior to (a) the obtaining of any approval from any governmental agency which
the Company shall, in its sole discretion, determine to be necessary or
advisable, (b) the completion of any registration or other qualification of the
offer and sale of the Common Stock under any state or federal law or ruling of
any governmental body which the Company shall, in its sole discretion, determine
to be necessary or advisable, and (c) execution by the Participant of a
shareholders agreement in form and substance satisfactory to the Committee.
14. No Rights to Continued Service or Grants
Participation in the Plan shall not give any Employee, Director or Advisor
any right to remain in the service of the Company or any Subsidiary. The Company
or Subsidiary reserves the right to terminate the services of any Employee,
Director or Advisor, as the case may be, at any time. Further, the adoption of
this Plan shall not be deemed to give any Employee, Director or Advisor or any
other individual any right to be selected as a Participant or to be granted an
Option.
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15. Amendment
The Board may amend, alter, or discontinue the Plan, but no amendment,
alteration or discontinuation shall be made which would adversely affect the
rights of a Participant under an Option theretofore granted without the
Participant's consent, except such an amendment (i) made to avoid an expense
charge to the Company or an Affiliate, or (ii) made to permit the Company a
deduction under the Code. No such amendment shall be made without the approval
of the Company's stockholders to the extent such approval is required by law,
agreement or the rules of any stock exchange or market on which the Common Stock
is listed.
The Committee may amend the terms of any Option theretofore granted,
prospectively or retroactively, but no such amendment shall adversely affect the
rights of the holder thereof without the holder's consent.
Notwithstanding anything in the Plan to the contrary, if any right under
this Plan would cause a transaction to be ineligible for pooling of interests
accounting that would, but for the right hereunder, be eligible for such
accounting treatment, the Committee may modify or adjust the right so that
pooling of interests accounting shall be available, including the substitution
of Common Stock having a Fair Market Value equal to the cash otherwise payable
hereunder for the right which caused the transaction to be ineligible for
pooling of interests accounting.
16. Unfunded Status of Plan
It is intended that this Plan be an "unfunded" plan for incentive and
deferred compensation. The Committee may authorize the creation of trusts or
other arrangements to meet the obligations created under this Plan to deliver
Common Stock or make payments, provided that, unless the Committee otherwise
determines, the existence of such trusts or other arrangements is consistent
with the "unfunded" status of this Plan.
17. Governing Law
The Plan, all Options, agreements and actions hereunder, shall be governed
by, and construed in accordance with, the laws of the State of Delaware (other
than its law respecting choice of law).
18. No Right, Title, or Interest in Company Assets
No Participant shall have any right in any fund or in any specific asset of
the Company by reason of being a Participant under this Plan, nor any rights as
a shareholder as a result of participation in the Plan until the date of
issuance of a stock certificate in his name. To the extent any person acquires a
right to receive payments from the Company under this Plan, such rights shall be
no greater than the rights of an unsecured creditor of the Company.
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19. Miscellaneous
(a) The Committee may require each person purchasing or receiving shares
pursuant to an Option to represent to and agree with the Company in writing that
such person is acquiring the shares without a view to the distribution thereof.
The certificates for such shares may include any legend which the Committee
deems appropriate to reflect any restrictions on transfer.
(b) All certificates for shares of Common Stock or other securities
delivered under the Plan shall be subject to such stock transfer orders and
other restrictions as the Committee may deem advisable under the rules,
regulations and other requirements of the Commission, any stock exchange or
market on which the Common Stock is then listed and any applicable Federal or
state securities law, and the Committee may cause a legend or legends to be put
on any such certificates to make appropriate reference to such restrictions.
(c) Nothing contained in the Plan shall prevent the Company from adopting
other or additional compensation arrangements for its employees.
(d) Any amounts owed to the Company by the Participant of whatever nature
may be offset by the Company from the value of any shares of Common Stock, cash
or other thing of value under this Plan or an Agreement to be transferred to the
Participant, and no shares of Common Stock, cash or other thing of value under
this Plan or an Agreement shall be transferred unless and until all disputes
between the Company and the Participant have been fully and finally resolved and
the Participant has waived all claims to such against the Company or an
Affiliate.
(e) If any payment or right accruing to a Participant under this Plan
(without the application of this Section 20), either alone or together with
other payments or rights accruing to the Participant from the Company or an
Affiliate ("Total Payments") would constitute a "parachute payment" (as defined
in Section 280G of the Code and regulations thereunder), such payment or right
shall be reduced to the largest amount or greatest right that will result in no
portion of the amount payable or right accruing under this Plan being subject to
an excise tax under Section 4999 of the Code or being disallowed as a deduction
under Section 280G of the Code; provided, however, that the foregoing shall not
apply to the extent provided otherwise in an award or in the event the
Participant is party to an agreement with the Company or an Affiliate that
explicitly provides for an alternate treatment of payments or rights that would
constitute "parachute payments." The determination of whether any reduction in
the rights or payments under this Plan is to apply shall be made by the
Committee in good faith after consultation with the Participant, and such
determination shall be conclusive and binding on the Participant. The
Participant shall cooperate in good faith with the Committee in making such
determination and providing the necessary information for this purpose. The
foregoing provisions of this Section 20 shall apply with respect to any person
only if, after reduction for any applicable Federal excise tax imposed by
Section 4999 of the Code and Federal income tax imposed by the Code, the Total
Payments accruing to such
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<PAGE>
person would be less than the amount of the Total Payments as reduced, if
applicable, under the foregoing provisions of this Plan and after reduction for
only Federal income taxes.
(f) The headings contained in this Plan are for reference purposes only
and shall not affect the meaning or interpretation of this Plan.
(g) If any provision of this Plan shall for any reason be held to be
invalid or unenforceable, such invalidity or unenforceability shall
not effect any other provision hereby, and this Plan shall be
construed as if such invalid or unenforceable provision were omitted.
(h) This Plan shall inure to the benefit of and be binding upon each
successor and assign of the Company. All obligations imposed upon a
Participant, and all rights granted to the Company hereunder, shall be
binding upon the Participant's heirs, legal representatives and
successors.
(i) This Plan and each agreement granting an Option constitute the entire
agreement with respect to the subject matter hereof and thereof,
provided that in the event of any inconsistency between this Plan and
such agreement, the terms and conditions of the Plan shall control.
(j) In the event there is an effective registration statement under the
Securities Act pursuant to which shares of Common Stock shall be
offered for sale in an underwritten offering, a Participant shall not,
during the period requested by the underwriters managing the
registered public offering, effect any public sale or distribution of
shares of Common Stock received, directly or indirectly, pursuant to
the exercise or settlement of an Option.
(k) None of the Company, an Affiliate or the Committee shall have any duty
or obligation to disclose affirmatively to a record or beneficial
holder of Common Stock or an Option, and such holder shall have no
right to be advised of, any material information regarding the Company
at any time prior to, upon or in connection with receipt or the
exercise of an Option or the Company's purchase of Common Stock or an
Option from such holder in accordance with the terms hereof.
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