As filed with the Securities and Exchange Commission on May 3, 2000
Registration No. 333-
===============================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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FRONTIER OIL CORPORATION
(Exact name of registrant as specified in its charter)
Wyoming 74-1895085
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
10000 Memorial Drive, Suite 600
Houston, Texas 77024
(Address, including zip code, of Principal Executive Offices)
Frontier Oil Corporation
Employee Stock Option Plan
(Full title of the plan)
James R. Gibbs
Frontier Oil Corporation
10000 Memorial Drive, Suite 600
Houston, Texas 77024
(713) 688-9600
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
copy to:
Christopher S. Collins
Andrews & Kurth L.L.P.
600 Travis, Suite 4200
Houston, Texas 77002
(713) 220-4200
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed
Maximum
Amount Proposed Aggregate Amount of
to be Offering Price Offering Registration
Title of Securities to be Registered registered(1) Per Share (2) Price (2) Fee
- --------------------------------------------- ---------------- ------------------ ---------------- ------------------
<S> <C> <C> <C> <C>
Common Stock, no par value 1,200,000 $6.21875 $7,462,500 $1,970
============================================= ================ ================== ================ ==================
</TABLE>
(1) Pursuant to Rule 416(a), this registration statement shall cover any
additional securities issued to prevent dilution resulting from stock
splits, stock dividends or similar transactions.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h), based upon the average of the high and low prices
per share for May 1, 2000 on the New York Stock Exchange as reported in The
Wall Street Journal on May 2, 2000.
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Frontier Oil Corporation (the "Company") hereby incorporates
by reference the following documents listed below. In addition, all documents
subsequently filed with the Securities and Exchange Commission (the
"Commission") by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of
the Securities Exchange Act of 1934 (the "Exchange Act") (prior to the filing of
a post-effective amendment which indicates that all the securities offered have
been sold or which deregisters all securities then remaining unsold) shall be
deemed to be incorporated by reference in this Registration Statement and to be
a part thereof from the date of filing of such documents.
(a) The Company's Annual Report on Form 10-K for the year ended December
31, 1999.
(b) The Company's Proxy Statement, filed with the Commission on March 27,
2000.
(c) The Company's Quarterly Report on Form 10-Q for the quarter ended March
31, 2000.
(d) The description of the Company's common stock, no par value, contained
in the Company's Registration Statement on Form 8-A, as filed with the
Commission (File No. 1-7627).
Item 4. Description of Securities.
The information required by Item 4 is not applicable to this
Registration Statement since the class of securities to be offered is registered
under Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
The information required by Item 5 is not applicable to this
Registration Statement.
Item 6. Indemnification of Officers and Directors.
Sections 17-16-850 through 17-16-859 of the Wyoming Business
Corporation Act provide that a corporation may indemnify any person who was, is
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative and whether formal or informal, by reason of the fact that he is
or was a director, officer, employee or agent of the corporation, or is or was
serving at the corporation's request as a director, officer, partner, trustee,
employee or agent of another foreign or domestic corporation, partnership, joint
venture, trust, employee benefit plan or other entity, against judgments,
settlements, penalties, fines, including an excise tax assessed with respect to
an employee benefit plan, and reasonable expenses, including counsel fees,
incurred in respect to such action, suit or proceeding if he conducted himself
in good faith and reasonably believed that his conduct was in or at least not
opposed to the corporation's best interests and, with respect to any criminal
action, suit or proceeding, he had no reasonable cause to believe his conduct
was unlawful.
Article Eight of the Company's Articles of Incorporation, as
amended, provides for the indemnification of the Company's directors, officers,
employees and agents. Specifically, said Article Eight provides in part that:
The corporation shall indemnify, in the manner and to the full
extent authorized by law (as now in effect or later amended), any
person who was, is or may be made a party to any threatened, pending or
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<PAGE>
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, including an action by or in the right
of the corporation, by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses, including attorneys' fees, actually
and reasonably incurred by him in connection with the action, suit,
proceeding or investigation, and judgments, fines and amounts paid in
settlement if he acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of the
corporation and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit, proceeding or investigation by
judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that such person did not act in good faith and in a manner
which is reasonably believed to be in or not opposed to the best
interests of the corporation and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was
unlawful.
The Company's Bylaws also contain indemnification provisions
which substantially conform to Article Eight of its Articles of Incorporation,
as amended.
The Company maintains Directors and Officers' Liability
Insurance and have entered into indemnification agreements with its directors
and certain of our officers.
Item 7. Exemption from Registration Claimed.
The information required by Item 7 is not applicable to this
Registration Statement because the class of securities to be offered is
registered under Section 12 of the Exchange Act.
Item 8. Exhibits.
Exhibit
Number Description
5.1 Opinion of Brown, Drew & Massey, LLP
23.1 Consent of Brown, Drew & Massey, LLP (included in Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP
24.1 Power of Attorney (included in signature page of this Registration
Statement)
99.1 Frontier Oil Corporation Employee Stock Option Plan
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 Securities Act of 1933;
(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
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<PAGE>
or in the aggregate, represent a fundamental change in the
information set forth in this Registration Statement;
(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 this Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
above do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained
in periodic reports filed by the Company pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, 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.
(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 offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Company's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in this Registration
Statement 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the
Company has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company 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 Company 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 Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, 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 Houston, State of Texas, on the 27th
day of April, 2000.
FRONTIER OIL CORPORATION
By: /s/ Julie H. Edwards
---------------------------------------
Julie H. Edwards
Senior Vice President--Finance and Chief
Financial Officer
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned officers
and directors of Frontier Oil Corporation (the "Company"), hereby constitutes
and appoints James R. Gibbs and Julie H. Edwards, or either of them (with full
power to each of them to act alone), his true and lawful attorney-in-fact and
agent, with full power of substitution, for him and on his behalf and in his
name, place and stead, in any and all capacities, to sign, execute and file
this Registration Statement under the Securities Act of 1933, as amended, and
any or all amendments (including, without limitation, post-effective
amendments), with all exhibits and any and all documents required to be filed
with respect thereto, with the Securities and Exchange Commission or any
regulatory authority, granting unto such attorneys-in-fact and agents, and
each of them, full power and authority to do and perform each and every act
and thing requisite and necessary to be done in and about the premises in
order to effectuate the same, as fully to all intents and purposes as he
himself might or could do, if personally present, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or
their substitute or substitutes, may lawfully do or cause to be done.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on the 27th day of April, 2000.
Signature Title
/s/ James R. Gibbs
-------------------------------------- Chairman of the Board, President,
James R. Gibbs Chief Executive Officer and Director
(Principal Executive Officer)
/s/ Julie H. Edwards
-------------------------------------- Senior Vice President--Finance and
Julie H. Edwards Chief Financial Officer
(Principal Financial Officer)
/s/ Jon D. Galvin
-------------------------------------- Vice President--Controller
Jon D. Galvin (Principal Accounting Officer)
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<PAGE>
/s/ Douglas Y. Bech Director
--------------------------------------
Douglas Y. Bech
/s/ G. Clyde Buck Director
--------------------------------------
G. Clyde Buck
/s/ Paul B. Loyd, Jr. Director
--------------------------------------
Paul B. Loyd, Jr.
/s/ James H. Lee Director
--------------------------------------
James H. Lee
/s/ Carl W. Schafer Director
--------------------------------------
Carl W. Schafer
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<PAGE>
May 3, 2000
Board of Directors
Frontier Oil Corporation
10000 Memorial Drive, Suite 600
Houston, Texas 77024
Ladies and Gentlemen:
We have acted as local counsel to Frontier Oil Corporation, a Wyoming
corporation (the "Company"), in connection with the Company's Registration
Statement on Form S-8 (the "Registration Statement") relating to the
registration under the Securities Act of 1933, as amended, of the issuance of up
to 1,200,000 shares (the "Shares") of the Company's common stock, no par value,
pursuant to the Company's Employee Stock Option Plan (the "Plan").
In connection herewith, we have examined copies of such statues,
regulations, corporate records and documents, certificates of public and
corporate officials and other agreements, contracts, documents and instruments
as we have deemed necessary as a basis for the opinion hereafter expressed. In
such examination, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals and the conformity
with the original documents of all documents submitted to us as copies. We have
also relied, to the extent we deem such reliance proper, upon information
supplied by officers and employees of the Company with respect to various
factual matters material to our opinion.
Based upon the foregoing and have due regard for such legal
considerations as we deem relevant, we are of the opinion that the Shares have
been duly authorized and reserved for issuance and, when issued in accordance
with the terms of the Plan, will be validly issued, fully paid and
nonassessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
BROWN, DREW & MASSEY, LLP
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated February 14, 2000,
incorporated by reference in Frontier Oil Corporation's Form 10-K for the year
ended December 31, 1999, and to all references to our Firm included in this
Registration Statement.
ARTHUR ANDERSEN LLP
Houston, Texas
May 3, 2000
FRONTIER OIL CORPORATION
EMPLOYEE STOCK OPTION PLAN
SECTION 1. Purpose of the Plan.
-------------------
The Frontier Oil Corporation Employee Stock Option Plan (the "Plan") is
intended to promote the interests of Frontier Oil Corporation, a Wyoming
corporation (the "Company"), by encouraging employees of the Company and its
Affiliates to acquire or increase their equity interest in the Company and to
provide a means whereby they may develop a sense of proprietorship and personal
involvement in the development and financial success of the Company, and to
encourage them to remain with and devote their best efforts to the business of
the Company thereby advancing the interests of the Company and its stockholders.
The Plan is also contemplated to enhance the ability of the Company and its
Affiliates to attract and retain the services of employees who are important to
the growth and profitability of the Company.
SECTION 2. Definitions.
-----------
As used in the Plan, the following terms shall have the meanings set
forth below:
"Affiliate" shall mean (i) any entity that, directly or through one or
more intermediaries, is controlled by the Company, (ii) any entity in which the
Company has a significant equity interest, as determined by the Committee, and
(iii) any "parent corporation" of the Company (as defined in Section 424(e) of
the Code) and any "subsidiary corporation" of any such parent (as defined in
Section 424(f) of the Code) thereof.
"Award" shall mean an Option.
"Award Agreement" shall mean any written agreement, contract, or other
instrument or document evidencing any Award, which may, but need not, be
executed or acknowledged by a Participant.
"Board" shall mean the Board of Directors of the Company.
"Change in Control" shall mean a change in control of a nature that
would be required to be disclosed in a proxy statement, governed by the rules of
the Securities and Exchange Commission as in effect on the date of this
Agreement; provided that without limitation, such a change in control shall be
deemed to have occurred upon the occurrence of any one of the following:
(a) the consummation of any transaction (including without limitation,
any merger, consolidation, tender offer, or exchange offer) the result
of which is that any individual or "person" (as such term is used in
Sections 13(d)(3) and 14(d)(2), of the Securities Exchange Act of 1934
- the "Exchange Act") is or becomes the "beneficial owner" (as such
term is defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act),
directly or indirectly, of securities of the Company representing 25%
or more of the combined voting power of the Company's then outstanding
securities,
(b) the first day during any period of 24 consecutive months,
commencing before or after the date of this Agreement that the
individuals, who at the beginning of such 24 month period were
directors of the Company for whom the Executive shall have voted, cease
for any reason to constitute at least a majority of the Board of
Directors of the Company,
(c) the sale, lease, transfer, conveyance or other disposition
(including by merger or consolidation) in one or a series of related
transactions, of all or substantially all of the assets of the Company
and its Subsidiaries, taken as a whole,
(d) the adoption of a plan relating to the liquidation or dissolution
of the Company, or
(e) the date the Company files a report or proxy statement with the SEC
stating that a change in control has or may occur pursuant to any then
existing contract or termination.
"Committee" shall mean the Compensation Committee of the Board.
"Employee" shall mean any employee of the Company or an Affiliate or
any person who has been extended an offer of employment by the Company or an
Affiliate, but shall not include any employee who is an officer of the Company
or an Affiliate.
"Fair Market Value" shall mean, with respect to Shares, the closing
sales price of a Share on the applicable date (or if there is no trading in the
Shares on such date, on the next preceding date on which there was trading) as
reported in The Wall Street Journal (or other reporting service approved by the
Committee). In the event the Shares are not publicly traded at the time a
determination of its fair market value is required to be made hereunder, the
determination of fair market value shall be made in good faith by the Committee.
"Option" shall mean an option granted under Section 6(a) of the Plan.
Options granted under the Plan shall constitute nonqualified stock options.
"Participant" shall mean any Employee granted an Award under the Plan.
"Person" shall mean individual, corporation, partnership, association,
joint-stock company, trust, unincorporated organization, government or political
subdivision thereof or other entity.
"Rule 16b-3" shall mean Rule 16b-3 promulgated by the SEC under the
Exchange Act, or any successor rule or regulation thereto as in effect from time
to time.
"SEC" shall mean the Securities and Exchange Commission, or any
successor thereto.
"Shares" or "Common Shares" or "Common Stock" shall mean the common
stock of the Company, no par value, and such other securities or property as may
become the subject of Awards under the Plan.
SECTION 3. Administration.
--------------
The Plan shall be administered by the Committee. A majority of the
Committee shall constitute a quorum, and the acts of the members of the
Committee who are present at any meeting thereof at which a quorum is present,
or acts unanimously approved by the members of the Committee in writing, shall
be the acts of the Committee. Subject to the following, the Committee, in its
sole discretion, may delegate any or all of its powers and duties under the
Plan, including the power to grant Awards under the Plan, to the Chief Executive
Officer of the Company, subject to such limitations on such delegated powers and
duties as the Committee may impose. Upon any such delegation all references in
the Plan to the "Committee", other than in Section 7, shall be deemed to include
the Chief Executive Officer. Subject to the terms of the Plan and applicable
law, and in addition to other express powers and authorizations conferred on the
Committee by the Plan, the Committee shall have full power and authority to: (i)
designate Participants; (ii) determine the number of Shares to be covered by an
Award; (iii) determine the terms and conditions of any Award; (iv) interpret and
administer the Plan and any instrument or agreement relating to an Award made
under the Plan; (v) establish, amend, suspend, or waive such rules and
regulations and appoint such agents as it shall deem appropriate for the proper
administration of the Plan; and (vi) make any other determination and take any
other action that the Committee deems necessary or desirable for the
administration of the Plan. Unless otherwise expressly provided in the Plan, all
designations, determinations, interpretations, and other decisions under or with
respect to the Plan or any Award shall be within the sole discretion of the
Committee, may be made at any time and shall be final, conclusive, and binding
upon all Persons, including the Company, any Affiliate, any Participant, any
holder or beneficiary of any Award, any stockholder and any Employee.
SECTION 4. Shares Available for Awards.
---------------------------
(a) Shares Available. Subject to the adjustment as provided in Section
4(c), the maximum number of shares of Common Stock with respect to which Awards
may be granted under the Plan shall be 1,200,000. In the event that any Award
expires, lapses, is forfeited or otherwise terminates, any shares of Common
Stock allocable to the terminated portion of such Award may again be made
subject to an Award under the Plan.
(b) Sources of Shares Deliverable Under Awards. Any Shares delivered
pursuant to an Award may consist, in whole or in
-------------------------------------------
part, of authorized and unissued Shares or of treasury Shares.
(c) Adjustments. In the event that the Committee determines that any
dividend or other distribution (whether in the form of cash, Shares, other
securities, or other property), recapitalization, stock split, reverse stock
split, reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase, or exchange of Shares or other securities of the Company, issuance
of warrants or other rights to purchase Shares or other securities of the
Company, or other similar corporate transaction or event affects the Shares such
that an adjustment is determined by the Committee to be appropriate in order to
prevent dilution or enlargement of the benefits or potential benefits intended
to be made available under the Plan, then the Committee shall, in such manner as
it may deem equitable, adjust any or all of (i) the number and type of Shares
(or other securities or property) with respect to which Awards may be granted,
(ii) the number and type of Shares (or other securities or property) subject to
outstanding Awards, and (iii) the exercise price with respect to any Award or,
if deemed appropriate, make provision for a cash payment to the holder of an
outstanding Award.
SECTION 5. Eligibility.
-----------
Any Employee shall be eligible to be designated a Participant.
SECTION 6. Awards.
------
(a) Options. Subject to the provisions of the Plan, the Committee shall
have the authority to determine the Participants to whom Options shall be
granted, the number of Shares to be covered by each Option, the purchase price
therefor and the conditions and limitations applicable to the exercise of the
Option, including the following terms and conditions and such additional terms
and conditions, as the Committee shall determine, that are not inconsistent with
the provisions of the Plan.
(i) Exercise Price. The purchase price per Share purchasable
under an Option shall be determined by the Committee at the time the
Option is granted, but shall not be less than the Fair Market Value per
Share on such grant date.
(ii) Time and Method of Exercise. The Committee shall
determine the time or times at which an Option may be exercised in
whole or in part, and the method or methods by which, and the form or
forms (which may include, without limitation, cash, check acceptable to
the Company, Shares already-owned for more than six months, a
"cashless-broker" exercise (through procedures approved by the
Company), or any combination thereof, having a Fair Market Value on the
exercise date equal to the relevant exercise price) in which payment of
the exercise price with respect thereto may be made or deemed to have
been made.
(iii) No Repricings. The Committee may not amend an Option
to lower its exercise price nor cancel an Option and
--------------
grant a replacement Option with a lower exercise price.
(iv) Term of Awards. The term of each Award shall be for such
period as may be determined by the Committee; provided, that in no
event shall the term of any Award exceed a period of 10 years from the
date of its grant.
(b) General.
-------
(i) Limits on Transfer of Awards.
----------------------------
(A) Except as provided in (B) below, no Award and no
right under any such Award may be assigned, alienated,
pledged, attached, sold or otherwise transferred or encumbered
by a Participant otherwise than by will or by the laws of
descent and distribution and any such purported assignment,
alienation, pledge, attachment, sale, transfer or encumbrance
shall be void and unenforceable against the Company or any
Affiliate.
(B) Each Award shall be exercisable only by the
Participant during the Participant's lifetime, or by the
person to whom the Participant's rights shall pass by will or
the laws of descent and distribution; however, the Committee
may provide that an Option may be transferred to immediate
family members or related family trusts, limited partnerships
or similar entities on such terms and conditions as the
Committee may establish.
(ii) Share Certificates. All certificates for Shares or other
securities of the Company or any Affiliate delivered under the Plan
pursuant to any Award or the exercise thereof shall be subject to such
stop transfer orders and other restrictions as the Committee may deem
advisable under the Plan or the rules, regulations, and other
requirements of the SEC, any stock exchange upon which such Shares or
other securities are then listed, and any applicable federal or state
laws, and the Committee may cause a legend or legends to be put on any
such certificates to make appropriate reference to such restrictions.
(iii) Consideration for Grants. Awards may be granted for no
cash consideration or for such consideration as the Committee
determines including, without limitation, such minimal cash
consideration as may be required by applicable law.
(iv) Delivery of Shares or other Securities and Payment by
Participant of Consideration. No Shares or other securities shall be
delivered pursuant to any Award until payment in full of any amount
required to be paid pursuant to the Plan or the applicable Award
Agreement (including, without limitation, any exercise price, tax
payment or tax withholding) is received by the Company. Such payment
may be made by such method or methods and in such form or forms as the
Committee shall determine, including, without limitation, cash, Shares,
other securities, other Awards or other property, withholding of
Shares, cashless exercise with simultaneous sale, or any combination
thereof; provided that the combined value, as determined by the
Committee, of all cash and cash equivalents and the Fair Market Value
of any such Shares or other property so tendered to the Company, as of
the date of such tender, is at least equal to the full amount required
to be paid pursuant to the Plan or the applicable Award Agreement to
the Company.
SECTION 7. Amendment and Termination.
-------------------------
Except to the extent prohibited by applicable law and unless otherwise
expressly provided in an Award Agreement or in the Plan:
(i) Amendments to the Plan. Except as required by applicable
law or the rules of the principal securities market on which the shares
are traded and subject to Section 7(ii) below, the Board or the
Committee may amend, alter, suspend, discontinue, or terminate the Plan
without the consent of any stockholder, Participant, other holder or
beneficiary of an Award, or other Person.
(ii) Amendments to Awards. Subject to Section 6(a)(iii), the
Committee may waive any conditions or rights under, amend any terms of,
or alter any Award theretofore granted, provided no change in any Award
shall reduce the benefit to Participant without the consent of such
Participant.
SECTION 8. Change in Control.
-----------------
Notwithstanding any other provision of this Plan to the contrary, in
the event of a Change in Control of the Company all outstanding Awards
automatically shall become fully vested immediately prior to such Change in
Control (or such earlier time as set by the Committee). Unless the Company
survives as an independent publicly traded company, all Options outstanding at
the time of the event or transaction shall terminate, except to the extent
provision is made in writing in connection with such event or transaction for
the continuation of the Plan and/or the assumption of the Options theretofore
granted, or for the substitution for such Options of new options covering the
stock of a successor entity, or the parent or subsidiary thereof, with
appropriate adjustments as to the number and kinds of shares and exercise
prices, in which event the Plan and Options theretofore granted shall continue
as fully vested Options in the manner and under the terms so provided.
SECTION 9. General Provisions.
------------------
(a) No Rights to Awards. No Employee or other Person shall have any
claim to be granted any Award, and there is no obligation for uniformity of
treatment of Employees or holders or beneficiaries of Awards. The terms and
conditions of Awards need not be the same with respect to each recipient.
(b) Withholding. The Company or any Affiliate is authorized to withhold
from any Award, from any payment due or transfer made under any Award or under
the Plan or from any compensation or other amount owing to a Participant the
amount (in cash, Shares, other securities, Shares that would otherwise be issued
pursuant to such Award, other Awards or other property) of any applicable taxes
required to be withheld by the Company in respect of an Award, its exercise, the
lapse of restrictions thereon, or any payment or transfer under an Award or
under the Plan and to take such other action as may be necessary in the opinion
of the Company to satisfy all obligations for the payment of such taxes.
(c) No Right to Employment. The grant of an Award shall not be construed
as giving a Participant the right to be retained in the employ of the Company or
any Affiliate. Further, the Company or an Affiliate may at any time dismiss a
Participant from employment, free from any liability or any claim under the
Plan, unless otherwise expressly provided in the Plan or in any Award Agreement.
(d) Governing Law. The validity, construction, and effect of the Plan
and any rules and regulations relating to the Plan shall be determined in
accordance with the laws of the State of Wyoming and applicable federal law.
(e) Severability. If any provision of the Plan or any Award is or
becomes or is deemed to be invalid, illegal, or unenforceable in any
jurisdiction or as to any Person or Award, or would disqualify the Plan or any
Award under any law deemed applicable by the Committee, such provision shall be
construed or deemed amended to conform to the applicable laws, or if it cannot
be construed or deemed amended without, in the determination of the Committee,
materially altering the intent of the Plan or the Award, such provision shall be
stricken as to such jurisdiction, Person or Award and the remainder of the Plan
and any such Award shall remain in full force and effect.
(f) Other Laws. The Committee may refuse to issue or transfer any Shares
or other consideration under an Award if, acting in its sole discretion, it
determines that the issuance of transfer or such Shares or such other
consideration might violate any applicable law or regulation, the requirements
of any securities exchange on which the Shares are then listed, or entitle the
Company to recover the same under Section 16(b) of the Exchange Act, and any
payment tendered to the Company by a Participant, other holder or beneficiary in
connection with the exercise of such Award shall be promptly refunded to the
relevant Participant, holder or beneficiary.
(g) No Trust or Fund Created. Neither the Plan nor the Award shall
create or be construed to create a trust or separate fund of any kind or a
fiduciary relationship between the Company or any Affiliate and a Participant or
any other Person. To the extent that any Person acquires a right to receive
payments from the Company or any Affiliate pursuant to an Award, such right
shall be no greater than the right of any general unsecured creditor of the
Company or any Affiliate.
(h) No Fractional Shares. No fractional Shares shall be issued or
delivered pursuant to the Plan or any Award, and the Committee shall determine
whether cash, other securities, or other property shall be paid or transferred
in lieu of any fractional Shares or whether such fractional Shares or any rights
thereto shall be canceled, terminated, or otherwise eliminated.
(i) Headings. Headings are given to the Sections and subsections of the
Plan solely as a convenience to facilitate reference. Such headings shall not be
deemed in any way material or relevant to the construction or interpretation of
the Plan or any provision thereof.
SECTION 10. Plan Term.
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The Plan shall become effective upon its adoption by the Board
and shall continue until terminated by the Board. However, unless otherwise
expressly provided in the Plan or in an applicable Award Agreement, any Award
granted prior to such termination, and the authority of the Board or the
Committee to amend, alter, adjust, suspend, discontinue, or terminate any such
Award or to waive any conditions or rights under such Award, shall extend beyond
such termination date.
