SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
December 4, 1996
AMBER RESOURCES COMPANY
(Exact name of registrant as specified in its charter)
Delaware 0-8874 84-0750506
(State of Commission (I.R.S. Employer
Incorporation) File No. Identification No.)
Suite 3310
555 17th Street
Denver, Colorado 80202
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:
(303) 293-9133
ITEM 5. OTHER EVENTS.
A. On December 4, 1996 the Registrant's Board of Directors
adopted the Amber Resources Company 1996 Incentive Plan, a copy
of which is attached hereto as Exhibit 99.1.
B. On December 4, 1996, the Registrant's Board of
Directors appointed Jerrie F. Eckelberger as a director of the
Company to serve until the next meeting of the registrant's
shareholders. Mr. Eckelberger was also appointed, along with
director Terry D. Enright, to serve as the compensation and audit
committee members and to serve as the Incentive Plan Committee
for the Amber Resources Company 1996 Incentive Plan. A brief
biography of Mr. Eckelberger is attached hereto as Exhibit 99.2.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
99.1 Amber Resources Company 1996 Incentive Plan.
99.2 Biography of Jerrie F. Eckelberger, director.
Pursuant to the requirements of the Securities and Exchange
Act of 1934, the Registrant has duly caused this report to be
signed on its behalf by the undersigned hereunto duly authorized.
AMBER RESOURCES COMPANY
(Registrant)
Date: December 4, 1996 By: S/Aleron H. Larson, Jr.
Aleron H. Larson, Jr.
Chairman/C.E.O.
INDEX TO EXHIBITS
(1) Underwriting Agreement. Not applicable.
(2) Plan of Acquisition, Reorganization, Arrangement,
Liquidation or Succession. Not applicable.
(3) (i) Articles of Incorporation. Not applicable.
(ii) Bylaws. Not applicable.
(4) Instruments Defining the Rights of Security Holders,
including Indentures. Not applicable.
(5) Opinion: re: Legality. Not applicable.
(6) Opinion: Discount on Capital Shares. Not applicable.
(7) Opinion: re: Liquidation Preference. Not Applicable.
(8) Opinion: re: Tax Matters. Not Applicable.
(9) Voting Trust Agreement. Not Applicable.
(10) Material Contracts. Not Applicable.
(11) Statement re: Computation of Per Share Earnings.
Not Applicable.
(12) Statement re: Computation of Ratios. Not Applicable.
(13) Annual Report to Security Holders, etc. Not Applicable.
(14) Material Foreign Patents. Not Applicable.
(15) Letter re: Unaudited Interim Financial Information.
Not Applicable.
(16) Letter re: Change in Certifying Accountant.
Not applicable.
(17) Letter re: Director Resignation. Not applicable.
(18) Letter re: Change in Accounting Principles. Not Applicable.
(19) Report Furnished to Security Holders. Not Applicable.
(20) Other Documents or Statements to Security Holders.
Not applicable.
(21) Subsidiaries of the Registrant. Not Applicable.
(22) Published Report Regarding Matters Submitted to Vote of
Security Holders. Not Applicable.
(23) Consents of Experts and Counsel. Not applicable.
(24) Power of Attorney. Not applicable.
(25) Statement of Eligibility of Trustee. Not Applicable.
(26) Invitations for Competitive Bids. Not Applicable.
(27) Financial Data Schedule. Not Applicable.
(99) Additional Exhibits.
99.1 Amber Resources Company 1996 Incentive Plan.
99.2 Biography of Jerrie F. Eckelberger, director.
AMBER RESOURCES COMPANY
_________________________
1996 INCENTIVE PLAN
_________________________
1. Purpose of the Plan
This Amber Resources Company ("Amber") 1996 Incentive Plan
is intended to promote the interests of the Company by providing
the employees of the Company and others, who are largely
responsible for the management, growth and protection of the
business of the Company, with incentives and rewards to encourage
them to continue to provide their services to the Company.
2. Definitions
As used in the Plan, the following definitions apply to the
terms indicated below:
(a) "Board of Directors" shall mean the Board of
Directors of Amber.
(b) "Cause," when used in connection with the
termination of a Participant's employment with the Company,
shall mean the termination of the Participant's employment
by the Company on account of (i) the willful and continued
failure by the Participant substantially to perform his
duties and obligations (other than any such failure
resulting from his incapacity due to physical or mental
illness) or (ii) the willful engaging by the Participant in
misconduct which could reasonably be expected to cause
substantial injury to the Company. For purposes of this
Section 2(b), no act, or
failure to act, on a Participant's part shall be considered
"willful" unless done, or omitted to be done, by the
Participant in bad faith and without reasonable belief that
his action or omission was in the best interests of the
Company.
(c) "Cash Bonus" shall mean an award of a bonus
payable in cash pursuant to Section 13 hereof.
(d) "Change in Control" shall mean:
(i) a change in control of Amber of a nature that
would be required to be reported in response to Item
6(e) of Schedule 14A of Regulation 14A promulgated
under the Exchange Act; or
(ii) the occurrence of any of the following
events:
(1) any Person (or persons acting as a
group) not presently owning such amount is
or becomes the "beneficial owner" (as defined
in Rule 13d-3 promulgated under the Exchange Act),
directly or indirectly, of securities of Amber
representing 35% or more of the combined voting
power of Amber's then outstanding securities;
(2) a majority of individuals who are
nominated by the Board of Directors for election
to the Board of Directors on any date, fail to be
elected to the Board of Directors as a direct or
indirect result of any proxy fight or contested
election for positions on the Board of Directors;
or
(3) the Board of Directors determines in its
sole and absolute discretion that there has been a
change in control of Amber.
(e) "Code" shall mean the Internal Revenue Code of
1986, as amended, superseded, or replaced from
time to time.
(f) "Committee" shall mean the Incentive Plan
Committee of the Board of Directors or such other
committee as the Board of Directors shall appoint
from time to time to administer the Plan.
(g) "Common Stock" shall mean Amber's common stock,
$.01 par value per share.
(h) "Company" or "Participating Company" shall mean
Amber Petroleum Corporation, a Colorado
corporation, and each of its subsidiaries and
affiliates whose participation in the
Plan has been approved by the Company and such
affiliate's or subsidiary's Board of Directors.
(i) "Disability" shall mean a Participant's inability
to engage in any substantial gainful activity by
reason of any medically determinable physical or
mental impairment which can be expected to result
in death or which has lasted or can be
expected to last for a continuous period of not
less than twelve (12) months.
(j) "Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended.
(k) the "Fair Market Value" of a share of Common Stock
with respect to any day shall be (i) the closing
sales price on the immediately preceding business
day of a share of Common Stock as reported on the
principal securities exchange on which shares of
Common Stock are then listed or admitted to
trading or (ii) if not so reported, the average of
the closing bid and ask prices on the immediately
preceding business day as reported on the National
Association of Securities Dealers Automated
Quotation System or (iii) if not so reported, as
furnished by any member of the National
Association of Securities Dealers, Inc. selected
by the Committee. In the event that the price of
a share of Common Stock shall not be so reported,
the Fair Market Value of Common Stock shall be
determined by the Committee in its absolute
discretion.
(l) "Incentive Award" shall mean an Option, LSAR,
Tandem SAR, Stand-Alone SAR, share of Phantom
Stock, Stock Bonus or Cash Bonus granted pursuant
to the terms of the Plan.
(m) "Incentive Stock Option" shall mean an Option
which is an "incentive stock option" within the
meaning of Section 422 of the Code and which is
identified as an Incentive Stock Option in the
agreement by which it is evidenced.
(n) "Issue Date" shall mean the date established by
the Committee on which certificates representing
shares of Restricted Stock shall be issued by
Amber pursuant to the terms of Section 10(d)
hereof.
(o) "LSAR" shall mean a limited stock appreciation
right which is granted pursuant to the provisions
of Section 8 hereof and which relates to an
Option. Each LSAR shall be exercisable only upon
the occurrence of a Change in Control
and only in the alternative to the exercise of its
related Option.
(p) "Non-Qualified Stock Option" shall mean an Option
which is not an Incentive Stock Option and which
is identified as a Non-Qualified Stock Option in
the agreement by which it is evidenced.
(q) "Nonemployee Director" means any person who is
elected or appointed to the Board of Directors of
the Company and who is not an employee of the
Company.
(r) "Option" shall mean an option to purchase shares
of Common Stock of Amber granted pursuant to
Section 6 hereof. Each Option shall be identified
as either an Incentive Stock Option or a
Non-Qualified Stock Option in the agreement by
which it is evidenced.
(s) "Participant" shall mean a person who is eligible
to participate in the Plan and to whom an
Incentive Award is granted pursuant to the Plan,
and, upon his death, his successors, heirs,
executors and administrators, as the case
may be.
(t) "Person" shall mean a "person," as such term is
used in Sections 13(d) and 14(d) of the Exchange
Act.
(u) "Phantom Stock" shall mean the right to receive in
cash the Fair Market Value of a share of Common
Stock of the Company, which right is granted
pursuant to Section 11 hereof and subject to the
terms and conditions contained therein.
(v) "Plan" shall mean the Amber Resources Company 1996
Incentive Plan, as it may be amended from time to
time.
(w) "Restricted Stock" shall mean a share of Common
Stock which is granted pursuant to the terms of
Section 10 hereof and which is subject to the
restrictions set forth in Section 10(c) hereof for
so long as such restrictions continue to apply to
such share.
(x) "Securities Act" shall mean the Securities Act of
1933, as amended.
(y) "Stand-Alone SAR" shall mean a stock appreciation
right granted pursuant to Section 9 hereof which
is not related to any Option.
(z) "Stock Bonus" shall mean a grant of a bonus
payable in shares of Common Stock pursuant to
Section 12 hereof.
(aa) "Subsidiary" shall mean any corporation in which
at the time of reference Amber owns, directly or
indirectly, stock comprising more than fifty
percent of the total combined voting power of all
classes of stock of such corporation.
(bb) "Tandem SAR" shall mean a stock appreciation right
granted pursuant to Section 8 hereof which is related to an
Option. Each Tandem SAR shall be exercisable only to the
extent its related Option is exercisable and only in the
alternative to the exercise of its related Option.
(cc) "Amber" shall mean Amber Resources Company, a
Delaware corporation, and its successors.
(dd) "Vesting Date" shall mean the date established by
the Committee on which a share of Restricted Stock or
Phantom Stock may vest.
3. Stock Subject to the Plan
Under the Plan, the Committee may grant to Participants (i)
Options, (ii) LSARs, (iii) Tandem SARs, (iv) Stand-Alone SARs,
(v) shares of Restricted Stock, (vi) shares of Phantom Stock,
(vii) Stock Bonuses and (viii) Cash Bonuses.
Subject to adjustment as provided in Section 14 hereof, the
Committee may grant Options, Stand-Alone SARs, shares of
Restricted Stock, shares of Phantom Stock and Stock Bonuses under
the Plan with respect to a number of shares of Common Stock that
in the aggregate does not exceed shares representing, in
aggregate, 20.0% of the Company's outstanding Common Stock (on a
fully-diluted basis) at the time of the grant of the incentive
award. The grant of an LSAR, Tandem SAR or Cash Bonus shall not
reduce the number of shares of Common Stock with respect to which
Options, Stand-Alone SARs, shares of Restricted Stock, shares of
Phantom Stock or Stock Bonuses may be granted pursuant to the
Plan.
In the event that any outstanding Option or Stand-Alone SAR
expires, terminates has been exercised or is canceled for any
reason (other than pursuant to Paragraphs 7(b)(2) or 8(b)(3)
hereof), the shares of Common Stock subject to the unexercised
portion of such Option or Stand-Alone SAR shall again be
available for grants under the Plan. In the event that an
outstanding Option is canceled pursuant to Paragraphs 7(b)(2) or
8(b)(3) hereof by reason of the exercise of an LSAR or a Tandem
SAR, the shares of Common Stock subject to the canceled portion
of such Option shall not again be available for grants under the
Plan. In the event that any shares of Restricted Stock or
Phantom Stock, or any shares of Common Stock granted in a Stock
Bonus are forfeited or canceled for any reason, such shares shall
again be available for grants under the Plan.
Shares of Common Stock issued under the Plan may be either
newly issued shares or treasury shares, at the discretion of the
Committee, and the Company hereby reserves shares representing,
in aggregate, 20.0% of the Company's Common Stock at any time (on
a fully-diluted basis) for issuance pursuant to the Plan.
4. Administration of the Plan
The Plan shall be administered as to all persons covered
thereby, except Nonemployee Directors, by a Committee of the
Board of Directors consisting of two or more Nonemployee
Directors, each of whom shall be a "disinterested person" within
the meaning of Rule 16b-3 promulgated under Section 16 of the
Exchange Act. The Plan shall be administered as to Nonemployee
Directors of the Board of Directors. The Committee shall from
time to time designate the persons who shall be granted Incentive
Awards and the amount and type of such Incentive Awards.
The Committee shall have full authority to administer the
Plan, including authority to interpret and construe any provision
of the Plan and the terms of any Incentive Award issued under it
and to adopt such rules and regulations for administering the
Plan as it may deem necessary. Decisions of the Committee shall
be final and binding on all parties.
The Committee may, in its absolute discretion (i) accelerate
the date on which any Option or Stand-Alone SAR granted under the
Plan becomes exercisable, (ii) accelerate the Vesting Date or
Issue Date, or waive any condition imposed pursuant to Section
10(b) hereof, with respect to any share of Restricted Stock
granted under the Plan and (iii) accelerate the Vesting Date or
waive any condition imposed pursuant to Section 11 hereof, with
respect to any share of Phantom Stock granted under the Plan.
In addition, the Committee may, in its absolute discretion,
grant Incentive Awards to Participants on the condition that such
Participants surrender to the Committee for cancellation such
other Incentive Awards (including, without limitation, Incentive
Awards with higher exercise prices) as the Committee specifies.
Notwithstanding Section 3 herein, prior to the surrender of such
other Incentive Awards, Incentive Awards granted pursuant to the
preceding sentence of this Section 4 shall not count against the
limits set forth in such Section 3.
Whether an authorized leave of absence, or absence in
military or government service, shall constitute termination of
employment shall be determined by the Committee.
No member of the Committee shall be liable for any action,
omission, or determination relating to the Plan, and Amber shall
indemnify and hold harmless each member of the Committee and each
other director or employee of the Company to whom any duty or
power relating to the administration or interpretation of the
Plan has been delegated against any cost or expense (including
counsel fees) or liability (including any sum paid in settlement
of a claim with the approval of the Committee) arising out of any
action, omission or determination relating to the Plan, unless,
in either case, such action, omission or determination was taken
or made by such member, director or employee in bad faith and
without reasonable belief that it was in the best interests of
the Company.
5. Eligibility
The persons who shall be eligible to receive Incentive
Awards pursuant to the Plan shall be such persons, including
employees and officers of the Company (whether or not such
officers are also directors of the Company), consultants and
advisors to the Company ("Non-Employee Participants"), who are
largely responsible for the management, growth and protection of
the business of the Company, as the Committee shall select from
time to time. Directors who are not employees ("Nonemployee
Directors") of the Company may only participate in the Plan
pursuant to Section 25 hereof.
6. Options
The Committee may grant Options pursuant to the Plan, which
Options shall be evidenced by agreements in such form as the
Committee shall from time to time approve. Options shall comply
with and be subject to the following terms and conditions:
(a) Identification of Options
All Options granted under the Plan shall be clearly
identified in the agreement evidencing such Options as
either Incentive Stock Options or as Non-Qualified Stock
Options. In the even, the options are not so identified
they will be deemed to be Non-Qualified Stock Options.
(b) Exercise Price
The exercise price of any Non-Qualified Stock Option
granted under the Plan shall be such price as the Committee
shall determine on the date on which such Non-Qualified
Stock Option is granted; provided, that such price may not
be less than the minimum price required by applicable law.
The exercise price of any Incentive Stock Option granted
under the Plan shall be not less than 100% of the Fair
Market Value of a share of Common Stock on the date on which
such Incentive Stock Option is granted.
(c) Term and Exercise of Option
(1) Each Option shall be exercisable on such date
or dates, during such period and for such number of
shares of Common Stock as shall be determined by the
Committee on the day on which such Option is granted
and set forth in the Option agreement with respect to
such Option; provided, however, that no Option shall be
exercisable after the expiration of ten years from the
date such Option was granted; and, provided, further,
that each Option shall be subject to earlier
termination, expiration or cancellation as provided in
the Plan.
(2) Each Option shall be exercisable in whole or
in part; provided, that no partial exercise of an
Option shall be for an aggregate exercise price of less
than $1,000. The partial exercise of an Option shall
not cause the expiration, termination or cancellation
of the remaining portion thereof. Upon the partial
exercise of an Option, the agreements evidencing such
Option and any related LSARs and Tandem SARs shall be
returned to the Participant exercising such Option
together with the delivery of the certificates
described in Section 6(c)(4) hereof.
(3) An Option shall be exercised by delivering
notice to Amber's principal office, to the attention of
its Secretary, no less than three business days in
advance of the effective date of the proposed exercise.
Such notice shall be accompanied by the agreements
evidencing the Option and any related LSARs and Tandem
SARs, shall specify the number of shares of Common
Stock with respect to which the Option is being
exercised and the effective date of the proposed
exercise and shall be signed by the Participant. The
Participant may withdraw such notice at any time prior
to the close of business on the business day
immediately preceding the effective date
of the proposed exercise, in which case such agreements
shall be returned to him. Payment for shares of Common
Stock purchased upon the exercise of an Option shall be
made on the effective date of such exercise either (i)
in cash, by certified check, bank cashier's check or
wire transfer or (ii) in shares of Common Stock owned
by the Participant and valued at their Fair Market
Value on the effective date of such exercise, or partly
in shares of Common Stock with the balance in cash, by
certified check, bank cashier's check or wire transfer. Any
payment in shares of Common Stock shall be effected by
the delivery of such shares to the Secretary of Amber,
duly endorsed in blank or accompanied by stock powers
duly executed in blank, together with any other
documents and evidences as the Secretary of
Amber shall require from time to time.
(4) Any Option granted under the Plan may be
exercised by a broker-dealer acting on behalf of a
Participant if (i) the broker-dealer has received from
the Participant or the Company a
fully-and-duly-endorsed
agreement evidencing such Option and instructions
signed by the Participant requesting Amber to deliver
the shares of Common Stock subject to such Option to
the broker-dealer on behalf of the Participant and
specifying the account into which such shares should be
deposited, (ii) adequate provision has been made with
respect to the payment of any withholding taxes due
upon such exercise and (iii) the broker-dealer and the
Participant have otherwise complied with Section
220.3(e)(4) of Regulation T, 12 CFR Part 220.
(5) Certificates for shares of Common Stock
purchased upon the exercise of an Option shall be
issued in the name of the Participant and delivered to
the Participant as soon as practicable following the
effective date on which the Option is exercised.
(6) Options shall be assignable and transferable
provided, however, that the Company shall not be under
an obligation as provided in 6(c) (7) below to include
the shares underlying such transferred or assigned
options in any registration statement except upon death
or pursuant to a qualified domestic relations order.
(7) The Company, at the Company's expense, shall
file and maintain a registration statement on the
appropriate form with the Securities and Exchange
Commission covering shares underlying all options
granted hereunder. The expiration date of any option
expiring prior to the effective date of a registration
statement covering said option shall be extended until
a date ninety (90) days following the effective date of
said registration statement.
(d) Limitations on Grant of Incentive Stock Options
(1) The aggregate Fair Market Value of shares of
Common Stock with respect to which "incentive stock
options" (within the meaning of Section 422 of the
Code) are exercisable for the first time by a
Participant during any calendar year under the Plan and
any other stock option plan of the Company (or any
"subsidiary" of Amber as such term is defined in
Section 425 of the Code) shall not exceed $100,000.
Such Fair Market Value shall be determined as of the
date on which each such incentive stock option is
granted. In the event that the aggregate
Fair Market Value of shares of Common Stock with
respect to such incentive stock options exceeds
$100,000, then Incentive Stock Options granted
hereunder to such
Participant shall, to the extent and in the order
required by Regulations promulgated under the Code (or
any other authority having the force of Regulations),
automatically be deemed to be Non-Qualified Stock
Options, but all other terms and provisions of such
Incentive Stock Options shall remain unchanged. In the
absence of such Regulations (and authority), or in the
event such Regulations (or authority) require or permit
a designation of the options which shall cease to
constitute incentive stock options, Incentive Stock
Options shall, to the extent of such excess and in the
order in which they were granted, automatically be
deemed to be Non-Qualified Stock Options, but all other
terms and provisions of such Incentive Stock Options
shall remain unchanged.
(2) No Incentive Stock Option may be granted to
an individual if, at the time of the proposed grant,
such individual owns stock possessing more than ten
percent of the total combined voting power of all
classes of stock of Amber or any of its "subsidiaries"
(within the meaning of Section 425 of the Code), unless
(i) the exercise price of such Incentive Stock Option
is at least one hundred and ten percent of the Fair
Market Value of a share of Common Stock at the time
such Incentive Stock Option is granted and (ii) such
Incentive Stock Option is not exercisable after the
expiration of five years from the date such Incentive
Stock Option is granted.
(e) Effect of Termination of Employment
(1) In the event that the employment of a
Participant with the Company shall terminate for any
reason Options granted to such Participant, to the
extent that they were exercisable at the time of such
termination, shall remain exercisable until the
expiration of their terms.
(2) As to Non-Employee Participants, all options
shall remain outstanding according to their initial
terms as granted regardless of whether such
Non-Employee Participant has ceased to provide service
to the Company.
(f) Acceleration of Exercise Date Upon Change in Control
Upon the occurrence of a Change in Control, each Option
granted under the Plan and outstanding at such time shall
become fully and immediately exercisable and shall remain
exercisable until its expiration, termination or
cancellation pursuant to the terms of the Plan.
7. Limited Stock Appreciation Rights
The Committee may grant in connection with any Option
granted hereunder one or more LSARs relating to a number of
shares of Common Stock equal to or less than the number of shares
of Common Stock subject to the related Option. An LSAR may be
granted at the same time as, or subsequent to the time that, its
related Option is granted. Each LSAR shall be evidenced by an
agreement in such form as the Committee shall from time to time
approve. Each LSAR granted hereunder shall be subject to the
following terms and conditions:
(a) Benefit Upon Exercise
(1) The exercise of an LSAR relating to a Non-
Qualified Stock Option with respect to any number of
shares of Common Stock shall entitle the Participant to
a cash payment, for each such share, equal to the
excess of (i) the greater of (A) the highest price per
share of Common Stock paid in the Change
in Control in connection with which such LSAR became
exercisable and (B) the Fair Market Value of a share of
Common Stock on the date of such Change in Control over
(ii) the exercise price of the related Option. Such
payment shall be paid as soon as practical, but in no
event later than the expiration of five business days,
after the effective date of such exercise.
(2) The exercise of an LSAR relating to an
Incentive Stock Option with respect to any number of
shares of Common Stock shall entitle the Participant to
a cash payment, for each such share, equal to the
excess of (i) the Fair Market Value of a share of
Common Stock on the effective date of such exercise
over (ii) the exercise price of the related Option.
Such payment shall be paid as soon as practical, but in
no event later than the expiration of five business
days, after the effective date of such exercise.
(b) Term and Exercise of LSARs
(1) An LSAR shall be exercisable only during the
period commencing on the first day following the
occurrence of a Change in Control and terminating on
the expiration of sixty days after such date.
Notwithstanding the preceding sentence of this Section
7(b), in the event that an LSAR held by any Participant
who is or may be subject to the provisions of Section
16(b) of the Exchange Act becomes exercisable prior to
the expiration of six months following the date on
which it is granted, then the LSAR shall also be
exercisable during the period commencing on the first
day immediately following the expiration of such six
month period and terminating on the expiration of sixty
days following such date. Notwithstanding anything
else herein, an LSAR relating to an Incentive Stock
Option may be exercised with respect to a share of
Common Stock only if the Fair Market Value of such
share on the effective date of such exercise exceeds
the exercise price relating to such
share. Notwithstanding anything else herein, an LSAR
may be exercised only if and to the extent that the
Option to which it relates is exercisable.
(2) The exercise of an LSAR with respect to a
number of shares of Common Stock shall cause the
immediate and automatic cancellation of the Option to
which it relates with respect to an equal number of
shares. The exercise of an Option, or the
cancellation, termination or expiration of an Option
(other than pursuant to this Paragraph (2)), with
respect to a number of shares of Common Stock, shall
cause the cancellation of the LSAR related to it with
respect to an equal number of shares.
(3) Each LSAR shall be exercisable in whole or in
part; provided, that no partial exercise of an LSAR
shall be for an aggregate exercise price of less than
$1,000. The partial exercise of an LSAR shall not
cause the expiration, termination or cancellation of
the remaining portion thereof. Upon the partial
exercise of an LSAR, the agreements evidencing the
LSAR, the related Option and any Tandem SARs related to
such Option shall be returned to the Participant
exercising such LSAR together with the payment
described in Paragraph 7(a)(1) or (2)
hereof, as applicable.
(4) Each LSAR granted shall be assignable and
transferable together with its related Option.
(5) An LSAR shall be exercised by delivering
notice to Amber's principal office, to the attention of
its Secretary, no less than three business days in
advance of the effective date of the proposed exercise.
Such notice shall be accompanied by the applicable
agreements evidencing the LSAR, the related Option and
any Tandem SARs relating to such Option, shall specify
the number of shares of Common Stock with respect to
which the LSAR is being exercised and the effective
date of the proposed
exercise and shall be signed by the Participant. The
Participant may withdraw such notice at any time prior
to the close of business on the business day
immediately preceding the effective date of the
proposed exercise, in which case such agreements shall
be returned to him.
8. Tandem Stock Appreciation Rights
The Committee may grant in connection with any Option
granted hereunder one or more Tandem SARs relating to a number of
shares of Common Stock equal to or less than the number of shares
of Common Stock subject to the related Option. A Tandem SAR may
be granted at the same time as, or subsequent to the time that,
its related Option is granted. Each Tandem SAR shall be
evidenced by an agreement in such form as the Committee shall
from time to time approve. Tandem SARs shall comply with and be
subject to the following terms and conditions:
(a) Benefit Upon Exercise
The exercise of a Tandem SAR with respect to any number
of shares of Common Stock shall entitle a Participant to a
cash payment, for each such share, equal to the excess of
(i) the Fair Market Value of a share of Common Stock on the
effective date of such exercise over (ii) the exercise price
of the related Option. Such payment shall be paid as soon
as practical, but in no event later than the expiration of
five business days, after the effective date of such
exercise.
(b) Term and Exercise of Tandem SAR
(1) A Tandem SAR shall be exercisable at the same
time and to the same extent (on a proportional basis,
with any fractional amount being rounded down to the
immediately preceding whole number) as its related
Option. Notwithstanding the first sentence of this
Paragraph 8(b)(1), (i) a Tandem SAR shall not be
exercisable at any time that an LSAR related to the
Option to which the Tandem SAR is related is
exercisable and (ii) a Tandem SAR relating to an
Incentive Stock Option may be exercised with respect to
a share of Common Stock only if the Fair Market Value
of such share on the effective date of such exercise
exceeds the exercise price relating to such share.
(2) Notwithstanding the first sentence of
Paragraph 8(b)(1) hereof, the Committee may, in its
absolute discretion, grant one or more Tandem SARs
which shall not become exercisable unless and until the
Participant to whom such Tandem SAR is granted is, in
the determination of the Committee, subject to Section
16(b) of the Exchange Act and which shall cease to be
exercisable if and at the time that the Participant
ceases, in the determination of the Committee, to be
subject to such Section 16(b).
(3) The exercise of a Tandem SAR with respect to
a number of shares of Common Stock shall cause the
immediate and automatic cancellation of its related
Option with respect to an equal number of shares. The
exercise of an Option, or the cancellation, termination
or expiration of an Option (other than pursuant to this
Paragraph (3)), with respect to a number of shares of
Common Stock shall cause the automatic and immediate
cancellation of its related Tandem SARs to the extent
that the number of shares of Common Stock subject to
such Option after such exercise, cancellation,
termination or expiration is less than the number of
shares subject to such Tandem SARs. Such Tandem SARs
shall be canceled in the order in which they became
exercisable.
(4) Each Tandem SAR shall be exercisable in whole
or in part; provided, that no partial exercise of a
Tandem SAR shall be for an aggregate exercise price of
less than $1,000. The partial exercise of a Tandem SAR
shall not cause the expiration, termination or
cancellation of the remaining portion thereof. Upon
the partial exercise of a Tandem SAR, the agreements
evidencing such Tandem SAR, its related Option and
LSARs relating to such Option shall be returned to the
Participant exercising such Tandem SAR together with
the payment described in Section 8(a) hereof.
(5) Each Tandem SAR granted shall be assignable
and transferable together with its related Option.
(6) A Tandem SAR shall be exercised by delivering
notice to Amber's principal office, to the attention of
its Secretary, no less than three business days in
advance of the effective date of the proposed exercise.
Such notice shall be accompanied by the applicable
agreements evidencing the Tandem SAR, its related
Option and any LSARs related to such Option, shall
specify the number of shares of Common Stock with
respect to which the Tandem SAR is being exercised and
the effective date of the proposed exercise and shall
be signed by the Participant. The Participant may
withdraw such notice at any time prior to the close of
business on the business
day immediately preceding the effective date of the
proposed exercise, in which case such agreements shall
be returned to him.
9. Stand-Alone Stock Appreciation Rights
The Committee may grant Stand-Alone SARs pursuant to the
Plan, which Stand-Alone SARs shall be evidenced by agreements in
such form as the Committee shall from time to time approve.
Stand-Alone SARs shall comply with and be subject to the
following terms and conditions:
(a) Exercise Price
The exercise price of any Stand-Alone SAR granted under
the Plan shall be determined by the Committee at the time of
the grant of such Stand-Alone SAR.
(b) Benefit Upon Exercise
The exercise of a Stand-Alone SAR with respect to any
number of shares of Common Stock prior to the occurrence of
a Change in Control shall entitle a Participant to a cash
payment, for each such share, equal to the excess of (i) the
Fair Market Value of a share of Common Stock on the exercise
date over (ii) the exercise price of the Stand-Alone SAR.
The exercise of a Stand-Alone SAR with respect to any number
of shares of Common Stock upon or after the occurrence of a
Change in Control shall entitle a Participant to a cash
payment, for each such share, equal to the excess of (i) the
greater of (A) the highest price per share of Common Stock
paid in connection with such Change in Control and (B) the
Fair Market Value of a share of Common Stock on the date of
such Change in Control over (ii) the exercise price of the
Stand-Alone SAR. Such payments shall be paid as soon as
practical, but in no event later than five business days,
after the effective date of the exercise.
(c) Term and Exercise of Stand-Alone SARs
(1) Each Stand-Alone SAR shall be exercisable on
such date or dates, during such period and for such
number of shares of Common Stock as shall be determined
by the Committee and set forth in the Stand-Alone SAR
agreement with respect to such Stand-Alone SAR;
provided, however, that no Stand-Alone SAR shall be
exercisable after the expiration of ten years from the
date such Stand-Alone SAR was granted; and, provided,
further, that each Stand-Alone SAR shall be subject to
earlier termination, expiration or cancellation as
provided in the Plan.
(2) Each Stand-Alone SAR may be exercised in
whole or in part; provided, that no partial exercise of
a Stand-Alone SAR shall be for an aggregate exercise
price of less than $1,000. The partial exercise of a
Stand-Alone SAR shall not cause the expiration,
termination or cancellation of the remaining portion
thereof. Upon the partial exercise of a Stand-Alone
SAR, the agreement evidencing such Stand-Alone SAR
shall be returned to the Participant exercising such
Stand-Alone SAR together with
the payment described in Section 9(b) hereof.
(3) A Stand-Alone SAR shall be exercised by
delivering notice to Amber's principal office, to the
attention of its Secretary, no less than three business
days in advance of the effective date of the proposed
exercise. Such notice shall be accompanied by the
applicable agreement evidencing the Stand-Alone SAR,
shall specify the number of shares of Common Stock with
respect to which the Stand-Alone SAR is being exercised
and the effective date of the proposed exercise and
shall be signed by the Participant. The Participant
may withdraw such notice at any time prior to the close
of business on the business day immediately preceding
the effective date of the proposed exercise, in which
case the agreement evidencing the Stand-Alone SAR shall
be returned to him.
(4) Each Stand-Alone SAR granted shall be
assignable and transferable.
(d) Effect of Termination of Employment
(1) In the event that the employment of a
Participant with the Company shall terminate for any
reason Stand-Alone SARs granted to such Participant, to
the extent that they were exercisable at the time of
such termination, shall remain exercisable until the
expiration of their term.
(2) As to Non-Employee Participants, all Stand
Alone SAR's shall remain outstanding according to their
initial terms as granted regardless of whether such
Non-Employee Participant has ceased to provide services
to the Company.
(e) Acceleration of Exercise Date Upon Change in Control
Upon the occurrence of a Change in Control, each Stand-
Alone SAR granted under the Plan and outstanding at such
time shall become fully and immediately exercisable and
shall remain exercisable until its expiration, termination
or cancellation pursuant to the terms of the Plan.
10. Restricted Stock
The Committee may grant shares of Restricted Stock pursuant
to the Plan. Each grant of shares of Restricted Stock shall be
evidenced by an agreement in such form as the Committee shall
from time to time approve. Each grant of shares of Restricted
Stock shall comply with and be subject to the following terms and
conditions:
(a) Issue Date and Vesting Date
At the time of the grant of shares of Restricted Stock,
the Committee shall establish an Issue Date or Issue Dates
and a Vesting Date or Vesting Dates with respect to such
shares. The Committee may divide such shares into classes
and assign a different Issue Date and/or Vesting Date for
each class. Except as provided in Sections 10(c) and 10(f)
hereof, upon the occurrence of the Issue Date with respect
to a share of Restricted Stock, a share of Restricted Stock
shall be issued in accordance with the provisions of Section
10(d) hereof. Provided that all conditions to the vesting of
a share of Restricted Stock imposed pursuant to Section
10(b) hereof are satisfied, and except as provided in
Sections 10(c) and 10(f) hereof, upon the occurrence of the
Vesting Date with respect to a share of Restricted Stock,
such share shall vest and the restrictions of Section 10(c)
hereof shall cease to apply to such share.
(b) Conditions to Vesting
At the time of the grant of shares of Restricted Stock,
the Committee may impose such restrictions or conditions,
not inconsistent with the provisions hereof, to the vesting
of such shares as it, in its absolute discretion deems
appropriate. By way of example and not by way of
limitation, the Committee may require, as a condition to the
vesting of any class or classes of shares of Restricted
Stock, that the Participant or the Company achieve certain
performance criteria, such criteria to be specified by the
Committee at the time of the grant of such shares.
(c) Restrictions on Transfer Prior to Vesting
Prior to the vesting of a share of Restricted Stock, no
transfer of a Participant's rights with respect to such
shares, whether voluntary or involuntary, by operation of
law or otherwise, shall vest the transferee with any
interest or right in or with respect to such share, but
immediately upon any attempt to transfer such rights, such
share, and all of the rights related thereto, shall be
forfeited by the Participant and the transfer shall be of no
force or effect.
(d) Issuance of Certificates
(1) Except as provided in Sections 10(c) or 10(f)
hereof, reasonably promptly after the Issue Date with
respect to shares of Restricted Stock, Amber shall
cause to be issued a stock certificate, registered in
the name of the Participant to whom such shares were
granted, evidencing such shares; provided, that Amber
shall not cause to be issued such a stock certificate
unless it has received a stock power duly endorsed in
blank with respect to such shares. Each such stock
certificate shall bear the following legend:
The transferability of this certificate and the
shares of stock represented hereby are subject to
the restrictions, terms and conditions (including
forfeiture and restrictions against transfer)
contained in the Amber Resources Company 1996
Incentive Plan and an Agreement entered into
between the registered owner of such shares and
Amber Resources Company. A copy of the Plan and
Agreement is on file in the office of the
Secretary of Amber Resources Company.
Such legend shall not be removed from the certificate
evidencing such shares until such shares vest pursuant
to the terms hereof.
(2) Each certificate issued pursuant to Paragraph
(10(d)(1) hereof, together with the stock powers
relating to the shares of Restricted Stock evidenced by
such certificate, shall be deposited by the Company
with a custodian designated by the Company. The
Company shall cause such custodian to issue to the
Participant a receipt evidencing the certificates held
by it which are registered in the name of the
Participant.
(e) Consequences Upon Vesting
Upon the vesting of a share of Restricted Stock
pursuant to the terms hereof, the restrictions of Section
10(c) hereof shall cease to apply to such share. Reasonably
promptly after a share of Restricted Stock vests pursuant to
the terms hereof, Amber shall cause to be issued and
delivered to the Participant to whom such shares were
granted, a certificate evidencing such share, free of the
legend set forth in Paragraph 10(d)(1) hereof, together with
any other property of the Participant held by the custodian
pursuant to Section 14(b) hereof.
(f) Effect of Termination of Employment
In the event that the employment of a Participant with
the Company shall terminate for any reason prior to the
vesting of shares of Restricted Stock granted to such
Participant, a proportion (up to 100%) of such shares, to
the extent not forfeited or canceled on or prior to such
termination pursuant to any provision hereof, shall vest on
the date of such termination. The proportion referred to in
the preceding sentence shall be determined by the Committee
at the time of the grant of such shares of Restricted Stock
and may be based on the achievement of any conditions
imposed by the Committee with respect to such shares
pursuant to Section 10(b). Such proportion may be equal to
zero.
(g) Effect of Change in Control
Upon the occurrence of a Change in Control, all shares
of Restricted Stock which have not theretofore vested
(including those with respect to which the Issue Date has
not yet occurred), or been canceled or forfeited pursuant to
any provision hereof, shall immediately vest.
(h) Registration of Restricted Stock
The Company, at the Company's expense, shall file and
maintain a registration statement on the appropriate form
with the Securities and Exchange Commission covering the
restricted stock granted hereunder after it has vested.
11. Phantom Stock
The Committee may grant shares of Phantom Stock pursuant to
the Plan. Each grant of shares of Phantom Stock shall be
evidenced by an agreement in such form as the Committee shall
from time to time approve. Each grant of shares of Phantom Stock
shall comply with and be subject to the following terms and
conditions:
(a) Vesting Date
At the time of the grant of shares of Phantom Stock,
the Committee shall establish a Vesting Date or Vesting
Dates with respect to such shares. The Committee may
divide such shares into classes and assign a different
Vesting Date for each class. Provided that all
conditions to the vesting of a share of Phantom Stock
imposed pursuant to Section 11(c) hereof
are satisfied, and except as provided in Section 11(d)
hereof, upon the occurrence of the Vesting Date with
respect to a share of Phantom Stock, such share shall
vest.
(b) Benefit Upon Vesting
Upon the vesting of a share of Phantom Stock, a
Participant shall be entitled to receive in cash,
within 30 days of the date on which such share vests,
an amount in cash in a lump sum equal to the sum of (i)
the Fair Market Value of a share of Common Stock of the
Company on the date on which
such share of Phantom Stock vests and (ii) the
aggregate amount of cash dividends paid with respect to
a share of Common Stock of the Company during the
period commencing on the date on which the share of
Phantom Stock was granted and
terminating on the date on which such share vests.
(c) Conditions to Vesting
At the time of the grant of shares of Phantom Stock,
the Committee may impose such restrictions or conditions,
not inconsistent with the provisions hereof, to the vesting
of such shares as it, in its absolute discretion deems
appropriate. By way of example and not by way of
limitation, the Committee may require, as a condition to the
vesting of any class or classes of shares of Phantom Stock,
that the Participant or the Company achieve certain
performance criteria, such criteria to be specified by the
Committee at the time of the grant of such shares.
(d) Effect of Termination of Employment
In the event that the employment of a Participant with
the Company shall terminate for any reason prior to the
vesting of shares of Phantom Stock granted to such
Participant, a proportion (up to 100%) of such shares, to
the extent not forfeited or canceled on or prior to such
termination pursuant to any provision hereof, shall vest on
the date of such termination. The proportion referred to in
the preceding sentence shall be determined by the Committee
at the time of the grant of such shares of Phantom Stock and
may be based on the achievement of any conditions imposed by
the Committee with respect to such shares pursuant to
Section 11(c). Such proportion may be equal to zero.
(e) Effect of Change in Control
Upon the occurrence of a Change in Control, all shares
of Phantom Stock which have not theretofore vested, or been
canceled or forfeited pursuant to any provision hereof,
shall immediately vest.
12. Stock Bonuses
The Committee shall grant Stock Bonuses in such amounts as
it shall determine from time to time. A Stock Bonus shall be
paid at such time and subject to such conditions as the Committee
shall determine at the time of the grant of such Stock Bonus.
Certificates for shares of Common Stock granted as a Stock Bonus
shall be issued in the name of the Participant to whom such grant
was made and delivered to such Participant as soon as practicable
after the date on which such Stock Bonus is required to be paid.
13. Cash Bonuses
The Committee may, in its absolute discretion, grant, in
connection with any grant of Restricted Stock or Stock Bonus or
at any time thereafter, a cash bonus, payable promptly after the
date on which the Participant is required to recognize income for
federal income tax purposes in connection with such Restricted
Stock or Stock Bonus, in such amounts as the Committee shall
determine from time to time; provided however, that in no event
shall the amount of a Cash Bonus exceed the Fair Market Value of
the related shares of Restricted Stock or Stock Bonus on such
date. A Cash Bonus shall be subject to such conditions as the
Committee shall determine at the time of the grant of such Cash
Bonus.
14. Adjustment Upon Changes in Common Stock
(a) Shares Available for Grants
In the event of any change in the number of shares of
Common Stock outstanding by reason of any stock dividend or
split, recapitalization, merger, consolidation, combination
or exchange of shares or similar corporate change, the
maximum aggregate number of shares of Common Stock with
respect to which the Committee may grant Options,
Stand-Alone SARs, shares of Restricted Stock, shares of
Phantom Stock and Stock Bonuses shall be appropriately
adjusted by the Committee. In the event of any change in the
number of shares of Common Stock outstanding by reason of
any other event or transaction, the Committee may, but need
not, make such adjustments in the number and class of shares
of Common Stock with respect to
which Options, Stand-Alone SARs, shares of Restricted Stock,
shares of Phantom Stock and Stock Bonuses may be granted as
the Committee may deem appropriate.
(b) Outstanding Restricted Stock and Phantom Stock
Unless the Committee in its absolute discretion
otherwise determines, any securities or other property
(including dividends paid in cash) received by a Participant
with respect to a share of Restricted Stock, the Issue Date
with respect to which occurs prior to such event, but which
has not vested as of the date of such event, as result of
any dividend, stock split, recapitalization, merger,
consolidation, combination, exchange of shares or otherwise
will not vest until such share of Restricted Stock vests,
and shall be promptly deposited
with the custodian designated pursuant to Paragraph 10(d)(2)
hereof.
The Committee may, in its absolute discretion, adjust
any grant of shares of Restricted Stock, the Issue Date with
respect to which has not occurred as of the date of the
occurrence of any of the following events, or any grant of
shares of Phantom Stock, to reflect any dividend, stock
split, recapitalization, merger, consolidation, combination,
exchange of shares or similar corporate change as the
Committee may deem appropriate to prevent the enlargement or
dilution of rights of Participants under the grant.
(c) Outstanding Options, LSARs, Tandem SARs and Stand-Alone
SARs--Increase or Decrease in Issued Shares Without
Consideration
Subject to any required action by the shareholders of
Amber, in the event of any increase or decrease in the
number of issued shares of Common Stock resulting from
a subdivision or consolidation of shares of Common
Stock or the payment of a stock dividend (but only on
the shares of Common Stock), or any other increase or
decrease in the number of such shares effected without
receipt of consideration by Amber, the Committee shall
proportionally adjust the number of shares of Common Stock
subject to each outstanding Option, LSAR, Tandem SAR and
Stand-Alone SAR, and the exercise price per share of Common
Stock of each such
Option, LSAR, Tandem SAR and Stand-Alone SAR.
(d) Outstanding Options, LSARs, Tandem SARs and Stand-Alone
SARs--Certain Mergers
Subject to any required action by the shareholders of
Amber, in the event that Amber shall be the surviving
corporation in any merger or consolidation (except a merger
or consolidation as a result of which the holders of shares
of Common Stock receive securities of another corporation),
each Option, LSAR, Tandem SAR and Stand-Alone SAR
outstanding on the date of such merger or consolidation
shall pertain to and apply to the securities which a holder
of the number of shares of Common Stock subject to such
Option, LSAR, Tandem SAR or Stand-Alone SAR would have
received in such merger or consolidation.
(e) Outstanding Options, LSARs, Tandem SARs and Stand-Alone
SARs--Certain Other Transactions
In the event of (i) a dissolution or liquidation of
Amber, (ii) a sale of all or substantially all of Amber's
assets, (iii) a merger or consolidation involving Amber in
which Amber is not the surviving corporation or (iv) a
merger or consolidation involving Amber in which Amber is
the surviving corporation but the holders of shares of
Common Stock receive securities of another corporation
and/or other property, including cash, the Committee shall,
in its absolute discretion, have the power to:
(i) cancel, effective immediately prior to the
occurrence of such event, each Option (including each
LSAR and Tandem SAR related thereto) and Stand-Alone
SAR outstanding immediately prior to such event
(whether or not then exercisable), and, in full
consideration of such cancellation, pay to the
Participant to whom such Option or Stand-Alone SAR was
granted an amount in cash, for
each share of Common Stock subject to such Option or
Stand-Alone SAR, respectively, equal to the excess of
(A) the value, as determined by the Committee in its
absolute discretion, of the property (including cash)
received by the holder of a share of Common Stock as a
result of such event over (B) the exercise price of
such Option or Stand-Alone SAR; or
(ii) provide for the exchange of each Option
(including any related LSAR or Tandem SAR) and Stand-
Alone SAR outstanding immediately prior to such event
(whether or not then exercisable) for an option on or
stock appreciation right with respect to, as
appropriate, some or all of the property for which such
Option or Stand-Alone SAR is exchanged and, incident
thereto, make an equitable adjustment as determined by
the Committee in its absolute discretion in the
exercise price of the
option or stock appreciation right, or the number of
shares or amount of property subject to the option or
stock appreciation right or, if appropriate, provide
for a cash payment to the Participant to whom such
Option or Stand-Alone SAR was granted in partial
consideration for the exchange of the Option or
Stand-Alone SAR.
(f) Outstanding Options, LSARs, Tandem SARs and Stand-Alone
SARs--Other Changes
In the event of any change in the capitalization of
Amber or corporate change other than those specifically
referred to in Section 14(c), (d) or (e) hereof, the
Committee may, in its absolute discretion, make such
adjustments in the number and
class of shares subject to Options, LSARs, Tandem SARs or
Stand-Alone SARs outstanding on the date on which such
change occurs and in the per share exercise price of each
such Option, LSAR, Tandem SAR and Stand-Alone SAR as the
Committee may consider appropriate to prevent dilution or
enlargement of rights.
(g) No Other Rights
Except as expressly provided in the Plan, no
Participant shall have any rights by reason of any
subdivision or consolidation of shares of stock of any
class, the payment of any dividend, any increase or decrease
in the number of shares of stock of any class or any
dissolution, liquidation, merger or consolidation of Amber
or any other corporation. Except as expressly provided in
the Plan, no issuance by Amber of shares of stock of any
class, or securities convertible, into shares
of stock of any class, shall affect, and no adjustment by
reason thereof shall be made with respect to the number of
shares of Common Stock subject to an Incentive Award or the
exercise price of any Option, LSAR, Tandem SAR or
Stand-Alone SAR.
15. Rights as a Stockholder
No person shall have any rights as a stockholder with
respect to any shares of Common Stock covered by or relating to
any Incentive Award granted pursuant to this Plan until the date
of the issuance of a stock certificate with respect to such
shares. Except as otherwise expressly provided in Section 14
hereof, no adjustment to any Incentive Award shall be made for
dividends or other rights for which the record date occurs prior
to the date such stock certificate is issued.
16. No Special Employment Rights; No Right to Incentive Award
Nothing contained in the Plan or any Incentive Award shall
confer upon any Participant any right with respect to the
continuation of his employment by the Company or interfere in any
way with the right of the Company, subject to the terms of any
separate employment agreement to the contrary, at any time to
terminate such employment or to increase or decrease the
compensation of the Participant from the rate in existence at the
time of the grant of an Incentive Award.
No person shall have any claim or right to receive an
Incentive Award hereunder. The Committee's granting of an
Incentive Award to a Participant at any time shall neither
require the Committee to grant an Incentive Award to such
Participant or any other Participant or other person at any time
nor preclude the Committee from making subsequent grants to such
Participant or any other Participant or other person.
17. Securities Matters
(a) Notwithstanding anything herein to the contrary,
the Company shall not be obligated to cause to be issued or
delivered any certificates evidencing shares of Common Stock
pursuant to the Plan unless and until the Company is advised
by its counsel that the issuance and delivery of such
certificates is in compliance with all applicable laws,
regulations of governmental authority and the requirements
of any securities exchange on which shares of Common Stock
are traded. The Committee may require, as a condition of
the issuance and delivery of certificates evidencing shares
of Common Stock pursuant to the terms hereof, that the
recipient of such shares make such covenants, agreements and
representations, and that such certificates bear such
legends, as the Committee, in its sole discretion, deems
necessary or desirable.
(b) The exercise of any Option granted hereunder shall
only be effective at such time as counsel to the Company
shall have determined that the issuance and delivery of
shares of Common Stock pursuant to such exercise is in
compliance with all applicable laws, regulations of
governmental authority and the requirements of any
securities exchange on which shares of Common Stock are
traded. The Company may, in its sole
discretion, defer the effectiveness of any exercise of an
Option granted hereunder in order to allow the issuance of
shares of Common stock pursuant thereto to be made pursuant
to registration or an exemption from the registration or
other methods for compliance available under federal or
state securities laws. The Company shall inform the
Participant in writing of its decision to defer the
effectiveness of the exercise of an Option granted
hereunder. During the period
that the effectiveness of the exercise of an Option has been
deferred, the Participant may, by written notice, withdraw
such exercise and obtain the refund of any amount paid with
respect thereto.
(c) With respect to persons subject to Section 16 of
the Securities Exchange Act of 1934, transactions under this
Plan are intended to comply with all applicable conditions
of Rule 16b-3 or its successors under the Exchange Act. To
the extent any provision of the Plan or action by the
Committee fails to so comply, it shall be deemed null and
void, to the extent permitted by law and deemed advisable by
the Committee.
18. Withholding Taxes
(a) Cash Remittance
Whenever shares of Common Stock are to be issued upon
the exercise of an Option, the occurrence of the Issue Date
or Vesting Date with respect to a share of Restricted Stock
or the payment of a Stock Bonus, the Company shall have the
right to require the Participant to remit to the Company in
cash an amount sufficient to satisfy federal, state and
local withholding tax requirements, if any, attributable to
such exercise, occurrence or payment prior to the delivery
of any certificate or certificates for such shares. In
addition, upon the exercise of an LSAR, Tandem SAR or
Stand-Alone SAR, the grant of a Cash Bonus or the making of
a payment with respect to a share of Phantom Stock, the
Company shall have the right to withhold from any cash
payment required to be made pursuant thereto an amount
sufficient to satisfy the federal, state and local
withholding tax requirements.
(b) Stock Remittance
At the election of the Participant, subject to the
approval of the Committee, when shares of Common Stock are
to be issued upon the exercise of an Option, the occurrence
of the Issue Date or the Vesting Date with respect to a
share of Restricted Stock or the grant of a Stock Bonus, in
lieu of the remittance required by Section 18(a) hereof, the
Participant may tender to the Company a number of shares of
Common Stock determined by such Participant, the Fair Market
Value of which at the tender date the Committee determines
to be sufficient to satisfy the federal, state and local
withholding tax requirements, if any, attributable to such
exercise, occurrence or grant and not greater than the
Participant's estimated total federal, state and local tax
obligations associated with such exercise, occurrence or
grant.
(c) Stock Withholding
At the election of the Participant, subject to the
approval of the Committee, when shares of Common Stock are
to be issued upon the exercise of an Option, the occurrence
of the Issue Date or the Vesting Date with respect to a
share of Restricted Stock or the grant of a Stock Bonus, in
lieu of the remittance required by Section 18(a) hereof, the
Company shall withhold a number of such shares determined by
such Participant, the Fair Market Value of which at the
exercise date the Committee determines to be sufficient to
satisfy the federal, state and local withholding tax
requirements, if any, attributable to such exercise,
occurrence or grant and is not greater than the
Participant's estimated total federal, state
and local tax obligations associated with such exercise,
occurrence or grant.
(d) Timing and Method of Elections
Notwithstanding any other provisions of the Plan, a
Participant who is subject to Section 16(b) of the Exchange
Act may not make either of the elections described in
Sections 18(b) and (c) hereof prior to the expiration of six
months after the date on which the applicable Option, share
of Restricted Stock or Stock Bonus was granted, except in
the event of the death or Disability of the Participant,
unless the Company is advised by its counsel that such
election(s) may be permitted pursuant to Section 16 of the
Exchange Act or any rule or interpretation of the U.S.
Securities and Exchange Commission thereunder.
19. Amendment of the Plan
The Board of Directors may at any time suspend or terminate
the Plan or revise or amend it in any respect whatsoever provided
that such action does not diminish rights pursuant to instruments
or securities already granted under the Plan.
20. No Obligation to Exercise
The grant to a Participant of an Option, LSAR, Tandem SAR or
Stand-Alone SAR shall impose no obligation upon such Participant
to exercise such Option, LSAR, Tandem SAR or Stand-Alone SAR.
21. Transfers Upon Death or Pursuant to a Qualified Domestic
Relations Order
Upon the death of a Participant or pursuant to a qualified
domestic relations order, outstanding Incentive Awards granted to
such Participant may be exercised by the executors or
administrators of the Participant's estate or by any person or
persons who shall have acquired such right to exercise by will,
the laws of descent and distribution, or pursuant to a qualified
domestic relations order. No transfer by will, the laws of
descent and distribution, or pursuant to a qualified domestic
relations order, of any Incentive Award, or the right to exercise
any Incentive Award, shall be effective to bind the Company
unless the Committee shall have been furnished with (a) written
notice thereof and with a copy of the will, order, and/or such
evidence as the Committee may deem necessary to establish the
validity of the transfer and (b) an agreement by the transferee
to comply with all the terms and conditions of the Incentive
Award that are or would have been applicable to the Participant
and to be bound by the acknowledgements made by the Participant
in connection with the grant of the Incentive Award.
22. Expenses and Receipts
The expenses of the Plan shall be paid by the Company. Any
proceeds received by the Company in connection with any Incentive
Award will be used for general corporate purposes.
23. Participant's Failure to Comply
In addition to the remedies of the Company elsewhere
provided for herein, failure by a Participant to comply with any
of the terms and conditions of the Plan or the agreement executed
by such Participant evidencing an Incentive Award, unless such
failure is remedied by such Participant within ten days after
having been notified of such failure by the Committee, shall be
grounds for the cancellation and forfeiture of such Incentive
Award, in whole or in part, as the Committee, in its absolute
discretion, may determine.
24. Effective Date and Term of Plan
This Plan shall be effective as of November 21, 1996. The
Plan shall terminate on November 21, 2006 unless earlier
terminated pursuant to Section 19. No grants may be made under
the Plan after November 21, 2006.
25. Participation in the Plan by Nonemployee Directors
(a) The Plan will be administered as to Nonemployee
Directors by the Board of Directors.
(b) All Nonemployee Directors shall participate in the
Plan, subject to the conditions and limitations of the Plan, so
long as they remain eligible to participate in the Plan.
(c) No Nonemployee Director shall be eligible for an
Incentive Award if, at the time said Incentive Award would
otherwise be granted, such Nonemployee Director (i) is
directly or indirectly the beneficial owner of five percent
or more of any class of equity security of the Company which is
registered pursuant to Section 12 of the Exchange Act or of
any security convertible into or exercisable for such class
of equity security (excluding shares covered by the Plan); or
(ii) is an officer, director, 10% or greater shareholder,
employee or agent of a person or entity which is directly or
indirectly the beneficial owners of more than five percent
of any class of equity security of the Company which is
registered pursuant to Section 12 of the Exchange Act or of
any security convertible into or exercisable for such class
of equity security (excluding shares covered by the Plan).
Incentive Award grants, if any, to any such non-eligible
Nonemployee Directors shall be determined by the Board.
(d) Unless the Board of Directors shall otherwise direct
the Options shall automatically be granted to Nonemployee
Directors according to the following formula:
(i) Options shall be determined for all eligible
Nonemployee Directors of the Company in each calendar
year during the term of the Plan on December 31. Non
Stock Options may be changed after it has been so
determined, except pursuant to the Plan. No
Nonemployee Director shall be entitled to receive more
than one Stock Option per year pursuant to the Plan
even if such Nonemployee Director serves as a director
for more than one Participating Company. The Stock
Option shall be granted to each Participant by the
Company or, if the Participant is not a Nonemployee
Director of the Company, by the Participating Company
for which a Nonemployee Director serves as a director.
(ii) Options shall be granted pursuant to the Plan to
eligible Participants as follows:
(aa) Each Participant shall be granted an option
for 7,500 shares of common stock, or, if a director for
less than the prior 12 months, a pro rata portion of
7,500 shares of common stock based upon the number of
months such Participant was a Nonemployee Director of
the Company.
The exercise price of the Stock Options to be granted
to Nonemployee Directors pursuant to the Plan shall be 50% of
the Market Price as determined at the date of grant. The
"Market Price" of a share of common stock under the Plan shall be
the average of the "Fair Market Value" of the common stock for
all trading days during the twelve months preceding the date on
which the stock option is determined. The "Fair Market
Value" of a share of common stock with respect to any day shall
be (i) the closing sales price of a share of common stock as
reported on the principal securities exchange on which
shares of common stock are then listed or admitted to trading; or
(ii) if not so reported, the last sale price as reported by
the NASDAQ Stock Market; or (iii) if not so reported, the
average of the closing bid and ask prices as reported on the
NASDAQ Stock Market; or (iv) if not so reported, as
furnished by any member of the National Association of Securities
Dealers, Inc. selected by the Committee. Each Stock Option
shall be exercisable for a ten year period commencing on the
date of grant and shall expire ten years after the date of
grant. Certificates evidencing the Stock Options shall be
registered in the respective names of the Participants and
shall be issued to each Participant as soon as practicable
following the date of grant.
EXHIBIT 99.2
BIOGRAPHY OF JERRIE F. ECKELBERGER
Jerrie F. Eckelberger, age 52, is an investor, real estate
developer and attorney who has practiced law in the State of
Colorado for 25 years. Mr. Eckelberger serves as a director of
Delta Petroleum Corporation, a public company which is the
approximate 92% majority owner of Amber Resources Company. He
graduated from Northwestern University with a Bachelor Arts
Degree in 1966 and received his Juris Doctor Degree in 1971 from
the University Colorado School of Law. From 1972 to 1975, Mr.
Eckelberger was a staff attorney with the eighteenth Judicial
District Attorney's Office in Colorado . After spending two
years in the litigation department of a Denver law firm, he
founded Eckelberger & Associates which he is still the principal
member. From 1982 to 1992 Mr. Eckelberger was the senior partner
of Eckelberger & Feldman, a law firm with offices in Englewood,
Colorado. Mr. Eckelberger previously served as an officer,
director and corporate counsel for Roxborough Development
Corporation. He is presently the President and Chief Executive
Officer of 1998, Ltd., a Colorado corporation actively engaged in
the development of real estate in Colorado. He is the Managing
Member of The Francis Companies, L.L.C., a Colorado Limited
Liability Company, which actively invests in real estate.
Additionally, Mr. Eckelberger is the General Partner of 2003
Limited, a Colorado Limited Partnership, specializing in real
estate development.
