As filed with the Securities and Exchange Commission on July 20, 1998
Registration No. 333-22861
===========================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------------------
POST-EFFECTIVE
AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------------------
GENERAL SEMICONDUCTOR, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-3575653
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
10 MELVILLE PARK ROAD
MELVILLE, NEW YORK 11747
(Address of registrant's
principal executive
offices, including zip code)
GENERAL SEMICONDUCTOR, INC.
1998 LONG-TERM INCENTIVE PLAN
GENERAL SEMICONDUCTOR, INC.
AMENDED AND RESTATED
1993 LONG-TERM INCENTIVE PLAN
AND OUTSIDE DIRECTOR STOCK OPTIONS
(Full title of the plan)
ANDREW M. CAGGIA
SENIOR VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
10 MELVILLE PARK ROAD
MELVILLE, NEW YORK 11747
(516) 847-3000
(Name, address, and telephone number of agent for service)
-----------------------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===============================================================================================================
Proposed Proposed Maximum
Title of Securities Amount to be Maximum Offering Aggregate Amount of
to be Registered Registered(FN1) Price Per Share Offering Price Registration Fee
- - ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$.01 per share 4,900,000 shares(FN2) $9.8125(FN3) $48,081,250(FN3) $14,183.97
- - ---------------------------------------------------------------------------------------------------------------
<FN>
(1) Includes an indeterminate number of shares of Common Stock that may be
issuable by reason of stock splits, stock dividends or similar
transactions in accordance with Rule 416 under the Securities Act of
1933.
(2) Shares subject to options to be granted under the General
Semiconductor, Inc. 1998 Long-Term Incentive Plan (the "Plan").
(3) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(h) and in accordance therewith includes 4,900,000
shares subject to options to be granted under the Plan based on the
basis of the average of the high and low sales prices for the Common
Stock as reported by the New York Stock Exchange on July 14, 1998, a
date within five business days of the date on which this registration
statement is being filed.
</FN>
</TABLE>
EXPLANATORY NOTE
As permitted by the rules of the Securities and Exchange Commission
(the "Commission"), this Post-Effective Amendment No. 1 to the Registration
Statement (Reg. No. 333-22861) on Form S-8 (the "Registration Statement")
omits the information specified in Part I of Form S-8.
The contents of the Registration Statements on Form S-8, File No.
33-50911 and File No. 33-54923, are incorporated herein by reference.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, filed with the Commission by General
Semiconductor, Inc. (the "Company") (File No. 1-5442), are incorporated by
reference in this Registration Statement.
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997 (the "Form 10-K");
(b) The Company's Quarterly Report on Form 10-Q for the three
months ended March 31, 1998; and
(c) The description of the Company's common stock, par value $.01
per share (the "Common Stock") contained in the Company's Registration
Statement on Form 8-A filed with the Commission on April 17, 1992.
All documents filed subsequent to the date hereof 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 securities offered hereby have been sold
or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated herein by reference and to be a part hereof from the
date of the filing (such documents and the documents enumerated above,
being hereinafter referred to as "Incorporated Documents"). Any statement
contained herein or in any of the Incorporated Documents deemed to be
incorporated by reference herein shall be deemed to be modified or
superseded for purposes hereof to the extent that a statement contained
herein or in any other subsequently filed Incorporated Document modifies or
supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a
part hereof.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law (the "DGCL")
provides that a corporation may indemnify its directors and officers, as
well as other employees and individuals (each an "Indemnified Party," and
collectively, "Indemnified Parties"), against expenses (including
attorney's fees), judgments, fines, and amounts paid in settlement in
connection with specified actions, suits, or proceedings, whether civil,
criminal, administrative, or investigative, other than in connection with
actions by or in the right of the corporation (a "derivative action"), if
an Indemnified Party acted in good faith and in a manner such Indemnified
Party 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 that his or her conduct was unlawful. A
similar standard is applicable in the case of derivative actions, except
that a corporation may only indemnify an Indemnified Party for expenses
(including attorney's fees) incurred in connection with the defense or
settlement of such derivative action. Additionally, in the context of a
derivative action, DGCL Section 145 requires court approval before there
can be any indemnification where an Indemnified Party has been found liable
to the corporation. The statute provides that it is not exclusive of other
indemnification arrangements that may be granted pursuant to a
corporation's charter, by-laws, disinterested director vote, stockholder
vote, agreement, or otherwise.
Section 102(b)(7) of the DGCL permits a corporation to provide in its
certificate of incorporation that a director of the corporation shall not
be personally liable to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, except for liability
for (i) any breach of the director's duty of loyalty to the corporation or
its stockholders, (ii) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) any willful or
negligent declaration of an unlawful dividend, stock purchase or
redemption, or (iv) any transaction from which the director derived an
improper personal benefit.
The Certificate of Incorporation and By-Laws of the Company provide
that directors and officers of the Company shall not, to the fullest extent
permitted by the DGCL, be liable to the Company or any of its stockholders
for monetary damages for any breach of fiduciary duty as a director or
officer, as the case may be. The Certificate of Incorporation and By-Laws
of the Company also provide that if the DGCL is amended to permit further
elimination or limitation of the personal liability of directors and
officers, then the liability of the directors and officers of the Company
shall be eliminated or limited to the fullest extent permitted by the DGCL,
as so amended.
The Company has entered into agreements to indemnify its directors and
officers in addition to the indemnification provided for in its Certificate
of Incorporation and By-Laws. These agreements, among other things,
indemnify the Company's directors and officers to the fullest extent
permitted by Delaware law for certain expenses (including attorney's fees),
liabilities, judgments, fines and settlement amounts incurred by such
person arising out of or in connection with such person's service as a
director or officer of the Company or an affiliate of the Company.
The Company maintains directors' and officers' liability insurance,
under which its directors and officers are insured, within the limits and
subject to the limitations of the policies, against certain expenses in
connection with the defense of, and certain liabilities which might be
imposed as a result of, actions, suits or proceedings to which directors
and officers are parties by reason of being or have been directors or
officers of the Company, as the case may be.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
EXHIBIT NO. DESCRIPTION OF EXHIBIT
- - ----------- ----------------------
4.1 -- General Semiconductor, Inc. 1998 Long-Term Incentive Plan
4.2 -- Amended and Restated Certificate of Incorporation of General
Semiconductor, Inc. *
4.3 -- Amended and Restated By-Laws of General Semiconductor, Inc. *
4.4 -- Form of Common Stock Certificate of General Semiconductor, Inc.
4.5 -- Rights Agreement, dated as of January 6, 1997, between General
Semiconductor, Inc. and ChaseMellon Shareholder Services, LLC, as
Rights Agent**
5.1 -- Opinion of Fried, Frank, Harris, Shriver & Jacobson
23.1 -- Consent of Deloitte & Touche LLP
23.2 -- Consent of Fried, Frank, Harris, Shriver & Jacobson (included in
Exhibit 5.1)
24.1 -- Powers of Attorney (included on the signature pages)
* Incorporated herein by reference from the Company's Quarterly
Report on Form 10-Q for the period ended June 30, 1997 (File No.
1-5442).
** Incorporated herein by reference from the Registration Statement on
Form 8-A filed with the Commission on January 10, 1997 (File No.
1-5442)
ITEM 9. UNDERTAKINGS
RULE 415 OFFERING
The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to
include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration
Statement;
(2) That, for the purpose of determining any liability under the
Securities Act, each post-effective amendment to 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; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
INCORPORATION OF SUBSEQUENT EXCHANGE ACT DOCUMENTS BY REFERENCE
The Company hereby undertakes, that for the purpose of determining any
liability under the Securities Act, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) 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.
REGISTRATION STATEMENT ON FORM S-8
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
Commission such indemnification is against public policy as expressed in
the Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Melville, State of New York, on
July 20, 1998.
GENERAL SEMICONDUCTOR, INC.
By: /s/ Ronald A. Ostertag
----------------------------------
Ronald A. Ostertag
Chairman, President and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Andrew M. Caggia and Stephen
B. Paige, and each of them, as his true and lawful attorneys-in-fact and
agents, each acting alone, with full powers of substitution and
resubstitution, for him in his or her name, place and stead, in any and all
capacities, to sign any and all amendments to this Registration Statement,
including any and all amendments, and any and all documents in connection
therewith, and to file the same, with all exhibits thereto, and all
documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents 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, as fully to all intents and
purposes as he might or could do in person, and hereby ratifies, approves
and confirms all that his said attorneys-in-fact and agents, each acting
alone, or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Ronald A. Ostertag Chairman, President and Chief July 20, 1998
------------------------ Executive Officer (Principal
Ronald A. Ostertag Executive Officer)
/s/ Andrew M. Caggia Senior Vice President July 20, 1998
------------------------ and Chief Financial Officer
Andrew M. Caggia (Principal Financial Officer)
/s/ Robert J. Gange Vice President and Controller July 20, 1998
------------------------ (Principal Accounting Officer)
Robert J. Gange
/s/Steven B. Klinsky Director July 20, 1998
------------------------
Steven B. Klinsky
/s/ Ronald Rosenzweig Director July 20, 1998
------------------------
Ronald Rosenzweig
/s/ Peter A. Schwartz Director July 20, 1998
-------------------------
Peter A. Schwartz
/s/ Samuel L. Simmons Director July 14, 1998
---------------------
Samuel L. Simmons
/s/ Dr. Gerard T. Wrixon Director July 20, 1998
------------------------
Dr. Gerard T. Wrixon
INDEX TO EXHIBITS
-----------------
EXHIBIT NO. DESCRIPTION OF EXHIBIT
- - ----------- ----------------------
4.1 -- General Semiconductor, Inc. 1998 Long-Term Incentive Plan
4.2 -- Amended and Restated Certificate of Incorporation of General
Semiconductor, Inc. *
4.3 -- Amended and Restated By-Laws of General Semiconductor, Inc. *
4.4 -- Form of Common Stock Certificate of General Semiconductor, Inc.
4.5 -- Rights Agreement, dated as of January 6, 1997, between General
Semiconductor, Inc. and ChaseMellon Shareholder Services, LLC, as
Rights Agent**
5.1 -- Opinion of Fried, Frank, Harris, Shriver & Jacobson
23.1 -- Consent of Deloitte & Touche LLP
23.2 -- Consent of Fried, Frank, Harris, Shriver & Jacobson (included in
Exhibit 5.1)
24.1 -- Powers of Attorney (included on the signature pages)
* Incorporated herein by reference from the Company's Quarterly
Report on Form 10-Q for the period ended June 30, 1997 (File No.
1-5442).
** Incorporated herein by reference from the Registration Statement on
Form 8-A filed with the Commission on January 10, 1997 (File No.
1-5442)
Exhibit 4.1
GENERAL SEMICONDUCTOR, INC.
---------------------------
1998 LONG-TERM INCENTIVE PLAN
As Adopted March 18, 1998
<PAGE>
GENERAL SEMICONDUCTOR, INC.
1998 LONG-TERM INCENTIVE PLAN
1. Purpose.
-------
The purpose of this Plan is based on the premise that the achievements
of the Company result from the efforts of employees working toward common
goals and objectives. This Plan is designed to attract, retain and motivate
highly qualified employees, reinforce the alignment of employee and
stockholder interests and reward its employees, officers, consultants,
advisors and directors based on the Company's performance. It is intended
that this purpose be achieved by extending to employees, officers,
consultants, advisors and directors of the Company and its Subsidiaries an
added long-term incentive through the grant of Incentive Stock Options,
Nonqualified Stock Options, Stock Appreciation Rights, Dividend Equivalent
Rights, Performance Awards, Share Awards, Director Shares, Phantom Stock
and Restricted Stock (as each term is herein defined).
2. Definitions.
-----------
For purposes of the Plan:
2.1 "Adjusted Fair Market Value" means, in the event of a Change
of Control, the greater of (a) the highest price per Share paid to holders
of the Shares in any transaction (or series of transactions) constituting
or resulting in a Change of Control or (b) the highest Fair Market Value of
a Share during the ninety (90) day period ending on the date of a Change of
Control.
2.2 "Affiliate" means any entity, directly or indirectly,
controlled by, controlling or under common control with the Company or any
corporation or other entity acquiring, directly or indirectly, all or
substantially all the assets and business of the Company, whether by
operation of law or otherwise.
2.3 "Agreement" means the written agreement between the Company
and an Optionee or Grantee evidencing the grant of an Option or Award and
setting forth the terms and conditions thereof.
2.4 "Award" means a grant of Restricted Stock, Phantom Stock, a
Stock Appreciation Right, a Performance Award, a Dividend Equivalent Right,
a Share Award, Director Shares or any or all of them.
2.5 "Beneficial Owner," "Beneficially Owned" and "Beneficially
Owning" shall have the meanings applicable under Rule 13d-3 promulgated
under the Exchange Act.
2.6 "Board" means the Board of Directors of the Company.
2.7 "Cause" means: unless otherwise set forth in an Agreement,
(i) intentional failure to perform reasonably assigned duties, (ii)
dishonesty or willful misconduct in the performance of duties, (iii)
involvement in a transaction in connection with the performance of duties
to the Company or any of its Subsidiaries which transaction is adverse to
the interests of the Company or any of its Subsidiaries and which is
engaged in for personal profit or (iv) willful violation of any law, rule
or regulation in connection with the performance of duties (other than
traffic violations or similar offenses).
2.8 "Change in Capitalization" means any increase or reduction in
the number of Shares, or any change (including, but not limited to, in the
case of a spin-off, dividend or other distribution in respect of Shares, a
change in value) in the Shares or exchange of Shares for a different number
or kind of shares or other securities of the Company or another
corporation, by reason of a reclassification, recapitalization, merger,
consolidation, reorganization, spin-off, split-up, issuance of warrants or
rights or debentures, stock dividend, stock split or reverse stock split,
cash dividend, property dividend, combination or exchange of shares,
repurchase of shares, change in corporate structure or otherwise.
2.9 "Change of Control" means any of the following:
(i) the acquisition by any Person other than Instrument
Partners or Forstmann Little & Co. Subordinated Debt and Equity Management
Buyout Partnership IV or any of their affiliates (collectively, the
"Forstmann Little Companies") of Beneficial Ownership of Voting Securities
which, when added to the Voting Securities then Beneficially Owned by such
Person, would result in such Person Beneficially Owning (A) 33% or more of
the combined Voting Power of the Company's then outstanding Voting
Securities, and (B) a number of Voting Securities greater than the
aggregate number of Voting Securities then Beneficially Owned by the
Forstmann Little Companies; provided, however, that for purposes of this
paragraph (i), a Person shall not be deemed to have made an acquisition of
Voting Securities if such Person: (1) acquires Voting Securities as a
result of a stock split, stock dividend or other corporate restructuring in
which all stockholders of the class of such Voting Securities are treated
on a pro rata basis; (2) acquires the Voting Securities directly from the
Company; (3) becomes the Beneficial Owner of 33% or more of the combined
Voting Power of the Company's then outstanding Voting Securities solely as
a result of the acquisition of Voting Securities by the Company or any
Subsidiary which, by reducing the number of Voting Securities outstanding,
increases the proportional number of shares Beneficially Owned by such
Person, provided that if (x) a Person would own at least such percentage as
a result of the acquisition by the Company or any Subsidiary and (y) after
such acquisition by the Company or any Subsidiary, such Person acquires
Voting Securities, then an acquisition of Voting Securities shall have
occurred; (4) is the Company or any corporation or other Person of which a
majority of its voting power or its equity securities or equity interest is
owned directly or indirectly by the Company (a "Controlled Entity"); or (5)
acquires Voting Securities in connection with a "Non-Control Transaction"
(as defined in paragraph (iii) below); or
(ii) the individuals who, as of the Effective Date, are
members of the Board (the "Incumbent Board") cease for any reason to
constitute at least two-thirds of the Board; provided, however, that if
either the election of any new director or the nomination for election of
any new director by the Company's stockholders was approved by a vote of at
least two-thirds of the Incumbent Board prior to such election or
nomination, such new director shall be considered as a member of the
Incumbent Board; provided further, however, that no individual shall be
considered a member of the Incumbent Board if such individual initially
assumed office as a result of either an actual or threatened "Election
Contest" (as described in Rule 14a-11 promulgated under the Exchange Act)
or other actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board (a "Proxy Contest") including by
reason of any agreement intended to avoid or settle any Election Contest or
Proxy Contest; or
(iii) approval by stockholders of the Company of:
(A) a merger, consolidation or reorganization involving the
Company (a "Business Combination"), unless
(1) the stockholders of the Company, immediately before the
Business Combination, own, directly or indirectly immediately
following the Business Combination, at least a majority of the
combined voting power of the outstanding voting securities of the
corporation resulting from the Business Combination (the
"Surviving Corporation") in substantially the same proportion as
their ownership of the Voting Securities immediately before the
Business Combination, and
(2) the individuals who were members of the Incumbent Board
immediately prior to the execution of the agreement providing for
the Business Combination constitute at least a majority of the
members of the Board of Directors of the Surviving Corporation,
and
(3) no Person (other than the Company or any Controlled
Entity, a trustee or other fiduciary holding securities under one
or more employee benefit plans or arrangements (or any trust
forming a part thereof) maintained by the Company, the Surviving
Corporation or any Controlled Entity, or any Person who,
immediately prior to the Business Combination, had Beneficial
Ownership of 33% or more of the then outstanding Voting
Securities) has Beneficial Ownership of 33% or more of the
combined voting power of the Surviving Corporation's then
outstanding voting securities (a Business Combination satisfying
the conditions of clauses (1), (2) and (3) of this subparagraph
(A) shall be referred to as a "Non-Control Transaction");
(B) a complete liquidation or dissolution of the Company; or
(C) the sale or other disposition of all or substantially
all of the assets of the Company (other than a transfer to a
Controlled Entity).
Notwithstanding the foregoing, a Change of Control shall not be deemed
to occur solely because 33% or more of the then outstanding Voting
Securities is Beneficially Owned by (x) a trustee or other fiduciary
holding securities under one or more employee benefit plans or arrangements
(or any trust forming a part thereof) maintained by the Company or any
Controlled Entity or (y) any corporation which, immediately prior to its
acquisition of such interest, is owned directly or indirectly by the
stockholders of the Company in the same proportion as their ownership of
stock in the Company immediately prior to such acquisition.
2.10 "Code" means the Internal Revenue Code of 1986, as amended.
2.11 "Committee" means a committee, as described in Section 3.1,
appointed by the Board from time to time to administer the Plan and to
perform the functions set forth herein.
2.12 "Company" means General Semiconductor, Inc.
2.13 "Director" means a director of the Company.
2.14 "Director Option" means an Option granted pursuant to
Section 6.
2.15 "Director Share" means a Share issued or transferred
pursuant to Section 12.3.
2.16 "Disability" means a mental or physical condition which, in
the opinion of the Committee, renders a Grantee unable or incompetent to
carry out the job responsibilities which such Grantee held or the duties to
which such Grantee was assigned at the time the disability was incurred,
and which is expected to be permanent or for an indefinite duration.
2.17 "Division" means any of the operating units or divisions of
the Company designated as a Division by the Committee.
2.18 "Dividend Equivalent Right" means a right to receive all or
some portion of the cash dividends that are or would be payable with
respect to Shares.
2.19 "Eligible Director" means a director of the Company who is
not an employee of the Company or any Subsidiary, or a general partner of
any of the Forstmann Little Companies.
2.20 "Eligible Individual" means any director, officer or
employee of the Company or a Subsidiary, or any consultant or advisor of
the Company or a Subsidiary, designated by the Committee as eligible to
receive Options or Awards subject to the conditions set forth herein.
2.21 "Employee Option" means an Option granted pursuant to
Section 5.
2.22 "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
2.23 "Fair Market Value" of any security of the Company or any
other issuer means, as of any applicable date:
(i) if the security is listed for trading on the New York
Stock Exchange, the closing price, regular way, of the security as
reported on the New York Stock Exchange Composite Tape, or if no such
reported sale of the security shall have occurred on such date, on the
next preceding date on which there was such a reported sale, or
(ii) if the security is not so listed, but is listed on
another national securities exchange or authorized for quotation on
the National Association of Securities Dealers, Inc.'s NASDAQ National
Market System ("NASDAQ/NMS"), the closing price, regular way, of the
security on such exchange or NASDAQ/NMS, as the case may be, or if no
such reported sale of the security shall have occurred on such date,
on the next preceding date on which there was such a reported sale, or
(iii) if the security is not listed for trading on a
national securities exchange or authorized for quotation on
NASDAQ/NMS, the average of the closing bid and asked prices as
reported by the National Association of Securities Dealers Automated
Quotation System ("NASDAQ") or, if no such prices shall have been so
reported for such date, on the next preceding date for which such
prices were so reported, or
(iv) if the security is not listed for trading on a national
securities exchange or is not authorized for quotation on NASDAQ/NMS
or NASDAQ, the fair market value of the security as determined in good
faith by the Committee and, in the case of an Incentive Stock Option,
in accordance with Section 422 of the Code.
2.24 "Grantee" means a person to whom an Award has been granted
under the Plan.
2.25 "Incentive Stock Option" means an Option satisfying the
requirements of Section 422 of the Code and designated by the Committee as
an Incentive Stock Option.
2.26 "Nonemployee Director" means a director of the Company who
is a "nonemployee director" within the meaning of Rule 16b-3 promulgated
under the Exchange Act.
2.27 "Nonqualified Stock Option" means an Option which is not an
Incentive Stock Option.
2.28 "Option" means a Nonqualified Stock Option, an Incentive
Stock Option, a Director Option, or any or all of them.
2.29 "Optionee" means a person to whom an Option has been granted
under the Plan.
2.30 "Outside Director" means a director of the Company who is an
"outside director" within the meaning of Section 162(m) of the Code and the
regulations promulgated thereunder.
2.31 "Parent" means any corporation which is a parent corporation
(within the meaning of Section 424(e) of the Code) with respect to the
Company.
2.32 "Performance Awards" means Performance Units, Performance
Shares or either or both of them.
2.33 "Performance-Based Compensation" means any Option or Award
that is intended to constitute "performance based compensation" within the
meaning of Section 162(m)(4)(C) of the Code and the regulations promulgated
thereunder.
2.34 "Performance Cycle" means the time period specified by the
Committee at the time Performance Awards are granted during which the
performance of the Company, a Subsidiary or a Division will be measured.
2.35 "Performance Objectives" has the meaning set forth in
Section 11.
2.36 "Performance Shares" means Shares issued or transferred to
an Eligible Individual under Section 11.
2.37 "Performance Units" means Performance Units granted to an
Eligible Individual under Section 11.
2.38 "Person" shall mean a person within the meaning of Sections
13(d) and 14(d) of the Exchange Act.
2.39 "Phantom Stock" means a right granted to an Eligible
Individual under Section 12 representing a number of hypothetical Shares.
2.40 "Plan" means the General Semiconductor, Inc. 1998 Long-Term
Incentive Plan, as amended and restated from time to time.
2.41 "Pooling Transaction" means an acquisition of the Company in
a transaction which is intended to be treated as a "pooling of interests"
under generally accepted accounting principles.
2.42 "Restricted Stock" means Shares issued or transferred to an
Eligible Individual pursuant to Section 10.
2.43 "Section 16 Grantee" means a person subject to potential
liability with respect to equity securities of the Company under Section
16(b) of the Exchange Act.
2.44 "Share Award" means an Award of Shares granted pursuant to
Section 12.
2.45 "Shares" means the common stock, par value $.01 per share,
of the Company.
2.46 "Stock Appreciation Right" means a right to receive all or
some portion of the increase in the value of the Shares as provided in
Section 8 hereof.
2.47 "Subsidiary" means any corporation which is a subsidiary
corporation (within the meaning of Section 424(f) of the Code) with respect
to the Company.
2.48 "Successor Corporation" means a corporation, or a parent or
subsidiary thereof within the meaning of Section 424(a) of the Code, which
issues or assumes a stock option in a transaction to which Section 424(a)
of the Code applies.
2.49 "Ten-Percent Stockholder" means an Eligible Individual, who,
at the time an Incentive Stock Option is to be granted to him or her, owns
(within the meaning of Section 422(b)(6) of the Code) stock possessing more
than ten percent (10%) of the total combined voting power of all classes of
stock of the Company, or of a Parent or a Subsidiary.
2.50 "Voting Power" shall mean the combined voting power of the
then outstanding Voting Securities.
2.51 "Voting Securities" shall mean, with respect to the Company
or any Subsidiary, any securities issued by the Company or such Subsidiary,
respectively, which generally entitle the holder thereof to vote for the
election of directors of the Company or such Subsidiary, respectively.
3. Administration.
--------------
3.1 Committee Administration. The Plan shall be administered by
the Committee, which shall hold meetings at such times as may be necessary
for the proper administration of the Plan. The Committee shall keep minutes
of its meetings. A quorum shall consist of not fewer than two members of
the Committee and a majority of a quorum may authorize any action. Any
decision or determination reduced to writing and signed by a majority of
all of the members of the Committee shall be as fully effective as if made
by a majority vote at a meeting duly called and held. The Committee shall
consist of at least two (2) Directors and may consist of the entire Board;
provided, however, that (A) if the Committee consists of less than the
entire Board, each member shall be a Nonemployee Director and (B) to the
extent necessary for any Option or Award intended to qualify as
Performance-Based Compensation to so qualify, each member of the Committee,
whether or not it consists of the entire Board, shall be an Outside
Director. No member of the Committee shall be liable for any action,
failure to act, determination or interpretation made in good faith with
respect to this Plan or any transaction hereunder, except for liability
arising from his or her own willful misfeasance, gross negligence or
reckless disregard of his or her duties. The Company hereby agrees to
indemnify each member of the Committee for all costs and expenses and, to
the extent permitted by applicable law, any liability incurred in
connection with defending against, responding to, negotiating for the
settlement of or otherwise dealing with any claim, cause of action or
dispute of any kind arising in connection with any actions in administering
this Plan or in authorizing or denying authorization to any transaction
hereunder.
3.2 Board Reservation and Delegation. The Board may, in its
discretion, reserve to itself or exercise any or all of the authority and
responsibility of the Committee hereunder. It may also delegate to another
committee of the Board any or all of the authority and responsibility of
the Committee with respect to Awards to Optionees or Grantees, as the case
may be, who are not Section 16 Grantees at the time any such delegated
authority or responsibility is exercised. Such other committee may consist
of one or more directors who may, but need not be, officers or employees of
the Company or of any of its Subsidiaries. To the extent that the Board has
reserved to itself, or exercised the authority and responsibility of the
Committee, or delegated the authority and responsibility of the Committee
to such other committee, all references to the Committee in the Plan shall
be to the Board or to such other committee.
3.3 Committee Authority. Subject to the express terms and
conditions set forth herein, the Committee shall have the power from time
to time to:
(a) determine those Eligible Individuals to whom Employee
Options shall be granted under the Plan and the number of such Employee
Options to be granted and to prescribe the terms and conditions (which need
not be identical) of each such Employee Option, including the exercise
price per Share subject to each Employee Option, and make any amendment or
modification to any Option Agreement consistent with the terms of the Plan;
(b) select those Eligible Individuals to whom Awards shall
be granted under the Plan and to determine the number of Shares, Stock
Appreciation Rights, Performance Awards, Shares of Phantom Stock, Shares of
Restricted Stock and/or Dividend Equivalent Rights to be granted pursuant
to each Award, the terms and conditions (which need not be identical) of
each such Award, and make any amendment or modification to any Award
Agreement consistent with the terms of the Plan;
(c) construe and interpret the Plan and the Options and
Awards granted hereunder and to establish, amend and revoke rules and
regulations for the administration of the Plan, including, but not limited
to, correcting any defect or supplying any omission, or reconciling any
inconsistency in the Plan or in any Agreement, in the manner and to the
extent it shall deem necessary or advisable, including so that the Plan
complies with Rule 16b-3 under the Exchange Act, the Code to the extent
applicable and other applicable law, and otherwise to make the Plan fully
effective. All decisions and determinations by the Committee in the
exercise of this power shall be final, binding and conclusive upon the
Company, its Subsidiaries, the Optionees and Grantees, and all other
persons having any interest therein;
(d) determine the duration and purposes for leaves of
absence which may be granted to an Optionee or Grantee on an individual
basis without constituting a termination of employment or service for
purposes of the Plan;
(e) exercise its discretion with respect to the powers and
rights granted to it as set forth in the Plan; and
(f) generally, to exercise such powers and to perform such
acts as are deemed necessary or advisable to promote the best interests of
the Company with respect to the Plan.
4. Stock Subject to the Plan; Grant Limitations.
--------------------------------------------
4.1 The maximum number of Shares that may be made the subject of
Options and Awards granted under the Plan is 4.9 million plus the number of
Shares available for grant pursuant to the Company's Amended and Restated
1993 Long-Term Incentive Plan as of the date the stockholders approve this
Plan; provided, however, that in the aggregate, not more than 250,000 of
allotted Shares may be made the subject of Awards other than Options and
Stock Appreciation Rights. The maximum number of Shares that may be the
subject of Options and Awards granted to an Eligible Individual in any
three (3) calendar year period may not exceed 750,000 Shares. The maximum
dollar amount of cash or the Fair Market Value of Shares that any Eligible
Individual may receive in any calendar year in respect of Performance Units
denominated in dollars may not exceed $1,000,000. Upon a Change in
Capitalization, the maximum number of Shares referred to in the first two
sentences of this Section 4.1 shall be adjusted in number and kind pursuant
to Section 14. The Company shall reserve for the purposes of the Plan, out
of its authorized but unissued Shares or out of Shares held in the
Company's treasury, or partly out of each, such number of Shares as shall
be determined by the Board.
4.2 Upon the granting of an Option or an Award, the number of
Shares available under Section 4.1 for the granting of further Options and
Awards shall be reduced as follows:
(a) In connection with the granting of an Option or an Award
(other than the granting of a Performance Unit denominated in dollars), the
number of Shares shall be reduced by the number of Shares in respect of
which the Option or Award is granted or denominated; provided, however,
that if any Option, and any option granted or issued pursuant to the
Company's Amended and Restated 1993 Long-Term Incentive Plan is exercised
by tendering Shares, either actually or by attestation, to the Company as
full or partial payment of the exercise price, the maximum number of Shares
available under Section 4.1 shall be increased by the number of Shares so
tendered.
(b) In connection with the granting of a Performance Unit
denominated in dollars, the number of Shares shall be reduced by an amount
equal to the quotient of (i) the dollar amount in which the Performance
Unit is denominated, divided by (ii) the Fair Market Value of a Share on
the date the Performance Unit is granted.
4.3 Whenever any outstanding Option or Award or portion thereof,
and any option or award or portion thereof granted or issued pursuant to
the Company's Amended and Restated 1993 Long-Term Incentive Plan expires,
is canceled, is settled in cash (including the settlement of tax
withholding obligations using Shares) or is otherwise terminated for any
reason without having been exercised or payment having been made in respect
of the entire Option or Award, the Shares allocable to the expired,
canceled, settled or otherwise terminated portion of the Option or Award
may again be the subject of Options or Awards granted hereunder.
5. Option Grants for Eligible Individuals.
--------------------------------------
5.1 Authority of Committee. Subject to the provisions of the
Plan, the Committee shall have full and final authority to select those
Eligible Individuals who will receive Employee Options, and the terms and
conditions of the grant to such Eligible Individuals shall be set forth in
an Agreement.
5.2 Exercise Price. The exercise price or the manner in which the
exercise price is to be determined for Shares under each Employee Option
shall be determined by the Committee and set forth in the Agreement;
provided, however, that the exercise price per Share under each Employee
Option shall not be less than 100% of the Fair Market Value of a Share on
the date the Employee Option is granted (110% in the case of an Incentive
Stock Option granted to a Ten-Percent Stockholder).
5.3 Maximum Duration. Employee Options granted hereunder shall be
for such term as the Committee shall determine, provided that an Incentive
Stock Option shall not be exercisable after the expiration of ten (10)
years from the date it is granted (five (5) years in the case of an
Incentive Stock Option granted to a Ten-Percent Stockholder) and a
Nonqualified Stock Option shall not be exercisable after the expiration of
ten (10) years from the date it is granted; provided, however, that the
Committee may provide that an Option (other than an Incentive Stock Option)
may, upon the death of the Optionee, be exercised for up to one (1) year
following the date of the Optionee's death even if such period extends
beyond ten (10) years from the date the Option is granted. The Committee
may, subsequent to the granting of any Employee Option, extend the term
thereof, but in no event shall the term as so extended exceed the maximum
term provided for in the preceding sentence.
5.4 Vesting. Subject to Section 7.4, each Employee Option shall
become exercisable in such installments (which need not be equal) and at
such times as may be designated by the Committee and set forth in the
Agreement. To the extent not exercised, installments shall accumulate and
be exercisable, in whole or in part, at any time after becoming
exercisable, but not later than the date the Employee Option expires. The
Committee may accelerate the exercisability of any Employee Option or
portion thereof at any time.
5.5 Deferred Delivery of Option Shares. The Committee may, in its
discretion permit Optionees to elect to defer the issuance of Shares upon
the exercise of one or more Nonqualified Stock Options granted pursuant to
the Plan. The terms and conditions of such deferral shall be determined at
the time of the grant of the Option or thereafter and shall be set forth in
the Agreement evidencing the grant.
5.6 Limitations on Incentive Stock Options. To the extent that
the aggregate Fair Market Value (determined as of the date of the grant) of
Shares with respect to which Incentive Stock Options granted under the Plan
and "incentive stock options" (within the meaning of Section 422 of the
Code) granted under all other plans of the Company or its Subsidiaries (in
either case determined without regard to this Section 5.6) are exercisable
by an Optionee for the first time during any calendar year exceeds
$100,000, such Incentive Stock Options shall be treated as Nonqualified
Stock Options. For purposes of the foregoing sentence, Incentive Stock
Options shall be treated as Nonqualified Stock Options according to the
order in which they were granted such that the most recently granted
Incentive Stock Options are first treated as Nonqualified Stock Options.
6. Option Grants for Eligible Directors.
------------------------------------
Director Options with respect to 20,000 Shares shall be granted
to each Eligible Director of the Company upon his or her initial election
to the Board and every three years thereafter on the anniversary of such
Eligible Director's initial election to the Board provided such Eligible
Director is then still serving on the Board, at an exercise price per Share
equal to 100% of the Fair Market Value of a Share on the date the Director
Option is granted. Each Director Option granted to an Eligible Director
will become exercisable with respect to one-third of the underlying Shares
on each of the first, second and third anniversaries of the date the
Director Option is granted, and will have a term of ten (10) years;
provided, however, that the Committee may provide that a Director Option
may, upon the death of the Eligible Director while still serving as a
Director, be exercised at any time within one (1) year following the date
of the Eligible Director's death, even if such period extends beyond ten
(10) years from the date the Director Option is granted, by the person or
persons to whom such rights under the Director Option shall pass by will,
or by the laws of descent or distribution, after which time the Director
Option shall terminate in full. If an Eligible Director ceases to serve as
a Director for any reason, any Director Option granted to such Eligible
Director shall be exercisable during its remaining term, to the extent that
such Director Option was exercisable on the date such Eligible Director
ceased to be a Director.
7. Terms and Conditions Applicable to All Options.
----------------------------------------------
7.1 Non-Transferability. No Option shall be transferable by the
Optionee otherwise than by will or by the laws of descent and distribution
or, in the case of an Option other than an Incentive Stock Option, pursuant
to a domestic relations order (within the meaning of Rule 16a-12
promulgated under the Exchange Act), and such Option shall be exercisable
during the lifetime of an Optionee only by the Optionee or his or her
guardian or legal representative. Notwithstanding the foregoing, the
Committee may set forth in the Agreement evidencing an Option (other than
an Incentive Stock Option) at the time of grant or thereafter, that the
Option may be transferred to members of the Optionee's immediate family, to
trusts solely for the benefit of such immediate family members and to
partnerships in which such family members and/or trusts are the only
partners, and for purposes of this Plan, a transferee of an Option shall be
deemed to be the Optionee. For this purpose, immediate family means the
Optionee's spouse, parents, children, stepchildren and grandchildren and
the spouses of such parents, children, stepchildren and grandchildren. The
terms of an Option shall be final, binding and conclusive upon the
beneficiaries, executors, administrators, heirs and successors of the
Optionee.
7.2 Method of Exercise. The exercise of an Option shall be made
only by a written notice delivered in person or by mail to the Secretary of
the Company at the Company's principal executive office, specifying the
number of Shares to be exercised and , to the extent applicable,
accompanied by payment therefor and otherwise in accordance with the
Agreement pursuant to which the Option was granted; provided, however, that
Options may not be exercised by an Optionee for twelve months following a
hardship distribution to the Optionee, to the extent such exercise is
prohibited under Treasury Regulation ss.1.401(k)-1(d)(2)(iv)(B)(4). The
exercise price for any Shares purchased pursuant to the exercise of an
Option shall be paid, as determined by the Committee in its discretion, in
either of the following forms (or any combination thereof): (a) cash or (b)
the transfer, either actually or by attestation, to the Company of Shares
that have been held by the Optionee for at least six (6) months (or such
lesser period as may be permitted by the Committee), prior to the exercise
of the Option, such transfer to be upon such terms and conditions as
determined by the Committee. In addition, an Option may be exercised
through a registered broker-dealer pursuant to such cashless exercise
procedures which are, from time to time, deemed acceptable by the
Committee. Any Shares transferred to the Company as payment of the exercise
price under an Option shall be valued at their Fair Market Value on the day
preceding the date of exercise of such Option. If requested by the
Committee, the Optionee shall deliver the Agreement evidencing the Option
to the Secretary of the Company who shall endorse thereon a notation of
such exercise and return such Agreement to the Optionee. No fractional
Shares (or cash in lieu thereof) shall be issued upon exercise of an Option
and the number of Shares that may be purchased upon exercise shall be
rounded to the nearest number of whole Shares.
7.3 Rights of Optionees. No Optionee shall be deemed for any
purpose to be the owner of any Shares subject to any Option unless and
until (a) the Option shall have been exercised pursuant to the terms
thereof, (b) the Company shall have issued and delivered Shares to the
Optionee, and (c) the Optionee's name shall have been entered as a
stockholder of record on the books of the Company. Thereupon, the Optionee
shall have full voting, dividend and other ownership rights with respect to
such Shares, subject to such terms and conditions as may be set forth in
the applicable Agreement.
7.4 Effect of Change in Control. In the event of a Change in
Control, all Options outstanding on the date of such Change in Control
shall become immediately and fully exercisable. In addition, to the extent
set forth in an Agreement evidencing the grant of an Employee Option, an
Optionee will be permitted to surrender to the Company for cancellation
within sixty (60) days after such Change in Control any Employee Option or
portion of an Employee Option to the extent not yet exercised and the
Optionee will be entitled to receive a cash payment in an amount equal to
the excess, if any, of (a) (i) in the case of a Nonqualified Stock Option,
the greater of (A) the Fair Market Value, on the date preceding the date of
surrender, of the Shares subject to the Employee Option or portion thereof
surrendered or (B) the Adjusted Fair Market Value of the Shares subject to
the Employee Option or portion thereof surrendered or (ii) in the case of
an Incentive Stock Option, the Fair Market Value, on the date preceding the
date of surrender, of the Shares subject to the Employee Option or portion
thereof surrendered, over (b) the aggregate exercise price for such Shares
under the Employee Option or portion thereof surrendered. In the event an
Optionee's employment with, or service as a Director of, the Company and
its Subsidiaries terminates following a Change in Control, each Option held
by the Optionee that was exercisable as of the date of termination of the
Optionee's employment or service shall, notwithstanding any shorter period
set forth in the Agreement evidencing the Option, remain exercisable for a
period ending not before the earlier of (x) the first anniversary of the
termination of the Optionee's employment or service or (y) the expiration
of the stated term of the Option.
8. Stock Appreciation Rights.
-------------------------
The Committee may in its discretion, either alone or in
connection with the grant of an Employee Option, grant to any Eligible
Individual Stock Appreciation Rights in accordance with the Plan, the terms
and conditions of which shall be set forth in an Agreement. If granted in
connection with an Option, a Stock Appreciation Right shall cover the same
Shares covered by the Option (or such lesser number of Shares as the
Committee may determine) and shall, except as provided in this Section 8,
be subject to the same terms and conditions as the related Option.
8.1 Time of Grant. A Stock Appreciation Right may be granted (a)
at any time if unrelated to an Option, or (b) if related to an Option,
either at the time of grant, or at any time thereafter during the term of
the Option.
8.2 Stock Appreciation Right Related to an Option.
(a) Exercise. A Stock Appreciation Right granted in
connection with an Option shall be exercisable at such time or times and
only to the extent that the related Options are exercisable, and will not
be transferable except to the extent the related Option may be
transferable. A Stock Appreciation Right granted in connection with an
Incentive Stock Option shall be exercisable only if the Fair Market Value
of a Share on the date of exercise exceeds the exercise price specified in
the related Incentive Stock Option Agreement.
(b) Amount Payable. Upon the exercise of a Stock
Appreciation Right related to an Option, the Grantee shall be entitled to
receive an amount determined by multiplying (i) the excess of the Fair
Market Value of a Share on the date preceding the date of exercise of such
Stock Appreciation Right over the per Share exercise price under the
related Option, by (ii) the number of Shares as to which such Stock
Appreciation Right is being exercised. Notwithstanding the foregoing, the
Committee may limit in any manner the amount payable with respect to any
Stock Appreciation Right by including such a limit in the Agreement
evidencing the Stock Appreciation Right at the time it is granted.
(c) Treatment of Related Options and Stock Appreciation
Rights Upon Exercise. Upon the exercise of a Stock Appreciation Right
granted in connection with an Option, the Option shall be canceled to the
extent of the number of Shares as to which the Stock Appreciation Right is
exercised, and upon the exercise of an Option granted in connection with a
Stock Appreciation Right, the Stock Appreciation Right shall be canceled to
the extent of the number of Shares as to which the Option is exercised or
surrendered.
8.3 Stock Appreciation Right Unrelated to an Option. The
Committee may grant to Eligible Individuals Stock Appreciation Rights
unrelated to Options. Stock Appreciation Rights unrelated to Options shall
contain such terms and conditions as to exercisability (subject to Section
8.7), vesting and duration as the Committee shall determine, but in no
event shall they have a term of greater than ten (10) years. Upon exercise
of a Stock Appreciation Right unrelated to an Option, the Grantee shall be
entitled to receive an amount determined by multiplying (a) the excess of
the Fair Market Value of a Share on the date preceding the date of exercise
of such Stock Appreciation Right over the Fair Market Value of a Share on
the date the Stock Appreciation Right was granted, by (b) the number of
Shares as to which the Stock Appreciation Right is being exercised.
Notwithstanding the foregoing, the Committee may limit in any manner the
amount payable with respect to any Stock Appreciation Right by including
such a limit in the Agreement evidencing the Stock Appreciation Right at
the time it is granted.
8.4 Non-Transferability. No Stock Appreciation Right shall be
transferable by the Grantee otherwise than by will or by the laws of
descent and distribution or pursuant to a domestic relations order (within
the meaning of Rule 16a-12 promulgated under the Exchange Act), and such
Stock Appreciation Right shall be exercisable during the lifetime of such
Grantee only by the Grantee or his or her guardian or legal representative.
The terms of such Stock Appreciation Right shall be final, binding and
conclusive upon the beneficiaries, executors, administrators, heirs and
successors of the Grantee.
8.5 Method of Exercise. Stock Appreciation Rights shall be
exercised by a Grantee only by a written notice delivered in person or by
mail to the Secretary of the Company at the Company's principal executive
office, specifying the number of Shares with respect to which the Stock
Appreciation Right is being exercised. If requested by the Committee, the
Grantee shall deliver the Agreement evidencing the Stock Appreciation Right
being exercised and the Agreement evidencing any related Option to the
Secretary of the Company who shall endorse thereon a notation of such
exercise and return such Agreement to the Grantee.
8.6 Form of Payment. Payment of the amount determined under
Sections 8.2(b) or 8.3 may be made in the discretion of the Committee
solely in whole Shares in a number determined at their Fair Market Value on
the date preceding the date of exercise of the Stock Appreciation Right, or
solely in cash, or in a combination of cash and Shares. If the Committee
decides to make full payment in Shares and the amount payable results in a
fractional Share, payment for the fractional Share will be made in cash.
8.7 Effect of Change in Control. In the event of a Change in
Control, all Stock Appreciation Rights shall become immediately and fully
exercisable. In addition, to the extent set forth in an Agreement
evidencing the grant of a Stock Appreciation Right unrelated to an Option,
a Grantee will be entitled to receive a payment from the Company in cash or
stock, in either case, with a value equal to the excess, if any, of (a) the
greater of (i) the Fair Market Value, on the date preceding the date of
exercise, of the underlying Shares subject to the Stock Appreciation Right
or portion thereof exercised and (ii) the Adjusted Fair Market Value, on
the date preceding the date of exercise, of the Shares over (b) the
aggregate Fair Market Value, on the date the Stock Appreciation Right was
granted, of the Shares subject to the Stock Appreciation Right or portion
thereof exercised. In the event a Grantee's employment with the Company
terminates following a Change in Control, each Stock Appreciation Right
held by the Grantee that was exercisable as of the date of termination of
the Grantee's employment shall, notwithstanding any shorter period set
forth in the Agreement evidencing the Stock Appreciation Right, remain
exercisable for a period ending not before the earlier of the first
anniversary of (x) the termination of the Grantee's employment or (y) the
expiration of the stated term of the Stock Appreciation Right.
9. Dividend Equivalent Rights.
--------------------------
Dividend Equivalent Rights may be granted to Eligible Individuals
in tandem with an Option or Award or as a separate Award. The terms and
conditions applicable to each Dividend Equivalent Right shall be specified
in the Agreement under which the Dividend Equivalent Right is granted.
Amounts payable in respect of Dividend Equivalent Rights may be payable
currently or deferred until the lapsing of restrictions on such Dividend
Equivalent Rights or until the vesting, exercise, payment, settlement or
other lapse of restrictions on the Option or Award to which the Dividend
Equivalent Rights relate. In the event that the amount payable in respect
of Dividend Equivalent Rights are to be deferred, the Committee shall
determine whether such amounts are to be held in cash or reinvested in
Shares or deemed (notionally) to be reinvested in Shares. If amounts
payable in respect of Dividend Equivalent Rights are to be held in cash,
there may be credited at the end of each year (or portion thereof) interest
on the amount of the account at the beginning of the year at a rate per
annum as the Committee, in its discretion, may determine. Dividend
Equivalent Rights may be settled in cash or Shares or a combination
thereof, in a single installment or multiple installments.
10. Restricted Stock.
----------------
10.1 Grant. The Committee may grant Awards to Eligible
Individuals of Restricted Stock, which shall be evidenced by an Agreement
between the Company and the Grantee. Each Agreement shall contain such
restrictions, terms and conditions as the Committee may, in its discretion,
determine and (without limiting the generality of the foregoing) such
Agreements may require that an appropriate legend be placed on Share
certificates. Awards of Restricted Stock shall be subject to the terms and
provisions set forth below in this Section 10.
10.2 Rights of Grantee. Shares of Restricted Stock granted
pursuant to an Award hereunder shall be issued in the name of the Grantee
as soon as reasonably practicable after the Award is granted provided that
the Grantee has executed such documents which the Committee may require as
a condition to the issuance of such Shares. At the discretion of the
Committee, Shares issued in connection with a Restricted Stock Award shall
be deposited together with the stock powers with an escrow agent (which may
be the Company) designated by the Committee. Unless the Committee
determines otherwise and as set forth in the Agreement, upon delivery of
the Shares to the escrow agent, the Grantee shall have all of the rights of
a stockholder with respect to such Shares, including the right to vote the
Shares and to receive all dividends or other distributions paid or made
with respect to the Shares.
10.3 Non-transferability. Until all restrictions upon the Shares
of Restricted Stock awarded to a Grantee shall have lapsed in the manner
set forth in Section 10.4, such Shares shall not be sold, transferred or
otherwise disposed of and shall not be pledged or otherwise hypothecated.
10.4 Lapse of Restrictions.
(a) Generally. Restrictions upon Shares of Restricted Stock
awarded hereunder shall lapse at such time or times and on such terms and
conditions as the Committee may determine; provided, however, that except
in the case of Shares of Restricted Stock issued in full or partial
settlement of another Award or other earned compensation, or in the event
of the Grantee's termination of employment, as determined by the Committee
and set forth in the Agreement evidencing the Award, such restrictions
shall not fully lapse prior to the third anniversary of the date on which
such Shares of Restricted Stock were granted. The Agreement evidencing the
Award shall set forth any such restrictions.
(b) Effect of Change in Control. Unless the Committee shall
determine otherwise at the time of the grant of an Award of Restricted
Stock, the restrictions upon Shares of Restricted Stock shall lapse upon a
Change in Control. The Agreement evidencing the Award shall set forth any
such provisions.
10.5 Treatment of Dividends. At the time an Award of Shares of
Restricted Stock is granted, the Committee may, in its discretion,
determine that the payment to the Grantee of dividends, or a specified
portion thereof, declared or paid on such Shares by the Company shall be
(a) deferred until the lapsing of the restrictions imposed upon such Shares
and (b) held by the Company for the account of the Grantee until such time.
In the event that dividends are to be deferred, the Committee shall
determine whether such dividends are to be reinvested in Shares (which
shall be held as additional Shares of Restricted Stock) or held in cash. If
deferred dividends are to be held in cash, there may be credited at the end
of each year (or portion thereof) interest on the amount of the account at
the beginning of the year at a rate per annum as the Committee, in its
discretion, may determine. Payment of deferred dividends in respect of
Shares of Restricted Stock (whether held in cash or as additional Shares of
Restricted Stock), together with interest accrued thereon, if any, shall be
made upon the lapsing of restrictions imposed on the Shares in respect of
which the deferred dividends were paid, and any dividends deferred
(together with any interest accrued thereon) in respect of any Shares of
Restricted Stock shall be forfeited upon the forfeiture of such Shares.
10.6 Delivery of Shares. Upon the lapse of the restrictions on
Shares of Restricted Stock, the Committee shall cause a stock certificate
to be delivered to the Grantee with respect to such Shares, free of all
restrictions hereunder.
11. Performance Awards.
------------------
11.1 Performance Units. The Committee, in its discretion, may
grant Performance Units to Eligible Individuals, the terms and conditions
of which shall be set forth in an Agreement between the Company and the
Grantee. Performance Units may be denominated in Shares or a specified
dollar amount and represent the right, contingent upon the attainment of
specified Performance Objectives within the Performance Cycle and subject
to Section 11.3(c), to receive payment as provided in the Agreement.
Subject to Section 11.3(c), payment to Grantees in respect of vested
Performance Units shall be made as soon as practicable after the last day
of the Performance Cycle to which such Award relates unless the Agreement
evidencing the Award provides for the deferral of payment, in which event
the terms and conditions of the deferral shall be set forth in the
Agreement. Subject to Section 11.4, such payments may be made entirely in
Shares valued at their Fair Market Value as of the day preceding the date
of payment or such other date specified by the Committee, entirely in cash,
or in such combination of Shares and cash as the Committee in its
discretion shall determine at any time prior to such payment; provided,
however, that if the Committee in its discretion determines to make such
payment entirely or partially in Shares of Restricted Stock, the Committee
must determine the extent to which such payment will be in Shares of
Restricted Stock and the terms of such Restricted Stock at the time the
Award is granted.
11.2 Performance Shares. The Committee, in its discretion, may
grant Performance Shares to Eligible Individuals, which shall represent the
right, contingent upon the attainment of specified Performance Objectives
within the Performance Cycle and subject to Section 11.3(c), to receive, as
provided in the Agreement, Shares free of all restrictions under the Plan
or the Agreement. Awards of Performance Shares shall be subject to the
following terms and provisions:
(a) Issuance of Shares. Performance Shares granted pursuant
to an Award shall be issued in the name of the Grantee as soon as
reasonably practicable after the Award is granted provided that the Grantee
has executed such documents which the Committee may require as a condition
to the issuance of such Performance Shares. At the discretion of the
Committee, Shares issued in connection with an Award of Performance Shares
shall be deposited together with the stock powers with an escrow agent
(which may be the Company) designated by the Committee. Unless the
Committee determines otherwise, and as set forth in the Agreement, upon
delivery of the Shares to the escrow agent, the Grantee shall have all of
the rights of a stockholder with respect to such Shares, including the
right to vote the Shares and to receive all dividends or other
distributions paid or made with respect to the Shares.
(b) Treatment of Dividends. At the time the Award of
Performance Shares is granted, the Committee may, in its discretion,
determine that the payment to the Grantee of dividends, or a specified
portion thereof, declared or paid on Shares represented by such Award which
have been issued by the Company to the Grantee shall be (i) deferred until
the lapsing of the restrictions imposed upon such Performance Shares and
(ii) held by the Company for the account of the Grantee until such time. In
the event that dividends are to be deferred, the Committee shall determine
whether such dividends are to be reinvested in Shares (which shall be held
as additional Performance Shares) or held in cash. If deferred dividends
are to be held in cash, there may be credited at the end of each year (or
portion thereof) interest on the amount of the account at the beginning of
the year at a rate per annum as the Committee, in its discretion, may
determine. Payment of deferred dividends in respect of Performance Shares
(whether held in cash or in additional Performance Shares), together with
interest accrued thereon, if any, shall be made upon the lapsing of
restrictions imposed on the Performance Shares in respect of which the
deferred dividends were paid, and any dividends deferred (together with any
interest accrued thereon) in respect of any Performance Shares shall be
forfeited upon the forfeiture of such Performance Shares.
(c) Delivery of Shares. Upon the lapse of the restrictions
on Performance Shares awarded hereunder, the Committee shall cause a stock
certificate to be delivered to the Grantee with respect to such Shares,
free of all restrictions hereunder.
11.3 Performance Objectives
(a) Establishment. Performance Objectives for Performance
Awards may be expressed in terms of (i) earnings per Share, (ii) Share
price, (iii) pre-tax profits, (iv) net earnings, (v) return on equity or
assets, (vi) revenues, (vii) EBITDA, (viii) market share or market
penetration, (ix) any combination of the foregoing. Performance Objectives
may be in respect of the performance of the Company, any of its
Subsidiaries, any of its Divisions or any combination thereof. Performance
Objectives may be absolute or relative (to prior performance or to the
performance of one or more other entities or external indices) and may be
expressed in terms of a progression within a specified range. The
Performance Objectives with respect to a Performance Cycle shall be
established in writing by the Committee by the earlier of (x) the date on
which a quarter of the Performance Cycle has elapsed or (y) the date which
is ninety (90) days after the commencement of the Performance Cycle, and in
any event while the performance relating to the Performance Objectives
remain substantially uncertain.
(b) Effect of Certain Events. At the time of the granting of
a Performance Award, or at any time thereafter, in either case to the
extent permitted under Section 162(m) of the Code and the regulations
thereunder without adversely affecting the treatment of the Performance
Award as Performance-Based Compensation, the Committee may provide for the
manner in which performance will be measured against the Performance
Objectives (or may adjust the Performance Objectives) to reflect the impact
of specified corporate transactions, special charges, foreign currency
effects, accounting or tax law changes and other extraordinary or
nonrecurring events.
(c) Determination of Performance. Prior to the vesting,
payment, settlement or lapsing of any restrictions with respect to any
Performance Award that is intended to constitute Performance-Based
Compensation made to a Grantee who is subject to Section 162(m) of the
Code, the Committee shall certify in writing that the applicable
Performance Objectives have been satisfied.
11.4 Effect of Change in Control. In the event of a Change in
Control:
(a) With respect to Performance Units, the Grantee shall (i)
become vested in all or a portion of the Performance Units as determined by
the Committee at the time of the Award of such Performance Units and as set
forth in the Agreement and (ii) be entitled to receive in respect of all
Performance Units which become vested as a result of a Change in Control a
cash payment within ten (10) days after such Change in Control in an amount
as determined by the Committee at the time of the Award of such Performance
Unit and as set forth in the Agreement.
(b) With respect to Performance Shares, all or a portion of
any unissued Performance Shares shall be issued and restrictions shall
lapse immediately on all or a portion of the Performance Shares in each
case as determined by the Committee at the time of the Award of such
Performance Shares and as set forth in the Agreement.
(c) The Agreements evidencing Performance Shares and
Performance Units shall provide for the treatment of such Awards (or
portions thereof) which do not become vested as the result of a Change in
Control, including, but not limited to, provisions for the adjustment of
applicable Performance Objectives.
11.5 Non-transferability. Until the vesting of Performance Units
or the lapsing of any restrictions on Performance Shares, as the case may
be, such Performance Units or Performance Shares shall not be sold,
transferred or otherwise disposed of and shall not be pledged or otherwise
hypothecated.
12. Other Share Based Awards.
------------------------
12.1 Share Awards. The Committee may grant a Share Award to any
Eligible Individual on such terms and conditions as the Committee may
determine in its sole discretion. Share Awards may be made as additional
compensation for services rendered by the Eligible Individual or may be in
lieu of cash or other compensation to which the Eligible Individual is
entitled from the Company.
12.2 Phantom Stock Awards.
--------------------
(a) Grant. The Committee may, in its discretion, grant
shares of Phantom Stock to any Eligible Individuals. Such Phantom Stock
shall be subject to the terms and conditions established by the Committee
and set forth in the applicable Agreement.
(b) Payment of Awards. Upon the vesting of a Phantom Stock
Award, the Grantee shall be entitled to receive a cash payment in respect
of each share of Phantom Stock which shall be equal to the Fair Market
Value of a Share as of the date the Phantom Stock Award was granted, or
such other date as determined by the Committee at the time the Phantom
Stock Award was granted. The Committee may, at the time a Phantom Stock
Award is granted, provide a limitation on the amount payable in respect of
each share of Phantom Stock. In lieu of a cash payment, the Committee may
settle Phantom Stock Awards with Shares having a Fair Market Value equal to
the cash payment to which the Grantee has become entitled.
12.3 Director Shares. Each Eligible Director shall be granted
1,000 Director's Shares upon his or her initial election to the Board.
Director's Shares shall be fully vested and transferable upon issuance.
13. Effect of a Termination of Employment.
-------------------------------------
The Agreement evidencing the grant of each Option and each Award
shall set forth the terms and conditions applicable to such Option or Award
upon a termination, retirement or other change in the status of the
employment of the Optionee or Grantee by the Company, a Subsidiary or a
Division (including a termination or change by reason of the sale of a
Subsidiary or a Division), which, except for Director Options, shall be as
the Committee may, in its discretion, determine at the time the Option or
Award is granted or thereafter.
14. Adjustment Upon Changes in Capitalization.
-----------------------------------------
(a) In the event of a Change in Capitalization, the
Committee shall conclusively determine the appropriate adjustments, if any,
to (i) the maximum number and class of Shares or other stock or securities
with respect to which Options or Awards may be granted under the Plan, (ii)
the maximum number and class of Shares or other stock or securities with
respect to which Options or Awards may be granted to any Eligible
Individual in any three (3) calendar year period, (iii) the number and
class of Shares or other stock or securities which are subject to
outstanding Options or Awards granted under the Plan and the exercise price
therefor, if applicable, (iv) the number and class of Shares or other
securities in respect of which Director Options are to be granted under
Section 6, (v) the number and class of Shares or other stock or securities
with respect to which Director Shares are to be granted under Section 12.3,
and (vii) the Performance Objectives.
(b) Any such adjustment in the Shares or other stock or
securities subject to outstanding Incentive Stock Options (including any
adjustments in the exercise price) shall be made in such manner as not to
constitute a modification as defined by Section 424(h)(3) of the Code and
only to the extent otherwise permitted by Sections 422 and 424 of the Code.
(c) If, by reason of a Change in Capitalization, a Grantee
of an Award shall be entitled to, or an Optionee shall be entitled to
exercise an Option with respect to, new, additional or different shares of
stock or securities, such new, additional or different shares shall
thereupon be subject to all of the conditions, restrictions and performance
criteria which were applicable to the Shares subject to the Award or
Option, as the case may be, prior to such Change in Capitalization.
15. Effect of Certain Transactions.
------------------------------
Subject to Sections 7.4, 8.7, 10.4(b) and 11.4 or as otherwise
provided in an Agreement, in the event of (a) the liquidation or
dissolution of the Company or (b) a merger or consolidation of the Company
(a "Transaction"), the Plan and the Options and Awards issued hereunder
shall continue in effect in accordance with their respective terms, except
that following a Transaction each Optionee and Grantee shall be entitled to
receive in respect of each Share subject to any outstanding Options or
Awards, as the case may be, upon exercise of any Option or payment or
transfer in respect of any Award, the same number and kind of stock,
securities, cash, property or other consideration that each holder of a
Share was entitled to receive in the Transaction in respect of a Share;
provided, however, that such stock, securities, cash, property, or other
consideration shall remain subject to all of the conditions, restrictions
and performance criteria which were applicable to the Options and Awards
prior to such Transaction.
16. Interpretation.
--------------
(a) The Plan is intended to comply with Rule 16b-3
promulgated under the Exchange Act and the Committee shall interpret and
administer the provisions of the Plan or any Agreement in a manner
consistent therewith. Any provisions inconsistent with such Rule shall be
inoperative and shall not affect the validity of the Plan.
(b) Unless otherwise expressly stated in the relevant
Agreement, each Option, Stock Appreciation Right and Performance Award
granted under the Plan is intended to be Performance-Based Compensation.
The Committee shall not be entitled to exercise any discretion otherwise
authorized hereunder with respect to such Options or Awards if the ability
to exercise such discretion or the exercise of such discretion itself would
cause the compensation attributable to such Options or Awards to fail to
qualify as Performance-Based Compensation.
17. Pooling Transactions.
--------------------
Notwithstanding anything contained in the Plan or any Agreement
to the contrary, in the event of a Change in Control which is also intended
to constitute a Pooling Transaction, the Committee shall make such
equitable adjustments to outstanding Options and Awards, if any, as are
specifically recommended by an independent accounting firm retained by the
Company to the extent reasonably necessary in order to assure that the
Pooling Transaction will qualify as such, including but not limited to (a)
deferring the vesting, exercise, payment, settlement or lapsing of
restrictions with respect to any Option or Award, (b) providing that the
payment or settlement in respect of any Option or Award be made in the form
of cash, Shares or securities of a successor or acquirer of the Company, or
a combination of the foregoing, and (c) providing for the extension of the
term of any Option or Award to the extent necessary to accommodate the
foregoing, but not beyond the maximum term permitted for any Option or
Award.
18. Termination and Amendment of the Plan or Modification
of Options and Awards.
-----------------------------------------------------
18.1 Plan Amendment or Termination. The Plan shall terminate on
the day preceding the tenth anniversary of the date of its adoption by the
Board and no Option or Award may be granted thereafter. The Board may
sooner terminate the Plan and the Board may at any time and from time to
time amend, modify or suspend the Plan; provided, however, that:
(a) no such amendment, modification, suspension or
termination shall impair or adversely alter any Options or Awards
theretofore granted under the Plan, except with the consent of the Optionee
or Grantee, nor shall any amendment, modification, suspension or
termination deprive any Optionee or Grantee of any Shares which he or she
may have acquired through or as a result of the Plan; and
(b) to the extent necessary under any applicable law,
regulation or exchange requirement no amendment shall be effective unless
approved by the stockholders of the Company in accordance with applicable
law, regulation or exchange requirement.
18.2 Modification of Options and Awards. No modification of an
Option or Award shall adversely alter or impair any rights or obligations
under the Option or Award without the consent of the Optionee or Grantee,
as the case may be.
19. Non-Exclusivity of the Plan.
---------------------------
The adoption of the Plan by the Board shall not be construed as
amending, modifying or rescinding any previously approved incentive
arrangement or as creating any limitations on the power of the Board to
adopt such other incentive arrangements as it may deem desirable,
including, without limitation, the granting of stock options otherwise than
under the Plan, and such arrangements may be either applicable generally or
only in specific cases.
20. Limitation of Liability.
-----------------------
As illustrative of the limitations of liability of the Company,
but not intended to be exhaustive thereof, nothing in the Plan shall be
construed to:
(a) give any person any right to be granted an Option or
Award other than at the sole discretion of the Committee;
(b) give any person any rights whatsoever with respect to
Shares except as specifically provided in the Plan;
(c) limit in any way the right of the Company or any
Subsidiary to terminate the employment of any person at any time; or
(d) be evidence of any agreement or understanding, expressed
or implied, that the Company will employ any person at any particular rate
of compensation or for any particular period of time.
21. Regulations and Other Approvals; Governing Law.
----------------------------------------------
21.1 Except as to matters of federal law, the Plan and the rights
of all persons claiming hereunder shall be construed and determined in
accordance with the laws of the State of Delaware without giving effect to
conflicts of laws principles thereof.
21.2 The obligation of the Company to sell or deliver Shares with
respect to Options and Awards granted under the Plan shall be subject to
all applicable laws, rules and regulations, including all applicable
federal and state securities laws, and the obtaining of all such approvals
by governmental agencies as may be deemed necessary or appropriate by the
Committee.
21.3 The Board may make such changes as may be necessary or
appropriate to comply with the rules and regulations of any government
authority, or to obtain for Eligible Individuals granted Incentive Stock
Options the tax benefits under the applicable provisions of the Code and
regulations promulgated thereunder.
21.4 Each Option and Award is subject to the requirement that, if
at any time the Committee determines, in its discretion, that the listing,
registration or qualification of Shares issuable pursuant to the Plan is
required by any securities exchange or under any state or federal law, or
the consent or approval of any governmental regulatory body is necessary or
desirable as a condition of, or in connection with, the grant of an Option
or Award or the issuance of Shares, no Options or Awards shall be granted
or payment made or Shares issued, in whole or in part, unless listing,
registration, qualification, consent or approval has been effected or
obtained free of any conditions as acceptable to the Committee.
21.5 Notwithstanding anything contained in the Plan or any
Agreement to the contrary, in the event that the disposition of Shares
acquired pursuant to the Plan is not covered by a then current registration
statement under the Securities Act of 1933, as amended (the "Securities
Act"), and is not otherwise exempt from such registration, such Shares
shall be restricted against transfer to the extent required by the
Securities Act and Rule 144 or other regulations thereunder. The Committee
may require any individual receiving Shares pursuant to an Option or Award
granted under the Plan, as a condition precedent to receipt of such Shares,
to represent and warrant to the Company in writing that the Shares acquired
by such individual are acquired without a view to any distribution thereof
and will not be sold or transferred other than pursuant to an effective
registration thereof under said Act or pursuant to an exemption applicable
under the Securities Act or the rules and regulations promulgated
thereunder. The certificates evidencing any of such Shares shall be
appropriately amended to reflect their status as restricted securities as
aforesaid.
22. Withholding of Taxes.
--------------------
22.1 At such times as the Company becomes obligated to pay
withholding taxes in connection with the granting, vesting, settlement, or
exercise of an Award or Option hereunder (a "Withholding Event"), the
Optionee or Grantee shall pay to the Company an amount equal to the
federal, state and local income taxes and other amounts as may be required
by law to be withheld by the Company in connection with the Withholding
Event (the "Withholding Taxes") prior to the issuance, or release from
escrow, of such Shares or the payment of such cash. In satisfaction of the
obligation to pay Withholding Taxes, the Company shall have the right to
(i) deduct from any payment of cash to an Optionee or Grantee an amount
equal to the Withholding Taxes, or (ii) withhold from any Shares issuable
to an Optionee or Grantee the number of Shares having a Fair Market Value
equal to the Withholding Taxes. The Committee may provide in the Agreement
at the time of grant, or at any time thereafter, that the Optionee or
Grantee, in satisfaction of the obligation to pay Withholding Taxes to the
Company, may elect to have withheld a portion of the Shares then issuable
to him or her having an aggregate Fair Market Value equal to the
Withholding Taxes. The Committee may also include in an Agreement that the
Optionee or Grantee is required to satisfy the obligation to pay
Withholding Taxes by having the Company withhold a portion of the Shares
then issuable to him or her having an aggregate Fair Market Value equal to
the Withholding Taxes.
22.2 If an Optionee makes a disposition, within the meaning of
Section 424(c) of the Code and regulations promulgated thereunder, of any
Share or Shares issued to such Optionee pursuant to the exercise of an
Incentive Stock Option within the two-year period commencing on the day
after the date of the grant or within the one-year period commencing on the
day after the date of transfer of such Share or Shares to the Optionee
pursuant to such exercise, the Optionee shall, within ten (10) days of such
disposition, notify the Company thereof, by delivery of written notice to
the Company at its principal executive office.
23. Effective Date. The effective date of this Plan shall be as
determined by the Board, subject only to the approval by the affirmative
vote of the holders of a majority of the securities of the Company present,
or represented, and entitled to vote at a meeting of stockholders duly held
in accordance with the applicable laws of the State of Delaware within
twelve (12) months of the adoption of the Plan by the Board.
Exhibit 4.4
[Form of common stock certificate of
General Semiconductor, Inc.]
NUMBER COMMON STOCK
SHARES
INCORPORATED UNDER THE GENERAL SEMICONDUCTOR, THIS CERTIFICATE IS
LAWS OF THE STATE OF INC. TRANSFERABLE IN NEW
DELAWARE YORK, N.Y. AND
RIDGEFIELD PARK, N.J.
THIS CERTIFIES that CUSIP 376787 10 3
is the owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF COMMON STOCK, PAR VALUE $.01 PER
SHARE OF
GENERAL SEMICONDUCTOR, INC. transferable on the books of the Corporation in
person or by duly authorized attorney upon surrender of this Certificate
properly endorsed. This certificate is not valid unless countersigned and
registered by the Transfer Agent and Registrar.
WITNESS the facsimile seal of the Corporation and the facsimile
signatures of its authorized officers.
Dated:
General Semiconductor, Inc.
CORPORATE /s/ Ronald A. Ostertag
SEAL CHAIRMAN, PRESIDENT
1990 & CHIEF EXECUTIVE OFFICER
DELAWARE
* /s/ Stephen B. Paige
SECRETARY
COUNTERSIGNED AND REGISTERED:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
BY TRANSFER AGENT
AND REGISTRAR
AUTHORIZED SIGNATURE
<PAGE>
[Form of reverse of common stock certificate of General Semiconductor, Inc.]
GENERAL SEMICONDUCTOR, INC.
The Corporation will furnish without charge of each
stockholder who so requests, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of
stock or series thereof and the qualifications, limitations or restrictions
of such preferences and/or rights. Such request should be sent to the
Secretary of the Corporation at its home office, or to its Transfer Agent
named on the face of this certificate.
The following abbreviations, when used in the inscription on
the face of this certificate, shall be construed as though they were
written out in full according to applicable laws or regulations:
TEN COM -- as tenants in UNIF GIFT MIN ACT -- _______ Custodian ______
common (Cust) (Minor)
TEN ENT -- as tenants by under Uniform Gifts to Minors
the entireties Act __________________
(State)
JT TEN -- as joint tenants
with right of
survivorship and
not as tenants in
common
Additional abbreviations may also be used though not in the
above list.
For value received, __________________________ hereby sell,
assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- - ---------------------------------------
- - -----------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
- - -----------------------------------------------------------------------------
shares
- - ------------------------------------------------------------
of the capital stock represented by the within Certificate,
and do hereby irrevocably constitute and appoint
Attorney
- - ------------------------------------------------------------
to transfer the said stock on the books of the within named
Corporation with full power of substitution in the premises.
Dated
------------------
---------------------------------------------------------
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND
WITH THE NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE
IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR
ANY CHANGE WHATEVER.
SIGNATURE GUARANTEED:
- - ------------------------------------
This certificate also evidences and entitles the holder
hereof to certain rights as set forth in a Rights Agreement between General
Semiconductor, Inc. (formerly General Instrument Corporation) and
ChaseMellon Shareholder Services, L.L.C., dated as of January 6, 1997 (the
"Rights Agreement"), the terms of which are hereby incorporated herein by
reference and a copy of which is on file at the principal executive offices
of General Semiconductor, Inc. Under certain circumstances, as set forth in
the Rights Agreement, such Rights will be evidenced by separate
certificates and will no longer be evidenced by this certificate. General
Semiconductor, Inc. will mail to the holder of this certificate a copy of
the Rights Agreement without charge after receipt of a written request
therefor from such holder. Under certain circumstances set forth in the
Rights Agreement, Rights issued to, or held by, any Person who is, was or
becomes an Acquiring Person or an Affiliate or Associate thereof (as
defined in the Rights Agreement) and certain related persons, whether
currently held by or on behalf of such Person or by any subsequent holder,
may become null and void.
Exhibit 5.1
212-859-8076
July 20, 1998 (FAX: 212-859-8587)
General Semiconductor, Inc.
10 Melville Park Road
Melville, New York 11747
Ladies and Gentlemen:
We have acted as special counsel for General Semiconductor, Inc., a
Delaware corporation (the "Company), in connection with the registration,
pursuant to a Post-Effective Amendment No. 1 to the Registration Statement
(Reg. No. 333-22861) on Form S-8 (the "Form S-8), of 4,900,000 shares (the
"Shares") of Common Stock, par value $.01 per share, of the Company. The
Shares may be issued by the Company under the General Semiconductor, Inc.
1998 Long-Term Incentive Plan upon the exercise or grant of options,
restricted stock, performance units, stock appreciation rights, performance
shares and phantom stock to employees, officers, consultants and advisors
of the Company and its subsidiaries and non-employee directors. With your
permission, all assumptions and statements of reliance herein have been
made without any independent investigation or verification on our part
except to the extent otherwise expressly stated, and we express no opinion
with respect to the subject matter or accuracy of such assumptions or items
relied upon.
In connection with this opinion, we have (i) investigated such
questions of law, (ii) examined originals or certified, conformed or
reproduction copies of such agreements, instruments, documents and records
of the Company, such certificates of public officials and such other
documents, and (iii) received such information from officers and
representatives of the Company as we have deemed necessary or appropriate
for the purposes of this opinion. We have examined, among other documents,
the following:
(a) the General Semiconductor, Inc. 1998 Long-Term Incentive
Plan (including the related option agreements, the "Plan");
(b) the Form S-8;
(c) the Company's Board of Directors' resolutions, dated March
18, 1998;
(d) the Company's Amended and Restated Certificate of
Incorporation and By-Laws; and
(e) the Report of the Inspectors of Election from the Company's
1998 Annual Meeting.
The documents referred to in items (a) through (e) above, inclusive, are
referred to herein collectively as the "Documents".
In all such examinations, we have assumed the legal capacity of
all natural persons executing Documents, the genuineness of all signatures,
the authenticity of original and certified documents and the conformity to
original or certified documents of all copies submitted to us as conformed
or reproduction copies. As to various questions of fact relevant to the
opinions expressed herein, we have relied upon, and assume the accuracy of,
representations and warranties contained in the Documents and certificates
and oral or written statements and other information of or from
representatives of the Company and others and assume compliance on the part
of all parties to the Documents with their covenants and agreements
contained therein.
Based upon the foregoing and subject to the limitations,
qualifications and assumptions set forth herein, we are of the opinion that
the issuance of the Shares pursuant to the Plan has been duly authorized
and that such Shares, when issued, paid for and delivered as authorized in
accordance with the Plan, will be validly issued, fully paid and
non-assessable.
The opinions expressed herein are limited to the laws of the
United States of America and the General Corporation Law of the State of
Delaware, as currently in effect. The opinions expressed herein are given
as of the date hereof, and we undertake no obligation to supplement this
letter if any applicable laws change after the date hereof or if we become
aware of any facts that might change the opinions expressed herein after
the date hereof or for any other reason.
We hereby consent to the filing of this opinion as an exhibit to
the Form S-8 relating to the registration of the Shares. In giving such
consent, we do not hereby admit that we are in the category of such persons
whose consent is required under Section 7 of the Securities Act of 1933, as
amended.
The opinions expressed herein are solely for your benefit in
connection with the Form S-8 and may not be relied on in any manner or for
any purpose by any other person or entity.
Very truly yours,
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON
By: /s/ Lois Herzeca
------------------------------------
Lois Herzeca
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
- - -----------------------------
We consent to the incorporation by reference in this Post-Effective Amendment
No. 1 to Registration Statement No. 333-22861 of General Semiconductor, Inc.
on Form S-8 of our report dated January 28, 1998, appearing in the Annual
Report on Form 10-K of General Semiconductor, Inc. for the year ended
December 31, 1997.
/S/DELOITTE & TOUCHE LLP
Jericho, New York
July 17, 1998
