As filed with the Securities and Exchange Commission on May 12, 2000
Registration No. 333-__________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
GUILFORD MILLS, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 13-1995928
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
4925 WEST MARKET STREET
GREENSBORO, NORTH CAROLINA 27407
(336) 316-4000
(Address, Including Zip Code, and Telephone Number,
including Area Code, of Registrant's Principal Executive Offices)
GUILFORD MILLS, INC.
NON-EMPLOYEE DIRECTOR STOCK PLAN
(Full Title of Plan)
CHARLES A. HAYES
CHAIRMAN OF THE BOARD
GUILFORD MILLS, INC.
4925 WEST MARKET STREET
GREENSBORO, NORTH CAROLINA 27407
(336) 316-4000
(Name and Address, Including Zip Code,
and Telephone Number, Including Area Code, of Agent For Service)
Copies to:
JEFFREY E. TABAK, ESQ.
WEIL, GOTSHAL & MANGES LLP
767 FIFTH AVENUE
NEW YORK, NEW YORK 10153
(212) 310-8000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================================
Proposed Maximum Proposed Maximum
Title of Each Class of Securities to be Amount to be Offering Price Aggregate Offering Amount of
Registered Registered (1)(3) Per Share (2)(3) Price (2)(3) Registration Fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $0.02 per share
(including Preferred Stock Purchase Rights) (3) 100,000 shares $7.1875 $718,750 $190
====================================================================================================================================
</TABLE>
(1) Plus such indeterminate number of shares of Common Stock of the
Registrant as may be issued to prevent dilution resulting from stock
dividends, stock splits or similar transactions in accordance with
Rule 416 under the Securities Act of 1933.
(2) Estimated pursuant to Rule 457(h) and Rule 457(c) under the
Securities Act of 1933, based upon the average of the high and low
prices of the Registrant's Common Stock as reported on the New York
Stock Exchange on May 10, 2000.
(3) Prior to the occurrence of certain events, the Preferred Stock
Purchase Rights will not be evidenced separately from the Common
Stock; the value attributable to such Rights, if any, is reflected in
the market price of the Common Stock.
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<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part
I of this Registration Statement will be sent or given to plan participants as
specified by Rule 428(b)(1) under the Securities Act of 1933, as amended (the
"Securities Act"). Such documents are not required to be and are not filed with
the Securities and Exchange Commission (the "Commission") either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424. These documents and the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Part II of this Form S-8, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Commission (File No.
1-6922) by Guilford Mills, Inc. (the "Company") are incorporated herein by
reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
October 3, 1999;
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
January 2, 2000; and
(c) The description of the Company's Common Stock, par value $0.02 per
share (the "Common Stock"), contained in the Registration
Statement on Form 8-A as filed with the Commission pursuant to
Section 12 of the Securities Exchange Act of 1934 (the "Exchange
Act"), including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment to this Registration Statement
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents.
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 General Corporation Law of the State of
Delaware ("Section 145") empowers a corporation to indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that such person is or was a director,
officer, employee or agent of the corporation or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation or enterprise. Depending on the character of the proceeding, a
corporation may indemnify against expenses (including attorneys' fees),
judgments, fines and/or amounts paid in settlement actually and reasonably
incurred in connection with such action, suit or proceeding if the person
indemnified acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interest of the corporation, and, with
respect to any criminal action or proceeding, had no cause to believe such
person's conduct was unlawful. In the case of an action by or in the right of
the corporation, no indemnification may be made in respect of any claim, issue
or matter as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine that despite the
adjudication of liability such person is fairly and reasonably entitled to
indemnify for such expenses which the court shall deem proper. Section 145
II-1
<PAGE>
further provides that to the extent a director, officer, employee or agent of a
corporation has been successful in the defense of any action, any claim, issue
or matter therein, such person shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by such person in connection
therewith. Section 145 also states that the indemnification and advancement of
expenses provided for in such section shall not be deemed exclusive of any other
rights to which the indemnified party may be entitled and empowers the
corporation to purchase and maintain insurance on behalf of directors, officers,
employees and agents of the corporation against any liability asserted against
such person or incurred by such person in any such capacity or arising out of
such person's status as such whether or not the corporation would have the power
to indemnify such person against such liabilities under Section 145.
Indemnification rights and advancement of expenses to which a director, officer,
employee or agent is entitled under Section 145 continue for the benefit of the
successors of such person.
The By-laws of the Company contain provisions which are
designed to provide for indemnification of the directors and officers of the
Company to the full extent permitted by law, as now in effect or later amended.
In addition to the Company's By-law provisions, the Company
maintains liability insurance for its and its subsidiaries' directors and
officers for certain losses arising from claims or charges made against them in
their capacities as directors and officers of the Company or of a subsidiary.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT NO. DESCRIPTION
- ----------- --------------------------------------------------------------
4(a) - Restated Certificate of Incorporation of the Company, dated
June 8, 1999 (incorporated by reference to Exhibit 3 to the
Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended July 4, 1999).
4(b) - By-Laws of the Company, as amended through January 1, 2000
(incorporated by reference to Exhibit 3 to the Company's
Quarterly Report on Form 10-Q for the fiscal quarter ended
January 2, 2000).
4(c) - Rights Agreement dated as of August 23, 1990 between the
Company and The First National Bank of Boston, as Rights Agent
(incorporated by reference to Exhibit 1 to the Company's
Current Report on Form 8-K filed with the SEC on September 7,
1990).
4(d) - Appointment of Successor Rights agent, dated January 28,
1994, between the Company and Wachovia Bank of North Carolina,
N.A. (incorporated by reference to Exhibit 4(e) to the
Company's Annual Report of Form 10-K for the fiscal Year ended
October 1, 1995).
4(e) - Appointment of Successor Rights Agent, dated as of April 1,
1999, between the Company and American Stock Transfer & Trust
Company (incorporated by reference to Exhibit 4(a) to the
Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended April 4, 1999).
II-2
<PAGE>
23 - Consent of Arthur Andersen LLP. (filed herewith)
24 - Power of Attorney (included as part of the signature page to
this Registration Statement and incorporated herein by
reference).
99(a) - Guilford Mills, Inc. Non-Employee Director Stock Plan.
(filed herewith)
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are
being made, a post-effective amendment to this
Registration Statement;
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the
Registration Statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth
in the Registration Statement. Notwithstanding
the foregoing, any increase or decrease in
volume of securities offered (if the total
dollar value of securities offered would not
exceed that which was registered) and any
deviation from the low or high end of the
estimated maximum offering range may be
reflected in the form of prospectus filed with
the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price
represent no more than a 20 percent change in
the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table
in the effective Registration Statement;
(iii) to include any material information with respect
to the plan of distribution not previously
disclosed in the Registration Statement or any
material change to such information in the
Registration Statement;
provided, however, that paragraph (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by the foregoing paragraphs is
contained in periodic reports filed with or furnished to the
Commission by the Company pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference in
the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment
shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the
offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each
filing of the Registrant's annual report pursuant to Section
II-3
<PAGE>
13(a) or Section 15(d) of the Exchange Act that is incorporated
by reference in the Registration Statement shall be deemed to be
a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that
in the opinion of the Securities and Exchange 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 Registrant of expenses incurred or paid
by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final
adjudication of such issue.
II-4
<PAGE>
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 Greensboro, State of North Carolina, on this 12th
day of May, 2000.
GUILFORD MILLS, INC.
By: Terrence E. Geremski
----------------------------------
Name: Terrence E. Geremski
Title: Executive Vice President
and Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints each of Terrence E. Geremski,
Robert A. Emken, Jr., or any of them, each acting individually, such person's
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for such person and in such person's name, place and stead, in
any and all capacities, to sign any and all amendments to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorney-in-fact and agent 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 such person might or could do
in person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his or her 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 date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
Charles A. Hayes Chairman of the Board May 12, 2000
- ------------------------------------------------ of Directors
Charles A. Hayes
John A. Emrich Director; President May 12, 2000
- ------------------------------------------------ and Chief Executive Officer
John A. Emrich (Principal Executive Officer)
Terrence E. Geremski Director; Executive May 12, 2000
- ------------------------------------------------ Vice President and Chief Financial
Terrence E. Geremski Officer (Principal Financial
and Accounting Officer)
George Greenberg Vice Chairman of the May 12, 2000
- ------------------------------------------------ Board of Directors
George Greenberg
Tomokazu Adachi Director May 12, 2000
- ------------------------------------------------
Tomokazu Adachi
II-5
<PAGE>
Donald B. Dixon Director May 12, 2000
- ------------------------------------------------
Donald B. Dixon
Paul G. Gillease Director May 12, 2000
- ------------------------------------------------
Paul G. Gillease
Bruno Hofmann Director May 12, 2000
- ------------------------------------------------
Bruno Hofmann
Director May 12, 2000
- ------------------------------------------------
Stephen C. Hassenfelt
Sherry R. Jacobs Director May 12, 2000
- ------------------------------------------------
Sherry R. Jacobs
Stig A. Kry Director May 12, 2000
- ------------------------------------------------
Stig A. Kry
Grant M. Wilson Director May 12, 2000
- ------------------------------------------------
Grant M. Wilson
Jacobo Zaidenweber Director May 12, 2000
- ------------------------------------------------
Jacobo Zaidenweber
II-6
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
- ----------- --------------------------------------------------------------
4(a) - Restated Certificate of Incorporation of the Company, dated
June 8, 1999 (incorporated by reference to Exhibit 3 to the
Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended July 4, 1999).
4(b) - By-Laws of the Company, as amended through January 1, 2000
(incorporated by reference to Exhibit 3 to the Company's
Quarterly Report on Form 10-Q for the fiscal quarter ended
January 2, 2000).
4(c) - Rights Agreement dated as of August 23, 1990 between the
Company and The First National Bank of Boston, as Rights Agent
(incorporated by reference to Exhibit 1 to the Company's
Current Report on Form 8-K filed with the SEC on September 7,
1990).
4(d) - Appointment of Successor Rights agent, dated January 28,
1994, between the Company and Wachovia Bank of North Carolina,
N.A. (incorporated by reference to Exhibit 4(e) to the
Company's Annual Report of Form 10-K for the fiscal Year ended
October 1, 1995).
4(e) - Appointment of Successor Rights Agent, dated as of April 1,
1999, between the Company and American Stock Transfer & Trust
Company (incorporated by reference to Exhibit 4(a) to the
Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended April 4, 1999).
23 - Consent of Arthur Andersen LLP. (filed herewith)
24 - Power of Attorney (included as part of the signature page to
this Registration Statement and incorporated herein by
reference).
99(a) - Guilford Mills, Inc. Non-Employee Director Stock Plan.
(filed herewith)
</TABLE>
Exhibit 23
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in the Registration Statement on Form S-8 of Guilford
Mills, Inc. (the "Company") (which relates to the registration of 100,000 shares
of common stock under the Company's Non-Employee Director Stock Plan) of our
reports dated November 11, 1999, included in and incorporated by reference in
the Company's Form 10-K for the year ended October 3, 1999.
ARTHUR ANDERSEN LLP
Greensboro, North Carolina
May 11, 2000
Exhibit 99(a)
GUILFORD MILLS, INC.
NON-EMPLOYEE DIRECTOR STOCK PLAN
1. PURPOSE
The Guilford Mills, Inc. Non-Employee Director Stock Plan (the
"Plan") is intended to assist in aligning the compensation of the non-employee
directors of Guilford Mills, Inc. (the "Company") to the interests of the
Company's stockholders and the performance of the Company.
2. ADMINISTRATION
The Plan will be administered by the Board of Directors of the
Company (the "Board") or by a committee (the "Committee") appointed by the Board
from among its members (the Board or the Committee being the "Administrator").
The Administrator is authorized, subject to the provisions of the Plan, to
establish such rules and regulations as it deems necessary for the proper
administration of the Plan and to make such determinations and interpretations
and to take such action in connection with the Plan as it deems necessary or
advisable. All determinations and interpretations made by the Administrator
shall be binding and conclusive on all participants and their legal
representatives.
3. PARTICIPANTS
Participation in the Plan shall be limited to members of the Board
who are not employees of the Company or any of its direct or indirect
subsidiaries (a "Participant").
4. ANNUAL GRANTS OF RESTRICTED STOCK UNITS
(a) On the date of each Annual Meeting of Stockholders (the "Annual
Meeting"), each Participant who is serving as a member of the Board immediately
following the Annual Meeting (whether as a result of election, re-election or
continuation of service) shall be automatically granted a number of restricted
stock units ("RSUs") determined as set forth below. An RSU represents a notional
amount representing one share of the Company's common stock, par value $0.02 per
share (the "Common Stock"). Upon the initial grant of any RSUs to a Participant,
the Company shall establish an account with respect to such Participant (the
"Participant's Unit Account") in which account the Company shall record the
number of RSUs credited to such Participant.
(b) The number of RSUs granted to each Participant on the date of
each Annual Meeting shall be equal to the quotient of (x) $20,000 divided by (y)
the average fair market value per share of Common Stock (as defined in Section
11 hereof) over the ten (10) trading days immediately preceding the date of the
Annual Meeting for such year. The number of RSUs credited to a Participant's
Unit Account will be calculated to the nearest one-one thousandth.
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<PAGE>
(c) Within fifteen calendar days following each Annual Meeting, each
Participant shall make an election (using a form prescribed by the
Administrator) to receive the number of shares of Common Stock distributable to
such Participant in respect of such Participant's Unit Account in accordance
with the Plan, either:
(1) in a single distribution on the first day of the month
subsequent to the month in which such Participant ceased to be a
member of the Board, or
(2) in five (5) substantially equal annual installments commencing
on the first day of the month subsequent to the month in which
such Participant ceased to be a member of the Board.
If a Participant fails to make an election, then such Participant
shall be deemed to have made an election to receive a single distribution.
A Participant may amend his or her election by giving written notice
to the Secretary of the Company (on a form prescribed by the Administrator) at
any time up to the date six months prior to the date upon which such Participant
ceases to be a member of the Board.
5. VESTING; NON-TRANSFERABILITY
All grants of RSUs shall vest immediately on the date of grant.
Except as provided in Section 8 hereof, no RSUs or other rights under this Plan
shall be transferable otherwise than by will or the laws of descent and
distribution.
6. DIVIDEND EQUIVALENTS
On each dividend payment date in respect of Common Stock, dividend
equivalents in the form of additional RSUs shall be credited to each
Participant's Unit Account in an amount equal to: (a) in the case of a cash
dividend, (X) the per share cash dividend multiplied by the number of RSUs in
the Participant's Unit Account divided by (Y) the average fair market value per
share of Common Stock over the ten (10) trading days immediately preceding the
date on which such dividend was declared; and (b) in the case of a dividend of
property other than cash (a "Non-Cash Dividend), (X) the per share fair market
value of the Non-Cash Dividend, as determined by the Administrator, multiplied
by the number of RSUs in the Participant's Unit Account divided by (Y) the
average fair market value per share of Common Stock over the ten (10) trading
days immediately preceding the date on which such dividend was declared. If a
Participant has elected pursuant to Section 4(c) hereof to receive annual
installments, additional RSUs shall continue to be credited to a Participant's
Unit Account in accordance with this Section 6 following such Participant
ceasing to be a member of the Board. The number of RSUs credited to a
Participant's Unit Account will be calculated to the nearest one-one thousandth.
2
<PAGE>
7. DISTRIBUTIONS
(a) No distributions of shares of Common Stock in respect of RSUs
credited to a Participant's Unit Account shall be made except as provided in
this Section 7 and in Section 8.
(b) Subject to Sections 8 and 10 hereof, shares of Common Stock
distributable to a Participant in respect of RSUs credited to such Participant's
Unit Account shall be distributed in accordance with Section 4 hereof as elected
by the Participant. If a Participant has elected to receive annual installments,
shares of Common Stock in respect of additional RSUs credited to a Participant's
Unit Account pursuant to Section 6 hereof following such Participant ceasing to
be a member of the Board shall be included with the next annual installment. No
fractional shares of Common Stock shall be issued pursuant to the Plan, and no
amount of other property shall be issued or paid in lieu of fractional shares.
8. DISTRIBUTIONS UPON DEATH
A Participant may designate a beneficiary or beneficiaries to receive
shares of Common Stock distributable in respect of RSUs in the event of the
Participant's death. A designation of beneficiary or beneficiaries shall be on a
form prescribed by the Administrator and filed with the secretary of the
Company. If no beneficiary has been designated, such shares shall be distributed
to the Participant's estate in the event of death. Notwithstanding a
Participant's election to receive distributions in annual installments, the
Administrator may, in its sole discretion, following the death of a Participant
and at the request of a designated beneficiary or legal representative of the
Participant, accelerate such distributions.
9. COMMON STOCK AVAILABLE UNDER THE PLAN; ADJUSTMENTS
(a) Subject to any adjustments made in accordance with Section 9(b)
hereof, the maximum number of shares of Common Stock that may be delivered to
Participants and their beneficiaries under this Plan shall be equal to 100,000
shares of Common Stock, which may be authorized and unissued or treasury shares.
(b) If there shall be any change in the Common Stock of the Company,
through merger, consolidation, reorganization, recapitalization, stock dividend,
stock split, reverse stock split, split up, spinoff, combination of shares,
exchange of shares, dividend in kind or other like change in capital structure
or distribution (other than normal cash dividends) to stockholders of the
Company, an adjustment shall be made to each RSU such that each such RSU shall
thereafter be convertible into such securities, cash and/or other property as
would have been received in respect of the Common Stock subject to such RSU had
such number of shares of Common Stock issuable in respect of such RSU been
issued immediately prior to such change or distribution, and such an adjustment
shall be made successively each time any such change shall occur. In addition,
in the event of any such change or distribution, in order to prevent dilution or
enlargement of Participants' rights under the Plan, the Administrator shall
3
<PAGE>
adjust, in an equitable manner, the number and kind of shares of Common Stock
that may be issued under the Plan.
10. SECURITIES LAWS COMPLIANCE
The Administrator may require each Participant purchasing or
receiving shares of Common Stock to represent to and agree with the Company in
writing that such Participant is acquiring the shares without a view to the
public resale or distribution thereof in violation of applicable laws and
containing such other representations, warranties and covenants as the
Administrator deems necessary or appropriate to ensure that the issuance of
shares of Common Stock issued pursuant to this Plan are not required to be
registered pursuant to the Securities Act of 1933 or any applicable laws. The
certificates for any shares of Common Stock issued pursuant to this Plan may
include any legend that the Administrator deems appropriate to reflect any
restrictions on transfer and such shares, when issued, may not be immediately
transferable.
11. FAIR MARKET VALUE PER SHARE
If shares of Common Stock are listed on a national securities
exchange in the United States on any date on which the fair market value per
share is to be determined, the fair market value per share shall be deemed to be
the average of the high and low quotations at which such shares are sold on such
national securities exchange on the date of determination. If the shares of
Common Stock are listed on a national securities exchange in the United States
on the date of determination, but the shares are not traded on such date, the
fair market value per share shall be deemed to be the average of the closing bid
and asked quotations for such shares as quoted on such national securities
exchange on the date of determination. If shares of Common Stock are listed on
more than one national securities exchange in the United States on the date on
which the fair market value per share is to be determined, the Administrator, in
its sole discretion, shall determine which national securities exchange shall be
used for the purpose of determining the fair market value per share.
If a public market shall exist for shares of Common Stock but such
stock is not listed on a national securities exchange in the United States, the
fair market value per share shall be deemed to be the average of the bid and
asked quotations in the over-the-counter market for such shares on the date of
determination. If there is no bid and asked quotation for such shares on the
date of determination, the fair market value per share shall be determined as of
the closest preceding date on which there were bid and asked quotations for such
shares.
If the shares of Common Stock are not listed on a national securities
exchange in the United States and a public market does not exist for the Common
Stock, the fair market value per share shall be determined by the Administrator
in good faith.
4
<PAGE>
12. DURATION, AMENDMENT AND TERMINATION
The Plan shall continue indefinitely until terminated by the
Administrator. The Administrator may amend the Plan from time to time or suspend
or terminate the Plan at any time.
13. GENERAL PROVISIONS
(a) Nothing in this Plan or in any instrument executed pursuant
hereto shall confer upon any person any right to continue to serve as a director
of the Company.
(b) No shares of Common Stock shall be issued in consideration of an
RSU unless and until all legal requirements applicable to the issuance of such
shares have been complied with in the opinion of counsel to the Company. In
connection with any such issuance, the person acquiring the shares shall, if
requested by the Company, give assurances, satisfactory to counsel to the
Company, in respect of such matters as the Company may deem desirable to assure
compliance with all applicable legal requirements.
(c) Neither a Participant nor any other person shall, by reason of
this Plan, acquire any right in or title to any assets, funds or property of the
Company or any of its direct or indirect subsidiaries whatsoever. A Participant
shall have only a contractual right to shares of Common Stock distributable
under, and in accordance, with this Plan.
(d) RSUs credited to a Participant's Unit Account shall not confer
upon such Participant any rights as a stockholder of the Company prior to the
date on which shares of Common Stock are issued to such Participant pursuant to
the Plan.
(e) Nothing in this Plan is intended to be a substitute for, or shall
preclude or limit the establishment or continuation of, any other plan, practice
or arrangement for the payment of compensation or benefits to Participants that
the Company now has or may hereafter put into effect.
(f) It shall be a condition to the obligation of the Company to issue
shares of Common Stock hereunder, that the Participant pay to the Company, upon
its demand, such amount as may be requested by the Company for the purpose of
satisfying any liability to withhold federal, state, local or foreign income or
other taxes. If the amount requested is not paid, the Company shall have no
obligation to issue, and the Participant shall have no right to receive, shares
of Common Stock.
14. GOVERNING LAW
This Plan, RSUs granted hereunder and actions taken in connection
herewith shall be governed and construed in accordance with the internal laws of
the State of Delaware, without giving effect to its choice-of-law provisions.
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15. EFFECTIVE DATE
This Plan shall be effective as of February 2, 2000.
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