<PAGE>
As filed with the Securities and Exchange Commission on April 27, 1998
Registration No. 333-_____
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-----------------------
INTEK GLOBAL CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 04-2450145
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
214 CARNEGIE CENTER, SUITE 304
PRINCETON, NEW JERSEY 08540-6237
(Address of Principal Executive Offices and Zip Code)
-----------------------
INTEK GLOBAL CORPORATION 1997 PERFORMANCE
AND EQUITY INCENTIVE PLAN
(Full Title of Plan)
-----------------------
--------------------
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
INTEK GLOBAL CORPORATION
214 CARNEGIE CENTER, SUITE 304
PRINCETON, NEW JERSEY 08540-6237
(Name and address of agent for service)
(609) 419-1222
(Telephone number, including area code, of agent for service)
WITH A COPY TO:
NANCY H. WOJTAS
MANATT, PHELPS & PHILLIPS, LLP
11355 WEST OLYMPIC BOULEVARD
LOS ANGELES, CALIFORNIA 90064
Calculation of Registration Fee
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
to be Registered Registered(1) per Share(2) Offering Price(2) Registration Fee
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 4,000,000 $3.5625 $14,250,000 4,204
$.01 par value
</TABLE>
(1) This Registration Statement covers, in addition to the number of shares of
Common Stock stated above, such indeterminate number of shares of Common
Stock as may be issued upon exercise of options granted under the
Registrant's 1997 Performance and Equity Incentive Plan as a result of
adjustment provisions thereto.
(2) Estimated solely for purposes of calculating the amount of the registration
fee pursuant to Rule 457, based upon the average of the high and low prices
of the Common Stock as reported on the Nasdaq SmallCap Market System on
April 20, 1998.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The following documents listed under this Part I and the documents
incorporated by reference under Item 3 of Part II to this Form S-8, taken
together, constitute a prospectus that meets the requirements of Section
10(a) of the Securities Act of 1933, as amended (the "Securities Act"), and
are incorporated herein by reference.
Item 1. PLAN INFORMATION
(a) Intek Global Corporation 1997 Performance and Equity Incentive Plan
(b) Prospectus for the 1997 Performance and Equity Incentive Plan
(c) Form of Non-Statutory Stock Option Agreement for directors
(d) Form of Non-Statutory Stock Option Agreement for key employees
Item 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
The written statement required to be provided to participants pursuant
to this Item 2 is set forth in the Prospectus referred to in Item 1 above.
I-1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Intek Global Corporation (the "Registrant") hereby files this
Registration Statement on Form S-8 with the Securities and Exchange
Commission (the "Commission") to register 4,000,000 shares of the
Registrant's Common Stock for issuance pursuant to the Registrant's 1997
Performance and Equity Incentive Plan (the "Plan"), and such indeterminate
number of shares as may become available under the Plan as a result of the
adjustment provisions thereof.
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents previously filed by the Registrant with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
September 30, 1997 filed pursuant to Section 13(a) or 15(d) of the
Exchange Act;
(b) All other reports filed by the Registrant pursuant to Section 13(a)
or 15(d) of the Exchange Act since the end of the latest fiscal year
covered by the Annual Report referred to in (a) above; and
(c) The description of the Common Stock contained in its Registration
Statement on Form 8-A dated April 17, 1980 (File No. 0-09160), filed
with the Commission pursuant to Section 12(g) of the Exchange Act
(there being no further amendment or report filed for the purpose of
updating such description).
All documents filed by the Registrant pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act subsequent to the date of this Registration
Statement and 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
filing of such documents.
Any statement made in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which is also
incorporated or deemed to be incorporated by reference herein 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 of this Registration Statement.
Item 4. DESCRIPTION OF SECURITIES
Not applicable.
II-1
<PAGE>
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Certain statutes, Article X of the Company's Restated Certificate of
Incorporation, Section 7 of the Company's By-laws, contracts and other
arrangements provide that, in certain cases, the liability of each director
shall be limited and each officer and director and controlling person of the
Company shall be indemnified by the Company against certain costs, expenses
and liabilities which he or she may incur in his or her capacity as such, and
insuring the Registration under certain circumstances, in the event that
indemnification payments are made by the Registrant to such directors and
officers.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
<TABLE>
<CAPTION>
Item 8. EXHIBITS
Exhibit
Number Description
------ -----------
<S> <C> <C>
5.1 Opinion of Manatt, Phelps & Phillips, LLP
23.1 Consent of Manatt, Phelps & Phillips, LLP (see Exhibit
5.1)
23.2 Consent of Arthur Andersen LLP
23.3 Consent of Baker Tilly
24.1 Power of Attorney (see page II-5)
99.1 Intek Global Corporation 1997 Performance and Equity
Incentive Plan
99.2 Form of Non-Statutory Stock Option Agreement for
directors
99.3 Form of Non-Statutory Stock Option Agreement for key
employees
</TABLE>
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:
II-2
<PAGE>
(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 this 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
this 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) of the Securities Act if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective Registration Statement; and
(iii) 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;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in the post-effective
amendment by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in this
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 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.
(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 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-3
<PAGE>
(d) The undersigned Registrant hereby undertakes to deliver or cause to
be delivered with the Prospectus, to each person to whom the Prospectus is
sent or given, the latest annual report to security holders that is
incorporated by reference in the Prospectus and furnished pursuant to and
meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Exchange Act;
and, where interim financial information required to be presented by Article
3 of Regulation S-X are not set forth in the Prospectus, to deliver, or cause
to be delivered to each person to whom the Prospectus is sent or given, the
latest quarterly report that is specifically incorporated by reference in the
Prospectus to provide such interim financial information.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Los Angeles, State of California, on this 23rd day
of April, 1998.
INTEK GLOBAL CORPORATION
By /s/
------------------------------
Robert J. Shiver
Chairman and Chief Executive Officer
By /s/
------------------------------
D. Gregg Marston
Interim Chief Financial Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints each of Robert J. Shiver and D. Gregg Marston
his true and lawful attorney-in-fact and agent, each with full power of
substitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments to this Registration Statement, and
to file the same with all exhibits thereto, and all other documents in
connection therewith, with the Commission, granting unto each said
attorney-in-fact and agent with 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, hereby ratifying and confirming all that each said attorney-in-fact
and agent, or his substitute, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
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>
/s/ Chairman and April 23, 1998
- --------------------- Chief Executive Officer
Robert J. Shiver
/s/ Secretary and Director April 23, 1998
- ---------------------
Steven L. Wasserman
/s/ Director April 23, 1998
- ---------------------
Roger Wiggs
/s/ Director April 23, 1998
- ---------------------
Michael Wilkinson
/s/ Director April 23, 1998
- ---------------------
Robert Kelly
/s/ Director April 23, 1998
- ---------------------
John G. Simmonds
/s/ Director April 23, 1998
- ---------------------
John Wareham
</TABLE>
II-5
<PAGE>
INTEK GLOBAL CORPORATION
FORM S-8
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
<S> <C>
5.1 Opinion of Manatt, Phelps & Phillips, LLP
23.1 Consent of Manatt, Phelps & Phillips, LLP
(see Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP
23.3 Consent of Baker Tilly
24.1 Power of Attorney (see page II-5)
99.1 Intek Global Corporation 1997 Performance
and Equity Incentive Plan
99.2 Form of Non-Statutory Stock Option Agreement
for directors
99.3 Form of Non-Statutory Stock Option Agreement
for key employees
</TABLE>
II-6
<PAGE>
EXHIBIT 5.1
OPINION OF MANATT, PHELPS & PHILLIPS, LLP
<PAGE>
[LETTERHEAD OF MANATT, PHELPS & PHILLIPS, LLP]
April 27, 1998
Intek Global Corporation
214 Carnegie Center
Suite 304
Princeton, New Jersey 08540-6237
RE: REGISTRATION STATEMENT ON FORM S-8
Gentlemen:
At our request, we have examined the Registration Statement on Form S-8
(the "Registration Statement") to be filed by Intek Global Corporation, a
Delaware corporation (the "Company"), with the Securities and Exchange
Commission (the "Commission") in connection with the registration under the
Securities Act of 1933, as amended (the "Securities Act"), of 4,000,000
shares of the Company's common stock, no par value (the "Common Stock"), that
may be issued in the aggregate upon the exercise of awards granted under the
Company's 1997 Performance and Equity Incentive Plan (the "Plan").
In rendering this opinion, we have examined such documents and records
as we deemed relevant, including, but not limited to, the following:
1. The Restated Certificate of Incorporation of the Company, as amended
to date;
2. The Bylaws of the Company, as amended to date;
3. The Plan;
4. The Form of Incentive Stock Option Agreement and the Form of
Non-Qualified Stock Option Agreement (collectively the "Agreements")
to be used in connection with the Plan;
5. Records of proceedings of the Company's Board of Directors and
shareholders pertaining to the adoption or amendment of the Plan and
the Agreements; and
<PAGE>
Intek Global Corporation
April 27, 1998
Page 2
6. The Registration Statement.
With respect to the foregoing documents, we have assumed the genuineness
of all signatures, the authenticity of all documents submitted to us as
originals and the conformity to originals of all documents submitted to us as
certified or reproduced copies. We also have obtained from the officers of
the Company certificates as to such factual matters as we consider necessary
for the purpose of this opinion, and insofar as this opinion is based on such
matters of fact, we have relied on such certificates.
On the basis of the foregoing, subject to the assumptions, limitations
and exceptions set forth herein, we are of the opinion that the 4,000,000
shares of Common Stock issuable by the Company upon the exercise of awards
granted pursuant to the Plan will be, when issued and delivered against
payment therefor in accordance with the Plan, the Agreements and the
Registration Statement, duly authorized, validly issued, fully paid and
non-assessable.
For the purpose of rendering the opinions set forth herein, and with
your consent, we have assumed, without investigation, that: (i) all awards
granted under the Plan to date have been, and all awards to be granted under
the Plan will be, duly and validly granted in accordance with the terms of
the Plan, (ii) the consideration for the shares of Common Stock to be issued
pursuant to the exercise of such awards will be received prior to the
issuance thereof, (iii) the shares of Common Stock to be issued pursuant to
the exercise of such awards will be issued in accordance with the terms of
the Plan and the Agreements, (iv) the Registration Statement will become
effective under the Securities Act prior to the issuance of any shares of
Common Stock under the Plan and no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or be pending before the Commission, (v) a
prospectus will be updated and delivered to participants in the Plan as
required by the Securities Act and the rules and regulations promulgated by
the Commission thereunder and (vi) the grant of such awards and the issuance
of shares of Common Stock upon the exercise thereof will comply with the
securities laws of each state or jurisdiction applicable thereto (other than
the Securities Act).
This opinion is limited to the current laws of the State of California,
Delaware General Corporation Law and the Securities Act and the rules and
regulations promulgated by the Commission thereunder, to present judicial
interpretations thereof and to facts as they presently exist. In rendering
this opinion, we have no obligation to revise or supplement it should the
current laws of the State of California, Delaware General Corporation Law or
the Securities Act or such rules and regulations be changed by legislative
action, judicial decision or otherwise.
<PAGE>
Intek Global Corporation
April 27, 1998
Page 3
This opinion is issued to you solely for use in connection with the
Registration Statement and is not to be quoted or otherwise referred to in
any financial statements of the Company or related document, nor is it to be
filed with or furnished to any government agency or other person, without the
prior written consent of the undersigned in each instance.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ MANATT, PHELPS & PHILLIPS, LLP
<PAGE>
EXHIBIT 23.2
CONSENT OF ARTHUR ANDERSEN LLP
<PAGE>
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Intek Global Corporation on Form S-8 of our report dated January 2, 1998
appearing in the Annual Report on Form 10-K of Intek Global Corporation for the
year ended September 30, 1997.
Arthur Andersen LLP
Los Angeles, California
April 17, 1998
<PAGE>
EXHIBIT 23.3
CONSENT OF BAKER TILLY
<PAGE>
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Intek Global Corporation on Form S-8 of our report dated January 24, 1997
appearing in the Annual Report on Form 10-K of Intek Global Corporation for the
year ended September 30, 1997.
Baker Tilly
Chartered Accountants
London, England
April 17, 1998
<PAGE>
EXHIBIT 99.1
INTEK GLOBAL CORPORATION
1997 PERFORMANCE AND EQUITY INCENTIVE PLAN
<PAGE>
INTEK GLOBAL CORPORATION
1997 PERFORMANCE AND EQUITY INCENTIVE PLAN
1.0 DEFINITIONS
The following terms shall have the following meanings unless the context
indicates otherwise:
1.1 "AWARD" shall mean either a Stock Option, an SAR, a Stock Award, a
Stock Unit, a Performance Share, a Performance Unit, or a Cash Award.
1.2 "AWARD AGREEMENT" shall mean a written agreement between the
Company and the Participant that establishes the terms, conditions,
restrictions and/or limitations applicable to an Award in addition to those
established by the Plan and by the Committee's exercise of its administrative
powers.
1.3 "BOARD" shall mean the Board of Directors of the Company.
1.4 "CASH AWARD" shall mean the grant by the Committee to a Participant
of an award of cash under Section 11 below.
1.5 "CODE" shall mean the Internal Revenue Code of 1986, as amended
from time to time.
1.6 "COMMITTEE" shall mean (i) the Board or (ii) a committee or
subcommittee of the Board appointed by the Board from among its members. The
Committee may be the Board's Compensation Committee. Unless the Board
determines otherwise, the Committee shall be comprised solely of not less
than two members who each shall qualify as (x) a "Non-Employee Director"
within the meaning of Rule 16b-3(b)(3) (or any successor rule) under the
Exchange Act and (y) an "outside director" within the meaning of Section
162(m) of the Code and the Treasury Regulations thereunder.
1.7 "COMMON STOCK" shall mean the common stock, $.01 par value per
share, of the Company.
1.8 "COMPANY" shall mean Intek Global Corporation, a Delaware corporation.
1.9 "DIVIDEND EQUIVALENT RIGHT" shall mean the right to receive the
amount of any dividend paid on the share of Common Stock underlying a Stock
Unit or a Performance Unit, which shall be payable in cash, in Common Stock,
in the form of additional Stock Units or Performance Units (as the case may
be), or a combination of all of the foregoing.
1.10 "EFFECTIVE DATE" shall mean the date on which the Plan is adopted
by the Board.
<PAGE>
1.11 "EMPLOYEE" shall mean an employee of the Company or any Subsidiary
as described in Treasury Regulation Section 1.421-7(h).
1.12 "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended from time to time, including applicable regulations thereunder.
1.13 "FAIR MARKET VALUE OF THE COMMON STOCK" shall mean:
(a) if the Common Stock is readily tradeable on a national
securities exchange or other market system, the closing price of the
Common Stock on the date of calculation (or on the last preceding trading
date if Common Stock was not traded on such date), or
(b) if the Common Stock is not readily tradeable on a national
securities exchange or other market system:
(i) the book value of a share of Common Stock as of the last
day of the last completed fiscal quarter preceding the date of
calculation; or
(ii) any other value as otherwise determined in good faith by
the Board.
1.14 "INDEPENDENT CONTRACTOR" shall mean a person (who is not an Employee
or a Nonemployee Director) or an entity that renders services to the Company.
1.15 "ISO" shall mean an "incentive stock option" as such term is used in
Code Section 422.
1.16 "NONEMPLOYEE DIRECTOR" shall mean a member of the Board who is not an
Employee.
1.17 "NONQUALIFIED STOCK OPTION" shall mean a Stock Option that does not
qualify as an ISO.
1.18 "PARTICIPANT" shall mean any Employee, Nonemployee Director or
Independent Contractor to whom an Award has been granted by the Committee under
the Plan.
1.19 "PERFORMANCE-BASED AWARD" shall mean an Award subject to the
achievement of certain performance goal or goals as described in Section 12
below.
1.20 "PERFORMANCE SHARE" shall mean the grant by the Committee to a
Participant of an Award as described in Section 10.1 below.
1.21 "PERFORMANCE UNIT" shall mean the grant by the Committee to a
Participant of an Award as described in Section 10.2 below.
<PAGE>
1.22 "PLAN" shall mean the Intek Global Corporation 1997 Performance and
Equity Incentive Plan.
1.23 "SAR" shall mean the grant by the Committee to a Participant of a
stock appreciation right as described in Section 8 below.
1.24 "STOCK AWARD" shall mean the grant by the Committee to a Participant
of an Award of Common Stock under Section 9.1 below.
1.25 "STOCK OPTION" shall mean the grant by the Committee to a Participant
of an option to purchase Common Stock under Section 7 below.
1.26 "STOCK UNIT" shall mean the grant by the Committee to a Participant
of an Award as described in Section 9.2 below.
1.27 "SUBSIDIARY" shall mean a corporation of which the Company directly
or indirectly owns more than 50 percent of the Voting Stock or any other
business entity in which the Company directly or indirectly has an ownership
interest of more than 50 percent.
1.28 "TREASURY REGULATIONS" shall mean the regulations promulgated under
the Code by the United States Department of the Treasury, as amended from time
to time.
1.29 "VEST" shall mean:
(a) with respect to Stock Options and SARs, when the Stock Option or
SAR (or a portion of such Stock Option or SAR) first becomes exercisable
and remains exercisable subject to the terms and conditions of such Stock
Option or SAR; or
(b) with respect to all Awards, when the Participant has:
(i) an unrestricted right, title and interest to receive the
compensation (whether payable in Common Stock, cash or a combination
of both) attributable to an Award (or a portion of such Award) or to
otherwise enjoy the benefits underlying such Award; and
(ii) a right to transfer an Award subject to no Company-imposed
restrictions or limitations other than restrictions and/or
limitations imposed by Section 14 below.
1.30 "VESTING DATE" shall mean the date or dates on which an Award Vests.
1.31 "VOTING STOCK" shall mean the capital stock of any class or classes
having general voting power under ordinary circumstances, in the absence of
contingencies, to elect the directors of a corporation.
<PAGE>
2.0 PURPOSE AND TERM OF PLAN
2.1 PURPOSE. The purpose of the Plan is to provide motivation to certain
Employees, Nonemployee Directors and Independent Contractors to put forth
maximum efforts toward the growth, profitability, and success of the Company and
Subsidiaries by providing incentives to such Employees, Nonemployee Directors
and Independent Contractors either through cash payments and/or through the
ownership and performance of the Common Stock. In addition, the Plan is intended
to provide incentives which will attract and retain highly qualified individuals
as Employees and Nonemployee Directors and to assist in aligning the interests
of such Employees and Nonemployee Directors with those of its stockholders.
2.2 TERM. The Plan shall be effective as of the Effective Date; PROVIDED,
HOWEVER, that the Plan shall be approved by the stockholders of the Company at
an annual meeting or any special meeting of stockholders of the Company within
12 months before or after the Effective Date, and such approval by the
stockholders of the Company shall be a condition to the right of each
Participant to receive Awards hereunder. Any Award granted under the Plan prior
to the approval by the stockholders of the Company shall be effective as of the
date of grant (unless the Committee specifies otherwise at the time of grant),
but no such Award may Vest, be paid out, or otherwise disposed of prior to such
stockholder approval. If the stockholders of the Company fail to approve the
Plan in accordance with this Section 2.2, any Award granted under the Plan shall
be cancelled. The Plan shall terminate on the 10th anniversary of the Effective
Date (unless sooner terminated by the Board).
3.0 ELIGIBILITY AND PARTICIPATION
3.1 ELIGIBILITY AND PARTICIPATION. All Employees of the Company, all
Nonemployee Directors and Independent Contractors shall be eligible to
participate in the Plan and to receive Awards. Participants shall consist of
such Employees, Nonemployee Directors and Independent Contractors as the
Committee in its sole discretion designates to receive Awards under the Plan.
Designation of a Participant in any year shall not require the Committee to
designate such person or entity to receive an Award in any other year or, once
designated, to receive the same type or amount of Award as granted to the
Participant in any other year. The Committee shall consider such factors as it
deems pertinent in selecting Participants and in determining the type and amount
of their respective Awards.
4.0 ADMINISTRATION
4.1 RESPONSIBILITY. The Committee shall have the responsibility, in its
sole discretion, to control, operate, manage and administer the Plan in
accordance with its terms.
4.2 AWARD AGREEMENT. Each Award granted under the Plan shall be evidenced
by an Award Agreement which shall be signed by the Committee and the
Participant; PROVIDED, HOWEVER, that in the event of any conflict between a
provision of the Plan and any provision of an Award Agreement, the provision of
the Plan shall prevail.
<PAGE>
4.3 AUTHORITY OF THE COMMITTEE. The Committee shall have all the
discretionary authority that may be necessary or helpful to enable it to
discharge its responsibilities with respect to the Plan, including but not
limited to the following:
(a) to determine eligibility for participation in the Plan;
(b) to determine eligibility for and the type and size of an Award
granted under the Plan;
(c) to supply any omission, correct any defect, or reconcile any
inconsistency in the Plan in such manner and to such extent as it shall
deem appropriate in its sole discretion to carry the same into effect;
(d) to issue administrative guidelines as an aid to administer the
Plan and make changes in such guidelines as it from time to time deems
proper;
(e) to make rules for carrying out and administering the Plan and
make changes in such rules as it from time to time deems proper;
(f) to the extent permitted under the Plan, to grant waivers of Plan
terms, conditions, restrictions, and limitations;
(g) to accelerate the Vesting of any Award when such action or
actions would be in the best interest of the Company;
(h) to grant Award in replacement of Awards previously granted under
this Plan or any other executive compensation plan of the Company; and
(i) to take any and all other actions it deems necessary or advisable
for the proper operation or administration of the Plan.
4.4 ACTION BY THE COMMITTEE. The Committee may act only by a majority of
its members. Any determination of the Committee may be made, without a meeting,
by a writing or writings signed by all of the members of the Committee. In
addition, the Committee may authorize any one or more of its members to execute
and deliver documents on behalf of the Committee.
4.5 DELEGATION OF AUTHORITY. The Committee may delegate to one or more of
its members, or to one or more agents, such administrative duties as it may deem
advisable; PROVIDED, HOWEVER, that any such delegation shall be in writing. In
addition, the Committee, or any person to whom it has delegated duties under
this Section 4.5, may employ one or more persons to render advice with respect
to any responsibility the Committee or such person may have under the Plan. The
Committee may employ such legal or other counsel, consultants and agents as it
may deem desirable for the administration of the Plan and may rely upon any
opinion or computation received from any such counsel, consultant or agent.
Expenses incurred by the
<PAGE>
Committee in the engagement of such counsel, consultant or agent shall be
paid by the Company, or the Subsidiary whose employees have benefitted from
the Plan, as determined by the Committee.
4.6 DETERMINATIONS AND INTERPRETATIONS BY THE COMMITTEE. All
determinations and interpretations made by the Committee shall be binding and
conclusive on all Participants and their heirs, successors, and legal
representatives.
4.7 LIABILITY. No member of the Board, no member of the Committee and no
employee of the Company shall be liable for any act or failure to act hereunder,
except in circumstances involving his or her bad faith, gross negligence or
willful misconduct, or for any act or failure to act hereunder by any other
member or employee or by any agent to whom duties in connection with the
administration of the Plan have been delegated.
4.8 INDEMNIFICATION. The Company shall indemnify members of the Committee
and any agent of the Committee who is an employee of the Company, against any
and all liabilities or expenses to which they may be subjected by reason of any
act or failure to act with respect to their duties on behalf of the Plan, except
in circumstances involving such person's bad faith, gross negligence or willful
misconduct.
5.0 SHARES SUBJECT TO PLAN
5.1 AVAILABLE SHARES. The aggregate number of shares of Common Stock
which shall be available for grants of Awards under the Plan during its term
shall be the sum of (i) 4,000,000 shares (which shall be subject to the
approval by the Company's stockholders in accordance with Section 2.2 above)
and (ii) the number of shares of Common Stock available for grants as of the
Effective Date under the Company's (x) 1988 Key Employee Stock Plan, as
amended, (y) 1994 Non-Employee Directors' Stock Option Plan, and (z) 1994
Stock Option Plan. Such shares of Common Stock available for issuance under
the Plan may be either authorized but unissued shares, shares of issued stock
held in the Company's treasury, or both, at the discretion of the Company,
and subject to any adjustments made in accordance with Section 5.2 below. Any
shares of Common Stock underlying Awards which terminate by expiration,
forfeiture, cancellation or otherwise without the issuance of such shares
shall again be available for grants of Awards under the Plan.
5.2 ADJUSTMENT TO SHARES. If there is any change in the Common Stock of
the Company, through merger, consolidation, reorganization, recapitalization,
stock dividend, stock split, reverse stock split, split-up, split-off, spin-off,
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 outstanding
Award so that each such Award shall thereafter be with respect to or exercisable
for such securities, cash and/or other property as would have been received in
respect of the Common Stock subject to such Award had such Award been paid,
distributed or exercised in full immediately prior to such change or
distribution. Such adjustment shall be made successively each
<PAGE>
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 Committee shall have the authority
to adjust, in an equitable manner, the number and kind of shares that may be
issued under the Plan, the number and kind of shares subject to outstanding
Awards, the exercise price applicable to outstanding Stock Options, and the
Fair Market Value of the Common Stock and other value determinations
applicable to outstanding Awards. Appropriate adjustments may also be made by
the Committee in the terms of any Awards granted under the Plan to reflect
such changes or distributions and to modify any other terms of outstanding
Awards on an equitable basis, including modifications of performance goals
and changes in the length of performance periods. In addition, the Committee
is authorized to make adjustments to the terms and conditions of, and the
criteria included in, Awards in recognition of unusual or nonrecurring events
affecting the Company or the financial statements of the Company, or in
response to changes in applicable laws, regulations, or accounting
principles. Notwithstanding anything contained in the Plan, any adjustment
with respect to an ISO due to a change or distribution described in this
Section 5.2 shall comply with the rules of Code Section 424(a), and in no
event shall any adjustment be made which would render any ISO granted
hereunder other than an incentive stock option for purposes of Code Section
422.
6.0 MAXIMUM INDIVIDUAL AWARDS
6.1 MAXIMUM AGGREGATE NUMBER OF SHARES UNDERLYING STOCK-BASED AWARDS
GRANTED UNDER THE PLAN TO ANY SINGLE PARTICIPANT. The maximum aggregate number
of shares of Common Stock underlying all Awards measured in shares of Common
Stock (whether payable in Common Stock, cash or a combination of both) that may
be granted to any single Participant during the life of the Plan shall be
3,000,000 shares, subject to adjustment as provided in Section 5.2 above. For
purposes of the preceding sentence, such Awards that are cancelled or repriced
shall continue to be counted in determining such maximum aggregate number of
shares of Common Stock that may be granted to any single Participant during the
life of the Plan.
6.2 MAXIMUM DOLLAR AMOUNT UNDERLYING CASH-BASED AWARDS GRANTED UNDER THE
PLAN TO ANY SINGLE PARTICIPANT. The maximum dollar amount that may be paid to
any single Participant with respect to any single Award measured in cash
(whether payable in Common Stock, cash or a combination of both) during the life
of the Plan shall be $3,000,000, irrespective of the length of the performance
period with respect to such Award.
7.0 STOCK OPTIONS
7.1 IN GENERAL. The Committee may, in its sole discretion, grant Stock
Options to Employees, Nonemployee Directors and Independent Contractors on or
after the Effective Date. The Committee shall, in its sole discretion, determine
the Employees, the Nonemployee Directors and Independent Contractors who will
receive Stock Options and the number of shares of Common Stock underlying each
Stock Option. With respect to Employees who become Participants, the Committee
may grant such Participants ISOs or Nonqualified Stock Options or a combination
of both. With respect to Nonemployee Directors and Independent Contractors who
<PAGE>
become Participants, the Committee may grant such Participants only
Nonqualified Stock Options. Each Stock Option shall be subject to such terms
and conditions consistent with the Plan as the Committee may impose from time
to time. In addition, each Stock Option shall be subject to the following
terms and conditions set forth in Sections 7.2 through 7.8 below.
7.2 EXERCISE PRICE. The Committee shall specify the exercise price of
each Stock Option in the Award Agreement; PROVIDED, HOWEVER, that (i) the
exercise price of any ISO shall not be less than 100 percent of the Fair Market
Value of the Common Stock on the date of grant, and (ii) the exercise price of
any Nonqualified Stock Option shall not be less than 100 percent of the Fair
Market Value of the Common Stock on the date of grant unless the Committee--in
its sole discretion and due to special circumstances--determines otherwise on
the date of grant.
7.3 TERM OF STOCK OPTION. The Committee shall specify the term of each
Stock Option in the Award Agreement; PROVIDED, HOWEVER, that (i) no ISO shall be
exercised after the 10th anniversary of the date of grant of such ISO and
(ii) no Nonqualified Stock Option shall be exercised after the 20th anniversary
of the date of grant of such Nonqualified Stock Option. Each Stock Option shall
terminate at such earlier times and upon such conditions or circumstances as the
Committee shall, in its sole discretion, set forth in the Award Agreement on the
date of grant.
7.4 VESTING DATE. The Committee shall specify the Vesting Date with
respect to each Stock Option in the Award Agreement. The Committee may grant
Stock Options that are Vested, either in whole or in part, on the date of grant.
If the Committee fails to specify a Vesting Date in the Award Agreement,
20 percent of such Stock Option shall become exercisable on each of the first 5
anniversaries of the date of grant and shall remain exercisable following such
anniversary date until the Stock Option expires in accordance with its terms
under the Award Agreement or under the terms of the Plan. The Vesting of a Stock
Option may be subject to such other terms and conditions as shall be determined
by the Committee, including, without limitation, accelerating the Vesting if
certain performance goals are achieved.
7.5 EXERCISE OF STOCK OPTIONS. The Stock Option exercise price may be
paid in cash or, in the sole discretion of the Committee, by the delivery of
shares of Common Stock then owned by the Participant, by the withholding of
shares of Common Stock for which a Stock Option is exercisable, or by a
combination of these methods. In the sole discretion of the Committee,
payment may also be made by delivering a properly executed exercise notice to
the Company together with a copy of irrevocable instructions to a broker to
deliver promptly to the Company the amount of sale or loan proceeds to pay
the exercise price. To facilitate the foregoing, the Company may enter into
agreements for coordinated procedures with one or more brokerage firms. The
Committee may prescribe any other method of paying the exercise price that it
determines to be consistent with applicable law and the purpose of the Plan,
including, without limitation, in lieu of the exercise of a Stock Option by
delivery of shares of Common Stock then owned by a Participant, providing the
Company with a notarized statement attesting to the number of shares owned by
the Participant, where, upon verification by the Company, the Company would
issue to the Participant only the number of incremental shares to which the
Participant is entitled upon exercise of the Stock Option. In determining
which methods a
<PAGE>
Participant may utilize to pay the exercise price, the Committee may consider
such factors as it determines are appropriate; PROVIDED, HOWEVER, that with
respect to ISOs, all such discretionary determinations by the Committee shall
be made at the time of grant and specified in the Award Agreement.
7.6 RESTRICTIONS RELATING TO ISOS. In addition to being subject to the
terms and conditions of this Section 7, ISOs shall comply with all other
requirements under Code Section 422. Accordingly, ISOs may be granted only to
Participants who are employees (as described in Treasury Regulation Section
1.421-7(h)) of the Company or of any "Parent Corporation" (as defined in Code
Section 424(e)) or of any "Subsidiary Corporation" (as defined in Code Section
424(f)) on the date of grant. The aggregate market value (determined as of the
time the ISO is granted) of the Common Stock with respect to which ISOs (under
all option plans of the Company and of any Parent Corporation and of any
Subsidiary Corporation) are exercisable for the first time by a Participant
during any calendar year shall not exceed $100,000. For purposes of the
preceding sentence, (i) ISOs shall be taken into account in the order in which
they are granted and (ii) ISOs granted before 1987 shall not be taken into
account. ISOs shall not be transferable by the Participant otherwise than by
will or the laws of descent and distribution and shall be exercisable, during
the Participant's lifetime, only by such Participant. The Committee shall not
grant ISOs to any Employee who, at the time the ISO is granted, owns stock
possessing (after the application of the attribution rules of Code Section
424(d)) more than 10 percent of the total combined voting power of all classes
of stock of the Company or of any Parent Corporation or of any Subsidiary
Corporation unless the exercise price of the ISO is fixed at not less than 110
percent of the Fair Market Value of the Common Stock on the date of grant and
the exercise of such ISO is prohibited by its terms after the 5th anniversary of
the ISO's date of grant. In addition, no ISO shall be issued to a Participant in
tandem with a Nonqualified Stock Option issued to such Participant in accordance
with Treasury Regulation Section 14a.422A-1, Q/A-39.
7.7 ADDITIONAL TERMS AND CONDITIONS. The Committee may, by way of the
Award Agreements or otherwise, establish such other terms, conditions,
restrictions and/or limitations, if any, of any Stock Option, provided they are
not inconsistent with the Plan, including, without limitation, the requirement
that the Participant not engage in competition with the Company.
7.8 CONVERSION STOCK OPTIONS. The Committee may, in its sole discretion,
grant a Stock Option to any holder of an option (an "Original Option") to
purchase shares of the stock of any corporation (i) whose stock or assets were
acquired, directly or indirectly, by the Company or any Subsidiary, or
(ii) which was merged with and into the Company or a Subsidiary, so that the
Original Option is converted into a Stock Option (a "Conversion Stock Option");
PROVIDED, HOWEVER, that such Conversion Stock Option as of the date of grant of
such Conversion Stock Option (the "Conversion Stock Option Grant Date") shall
have the same economic value as the Original Option as of the Conversion Stock
Option Grant Date. In addition, unless the Committee, in its sole discretion,
determines otherwise, a Conversion Stock Option which is converting an Original
Option intended to qualify as an ISO shall have the same terms and conditions as
applicable to the Original Option in accordance with Code Section 424 and the
regulations thereunder so that the conversion (i) is treated as the issuance or
assumption of a
<PAGE>
stock option under Code Section 424(a) and (ii) is not treated
as a modification, extension or renewal of a stock option under Code Section
424(h).
8.0 SARS
8.1 IN GENERAL. The Committee may, in its sole discretion, grant SARs
to Employees, Nonemployee Directors, and/or Independent Contractors. An SAR
is a right to receive a payment in cash, Common Stock or a combination of
both, in an amount equal to the excess of (x) the Fair Market Value of the
Common Stock, or other specified valuation, of a specified number of shares
of Common Stock on the date the SAR is exercised over (y) the Fair Market
Value of the Common Stock, or other specified valuation (which shall be no
less than the Fair Market Value of the Common Stock), of such shares of
Common Stock on the date the SAR is granted, all as determined by the
Committee; PROVIDED, HOWEVER, that if an SAR is granted retroactively in
tandem with or in substitution for a Stock Option, the designated Fair Market
Value of the Common Stock in the Award Agreement may be the Fair Market Value
of the Common Stock on the date such Stock Option was granted. Each SAR shall
be subject to such terms and conditions, including, but not limited to, a
provision that automatically converts an SAR into a Stock Option on a
conversion date specified at the time of grant, as the Committee shall impose
from time to time in its sole discretion and subject to the terms of the
Plan.
9.0 STOCK AWARDS AND STOCK UNITS
9.1 STOCK AWARDS. The Committee may, in its sole discretion, grant Stock
Awards to Employees, Nonemployee Directors, and/or Independent Contractors as
additional compensation or in lieu of other compensation for services to the
Company. A Stock Award shall consist of shares of Common Stock which shall be
subject to such terms and conditions as the Committee in its sole discretion
determines appropriate--including, without limitation, restrictions on the sale
or other disposition of such shares, the Vesting Date with respect to such
shares, and the right of the Company to reacquire such shares for no
consideration upon termination of the Participant's employment within specified
periods. The Committee may require the Participant to deliver a duly signed
stock power, endorsed in blank, relating to the Common Stock covered by such
Stock Award and/or that the stock certificates evidencing such shares be held in
custody or bear restrictive legends until the restrictions thereon shall have
lapsed. With respect to the shares of Common Stock subject to a Stock Award, the
Participant shall have all of the rights of a holder of shares of Common Stock,
including the right to receive dividends and to vote the shares, unless the
Committee determines otherwise on the date of grant.
9.2 STOCK UNITS. The Committee may, in its sole discretion, grant to
Employees, Nonemployee Directors, and/or Independent Contractor Stock Units as
additional compensation or in lieu of other compensation for services to the
Company. A Stock Unit is a hypothetical share of Common Stock represented by a
notional account established and maintained (or caused to be established or
maintained) by the Company for such Participant who receives a grant of Stock
Units. Stock Units shall be subject to such terms and conditions as the
Committee, in its sole discretion, determines appropriate--including, without
limitation, determinations of the Vesting
<PAGE>
Date with respect to such Stock Units and the criteria for the Vesting of
such Stock Units. A Stock Unit granted by the Committee shall provide for
payment in shares of Common Stock at such time or times as the Award
Agreement shall specify. The Committee shall determine whether a Participant
who has been granted a Stock Unit shall also be entitled to a Dividend
Equivalent Right.
9.3 PAYOUT OF STOCK UNITS. Subject to a Participant's election to defer
in accordance with Section 17.3 below, upon the Vesting of a Stock Unit, the
shares of Common Stock representing the Stock Unit shall be distributed to the
Participant, unless the Committee, in its sole discretion, provides for the
payment of the Stock Unit in cash (or partly in cash and partly in shares of
Common Stock) equal to the value of the shares of Common Stock which would
otherwise be distributed to the Participant.
10.0 PERFORMANCE SHARES AND PERFORMANCE UNITS
10.1 PERFORMANCE SHARES. The Committee may, in its sole discretion, grant
Performance Shares to Employees, Nonemployee Directors, and/or Independent
Contractors as additional compensation or in lieu of other compensation for
services to the Company. A Performance Share shall consist of a share or shares
of Common Stock which shall be subject to such terms and conditions as the
Committee, in its sole discretion, determines appropriate--including, without
limitation, determining the performance goal or goals which, depending on the
extent to which such goals are met, will determine the number and/or value of
the Performance Shares that will be paid out or distributed to the Participant
who has been granted Performance Shares. Performance goals may be based on,
without limitation, Company-wide, divisional and/or individual performance, as
the Committee, in its sole discretion, may determine, and may be based on the
performance measures listed in Section 12.3 below.
10.2 PERFORMANCE UNITS. The Committee may, in its sole discretion, grant
to Employees, Nonemployee Directors, and/or Independent Contractors Performance
Units as additional compensation or in lieu of other compensation for services
to the Company. A Performance Unit is a hypothetical share or shares of Common
Stock represented by a notional account which shall be established and
maintained (or caused to be established or maintained) by the Company for such
Participant who receives a grant of Performance Units. Performance Units shall
be subject to such terms and conditions as the Committee, in its sole
discretion, determines appropriate--including, without limitation, determining
the performance goal or goals which, depending on the extent to which such goals
are met, will determine the number and/or value of the Performance Units that
will be accrued with respect to the Participant who has been granted Performance
Units. Performance goals may be based on, without limitation, Company-wide,
divisional and/or individual performance, as the Committee, in its sole
discretion, may determine, and may be based on the performance measures listed
in Section 12.3 below.
10.3 ADJUSTMENT OF PERFORMANCE GOALS. With respect to those Performance
Shares or Performance Units that are not intended to qualify as
Performance-Based Awards (as described in Section 12 below), the Committee shall
have the authority at any time to make adjustments to
<PAGE>
performance goals for any outstanding Performance Shares or Performance Units
which the Committee deems necessary or desirable unless at the time of
establishment of the performance goals the Committee shall have precluded its
authority to make such adjustments.
10.4 PAYOUT OF PERFORMANCE SHARES OR PERFORMANCE UNITS. Subject to a
Participant's election to defer in accordance with Section 17.3 below, upon the
Vesting of a Performance Share or a Performance Unit, the shares of Common Stock
representing the Performance Share or the Performance Unit shall be distributed
to the Participant, unless the Committee, in its sole discretion, provides for
the payment of the Performance Share or a Performance Unit in cash (or partly in
cash and partly in shares of Common Stock) equal to the value of the shares of
Common Stock which would otherwise be distributed to the Participant.
11.0 CASH AWARDS
11.1 IN GENERAL. The Committee may, in its sole discretion, grant Cash
Awards to Employees, Nonemployee Directors, and/or Independent Contractors as
additional compensation or in lieu of other compensation for services to the
Company. A Cash Award shall be subject to such terms and conditions as the
Committee, in its sole discretion, determines appropriate--including, without
limitation, determining the Vesting Date with respect to such Cash Award, the
criteria for the Vesting of such Cash Award, and the right of the Company to
require the Participant to repay the Cash Award (with or without interest) upon
termination of the Participant's employment within specified periods.
12.0 PERFORMANCE-BASED AWARDS
12.1 IN GENERAL. The Committee, in its sole discretion, may designate
Awards granted under the Plan as Performance-Based Awards (as defined below) if
it determines that such compensation might not be tax deductible by the Company
due to the deduction limitation imposed by Code Section 162(m). Accordingly, an
Award granted under the Plan may be granted in such a manner that the
compensation attributable to such Award is intended by the Committee to qualify
as "performance-based compensation" (as such term is used in Code Section 162(m)
and the regulations thereunder) and thus be exempt from the deduction limitation
imposed by Code Section 162(m) ("Performance-Based Awards").
12.2 QUALIFICATION OF PERFORMANCE-BASED AWARDS. Awards shall only qualify
as Performance-Based Awards under the Plan if:
(a) at the time of grant the Committee is comprised solely of two or
more "outside directors" (as such term is used in Code Section 162(m) and
the regulations thereunder);
(b) with respect to either the granting or Vesting of an Award (other
than (i) a Nonqualified Stock Option or (ii) an SAR, which are granted with
an exercise price at or above the Fair Market Value of the Common Stock on
the date of grant), such Award is
<PAGE>
subject to the achievement of a performance goal or goals based on one or
more of the performance measures specified in Section 12.3 below;
(c) the Committee establishes in writing (i) the objective
performance-based goals applicable to a given performance period and (ii)
the individual employees or class of employees to which such
performance-based goals apply no later than 90 days after the commencement
of such performance period (but in no event after 25 percent of such
performance period has elapsed);
(d) no compensation attributable to a Performance-Based Award will be
paid to or otherwise received by a Participant until the Committee
certifies in writing that the performance goal or goals (and any other
material terms) applicable to such performance period have been satisfied;
and
(e) after the establishment of a performance goal, the Committee
shall not revise such performance goal or increase the amount of
compensation payable with respect to such Award (as determined in
accordance with Code Section 162(m)) upon the attainment of such
performance goal.
12.3 PERFORMANCE MEASURES. The Committee may use the following
performance measures (either individually or in any combination) to set
performance goals with respect to Awards intended to qualify as
Performance-Based Awards: net sales; pretax income before allocation of
corporate overhead and bonus; budget; cash flow; earnings per share; net income;
division, group or corporate financial goals; return on stockholders' equity;
return on assets; attainment of strategic and operational initiatives;
appreciation in and/or maintenance of the price of the Common Stock or any other
publicly traded securities of the Company; market share; gross profits; earnings
before interest and taxes; earnings before interest, taxes, depreciation and
amortization; economic value-added models; comparisons with various stock market
indices; increase in number of customers; and/or reductions in costs.
13.0 CHANGE IN CONTROL
13.1 ACCELERATED VESTING. Notwithstanding any other provision of this
Plan to the contrary, if there is a change in control of the Company, the
Committee, in its sole discretion, may take such actions as it deems appropriate
with respect to outstanding Awards, including, without limitation, accelerating
the Vesting Date and/or payout of such Awards.
13.2 CASHOUT. The Committee, in its sole discretion, may determine that,
upon the occurrence of a change in control of the Company, all or a portion of
certain outstanding Awards shall terminate within a specified number of days
after notice to the holders, and each such holder shall receive an amount equal
to the value of such Award on the date of the change in control, and with
respect to each share of Common Stock subject to a Stock Option or SAR, an
amount equal to the excess of the Fair Market Value of such shares of Common
Stock immediately prior to the occurrence of such change in control over the
exercise price per share of such Stock Option or
<PAGE>
SAR. Such amount shall be payable in cash, in one or more kinds of property
(including the property, if any, payable in the transaction) or in a
combination thereof, as the Committee, in its sole discretion, shall
determine.
13.3 ASSUMPTION OR SUBSTITUTION OF AWARDS. Notwithstanding anything
contained in the Plan to the contrary, the Committee may, in its sole
discretion, provide that an Award may be assumed by any entity which acquires
control of the Company or may be substituted by a similar award under such
entity's compensation plans.
14.0 TERMINATION OF EMPLOYMENT IF PARTICIPANT IS AN EMPLOYEE
14.1 TERMINATION OF EMPLOYMENT DUE TO DEATH OR DISABILITY. Subject to any
written agreement between the Company and a Participant, if a Participant's
employment is terminated due to death or disability:
(a) all non-Vested portions of Awards held by the Participant on the
date of the Participant's death or the date of the termination of his or
her employment, as the case may be, shall immediately be forfeited by such
Participant as of such date; and
(b) all Vested portions of Stock Options and SARs held by the
Participant on the date of the Participant's death or the date of the
termination of his or her employment, as the case may be, shall remain
exercisable until the earlier of (i) the end of the 12-month period
following the date of the Participant's death or the date of the
termination of his or her employment, as the case may be, or (ii) the date
the Stock Option or SAR would otherwise expire.
14.2 TERMINATION OF EMPLOYMENT FOR CAUSE. Subject to any written
agreement between the Company and a Participant, if a Participant's employment
is terminated by the Company for cause, all Awards held by a Participant on the
date of the termination of his or her employment for cause, whether Vested or
non-Vested, shall immediately be forfeited by such Participant as of such date.
14.3 OTHER TERMINATIONS OF EMPLOYMENT. Subject to any written agreement
between the Company and a Participant, if a Participant's employment is
terminated for any reason other than for cause or other than due to death or
disability:
(a) all non-Vested portions of Awards held by the Participant on the
date of the termination of his or her employment shall immediately be
forfeited by such Participant as of such date; and
(b) all Vested portions of Stock Options and/or SARs held by the
Participant on the date of the termination of his or her employment shall
remain exercisable until the earlier of (i) the end of the 90-day period
following the date of the termination of the
<PAGE>
Participant's employment or (ii) the date the Stock Option or SAR would
otherwise expire.
14.4 COMMITTEE DISCRETION. Notwithstanding anything contained in the Plan
to the contrary, the Committee may, in its sole discretion, provide that:
(a) any or all non-Vested portions of Stock Options and/or SARs held
by the Participant on the date of the Participant's death and/or the date
of the termination of his or her employment shall immediately become
exercisable as of such date and, except with respect to ISOs, shall remain
exercisable until a date that occurs on or prior to the date the Stock
Option or SAR is scheduled to expire;
(b) any or all Vested portions of Nonqualified Stock Options and/or
SARs held by the Participant on the date of the Participant's death and/or
the date of the termination of his or her employment shall remain
exercisable until a date that occurs on or prior to the date the Stock
Option or SAR is scheduled to expire; and/or
(c) any or all non-Vested portions of Stock Awards, Stock Units,
Performance Shares, Performance Units, and/or Cash Awards held by the
Participant on the date of the Participant's death and/or the date of the
termination of his or her employment shall immediately Vest or shall become
Vested on a date that occurs on or prior to the date the Award is scheduled
to vest.
14.5 ISOS. Notwithstanding anything contained in the Plan to the
contrary, (i) the provisions contained in this Section 14 shall be applied to an
ISO only if the application of such provision maintains the treatment of such
ISO as an ISO and (ii) the exercise period of an ISO in the event of a
termination of the Participant's employment due to disability provided in
Section 14.1 above shall be applied only if the Participant is "permanently and
totally disabled" (as such term is defined in Code Section 22(e)(3)).
15.0 TAXES
15.1 WITHHOLDING TAXES. With respect to Employees, the Company, or the
applicable Subsidiary, may require a Participant who has become vested in his
or her Stock Award, Stock Unit, Performance Share or Performance Unit granted
hereunder, or who exercises a Stock Option or SAR granted hereunder, to
reimburse the corporation which employs such Participant for any taxes
required by any governmental regulatory authority to be withheld or otherwise
deducted and paid by such corporation or entity in respect of the issuance or
disposition of such shares or the payment of any amounts. In lieu thereof,
the corporation or entity which employs such Participant shall have the right
to withhold the amount of such taxes from any other sums due or to become due
from such corporation or entity to the Participant upon such terms and
conditions as the Committee shall prescribe. The corporation or entity that
employs such Participant may, in its discretion, hold the stock certificate
to which such Participant is entitled upon the vesting of a Stock Award,
Stock Unit, Performance Share or Performance Unit or the
<PAGE>
exercise of a Stock Option or SAR as security for the payment of such
withholding tax liability, until cash sufficient to pay that liability has
been accumulated.
15.2 USE OF COMMON STOCK TO SATISFY WITHHOLDING OBLIGATION. With respect
to Employees, at any time that the Company, Subsidiary or other entity that
employs such Participant becomes subject to a withholding obligation under
applicable law with respect to the vesting of a Stock Award, Stock Unit,
Performance Share or Performance Unit or the exercise of a Nonqualified Stock
Option (the "Tax Date"), except as set forth below, a holder of such Award may
elect to satisfy, in whole or in part, the holder's related personal tax
liabilities (an "Election") by (i) directing the Company, Subsidiary or other
entity that employs such Participant to withhold from shares issuable in the
related vesting or exercise either a specified number of shares or shares of
Common Stock having a specified value (in each case not in excess of the related
personal tax liabilities), (ii) tendering shares of Common Stock previously
issued pursuant to the exercise of a Stock Option or other shares of the Common
Stock owned by the holder, or (iii) combining any or all of the foregoing
Elections in any fashion. An Election shall be irrevocable. The withheld shares
and other shares of Common Stock tendered in payment shall be valued at their
Fair Market Value of the Common Stock on the Tax Date. The Committee may
disapprove of any Election, suspend or terminate the right to make Elections or
provide that the right to make Elections shall not apply to particular shares or
exercises. The Committee may impose any additional conditions or restrictions on
the right to make an Election as it shall deem appropriate, including conditions
or restrictions with respect to Section 16 of the Exchange Act.
15.3 NO GUARANTEE OF TAX CONSEQUENCES. No person connected with the
Plan in any capacity, including, but not limited to, the Company and any
Subsidiary and their directors, officers, agents and employees, makes any
representation, commitment, or guarantee that any tax treatment, including,
but not limited to, federal, state and local income, estate and gift tax
treatment, will be applicable with respect to amounts deferred under the
Plan, or paid to or for the benefit of a Participant under the Plan, or that
such tax treatment will apply to or be available to a Participant on account
of participation in the Plan.
16.0 AMENDMENT AND TERMINATION
16.1 TERMINATION OF PLAN. The Board may suspend or terminate the Plan at
any time with or without prior notice; PROVIDED, HOWEVER, that no action
authorized by this Section 16.1 shall reduce the amount of any outstanding Award
or change the terms and conditions thereof without the Participant's consent.
16.2 AMENDMENT OF PLAN. The Board may amend the Plan at any time with or
without prior notice; PROVIDED, HOWEVER, that no action authorized by this
Section 16.2 shall reduce the amount of any outstanding Award or change the
terms and conditions thereof without the Participant's consent. No amendment of
the Plan shall, without the approval of the stockholders of the Company:
(a) increase the total number of shares which may be issued under the
Plan;
<PAGE>
(b) increase the maximum number of shares with respect to all Awards
measured in Common Stock that may be granted to any individual under the
Plan;
(c) increase the maximum dollar amount that may be paid with respect
to any single Award measured in cash; or
(d) modify the requirements as to eligibility for Awards under the
Plan.
In addition, the Plan shall not be amended without the approval of such
amendment by the Company's stockholders if such amendment (i) is required under
the rules and regulations of the stock exchange or national market system on
which the Common Stock is listed, or (ii) will disqualify any ISO granted
hereunder.
16.3 AMENDMENT OR CANCELLATION OF AWARD AGREEMENTS. The Committee may
amend or modify any Award Agreement at any time by mutual agreement between the
Committee and the Participant or such other persons as may then have an interest
therein. In addition, by mutual agreement between the Committee and a
Participant or such other persons as may then have an interest therein, Awards
may be granted to an Employee, Nonemployee Director or Independent Contractor in
substitution and exchange for, and in cancellation of, any Awards previously
granted to such Employee, Nonemployee Director or Independent Contractor under
the Plan, or any award previously granted to such Employee, Nonemployee Director
or Independent Contractor under any other present or future plan of the Company
or any present or future plan of an entity which (i) is purchased by the
Company, (ii) purchases the Company, or (iii) merges into or with the Company.
17.0 MISCELLANEOUS
17.1 OTHER PROVISIONS. Awards granted under the Plan may also be subject
to such other provisions (whether or not applicable to the Award granted to any
other Participant) as the Committee determines on the date of grant to be
appropriate, including, without limitation, for the installment purchase of
Common Stock under Stock Options, to assist the Participant in financing the
acquisition of Common Stock, for the forfeiture of, or restrictions on resale or
other disposition of, Common Stock acquired under any Stock Option, for the
acceleration of Vesting of Awards in the event of a change in control of the
Company, for the payment of the value of Awards to Participants in the event of
a change in control of the Company, or to comply with federal and state
securities laws, or understandings or conditions as to the Participant's
employment in addition to those specifically provided for under the Plan.
17.2 TRANSFERABILITY. Each Award granted under the Plan to a Participant
shall not be transferable otherwise than by will or the laws of descent and
distribution, and Stock Options and SARs shall be exercisable, during the
Participant's lifetime, only by the Participant. In the event of the death of a
Participant, each Stock Option or SAR theretofore granted to him or her shall be
exercisable during such period after his or her death as the Committee shall, in
its sole discretion, set forth in the Award Agreement on the date of grant and
then only by the executor or
<PAGE>
administrator of the estate of the deceased Participant or the person or
persons to whom the deceased Participant's rights under the Stock Option or
SAR shall pass by will or the laws of descent and distribution.
Notwithstanding the foregoing, the Committee, in its sole discretion, may
permit the transferability of a Stock Option (other than an ISO) by a
Participant solely to members of the Participant's immediate family or trusts
or family partnerships or other similar entities for the benefit of such
persons, and subject to such terms, conditions, restrictions and/or
limitations, if any, as the Committee may establish and include in the Award
Agreement.
17.3 ELECTION TO DEFER COMPENSATION ATTRIBUTABLE TO AWARD. The Committee
may, in its sole discretion, allow a Participant to elect to defer the receipt
of any compensation attributable to an Award under guidelines and procedures to
be established by the Committee after taking into account the advice of the
Company's tax counsel.
17.4 LISTING OF SHARES AND RELATED MATTERS. If at any time the Committee
shall determine that the listing, registration or qualification of the shares of
Common Stock subject to any Award on any securities exchange or under any
applicable law, or the consent or approval of any governmental regulatory
authority, is necessary or desirable as a condition of, or in connection with,
the granting of an Award or the issuance of shares of Common Stock thereunder,
such Award may not be exercised, distributed or paid out, as the case may be, in
whole or in part, unless such listing, registration, qualification, consent or
approval shall have been effected or obtained free of any conditions not
acceptable to the Committee.
17.5 NO RIGHT, TITLE, OR INTEREST IN COMPANY ASSETS. Participants shall
have no right, title, or interest whatsoever in or to any investments which the
Company may make to aid it in meeting its obligations under the Plan. Nothing
contained in the Plan, and no action taken pursuant to its provisions, shall
create or be construed to create a trust of any kind, or a fiduciary
relationship between the Company and any Participant, beneficiary, legal
representative or any other person. To the extent that any person acquires a
right to receive payments from the Company under the Plan, such right shall be
no greater than the right of an unsecured general creditor of the Company. All
payments to be made hereunder shall be paid from the general funds of the
Company and no special or separate fund shall be established and no segregation
of assets shall be made to assure payment of such amounts except as expressly
set forth in the Plan. The Plan is not intended to be subject to the Employee
Retirement Income Security Act of 1974, as amended.
17.6 NO RIGHT TO CONTINUED EMPLOYMENT OR SERVICE OR TO GRANTS. The
Participant's rights, if any, to continue to serve the Company as a director,
officer, employee, independent contractor or otherwise, shall not be enlarged or
otherwise affected by his or her designation as a Participant under the Plan,
and the Company or the applicable Subsidiary reserves the right to terminate the
employment of any Employee or the services of any Independent Contractor or
director at any time. The adoption of the Plan shall not be deemed to give any
Employee, Nonemployee Director, Independent Contractor or any other individual
any right to be selected as a Participant or to be granted an Award.
<PAGE>
17.7 AWARDS SUBJECT TO FOREIGN LAWS. The Committee may grant Awards to
individual Participants who are subject to the tax laws of nations other than
the United States, and such Awards may have terms and conditions as determined
by the Committee as necessary to comply with applicable foreign laws. The
Committee may take any action which it deems advisable to obtain approval of
such Awards by the appropriate foreign governmental entity; PROVIDED, HOWEVER,
that no such Awards may be granted pursuant to this Section 16.6 and no action
may be taken which would result in a violation of the Exchange Act or any other
applicable law.
17.8 GOVERNING LAW. The Plan, all Awards granted hereunder, and all
actions taken in connection herewith shall be governed by and construed in
accordance with the laws of the State of Delaware without reference to
principles of conflict of laws, except as superseded by applicable federal law.
17.9 OTHER BENEFITS. No Award granted under the Plan shall be considered
compensation for purposes of computing benefits under any retirement plan of the
Company or any Subsidiary nor affect any benefits or compensation under any
other benefit or compensation plan of the Company or any Subsidiary now or
subsequently in effect.
17.10 NO FRACTIONAL SHARES. No fractional shares of Common Stock shall be
issued or delivered pursuant to the Plan or any Award. The Committee shall
determine whether cash, Common Stock, Stock Options, or other property shall be
issued or paid in lieu of fractional shares or whether such fractional shares or
any rights thereto shall be forfeited or otherwise eliminated.
<PAGE>
EXHIBIT 99.2
FORM OF NON-STATUTORY STOCK OPTION AGREEMENT FOR DIRECTORS
<PAGE>
NON-STATUTORY STOCK OPTION AGREEMENT
THIS NON-STATUTORY STOCK OPTION AGREEMENT ("Agreement") is entered into as
of this 12th day of March, 1998, by and between Intek Global Corporation, a
Delaware corporation (the "Company"), and _____________ (the "Optionee").
WHEREAS, the Company has adopted the Intek 1997 Performance and Equity
Incentive Plan (as amended from time to time, the "Plan");
WHEREAS, capitalized terms used herein without definition have the meanings
assigned to them in the Plan;
WHEREAS, the Optionee is a Director of the Company;
WHEREAS, the Company believes that it would advance the interests of the
Company and its stockholders to afford an opportunity to the Optionee to acquire
or increase the Optionee's proprietary interest in the Company through the grant
of Non-Statutory Options;
WHEREAS, the Committee has granted Non-Statutory Options to purchase shares
of Common Stock, par value $0.01 per share, of the Company ("Common Stock") to
the Optionee pursuant to the Plan on the terms and subject to the conditions set
forth herein; and
WHEREAS, the Optionee desires to accept said Non-Statutory Options pursuant
to the terms and subject to the conditions set forth herein;
NOW, THEREFORE, the parties agree as follows:
1. GRANT OF OPTIONS. The Company hereby grants Non-Statutory Options to
purchase up to _____(__________) shares of Common Stock (collectively, the
"Option Shares") to the Optionee, subject to all of the terms and conditions
contained in this Agreement and the Plan. The Non-Statutory Options are not
"incentive stock options" within the meaning of Section 422 of the Code.
2. TIMING OF EXERCISE.
The Non-Statutory Stock Options are exercisable in full immediately.
3. EXERCISE PRICE. The exercise price for the Non-Statutory Options
shall be $2.50 per Option Share (the "Exercise Price"), and shall be due and
payable, in cash, by certified or official bank check, by money order, in
shares of Common Stock or, in the sole discretion of the Committee, by
personal check in full or partial payment of any Option Shares. The Optionee
shall remit the withholding tax, if any, owed by the Optionee under Section
10 below with respect to the exercise of the Non-Statutory Options to the
Company along with the Exercise Price.
<PAGE>
4. PROCEDURE FOR EXERCISE. In order to exercise the Non-Statutory
Options, the Optionee shall deliver to the Chairman of the Board or Secretary
of the Company or such agent as such officers may delegate in their stead,
the following: (i) the aggregate Exercise Price and any withholding tax
required under Section 10 below; (ii) a completed and executed Exercise of
Stock Option in the form attached hereto as Exhibit A; and (iii) if required,
the written representation and/or other information described in Section 6
below. The Company shall cause certificates for Option Shares purchased
hereunder to be delivered to the Optionee as soon as reasonably practicable
thereafter.
5. EXPIRATION OF OPTIONS. The unexercised portion, if any, of the
Non-Statutory Options shall automatically and without notice terminate and
become null and void at the time of the earliest to occur of the following:
(i) three (3) months after the date that the Optionee ceases to be a Director
of the Company for any reason; or (ii) the date that is ten (10) years from
the date that the Committee grants the Non-Statutory Options to the Optionee.
6. REPRESENTATIONS AND WARRANTIES OF THE OPTIONEE. The Optionee
represents and warrants that:
(a) The Optionee is aware that no federal or state agency has made
any finding or determination as to the fairness for public or private investment
in, nor any recommendation or endorsement of, the Option Shares.
(b) The Optionee is aware that the Shares are not registered under
the Securities Act of 1933, as amended (the "Act"), or the securities or
"blue sky" laws of any state or jurisdiction (the "Blue Sky Laws") as of the
date of this Agreement, and the Company is under no obligation to cause the
Option Shares to be registered under the Act or the Blue Sky Laws; and that
in the event that the Option Shares are not registered under the Act or the
Blue Sky Laws for any reason at a time when the Optionee desires to exercise
all or any part of the Non-Statutory Options, then, in addition to the other
terms and conditions of this Agreement, such exercise shall be conditioned
upon determination by the Committee that the Option Shares may be issued to
the Optionee without registration under the Act or the Blue Sky Laws. The
Committee may require the Optionee to deliver to the Company an agreement or
undertaking setting forth any factual information that the Committee deems
necessary to determine whether the Option Shares may be issued to the
Optionee without registration under the Act or the Blue Sky Laws, including,
without limitation, a representation and warranty that the Optionee is
acquiring the Option Shares for investment and not with a view to, or for
sale in connection with, the distribution of any the Option Shares.
7. NON-REGISTRATION AND LEGEND. Nothing contained in this Agreement
shall require the Company to register the Option Shares under the Act or the
Blue Sky Laws or to continue any such registration which may be in effect on
or after the date of this Agreement. If any such Option Shares are not so
registered when issued hereunder, then the certificate(s) for the Option
Shares shall bear a legend, in a form satisfactory to the Committee,
restricting the transfer of the Option Shares unless such transfer is
registered or exempt from registration under the Act or the
- 2 -
<PAGE>
Blue Sky Laws, and the Option Shares shall not be transferred except in
accordance with such legend.
8. TRANSFERABILITY. The Optionee or any beneficiary thereof shall have
the power or right to sell, exchange, pledge, transfer, assign or otherwise
encumber or dispose of the Optionee's or such beneficiary's Non-Statutory Stock
Options only as follows: (i) to the spouse or any children or grandchildren of
the Optionee or such beneficiary receiving the Non-Statutory Stock Options;
(ii) as a charitable contribution or gift to or for the use of any person or
entity described in Section 170(c) of the Code; (iii) to any Controlled Entity;
or (iv) by will or the laws of intestate succession.
9. RIGHTS PRIOR TO EXERCISE OF OPTION. The Optionee shall not have
any rights as a stockholder with respect to any Option Shares subject to the
Non-Statutory Options prior to the date on which the Optionee is recorded as
the holder of such Option Shares on the records of the Company; provided that
the foregoing shall not diminish or affect any rights the Optionee has under
the Plan.
10. TAXES. The Company may make such provisions and take such steps as
it may deem necessary or appropriate for the withholding of all federal,
state, local and other taxes required by law to be withheld with respect to
the Non-Statutory Options including, but not limited to: (i) reducing the
number of Option Shares otherwise deliverable, based upon their fair market
value on the date of exercise, to permit deduction of the amount of any such
withholding taxes from the amount otherwise payable under this Agreement;
(ii) deducting the amount of any such withholding taxes from any other amount
then or thereafter payable to the Optionee; or (iii) requiring the Optionee,
beneficiary or legal representative to pay to the Company the amount required
to be withheld or to execute such documents as the Company deems necessary or
desirable to enable it to satisfy its withholding obligations as a condition
of releasing the Option Shares.
11. GENERAL PROVISIONS.
(a) The Company shall at all time during the term of the
Non-Statutory Options reserve and keep available such number of shares of
Common Stock as will be sufficient to satisfy the requirements of this
Agreement in respect of vested Option Shares, shall pay all fees and expenses
necessarily incurred by the Company in connection therewith, and shall use
its best efforts to comply with all laws and regulations that, in the
reasonable opinion of counsel for the Company, are applicable thereto.
(b) Any notice to be given hereunder by either party to the other
shall be in writing and shall be given either by personal delivery,
telecopied with confirmed receipt, or sent by certified, registered or
express mail, postage pre-paid, or sent by a national next-day delivery
service, postage pre-paid, return receipt requested, addressed to the
Company, at its headquarters, attention Vice President-Administration, or the
Optionee, at such address as the Company has on record, or such address as
the Optionee provides to the Company in writing, and shall be deemed given
when so delivered personally, or telecopied, or if mailed, two (2) days after
the date of mailing, or if by national next-day delivery service, on the date
after delivery.
- 3 -
<PAGE>
(c) The headings and other captions in this Agreement are for
convenience of reference only and shall not be used in interpreting,
construing or enforcing any of the provisions of this Agreement.
(d) No change or modification of this Agreement shall be valid
unless the same is in writing and signed by the Company and the Optionee.
(e) No waiver of any provision of this Agreement shall be valid
unless in writing and signed by the person against whom it is sought to be
enforced. The failure of any party at any time to insist upon strict
performance of any condition, promise, agreement or understanding set forth
herein shall not be construed as a waiver or relinquishment of the right to
insist upon strict performance of the same or other condition, promise,
agreement or understanding at a future time.
(f) This Agreement shall be binding upon and inure to the benefit
of and be enforceable by the respective heirs, legal representatives,
successors and permitted assigns of the parties hereto. Nothing in this
Agreement is intended, and it shall not be construed, to give any person or
entity other than the parties hereto any right, remedy or claim under or in
respect of this Agreement or any provisions hereof.
(g) This Agreement and all rights hereunder shall be governed by,
and construed and interpreted in accordance with, the laws of the State of
Delaware applicable to contracts made and to be performed entirely within
that State. In the event of any conflict between this Agreement and the
Plan, the provisions of the Plan shall govern.
(h) This Agreement and the Plan set forth all of the agreements,
warranties and representations among the parties hereto and thereto with
respect to the Non-Statutory Options, and there are no other promises,
agreements, conditions, understandings, representations or warranties, oral
or written, express or implied, among them with respect to the Non-Statutory
Options other than as set forth herein and therein. Any and all prior
agreements with respect to the Non-Statutory Options are hereby revoked.
(i) This Agreement may be executed in any number of counterparts,
each of which, when executed, shall be deemed to be an original and all of
which together shall be deemed to be one and the same instrument.
- 4 -
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
by its duly authorized officer, and the Optionee has executed this Agreement,
all as of the date first written above.
INTEK GLOBAL CORPORATION
By: Robert Shiver
Its: Chairman and Chief Executive Officer
_____________________________________
[Optionee]
- 5 -
<PAGE>
EXHIBIT A
FORM OF EXERCISE OF NON-STATUTORY STOCK OPTION
Intek Global Corporation
[address]
Attention: Vice President-Administration
Gentlemen:
The undersigned Optionee hereby exercises all or a portion of the
Non-Statutory Options granted to him pursuant to the Non-Statutory Stock
Option Agreement dated as of __________, _____, between Intek Global
Corporation (the "Company") and the Optionee with respect to __________
shares of Common Stock, par value $0.01 per share, of the Company covered by
said Non-Statutory Options, and tenders herewith at the price of $__________
per share, of which $__________ represents payment of the exercise price
thereof and $__________ represents payment of any withholding tax due.
The registered address on the share certificate to be issued to the
Optionee should be: ___________________________________________________________
______________________________________________________________________________.
The Optionee's social security number is: _________________________.
Optionee:
______________________________________
Signature
______________________________________
Typed or Printed Name
______________________________________
Date of Exercise
<PAGE>
EXHIBIT 99.3
FORM OF NON-STATUTORY STOCK OPTION AGREEMENT FOR KEY EMPLOYEES
<PAGE>
NON-STATUTORY STOCK OPTION AGREEMENT
THIS NON-STATUTORY STOCK OPTION AGREEMENT ("Agreement") is entered into as
of this 12th day of March, 1998, by and between Intek Global Corporation, a
Delaware corporation (the "Company"), and _____________ (the "Optionee").
WHEREAS, the Company has adopted the Intek 1997 Performance and Equity
Incentive Plan (as amended from time to time, the "Plan");
WHEREAS, capitalized terms used herein without definition have the meanings
assigned to them in the Plan;
WHEREAS, the Optionee is a key employee of the Company;
WHEREAS, the Company believes that it would advance the interests of the
Company and its stockholders to afford an opportunity to the Optionee to acquire
or increase the Optionee's proprietary interest in the Company through the grant
of Non-Statutory Options;
WHEREAS, the Committee has granted Non-Statutory Options to purchase shares
of Common Stock, par value $0.01 per share, of the Company ("Common Stock") to
the Optionee pursuant to the Plan on the terms and subject to the conditions set
forth herein; and
WHEREAS, the Optionee desires to accept said Non-Statutory Options pursuant
to the terms and subject to the conditions set forth herein;
NOW, THEREFORE, the parties agree as follows:
1. GRANT OF OPTIONS. The Company hereby grants Non-Statutory Options to
purchase up to _________________ shares of Common Stock (collectively, the
"Option Shares") to the Optionee, subject to all of the terms and conditions
contained in this Agreement and the Plan. The Non-Statutory Options are not
"incentive stock options" within the meaning of Section 422 of the Code.
2. TIMING OF EXERCISE.
(a) Except as provided in Section 2(b) below, the Non-Statutory Stock Options
shall become exercisable in full as follows:
20% on March 12, 1999;
20% on March 12, 2000;
20% on March 12, 2001;
20% on March 12, 2002; and
20% on March 12, 2003.
<PAGE>
(b) Notwithstanding anything to the contrary in Section 2(a) above,
the Non-Statutory Options shall become immediately fully vested and fully
exercisable:
(i) if there occurs any transaction (which shall include a
series of transactions occurring within sixty (60) days or occurring
pursuant to a plan), that has the result that stockholders of the Company
immediately before such transaction cease to own at least fifty-one percent
(51%) of the voting stock of the Company or of any entity that results from
the participation of the Company in a reorganization, consolidation,
merger, liquidation or any other form of corporate transaction;
(ii) if the stockholders of the Company approve a plan of
merger, consolidation, reorganization, liquidation or dissolution in which
the Company does not survive (unless the approved merger, consolidation,
reorganization, liquidation or dissolution is subsequently abandoned); or
(iii) if the stockholders of the Company approve a plan for
the sale, lease, exchange, transfer, assignment or other disposition of all
or substantially all the property and assets of the Company (unless such
plan is subsequently abandoned).
3. EXERCISE PRICE. The exercise price for the Non-Statutory Options
shall be $2.50 per Option Share (the "Exercise Price"), and shall be due and
payable, in cash, by certified or official bank check, by money order, in shares
of Common Stock or, in the sole discretion of the Committee, by personal check
in full or partial payment of any Option Shares. The Optionee shall remit the
withholding tax, if any, owed by the Optionee under Section 10 below with
respect to the exercise of the Non-Statutory Options to the Company along with
the Exercise Price.
4. PROCEDURE FOR EXERCISE. In order to exercise the Non-Statutory
Options, the Optionee shall deliver to the Chairman of the Board or Secretary of
the Company or such agent as such officers may delegate in their stead, the
following: (i) the aggregate Exercise Price and any withholding tax required
under Section 10 below; (ii) a completed and executed Exercise of Stock Option
in the form attached hereto as Exhibit A; and (iii) if required, the written
representation and/or other information described in Section 6 below. The
Company shall cause certificates for Option Shares purchased hereunder to be
delivered to the Optionee as soon as reasonably practicable thereafter.
5. EXPIRATION OF OPTIONS. The unexercised portion, if any, of the
Non-Statutory Options shall automatically and without notice terminate and
become null and void at the time of the earliest to occur of the following:
(i) three (3) months after the date that the Optionee's employment
with the Company or any of its Subsidiaries is terminated for any reason
other than by reason of (A) "Cause," which, solely for purposes of this
Agreement, shall mean the termination of the
- 2 -
<PAGE>
Optionee's employment by reason of the Optionee's willful misconduct or
negligence, (B) the mental or physical disability (within the meaning of
Section 22(e)(3) of the Code) of the Optionee as determined by a medical
doctor satisfactory to the Committee or (C) the death of the Optionee;
(ii) immediately upon the termination of the Optionee's employment
with the Company or any of its Subsidiaries for Cause;
(iii) one (1) year after the date that the Optionee's employment
with the Company is terminated by reason of a mental or physical disability
(within the meaning of Section 22(e)(3) of the Code) as determined by a
medical doctor satisfactory to the Committee;
(iv) (A) one (1) year after the date of termination of the Optionee's
employment with the Company by reason of death of the Optionee, or (B)
three (3) months after the date that the Optionee dies if such death occurs
during the one (1) year period specified in Section 5(a)(iii) above; or
(v) the date that is ten (10) years from the date that the Committee
grants the Non-Statutory Options to the Optionee.
6. REPRESENTATIONS AND WARRANTIES OF THE OPTIONEE. The Optionee
represents and warrants that:
(a) The Optionee is aware that no federal or state agency has made
any finding or determination as to the fairness for public or private investment
in, nor any recommendation or endorsement of, the Option Shares.
(b) The Optionee is aware that the Shares are not registered under
the Securities Act of 1933, as amended (the "Act"), or the securities or "blue
sky" laws of any state or jurisdiction (the "Blue Sky Laws") as of the date of
this Agreement, and the Company is under no obligation to cause the Option
Shares to be registered under the Act or the Blue Sky Laws; and that in the
event that the Option Shares are not registered under the Act or the Blue Sky
Laws for any reason at a time when the Optionee desires to exercise all or any
part of the Non-Statutory Options, then, in addition to the other terms and
conditions of this Agreement, such exercise shall be conditioned upon
determination by the Committee that the Option Shares may be issued to the
Optionee without registration under the Act or the Blue Sky Laws. The Committee
may require the Optionee to deliver to the Company an agreement or undertaking
setting forth any factual information that the Committee deems necessary to
determine whether the Option Shares may be issued to the Optionee without
registration under the Act or the Blue Sky Laws, including, without limitation,
a representation and warranty that the Optionee is acquiring the Option Shares
for investment and not with a view to, or for sale in connection with, the
distribution of any the Option Shares.
7. NON-REGISTRATION AND LEGEND. Nothing contained in this Agreement
shall require the Company to register the Option Shares under the Act or the
Blue Sky Laws or to continue
- 3 -
<PAGE>
any such registration which may be in effect on or after the date of this
Agreement. If any such Option Shares are not so registered when issued
hereunder, then the certificate(s) for the Option Shares shall bear a legend,
in a form satisfactory to the Committee, restricting the transfer of the
Option Shares unless such transfer is registered or exempt from registration
under the Act or the Blue Sky Laws, and the Option Shares shall not be
transferred except in accordance with such legend.
8. TRANSFERABILITY. The Optionee or any beneficiary thereof shall have
the power or right to sell, exchange, pledge, transfer, assign or otherwise
encumber or dispose of the Optionee's or such beneficiary's Non-Statutory Stock
Options only as follows: (i) to the spouse or any children or grandchildren of
the Optionee or such beneficiary receiving the Non-Statutory Stock Options;
(ii) as a charitable contribution or gift to or for the use of any person or
entity described in Section 170(c) of the Code; (iii) to any Controlled Entity;
or (iv) by will or the laws of intestate succession.
9. RIGHTS PRIOR TO EXERCISE OF OPTION. The Optionee shall not have
any rights as a stockholder with respect to any Option Shares subject to the
Non-Statutory Options prior to the date on which the Optionee is recorded as
the holder of such Option Shares on the records of the Company; provided that
the foregoing shall not diminish or affect any rights the Optionee has under
the Plan.
10. TAXES. The Company may make such provisions and take such steps as
it may deem necessary or appropriate for the withholding of all federal,
state, local and other taxes required by law to be withheld with respect to
the Non-Statutory Options including, but not limited to: (i) reducing the
number of Option Shares otherwise deliverable, based upon their fair market
value on the date of exercise, to permit deduction of the amount of any such
withholding taxes from the amount otherwise payable under this Agreement;
(ii) deducting the amount of any such withholding taxes from any other amount
then or thereafter payable to the Optionee; or (iii) requiring the Optionee,
beneficiary or legal representative to pay to the Company the amount required
to be withheld or to execute such documents as the Company deems necessary or
desirable to enable it to satisfy its withholding obligations as a condition
of releasing the Option Shares.
11. GENERAL PROVISIONS.
(a) The Company shall at all time during the term of the
Non-Statutory Options reserve and keep available such number of shares of
Common Stock as will be sufficient to satisfy the requirements of this
Agreement in respect of vested Option Shares, shall pay all fees and expenses
necessarily incurred by the Company in connection therewith, and shall use
its best efforts to comply with all laws and regulations that, in the
reasonable opinion of counsel for the Company, are applicable thereto.
(b) Any notice to be given hereunder by either party to the other
shall be in writing and shall be given either by personal delivery, telecopied
with confirmed receipt, or sent by certified, registered or express mail,
postage pre-paid, or sent by a national next-day delivery service, postage
pre-paid, return receipt requested, addressed to the Company, at its
headquarters, attention
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Vice President-Administration, or the Optionee, at such address as the
Company has on record, or such address as the Optionee provides to the
Company in writing, and shall be deemed given when so delivered personally,
or telecopied, or if mailed, two (2) days after the date of mailing, or if by
national next-day delivery service, on the date after delivery.
(c) The headings and other captions in this Agreement are for
convenience of reference only and shall not be used in interpreting, construing
or enforcing any of the provisions of this Agreement.
(d) THE PROVISIONS OF THIS AGREEMENT RELATE SOLELY TO GRANTING OF THE
NON-STATUTORY STOCK OPTIONS TO THE OPTIONEE PURSUANT TO THE PLAN AS OF THE DATE
HEREOF AND DO NOT ADDRESS OR RELATE TO ANY CONDITIONS OF THE OPTIONEE'S
EMPLOYMENT WITH THE COMPANY. NOTHING IN THIS AGREEMENT OR THE PLAN SHALL CONFER
UPON THE OPTIONEE ANY RIGHT OR ENTITLEMENT WITH RESPECT TO CONTINUATION OF
EMPLOYMENT BY THE COMPANY NOR INTERFERE IN ANY WAY WITH THE RIGHT OR POWER OF
THE COMPANY TO TERMINATE THE OPTIONEE'S EMPLOYMENT AT ANY TIME, WITH OR WITHOUT
CAUSE.
(e) No change or modification of this Agreement shall be valid unless
the same is in writing and signed by the Company and the Optionee.
(f) No waiver of any provision of this Agreement shall be valid
unless in writing and signed by the person against whom it is sought to be
enforced. The failure of any party at any time to insist upon strict
performance of any condition, promise, agreement or understanding set forth
herein shall not be construed as a waiver or relinquishment of the right to
insist upon strict performance of the same or other condition, promise,
agreement or understanding at a future time.
(g) This Agreement shall be binding upon and inure to the benefit of
and be enforceable by the respective heirs, legal representatives, successors
and permitted assigns of the parties hereto. Nothing in this Agreement is
intended, and it shall not be construed, to give any person or entity other than
the parties hereto any right, remedy or claim under or in respect of this
Agreement or any provisions hereof.
(h) This Agreement and all rights hereunder shall be governed by, and
construed and interpreted in accordance with, the laws of the State of Delaware
applicable to contracts made and to be performed entirely within that State. In
the event of any conflict between this Agreement and the Plan, the provisions of
the Plan shall govern.
(i) This Agreement and the Plan set forth all of the agreements,
warranties and representations among the parties hereto and thereto with respect
to the Non-Statutory Options, and there are no other promises, agreements,
conditions, understandings, representations or warranties, oral or written,
express or implied, among them with respect to the Non-Statutory Options other
than
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<PAGE>
as set forth herein and therein. Any and all prior agreements with respect
to the Non-Statutory Options are hereby revoked.
(j) This Agreement may be executed in any number of counterparts,
each of which, when executed, shall be deemed to be an original and all of
which together shall be deemed to be one and the same instrument.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
by its duly authorized officer, and the Optionee has executed this Agreement,
all as of the date first written above.
INTEK GLOBAL CORPORATION
-----------------------------------------
By: Robert Shiver
Its: Chairman and Chief Executive Officer
The undersigned Optionee hereby acknowledges receipt of an executed
original of this Stock Option Agreement and accepts the option granted
thereunder.
-----------------------------------------
[Optionee]
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<PAGE>
EXHIBIT A
FORM OF EXERCISE OF NON-STATUTORY STOCK OPTION
Intek Global Corporation
214 Carnegie Center, Suite 304
Princeton, New Jersey 08540-6237
Attention: Chief Executive Officer
Gentlemen:
The undersigned Optionee hereby exercises all or a portion of the
Non-Statutory Options granted to him pursuant to the Non-Statutory Stock
Option Agreement dated as of __________, _____, between Intek Global
Corporation (the "Company") and the Optionee with respect to __________
shares of Common Stock, par value $0.01 per share, of the Company covered by
said Non-Statutory Options, and tenders herewith at the price of $__________
per share, of which $__________ represents payment of the exercise price
thereof and $__________ represents payment of any withholding tax due.
The registered address on the share certificate to be issued to the
Optionee should be: ___________________________________________________________
_______________________________________________________________________________.
The Optionee's social security number is: _________________________.
Optionee:
____________________________________
Signature
____________________________________
Typed or Printed Name
____________________________________
Date of Exercise
