As filed with the Securities and Exchange Commission on
April 30, 1996
Securities Act Registration No. 33-
U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ANTARES RESOURCES CORPORATION
(Exact name of registrant as specified in its charter)
New York 13-1950459
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification number)
100 Quentin Roosevelt Boulevard, Suite 202
Garden City, New York 11530
(Address of principal executive offices) (Zip Code)
ANTARES RESOURCES CORPORATION STOCK INCENTIVE PLAN
(Full Title of the Plan)
William W. Perry III Copies to:
President & Chief Executive Officer Andrew I. Telsey, Esquire
Antares Resources Corporation Andrew I. Telsey, P.C.
2345 Friendly Road 2851 S. Parker Road, Suite 720
Fernandina Beach, FL 32034 Aurora, Colorado 80014
(Name & address of agent for service) (303) 671-8920
(904) 261-8607
(Telephone number, including area code, of agent for service)
(CALCULATION OF REGISTRATION FEE)
Proposed Proposed
Amount maximum maximum Amount of
Title of securities to be offering aggregate registration
to be registered registered price per offering fee
Share price
Common Stock, 2,600,000 $4.0625 $10,562,500 $3,642.24
$0.001 par value shares
*Estimated for calculation of registration fee only, pursuant to Rule 457(c)
and (h), calculated on the basis of the average of the bid and asked prices
for the
Common Stock on NASDAQ as of April 30, 1996.
In addition, pursuant to Rule 416(c) promulgated under the Securities Act of
1933, this Registration Statement covers an indeterminate amount of interests
to be offered or sold pursuant to the Antares Resources Corporation Stock
Incentive Plan described herein.
This Form S-8 consists of 33 pages.
Exhibits are indexed beginning at page 7.
PART II. INFORMATION REQUIRED
IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated into this Registration Statement by
reference:
(1) The Company's latest Annual Report on Form 10-KSB for the fiscal year
ended September 30, 1995 (the "Annual Report"), filed pursuant to Section 13 of
the Exchange Act;
(2) All other reports filed by the registrant pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 since the end of the fiscal
year covered by the annual report referred to in (a), above.
(3) The Company's Registration Statements on Form S-8 (SEC file no.
33-88040), filed December 29, 1994, Registration Statement on Form S-8
(SEC file no. 33-90330), filed March 15, 1995 and Registration Statement
on Form S-8 (SEC file no. 33-99396), filed November 16, 1995.
All documents subsequently filed by the Company pursuant to Section 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934 after the date of
this Registration Statement and prior to the filing of a post-effective
amendment to this Registration Statement which indicates that
all securities offered by this Registration Statement have been sold or
which deregisters all securities then remaining unsold shall be deemed to
be incorporated by reference into this Registration Statement and to be a
part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated herein by reference 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 also is or is deemed to be incorporated herein by reference
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.
The Common Stock of the Company is registered under Section 12 of the
Securities Exchange Act of 1934, as amended.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
The Company's Articles of Incorporation provide that the Company will
indemnify any officer or director to the full extent permitted by law.
Insofar as indemnification for liabilities arising under the Act may be
permitted to officers and directors of the Company pursuant to the foregoing
provisions or otherwise, the Company understands that, in the opinion of the
Securities and Exchange Commission, such indemnification is against public
policy as expressed in the Act and therefore unenforceable, In the event
that a claim for indemnification for such liabilities (other than the payment
by the Company of expenses paid by a director or officer of the Company in
the successful defense of any action, suit or proceeding) is asserted by an
officer or director for liabilities arising under the Act, the Company
will (unless the question has already been determined by a precedent deemed
to be controlling), submit to a court of appropriate jurisdiction the
question whether or not indemnification by it is against public policy
as expressed in the Act and will be governed by the final adjudication
of such issue.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following is a complete list of exhibits filed as a part of this
Registration Statement and which are incorporated herein.
Exhibit No.
4.1 Antares Resources Corporation Stock Incentive Plan
5 Opinion of Andrew I. Telsey, P.C. regarding legality of the
securities covered by this Registration Statement.
24.1 The consent of Andrew I. Telsey, P.C., counsel for the Company, to
the use of their opinion with respect to the legality of the securities
covered by this Registration Statement and to the references to such firm
in this Registration Statement is contained in such opinion filed as
Exhibit 5 to this Registration Statement.
24.2 Consent of Horton & Company, independent auditors.
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 to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination
of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Securities Exchange Act of 1934 (and each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, 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 out of the Securities
Act of 1933 may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions or otherwise, the
registrant has been advised that in the opinion of the Securities and
exchange Commission such indemnification is against public policy as
expressed in the 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 to question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused
this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Garden City,
State of New York, on April 29, 1996.
ANTARES RESOURCES CORPORATION
By: /s/ William W. Perry III
William W. Perry III, President, Chief
Executive Officer and Director
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons
in the capacities and on the date indicated.
Dated: Signatures and Capacities:
April 29, 1996 /s/ William W. Perry, III
William W. Perry III, President, Chief
Executive Officer and Director
April 29, 1996 /s/ C. Richard Stubbs
C. Richard Stubbs, Chief Financial Officer
and Director
April 29, 1996 /s/ Samuel G. Weiss
Samuel G. Weiss, Secretary and Director
April 29, 1996 /s/ Joan Kushay
Joan Kushay, Assistant Secretary and Director
April 29, 1996 /s/ Darcy E. Stubbs, Jr.
Darcy E. Stubbs, Jr., Director
April 29, 1996 /s/ David Capps
David Capps, Director
April 29, 1996 /s/ Marie Stubbs
Marie Stubbs, Director
April 29, 1996 /s/ Susan Schlapkohl
Susan Schlapkohl, Director
April 29, 1996 /s/ Ralph Wilson
Ralph Wilson, Director
The Plan. Pursuant to the requirements of the Securities Act of 1933, the
Plan Administrator has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Garden City, State of New York on April 29, 1996.
ANTARES RESOURCES CORPORATION
STOCK INCENTIVE PLAN
By: /s/ Ralph Wilson
Ralph Wilson, Plan Administrator
EXHIBIT INDEX
The following is a complete list of exhibits filed as a part of this
Registration Statement and which are incorporated herein.
Exhibit No. Page
4.1 Antares Resources Corporation Stock Incentive Plan 8
5 Opinion of Andrew I. Telsey, P.C. regarding legality of the
securities 29 covered by this Registration Statement.
24.1 The consent of Andrew I. Telsey, P.C., legal counsel for the Company,
- to the use of their opinion with respect to the legality of the
securities covered by this Registration Statement and to the
references to such firm in this Registration Statement is
contained in such opinion filed as Exhibit 5 to this Registration
Statement.
24.2 Consent of Horton & Company, independent auditors. 32
ANTARES RESOURCES CORPORATION
EXHIBIT 4.1
ANTARES RESOURCES CORPORATION
STOCK INCENTIVE PLAN
STOCK INCENTIVE PLAN
Section 1. Purpose; Definitions.
The purpose of the Plan is to give the Company a
competitive advantage in attracting, retaining and
motivating officers and employees and to provide the
Company and its subsidiaries with the ability to
provide incentives more directly linked to the
profitability of the Company's businesses and increases
in shareholder value.
For purposes of the Plan, the following terms are
defined as set forth below:
a. "Affiliate" means a corporation or other
entity controlled by the Company and designated by the
Committee from time to time as such.
b. "Award" means a Stock Appreciation Right,
Stock Option, Restricted Stock or Performance Units.
c. "Award Cycle" shall mean a period of
consecutive fiscal years or portions thereof designated
by the Committee over which Performance Units are to be
earned.
d. "Board" means the Board of Directors of the
Company.
e. "Cause" has the meaning set forth in Section 5(i).
f. "Change in Control" and "Change in Control
Price" have the meanings set forth in Sections 9(b)
and (c), respectively.
g. "Code" means the Internal Revenue Code.
h. "Commission" means the Securities and Exchange Commission or any successor
agency.
i. "Committee" means the Committee referred to in Section 2.
j. "Common Stock" means common stock, par value $.001 per share, of the
Company.
k. "Company" means Antares Resources Corporation a New York corporation.
l. "Covered Employee" shall mean a participant
designated prior to the grant of shares of Restricted
Stock or Performance Units by the Committee who is or
may be a "covered employee" within the meaning of
Section 162(m)(3) of the Code in the year in which
Restricted Stock or Performance Units are taxable to
such participant.
m. "Disability" means permanent and total
disability as determined under procedures established
by the Committee for purposes of the Plan.
n. "Disinterested Person" shall mean a member of
the Board who qualifies as a disinterested person as
defined in Rule 16b-3(c)(2), as promulgated by the
Commission under the Exchange Act, or any successor
definition adopted by the Commission.
o. "Early Retirement" means retirement from
active employment with the Company, a subsidiary or
Affiliate pursuant to the early retirement provisions
of the applicable pension plan of such employer.
p. "Exchange Act" means the Securities Exchange
Act of 1934, as amended from time to time, and any
successor thereto.
q. "Fair Market Value" means, except as provided
in Sections 5(j) and 6(b)(ii)(2), as of any given date,
the mean between the highest and lowest reported sales
prices of the Common Stock on the New York Stock
Exchange Composite Tape or, if not listed on such
exchange, on any other national securities exchange on
which the Common Stock is listed or on NASDAQ. If
there is no regular public trading market for such
Common Stock, the Fair Market Value of the Common Stock
shall be determined by the Committee in good faith.
r. "Incentive Stock Option" means one or more
options to purchase common stock which, at the time
such options are granted under this Plan or any other
such plan of the Company, qualify as incentive stock
options under Section 422 A of the Code.
s. "Nonqualified Stock Option" means any Stock
Option that is not an Incentive Stock Option.
t. "Normal Retirement" means retirement from
active employment with the Company, a subsidiary or
Affiliate at or after age 65.
u. "Performance Goals" means the performance
goals established by the Committee with respect to the
grant of Restricted Stock or Performance Units that are
based on the attainment of specified levels of earnings
per share from continuing operations, operating income,
sales, return on operating assets, return on equity,
shareholder return (measured in terms of stock price
appreciation) and/or total shareholder return (measured
in terms of stock price appreciation and/or dividend
growth), composite corporate market share (as measured
by Information Resources, Inc., or if no longer
computed by that firm, then as measured by the points
of sale to consumers), net free cash flow (which, for
any given period, shall mean the sum of the following
amounts relating to such period: (i) net reductions in
debt, (ii) treasury stock purchases, (iii) dividends
paid, (iv) capital expenditures, net of proceeds from
retirements, and (v) net cash paid for acquisitions,
less cash received for divestitures), or stock price of
the Company or such subsidiary, division or department
of the Company for or within which the participant is
primarily employed and that are intended to qualify
under Section 162(m)(4)(c) of the Code. Such
Performance Goals shall be set by the Committee within
the time period prescribed by Section 162(m) of the
Code and related regulations.
v. "Performance Units" means an award made
pursuant to Section 8.
w. "Plan" means the Antares Resources
Corporation 1994 Stock Incentive Plan, as set forth
herein and as hereinafter amended from time to time.
x. "Restricted Stock" means an award granted
under Section 7.
y. "Retirement" means Normal or Early
Retirement.
z. "Rule 16b-3 means Rule 16b-3, as promulgated
by the Commission under Section 16(b) of the Exchange
Act, as amended from time to time.
aa. "Stock Appreciation Right" means a right
granted under Section 6.
bb. "Stock Option" means an option granted under
Section 5.
cc. "Termination of Employment" means the
termination of the participant's employment with the
Company and any subsidiary or Affiliate. A participant
employed by a subsidiary or an Affiliate shall also be
deemed to incur a Termination of Employment if the
subsidiary or Affiliate ceases to be such a subsidiary
or an Affiliate, as the case may be, and the
participant does not immediately thereafter become an
employee of the Company or another subsidiary or
Affiliate.
In addition, certain other terms used herein have
definitions given to them in the first place in which
they are used.
Section 2. Administration.
The Plan shall be administered by the Management
Resources and Compensation Committee of the Board or
such other committee of the Board, composed of not less
than two Disinterested Persons, each of whom shall be
appointed by and serve at the pleasure of the Board.
If at any time no Committee shall be in office, the
functions of the Committee specified in the Plan shall
be exercised by the Board.
The Committee shall have plenary authority to
grant Awards pursuant to the terms of the Plan to
officers and employees of the Company and its
subsidiaries and Affiliates.
Among other things, the Committee shall have the
authority, subject to the terms of the Plan:
(a) to select the officers and employees to whom
Awards may from time to time be granted;
(b) to determine whether and to what extent
Incentive Stock Options, Nonqualified Stock Options,
Stock Appreciation Rights, Restricted Stock and
Performance Units or any combination thereof are to be
granted hereunder;
(c) to determine the number of shares of Common
Stock to be covered by each Award granted hereunder;
(d) to determine the terms and conditions of any
Award granted hereunder (including, but not limited to,
the option price (subject to Section 5(a)), any vesting
condition, restriction or limitation (which may be
related to the performance of the participant, the
Company or any subsidiary or Affiliate) and any vesting
acceleration or forfeiture waiver regarding any Award
and the shares of Common Stock relating thereto, based
on such factors as the Committee shall determine;
(e) to modify, amend or adjust the terms and
conditions of any Award, at any time or from time to
time, including but not limited to Performance Goals;
provided, however, that the Committee may not adjust
upwards the amount payable to a designated Covered
Employee with respect to a particular award upon the
satisfaction of applicable Performance Goals;
(f) to determine to what extent and under what
circumstances Common Stock and other amounts payable
with respect to an Award shall be deferred; and
(g) to determine under what circumstances an
Award may be settled in cash or Common Stock under
Sections 5(j) and 8(b)(i).
The Committee shall have the authority to adopt,
alter and repeal such administrative rules, guidelines
and practices governing the Plan as it shall from time
to time deem advisable, to interpret the terms and
provisions of the Plan and any Award issued under the
Plan (and any agreement relating thereto) and to
otherwise supervise the administration of the Plan.
The Committee may act only by a majority of its
members then in office, except that the members thereof
may (i) delegate to an officer of the Company the
authority to make decisions pursuant to paragraphs (c),
(f), (g), (h) and (i) of Section 5 (provided that no
such delegation may be made that would cause Awards or
other transactions under the Plan to cease to be exempt
from Section 16(b) of the Exchange Act) and (ii)
authorize any one or more of their number or any
officer of the Company to execute and deliver documents
on behalf of the Committee.
Any determination made by the Committee or
pursuant to delegated authority pursuant to the
provisions of the Plan with respect to any Award shall
be made in the sole discretion of the Committee or such
delegate at the time of the grant of the Award or
unless in contravention of any appropriately delegated
officer pursuant to the provisions of the Plan shall be
final and binding on all persons, including the Company
and Plan participants.
Section 3. Common Stock Subject to Plan.
The total number of shares of Common Stock
reserved and available for grant under the Plan shall
be 10,000,000 post split. No participant may be
granted Awards covering in excess of 2,500,000 shares
of Common Stock over the life of the Plan. Shares
subject to an Award under the Plan may be authorized
and unissued shares or may be treasury shares.
Subject to Section 7(c)(iv), if any shares of
Restricted Stock are forfeited for which the
participant did not receive any benefits of ownership
(as such phrase is construed by the Commission or its
Staff), or if any Stock Option (and related Stock
Appreciation Right, if any) terminates without being
exercised, or if any Stock Appreciation Right is
exercised for cash, or if any Performance Unit is
settled in cash, shares subject to such Awards shall
again be available for distribution in connection with
Awards under the Plan.
In the event of any change in corporate capitalization,
such as a stock split, or a corporate transaction, such
as any merger, consolidation, separation, including a
spin-off, or other distribution of stock or property of
the Company, any reorganization (whether or not such
reorganization comes within the definition of such term
in Section 368 of the Code) or any partial or complete
liquidation of the Company, the Committee or Board may
make such substitution or adjustments in the aggregate
number and kind of shares reserved for issuance under
the Plan, in the number, kind and option price of
shares subject to outstanding Stock Options granted
under the Plan and/or such other equitable substitution
or adjustments as it may determine to be appropriate in
its sole discretion; provided, however, that the number
of shares subject to any Award shall always be a whole
number. Such adjusted option price shall also be used
to determine the amount payable by the Company upon the
exercise of any Stock Appreciation Right associated
with any Stock Option.
Section 4. Eligibility.
Officers and employees of the Company, Consultants,
Advisors, Agents, its subsidiaries, Affiliates and
others who are responsible for or contribute to the
management, the companys growth, profitability and well
being of the business of the Company, its subsidiaries
and Affiliates are eligible to be granted Awards under
the Plan.
Section 5. Stock Options.
Stock Options may be granted alone or in addition to
other Awards granted under the Plan and may be of two
types: Incentive Stock Options and Nonqualified Stock
Options. Any Stock Option granted under the Plan shall
be in such form as the Committee may from time to time
approve.
The Committee shall have the authority to grant any
optionee Incentive Stock Options, Nonqualified Stock
Options or both types of Stock Options (in each case
with or without Stock Appreciation Rights); provided,
however, that grants hereunder are subject to the
aggregate limit on grants to individual participants
set forth in Section 3. Incentive Stock Options may be
granted only to employees of the Company and its
subsidiaries (within the meaning of Section 424(f) of
the Code). The extent that any Stock Option is not
designated as an Incentive Stock Option or even if so
designated does not qualify as an Incentive Stock
Option, it shall constitute a Nonqualified Stock
Option.
Stock Options shall be evidenced by option
agreements, the terms and provisions of which may
differ. An option agreement shall indicate on its face
whether it is intended to be an agreement for an
Incentive Stock Option or a Nonqualified Stock Option.
The grant of a Stock Option shall occur on the date
the Committee by resolution selects an individual to be
a participant in any grant of stock option, determines
the number of shares of Common Stock to be subject to
such Stock Option to be granted to such individual and
specifies the terms and provisions of the Stock Option.
The Company shall notify a participant of any grant of
Stock Option, and a written option agreement or
agreements shall be duly executed and delivered by the
Company to the participant. Such agreement or
agreements shall become effective upon execution by the
Company and the participant.
Anything in the Plan to the contrary notwithstanding,
no term of the Plan relating to Incentive Stock Options
shall be interpreted, amended or altered nor shall any
discretion or authority granted under the Plan be
exercised so as to disqualify the Plan under Section
422 of the Code or, without the consent of the optionee
affected, to disqualify any Incentive Stock Option
under such Section 422.
Stock Options granted under the Plan shall be subject
to the following terms and conditions and shall contain
such additional terms and conditions as the Committee
shall deem desirable:
(a) Option Price. The option price per share of
Common Stock purchasable under a Stock Option shall be
determined by the Committee and set forth in the option
agreement, and shall not be less than the Fair Market
Value of the Common Stock subject to the Stock Option
on the date of grant.
(b) Option Term. The term of each Stock Option
shall be fixed by the Committee, but no Incentive Stock
Option shall be exercisable more than 10 years after
the date of the Stock Option is granted.
(c) Exercisability. Except as otherwise provided
herein, Stock Options shall be exercisable at such time
or times and subject to such terms and conditions as
shall be determined by the Committee. If the Committee
provides that any Stock Option is exercisable only in
installments, the Committee may at any time waive such
installment exercise provisions, in whole or in part,
based on such factors as the Committee may determine.
In addition, the Committee may at any time accelerate
the exercisability of any Stock Option.
(d) Method of Exercise. Subject to the
provisions of this Section 5, Stock Options may be
exercised, in whole or in part, at any time during the
option term by giving written notice of exercise to the
Company specifying the number of shares of Common Stock
subject to the Stock Option to be purchased.
Such notice shall be accompanied by payment in
full of the purchase price by certified or bank check
or such other instrument as the Company may accept. If
approved by the Committee, payment in full or in part
may also be made in the form of unrestricted Common
Stock already owned by the optionee of the same class
as the Common Stock subject to the Stock Option and, in
the case of the exercise of a Nonqualified Stock
Option, Restricted Stock subject to an Award hereunder
which is of the same class as the Common Stock subject
to the Stock Option (based, in each case, on the Fair
Market Value of the Common Stock on the date the Stock
Option is exercised); provided, however, that, in the
case of an Incentive Stock Option, the right to make a
payment in the form of already owned shares of Common
Stock of the same class as the Common Stock subject to
the Stock Option may be authorized only at the time the
Stock Option is granted.
If payment of the option exercise price of a
nonqualified Stock Option is made in whole or in part
in the form of Restricted Stock, the number of shares
of Common Stock to be received upon such exercise equal
to the number of shares of Restricted Stock used for
payment of the option exercise price shall be subject
to the same forfeiture restrictions or deferral
limitations to which such Restricted Stock was subject,
unless otherwise determined by the Committee.
In the discretion of the Committee, payment for any
shares subject to a Stock Option may also be made be
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
purchase price, and, if requested the amount of any
Federal, state, local or foreign withholding taxes. To
facilitate the foregoing, the Company may enter into
agreements for coordinated procedures with one or more
brokerage firms.
No shares of Common Stock shall be issued until full
payment therefor has been made. Subject to any
forfeiture restrictions or deferral limitations that
may apply if a Stock Option is exercised using
Restricted Stock, an optionee shall have all of the
rights of a shareholder of the Company holding the
class or series of Common Stock that is subject to such
Stock Option (including, if applicable, the right to
vote the shares and the right to receive dividends),
when the optionee has given written notice of exercise,
has paid in full for such shares and, if requested, has
given the representation described in Section 13(a).
(e) Nontransferability of Stock Option. No Stock
Option shall be transferable by the optionee other than
(i) by will or by the laws of descent and distribution
(ii) or (ii) in the case of a Nonqualified Stock
Option, pursuant to (a) a qualified domestic relations
order (as defined in the Code or Title I of the
Employee Retirement Income Security Act of 1974, as
amended, or the rules thereunder), or (b) a gift to
such optionee's children, whether directly or
indirectly or by means of a trust or partnership or
otherwise, if expressly permitted under the applicable
option agreement. All Stock Options shall be
exercisable, during the optionee's lifetime, only by
the optionee or by the guardian or legal representative
of the optionee or, in the case of a Nonqualified Stock
Option, its alternative payee pursuant to such
qualified domestic relations order, it being understood
that the terms "holder" and "optionee" include the
guardian and legal representative of the optionee named
in the option agreement and any person to whom an
option is transferred by will or the laws of descent
and distribution or, in the case of a Nonqualified
Stock Option, pursuant to a qualified domestic
relations order or a gift permitted under the
applicable option agreement.
(f) Termination by Death. Unless otherwise
determined by the Committee, if an optionee's
employment terminates by reason of death, any Stock
Option held by such optionee may thereafter be
exercise, to the extent then exercisable, or on such
accelerated basis as the Committee may determine, for
a period of one year (or such other period as the
Committee may specify in the option agreement) from
the date of such death or until the expiration of the
stated term of such Stock Option, whichever period is
the shorter.
(g) Termination by Reason of Disability. Unless
otherwise determined by the Committee, if any
optionee's employment terminates by reason of
Disability, any Stock Option held by such optionee may
thereafter be exercised by the optionee, to the extent
it was exercisable at the time of termination, or on
such accelerated basis as the Committee may determine,
for a period of three years (or such shorter period as
the Committee may specify in the option agreement) from
the date of such termination of employment or until the
expiration of the stated term of such Stock Option,
whichever period is the shorter; provided, however,
that if the optionee dies within such three-year period
(or such shorter period), any unexercised Stock Option
held by such optionee shall notwithstanding the
expiration of such three-year (or such shorter) period,
continue to be exercisable to the extent to which it
was exercisable at the time of death for a period of 12
months from the date of such death or until the
expiration of the stated term of such Stock Option,
whichever period is the shorter. In the event of
termination of employment by reason of Disability, if
an Incentive Stock Option is exercised after the
expiration of the exercise periods that apply for
purposes of Section 422 of the Code, such Stock Option
will thereafter be treated as a Nonqualified Stock
Option.
(h) Termination by Reason of Retirement. Unless
otherwise determined by the Committee, if any
optionee's employment terminates by reason of
Retirement, any Stock Option held by such optionee may
thereafter be exercised by the optionee, to the extent
it was exercisable at the time of such Retirement, or
on such accelerated basis as the Committee may
determine, for a period of three years (or such shorter
period as the Committee may specify in the option
agreement) from the date of such termination of
employment or until the expiration of the stated term
of such Stock Option, whichever period is the shorter;
provided, however, that if the optionee dies within
such three-year (or such shorter) period any
unexercised Stock Option held by such optionee shall,
notwithstanding the expiration of such three-year (or
such shorter) period, continue to be exercisable to the
extent to which it was exercisable at the time of death
for a period of 12 months from the date of such death
or until the expiration of the stated term of such
Stock Option, whichever period is the shorter. In the
event of termination of employment by reason of
Retirement, if any Incentive Stock Option is exercised
after the expiration of the exercise periods that apply
for purpose of Section 422 of the Code, such Stock
Option will thereafter be treated as a Nonqualified
Stock Option.
(i) Other Termination. Unless otherwise
determined by the Committee, if an optionee incurs a
Termination of Employment for any reason other than
death, Disability or Retirement, any Stock Option held
by such optionee shall thereupon terminate, except that
such Stock Option, to the extent then exercisable, or
on such accelerated basis as the Committee may
determine, may be exercised for the lesser of three
months from the date of such Termination of Employment
or the balance of such Stock Option's term if such
Termination of Employment of the optionee is
involuntary and without Cause; provided, however, that
if the optionee dies within such three-month period,
any unexercised Stock Option held by such optionee
shall, notwithstanding the expiration of such three-
month period, any unexercised Stock Option held by such
optionee shall, notwithstanding the expiration of such
three-month period, continue to be exercisable to the
extent to which it was exercisable at the time of death
for a period of 12 months from the date of such death
or until the expiration of the stated term of such
Stock Option, whichever period is the shorter.
Notwithstanding the foregoing, if an optionee incurs a
Termination of Employment at or after a Change in
Control (as defined Section 9(b)), other than by reason
of death, Disability or Retirement, any Stock Option
held by such optionee shall be exercisable of the
lesser of (1) six months and one day from the date of
such Termination of Employment, and (2) the balance of
such Stock Option's term. In the event of Termination
of Employment, if an Incentive Stock Option is
exercised after the expiration of the exercise periods
that apply for purposes of Section 422 of the Code,
such Stock Option will thereafter be treated as a
Nonqualified Stock Option. Unless otherwise determined
by the Committee, for the purposes of the Plan "Cause"
shall mean (1) the conviction of the optionee for
committing a felony under Federal law or the law of the
state in which such action occurred, (2) dishonesty in
the course of fulfilling the optionee's employment
duties or (3) willful and deliberate failure on the
part of the optionee to perform his employment duties
in any material respect.
(j) Cashing Out of Stock Option. On receipt of
written notice of exercise, the Committee may elect to
cash out all or part of the portion of the shares of
Common Stock for which a Stock Option is being
exercised by paying the optionee an amount, in cash or
Common Stock, equal to the excess of the Fair Market
Value of the Common Stock over the option price times
the number of shares of Common Stock for which the
Option is being exercised on the effective date of such
cash out.
Cash outs pursuant to this Section 5(j) relating to
Options held by optionees who are actually or
potentially subject to Section 16(b) of the Exchange
Act shall comply with the "window period" provisions of
Rule 16b-3, to the extent applicable, and, in the case
of cash outs of Nonqualified Stock Options held by such
optionees, the Committee may determine Fair Market
Value under the pricing rule set forth in Section
6(b)(ii)(2).
(k) Change in Control Cash Out. Notwithstanding
any other provision of the plan, during the 60-day
period from and after a Change in Control (the
"Exercise Period"), unless the Committee shall
determine otherwise at the time of grant, an optionee
shall have the right, whether or not the Stock Option
is fully exercisable and in lieu of the payment of the
exercise price for the shares of Common Stock being
purchased under the Stock Option and by giving notice
to the Company, to elect (within the Exercise Period)
to surrender all or part of the Stock Option to the
Company and to receive cash, within 30 days of such
notice, in an amount equal to the amount by which the
Change in Control Price per share of Common Stock on
the date of such election shall exceed the exercise
price per share of Common stock under the Stock Option
(the "Spread") multiplied by the number of shares of
Common Stock granted under the Stock Option as to which
the right granted under the Section 5(k) shall have
been exercised; provided, however, that if the Change
in Control is within six months of the date of grant of
a particular Stock Option held by an optionee who is an
officer or director of the Company and is subject to
Section 16(b) of the Exchange Act no such election
shall be made by such optionee with respect to such
Stock Option prior to six months from the date of
grant. However, if the end of such 60-day period from
and after a Change in Control is within six months of
the date of grant of a Stock Option held by an optionee
who is an officer or director of the Company and is
subject to Section 16(b) of the Exchange Act, such
Stock Option shall be canceled in exchange for a cash
payment to the optionee, effected on the day which is
six months and one day after the date of grant of such
Option, equal to the Spread multiplied by the number of
shares of Common Stock granted under the Stock Option.
Section 6. Stock Appreciation Rights.
(a) Grant and Exercise. Stock Appreciation
Rights may be granted in conjunction with all or part
of any Stock Option granted under the plan. In the
case of a Nonqualified Stock Option, such rights may be
granted either at or after the time of grant of such
Stock Option. In the case of an Incentive Stock
Option, such rights may be granted only at the time of
grant of such Stock Option. A Stock Appreciation Right
shall terminate and no longer be exercisable upon the
termination or exercise of the related Stock Option.
A Stock Appreciation Right may be exercised by an
optionee in accordance with Section 6(b) by
surrendering the applicable portion of the related
Stock Option in accordance with procedures established
by the Committee. Upon such exercise and surrender,
the optionee shall be entitled to receive an amount
determined in the manner prescribed in Section 6(b).
Stock Options which have been so surrendered shall no
longer be exercisable to the extent the related Stock
Appreciation Rights have been exercised.
(b) Terms and Conditions. Stock Appreciation
Rights shall be subject to such terms and conditions as
shall be determined by the Committee, including the
following:
(i) Stock Appreciation Rights shall be
exercisable only at such time or times and to the
extent that the Stock Options to which they relate are
exercisable in accordance with the provisions of
Section 5 and this Section; provided, however, that a
Stock Appreciation Right shall not be exercisable
during the first six months of its term by an optionee
who is actually or potentially subject to Section 16(b)
of the Exchange Act, except that this limitation shall
not apply in the event of death or Disability of the
optionee prior to the expiration of the six-month
period.
(ii) Upon the exercise of a Stock
Appreciation Right, an optionee shall be entitled to
receive an amount in cash, shares of Common Stock or
both equal in value to the excess of the Fair Market
Value of one share of Common Stock over the option
price per share specified in the related Stock Option
multiplied by the number of shares in respect of which
the Stock Appreciation Right shall have been exercised,
with the Committee having the right to determine the
form of payment.
In the case of Stock Appreciation Rights relating
to Stock Options held by optionees who are actually or
potentially subject to Section 16(b) of the Exchange
Act, the Committee:
(1) may require that such Stock
Appreciation Rights be exercised for cash only in
accordance with the applicable "window period"
provisions of Rule 16b-3; and
(2) in the case of Stock Appreciation
Rights relating to Nonqualified Stock Options, may
provide that the amount to be paid in cash upon
exercise of such Stock Appreciation Rights during a
Rule 16b-3 "window period" shall be based on the
highest of the daily means between the highest and
lowest reported sales prices of the Common Stock on the
New York Stock Exchange or other national securities
exchange on which the shares are listed or on NASDAQ,
as applicable, on any day during such "window period".
(iii) Stock Appreciation Rights shall be
transferable on to permitted transferees of the
underlying Stock Option in accordance with Section
5(e).
(iv) Upon the exercise of a Stock
Appreciation Right, the Stock Option or part thereof to
which such Stock Appreciation Right is related shall be
deemed to have been exercised for the purpose of the
limitation set forth in Section 3 on the number of
shares of Common Stock to be issued under the Plan, but
only to the extent of the number of shares covered by
the Stock Appreciation Right at the time of exercise
based on the value of the Stock Appreciation Right at
such time.
Section 7. Restricted Stock.
(a) Administration. Shares of Restricted Stock
may be awarded either alone or in addition to other
Awards granted under the Plan. The Committee shall
determine the officers and employees to whom and the
time to times at which grants of Restricted Stock will
be awarded, the number of shares to be awarded to any
participant (subject to the aggregate limit on grants
to individual participants set forth in Section 3), the
conditions for vesting, the time or times within which
such Awards may be subject to forfeiture and any other
terms and conditions of the Awards, in addition to
those contained in Section 7(c).
The Committee shall in the case of Restricted
Stock with respect to which a participant is a Covered
Employee, and may, in the case of Restricted Stock
granted to participants not designated as Covered
Employees with respect to such grant, prior to grant
condition the vesting of Restricted Stock upon the
attainment of the applicable Performance Goals. The
Committee may, in addition to requiring satisfaction of
the applicable Performance Goals, also condition
vesting upon the continued service of the participant.
The provision of Restricted Stock Awards (including
the applicable Performance Goals) need not be the same
with respect to each recipient.
(b) Awards and Certificates. Shares of
Restricted Stock shall be evidenced in such manner as
the Committee may deem appropriate, including book-
entry registration or issuance of one or more stock
certificates. Any certificate issued in respect of
shares of Restricted Stock shall be registered in the
name of such participant and shall bear an appropriate
legend referring to the terms, conditions, and
restrictions applicable to such Award, substantially in
the following form:
"The transferability of this certificate and the
shares of stock represented hereby are subject to the
terms and conditions (including forfeiture) of the
Antares Resources Corporation 1994 Stock Incentive Plan
and a Restricted Stock Agreement. Copies of such Plan
and Agreement are on file at the offices of Antares
Resources Corporation, 350 Northern Boulevard, Suite
326, Great Neck, New York 11021."
The Committee may require that the certificates
evidencing such shares be held in custody by the
Company until the restrictions thereon shall have
lapsed and that, as a condition of any Award of
Restricted Stock, the participant shall have delivered
a stock power, endorsed in blank, relating to the
Common Stock covered by such Award.
(c) Terms and Conditions. Shares of Restricted
Stock shall be subject to the following terms and conditions:
(i) Subject to the provisions of the Plan
(including Section 5(d)) and the Restricted Stock
Agreement referred to in Section 7(c)(vi), during the
period, if any, set by the Committee, commencing with
the date of such Award for which such participant's
continued service is required (the "Restriction
Period"), and until the later of (i) the expiration of
the Restriction Period and (ii) the date the applicable
Performance Goals (if any) are satisfied, the
participant shall not be permitted to sell, assign,
transfer, pledge or otherwise encumber shares of
Restricted Stock. Within these limits, the Committee
may provide for the lapse of restrictions based upon
period of service in installments or otherwise and may
accelerate or waive, in whole or in part, restrictions
based upon period of service or upon performance;
provided, however, that in the case of Restricted Stock
with respect to which a participant is a Covered
Employee, the applicable Performance Goals have been
satisfied.
(ii) Except as provided in this paragraph
(iii) and Section 7(c)(i) and the Restricted Stock
Agreement, the participant shall have, with respect
to the shares of Restricted Stock, all of the rights of
a shareholder of the Company holding the class or
series of Common Stock that is the subject of the
Restricted Stock, including, if applicable, the right
to vote the shares and the right to receive any cash
dividends. If so determined by the Committee in the
applicable Restricted Stock Agreement and subject to
Section 13(f) of the Plan, (1) cash dividends on the
class or series of Common Stock that is the subject of
the Restricted Stock Award shall be automatically
deferred and reinvested in additional Restricted Stock,
held subject to the vesting of the underlying
Restricted Stock, or held subject to meeting
Performance Goals applicable only to dividends, and (2)
dividends payable in Common Stock shall be paid in the
form of Restricted Stock of the same class as the
Common Stock with which such dividend was paid, held
subject to the vesting of the underlying restricted
Stock, or held subject to meeting Performance Goals
applicable only to dividends.
(iii) Except to the extent otherwise
provided in the applicable Restricted Stock Agreement
and Sections 7(c)(i), 7(c)(iv) and 9(a)(ii), upon a
participant's Termination of Employment for any reason
during the Restriction Period or before the applicable
Performance Goals are satisfied, all shares still
subject to restriction shall be forfeited by the
participant.
(iv) Except to the extent otherwise provided
in Section 9(a)(ii), in the event that a participant
retires or such participant's employment is
involuntarily terminated (other than for Cause), the
Committee shall have the discretion to waive in whole
or in part any or all remaining restrictions (other
than, in the case of Restricted Stock with respect to
which a participant is a Covered Employee, satisfaction
of the applicable Performance Goals unless the
participant's employment is terminated by reason of
death or Disability) with respect to any or all of such
participant's shares of Restricted Stock.
(v) If and when the applicable Performance
Goals are satisfied and the Restriction Period expires
without a prior forfeiture of the Restricted Stock,
unlegended certificates for such shares shall be
delivered to the participant upon surrender of the
legended certificates.
(vi) Each Award shall be confirmed by, and be
subject to the terms of, a Restricted Stock Agreement.
Section 8. Performance Units.
(a) Administration. Performance Units may be
awarded either alone or in addition to other Awards
granted under the Plan. The Committee shall determine
the officers and employees to whom and the time or
times at which Performance Units shall be awarded, the
number of Performance Units to be awarded to any
participant (subject to the aggregate limit on grants
to individual participants set forth in Section 3), the
duration of the Award Cycle and any other terms and
conditions of the Award, in addition to those contained
in Section 8(b).
The Committee shall condition the settlement of
Performance Units upon the attainment of the applicable
Performance Goals. The provisions of such Awards
(including the applicable Performance Goals) need not
be the same with respect to each recipient.
(b) Terms and Conditions. Performance Unit
Awards shall be subject to the following terms and
conditions:
(i) Subject to the provisions of the Plan
and the Performance Unit Agreement referred to in
Section 8(b)(vi), Performance Units may not be sold,
assigned, transferred, pledged or otherwise encumbered
during the Award Cycle. At the expiration of the Award
Cycle the Committee shall evaluate the Company's
performance in light of the Performance Goals for such
Award and shall determine the number of Performance
Units granted to the participant which have been earned
and the Committee may then elect to deliver (1) a
number of shares of Common Stock equal to the number of
Performance Units determined by the Committee to have
been earned or (2) cash equal to the Fair Market Value
of such number of shares of Common Stock to the
participant.
(ii) Except to the extent otherwise provided
in the applicable Performance Unit Agreement and
Sections 8(b)(iii) and 9(a)(iii), upon a participant's
Termination of Employment for any reason during the
Award Cycle or before the applicable Performance Goals
are satisfied, the rights to the shares still covered
by the Performance Units Award shall be forfeited by
the participant.
(iii) Except to the extent otherwise
provided in Section 9(a)(iii), in the event that a
participant's employment is involuntarily terminated
(other than for Cause), the Committee shall have the
discretion to waive in whole or in part any or all
remaining payment limitations (other than, in the case
of Performance Units with respect to which a
participant is a Covered Employee, satisfaction of the
applicable Performance Goals unless the participant's
employment is terminated by reason of death or
Disability) with respect to any or all of such
participant's Performance Units.
(iv) A participant may elect to further defer
receipt of the Performance Units payable under an Award
(or an installment of an Award) for a specified period
or until a specified event, subject in each case to the
Committee's approval and to such terms as are
determined by the Committee (the "Elective Deferral
Period"). Subject to any exceptions adopted by the
Committee, such election must generally be made prior
to the commencement of the Award Cycle of the Award (or
for such installment of an Award).
(v) If and when the applicable Performance
Goals are satisfied and the Elective Deferral Period
expires without a prior forfeiture of the Performance
Units, payment in accordance with Section 8(b)(i)
hereof shall be made to the participant.
(vi) Each award shall be confirmed by, and be
subject to the terms of, a Performance Unit Agreement.
Section 9. Change in Control Provisions.
(a) Impact of Event. Notwithstanding any other
provision of the Plan to the contrary, in the event of
a Change in Control:
(i) Any Stock Options and Stock Appreciation
Rights outstanding as of the date such Change in
Control is determined to have occurred and not then
exercisable and vested shall become fully exercisable
and vested to the full extent of the original grant;
provided, however, that, in the case of the holder of
Stock Appreciation Rights who is actually subject to
Section 16(b) of the Exchange Act, such Stock
Appreciation Rights shall have been outstanding for at
least six months at the date such Change in Control is
determined to have occurred.
(ii) The restrictions and deferral
limitations applicable to any Restricted Stock shall
lapse, and such Restricted Stock shall become free of
all restrictions and become fully vested and
transferable to the full extent of the original grant.
(iii) All Performance Units shall be
considered to be earned and payable in full and any
deferral or other restriction shall lapse and such
Performance Units shall be settled in cash as promptly
as is practicable.
(b) Definition of Change in Control. For
purposes of the Plan, a "Change in Control" shall mean
the happening of any of the following events:
(i) An acquisition by any individual, entity
or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Exchange Act)(a "Person") of beneficial
ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 20% or more of either (1)
the then outstanding shares of common stock of the
Company (the "Outstanding Company Common Stock") or (2)
the combined voting power of the then outstanding
voting securities of the Company entitled to vote
generally in the election of directors (the
"Outstanding Company Voting Securities"); excluding,
however, the following: (1) any acquisition directly
from the Company, other than an acquisition by virtue
of the exercise of a conversion privilege unless the
security being so converted was itself acquired directly
from the Company, (2) any acquisition by the Company, (3)
any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Company or any corporation
controlled by the Company or (4) any acquisition by any
corporation pursuant to a transaction which complies with
clauses (1), (2) and (3) of subsection (iii) of this Section 9(b); or
(ii) A change in the composition of the Board
such that the individuals who, as of the effective date
of the Plan, constitute the Board (such Board shall be
hereinafter referred to as the "Incumbent Board") cease
for any reason to constitute at least a majority of the
Board; provided, however, for purposes of this Section
9(b), that any individual who becomes a member of the
Board subsequent to the effective date of the Plan,
whose election, or nomination for election by the
Company's shareholders, was approved by a vote of at
least a majority of those individuals who are members
of the Board and who were also members of the Incumbent
Board (or deemed to be such pursuant to this proviso)
shall be considered as though such individual were a
member of the Incumbent Board; but, provided further,
that any such individual whose initial assumption of
office occurs as a result of either an actual or
threatened election contest (as such terms are used in
Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) or other actual or threatened
solicitation of proxies or consents by or on behalf of
a Person other than the Board shall not be so
considered as a member of the Incumbent Board; or
(iii) The approval by the shareholders of
the Company of a reorganization, merger or
consolidation or sale or other disposition of all or
substantially all of the assets of the Company
("Corporate Transaction") or, if consummation of such
Corporate Transaction is subject, at the time of such
approval by shareholders, to the consent of any
government or governmental agency, the obtaining of
such consent (either explicitly or implicitly by
consummation); excluding, however, such a Corporate
Transaction pursuant to which (1) all or substantially
all of the individuals and entities who are the
beneficial owners, respectively, of the Outstanding
Company Common Stock and Outstanding Company Voting
Securities immediately prior to such Corporate
Transaction will beneficially own, directly or
indirectly, more than 60% of, respectively, the
outstanding shares of common stock, and the combined
voting power of the then outstanding voting securities
entitled to vote generally in the election of
directors, as the case may be, of the corporation
resulting from such Corporate Transaction (including,
without limitation, a corporation which as a result of
such transaction owns the Company or all or
substantially all of the Company's assets either
directly or through one or more subsidiaries) in
substantially the same proportions as their ownerships,
immediately prior to such Corporate Transaction, of the
Outstanding Company Common Stock and Outstanding
Company Voting Securities, as the case may be, (2) no
Person (other than the Company, any employee benefit
plan (or related trust) of the Company or such
corporation resulting from such Corporate Transaction)
will beneficially own, directly or indirectly, 20% or
more of, respectively, the outstanding shares of common
stock of the corporation resulting from such Corporate
Transaction or the combined voting power of the
outstanding voting securities of such corporation
entitled to vote generally in the election of directors
except to the extent that such ownership existed prior
to the Corporate Transaction and (3) individuals who
were members of the Incumbent Board will constitute at
least a majority of the members of the board of
directors of the corporation resulting from such
Corporate Transaction; or
(iv) The approval by the shareholders of the
Company of a complete liquidation or dissolution of the
Company.
(c) Change in Control Price. For purposes of the
Plan, "Change in Control Price" means the higher of (i)
the highest reported sales price, regular way, of a
share of Common Stock in any transaction reported on
the New York Stock Exchange Composite Tape or other
national exchange on which such shares are listed or on
NASDAQ during the 60-day period prior to and including
the date of a Change in Control or (ii) if the Change
in Control is the result of a tender or exchange offer
or a Corporate Transaction, the highest price per share
of Common Stock paid in such tender or exchange offer
or Corporate Transaction; provided, however, that (x)
in the case of a Stock Option which (A) is held by an
optionee who is an officer or director of the Company
and is subject to Section 16(b) of the Exchange Act and
(B) was granted within 240 days of the Change in
Control, then the Change in Control Price for such
Stock Option shall be the Fair Market Value of the
Common Stock on the date such Stock Option is exercised
or deemed exercised and (y) in the case of Incentive
Stock Options and Stock Appreciation Rights relating to
Incentive Stock Options, the Change in Control Price
shall be in all cases the Fair Market Value of the
Common Stock on the date such Incentive Stock Option or
Stock Appreciation Right is exercised. To the extent
that the consideration paid in any such transaction
described above consists all or in part of securities
or other non-cash consideration, the value of such
securities or other non-cash consideration shall be
determined in the sole discretion of the Board.
Section 10. Loans
The Company may make loans to a participant in
connection with Awards subject to the following terms
and conditions and such other terms and conditions not
inconsistent with the Plan including the rate of
interest, if any, as the Committee shall impose from
time to time.
No loan made under the Plan shall exceed the sum
of (i) the aggregate price payable with respect to the
Award in relation to which the loan is made, plus (ii)
the amount of the reasonably estimated combined amounts
of Federal and state income taxes payable by the
participant.
No loan shall have an initial term exceeding ten
(10) years; provided that the loans under the Plan
shall be renewable at the discretion of the Committee; and provided,
further, that the indebtedness under each loan shall become due and
payable, as the case may be, on a date no later then (i) one year after
Termination of Employment due to death, Retirement or
Disability, or (ii) the day of Termination of
Employment for any reason other than death, Retirement
or Disability.
Loans under the Plan may be satisfied by the
participant, as determined by the Committee, in cash
or, with the consent of the Committee, in whole or in
part in the form of unrestricted Common Stock already
owned by the participant where such Common Stock shall
be valued at Fair Market Value on the date of such
payment.
When a loan shall have been made, Common Stock
equivalent in value to the amount of the loan shall be
pledged by the participant to the Company as security
for payment of the unpaid balance of the loan. Any
portions of such Common Stock may, in the discretion of
the Committee, be released from time to time as it
deems not to be needed as security.
The making of any loan is subject to satisfying all applicable laws,
as well as any regulations and rules of the Federal Reserve Board and
any other governmental agency having jurisdiction.
Section 11. Term, Amendment and Termination.
The Plan will terminate 10 years after the
effective date of the Plan. Under the Plan, Awards
outstanding as of such date shall not be affected or
impaired by the termination of the Plan.
The Board may amend, alter, or discontinue the
Plan, but no amendment, alteration or discontinuation
shall be made which would (i) impair the rights of an
optionee under a Stock Option or a recipient of a Stock
Appreciation Right, Restricted Stock Award or
Performance Unit Award theretofore granted without the
optionee's or recipient's consent, except such an
amendment made to cause the Plan to qualify for the
exemption provided by Rule 16b-3, or (ii) disqualify
the Plan from the exemption provided by Rule 16b-3. In
addition, no such amendment shall be made without the
approval of the Company's shareholders to the extent
such approval is required by law or agreement.
The Committee may amend the terms of any Stock
Option or other Award theretofore granted,
prospectively or retroactively, but no such amendment
shall impair the rights of any holder without the
holder's consent except such an amendment made to cause
the Plan or Award to qualify for the exemption provided
by Rule 16b-3.
Subject to the above provisions, the Board shall have
authority to amend the Plan to take into account
changes in law and tax and accounting rules, as well as
other developments and to grant Awards which qualify
for beneficial treatment under such rules without
shareholder approval.
Section 12. Unfunded Status of Plan.
It is presently intended that the Plan constitute
an "unfunded" plan for incentive and deferred
compensation. The Committee may authorize the creation
of trusts or other arrangements to meet the obligations
created under the Plan to deliver Common Stock or make
payments; provided, however, that, unless the Committee
otherwise determines, the existence of such trusts or
other arrangements is consistent with the "unfunded"
status of the Plan.
Section 13. General Provisions.
(a) The Committee may require each person
purchasing or receiving shares pursuant to an Award to
represent to and agree with the Company in writing that
such person is acquiring the shares without a view to
the distribution thereof. The certificates for such
shares may include any legend which the Committee deems
appropriate to reflect any restrictions on transfer.
Notwithstanding any other provision of the Plan or
agreements made pursuant thereto, the Company shall not
be required to issue or deliver any certificate or
certificates for shares of Common Stock under the Plan
prior to fulfillment of all of the following
conditions:
(1) The listing or approval for listing upon
notice of issuance, of such shares on the New York
Stock Exchange, Inc., or such other securities exchange
as may at the time be the principal market for the
Common Stock;
(2) Any registration or other qualification
of such shares of the Company under any state of
Federal law or regulation, or the maintaining in effect
of any such registration or other qualification which
the Committee shall, in its absolute discretion upon
the advice of counsel, deem necessary or advisable; and
(3) The obtaining of any other consent,
approval, or permit from any state or Federal
governmental agency which the Committee shall, in its
absolute discretion after receiving the advice of
counsel, determined to be necessary or advisable.
(b) Nothing contained in the Plan shall prevent
the Company or any subsidiary or Affiliate from
adopting other or additional compensation arrangements
for its employees.
(c) The adoption of the Plan shall not confer
upon any employee any right to continued employment nor
shall it interfere in any way with the right of the
Company or any subsidiary or Affiliate to terminate the
employment of any employee at any time.
(d) No later than the date as of which an amount
first becomes includible in the gross income of the
participant for Federal income tax purposes with
respect to any Award under the Plan, the participant
shall pay to the Company, or make arrangements
satisfactory to the Company regarding the payment of,
any Federal, state, local or foreign taxes of any kind
required by law to be withheld with respect to such
amount. Unless otherwise determined by the Company,
withholding obligations may be settled with Common
Stock, including Common Stock that is part of the Award
that gives rise to the withholding requirement. The
obligations of the Company under the Plan shall be
conditional on such payment or arrangements, and the
Company and its Affiliates shall, to the extent
permitted by law, have the right to deduct any such
taxes from any payment otherwise due to the
participant. The Committee may establish such
procedures as it deems appropriate, including the
making of irrevocable elections, for the settlement of
withholding obligations with Common Stock.
(e) At the time of grant, the Committee may
provide in connection with any grant made under the
Plan that the shares of Common Stock received as a
result of such grant shall be subject to a right of
first refusal pursuant to which the participant shall
be required to offer to the Company any shares that the
participant wishes to sell at the then Fair Market
Value of the Common Stock, subject to such other terms
and conditions as the Committee may specify at the time
of grant.
(f) The reinvestment of dividends in additional
Restricted Stock at the time of any dividend payment
shall only be permissible if sufficient shares of
Common Stock are available under Section 3 for such
reinvestment (taking into account then outstanding
Stock Options and other Awards).
(g) The Committee shall establish such procedures
as it deems appropriate for a participant to designate
a beneficiary to whom any amounts payable in the event
of the participant's death are to be paid or by whom
any rights of the participant, after the participant's
death, may be exercised.
(h) In the case of a grant of an Award to any
employee of a Company subsidiary, the Company may, if
the Committee so directs, issue or transfer the shares
of Common Stock, if any, covered by the Award to the
subsidiary, for such lawful consideration as the
Committee may specify, upon the condition or
understanding that the subsidiary will transfer the
shares of Common Stock to the employee in accordance
with the terms of the Award specified by the Committee
pursuant to the provisions of the Plan.
(i) Notwithstanding the foregoing, if any right
granted pursuant to this Plan would make a Change in
Control transaction ineligible for pooling of interests
accounts under APB No. 16 that but for the nature of
such grant would otherwise be eligible for such
accounting treatment, the Committee shall have the
ability to substitute the cash payable pursuant to such
grant with Common Stock having a Fair Market Value
equal to the cash that would otherwise by payable
hereunder.
(j) The Plan and all Awards made and actions
taken thereunder shall be governed by and construed in
accordance with the laws of the State of New York,
without reference to principles of conflict of laws.
Section 14. Effective Date of Plan.
The Plan shall be effective on the date specified
by the Board at the time it is approved by the Board.
ANTARES RESOURCES CORPORATION
EXHIBITS 5 AND 24.1
OPINION OF ANDREW I. TELSEY, P.C.
April 29, 1996
Mr. William W. Perry III, President
Antares Resources Corporation
100 Quentin Roosevelt Boulevard, Suite 202
Garden City, New York 11530
Re: Antares Resources Corporation
Dear Mr. Perry:
In connection with the 2,600,000 shares of Common
Stock, par value $0.001 per share (the "Shares"), of
Antares Resources Corporation (hereinafter called the
"Company"), included in the Company's Stock Incentive
Stock Plan (the "Plan"), adopted by the shareholders of
the Company, which Shares are proposed to be registered
on Form S-8 under the Securities Act of 1933, as
amended, we have examined the following instruments and
documents:
1. Articles of Incorporation of the Company,
as amended;
2. Bylaws of the Company, as amended to date;
3. Copies of certain resolutions adopted by
the Board of Directors and shareholders of the Company
adopting the Plan and authorizing the reservation for
issuance of up to 10,000,000 shares of the Company's
Common Stock (the "Shares"), underlying the Plan and
stock options to be issued pursuant to the Plan;
We have examined such other instruments, documents and
records and made such further investigations as we have
deemed necessary for the purposes of rendering the
following opinion.
Based on the foregoing, it is our opinion that:
(i) The Company is a corporation which has
validly filed its Articles of Incorporation under the
laws of the State of New York;
(ii) The Plan and the Shares included in the
Plan have been duly and validly authorized by all
necessary action on the part of the Company; the Shares
issuable pursuant to the Plan and upon exercise of the
stock options authorized pursuant to the Plan have been
duly and validly authorized and, upon payment therefor
in accordance with the terms of such issuance and stock
option(s), will be validly issued, fully paid and
nonassessable by the Company;
(iii) The rights attendant to the Plan and the
Shares reserved for issuance thereunder conform to the
description thereof contained in the Prospectus;
(iv) No authorization, approval, consent or
license of any regulatory body or authority (other than
under the Act and the securities or Blue Sky laws of
the various states), is required for the valid
authorization, issuance, sale and delivery of the stock
options and Shares reserved for issuance thereunder, or
if so required, all such authorizations, approvals,
consents and licenses have been obtained and are in
full force and effect;
(v) The Registration Statement and the
Prospectus (except for the financial statements and
other financial data included therein, as to which such
counsel need express no opinion), comply as to form in
all material respects with the requirements of the Act
and the Rules and Regulations thereunder;
(vi) Such counsel have participated in the
preparation of the Registration Statement and
Prospectus and no facts have come to the attention of
such counsel to lead them to believe that either the
Registration Statement or the Prospectus (except for
the financial statements and other financial data
included therein, as to which such counsel need express
no opinion), contained any untrue statement of a
material fact required to be stated therein or
necessary to make the statements therein not misleading;
(vii) Such counsel does not know of any
material statutes or regulations or legal or
governmental proceedings required to be described in
the Prospectus which are not correctly described in all
material respects as required, nor of any material
contracts or documents of a character required to be
described in the Registration Statement or the
Prospectus or to be filed as exhibits to the
Registration Statement which are not described and
filed as required.
We hereby consent to the use of this opinion in the
said Registration Statement being filed with the
Securities and Exchange Commission and further consent
to the reference to this firm in the Prospectus.
Very truly yours,
ANDREW I. TELSEY, P.C.
ANTARES RESOURCES CORPORATION
EXHIBIT 24.2
CONSENT OF HORTON & COMPANY
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the
Registration Statement (Form S-8) pertaining to the
Antares Resources Corporation Stock Incentive Plan, of
our report dated November 15, 1995, except for the last
paragraph of Note 14, as to which the date is December
26, 1995, relating to the consolidated balance sheets
of Antares Resources Corporation as of September 30,
1995 and 1994 and the related consolidated statements
of operations, stockholders' equity (deficit) and cash
flows for the years then ended, which report is
included in the Annual Report for the year ended
September 30, 1995 ( Form 10-KSB) of Antares Resources
Corporation.
HORTON & COMPANY, L.L.C.
