As filed with the Securities and Exchange Commission on September 29, 1995
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
PAR TECHNOLOGY CORPORATION
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 16-1434688
- ------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
PAR Technology Park
8383 Seneca Turnpike
New Hartford, New York 13413-4991
-----------------------------------------------------------
(Address of Principal Executive Offices including Zip Code)
PAR Technology Corporation
1995 Stock Option Plan
--------------------------
(Full title of the Plan)
Gregory T. Cortese
Vice President, General Counsel and Secretary
PAR Technology Corporation
PAR Technology Park
8383 Seneca Turnpike
New Hartford, New York 13413-4991
(315) 738-0600
---------------------------------------------------------
(Name, address and telephone number of agent for service)
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=========================================================================================
Proposed Proposed
maximum maximum
Title of offering aggregate Amount of
securities to Amount to be price per offering registration
be registered registered unit price fee
- ------------- ------------ -------- ------------ ------------
<S> <C> <C> <C> <C>
Common Stock, 500,000(1) $9.625(2) $4,812,500(2) $1,659.48
par value
$.02 per share
=========================================================================================
</TABLE>
(1) Consists of shares of Common Stock to be issued pursuant to the PAR
Technology Corporation 1995 Stock Option Plan. Such undeterminable
number of additional shares as may be issuable pursuant to the
operation of the recapitalization provisions of the Plan are hereby
also registered.
(2) Computed pursuant to Rules 457(h) solely for the purpose of determining
the registration fee, based upon an assumed price of $9.625 per share,
the average of the high and low sale prices of the Registrant's Common
Stock, as reported on the New York Stock Exchange on September 27,
1995.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Incorporated by reference in this Registration Statement are
the following documents heretofore filed by PAR Technology Corporation (the
"Company") with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Act of 1933, as amended (the "Securities Act") and
the Securities Exchange Act of 1934, as amended (the "Exchange Act"):
(a) The Company's annual report filed pursuant to
sections 13(a) or 15(d) of the Exchange Act;
(b) All other reports filed by the Company pursuant to
section 13(a) or 15(d) of the Exchange Act since the
end of the fiscal year covered by the annual report
referred to in (a) above; and
(c) The description of the Company's Common Stock, par
value $.02 per share (the "Common Stock"), contained
in a registration statement filed under the Exchange
Act, and any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by the Company pursuant to
sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment that indicates that all securities offered hereby have
been sold or that deregisters all such securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be part hereof from the dates of filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
None.
Item 6. Indemnification of Directors and Officers
Pursuant to the provisions of Section 145 of the Delaware
General Corporation Law, every Delaware corporation has the power to indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding (other than an
action by or in the right of the corporation) by reason of the fact that he is
or was a director, officer, employee or agent of any corporation, partnership,
joint venture, trust or other enterprise, against any and all expenses,
judgments, fines and amounts paid in settlement and reasonably incurred in
connection with such action, suit or proceeding. The power to indemnify applies
only if such person acted in good faith and in a manner he reasonably believed
to be in the best interest, or not opposed to the best interest, of the
corporation and with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
The power to indemnify applies to actions brought by or in the
right of the corporation as well, but only to the extent of defense and
settlement expenses and not to any satisfaction of a judgment or settlement of
the claim itself, and with the further limitation that in such actions no
indemnification shall be made in the event of any adjudication of negligence or
misconduct unless the court, in its discretion, believes that in light of all
the circumstances indemnification should apply.
To the extent of the persons referred to in the two
immediately preceding paragraphs is successful in the defense of the actions
referred to therein, such person is entitled, pursuant to Section 145, to
indemnification as described above.
Article IX of the Company's Amended By-laws provides for
indemnification to officers and directors of the Company as follows:
"Section 1. Nature of Indemnity. The Corporation shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the fact that he
is or was or has agreed to become a director or officer of the Corporation, or
is or was serving or has agreed to serve at the request of the Corporation as a
director or officer, of another Corporation, partnership, joint venture, trust
or other enterprise, or by reason of any action alleged to have been taken or
omitted in such capacity, and may indemnify any person who was or is a party or
is threatened to be made a party to such an action, suit or proceeding by reason
of the fact that he is or was or has agreed to become an employee or agent of
the Corporation, or is or was serving or has agreed to serve at the request of
the Corporation as an employee or agent of another Corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him or on his behalf in connection with such action, suit or
proceeding and any appeal therefrom, if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding had no
reasonable cause to believe his conduct was unlawful; except that in the case of
an action or suit by or in the right of the Corporation to procure a judgment in
its favor (1) such indemnification shall be limited to expenses (including
attorneys' fees) actually and reasonably incurred by such person in the defense
or settlement of such action or suit, and (2) no indemnification shall be made
in respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that the
Delaware Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Delaware Court of
Chancery or such other court shall deem proper.
The termination of any action, suit or proceeding by judgment,
order settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonably cause to believe that his conduct
was unlawful."
"Section 2. Successful Defense. To the extent that a director,
officer, employee or agent of the Corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding referred to in Section
1 hereof or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith."
"Section 3. Determination that Indemnification is Proper. Any
indemnification of a director or officer of the Corporation under Section 1
hereof (unless ordered by a court) shall be made by the Corporation unless a
determination is made that indemnification of the director or officer is not
proper in the circumstances because he has not met the applicable standard of
conduct set forth in Section 1 hereof. Any indemnification of an employee or
agent of the corporation under Section 1 hereof (unless ordered by a court) may
be made by the Corporation upon a determination that indemnification of the
employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in Section 1 hereof. Any such
determination shall be made (1) by the Board of Directors by a majority vote of
a quorum consisting of directors who were not parties to such action, suit or
proceeding, or (2) if such a quorum is not obtainable, or, even if obtainable a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (3) by the shareholders."
"Section 4. Advance Payment of Expenses. Expenses (including
attorneys' fees) incurred by a director or officer in defending any civil,
criminal, administrative or investigative action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit
or proceeding upon receipt of an undertaking by or on behalf of the director or
officer to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Corporation as authorized in this Article.
Such expenses (including attorneys' fees) incurred by other employees and agents
may be so paid upon such terms and conditions, if any, as the board of Directors
deems appropriate. The Board of Directors may authorize the Corporation's
counsel to represent such director, officer, employee or agent in any action,
suit or proceeding, whether or not the Corporation is a party to such action,
suit or proceeding."
Section 6. Survival; Preservation of Other Rights. The
foregoing indemnification provisions shall be deemed to be a contract between
the Corporation and each director, officer, employee and agent who serves in any
such capacity at any time while these provisions as well as the relevant
provisions of the Delaware Corporation Law are in effect and any repeal or
modification thereof shall not affect any right or obligation then existing with
respect to any state of facts then or previously existing or any action, suit or
proceeding previously or thereafter brought or threatened based in whole or in
part upon any such state of facts. Such a "contract right" may not be modified
retroactively without the consent of such director, officer, employee or agent.
The indemnification provided by this Article IX shall not be
deemed exclusive of any other rights to which those indemnified may be entitled
under any by-law, agreement, vote of shareholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a person."
"Section 7. Insurance. The Corporation shall purchase and
maintain insurance on behalf of any person who is or was or has agreed to become
a director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director or officer of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and incurred by him or on his behalf in any such capacity, or arising out of
his status as such, whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of this Article,
provided that such insurance is available on acceptable terms, which
determination shall be made by a vote of a majority of the entire Board of
Directors."
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
An Exhibit Index, containing a list of all exhibits filed with
this registration statement, is included on page 10.
Item 9. Undertakings
(a) Rule 415 Offering. The undersigned Registrant hereby
undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any Prospectus required by section
10(a)(3) of the Securities Act, unless the information is
contained in periodic reports filed by the Registrant pursuant
to section 13 or section 15(d) of the Exchange Act that are
incorporated by reference in the Registration State- ment;
(ii) To reflect in the Prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement, unless the information is contained in periodic
reports filed by the Registrant pursuant to section 13 or
section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement.
(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) Subsequent Exchange Act Documents. 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 the Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Indemnification. Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to directors,
officers and controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
<PAGE>
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 Town of New Hartford, State of New York on the
28th day of September, 1995.
PAR TECHNOLOGY CORPORATION
By: /s/ John W. Sammon, Jr.
-----------------------------
John W. Sammon, Jr.
Chairman of the Board and
President
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
- ---------- ----- ----
<S> <C> <C>
/s/ John W. Sammon, Jr. Chairman of the September 28, 1995
- ------------------------- Board and
John W. Sammon, Jr. President
(Principal
Executive Officer)
and Director
/s/ Ronald J. Casciano Vice President, September 28, 1995
- ------------------------- Chief Financial
Ronald J. Casciano Officer and
Treasurer
(Principal
Financial and
Accounting
Officer)
<PAGE>
<CAPTION>
Signatures Title Date
- ---------- ----- ----
<S> <C> <C>
/s/ Charles A. Constantino Executive Vice September 28, 1995
- -------------------------- President and
Charles A. Constantino Director
Sangwoo Ahn Director
/s/ J. Whitney Haney Director September 28, 1995
- --------------------------
J. Whitney Haney
James C. Castle Director
</TABLE>
<PAGE>
Index to Exhibits
<TABLE>
<CAPTION>
Exhibit No. Description of Exhibit
- ----------- --------------------------------------
<S> <C>
4.1 Amended and Restated Certificate
of Incorporation of the Company
(incorporated by reference to
Exhibit 3(a) to the Company's
Registration Statement on Form S-1
(Registration No. 32-80077)).
4.2 Amended By-laws of the Company
(incorporated by reference to
Exhibit 3(b) to the Company's
Registration Statement on Form S-1
(Registration No. 32-80077)).
4.3 Form of Common Stock Certificate
(incorporated by reference to
Exhibit 4 to the Company's
Registration Statement on Form S-1
(Registration No. 32-80077)).
5 Opinion of Gregory T. Cortese.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Gregory T. Cortese
(contained in his opinion filed as
Exhibit 5).
99 PAR Technology Corporation 1995
Stock Option Plan.
</TABLE>
EXHIBIT 5
September 29, 1995
PAR Technology Corporation
PAR Technology Park
8383 Seneca Turnpike
New Hartford, New York 13413-4991
Dear Sirs:
As General Counsel of PAR Technology Corporation, a Delaware corporation
(the "Company"), I have participated in the preparation of the Registration
Statement on Form S-8 (the "Registration Statement") to be filed by the Company
under the Securities Act of 1933, as amended (the "Act") relating to 500,000
shares of the Company's common stock, par value $.02 per share (the "Common
Stock") to be issued upon the exercise of options granted pursuant to the PAR
Technology Corporation 1995 Stock Option Plan (the "Plan").
I am familiar with the written Plan document, and in rendering the
opinion expressed below, I have examined the originals, or copies certified or
otherwise identified to my satisfaction, of such other records, instruments,
documents, certificates, opinions and representations of officers and
representatives of the Company and such other persons as I deemed appropriate as
a basis for such opinion. In rendering such opinion, I have assumed that the
exercise price of options to be granted pursuant to the Plan will not be less
than the par value of the Common Stock subject thereto.
Based upon the foregoing, I am of the opinion that any previously
unissued shares of Common Stock which may be issued under the Registration
Statement and pursuant to the Plan have been duly authorized and when issued in
accordance with the terms of the Plan will be validly issued, fully paid and
non-assessable.
The foregoing opinion is limited to the federal laws of the United
States and the laws of the State of Delaware.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, I do not thereby admit that I am
within the category of persons whose consent is required under Section 7 of the
Act or the rules and regulations of the Securities and Exchange Commission
thereunder.
Very truly yours,
/s/ Gregory T. Cortese
Gregory T. Cortese
General Counsel
EXHIBIT 23.1
[PRICE WATERHOUSE LLP LETTERHEAD]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 21, 1995, which appears on
page 22 of the 1995 Annual Report to Shareholders of PAR Technology Corporation,
which is incorporated by reference in PAR Technology Corporation's Annual Report
on Form 10-K for the year ended December 31, 1995.
Syracuse, New York
September 29, 1995
EXHIBIT 99
PAR TECHNOLOGY CORPORATION
1995 STOCK OPTION PLAN
ARTICLE I
PURPOSE
The 1995 Stock Option Plan (the "Plan") of PAR Technology Corporation
(the "Company") is intended (a) to encourage the sense of proprietorship on the
part of those key employees who are or will be largely responsible for the
continued growth of the Company and its subsidiaries (as such term is defined in
section 424(f) of the Internal Revenue Code of 1986, as amended (the "Code"), a
"Subsidiary"); (b) to furnish such key employees with further incentive to
develop and promote the business and financial success of the Company and its
Subsidiaries, and (c) to attract and induce such key employees to continue in
the service of the Company and its Subsidiaries, by providing a means whereby
such key employees of the Company and its Subsidiaries may be given an
opportunity to purchase the Company's common stock, par value $.02 per share
("Common Stock") pursuant to options ("Options") granted under the Plan which
are intended to be either "Incentive Stock Options" ("Incentive Stock Options")
under section 422 of the Code or options which are not Incentive Stock Options
("Nonqualified Stock Options").
ARTICLE II
ADMINISTRATION
2.1 Administrative Body. The Plan shall be administered by a Committee
(the "Committee") of the Board of Directors of the Company (the "Board"). The
Committee shall be comprised of at least two members of the Board each of whom
is a "disinterested person" within the meaning of Rule 16b-3 as promulgated
under the Securities Exchange Act of 1934, as amended (the "Act").
2.2 Authority. The Committee shall have authority, subject to the terms
of the Plan: to determine the employees to whom Options may be granted, the type
of option to be granted, the number of shares of Common Stock to be covered by
each Option, the purchase price per share of Common Stock covered by each
Option, the time or times at which Options may be granted and exercised, and the
terms and provisions of the instruments by which Options shall be evidenced;
with the consent of employees to whom Options have been granted, to grant in
substitution for outstanding Options replacement Options, which may be at a
lower purchase price (but, in the case of Incentive Stock Options at a purchase
price not less than fair market value of the Common Stock subject to the
replacement Option at the time of substitution), and to cancel replaced Options;
to interpret the Plan; to establish guidelines for administering the Plan; and
to make all determinations necessary or advisable, in its sole discretion, for
the administration of the Plan. At all meetings of the Committee the presence of
a majority of the members shall constitute a quorum for the transaction of
business and the vote of a majority of the members present shall be the act of
the Committee. Members of the Committee may participate in a meeting of the
Committee by means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and participation in such a meeting shall constitute presence in person at such
meeting.
Any action required or permitted to be taken at any meeting of the
Committee may be taken without a meeting, without prior notice and without a
vote, if all of its members consent in writing to the action, and such writing
is filed with the records of proceedings of the Committee.
ARTICLE III
ELIGIBILITY
Key employees and all officers and directors of the Company or any of
its Subsidiaries shall be eligible to participate in the Plan provided however
that Incentive Stock Options shall not be granted to officers and directors who
are not employees. The granting of any Option to any person under the Plan shall
neither entitle such person to, nor disqualify such person from, participating
in any other grant of Options or in any other incentive plan of the Company.
ARTICLE IV
STOCK
Subject to adjustment as provided in Article VII, the total number of
shares of Common Stock which may be issued under the Plan upon the exercise of
Options and stock appreciation rights provided pursuant to the Plan shall not
exceed 500,000 shares. Shares of Common Stock covered by Options that expire,
terminate (other than by reason of the exercise of stock appreciation rights as
provided in section 6.9), or are canceled without having been exercised shall
become available for future grants under the Plan. Upon the exercise of Options,
the Company may either issue unissued shares of Common Stock or transfer shares
of Common Stock held in its treasury.
ARTICLE V
GRANTING OF OPTIONS
Options may be granted under the Plan at any time on or prior to April
5, 2005. The date of grant of an Option under the Plan will be the date on which
the Option is awarded by the Committee, unless a later date is specified by the
Committee at the time of the award.
ARTICLE VI
TERMS AND CONDITIONS OF OPTIONS
Options shall be evidenced by stock option agreements in such form or
forms as the Committee may from time to time approve. Such stock option
agreements shall conform to the following terms and conditions:
6.1 Option Price. The option price per share shall be determined by the
Committee provided that in the case of an Incentive Stock Option, the option
price per share shall not be less than the fair market value (determined in good
faith by the Committee, subject to compliance with the principles, if any,
enunciated by the Internal Revenue Service with respect to the determination of
the fair market value of stock subject to grants of Incentive Stock Options) of
a share of Common Stock on the date of grant, and provided further that in the
case of an Incentive Stock Option granted to an employee who owns more than ten
percent of the total combined voting power of all classes of stock of the
Company or of any parent or Subsidiary, such price per share shall not be less
than 110% of the fair market value of the Common Stock on the date of grant.
Notwithstanding the foregoing sentence, in no event shall the option price be
less than the par value of a share of Common Stock.
6.2 Term of Options. Each Option shall expire on the tenth anniversary
of the date of its grant, or on such earlier date as may be specified in the
stock option agreement evidencing such option; provided, however that in the
case of an Incentive Stock Option granted to an employee who owns more than 10%
of the total combined voting power of all classes of stock of the Company or of
any parent or subsidiary corporation, the term may be no more than five years
from the date of grant.
6.3 Exercisability. Subject to Article VIII, each Option shall become
exercisable in one or more installments on the date or dates (no earlier than
six months after the date of its grant) and upon satisfaction of such conditions
as may be specified in the stock option agreement evidencing such Option.
Notwithstanding the foregoing, to the extent required by the Code, the aggregate
fair market value (determined as of the date of grant) of the shares of Common
Stock with respect to which Incentive Stock Options are exercisable for the
first time by an employee during any calendar year (under all plans of the
Company or any Subsidiary) shall not exceed $100,000 and Options granted having
a fair market value in excess of such amount shall be deemed to be Nonqualified
Stock Options. Once an Option becomes exercisable with respect to a portion of
the shares subject thereto, it shall remain exercisable with respect thereto
until expiration or termination of such Option. An Option may be exercised from
time to time, in whole or in part, up to the total number of shares with respect
to which it is then exercisable. Notwithstanding any other provision hereof, no
Incentive Stock Option granted hereunder will be exercisable following the tenth
anniversary of the date of grant.
6.4 Payments. Upon exercise, the option price shall be paid in cash or,
in the discretion of the Committee, in shares of Common Stock, or any other
property acceptable to the Committee, or any combination of cash, shares of
Common Stock and such property, in each case having an aggregate fair market
value on the date of payment equal to such option price.
6.5 Termination of Employment. If the holder of an Option ceases, other
than by reason of death, to be employed by the Company or any Subsidiary, such
Option may be exercised to the extent of the number of shares of Common Stock
with respect to which such holder could have exercised such Option on the date
employment terminates, provided, however that such Option shall terminate on the
earlier of (a) such Option's specified expiration date and (b) the date three
months from the date of termination of such employment, provided that in the
case of termination of employment by reason of normal or early retirement or
disability (within the meaning of section 22(e)(3) of the Code), the applicable
portion of a Nonqualified Stock Option granted hereunder shall remain
exercisable until the first anniversary of termination of employment or, if
earlier, the date of expiration of such Option, and provided further that in the
case of termination of employment by reason of disability (within the meaning of
section 22(e)(3) of the Code), the applicable portion of an Incentive Stock
Option shall remain exercisable until the first anniversary of termination of
employment or, if earlier, the date of expiration of such Option (or in any such
case such earlier date as may be specified in the stock option agreement
evidencing such Option). The Plan shall not be construed as creating any
contract of employment or otherwise conferring upon any employee any legal right
to continuation of employment, nor as limiting or qualifying the right of the
Company or any Subsidiary to discharge any of its employees without regard to
the effect that such discharge might have upon such employee's rights under the
Plan.
6.6 Death. If the holder of an Option dies, such Option may be
exercised, to the extent of the number of shares of Common Stock with respect to
which such holder could have exercised such Option on the date of death, by such
holder's estate, personal representative or beneficiary who acquires such Option
by will or by the laws of descent and distribution at any time prior to the
earlier of such Option's specified expiration date and the first anniversary of
such holder's death. On the earlier of such dates, the Option shall terminate.
6.7 Assignability. No Option may be assigned, transferred or
hypothecated by the employee who is the holder thereof, except by will or by the
laws of descent and distribution, and during the lifetime of any such holder of
an Option, such Option may be exercised only by such holder. At the request of
the holder of an Option, shares of Common Stock purchased upon the exercise of
such Option, or received on exercise of stock appreciation rights may be issued
in or transferred into the name of such holder and another person, jointly with
the right of survivorship.
6.8 Withholding. The Company's obligation to deliver shares of Common
Stock or make any payment upon the exercise of any option or stock appreciation
right shall be subject to applicable federal, state and local tax withholding
requirements.
6.9 Stock Appreciation Right. In the sole discretion of the Committee,
any employee who is the holder of an Option may be granted the right to elect
(subject to any limitations expressly made applicable to rights contained in
this section 6.9 and contained in the stock option agreement evidencing such
Option), at any time in lieu of purchasing shares of Common Stock as to which
such Option is then exercisable, to surrender such Option with respect to any or
all of such shares, and to receive a payment from the Company having a value
equal to the amount by which (a) the fair market value of a share of Common
Stock on the date of such election, multiplied by the number of shares of Common
Stock as to which the holder shall have made such election, exceeds (b) the
total purchase price for such number of shares of Common Stock under such
Option. An option holder who makes such an election shall receive payment in the
sole discretion of the Committee, entirely in cash, entirely in shares of Common
Stock or in a combination of cash and shares of Common Stock in such proportion
as the Committee may determine. Any shares of Common Stock delivered pursuant to
the immediately preceding sentence shall be valued at their fair market value on
the date of such election. An election to exercise the rights provided by this
section 6.9 shall be made by written notice addressed to the Committee. Upon
election by the holder of an Option to receive a payment under this section 6.9,
such Option shall thereafter remain exercisable, according to its terms, only
with respect to the number of shares of Common Stock as to which it would
otherwise be exercisable less the number of shares of Common Stock as to which
such election shall have been made.
6.10 Other Terms. Stock option agreements evidencing options may
contain such other provisions, not inconsistent with the Plan, as the Committee
deems advisable.
6.11 Incentive Stock Options. Notwithstanding anything in the Plan to
the contrary, no term of this Plan relating to Incentive Stock Options shall be
interpreted, amended or altered, nor shall any discretion or authority granted
under the Plan be so exercised, so as to disqualify the Plan under section 422
of the Code, or, without the consent of any employee affected thereby, to
disqualify, or cause the modification of, any Incentive Stock Option under
section 422 or 424 of the Code, respectively.
ARTICLE VII
CAPITAL ADJUSTMENTS
Except as otherwise provided in any stock option agreement, in the
event of any change in the number of outstanding shares of Common Stock by
reason of any stock dividend, stock split, combination or exchange of shares,
recapitalization, reclassification, merger, consolidation, spin-off,
reorganization or other similar transaction, the Committee shall make
appropriate adjustments in the number and option price of shares of Common Stock
covered by each Option outstanding on the date of such transaction (by means of
a grant of a substitute Option or an additional Option or otherwise), and in the
total number of shares of Common Stock that may be issued under the Plan.
ARTICLE VIII
CHANGE OF CONTROL
Upon the approval by the requisite vote of the Shareholders of the
Company of any merger, consolidation or reorganization, as a result of which the
Company will not survive as a publicly-owned corporation, then, subject to the
next sentence, all Options shall terminate and the holder of each Option shall
be entitled to receive, in respect thereof, an amount in cash equal to the
product (i) the difference between (x) the fair market value of a share of
Common Stock on the date immediately preceding the date of such Shareholder
approval and (y) the exercise price of such Option, multiplied by (ii) the
number of shares in respect of which such Option is then exercisable.
Notwithstanding the foregoing sentence, if the Options are assumed by the
successor entity formed by such consolidation or into which the Company is
merged, or the parent of the entity into which the Company is merged or which
merges into the Company, the Options shall not terminate as provided in this
Article VIII, but each Option shall become an option pertaining to the
securities or other property to which the holder of the number of shares of
Common Stock to which such Option pertains would have been entitled to receive
in connection with such merger, consolidation or reorganization.
ARTICLE IX
MISCELLANEOUS
9.1 Adoption. The Plan shall become effective as of the date of its
adoption by the Board, subject to approval within twelve months thereafter by
the holders of a majority of the shares of Common Stock of the Company present
or represented and entitled to vote at a meeting of Shareholders or by the
written consent of the holders of a majority of the shares of Common Stock of
the Company entitled to vote. Prior to such Shareholder approval, Options may be
granted under the Plan, but any such Option by its terms shall not be
exercisable prior to such approval. If the Plan is not approved by the
Shareholders of the Company within such twelve-month period, the Plan shall
terminate, and all Options theretofore granted under the Plan shall terminate
and become null and void.
9.2 Amendment or Termination. The Board may terminate or amend the Plan
in any respect at any time, except that without Shareholder approval (i) the
total number of shares that may be issued under the Plan may not be increased
(other than by adjustment pursuant to Article VII), (ii) the provisions of
Article III regarding eligibility may not be modified and (iii) the benefits
accruing to participants under the Plan may not be materially increased. No
action of the Board, Committee or the stockholders of the Company may, without
the consent of the holder of an Option, alter or impair such holder's rights
under any Option previously granted.
9.3 Number and Gender. Where from the context it appears appropriate,
each term used in this Plan in either the singular or the plural shall include
the singular and the plural, and pronouns stated in either the masculine,
feminine or neuter gender shall include the masculine, feminine and neuter.
9.4 Captions. Captions of the Plan are inserted for convenience of
reference only, and the Plan is not to be construed by interpretation thereof.
9.5 Applicable Law. This Plan shall be interpreted, construed and
administered in accordance with the laws of the State of Delaware.
