As filed with the Securities and Exchange Commission on April 23, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------------
RARE MEDIUM GROUP, INC.
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(Exact name of registrant as specified in its charter)
Delaware 23-2368845
------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
44 West 18th Street, 6th Floor
New York, New York 10011
(212) 634-6950
-------------------------------------------------------------
(Address and telephone number of Principal Executive Offices)
Rare Medium Group, Inc. 1998 Long-Term Incentive Plan
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(Full title of the Plan)
Stock Option Agreement dated April 15, 1998 between
Registrant and Glenn S. Meyers
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(Full title of the Plan)
Richard P. Jaffe, Esq.
Mesirov Gelman Jaffe Cramer & Jamieson, LLP
1735 Market Street
Philadelphia PA 19103-7598
(215) 994-1046
---------------------------------------------------------
(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered Offering Price Per Share(2) Aggregate Offering Price(3) Registration Fee(3)
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
par value $.01 8,000,000 shares(1) $9.59375 $76,750,000 $21,337.00
- -----------------------------------------------------------------------------------------------------------------------------
Common Stock,
par value $.01 2,000,000 shares(2) $9.59375 $19,187,500 $ 5,335.00
- -----------------------------------------------------------------------------------------------------------------------------
Total 10,000,000 shares $26,672.00
- -----------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) There are registered hereby 8,000,000 shares of Common Stock of Rare Medium
Group, Inc., formerly known as ICC Technologies, Inc. (the "Company"),
issuable pursuant to the Rare Medium Group, Inc. 1998 Long-Term Incentive
Plan (the "1998 Plan"). There are also registered hereby such indeterminate
number of shares of Common Stock as may become issuable by reason of the
adjustment provisions of the 1998 Plan.
<PAGE>
(2) There are also registered hereby 2,000,000 shares of Common Stock of the
Company issuable pursuant to that certain Stock Option Agreement dated
April 15, 1998, between the Company and Glenn S. Meyers (the "Meyers
Option"). There are also registered hereby such indeterminate number of
shares of Common Stock as may become issuable by reason of the adjustment
provisions of the Meyers Option.
(3) Estimated solely for purpose of determining the registration fee pursuant
to Rule 457(c) under the Securities Act. The proposed maximum offering
price per share is based upon the average of the high and low prices of the
common stock on April 20, 1999, as reported on the Nasdaq National Market.
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The documents listed below are incorporated by reference in this Registration
Statement and all documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be part hereof from the date of
filing of such documents.
(a) The Company's Annual Report on Form 10-K, as amended on Form 10-K/A,
for the year ended December 31, 1998.
(b) All other reports filed by the Company with the Commission pursuant to
Sections 13(a) or 15(d) of the Exchange Act since December 31, 1998,
including the following:
(i) Current Report on Form 8-K dated December 31, 1998 in connection
with the Rare Medium, Inc. Noteholder Exchange;
(ii) Current Report Form 8-K dated January 28, 1999 in connection with
the private placement of the Company's convertible debentures with
warrants; and
(iii) Definitive Proxy Statement dated February 17, 1999 in connection
with the Company's Special Meeting of Stockholders held on March 16,
1999.
(c) The description of the Common Stock of the Company is incorporated by
reference to the Company's Registration Statement on Form 10 filed with the
Commission on September 16, 1985 (Commission File No. 0-13865).
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
II-1
<PAGE>
Item 6. Indemnification of Directors and Officers
The Company's Certificate of Incorporation contains a provision which limits the
personal liability of directors to the Company or the stockholders for monetary
damages for breach of fiduciary duty. The Certificate of Incorporation provides
that a director of the Company shall not be personally liable for a breach of
fiduciary duty as a director except for liabilities (i) for any breach of the
director's duty of loyalty, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) for an
unlawful dividend payment or an unlawful repurchase or redemption of stock, or
(iv) for any transaction from which the director derived an improper personal
benefit.
The Company's Certificate of Incorporation also provides that the Company will
indemnify and pay legal expenses and damages incurred by officers and directors
in any legal action arising from their actions as agents of the Company as long
as the officer or director had acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Company, or with
respect to any criminal action, had no reasonable cause to believe his conduct
was unlawful.
Nothing in these provisions eliminates a director's fiduciary duty to act with
care, nor do they preclude a stockholder from pursuing injunctive or other
equitable remedies.
Item 7. Exemption From Registration Claimed
Not applicable.
Item 8. Exhibits and Financial Statement Schedules
(a) Exhibits Required by Item 601 of Regulation S-K
The following table sets forth those exhibits filed pursuant to Item 601 of
Regulation S-K:
Exhibit Description
------- -----------
4(a) Articles of Incorporation and Bylaws.(1)
4(b) Amendment to Articles of Incorporation changing name to
ICC Technologies, Inc.(2)
4(c) Amendment to Articles of Incorporation changing name to
Rare Medium Group, Inc.(3)
4(d) Rare Medium Group, Inc. 1998 Long-Term Incentive Plan.
4(e) Form of Stock Option Agreement dated April 15, 1998 by and
between ICC Technologies, Inc. and Glenn S. Meyers.
- ----------
(1) Incorporated by reference from the Company's Form 10 filed on September 16,
1985 (Commission File No. 0-13865).
(2) Incorporated by reference from the Company's 8-K filed on June 12, 1990
(Commission File No. 0-13865).
(3) Incorporated by reference from the Company's Form 10-K for the fiscal year
ended December 31, 1998, filed on March 31, 1999.
II-2
<PAGE>
Exhibit Description
------- -----------
5 Opinion of Mesirov Gelman Jaffe Cramer & Jamieson, LLP
23(a) Consent of KPMG, LLP
23(b) Consent of PricewaterhouseCoopers LLP
23(c) Consent of Mesirov Gelman Jaffe Cramer & Jamieson, LLP.
See Exhibit 5.
24 Power of Attorney (set forth on signature page hereto)
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of the
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(l)(i) and (a)(l)(ii) do not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference 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.
II-3
<PAGE>
(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 Act, 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, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the provisions discussed in Item 6 of this Registration Statement,
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 the 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.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on the 23rd day of
April, 1999.
RARE MEDIUM GROUP, INC.
By: /s/ Glenn S. Meyers
------------------------------------------
Glenn S. Meyers, Chairman of the Board and
President (Chief Executive Officer)
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each individual whose signature appears
below constitutes and appoints Glenn S. Meyers and John S. Gross, and each of
them, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this registration statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Glenn S. Meyers Chairman of the Board and April 23, 1999
- ------------------------ President (Chief Executive Officer)
Glenn S. Meyers
</TABLE>
(signatures continued on next page)
II-5
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ John S. Gross Senior Vice President, Chief April 23, 1999
- ------------------------ Financial Officer, Treasurer and
John S. Gross Assistant Secretary (Principal
Financial and Accounting Officer)
/s/ Jeffrey M. Killeen Director April 23, 1999
- ------------------------
Jeffrey M. Killeen
/s/ Richard T. Liebhaber Director April 23, 1999
- ------------------------
Richard T. Liebhaber
/s/ Steven Winograd Director April 23, 1999
- ------------------------
Steven Winograd
</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
Exhibit Description Page
- ------- ----------- ----
4(a) Articles of Incorporation and Bylaws.(1)
4(b) Amendment to Articles of Incorporation changing name to
ICC Technologies, Inc.(2)
4(c) Amendment to Articles of Incorporation changing name to
Rare Medium Group, Inc.(3)
4(d) Rare Medium Group, Inc. 1998 Long-Term Incentive Plan.
4(e) Form of Stock Option Agreement dated April 15, 1998 by and
between ICC Technologies, Inc. and Glenn S. Meyers.
5 Opinion of Mesirov Gelman Jaffe Cramer & Jamieson, LLP
23(a) Consent of KPMG, LLP
23(b) Consent of PricewaterhouseCoopers LLP
23(c) Consent of Mesirov Gelman Jaffe Cramer & Jamieson, LLP.
See Exhibit 5.
24 Power of Attorney (set forth on signature page hereto)
- ----------
(1) Incorporated by reference from the Company's Form 10 filed on September 16,
1985 (Commission File No. 0-13865).
(2) Incorporated by reference from the Company's 8-K filed on June 12, 1990
(Commission File No. 0-13865).
(3) Incorporated by reference from the Company's Form 10-K for the fiscal year
ended December 31, 1998, filed on March 31, 1999.
RARE MEDIUM GROUP, INC.
1998 LONG-TERM INCENTIVE PLAN
1. Purpose. The purpose of this 1998 Long-Term Incentive Plan (the "Plan")
of Rare Medium Group, Inc., a Delaware corporation (the "Company"), is to
advance the interests of the Company and its stockholders by providing a means
to attract, retain, motivate and reward executive officers, key employees,
directors and consultants of and service providers to the Company and its
subsidiaries (including consultants and others providing services of substantial
value) and to enable such persons to acquire or increase their proprietary
interest in the Company, thereby promoting a closer identity of interests
between such persons and the Company's stockholders.
2. Definitions. The terms "Award" or "Awards" under the Plan means Options,
SARs (including Limited SARs), Restricted Stock, Deferred Stock, Stock granted
as a bonus or in lieu of other compensation or right, Dividend Equivalents and
Other Stock Based Awards as set forth in Section 6 hereof together with any
other right or interest granted to a Participant under the Plan. For purposes of
the Plan, the following additional terms shall be defined as set forth below:
(a) "Award Agreement" means any written agreement, contract, notice or
other instrument or document evidencing an Award.
(b) "Beneficial Owner" and related terms shall have the meaning
ascribed thereto under Section 13(d) of the Exchange Act, including Rule
13d-3, and any successor thereto.
(c) "Beneficiary" shall mean the person, persons, trust or trusts
which have been designated by the Participant in his or her most recent
written beneficiary designation filed with the Committee to receive the
benefits specified under the Plan upon such Participant's death or, if
there is no designated Beneficiary or surviving designated Beneficiary,
then the person, persons, trust or trusts entitled by will or the laws of
descent and distribution to receive such benefits.
(d) "Board" means the Board of Directors of the Company.
(e) A "Change in Control" shall be deemed to have occurred if: (i)
there is a merger or consolidation of the Company into or with any other
corporation when the Company is not the surviving entity of such merger or
consolidation, (ii) there is an acquisition, directly or indirectly by any
entity or "group" (as defined in Section 13(d) of the Securities and
Exchange Act of 1934, as amended), of stock or options, or any combination
thereof, (a) constituting a majority of the then outstanding common stock
of the Company or (b) possessing a majority of the then outstanding voting
power of the Company, (iii) there is any similar purchase or other
acquisition of a majority of the total equity interest of the Company, (iv)
there is an acquisition of all, or substantially all of, the assets of the
<PAGE>
Company, or (v) upon the formation of a joint venture or partnership with
the Company for the purpose of effecting a transfer of control of, or a
material interest in, the Company (such merger, consolidation, sale or
other transaction being hereinafter referred to as a "Transaction"). There
shall be excluded from the foregoing any Transaction as a result of which
(a) the holders of Common Stock prior to the Transaction retain or acquire
securities constituting a majority of the outstanding voting common stock
of the acquiring or surviving corporation or other entity and (b) no single
person owns more than half of the outstanding voting common stock of the
acquiring or surviving corporation or other entity. For purposes of this
definition, voting common stock of the acquiring or surviving corporation
or other entity that is issuable upon conversion of convertible securities
or upon exercise of warrants or options shall be considered outstanding,
and all securities that vote in the election of directors (other than
solely as the result of a default in the making of any dividend or other
payment) shall be deemed to constitute that number of shares of voting
common stock which is equivalent to the number of such votes that may be
cast by the holders of such securities.
(f) "Code" means the Internal Revenue Code of 1986, as amended from
time to time. References to any provision of the Code shall be deemed to
include regulations thereunder and successor regulations thereto.
(g) "Committee" means the Compensation Committee of the Board, or such
other Board committee as may be designated by the Board to administer the
Plan; provided, however, that the Committee shall consist solely of two or
more directors. In appointing members of the Committee, the Board will
consider whether each member shall qualify as a "Non-Employee Director"
within the meaning of Rule 16b-3(b)(3) of the Exchange Act and as an
"outside director" within the meaning of Treasury Regulation
ss.1.162-27(e)(3) under Code Section 162(m), but such members are not
required to so qualify at the time of appointment or during their term of
service on the Committee.
(h) "Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time. References to any provision of the Exchange Act
shall be deemed to include rules thereunder and successor provisions and
rules thereto.
(i) "Fair Market Value" means, with respect to Awards or other
property, the fair market value of such Stock, Award or other property
determined by such methods or procedures as shall be established from time
to time by the Committee; provided, however, that the "Fair Market Value"
of Stock shall be based upon the last sales price or, if unavailable, the
average of the closing bid and asked prices per share of the Stock on such
date (or, if there was no trading or quotation in the Stock on such date,
on the next preceding date on which there was trading or quotation) as
reported in The Wall Street Journal (or other reporting service approved by
the Committee).
(j) "ISO" means any Option intended to be and designated as an
incentive stock option within the meaning of Section 422 of the Code.
2
<PAGE>
(k) "Non-Employee Director" means a director of the Company who is
not, at the time an Option is to be granted under Section 8(a) or (b), an
employee of the Company or any subsidiary of the Company.
(l) "Non-Employee Director Initial Option" or "Annual Option" means an
Option to purchase the number of shares specified in or under Section 8(a)
or (b), subject to adjustment as provided in Section 4(c), granted to a
Non-Employee Director.
(m) "Participant" means a person who, at a time when eligible under
Section 5 hereof, has been granted an Award under the Plan.
(n) "Rule 16b-3" means Rule 16b-3, as from time to time in effect and
applicable to the Plan and participants, promulgated by the Securities and
Exchange Commission under Section 16 of the Exchange Act.
(o) "Stock" means the Common Stock, $.01 par value, of the Company and
such other securities as may be substituted or resubstituted for Stock
pursuant to Section 4.
3. Administration.
(a) Authority of the Committee. Except as otherwise provided below,
the Plan shall be administered by the Committee. The Committee shall have
full and final authority to take the following actions, in each case
subject to and consistent with the provisions of the Plan:
(i) to select persons to whom Awards may be granted;
(ii) to determine the type or types of Awards to be granted to
each such person;
(iii) to determine the number of Awards to be granted, the number
of shares of Stock to which an Award shall relate, the terms and
conditions of any Award granted under the Plan (including, but not
limited to, any exercise price, grant price or purchase price, any
restriction or condition, a schedule for lapse of restrictions or
conditions relating to transferability or forfeiture, exercisability
or settlement of an Award, and waivers or accelerations thereof,
performance conditions relating to a Award (including waivers and
modifications thereof), based in each case on such considerations as
the Committee shall determine), and all other matters to be determined
in connection with an Award;
(iv) to determine whether, to what extent and under what
circumstances an Award may be settled, or the exercise price of an
Award may be paid, in cash, Stock, other Awards or other property, or
an Award may be cancelled, forfeited or surrendered;
(v) to determine whether, to what extent and under what
circumstances cash, Stock, other Awards or other property payable with
respect to an Award shall be deferred either automatically, at the
election of the Committee or at the election of the Participant;
3
<PAGE>
(vi) to prescribe the form of each Award Agreement, which need
not be identical for each Participant;
(vii) to adopt, amend, suspend, waive and rescind such rules and
regulations and appoint such agents as the Committee may deem
necessary or advisable to administer the Plan;
(viii) to correct any defect or supply any omission or reconcile
any inconsistency in the Plan and to construe and interpret the Plan
and any Award, rules and regulations, Award Agreement or other
instrument hereunder; and
(ix) to make all other decisions and determinations as may be
required under the terms of the Plan or as the Committee may deem
necessary or advisable for the administration of the Plan.
Other provisions of the Plan notwithstanding, the Board shall perform the
functions of the Committee for purposes of granting Awards (subject to the
Section 8, which provides for certain automatic grants) to Non-Employee
Directors, and the Board may perform any function of the Committee under the
Plan for any other purpose, including without limitation, for the purpose of
ensuring that transactions under the Plan by Participants who are then subject
to Section 16 of the Exchange Act in respect of the Company are exempt under
Rule 16b-3. In any case in which the Board is performing a function of the
Committee under the Plan, each reference to the Committee herein shall be deemed
to refer to the Board, except where the usage or context otherwise requires.
(b) Manner of Exercise of Committee Authority. Any action of the
Committee with respect to the Plan shall be final, conclusive and binding
on all persons, including the Company, subsidiaries of the Company,
Participants, any person claiming any rights under the Plan from or through
any Participant and stockholders, except to the extent the Committee may
subsequently modify, or take further action not consistent with its prior
action. If not specified in the Plan, the date by which the Committee must
or may make all determinations shall be determined by the Committee, and
any such determination may thereafter by modified by the Committee (subject
to Section 9(e)). The express grant of any specific power to the Committee,
and the taking of any action by the Committee, shall not be construed as
limiting any power or authority of the Committee. The Committee may
delegate to officers or managers of the Company or a subsidiary of the
Company, the authority, subject to such terms as the Committee shall
determine, to perform such functions as the Committee may determine, to the
extent permitted under applicable law.
(c) Limitation of Liability. Each member of the Committee shall be
entitled to, in good faith, rely or act upon any report or other
information furnished to him by any officer or other employee of the
Company or any subsidiary, the Company's independent certified public
accountants or any executive, compensation consultant, legal counsel or
other professional retained by the Company to assist in the administration
of the Plan. No member of the Committee, or any officer or employee of the
Company acting on behalf of the Committee, shall be personally liable for
any action, determination or interpretation taken or made in good faith
with respect to the Plan, and all members of the Committee and any officer
or employee of the Company acting on its behalf shall, to the extent
permitted by law, be fully indemnified and protected by the Company with
respect to any such action, determination or interpretation.
4
<PAGE>
4. Stock Subject to Plan.
(a) Amount of Stock Reserved. Subject to adjustment as provided in
Section 4(c) below, the maximum aggregate number of shares of Stock that
may be delivered for all purposes under the Plan shall be eight million
(8,000,000) shares. Shares of Stock subject to any Award, including,
without limitation, an ISO, Restricted Stock or Deferred Stock Award, shall
not be deemed delivered if such Awards are forfeited, expire or otherwise
terminate without delivery of shares to the Participant and the number of
shares of Stock as to which such Award was not exercised will be available
for future Awards. If an Award valued by reference to Stock may only be
settled in cash, the number of shares to which such Award relates shall be
deemed to be Stock subject to such Award for purposes of this Section 4(a).
Any shares of Stock delivered pursuant to an Award may consist, in whole or
in part, of authorized and unissued shares, treasury shares or shares
acquired in the market for Participant's Account.
(b) Annual Per Participant Limitations. With respect to ISO Awards,
the value of shares of Stock that may be delivered upon the exercise of an
ISO in any one year period cannot exceed $100,000 based on the fair market
value of the Stock at the date of the ISO grant. During any calendar year,
no Participant may be granted Options and SARs exercisable for more than
400,000 shares of Stock and Awards other than Options and SARs that may be
settled by delivery of more than 200,000 shares of Stock, subject to
adjustment as provided in Section 4(c). In addition, with respect to Awards
that may be settled in cash (in whole or in part), no Participant may be
paid during any calendar year cash amounts relating to such Awards that
exceed the greater of the Fair Market Value of the 200,000 shares of Stock
(i) at the date of grant or (ii) at the date of settlement of Award. This
provision sets forth separate limitations, so that Awards that may be
settled solely by delivery of Stock shall not operate to reduce the amount
of cash-only Awards, and vice-versa; nevertheless, Awards that may be
settled in Stock or cash must not exceed any applicable limitation.
(c) Adjustments. In the event that the Committee shall determine that
any recapitalization, forward or reverse split, reorganization, merger,
consolidation, spin-off, combination, repurchase or exchange of Stock or
other securities, Stock dividend or other special, large and non-recurring
dividend or distribution (whether in the form of cash, securities or other
property), liquidation, dissolution or other similar corporate transaction
or event, affects the Stock such that an adjustment is appropriate in order
5
<PAGE>
to prevent dilution or enlargement of the rights of Participants under the
Plan, then the Committee shall, in such manner as it may deem equitable,
adjust any or all of (i) the number and kind of shares of Stock reserved
and available for Awards under Section 4(a), including shares reserved for
ISOs and Restricted and Deferred Stock, (ii) the number and kind of shares
of Stock specified in the annual per participant limitations provisions
under Section 4(b), (iii) the number and kind of shares of Stock to be
subject to Non-Employee Director Initial and Annual Options thereafter
granted, (iv) the number and kind of shares of outstanding Restricted Stock
or other outstanding Award in connection with which shares have been
issued, (v) the number and kind of shares that may be issued in respect of
other outstanding Awards, and (vi) the exercise price, grant price or
purchase price relating to any Award (or, if deemed appropriate, the
Committee may make provision for a cash payment with respect to any
outstanding Award). In addition, the Committee is authorized to make
adjustments in the terms and conditions of, and the criteria included in,
Awards in recognition of unusual or nonrecurring events (including, without
limitation, events described in the preceding sentence) affecting the
Company or any subsidiary or the financial statement of the Company or any
subsidiary, or in response to changes in applicable laws, regulations, or
accounting principles. The foregoing notwithstanding, no adjustments shall
be authorized under this Section 4(c) with respect to ISOs or SARs in
tandem therewith to the extent that such authority would cause the Plan to
fail to comply with Section 422(b)(1) of the Code.
5. Eligibility. Executive officers and key employees of the Company and its
subsidiaries, including any director or officer who is also such an executive
officer or key employee, directors of the Company, and persons who provide
consulting or other services to the Company deemed by the Committee to be of
substantial value to the Company, are eligible to be granted Awards under the
Plan. In addition, a person who has been offered employment by the Company or
its subsidiaries or agreed to become a director of the Company is eligible to be
granted an Award under the Plan; provided, however, that such Award shall be
cancelled if such person fails to commence such employment service as a
director, and no payment of value may be made in connection with such Award
until such person has commenced such employment or service.
6. Specific Terms of Awards.
(a) General. Awards may be granted on the terms and conditions set
forth in this Section 6. In addition, the Committee may impose on any Award
or the exercise thereof such additional terms and conditions, not
inconsistent with the provisions of the Plan, as the Committee shall
determine, including terms requiring forfeiture of Awards in the event of
termination of employment or service of the Participant. The Committee
shall retain full power and discretion to accelerate, waive or modify, at
any time, any term or condition of an Award that is not mandatory under the
Plan. Except as expressly provided by the Committee (including for purposes
of complying with requirements of the Delaware General Corporation Law
relating to lawful consideration for issuance of shares), no consideration
other than services shall be required for the grant (but not the exercise)
of any Award.
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(b) Options. The Committee is authorized to grant Options (including
"reload" options automatically granted to offset specified exercises of
Options) ("Options") on the following terms and conditions:
(i) Exercise Price. The exercise price per share of Stock
purchasable under an Option shall be determined by the Committee;
provided, however, that, except as otherwise provided for herein, such
exercise price shall be not less than the Fair Market Value of a share
on the date of grant of such Option.
(ii) Date and Method of Exercise. The Committee shall determine
the date or dates at which an Option may be exercised in whole or in
part, the methods by which such exercise price may be paid or deemed
to be paid, the form of such payment, including, without limitation,
cash, Stock, other Award or awards granted under other Company plans
or other property (including notes or other contractual obligations of
Participants to make payment on a deferred basis, such as through
"cashless exercise arrangements," to the extent permitted by
applicable law), and the methods by which Stock shall be delivered or
deemed to be delivered to Participants.
(iii) ISOs. The terms of any ISO granted under the Plan shall
comply in all respects with the provisions of Section 422 of the Code
including, but not limited to, the requirement that no ISO shall be
granted more than 10 years after the effective date of the Plan.
Anything in the Plan to the contrary notwithstanding, no term of the
Plan relating to ISOs shall be interpreted, amended, or altered, nor
shall any discretion or authority granted under the Plan be exercised,
so as to disqualify either Plan or any ISO under Section 422 of the
Code, unless requested by the affected Participant.
(c) Stock Appreciation Rights. The Committee is authorized to grant
stock appreciation right ("SARs") on the following terms and conditions:
(i) Right to Payment. A SAR shall confer upon the Participant to
whom it is granted a right to receive, upon exercise thereof, the
excess of (A) the Fair Market Value of one (1) share of Stock on the
date of exercise (or, if the Committee shall so determine in the case
of any such right other than or related to an ISO, the Fair Market
Value of one (1) share at any time during a specified period before
after the date of exercise), over (B) the grant price of the SAR as
determined by the Committee as the date of grant of the SAR, which,
except as otherwise provided for herein, shall be not less than the
Fair Market Value of one (1) share of Stock on the date of grant.
(ii) Other Terms. The Committee shall determine the date, or
dates, at which an SAR may be exercised in whole or in part, the
method of exercise, method of settlement, form of consideration
payable in settlement, method by which Stock will be delivered or
deemed to be delivered to Participants, whether an SAR shall be in
tandem with any other Award, and any other terms and conditions of any
SAR. Limited SARs that may only be exercised upon the occurrence of a
Change in Control may be granted on such terms, not inconsistent with
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this Section 6(c), as the Committee may determine. Limited SARs may be
either freestanding or issued in tandem with other Awards.
(d) Restricted Stock. The Committee is authorized to grant restricted
stock ("Restricted Stock") on the following terms and conditions:
(i) Grant and Restrictions. Restricted Stock shall be subject to
such restrictions on transferability and other restrictions, if any,
as the Committee may impose, which restrictions may lapse separately
or in combination at such dates, under such circumstances, in such
installments, or otherwise, as the Committee may determine. Except to
the extent restricted under the terms of the Plan and any Award
Agreement relating to the Restricted Stock, a Participant granted
Restricted Stock shall have all of the rights of a stockholder
including, without limitation, the right to vote Restricted Stock or
the right to receive dividends thereon.
(ii) Forfeiture. Except as otherwise determined by the Committee,
upon termination of employment or service (as determined under
criteria established by the Committee) during the applicable
restriction period, Restricted Stock that is at that time subject to
restrictions shall be forfeited and reacquired by the Company;
provided, however, that the Committee may provide, by rule or
regulation or in any Award Agreement, or may determine in any
individual case, that restrictions or forfeiture conditions relating
to Restricted Stock shall be waived in whole or in part in the event
of termination resulting from specified causes.
(iii) Certificates for Stock. Restricted Stock granted under the
Plan may be evidenced in such manner as the Committee shall determine.
If certificates representing Restricted Stock are registered in the
name of the Participant, such certificates may bear an appropriate
legend referring to the terms, conditions, and restrictions applicable
to such Restricted Stock. The Company may retain physical possession
of the Restricted Stock certificate, in which case the Participant
shall be required to have delivered a stock power to the Company,
endorsed in blank, relating to the Restricted Stock.
(iv) Dividends. Dividends paid on Restricted Stock shall be
either paid at the dividend payment date in cash or in shares of
unrestricted Stock having a Fair Market Value equal to the amount of
such dividends, or the payment of such dividends shall be deferred
and/or the amount or value thereto automatically reinvested in
additional Restricted Stock, other Awards, or other investment
vehicles, as the Committee shall determine or permit. Stock
distributed in connection with property distributed as a dividend
shall be subject to restrictions and a risk of forfeiture to the same
extent as the Restricted Stock with respect to which such Stock or
other property has been distributed, unless otherwise determined by
the Committee.
(e) Deferred Stock. The Committee is authorized to grant deferred
stock ("Deferred Stock") subject to the following terms and conditions:
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<PAGE>
(i) Award and Restrictions. Delivery of Stock shall occur upon
expiration of the deferral period specified for an Award of Deferred
Stock by the Committee (or, if permitted by the Committee, as elected
by the Participant). In addition, Deferred Stock shall be subject to
such restrictions as the Committee may impose, if any, which
restrictions may lapse at the expiration of the deferral period or at
earlier specified times, separately or in combination, in installments
or otherwise, as the Committee may determine.
(ii) Forfeiture. Except as otherwise determined by the Committee,
upon termination of employment or service (as determined under
criteria established by the Committee) during the applicable deferral
period or portion thereof to which forfeiture conditions apply (as
provided in the Award Agreement evidencing the Deferred Stock), all
Deferred Stock that is at that time subject to such forfeiture
conditions shall be forfeited; provided, however, that the Committee
may provide, by rule or regulation or in any Award Agreement, or may
determine in any individual case, that restrictions or forfeiture
conditions relating to Deferred Stock shall be waived in whole or in
part in the event of termination resulting from specified causes.
(f) Bonus Stock and Awards in Lieu of Cash Obligations. The Committee
is authorized to grant Stock as a bonus, or to grant Stock or other Awards
in lieu of Company obligations to pay cash under other plans or
compensatory arrangements.
(g) Dividend Equivalents. The Committee is authorized to grant
dividend equivalents entitling the Participant to receive cash, Stock,
other Awards or other property equal in value to dividends paid with
respect to a specified number of shares of Stock ("Dividend Equivalents").
Dividend Equivalents may be awarded on a free-standing basis or in
connection with another Award. The Committee may provide that Dividend
Equivalents shall be paid or distributed when accrued or shall be deemed to
have been reinvested in additional Stock, Awards or other investment
vehicles, and subject to such restrictions on transferability and risks of
forfeiture as the Committee may specify.
(h) Other Stock-Based Awards. The Committee is authorized, subject to
limitations under applicable law, to grant such other Awards that may be
denominated or payable in, valued in whole or in part or by reference to,
or otherwise based on, or related to, Stock and factors that may influence
the value of Stock as deemed by the Committee to be consistent with the
purposes of the Plan, including, without limitation convertible or
exchangeable debt securities, other rights convertible or exchangeable into
Stock, purchase rights for Stock, Awards with value and payment contingent
upon performance of the Company or any other factors designated by the
Committee, and Awards valued by reference to the book value of Stock or the
value of securities of, or the performance of, specified subsidiaries
(collectively, "Other Stock-Based Awards"). The Committee shall determine
the terms and conditions of such Awards. Stock issued pursuant to an Award
in the nature of a purchase right granted under this Section 6(h) shall be
purchased for such consideration paid for at such times, by such methods,
and in such forms, including, without limitation, cash, Stock, other Awards
or other property, as the Committee shall determine. Cash awards, as an
9
<PAGE>
element of or supplement to any other Award under the Plan, may be granted
pursuant to this Section 6(h).
7. Certain Provisions Applicable to Awards.
(a) Stand-Alone, Additional, Tandem, and Substitute Awards. Awards
granted under the Plan may, at the discretion of the Committee, be granted
either alone or in addition to, in tandem with or in substitution for any
other Award granted under the Plan or any award granted under any other
plan of the Company, any subsidiary or any business entity to be acquired
by the Company or a subsidiary, or an other right of a Participant to
receive payment from the Company or any subsidiary. Awards granted in
addition to or in tandem with other Awards may be granted either as of the
same time as or different time from the grant of such other Awards or
awards.
(b) Term of Awards. The term of each Award shall be for such period as
may be determined by the Committee; provided, however, that in no event
shall the term of any ISO or an SAR granted in tandem therewith exceed a
period of ten years from the date of its grant (or such shorter period as
may be applicable under Section 422 of the Code).
(c) Form of Payment Under Awards. Subject to the terms of the Plan and
any applicable Award Agreement, payments to be made by the Company or a
subsidiary upon the grant, exercise or settlement of an Award may be made
in such forms as the Committee shall determine, including, without
limitation, cash, Stock, other Awards or other property, and may be made in
a single payment or transfer, in installments or on a deferred basis. Such
payments may include, without limitation, provisions for the payment or
crediting of reasonable interest on installment or deferred payments or the
grant or crediting of Dividend Equivalents in respect of installment or
deferred payments denominated in Stock.
(d) Rule 16b-3 Compliance.
(i) Six-Month Holding Period. Unless a Participant could
otherwise dispose of equity securities, including derivative
securities, acquired under the Plan without incurring liability under
Section 16(b) of the Exchange Act, equity securities acquired under
the Plan must be held for a period of six (6) months following the
date of such acquisition, provided that this condition shall be
satisfied with respect to a derivative security if at least six (6)
months elapse from the date of acquisition of the derivative security
to the date of disposition of the derivative security (other than upon
exercise or conversion) or its underlying equity security.
(ii) Other Compliance Provisions. With respect to a Participant
who is then subject to Section 16(b) of the Exchange Act in respect of
the Company, the Committee shall implement transactions under the Plan
and administer the Plan in a manner that shall ensure that each
transaction by such Participant is exempt from liability under Rule
16b-3, except that such a Participant may be permitted to engage in a
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<PAGE>
non-exempt transaction under the Plan if written notice has been given
to the Participant regarding the non-exempt nature of such
transaction. The Committee may authorize the Company to repurchase any
Award or shares of Stock resulting from any Award in order to prevent
any Participant who is subject to Section 16 of the Exchange Act from
incurring liability under Section 16(b). Unless otherwise specified by
the Participant, equity securities, including derivative securities
acquired under the Plan, which are disposed of by a Participant shall
be deemed to be disposed of in the order acquired by the Participant.
(e) Loan Provisions. With the consent of the Committee, and subject at
all times to, and only to the extent, if any, permitted under and in
accordance with, laws and regulations and other binding obligations or
provisions applicable to the Company, the Company may make, guarantee or
arrange for a loan or loans to a Participant with respect to the exercise
of any Option or other payment in connection with any Award including the
payment by a Participant of any or all federal, state or local income or
other taxes due in connection with any Award. Subject to such limitations,
the Committee shall have full authority to decide whether to make a loan or
loans hereunder and to determine the amount, terms and provisions of any
such loan or loans, including the interest rate to be charged in respect of
any such loan or loans, whether the loan or loans are to be with or without
recourse against the borrower, the terms on which the loan is to be repaid
and conditions, if any, under which the loan or loans may be forgiven.
(f) Performance-Based Awards. The Committee may, in its discretion,
designate any Award the exercisability or settlement of which is subject to
the achievement of performance conditions as a performance-based Award
subject to this Section 7(f). The performance objectives for an Award
subject to this Section 7(f) shall consist of one or more business criteria
and a targeted level or levels of performance with respect to such
criteria, as specified by the Committee. Such levels of performance may be
expressed in absolute or relative levels. Achievement of performance
objectives with respect to such Awards shall be measured over a period of
not less than one (1) year nor more than five (5) years, as the Committee
may specify. Performance objectives may differ for such Awards to different
Participants. The Committee shall specify the weighting to be given to each
performance objective for purposes of determining the final amount payable
with respect to any such Award. The Committee may, in its discretion,
reduce the amount of a payout otherwise to be made in connection with an
Award subject to this Section 7(f), and the Committee may consider other
performance criteria in exercising such discretion. All determinations by
the Committee as to the achievement of performance objectives shall be in
writing.
(g) Acceleration upon a Change of Control. Notwithstanding anything
contained herein to the contrary, unless otherwise provided by the
Committee in an Award Agreement, all conditions and restrictions relating
to an Award, including limitations on exercisability, risks of forfeiture,
deferral periods and conditions and restrictions requiring the continued
performance of services or the achievement performance objectives with
respect to the exercisability or settlement of such Award, shall
immediately lapse upon a Change in Control.
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<PAGE>
8. Options Granted Automatically to Non-Employee Directors.
(a) Initial Option Grants. A Non-Employee Director Initial Option
shall be automatically granted as of the effective date of the Non-Employee
Director's initial election to the Board if he or she qualifies as a
Non-Employee Director at that date.
(b) Annual Option Grants. A Non-Employee Director Annual Option shall
be automatically granted at the close of business on the date of final
adjournment of each annual meeting of stockholders of the Company, to each
member of the Board of Directors who then qualifies as a Non-Employee
Director. The foregoing notwithstanding, any person who has been
automatically granted a Non-Employee Director Initial Option under Section
8(a) shall not be automatically granted a Non-Employee Director Annual
Option at the first annual meeting of stockholders following such grant of
the Initial Option if such annual meeting takes place within three (3)
months after the effective date of such grant of the Initial Option.
(c) Number of Shares Subject to Automatic Option Grants In the case of
any Initial or Annual Option, the number of shares of Stock to be subject
to each Initial Option shall be 25,000 and each Annual Option shall be
25,000 or, if so determined by the Board, such other number of shares
specified in the most recent resolution of the Board adopted on or prior to
the date of the annual meeting of stockholders that coincides with or most
recently precedes the date of grant of the Option.
(d) Other Non-Employee Director Initial and Annual Option Terms. Other
terms of Initial and Annual Options shall be as follows:
(i) The exercise price per share of Stock purchasable upon
exercise of a Non-Employee Director Initial or Annual Option shall be
equal to 100% of the Fair Market Value of a share of Stock on the date
of grant of the Option.
(ii) A Non-Employee Director Initial or Annual Option shall
expire at the earlier of (A) ten 10 years after the date of grant or
(B) one (1) year after the date the Participant ceases to serve as a
director of the Company for any reason.
(iii) Each Non-Employee Director Initial or Annual Option may be
exercised, prior to expiration, commencing one (1) year after the date
of grant, or at such earlier date as may be specified the Board of
Directors; provided, however, that an Option may be exercised
following a Participant's termination of service as a director for
reasons other than death or disability, but only if the director
served for, at least, eleven (11) months after the date of grant or
the Option was otherwise exercisable at the date of termination of
service.
(e) Method of Exercise. A Participant may exercise a Non-Employee
Director Initial or Annual Option, in whole or in part, at such date as it
is exercisable and prior to its expiration, by giving written notice of
exercise to the Secretary of the Company, specifying the Option to be
exercised and the number of shares to be purchased, and paying in full the
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<PAGE>
exercise price in cash (including by check) or by surrender of shares
already owned by the Participant (except for shares acquired from the
Company by exercise of option less than six (6) months before the date of
surrender) having a Fair Market Value at the time of exercise equal to the
exercise price, or by a combination of cash and shares.
(f) Availability of Shares. If an automatic grant of Options
authorized under Section 8(a) or (b) cannot be made in full due to the
limitation set forth in Section 4(a), such grant shall be made (together
with other automatic grants to occur at the same time) to the greatest
extent then permitted under Section 4(a).
9. General Provisions.
(a) Compliance With Laws and Obligations. The Company shall not be
obligated to issue or deliver Stock in connection with any Award or take
any other action under the Plan in a transaction subject to the
registration requirements of the Securities Act of 1933, as amended, or any
other federal or state securities law, any requirement under any listing
agreement between the Company and any national securities exchange or
automated quotation system or any other law, regulation or contractual
obligation of the Company until the Company is satisfied that the Company
is in full compliance with such laws, regulations and other obligations of
the Company. Certificates representing shares of Stock issued under the
Plan shall be subject to such stop-transfer orders and other restrictions
as may be applicable under such laws, regulations and other obligations of
the Company, including any requirement that a legend or legends be placed
thereon.
(b) Limitations on Transferability. Awards and other rights under the
Plan shall not be transferable by a Participant, except by will or the laws
of descent and distribution or to a beneficiary in the event of the
Participant's death, shall not be pledged, mortgaged, hypothecated or
otherwise encumbered, or otherwise subject to the claims of creditors, and,
in the case of ISOs and SARs in tandem therewith, shall be exercisable
during the lifetime of a Participant only by such Participant or his
guardian or legal representative; provided, however, that such Awards and
other rights (other than ISOs and SARs in tandem therewith) may be
transferred to one or more transferees during the lifetime of the
Participant to the extent and on such terms as then may be permitted by the
Committee.
(i) Procedures. The Company acting as the "Administrator" of the
Plan within the meaning of Section 3(16) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), shall make all
determinations as to the right of any claimant to an uninsured benefit
under this Plan in accordance with the procedure set forth below.
(ii) Claims. All claims for benefits under this Plan shall be
made in writing and shall be signed by the applicant. Claims shall be
submitted to a representative designated by the Company and
hereinafter referred to as the "Plan Sponsor's Representative."
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(A) Each claim hereunder shall be acted on and approved or
disapproved by the Company within ninety (90) days following the
receipt by the Plan Sponsor's Representative of the information
necessary to process the claim.
(B) In the event the Company denies a claim for benefits, in
whole or in part, the Company shall notify the applicant in
writing of the denial of the claim and notify such applicant of
his/her right to a review of the decision by the Named Appeals
Fiduciary. Such notice shall also set forth, in a manner
calculated to be understood by the applicant, the specific reason
for such denial, the specific Plan provisions on which the denial
is based, a description of any additional material or information
necessary to perfect the claim, with an explanation of why such
materials or information is necessary, and an explanation of the
Plan's claim review procedure as set forth in this paragraph.
(C) If no action is taken by the Company on an applicant's
claim within ninety (90) days after receipt by the Plan Sponsor's
Representative, such application shall be deemed to be denied for
purposes of the following appeals procedure.
(iii) Review of Decision. Any applicant whose claim for benefits
is denied in whole or in part (such applicant being hereinafter
referred to as the "Claimant") may appeal from such denial to the
Named Appeals Fiduciary for a review of the decision. Such appeal must
be made within sixty (60) days after the Claimant has received written
notice of the denial as provided above in Paragraph ii. An appeal must
be submitted in writing within such period and must:
(A) Request a review by the Named Appeals Fiduciary of the
claim for benefits under this Plan;
(B) Set forth all of the grounds upon which the Claimant's
request for review is based and any facts in support thereof; and
(C) Set forth any issues or comments which the Claimant
deems pertinent to the appeal.
Upon receipt of a notice of denial, the Plan Sponsor's Representative shall
establish a hearing date on which the Claimant may make an oral presentation in
support of his/her appeal. All oral appeals shall be heard by the Named Appeals
Fiduciary. The Claimant may elect to forego the oral presentation. In such
event, the Named Appeals Fiduciary shall determine the appeal on the basis of
the written evidence as presented by the parties.
The Named Appeals Fiduciary shall act upon each appeal within sixty (60)
days after receipt thereof unless special circumstances require an extension of
the time for processing the Claimant's request, any such written notice of the
extension shall be forwarded to the Claimant prior to the commencement of the
extension. In no event shall such extension exceed a period of one hundred
14
<PAGE>
twenty (120) days after the request for review is received by the Named Appeals
Fiduciary.
The Named Appeals Fiduciary shall make a full and fair review of each
appeal and any written materials submitted by the Claimant and/or the Company in
connection therewith. The Named Appeals Fiduciary may require the Claimant
and/or the Company to submit such additional facts, documents or other evidence
as the Named Appeals Fiduciary in its discretion deems necessary or advisable in
making its review. The Claimant shall be given the opportunity to review
pertinent documents or materials upon submission of a written request to the
Named Appeals Fiduciary, provided the Named Appeals Fiduciary finds the
requested documents or materials are pertinent to the appeal.
On the basis of its review, the Named Appeals Fiduciary shall make an
independent determination of the Claimant's eligibility for benefits under this
Plan. The decision of the Named Appeals Fiduciary on any claim for benefits
shall be final and conclusive upon all parties thereto.
In the event the Named Appeals Fiduciary denies an appeal, in whole or in
part, the Named Appeals Fiduciary shall give written notice of the decision to
the Claimant, which notice shall set forth, in a manner calculated to be
understood by the Claimant, the specific reasons for such denial and which shall
make specific reference to the pertinent Plan provisions on which the Named
Appeals Fiduciary's decision was based.
(iv) Named Appeals Fiduciary. The "Named Appeals Fiduciary" shall
be the person or persons named as such by the Company. Named Appeals
Fiduciaries may at any time be removed by the Company. All such
removals may be with or without cause and shall be effective on the
date stated in the notice of removal. The Named Appeals Fiduciary
shall be the "Appropriate Named Fiduciary" within the meaning of
Section 503 of ERISA, and, unless appointed to other fiduciary
responsibilities, shall have no authority, responsibility, or
liability with respect to any matter other than the proper discharge
of the functions of the Named Appeals Fiduciary as set forth herein.
(v) Compliance with Regulations. It is intended that the claims
procedure of this Plan be administered in accordance with the claims
procedure regulations of U.S. Department of Labor Regulation
ss.2560.503-1.
(c) No Right to Continued Employment or Service. Neither the Plan nor
any action taken hereunder shall be construed as giving any employee,
director or other person the right to be retained in the employ or service
of the Company or any of its subsidiaries, nor shall it interfere in any
way with the right of the Company or any of its subsidiaries to terminate
any employee's employment or other person's service at any time or with the
right of the Board or stockholders to remove any director.
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(d) Taxes. The Company and any subsidiary is authorized to withhold
from any Award granted or to be settled, any delivery of Stock in
connection with an Award, any other payment relating to an Award or any
payroll or other payment to a Participant, amounts of withholding and other
taxes due or potentially payable in connection with any transaction
involving an Award, and to take such other action as the Committee may deem
advisable to enable the Company and Participants to satisfy obligations for
the payment of withholding taxes and other tax obligations relating to any
Award. This authority shall include authority to withhold or receive Stock
or other property and to make cash payments in respect thereof, in
satisfaction of a Participant's tax obligations.
(e) Changes to the Plan and Awards. The Board may amend, alter,
suspend, discontinue or terminate the Plan or the Committee's authority to
grant Awards under the Plan without the consent of stockholders or
Participants, except that any such action shall be subject to the approval
of the Company's stockholders at or before the next annual meeting of
stockholders for which the record date is after such Board action if such
stockholder approval is required by any federal or state law or regulation
or the rules of any stock exchange or automated quotation system on which
the Stock may then be listed or quoted, and the Board may otherwise, in its
discretion, determine to submit such other changes to the Plan to
stockholders for approval; provided, however, that, without the consent of
an affected Participant, no such action may materially impair the rights of
such Participant under any Award theretofore granted to him or her. The
Committee may waive any conditions or rights under, or amend, alter,
suspend, discontinue, or terminate any Award theretofore granted and any
Award Agreement relating thereto; provided, however, that without the
consent of an affected Participant, no such action may materially impair
the rights of such Participant under such Award.
(f) No Rights to Awards; No Stockholder Rights. No Participant or
employee shall have any claim to be granted any Award under the Plan
(except for a director who has become entitled to Options under Section 8),
and there is no obligation for uniformity of treatment of Participants and
employees. No Award shall confer on any Participant any of the rights of a
stockholder of the Company unless and until Stock is duly issued or
transferred and delivered to the Participant in accordance with the terms
of the Award or in the case of an Option, the Option is duly exercised.
(g) Unfunded Status of Awards; Creation of Trusts. The Plan is
intended to constitute an "unfunded" plan for incentive and deferred
compensation. With respect to any payments not yet made to a Participant
pursuant to an Award, nothing contained in the Plan or any Award shall give
any such Participant any rights that are greater than those of a general
creditor of the Company; provided, however, that the Committee may
authorize the creation of trusts or make other arrangements to meet the
Company's obligations under the Plan to deliver cash, Stock, other Awards
or other property pursuant to any Award, which trusts or other arrangements
shall be consistent with the "unfunded" status of the Plan, unless the
Committee otherwise determines with the consent of each affected
Participant.
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(h) Nonexclusivity of the Plan. Neither the adoption of the Plan by
the Board nor any submission of the Plan or amendments thereto to the
stockholders of the Company for approval shall be construed as creating any
limitations on the power of the Board to adopt such other compensatory
arrangements as it may deem desirable, including, without limitation, the
granting of stock options otherwise than under the Plan, and such
arrangements may be either applicable generally or only in specific cases.
(i) No Fractional Shares. No fractional shares of Stock shall be
issued or delivered pursuant to the Plan or any Award. The Committee shall
determine whether cash, other Awards or other property shall be issued or
paid in lieu of such fractional shares or whether such fractional shares or
any rights thereto shall be forfeited or otherwise eliminated.
(j) Governing Law. The validity, construction and effect of the Plan,
any rules and regulations relating to the Plan and any Award Agreement
shall be determined in accordance with the laws of the State of Delaware,
without giving effect to principles of conflicts of laws, and applicable
federal law.
(k) Effective Date; Plan Termination. The Plan became effective as of
May 6, 1998, the date of its adoption by the Board, subject to stockholder
approval, and shall continue in effect until terminated by the Board.
(l) Pooling-of-Interest Accounting. Notwithstanding anything to the
contrary stated in this Plan, any provisions of this Plan that would result
in the inability to use the pooling-of-interest method of accounting shall
be deemed to be rescinded or canceled.
(m) None of the payments, benefits or rights of any Participant or
Beneficiary shall be subject to any claim of any creditor to the fullest
extent permitted by law. No Participant or Beneficiary shall have the right
to alienate, anticipate, commute, encumber or assign any of the benefits or
payments which he/she may expect to receive, contingently or otherwise,
under this Plan, except the right to designate a Beneficiary or
Beneficiaries as hereinabove provided.
(n) Severability of Provisions. If any provision of this Plan shall be
held invalid or unenforceable, such invalidity or unenforeability shall not
affect any other provisions hereof, and this Plan shall be construed and
enforced as if such provisions had not been included.
(o) Heirs, Assigns and Personal Representatives. This Plan shall be
binding upon the heirs, executors, administrators, successors and assigns
of the parties, including each Participant and Beneficiary, present and
future.
(p) Headings and Captions. The headings and captions herein are
provided for reference and convenience only, shall not be considered part
of the Plan, and shall not be employed in the construction of the Plan.
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<PAGE>
(q) Gender and Number. Except where otherwise clearly indicated by
context, the masculine and the neuter shall include the feminine and the
neuter, the singular shall include the plural, and vice-versa.
(r) Payment to Minors, Etc. Any benefit payable to or for the benefit
of a minor, an incompetent person or other person incapable of receipting
therefor shall be deemed paid when paid to such person's guardian or to the
party providing or reasonably appearing to provide for the care of such
person, and such payment shall fully discharge the Company and all other
parties with respect thereto.
(s) Binding Effect. The Plan shall be binding upon the Company. In the
event of a merger or other event of reorganization or consolidation
involving the Company, whereby the shareholders of the Company on the date
of the execution of this Plan own more than fifty percent (50%) of the
voting power with respect to the voting stock of the surviving entity, this
Plan shall continue in full force and effect and become an obligation of
the surviving entity.
18
Form of Stock Option Agreement dated April 15, 1998 by and
between ICC Technologies, Inc. and
Glenn S. Meyers
STOCK OPTION AGREEMENT
This Stock Option Agreement (the "Agreement") is dated as of the day
of , 1998, by and between ICC TECHNOLOGIES, INC., a Delaware corporation
(the "Company") and GLENN S. MEYERS (the "Executive").
W I T N E S S E T H:
WHEREAS, as an essential inducement to the Executive entering into the
Employment Agreement, dated as of the 14th day of April, 1998, by and between
the Company and the Executive (the "Employment Agreement"), the Company desires
to grant to the Executive a right to acquire shares of common stock, par value
$.01 per share (the "Common Stock"), of the Company according to the terms and
conditions provided herein and to further align his interests with those of the
stockholders of the Company.
NOW, THEREFORE, in consideration of the premises and covenants herein set
forth and other good and valuable consideration, the Company and the Executive
hereby agree as follows:
1. CONFIRMATION OF GRANT OF OPTION. Pursuant to a determination by the
Board of Directors of the Company (together with any duly authorized committee
thereof, the "Board"), the Company, subject to the terms and conditions of this
Agreement, hereby confirms that the Executive has been granted, effective April
15, 1998 (the "Date of Grant"), as a matter of separate inducement and
agreement, and in addition to and not in lieu of salary or other compensation
for services, the right to purchase from the Company 2,000,000 shares of Common
Stock (the "Options"). The Options shall vest as provided in Section 4 hereof
and shall be subject to adjustment as provided in Section 6 hereof.
2. EXERCISE PRICE. The exercise price per share (the "Exercise Price") for
the Options shall be $2.375.
3. NON-TRANSFERABILITY OF OPTIONS. The Options may not be assigned,
transferred or otherwise disposed of, or pledged or hypothecated in any way, and
shall not be subject to execution, attachment or other process otherwise than by
will or by the laws of descent and distribution, and the Options may be
exercised during the lifetime of the Executive only by him. Any attempt at
assignment, transfer, pledge or disposition of the Option contrary to the
provisions hereof or the levy of any execution, attachment or similar process
upon the Option shall be null and void and without effect. Any exercise of the
Option by a person other than the Executive shall be accompanied by appropriate
proofs of the right of such person to exercise the Option.
4. TERM AND EXERCISE OF OPTIONS.
(a) The Options shall remain outstanding (subject to the vesting and
exercisability provisions provided herein) during a period of ten (10) years
beginning on the Date of Grant and ending on April 15, 2008 (the "Option Term").
<PAGE>
The Options shall vest ratably on a monthly basis, commencing on the date hereof
and continuing for a period of sixty (60) months. Except as otherwise provided
in Section 5 hereof, Options that have vested (regardless of the provision of
this Agreement pursuant to which vesting occurred) shall remain exercisable in
whole at any time or in part and from time to time until the earlier to occur of
the expiration of the Option Term and the expiration of one year after the date
of the termination of the Executive's employment with the Company. The Executive
shall not have any rights to dividends or any other rights of a stockholder of
the Company with respect to any shares of Common Stock underlying the Options
until such shares have been issued to him upon the exercise of the Options.
(b) Notwithstanding any provision hereof to the contrary, and subject to
the terms of the Employment Agreement, Executive may purchase all or any portion
of the unexercised balance of this Option upon the effective date of a change in
the control of the Company, including, without limitation, a (i) merger or
consolidation of the Company into or with any other corporation when the Company
is not the surviving entity of such merger or consolidation, (ii) the
acquisition, directly or indirectly by any entity or "group" (as defined in
Section 13(d) of the Securities and Exchange Act of 1934, as amended), of stock
or options, or any combination thereof, (a) constituting a majority of the then
outstanding common stock of the Company or (b) possessing a majority of the then
outstanding voting power of the Company, (iii) any similar purchase or other
acquisition of a majority of the total equity interest of the Company, (iv) the
acquisition of all, or substantially all of, the assets of the Company, or (v)
the formation of a joint venture or partnership with the Company for the purpose
of effecting a transfer of control of, or a material interest in, the Company
(such merger, consolidation, sale or other transaction being hereinafter
referred to as a "Transaction"). There shall be excluded from the foregoing any
Transaction as a result of which (a) the holders of Common Stock prior to the
Transaction retain or acquire securities constituting a majority of the
outstanding voting common stock of the acquiring or surviving corporation or
other entity and (b) no single person owns more than half of the outstanding
voting common stock of the acquiring or surviving corporation or other entity.
For purposes of this Paragraph 4, voting common stock of the acquiring or
surviving corporation or other entity that is issuable upon conversion of
convertible securities or upon exercise of warrants or options shall be
considered outstanding, and all securities that vote in the election of
directors (other than solely as the result of a default in the making of any
dividend or other payment) shall be deemed to constitute that number of shares
of voting common stock which is equivalent to the number of such votes that may
be cast by the holders of such securities.
5. TERMINATION. The Executive's rights with respect to the Options upon
death or the termination of his employment with the Company are as follows:
(a) Cause. If the Executive is terminated from his employment with the
Company "for cause" (as defined in the Employment Agreement) in accordance with
Section 6 of the Employment Agreement, then all the Options (whether vested or
unvested) shall automatically terminate and be cancelled (without any action on
the part of the Company) on the effective date of termination.
2
<PAGE>
(b) Disability. If the Executive is terminated from his employment with the
Company by reason of disability in accordance with Section 5(a) of the
Employment Agreement, then all unvested Options shall automatically terminate
and be cancelled (without any action on the part of the Company) on the
effective date of such termination. All Options that have vested prior to such
date shall remain exercisable until the earlier to occur of (i) the first
anniversary of such date and (ii) the expiration of the Option Term.
(c) Death. If the Executive dies while employed by the Company, then all
unvested Options shall automatically terminate and be cancelled (without any
action on the part of the Company) on the date of death. Following the
Executive's death his executors, administrators, legatees or distributees may
exercise the Options that have vested prior to the date of death until the
earlier to occur of (i) the first anniversary of such date and (ii) the
expiration of the Option Term.
(d) Termination of Employment Agreement at the Election of Executive.
Pursuant to the terms of Section 6 thereof, under certain circumstances
Executive may elect to terminate the Employment Agreement. Following termination
at the election of the Executive, the Company shall pay to Executive (in
addition to other sums), a sum equal to the cash value of all unexercised stock
options (whether or not vested) or the cashless exercise value thereof.
6. CHANGES IN CAPITAL STRUCTURE. The number of Option shares (the "Option
Shares") covered by this Option and the Exercise Price shall be equitably
adjusted in the event (the "Event") of (i) the payment of any dividend payable
in, or the making of any distribution of, Common Stock to holders of record of
Common Stock, which increases the outstanding Common Stock by more than 25%;
(ii) any stock split, combination of shares, recapitalization or other similar
change; (iii) the merger or consolidation of the Company into or with any other
corporation; or (iv) the reorganization, dissolution, liquidation or winding up
of the Company, and the Executive shall be entitled, upon the exercise of the
Option, to entitle the Executive to receive such new, additional or other shares
of stock of any class, or other property (including cash), as Executive would
have been entitled to receive as a matter of law in connection with such Event
had Executive held the Option Shares on the record date set for such Event. The
Company shall have the authority to determine the adjustments to be made under
this Section 6 and any such determination shall be final, binding and
conclusive.
7. MANNER OF EXERCISE. Exercise of the Option shall be by written notice to
Company pursuant to Section 13 hereof. The notice shall be accompanied by
payment in full in cash, stock of the Company, or other property (including
notes or other contractual obligations of Executive to make payment on a
deferred basis, such as through "cashless exercise arrangements," to the extent
permitted by applicable law), or a combination thereof, in the amount of the
Option Price. Upon receipt of such notice and payment, Company shall deliver a
certificate or certificates representing the Option Shares purchased. The
certificate or certificates representing the Option Shares shall be registered
in the name of the Executive, or if the Executive so requests, shall be issued
in ortransferred into the name of the Executive and another person jointly with
the
3
<PAGE>
right of survivorship. The certificate or certificates shall be delivered to or
upon the written order of the Executive. Neither the Executive nor his legal
representative, legatees or distributees, as the case may be, shall be or shall
be deemed to be a holder of any shares subject to this Option unless and until
certificates for such shares are issued to him or them upon the exercise of this
Option. The Option Shares that shall be purchased upon the exercise of the
Option as provided herein shall be fully paid and nonassessable.
8. NO RIGHT TO CONTINUED EMPLOYMENT. Nothing in this Agreement shall confer
upon the Executive the right to continue in the employ of the Company or to be
entitled to any right or benefit not set forth in this Agreement or to interfere
with or limit in any way the right of the Company to terminate the Executive's
employment in accordance with the Employment Agreement.
9. WITHHOLDING TAXES. The Company shall have the right to require the
Executive (or such other person, if any, who has the right to exercise the
Options) to pay to the Company in cash the amount of any federal, state, local
and foreign income and other taxes that the Company may be required to withhold
before delivering to the Executive (or such other person) a certificate or
certificates representing shares of Common Stock issuable hereunder.
Notwithstanding the foregoing sentence, subject to Section 11 hereof, the
Executive may elect to cause Common Stock issuable upon the exercise of any of
the Options, having a Fair Market Value (defined as the last sales price or, if
unavailable, the average of the closing bid and asked prices per share of the
Common Stock on such date (or, if there was no trading or quotation in the
Common Stock on such date, on the next preceding date on which there was trading
or quotation) as reported in The Wall Street Journal (or other reporting service
approved by the Compensation Committee of the Board) on the day immediately
preceding the date on which such certificates are delivered equal to the amount
of such withholding obligation, to be withheld by the Company in satisfaction of
such obligation.
10. COMPLIANCE WITH APPLICABLE LAW. Any exercise of the Options and the
issuance and delivery of shares of Common Stock pursuant thereto shall be
subject to applicable law, including compliance with the requirements of the
Securities Act of 1933, as amended (the "Securities Act"), and the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder, the
requirements of any stock exchange upon which the Common Stock may then be
listed and any applicable state securities or "blue sky" laws. The Executive
understands that, as of the date hereof, neither the Options nor the shares of
Common Stock issuable upon exercise of the Options have been registered under
the Securities Act or any applicable state securities or "blue sky" laws.
11. RESALE OF COMMON STOCK. Upon any sale or transfer of the Common Stock
purchased upon exercise of the Options, the Executive shall deliver to the
Company an opinion of counsel satisfactory to the Company to the effect that
either (a) the sale of the Common Stock to be so sold or transferred has been
registered under the Securities Act or (b) such Common Stock may then be sold
without registration under the Securities Act and applicable state securities
laws. The certificates evidencing the shares of Common Stock issued upon
exercise of the Options shall bear a legend to the following effect (unless the
Company requires otherwise):
4
<PAGE>
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED FOR SALE,
SOLD OR OTHERWISE TRANSFERRED UNLESS THERE IS A REGISTRATION
STATEMENT IN EFFECT COVERING SUCH SECURITIES OR THERE IS
AVAILABLE AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT OF 1933, AS AMENDED, AND APPLICABLE STATE
SECURITIES LAWS."
12. REGISTRATION. Not later than the first anniversary of the date of this
Agreement, the Company shall file a registration statement on Form S-8 (or any
successor form for the registration under the Securities Act of securities to be
offered pursuant to employee benefit plans) registering the Common Stock
underlying the Options under the Securities Act, subject to then applicable
rules and regulations, in order to permit the public resale thereof by the
Executive. This Section 12 shall apply only to the extent that an effective
registration statement is then required for the public sale by the Executive of
the Common Stock underlying the Options.
13. NOTICES. For the purposes of this Agreement, notices, demands and all
other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given (i) when hand delivered, (ii) when sent
if sent by overnight mail, overnight courier or facsimile transmission or (iii)
(unless otherwise specified) when mailed by United States registered mail,
return receipt requested, postage prepaid, addressed, as follows:
If to Company: ICC Technologies, Inc.
44 West 18th Street, 6th Floor
New York, NY 10011
If to Executive: Glenn S. Meyers
9 Brookridge Drive
Greenwich, CT 06830
14. BENEFITS OF AGREEMENT. This Agreement shall inure to the benefit of and
be binding upon each successor and assign of the Company. All obligations
imposed upon the Executive and all rights granted to the Company under this
Agreement shall be binding upon the Executive and, to the limited extent set
forth herein, the Executive's heirs, legal representatives and successors. No
other person shall have any rights under this Agreement.
15. SEVERABILITY. In the event that any one or more provisions of this
Agreement shall be deemed to be illegal or unenforceable, such illegality or
unenforceability shall not affect the validity and enforceability of the
remaining legal and enforceable provisions herein, which shall be construed as
if such illegal or unenforceable provision or provisions had not been inserted.
5
<PAGE>
16. ENTIRE AGREEMENT. The parties hereto agree that this Agreement contains
the entire understanding and agreement between them, and supersedes all prior
understandings and agreements between the parties respecting the subject matter
hereof, and that the provisions of this Agreement may not be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing
signed by the parties hereto.
17. WAIVER. No waiver by either party hereto at any time of any breach by
the other party hereto of, or compliance with, any condition or provision of
this Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.
18. GOVERNING LAW. This Agreement shall be construed and governed in
accordance with the laws of the State of Delaware, without regard to the
conflicts of law principles thereof.
19. INCORPORATION BY REFERENCE. The incorporation herein of any terms by
reference to another document shall not be affected by the termination of any
agreement set forth in such other document or the invalidity of any provision
thereof.
20. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original but both of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
an authorized officer and the Executive has hereunto set his hand all as of the
day, month and year first above written.
ICC TECHNOLOGIES, INC.
By:______________________________________
______________________________________
Compensation Committee
________________________________________
Glenn S. Meyers (Executive)
6
Exhibit 5
Opinion of Mesirov Gelman Jaffe Cramer & Jamieson, LLP
<PAGE>
April 23, 1999
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Rare Medium Group, Inc.
Registration Statement on Form S-8
----------------------------------
Dear Sir/Madam:
As counsel to Rare Medium Group, Inc., a Delaware corporation (the
"Company"), we are familiar with the corporate proceedings relating to the
proposed registration on Form S-8 (the "Registration Statement"), which is to be
filed with the Securities and Exchange Commission on or about April 23, 1999, of
(i) 8,000,000 shares of the Company's Common Stock, par value $.01 per share, to
be issued upon the exercise of stock options or other stock based awards granted
pursuant to the Company's 1998 Long-Term Incentive Plan (the "1998 Plan") and
(ii) 2,000,000 shares of Common Stock, par value $.01 per share to be issued
upon the exercise of that certain stock option granted pursuant to that certain
Stock Option Agreement dated April 15, 1998 between the Company and Glenn S.
Meyers (the "Meyers Option") (together with the shares issuable under the 1998
Plan, the "Shares").
We have examined the Company's Certificate of Incorporation, as amended,
the Company's By-Laws, as amended, and related minutes of action taken by the
Board of Directors of the Company, the 1998 Plan, the Meyers Option and such
other documents and corporate records relating to the Company and the proposed
issuance and sale of the Shares as we deemed appropriate for purposes of
rendering this opinion.
Based upon the foregoing, it is our opinion that when the Shares are sold
by the Company in the manner and for the consideration described in the 1998
Plan and in the respective awards of options and other stock based awards
granted pursuant to the 1998 Plan, or in the manner and for the consideration
described in the Meyers Option, as the case may be, the Shares will be validly
issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5 of the
Registration Statement.
Very truly yours,
/s/ Mesirov Gelman Jaffe Cramer & Jamieson, LLP
------------------------------------------------
CONSENT OF INDEPENDENT AUDITOR
We consent to the incorporation by reference in this registration statement
of Rare Medium Group, Inc. (the "Company") on Form S-8 of our reports dated
March 29, 1999, relating to the consolidated balance sheet as of December 31,
1998 and the related consolidated statements of operations, stockholders' equity
(deficit), cash flows and financial statement schedule for the year then ended
which reports are included in the Company's annual report on Form 10-K, as
amended on Form 10-K/A. Our report, dated March 29, 1999, contains an
explanatory paragraph that states that the Company has suffered net losses and
losses from continuing operations, has a working capital deficiency, and has
incurred accumulated losses through December 31, 1998. These factors raise
substantial doubt about its ability to continue as a going concern. The
consolidated financial statements and financial statement schedule do not
include any adjustments that might result from the outcome of that uncertainty.
KPMG LLP
New York, New York
April 23, 1999
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement of Rare Medium Group, Inc. (the "Company") on Form S-8 of our report,
which includes an explanatory paragraph which refers to conditions that raise
substantial doubt about the Company's ability to continue as a going concern,
dated March 20, 1998, relating to the consolidated financial statements of the
Company as of December 31, 1997 and for the years ended December 31, 1997 and
1996, which appears in the Company's Annual Report on Form 10-K, as amended by
Form 10-K/A, for the year ended December 31, 1998. We also consent to the
incorporation by reference of our report, dated March 20, 1998, relating to the
financial statements of Engelhard/ICC as of December 31, 1997 and 1996 and for
the years ended December 31, 1997, 1996 and 1995, which also appears in such
Annual Report on Form 10-K, as amended by Form 10-K/A, for the year ended
December 31, 1998.
PricewaterhouseCoopers LLP
Philadelphia, Pennsylvania
April 23, 1999
EX-23.c
Consent of Mesirov Gelman Jaffe Cramer & Jamieson, LLP
(See Exhibit 5)
Exhibit 24
Power of Attorney
(Set forth on signature page hereto)
