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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report: March 30, 1999
--------------
Date of Earliest
Event Reported: March 23, 1999
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BERKSHIRE BANCORP INC.
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(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Delaware 0-13649 94-2563513
- ---------------------------- ------------- ------------------
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
</TABLE>
160 Broadway, New York, New York 10038
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (212)791-5362
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Cooper Life Sciences, Inc.
- --------------------------------------------------------------------------------
Former name or former address, if changed since last report
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ITEM 5. OTHER EVENTS
A. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
The Annual Meeting of Stockholders of the Company was held on March 23,
1999. At that meeting, the following persons were elected as the members of the
Board of Directors of the Company, each to hold office until the next annual
meeting of the stockholders and until his successor has been duly elected and
qualified:
<TABLE>
<CAPTION>
Name Votes "FOR" "WITHHOLD" Vote
- --------------------------- ------------------------ ------------------------------
<S> <C> <C>
William L. Cohen 2,020,015 2,135
Moses Marx 2,020,020 2,130
Steven Rosenberg 2,020,080 2,142
Randolph B. Stockwell 2,020,010 2,140
</TABLE>
At said Annual Meeting of Stockholders the proposal to approve a change
in the Company's name to Berkshire Bancorp Inc. was duly approved by the
stockholders of the Company. The number of votes cast with respect to said
matter was as follows:
<TABLE>
<CAPTION>
Number of Votes
-----------------------------
<S> <C>
FOR: 2,016,010
AGAINST: 2,066
ABSTAIN: 4,074
</TABLE>
At said Annual Meeting of Stockholders the proposal to change the
Company's authorized capital to 10,000,000 shares of Common Stock and 2,000,000
shares of Preferred Stock was duly approved by the Stockholders of the Company.
The number of votes cast with respect to said matter was as follows:
<TABLE>
<CAPTION>
Number of Votes
-----------------------------
<S> <C>
FOR: 1,531,186
AGAINST: 21,045
ABSTAIN: 4,685
</TABLE>
At said Annual Meeting of Stockholders the proposal to eliminate
certain unnecessary provisions and modify the language in other existing
provisions in the Company's current Certificate of Incorporation to be reflected
in an Amended and Restated Certificate of Incorporation was duly approved by the
stockholders of the Company. The number of votes cast with respect to said
matter was as follows:
<TABLE>
<CAPTION>
Number of Votes
-----------------------------
<S> <C>
FOR: 1,896,027
AGAINST: 121,097
ABSTAIN: 5,026
</TABLE>
2
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At said Annual Meeting of Stockholders the proposal to approve the
Company's 1999 Stock Incentive Plan was duly approved by the stockholders of the
Company. The number of votes cast with respect to said matter was as follows:
<TABLE>
<CAPTION>
Number of Votes
-----------------------------
<S> <C>
FOR: 1,426,466
AGAINST: 129,461
ABSTAIN: 4,988
</TABLE>
B. ADOPTION OF AMENDED AND RESTATED BYLAWS
At the regular meeting of the Board of Directors of the Company which
followed said Annual Meeting of Stockholders, the Board of Directors, among
other things, approved and adopted Amended and Restated Bylaws of the Company.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION
AND EXHIBITS.
c. Exhibits
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<S> <C>
3.1 Amended and Restated Certificate of Incorporation
of the Company.
3.2 Amended and Restated Bylaws of the Company.
10.8 1999 Stock Incentive Plan of the Company.
</TABLE>
3
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
BERKSHIRE BANCORP INC.
(Registrant)
Date: March 30, 1999 By: /s/ Steven Rosenberg
------------------ ------------------------
Steven Rosenberg
President and Chief
Financial Officer
4
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequential
Number Description Page Number
- ------- ----------- -----------
<S> <C> <C>
3.1 Amended and Restated Certificate of
Incorporation of the Company. 6
3.2 Amended and Restated Bylaws of the Company. 9
10.8 1999 Stock Incentive Plan of the Company. 18
</TABLE>
5
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Exhibit No. 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
BERKSHIRE BANCORP INC.
The Corporation was incorporated under the name "Cooper
Medical Devices Corporation" by the filing of its original Certificate of
Incorporation with the Secretary of State of the State of Delaware on March 1,
1979. This Amended and Restated Certificate of Incorporation of the Corporation,
which both restates and amended the provisions of the Corporation's Certificate
of Incorporation (as amended, this "Certificate of Incorporation"), was duly
adopted in accordance with the provisions of Sections 242 and 245 of the General
Corporation Law of the State of Delaware (the "DGCL"). The Certificate of
Incorporation of the Corporation is hereby amended and restated to read in its
entirety as follows:
ARTICLE I.
The name of the corporation (which is hereinafter referred to
as the "Corporation") is BERKSHIRE BANCORP INC.
ARTICLE II.
The address of the registered office of the Corporation in the
State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City
of Wilmington, County of New Castle, State of Delaware 19801. The name of the
Corporation's registered agent is The Corporation Trust Company.
ARTICLE III.
The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may be organized under the DGCL.
ARTICLE IV.
4.1 Capital Stock. The total number of shares of capital stock
which the Corporation shall have authority to issue is twelve million
(12,000,000) shares, of which ten million (10,000,000) shares shall be common
stock, par value $.10 per share ("Common Stock"), and two million (2,000,000)
shares shall be preferred stock, par value $.01 per share ("Preferred Stock").
4.2 Common Stock. The shares of authorized Common Stock of the
Corporation shall be identical in all respects and shall have equal rights and
privileges.
4.3 Preferred Stock. The Preferred Stock may be issued from
time to time in one or more series. The Board of Directors of the Corporation is
hereby expressly authorized to provide, by resolution or resolutions duly
adopted by it prior to issuance, for the creation of each such series and to fix
the designation and the powers, preferences, rights, qualifications, limitations
and restrictions relating to the shares of each such series. The authority of
the Board of Directors with respect to each series of Preferred Stock shall
include, but not be limited to, determining the following:
(a) the designation of such series, the number of shares to
constitute such series and the stated value if different from the par
value thereof;
(b) whether the shares of such series shall have voting
rights, in addition to any voting rights provided by law, and, if so,
the terms of such voting rights, which may be general or limited;
(c) the dividends, if any, payable on such series, whether any
such dividends shall be cumulative, and, if so, from what dates, the
conditions and dates upon which such dividends shall be payable, and
the preference or relation which such dividends shall bear to the
dividends
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payable on any shares of stock of any other class or any other series
of Preferred Stock;
(d) whether the shares of such series shall be subject to
redemption by the Corporation, and, if so, the times, prices and other
conditions of such redemption;
(e) the amount or amounts payable upon shares of such series
upon, and the rights of the holders of such series in, the voluntary or
involuntary liquidation, dissolution or winding up, or upon any
distribution of the assets, of the Corporation;
(f) whether the shares of such series shall be subject to the
operation of a retirement or sinking fund and, if so, the extent to and
manner in which any such retirement or sinking fund shall be applied to
the purchase or redemption of the shares of such series for retirement
or other corporate purposes and the terms and provisions relating to
the operation thereof;
(g) whether the shares of such series shall be convertible
into, or exchangeable for, shares of stock of any other class or any
other series of Preferred Stock or any other securities and, if so, the
price or prices or the rate or rates of conversion or exchange and the
method, if any, of adjusting the same, and any other terms and
conditions of conversion or exchange;
(h) the limitations and restrictions, if any, to be effective
while any shares of such series are outstanding upon the payment of
dividends or the making of other distributions on, and upon the
purchase, redemption or other acquisition by the Corporation of, the
Common Stock or shares of stock of any other class or any other series
of Preferred Stock;
(i) the conditions or restrictions, if any, upon the creation
of indebtedness of the Corporation or upon the issue of any additional
stock, including additional shares of such series or of any other
series of Preferred Stock or of any other class; and
(j) any other powers, preferences and relative, participating,
optional and other special rights, and any qualifications, limitations
and restrictions, thereof.
The powers, preferences and relative, participating, optional
and other special rights of each series of Preferred Stock, and the
qualifications, limitations or restrictions thereof, if any, may differ from
those of any and all other series at any time outstanding. All shares of any one
series of Preferred Stock shall be identical in all respects with all other
shares of such series, except that shares of any one series issued at different
times may differ as to the dates from which dividends thereof shall be
cumulative.
ARTICLE V.
Unless required by law or determined by the chairman of the
meeting to be advisable, the vote by stockholders on any matter, including the
election of directors, need not be by written ballot.
ARTICLE VI.
The Corporation reserves the right to increase or decrease its
authorized capital stock, or any class or series thereof, and to reclassify the
same, and to amend, alter, change or repeal any provision contained in this
Certificate of Incorporation or the Bylaws of the Corporation; and other
provisions authorized by the DGCL at the time in force may be added or inserted,
in the manner now or hereafter prescribed by law, and all rights conferred upon
stockholders, Directors or any other person pursuant to this Certificate of
Incorporation and the Bylaws of the Corporation are granted subject to the
aforementioned reservation.
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ARTICLE VII.
The Board of Directors shall have the power at any time, and
from time to time, to adopt, amend and repeal any and all Bylaws of the
Corporation.
ARTICLE VIII.
8.1 Elimination of Certain Liability of Directors. To the
fullest extent permitted by the DGCL, as the same exists or may hereafter be
amended, no Director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a Director. No amendment of this Certificate of Incorporation or repeal
of any of its provisions shall limit or eliminate any right or protection of a
Director of this Corporation under this Section 8.1 for or with respect to any
acts or omissions of such Director occurring prior to such amendment or repeal.
8.2 Indemnification. The Corporation shall indemnify (A) its
Directors and officers, whether serving the Corporation or at its request, any
other entity, to the full extent required or permitted by the DGCL now or
hereafter in force, including the advance of expenses under the procedures and
to the full extent permitted by law, and (B) other employees and agents of the
Corporation to such extent as shall be expressly authorized by the Board of
Directors or the ByLaws and as permitted by law. The foregoing rights of
indemnification shall not be exclusive of any other rights to which those
seeking indemnification may be entitled. The Board of Directors may take such
action as is necessary to carry out these indemnification provisions and is
expressly empowered to adopt, approve and amend from time to time such Bylaws,
resolutions or contracts implementing such provisions or such further
indemnification arrangements as may be permitted by law. No amendment of this
Certificate of Incorporation or repeal of any of its provisions shall limit or
eliminate the right to indemnification provided under this Section 8.2 with
respect to any acts or omissions occurring prior to such amendment or repeal.
IN WITNESS WHEREOF, this Restated Certificate of
Incorporation, which restates, integrates and amends the provisions of the
certificate of incorporation of the Corporation, and which has been duly adopted
by the stockholders of the Corporation in accordance with the provisions of
Sections 242 and 245 of the Delaware General Corporation Law, has been executed
by Steven Rosenberg, its Vice President, this 23rd day of March, 1999.
COOPER LIFE SCIENCES, INC.
By: /s/ Steven Rosenberg
_____________________________________
Steven Rosenberg
Vice President
8
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<PAGE>
Exhibit No. 3.2
AMENDED AND RESTATED BYLAWS
OF
BERKSHIRE BANCORP INC.
ARTICLE I
OFFICES
1.1 Registered Office. The location of the registered office
of the Corporation shall be in the City of Wilmington, County of New Castle,
State of Delaware.
1.2 Other Offices. The Corporation may, in addition to its
registered office in the State of Delaware, establish and maintain an office or
offices at such place or places as the Board of Directors may from time to time
determine.
ARTICLE II
CORPORATE SEAL
2.1 Form, etc. The corporate seal of the Corporation shall
have inscribed thereon the name of the Corporation and shall be in such form as
the Board of Directors may determine. Such seal may be used by causing it or a
facsimile thereof to be impressed, affixed or otherwise reproduced.
ARTICLE III
MEETINGS OF STOCKHOLDERS
3.1 Place of Meetings. All meetings of the stockholders shall
be held at the registered office of the Corporation in the State of Delaware or
at such other place as shall be determined from time to time by the Board of
Directors.
3.2 Annual Meeting. The annual meeting of stockholders (the
"Annual Meeting") shall be held on such date and at such time as may be
determined from time to time by resolution of the Board of Directors. At the
Annual Meeting the stockholders shall elect, by a plurality vote, a Board of
Directors. Any other business which is properly brought before the Annual
Meeting may also be transacted thereat.
3.3 Quorum; Adjournment. The holders of a majority of the
stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business, except as may be otherwise
expressly provided by statute, by the Certificate of Incorporation (as it may be
amended from time to time [the "Certificate of Incorporation"]), or by the
Bylaws. Whether or not a quorum is present, the presiding officer at any meeting
of stockholders or the holders of a majority of the shares so represented
thereat, may at any time adjourn the meeting, without notice other than
announcement at the meeting (except as may be otherwise provided by law). At
such adjourned meeting at which the requisite amount of voting stock shall be
represented, any business may be transacted which might have been transacted at
the meeting as originally notified.
3.4 Manner of Voting. At all meetings of the stockholders,
each stockholder having the right to vote shall be entitled to vote in person,
or by duly executed proxy which complies with applicable law and which is filed
with the Secretary of the Corporation at or before the time of the meeting.
3.5 Required Vote. At each meeting of the stockholders, each
stockholder shall have one vote for each share of capital stock having voting
power, registered in his name on the books of the Corporation as of the record
date fixed in accordance with these Bylaws, or as otherwise determined, with
respect to such meeting. Except as otherwise expressly provided by law, by the
Certificate of Incorporation or by these Bylaws, each matter coming before any
meeting of the stockholders at which a quorum is present shall be decided
9
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by the vote of a majority of the number of shares of stock present in person or
represented by proxy at such meeting and entitled to vote thereon.
3.6 Notices. Notice of each meeting of the stockholders shall
be given to each stockholder entitled to vote thereat not less than 10 nor more
than 60 days before the date of the meeting. Such notice shall state the place,
date and hour of the meeting and, in the case of a special meeting, the purposes
for which the meeting is called.
3.7 Special Meetings. Special meetings of the stockholders,
for any purpose or purposes, may be called by the Chairman of the Board, the
President or the Board of Directors, and shall be called by the Secretary at the
request in writing of stockholders owning a majority of the capital stock of the
Corporation issued and outstanding and entitled to vote. Such request by the
stockholders shall state the purpose or purposes of the proposed meeting.
3.8 Business to be Transacted. The business transacted at each
special meeting shall be limited to the purpose or purposes stated in the notice
of such meeting.
3.9 Order of Business. The order of business at each meeting
of stockholders shall be determined by the presiding officer.
ARTICLE IV
DIRECTORS
4.1 Powers; Term. The business and affairs of the Corporation
shall be managed by or under the direction of the Board of Directors, which may
exercise all such powers of the Corporation, and do all such lawful acts, as
shall be permitted by law, the Certificate of Incorporation or the Bylaws. A
director need not be a stockholder of the Corporation. Each director shall hold
office until the next annual meeting of stockholders and until his successor has
been elected and qualified, or until his earlier death, incapacity, retirement,
resignation or removal.
4.2 Place of Meetings. The Board of Directors may hold its
meetings within or outside of the State of Delaware, at such place or places as
it may from time to time determine.
4.3 Size of Board. The number of directors comprising the
Board of Directors shall be such number, not to exceed eleven or be less than
three, as may be from time to time fixed by resolution of the Board of
Directors. In the event of any increase in the size of the Board of Directors,
the Board shall have power to elect each additional director to hold office
until the next annual meeting of stockholders and until his successor is elected
and qualified or until his earlier death, incapacity, retirement, resignation or
removal. In the event of any decrease in the size of the Board of Directors,
such decrease shall take effect at the time of such action by the Board only to
the extent that vacancies then exist; and to the extent that such decrease
exceeds the number of such vacancies, the decrease shall not become effective,
except as further vacancies may thereafter occur, until the time of and in
connection with the election of directors at the next succeeding Annual Meeting.
4.4 Vacancies. If the office of any director becomes vacant,
by reason of death, incapacity, retirement, resignation, removal or otherwise, a
majority of the directors then in office, although less than a quorum, may fill
the vacancy by electing a successor who shall hold office until the next annual
meeting of stockholders and until his successor is elected and qualified, or
until his earlier death, incapacity, retirement, resignation or removal.
4.5 Resignations. Any director may resign at any time by
giving written notice of his resignation to the Board of Directors. Any such
resignation shall take effect upon receipt thereof by the Board, or at such
later date as may be specified therein.
4.6 Committees of the Board. By resolutions adopted by the
Board of Directors, the Board may designate an Executive Committee and one or
more other committees, each such committee to consist of three or more directors
of
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the Corporation. The Executive Committee shall have and may exercise all the
powers and authority of the Board in the management of the business and affairs
of the Corporation (except as otherwise expressly limited by law), including the
power and authority to declare dividends and to authorize the issuance of stock,
and may authorize the seal of the corporation to be affixed to all papers which
may require it. Each such committee shall have such of the powers and authority
of the Board as may be provided from time to time in resolutions adopted by the
Board. The manner in which the Executive Committee and each such other committee
shall hold meetings and take actions shall be set forth in the resolutions of
the Board of Directors designating the Executive Committee or such other
committee.
4.7 Compensation. The directors shall receive such
compensation for their services as may be authorized by resolution of the Board
of Directors, which compensation may include an annual fee and a fixed sum for
expense of attendance at regular or special meetings of the Board or any
committee thereof. Nothing herein contained shall be construed to preclude any
director from serving the Corporation in any other capacity and receiving
compensation therefor.
4.8 Regular Meetings. Regular meetings of the Board of
Directors may be held without notice at such time and place, either within or
without the State of Delaware, as may be determined from time to time by
resolution of the Board.
4.9 Special Meetings. Special meetings of the Board of
Directors shall be held whenever called by the Chairman of the Board, the
President or the Board of Directors, upon at least 48 hours' prior notice to
each director. Except as may be otherwise specifically required by applicable
law, the Certificate of Incorporation or the Bylaws, the purpose or purposes of
any such special meeting need not be stated in such notice, although the time
and place of the meeting shall be stated.
4.10 Quorum. At all meetings of the Board of Directors, the
presence in person of a majority of the members of the Board of Directors shall
be necessary and sufficient to constitute a quorum for the transaction of
business, and, except as otherwise provided by law, by the Certificate of
Incorporation or by these Bylaws, if a quorum shall be present the act of a
majority of the directors shall constitute the act of the Board.
4.11 Written Consent. Any action required or permitted to be
taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting if all the members of the Board or such committee, as
the case may be, consent thereto in writing and the writing or writings are
filed with the minutes of proceedings of the Board or committee.
4.12 Telephone Conference Call. Any director may participate
in a meeting of the Board, or any committee designated by the Board, by means of
a conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this sentence shall constitute presence in person at such
meeting.
4.13 Preferred Directors. Anything herein contained to the
contrary notwithstanding, whenever the holders of one or more classes or series
of Preferred Stock shall have the right, voting separately as a class or series,
to elect directors, the election, term of office, filling of vacancies, removal
and other features of such directorships shall be governed by the terms of the
resolutions applicable thereto adopted by the Board of Directors pursuant to the
Certificate of Incorporation, and such directors so elected shall not be subject
to the provisions of this Article IV to the extent that the features of their
directorships are inconsistent therewith.
ARTICLE V
OFFICERS
5.1 General. The officers of the Corporation shall be chosen
by the Board of Directors and shall be a Chairman of the Board, a President, one
or more Vice Presidents, a Secretary and a Treasurer. The Board may also
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choose one or more Assistant Secretaries and Assistant Treasurers, and such
other officers as it deems to be necessary or desirable. Any number of offices
may be held by the same person. Except for the Chairman of the Board, an officer
need not be a member of the Board of Directors.
5.2 Compensation. The salaries of all officers of the
Corporation shall be fixed by the Board of Directors, or in such manner as the
Board may prescribe.
5.3 Terms of Office. The officers of the Corporation shall
hold office for such terms as shall be determined by the Board of Directors. Any
officer may be at any time removed from office by the Board of Directors, with
or without cause. If the office of any officer becomes vacant for any reason,
the vacancy may be filled by the Board of Directors.
5.4 Chairman of the Board. The Chairman of the Board shall
preside at all meetings of the stockholders and of the Board of Directors. He
shall also have such other duties as may be from time to time assigned to him by
the Board of Directors.
5.5 President. The President shall be the chief executive
officer of the Corporation. Subject to the supervision and direction of the
Board of Directors, he shall have primary responsibility for managing the
business and affairs of the Corporation. He shall have supervisory powers over
all of the other officers of the Corporation (other than the Chairman of the
Board), and shall have all of the powers and duties usually and customarily
associated with the office of the President. In the absence or disability of the
Chairman of the Board, the President shall preside at meetings of the
stockholders and, if he is a member of the Board of Directors, at meetings of
the Board of Directors.
5.6 Vice Presidents. The Vice Presidents shall have such
powers and duties as the Board of Directors or the President may from time to
time prescribe.
5.7 Secretary. The Secretary shall attend all meetings of the
Board of Directors and of the stockholders, and shall record the minutes of all
proceedings in a book to be kept for that purpose. He shall perform like duties
for the committees of the Board when required. The Secretary shall give, or
cause to be given, notice of meetings of the stockholders, of the Board of
Directors and of the committees of the Board. He shall keep in safe custody the
seal of the Corporation, and when authorized by the President or a Vice
President, shall affix the same to any instrument requiring it, and when so
affixed it shall be attested by his signature or by the signature of an
Assistant Secretary. He shall have such other powers and duties as may be from
time to time delegated to him by the President.
5.8 Treasurer. The Treasurer shall have the custody of the
corporate funds and securities, and shall deposit or cause to be deposited under
his direction all moneys and other valuable effects in the name and to the
credit of the Corporation in such depositories as may be designated by the Board
of Directors or pursuant to authority granted by it. He shall render to the
President and the Board whenever they may require it an account of all his
transactions as Treasurer and of the financial condition of the Corporation. He
shall have such other powers and duties as may be delegated to him by the
President.
ARTICLE VI
STOCK
6.1 Form of Certificates. The certificates of stock of the
Corporation shall be numbered and shall be entered in the books of the
Corporation as they are issued. They shall exhibit the holder's name and number
of shares, and shall be signed by the President or a Vice President, and by the
Secretary or an Assistant Secretary.
6.2 Signatures. Any or all of the signatures on a stock
certificate may be a facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a
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certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the Corporation with the
same effect as if he or she were such officer, transfer agent or registrar at
the date of issue.
6.3 Lost Certificates. The Board of Directors may direct a new
certificate to be issued in place of any certificate theretofore issued by the
Corporation alleged to have been lost, stolen or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen or destroyed. When authorizing such issue of a new certificate, the
Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate, or his or her legal representative, to give the Corporation (i) an
indemnity undertaking in such form as the Board may deem to be appropriate,
and/or (ii) a bond in such amount as the Board may direct, as indemnity against
any claim that may be made against the Corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
6.4 Transfer. Stock of the Corporation shall be transferable
in the manner prescribed by applicable law and the Bylaws. Transfers of stock
shall be made on the books of the Corporation only by the person named in the
certificate or by his or her attorney lawfully constituted in writing and upon
the surrender of the certificate therefor, which shall be cancelled before a new
certificate shall be issued.
6.5 Record Date. In order that the Corporation may determine
the stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, or entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion or exchange of stock, or for the
purpose of any other lawful action, the Board of Directors may fix a record
date, which record date shall not precede the date upon which the resolution
fixing the record date is adopted by the Board of Directors. Except as may be
otherwise required by the Bylaws, by applicable law or stock exchange
regulations, or by a contractual undertaking which is binding upon the
Corporation, said record date shall not be more than 60 days nor less than 10
days before the date of such meeting, nor more than 60 days prior to any other
action. A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
6.6 Beneficial Owners. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares of capital stock to receive dividends, and to vote as such owner, and
to hold liable for calls and assessments a person registered on its books as the
owner of shares, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person,
whether or not it shall have express or other notice thereof, except as may be
otherwise provided by law.
ARTICLE VII
CHECKS
7.1 Signatures. All checks, drafts and other orders for the
payment of money and all promissory notes and other evidences of indebtedness of
the Corporation shall be signed by such officer or officers or such other person
as may be from time to time designated by the Board of Directors.
ARTICLE VIII
FISCAL YEAR
8.1 Determination. The fiscal year of the Corporation shall be
as determined from time to time by resolution duly adopted by the Board of
Directors.
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ARTICLE IX
NOTICES AND WAIVERS
9.1 Notices. Whenever by law, by the Certificate of
Incorporation or by these Bylaws it is provided that notice shall be given to
any director or stockholder, such notice shall be given in writing and shall be
deemed to have been duly given (i) on the date of delivery, if delivered
personally or by messenger, (ii) on the first business day following the date of
timely deposit with a nationally recognized overnight courier service, if sent
by such courier specifying next day delivery, (iii) upon receipt of confirmation
of transmission, if transmitted by telecopier; and (iv) on the third business
day after mailing, if mailed by postage prepaid first class mail.
9.2 Waivers. Whenever by law, by the Certificate of
Incorporation or by these Bylaws, a notice is required to be given, a written
waiver thereof, signed by the person entitled to such notice, whether before or
after the time stated therein, shall be deemed equivalent to notice. Attendance
of any stockholder or director at any meeting thereof shall constitute a waiver
of notice of such meeting by such stockholder or director, as the case may be,
except as may be otherwise provided by applicable law.
ARTICLE X
AMENDMENT OF BYLAWS
10.1 Adoption. The Bylaws of the Corporation may be altered,
amended or repealed, and new Bylaws may be adopted, by the stockholders or by
the Board of Directors; provided, however, that notice of the proposed change or
new Bylaw shall be given in the notice of the meeting.
ARTICLE XI
INDEMNIFICATION
11.1 Power to Indemnify in Actions, Suits or Proceedings other
than those by or in the Right of the Corporation. Subject to section 11.3
hereof, 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
(other than an action by or in the right of the Corporation) by reason of the
fact that such person is or was a director or officer of the Corporation, or is
or was a director or officer of the Corporation serving at the request of the
Corporation as a director, officer, trustee, administrator, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts (including attorneys' fees) paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding if such person acted in good faith and in a manner 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 such person's conduct was unlawful. 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 such person
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
reasonable cause to believe that such person's conduct was unlawful.
11.2 Power to Indemnify in Actions, Suits or Proceedings by or
in the Right of the Corporation. Subject to section 11.3 hereof, 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 or suit by or in the right
of the Corporation to procure a judgment in its favor by reason of the fact that
such person is or was a director or officer of the Corporation, or is or was a
director or officer of the Corporation serving at the request of the Corporation
as a director, officer, trustee, administrator, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise against expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection with the defense or settlement of such
action or suit if such person acted in good faith and in
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a manner such person reasonably believed to be in or not opposed to the best
interests of the Corporation; except that 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
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 excuses which the Court of Chancery or such other
court shall deem proper.
11.3 Authorization of Indemnification. Any indemnification
under this Article XI (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a determination that
indemnification of such person is proper in the circumstances because such
person has met the applicable standard of conduct set forth in section 11.1 or
section 11.2 hereof, as the case may be. Such determination shall be made with
respect to a person who is a director or officer at the time of such
determination, (i) by the Board of Directors by a majority vote of the directors
who were not parties to such action, suit or proceeding (the "Uninvolved
Directors"), even though less than a quorum, or (ii) by a committee of such
Uninvolved Directors designated by majority vote of the Uninvolved Directors,
even though less than a quorum, or (iii) if there are no Uninvolved Directors,
or if the Uninvolved Directors so direct, by independent legal counsel in a
written opinion, or (iv) by the stockholders. To the extent, however, that a
director or officer of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding described above, or in
defense of any claim, issue or matter therein, such person shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
such person in connection therewith, without the necessity of authorization in
the specific case.
11.4 "Good Faith" Defined. For purposes of any determination
under section 11.3 hereof, a person shall be deemed to have acted in good faith
and in a manner such person reasonably believed to be in or not opposed to the
best interests of the Corporation, or, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe such person's conduct was
unlawful, if such person's action is based on the records or books of account of
the Corporation or another enterprise, or on information supplied to such person
by the officers of the Corporation or another enterprise in the course of their
duties, or on the advice of legal counsel for the Corporation or another
enterprise or on information or records given or reports made to the Corporation
or another enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Corporation or
another enterprise. The term "another enterprise" as used in this section 11.4
shall mean any other corporation or any partnership, joint venture, trust,
employee benefit plan or other enterprise of which such person is or was serving
at the request of the Corporation as a director, officer, trustee,
administrator, employee or agent. The provisions of this section 11.4 shall not
be deemed to be exclusive or to limit in any way the circumstances in which a
person may be deemed to have met the applicable standard of conduct set forth in
section 11.1 or 11.2 hereof, as the case may be.
11.5 Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under section 11.3 hereof, and
notwithstanding the absence of any determination thereunder, any director or
officer may apply to any court of competent jurisdiction in the State of
Delaware for indemnification to the extent otherwise permissible under sections
11.1 and 11.2 hereof. The basis of such indemnification by a court shall be a
determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of
conduct set forth in section 11.1 or 11.2 hereof, as the case may be. Neither a
contrary determination in the specific case under section 11.3 hereof nor the
absence of any determination thereunder shall be a defense to such application
or create a presumption that the director or officer seeking indemnification has
not met any applicable standard of conduct. Notice of any application for
indemnification pursuant to this section 11.5 shall be given to the Corporation
promptly upon the filing of such application. If successful, in whole or in
part, the director or officer seeking
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indemnification shall also be entitled to be paid the expense of prosecuting
such application.
11.6 Expenses Payable in Advance. Expenses (including, without
limitation, attorneys' fees) actually and reasonably incurred by a director or
officer in defending or investigating a threatened or pending 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 such director or officer to repay such amount if it shall ultimately
be determined that such person is not entitled to be indemnified by the
Corporation as authorized in this Article XI.
11.7 Nonexclusivity of Indemnification and Advancement of
Expenses. The indemnification and advancement of expenses provided by or granted
pursuant to this Article XI shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses may be entitled
under any Bylaw, agreement, contract, vote of stockholders or disinterested
directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in such person's official
capacity and as to action in another capacity while holding such office, it
being the policy of the Corporation that indemnification of, and advances of
expenses to, the persons specified in section 11.1 and 2 hereof shall be made to
the fullest extent permitted by law. The provisions of this Article XI shall not
be deemed to preclude the indemnification of, and advancement of expenses to,
any person who is not specified in sections 11.1 or 11.2 of this Article XI but
whom the Corporation has the power or obligation to indemnify under applicable
law, or otherwise.
11.8 Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director or officer of the
Corporation or is or was a director or officer of the Corporation serving at the
request of the Corporation as a director, officer, trustee, administrator,
employee or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise against any liability asserted against
such person and incurred by such person in any such capacity or arising out of
such person's status as such, whether or not the Corporation would have the
power or the obligation to indemnify such person against such liability under
the provisions of this Article XI.
11.9 Certain Definitions. For purposes of this Article XI,
references to "the Corporation" shall include, in addition to the Corporation,
any constituent corporation (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate existence had
continued, would have had power and authority to indemnify its directors or
officers, so that any person who is or was a director or officer of such
constituent corporation, or is or was a director or officer of such constituent
corporation serving at the request of such constituent corporation as a
director, officer, trustee, administrator, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, shall stand in the same position under the provisions of this
Article XI with respect to the resulting or surviving corporation as such person
would have had with respect to such constituent corporation if its separate
existence had continued. For purposes of this Article XI, references to "fines"
shall include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the Corporation"
shall include any service as a director, officer, trustee, administrator,
employee or agent of the Corporation which imposes duties on, or involves
services by, such director or officer with respect to an employee benefit plan,
its participants or beneficiaries; and a person who acted in good faith and in a
manner such person reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the Corporation" as referred to in
this Article XI.
11.10 Survival of Indemnification and Advancement of Expenses.
The indemnification and advancement of expenses obligations set forth in this
Article XI shall inure to the benefit of the heirs, executors, administrators
and personal representatives of those persons entitled thereto and shall be
binding upon any successor to the Corporation to the fullest extent permitted
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by law. Neither any amendment or repeal of the provisions of this Article XI nor
adoption of any provision of the Certificate of Incorporation or of these Bylaws
which is inconsistent with the provisions of this Article XI shall adversely
affect any right or protection of a person existing at the time of such
amendment, repeal or adoption with respect to actions, suits or proceedings
relating to acts or omissions of such person occurring prior to such amendment,
repeal or adoption.
11.11 Limitation on Indemnification. Notwithstanding anything
contained in this Article XI to the contrary, except for proceedings to enforce
rights to indemnification and rights to advancement of expenses (which shall be
governed by section 11.6 hereof), the Corporation shall not be obligated to
indemnify, or advance expenses to, any director or officer in connection with a
proceeding (or part thereof) initiated by such person unless such proceeding (or
part thereof) was authorized or consented to by the Board of Directors.
11.12 Indemnification of Employees and Agents. The Corporation
may, to the extent authorized from time to time by the Board of Directors,
provide rights to indemnification and to the advancement of expenses to
employees and agents of the Corporation similar to those conferred in this
Article XI to directors and officers of the Corporation.
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Exhibit No. 10.8
BERKSHIRE BANCORP INC.
1999 Stock Incentive Plan
SECTION 1. PURPOSES; DEFINITIONS.
The purpose of this Plan is to enable the Company to offer to its key
employees and to key employees of its Subsidiaries and other persons who are
expected to contribute to the success of the Company, long term
performance-based stock and/or other equity interests in the Company, thereby
enhancing their ability to attract, retain and reward such key employees or
other persons, and to increase the mutuality of interest between those employees
or other persons and the stockholders of the Company.
For purposes of this Plan, the following terms shall be defined as set
forth below:
(a) "Board" means the Board of Directors of Berkshire Bancorp Inc.
(b) "Cause" shall have the meaning ascribed thereto in Section
5(b)(ix) below.
(c) "Change of Control" shall have the meaning ascribed thereto in
Section 9 below.
(d) "Code" means the Internal Revenue Code of 1986, as amended
from time to time, and any successor thereto.
(e) "Committee" means the Stock Incentive Committee of the Board
or any other committee of the Board which the Board may
designate.
(f) "Company" means Berkshire Bancorp Inc., a corporation
organized under the laws of the State of Delaware.
(g) "Deferred Stock" means Stock to be received, under an award
made pursuant to Section 7 below, at the end of a specified
deferral period.
(h) "Disability" means disability as determined under procedures
established by the Committee for purposes of this Plan.
(i) "Early Retirement" means retirement from active employment
with the Company or any Parent or Subsidiary prior to age 65,
with the approval of the Board or the Committee, for purposes
of one or more award(s) under this Plan.
(j) "Exchange Act" means the Securities Exchange Act of 1934, as
amended, as in effect from time to time.
(k) "Fair Market Value" of a share of Stock means, as of any given
date: (i) if the Stock is listed on a national securities
exchange or quoted on the National Association of Securities
Dealers, Inc. Automated Quotation System ("NASDAQ"), the last
sale price of a share of Stock on the last preceding day on
which the Common Stock was traded, as reported by such
exchange or NASDAQ, or on a composite tape reflecting
transactions on such exchange or by NASDAQ, as the case may
be; (ii) if the Stock is not listed on a national securities
exchange or quoted on the NASDAQ, but is traded in the
over-the-counter market, the average of the high bid and asked
prices for a share of Stock on the last preceding day for
which such quotations are reported by the National Quotation
Bureau, Inc.; and (iii) if the fair market value of a share of
Stock cannot be determined pursuant to clause (i) or (ii)
above, such price as the Board of Directors or the Committee,
as the case may be, shall determine, which determination shall
be conclusive as to the Fair Market Value of the Stock.
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(l) "Incentive Stock Option" means any Stock Option which is
intended to be and is designated as an "incentive stock
option" within the meaning of Section 422 of the Code.
(m) "Non-Qualified Stock Option" means any Stock Option that is
not an Incentive Stock Option.
(n) "Normal Retirement" means retirement from active employment
with the Company or any Subsidiary on or after age 65.
(o) "Other Stock-Based Award" means an award under Section 8 below
that is valued in whole or in part by reference to, or is
otherwise based upon Stock.
(p) "Parent" means any present or future parent of the Company, as
such term is defined in Section 424(e) of the Code, or any
successor thereto.
(q) "Performance Objectives" means performance objectives adopted
by the Committee pursuant to the Plan for key employees who
have received awards under the Plan. With respect to any award
to a key employee who is, or is determined by the Committee to
be likely to become a "covered employee" within the meaning of
Section 162(m) of the Code, the Performance Objectives shall
be limited to specified levels of growth in or peer company
comparisons based upon (i) appreciation in the price of Stock
plus reinvested dividends over a specified period of time,
(ii) return on assets or (iii) book value per share, as the
Committee may determine, and the attainment of such
Performance Objectives shall not be deemed to have occurred
until certified by the Committee. Except in the case of a
covered employee, if the Committee determines that a change in
business, operations, corporate structure or capital structure
of the Company, or the manner in which it conducts its
business, or other events or circumstances under the
Performance Objectives to be unsuitable, the Committee may
modify such Performance Objectives or the related minimum
acceptable level of achievement, in whole or in part, as the
Committee deems appropriate.
(r) "Plan" means this Berkshire Bancorp Inc. 1999 Stock Incentive
Plan, as hereinafter amended from time to time.
(s) "Restricted Stock" means Stock, received under an award made
pursuant to Section 6 below, that is subject to restrictions
imposed pursuant to said Section 6.
(t) "Retirement" means Normal Retirement or Early Retirement.
(u) "Rule 16b-3" means Rule 16b-3 of the General Rules and
Regulations under the Exchange Act, as in effect from time to
time, and any successor thereto.
(v) "Section 162(m)" means Section 162(m) of the Code, as in
effect from time to time, and any successor thereto.
(w) "Securities Act" means the Securities Act of 1933, as amended,
as in effect from time to time.
(x) "Stock" means the Common Stock of the Company, par value $.10
per share.
(y) "Stock Option" or "Option" means any option to purchase shares
of Stock which is granted pursuant to the Plan.
(z) "Subsidiary" means any present or future (A) subsidiary
corporation of the Company, as such term is defined in Section
424(f) of the Code, or (B) unincorporated business entity in
which the Company owns, directly or indirectly, 50% or more of
the voting rights, capital or profits.
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SECTION 2. ADMINISTRATION.
The Plan shall be administered by the Board, or at its discretion,
the Committee, the membership of which shall consist solely of two or more
members of the Board, each of whom shall serve at the pleasure of the Board and
shall be a "Non-Employee Director," as defined in Rule 16b-3, and an "outside
director," as defined in Section 162(m) of the Code, and shall be at all times
constituted so as not to adversely affect the compliance of the Plan with the
requirements of Rule 16b-3 or with the requirements of any other applicable law,
rule or regulation.
The Board or the Committee, as the case may be, shall have the
authority to grant, pursuant to the terms of the Plan, to officers and other key
employees or other persons eligible under Section 4 below: (i) Stock Options,
(ii) Restricted Stock, (iii) Deferred Stock, and/or (iv) Other Stock-Based
Awards.
For purposes of illustration and not of limitation, the Board or the
Committee, as the case may be, shall have the authority (subject to the express
provisions of this Plan):
(i) to select the officers and other key employees of the
Company or any Parent or Subsidiary and other persons
to whom Stock Options, Restricted Stock, Deferred
Stock and/or Other Stock-Based Awards may be from
time to time granted hereunder;
(ii) to determine the Incentive Stock Options,
Non-Qualified Stock Options, Restricted Stock,
Deferred Stock and/or Other Stock-Based Awards, or
any combination thereof, if any, to be granted
hereunder to one or more eligible persons;
(iii) to determine the number of shares of Stock to be
covered by each award granted hereunder;
(iv) to determine the terms and conditions, not
inconsistent with the terms of the Plan, of any award
granted hereunder (including, but not limited to,
share price, any restrictions or limitations, and any
vesting acceleration, exercisability and/or
forfeiture provisions);
(v) to determine the terms and conditions under which
awards granted hereunder are to operate on a tandem
basis and/or in conjunction with or apart from other
awards made by the Company or any Parent or
Subsidiary outside of this Plan;
(vi) to determine the extent and circumstances under which
Stock and other amounts payable with respect to an
award hereunder shall be deferred; and
(vii) to substitute (A) new Stock Options for previously
granted Stock Options, including previously granted
Stock Options which have higher option exercise
prices and/or containing other less favorable terms,
and (B) new awards of any other type for previously
granted awards of the same type, including previously
granted awards which contain less favorable terms.
Subject to Section 10 hereof, The Board or the Committee, as the case
may be, shall have the authority to (i) adopt, alter and repeal such
administrative rules, guidelines and practices governing this Plan as it shall,
from time to time, deem advisable, (ii) interpret the terms and provisions of
this Plan and any award issued under this Plan (and to determine the form and
substance of all agreements relating thereto), and (iii) to otherwise supervise
the administration of the Plan.
Subject to the express provisions of the Plan, all decisions made by
the Board or the Committee, as the case may be, pursuant to the provisions of
the
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Plan shall be made in the Board or the Committee's sole and absolute discretion
and shall be final and binding upon all persons, including the Company, its
Parent and Subsidiaries and the Plan participants.
SECTION 3. STOCK SUBJECT TO PLAN.
The total number of shares of Stock reserved and available for
distribution under this Plan shall be 200,000 shares. Such shares may consist,
in whole or in part, of authorized and unissued shares or treasury shares.
If any shares of Stock that have been optioned cease to be subject to a
Stock Option for any reason, or if any shares of Stock that are subject to any
Restricted Stock award, Deferred Stock award or Other Stock-Based Award are
forfeited or any such award otherwise terminates without the issuance of such
shares, such shares shall again be available for distribution under the Plan.
In the event of any merger, reorganization, consolidation,
recapitalization, stock dividend, stock split, extraordinary distribution with
respect to the Stock or other change in corporate structure affecting the Stock,
such substitutions or adjustments shall be made in the (A) aggregate number and
kind of shares reserved for issuance under this Plan, (B) number, kind and
exercise price of shares of Stock subject to outstanding Options granted under
this Plan, and (C) number, kind, purchase price and/or appreciation base of
shares of Stock subject to other outstanding awards granted under this Plan, as
may be determined to be appropriate by the Board or the Committee, as the case
may be, in its sole discretion, in order to prevent dilution or enlargement of
rights; provided, however, that the number of shares subject to any award shall
always be a whole number. Such adjusted exercise price shall also be used to
determine the amount which is payable to the optionee upon the exercise by the
Board or the Committee, as the case may be, of the alternative settlement right
which is set forth in Section 5(b)(xi) below.
Subject to the provisions of the immediately preceding paragraph, the
maximum numbers of shares subject to Options, Restricted Stock awards, Deferred
Stock awards, and other Stock-Based awards to any employee who is employed by
the Company or any Parent or Subsidiary on the last day of any taxable year of
the Company, shall be 75,000 shares during the term of the Plan.
SECTION 4. ELIGIBILITY.
Officers and other key employees of the Company or any Parent or
Subsidiary (but excluding any person whose eligibility would adversely affect
the compliance of the Plan with the requirements of Rule 16b-3) who are at the
time of the grant of an award under this Plan employed by the Company or any
Parent or Subsidiary and who are responsible for or contribute to the
management, growth and/or profitability of the business of the Company or any
Parent or Subsidiary, are eligible to be granted Options and awards under this
Plan. In addition, Non-Qualified Stock Options and other awards may be granted
under the Plan to any person, including, but not limited to, independent agents,
consultants and attorneys who the Board or the Committee, as the case may be,
believes has contributed or will contribute to the success of the Company.
Eligibility under the Plan shall be determined by the Board or the Committee, as
the case may be.
The grants of Restricted Stock, Deferred Stock and Other Stock-Based
Awards under this Plan shall be earned by a participant on the basis of the
Company's financial performance over the period or periods for which the grants
were awarded on the basis of pre-established performance goals determined by the
Board or the Committee, as the case may be, in its sole discretion. The
performance measurement criteria used for such grants shall be limited to one or
more of: earnings per share, return on stockholders' equity, return on assets,
growth in earnings, growth in sales revenue, and stockholder returns. Such
criteria may be measured by the Company's results or the Company's performance
as measured against a group of comparable companies selected by the Committee.
In applying such criteria, earnings may
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be calculated based on the exclusion of discontinued operations and
extraordinary items. Subject to the adjustments permitted by Section 3 of this
Plan, the maximum number of shares of Stock that can be earned by, or for which
Options can be granted to, any one individual over any consecutive two year
period commencing on the effective date of this Plan is 100,000 shares. Subject
to such maximum number of shares of Stock, the amount, if any, that may be
earned by a participant receiving such grant or grants may vary in accordance
with the level of achievement of the performance goal or goals established by
the Board or the Committee, as the case may be. The Board or the Committee, as
the case may be, may, in its sole discretion, include additional conditions and
restrictions in the agreement entered into in connection with such awards under
this Plan.
SECTION 5. STOCK OPTIONS.
(a) GRANT AND EXERCISE. Stock Options granted under this Plan may
be of two types: (i) Incentive Stock Options and (ii)
Non-Qualified Stock Options. Any Stock Option granted under
this Plan shall contain such terms as the Board or the
Committee, as the case may be, may from time to time approve.
The Board or the Committee, as the case may be, shall have the
authority to grant to any optionee Incentive Stock Options,
Non-Qualified Stock Options, or both types of Stock Options,
and they may be granted alone or in addition to other awards
granted under this Plan. To the extent that any Stock Option
is not designated as an Incentive Stock Option or does not
qualify as an Incentive Stock Option, it shall constitute a
Non-Qualified Stock Option. The grant of an Option shall be
deemed to have occurred on the date on which the Board or the
Committee, as the case may be, by resolution, designates an
individual as a grantee thereof, and determines the number of
shares of Stock subject to, and the terms and conditions of,
said Option.
Anything in this Plan to the contrary notwithstanding, no term
of this Plan relating to Incentive Stock Options or any
agreement providing for Incentive Stock Options shall be
interpreted, amended or altered, nor shall any discretion or
authority granted under the Plan be exercised, so as to
disqualify this Plan under Section 422 of the Code, or,
without the consent of the Optionee(s) affected, to disqualify
any Incentive Stock Option under Section 422.
(b) TERMS AND CONDITIONS. Stock Options granted under this Plan
shall be subject to the following terms and conditions:
(i) OPTION PRICE. The option price per share of Stock
purchasable under a Stock Option shall be determined
by the Board or the Committee, as the case may be, at
the time of grant but shall be not less than 100%
(110% in the case of an Incentive Stock Option
granted to an optionee ("10% Stockholder") who, at
the time of grant, owns Stock possessing more than
10% of the total combined voting power of all classes
of stock of the Company or its Parent, if any, or its
Subsidiaries of the Fair Market Value of the Stock at
the time of grant.
(ii) OPTION TERM. The term of each Stock Option shall be
fixed by the Board or the Committee, as the case may
be, but no Incentive Stock Option shall be
exercisable more than ten years (five years, in the
case of an Incentive Stock Option granted to a 10%
Stockholder) after the date on which the Option is
granted.
(iii) EXERCISABILITY. Stock Options shall be exercisable at
such time or times and subject to such terms and
conditions as shall be determined by the Board or the
Committee, as the case may be, at the time of grant;
provided, however, that except as otherwise provided
in this Section 5 and Section 9 below, unless waived
by the Board or the Committee, as the
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case may be, at or after the time of grant, no Stock
Option shall be exercisable prior to the first
anniversary date of the grant of the Option. If the
Board or the Committee, as the case may be, provides,
in its discretion, that any Stock Option is
exercisable only in installments, the Board or the
Committee, as the case may be, may waive such
installment exercise provisions at any time at or
after the time of grant in whole or in part, based
upon such factors as the Board or the Committee, as
the case may be, shall determine.
(iv) METHOD OF EXERCISE. Subject to whatever installment,
exercise and waiting period provisions are applicable
in a particular case, Stock Options may be exercised
in whole or in part at any time during the option
period by giving written notice of exercise to the
Company specifying the number of shares of Stock to
be purchased. Such notice shall be accompanied by
payment in full of the purchase price which shall be
in cash unless otherwise provided in this clause (iv)
or in Section 5(b)(xi) below or, unless otherwise
provided in the Stock Option agreement referred to in
Section 5(b)(xii) below, in whole shares of Stock
which are already owned by the holder of the Option
or unless otherwise provided in the Stock Option
agreement referred to in Section 5(b)(xii) below,
partly in cash and partly in such Stock. Cash
payments shall be made by wire transfer, certified or
bank check or personal check, in each case payable to
the order of the Company; provided, however, that
the Company shall not be required to deliver
certificates for shares of Stock with respect to
which an Option is exercised until the Company has
confirmed the receipt of good and available funds in
payment of the purchase price thereof. Payments in
the form of Stock (which shall be valued at the Fair
Market Value of a share of Stock on the date of
exercise) shall be made by delivery of stock
certificates in negotiable form which are effective
to transfer good and valid title thereto to the
Company, free of any liens or encumbrances. In
addition to the foregoing, payment of the exercise
price may be made by delivery to the Company by the
optionee of an executed exercise form, together with
irrevocable instructions to a broker-dealer to sell
or margin a sufficient portion of the shares covered
by the option and deliver the sale or margin loan
proceeds directly to the Company. Except as otherwise
expressly provided in this Plan, no Option which is
granted to a person who is at the time of grant an
employee of the Company or a Subsidiary or Parent of
the Company may be exercised at any time unless the
holder thereof is then an employee of the Company or
of a Parent or a Subsidiary. The holder of an Option
shall have none of the rights of a stockholder with
respect to the shares subject to the Option until the
optionee has given written notice of exercise, has
paid in full for those shares of Stock and, if
requested by the Board or Committee, as the case may
be, has given the representation described in Section
12(a) below.
(v) TRANSFERABILITY; EXERCISABILITY. No Stock Option
shall be transferable by the optionee other than by
will or by the laws of descent and distribution;
provided, however, that a Non-Qualified Stock Option
shall be transferable or pursuant to a qualified
domestic relations order, and except as may be
otherwise required with respect to a Non-Qualified
Option pursuant to a qualified domestic relations
order, all Stock Options shall be exercisable, during
the optionee's lifetime, only by the optionee or his
or her guardian or legal representative.
(vi) TERMINATION BY REASON OF DEATH. Subject to Section
5(b)(x) below, if an optionee's employment by the
Company or any
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Parent or Subsidiary terminates by reason of death,
any Stock Option held by such optionee may thereafter
be exercised, to the extent then exercisable or on
such accelerated basis as the Board or Committee, as
the case may be, may determine at or after the time
of grant, for a period of one year (or such other
period as the Board or the Committee, as the case may
be, may specify at or after the time of grant) from
the date of death or until the expiration of the
stated term of such Stock Option, whichever period is
the shorter.
(vii) TERMINATION BY REASON OF DISABILITY. Subject to
Section 5(b)(x) below, if an optionee's employment by
the Company or any Subsidiary terminates by reason of
Disability, any Stock Option held by such optionee
may thereafter be exercised by the optionee, to the
extent it was exercisable at the time of termination
or on such accelerated basis as the Board or the
Committee, as the case may be, may determine at or
after the time of grant, for a period of three years
(or such other period as the Board or the Committee,
as the case may be, may specify at or after the time
of grant) from the date of such termination of
employment or until the expiration of the stated term
of such Stock Option, whichever period is the
shorter; provided, however, that if the optionee dies
within such three-year period (or such other period
as the Board or the Committee, as the case may be,
shall specify at or after the time of grant), any
unexercised Stock Option held by such optionee shall
thereafter be exercisable to the extent to which it
was exercisable at the time of death for a period of
one year from the date of death or until the
expiration of the stated term of such Stock Option,
whichever period is the shorter.
(viii) TERMINATION BY REASON OF RETIREMENT. Subject to
Section5(b)(x) below, if an optionee's employment by
the Company or any Parent or Subsidiary terminates by
reason of Normal Retirement, any Stock Option held by
such optionee may thereafter be exercised by the
optionee, to the extent it was exercisable at the
time of termination or on such accelerated basis as
the Board or the Committee, as the case may be, may
determine at or after the time of grant, for a period
of three years (or such other period as the Board or
the Committee, as the case may be, may specify at or
after the time of grant) from the date of such
termination of employment or the expiration of the
stated terms of such Stock Option, whichever period
is the shorter; provided, however, that if the
optionee dies within such three-year period (or such
other period as the Board or the Committee, as the
case may be, shall specify at or after the time of
grant), any unexercised Stock Option held by such
optionee shall thereafter be exercisable to the
extent to which it was exercisable at the time of
death for a period of one year from the date of death
or until the expiration of the stated terms of such
Stock Option, whichever period is the shorter. If an
optionee's employment with the Company or any Parent
or Subsidiary terminates by reason of Early
Retirement, the Stock Option shall thereupon
terminate; provided, however, that if the Board or
the Committee, as the case may be, so approves at the
time of Early Retirement, any Stock Option held by
the optionee may thereafter be exercised by the
optionee as provided above in connection with
termination of employment by reason of Normal
Retirement.
(ix) OTHER TERMINATION. Subject to the provisions of
Section 12(g) below and unless otherwise determined
by the Committee at or after the time of grant, if an
optionee's employment by the Company or any Parent or
Subsidiary terminates for any reason other than
death, Disability or Retirement, the
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Stock Option shall thereupon automatically terminate,
except that if the optionee is involuntarily
terminated by the Company or any Parent or a
Subsidiary without Cause (as hereinafter defined),
such Stock Option may be exercised for a period of
six months from the date of such termination or until
the expiration of the stated terms of such Stock
Option, whichever period is the shorter. For purposes
of this Plan, "Cause" shall mean (1) the conviction
of the optionee of a felony under Federal law or the
law of the state in which such action occurred, (2)
dishonesty by the optionee in the course of
fulfilling his or her employment duties, or (3) the
willful and deliberate failure on the part of the
optionee to perform his or her employment duties in
any material respect. In addition, with respect to an
option granted to an employee of the Company, a
Parent or a Subsidiary, for purposes of this Plan,
"Cause" shall also include any definition of "Cause"
contained in any employment agreement between the
optionee and the Company, Parent or Subsidiary, as
the case may be.
(x) ADDITIONAL INCENTIVE STOCK OPTION LIMITATION. In the
case of an Incentive Stock Option, the aggregate Fair
Market Value of Stock (determined at the time of
grant of the Option) with respect to which Incentive
Stock Options are exercisable for the first time by
an optionee during any calendar year (under all such
plans of optionee's employer corporation and its
Parent, if any, and Subsidiaries) shall not exceed
$100,000.
(xi) ALTERNATIVE SETTLEMENT OF OPTION. Upon the receipt of
written notice of exercise, the Board or the
Committee, as the case may be, may elect to settle
all or part of any Stock Option by paying to the
optionees an amount, in cash or Stock (valued at Fair
Market Value on the date of exercise), equal to the
excess of the Fair Market Value of one share of
Stock, on the date of exercise over the Option
exercise price, multiplied by the number of shares of
Stock with respect to which the optionee proposes to
exercise the Option. Any such settlements which
relate to Options which are held by optionees who are
subject to Section 16(b) of the Exchange Act shall
comply with the "window period" provisions of Rule
16b-3, to the extent applicable and with such other
conditions as the Board or Committee may impose. No
such discretion may be exercised unless the option
agreement permits the payment of the purchase price
in that manner.
(xii) STOCK OPTION AGREEMENT. Each grant of a Stock Option
shall be confirmed by, and shall be subject to the
terms of, an agreement executed by the Company and
the participant.
SECTION 6. RESTRICTED STOCK.
(a) GRANT AND EXERCISE. Shares of Restricted Stock may be issued
either alone or in addition to or in tandem with other awards
granted under this Plan. The Board or the Committee, as the
case may be, shall determine the eligible persons to whom, and
the time or times at which, grants of Restricted Stock will be
made, the number of shares to be awarded, the price (if any)
to be paid by the recipient, the time or times within which
such awards may be subject to forfeiture (the "Restriction
Period"), the vesting schedule and rights to acceleration
thereof, and all other terms and conditions of the awards. The
Board or the Committee, as the case may be, may condition the
grant of Restricted Stock upon the attainment of specified
Performance Objectives or such other factors as the Board or
the Committee, as the case may be, may determine.
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(b) TERMS AND CONDITIONS. Each Restricted Stock award shall be
subject to the following terms and conditions:
(i) Restricted Stock, when issued, will be represented by
a stock certificate or certificates registered in the
name of the holder to whom such Restricted Stock
shall have been awarded. During the Restriction
Period, certificates representing the Restricted
Stock and any securities constituting Retained
Distributions (as defined below) shall bear a
restrictive legend to the effect that ownership of
the Restricted Stock (and such Retained
Distributions), and the enjoyment of all rights
appurtenant thereto, are subject to the restrictions,
terms and conditions provided in this Plan and the
Restricted Stock agreement referred to in Section
6(b)(iv) below. Such certificates shall be deposited
by the holder with the Company, together with stock
powers or other instruments of assignment, endorsed
in blank, which will permit transfer to the Company
of all or any portion of the Restricted Stock and any
securities constituting Retained Distributions that
shall be forfeited or that shall not become vested in
accordance with this Plan and the applicable
Restricted Stock agreement.
(ii) Restricted Stock shall constitute issued and
outstanding shares of Common Stock for all corporate
purposes, and the issuance thereof shall be made for
at least the minimum consideration (if necessary) to
permit the shares of Restricted Stock to be deemed to
be fully paid and nonassessable. The holder will have
the right to vote such Restricted Stock, to receive
and retain all regular cash dividends and other cash
equivalent distributions as the Board may in its sole
discretion designate, pay or distribute on such
Restricted Stock and to exercise all other rights,
powers and privileges of a holder of Stock with
respect to such Restricted Stock, with the exceptions
that (A) the holder will not be entitled to delivery
of the stock certificate or certificates representing
such Restricted Stock until the Restriction Period
shall have expired and unless all other vesting
requirements with respect thereto shall have been
fulfilled; (B) the Company will retain custody of the
stock certificate or certificates representing the
Restricted Stock during the Restriction Period; (C)
other than regular cash dividends and other cash
equivalent distribution as the Board may in its sole
discretion designate, pay or distribute, the Company
will retain custody of all distributions ("Retained
Distributions") made or declared with respect to the
Restricted Stock (and such Retained Distributions
will be subject to the same restrictions, terms and
conditions as are applicable to the Restricted Stock)
until such time, if ever, as the Restricted Stock
with respect to which such Retained Distributions
shall have been made, paid or declared shall have
become vested and with respect to which the
Restriction Period shall have expired; (D) the holder
may not sell, assign, transfer, pledge, exchange,
encumber or dispose of the Restricted Stock or any
Retained Distributions during the Restriction Period;
and (E) a breach of any of the restrictions, terms or
conditions contained in this Plan or the Restricted
Stock agreement referred to in Section 6(b)(iv)
below, or otherwise established by the Committee with
respect to any Restricted Stock and Retained
Distributions will cause a forfeiture of such
Restricted Stock and any Retained Distributions with
respect thereto.
(iii) Upon the expiration of the Restriction Period with
respect to each award of Restricted Stock and the
satisfaction of any other applicable restrictions,
terms and conditions (A) all or part of such
Restricted Stock shall become vested in
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accordance with the terms of the Restricted Stock
agreement referred to in Section 6(b)(iv) below, and
(B) any Retained Distributions with respect to such
Restricted Stock shall become vested to the extent
that the Restricted Stock related thereto shall have
become vested. Any such Restricted Stock and Retained
Distributions that do not vest shall be forfeited to
the Company and the holder shall not thereafter have
any rights with respect to such Restricted Stock and
Retained Distributions that shall have been so
forfeited.
(iv) Each Restricted Stock award shall be confirmed by,
and shall be subject to the terms of, an agreement
executed by the Company and the participant.
SECTION 7. DEFERRED STOCK.
(a) GRANT AND EXERCISE. Deferred Stock may be awarded either alone
or in addition to or in tandem with other awards granted under
the Plan. The Board or the Committee, as the case may be,
shall determine the eligible persons to whom and the time or
times at which Deferred Stock shall be awarded, the number of
shares of Deferred Stock to be awarded to any person, the
duration of the period (the "Deferral Period") during which,
and the conditions under which, receipt of the Deferred Stock
will be deferred, and all the other terms and conditions of
the awards. The Board or the Committee, as the case may be,
may condition the grant of the Deferred Stock upon the
attainment of specified Performance Objectives or such other
factors or criteria as the Board or the Committee, as the case
may be, shall determine.
(b) TERMS AND CONDITIONS. Each Deferred Stock award shall be
subject to the following terms and conditions:
(i) Subject to the provisions of this Plan and Deferred
Stock agreement referred to in Section 7(b)(vii)
below, Deferred Stock awards may not be sold,
assigned, transferred, pledged or otherwise
encumbered during the Deferral Period. At the
expiration of the Deferral Period (or the Additional
Deferral Period referred to in Section 7(b)(vi)
below, where applicable), share certificates shall be
delivered to the participant, or his legal
representative, in a number equal to the shares of
Stock covered by the Deferred Stock award.
(ii) As determined by the Committee at the time of award,
amounts equal to any dividends declared during the
Deferral Period (or the Additional Deferral Period
referred to in Section 7(b)(vi) below, where
applicable) with respect to the number of shares
covered by a Deferred Stock award may be paid to the
participant currently or deferred and deemed to be
reinvested in additional Deferred Stock.
(iii) Subject to the provisions of the Deferred Stock
agreement referred to in Section 7(b)(vii) below and
this Section 7 and Section 12(g) below, upon
termination of participant's employment with the
Company or any Subsidiary for any reason during the
Deferral Period (or the Additional Deferral Period
referred to in Section 7(b)(vi) below, where
applicable) for a given award, the Deferred Stock in
question will vest or be fortified in accordance with
the terms and conditions established by the Board or
the Committee, as the case may be, at the time of
grant.
(iv) The Board or the Committee, as the case may be, may,
after grant, accelerate the vesting of all or any
part of any Deferred Stock award and/or waive the
deferral limitations for all or any part of a
Deferred Stock award.
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(v) In the event of hardship or other special
circumstances of a participant whose employment with
the Company or any Parent or Subsidiary is
involuntarily terminated (other than for Cause), the
Board or the Committee, as the case may be, may waive
in whole or in part any or all of the remaining
deferral limitations imposed hereunder or pursuant to
the Deferred Stock agreement referred to in Section
7(b)(vii) below with respect to any or all of the
participant's Deferred Stock.
(vi) A participant may request to, and the Board or the
Committee, as the case may be, may at any time, defer
the receipt of an award (or an installment of an
award) for an additional specified period or until a
specified period or until a specified event (the
"Additional deferral Period"). Subject to any
exceptions adopted by the Board or the Committee, as
the case may be, such request must be made at least
one year prior to expiration of the Deferral Period
for such Deferred Stock award (or such installment).
(vii) Each Deferred Stock award shall be confirmed by, and
shall be subject to the terms of, an agreement
executed by the Company and the participant.
SECTION 8. OTHER STOCK-BASED AWARDS.
(a) GRANT AND EXERCISE. Other Stock-Based Awards, which may
include performance shares and shares valued by reference to
the performance of the Company or any Subsidiary, may be
granted either alone or in addition to or in tandem with Stock
Options, Restricted Stock or Deferred Stock. The Board or the
Committee, as the case may be, shall determine the eligible
persons to whom, and the time or times at which, such awards
shall be made, the number of shares of Stock to be awarded
pursuant to such awards, and all other terms and conditions of
the awards. The Board or the Committee, as the case may be,
may also provide for the grant of Stock under such awards upon
the attainment of specified Performance Objectives and/or
completion of a specified performance period.
(b) TERMS AND CONDITIONS. Each Other Stock-Based Award shall be
subject to the following terms and conditions:
(i) Shares of Stock subject to an Other Stock-Based Award
may not be sold, assigned, transferred, pledged or
otherwise encumbered prior to the date on which the
shares are issued, or, if later, the date on which
any applicable restriction or period of deferral
lapses.
(ii) The recipient of an Other Stock-Based Award shall be
entitled to receive, currently or on a deferred
basis, dividends or dividend equivalents with respect
to the number of shares covered by the award, as
determined by the Board or the Committee, as the case
may be, at the time of the award. The Board or the
Committee, as the case may be, may provide that such
amounts (if any) shall be deemed to have been
reinvested in additional Stock.
(iii) Any Other Stock-Based Award and any Stock covered by
any Other Stock-Based Award shall vest or be
forfeited to the extent so provided in the award
agreement referred to in Section 8(b)(v) below, as
determined by the Board or the Committee, as the case
may be.
(iv) In the event of the participant's Retirement,
Disability or death, or in case of special
circumstances, the Board or the Committee, as the
case may be, may waive in whole or in part
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any or all of the limitations imposed hereunder (if
any) with respect to any or all of an Other
Stock-Based Award.
(v) Each Other Stock-Based Award shall be confirmed by,
and shall be subject to the terms of, an agreement
executed by the Company and by the participant.
SECTION 9. CHANGE OF CONTROL PROVISIONS.
(a) A "Change of Control" shall be deemed to have occurred on the tenth
day after:
(i) any individual, entity or group (as defined in
Section 13(d)(3) of the Exchange Act), other than
Moses Marx, becomes, directly or indirectly, the
beneficial owner (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of more than 25%
of the then outstanding shares of the Company's
capital stock entitled to vote generally in the
election of directors of the Company; or
(ii) the commencement of, or the first public announcement
of the intention of any individual, firm, corporation
or other entity or of any group (as defined in
Section 13(d)(3) of the Exchange Act) to commence, a
tender or exchange offer subject to Section 14(d)(1)
of the Exchange Act for any class of the Company's
capital stock; or
(iii) the stockholders of the Company approve (A) a
definitive agreement for the merger or other business
combination of the Company with or into another
corporation pursuant to which the stockholders of the
Company immediately prior to the transaction do not
own, immediately after the transaction, more than 50
of the voting power of the corporation that survives,
or (B) a definitive agreement for the sale, exchange
or other disposition of all or substantially all of
the assets of the Company, or (C) any plan or
proposal for the liquidation or dissolution of the
Company; provided, however, that a "Change of
Control" shall not be deemed to have taken place if
beneficial ownership is acquired (A) directly from
the Company, other than an acquisition by virtue of
the exercise or conversion of another security unless
the security so converted or exercised was itself
acquired directly from the Company, or (B) by, or a
tender or exchange offer is commenced or announced
by, the Company, any profit-sharing, employee
ownership or other employee benefit plan sponsored or
maintained by the Company; or any trustee of or
fiduciary with respect to any such plan when acting
in such capacity.
(b) In the event of a "Change of Control" as defined in Section
9(a) above, awards granted under this Plan shall be subject to
the following provisions, unless the provisions of this
Section 9 are suspended or terminated by the Board prior to
the occurrence of such a "Change of Control":
(i) all outstanding Stock Options which have been
outstanding for at least six months shall become
exercisable in full, whether or not otherwise
exercisable at such time, and any such Stock Option
shall remain exercisable in full thereafter until it
expires pursuant to its terms; and
(ii) all restrictions and deferral limitations contained
in Restricted Stock awards, Deferred Stock awards and
Other Stock-Based Awards granted under the Plan shall
lapse.
SECTION 10. AMENDMENTS AND TERMINATION.
The Board may at any time, and from time to time, amend any of the
provisions of this Plan, and may at any time suspend or terminate the Plan;
provided, however, that no such amendment shall be effective unless and until
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it has been duly approved by the holders of the outstanding shares of Stock if
the failure to obtain such approval would adversely affect the compliance of the
Plan with the requirements of Rule 16b-3, Section 162(m) or any other applicable
law, rule or regulation. The Board or the Committee, as the case may be, may
amend the terms of any Stock Option or other award theretofore granted under the
Plan; provided, however, that subject to Section 3 above, no such amendment may
be made by the Board or the Committee, as the case may be, which in any material
respect impairs the rights of the optionee or participant without the optionee's
or participant's consent, except for such amendments which are made to cause
this Plan to qualify for the exemption provided by Rule 16b-3 or to be in
compliance with the provisions of Section 162(m).
SECTION 11. UNFUNDED STATUS OF PLAN.
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 or optionee by the Company, nothing contained herein shall give any
such participant or optionee any rights that are greater than those creditor of
the Company.
SECTION 12. GENERAL PROVISIONS.
(a) The Board or the Committee, as the case may be, may require
each person acquiring shares of Stock Option or other award
under this Plan to represent to and agree with the Company in
writing that the optionee or participant is acquiring the
shares for investment without a view towards the distribution
thereof.
All certificates for shares of Stock delivered under this Plan
shall be subject to such stop transfer orders and other
restrictions as the Board or the Committee, as the case may
be, may deem to be advisable in order to assure compliance
with the rules, regulations, and other requirements of the
Securities and Exchange Commission, any stock exchange or
association upon which the Stock is then listed or quoted, any
applicable Federal or state securities law, and any applicable
corporate law, and the Board or the Committee, as the case may
be, may cause a legend or legends to be put on any such
certificates to make appropriate reference to such
restrictions.
(b) Nothing contained in the Plan shall prevent the Board from
adopting such other or additional incentive arrangements as it
may deem desirable, including, but not limited to, the
granting of stock options and the awarding of stock and cash
otherwise than under this Plan; and such arrangements may be
either generally applicable or applicable only in specific
cases.
(c) Nothing contained in this Plan or in any award hereunder shall
be deemed to confer upon any employee of the Company or any
Parent or Subsidiary any right to continued employment with
the Company or any Parent or Subsidiary, nor shall it
interfere in any way with the right of the Company or any
Parent or Subsidiary to terminate the employment of any of its
employees at any time.
(d) No later than the date as of which an amount first becomes
includable in the gross income of the participant for Federal
income tax purposes with respect to any Option or other award
under this Plan, the participant shall pay to the Company, or
make arrangements satisfactory to the Board or the Committee,
as the case may be, regarding the payment of, any Federal,
state and local taxes of any kind required by law to be
withheld or paid with respect to such amount. If permitted by
the Board or the Committee, as the case may be, tax
withholding or payment obligations may be settled with Stock,
including Stock that is part of the award that gives rise to
the withholding requirement. The obligations of the Company
under this Plan shall be conditional upon such payment or
arrangements, and the Company and any Subsidiary shall, to the
extent permitted by law, have the
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right to deduct any such taxes from any payment of any kind
otherwise due to the participant from the Company or any
Parent or Subsidiary.
(e) This Plan and all awards made and actions taken thereunder
shall be governed by and construed in accordance with the laws
of the State of Delaware (without regard to choice of law
provisions).
(f) Any Stock Option granted or other award made under this Plan
shall not be deemed compensation for purposes of computing
benefits under any retirement plan of the Company or any
Parent or Subsidiary and shall not affect any benefits under
any other benefit plan now or subsequently in effect under
which the availability or amount of benefits is related to the
level of compensation (unless required by specific reference
in any such other plan to awards under this Plan).
(g) A leave of absence, unless otherwise determined by the
Committee prior to the commencement thereof, shall not be
considered a termination of employment. Any Stock Option
granted or awards made under this Plan shall not be affected
by any change of employment, so long as the holder continues
to be an employee of the Company or any Parent or Subsidiary.
(h) Except as otherwise expressly provided in this Plan, no right
or benefit under this Plan may be alienated, sold, assigned,
hypothecated, pledged, exchanged, transferred, encumbranced or
charged, and any attempt to alienate, sell, assign,
hypothecate, pledge, exchange, transfer, encumber or charge
the same shall be void. No right or benefit hereunder shall in
any manner be subject to the debts, contracts or liabilities
of the person entitled to such benefit.
(i) The obligations of the Company with respect to all Stock
Options and awards under this Plan shall be subject to (A) all
applicable laws, rules and regulations, and such approvals by
any governmental agencies as may be required, including,
without limitation, the effectiveness of a registration
statement under the Securities Act, and (B) the rules and
regulations of any securities exchange or association on which
the Stock may be listed or quoted.
(j) It is the intention of the Company that this Plan complies
with the requirements of Rule 16b-3, Section 162(m) and all
other applicable laws, rules and regulations, and any
ambiguities or inconsistencies in the construction of any of
the provisions of this Plan shall be interpreted to give
effect to such intention. If any of the terms or provisions of
this Plan conflict with the requirements of Rule 16b-3, or
with the requirements of Section 162(m) or any other
applicable law, rule or regulation, and with respect to
Incentive Stock Options under Section 422 of the Code, then
such terms or provisions shall be deemed inoperative to the
extent they so conflict. With respect to Incentive Stock
Options, if this Plan does not contain any provision required
to be included herein under Section 422 of the Code. such
provision shall be deemed to be incorporated herein with the
same force and effect as if such provision had been set out at
length herein.
(k) The Board or the Committee, as the case may be, may terminate
any Stock Option or other award made under this Plan if a
written agreement relating thereto is not executed and
returned to the Company within 30 days after such agreement
has been delivered to the optionee or participant for his or
her execution.
(l) The grant of awards pursuant to this Plan shall not in any way
affect the right or power of the Company to make
reclassifications, reorganizations or other changes of or to
its capital or business structure or to merge, consolidate,
liquidate,
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sell or otherwise dispose of all or any part of its business
or assets.
SECTION 13. EFFECTIVE DATE OF PLAN.
The Plan shall be effective as of the date of the approval and
adoption thereof at a meeting of the stockholders of the Company.
SECTION 14. TERM OF PLAN.
This Plan shall terminate on the tenth anniversary of its effective
date, and no Stock Option, Restricted Stock Award, Deferred Stock award or Other
Stock-Based Award shall be granted pursuant to this Plan after said date. Awards
granted on or prior to such date may extend beyond that date.
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