<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-A/A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
VDC COMMUNICATIONS, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 061524454
- -------------------------------- --------------------------------
(Jurisdiction of incorporation (I.R.S. Employer Identification)
or organization)
75 Holly Hill Lane, Greenwich, CT 06830
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(Address of principal executive offices)
VDC CORPORATION LTD.
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(Former name if changed since last report)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
----------------------------------- -----------------------------------------
Common Stock, par value American Stock Exchange, Inc.
$.0001 per share
If this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box.[X]
If this form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box. [ ]
Securities Act registration statement file number to which this form relates:
333-63123
Securities to be registered pursuant to Section 12(g) of the Act: None
<PAGE>
Item 1. Description of Registrant's Securities to be Registered.
The information required by Item 202 of Regulation S-K is provided in
the registrant's registration statement on Form S-4 (Registration No.
333-63123), filed with the SEC on September 9, 1998 and is incorporated by
reference herein.
Item 2. Exhibits.
Exhibit No. Description Method of Filing
- ----------- ----------- ----------------
1. Specimen of Certificate representing the (1)
registrant's common stock.
2. Registrant's 1998 Stock Incentive Plan (1)
3. Certificate of Incorporation, as amended (2)
4. Amended and Restated Bylaws of the registrant (2)
5. Agreement and Plan of Merger between VDC (2)
Corporation Ltd. and the registrant
(1) Filed herewith.
(2) Filed as an Exhibit to the registrant's registration statement on Form
S-4, filed with the SEC on September 9, 1998 and incorporated by
reference herein.
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, as amended, the registrant has duly caused this registration
statement to be signed on its behalf by the undersigned, thereto duly
authorized.
VDC COMMUNICATIONS, INC.
Date: January 14, 1999 By: /s/ Frederick A. Moran
------------------------------
Frederick A. Moran
Chairman, C.E.O., and C.F.O.
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
1. Specimen of Certificate representing the registrant's
common stock.
2. Registrant's 1998 Stock Incentive Plan
<PAGE>
EXHIBIT 99.1
NUMBER SHARES
- -------- --------
VDC 0119 VDC COMMUNICATIONS, INC.
- -------- INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE --------
COMMON STOCK CUSIP 918218 10 1
SEE REVERSE FOR
CERTAIN DEFINITIONS
- --------------------------------------------------------------------------------
This Certifies that
SPECIMEN
is the owner of
- --------------------------------------------------------------------------------
FULLY PAID AND NON-ASSESSABLE SHARES OF THE PAR VALUE
OF $.0001 EACH OF THE COMMON STOCK OF
----------------------- -------------------------
- -------------------------- VDC COMMUNICATIONS, INC. ----------------------------
----------------------- -------------------------
CERTIFICATE OF STOCK
transferable on the books of the Corporation in person or by duly authorized
attorney upon surrender of this certificate properly endorsed. This certificate
and the shares represented hereby are issued and shall be held subject to all
of the provisions of the Certificate of Incorporation and of any amendments
thereto (copies of which are on file at the office of the Transfer Agent) to
all of which the holder by acceptance hereof assents. This certificate is not
valid unless countersigned by the Transfer Agent and registered by the
Registrar.
WITNESS the facsimile seal of the Corporation and the facsimile signature of its
duly authorized officers.
Dated
/s/ Frederick A. Moran /s/ Frederick A. Moran
FREDERICK A. MORAN, SECRETARY FREDERICK A. MORAN,
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
[CORPORATE SEAL OF VDC COMMUNICATIONS, INC. - DELAWARE, 1997]
COUNTERSIGNED AND REGISTERED:
AMERICAN STOCK TRANSFER & TRUST COMPANY
(NEW YORK, NY) TRANSFER AGENT
AND REGISTRAR
BY /S/ [ILLEGIBLE]
AUTHORIZED SIGNATURE
<PAGE>
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in commmon
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT - Custodian
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(Cust) (Minor)
under Uniform Gifts to Minors Act
---------------------------
(State)
Additional abbreviations may also be used though not in the above list.
For value received, hereby sell, assign and tranfer unto
-------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF THE ASSIGNEE
- --------------------------------------
- --------------------------------------
- --------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE OF ASSIGNEE)
- --------------------------------------------------------------------------------
SPECIMEN
- --------------------------------------------------------------------------------
- ------------------------------------------------------------------------- shares
of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
Attorney
- ------------------------------------------------------------------------
to transfer the said stock on the books of the within named Corporation with
full power of substitution in the premises.
Dated
------------------------
SPECIMEN
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NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
Signature(s) Guaranteed:
- --------------------------------------------------------------------------------
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO
S.E.C. RULE 17Ad-15.
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN, MUTILATED OR
DESTROYED, THE CORPORATION WILL REQUIRE A BOND OF INDEMNITY AS A CONDITION TO
THE ISSUANCE OF A REPLACEMENT CERTIFICATE.
<PAGE>
VDC Communications, Inc.
1998 STOCK INCENTIVE PLAN
Section 1. General Purpose of the Plan; Definitions. The name of the plan is
the VDC Communications, Inc. 1998 Stock Incentive Plan (the "Plan"). The
purpose of the Plan is to encourage and enable the officers, employees,
directors and consultants of VDC Communications, Inc. (the "Company") and its
Subsidiaries upon whose judgment, initiative and efforts the Company largely
depends for the successful conduct of its business to acquire a proprietary
interest in the Company. It is anticipated that providing such persons with a
direct stake in the Company's welfare will assure a closer identification of
their interests with those of the Company, thereby stimulating their efforts on
the Company's behalf and strengthening their desire to remain with the Company.
The following terms shall be defined as set forth below:
"Act" means the Securities Exchange Act of 1934, as amended.
"Award" or "Awards," except where referring to a particular category
of grant under the Plan, shall include Incentive Stock Options, Non-Qualified
Stock Options, Restricted Stock Awards, Stock Awards, Performance Share Awards
and Stock Appreciation Rights.
"Board" means the Board of Directors of the Company.
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor Code, and related rules, regulations and interpretations.
"Effective Date" means the date on which the Plan is approved by the
stockholders as set forth in Section 19.
"Fair Market Value" of the Stock on any given date means (i) if the
principal market for the Stock is the American Stock Exchange, Inc. ("AMEX"),
any other United States securities exchange or the National Market System of
National Association of the Securities Dealers Automated Quotation System
("NASDAQ"), the Fair Market Value on any date shall be the closing price
reported for the Stock on such exchange or system for such date or, if no sales
were reported for such date, for the last day preceding such date for which a
sale was reported, or (ii) if the principal market for the Stock is not a
national securities exchange or the NASDAQ National Market System, and the
Stock is admitted to quotation on NASDAQ, the Fair Market Value on any given
date shall be the average of the highest bid and lowest asked prices of the
Stock reported for such date or, if no bid and asked prices were reported for
such date, for the last day preceding such date for which such prices were
reported; and (iii) if the Fair Market Value cannot be determined on the basis
previously set forth in this definition on the date that Fair Market Value is
to be determined, the Board shall in good faith determine the Fair Market Value
of the Stock on such date.
<PAGE>
"Incentive Stock Option" means any Stock Option designated and
qualified as an "incentive stock option" as defined in Section 422 of the Code.
"Independent Director" means a member of the Board who is not an
employee or officer of the Company or any Subsidiary.
"Non-Qualified Stock Option" means any Stock Option that is not an
Incentive Stock Option.
"Option" or "Stock Option" means any Option to purchase shares of
Stock granted pursuant to Section 6.
"Performance Share Award" means any Award granted pursuant to Section
12.
"Restricted Stock Award" means any Award granted pursuant to Section
10.
"Stock" means the Common Stock, par value $.0001 per share, of the
Company, subject to adjustments pursuant to Section 14.
"Stock Appreciation Right" or "SAR" means any Award granted pursuant
to Section 7.
"Stock Award" means any award granted pursuant to Section 11.
"Subsidiary" means any corporation or other entity (other than the
Company) in any unbroken chain of corporations or other entities, beginning
with the Company, if each of the corporations or entities (other than the last
corporation or entity in the unbroken chain) owns stock or other interests
possessing 50% or more of the economic interest or the total combined voting
power of all classes of stock or other interests in one of the other
corporations or entities in the chain.
Section 2. Administration. The Plan shall be administered by the full
Board of Directors of the Company or a committee of such Board of Directors
comprised of two or more "Non-Employee Directors" within the meaning of Rule
16b-3(a)(3) promulgated under the Act (the "Plan Administrator"). Subject to
the provisions of the Plan, the Plan Administrator is authorized to:
(a) construe the Plan and any Award under the Plan;
(b) select the directors, officers, employees and consultants of
the Company and its Subsidiaries to whom Awards may be
granted;
(c) determine the number of shares of Stock to be
covered by any Award;
(d) determine and modify from time to time the terms and
conditions, including restrictions, of any Award and to
approve the form of written instrument evidencing Awards;
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(e) accelerate at any time the exercisability or vesting of all
or any portion of any Award and/or to include provisions in
awards providing for such acceleration;
(f) impose limitations on Awards, including limitations on
transfer and repurchase provisions;
(g) extend the exercise period within which Stock Options may be
exercised; and
(h) determine at any time whether, to what extent, and under what
circumstances Stock and other amounts payable with respect to
an Award shall be deferred either automatically or at the
election of the participant and whether and to what extent
the Company shall pay or credit amounts constituting interest
(at rates determined by the Plan Administrator) or dividends
or deemed dividends on such deferrals.
The determination of the Plan Administrator on any such matters shall be
conclusive.
Section 3. Delegation of Authority to Grant Awards. The Plan
Administrator, in its discretion, may delegate to the Co-Chairmen of the
Company all or part of the Plan Administrator's authority and duties with
respect to granting Awards to individuals who are not subject to the reporting
provisions of Section 16 of the Act or "covered employees" within the meaning
of Section 162(m) of the Code. The Plan Administrator may revoke or amend the
terms of such a delegation at any time, but such revocation shall not
invalidate prior actions of the Co-Chairmen that were consistent with the terms
of the Plan.
Section 4. Eligibility. Directors, officers, employees and consultants
of the Company or its Subsidiaries who, in the opinion of the Plan
Administrator, are mainly responsible for the continued growth and development
and future financial success of the business shall be eligible to participate
in the Plan. In addition, Independent Directors are eligible to receive an
automatic grant of Stock Options pursuant to Section 9 hereof.
Section 5. Shares Subject to the Plan. The initial number of shares of
Stock which may be issued pursuant to the Plan shall be 5,000,000. For purposes
of the foregoing limitation, the shares of Stock underlying any Awards which
are forfeited, canceled, reacquired by the Company, satisfied without the
issuance of Stock or otherwise terminated (other than by exercise) shall be
added back to the number of shares of Stock available for issuance under the
Plan. Notwithstanding the foregoing, on and after the date that the Plan is
subject to Section 162(m) of the Code, Stock Options with respect to no more
than 1,000,000 shares of Stock may be granted to any one individual participant
during any one calendar year period. To the extent that an SAR is granted in
conjunction with an Option, the shares covered by such SAR and Option shall be
counted only once. Common Stock to be issued under the Plan may be either
authorized and unissued shares or shares held in treasury by the Company.
Section 6. Stock Options. Options granted pursuant to the Plan may
be either Options which are Incentive Stock Options or Non-Qualified Stock
Options. Incentive Stock Options and Non-Qualified Stock Options shall be
granted separately hereunder. The Plan Administrator,
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<PAGE>
shall determine whether and to what extent Options shall be granted
under the Plan and whether such Options granted shall be Incentive Stock
Options or Non-Qualified Stock Options; provide, however, that: (a) Incentive
Stock Options may be granted only to employees of the Company or any Subsidiary
that is a "subsidiary corporation" within the meaning of Section 424(f) of the
Code; and (b) No Incentive Stock Option may be granted following the tenth
anniversary of the effective date of the Plan. The provisions of the Plan and
any stock Option agreement pursuant to which Incentive Stock Options shall be
issued shall be construed in a manner consistent with Section 422 of the Code
(or any successor provision) and rules and regulations promulgated thereunder.
Section 7. Stock Appreciation Rights. The Plan Administrator may, from
time to time, subject to the provisions of the Plan, grant SARs to eligible
participants. Such SARs may be granted (i) alone, (ii) simultaneously with the
grant of an Option (either an Incentive Stock Option or Non-Qualified Stock
Option) and in conjunction therewith or in the alternative thereto or (iii)
subsequent to the grant of a Non-Qualified Stock Option and in conjunction
therewith or in the alternative thereto.
(a) An SAR shall entitle the holder upon exercise thereof to
receive from the Company, upon a written request filed with
the Secretary of the Company at its principal offices (the
"Request"), (i) a number of shares of Stock (with or without
restrictions as to substantial risk of forfeiture and
transferability, as determined by the Plan Administrator in
its sole discretion), (ii) an amount of cash, or (iii) any
combination of shares of Stock and cash, as specified in the
Request (but subject to the approval of the Plan
Administrator in its sole discretion, at any time up to and
including the time of payment, as to the making of any cash
payment), having an aggregate Fair Market Value equal to the
product of (i) the excess of the Fair Market Value, on the
day of such Request, of one share of Stock over the exercise
price per share specified in such SAR or its related Option,
multiplied by (ii) the number of shares of Stock for which
such SAR shall be exercised.
(b) The exercise price of an SAR granted alone shall be
determined by the Plan Administrator, but may not be less
than the Fair Market Value of the underlying Stock on the
date of grant. An SAR granted simultaneously with or
subsequent to the grant of an Option and in conjunction
therewith or in the alternative thereto shall have the same
exercise price as the related Option, shall be transferable
only upon the same terms and conditions as the related
Option, and shall be exercisable only to the same extent as
the related Option; provided, however, that an SAR, by its
terms, shall be exercisable only when the Fair Market Value
of the Stock subject to the SAR and related Option exceeds
the exercise price thereof.
(c) Upon exercise of an SAR granted simultaneously with or
subsequent to an Option and in the alternative thereto, the
number of shares of Stock for which the related Option shall
be exercisable shall be reduced by the number of shares of
Stock for which the SAR shall have been exercised.
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<PAGE>
The number of shares of Stock for which an SAR shall be
exercisable shall be reduced upon any exercise of a related
Option by the number of shares of Stock for which such Option
shall have been exercised.
(d) Any SAR shall be exercisable upon such additional terms and
conditions as may be prescribed by the Plan Administrator.
Section 8. Terms of Options and SARs. Each Option or SAR granted under
the Plan shall be evidenced by an agreement between the Company and the person
to whom such Option or SAR is granted and shall be subject to the following
terms and conditions:
(a) Subject to adjustment as provided in Section 14 of this Plan,
the price at which each share covered by an Option may be
purchased shall be determined in each case by the Plan
Administrator; provided, however, that such price shall not,
in the case of an Incentive Stock Option, be less than the
Fair Market Value of the underlying Stock at the time the
Option is granted. If an optionee owns (or is deemed to own
under applicable provisions of the Code and rules and
regulations promulgated thereunder) more than ten percent
(10%) of the combined voting power of all classes of the
stock of the Company and an Option granted to such optionee
is intended to qualify as an Incentive Stock Option, the
Option price shall be no less than 110% of the Fair Market
Value of the Common Stock covered by the Option on the date
the Option is granted.
(b) The aggregate Fair Market Value of shares of Stock with
respect to which Incentive Stock Options are first
exercisable by the optionee in any calendar year (under all
plans of the Company) shall not exceed the limitations, if
any, imposed by Section 422(d) of the Code (or any successor
provision). If any Option designated as an Incentive Stock
Option, either alone or in conjunction with any other Option
or Options, exceeds the foregoing limitation, the portion of
such Option in excess of such limitation shall automatically
be reclassified (in whole share increments and without
fractional share portions) as a Non-Qualified Stock Option,
with later granted Options being so reclassified first.
(c) Non-Qualified Stock Options and SARs shall not be
transferable by the participant otherwise than by will or by
the laws of descent and distribution or pursuant to a
domestic relations order. After the death of the participant,
the Non-Qualified Stock Option or SAR may be transferred to
the Company upon such terms and conditions, if any, as the
Plan Administrator and the personal representative or other
person entitled to exercise the Option or SAR may agree
within the period specified in subsection 8(d)(iii) hereof.
(d) An Option or SAR may be exercised in whole at any time, or in
part from time to time, within such period or periods (not to
exceed ten years from the granting of the Option in the case
of an Incentive Stock Option) as
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may be determined by the Plan Administrator and set forth in
the agreement (such period or periods being hereinafter
referred to as the "Option Period"), provided that, unless
the agreement provides otherwise:
(i) If a participant who is an employee of the Company shall
cease to be employed by the Company, all Options and SARs
to which the employee is then entitled to exercise may be
exercised only within three months after the termination
of employment and within the Option Period or, if such
termination was due to disability or retirement (as
hereinafter defined), within two years after termination
of employment and within the Option Period.
Notwithstanding the foregoing: (a) in the event that any
termination of employment shall be for Cause (as defined
herein) or the participant becomes an officer or director
of, a consultant to or employed by a Competing Business
(as defined herein), during the Option Period, then any
and all Options and SARs held by such participant shall
forthwith terminate and all vested Options shall be
forfeited; and(b) the Plan Administrator may, in its sole
discretion, extend the Option Period of any Option or SAR
for up to three years from the date of termination of
employment regardless of the original Option Period. For
purposes of the Plan, retirement shall mean the
termination of employment with the Company, other than
for Cause, at any time after the age 65.
For purposes of this Plan, the term "Cause" shall mean
(a) with respect to an individual who is party to a
written agreement with the Company which contains a
definition of "cause" or "for cause" or words of similar
import for purposes of termination of employment
thereunder by the Company, "cause" or "for cause" as
defined in such agreement; (b) in all other cases (I) the
willful commission by an employee of a criminal or other
act that causes substantial economic damage to the
Company or substantial injury to the business reputation
of the Company; (II) the commission of an act of fraud in
the performance of such person's duties to or on behalf
of the Company; or (III) the continuing willful failure
of a person to perform the duties of such person to the
Company (other than a failure to perform duties resulting
from such person's incapacity due to illness) after
written notice thereof (specifying the particulars
thereof in reasonable detail) and a reasonable
opportunity to cure such failure are given to the person
by the Board of Directors of the Company or the Plan
Administrator. For purposes of the Plan, no act, or
failure to act, on the part of any person shall be
considered "willful" unless done or omitted to be done by
the person other than in good faith and without
reasonable belief that the person's action or omission
was in the best interest of the Company.
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For purposes of this Plan, the term "Competing Business"
shall mean: any person, corporation or other entity
engaged in the business of (a) providing
telecommunications services or (b) selling or attempting
to sell any product or service which is the same as or
similar to products or services sold by the Company
within the last year prior to termination of such
person's employment, consultant relationship or
directorship, as the case may be, hereunder.
(ii) If a participant who is a director of the Company shall
cease to serve as a director of the Company, any Options
or SARs then exercisable by such director may be
exercised only within three months after the cessation of
service and within the Option Period unless such
cessation was due to disability, in which case such
optionee may exercise such Option or SAR within two years
after cessation of service and within the Option Period.
Notwithstanding the foregoing: (a) if any cessation of
service as a director was the result of removal for Cause
or the participant becomes an officer or director of, a
consultant to or employed by a Competing Business during
the Option Period, any Options and SARs held by such
participant shall forthwith terminate; and (b) the Plan
Administrator may in its sole discretion extend the
Option Period of any Option or SAR for up to three years
from the date of cessation of service regardless of the
original Option Period;
(iii) If the participant shall die during the Option Period,
any Options or SARs then exercisable may be exercised
only within two years after the participant's death and
within the Option Period and only by the participant's
personal representative or persons entitled thereto under
the participant's will or the laws of descent and
distribution;
(iv) The Option or SAR may not be exercised for more shares
(subject to adjustment as provided in Section 14) after
the termination of the participant's employment,
cessation of service as a director or the participant's
death, as the case may be, than the participant was
entitled to purchase thereunder at the time of the
termination of the participant's employment or the
participant's death; and
(v) If a participant owns (or is deemed to own under
applicable provisions of the Code and regulations
promulgated thereunder) more than 10% of the combined
voting power of all classes of stock of the Company (or
any parent or subsidiary corporation of the Company) and
an Option granted to such participant is intended to
qualify as an Incentive Stock Option, the Option by its
terms may not be exercisable after the expiration of five
years from the date such Option is granted.
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(e) The Option exercise price of each share purchased pursuant to
an Option shall be paid in full at the time of each exercise
(the "Payment Date") of the Option (i) in cash; (ii) by
delivering to the Company a notice of exercise with an
irrevocable direction to a broker-dealer registered under the
Act to sell a sufficient portion of the shares and deliver
the sale proceeds directly to the Company to pay the exercise
price; (iii) in the discretion of the Plan Administrator,
through the delivery to the Company of previously-owned
shares of Common Stock having an aggregate Fair Market Value
equal to the Option exercise price of the shares being
purchased pursuant to the exercise of the Option; provided,
however, that shares of Common Stock delivered in payment of
the Option price must have been held by the participant for
at least six (6) months in order to be utilized to pay the
Option price; (iv) in the discretion of the Plan
Administrator, through an election to have shares of Common
Stock otherwise issuable to the optionee withheld to pay the
exercise price of such Option; or (v) in the discretion of
the Plan Administrator, through any combination of the
payment procedures set forth in subsections (i)-(iv) of this
Section 8(e).
(f) The Plan Administrator, in its discretion, may authorize
"stock retention Options" which provide, upon the exercise of
an Option previously granted under this Plan (a "prior
Option"), using previously owned shares, for the automatic
issuance of a new Option under this Plan with an exercise
price equal to the current Fair Market Value and for up to
the number of shares equal to the number of previously-owned
shares delivered in payment of the exercise price of the
prior Option. Such stock retention Option shall have the same
Option Period as the prior Option.
(g) Nothing contained in the Plan nor in any Award agreement
shall confer upon any participant any right with respect to
the continuance of employment by the Company nor interfere in
any way with the right of the Company to terminate his
employment or change his compensation at any time.
(h) The Plan Administrator may include such other terms and
conditions not inconsistent with the foregoing as the Plan
Administrator shall approve. Without limiting the generality
of the foregoing sentence, the Plan Administrator shall be
authorized to determine that Options or SARs shall be
exercisable in one or more installments during the term of
the Option, subject to the attainment of performance goals
and objectives and the right to exercise may be cumulative as
determined by the Plan Administrator.
Section 9. Independent Director Options. Anything to the contrary
notwithstanding, each Independent Director who is first elected or appointed to
serve as a director commencing June 1, 1998 shall automatically be granted
Non-Qualified Stock Options to purchase 25,000 shares of Stock. The Option
exercise price for Options granted to Independent Directors under the Plan will
be equal the Fair Market Value of the Stock on the date of grant. Options
granted
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to Independent Directors under the foregoing provisions will be
granted on the date that such Independent Director is first elected or
appointed to serve as a director and, so long as the Independent Director
continuously remains a director, will vest in equal annual installments over
three years commencing on the anniversary of the date of grant and will expire
ten years after grant; provided, however, that if the optionee ceases to serve
as a director, the Options will terminate ninety days after such cessation.
Section 10. Restricted Stock Awards.
(a) The Plan Administrator may grant Restricted Stock Awards to
any officer, employee or consultant of the Company and its
Subsidiaries. A Restricted Stock Award entitles the recipient
to acquire shares of Stock subject to such restrictions and
conditions as the Plan Administrator may determine at the
time of grant ("Restricted Stock"). Conditions may be based
on continuing employment (or other business relationship)
and/or achievement of pre-established performance goals and
objectives.
(b) Upon execution of a written instrument setting forth the
Restricted Stock Award and paying any applicable purchase
price, a participant shall have the rights of a shareholder
with respect to the Stock subject to the Restricted Stock
Award, including, but not limited to the right to vote and
receive dividends with respect thereto; provided, however,
that shares of Stock subject to Restricted Stock Awards that
have not vested shall be subject to the restrictions on
transferability described in Section 10(d) below. Unless the
Plan Administrator shall otherwise determine, certificates
evidencing the Restricted Stock shall remain in the
possession of the Company until such Restricted Stock is
vested as provided in Section 10(c) below.
(c) The Plan Administrator at the time of grant shall specify the
date or dates and/or the attainment of pre-established
performance goals, objectives and other conditions on which
Restricted Stock shall become vested, subject to such further
rights of the Company or its assigns as may be specified in
the instrument evidencing the Restricted Stock Award. If the
grantee or the Company, as the case may be, fails to achieve
the designated goals or the grantee's relationship with the
Company is terminated prior to the expiration of the vesting
period, the grantee shall forfeit all shares of Stock subject
to the Restricted Stock Award which have not then vested.
(d) Unvested Restricted Stock may not be sold, assigned
transferred, pledged or otherwise encumbered or disposed of
except as specifically provided herein or in the written
instrument evidencing the Restricted Stock Award.
Section 11. Stock Awards. The Plan Administrator may, in its sole
discretion, grant (or sell at a purchase price determined by the Plan
Administrator) a Stock Award to any officer, employee or consultant of the
Company or its Subsidiaries, pursuant to which such individual may receive
shares of Stock free of any vesting restrictions (a "Stock Award") under the
Plan.
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Stock Awards may be granted or sold as described in the preceding sentence in
respect of past services or other valid consideration, or in lieu of any cash
compensation due to such individual.
Section 12. Performance Share Awards. A Performance Share Award is an
Award entitling the recipient to acquire shares of Stock upon the attainment of
specified performance goals. The Plan Administrator may make Performance Share
Awards independent of or in connection with the granting of any other Award
under the Plan. Performance Share Awards may be granted under the Plan to any
officer, employee or consultant of the Company or its Subsidiaries, including
those who qualify for awards under other performance plans of the Company. The
Plan Administrator in its sole discretion shall determine whether and to whom
Performance Share Awards shall be made, the performance goals applicable under
each such Award, the periods during which performance is to be measured, and
all other limitations and conditions applicable to the awarded Performance
Shares; provided, however, that the Plan Administrator may rely on the
performance goals and other standards applicable to other performance plans of
the Company in setting the standards for Performance Share Awards under the
Plan.
Section 13. Tax Withholding.
(a) Whenever shares are to be issued or cash is to be paid under
the Plan, the Company shall have the right to require the
participant to remit to the Company an amount sufficient to
satisfy federal, state and local tax withholding requirements
prior to the delivery of any certificate for shares or any
proceeds; provided, however, that in the case of a
participant who receives an Award of shares under the Plan
which is not fully vested, the participant shall remit such
amount on the first business day following the Tax Date. The
"Tax Date" for purposes of this Section 13 shall be the date
on which the amount of tax to be withheld is determined. If a
participant makes a disposition of shares acquired upon the
exercise of an Incentive Stock Option within either two years
after the Option was granted or one year after its exercise
by the participant, the participant shall promptly notify the
Company and the Company shall have the right to require the
participant to pay to the Company an amount sufficient to
satisfy federal, state and local tax withholding
requirements.
(b) A participant who is obligated to pay the Company an amount
required to be withheld under applicable tax withholding
requirements may pay such amount (i) in cash; (ii) in the
discretion of the Plan Administrator, through the delivery to
the Company of previously-owned shares of Common Stock having
an aggregate Fair Market Value on the Tax Date equal to the
tax obligation provided that the previously owned shares
delivered in satisfaction of the withholding obligations must
have been held by the participant for at least six (6)
months; or (iii) in the discretion of the Plan Administrator,
through a combination of the procedures set forth in
subsections (i) and (ii) of this Section 13(b).
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(c) A participant who is obligated to pay to the Company an
amount required to be withheld under applicable tax
withholding requirements in connection with either the
exercise of a Non-Qualified Stock Option, or the receipt of a
Restricted Stock Award, Stock Award or Performance Share
Award under the Plan may, in the discretion of the Plan
Administrator, elect to satisfy this withholding obligation,
in whole or in part, by requesting that the Company withhold
shares of stock otherwise issuable to the participant having
a Fair Market Value on the Tax Date equal to the amount of
the tax required to be withheld; provided, however, that
shares may be withheld by the Company only if such withheld
shares have vested. Any fractional amount shall be paid to
the Company by the participant in cash or shall be withheld
from the participant's next regular paycheck.
(d) An election by a participant to have shares of stock withheld
to satisfy federal, state and local tax withholding
requirements pursuant to Section 13(c) must be in writing and
delivered to the Company prior to the Tax Date. Section 14.
Adjustment of Number and Price of Shares.
Any other provision of the Plan notwithstanding:
(a) If, through or as a result of any merger, consolidation, sale
of all or substantially all of the assets of the Company,
reorganization, recapitalization, reclassification, stock
dividend, stock split, reverse stock split or other similar
transaction, the outstanding shares of Stock are increased or
decreased or are exchanged for a different number or kind of
shares or other securities of the Company, or additional
shares or new or different shares or other securities of the
Company or other non-cash assets are distributed with respect
to such shares of Stock or other securities, the Plan
Administrator shall make an appropriate or proportionate
adjustment in (i) the number of Stock Options that can be
granted to any one individual participant, (ii) the number
and kind of shares or other securities subject to any then
outstanding Awards under the Plan, and (iii) the price for
each share subject to any then outstanding Stock Options
under the Plan, without changing the aggregate exercise price
(i.e., the exercise price multiplied by the number of shares)
as to which such Stock Options remain exercisable. The
adjustment by the Plan Administrator shall be final, binding
and conclusive.
(b) In the event that, by reason of a corporate merger,
consolidation, acquisition of property or stock, separation,
reorganization or liquidation, the Board of Directors shall
authorize the issuance or assumption of a stock Option or
stock Options in a transaction to which Section 424(a) of the
Code applies, then, notwithstanding any other provision of the
Plan, the Plan Administrator may grant an Option or Options
upon such terms
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and conditions as it may deem appropriate for the purpose of
assumption of the old Option, or substitution of a new Option
for the old Option, in conformity with the provisions of Code
Section 424(a) and the rules and regulations thereunder, as
they may be amended from time to time.
(c) No adjustment or substitution provided for in this Section 14
shall require the Company to issue or to sell a fractional
share under any stock Option agreement or share award
agreement and the total adjustment or substitution with
respect to each stock Option and share award agreement shall
be limited accordingly.
(d) In the case of a proposed (i) dissolution or liquidation of
the Company, (ii) merger, reorganization or consolidation in
which the Company is acquired by another person or entity
(other than a holding company formed by the Company), (iii)
sale of all or substantially all of the assets of the Company
to an unrelated person or entity, or (iv) sale of all of the
stock of the Company to a unrelated person or entity (in each
case, a "Fundamental Transaction"), all or any unexercised
portion of the Awards granted hereunder shall be terminated
within fifteen (15) days after written notice to the Award
holders of such proposed Fundamental Transaction, during
which fifteen-day period the Award holders may exercise the
Award or any part thereof, notwithstanding the fact that such
Awards may not have vested as of such period, unless
provision is made in connection with the Fundamental
Transaction for the substitution of such Awards with new
awards of the successor entity, with appropriate adjustment
as to the number and kind of shares and, if appropriate, the
per share exercise price as provided in Subsections (a) and
(b) of this Section 14. If the proposed Fundamental
Transaction is later abandoned and not consummated, such
Awards, to the extent not so exercised, shall be deemed
reinstated on their original term's set forth herein, as if
never terminated.
Section 15. Amendment and Discontinuance. The Board of Directors may
alter, amend, suspend or discontinue the Plan, provided that no such action
shall deprive any person without such person's consent of any rights
theretofore granted pursuant hereto.
Section 16. Compliance with Governmental Regulations. Notwithstanding
any provision of the Plan or the terms of any agreement entered into pursuant
to the Plan, the Company shall not be required to issue any shares hereunder
prior to registration of the shares subject to the Plan under the Securities
Act of 1933 or the Act, if such registration shall be necessary, or before
compliance by the Company or any participant with any other provisions of
either of those acts or of regulations or rulings of the Securities and
Exchange Commission thereunder, or before compliance with other federal and
state laws and regulations and rulings thereunder, including the rules of AMEX,
any applicable exchange or of the NASDAQ Stock Market. The Company shall use
its best efforts to effect such registrations and to comply with such laws,
regulations and rulings forthwith upon advice by its counsel that any such
registration or compliance is necessary.
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Section 17. Compliance with Section 16. With respect to persons
subject to Section 16 of the Act, transactions under this Plan are intended to
comply with all applicable conditions of Rule 16b-3 (or its successor rule and
shall be construed to the fullest extent possible in a manner consistent with
this intent ). To the extent that any Award fails to so comply, it shall be
deemed to be modified to the extent permitted by law and to the extent deemed
advisable by the Plan Administrator in order to comply with Rule 16b-3. .
Section 18. Participation by Foreign Nationals. The Plan Administrator
may, in order to fulfill the purposes of the Plan and without amending the
Plan, modify grants to foreign nationals or United States citizens employed
abroad in order to recognize differences in local law, tax policy or custom.
Section 19. Effective Date of Plan. The Plan became effective on September 4,
1998, the date of approval and adoption of the Plan by requisite vote of the
holders of the outstanding shares of Stock.
Section 19. Effective Date of Plan. The Plan became effective on
September 4, 1998, the date of approval and adoption of the Plan by requisite
vote of the holders of the outstanding shares of Stock.
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