<PAGE>
As filed with the Securities and Exchange Commission on _______________, 199_
Registration No. _______________
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
OF TRANSCISCO INDUSTRIES, INC.
____________________
TRANSCISCO INDUSTRIES, INC.
(Exact name of issuer as specified in its charter)
____________________
Delaware 94-2989345
(State of incorporation) (I.R.S. Employer Identification No.)
____________________
601 California Street, Suite 1301
San Francisco, California 94108
(Address of principal executive offices)
____________________
TRANSCISCO INDUSTRIES, INC.
AMENDED AND RESTATED (1994) STOCK OPTION PLAN
DIRECTORS' STOCK OPTION PLAN
STOCK PURCHASE PLAN
(Full Title of Plans)
____________________
STEVEN L. PEASE
Transcisco Industries, Inc.
601 California Street, Suite 1301
San Francisco, California 94108
(415) 477-9700
(Name, address and telephone number of agent for service)
Copies to:
JOSEPH S. RADOVSKY, ESQ.
RACHEL G. HARDIE, ESQ.
Greene, Radovsky, Maloney & Share
One Market, Suite 4200
San Francisco, California 94105
(415) 543-1400
____________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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<S> <C> <C> <C> <C>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered Share* Price* Fee*
- --------------------------------------------------------------------------------------------------------------
Common 1,360,000 $1.34 $1,822,400 $628.42
Stock shares
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- --------------------------------------------------------------------------------------------------------------
<FN>
* Pursuant to Rule 457(c), estimated solely for the purpose of calculating
the registration fee on the basis of the average of the high and low prices as
reported on the American Stock Exchange on March 27, 1995.
</TABLE>
This Registration Statement shall become effective upon filing in accordance
with Rule 462 under the Securities Act of 1933.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the Registration Statement in accordance with
Rule 428 under the Securities Act of 1933, as amended (the "Securities
Act"), and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
The Transcisco Industries, Inc. Amended and Restated (1994) Stock
Option Plan (the "Employee Plan") as amended and restated was adopted by the
registrant's stockholders on January 20, 1995.
The Transcisco Industries, Inc. Amended and Restated Directors' Stock
Option Plan (the "Directors' Plan") was adopted by the stockholders of the
registrant on January 20, 1995.
The Transcisco Industries, Inc. Stock Purchase Plan (the "Stock
Purchase Plan") was adopted by the registrant's board of directors on March 30,
1995.
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents filed by registrant with the Securities and
Exchange Commission (the "Commission") are incorporated by reference in this
Registration Statement:
1. Annual report on Form 10-K for the fiscal year ended December 31,
1993, which contains the financial statements for the registrant's latest fiscal
year. Effective as of March 31, 1994, the registrant changed its fiscal year
end from December 31 to March 31. Consequently, the latest annual report on
Form 10-K that the registrant has on file with the Commission is for the fiscal
year ended December 31, 1993. The registrant intends to file an annual report
on Form 10-K for the fiscal year ended March 31, 1995.
2. All other reports filed by registrant pursuant to Section 13(a)
of the Securities Exchange Act of 1934 since the end of registrant's last fiscal
year.
1
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3. The description of registrant's common stock contained in the
registrant's registration statement on Form 8-A filed with the Commission on
August 11, 1993 including any amendment or report filed for the purpose of
updating such description.
In addition, all documents subsequently filed by the registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, prior to the filing of a post-effective amendment which indicates that
all securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The consolidated financial statements (including schedules
incorporated by reference) of Transcisco Industries, Inc. appearing in
Transcisco Industries, Inc.'s Annual Report (Form 10-K) for the year ended
December 31, 1993, have been audited by Ernst & Young LLP, independent auditors,
as set forth in their report thereon included therein (which contains an
explanatory paragraph with respect to the litigation and other claims mentioned
in Note 9 to the consolidated financial statements) and incorporated herein by
reference. Such consolidated financial statements are incorporated herein by
reference in reliance upon such report given upon the authority of such firm as
experts in accounting and auditing.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The registrant has adopted provisions in its Certificate of
Incorporation that limit the liability of its directors and enable the
registrant to broaden the indemnification provided to its directors and
officers. As permitted by the Delaware General Corporation Law, directors will
not be liable for monetary damages arising from a breach of their fiduciary duty
as directors in certain circumstances. Such limitation does not affect
liability for any breach of a director's duty to the registrant or its
shareholders for (i) breaches of the director's duty of loyalty, (ii) acts or
omissions not in good faith or involving intentional misconduct or knowing
violations of law (iii) the payment of unlawful dividends or unlawful stock
repurchases or redemptions or (iv) transactions in which the director received
an improper personal benefit. Such limitation of liability does not affect the
availability of equitable remedies such as injunctive relief of rescission.
2
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The registrant's bylaws provide that the registrant shall indemnify
its directors and officers to the maximum extent permitted by Delaware law,
including circumstances in which indemnification is otherwise discretionary
under Delaware law. The registrant has also entered into indemnification
agreements with its officers and directors containing provisions which are in
some respects broader than the specific indemnification provisions contained in
the Delaware General Corporation Law. Such indemnification agreements may
require the registrant, among other things, to indemnify such officers and
directors against certain liabilities that may arise by reason of their status
or service as directors or officers if they acted in good faith and in a manner
they reasonably believed to be in or not opposed to the best interests of the
registrant and, with respect to any criminal proceeding, had no reasonable cause
to believe their conduct was unlawful, to advance their expenses incurred as a
result of any proceed against them as to which they could be indemnified, and to
obtain directors' and officers' insurance if available on reasonable terms.
The registrant understands that the staff of the Securities and
Exchange Commission is of the opinion that statutory, charter and contractual
provisions as are described above have no effect on claims arising under the
federal securities laws. The insurance carrier which provided the registrant's
directors and officers liability insurance has appealed a lower court decision
finding the carrier liable for amounts paid in settlement of the previously
reported DANIELS litigation. Mark C. Hungerford, one of the registrant's former
directors, has filed a contingent claim as an unsecured creditor in the
registrant's bankruptcy proceeding for indemnification in the event the carrier
is successful on appeal. If the insurance carrier is successful on the appeal,
the amount of Mr. Hungerford's claim would be $2.4 million. The registrant is
not aware of any other material threatened or ongoing litigation or proceeding
which may result in a claim for such indemnification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
INDEX TO EXHIBITS
Sequentially
Exhibit Numbered
No. Page
- ------- ------------
5 Opinion of Greene, Radovsky, Maloney & Share.
23 Consent of Ernst & Young
3
<PAGE>
99.1 The Transcisco Industries, Inc. Amended and
Restated (1994) Stock Option Plan
99.2 Transcisco Industries, Inc. Directors' Stock
Option Plan
99.3 Transcisco Industries, Inc. Stock Purchase Plan
ITEM 9. UNDERTAKINGS.
(a) The registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933, as amended;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the Registration Statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934, as amended, that are incorporated by reference in the Registration
Statement.
(2) That, for the purposes of determining any liability under the
Securities Act of 1933, as amended, each such post-effective amendment
shall be deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
4
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(b) The registrant hereby further undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934, as amended, that is incorporated
by reference in the Registration Statement shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8, and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of San Francisco, State of California, on March 30,
1995.
TRANSCISCO INDUSTRIES, INC.
By /s/ Steven L. Pease
-----------------------------
Steven L. Pease
President, Chief Executive
Officer, Chief Financial
Officer and Director
(Principal Executive Officer)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Eugene M. Armstrong
- ------------------------------
Eugene M. Armstrong Chairman of the March 30, 1995
Board of Directors
/s/ Thu-Huong Nguyen
- ------------------------------
Thu-Huong Nguyen Principal March 30, 1995
Accounting Officer
/s/ Ottokarl F. Finsterwalder
- ------------------------------
Ottokarl F. Director March 30, 1995
Finsterwalder
/s/ Walter E. Hoadley
- ------------------------------
Walter E. Hoadley Director March 30, 1995
/s/ William E. Greenwood
- ------------------------------
William E. Greenwood Director March 30, 1995
/s/ George A. Tedesco
- ------------------------------
George A. Tedesco Director March 30, 1995
Senior Vice
President,
Marketing & Sales
6
<PAGE>
EXHIBIT 5
March 30, 1995
Board of Directors
Transcisco Industries, Inc.
601 California Street, Suite 1301
San Francisco, CA 94108
Re: Registration Statement on Form S-8
----------------------------------
Gentlemen:
You have requested our opinion with respect to certain matters
described below relating to (i) 750,000 shares of the common stock of Transcisco
Industries, Inc. ("Transcisco") to be issued pursuant to the exercise of options
issued under the Transcisco Industries, Inc. Amended and Restated (1994) Stock
Option Plan (the "Employee Plan"), (ii) 100,000 shares of common stock to be
issued pursuant to the Transcisco's Directors' Stock Option Plan, and (iii)
510,000 shares of common stock to be issued pursuant to Transcisco's Stock
Purchase Plan (the "Stock Purchase Plan") (collectively, the "Common Shares")
pursuant to the Registration Statement on Form S-8 (the "Registration
Statement") filed by Transcisco on this date pursuant to the Securities Act of
1933, as amended (the "Securities Act").
In connection with our opinion, we have reviewed and relied upon the
Registration Statement, the Certificate of Incorporation and the Bylaws of
Transcisco; copies of resolutions of the board of directors of Transcisco
authorizing the issuance of the Common Shares and the filing of, and the
transactions described in, the Registration Statement; and such other records,
documents, instruments and certificates of public officials and of Transcisco as
we have deemed necessary for the purpose of rendering the opinions herein set
forth. In making such examination, we have assumed the genuineness of all
signatures and the authenticity of all items submitted to us as originals and
the conformity with originals of all items submitted to us as copies.
Based upon and subject to the foregoing, and subject to the
qualifications set forth herein, we are of the opinion that:
The Common Shares to be issued under the Employee Plan, the Directors'
Stock Option Plan and the Stock Purchase Plan and pursuant to the Registration
Statement are duly authorized and when issued, will be fully paid and
nonassessable, provided the full
<PAGE>
purchase price for each of the Common Shares is paid to and received by
Transcisco.
We hereby consent to the use of this opinion for filing with the
Registration Statement as Exhibit 5 thereto.
Very truly yours,
GREENE, RADOVSKY, MALONEY & SHARE
<PAGE>
EXHIBIT 23
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-8) pertaining to the Amended and Restated (1994)
Stock Option Plan, Directors' Stock Option Plan and Stock Purchase Plan of
Transcisco Industries, Inc., and to the incorporation by reference therein of
our report dated February 14, 1994, with respect to the consolidated financial
statements and schedules of Transcisco Industries, Inc. included in its Annual
Report (Form 10-K) for the year ended December 31, 1993, filed with the
Securities and Exchange Commission.
Ernst & Young
San Francisco, California
March 29, 1995
7
<PAGE>
EXHIBIT 99.1
TRANSCISCO INDUSTRIES, INC.
AMENDED AND RESTATED (1994)
STOCK OPTION PLAN
ARTICLE I
GENERAL
1. PURPOSE OF THE PLAN. The purpose of the Transcisco Industries,
Inc. Amended and Restated Stock Option Plan (the "Plan") is to enable Transcisco
Industries, Inc. (the "Company") to recognize and reward employees, consultants
and officers whose performance, contributions and skills promote the achievement
of the Company's long-term financial and business objectives, to afford them an
opportunity to acquire a proprietary interest in the Company, and to enable the
Company to enlist and retain in its employ the best available talent for the
successful conduct of its business. It is intended that this purpose will be
effected through the granting of both Nonstatutory Stock Options and Incentive
Stock Options, as defined below. This Plan is an amendment and restatement of
the Company's "Amended and Restated (1989) Stock Option and Stock Grant Plan."
2. DEFINITIONS. As used herein, the following definitions shall
apply:
(a) "BOARD" means the Board of Directors of the Company.
(b) "CODE" means the Internal Revenue Code of 1986, as amended.
(c) "COMMITTEE" means the Committee or Committees referred to in
paragraph 5 of this Article of the Plan.
(d) "COMMON STOCK" means the Common Stock, $0.01 par value (as
adjusted from time to time), of the Company.
(e) "COMPANY" means Transcisco Industries, Inc., a corporation
organized under the laws of the state of Delaware, or any successor corporation.
(f) "DIRECTOR" means a member of the Board.
(g) "DISABILITY" means a disability, whether temporary or
permanent, partial or total, as determined by the Committee.
(h) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
(i) "FAIR MARKET VALUE" means, as of any date, the value of
Common Stock determined as follows:
(i) the last reported sale price or, if no such reported
sale takes place on any such day, the average of the closing bid and asked
prices on the American Stock Exchange or other principal national securities
exchange on which the Common Stock is listed or admitted to trading, or
(ii) if the Common Stock shall then be quoted on the NASDAQ
System, the last reported sale price of the Common Stock of the Company on the
NASDAQ System or, if no such reported sale takes place on any such day, the
average of the closing bid and asked prices, or
(iii) if such Common Stock shall not be quoted on such NASDAQ
System nor listed or admitted to trading on a national securities exchange, then
the average of the closing bid and asked prices, as reported by THE WALL STREET
Journal for the over-the-counter market, or
(iv) if neither of the foregoing is applicable, then the Fair
Market Value of a share of Common Stock shall be determined by the Board of
Directors of the Company in its discretion.
(j) "INCENTIVE STOCK OPTION" means an Option intended to be and
designated as an "Incentive Stock Option" within the meaning of Section 422 of
the Code.
(k) "INSIDER" means a Participant who is an officer or Director
of the Company or other person whose transactions in Common Stock are subject to
Section 16(b) of the Exchange Act.
(l) "NONSTATUTORY STOCK OPTION" means any Option that is not an
Incentive Stock Option.
1
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(m) "OPTION" means any option to purchase shares of Common Stock
granted pursuant to Article II below.
(n) "OUTSIDE DIRECTOR" means a disinterested Director within the
meaning of Rule 16b-3 of the Exchange Act and an outside director within the
meaning of Section 162(m)(4)(c)(i) of the Code.
(o) "PARTICIPANT" means an individual selected by the Committee
to receive an Option under and pursuant to the terms of the Plan.
(p) "PLAN" means the Transcisco Industries, Inc. Amended and
Restated (1994) Stock Option Plan, as hereinafter amended from time to time.
(q) "SUBSIDIARY" means a corporation of which not less than
fifty percent (50%) of the voting shares are held by the Company or by a
Subsidiary, whether or not such corporation now exists or is hereafter organized
or acquired by the Company or by a Subsidiary.
(r) "TAX DATE" shall have the meaning set forth in paragraph 1
of Article III below.
3. ELIGIBLE PARTICIPANTS. Any consultant or officer or other
employee of the Company or of a Subsidiary whom the Committee deems to have the
potential to promote the achievement of the Company's long-term financial and
business objectives shall be eligible to receive Options under the plan. No
eligible employee shall be entitled to receive Options for more than Four
Hundred Thousand (400,000) shares in any thirty-six (36) month period. Unless
otherwise provided in the Treasury Regulations under Section 162(m) of the Code,
in the event that an Option is canceled, the shares which were the subject of
such canceled Option will continue to be counted when determining the number of
shares for which Options have been issued in any thirty-six (36) month period,
and the shares which are the subject of any replacement option shall be treated
as additional shares for purposes of calculating the limit provided for in this
paragraph. The reduction of the exercise price of an Option shall be deemed to
be the cancellation of the original Option and the grant of a new Option.
4. STOCK SUBJECT TO THE PLAN. Subject to paragraphs 2 and 3 of
Article III, the total number of shares of Common Stock reserved and available
for distribution pursuant to the Plan shall be Seven Hundred Fifty Thousand
(750,000) shares. Subject to paragraphs 2 and 3 of Article III below, if any
shares of Common Stock that have been optioned under an Option cease to be
subject to such Option, such shares shall again be available for distribution in
connection with future Option grants under the Plan.
5. ADMINISTRATION.
(a) PROCEDURE. The Plan shall be administered by a Committee
designated by the Board to administer the Plan, which Committee shall be
comprised of two or more persons, each of whom shall be an Outside Director.
Once appointed, the Committee shall continue to serve until otherwise directed
by the Board. From time to time the Board may change the size of the Committee,
appoint additional members thereof, remove members (with or without cause),
appoint new members in substitution therefor, and fill vacancies, however
caused, all to the extent permitted by Rule 16b-3, with respect to a plan
intended to qualify thereunder as a discretionary plan, and by Section 162(m) of
the Code and any Regulations promulgated thereunder.
(b) AUTHORITY. Subject to the general purposes, terms, and
conditions of the Plan, and to the direction of the Board, the Committee shall
have full power to implement and carry out the Plan including, but not limited
to, the following:
(i) to select the Participants to whom Options, may from time to time be
granted hereunder;
(ii) to determine whether and to what extent Options are granted
hereunder;
(iii) to determine the number of shares of Common Stock to be covered by
each such Option granted hereunder;
(iv) to approve forms of agreement for use under the Plan;
(v) to determine the terms and conditions, not inconsistent with the
terms of the Plan, of any Option granted hereunder, including, but not limited
to, the share price and any restriction or limitation, or any vesting
acceleration or waiver of forfeiture restrictions regarding any Option and/or
the shares of Common Stock relating thereto, based in each case on such factors
as the Committee shall determine, in its sole discretion;
(vi) to determine whether and under what circumstances an Option may be
settled in cash under Paragraph 11 of Article II instead of Common Stock;
(vii) to determine the form of payment that will be acceptable
consideration for exercise of an Option granted under the Plan; and
2
<PAGE>
(viii) to reduce the exercise price of any Option.
The Committee shall have the authority to construe and interpret the
Plan, to prescribe, amend and rescind rules and regulations relating to the
Plan, to correct any defect or omission or reconcile any inconsistency in the
Plan or any Option granted hereunder, and to make all other determinations
necessary or advisable for the administration of the Plan. It is the intent of
this provision to give the Committee discretion in administering the Plan and
carrying out its duties hereunder, including designating an administrator of the
Plan for day to day operations (the "Plan Administrator"). A majority of the
Committee shall constitute a quorum, and the acts of a majority of the quorum
shall be sufficient for the taking of any action under the Plan. No member of
the Committee shall be liable for any act done or determination made in good
faith under the terms of the Plan.
6. DURATION OF THE PLAN. The Plan shall remain in effect until the
earlier of the termination thereof by the Board or September 20, 2004, which is
ten years after the date the Plan was adopted by the Board.
ARTICLE II
OPTIONS
1. AWARD OF STOCK OPTIONS. The Committee, in its discretion, may
grant Options to Participants, and shall determine whether such Options shall be
Incentive Stock Options or Nonstatutory Stock Options. Each Option shall be
evidenced by a written Option agreement which shall expressly identify the
Option as an Incentive Stock Option or as a Nonstatutory Stock Option, and shall
be in such form and contain such provisions as the Committee shall from time to
time deem appropriate. Without limiting the foregoing, the Committee may, at
any time, or from time to time, authorize the Company, with the consent of the
respective recipients, to issue new Options including Options in exchange for
the surrender and cancellation of any or all outstanding Options or Rights. All
such Option agreements shall contain the terms and conditions discussed in the
remainder of this Article.
2. OPTION PRICE; NUMBER OF SHARES. The Option price, which shall be
approved by the Committee, may be less than the Fair Market Value of the Common
Stock at the time the Option is granted; provided, however, that in the case of
an Incentive Stock Option, the price shall be no less than one hundred percent
(100%) of the Fair Market Value of the Common Stock on the date the Option is
granted, subject to any additional conditions set out in paragraph 8 of this
Article. The Option agreement shall specify the number of shares of Common
Stock to which it pertains.
3. WAITING PERIOD AND EXERCISE DATES. At the time an Option is
granted, the Committee will determine the terms and conditions to be satisfied
before shares may be purchased, including the dates on which shares subject to
the Option may first be purchased. The Committee may specify that an Option may
not be exercised until the completion of the waiting period specified at the
time of grant, and any such period is referred to herein as the "Waiting
Period." At the time an Option is granted, the Committee shall fix the period
within which such Option may be exercised, which shall not be less than the
Waiting Period, if any, nor, in the case of an Incentive Stock Option, more than
ten (10) years from the date of grant.
4. FORM OF PAYMENT. The consideration to be paid for the shares of
Common Stock to be issued upon exercise of an Option, including the method of
payment, shall be determined by the Committee (and, in the case of an Incentive
Stock Option, shall be determined at the time of grant) and may consist entirely
of any of the following: (i) cash, (ii) certified or cashier's check, (iii)
promissory note, (iv) other shares of Common Stock which (x) either have been
owned by the optionee for more than six months on the date of surrender or were
not acquired, directly or indirectly, from the Company, and (y) have a Fair
Market Value on the date of surrender equal to the aggregate exercise price of
the shares as to which said Option shall be exercised, (v) delivery of a
properly executed exercise notice together with irrevocable instructions to a
broker to promptly deliver to the Company the amount of sale or loan proceeds
required to pay the exercise price, (vi) delivery of an irrevocable subscription
agreement for the shares which obligates the option holder to take and pay for
the shares not more than 12 months after the date of delivery of the
subscription agreement or (vii) any combination of the foregoing methods of
payment.
5. EFFECT OF TERMINATION OF EMPLOYMENT OR DEATH OF EMPLOYEE
PARTICIPANTS. In the event that an Optionee during his or her lifetime ceases
to be an employee of the Company or of any Subsidiary due to retirement or
disability, or if an employee dies while employed by the Company or any
Subsidiary, any Option, including any unexercised portion thereof, which was
otherwise exercisable on the date of termination of employment shall expire not
later than one year from such date, but if an Optionee ceases to be an employee
of the Company or a Subsidiary for any other reason then such Option shall
expire not later than ninety (90) days from such date; provided, however, that,
notwithstanding the foregoing, such Option shall not be exercisable after the
expiration of the term of such Option as set forth in the Option agreement. If
in any case the Committee shall determine that an employee shall have been
discharged for Just Cause (as defined below) such employee shall not thereafter
have any rights under the Plan or any Option that shall have been granted to him
or her under the Plan. For purposes of this Section, "Just Cause" means that
the termination of employment of an employee shall have taken place as a result
of (i) willful breach or neglect of assigned functions or duties; (ii) failure
or refusal to comply with the Company's rules, policies, and practices; (iii)
dishonesty; (iv) insubordination; (v) being under the
3
<PAGE>
influence of drugs (except to the extent medically prescribed) or alcohol while
on duty or on Company premises; (vi) conduct endangering or likely to endanger
the health or safety of another employee; or (vii) conviction of a felony. In
the event of the death of an Optionee, that portion of the Option which had
become exercisable on the date of death or termination (as the case may be)
shall be exercisable by his or her personal representatives, heirs or legatees.
In the event that an optionee ceases to be an employee of the Company or of any
Subsidiary for any reason, including death or retirement, prior to the lapse of
the Waiting Period, if any, his or her Option shall terminate and be null and
void.
6. LEAVE OF ABSENCE. The employment relationship shall not be
considered interrupted (i) in the case of sick leave, military leave or any
other leave of absence approved by the Board so long as the actual period of any
such leave does not exceed the period approved by the Company or (ii) if the
employee's right to reemployment is guaranteed by statute and such reemployment
occurs consistent with such statutory provisions. In the case of any employee
on an approved leave of absence, the Committee may make such provisions
respecting suspension of vesting of the Option while on leave from the employ of
the Company or a Subsidiary as it may deem appropriate, except that in no event
shall an Option be exercised after the expiration of the term set forth in the
Option Agreement.
7. ACCELERATION OF OPTION PERIOD. The Committee may accelerate the
earliest date on which outstanding Options (or any installments thereof) are
exercisable.
8. SPECIAL INCENTIVE STOCK OPTION PROVISIONS. In addition to the
foregoing, Options granted under the Plan which are intended to be Incentive
Stock Options under Section 422 of the Code shall be subject to the following
terms and conditions:
(i) DOLLAR LIMITATION. To the extent that the aggregate
Fair Market Value of the shares of Common Stock with respect to which Options
designated as Incentive Stock Options become exercisable for the first time by
any individual during any calendar year (under all plans of the Company) exceeds
One Hundred Thousand Dollars ($100,000), such Options shall be treated as
Nonstatutory Stock Options. For purposes of the preceding sentence, (i) Options
shall be taken into account in the order in which they were granted and (ii) the
Fair Market Value of the shares shall be determined as of the time the Option
with respect to such shares is granted.
(ii) 10% STOCKHOLDER. If any person to whom an Incentive
Stock Option is to be granted pursuant to the provisions of the Plan is, on the
date of grant, the owner of Common Stock, as determined under Section 424(d) of
the Code, possessing more than ten percent (10%) of the total combined voting
power of all classes of stock of the Company or of any Subsidiary, then the
following special provisions shall be applicable to the Option granted to such
individual:
(A) The Option price per share of the Common Stock
subject to such Incentive Stock Option shall not be less than one hundred ten
percent (110%) of the Fair Market Value of the Common Stock on the date of
grant; and
(B) The Option shall not have a term in excess of five
years from the date of grant.
Except as modified by the preceding provisions of this paragraph 8 and except as
otherwise required by Section 422 of the Code, all of the provisions of the Plan
shall be applicable to the Incentive Stock Options granted hereunder.
9. OTHER PROVISIONS. Each Option granted under the Plan may contain
such other terms, provisions, and conditions not inconsistent with the Plan as
may be determined by the Committee.
10. OPTIONS TO CONSULTANTS. Options granted to consultants shall not
be subject to Paragraphs 3 and 5 of this Article, but shall have such terms and
conditions pertaining to the Waiting Period (if any), exercise date, and effect
of termination of the consulting relationship as the Committee shall determine
in each case.
11. BUYOUT PROVISIONS. The Committee may at any time offer to buy out
for a payment in cash or Common Stock an Option previously granted, based on
such terms and conditions as the Committee shall establish and communicate to
the optionee at the time that such offer is made.
12. RULE 16b-3. Options granted to person subject to Section 16(b) of
the Exchange Act must comply with Rule 16b-3 and shall contain such additional
conditions or restrictions as may be required thereunder.
ARTICLE III
MISCELLANEOUS
1. STOCK WITHHOLDING TO SATISFY WITHHOLDING TAX OBLIGATIONS. When a
Participant incurs tax liability in connection with the exercise or vesting of
any Option, which tax liability is subject to tax withholding under applicable
tax laws, and the Participant is obligated to pay the Company an amount
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required to be withheld under applicable tax laws, the Participant may satisfy
the withholding tax obligation by electing to have the Company withhold from the
shares to be issued that number of shares having a Fair Market Value equal to
the amount required to be withheld determined on the date that the amount of tax
to be withheld is to be determined (the "Tax Date"). All elections by
Participant to have shares withheld for this purpose shall be made in writing in
a form acceptable to the Committee and shall be subject to the following
restrictions:
(a) the election must be made on or prior to the applicable Tax
Date;
(b) once made, the election shall be irrevocable as to the
particular shares as to which the election is made;
(c) all elections shall be subject to the consent or disapproval
of the Committee;
(d) if the Participant is an Insider, the election may not be made
within six months of the date of grant of the Option, provided, however, that
this limitation shall not apply in the event that death or Disability of the
optionee occurs prior to the expiration of the six-month period; and
(e) if the participant is an Insider, the election must be made
either six months prior to the Tax Date (as determined in accordance with
Section 83 of the Code) or in the 10-day period beginning on the third day
following the release of the Company's quarterly or annual summary statement of
sales or earnings.
In the event the election to have shares withheld is made by a participant
who is an Insider and the Tax Date is deferred until a period after exercise of
the Option because of the application of Section 83(b) of the Code, the
participant shall receive the full number of shares with respect to which the
exercise occurs, but such participant shall be unconditionally obligated to
tender back to the Company the proper number of shares on the Tax Date.
2. RECAPITALIZATION. In the event that there is any change in the
number of outstanding shares of Common Stock or of the capital structure of the
Company by reason of a recapitalization, reclassification, reorganization, stock
split, reverse stock split, combination of shares, stock dividend or similar
transaction, the number of shares available under the Plan shall be increased or
decreased proportionately, as the case may be, and the number of shares of
Common Stock deliverable in connection with any Option previously granted shall
be increased or decreased proportionately, as the case may be, without change in
the aggregate purchase price (where applicable).
3. REORGANIZATION. In case the Company is merged or consolidated
with another corporation and the Company is not the surviving corporation, or in
case the assets or stock of the Company is acquired by another person, or in
case of separation, reorganization, or liquidation of the Company, or similar
event (including a change in control, as determined by the Board), or the board
of directors of any corporation assuming the obligations of the Company
hereunder, shall, as to outstanding Options either (a) make appropriate
provisions for the protection of any such outstanding Options by the assumption
or substitution on an equitable basis of appropriate stock of the Company or of
the merged, consolidated, or otherwise reorganized corporation which will be
issuable in respect to the shares of Common Stock, provided that in the case of
Incentive Stock Options, such assumption or substitution shall comply with
Section 424(a) of the Code, or (b) upon written notice to the participant,
provide that the Option must be exercised within thirty (30) days of the date of
such notice or it will be terminated. In any such case, the Committee may, in
its discretion, advance the lapse of vesting periods, Waiting Periods, and
exercise dates.
4. EMPLOYMENT RELATIONSHIP. Nothing in the Plan or any award made
thereunder shall interfere with or limit in any way the right of the Company or
any Subsidiary to terminate any Participant's employment or consulting
relationship at any time, with or without cause, nor confer upon any Participant
any right to continue in the employ or service of the Company or any Subsidiary.
5. GENERAL RESTRICTION. Each award shall be subject to the
requirement that, if, at any time, the Committee shall determine, in its
discretion, that the listing, registration, or qualification of the shares
subject to such award upon any securities exchange or under any state or federal
law, or the consent or approval of any government regulatory body, is necessary
or desirable as a condition of, or in connection with, such award or the issue
or purchase of shares thereunder, such award may not be exercised in whole or in
part unless such listing, registration, qualification, consent, or approval
shall have been effected or obtained free of any conditions not acceptable to
the Board.
6. RIGHTS AS A STOCKHOLDER. The holder of an Option shall have no
rights as a stockholder with respect to any shares covered by the Option until
the date of exercise. Once an Option is exercised by the holder thereof, the
participant shall have the rights equivalent to those of a stockholder, and
shall be a stockholder when his or her holding is entered upon the records of
the duly authorized transfer agent of the Company. Except as otherwise
expressly provided in the Plan, no adjustment shall be made for dividends or
other rights for which the record date is prior to the date such holding is
entered upon the records of such transfer of agent.
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7. NONASSIGNABILITY OF OPTIONS. No Options issued hereunder shall be
assignable or transferable by the Participant except by will or by the laws of
descent and distribution and as otherwise consistent with the specific Plan
provisions relating thereto. During the life of the recipient, an Option shall
be exercisable only by him or her.
8. WITHHOLDING TAXES. Whenever, under the Plan, shares are to be
issued in satisfaction of Options granted hereunder, the Company shall have the
right to require the Participant to remit to the Company an amount sufficient to
satisfy federal, state, and local withholding tax requirements prior to the
delivery of any certificate or certificates for such shares. Whenever, under
the Plan, payments are to be made in cash, such payment shall be net of an
amount sufficient to satisfy federal, state, and local withholding tax
requirements.
9. NONEXCLUSIVITY OF THE PLAN. Neither the adoption of the Plan by
the Board, the submission of the Plan to the stockholders of the Company for
approval, nor any provision of the Plan shall be construed as creating any
limitation on the power of the Board to adopt such additional compensation
arrangements as it may deem desirable, including, without limitation, the
granting of stock options otherwise than under the Plan, and such arrangements
may be either generally applicable or applicable only in specific cases.
10. AMENDMENT, SUSPENSION OR TERMINATION OF THE PLAN. The Board may
at any time amend, alter, suspend, or discontinue the Plan, but no amendment,
alteration, suspension, or discontinuation shall be made which would impair the
rights of any grantee under any grant theretofore made, without his or her
consent. In addition, to the extent necessary and desirable to comply with Rule
16b-3 under the Exchange Act or under Sections 422 or 162(m) of the Code (or any
other applicable law or regulation), the Company shall obtain stockholder
approval of any Plan amendment in such a manner and to such a degree as
required.
11. EFFECTIVE DATE OF THE PLAN. The Plan shall become effective upon
approval of the Company's stockholders. The stockholders shall be deemed to
have approved this Plan only if it is approved at a duly noticed meeting of the
stockholders by a vote taken in such manner as required by the Company's
certificate of incorporation, its bylaws and the laws of the State of Delaware
at the time such vote is taken. Options may be granted and exercised under the
Plan only after there has been compliance with all applicable federal and state
securities laws.
c:\corporat\document\optplan.doc
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EXHIBIT 99.2
TRANSCISCO INDUSTRIES, INC.
AMENDED AND RESTATED
DIRECTORS' STOCK OPTION PLAN
Transcisco Industries, Inc. (the "Company"), in order to attract and
retain qualified members of its Board of Directors and to provide additional
incentive by offering them an opportunity to obtain a proprietary interest in
the Company, hereby authorizes non-qualified stock options to be granted to
members of the Board of Directors to purchase shares of the Common Stock of the
Company having a par value of $.01 per share (the "Common Stock") upon the
following terms and conditions, pursuant to this Amended and Restated Directors'
Stock Option plan (the "Plan").
1. NUMBER OF SHARES SUBJECT TO OPTION. The aggregate number of shares
which may be issued under the Plan is 100,000 shares of Common Stock. Such
shares may be either authorized but unissued, reacquired, or treasury shares.
If the Company shall effect one or more stock splits, stock dividends,
combinations, exchanges of shares or similar capital adjustments, the Committee
on Stock Options and Management of the Board of Directors of the Company shall
proportionately adjust the aggregate number and kind of shares with respect to
which options may be granted under the Plan. If any option granted hereunder,
or any portions thereof, shall expire or terminate for any reason without having
been exercised in full, the shares with respect to which it has been exercised
shall be available for further options.
2. ELIGIBILITY. Options may only be granted to members of the Board of
Directors.
3. GRANT AND TERMS OF OPTIONS.
(i) On the date of the annual meeting coincident with or first succeeding
a director's election to the Board of Directors (other than a re-election
for successive term), each director in office at the time of such meeting
(but not leaving office as of such meeting) will receive a grant of
options equal to the product of 2,000 times the number of years for which
the director was elected to the Board. Each option shall represent the
right to purchase one share of Common Stock. Payment of the option
exercise price must be made in cash. At each subsequent annual meeting
at which a director is re-elected, the director shall be granted an
additional number of options, equal to the product of 2,000 times the
number of years for which the director was reelected to the Board. If, in
any year, an insufficient number of shares are available for grant under
this Plan, each director shall receive a pro-rata allocation of options.
(ii) Each option shall become exercisable six months from the later of (a)
date of grant or (b) the date shareholders approve this Plan.
(iii) The option shall not be exercisable unless either the Common Stock
subject to the option has been registered under the Securities Act of
1933, as amended, or the optionee has furnished the Company with an
investment representation satisfactory to the Company.
(iv) The option shall not be transferable by the optionee otherwise than
by will or the laws of descent and distribution, and shall be exercisable
during his lifetime only by the optionee.
(v) The option shall be exercisable for five years from the date specified
in (ii) above, PROVIDED THAT in the event that an optionee resigns by
reason of permanent disability (as defined in Section 105(d)(4) of the
Internal Revenue Code of 1986), then the optionee may exercise any option
for one year from the date of resignation by reason of permanent
disability, and if the optionee resigns for any other reason, the
optionee may exercise any option for three months from the date of
resignation.
(vi) Each option shall have an exercise price equal to the fair market
value of the Common Stock on the date of grant as determined by the
average closing price of the Common Stock on the American Stock Exchange
for the 60 trading days preceding the date of grant.
4. STOCK OPTION AGREEMENT. The terms and conditions of the grant of each
option granted hereunder shall be embodied in a written agreement which shall
contain terms and conditions not inconsistent with the Plan and which shall
incorporate this Plan by reference. Such agreement shall also include the date,
name of optionee, number of shares to which it relates, and option exercise
price per share.
5. DEATH OF OPTIONEE. If an optionee entitles to exercise an option
dies, then such option may be exercised by the optionee's estate, and/or by a
person who acquires the right to exercise such
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option by bequest or inheritance or by reason of the death of the optionee,
provided that such exercise occurs prior to the expiration of the option and
within one year after death.
6. AMENDMENT. This Plan may be amended at any time and from time to time
by the Board of Directors of the Company, provided that no provision affecting
the aggregate number of shares which may be issued under the options granted
pursuant to this Plan, the class of persons eligible to receive such options, or
the timing, amount or exercise price of the option grants may be amended more
frequently than once every six months, other than to comply with changes in the
Internal Revenue Code of 1986, as amended, or the Employee Retirement Income
Security Act of 1975, as amended. Any amendment (i) which under the
requirements of applicable law must be approved by the stockholders of the
Company, or (ii) which must be approved by the stockholders of the Company in
order to maintain the continued qualification of the Plan under Rule 16b-3 of
the Securities Exchange Act of 1934, as amended, will be effective unless and
until such stockholder approval has been obtained. No amendment shall alter or
impair any of the rights or obligations or any person, without his consent,
under any option theretofore granted under this Plan.
7. TERMINATION. This Plan shall terminate upon the first of the
following dates or events to occur:
(a) upon the adoption of a resolution of the Board of Directors of the
Company terminating the Plan; or
(b) on December 31, 1999.
No termination of this Plan shall alter or impair any of the rights or
obligations of any person, without his consent, under any option theretofore
granted under the Plan.
8. STOCKHOLDER APPROVAL. The Plan shall be submitted to the stockholders
of Transcisco Industries, Inc. for their approval on or before November 16,
1994. The stockholders shall be deemed to have approved this Plan only if it is
approved at a duly called and held meeting of the stockholders in accordance
with the Company's Certificate of Incorporation, its Bylaws and the laws of the
State of Delaware.
9. EFFECT OF REORGANIZATION. In the event that (i) the Company is merged
with or consolidated into another corporation which is not the wholly owned
subsidiary of the Company or in which the stockholders of the Company,
immediately prior to such merger or consolidation, do not own more than fifty
percent (50%) of the voting stock and the Company is not the surviving
corporation and there shall be any change in the shares of Common Stock by
reason of such merger or consolidation, (ii) all or substantially all of the
assets of the Company are acquired by another corporation, or (iii) the Company
is reorganized, dissolved or liquidated (each such event in (i) , (ii) and (iii)
being hereinafter referred to as a "Reorganization Event"), then each option
shall be terminated, unless exercised within the thirty (30) days prior to the
effective date. Any such exercise shall be conditional upon the consummation of
the applicable Reorganization Event.
In the event of a change in the Common Stock which is limited to a change
in the designation thereof to "Capital Stock" or other similar designation, or
to a change in the par value thereof, or from par value to no par value, without
increase in the number of issued shares, the shares resulting from any such
change shall be deemed to be Common Stock within the meaning of the Plan.
10. WITHHOLDING TAXES. Whenever the Company proposes to deliver shares
of Common Stock under the Plan, the Company shall have the right to require the
individual who is to receive the shares to remit to the Company, prior to the
delivery of any certificate or certificates for such shares, an amount
sufficient to satisfy any Federal, state and/or local tax withholding
requirements.
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EXHIBIT 99.3
TRANSCISCO INDUSTRIES, INC.
STOCK PURCHASE PLAN
ARTICLE I.
GENERAL
1. PURPOSE OF THE PLAN. The purpose of the Transcisco Industries, Inc.
Stock Purchase Plan (the "Plan") is to enable Transcisco Industries, Inc. (the
"Company") to recognize and reward employees, consultants and officers whose
performance, contributions and skills promote the achievement of the Company's
long-term financial and business objectives, to afford them an opportunity to
acquire a proprietary interest in the Company, and to enable the Company to
enlist and retain in its employ the best available talent for the successful
conduct of its business. It is intended that this purpose will be effected
through the granting of stock purchase rights.
2. DEFINITIONS. As used herein, the following definitions shall apply:
(a) "BOARD" means the Board of Directors of the Company.
(b) "COMMITTEE" means the Committee or Committees referred to in
paragraph 5 of this Article of the Plan.
(c) "COMMON STOCK" means the Common Stock, $0.01 par value (as
adjusted from time to time), of the Company.
(d) "COMPANY" means Transcisco Industries, Inc., a corporation
organized under the laws of the state of Delaware, or any successor corporation.
(e) "DIRECTOR" means a member of the Board.
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(f) "DISABILITY" means a disability, whether temporary or permanent,
partial or total, as determined by the Committee.
(g) "PARTICIPANT" means an individual selected by the Committee to
receive a Right under and pursuant to the terms of the Plan.
(h) "PLAN" means the Transcisco Industries, Inc. Stock Purchase Plan,
as hereinafter amended from time to time.
(i) "RIGHT" means the Stock Purchase Rights granted pursuant to the
Plan.
(j) "STOCK PURCHASE RIGHT" means the right to purchase Common Stock
pursuant to a stock purchase agreement entered into between the Company and the
purchaser under Article II below. Such Rights are not intended to be stock
options, but rather represent an offer by the Company to purchase shares of
Common Stock at a particular price.
(k) "SUBSIDIARY" means a corporation of which not less than fifty
percent (50%) of the voting shares are held by the Company or by a Subsidiary,
whether or not such corporation now exists or is hereafter organized or acquired
by the Company or by a Subsidiary.
3. ELIGIBLE PARTICIPANTS. Any officer, consultant, or other employee of
the Company or of a Subsidiary whom the Committee deems to have the potential to
promote the achievement of the Company's long-term financial and business
objectives shall be eligible to receive awards under the Plan.
4. STOCK SUBJECT TO THE PLAN. Subject to paragraph (1) of Article III,
the total number of shares of Common Stock reserved and available for
distribution pursuant to the Plan shall be 510,000 shares; provided, however,
that the aggregate number of
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shares of Common Stock issued pursuant to the Plan (i) in any particular year
shall not exceed 5% of the outstanding Common Stock and (ii) in any five-year
period, shall not exceed 10% of the outstanding Common Stock.
5. ADMINISTRATION.
(a) PROCEDURE. The Plan shall be administered by a Committee
designated by the Board to administer the Plan. Once appointed, the Committee
shall continue to serve until otherwise directed by the Board. From time to
time the Board may change the size of the Committee, appoint additional members
thereof, remove members (with or without cause), appoint new members in
substitution therefor, and fill vacancies, however caused.
(b) AUTHORITY. Subject to the general purposes, terms, and
conditions of the Plan, and to the direction of the Board, the Committee shall
have full power to implement and carry out the Plan including, but not limited
to, the following:
(i) to select the Participants to whom Stock Purchase Rights may
from time to time be granted hereunder;
(ii) to determine whether and to what extent Rights are granted
hereunder, and the purchase price for stock issuable upon exercise of the Right
(which purchase price may be less than the fair market value thereof);
(iii) to determine the number of shares of Common Stock to be
covered by each such award granted hereunder;
(iv) to approve forms of agreement for use under the Plan;
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(v) to determine the form of payment that will be acceptable
consideration for exercise of a Right granted under the Plan;
(vi) to determine the terms and restrictions applicable to
Rights.
The Committee shall have the authority to construe and interpret the
Plan, to prescribe, amend and rescind rules and regulations relating to the
Plan, to correct any defect or omission or reconcile any inconsistency in the
Plan or any award granted hereunder, and to make all other determinations
necessary or advisable for the administration of the Plan. It is the intent of
this provision to give the Committee discretion in administering the Plan and
carrying out its duties hereunder, including designating an administrator of the
Plan for day to day operations (the "Plan Administrator"). A majority of the
Committee shall constitute a quorum, and the acts of a majority of the quorum
shall be sufficient for the taking of any action under the Plan. No member of
the Committee shall be liable for any act done or determination made in good
faith under the terms of the Plan.
6. DURATION OF THE PLAN. The Plan shall remain in effect until
terminated by the Board under the terms of the Plan.
ARTICLE II.
STOCK PURCHASE RIGHTS
1. RIGHTS TO PURCHASE. Stock Purchase Rights may be issued to any
Participant that the Committee may select. After the Committee determines that
it will offer Stock Purchase Rights under the Plan, it shall advise the offeree
in writing of the terms, conditions and restrictions related to the offer,
including the number of shares of Common Stock that such person shall be
entitled to purchase, the price to be paid, the terms of any repurchse
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option with respect to the shares, and the time within which such person must
accept such offer. The offer shall be accepted by execution of a Stock Purchase
Agreement in the form determined by the Committee.
2. REPURCHASE OPTION. At the discretion of the Committee, the Restricted
Stock purchase agreement may grant the Company a repurchase option exercisable
upon the voluntary or involuntary termination of the purchaser's employment with
the Company for any reason (including death or Disability). The purchase price
for shares repurchased pursuant to the Restricted Stock purchase agreement shall
be the original price paid by the purchaser and may be paid by cancellation of
any indebtedness of the purchaser to the Company. The repurchase option shall
lapse at such rate as the Committee may determine.
3. OTHER PROVISIONS. The Stock Purchase Agreement shall contain such
other terms, provisions and conditions not inconsistent with the Plan as may be
determined by the Committee in its sole discretion. In addition, the provisions
of Stock Purchase Agreements need not be the same with respect to each
purchaser.
ARTICLE III.
MISCELLANEOUS
1. RECAPITALIZATION. In the event that there is any change in the number
of outstanding shares of Common Stock or of the capital structure of the Company
by reason of a recapitalization, reclassification, reorganization, stock split,
reverse stock split, combination of shares, stock dividend or similar
transaction, the number of shares available under the Plan shall be increased or
decreased proportionately.
2. RELATIONSHIP. Nothing in the Plan or any award made thereunder shall
interfere with or limit in any way the right of
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the Company or any Subsidiary to terminate any Participant's employment or
consulting relationship at any time, with or without cause, nor confer upon any
Participant any right to continue in the employ or service of the Company or any
Subsidiary.
3. WITHHOLDING TAXES. The Company shall have the right to require the
Participant to remit to the Company an amount sufficient to satisfy federal,
state, and local withholding tax requirements prior to the delivery of any
certificate or certificates for any shares transferable pursuant to the exercise
of a Right.
4. EFFECTIVE DATE OF THE PLAN. The Plan shall become effective upon
adoption thereof by the Company's Board of Directors.
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