<PAGE> 1
As filed with the Securities and Exchange Commission on April 7, 1998
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
UNO RESTAURANT CORPORATION
------------------------------------------------------
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 04-2953702
- ------------------------------- ------------------------------------
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
100 CHARLES PARK ROAD, WEST ROXBURY, MASSACHUSETTS 02132
--------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
UNO RESTAURANT CORPORATION 1997 KEY OFFICER STOCK OPTION PLAN
UNO RESTAURANT CORPORATION 1997 NON-QUALIFIED STOCK OPTION PLAN
FOR NON-EMPLOYEE DIRECTORS
---------------------------------------------------------------
(Full Title of the Plan)
CRAIG S. MILLER, CHIEF EXECUTIVE OFFICER
UNO RESTAURANT CORPORATION
100 CHARLES PARK ROAD, WEST ROXBURY, MASSACHUSETTS 02132
--------------------------------------------------------
(Name and Address of Agent for Service)
(617) 323-9200
-------------------------------------------------------------
(Telephone Number, Including Area Code, of Agent for Service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===================================================================================================================
Title of Each Class
of Securities Amount Proposed Maxi- Proposed Maxi- Amount of
to be to be mum Offering mum Aggregate Registra-
Registered Registered Price Per Share(1) Offering Price(1) tion Fee
- -------------------------------------------------------------------------------------------------------------------
<C> <C> <C> <C> <C>
Common Stock,
$.01 par value 1,075,000(2) $7.16(3) $7,697,000(3) $2,332.43
===================================================================================================================
</TABLE>
(footnotes on next page)
EXHIBIT INDEX AT PAGE II-8
<PAGE> 2
(1) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457 under the Securities Act of 1933, as amended.
(2) Such presently indeterminable number of additional shares of Common
Stock are also registered hereunder as may be issued in the event of a merger,
consolidation, reorganization, recapitalization, stock dividend, stock split or
other similar change in Common Stock.
(3) Based on the average high and low prices for the Registrant's Common
Stock, $.01 par value (the "Common Stock") on April 3, 1998 as reported by the
New York Stock Exchange, Inc.
- --------------------------------------------------------------------------------
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are hereby incorporated by reference into this
Registration Statement:
(a) The Registrant's latest Annual Report filed pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or the Registrant's latest prospectus filed pursuant
to Rule 424(b) under the Securities Act of 1933, as amended, that
contains audited financial statements for the Registrant's latest
fiscal year for which such statements have been filed;
(b) All other reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by
the Registrant's documents referred to in (a) above; and
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed under the
Exchange Act with the Securities and Exchange Commission on April 1,
1991, including any amendment or report filed for the purposes of
updating such description.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act subsequent to the date hereof and 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 validity of the shares of Common Stock to be issued in accordance with
the Uno Restaurant Corporation 1997 Key Officer Stock Option Plan and the Uno
Restaurant Corporation 1997 Non-Qualified Stock Option Plan for Non-Employee
Directors has been passed upon for the Registrant by Brown, Rudnick, Freed &
Gesmer, P.C., One Financial Center, Boston, Massachusetts 02111.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
DELAWARE LAW. Section 145 of the General Corporation Law of the State of
Delaware authorizes a corporation to indemnify directors, officers, employees or
agents of the corporation in civil suits if such party acted in good faith and
in a manner he or she reasonably believed to be in or not opposed to the best
interest of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful,
as determined in accordance with the Delaware General Corporation Law. Section
145 requires indemnification if the party in question is successful on the
merits or otherwise. With respect to derivative suits, a person may not be
indemnified if he or she has been adjudged to be liable to the corporation,
unless a court determines that such person is entitled to indemnification.
Section 145 permits the advancement of expenses upon receipt of an
undertaking to repay such amount if it shall ultimately be determined that such
parties are not entitled to be indemnified.
CERTIFICATE OF INCORPORATION. The Registrant's Restated Certificate of
Incorporation, as amended, provides that, to the fullest extent permitted by
Delaware law, no director of the Registrant shall be liable to the Registrant or
its shareholders for monetary damages for breach of fiduciary duty of care as a
director. Delaware law does not permit the elimination of liability and each
director will be liable to the Registrant (i) for any breach of the director's
duty of loyalty to the Registrant or its shareholders, (ii) for acts or
omissions not in good faith or which involve
II-1
<PAGE> 4
intentional misconduct or a knowing violation of law, (iii) in respect of
certain unlawful dividend payments or stock redemptions or repurchases, or (iv)
for any transaction from which the director derived an improper personal
benefit. The effect of this provision in the Restated Certificate of
Incorporation is to eliminate the rights of the Registrant and its shareholders
(through shareholders' derivative suits on behalf of the Registrant) to recover
monetary damages against a director for breach of fiduciary duty as a director
(including breaches resulting from negligent or grossly negligent behavior)
except in the situations described in clauses (i) through (iv) above. This
provision does not alter the liability of directors under the federal securities
laws.
The Registrant's Restated Certificate of Incorporation also provides that
the Registrant may, to the fullest extent permitted by Delaware law, indemnify
any and all persons whom it shall have power to indemnify under Delaware law
from and against any and all of the expenses, liabilities or other matters
referred to in or covered by Delaware law. The indemnification provided in the
Restated Certificate of Incorporation is not exclusive of any other rights to
which a person indemnified may be entitled under the Registrant's Bylaws, any
agreement, vote of shareholders or directors or otherwise, and shall continue as
to a person who has ceased to be a director, officer, employee or agent.
BYLAWS. The Registrant's Bylaws provide that the Registrant may indemnify
present or former directors, officers, agents or employees ("Covered Persons")
against all liabilities, including amounts paid in satisfaction of judgments,
compromises, fines or penalties and expenses ("Expenses") incurred in connection
with the defense or disposition of any threatened, pending, or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
("Proceeding") if the Covered Person acted in good faith, and in a manner he or
she reasonably believed to be in, or not opposed to, the best interest of the
Registrant, and with respect to any criminal action, had no reasonable cause to
believe his or her conduct was unlawful. However, no indemnification may be made
with respect to any matter as to which a Covered Person has been adjudicated
liable for negligence or misconduct in the performance of his or her duty,
unless the court deciding the action determines that such Covered Person is
entitled to indemnification.
Indemnification may be provided in connection with a Proceeding in which it
is claimed that a director or officer received an improper personal benefit by
reason of his or her position, subject to the additional limitation that it
shall not have been finally determined that an improper personal benefit was
received by the director or officer.
If any Covered Person has been wholly successful on the merits in the
defense of any Proceeding by or in the name of the Registrant or any shareholder
in his or her capacity as such, such Covered Person shall be indemnified by the
Registrant against all Expenses incurred by him in connection therewith.
The Registrant may advance attorney's fees or other Expenses reasonably
incurred by a Covered Person in defending a Proceeding upon receipt of an
undertaking to repay the amount advanced if it is ultimately determined that the
Covered Person is entitled to indemnification for such fees and Expenses.
The indemnification provided by the Bylaws is not exclusive of any other
rights to which a Covered Person may be entitled by law, under the Restated
Certificate of Incorporation of the Registrant, under any indemnification
agreement with the Registrant or otherwise. The Registrant expressly has the
authority to enter into agreements as the Board of Directors deems appropriate
for the indemnification of present or future directors and officers of the
Registrant. The Registrant may purchase and maintain insurance on its behalf and
on behalf of any Covered Person against any liability asserted against such
Covered Person and incurred by him or her in any capacity, or arising out of his
or her status as such, whether or not the Registrant would have the power to
indemnify him against such liability under the Bylaws.
INDEMNIFICATION AGREEMENTS. The Registrant has entered into indemnification
agreements with each of its directors and certain officers who are not directors
and anticipates that it will enter into similar agreements with any future
directors and certain future officers who are not directors. Generally, the
indemnification agreements attempt to provide the maximum protection permitted
by Delaware law with respect to the indemnification of directors.
The indemnification agreements provide that the Registrant will pay certain
amounts incurred by a director or officer in connection with any civil or
criminal action or proceeding and
II-2
<PAGE> 5
specifically including actions by or in the name of the Registrant (derivative
suits) where the individual's involvement is by reason of the fact that he or
she is or was a director or officer. Such amounts include, to the maximum extent
permitted by law, attorneys' fees, judgments, civil or criminal fines,
settlement amounts, and other expenses customarily incurred in connection with
legal proceedings. Under the indemnification agreements, a director or officer
will not receive indemnification if he or she is found not to have acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Registrant. The agreements provide a number of procedures and
presumptions used to determine the director's or officer's right to
indemnification, and include a requirement that in order to receive an
advancement of expenses, he or she must submit an undertaking to repay any
expenses advanced on his or her behalf that are later determined that he or she
was not entitled to receive.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
(4) Instruments defining the rights of security holders, including
indentures.
(a) Specimen Certificate of Common Stock filed as Exhibit 4(a) to the
Annual Report on Form 10-K for the fiscal year ended September
29, 1991.*
(b) Restated Certificate of Incorporation, as amended, of the
Registrant, filed as Exhibit 3.1 to the Registrant's Quarterly
Report on Form 10-Q for the fiscal quarter ended April 2, 1995
(the "April 2, 1995 Form 10-Q").*
(c) Amended and Restated By-Laws of the Registrant, filed as Exhibit
3.2 to the April 2, 1995 Form 10-Q.*
(5) Opinion regarding legality.
(a) Legal Opinion of Brown, Rudnick, Freed & Gesmer, P.C.
(23) Consents of experts and counsel.
(a) Consent of Ernst & Young LLP.
(b) Consent of Brown, Rudnick, Freed & Gesmer, P.C. (included within
its legal opinion filed as Exhibit (5)(a) hereof).
(24) Power of Attorney (included on the Signature Page of this Registration
Statement).
(99) Additional Exhibits.
(a) Uno Restaurant Corporation 1997 Key Officer Stock Option Plan;
and
(b) Uno Restaurant Corporation 1997 Non-Qualified Stock Option Plan
for Non-Employee Directors.
- ----------------------
* Not filed herewith. In accordance with Rule 411(c) promulgated pursuant to
the Securities Act of 1933, as amended, reference is made to the documents
previously filed with the Securities and Exchange Commission which
documents are hereby incorporated by reference herein.
II-3
<PAGE> 6
Item 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the Registration Statement is on Form S-3, Form S-8 or Form
F3, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial BONA FIDE offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial BONA FIDE offering thereof.
(e) The undersigned Registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
II-4
<PAGE> 7
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described under "Item 6 --
Indemnification of Directors and Officers" above, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act of 1933 and will be governed by the
final adjudication of such issue.
II-5
<PAGE> 8
SIGNATURES
THE REGISTRANT
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of West Roxbury, Commonwealth of Massachusetts, on the
7th day of April, 1998.
Uno Restaurant Corporation
(Registrant)
By: /s/ Craig S. Miller
_______________________________________
Craig S. Miller, President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Craig S. Miller and Robert M. Vincent, and each
of them (with full power to each of them to act alone), his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or their
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Craig S. Miller President, Chief Executive April 7, 1998
_________________________ Officer, Chief Operating
Craig S. Miller Officer and Director (Principal
Executive Officer)
/s/ Robert M. Vincent Treasurer, Senior Vice April 7, 1998
_________________________ President - Finance, Chief Financial
Robert M. Vincent Officer (Principal Financial
and Accounting Officer)
/s/ Aaron D. Spencer Chairman and Director April 7, 1998
_________________________
Aaron D. Spencer
/s/ Robert M. Brown Senior Vice President - Administration April 7, 1998
_________________________ and Director
Robert M. Brown
</TABLE>
II-6
<PAGE> 9
<TABLE>
<S> <C> <C>
_________________________ Director April __, 1998
James F. Carlin
_________________________ Director April __, 1998
S. James Coppersmith
/s/ John T. Gerlach Director April 7, 1998
_________________________
John T. Gerlach
_________________________ Director April __, 1998
Stephen J. Sweeney
</TABLE>
II-7
<PAGE> 10
<TABLE>
<CAPTION>
EXHIBIT INDEX
Exhibit Sequential
Number Page No.
------- ----------
<S> <C> <C>
(4)(a) Specimen Certificate of Common Stock filed as Exhibit 4(a) *
to the Annual Report on Form 10-K for the fiscal year ended
September 29, 1991.
(4)(b) Restated Certificate of Incorporation, as amended, of the *
Registrant, filed as Exhibit 3.1 to the Registrant's Quarterly
Report on Form 10-Q for the fiscal quarter ended April 2, 1995
(the "April 2, 1995 Form 10-Q").
(4)(c) Amended and Restated By-Laws of the Registrant, filed as *
Exhibit 3.2 to the April 2, 1995 Form 10-Q.
(5)(a) Legal Opinion of Brown, Rudnick, Freed & Gesmer, P.C. II-9
(23)(a) Consent of Ernst & Young LLP. II-13
(23)(b) Consent of Brown, Rudnick, Freed & Gesmer, P.C. **
(24) Power of Attorney. ***
(99)(a) Uno Restaurant Corporation 1997 Key Officer Stock Option Plan II-14
(99)(b) Uno Restaurant Corporation 1997 Non-Qualified Stock Option Plan II-19
for Non-Employee Directors
</TABLE>
- --------------------
* Not filed herewith. In accordance with Rule 411(c) promulgated pursuant to
the Securities Act of 1933, as amended, reference is made to the documents
previously filed with the Securities and Exchange Commission which
documents are hereby incorporated by reference.
** Contained in Exhibit 5(a).
*** Included on Signature Page of this Registration Statement.
II-8
<PAGE> 1
EXHIBIT (5)(a)
Opinion of Brown, Rudnick, Freed & Gesmer, P.C.
April 7, 1998
Uno Restaurant Corporation
100 Charles Park Road
West Roxbury, MA 02132
RE: Uno Restaurant Corporation
Registration Statement on Form S-8
----------------------------------
Dear Ladies and Gentlemen:
We have acted as legal counsel to Uno Restaurant Corporation, a Delaware
corporation (the "Company"), in connection with the preparation and filing of a
Registration Statement on Form S-8 (the "Registration Statement") with the
Securities and Exchange Commission under the Securities Act of 1933, as amended
(the "Act"), relating to 1,075,000 shares of the Company's Common Stock, $.01
par value (the "Shares").
The Shares are to be issued upon exercise of options granted pursuant to
the: (1) Uno Restaurant Corporation 1997 Key Officer Stock Option Plan; and (2)
Uno Restaurant Corporation 1997 Non-Qualified Stock Option Plan for Non-Employee
Directors (together, the "Plans").
In connection with this Opinion Letter, we have examined the Registration
Statement and the other documents listed on SCHEDULE A attached hereto
(collectively, the "Documents"). We have not made any independent review or
investigation of orders, judgments, rules or other regulations or decrees by
which the Company or any of its property may be bound, nor have we made any
independent investigation as to the existence of actions, suits, investigations
or proceedings, if any, pending or threatened against the Company.
With your concurrence, the opinion hereafter expressed is based solely upon
(i) our review of the Documents, (ii) discussions with certain officers of the
Company with respect to the Documents, (iii) discussions with those of our
attorneys who have given substantive legal representation to the Company in
connection with the Registration Statement, and (iv) such review of published
sources of law as we have deemed necessary.
This firm, in rendering legal opinions, customarily makes certain
assumptions which are described in SCHEDULE B hereto. In the course of our
representation of the Company in connection with the Registration Statement,
nothing has come to our attention which causes us to believe reliance upon any
of those assumptions is inappropriate, and, with your concurrence, the opinion
hereafter expressed is based upon those assumptions. For purposes of those
assumptions, the Enumerated Party referred to in SCHEDULE B is the Company.
Our opinion hereafter expressed is limited to the laws of the Commonwealth
of Massachusetts, Federal law and the General Corporation Law of the State of
Delaware. We express no legal opinion upon any matter other than as explicitly
addressed in numbered paragraph 1 below, and our express opinion therein
contained shall not be interpreted to be implied opinions upon any other matter.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Shares have been duly authorized, and when issued in accordance with
the terms of the Plans, will be validly issued, fully paid and nonassessable.
II-9
<PAGE> 2
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the reference to this firm wherever it appears in
the Registration Statement.
Very truly yours,
BROWN, RUDNICK, FREED & GESMER, P.C.
By: Brown, Rudnick, Freed & Gesmer, P.C.
a partner
By: /s/ Steven R. London
-------------------------------------
Steven R. London, duly authorized
SRL/JGN/TDL
II-10
<PAGE> 3
SCHEDULE A
LIST OF DOCUMENTS
In connection with the Opinion Letter to which this Schedule A is attached,
we have reviewed the following Documents. However, except as otherwise expressly
indicated, we have not reviewed any documents, instruments or agreements
referred to in or listed upon any of the following Documents:
(i) a copy of the Restated Certificate of Incorporation of the Company, as
amended, as certified by the Secretary of State of the State of Delaware and a
certificate of the Secretary of the Company that there have been no further
amendments thereto;
(ii) a copy of the Amended and Restated By-laws of the Company, certified
by the Secretary of the Company as presently being in effect;
(iii) the corporate minute books or other records of the Company pertaining
to the proceedings of the stockholders and directors of the Company and a
certificate of the Secretary of the Company as to certain resolutions of the
directors of the Company;
(iv) a certificate dated as of April 7, 1998 of the Secretary of State of
the State of Delaware as to the good standing of the Company;
(v) the Plans; and
(vi) the Registration Statement.
II-11
<PAGE> 4
SCHEDULE B
BROWN, RUDNICK, FREED & GESMER, P.C.
GOOD STANDING ASSUMPTIONS
In rendering legal opinions in third party transactions, Brown, Rudnick,
Freed & Gesmer, P.C. makes certain customary assumptions described below:
1. Each natural person executing any of the Documents has sufficient
legal capacity to enter into such Documents.
2. Each person, other than the Enumerated Party, has all requisite power
and authority and has taken all necessary corporate or other action to
enter into the Documents to which it is a party, or by which it is
bound, to the extent necessary to make the Documents enforceable
against it.
3. Each person other than the Enumerated Party has complied with all
legal requirements pertaining to its status as such status relates to
its rights to enforce the Documents against the Enumerated Party.
4. Each Document is accurate, complete and authentic, each original is
authentic, each copy conforms to an authentic original and all
signatures are genuine.
5. All official public records are accurate, complete and properly
indexed and filed.
6. There has not been any mutual mistake of fact or misunderstanding,
fraud, duress, or undue influence by or among any of the parties to
the Documents.
7. The conduct of the parties to the Documents has complied in the past
and will comply in the future with any requirement of good faith, fair
dealing and conscionability.
8. The Enumerated Party will obtain all permits and governmental
approvals required in the future and take all actions similarly
required relevant to its performance of its obligations under the
Documents.
9. All parties to or bound by the Documents will act in accordance with,
and will refrain from taking any action that is forbidden by, the
terms and conditions of the Documents.
10. There are no agreements or understandings among the parties to or
bound by the Documents not reflected in the Documents, and there is no
usage of trade or course of prior dealing among such parties, that
would define, modify, waive, or qualify the terms of any of the
Documents.
II-12
<PAGE> 1
EXHIBIT (23)(a)
Consent of Ernst & Young LLP
As independent public accountants, we consent to the incorporation by
reference into this Registration Statement on Form S-8 pertaining to the: (1)
Uno Restaurant Corporation 1997 Key Officer Stock Option Plan, and (2) Uno
Restaurant Corporation 1997 Non-Qualified Stock Option Plan for Non-Employee
Directors, of our report dated November 4, 1997 with respect to the Consolidated
Financial Statements and Schedules of Uno Restaurant Corporation included in its
Annual Report on Form 10-K for the fiscal year ended September 28, 1997 filed
with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Boston, Massachusetts
April 7, 1998
II-13
<PAGE> 1
Exhibit 99.(A)
UNO RESTAURANT CORPORATION
1997 KEY OFFICER STOCK OPTION PLAN
SECTION I. PURPOSE OF THE PLAN.
The purposes of this Uno Restaurant Corporation 1997 Key Officer Stock
Option Plan (the "Key Officer Plan") are (i) to provide long-term incentives and
rewards to the key officers (the "Participants") of Uno Restaurant Corporation
(the "Corporation") who are in a position to contribute to the long-term success
and growth of the Corporation and its subsidiaries, (ii) to assist the
Corporation in retaining and attracting officers with requisite experience and
ability, and (iii) to associate more closely the interests of such officers with
those of the Corporation's stockholders.
SECTION II. DEFINITIONS.
"Code" is the Internal Revenue Code of 1986, as it may be amended from time
to time.
"Common Stock" is the common stock, $.01 par value, of the Corporation.
"Committee" is defined in Section III, paragraph (a).
"Corporation" is defined in Section I.
"Corporation ISOs" are all stock options (including Plan ISOs) which (i)
are Incentive Stock Options and (ii) are granted under any plans (including this
Key Officer Plan) of the Corporation, a Parent Corporation and/or a Subsidiary
Corporation.
"Exchange Act" is the Securities Exchange Act of 1934, as amended.
"Fair Market Value" of any property is the value of the property as
reasonably determined by the Committee.
"Incentive Stock Option" is a stock option which is treated as an incentive
stock option under Section 422 of the Code.
"Key Officer Plan" is defined in Section I.
"Non-Employee Directors" has the meaning provided in Rule 16b-3(b) under
the Exchange Act.
"Nonqualified Option" is a Stock Option which does not qualify as an
Incentive Stock Option or for which the Committee provides, in the terms of such
option and at the time such option is granted, that the option shall not be
treated as an Incentive Stock Option.
"Parent Corporation" has the meaning provided in Section 424(e) of the
Code.
"Participants" is defined in Section I.
"Permanent and Total Disability" has the meaning provided in Section
22(e)(3) of the Code.
"Plan ISOs" are Stock Options which are Incentive Stock Options.
"Section 16" means Section 16 of the Exchange Act, or any similar or
successor statute, and any rules, regulations, or policies adopted or applied
thereunder.
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"Stockholder Approval" means the affirmative vote of at least a majority of
the shares of Common Stock present and entitled to vote at a duly held meeting
of the stockholders of the Corporation, unless a greater vote is required by
state law or is necessary to make an exemption available under Section 16, in
which case such greater requirement shall apply. Stockholder approval may be
obtained by written consent or other means, to the extent permitted by
applicable state law.
"Stock Options" are rights granted pursuant to this Key Officer Plan to
purchase shares of Common Stock at a fixed price.
"Subsidiary Corporation" has the meaning provided in Section 424(f) of the
Code.
"Ten Percent Stockholder" means, with respect to a Plan ISO, any individual
who directly or indirectly owns stock possessing more than 10% of the total
combined voting power of all classes of stock of the Corporation or any Parent
Corporation or any Subsidiary Corporation at the time such Plan ISO is granted.
SECTION III. ADMINISTRATION.
(a) The Committee. This Key Officer Plan shall be administered by a
committee designated by the Board of Directors of the Corporation, which shall
consist, at the discretion of the Board of Directors, of either (i) two or more
Non-Employee Directors designated by the Board of Directors, or (ii) all of the
members of the Board of Directors (the administering body is hereafter referred
to as the "Committee"). The Committee shall serve at the pleasure of the Board
of Directors, which may from time to time, and in its sole discretion, discharge
any member, appoint additional new members in substitution for those previously
appointed and/or fill vacancies however caused. A majority of the Committee
shall constitute a quorum and the acts of a majority of the members present at
any meeting at which a quorum is present shall be deemed the action of the
Committee.
(b) Authority and Discretion of the Committee. Subject to the express
provisions of this Key Officer Plan and provided that all actions taken shall be
consistent with the purposes of this Key Officer Plan, and subject to
ratification by the Board of Directors only if required by applicable law, the
Committee shall have full and complete authority and the sole discretion to: (i)
determine those persons who shall constitute officers eligible to be
Participants; (ii) select the Participants to whom Stock Options shall be
granted under this Key Officer Plan; (iii) determine the size and the form of
the Stock Options, if any, to be granted to any Participant; (iv) determine the
time or times such Stock Options shall be granted including the grant of Stock
Options in connection with other awards made, or compensation paid, to the
Participant; (v) establish the terms and conditions upon which such Stock
Options may be exercised, including the exercise of Stock Options in connection
with other awards made, or compensation paid, to the Participant; (vi) make or
alter any restrictions and conditions upon such Stock Options and the Common
Stock received on exercise thereof, including, but not limited to, providing for
limitations on the Participant's right to keep any Common Stock received on
termination of employment; (vii) determine whether the Participant or the
Corporation has achieved any goals or otherwise satisfied any conditions or
requirements that may be imposed on or related to the exercise of Stock Options;
and (viii) adopt such rules and regulations, establish, define and/or interpret
these and any other terms and conditions, and make all determinations (which may
be on a case-by-case basis) deemed necessary or desirable for the administration
of this Key Officer Plan.
(c) Applicable Law. This Key Officer Plan, and all Stock Options shall be
governed by the law of the state in which the Corporation is incorporated.
SECTION IV. TERMS OF STOCK OPTIONS.
(a) Agreements. Stock Options shall be evidenced by a written agreement
between the Corporation and the Participant awarded the Stock Option. This
agreement shall be in such form, and contain such terms
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and conditions (not inconsistent with this Key Officer Plan) as the Committee
may determine. If the Stock Option described therein is not intended to be an
Incentive Stock Option, but otherwise qualifies as an Incentive Stock Option,
the agreement shall include the following, or a similar, statement: "This stock
option is not intended to be an Incentive Stock Option, as that term is
described in Section 422 of the Internal Revenue Code of 1986, as amended."
(b) Term. Stock Options shall be for such periods as may be determined by
the Committee, provided that in the case of Plan ISOs, the term of any such Plan
ISO shall not extend beyond three months after the time the Participant ceases
to be an employee of the Corporation. Notwithstanding the foregoing, the
Committee may provide in a Plan ISO that in the event of the Permanent and Total
Disability or death of the Participant, the Plan ISO may be exercised by the
Participant or his estate (if applicable) for a period of up to one year after
the date of such Permanent and Total Disability or Death. In no event may a Plan
ISO be exercisable (including provisions, if any, for exercise in installments)
subsequent to ten years after the date of grant, or, in the case of Plan ISOs
granted to Ten Percent Stockholders, more than five years after the date of
grant.
(c) Purchase Price. The purchase price of shares purchased pursuant to any
Stock Option shall be determined by the Committee, and shall be paid by the
Participant or other person permitted to exercise the Stock Option in full upon
exercise, (i) in cash or by check payable to the order of the Corporation, (ii)
by delivery of shares of Common Stock (valued at their Fair Market Value on the
date of such exercise), including by way of so-called "cashless exercise" and
the netting of the number of shares subject to the Stock Option having an
aggregate Fair Market Value equal to the purchase price, (iii) by delivery of
any other property (valued at its Fair Market Value on the date of such
exercise), or (iv) by delivery of any combination of cash, stock and other
property, with any payment made pursuant to subparagraphs (ii), (iii) or (iv)
only as permitted by the Committee, in its sole discretion. In no event will the
purchase price of Common Stock be less than the par value of the Common Stock.
Furthermore, the purchase price of Common Stock subject to a Plan ISO shall not
be less than the Fair Market Value of the Common Stock on the date of the
issuance of the Plan ISO, provided that in the case of Plan ISOs granted to Ten
Percent Stockholders, the purchase price shall not be less than 110% of the Fair
Market Value of the Common Stock on the date of issuance of the Plan ISO.
(d) Further Restrictions as to Incentive Stock Options. To the extent that
the aggregate Fair Market Value of Common Stock with respect to which
Corporation ISOs (determined without regard to this paragraph) are exercisable
for the first time by any Participant during any calendar year exceeds $100,000,
such Corporation ISOs shall be treated as Nonqualified Options. For the purpose
of this limitation, stock options shall be taken into account in the order
granted, and the Committee may designate that portion of any Corporation ISO
that shall be treated as a Nonqualified Option in the event that the provisions
of this paragraph apply to a portion of any stock option, unless otherwise
required by the Code or regulations of the Internal Revenue Service. The
designation described in the preceding sentence may be made at such time as the
Committee considers appropriate, including after the issuance of the stock
option or at the time of its exercise. For the purpose of this paragraph, Fair
Market Value shall be determined as of the time the stock option with respect to
such Common Stock is granted.
(e) Restrictions. Stock Options granted under the Key Officer Plan may not
be assigned or transferred except by will or the laws of descent and
distribution or pursuant to a "qualified domestic relations order" as defined by
the Code or Title I of the Employee Retirement Income Security Act of 1974, as
amended. At the discretion of the Committee, the Common Stock issued pursuant to
the Stock Options granted hereunder may be subject to restrictions on vesting or
transferability.
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(f) Withholding of Taxes. Pursuant to applicable federal, state, local or
foreign laws, the Corporation may be required to collect income or other taxes
upon the grant of a Stock Option to, or exercise of a Stock Option by, a
Participant. The Corporation may require, as a condition to the exercise of a
Stock Option, or demand, at such other time as it may consider appropriate, that
the Participant pay the Corporation the amount of any taxes which the
Corporation may determine is required to be withheld or collected, and the
Participant shall comply with the requirement or demand of the Corporation. In
its discretion, the Corporation may withhold shares of Common Stock to be
received upon exercise of a Stock Option if it deems this an appropriate method
for withholding or collecting taxes.
(g) Securities Law Compliance. Upon exercise (or partial exercise) of a
Stock Option, the Participant or other holder of the Stock Option shall make
such representations and furnish such information as may, in the opinion of
counsel for the Corporation, be appropriate to permit the Corporation to issue
or transfer shares of Common Stock in compliance with the provisions of
applicable federal or state securities laws. The Committee, in its discretion,
may postpone the issuance and delivery of shares of Common Stock upon any
exercise of Stock Options until completion of such registration or other
qualification of such shares under any federal or state laws, or stock exchange
listing, as the Committee may consider appropriate. Furthermore, the Corporation
is not obligated to register or qualify the shares of Common Stock to be issued
upon exercise of a Stock Option under federal or state securities laws (or to
register or qualify them at any time thereafter), and it may refuse to issue
such shares if, in the sole discretion of the Committee, registration or
exemption from registration is not practical or available. The Corporation may
require that prior to the issuance or transfer of shares of Common Stock upon
exercise of a Stock Option, the Participant enter into a written agreement to
comply with any restrictions on subsequent disposition or otherwise that the
Committee deems necessary or advisable under any applicable federal and state
securities laws. Certificates representing shares of Common Stock issued
hereunder may bear a legend reflecting such restrictions.
(h) Right to Stock Option. No employee of the Corporation or any other
person shall have any claim or right to be a Participant in this Key Officer
Plan or to be granted a Stock Option hereunder. Neither this Key Officer Plan
nor any action taken hereunder shall be construed as giving any person any right
to be retained in the employ of the Corporation. Nothing contained hereunder
shall be construed as giving any person any equity or interest of any kind in
any assets of the Corporation or creating a trust of any kind or a fiduciary
relationship of any kind between the Corporation and any such person. The holder
of a Stock Option shall have no rights as a stockholder with respect to any
shares of Common Stock covered by the Stock Option (including, without
limitation, any rights to receive dividends or noncash distributions with
respect to such shares until the date of issue of a stock certificate to such
holder for such shares). As to any claim for any unpaid amounts under this Key
Officer Plan, any person having a claim for payments shall be an unsecured
creditor.
(i) Indemnity. Neither the Board of Directors nor the Committee, nor any
members of either, nor any employees of the Corporation or any parent,
subsidiary, or other affiliate, shall be liable for any act, omission,
interpretation, construction or determination made in good faith in connection
with their responsibilities with respect to this Key Officer Plan, and the
Corporation hereby agrees to indemnify the members of the Board of Directors,
the members of the Committee, and the employees of the Corporation and its
Parent Corporation and Subsidiary Corporation in respect of any claim, loss,
damage, or expense (including reasonable counsel fees) arising from any such
act, omission, interpretation, construction or determination to the full extent
permitted by law.
(j) Participation by Foreigners. Without amending this Key Officer Plan,
except to the extent required by the Code in the case of Incentive Stock
Options, the Committee may modify grants made to Participants who are foreign
nationals or employed outside the United States so as to recognize differences
in local law, tax policy, or custom.
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SECTION V. AMENDMENT AND TERMINATION; ADJUSTMENTS UPON CHANGES IN STOCK.
The Board of Directors of the Corporation may at any time, and from time to
time, amend, suspend or terminate this Key Officer Plan or any portion thereof,
provided that no amendment shall be made without Stockholder Approval if such
approval is necessary to comply with any applicable requirement of the Code, any
applicable rules or regulations of the Securities and Exchange Commission,
including any exemption from Section 16 (or any successor rule thereunder), or
the rules and regulations of the New York Stock Exchange or any other exchange
or stock market on which the Corporation's securities are listed or quoted.
Except as provided herein, no amendment, suspension or termination of this Key
Officer Plan may affect the rights of a Participant to whom a Stock Option has
been granted without such Participant's consent. The Committee is specifically
authorized to convert, in its discretion, the unexercised portion of any Plan
ISO granted to a Participant to a Non-Qualified Option at any time prior to the
exercise, in full, of such Plan ISO. If there shall be any change in the Common
Stock through merger, consolidation, reorganization, recapitalization, stock
dividend, stock split or other change in the corporate structure of the
Corporation, appropriate adjustments may be made by the Committee (or if the
Corporation is not the surviving corporation in any such transaction, the Board
of Directors of the surviving corporation, or its designee) in the aggregate
number and kind of shares subject to this Key Officer Plan, and the number and
kind of shares and the price per share subject to outstanding Stock Options,
provided that such adjustment does not affect the qualification of any Plan ISO
as an Incentive Stock Option. In connection with the foregoing, the Committee
may issue new Stock Options in exchange for outstanding Stock Options.
SECTION VI. SHARES OF COMMON STOCK SUBJECT TO THE PLAN.
The number of shares of Common Stock that may be the subject of awards
under this Key Officer Plan shall not exceed an aggregate of 1,000,000 shares.
Shares to be delivered under this Key Officer Plan may be either authorized but
unissued shares of Common Stock or treasury shares. Any shares subject to a
Stock Option hereunder which for any reason terminates, is cancelled or
otherwise expires unexercised, and any shares reacquired by the Corporation due
to restrictions imposed on the shares, shares returned because payment is made
hereunder in Common Stock of equivalent value rather than in cash, and/or shares
reacquired from a recipient for any other reason shall, at such time, no longer
count towards the aggregate number of shares which have been the subject of
Stock Options issued hereunder, and such number of shares shall be subject to
further awards under this Key Officer Plan, provided, first, that the total
number of shares then eligible for award under this Key Officer Plan may not
exceed the total specified in the first sentence of this Section VI, and second,
that the number of shares subject to further awards shall not be increased in
any way that would cause transactions pursuant to this Key Officer Plan or any
Stock Option to not comply with the exemption from Section 16 set forth in Rule
16b-3 under the Exchange Act, if applicable to the Corporation.
SECTION VII. EFFECTIVE DATE AND TERM OF THE KEY OFFICER PLAN.
Provided there is Stockholder Approval on or before August 25, 1998, the
effective date of this Key Officer Plan is August 27, 1997 (the "Effective
Date") and awards under this Key Officer Plan may be made for a period of ten
years commencing on the Effective Date. The period during which a Stock Option
may be exercised may extend beyond that time as provided herein.
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Exhibit 99(b)
UNO RESTAURANT CORPORATION
1997 NON-QUALIFIED STOCK OPTION PLAN
FOR NON-EMPLOYEE DIRECTORS
1. Purpose. The purpose of this 1997 Non-Qualified Stock Option Plan for
Non-Employee Directors is to attract and retain the services of experienced and
knowledgeable independent directors of the Corporation for the benefit of the
Corporation and its stockholders and to provide additional incentives for such
independent directors to continue to work for the best interests of the
Corporation and its stockholders through continuing ownership of its common
stock.
2. Definitions. As used herein, each of the following terms has the
indicated meaning:
"Board" means the Board of Directors of the Corporation.
"Corporation" means Uno Restaurant Corporation.
"Fair Market Value" means the closing sale price quoted on the New York
Stock Exchange or such other national securities exchange or the Nasdaq National
Market on which the Shares may be traded on the date of the granting of the
Option, or if the Shares are not then traded on such exchanges or market, as
reasonably determined by the Board.
"Option" means the contractual right to purchase Shares upon the specific
terms set forth in this Plan.
"Option Exercise Period" means the period commencing one (1) year after
the date of grant of an Option pursuant to this Plan, or at such earlier time as
may be provided in Section 6(d) of this Plan as a result of a Change of Control,
and ending ten years from the date of grant.
"Plan" means this Uno Restaurant Corporation 1997 Non-Qualified Stock
Option Plan for Non-Employee Directors.
"Shares" means the Common Stock, $.01 par value, of the Corporation.
"Subsidiary" means any corporation in an unbroken chain of corporations
beginning with the Corporation if, at the time of grant of the Option, each of
the corporations other than the last in the unbroken chain owns stock possessing
50% or more of the total combined voting power of all classes of stock in one of
the other corporations in such chain.
3. Stock Subject to the Plan. The aggregate number of Shares that may be
issued and sold under the Plan shall be 75,000. The Shares to be issued upon
exercise of Options granted under this Plan shall be made available, at the
discretion of the Board of Directors, from (i) treasury Shares and Shares
reacquired by the Corporation for such purposes, including Shares purchased in
the open market, (ii) authorized but unissued Shares, and (iii) Shares
previously reserved for issuance upon exercise of Options which have expired or
been terminated. If any Option granted under this Plan shall expire or terminate
for any reason without having been exercised in full, the unpurchased Shares
covered thereby shall become available for grant under additional Options under
the Plan so long as it shall remain in effect.
4. Administration of the Plan. The Plan shall be administered by the
Board. The Board shall, subject to the provisions of the Plan, grant options
under the Plan and shall have the power to construe the Plan, to determine all
questions as to eligibility, and to adopt and amend such rules and regulations
for the administration of the Plan as it may deem desirable.
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5. Eligibility; Grant of Option. An Option to purchase 5,000 shares shall
be granted to each current director of the Corporation or of a Subsidiary who is
not otherwise an employee of the Corporation or any Subsidiary (each a
"Non-Employee Director") as of the date of the adoption of the Plan by the
Board, subject to the subsequent approval by the stockholders of the Corporation
pursuant to Section 11(a). In addition, each year immediately following the
Company's annual meeting of stockholders at which one or more directors are
elected, each then Non-Employee Director shall be granted an Option to purchase
1,156 Shares.
6. Terms of Options and Limitations Thereon.
(a) Option Agreement. Each Option granted under this Plan shall be
evidenced by an Option agreement between the Corporation and the Option
holder and shall be upon such terms and conditions not inconsistent with
this Plan as the Board may determine.
(b) Price. The price at which any Shares may be purchased pursuant to
the exercise of an Option shall be the Fair Market Value of the Shares on
the date of grant, but in no event shall the price be less than the par
value of the Shares.
(c) Exercise of Option. Subject to Section 4 of this Plan, each
Option granted under this Plan may be exercised in full at one time or in
part from time to time only during the Option Exercise Period by the giving
of written notice, signed by the person or persons exercising the Option,
to the Corporation stating the numbers of Shares with respect to which the
Option is being exercised, accompanied by full payment for such Shares
pursuant to Section 7(a) hereof; provided however, (i) if a person to whom
an Option has been granted ceases to be a Non-Employee Director during the
Option Exercise Period by reason of retirement, death or any reasons other
than termination for cause, such Option shall be exercisable by him or her
or by the executors, administrators, legatees or distributees of his or her
estate until the earlier of (A) the end of the Option Exercise Period or
(B) 36 months following his or her retirement or death or the date on which
he or she ceased to be a Non-Employee Director; and (ii) if a person to
whom an Option has been granted ceases to be a Non-Employee Director of the
Corporation by reason of termination for cause, such Option shall terminate
as of the date such person ceased to be a Non-Employee Director.
Termination for cause shall be defined as termination on account of (i)
fraud or intentional misrepresentation, (ii) embezzlement, misappropriation
or conversion of assets or opportunities of the Corporation or any
Subsidiary, (iii) deliberate dishonesty significantly detrimental to the
best interests of the Corporation or any Subsidiary, (iv) conduct by the
Option holder constituting an act of moral turpitude, or (v) willful
disloyalty to the Corporation or any Subsidiary.
(d) Acceleration in Event of Change of Control. Notwithstanding any
other provision of the Plan to the contrary, in the event of a Change of
Control, if an Option is not yet exercisable pursuant to the definition of
Option Exercise Period as set forth in Section 2, the Option shall become
fully exercisable to the full extent of the original grant.
(e) Change of Control. For purposes of this Plan, "Change of Control"
shall mean:
(i) the beneficial ownership interest (as determined in accordance
with Rule 13d-3 promulgated under the Securities and Exchange Act of
1934, as amended (hereafter "the Exchange Act")) on the part of Aaron D.
Spencer is reduced below 15% of the outstanding Shares; or
(ii) the death of Mr. Spencer, or the physical or mental incapacity
of Mr. Spencer as a result of which voting or investment control over
Mr. Spencer's Shares is transferred to a guardian, conservator or
attorney-in-fact under a power of attorney; or
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(iii) a transaction with respect to the Corporation is of a nature
that would be required to be reported (assuming such event has not been
"previously reported") in response to item 1(a) of the Current Report on
Form 8-K, as in effect on the date hereof, pursuant to Section 13 or
15(d) of the Exchange Act; or
(iv) a person (as that term is used in Sections 13(d) and 14(d)(2)
of the Exchange Act), other than a trustee or other fiduciary holding
securities under an employee benefit plan of the Corporation, is or
becomes the beneficial owner (as that term is used in Rule 13d-3 of the
Exchange Act), directly or indirectly, of 35% or more of the voting
securities of the Corporation; or
(v) during any period of two consecutive years, individuals who at
the beginning of any such two-year period constitute the Board of
Directors of the Corporation ("Incumbent Board"), cease for any reason
to constitute at least a majority thereof, provided however, that any
person becoming a director of the Corporation after the beginning of the
period whose election was approved by a vote of at least 2/3 of the
directors comprising the Incumbent Board shall, for purposes hereof, be
considered as though he or she were a member of the Incumbent Board; or
(vi) the sale of all or substantially all of the assets of the
Corporation; or
(vii) a change in control of the Corporation of a nature that would
be required to be reported in response to item 6(e) of Schedule 14A of
Regulation 14A, as in effect on the date hereof, promulgated under the
Exchange Act.
(f) Non-Assignability. No Option or right or interest in an Option
shall be assignable or transferable by the holder except by will or the
laws of descent and distribution and during the lifetime of the holder
shall be exercisable only by him or her.
7. Payment.
(a) The purchase price of Shares upon exercise of an Option shall be
paid by the Option holder in full upon exercise and may be paid (i) in cash
or by check payable to the order of the Corporation, (ii) by delivery of
Shares, or (iii) any combination of cash and Shares (valued at their Fair
Market Value on the date of such exercise), including by way of so-called
"cashless exercise" and the netting of the number of Shares issuable upon
exercise against that number of Shares subject to the Option having an
aggregate Fair Market Value equal to the purchase price, as the Board may
determine, in its sole discretion.
(b) No Shares shall be issued or transferred upon exercise of any
Option under this Plan unless and until all legal requirements applicable
to the issuance or transfer of such Shares and such other requirements as
are consistent with the Plan have been complied with to the satisfaction of
the Board, including without limitation those described in Section 10
hereof.
8. Stock Adjustments.
(a) If the Corporation is a party to any merger or consolidation, any
purchase or acquisition of property or stock, or any separation,
reorganization or liquidation, the Board (or, if the Corporation is not the
surviving corporation, the board of directors of the surviving corporation)
shall have the power to make arrangements, which shall be binding upon the
holders of unexpired Options, for the substitution of new options for, or
the assumption by another corporation of, any unexpired Options then
outstanding hereunder.
(b) If by reason of recapitalization, reclassification, stock
split-up, combination of shares, separation (including a spin-off) or
dividend on the stock payable in Shares, the outstanding Shares of the
Corporation are increased or decreased or changed into or exchanged for a
different number or kind of
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shares or other securities of the Corporation, the Board shall conclusively
determine the appropriate adjustment in the exercise prices of outstanding
Options and in the number and kind of shares as to which outstanding
Options shall be exercisable.
(c) In the event of a transaction of the type described in paragraphs
(a) and (b) above, the total number of Shares on which Options may be
granted under this Plan shall be appropriately adjusted by the Board.
9. No Rights Other Than Those Expressly Created. No person affiliated
with the Corporation or any Subsidiary or other person shall have any claim or
right to be granted an Option hereunder. Neither this Plan nor any action taken
hereunder shall be construed as (i) giving any Option holder any right to
continue to be affiliated with the Corporation, (ii) giving any Option holder
any equity or interest of any kind in any assets of the Corporation, or (iii)
creating a trust of any kind or a fiduciary relationship of any kind between the
Corporation and any such person. No Option holder shall have any of the rights
of a stockholder with respect to Shares covered by an Option until such time as
the Option has been exercised and Shares have been issued to such person.
10. Miscellaneous.
(a) Withholding of Taxes. Pursuant to applicable federal, state,
local or foreign laws, the Corporation may be required to collect income or
other taxes upon the grant of an Option to, or exercise of an Option by, a
holder. The Corporation may require, as a condition to the exercise of an
Option, that the recipient pay the Corporation, at such time as the Board
determines, the amount of any taxes which the Board may determine is
required to be withheld.
(b) Securities Law Compliance. Upon exercise of an Option, the holder
shall be required to make such representations and furnish such information
as may, in the opinion of counsel for the Corporation, be appropriate to
permit the Corporation to issue or transfer the Shares in compliance with
the provisions of applicable federal or state securities laws. The
Corporation, in its discretion, may postpone the issuance and delivery of
Shares upon any exercise of an Option until completion of such registration
or other qualification of such Shares under any federal or state laws, or
stock exchange listing, as the Corporation may consider appropriate. The
Corporation is not obligated to register or qualify the Shares under
federal or state securities laws and may refuse to issue such Shares if
neither registration nor exemption therefrom is practical. The Board may
require that prior to the issuance or transfer of any Shares upon exercise
of an Option, the recipient enter into a written agreement to comply with
any restrictions on subsequent disposition that the Board or the
Corporation deems necessary or advisable under any applicable federal and
state securities laws. Certificates representing the Shares issued
hereunder may be legended to reflect such restrictions.
(c) Indemnity. The Board shall not be liable for any act, omission,
interpretation, construction or determination made in good faith in
connection with their responsibilities with respect to the Plan, and the
Corporation hereby agrees to indemnify the members of the Board, in respect
of any claim, loss, damage, or expense (including counsel fees) arising
from any such act, omission, interpretation, construction or determination
to the full extent permitted by law.
(d) Options Not Deemed Incentive Stock Options. Options granted under
the Plan shall not be deemed incentive stock options as that term is
defined in Section 422A of the Internal Revenue Code of 1986, as amended
(the "Internal Revenue Code").
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11. Effective Date; Amendment; Termination.
(a) The effective date of this Plan shall be the date of approval by
the Board, subject to the approval of stockholders of the Corporation
holding at least a majority of the voting stock of the Corporation present
or represented and entitled to vote at a meeting of the stockholders.
(b) The date of grant of any Option granted hereunder shall be the
date upon which such Option shall be voted by the Board, unless the vote
expressly otherwise provides.
(c) The Board may at any time, and from time to time, amend, suspend
or terminate this Plan in whole or in part, provided, however, that the
provisions of this Plan relating to the amount and price of securities to
be awarded and the timing of such awards may not be amended more than once
every six months, other than to comport with changes in the Internal
Revenue Code, the Employee Retirement Income Security Act, or the rules
thereunder. However, except as provided herein, no amendment, suspension or
termination of this Plan may affect the rights of any person to whom an
Option has been granted without such person's consent.
(d) This Plan shall terminate ten years from its effective date, and
no Option shall be granted under this Plan thereafter, but such termination
shall not affect the validity of Options granted prior to the date of
termination.
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