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As filed with the Securities and Exchange Commission on February 19, 1997
Registration No. 333-______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
--------------------------
GETCHELL GOLD CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 64-0748908
(State or other 5460 South Quebec Street, Suite 240 (I.R.S. Employer
jurisdiction of Englewood, Colorado 80111 Identification
incorporation or (Address of principal executive offices) Number)
organization
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GETCHELL GOLD CORPORATION
1996 STOCK OPTION PLAN
FOR OUTSIDE DIRECTORS
GETCHELL GOLD CORPORATION
1996 LONG TERM EQUITY INCENTIVE PLAN
(Full title of the plan)
--------------------
Donald S. Robson
Vice President and Chief Financial Officer
Getchell Gold Corporation
5460 South Quebec Street, Suite 240
Englewood, Colorado 80111
(303) 771-9000
(Name, address and telephone number, including area code, of agent for service)
Copies to:
Tad J. Freese
Latham & Watkins
505 Montgomery Street, Suite 1900
San Francisco, CA 94111-2586
(415) 391-0600
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Calculation of Registration Fee
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Proposed
Proposed Maximum
Title of Shares Maximum Aggregate Amount of
Securities to to be Offering Price Offering Registration
be Registered Registered Per Share (1) Price (1) Fee (1)
- --------------------------------------------------------------------------------
Common Stock, 1,000,000 $33.138 $33,138,294 $10,042
$.0001 par value
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- --------------------------------------------------------------------------------
(1) Estimated for the purpose of calculating the registration fee (i) pursuant
to Rule 457(h) on the basis of the exercise price per share of outstanding
options for 19,998 shares at $20.25 per share, 476,600 shares at $30.75 per
share, and 6,000 shares at $33.75 per share and (ii) pursuant to Rule
457(c) for the remaining 497,402 shares registered hereunder at the average
of the high and low prices ($35.9375) for the Company's Common Stock quoted
on the American Stock Exchange on February 11, 1997.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 1. PLAN INFORMATION
In accordance with the General Instructions to the Form S-8 adopted by the
Securities and Exchange Commission (the "Commission"), the contents of this item
have been omitted from the Registration Statement filed with the Commission.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
In accordance with the General Instructions to the Form S-8 adopted by the
Commission, the contents of this item have been omitted from the Registration
Statement filed with the Commission.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents have been filed with the Commission by Getchell
Gold Corporation (the "Company") and are hereby incorporated by reference in
this Registration Statement:
(a) The Company's Report on Form 10-K/A, filed with the Commission on
March 27, 1996;
(b) The Company's Quarterly Report on Form 10-Q, filed with the Commission
on May 15, 1996;
(c) The Company's Current Report on Form 8-K, filed with the Commission on
June 25, 1996;
(d) The Company's Quarterly Report on Form 10-Q, filed with the Commission
on August 14, 1996;
(e) The Company's Quarterly Report on Form 10-Q, filed with the Commission
on November 13, 1996; and
(f) The Description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed on June 19, 1996
pursuant to Section 12 of the Exchange Act (No. 001-11847), including
any amendment or report filed for the purpose of updating such
description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act after the date of this Registration Statement 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
Prospectus and to be part hereof from the date of filing such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
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ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by Section 145 of the Delaware General Corporation Law (the
"DGCL"), the Company's Certificate of Incorporation (the "Certificate of
Incorporation") and Bylaws (the "Bylaws") provide for the indemnification of
officers, directors, employees and agents of the Company. The Certificate of
Incorporation and Bylaws specify the standards of conduct required to be met to
qualify for indemnity. The standards require that the person seeking to be
indemnified must have (a) been successful on the merits or otherwise in defense
of the action or proceeding or (b) acted in good faith and in a manner
reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding, such person
must have had no reasonable cause to believe his conduct was unlawful; provided,
however, that if the action, suit or proceeding is by or on behalf of the
Company, no indemnification may be made for any matters as to which such person
has been finally adjudged to be liable to the Company or for amounts paid in
settlement to the Company unless and only to the extent that a court of
competent jurisdiction determines that, in view of all of the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses as the court deems proper. Whether these standards are met will be
determined by the stockholders or the Board by majority vote of a quorum
consisting of directors not party to the act, suit or proceeding or by
independent legal counsel selected by the Board. The Certificate of
Incorporation and Bylaws also provide that the Company must pay an indemnitee's
expenses as they are incurred upon an undertaking by such person to repay such
amounts if it is ultimately determined by a court of competent jurisdiction that
such person is not entitled to indemnity.
The Certificate of Incorporation includes a provision that eliminates the
personal liability of its directors for monetary damages for breach of their
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty; (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of the law; (iii)
pursuant to Section 174 of the DGCL; or (iv) for any transaction from which the
director derived an improper personal benefit.
The Company maintains officers and directors liability insurance against
certain claims arising out of such persons' services to the Company. The
Company has entered into indemnification agreements with certain of its officers
and directors. These indemnification agreements provide for indemnification of
such officers or directors in the circumstances and subject to the conditions
set forth in the Company's Certificate of Incorporation and Bylaws. The effect
of the indemnification agreements is to add to the indemnification rights
granted by the Certificate of Incorporation and Bylaws as currently in effect a
contractual right to such indemnification which right cannot be terminated or
altered by amendment of the Certificate of Incorporation or Bylaws.
The indemnification provisions in the Certificate of Incorporation, the
Bylaws and the indemnification agreements entered into between the Company and
the Company's officers and directors, may be sufficiently broad to permit
indemnification of the officers and directors for liabilities arising under the
Securities Act of 1933, as amended.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
II-2
<PAGE>
ITEM 8. TABLE OF EXHIBITS
4(a) Getchell Gold Corporation 1996 Stock Option Plan for Outside
Directors.
4(b) Getchell Gold Corporation 1996 Long Term Equity Incentive Plan.
5(a) Opinion of Latham & Watkins
23(a) Consent of KPMG Peat Marwick LLP.
23(b) Consent of Latham & Watkins (Incorporated in Exhibit 5(a)).
24(a) Power of Attorney (Incorporated in the Signature Page to the
Registration Statement, see page II-5).
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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 this 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; and
(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) shall not apply to
information contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities and Exchange Act of 1934 that are
incorporated by reference in this 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 that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
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(c) 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 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 Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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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 Englewood, Colorado, on February 14, 1997.
GETCHELL GOLD CORPORATION
/s/ Donald S. Robson
Donald S. Robson
Vice President, Chief Financial Officer
and Secretary
POWER OF ATTORNEY TO SIGN AMENDMENTS
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint G. W. Thompson and Donald S.
Robson, and each of them, with full power of substitution and full power to act
without the other, his true and lawful attorney-in-fact and agent to act for him
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
on Form S-8, 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 in order to effectuate the same
as fully, to all intents and purposes, as they or he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, 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.
Signature Title Date
--------- ----- ----
/s/ G.W. Thompson President and Chief February 14, 1997
- -------------------------- Executive Officer
(G.W. Thompson) (Principal Executive
Officer) and Director
/s/ Donald S. Robson Vice President, Chief February 14, 1997
- -------------------------- Financial Officer (Principal
(Donald S. Robson) Financial Officer)
and Secretary
/s/ Roger D. Palmer Controller (Principal February 14, 1997
- -------------------------- Accounting Officer)
(Roger D. Palmer)
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/s/ J. Kelley Williams Chairman of the Board February 14, 1997
- ---------------------------- and Director
(J. Kelley Williams)
/s/ Walter A. Drexel Director February 14, 1997
- ----------------------------
(Walter A. Drexel)
/s/ Robert C. Horton Director February 14, 1997
- ----------------------------
(Robert C. Horton)
/s/ Pete Ingersoll Director February 14, 1997
- ----------------------------
(Pete Ingersoll)
/s/ John Racich Director February 14, 1997
- -----------------------------
(John Racich)
/s/ Charles E. Stott, Jr. Director February 14, 1997
- -----------------------------
(Charles E. Stott, Jr.)
/s/ R. Michael Summerford Director February 14, 1997
- -----------------------------
(R. Michael Summerford)
/s/ Al Winters Director February 14, 1997
- -----------------------------
(Al Winters)
/s/ Robert L. Zerga Director February 14, 1997
- -----------------------------
(Robert L. Zerga)
II-6
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EXHIBIT INDEX
Exhibit
Number
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Page Number
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4(a) Getchell Gold Corporation 1996 Stock Option Plan for Outside
Directors.
4(b) Getchell Gold Corporation 1996 Long Term Equity Incentive Plan.
5(a) Opinion of Latham & Watkins
23(a) Consent of KPMG Peat Marwick LLP.
23(b) Consent of Latham & Watkins (Incorporated in Exhibit 5(a)).
24(a) Power of Attorney (Incorporated in the Signature Page to the
Registration Statement, see page II-5).
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GETCHELL GOLD CORPORATION
1996 STOCK OPTION PLAN
FOR OUTSIDE DIRECTORS
GETCHELL GOLD CORPORATION (the "Company"), hereby adopts this Getchell
Gold Corporation Stock Option Plan for Outside Directors. The purpose of this
stock option plan is to obtain, motivate and retain experienced Outside
Directors by offering them an opportunity to become owners of the Common Stock
of the Company.
ARTICLE I
DEFINITIONS
Whenever the following terms are used in this Plan, they shall have the meaning
specified below unless the context clearly indicates to the contrary. The
masculine pronoun shall include the feminine and neuter and the singular shall
include the plural, where the context so indicates.
SECTION 1.1 - BOARD
"Board" shall mean the Board of Directors of the Company.
SECTION 1.2 - CODE
"Code" shall mean the Internal Revenue Code of 1986, as amended.
SECTION 1.3 - COMMON STOCK
"Common Stock" shall mean the Company's common stock, $.01 par value.
SECTION 1.4 - COMPANY
"Company" shall mean Getchell Gold Corporation
SECTION 1.5 - DIRECTOR FEES
"Director Fees" shall mean the annual retainer fee and regular meeting fees,
including committee or Board chairperson fees, if any, provided to be paid by
the Company to an Outside Director.
SECTION 1.6 - EXCHANGE ACT
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
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SECTION 1.7 - FAIR MARKET VALUE
"Fair Market Value" shall mean as of any given date:
(A) If the Common Stock is listed on any established stock
exchange or a national market system, including without limitation the Nasdaq
National Market, the closing sales price for the Common Stock or the closing bid
if no sales were reported, as quoted on such system or exchange (or the largest
such exchange) for the date the value is to be determined (or if there are no
sales for such date, then for the last preceding business day on which there
were sales), as reported in the WALL STREET JOURNAL or similar publication.
(B) If the Common Stock is regularly quoted by a recognized
securities dealer but selling prices are not reported, the mean between the high
bid and low asked prices for the Common Stock on the date the value is to be
determined (or if there are no quoted prices for the date of grant, then for the
last preceding business day on which there were quoted prices).
(C) In the absence of an established market for the Common
Stock, as determined in good faith by the Board, with reference to the Company's
net worth, prospective earning power, dividend-paying capacity, and other
relevant factors, including the goodwill of the Company, the economic outlook in
the Company's industry, the Company's position in the industry and its
management, and the values of stock of other corporations in the same or a
similar line of business.
SECTION 1.8 - OPTION
"Option" shall mean a non-qualified option to purchase Common Stock of the
Company, granted under the Plan.
SECTION 1.9 - OPTIONEE
"Optionee" shall mean an Outside Director to whom an Option is granted under the
Plan.
SECTION 1.10 - OUTSIDE DIRECTOR
"Outside Director" shall mean a member of the Board who is not an employee of
the Company, a Parent Corporation or a Subsidiary under Section 3401(c) of the
Code and who is not legally or contractually prohibited from receiving and
holding personally an Option.
SECTION 1.11 - PARENT CORPORATION
"Parent Corporation" shall mean any corporation in an unbroken chain of
corporations ending with the Company if each of the corporations other than the
Company then owns stock
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possessing 50% or more of the total combined voting power of all classes of
stock in one of the other corporations in such chain.
SECTION 1.12 - PLAN
"Plan" shall mean this 1996 Getchell Gold Corporation Stock Option Plan for
Outside Directors.
SECTION 1.13 - RULE 16B-3
"Rule 16b-3" shall mean that certain Rule 16b-3 under the Exchange Act, as such
Rule may be amended in the future.
SECTION 1.14 - SECRETARY
"Secretary" shall mean the Secretary of the Company.
SECTION 1.15 - SECURITIES ACT
"Securities Act" shall mean the Securities Act of 1933, as amended.
SECTION 1.16 - SUBSIDIARY
"Subsidiary" shall mean any corporation in an unbroken chain of corporations
beginning with the Company if each of the corporations other than the last
corporation in the unbroken chain then 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. "Subsidiary" shall also mean any partnership or
limited liability company in which the Company and/or any Subsidiary owns more
than 50% of the capital or profits interests.
ARTICLE II
SHARES SUBJECT TO PLAN
SECTION 2.1 - SHARES SUBJECT TO PLAN
The shares of stock subject to Options shall be shares of the Common Stock. The
aggregate number of such shares which may be issued upon exercise of Options
shall not exceed 100,000.
SECTION 2.2 - UNEXERCISED OPTIONS
If any Option expires or is canceled without having been fully exercised, the
number of shares subject to such Option but as to which such Option was not
exercised prior to its expiration or cancellation may again be granted
hereunder, subject to the limitations of Section 2.1.
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SECTION 2.3 - CHANGES IN COMPANY'S SHARES
In the event that the outstanding shares of Common Stock of the Company are
hereafter changed into or exchanged for a different number or kind of shares or
other securities of the Company, or of another corporation, by reason of
reorganization, merger, consolidation, recapitalization, reclassification, or
the number of shares is increased or decreased by reason of a stock split-up,
stock dividend, combination of shares or any other increase or decrease in the
number of such shares of Common Stock effected without receipt of consideration
by the Company (provided, however, that conversion of any convertible securities
of the Company shall not be deemed to have been effected without receipt of
consideration), the Board acting in good faith shall make appropriate
adjustments in the number and kind of shares for the purchase of which Options
may be granted, including adjustments of the limitations in Section 2.1 on the
maximum number and kind of shares which may be issued on exercise of Options.
ARTICLE III
GRANTING OF OPTIONS
SECTION 3.1 - ELIGIBILITY
Any Outside Director of the Company shall be eligible to be granted Options.
SECTION 3.2 - GRANTING OF OPTIONS
3.2.1 - INITIAL GRANT
Each person who is an Outside Director at the time the Plan is adopted by the
Board shall immediately upon such adoption be granted an Option to purchase the
number of shares equal to $22,500 divided by one-third of the closing price of
the Common Stock on the date of grant. Any person who is not an Outside
Director at such time, but who later becomes an Outside Director, shall be
granted on the date of his election or appointment as an Outside Director an
Option to purchase the number of shares equal to $22,500 divided by one-third of
the closing price of the Common Stock on the date of grant.
3.2.2 - SUBSEQUENT GRANTS
Each Outside Director who has received a grant ("Initial Grant") pursuant to
Section 3.2.1 shall be granted on each of the third, sixth and ninth
anniversaries of the date of such Initial Grant (so long as he is an Outside
Director at the close of business on such anniversary) an Option to purchase the
number of shares equal to $22,500 divided by one-third of the closing price of
the Common Stock on the date of grant.
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3.2.3 - GRANTS IN LIEU OF CASH COMPENSATION
Each Outside Director may elect to forego cash payment of all or any
mechanically calculable portion of his or her Director Fees for any fiscal year
("Cash Replacement Fees") and receive, on the last day of such fiscal year, an
Option to purchase the number of shares equal to the Cash Replacement Fees
divided by one-third of the closing price of the Common Stock on the last day of
such fiscal year. An election pursuant to this Section 3.2.3 shall be made
prior to the date that is six months from the commencement of the fiscal year to
which the grant relates. Such election shall be irrevocable for such fiscal
year, and such election can only be changed with respect to future fiscal years
by written notice at least six months prior to the commencement of the fiscal
year in question.
SECTION 3.3 - NO OPTION GRANT WHERE PROHIBITED
No person shall be granted an Option under this Plan if at the time of such
grant, the grant is prohibited by applicable law or by the policies of the
employer of such person or of any other company of which such person is a member
of the board of directors or a general partner.
ARTICLE IV
TERMS OF OPTIONS
SECTION 4.1 - OPTION AGREEMENT
As soon as practicable after an Outside Director becomes entitled to the grant
of an Option under Section 3.2 above, the Secretary shall cause to be executed a
written Stock Option Agreement, which shall be executed by the Outside Director
and an authorized officer of the Company and which shall contain such terms and
conditions as approved by the Board consistent with the Plan.
SECTION 4.2 - OPTION PRICE
The exercise price per share subject to each Option granted pursuant to Section
3.2 shall be the Fair Market Value on the date such Option is granted.
SECTION 4.3 - TERM
The term of each Option shall be five years from date of grant subject to
earlier termination in accordance with Sections 4.5 or 4.6.
SECTION 4.4 - EXERCISE SCHEDULE
An Option granted under Section 3.2.1 or 3.2.2 shall be exercisable on the
following schedule: Beginning on the first anniversary of the date of grant, for
up to 33 1/3% of the shares covered by the Option; beginning on the second
anniversary of the date of grant, for up to 66 2/3% of
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such shares; and beginning on the third anniversary of the date of grant, and
thereafter until the earlier of expiration of the Option's term or termination
of the Option in accordance with Sections 4.5 or 4.6, for up to 100% of such
shares. An Option granted under Section 3.2.3 shall be exercisable in full at
any time on and after the date of grant until the earlier of expiration of the
Option's term or termination of the Option in accordance with Sections 4.5 or
4.6. Notwithstanding the foregoing, an Option held by an Outside Director shall
become immediately exercisable in full upon the death or disability of such
Outside Director while serving as a director, upon an unsuccessful attempt by
such Outside Director to win reelection to the Board after nomination for
election at the recommendation of the Board, or upon the adoption by the Company
of a plan for all liquidation, dissolution, merger, consolidation or
reorganization as described in clause (x), (y) or (z) of Section 4.6.
SECTION 4.5 - TERMINATION OF MEMBERSHIP ON THE BOARD
Except in the case of death, disability, or an unsuccessful attempt to win
reelection to the Board after nomination for election at the recommendation of
the Board, if an Outside Director's membership on the Board terminates for any
reason, an Option held at the date of termination (but only to the extent
exercisable at the time of such termination in accordance with Section 4.4) may
be exercised in whole or in part at any time within one year after the date of
such termination (but in no event after the term of the Option expires) and
shall thereafter terminate. If an Outside Director's membership terminates
because of death, disability, or an unsuccessful attempt to win reelection to
the Board after nomination for election at the recommendation of the Board, an
Option held at the date of such termination may be exercised for up to 100% of
the shares covered by such Options at any time within three years after the date
of such termination (but in no event after the term of the Option expires) and
shall thereafter terminate.
SECTION 4.6 - CHANGE OF CONTROL
In the event of (x) a dissolution or liquidation of the Company, (y) a merger or
consolidation in which the Company is not the surviving corporation or (z) any
other capital reorganization in which more than fifty percent (50%) of the
shares of the Company entitled to vote are exchanged, the Outside Director shall
have the right to exercise such Option as to an equivalent number of shares of
stock of any corporation succeeding the Company or acquiring its business by
reason of such liquidation, dissolution, merger, consolidation or
reorganization.
SECTION 4.7 - ADJUSTMENTS IN OUTSTANDING OPTIONS
In the event that the outstanding shares of Common Stock subject to Options are
changed into or exchanged for a different number or kind of shares of the
Company or other securities of the Company by reason of merger, consolidation,
recapitalization, reclassification, or the number of shares is increased or
decreased by reason of a stock split-up, stock dividend, combination of shares
or any other increase or decrease in the number of such shares of Common Stock
effected without receipt of consideration by the Company (provided, however,
that conversion of any convertible securities of the Company shall not be deemed
to have been effected without
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receipt of consideration), the Board acting in good faith shall make appropriate
adjustments in the number and kind of shares as to which all outstanding
Options, or portions thereof then unexercised, shall be exercisable, to the end
that after such event the Optionee's proportionate interest shall be maintained
as before the occurrence of such event. Such adjustment in an outstanding
Option shall be made without change in the total price applicable to the Option
or the unexercised portion of the Option (except for any change in the aggregate
price resulting from rounding-off of share quantities or prices) and with any
necessary corresponding adjustment in Option price per share. Any such
adjustment made by the Board shall be final and binding upon all Optionees, the
Company and all other interested persons. This Section 4.7 shall be subject to
Section 4.6.
ARTICLE V
EXERCISE OF OPTIONS
SECTION 5.1 - PERSON ELIGIBLE TO EXERCISE
During the lifetime of the Optionee, only the Optionee may exercise an Option
(or any portion thereof) granted to the Optionee. After the death of the
Optionee, any exercisable portion of an Option may, prior to the time when such
portion becomes unexercisable under the Plan or the applicable Stock Option
Agreement, be exercised by the Optionee's personal representative or by any
person empowered to do so under the deceased Optionee's will or under the then
applicable laws of descent and distribution.
SECTION 5.2 - PARTIAL EXERCISE
At any time and from time to time prior to the time when any exercisable Option
or exercisable portion thereof becomes unexercisable under the Plan or the
applicable Stock Option Agreement, such Option or portion thereof may be
exercised in whole or in part; provided, however, that the Company shall not be
required to issue fractional shares and any partial exercise of the Option shall
be with respect to no less than 100 shares (or such lesser remaining number of
shares subject to the Option).
SECTION 5.3 - MANNER OF EXERCISE
An exercisable Option, or any exercisable portion thereof, may be exercised
solely by delivery to the Secretary of all of the following prior to the time
when such Option or such portion becomes unexercisable under the Plan or the
applicable Stock Option Agreement:
5.3.1 - NOTICE
Notice in writing signed by the Optionee or other person then entitled to
exercise such Option or portion, stating that such Option or portion is
exercised, such notice complying with all applicable rules established by the
Board.
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5.3.2 - PAYMENT
(a) Full payment (in cash or by check) for the shares with respect to which such
Option or portion is thereby exercised; or
(b) With the consent of the Board, shares of the Company's Common Stock owned by
the Optionee duly endorsed for transfer to the Company; or
(c) With the consent of the Board and subject to the timing requirements of
Section 5.4, shares of the Company's Common Stock issuable to the Optionee upon
exercise of the Option, with a Fair Market Value on the date of Option exercise
equal to the aggregate Option price of the shares with respect to which such
Option or portion is thereby exercised; or
(d) With the consent of the Board, a full recourse promissory note bearing
interest (at least such rate as shall then preclude the imputation of interest
under the Code or any successor provision) and payable upon such terms as may be
prescribed by the Board. The Board may also prescribe the form of such note and
the security to be given for such note. No Option may, however, be exercised by
delivery of a promissory note or by a loan from the Company when or where such
loan or other extension of credit is prohibited by law; or
(e) With the consent of the Board, any combination of the consideration provided
in the foregoing subsections (a), (b), (c) and (d).
5.3.3 - TAX WITHHOLDING
The payment to the Company of all amounts, if any, which it is required to
withhold under federal, state or local law in connection with the exercise of
the Option; with the consent of the Board, (i) shares of the Company's Common
Stock owned by the Optionee duly endorsed for transfer or (ii) subject to the
timing requirements of Section 5.4, shares of the Company's Common Stock
issuable to the Optionee upon exercise of the Option, valued at Fair Market
Value as of the date of Option exercise, may be used to make all or part of such
payment.
5.3.4 - SECURITIES REPRESENTATIONS
Such representations and documents as the Board deems necessary or advisable to
effect compliance with all applicable provisions of the Securities Act and any
other federal or state securities laws or regulations. The Board may also take
whatever additional actions it deems appropriate to effect such compliance
including, without limitation, placing legends on share certificates and issuing
stop-transfer orders to transfer agents and registrars; and
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5.3.5 - PROOF OF THIRD PARTY RIGHT TO EXERCISE
In the event that the Option or portion thereof shall be exercised pursuant to
Section 5.1 by any person or persons other than the Optionee, appropriate proof
of the right of such person or persons to exercise the Option or portion
thereof.
SECTION 5.4 - CERTAIN TIMING REQUIREMENTS
Shares of the Company's Common Stock issuable to the Optionee upon exercise of
the Option may be used to satisfy the Option price or the tax withholding
consequences of such exercise only (i) during the period beginning on the third
business day following the date of release of the quarterly or annual summary
statement of sales and earnings of the Company and ending on the twelfth
business day following such date or (ii) pursuant to an irrevocable written
election by the Optionee to use shares of the Company's Common Stock issuable to
the Optionee upon exercise of the Option to pay all or part of the Option price
or the withholding taxes (subject to the approval required under Sections 5.3.2
and 5.3.3) made at least six months prior to the payment of such Option price or
withholding taxes.
SECTION 5.5 - CONDITIONS TO ISSUANCE OF STOCK CERTIFICATES
The shares of stock issuable and deliverable upon the exercise of an Option, or
any portion thereof, may be either previously authorized but unissued shares or
issued shares which have then been reacquired by the Company. The Company shall
not be required to issue or deliver any certificate or certificates for shares
of stock purchased upon the exercise of any Option or portion thereof prior to
fulfillment of all of the following conditions:
(a) The admission of such shares to listing on all stock exchanges on which such
class of stock is then listed;
(b) The completion of any registration or other qualification of such shares
under any state or federal law or under the rulings or regulations of the
Securities and Exchange Commission or any other governmental regulatory body,
which the Board shall deem necessary or advisable;
(c) The obtaining of any approval or other clearance from any state or federal
governmental agency which the Board shall determine to be necessary or
advisable;
(d) The payment to the Company (or other employer corporation) of all amounts
which it is required to withhold under federal, state or local law in connection
with the exercise of the Option; and
(e) The lapse of such reasonable period of time following the exercise of the
Option as the Board may establish from time to time for reasons of
administrative convenience.
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SECTION 5.6 - RIGHTS AS STOCKHOLDERS
The holders of Options shall not be, nor have any of the rights or privileges
of, stockholders of the Company in respect to any shares purchasable upon the
exercise of any part of an Option unless and until certificates representing
such shares have been issued by the Company to such holders.
SECTION 5.7 - TRANSFER RESTRICTIONS
Unless otherwise approved in writing by the Board, no shares acquired upon
exercise of any Option by any Outside Director may be sold, assigned, pledged,
encumbered or otherwise transferred until at least six months have elapsed from
(but excluding) the date that such Option was granted.
ARTICLE VI
ADMINISTRATION
SECTION 6.1 - DUTIES AND POWERS OF THE BOARD
It shall be the duty of the Board to conduct the general administration of the
Plan in accordance with its provisions. The Board shall have the power to
interpret the Plan and the Options and to adopt such rules for the
administration, interpretation and application of the Plan as are consistent
therewith and to interpret, amend or revoke any such rules.
SECTION 6.2 - COMPENSATION; PROFESSIONAL ASSISTANCE; GOOD FAITH ACTIONS
All expenses and liabilities incurred by the Board in connection with the
administration of the Plan shall be borne by the Company. The Board may employ
attorneys, consultants, accountants, appraisers, brokers or other persons. The
Board, the Company and its officers and directors shall be entitled to rely upon
the advice, opinions or valuations of any such persons. All actions taken and
all interpretations and determinations made by the Board in good faith shall be
final and binding upon all Optionees, the Company and all other interested
persons. The Board shall not be personally liable for any action, determination
or interpretation made in good faith with respect to the Plan or the Options,
and the Board shall be fully protected by the Company in respect to any such
action, determination or interpretation.
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ARTICLE VII
OTHER PROVISIONS
SECTION 7.1 - OPTIONS NOT TRANSFERABLE
No Option or interest or right therein or part thereof shall be liable for the
debts, contracts or engagements of the Optionee or his successors in interest or
shall be subject to disposition by transfer, alienation, anticipation, pledge,
encumbrance, assignment or any other means whether such disposition be voluntary
or involuntary or by operation of law by judgment, levy, attachment, garnishment
or any other legal or equitable proceedings (including bankruptcy), and any
attempted disposition thereof shall be null and void and of no effect; provided,
however, that nothing in this Section 7.1 shall prevent transfers by will or by
the applicable laws of descent and distribution.
SECTION 7.2 - AMENDMENT, SUSPENSION OR TERMINATION OF THE PLAN
The Plan may be wholly or partially amended or otherwise modified (generally not
more frequently than once every six months), suspended or terminated at any time
or from time to time by the Board. However, without approval of the Company's
stockholders given within twelve months before or after the action by the Board,
no action of the Board may: (i) except as provided in Section 2.3, increase any
limit imposed in Section 2.1 on the maximum number of shares which may be issued
upon exercise of Options; (ii) materially modify the eligibility requirements of
Section 3.1; (iii) reduce the minimum Option price requirements of Section 4.2;
(iv) extend the limit imposed in this Section 7.2 on the period during which
Options may be granted; or (v) amend or modify the Plan in a manner requiring
stockholder approval under Rule 16b-3. Notwithstanding anything to the contrary
contained herein, the Board, with respect to the Plan or any Option, shall not
(y) amend or modify any provision concerning the amount, price and timing of any
Option (including, without limitation, the provisions of Sections 3.2 and 4.2 of
the Plan) more than once every six months, other than to comport with changes in
the Code, the Employee Retirement Income Security Act of 1974, as amended, or
the rules thereunder, or (z) otherwise amend or modify the Plan or any Option in
any manner inconsistent with the requirements of Rule 16b-3(c)(2)(ii). Neither
the amendment, suspension nor termination of the Plan shall, without the consent
of the holder of the Option, alter or impair any rights or obligations under any
Option theretofore granted. No Option may be granted during any period of
suspension nor after termination of the Plan, and in no event may any Option be
granted under this Plan after the expiration of ten years from the date the Plan
is adopted by the Board.
SECTION 7.3 - EFFECTIVE DATE OF PLAN
The Plan shall be effective on the date it is adopted by the Board, but all
Options shall be conditioned upon approval of the Plan at a duly held meeting of
stockholders by the affirmative
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vote of the holders of a majority of the voting power of the shares of the
Company represented in person or by proxy and entitled to vote at the meeting.
SECTION 7.4 - EFFECT OF PLAN UPON OTHER OPTION AND COMPENSATION PLANS
The adoption of this Plan shall not affect any other compensation or incentive
plans in effect for the Company, any Parent Corporation or any Subsidiary.
Nothing in this Plan shall be construed to limit the right of the Company, any
Parent Corporation or any Subsidiary (a) to establish any other forms of
incentives or compensation for directors of the Company or (b) to grant or
assume options otherwise than under this Plan in connection with any proper
corporate purpose, including, but not by way of limitation, the grant or
assumption of options in connection with the acquisition by purchase, lease,
merger, consolidation or otherwise, of the business, stock or assets of any
corporation, firm or association.
SECTION 7.5 - NO RIGHT TO CONTINUED MEMBERSHIP ON THE BOARD
Nothing in this Plan or in any Stock Option Agreement shall confer upon any
Outside Director any right to continue as a director of the Company or shall
interfere with or restrict in any way the rights of the Company and its
stockholders, which are hereby expressly reserved, to remove any Outside
Director at any time for any reason whatsoever, with or without cause.
SECTION 7.6 - TITLES
Titles are provided herein for convenience only and are not to serve as a basis
for interpretation or construction of the Plan.
SECTION 7.7 - CONFORMITY TO SECURITIES LAWS
The Plan is intended to conform to the extent necessary with all provisions of
the Securities Act and the Exchange Act and any and all regulations and rules
promulgated by the Securities and Exchange Commission thereunder, including
without limitation Rule 16b-3. Without limiting the generality of the
foregoing, this Plan is intended to comply with the formula award plan
provisions set forth in Rule 16b-3(c)(2)(ii). Notwithstanding anything herein
to the contrary, the Plan shall be administered, and Options shall be granted
and may be exercised, only in such a manner as to conform to such laws, rules
and regulations. To the extent permitted by applicable law, the Plan and
options granted hereunder shall be deemed amended to the extent necessary to
conform to such laws, rules and regulations.
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GETCHELL GOLD CORPORATION
1996 LONG TERM EQUITY INCENTIVE PLAN
SECTION 1. PURPOSE; DEFINITIONS.
(a) PURPOSE. The purpose of the Plan is to provide eligible employees
of, and consultants to, Getchell Gold Corporation (the "Company"), and its
subsidiaries and affiliates, an opportunity to participate in the Company's
future by offering them long-term performance-based and other incentives and
equity interests in the Company so as to retain, attract and motivate its
personnel.
(b) DEFINITIONS. For purposes of the Plan, the following terms have
the following meanings:
(i) "AFFILIATE" means a parent or subsidiary corporation, as
defined in the applicable provisions (currently Section 424) of the Code.
(ii) "AWARD" means any award under the Plan, including any
Option, Stock Appreciation Right, Restricted Stock, or Performance Share Award.
(iii) "AWARD AGREEMENT" means, with respect to each Award, the
signed written agreement between the Company and the Plan participant setting
forth the terms and conditions of the Award.
(iv) "AWARD LIMIT" means 150,000 shares of Stock.
(v) "BOARD" means the Board of Directors of the Company.
(vi) "CHANGE IN CONTROL" has the meaning set forth in Section
9(a).
(vii) "CHANGE IN CONTROL PRICE" has the meaning set forth in
Section 9(c).
(viii) "CODE" means the Internal Revenue Code of 1986, as amended
from time to time, and any successor law.
(ix) "COMMISSION" means the Securities and Exchange Commission
and any successor agency.
(x) "COMMITTEE" means the Committee referred to in Section 2.
(xi) "COMPANY" means Getchell Gold Corporation.
(xii) "DISABILITY" means permanent and total disability as
determined by the Committee for purposes of the Plan.
(xiii) "DISINTERESTED PERSON" has the meaning set forth in Rule
16b-3(c)(2)(i) under the Exchange Act and any successor definition adopted by
the Commission.
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(xiv) "EXCHANGE ACT" means the Securities and Exchange Act of
1934, as amended from time to time, and any successor law.
(xv) "FAIR MARKET VALUE" means as of any given date:
(A) If the Stock is listed on any established stock
exchange or a national market system, including without limitation the Nasdaq
National Market, the closing sales price for the Stock or the closing bid if no
sales were reported, as quoted on such system or exchange (or the largest such
exchange) for the date the value is to be determined (or if there are no sales
for such date, then for the last preceding business day on which there were
sales), as reported in the WALL STREET JOURNAL or similar publication.
(B) If the Stock is regularly quoted by a recognized
securities dealer but selling prices are not reported, the mean between the high
bid and low asked prices for the Stock on the date the value is to be determined
(or if there are no quoted prices for the date of grant, then for the last
preceding business day on which there were quoted prices).
(C) In the absence of an established market for the
Stock, as determined in good faith by the Committee, with reference to the
Company's net worth, prospective earning power, dividend-paying capacity, and
other relevant factors, including the goodwill of the Company, the economic
outlook in the Company's industry, the Company's position in the industry and
its management, and the values of stock of other corporations in the same or a
similar line of business.
(xvi) "INCENTIVE STOCK OPTION" means any Option intended to be
and designated as an "incentive stock option" within the meaning of Section 422
of the Code.
(xvii) "NON-QUALIFIED STOCK OPTION" means any Option that is not
an Incentive Stock Option.
(xviii) "OPTION" means an option granted under Section 5.
(xix) "PERFORMANCE SHARE" means the equivalent, as of any time
such assessment is made, of the Fair Market Value of one share of Stock.
(xx) "PERFORMANCE SHARE AWARD" means an Award under Section 8.
(xxi) "PLAN" means this Getchell Gold Corporation 1996 Long
Term Equity Incentive Plan, as amended from time to time.
(xxii) "RESTRICTED STOCK" means an Award of Stock subject to
restrictions, as more fully described in Section 7.
(xxiii) "RULE 16b-3" means Rule 16b-3 under Section 16(b) of the
Exchange Act, as amended from time to time, and any successor rule.
(xxiv) "STOCK" means the Common Stock, $.01 par value, of the
Company, and any successor security.
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(xxv) "STOCK APPRECIATION RIGHT" means an Award granted under
Section 6.
(xxvi) "SUBSIDIARY" has the meaning set forth in Section 424 of
the Code.
(xxvii) "TERMINATION" means, for purposes of the Plan, with respect
to a participant, that the participant has ceased to be, for any reason, an
employee of, or a consultant to, the Company, a Subsidiary or an Affiliate.
SECTION 2. ADMINISTRATION.
(a) COMMITTEE. The Plan shall be administered by a committee of the
Board (the "Committee"), composed of not less than two directors of the Company
appointed by and holding office at the pleasure of the Board, each of whom is
both a disinterested person as defined in Rule 16b-3 ("Disinterested Person")
(unless the Committee determines that Rule 16b-3 is not applicable to the Plan)
and an "outside director" for purposes of Section 162(m) of the Code ("Outside
Director"). Appointment of Committee members shall be effective upon acceptance
of appointment. Committee members may resign at any time by delivering written
notice to the Board. Vacancies in the Committee shall be filled by the Board.
The Committee may act only by a majority of its members, except that the
Committee (i) may authorize any one or more of its members or any officer of the
Company to execute and deliver documents on behalf of the Committee and (ii) so
long as not otherwise required for the Plan to comply with Rule 16b-3 (unless
the Committee determines that Rule 16b-3 is not applicable to the Plan), may
delegate to one or more officers or directors of the Company authority to grant
Awards to persons who are not subject to Section 16 of the Exchange Act with
respect to Stock. The Board shall have no right to exercise any of the rights
or duties of the Committee under the Plan unless (i) each member of the Board is
both a Disinterested Person and an Outside Director or (ii) such right is with
respect to matters which, under Rule 16b-3 or Section 162(m) of the Code, or any
regulations or rules issued thereunder, are not required to be determined in the
sole discretion of the Committee.
(b) AUTHORITY. The Committee shall grant Awards to eligible employees
and consultants. In particular and without limitation, the Committee, subject
to the terms of the Plan, shall:
(i) select the officers, other employees and consultants to
whom Awards may be granted;
(ii) determine whether and to what extent Awards are to be
granted under the Plan;
(iii) subject to the Award Limit, determine the number of shares
to be covered by each Award granted under the Plan;
(iv) determine the terms and conditions of any Award granted
consistent with this Plan and any related loans to be made by the Company, based
upon factors determined by the Committee; PROVIDED, HOWEVER, that the terms and
conditions of any Awards intended to qualify as performance-based compensation
as described in Section 162(m) of the Code shall include, but not be limited to,
such terms and conditions as may be necessary to meet the applicable provisions
of Section 162(m) of the Code; and
(v) determine to what extent and under what circumstances any
Award payments may
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be deferred by a participant.
(c) COMMITTEE DETERMINATIONS BINDING. The Committee may adopt, alter
and repeal administrative rules, guidelines and practices governing the Plan as
it from time to time shall deem advisable, interpret the terms and provisions of
the Plan, any Award and any Award Agreement, and otherwise supervise the
administration of the Plan. Any determination made by the Committee pursuant to
the provisions of the Plan with respect to any Award shall be made in its sole
discretion at the time of the grant of the Award or, unless in contravention of
any express term of the Plan or Award, at any later time. All decisions made by
the Committee under the Plan shall be binding on all persons, including the
Company and Plan participants.
SECTION 3. SHARES SUBJECT TO PLAN.
(a) NUMBER OF SHARES. The total number of shares of Stock reserved and
available for issuance pursuant to Awards under the Plan shall be 900,000
shares. Such shares may consist, in whole or in part, of authorized and
unissued shares or shares reacquired in private transactions or open market
purchases, but all shares issued under the Plan regardless of source shall be
counted against the 900,000 share limitation. If any Option terminates or
expires without being exercised in full or if any shares of Stock subject to an
Award are forfeited, or if an Award otherwise terminates without a payment being
made to the participant in the form of Stock, the shares issuable under such
Option or Award shall again be available for issuance in connection with Awards.
If any shares of Stock subject to an Award are repurchased by the Company, the
shares issuable under such Award shall again be available for issuance in
connection with Awards other than Options and Stock Appreciation Rights. To the
extent an Award is paid in cash, the number of shares of Stock representing, at
Fair Market Value on the date of the payment, the value of the cash payment
shall not be available for later grant under the Plan.
(b) COMPLIANCE WITH THE AWARD LIMIT AND SECTION 162(m) OF THE CODE.
The maximum number of shares which may be subject to options, rights or other
awards granted under the Plan to any individual in any calendar year shall not
exceed the Award Limit. To the extent required by Section 162(m) of the Code,
shares subject to Options which are canceled continue to be counted against the
Award Limit and if, after grant of an Option, the price of shares subject to
such Option is reduced, the transaction is treated as a cancellation of the
Option and a grant of a new Option and both the Option deemed to be canceled and
the Option deemed to be granted are counted against the Award Limit.
Furthermore, to the extent required by Section 162(m) of the Code, if, after
grant of a Stock Appreciation Right, the base amount on which stock appreciation
is calculated is reduced to reflect a reduction in the Fair Market Value of the
Stock, the transaction is treated as a cancellation of the Stock Appreciation
Right and a grant of a new Stock Appreciation Right and both the Stock
Appreciation Right deemed to be canceled and the Stock Appreciation Right deemed
to be granted are counted against the Award Limit.
(c) ADJUSTMENTS. In the event of any merger, reorganization,
consolidation, recapitalization, stock dividend, stock split, spin-off, sale of
substantial assets, or other change in corporate structure affecting the Stock,
such substitution or adjustments shall be made in the aggregate number of shares
of Stock reserved for issuance under the Plan, in the Award Limit, in the number
and exercise price of shares subject to outstanding Options and in the number of
shares subject to other outstanding Awards, as may be determined to be
appropriate by the Committee, in its sole discretion; PROVIDED, that the number
of shares subject to any Award shall always be rounded down to the nearest whole
number. Such
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adjusted exercise price shall also be used to determine the amount payable by
the Company upon the exercise of any Stock Appreciation Right associated with
any Option. With respect to Options and Stock Appreciation Rights intended to
qualify as performance-based compensation under Section 162(m), no adjustments
shall be authorized pursuant to this Section 3(c) or any other provision of the
Plan to the extent that such adjustment would cause the Plan to violate
Section 422(b) of the Code or would cause such Option or Stock Appreciation
Right to fail to so qualify under Section 162(m), as the case may be, or any
successor provisions thereto. Furthermore, no such adjustment or action shall
be authorized to the extent such adjustment or action would violate Section 16
of the Exchange Act or Rule 16b-3.
SECTION 4. ELIGIBILITY.
Subject to the Award Limit, awards may be granted to officers and other
employees of, and consultants to, the Company and its Affiliates (excluding any
person who serves only as a director).
SECTION 5. STOCK OPTION.
(a) TYPES. Any Option granted under the Plan shall be in such form as
the Committee may from time to time approve. The Committee shall have the
authority to grant to any participant Incentive Stock Options, Non-Qualified
Stock Options or any type of Option (in each case with or without Stock
Appreciation Rights). Incentive Stock Options may be granted only to employees
of the Company, its parent (within the meaning of Section 424 of the Code) or
Subsidiaries. Any portion of an Option that does not qualify as an Incentive
Stock Option shall constitute a Non-Qualified Stock Option.
(b) TERMS AND CONDITIONS. Options granted under the Plan shall be
subject to the following terms and conditions:
(i) APPLICABLE AWARD AGREEMENTS. Award Agreements
evidencing Options intended to qualify as performance-based compensation as
described in Section 162(m) of the Code shall contain such terms and conditions
as may be necessary to meet the applicable provisions of Section 162(m) of the
Code. Award Agreements evidencing Incentive Stock Options shall contain such
terms and conditions as may be necessary to meet the applicable provisions of
Section 422 of the Code. The grant shall automatically terminate without any
action by the Company in the event that an Award Agreement is not executed by
the participant within 30 days after delivery of the Option to the participant.
(ii) OPTION TERM. The term of each Option shall be fixed by the
Committee, but no Incentive Stock Option shall be exercisable more than 10 years
after the date the Option is granted and no Non-Qualified Stock Option shall be
exercisable more than 11 years after the date the Option is granted. If, at the
time the Company grants an Incentive Stock Option the optionee owns directly or
by, attribution stock possessing more than 10% of the total combined voting
power of all classes of stock of the Company, or any Affiliate of the Company,
the Incentive Stock Option shall not be exercisable more than five years after
the date of grant.
(iii) GRANT DATE. The Company may grant Options under the Plan
at any time and from time to time before the Plan terminates. The Committee
shall specify the date of grant or, if it fails to, the date of grant shall be
the date of action taken by the Committee to grant the Option; provided,
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that no Option may be exercised prior to execution of the applicable Award
Agreement. However, if an Option is approved in anticipation of employment, the
date of grant shall be the date the intended optionee is first treated as an
employee for payroll purposes.
(iv) EXERCISE PRICE. The exercise price per share of Stock
purchasable under a Non-Qualified Stock Option shall be equal to the Fair Market
Value on the date of grant. The exercise price per share of Stock purchasable
under an Incentive Stock Option shall be equal to at least the Fair Market Value
on the date of grant; PROVIDED, that if at the time the Company grants an
Incentive Stock Option, the optionee owns directly or by attribution stock
possessing more than 10% of the total combined voting power of all classes of
stock of the Company, or any Affiliate of the Company, the exercise price shall
be not less than 110% of the Fair Market Value on the date the Incentive Stock
Option is granted.
(v) EXERCISABILITY. Subject to the other provisions of the
Plan, an Option shall be exercisable in its entirety at grant or at such times
and in such amounts as are specified in the Award Agreement evidencing the
Option. The Committee, in its absolute discretion, at any time may waive any
limitations respecting the time at which an Option first becomes exercisable in
whole or in part.
(vi) METHOD OF EXERCISE; PAYMENT. To the extent the right to
purchase shares has accrued, Options may be exercised, in whole or in part, from
time to time, by written notice from the optionee to the Company stating the
number of shares being purchased, accompanied by payment of the exercise price
for the shares. The Committee, in its discretion, may elect at the time of
Option exercise that any Non-Qualified Stock Option be settled in cash rather
than Stock.
(vii) NO DISQUALIFICATION. Notwithstanding any other provision
in the Plan, no term of the Plan relating to Incentive Stock Options shall be
interpreted, amended or altered nor shall any discretion or authority granted
under the Plan be exercised so as to disqualify the Plan under Section 422 of
the Code or, without the consent of the optionee affected, to disqualify any
Incentive Stock Option under such Section 422 of the Code.
SECTION 6. STOCK APPRECIATION RIGHTS.
(a) RELATIONSHIP TO OPTIONS; NO PAYMENT BY PARTICIPANT. A Stock
Appreciation Right may be awarded either (i) with respect to Stock subject to an
Option held by a participant, or (ii) without reference to an Option. The
Committee, in its discretion, may determine whether a Stock Appreciation Right
is to qualify as performance-based compensation as described in Section 162(m)
of the Code and the Award Agreements evidencing Stock Appreciation Rights
intended to so qualify shall contain such terms and conditions as may be
necessary to meet the applicable provisions of Section 162(m) of the Code. If
an Option is an Incentive Stock Option, a Stock Appreciation Right granted with
respect to such Option may be granted only at the time of grant of the related
Incentive Stock Option, but if the Option is a Non-Qualified Stock Option, the
Stock Appreciation Right may be granted either simultaneously with the grant of
the related Non-Qualified Stock Option or at any time during the term of such
related Non-Qualified Stock Option. No consideration shall be paid by a
participant with respect to a Stock Appreciation Right.
(b) WHEN EXERCISABLE. A Stock Appreciation Right shall be exercisable
at such times and in whole or in part, each as determined by the Committee,
subject, with respect to participants subject
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to Section 16(b) of the Exchange Act, to Rule 16b-3. Unless the Committee
determines that Rule 16b-3 is not applicable to the Plan, any exercise by the
participant of a Stock Appreciation Right for cash shall be made only (i) during
the window period specified in Rule 16b-3(e)(3) and any successor rule (the
"Window Period") or (ii) pursuant to an irrevocable written election by the
participant to receive cash, in whole or in part, upon exercise of his Stock
Appreciation Right (subject to the approval of the Committee) made at least 6
months prior to the exercise of the Stock Appreciation Right. If a Stock
Appreciation Right is granted with respect to an Option, unless the Award
Agreement otherwise provides, the Stock Appreciation Right may be exercised only
to the extent to which shares covered by the Option are not at the time of
exercise subject to repurchase by the Company.
(c) EFFECT ON RELATED RIGHT; TERMINATION OF STOCK APPRECIATION RIGHT.
If a Stock Appreciation Right granted with respect to an Option is exercised,
the Option shall cease to be exercisable and shall be cancelled to the extent of
the number of shares with respect to which the Stock Appreciation Right was
exercised. Upon the exercise or termination of an Option, related Stock
Appreciation Rights shall terminate to the extent of the number of shares as to
which the Option was exercised or terminated, except that, unless otherwise
determined by the Committee at the time of grant, a Stock Appreciation Right
granted with respect to less than the full number of shares covered by a related
Option shall not be reduced until the number of shares covered by exercise or
termination of the related Option exceeds the number of shares not covered by
the Stock Appreciation Right. A Stock Appreciation Right granted independently
from an Option shall terminate and shall be no longer exercisable at the time
determined by the Committee at the time of grant, but not later than 10 years
from the date of grant. Upon the Termination of the participant, a Stock
Appreciation Right granted with respect to an Option shall be exercisable only
to the extent to which the Option is then exercisable.
(d) FORM OF PAYMENT UPON EXERCISE. Despite any attempt by a
participant to elect payment in a particular form upon exercise of a Stock
Appreciation Right, the Committee, in its discretion, may elect to cause the
Company to pay cash, Stock, or a combination of cash and Stock upon exercise of
the Stock Appreciation Right.
(e) AMOUNT OF PAYMENT UPON EXERCISE. Upon the exercise of a Stock
Appreciation Right, the participant shall be entitled to receive one of the
following payments, as determined by the Committee under Section 6(d):
(i) STOCK. That number of whole shares of Stock equal to
the number computed by dividing (A) an amount (the "Stock Appreciation Right
Spread"), rounded to the nearest whole dollar, equal to the product computed by
multiplying (x) the excess of (1) if the Stock Appreciation Right may only be
exercised during the Window Period, the highest Fair Market Value on any day
during the Window Period, and otherwise, the Fair Market Value on the date the
Stock Appreciation Right is exercised, over (2) the exercise price per share of
Stock of the related Option, or in the case of a Stock Appreciation Right
granted without reference to an Option, such other price as the Committee
establishes at the time the Stock Appreciation Right is granted, by (y) the
number of shares of Stock with respect to which a Stock Appreciation Right is
being exercised by (B) (1) if the Stock Appreciation Right may only be exercised
during the Window Period, the highest Fair Market Value during the Window Period
in which the Stock Appreciation Right was exercised, and (2) otherwise, the Fair
Market Value on the date the Stock Appreciation Right is exercised; plus, if the
foregoing calculation yields a fractional share, an amount of cash equal to the
applicable Fair Market Value multiplied by such fraction (such payment to be the
difference of the fractional share); or
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(ii) CASH. An amount in cash equal to the Stock Appreciation
Right Spread; or
(iii) CASH AND STOCK. A combination of cash and Stock, the
combined value of which shall equal the Stock Appreciation Right Spread.
SECTION 7. RESTRICTED STOCK.
Shares of Restricted Stock shall be subject to the following terms and
conditions:
(a) PRICE. Participants awarded Restricted Stock, within 45 days of
receipt of the applicable Award Agreement, which in no event shall be later than
10 days after the Award grant date, shall pay to the Company, if required by
applicable law, an amount at least equal to the par value of the Stock subject
to the Award. If such payment is not made and received by the Company by such
date, the Award of Restricted Stock shall lapse.
(b) RESTRICTIONS. Subject to the provisions of the Plan and the Award
Agreement, during a period set by the Committee, commencing one year and not
exceeding 10 years from the date of such award (the "Restriction Period"), the
participant shall not be permitted to sell, assign, transfer, pledge or
otherwise encumber shares of Restricted Stock. Within these limits, the
Committee may in its discretion provide for the lapse of such restrictions in
installments and may accelerate or waive such restrictions, in whole or in part,
based on performance criteria as the Committee may determine.
(c) DIVIDENDS. Unless otherwise determined by the Committee, cash
dividends with respect to shares of Restricted Stock shall be automatically
reinvested in additional Restricted Stock, and dividends payable in Stock shall
be paid in the form of Restricted Stock.
(d) TERMINATION. Except to the extent otherwise provided in the Award
Agreement and pursuant to Section 7(b), upon termination of a participant's
employment for any reason during the Restriction Period, all shares still
subject to restriction shall be forfeited by the participant.
SECTION 8. PERFORMANCE SHARES.
(a) AWARDS. The Committee shall determine the nature, length (which
shall in no event exceed 10 years) and starting date of the performance period
(the "Performance Period") for each Performance Share Award. The consideration
payable by a participant with respect to a Performance Share Award shall be an
amount determined by the Committee in the exercise of the Committee's discretion
at the time of the Award; provided, that the amount of consideration may be zero
and may in no event exceed 50% of the Fair Market Value at the time of grant.
The Committee shall determine the performance objectives to be used in awarding
Performance Shares and the extent to which such Performance Shares have been
earned. Performance Periods may overlap and participants may participate
simultaneously with respect to Performance Share Awards that are subject to
different Performance Periods and different performance factors and criteria.
At the beginning of each Performance Period, the Committee shall determine for
each Performance Share Award subject to such Performance Period the number of
shares of Stock (which may constitute Restricted Stock) to be awarded to the
participant at the end of the Performance Period if and to the extent that the
relevant measures of performance for
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<PAGE>
such Performance Share Award are met. Such number of shares of Stock may be
fixed or may vary in accordance with such performance or other criteria as may
be determined by the Committee. The Committee may provide that amounts
equivalent to interest at such rates as the Committee may determine or amounts
equivalent to dividends paid shall be payable with respect to Performance Share
Awards. In addition to the provisions set forth in Section 10(j), the
Committee, in its discretion, may modify the terms of any Performance Share
Award, including the specification and measurement of performance goals.
(b) TERMINATION OF EMPLOYMENT. Except as otherwise provided in the
Award Agreement or determined by the Committee, in the event of Termination,
then the participant shall not be entitled to any payment with respect to the
Performance Shares subject to the Performance Period.
(c) FORM OF PAYMENT. Payment shall be made in the form of cash or
whole shares of Stock, as the Committee, in its discretion, shall determine.
SECTION 9. CHANGE IN CONTROL
(a) DEFINITION OF "CHANGE IN CONTROL". For purposes of Section 10(b),
a "Change in Control" means the occurrence of either of the following:
(i) any "person", as such term is used in Sections 13(d) and
14(d) of the Exchange Act (other than the Company, a Subsidiary, an Affiliate,
or a Company employee benefit plan, including any trustee of such plan acting as
trustee), is or becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the Company (or a
successor to the Company) representing 20% or more of the combined voting power
of the then outstanding securities of the Company or such successor;
(ii) at any time that the Company has registered shares under
the Exchange Act, at least 40% of the directors of the Company constitute
persons who were not at the time of their first election to the Board,
candidates proposed by a majority of the Board in office prior to the time of
such first election; or
(iii) (A) the dissolution of the Company or liquidation of more
than 50% in value of the Company or a sale of assets involving 50% or more in
value of the assets of the Company, (B) any merger or reorganization of the
Company whether or not another entity is the survivor, (C) a transaction or
related set of transactions (including without limitation a merger or tender
offer together with a related purchase of shares by the tender offeror in the
market) pursuant to which the holders, as a group, of all of the shares of the
Company outstanding prior to the transaction hold, as a group, less than 50% of
the combined voting power of the Company or any successor company outstanding
after the transaction, or (D) any other event which the Board determines, in its
discretion, would materially alter the structure of the Company or its
ownership.
(b) IMPACT OF EVENT. In the event of a "Change in Control" as defined
in Section 10(a), the following provisions shall apply:
(i) any Stock Appreciation Rights and Options outstanding as of
the date such Change
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in Control is determined to have occurred and not then exercisable and vested
shall become fully exercisable and vested; provided, that in the case of the
holder of Stock Appreciation Rights who is actually subject to Section 16(b) of
the Exchange Act, such Stock Appreciation Rights shall have been outstanding for
at least six months at the date such Change in Control is determined to have
occurred;
(ii) the restrictions and limitations applicable to any
Restricted Stock shall lapse, and such Restricted Stock shall become fully
vested;
(iii) the value (net of any exercise price and required tax
withholdings) of all outstanding Options, Stock Appreciation Rights and
Restricted Stock, unless otherwise determined by the Committee at or after grant
and subject to Rule 16b-3, shall be cashed out on the basis of the "Change in
Control Price," as defined in Section 9(c), as of the date such Change in
Control is determined to have occurred or such other date as the Board may
determine prior to the Change in Control; and
(iv) any outstanding Performance Share Awards shall be vested
and paid in full as if all performance criteria had been met;
provided, however, that the foregoing provisions shall only apply, with respect
to the events described Section 9(a)(i) when such "person" acquires,
9(a)(iii)(B), and 9(a)(iii)(D), if and to the extent so specifically determined
by the Board in the exercise of the Board's discretion, which determination may
be amended or reversed only by the affirmative vote of a majority of the persons
who were directors at the time such determination was made.
(c) CHANGE IN CONTROL PRICE. For purposes of this Section 9, "Change
in Control Price" means the highest price per share paid in any transaction
reported on any established stock exchange, national market system or other
established market for the Stock, or paid or offered in any bona fide
transaction related to a potential or actual Change in Control of the Company at
any time during the preceding 60-day period as determined by the Board, except
that, in the case of Incentive Stock Options and Stock Appreciation Rights
relating to Incentive Stock Options, such price shall be based only on
transactions reported for the date on which the Board decides to cash out such
Options.
SECTION 10. GENERAL PROVISIONS.
(a) AWARD GRANTS. Any Award may be granted either alone or in addition
to other Awards granted under the Plan. Subject to the terms and restrictions
set forth elsewhere in the Plan, the Committee shall determine the
consideration, if any, payable by the participant for any Award and, in addition
to those set forth in the Plan, any other terms and conditions of the Awards.
The Committee may condition the grant or payment of any Award upon the
attainment of specified performance goals or such other factors or criteria,
including vesting based on continued employment or consulting, as the Committee
shall determine. Performance objectives may vary from participant to
participant and among groups of participants and shall be based upon such
Company, Subsidiary, group or division factors or criteria as the Committee may
deem appropriate, including, but not limited to, earnings per share or return on
equity. The other provisions of Awards also need not be the same with respect
to each recipient. Unless specified otherwise in the Plan or by the Committee,
the date of grant of an Award shall be the date of action by the Committee to
grant the Award.
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(b) TYPES OF SHARES. The Committee, in its discretion, may determine
at the time of an Award that in lieu of Stock there shall be issuable under, or
applicable to the measurement of, any Award any of (i) Restricted Stock, (ii)
shares of any series of common stock of the Company, other than Stock, and
shares of any series of common stock of any Subsidiary or Affiliate of the
Company ("Common Shares"), or (iii) shares of any series of preferred stock of
the Company ("Preferred Shares"); provided, that (A) with respect to shares
issuable upon exercise of Incentive Stock Options, Common Shares and Preferred
Shares shall be limited to shares of any Subsidiary authorized as of the date
the Plan is approved by the Board, and (B) with respect to shares issuable upon
exercise of Non-Qualified Stock Options and Stock Appreciation Rights, Common
Shares and Preferred Shares shall be limited to shares of any Subsidiary or
Affiliate of the Company. In such event the Committee shall determine the
number of shares of Stock equivalent to such Restricted Stock, Common Shares or
Preferred Shares for the purpose of calculating the shares of Stock issued under
the Plan; provided, that a Common Share or a Preferred Share in no event shall
be deemed equal to less than one share of Stock.
(c) AWARD AGREEMENT. As soon as practicable after the date of an Award
grant, the Company and the participant shall enter into a written Award
Agreement specifying the date of grant, the terms and conditions of the Award.
(d) CERTIFICATES. All certificates for shares of Stock or other
securities delivered under the Plan shall be subject to such stock transfer
orders, legends and other restrictions as the Committee may deem advisable under
the rules, regulations and other requirements of the Commission, any stock
exchange upon which the Stock is then listed and any applicable federal, state
or foreign securities law.
(e) TERMINATION. In the event of Termination for any reason other than
death, Disability or retirement, Awards held at the date of Termination (and
only to the extent then exercisable or payable, as the case may be) may be
exercised in whole or in part at any time within three months after the date of
Termination, or such lesser period specified in the Award Agreement (but in no
event after the expiration date of the Award), but not thereafter. If
Termination is due to death or Disability, or a participant dies or becomes
disabled within the period that the Award remains exercisable or payable, as the
case may be, after Termination, only Awards held at the date of death or
Disability (and only to the extent then exercisable or payable, as the case may
be) may be exercised in whole or in part by the participant in the case of
Disability, by the participant's personal representative or by the person to
whom the Award is transferred by will or the laws of descent and distribution,
at any time within 18 months after the death or one year after the Disability,
as the case may be, of the participant or any lesser period specified in the
Award Agreement (but in no event after the expiration of the Award). In the
event of Termination by reason of the participant's retirement (as determined in
the exercise of the Committee's sole discretion), Awards may be exercised in
whole or in part at any time within two years after the date of Termination, or
such lesser period specified in the Award Agreement; provided, however, that in
no event shall an Award be exercisable after the expiration date of the Award.
(f) DELIVERY OF PURCHASE PRICE. Participants shall make all or any
portion of any payment due to the Company with respect to the consideration
payable for, upon exercise of, or for federal, state, local or foreign tax
payable in connection with, an Award by delivery of cash; and if and only to the
extent authorized by the Committee, all or any portion of such payment may be
made by delivery of any property (including, without limitation, a promissory
note of the participant or shares of Stock or other securities and, in the case
of an option, surrender of shares issuable upon exercise of that option) other
than cash, so long as, if applicable, such property constitutes valid
consideration for the Stock under
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applicable law. To the extent participants may make payments due to the Company
upon grant or exercise of Awards by the delivery of shares of Stock or other
securities, the Committee, in its discretion, may permit participants
constructively to deliver for any such payment (A) securities of the Company
held by the participant for at least 6 months or (B), subject to the timing
requirements of Section 10(z), securities of the Company issuable to the
participant upon exercise of the Award. Constructive delivery shall be effected
by (i) identification by the participant of shares intended to be delivered
constructively, (ii) confirmation by the Company of participant's ownership of
such shares (for example, by reference to the Company's stock records, or by
some other means of verification), and (iii) if applicable, upon exercise,
delivery to the participant of a certificate for that number of shares equal to
the number of shares for which the Award is exercised less the number of shares
constructively delivered.
(g) TAX WITHHOLDING. If and to the extent authorized by the Committee
in its discretion, a person who has received an Award or payment under an Award
may, to pay the amount of tax that the Committee in its discretion determines to
be required to be withheld by the Company, make an election to deliver to the
Company or have withheld either (i) a promissory note of the participant on the
terms set forth in Section 10(f) or (ii) (A) securities of the Company held by
the participant for at least 6 months or (B), subject to the timing requirements
of Section 10(z), securities of the Company issuable to the participant upon
exercise of the Award. Any shares or other securities so withheld or tendered
will be valued by the Committee as of the date they are withheld or tendered;
provided, that Stock shall be valued at the Fair Market Value on such date. The
value of the shares withheld or tendered may not exceed the required federal,
state, local and foreign withholding tax obligations as computed by the Company.
Unless the Committee permits otherwise, the participant shall pay to the Company
in cash, promptly when the amount of such obligations becomes determinable, all
applicable federal, state, local and foreign withholding taxes that the
Committee in its discretion determines to result from the lapse of restrictions
imposed upon an Award or upon exercise of an Award or from a transfer or other
disposition of shares acquired upon exercise or payment of an Award or otherwise
related to the Award or the shares acquired in connection with an Award.
(h) NO TRANSFERABILITY. No Award shall be assignable or otherwise
transferable by the participant other than by will or by the laws of descent and
distribution, and during the life of a participant, an Award shall be
exercisable, and any elections with respect to an Award may be made, only by the
participant or participant's guardian or legal representative. Unless otherwise
approved in writing by the Committee, no shares acquired upon exercise of any
Award by any officer of the Company, as defined in Rule 16a-l(f) under the
Exchange Act, may be sold, assigned, pledged, encumbered or otherwise
transferred until at least 6 months have elapsed from (but excluding) the date
that such Award was granted. The Committee may require the participant to give
the Company prompt notice of any disposition of shares of Stock, acquired by
exercise of an Incentive Stock Option within two years from the date of granting
such option or one year after the transfer of such shares to such participant.
The Committee may direct that the certificates evidencing shares acquired by
exercise of an option refer to such requirement to give prompt notice of
disposition.
(i) RIGHT OF FIRST REFUSAL. At the time of grant, the Committee may
provide in connection with any Award that the shares of Stock received as a
result of such Award shall be subject to a right of first refusal pursuant to
which the participant shall be required to offer to the Company any shares that
the participant wishes to sell at the then Fair Market Value of the Stock or at
such other price as may be set forth in the applicable Award Agreement, subject
to such other terms and conditions as the Committee may specify at the time of
grant.
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(j) ADJUSTMENT OF AWARDS; WAIVERS. The Committee may adjust the
performance goals and measurements applicable to Awards (i) to take into account
changes in law and accounting and tax rules, (ii) to make such adjustments as
the Committee deems necessary or appropriate to reflect the inclusion or
exclusion of the impact of extraordinary or unusual items, events or
circumstances in order to avoid windfalls or hardships, (iii) to make such
adjustments as the Committee deems necessary or appropriate to reflect any
material changes in business conditions, and (iv) in any other manner determined
in the Committee's discretion. In the event of hardship or other special
circumstances of a participant and otherwise in its discretion, the Committee
may waive in whole or in part any or all restrictions, conditions, vesting, or
forfeiture with respect to any Award granted to such participant.
(k) ELECTION TO DEFER PAYMENT. To the extent, if any, permitted by the
Committee, a participant may elect, at such time as the Committee may in its
discretion specify, to defer payment of all or a portion of an Award.
(l) NON-COMPETITION. The Committee may condition the Committee's
discretionary-waiver of a forfeiture or vesting acceleration at the time of
Termination of a participant holding any unexercised or unearned Award or the
waiver of restrictions upon any Award upon a requirement that such participant
agree to and actually (i) not engage in any business or activity competitive
with any business or activity conducted by the Company and (ii) be available,
unless such participant shall have died, for consultations at the request of the
Company's management, all on such terms and conditions (including conditions in
addition to (i) and (ii)) as the Committee may determine.
(m) DIVIDENDS. The reinvestment of dividends in additional Stock or
Restricted Stock at the time of any dividend payment shall only be permissible
if sufficient shares of Stock are available under Section 3 for such
reinvestment (taking into account then outstanding Awards).
(n) REGULATORY COMPLIANCE. Each Award under the Plan shall be subject
to the condition that, if at any time the Committee shall determine that (i) the
listing, registration or qualification of the shares of Stock, Common Shares or
Preferred Shares upon any securities exchange or under any state or federal law,
(ii) the consent or approval of any government or regulatory body or (iii) an
agreement or representations by the participant with respect thereto, is
necessary or desirable, then such Award shall not be consummated in whole or in
part unless such listing, registration, qualification, consent, approval,
agreement or representations shall have been effected or obtained free of any
conditions not acceptable to the Committee.
(o) RIGHTS AS STOCKHOLDER. Unless the Plan or the Committee expressly
specifies otherwise, a participant shall have no rights as a stockholder with
respect to any shares covered by an Award until the participant is entitled,
under the terms of the Award, to receive such shares. Subject to Sections 3(c)
and 7(c), no adjustment shall be made for dividends or other rights for which
the record date is prior to the date the certificates are delivered.
(p) BENEFICIARY DESIGNATION. The Committee, in its discretion, may
establish procedures for a participant to designate a beneficiary to whom any
amounts payable in the event of the participant's death are to be paid.
(q) ADDITIONAL PLANS. Nothing contained in the Plan shall prevent the
Company, a Subsidiary or Affiliate from adopting other or additional
compensation arrangements for its employees.
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(r) NO EMPLOYMENT RIGHTS. The adoption of the Plan shall not confer
upon any employee any right to continued employment nor shall it interfere in
any way with the right of the Company, a Subsidiary or Affiliate to terminate
the employment of any employee at any time.
(s) RULE 16B-3. Notwithstanding any provision of the Plan, the Plan
shall always be administered, and Awards shall always be granted and exercised,
in such a manner as to conform to the provisions of Rule 16b-3, unless the
Committee determines that Rule 16b-3 is not applicable to the Plan.
(t) LIMITATIONS APPLICABLE TO SECTION 16 PERSONS AND PERFORMANCE-BASED
COMPENSATION. Notwithstanding any other provision of this Plan, and any Option,
Performance Share Award or Stock Appreciation Right granted, or Restricted Stock
awarded, to any individual who is then subject to Section 16 of the Exchange
Act, shall be subject to any additional limitations set forth in any applicable
exemptive rule under Section 16 of the Exchange Act (including any amendment to
Rule 16b-3 of the Exchange Act) that are requirements for the application of
such exemptive rule. Any such additional limitation shall be set forth in an
annex to this Plan, such annex to be incorporated herein by this reference and
made part of this Plan. To the extent permitted by applicable law, the Plan,
Options, Performance Share Awards, Stock Appreciation Rights, and Restricted
Stock granted or awarded hereunder shall be deemed amended to the extent
necessary to conform to such applicable exemptive rule. Furthermore,
notwithstanding any other provision of this Plan, any Option or Stock
Appreciation Right intended to qualify as performance-based compensation as
described in Section 162(m) of the Code shall be subject to any additional
limitations set forth in Section 162(m) of the Code (including any amendment to
Section 162(m) of the Code) or any regulations or rulings issued thereunder that
are requirements for qualification as performance-based compensation as
described in Section 162(m) of the Code, and this Plan shall be deemed amended
to the extent necessary to conform to such requirements.
(u) GOVERNING LAW. The Plan and all Awards shall be governed by and
construed in accordance with the laws of the State of Delaware.
(v) USE OF PROCEEDS. All cash proceeds to the Company under the Plan
shall constitute general funds of the Company.
(w) UNFUNDED STATUS OF PLAN. The Plan shall constitute an "unfunded"
plan for incentive and deferred compensation. The Committee may authorize the
creation of trusts or arrangements to meet the obligations created under the
Plan to deliver Stock or make payments; provided, that unless the Committee
otherwise determines, the existence of such trusts or other arrangements shall
be consistent with the "unfunded" status of the Plan.
(x) ASSUMPTION BY SUCCESSOR. The obligations of the Company under the
Plan and under any outstanding Award may be assumed by any successor
corporation, which for purposes of the Plan shall be included within the meaning
of "Company."
(y) PLAN DESIGNATION AND STATUS. Notwithstanding the designation of
this document as a plan for ease of reference and to standardize certain
provisions applicable to all types of Awards, each type of Award shall be deemed
to be a separate "plan" for purposes of Section 16 of the Exchange Act and any
applicable state securities laws.
(z) CERTAIN TIMING REQUIREMENTS. Securities of the Company issuable to
the participant upon
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exercise of an Award may be used to satisfy the exercise price or the tax
withholding consequences of such exercise only (i) during the period beginning
on the third business day following the date of release of the quarterly or
annual summary statement of sales and earnings of the Company and ending on the
twelfth business day following such date or (ii) pursuant to an irrevocable
written election by the participant to use securities of the Company issuable to
the participant upon exercise of the Award to pay all or part of the exercise
price or the withholding taxes (subject to the approval of the Committee) made
at least 6 months prior to the payment of such exercise price or withholding
taxes.
SECTION 11. AMENDMENTS AND TERMINATION.
The Board may amend, alter, or discontinue the Plan, but no amendment,
alteration or discontinuance shall be made which would impair the rights of a
participant under an outstanding Award without the participant's consent. In
addition, to the extent required for the Plan to comply with Rule 16b-3 or, with
respect to provisions solely as they relate to Incentive Stock Options, to the
extent required for the Plan to comply with Section 422 of the Code, the Board
may not amend or alter the Plan without the approval of a majority of the votes
cast at a duly held meeting of stockholders at which a quorum of the voting
power of the Company is represented in person or by proxy, where such amendment
or alteration would:
(a) except as expressly provided in the Plan, increase the total number
of shares reserved for issuance pursuant to Awards under the Plan or modify the
Award Limit;
(b) except as expressly provided in the Plan, change the minimum price
terms of Sections 5(b)(iv) or 7(a);
(c) change the class of employees and consultants eligible to
participate in the Plan;
(d) extend the maximum Option term under Section 5(b); or
(e) materially increase the benefits accruing to participants under the
Plan.
The Board of Directors may, at any time without stockholder approval, amend
the Plan and the terms of any Award outstanding under the Plan, provided that
such amendment is designed to maximize federal income tax benefits accorded to
Awards or, if the Committee determines that Rule 16b-3 is applicable to the
Plan, to comply with Rule 16b-3 and provided further, that with respect to
outstanding Awards, the participant consents to such amendment.
SECTION 12. EFFECTIVE DATE OF PLAN.
The Plan shall be effective on the date it is adopted by the Board, but all
Awards shall be conditioned upon approval of the Plan at a duly held meeting of
stockholders by the affirmative vote of the holders of a majority of the voting
power of the shares of the Company represented in person or by proxy and
entitled to vote at the meeting.
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SECTION 13. TERM OF PLAN.
No Award shall be granted on or after November 16, 2005, but Awards granted
prior to November 16, 2005 (including, without limitation, Performance Share
Awards for Performance Periods commencing prior to November 16, 2005) may extend
byond that date.
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[LETTERHEAD]
February 19, 1997
Getchell Gold Corporation
5460 S. Quebec St., Ste. 240
Englewood, Colorado 80111
Re: GETCHELL GOLD CORPORATION, COMMON STOCK $.0001 PAR VALUE
Ladies and Gentlemen:
At your request, we have examined the Registration Statement on Form
S-8 (the "Registration Statement") which Getchell Gold Corporation, a Delaware
corporation (the "Company"), intends to file with the Securities and Exchange
Commission in connection with the registration under the Securities Act of 1933,
as amended, of an aggregate of 1,000,000 shares of Common Stock, par value of
$.0001 per share (the "Shares") to be sold by the Company under the 1996 Long
Term Equity Incentive Plan and the 1996 Stock Option Plan for Outside Directors
(together, the "Plans"). We are familiar with the proceedings undertaken and to
be taken in connection with the authorization, issuance and sale of the Shares.
Additionally, we have examined such questions of law and fact as we have
considered necessary or appropriate for purposes of this opinion.
Based upon the foregoing, we are of the opinion that the Shares have
been duly authorized, and upon issuance of the Shares under the terms of the
Plans and delivery and payment therefor of legal consideration in excess of the
aggregate par value of the Shares issued, such Shares will be validly issued,
fully paid and nonassessable.
<PAGE>
Page 2
We consent to your filing this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Latham & Watkins
LATHAM & WATKINS
<PAGE>
EXHIBIT 23(a)
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Getchell Gold Corporation:
We consent to incorporation by reference in the registration statement on Form
S-8 of Getchell Gold Corporation, relating to the 1996 Stock Option Plan for
Outside Directors and the 1996 Long-Term Equity Incentive Plan of our report
dated February 7, 1996, relating to the consolidated balance sheets of FirstMiss
Gold Inc. and subsidiary (now known as Getchell Gold Corporation), as of
December 31, 1995 and June 30, 1995 and 1994, and the related consolidated
statements of operations, stockholders' equity and cash flows for the six months
ended December 31, 1995 and each of the years in the three-year period ended
June 30, 1995, which report appears in the December 31, 1995, annual report on
Form 10-K of Getchell Gold Corporation.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Denver, Colorado
February 19, 1997
