AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 9, 1999
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TETRA TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 74-2148293
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
25025 I-45 NORTH
THE WOODLANDS, TEXAS 77380
(Address, including zip code, of Principal Executive Offices)
TETRA TECHNOLOGIES, INC.
1998 DIRECTOR STOCK OPTION PLAN
(Full title of the plan)
BASS C. WALLACE, JR.
GENERAL COUNSEL
25025 I-45 NORTH
THE WOODLANDS, TEXAS 77380
(713) 367-1983
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
------------------------------
COPY TO:
JEFFREY R. HARDER
ANDREWS & KURTH L.L.P.
2170 BUCKTHORNE PLACE, SUITE 150
THE WOODLANDS, TEXAS 77380
(713) 220-4815
------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===============================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT OFFERING AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE TO BE PRICE OFFERING REGISTRATION
REGISTERED REGISTERED(1) PER SHARE(2) PRICE(2) FEE
- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, Par Value $.01 Per
Share (3)..................... 75,000 $7.1875 $539,063 $150
===============================================================================================
</TABLE>
(1) The number of shares of Common Stock registered hereby is subject to
adjustment to prevent dilution resulting from stock splits, stock dividends
or similar transactions.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h), based upon the average of the high and low prices
of a share of the Company's Common Stock for April 5, 1999 on the New York
Stock Exchange as reported in THE WALL STREET JOURNAL on April 6, 1999.
(3) The securities include certain rights associated with the Common Stock
issued pursuant to the Rights Agreement dated October 26, 1998
================================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The Company incorporates herein by reference the following documents, or
portions of documents, as of their respective dates as filed with the Securities
and Exchange Commission:
(1) The Company's Annual Report on Form 10-K for the year ended December
31, 1998; and
(2) The descriptions of the Company's common stock, par value $.01 per
share (the "Common Stock"), and certain rights associated with such Comon
Stock (the "Rights") contained in the Company's registration statements on
Form 8-A, dated October 6, 1997 (with respect to the Common Stock) and
October 28, 1998 (with respect to the Rights), filed pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act") (No.
0-18335), including any amendments or reports filed for the purpose of
updating such descriptions.
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 hereby have been sold or which deregisters all such
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
The information required by Item 4 is not applicable to this Registration
Statement since the class of securities to be offered is registered under
Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The information required by Item 5 is not applicable to this Registration
Statement.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Certificate of Incorporation contains a provision permitted
by Delaware law that generally eliminates the personal liability of directors
for monetary damages for breaches of their fiduciary duty, including breaches
involving negligence or gross negligence in business combinations, unless the
director has breached his duty of loyalty, failed to act in good faith, engaged
in intentional misconduct or a knowing violation of law, paid a dividend or
approved a stock repurchase in violation of the Delaware General Corporation Law
or obtained an improper personal benefit. This provision does not alter a
director's liability under the federal securities laws. Also, this provision
does not affect the availability of equitable remedies, such as an injunction or
rescission, for breach of fiduciary duty.
The Company's Bylaws also provide that directors and officers shall be
indemnified against liabilities arising from their service as directors or
officers to the fullest extent permitted by law, which generally requires that
the individual act in good faith and in a manner he or she reasonably believes
to be in or not opposed to the Company's best interests.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
The information required by Item 7 is not applicable to this Registration
Statement.
II-2
<PAGE>
ITEM 8. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION
--------- -------------
23.1 Consent of Ernst & Young LLP.
24.1 Power of Attorney (included in Part II of the Registration
Statement).
99.1 TETRA Technologies, Inc. 1998 Director Stock Option Plan.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement;
(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 the registrant shall not be required to file a
post-effective amendment if the information required to be included in a
post-effective amendment by the foregoing paragraphs is contained in periodic
reports filed by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission, such indemnification is
II-3
<PAGE>
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.
II-4
<PAGE>
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of The Woodlands, State of Texas, on the
26th day of March, 1999.
TETRA TECHNOLOGIES, INC.
(Registrant)
By: /s/ ALLEN T. MCINNES
Allen T. McInnes
President and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned officers and
directors of TETRA Technologies, Inc. (the "Company") hereby constitutes and
appoints Allen T. McInnes, Geoffery M. Hertel and Bass C. Wallace, Jr., or any
of them (with full power to each of them to act alone), his true and lawful
attorney-in-fact and agent, with full power of substitution, for him and on his
behalf and in his name, place and stead, in any and all capacities, to sign,
execute and file this Registration Statement under the Securities Act of 1933,
as amended, and any or all amendments (including, without limitation,
post-effective amendments), with all exhibits and any and all documents required
to be filed with respect thereto, with the Securities and Exchange Commission or
any regulatory authority, granting unto such 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 he himself might or
could do, if personally present, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their substitute or
substitutes, may lawfully do or cause to be done.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on March 26,
1999 in the capacities indicated.
SIGNATURE TITLE
------------- ------------
/s/ ALLEN T. MCINNES President, Chief Executive Officer
Allen T. McInnes and Director (Principal Executive Officer)
/s/ J. TAFT SYMONDS Chairman of the Board of Directors
J. Taft Symonds
/s/ GEOFFREY M. HERTEL Executive Vice President--Finance
Geoffrey M. Hertel and Administration (Principal Financial
Officer) and Director
/s/ BRUCE A. COBB Corporate Controller (Principal Accounting
Bruce A. Cobb Officer)
/s/ PAUL D. COOMBS Director
Paul D. Coombs
II-5
<PAGE>
/s/ HOYT AMMIDON, JR. Director
Hoyt Ammidon, Jr.
/s/ OSCAR S. ANDRAS Director
Oscar S. Andras
/s/ TOM H. DELIMITROS Director
Tom H. Delimitros
/s/ KENNETH P. MITCHELL Director
Kenneth P. Mitchell
II-6
<PAGE>
EXHIBIT INDEX
EXHIBIT LOCATION OF
NUMBER EXHIBIT
------- -----------
23.1 Consent of Ernst & Young LLP.
24.1 Power of Attorney (included in Part II of the
Registration Statement).
99.1 TETRA Technologies, Inc. 1998 Director Stock Option Plan.
II-7
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) for the registration of 75,000 shares of Common Stock pertaining to the
1998 Director Stock Option Plan of TETRA Technologies, Inc. of our report dated
February 19, 1999 with respect to the consolidated financial statements and
schedule of TETRA Technologies, Inc. and subsidiaries included in its Annual
Report (Form 10-K) for the year ended December 31, 1998 filed with the
Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Ernst & Young LLP
Houston, Texas
April 7, 1999
EXHIBIT 99.1
TETRA TECHNOLOGIES, INC.
1998 DIRECTOR STOCK OPTION PLAN
The purpose of the TETRA Technologies, Inc. 1998 Director Stock Option
Plan (the "Plan") is to permit TETRA Technologies, Inc., a Delaware corporation
(the "Company"), to attract and retain qualified individuals to serve as
directors of the Company and to align the interests of such individuals more
closely with the interest of the Company's stockholders. Accordingly, the
Company may make awards ("Awards") to directors in the form of stock options
("Options") with respect to shares of the Company's common stock, par value
$0.01 per share ("Stock"). Options shall be nonqualified stock options, which
are not intended to qualify as incentive stock options under Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code").
II. ADMINISTRATION
The Plan shall be administered by the Board of Directors of the Company
(the "Board") or such committee of members of the Board as the Board may appoint
(the "Committee"). Committee members may resign at any time by delivering
written notice to the Board. Vacancies in the Committee, however caused, shall
be filled by the Board. The Committee is authorized to interpret the Plan and
may from time to time adopt such rules and regulations, not inconsistent with
the provisions of the Plan, as it may deem advisable to carry out the Plan. The
Committee shall act by a majority of its members in office and the Committee may
act either by vote at a telephonic or other meeting or by a memorandum or other
written instrument signed by all of the members of the Committee.
The Committee shall have the sole authority to determine the terms and
provisions of the Option agreements (collectively, the "Agreements") entered
into in connection with Awards under the Plan; to prepare and distribute, in
such manner as the Committee determines to be appropriate, information about the
Plan; and to make all other determinations deemed necessary or advisable for the
administration of the Plan. The Committee may vary the terms and provisions of
the Agreements in its discretion.
The day-to-day administration of the Plan may be carried out by such
officers and employees of the Company as shall be designated from time to time
by the Committee. Members of the Committee shall not receive compensation for
their services as members, but all expenses and liabilities they incur in
connection with the administration of the Plan shall be borne by the Company.
The Committee may employ attorneys, consultants, accountants, appraisers,
brokers or other persons, and the Committee, the Board, the Company and the
officers and employees of the Company shall be entitled to rely upon the advice,
opinions or valuations of any such persons. The interpretation and construction
by the Committee of any provisions of the Plan or of any Award under the Plan
and any determination by the Committee under any provision of the Plan or any
such Award shall be final and conclusive for all purposes. Neither the Committee
nor any member thereof shall be liable for any act, omission, interpretation,
construction or determination made in connection with the Plan in good faith,
and the members of the Committee shall be entitled to indemnification and
reimbursement by the Company in respect of any claim, loss, damage or expense
(including counsel fees) arising therefrom to the full extent permitted by law.
The members of the Committee shall be named as insureds under any directors and
officers liability insurance coverage that may be in effect from time to time.
The Committee shall have authority to grant Options, to determine the
purchase price of the Stock covered by each Option (the "Exercise Price"), the
term of each Option, the directors to whom, and the times at which, Options
shall be granted, and the number of shares to be covered by each Option. All
decisions made by
<PAGE>
the Committee in selecting the persons to whom Awards shall be granted, in
establishing the number of shares covered by each Award and the other terms and
provisions thereof, and in construing the provisions of the Plan and the
Agreements shall be final.
Only directors of the Company shall be eligible to receive Awards under
the Plan. In no event shall any director or his legal representatives, heirs,
legatees, distributees, or successors have any right to participate in the Plan,
except to such extent, if any, as the Committee shall determine.
III. SHARES SUBJECT TO THE PLAN
The aggregate number of shares which may be issued under Awards granted
under the Plan shall not exceed 75,000 shares of Stock of the Company. Such
shares shall consist of previously issued shares reacquired by the Company.
Until termination of the Plan and the expiration of all Awards granted under the
Plan, the Company shall at all times make available a sufficient number of
shares to meet the requirements of the Plan and the outstanding Awards. The
aggregate number of shares which may be issued under Awards granted under the
Plan shall be subject to adjustment as provided in Article V hereof.
IV. GRANTS OF OPTIONS
A. OPTIONS. Options granted under the Plan shall be for such number
of shares of Stock and subject to such terms and conditions. The Committee
may grant Options at any time and from time to time through, but not after
December 14, 2008 to any optionee eligible to receive the same.
B. TERMS OF OPTIONS. Options granted pursuant to this Plan shall be
evidenced by Agreements that shall comply with and be subject to the
following terms and conditions and may contain such other provisions,
consistent with this Plan, as the Committee shall deem advisable.
References herein to an Agreement shall include, to the extent applicable,
any amendments to such Agreement.
1. PAYMENT OF OPTION EXERCISE PRICE. Upon exercise of an
Option, the full Exercise Price for the shares with respect to which
the Option is being exercised shall be payable to the Company (i) in
cash or by check payable and acceptable to the Company, (ii) subject
to the approval of the Committee, by tendering to the Company shares
of Stock owned by the optionee having an aggregate Market Value Per
Share as of the date of exercise and tender that is not greater than
the full Exercise Price for the shares with respect to which the
Option is being exercised and by paying any remaining amount of the
Exercise Price as provided in (i) above, or (iii) subject to such
instructions as the Committee may specify, at the optionee's written
request the Company may deliver certificates for the shares of Stock
for which the Option is being exercised to a broker for sale on
behalf of the optionee, provided that the optionee has irrevocably
instructed such broker to remit directly to the Company on the
optionee's behalf the full amount of the Exercise Price and any
required tax withholdings from the proceeds of such sale. In the
event that the optionee elects to make payment as allowed under
clause (ii) above, the Committee may, upon confirming that the
optionee owns the number of additional shares being tendered,
authorize the issuance of a new certificate for the number of shares
being acquired pursuant to the exercise of the Option less the
number of shares being tendered upon the exercise and return to the
optionee (or not require surrender of) the certificate for the
shares being tendered upon the exercise. Payment instruments will be
received subject to collection.
<PAGE>
2. NUMBER OF SHARES. Each Agreement shall state the total
number of shares of Stock that are subject to the Option.
3. EXERCISE PRICE. The Exercise Price for each Option shall be
fixed by the Committee at the Grant Date.
4. MARKET VALUE PER SHARE. The "Market Value Per Share" as of
any particular date shall be determined by any fair and reasonable
means determined by the Committee, which may include, if the Stock
is listed for trading on a national or regional stock exchange, the
closing price quoted on such exchange which is published in THE WALL
STREET JOURNAL reports for the day of the grant, or if no trade of
the Stock shall have been reported for such date, the closing price
quoted on such exchange which is published in THE WALL STREET
JOURNAL reports for the next day prior thereto on which a trade of
the Stock was so reported, or if the shares are not so listed or
admitted to trading, the average of the highest reported bid and
lowest reported asked prices as furnished by the National
Association of Securities Dealers, Inc., through NASDAQ, or through
a similar organization if NASDAQ is no longer reporting such
information. If shares of the Stock are not listed or admitted to
trading on any exchange or quoted through NASDAQ or any similar
organization, the "Market Value Per Share" shall be determined by
the Committee in good faith using any fair and reasonable means
selected in its discretion.
5. TERM. The term of each Option shall be determined by the
Committee at the Grant Date; provided, however, that each Option
shall, notwithstanding anything in the Plan or an Agreement to the
contrary, expire not more than ten years from the Grant Date or, if
earlier, the date specified in the Agreement.
6. DATE OF EXERCISE. In the discretion of the Committee, each
Agreement may contain a provision not inconsistent with Article V.E.
stating that the Option granted therein may not be exercised in
whole or in part for a period or periods of time specified in such
Agreement, subject to Article V.E., and except as so specified
therein, any Option may be exercised in whole at any time or in part
from time to time during its term. The Committee may, however, at
any time, in its sole discretion amend any outstanding Option to
accelerate the time that such Option shall be exercisable or to
provide that the time for exercising such Option shall be
accelerated upon the occurrence of a specified event.
7. TERMINATION OF DIRECTORSHIP. In the event that an
optionee's term as a director of the Company shall terminate, the
optionee's Options shall be exercisable by him as set forth in the
Agreement governing such Options.
V. RECAPITALIZATION OR REORGANIZATION
A. The existence of the Plan and the Awards granted hereunder shall
not affect in any way the right or power of the Board or the stockholders
of the Company to make or authorize any adjustment, recapitalization,
reorganization or other change in the Company's capital structure or its
business, any merger or consolidation of the Company, any issue of bonds,
debentures, preferred or prior preference stocks ahead of or affecting
Stock, the dissolution or
<PAGE>
liquidation of the Company or any sale or transfer of all or any part of
its assets or business, or any other corporate act or proceeding.
B. The shares with respect to which Awards may be granted are shares
of Stock as presently constituted, but if, and whenever, prior to the
termination of the Plan or the expiration of an Award theretofore granted,
the Company shall effect a subdivision or consolidation of shares of Stock
or the payment of a stock dividend on Stock without receipt of
consideration by the Company, the remaining shares of Stock available
under the Plan and the number of shares of Stock with respect to which
such Award may thereafter be exercised (i) in the event of an increase in
the number of outstanding shares, shall be proportionately increased and
the Exercise Price per share shall be proportionately reduced, and (ii) in
the event of a reduction in the number of outstanding shares, shall be
proportionately reduced, and the Exercise Price per share shall be
proportionately increased.
C. Except as may otherwise be expressly provided in the Plan, the
issuance by the Company of shares of stock of any class or securities
convertible into shares of stock of any class, for cash, property, labor
or services, upon direct sale, upon the exercise of rights or warrants to
subscribe therefor, or upon conversion of shares or obligations of the
Company convertible into such shares or other securities, and in any case
whether or not for fair value, shall not affect, and no adjustment by
reason thereof shall be made with respect to, the number of shares of
Stock available under the Plan or subject to Awards theretofore granted or
the Exercise Price per share of outstanding Awards.
D. If the Company effects a recapitalization or otherwise materially
changes its capital structure (both of the foregoing are herein referred
to as a "Fundamental Change"), then thereafter upon any exercise of an
Option theretofore granted the optionee shall be entitled to purchase
under such Option, in lieu of the number of shares of Stock as to which
such Option shall then be exercisable, the number and class of shares of
stock and securities to which the optionee would have been entitled
pursuant to the terms of the Fundamental Change if, immediately prior to
such Fundamental Change, the optionee had been the holder of record of the
number of shares of Stock as to which such Option is then exercisable.
E. Notwithstanding any other provision of this Plan to the contrary,
in the event of a Corporate Change, all outstanding Awards automatically
shall become fully vested immediately prior to such Corporate Change (or
such earlier time as set by the Committee), all restrictions, if any, with
respect to such Awards shall lapse, all performance criteria, if any, with
respect to such Awards shall be deemed to have been met in full, and
unless the Company survives as an independent publicly traded company, all
Options outstanding at the time of the event or transaction shall
terminate, except to the extent provision is made in writing in connection
with such event or transaction for the continuation of the Plan and/or the
assumption of the Options theretofore granted, or for the substitution for
such Options of new options covering the stock of a successor entity, or
the parent or subsidiary thereof, with appropriate adjustments as to the
number and kinds of shares and exercise prices, in which event the Plan
and Options theretofore granted shall continue in the manner and under the
terms so provided. A "Corporate Change" shall have occurred if:
(i) the Company shall not be the surviving entity in any
merger or consolidation (or survives only as a subsidiary of another
entity),
<PAGE>
(ii) the Company sells, exchanges, disposes or otherwise
transfers all or substantially all of its assets to any other person
or entity (other than a wholly-owned subsidiary),
(iii) any person or entity (including a "group" as
contemplated by Section 13(d)(3) of the 1934 Act) after the date
hereof acquires or gains ownership or control of (including, without
limitation, power to vote) more than 50% of the outstanding shares
of Stock,
(iv) the Company is to be dissolved and liquidated, or
(v) as a result of or in connection with a contested election
of directors, the persons who were directors of the Company before
such election shall cease to constitute a majority of the Board.
For purposes of the Corporate Changes described in (iii) and (v)
above, the "Committee" shall be either the Committee as constituted prior
to the occurrence of such Corporate Change or, if no Committee had been
appointed, the Board as constituted prior to the occurrence of such
Corporate Change.
Notwithstanding the foregoing, with the consent of the optionee, the
Committee may in lieu of the foregoing make such provision with respect to
any Corporate Change as it deems appropriate.
VI. OPTIONEE'S AGREEMENT
If, at the time of the exercise of any Award, in the opinion of counsel
for the Company, it is necessary or desirable, in order to comply with any then
applicable laws or regulations relating to the sale of securities, for the
optionee exercising the Award to agree to hold any shares issued to the optionee
for investment and without intention to resell or distribute the same and for
the optionee to agree to dispose of such shares only in compliance with such
laws and regulations, the optionee will, upon the request of the Company,
execute and deliver to the Company a further agreement to such effect.
VII. TERMINATION OF AUTHORITY TO GRANT AWARDS
No Awards will be made pursuant to this Plan after December 14, 2008.
VIII. AMENDMENT AND TERMINATION
The Board may from time to time and at any time alter, amend, suspend,
discontinue or terminate this Plan and any Awards hereunder; provided, that no
change in any Award theretofore granted may be made which would impair the
rights of the optionee, without the consent of such optionee.
IX. PREEMPTION BY APPLICABLE LAWS AND REGULATIONS
Anything in the Plan or any Agreement entered into pursuant to the Plan to
the contrary notwithstanding, if, at any time specified herein or therein for
the making of any determination, the issuance or other distribution of shares of
Stock, any law, regulation or requirement of any governmental authority having
jurisdiction in the premises shall require either Company or the employee or
consultant (or the employee's or consultant's beneficiary), as the case may be,
to take any action in connection with
<PAGE>
any such determination, the shares then to be issued or distributed, or such
payment, the issue or distribution of such shares or the making of such
determination or payment, as the case may be, shall be deferred until such
action shall have been taken.
X. MISCELLANEOUS
A. NO RIGHTS AS A STOCKHOLDER. An optionee shall have no rights as a
stockholder with respect to shares covered by such optionee's Award until
the date of the issuance of shares to the optionee pursuant thereto. No
adjustment will be made for dividends or other distributions or rights for
which the record date is prior to the date of such issuance.
B. NO RIGHT TO CORPORATE ASSETS. Nothing contained in the Plan shall
be construed as giving any optionee, such optionee's beneficiaries or any
other person any equity or other interest of any kind in any assets of the
Company or creating a trust of any kind or a fiduciary relationship of any
kind between the Company and any such person.
C. NO RESTRICTION ON CORPORATE ACTION. Nothing contained in the Plan
shall be construed to prevent the Company from taking any corporate action
that is deemed by the Company to be appropriate or in its best interest,
whether or not such action would have an adverse effect on the Plan or any
Award made under the Plan. No optionee, beneficiary or other person shall
have any claim against the Company as a result of any such action.
D. NON-ASSIGNABILITY. Neither an optionee nor an optionee's
beneficiary shall have the power or right to sell, exchange, pledge,
transfer, assign or otherwise encumber or dispose of such optionee's or
beneficiary's interest arising under the Plan or any Award received under
the Plan; nor shall such interest be subject to seizure for the payment of
an optionee's or beneficiary's debts, judgments, alimony, or separate
maintenance or be transferable by operation of law in the event of an
optionee's or beneficiary's bankruptcy or insolvency and to the extent any
such interest arising under the Plan or an Award received under the Plan
is awarded to a spouse pursuant to any divorce proceeding, such interest
shall be deemed to be terminated and forfeited notwithstanding any vesting
provisions or other terms herein or in the agreement evidencing such
Award.
E. APPLICATION OF FUNDS. The proceeds received by the Company from
the sale of shares pursuant to the Plan will be used for general purposes.
F. GOVERNING LAW; CONSTRUCTION. All rights and obligations under the
Plan shall be governed by, and the Plan shall be construed in accordance
with, the laws of the State of Delaware without regard to the principles
of conflicts of laws. Titles and headings to Sections herein are for
purposes of reference only, and shall in no way limit, define or otherwise
affect the meaning or interpretation of any provisions of the Plan.
Adopted effective as of December 14, 1998.
