EXHIBIT (4)
SURGICAL LASER TECHNOLOGIES, INC. 2000 EQUITY INCENTIVE PLAN
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1. Purpose. The purpose of the Surgical Laser Technologies, Inc. 2000 Equity
Incentive Plan (the "Plan") is to further the growth, development and
financial success of Surgical Laser Technologies, Inc. (the "Company")
and any subsidiary by providing additional incentives to those officers,
directors, employees and consultants who are responsible for the
management of the business affairs of the Company and any subsidiary, and
which will enable them to participate directly in the growth of the
capital stock of the Company. The Company intends that the Plan will
facilitate securing, retaining and motivating directors, officers,
employees and consultants of high caliber and potential.
2. Administration. The Plan shall be administered by the Company's Board of
Directors (the "Board"). The Board shall have full and final authority,
in its sole discretion, to interpret the provisions of the Plan and to
decide all questions of fact arising in its application; to determine the
employees and consultants to whom awards shall be made under the Plan; to
determine the type of awards to be made and the amount, size and terms of
each such award; to determine the time when awards shall be granted; and
to make all other determinations necessary or advisable for the
administration of the Plan. Notwithstanding the foregoing, the Board may
delegate to the Company's Compensation Committee the administration of
the Plan, but only the Board may amend or terminate the Plan. The Board
may delegate administration of the Plan to the Compensation Committee
only if the Compensation Committee is comprised of at least two
directors, all of whom are Non-Employee Directors (within the meaning of
Rule 16b-3(b)(3) promulgated under the Securities Exchange Act of 1934,
as amended (the "Exchange Act") or any successor provision thereto, and
only if each member of the Compensation Committee is an "outside
director" within the meaning of Treas. Reg. (section mark)1.162-27(e)(3).
3. Stock Subject to the Plan. The shares that may be issued under the Plan
shall not exceed in the aggregate 250,000 shares of common stock, par
value $.01, of the Company (the "Common Stock"); provided, however, that
no Key Employee shall in any one-year period receive awards for more than
the number of shares of the Company's Common Stock that, in the aggregate
as of the date of grant, represents more than 3% of the Company's
outstanding Common Stock as of the end of the fiscal quarter ended prior
to such grant, with such annual limitation being 59,338 shares as of May
25, 2000. Such shares may be authorized and unissued shares or shares
issued and subsequently reacquired by the Company. Except as otherwise
provided herein, any shares subject to an option or right which for any
reason expires or is terminated unexercised as to such shares shall again
be available under the Plan; provided, however, that (a) if an Option (as
hereinafter defined) is canceled, the canceled Option is counted against
the maximum number of shares for which Options may be granted to
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an employee, and (b) if the Option price is reduced after the date of
grant, the transaction is treated as a cancellation of an Option and
the grant of a new Option for purposes of counting the maximum number
of shares for which Options may be granted to a Key Employee. Key
Employee shall mean employee directors, officers and other employees of
the Company or any subsidiary who are in positions in which their
decisions, actions and counsel significantly impact upon the
profitability and success of the Company and any subsidiary.
4. Eligibility to Receive Awards. Persons eligible to receive awards under
the Plan shall be limited to those consultants, directors, officers and
other employees of the Company and any subsidiary (as defined in Section
424(f) of the Internal Revenue Code of 1986 (the "Code"), or any
amendment or substitute thereto), who are in positions in which their
decisions, actions and counsel significantly impact upon the
profitability and success of the Company and any subsidiary. Consultants
and directors who are not also employees of the Company or any subsidiary
shall not be eligible to be awarded stock options which are intended to
qualify as incentive stock options within the meaning of Section 422 of
the Code or any amendment or substitute thereto ("Incentive Stock
Options").
5. Form of Awards. Awards may be made at any time and from time to time by
the Board in the form of stock options to purchase shares of Common Stock
of the Company, restricted stock or any combination thereof. Stock
options may be options which are intended to qualify as Incentive Stock
Options or options which are not intended to so qualify ("Nonqualified
Stock Options").
6. Stock Options. Stock options for the purchase of Common Stock ("Options")
shall be evidenced by written agreements in such form not inconsistent
with the Plan as the Board shall approve from time to time and which
shall contain in substance the following terms and conditions:
(a) Type of Option. Each option agreement shall identify the Options
represented thereby as Incentive Stock Options or Nonqualified Stock
Options, as the case may be.
(b) Option Price. Subject to the limitation set forth in Section
6(h)(B), the purchase price of Common Stock subject to an Incentive
Stock Option shall not be less than 100% of the fair market value of
such stock on the date the Option is granted, as determined by the
Board, but in no event less than the par value of such stock. The
purchase price of the Common Stock subject to a Nonqualified Stock
Option shall not be less than 85% of the fair market value of such
stock on the date the Option is granted, as determined by the Board.
Notwithstanding the foregoing, if the date on which the Option is
granted is not a business day, the purchase price for an Option
shall be not less than the applicable percentage for
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the fair market value on the most recent business day preceding
the grant date. For this purpose, fair market value on any date
shall mean the closing price of the Common Stock on the Nasdaq
Stock Market, as reported in the Wall Street Journal (or if not so
reported, as otherwise reported by Nasdaq), or if the Common Stock
is not reported by Nasdaq, the fair market value shall be as
determined by the Board pursuant to a method authorized by the
Code or the rules and regulations promulgated thereunder.
(c) Exercise Term. Each option agreement shall state the period or
periods of time within which the Option may be exercised, in whole
or in part, which shall be such period or periods of time as may be
determined by the Board, provided that no Option shall be
exercisable after ten years from the date of grant thereof. The
Board shall have the power to permit an acceleration of previously
established exercise terms, subject to the requirements set forth
herein, upon such circumstances and subject to such terms and
conditions as the Board deems appropriate.
(d) Exercise and Payment for Shares. Options may be exercised in whole
or in part, from time to time, by giving written notice of exercise
to the Secretary or his office, specifying the number of shares to
be purchased. The purchase price of the shares with respect to
which an Option is exercised shall be payable in full with the
notice of exercise in cash, Common Stock, including Common Stock
issuable upon the exercise of the Option (it being understood that
the use of Common Stock issuable upon the exercise of an Incentive
Stock Option shall constitute a disqualifying disposition thereof),
at fair market value, or a combination thereof, as the Board may
determine from time to time and subject to such terms and conditions
as may be prescribed by the Board for such purpose.
(e) Conditions Upon Issuance of Shares. Shares shall not be issued
pursuant to the exercise of an Option unless the exercise of such
Option and the issuance and delivery of such shares pursuant thereto
shall comply with all relevant provisions of law, including, without
limitation, the Securities Act of 1933, as amended, the Exchange
Act, the rules and regulations promulgated thereunder and the
requirements of any stock exchange upon which the Common Stock may
then be listed, and shall be further subject to the approval of
counsel for the Company with respect to such compliance. As a
condition to the exercise of an Option, the Company may require the
person exercising such Option to represent and warrant at the time
of any such exercise that the shares are being purchased only for
investment and without any present intention to sell or distribute
such shares if, in the opinion of counsel for the Company, such a
representation is required by any of the aforementioned relevant
provisions of law.
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(f) Rights Upon Termination of Employment. In the event that an
optionee ceases to be an employee of the Company or any subsidiary
for any reason, including retirement (as hereinafter defined),
other than death or disability (within the meaning of Section
22(e)(3) of the Code or any substitute therefor), the optionee
shall have the right to exercise an Option during its term within
a period of three months after such termination to the extent that
the Option was exercisable at the time of termination, or within
such other period, and subject to such terms and conditions, as
may be specified by the Board. In the event that an optionee dies
or becomes disabled prior to the expiration of his Option and
without having fully exercised his Option, the optionee or his
successor shall have the right to exercise the Option during its
term within a period of one (1) year after termination of
employment due to death or disability to the extent that the
Option was exercisable at the time of termination, or within such
other period, and subject to such terms and conditions, as may be
specified by the Board. As used in this Section 6(f),
"retirement" means a termination of employment by reason of an
optionee's retirement at or after his earliest permissible
retirement date pursuant to and in accordance with his employer's
regular retirement plan or personnel practices.
(g) Nontransferability. Each Incentive Stock Option and, unless
otherwise determined by the Board, each other Option granted under
the Plan shall not be transferable other than by will or by the laws
of descent and distribution. During the lifetime of the optionee,
each Option will be exercisable only by him or any permitted
transferee.
(h) Incentive Stock Options. In the case of an Incentive Stock Option,
each option agreement shall contain such other terms, conditions and
provisions as the Board determines necessary or desirable in order
to qualify such Option as a tax-favored option (within the meaning
of Section 422 of the Code or any amendment or substitute thereto or
regulation thereunder) including without limitation, each of the
following, except that any of these provisions may be omitted or
modified if it is no longer required in order to have an option
qualify as a tax-favored option within the meaning of Section 422 of
the Code or any substitute therefor:
(A) The aggregate fair market value (determined as of the date the
Option is granted) of the Common Stock with respect to which
Incentive Stock Options are first exercisable under the terms
of the option agreement by any employee during any calendar
year (under all plans of the Company) shall not exceed
$100,000; and
(B) No Incentive Stock Option shall be granted to any employee if
at the time the Option is granted the individual owns stock
possessing more than ten
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percent of the total combined voting power of all classes of
stock of the Company or its parent or its subsidiaries unless
at the time such Option is granted the option price is at
least 110 percent of the fair market value of the stock
subject to the Option and such Option by its terms is not
exercisable after the expiration of five years from the date
of grant.
(i) Options may be granted under the Plan from time to time in
substitution for stock options held by employees of other
corporations who are about to become and who do concurrently with
the grant of such options become employees of the Company or a
subsidiary as a result of a merger or consolidation of the employing
corporation with the Company or a subsidiary, or the acquisition by
the Corporation or a subsidiary of the assets of the employing
corporation, or the acquisition by the Company, or a subsidiary of
stock of the subsidiary. The terms and conditions of the substitute
options so granted may vary from the terms and conditions set forth
in this Section 6 of the Plan to such extent as the Board at the
time of grant may deem appropriate to conform, in whole or in part,
to the provisions of the stock options in substitution for which
they are granted.
7. Option Grants to Non-Employee Directors. Each person who is or becomes a
director of the Company and is not an officer of or otherwise employed by
the Company or any subsidiary thereof (as defined in Section 424(f) of
the Code) (a "Non-Employee Director") shall be entitled to receive
Nonqualified Stock Options under the following terms and conditions:
(a)(i) Each individual who becomes a Non-Employee Director after May 25,
2000 shall on the first trading day coinciding with or
immediately following the fifteenth (15th) day after his or her
initial election to the Board automatically be granted an Option
for 10,000 shares, provided that if such Non-Employee Director is
elected to serve as Chairman, the Option granted shall be for
15,000 shares.
(ii) After May 25, 2000, each time a Non-Employee Director completes
three (3) years of continuous service on the Board (a "Grant
Period") since his most recent grant of an Option under this
Section 7 or under the Company's Second Amended and Restated
Stock Option Plan for Outside Directors, that Non-Employee
Director shall on the first trading day coinciding with or
immediately following the completion of the Grant Period
automatically be granted an additional Option for 10,000 shares,
provided that if the Non-Employee Director has served as Chairman
throughout the Grant Period, the Option granted shall be for
15,000 shares.
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(b) The price of the shares subject to each Option granted under this
Section 7 (a "Director Option") shall be 100% of the fair market
value for such shares on the date the Option is granted, as
determined in accordance with Section 6(b) hereof.
(c) Each Director Option shall be exercisable in three equal
consecutive annual installments commencing one year from the
date of grant; provided, however, that all shares covered by
the Director Option which have not otherwise become
exercisable shall become immediately exercisable as to all
such shares upon the consummation of any business combination
transaction involving the sale of all or substantially all of
the assets of the Company to, or the acquisition of shares of
the Company's Common Stock representing more than 50% of the
votes which all stockholders of the Company are entitled to
cast by, any person not presently an affiliate of the Company,
directly or indirectly, through one or more affiliates or any
other transaction or series of transactions having a similar
effect.
(d) Except as hereinafter otherwise provided, each Director Option
shall terminate on the expiration of ten years from the date the
Director Option was granted. Each Director Option, or portion
thereof, which has become exercisable may be exercised until the
first to occur of the following events:
(A) except as provided in (C), below, the expiration of three
months from the date of the Non-Employee Director's "Termination
of Service" (as hereinafter defined) unless such Termination of
Service results from the Non-Employee Director's death or "Total
Disability" (as hereinafter defined); or
(B) except as provided in (C), below, the expiration of three
years from the date of the Non-Employee Director's Termination of
Service by reason of Total Disability; or
(C) the expiration of one year from the date of the
Non-Employee Director's death, if such death occurs while the
optionee is a Non-Employee Director or within the three-month
period referred to in (A), above, or the three-year period
referred to in (B), above, whichever is applicable.
For purposes of this Section 7(d), "Termination of Service" shall
mean a cessation of a Non-Employee Director's service as a member
of the Board whether as a result of resignation, failure to be
reelected or any other reason and "Total Disability" shall mean a
permanent and total disability as determined in accordance with
Section 22(e)(3) of the Code.
8. Restricted Stock Awards. Restricted stock awards under the Plan shall
consist of shares of Common Stock free of any purchase price or for such
purchase price as may be established by the Board, restricted against
transfer, subject to forfeiture, and subject to
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such other terms, conditions and restrictions as are intended to
further the purpose of the Plan, and shall be evidenced by a written
restricted stock agreement in such form not inconsistent with this Plan
as the Board shall approve from time to time, which agreement shall
contain in substance the following terms and conditions:
(a) Restriction Period. Shares awarded pursuant to this Plan shall be
subject to such terms, conditions and restrictions, including
without limitation, prohibitions against transfer, substantial risks
of forfeiture and attainment of performance objectives for such
period or periods, as shall be determined by the Board. The Board
shall have the power to permit, in its sole discretion, an
acceleration of the expiration of the applicable restriction period
with respect to any part or all of the shares awarded to the
participant.
(b) Restriction Upon Transfer. Restricted stock and the right to vote
such shares and to receive dividends thereon may not be sold,
assigned, transferred, exchanged, pledged, hypothecated, or
otherwise encumbered, except as herein provided, during the
restriction period applicable to such shares. Notwithstanding the
foregoing and except as otherwise provided in the Plan, the
participant shall have all other rights of a stockholder including,
but not limited to, the right to receive dividends and the right to
vote such shares.
(c) Certificates. Each certificate issued in respect of shares of
restricted stock awarded to a participant shall be deposited with
the Company or its designee and shall bear the following legend:
This certificate and the shares of stock represented hereby are
subject to the terms and conditions (including forfeiture
provisions and restrictions against transfer) contained in the
Surgical Laser Technologies, Inc. 2000 Equity Incentive Plan
and an Agreement entered into between the registered owner and
Surgical Laser Technologies, Inc. Release from such terms and
conditions shall be obtained only in accordance with the
provisions of the Plan and Agreement, a copy of each is
on file in the office of the Secretary of Surgical Laser
Technologies, Inc.
(d) Lapse of Restrictions. Each restricted stock agreement shall also
specify the terms and conditions upon which any restrictions upon
shares awarded under the Plan shall lapse, as determined by the
Board. Upon the lapse of such restrictions, a certificate for
shares of Common Stock free of the restrictive legend shall be
issued to the participant or his legal representative.
(e) Termination Prior to Lapse of Restrictions. In the event of a
participant's termination of employment prior to the lapse of
restrictions as determined pursuant to the provisions of
subparagraph (d), above, all shares as to which
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there still remains unlapsed restrictions shall be forfeited by
such participant to the Company without payment of any
consideration by the Company, and neither the participant nor any
successors, heirs, assigns, or personal representatives of such
participant shall thereafter have any further rights or interest
in such shares or certificates.
9. Date of Grant. The date on which an award shall be deemed to have
been granted under this Plan shall be the date of the Board's
authorization of the award or such later date as may be determined
by the Board at the time the award is authorized. Notice of the
determination shall be given to each individual to whom an award is
so granted within a reasonable time after the date of such grant.
10. General Restrictions. Each award under the Plan shall be subject to
the requirement that if at any time the Board shall determine that
(a) the listing, registration or qualification of the shares of
Common Stock subject or related thereto upon any securities
exchange, including the Nasdaq Stock Market, or under any state or
federal law, or (b) the consent or approval of any government
regulatory body, or (c) an agreement by the recipient of an award
with respect to the disposition of shares of Common Stock is
necessary or desirable as a condition of or in connection with the
granting of such award or the issuance or purchase of shares of
Common Stock thereunder, such award shall not be consummated in
whole or in part unless such listing, registration, qualification,
consent, approval, or agreement shall have been effected or obtained
free of any conditions not acceptable to the Board.
11. Single or Multiple Agreements. Multiple forms of awards or
combinations thereof may be evidenced by a single agreement or
multiple agreements, as determined by the Board in its sole
discretion.
12. Rights of a Stockholder. The recipient of any award under the Plan,
unless otherwise provided by the Plan, shall have no rights as a
stockholder with respect thereto unless and until certificates for
shares of Common Stock are issued and delivered to him.
13. Right to Terminate Service. Nothing in the Plan nor in any
agreement entered into pursuant to the Plan shall confer upon any
participant the right to continue in the service of the Company or
any subsidiary as an employee or consultant or affect any right
which the Company or any subsidiary may have to terminate the
employment or consulting relationship with such participant.
14. Withholding. Whenever the Company proposes or is required to issue
or transfer shares of Common Stock under the Plan, the Company shall
have the right to require the recipient to remit to the Company an
amount sufficient to satisfy any federal, state or local withholding
tax requirements prior to the delivery of any certificate or
certificates for such shares. Whenever under the Plan payments are
to be made in cash, such
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payments shall be net of an amount sufficient to satisfy any
federal, state or local withholding tax requirements. If and to
the extent authorized by the Board, in its sole discretion, an
optionee may make an election, by means of a form of election to
be prescribed by the Board, to have shares of Common Stock which
are acquired upon exercise of an Option withheld by the Company or
to tender other shares of Common Stock or other securities of the
Company owned by the optionee to the Company at the time of
exercise of an Option to pay the amount of tax that would
otherwise be required by law to be withheld by the Company as a
result of any exercise of an Option from amounts payable to such
optionee, subject to the following limitations:
(a) such election shall be irrevocable;
(b) such election shall be subject to the disapproval of the Board
at any time;
(c) if the optionee is a director, officer, or 10% stockholder (an
"Insider"), such election may not be made within six months of
the grant date of the Option the exercise of which resulted in
the tax withholding obligation (except that this limitation
shall not apply in the event of death or disability of such
person occurring prior to the expiration of the six-month
period); and
(d) if the optionee is an Insider, such election must be made either
(i) six months prior to the date that the amount of tax to be
withheld upon such exercise is determined or (ii) in any
ten-day period beginning on the fourth business day following
the date of release by the Company for publication of quarterly
or annual summary statements of sales or earnings of the
Company.
Any securities so withheld or tendered will be valued by the Board
as of the date of exercise.
15. Non-Assignability. No award under the Plan shall be assignable or
transferable by the recipient thereof except by will or by the laws
of descent and distribution or by such other means as and to the
extent the Board may approve. During the life of the recipient such
award shall be exercisable only by such person or by such person's
guardian or legal representative.
16. Non-Uniform Determinations. The Board's determinations under the
Plan (including without limitation determinations of the persons to
receive awards, the form, amount and timing of such awards, the
terms and provisions of such awards, and the agreements evidencing
same) need not be uniform and may be made selectively among persons
who receive, or are eligible to receive, awards under the Plan
whether or not such persons are similarly situated.
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17. Adjustments Upon Changes in Capitalization or Merger. Subject to
any required action by the stockholders of the Company, the number
of shares of Common Stock covered by each outstanding Option and
the number of shares of Common Stock which have been authorized
for issuance under the Plan but as to which no Options have yet
been granted or which have been returned to the Plan upon
cancellation or expiration of an Option, as well as the price per
share of Common Stock covered by each such outstanding Option,
shall be proportionately adjusted for any increase or decrease in
the number of outstanding shares of Common Stock resulting from a
stock split, reverse stock split, stock dividend, combination or
reclassification of the Common Stock, or any other increase or
decrease in the number of issued 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." Such adjustment shall be made by the Board,
whose determination in that respect shall be final, binding and
conclusive. Except as expressly provided herein, no issuance by
the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall affect, and
no adjustment by reason thereof shall be made with respect to, the
number or price of shares of Common Stock subject to an Option.
In the event of the proposed dissolution or liquidation of the
Company, each outstanding Option will terminate immediately prior to
the consummation of such proposed action, unless otherwise provided
by the Board. The Board may, in the exercise of its sole discretion
in such instances, declare that each outstanding Option shall
terminate as of a date fixed by the Board and give each optionee the
right to exercise his Option as to all or any part of the optioned
Common Stock, including shares as to which the Option would not
otherwise be exercisable. In the event of a proposed sale of all or
substantially all of the assets of the Company or any subsidiary, or
the merger of the Company or any subsidiary with or into another
corporation, the affected Options shall be assumed or an equivalent
option shall be substituted by such successor corporation or a
parent or subsidiary of such successor corporation, provided that
the successor corporation consents to such assumption or
substitution. Moreover, the Board may determine, in the exercise of
its sole discretion and in lieu of such assumption or substitution,
that the affected optionees shall have the right to exercise their
Options as to all of the optioned Common Stock, including shares as
to which the Option would not otherwise be exercisable. If the
Board makes an Option fully exercisable in lieu of assumption or
substitution in the event of a merger or sale of assets, the Board
shall notify the optionee that the Option shall be fully exercisable
for a period of thirty (30) days from the date of such notice, and
the Option will terminate upon the expiration of such period.
Notwithstanding the foregoing, any adjustments made pursuant to this
Section 17, to reflect any stock dividend, stock split, share
combination, or similar change in the
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capitalization of the Company shall be subject to and administered
in accordance with the provisions of Section 424(a) of the Code
and the Treas. Regulations thereunder.
18. Amendment. The Board may terminate or amend the Plan at any time,
except that without stockholder approval the Board may not
increase the maximum number of shares which may be issued under
the Plan (other than increases pursuant to Section 17 hereof),
extend the maximum period during which any Option may be exercised
pursuant to Section 6(c) hereof, extend the term of the Plan,
amend the employees or classes of employees eligible to receive
awards hereunder, change the minimum option price or approve any
other amendment which would require stockholder approval pursuant
to Treasury Regulations Section 1.162-27(e)(4)(vi). The
termination or any modification or amendment of the Plan shall
not, without the consent of a participant, affect his rights under
an award previously granted.
19. Effect on Other Plans. Participation in this Plan shall not affect
an employee's eligibility to participate in any other benefit or
incentive plan of the Company or any subsidiary. Any awards made
pursuant to this Plan shall not be used in determining the benefits
provided under any other plan of the Company or any subsidiary
unless specifically provided.
20. Duration of the Plan. The Plan shall remain in effect until all
awards under the Plan have been satisfied by the issuance of shares
or the payment of cash, but no award shall be granted more than ten
years after the earlier of the date the Plan is adopted by the Board
or is approved by the Company's stockholders.
21. Forfeiture for Dishonesty. Notwithstanding anything to the contrary
in this Plan, if the Board finds, by a majority vote, after full
consideration of the facts presented on behalf of both the Company
and any participant, that the participant has been engaged in fraud,
embezzlement, theft, commission of a felony or other dishonest
conduct in the course of his employment by the Company or any
subsidiary which damaged the Company or any subsidiary or that the
participant has disclosed trade secrets of the Company or any
subsidiary, the participant shall forfeit all unexercised Options
and rights, all restricted stock and all exercised Options or rights
under which the Company has not yet delivered the certificates or
cash. The decision of the Board as to the cause of a participant's
discharge and the damage done to the Company or any subsidiary shall
be final. No decision of the Board, however, shall affect the
finality of the discharge of such participant by the Company or any
subsidiary in any manner.
22. No Prohibition on Corporate Action. No provision of this Plan shall
be construed to prevent the Company or any officer or director
thereof from taking any corporate action deemed by the Company or
such officer or director to be appropriate or in the Company's best
interest, whether or not such action could have an adverse effect on
the Plan or any options, rights or stock awards granted hereunder,
and no participant or
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participant's estate, personal representative or beneficiary shall
have any claim against the Company or any officer or director
thereof as a result of the taking of such action.
23. Use of Proceeds. The proceeds received by the Company from the
exercise of any stock option issued pursuant to the Plan or from the
grant of any stock award under the Plan shall be used for general
corporate purposes.
24. Indemnification. With respect to the administration of the Plan,
the Company shall indemnify each present and future member of the
Board against, and each member of the Board shall be entitled
without further act on his part to indemnity from the Company for,
all expenses (including the amount of judgments and the amount of
approved settlements made with a view to the curtailment of costs of
litigation, other than amounts paid to the Company itself)
reasonably incurred by him in connection with or arising out of, any
action, suit or proceeding in which he may be involved by reason of
his being or having been a member of the Board (or the Compensation
Committee if it administers the Plan), whether or not he continues
to be such member of the Committee or the Board at the time of
incurring such expenses; provided, however, that such indemnity
shall not include any expenses incurred by any such member of the
Committee or the Board (a) in respect of matters as to which he
shall be finally adjudged in any such action, suit or proceeding to
have been guilty of gross negligence or willful misconduct in the
performance of his duty as such member of the Committee or the
Board; or (b) in respect of any matter in which any settlement is
effected for an amount in excess of the amount approved by the
Company on the advice of its legal counsel; and provided further
that no right of indemnification under the provisions set forth
herein shall be available to or enforceable by any such member of
the Committee or the Board unless within 60 days after institution
of any such action, suit or proceeding, he shall have offered the
Company in writing the opportunity to handle and defend same at its
own expense. The foregoing right of indemnification shall inure to
the benefit of the heirs, executors or administrators of each such
member of the Committee and the Board and shall be in addition to
all other rights to which such member of the Committee and the Board
may be entitled as a matter of law, contract or otherwise.
25. Miscellaneous Provisions.
(a) No participant or other person shall have any right with respect
to the Plan, the Common Stock reserved for issuance under the
Plan or in any award, contingent or otherwise, until written
evidence of the award shall have been delivered to the
recipient and all the terms, conditions and provisions of the
Plan and the award applicable to such recipient (and each
person claiming under or through him) have been met.
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(b) No shares of Common Stock, other securities or property of the
Company, or other forms of payment shall be issued hereunder
with respect to any award unless counsel for the Company shall
be satisfied that such issuance will be in compliance with
applicable federal, state, local and foreign legal, securities
exchange and other applicable requirements.
(c) It is the intent of the Company that the Plan comply in all
respects with Rule 16b-3 under the Exchange Act, that any
ambiguities or inconsistencies in construction of the Plan be
interpreted to give effect to such intention and that if any
provision of the Plan is found not to be in compliance with
Rule 16b-3, such provision shall be deemed null and void to
the extent required to permit the Plan to comply with Rule
16b-3.
(d) The Plan shall be unfunded. The Company shall not be required
to establish any special or separate fund or to make any other
segregation of assets to assure the payment of any award under
the Plan, and rights to the payment of awards shall be no
greater than the rights of the Company's general creditors.
(e) By accepting any award or other benefit under the Plan, each
participant and each person claiming under or through him shall
be conclusively deemed to have indicated his acceptance and
ratification of, and consent to, any action taken under the
Plan by the Company, the Board or the Committee or its
delegates.
(f) The masculine pronoun shall include the feminine and neuter, and
the singular shall include the plural, where the context so
indicates.
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