As filed with the Securities and Exchange Commission on April 4, 2000
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
Flextronics International Ltd.
(Exact Name of Registrant as Specified in Its Charter)
Singapore Not Applicable
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
11 Ubi Road 1, #07-01/02, Meiban Industrial Building, Singapore 408723
(Address of Principal Executive Offices)
Flextronics International Ltd. 1993 Share Option Plan
Share options granted under The DII Group, Inc. 1993 Stock
Option Plan assumed by the Registrant
Share options granted under The DII Group, Inc. 1994 Stock
Incentive Plan assumed by the Registrant
Share options granted under the Orbit Semiconductor, Inc. 1994 Stock
Incentive Plan assumed by the Registrant
Share options granted under the KMOS Semi-Customs, Inc. 1989 Stock
Option Plan assumed by the Registrant
Share options granted under the KMOS Semi-Customs 1990 Non-Qualified Stock
Option Plan assumed by the Registrant (Full Title of the Plans)
Michael E. Marks
Chairman and Chief Executive Officer
Flextronics International Ltd.
11 Ubi Road 1, #07-01/02
Meiban Industrial Building
Singapore 408723
(65) 844-3366
(Name, Address and Telephone Number of Agent For Service)
----------
Copies to:
David K. Michaels, Esq.
Tram T. Phi, Esq.
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, California 94306
This Registration Statement shall become effective immediately upon filing with
the Securities and Exchange Commission, and sales of the registered securities
will begin as soon as reasonably practicable after such effective date.
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Amount Proposed Maximum Proposed
Securities to be Offering Price Maximum Aggregate Amount of
to be Registered Registered Per Share Offering Price (6) Registration Fee
---------------- ---------- --------- ------------------ ----------------
<S> <C> <C> <C> <C>
Ordinary Shares, S$0.01 par value 4,000,000 (1) $66.7500(6) $267,000,000.00 $70,488.00
Ordinary Shares, S$0.01 par value 1,243,634 (2) $5.9517 (7) $7,401,736.48 $1,954.06
Ordinary Shares, S$0.01 par value 3,885,239 (3) $10.3511 (7) $40,216,497.41 $10,617.16
Ordinary Shares, S$0.01 par value 106,222 (4) $5.6998 (7) $605,444.16 $159.84
Ordinary Shares, S$0.01 par value 5,957 (5) $1.3003 (7) $7,745.89 $2.04
</TABLE>
(1) Represents additional shares available for issuance under the Flextronics
International Ltd. 1993 Share Option Plan. Pursuant to Rule 429 promulgated
under the Securities Act of 1933, as amended (the "Securities Act"), the
prospectuses relating to this Registration Statement also relate to the
shares registered under Form S-8 Registration Statement Nos. 33-99924,
333-42255, 333-71049 and 333-95189. A total of 16,400,000 shares issuable
under the 1993 Share Option Plan has previously been registered under the
Securities Act.
(2) Represents shares subject to assumed outstanding share options as of April
4, 2000 granted under The DII Group, Inc. 1993 Stock Option Plan.
(3) Represents shares subject to assumed outstanding share options as of April
4, 2000 granted under The DII Group, Inc. 1994 Stock Incentive Plan.
(4) Represents shares subject to assumed outstanding share options as of April
4, 2000 granted under the Orbit Semiconductor, Inc. 1994 Stock Incentive
Plan.
(5) Represents shares subject to assumed outstanding share options as of April
4, 2000 granted under the KMOS Semi-Customs, Inc. 1989 Stock Option Plan
and the KMOS Semi-Customs 1990 Non-Qualified Stock Option Plan.
(6) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the average of the high
and low prices per Ordinary Share of Flextronics International Ltd. on
March 30, 2000 as reported by the Nasdaq National Market.
(7) Represents weighted average per share exercise price for such outstanding
options, calculated pursuant to Rule 457(h)(1) solely for the purpose of
calculating the registration fee.
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<PAGE>
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange Commission
(the "Commission") are incorporated herein by reference:
(a) the Registrant's Annual Report on Form 10-K for the fiscal year ended
March 31, 1999, as amended, filed pursuant to Section 13(a) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
which Annual Report contains audited financial statements for the
fiscal year ended March 31, 1999;
(b) the Registrant's Quarterly Reports on Form 10-Q for the fiscal
quarters ended June 25, 1999, September 24, 1999 and December 31, 1999
filed pursuant to Section 13(a) of the Exchange Act;
(c) the Registrant's Current Reports on Form 8-K filed with the Commission
on October 29, 1999, December 6, 1999 and December 23, 1999; and
(d) the description of the Registrant's Ordinary Shares contained in the
Registrant's registration statement on Form 8-A filed with the
Commission under Section 12(g) of the Exchange Act.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities registered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part hereof from
the date of the filing of such documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Article 155 of the Flextronics articles provides that, subject to the
Singapore Companies Act, every director or other officer shall be entitled to be
indemnified by Flextronics against all liabilities incurred by him in the
execution and discharge of his duties or in relation thereto, including any
liability in defending any proceedings, civil or criminal, which relate to
anything done or omitted or alleged to have been done or omitted by him as an
officer or employee of Flextronics and in which judgment is given in his favor,
or the proceedings otherwise disposed of without finding or admission of any
material breach of duty; in which he is acquitted; or in connection with any
application under any statute for relief from liability for any act or omission
in which relief is granted to him by the court.
In addition, no director or other officer shall be liable for the acts,
receipts, neglects or defaults of any other director or officer, joining in any
receipt or other act for conformity, any loss or expense happening to
Flextronics, through the insufficiency or deficiency of title to any property
acquired by order of the directors for Flextronics or for the insufficiency or
deficiency of any security upon which any of the moneys of Flextronics are
invested or for any loss or damage arising from the bankruptcy, insolvency or
tortious act of any person with whom any moneys, securities or effects are
deposited, or any other loss or misfortune which happens in the execution of his
duties, unless the same happens through his own negligence, willful default,
breach of duty or breach of trust.
Section 172 of the Companies Act renders void any provision for
indemnifying a company's directors or officers against liability which by law
would otherwise attach to them for any negligence, default, breach of duty or
breach of trust of which they may be guilty relating to the company. However, a
company is not prohibited from
<PAGE>
purchasing and maintaining insurance against any such liability except where the
liability arises out of conduct involving dishonesty or a willful breach of
duty, or indemnifying a director or officer against any liability incurred in
defending any proceedings, whether civil or criminal, in which judgment is given
in his favor or in which he is acquitted, or in connection with any application
in relation to liability in which relief is granted to him by the court.
Flextronics has entered into indemnification agreements with its officers
and directors. These indemnification agreements provide Flextronics' officers
and directors with indemnification to the maximum extent permitted by the
Companies Act. Flextronics has also obtained a policy of directors' and
officers' liability insurance that will insure directors and officers against
the cost of defense, settlement or payment of a judgment under certain
circumstances.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
4.1 Indenture dated as of October 15, 1997 between the Registrant and
State Street Bank and Trust Company of California, N.A., as trustee.
(Incorporated by reference to Exhibit 10.1 of the Registrant's Current
Report on Form 8-K for the event reported on October 15, 1997.)
4.2 1993 Share Option Plan.
4.3 The DII Group, Inc. 1993 Stock Option Plan.
4.4 The DII Group, Inc. 1994 Stock Incentive Plan.
4.5 Orbit Semiconductor, Inc. 1994 Stock Incentive Plan.
4.6 KMOS Semi-Customs, Inc. 1989 Stock Option Plan.
4.7 KMOS Semi-Customs, Inc. 1990 Non-Qualified Stock Option Plan.
5.1 Opinion of Allen & Gledhill.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Moore Stephens.
23.3 Consent of Allen & Gledhill (included in Exhibit 5.1).
24.1 Power of Attorney. Reference is made to the signature page of this
Registration Statement.
Item 9. Undertakings.
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;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end
<PAGE>
of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement;
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 (1)(i) and (1)(ii) above do not apply if
the Registration Statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act
that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) 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.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions discussed in Item 6 hereof, or otherwise,
the Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered hereby, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Jose, State of California, on the 4th day of
April, 2000.
FLEXTRONICS INTERNATIONAL LTD.
By: /s/ Michael E. Marks
-----------------------------------
Michael E. Marks
Chairman of the Board,
Chief Executive Officer and
Authorized U.S. Representative
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints jointly and severally, Michael E. Marks
and Robert R.B. Dykes and each one of them, his attorneys-in-fact, each with the
power of substitution, for him in any and all capacities, to sign any and all
amendments to this registration statement (including any and all amendments,
including post-effective amendments), and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming all that each of said
attorneys-in-fact, or his substitutes, may 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 below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ Michael E. Marks Chairman of the Board, and Chief Executive April 4, 2000
- ------------------------------------ Officer (principal executive officer)
Michael E. Marks
/s/ Tsui Sung Lam Director April 4, 2000
- ------------------------------------
Tsui Sung Lam
/s/ Robert R.B. Dykes President, Systems Group and Chief April 4, 2000
- ------------------------------------ Financial Officer (principal financial
Robert R.B. Dykes and accounting officer)
/s/ Michael J. Moritz Director April 4, 2000
- ------------------------------------
Michael J. Moritz
/s/ Richard L. Sharp Director April 4, 2000
- ------------------------------------
Richard L. Sharp
/s/ Patrick Foley Director April 4, 2000
- ------------------------------------
Patrick Foley
/s/ Alain Ahkong Director April 4, 2000
- ------------------------------------
Alain Ahkong
/s/ Shing Leong Hui Director April 4, 2000
- ------------------------------------
Shing Leong Hui
</TABLE>
<PAGE>
EXHIBIT INDEX
Exhibit
Number Document Description
- ------ --------------------
4.1 Indenture dated as of October 15, 1997 between the Registrant and
State Street Bank and Trust Company of California, N.A., as trustee.
(Incorporated by reference to Exhibit 10.1 of the Registrant's Current
Report on Form 8-K for the event reported on October 15, 1997.)
4.2 1993 Share Option Plan.
4.3 The DII Group, Inc. 1993 Stock Option Plan.
4.4 The DII Group, Inc. 1994 Stock Incentive Plan.
4.5 Orbit Semiconductor, Inc. 1994 Stock Incentive Plan.
4.6 KMOS Semi-Customs, Inc. 1989 Stock Option Plan.
4.7 KMOS Semi-Customs, Inc. 1990 Non-Qualified Stock Option Plan.
5.1 Opinion of Allen & Gledhill.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Moore Stephens.
23.3 Consent of Allen & Gledhill (included in Exhibit 5.1).
24.1 Power of Attorney. Reference is made to the signature page of this
Registration Statement.
Exhibit 4.2
FLEXTRONICS INTERNATIONAL LTD.
1993 SHARE OPTION PLAN
(As Amended and Restated through March 30, 2000)
ARTICLE ONE
GENERAL
I. PURPOSE OF THE PLAN
A. This 1993 Share Option Plan (the "Plan") is intended to promote the
interests of Flextronics International Ltd., a Singapore corporation (the
"Corporation"), by providing (i) key employees (including officers) of the
Corporation (or its parent or subsidiary corporations) who are responsible for
the management, growth and financial success of the Corporation (or its parent
or subsidiary corporations), (ii) certain non-employee members of the
Corporation's Board of Directors (the "Board") and (iii) certain consultants and
other independent contractors who provide valuable services to the Corporation
(or its parent or subsidiary corporations) with the opportunity to acquire a
proprietary interest, or otherwise increase their proprietary interest, in the
Corporation as an incentive for them to remain in the service of the Corporation
(or its parent or subsidiary corporations).
B. The Plan shall become effective on December 1, 1993 upon adoption by the
Board, and such date shall accordingly constitute the Effective Date of the
Plan.
II. DEFINITIONS
A. For purposes of the Plan, the following definitions shall be in effect:
Board: the Corporation's Board of Directors.
Change in Control: a change in ownership or control of the Corporation
effected through either of the following transactions:
a. the direct or indirect acquisition by any person or related group
of persons (other than the Corporation or a person that directly or
indirectly controls, is controlled by, or is under common control with, the
Corporation) of beneficial ownership (within the meaning of Rule 13d-3 of
the 1934 Act) of securities possessing more than fifty percent (50%) of the
total combined voting power of the Corporation's outstanding securities
pursuant to a tender or exchange offer made directly to the Corporation's
stockholders which the Board does not recommend such stockholders to
accept; or
b. a change in the composition of the Board over a period of
thirty-six (36) consecutive months or less such that a majority of the
Board members (rounded up to the next whole number) ceases, by reason of
one or more proxy contests for the election of Board members, to be
comprised of individuals who either (i) have been Board members
continuously since the beginning of such period or (ii) have been elected
or nominated for election as Board members during such period by at least a
majority of the Board members described in clause (i) who were still in
office at the time such election or nomination was approved by the Board.
Code: the U.S. Internal Revenue Code of 1986, as amended.
<PAGE>
Corporate Transaction: any of the following stockholder-approved
transactions to which the Corporation is a party:
a. a merger or consolidation in which the Corporation is not the
surviving entity, except for a transaction the principal purpose of which
is to change the state in which the Corporation is incorporated,
b. the sale, transfer or other disposition of all or substantially all
of the assets of the Corporation in complete liquidation or dissolution of
the Corporation, or
c. any reverse merger in which the Corporation is the surviving entity
but in which securities possessing more than fifty percent (50%) of the
total combined voting power of the Corporation's outstanding securities are
transferred to a person or persons different from the persons holding those
securities immediately prior to such merger.
Employee: an individual who performs services while in the employ of the
Corporation or one or more parent or subsidiary corporations, subject to the
control and direction of the employer entity not only as to the work to be
performed but also as to the manner and method of performance.
Exercise Date: the date on which the Corporation shall have received
written notice of the option exercise.
Fair Market Value: the Fair Market Value per Ordinary Share determined in
accordance with the following provisions:
a. If the Ordinary Shares are not at the time listed or admitted to
trading on any U.S. national stock exchange but are traded on the Nasdaq
National Market, the Fair Market Value shall be the closing selling price
per Ordinary Share on the date in question, as such price is reported by
the National Association of Securities Dealers through the Nasdaq National
Market or any successor system. If there is no reported closing selling
price for the Ordinary Shares on the date in question, then the closing
selling price per Ordinary Share on the last preceding date for which such
quotation exists shall be determinative of Fair Market Value.
b. If the Ordinary Shares are at the time listed or admitted to
trading on any U.S. national stock exchange, then the Fair Market Value
shall be the closing selling price per Ordinary Share on the date in
question on the U.S. exchange determined by the Plan Administrator to be
the primary market for the Ordinary Shares, as such price is officially
quoted in the composite tape of transactions on such exchange. If there is
no reported sale of the Ordinary Shares on such exchange on the date in
question, then the Fair Market Value shall be the closing selling price per
Ordinary Share on the exchange on the last preceding date for which such
quotation exists.
c. If the Ordinary Shares are on the date in question neither listed
nor admitted to trading on any U.S. national stock exchange nor traded on
the Nasdaq National Market, then the Fair Market Value per Ordinary Share
on such date shall be determined by the Plan Administrator after taking
into account such factors as the Plan Administrator shall deem appropriate.
Hostile Take-Over: a change in ownership of the Corporation effected
through the following transaction:
a. the direct or indirect acquisition by any person or related group
of persons (other than the Corporation or a person that directly or
indirectly controls, is controlled by, or is under common control with, the
Corporation) of beneficial ownership (within the meaning of Rule 13d-3 of
the 1934 Act) of securities possessing more than fifty percent (50%) of the
total combined voting power of the Corporation's outstanding securities
pursuant to a tender or exchange offer made directly to the Corporation's
stockholders which the Board does not recommend such stockholders to
accept, and
<PAGE>
b. the acceptance of more than fifty percent (50%) of the securities
so acquired in such tender or exchange offer from holders other than
Section 16 Insiders.
Incentive Option: a stock option which satisfies the requirements of Code
Section 422.
Initial Automatic Grant Date: January 24, 1994.
1934 Act: the U.S. Securities and Exchange Act of 1934, as amended from
time to time.
Non-Statutory Option: a stock option not intended to meet the requirements
of Code Section 422.
Optionee: any person to whom an option is granted under the Discretionary
Option Grant or Automatic Option Grant Program in effect under the Plan.
Ordinary Shares: ordinary shares of the Corporation with a par value of
S$0.01 per share.
Parent: any corporation (other than the Corporation) in an unbroken chain
of corporations ending with the Corporation, provided each corporation in the
unbroken chain (other than the Corporation) owns, at the time of the
determination, stock possessing more than fifty percent (50%) of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
Permanent Disability or Permanently Disabled: the inability of the Optionee
or the Participant to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment expected to result in
death or to be of continuous duration of twelve (12) months or more.
Plan Administrator: the particular entity, whether the Primary Committee,
the Board or the Secondary Committee, which is authorized to administer the
Discretionary Option Grant Program with respect to one or more classes of
eligible persons, to the extent such entity is carrying out its administrative
functions under that program with respect to the persons under its jurisdiction.
Primary Committee: the committee of two (2) or more non-employee Board
members appointed by the Board to administer the Discretionary Option Grant
Program with respect to Section 16 Insiders.
Secondary Committee: the committee of one (1) or more Board members
appointed by the Board to administer the Discretionary Option Grant Program with
respect to eligible persons other than Section 16 Insiders.
Service: the performance of services on a periodic basis to the Corporation
(or any parent or subsidiary corporation) in the capacity of an Employee, a
non-employee member of the Board or an independent consultant or advisor, except
to the extent otherwise specifically provided in the applicable stock option
agreement.
Section 12(g) Registration Date: the date on which the initial registration
of the Ordinary Shares under Section 12(g) of the 1934 Act becomes effective.
Section 16 Insider: an officer or director of the Corporation subject to
the short-swing profit restrictions of Section 16 of the 1934 Act.
Subsidiary: any corporation (other than the Corporation) in an unbroken
chain of corporations beginning with the Corporation, provided each corporation
(other than the last corporation) in the unbroken chain owns, at the time of the
determination, stock possessing more than fifty percent (50%) of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
Take-Over Price: the greater of (a) the Fair Market Value per Ordinary
Share on the date the particular option to purchase Ordinary Shares is
surrendered to the Corporation in connection with a Hostile Take-Over or (b) the
highest reported price per Ordinary Share paid by the tender offeror in
effecting such Hostile Take-Over.
<PAGE>
However, if the surrendered option is an Incentive Option, the Take-Over Price
shall not exceed the clause (a) price per share.
Underwriting Execution Date: the date on which the Underwriting Agreement
for the initial public offering of the Ordinary Shares in the U.S. is executed
and priced.
B. The following provisions shall be applicable in determining the parent
and subsidiary corporations of the Corporation:
Any corporation (other than the Corporation) in an unbroken chain of
corporations ending with the Corporation shall be considered to be a parent
of the Corporation, provided each such corporation in the unbroken chain
(other than the Corporation) owns, at the time of the determination, stock
possessing fifty percent (50%) or more of the total combined voting power
of all classes of stock in one of the other corporations in such chain.
Each corporation (other than the Corporation) in an unbroken chain of
corporations beginning with the Corporation shall be considered to be a
subsidiary of the Corporation, provided each such corporation in the
unbroken chain (other than the last corporation) owns, at the time of the
determination, stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other
corporations in such chain.
III. STRUCTURE OF THE PLAN
A. Stock Programs. The Plan shall be divided into two (2) components: the
Discretionary Option Grant Program specified in Article Two and the Automatic
Option Grant Program specified in Article Three. Under the Discretionary Option
Grant Program, eligible individuals may, at the discretion of the Plan
Administrator, be granted options to purchase Ordinary Shares in accordance with
the provisions of Article Two. Under the Automatic Option Grant Program,
non-employee members of the Board will receive special option grants at periodic
intervals to purchase Ordinary Shares in accordance with the provisions of
Article Three.
B. General Provisions. Unless the context clearly indicates otherwise, the
provisions of Articles One and Four shall apply to the Discretionary Option
Grant and the Automatic Option Grant Programs and shall accordingly govern the
interests of all individuals under the Plan.
IV. ADMINISTRATION OF THE PLAN
A. The Primary Committee shall have sole and exclusive authority to
administer the Discretionary Option Grant Program with respect to Section 16
Insiders. No non-employee Board member shall be eligible to serve on the Primary
Committee if such individual has, during the twelve (12)-month period
immediately preceding the date of his or her appointment to the Committee or (if
shorter) the period commencing with the Section 12(g) Registration Date and
ending with the date of his or her appointment to the Primary Committee,
received an option grant under the Plan or any other stock option, stock
appreciation, stock bonus or other stock plan of the Corporation (or any parent
or subsidiary corporation), other than pursuant to the Automatic Option Grant
Program.
B. Administration of the Discretionary Option Grant Program with respect to
all other persons eligible to participate in that program may, at the Board's
discretion, be vested in the Primary Committee or a Secondary Committee, or the
Board may retain the power to administer that program with respect to all such
persons. The members of the Secondary Committee may be Board members who are
Employees eligible to receive discretionary option grants under the Plan or any
other stock option, stock appreciation, stock bonus or other stock plan of the
Corporation (or any Parent or Subsidiary).
C. Members of the Primary Committee or any Secondary Committee shall serve
for such period of time as the Board may determine and may be removed by the
Board at any time. The Board may also at any time
<PAGE>
terminate the functions of any Secondary Committee and reassume all powers and
authority previously delegated to such committee.
D. Each Plan Administrator shall, within the scope of its administrative
functions under the Plan, have full power and authority (subject to the
provisions of the Plan) to establish such rules and regulations as it may deem
appropriate for proper administration of the Discretionary Option Grant Program
and to make such determinations under, and issue such interpretations of the
provisions of such program and any outstanding options or stock issuances
thereunder as it may deem necessary or advisable. Decisions of the Plan
Administrator within the scope of its administrative functions under the Plan
shall be final and binding on all parties who have an interest in the
Discretionary Option Grant Program under its jurisdiction or any option grant
thereunder.
E. Service on the Primary Committee or the Secondary Committee shall
constitute service as a Board member, and members of each such committee shall
accordingly be entitled to full indemnification and reimbursement as Board
members for their service on such committee. No member of the Primary Committee
or the Secondary Committee shall be liable for any act or omission made in good
faith with respect to the Plan or any option grants under the Plan.
F. Administration of the Automatic Option Grant Program shall be
self-executing in accordance with the terms and conditions of that program, and
no Plan Administrator shall exercise any discretionary functions with respect to
any option grants made under that program.
V. OPTION GRANTS
A. The persons eligible to participate in the Discretionary Option Grant
Program under Article Two shall be limited to the following:
l. officers and other key employees of the Corporation (or its parent
or subsidiary corporations) who render services which contribute to the
management, growth and financial success of the Corporation (or its parent
or subsidiary corporations); and
2. those consultants or other independent contractors who provide
valuable services to the Corporation (or its parent or subsidiary
corporations) but who are not residents of Singapore.
B. Non-employee Board members shall not be eligible to participate in the
Discretionary Option Grant Program. Such individuals shall, however, be eligible
to receive automatic option grants pursuant to the provisions of Article Three,
provided such individuals are not residents of Singapore.
C. The Plan Administrator shall have full authority to determine which
eligible individuals are to receive option grants under the Discretionary Option
Grant Program, the number of Ordinary Shares to be covered by each such grant,
the status of the granted option as either an Incentive Option or a
Non-Statutory Option, the time or times at which each granted option is to
become exercisable and the maximum term for which the option may remain
outstanding.
VI. STOCK SUBJECT TO THE PLAN
A. The maximum number of Ordinary Shares which may be issued over the term
of the Plan shall not exceed 20,400,000* Ordinary Shares, subject to adjustment
from time to time in accordance with the provisions of this Section VI. The
Ordinary Shares reserved for issuance under the Plan shall be drawn from the
Corporation's authorized but unissued Ordinary Shares.
B. In no event may the aggregate number of Ordinary Shares for which any
one individual participating in the Plan may be granted stock options exceed
2,000,000* Ordinary Shares annually.
<PAGE>
C. Should one or more outstanding options under this Plan expire or
terminate for any reason prior to exercise in full (including any option
cancelled in accordance with the cancellation-regrant provisions of Section IV
of Article Two of the Plan), then the Ordinary Shares subject to the portion of
each option not so exercised shall be available for subsequent issuance under
the Plan. Ordinary Shares subject to any option or portion thereof surrendered
in accordance with Section V of Article Two or Section III of Article Three and
all Ordinary Shares issued under the Plan shall reduce on a share-for-share
basis the number of Ordinary Shares available for subsequent issuance the Plan.
D. Should any change be made to the Ordinary Shares issuable under the Plan
by reason of any stock split, stock dividend, recapitalization, combination of
shares, exchange of shares or other change affecting the outstanding Ordinary
Shares as a class without the Corporation's receipt of consideration, then
appropriate adjustments shall be made to (i) the maximum number and/or class of
securities issuable under the Plan, (ii) the maximum number and/or class of
securities for which any one individual participating in the Plan may be granted
stock options over the term of the Plan, (iii) the number and/or class of
securities for which automatic option grants are to be subsequently made per
newly-elected or continuing non-employee Board member under the Automatic Option
Grant Program and (iv) the number and/or class of securities and price per share
in effect under each option outstanding under the Discretionary Option Grant or
Automatic Option Grant Program. Such adjustments to the outstanding options are
to be effected in a manner which shall preclude the enlargement or dilution of
rights and benefits under such options. The adjustments determined by the Plan
Administrator shall be final, binding and conclusive.
ARTICLE TWO
DISCRETIONARY OPTION GRANT PROGRAM
I. TERMS AND CONDITIONS OF OPTIONS
Options granted pursuant to the Discretionary Option Grant Program shall be
authorized by action of the Plan Administrator and may, at the Plan
Administrator's discretion, be either Incentive Options or Non-Statutory
Options. Individuals who are not Employees of the Corporation or its parent or
subsidiary corporations may only be granted Non-Statutory Options. Each granted
option shall be evidenced by one or more instruments in the form approved by the
Plan Administrator; provided, however, that each such instrument shall comply
with the terms and conditions specified below. Each instrument evidencing an
Incentive Option shall, in addition, be subject to the applicable provisions of
Section II of this Article Two.
A. Exercise Price.
1. The exercise price per Ordinary Share shall be fixed by the Plan
Administrator in accordance with the following provisions:
a. The exercise price per Ordinary Share subject to an Incentive
Option shall in no event be less than one hundred percent (100%) of the
Fair Market Value per Ordinary Share on the grant date.
b. The exercise price per Ordinary Share subject to a Non-Statutory
Option shall in no event be less than eighty-five percent (85%) of the Fair
Market Value per Ordinary Share on the grant date.
c. In no event may the exercise price per Ordinary Share subject to
any Incentive or Non-Statutory Option be less than the par value of such
Ordinary Share.
2. The exercise price shall become immediately due upon exercise of the
option and, subject to the provisions of Section I of Article Four and the
instrument evidencing the grant, shall be payable in one of the following
alternative forms specified below:
<PAGE>
a. full payment in cash or check made payable to the Corporation's
order;
b. full payment through a broker-dealer sale and remittance procedure
pursuant to which the Optionee shall provide concurrent irrevocable written
instructions (i) to a Corporation-designated brokerage firm to effect the
immediate sale of the purchased Ordinary Shares and remit to the
Corporation, out of the sale proceeds available on the settlement date,
sufficient funds to cover the aggregate exercise price payable for the
purchased Ordinary Shares plus all applicable Federal, state and local
income and employment taxes required to be withheld by the Corporation in
connection with such purchase and (ii) to the Corporation to deliver the
certificates for the purchased Ordinary Shares directly to such brokerage
firm in order to complete the sale transaction; or
c. conversion of a convertible note issued by the Corporation or a
Subsidiary, the terms of which provide that it is convertible into Ordinary
Shares issuable pursuant to the 1993 Plan (with the principal amount and
any accrued interest being converted and credited dollar for dollar to the
payment of the exercise price).
B. Term and Exercise of Options. Each option granted under this
Discretionary Option Grant Program shall be exercisable at such time or times
and during such period as is determined by the Plan Administrator and set forth
in the instrument evidencing the grant. No such option, however, shall have a
maximum term in excess of five (5) years measured from the grant date. The
option, together with any stock appreciation rights pertaining to such option,
shall be assignable or transferable by the Optionee. The Optionee shall be
required to comply with all applicable laws in connection with any such transfer
or assignment, and the Plan Administrator shall have the discretion to adopt
such rules as it deems necessary to ensure that any assignment or transfer is in
compliance with all applicable laws.
C. Termination of Service.
1. The following provisions shall govern the exercise period applicable to
any outstanding options held by the Optionee at the time of cessation of Service
or death.
a. Should an Optionee cease Service for any reason (including death or
Permanent Disability) while holding one or more outstanding options under
this Article Two, then none of those options shall (except to the extent
otherwise provided pursuant to subparagraph 3 below) remain exercisable for
more than a twenty-four (24)-month period (or such shorter period
determined by the Plan Administrator and set forth in the instrument
evidencing the grant) measured from the date of such cessation of Service.
b. Any option held by the Optionee under this Article Two and
exercisable in whole or in part on the date of his or her death may be
subsequently exercised by the personal representative of the Optionee's
estate or by the person or persons to whom the option is transferred
pursuant to the Optionee's will or in accordance with the laws of descent
and distribution. However, the right to exercise such option shall lapse
upon the earlier of (i) the second anniversary of the date of the
Optionee's death (or such shorter period determined by the Plan
Administrator and set forth in the instrument evidencing the grant) or (ii)
the specified expiration date of the option term. Accordingly, upon the
occurrence of the earlier event, the option shall terminate and cease to
remain outstanding.
c. Under no circumstances shall any such option be exercisable after
the specified expiration date of the option term.
d. During the applicable post-Service exercise period, the option may
not be exercised in the aggregate for more than the number of Ordinary
Shares (if any) for which that option is exercisable at the time of the
Optionee's cessation of Service. Upon the expiration of the
<PAGE>
limited post-Service exercise period or (if earlier) upon the specified
expiration date of the option term, each such option shall terminate and
cease to be outstanding with respect to any vested Ordinary Shares for
which the option has not otherwise been exercised. However, each
outstanding option shall immediately terminate and cease to be outstanding,
at the time of the Optionee's cessation of Service, with respect to any
Ordinary Shares for which the option is not otherwise at that time
exercisable or in which Optionee is not otherwise vested.
e. Should (i) the Optionee's Service be terminated for misconduct
(including, but not limited to, any act of dishonesty, willful misconduct,
fraud or embezzlement) or (ii) the Optionee make any unauthorized use or
disclosure of confidential information or trade secrets of the Corporation
or its parent or subsidiary corporations, then in any such event all
outstanding options held by the Optionee under this Article Two shall
terminate immediately and cease to remain outstanding.
2. The Plan Administrator shall have complete discretion, exercisable
either at the time the option is granted or at any time while the option remains
outstanding, to permit one or more options held by the Optionee under this
Article Two to be exercised, during the limited post-Service exercise period
applicable under this paragraph C., not only with respect to the number of
vested Ordinary Shares for which each such option is exercisable at the time of
the Optionee's cessation of Service but also with respect to one or more
subsequent installments of vested Ordinary Shares for which the option would
otherwise have become exercisable had such cessation of Service not occurred.
3. The Plan Administrator shall also have full power and authority,
exercisable either at the time the option is granted or at any time while the
option remains outstanding, to extend the period of time for which the option is
to remain exercisable following the Optionee's cessation of Service or death
from the limited period in effect under subparagraph 1. above to such greater
period of time as the Plan Administrator shall deem appropriate. In no event,
however, shall such option be exercisable after the specified expiration date of
the option term.
D. Stockholder Rights. An optionee shall have no stockholder rights with
respect to the Ordinary Shares subject to the option until such individual shall
have exercised the option and paid the exercise price for the purchased Ordinary
Shares.
II. INCENTIVE OPTIONS
The terms and conditions specified below shall be applicable to all
Incentive Options granted under this Article Two. Incentive Options may only be
granted to individuals who are Employees of the Corporation. Options which are
specifically designated as Non-Statutory Options when issued under the Plan
shall not be subject to such terms and conditions. Except as so modified by this
Section II, the provisions of Articles One, Two and Four of the Plan shall apply
to all Incentive Options granted hereunder.
A. Dollar Limitation. The aggregate Fair Market Value (determined as of the
respective date or dates of grant) of the Ordinary Shares for which one or more
options granted to any Employee under this Plan (or any other option plan of the
Corporation or its parent or subsidiary corporations) may for the first time
become exercisable as incentive stock options under the Code during any one
calendar year shall not exceed the sum of One Hundred Thousand Dollars
($100,000). To the extent the Employee holds two (2) or more such options which
become exercisable for the first time in the same calendar year, the foregoing
limitation on the exercisability of such options as incentive stock options
under the Code shall be applied on the basis of the order in which such options
are granted. Should the number of Ordinary Shares for which any Incentive Option
first becomes exercisable in any calendar year exceed the applicable One Hundred
Thousand Dollar ($100,000) limitation, then that option may nevertheless be
exercised in such calendar year for the excess number of shares as a
non-statutory option under the Code.
B. 10% Stockholder. If any individual to whom an Incentive Option is
granted is the owner of stock (as determined under Section 424(d) of the Code)
possessing ten percent (10%) or more of the total combined voting
<PAGE>
power of all classes of stock of the Corporation or any one of its parent or
subsidiary corporations, then the exercise price per Ordinary Share shall not be
less than the greater of (i) one hundred and ten percent (110%) of the Fair
Market Value per Ordinary Share on the grant date or (ii) the par value of such
Ordinary Share.
III. CORPORATE TRANSACTION/CHANGE IN CONTROL
A. In the event of any Corporate Transaction, each option which is at the
time outstanding under this Article Two shall automatically accelerate so that
each such option shall, immediately prior to the specified effective date for
the Corporate Transaction, become fully exercisable with respect to the total
number of Ordinary Shares at the time subject to such option and may be
exercised for all or any portion of such Ordinary Shares. However, an
outstanding option under this Article Two shall not so accelerate if and to the
extent: (i) such option is, in connection with the Corporate Transaction, either
to be assumed by the successor corporation or parent thereof or to be replaced
with a comparable option to purchase shares of the capital stock of the
successor corporation or parent thereof, (ii) such option is to be replaced with
a cash incentive program of the successor corporation which preserves the option
spread existing at the time of the Corporate Transaction and provides for
subsequent payout in accordance with the same vesting schedule applicable to
such option or (iii) the acceleration of such option is subject to other
limitations imposed by the Plan Administrator at the time of the option grant.
The determination of option comparability under clause (i) above shall be made
by the Plan Administrator, and its determination shall be final, binding and
conclusive.
B. Immediately following the consummation of the Corporate Transaction, all
outstanding options under this Article Two shall terminate and cease to remain
outstanding, except to the extent assumed by the successor corporation or its
parent company.
C. Each outstanding option under this Article Two which is assumed in
connection with the Corporate Transaction or is otherwise to continue in effect
shall be appropriately adjusted, immediately after such Corporate Transaction,
to apply and pertain to the number and class of securities which would have been
issued to the option holder, in consummation of such Corporate Transaction, had
such person exercised the option immediately prior to such Corporate
Transaction. Appropriate adjustments shall also be made to the exercise price
payable per share, provided the aggregate exercise price payable for such
securities shall remain the same. In addition, the class and number of
securities available for issuance under the Plan following the consummation of
the Corporate Transaction shall be appropriately adjusted.
D. The Plan Administrator shall have the discretion, exercisable either in
advance of any actually-anticipated Corporate Transaction or at the time of an
actual Corporate Transaction, to provide (upon such terms as it may deem
appropriate) for the automatic acceleration of one or more outstanding options
granted under the Plan which are assumed or replaced in the Corporate
Transaction and do not otherwise accelerate at that time, in the event the
Optionee's Service should subsequently terminate within a designated period
following such Corporate Transaction.
E. The Plan Administrator shall have the discretionary authority,
exercisable either in advance of any actually-anticipated Change in Control or
at the time of an actual Change in Control, to provide for the automatic
acceleration of one or more outstanding options under this Article Two upon the
occurrence of the Change in Control. The Plan Administrator shall also have full
power and authority to condition any such option acceleration upon the
subsequent termination of the Optionee's Service within a specified period
following the Change in Control.
F. Any options accelerated in connection with the Change in Control shall
remain fully exercisable until the expiration or sooner termination of the
option term.
G. The grant of options under this Article Two shall in no way affect the
right of the Corporation to adjust, reclassify, reorganize or otherwise change
its capital or business structure or to merge, consolidate, dissolve, liquidate
or sell or transfer all or any part of its business or assets.
<PAGE>
H. The portion of any Incentive Option accelerated under this Section III
in connection with a Corporate Transaction or Change in Control shall remain
exercisable as an incentive stock option under the Code only to the extent the
dollar limitation of Section II of this Article Two is not exceeded. To the
extent such dollar limitation is exceeded, the accelerated portion of such
option shall be exercisable as a non-statutory option under the Code.
IV. CANCELLATION AND REGRANT OF OPTIONS
The Plan Administrator shall have the authority to effect, at any time and
from time to time, with the consent of the affected Optionees, the cancellation
of any or all outstanding options under this Article Two and to grant in
substitution new options under the Plan covering the same or different numbers
of Ordinary Shares but with an exercise price per Ordinary Share not less than
(i) eighty-five percent (85%) of the Fair Market Value per Ordinary Share on the
new grant date or (ii) one hundred percent (100%) of such Fair Market Value in
the case of an Incentive Option, but in no event shall the exercise price per
Ordinary Share be less than the par value of such Ordinary Share.
V. STOCK APPRECIATION RIGHTS
A. Provided and only if the Plan Administrator determines in its discretion
to implement the stock appreciation right provisions of this Section V, one or
more Optionees may be granted the right, exercisable upon such terms and
conditions as the Plan Administrator may establish, to surrender all or part of
an unexercised option under this Article Two in exchange for a distribution from
the Corporation in an amount equal to the excess of (i) the Fair Market Value
(on the option surrender date) of the number of vested Ordinary Shares for which
the surrendered option (or surrendered portion thereof) is at the time
exercisable over (ii) the aggregate exercise price payable for such vested
Ordinary Shares.
B. No surrender of an option shall be effective hereunder unless it is
approved by the Plan Administrator. If the surrender is so approved, then the
distribution to which the Optionee shall accordingly become entitled under this
Section V may be made in Ordinary Shares valued at Fair Market Value on the
option surrender date, in cash, or partly in Ordinary Shares and partly in cash,
as the Plan Administrator shall in its sole discretion deem appropriate.
C. If the surrender of an option is rejected by the Plan Administrator,
then the Optionee shall retain whatever rights the Optionee had under the
surrendered option (or surrendered portion thereof) on the option surrender date
and may exercise such rights at any time prior to the later of (i) five (5)
business days after the receipt of the rejection notice or (ii) the last day on
which the option is otherwise exercisable in accordance with the terms of the
instrument evidencing such option, but in no event may such rights be exercised
more than five (5) years after the date of the option grant.
D. One or more Section 16 Insiders may, in the Plan Administrator's sole
discretion, be granted limited stock appreciation rights in tandem with their
outstanding options under this Article Two. Upon the occurrence of a Hostile
Take-Over, the Section 16 Insider shall have a thirty (30)-day period in which
he or she may surrender any outstanding options with such a limited stock
appreciation right in effect for at least six (6) months to the Corporation, to
the extent such option is at the time exercisable for vested Ordinary Shares.
The Section 16 Insiders shall in return be entitled to a cash distribution from
the Corporation in an amount equal to the excess of (i) the Take-Over Price of
the vested Ordinary Shares for which each surrendered option (or surrendered
portion thereof) is at the time exercisable over (ii) the aggregate exercise
price payable for such Ordinary Shares. The cash distribution payable upon such
option surrender shall be made within five (5) days following the date the
option is surrendered to the Corporation. Neither the approval of the Plan
Administrator nor the consent of the Board shall be required in connection with
such option surrender and cash distribution. Any unsurrendered portion of the
option shall continue to remain outstanding and become exercisable in accordance
with the terms of the instrument evidencing such grant.
<PAGE>
E. The Ordinary Shares subject to any option surrendered for an
appreciation distribution pursuant to this Section V shall not be available for
subsequent issuance under the Plan.
ARTICLE THREE
AUTOMATIC OPTION GRANT PROGRAM
I. ELIGIBILITY
A. Eligible Directors. The individuals eligible to receive automatic option
grants pursuant to the provisions of this Article Three shall be limited to (i)
those individuals who are serving as non-employee Board members on the Initial
Automatic Grant Date, (ii) those individuals who are first elected or appointed
as non-employee Board members after the Initial Automatic Grant Date, whether
through appointment by the Board or election by the Corporation's stockholders,
and (iii) those individuals who continue to serve as non-employee Board members
at one or more Annual Stockholders Meetings held after the Underwriting
Execution Date. In no event, however, may any non-employee Board member who is a
Singapore resident participate in this Automatic Option Grant Program. Any
non-employee Board member eligible to participate in the Automatic Option Grant
Program pursuant to the foregoing criteria shall be designated an Eligible
Director for purposes of the Plan.
B. Limitation. Except for the option grants to be made pursuant to the
provisions of this Automatic Option Grant Program, a non-employee Board member
shall not be entitled to receive any additional option grants or stock issuances
under this Plan or any other stock plan of the Corporation (or its parent or
subsidiaries) during his or her period of Board service.
II. TERMS AND CONDITIONS OF AUTOMATIC OPTION GRANTS
A. Grant Dates. Option grants shall be made under this Article Three on the
dates specified below:
1. Initial Grant.
Each individual serving as an Eligible Director on the Initial
Automatic Grant Date shall automatically be granted on such date a
Non-Statutory Option to purchase the number of Ordinary Shares as
determined by the Plan Administrator upon the terms and conditions of
this Article Three.
Each individual who first becomes an Eligible Director after the
Initial Automatic Grant Date, whether through election by the
stockholders or appointment by the Board, shall automatically be
granted, at the time of such initial election or appointment, a
Non-Statutory Option to purchase the number of Ordinary Shares as
determined by the Plan Administrator upon the terms and conditions of
this Article Three.
2. Annual Grant. On the date of each Annual Stockholders Meeting held
after the Underwriting Execution Date, each individual who is at that time
serving as an Eligible Director, whether or not such individual is standing
for reelection as a Board member at that Annual Meeting, shall
automatically be granted a Non-Statutory Option to purchase an additional
12,000* Ordinary Shares upon the terms and conditions of this Article
Three, provided such individual has served as a Board member for at least
six (6) months.
B. There shall be no limit on the number of such 12,000* Ordinary Share
option grants any one Eligible Director may receive over his or her period of
Board service. The number of Ordinary Shares for which the automatic option
grants are to be made to each newly elected or continuing Eligible Director
shall be subject to periodic adjustment pursuant to the applicable provisions of
Section VI.C. of Article One.
C. Exercise Price. The exercise price per Ordinary Share subject to each
automatic option grant made under this Article Three shall be determined as
follows:
<PAGE>
- For each automatic option grant made on the Initial Automatic Grant
Date, the exercise price per Ordinary Share shall be equal to the Fair
Market Value per Ordinary Share on such date as shall be determined by the
Plan Administrator after taking into account such factors as the Plan
Administrator deems relevant.
- For all other automatic option grants, the exercise price per
Ordinary Share shall be equal to one hundred percent (100%) of the Fair
Market Value per Ordinary Share on the automatic grant date, but in no
event less than the par value of such Ordinary Share.
D. Payment. The exercise price shall be payable in one of the alternative
forms specified below:
1. full payment in cash or check made payable to the Corporation's order;
or
2. to the extent the option is exercised for vested Ordinary Shares, full
payment through a sale and remittance procedure pursuant to which the
non-employee Board member shall provide concurrent irrevocable written
instructions (i) to a Corporation-designated brokerage firm to effect the
immediate sale of the purchased Ordinary Shares and remit to the Corporation,
out of the sale proceeds available on the settlement date, sufficient funds to
cover the aggregate exercise price payable for the purchased Ordinary Shares and
(ii) to the Corporation to deliver the certificates for the purchased Ordinary
Shares directly to such brokerage firm in order to complete the sale
transaction.
E. Option Term. Each automatic grant under this Article Three shall have a
maximum term of five (5) years measured from the automatic grant date.
F. Exercisability. Each automatic grant shall become exercisable for the
Ordinary Shares subject to that grant in a series of successive equal monthly
installments upon the Optionee's completion of each month of Board service over
the twenty-four (24) month period measured from the automatic grant date. The
exercisability of each such grant shall be subject to acceleration as provided
in Section II.G and Section III of this Article Three. In no event, however,
shall any automatic option grant become exercisable for any additional Ordinary
Shares after the Optionee's cessation of Board service.
G. Transferability. Each automatic option grant, together with the limited
stock appreciation right pertaining to such option, shall be assignable or
transferable by the Optionee. The Optionee shall be required to comply with all
applicable laws in connection with any such transfer or assignment, and the Plan
Administrator shall have the discretion to adopt such rules as it deems
necessary to ensure that any assignment or transfer is in compliance with all
applicable laws.
H. Termination of Board Service.
1. Should the Optionee cease to serve as a Board member for any reason
(other than death or Permanent Disability) while holding one or more
automatic option grants under this Article Three, then such individual
shall have a six (6)-month period following the date of such cessation of
Board service in which to exercise each such option for any or all of the
option shares for which the option is exercisable at the time of such
cessation of Board service. Each such option shall immediately terminate
and cease to remain outstanding, at the time of the Optionee's cessation of
Board service, with respect to any option shares for which the option is
not otherwise at that time exercisable.
2. Should the Optionee die within six (6) months after cessation of
Board service, then any automatic option grant held by the Optionee at the
time of death may subsequently be exercised, for any or all of the option
shares for which the option is exercisable at the time of the Optionee's
cessation of Board service (less any option shares subsequently purchased
by the Optionee prior to death), by the personal representative of the
Optionee's estate or by the person or persons to whom the option is
transferred pursuant to the Optionee's will or in accordance with the laws
of descent and distribution. The right to exercise each such option shall
lapse upon the expiration of the twelve (12)-month period measured from the
date of the Optionee's death.
<PAGE>
3. Should the Optionee die or become Permanently Disabled while
serving as a Board member, then each automatic option grant held by such
Optionee under this Article Three shall immediately become exercisable for
all the Ordinary Shares subject to that option, and the Optionee (or the
representative of the Optionee's estate or the person or persons to whom
the option is transferred upon the Optionee's death) shall have a twelve
(12)-month period following the date of the Optionee's cessation of Board
service in which to exercise such option for any or all of those Ordinary
Shares as fully-vested shares.
4. In no event shall any automatic grant under this Article Three
remain exercisable after the expiration date of the five (5)-year option
term. Upon the expiration of the applicable post-service exercise period
under subparagraphs 1. through 3. above or (if earlier) upon the expiration
of the five (5)-year option term, the automatic grant shall terminate and
cease to be outstanding for any option shares for which the option was
exercisable at the time of the Optionee's cessation of Board service but
for which such option was not otherwise exercised.
I. Stockholder Rights. The holder of an automatic option grant under this
Article Three shall have none of the rights of a stockholder with respect to the
Ordinary Shares subject to such option until such individual shall have
exercised the option and paid the exercise price for the purchased Ordinary
Shares.
J. Remaining Terms. The remaining terms and conditions of each automatic
option grant shall be as set forth in the form Automatic Stock Option Agreement
attached as Exhibit A.
III. CORPORATE TRANSACTION/CHANGE IN CONTROL/HOSTILE TAKE-OVER
A. In the event of any Corporate Transaction, each option at the time
outstanding under this Article Three but not otherwise fully exercisable shall,
immediately prior to the specified effective date for the Corporate Transaction,
automatically accelerate and become fully exercisable for all of the Ordinary
Shares at the time subject to that option and may be exercised for all or any
portion of those shares as fully vested Ordinary Shares. Immediately following
the consummation of the Corporate Transaction, all automatic option grants under
this Article Three shall terminate and cease to remain outstanding.
B. In connection with any Change in Control of the Corporation, each option
at the time outstanding under this Article Three but not otherwise fully
exercisable shall, immediately prior to the specified effective date for the
Change in Control, automatically accelerate and become fully exercisable for all
of the Ordinary Shares at the time subject to that option and may be exercised
for all or any portion of those shares as fully vested Ordinary Shares. Each
such option shall remain so exercisable for the option shares until the
expiration or sooner termination of the option term.
C. Upon the occurrence of a Hostile Take-Over, the Optionee shall have a
thirty (30)-day period in which to surrender to the Corporation each option held
by him or her under this Article Three for a period of at least six (6) months.
The Optionee shall in return be entitled to a cash distribution from the
Corporation in an amount equal to the excess of (i) the Take-Over Price of the
Ordinary Shares at the time subject to the surrendered option (whether or not
the option is otherwise at the time exercisable for those Ordinary Shares) over
(ii) the aggregate exercise price payable for such Ordinary Shares. Such cash
distribution shall be paid within five (5) days following the surrender of the
option to the Corporation. Neither the approval of the Plan Administrator nor
the consent of the Board shall be required in connection with such option
surrender and cash distribution. The Ordinary Shares subject to each option
surrendered in connection with the Hostile Take-Over shall not be available for
subsequent issuance under the Plan.
D. The automatic option grants outstanding under this Article Three shall
in no way affect the right of the Corporation to adjust, reclassify, reorganize
or otherwise change its capital or business structure or to merge, consolidate,
dissolve, liquidate or sell or transfer all or any part of its business or
assets.
<PAGE>
IV. AMENDMENT OF THE AUTOMATIC GRANT PROVISIONS
A. Limited Amendments. The provisions of this Automatic Option Grant
Program, together with the automatic option grants outstanding under this
Article Three, may not be amended at intervals more frequently than once every
six (6) months, other than to the extent necessary to comply with applicable
U.S. income tax laws and regulations.
ARTICLE FOUR
MISCELLANEOUS
I. LOANS OR INSTALLMENT PAYMENTS
A. The Plan Administrator may, in its discretion but subject to any
prohibition imposed by any applicable laws, assist any Optionee, to the extent
such Optionee is an Employee (including an Optionee or Participant who is an
officer of the Corporation), in the exercise of one or more stock options
granted to such Optionee under the Discretionary Option Grant Program, including
the satisfaction of any Federal, state and local income and employment tax
obligations arising therefrom, by (i) authorizing the extension of a loan from
the Corporation to such Optionee or (ii) permitting the Optionee to pay the
exercise price for the purchased shares in installments over a period of years.
The terms of any loan or installment method of payment (including the interest
rate and terms of repayment) shall be upon such terms as the Plan Administrator
specifies in the applicable option agreement or otherwise deems appropriate
under the circumstances. Loans or installment payments may be authorized with or
without security or collateral. However, the maximum credit available to the
Optionee may not exceed the exercise price of the acquired Ordinary Shares (less
the par value of such shares) plus any Federal, state and local income and
employment tax liability incurred by the Optionee in connection with the
acquisition of the Ordinary Shares.
B. The Plan Administrator may, in its absolute discretion, determine that
one or more loans extended under this financial assistance program shall be
subject to forgiveness by the Corporation in whole or in part upon such terms
and conditions as the Plan Administrator may deem appropriate.
C. All financial assistance provided under this Section I of Article Four
shall be effected in compliance with the applicable provisions of Section
76(9)(b) of the Companies Act, Chapter 50 of Singapore (or any successor
statutory provision).
II. AMENDMENT OF THE PLAN AND AWARDS
A. The Board has complete and exclusive power and authority to amend or
modify the Plan (or any component thereof) in any or all respects whatsoever.
However, (i) no such amendment or modification shall adversely affect rights and
obligations with respect to options at the time outstanding under the Plan,
unless the Optionee consents to such amendment, and (ii) any amendment made to
the Automatic Option Grant Program (or any options outstanding thereunder) shall
be in compliance with the limitation of Section IV of Article Three. In
addition, the Board may not, without the approval of the Corporation's
stockholders, amend the Plan to (i) materially increase the maximum number of
Ordinary Shares issuable under the Plan or the number of Ordinary Shares for
which options may be granted per newly-elected or continuing Eligible Director
under Article Three of the Plan or the maximum number of Ordinary Shares for
which any one individual participating in the Plan may be granted stock options
over the term of the Plan, except for permissible adjustments under Section
VI.C. of Article One, (ii) materially modify the eligibility requirements for
plan participation or (iii) materially increase the benefits accruing to plan
participants.
B. Options to purchase Ordinary Shares may be granted under the
Discretionary Option Grant Program which are in excess of the number of Ordinary
Shares then available for issuance under the Plan. However, no such option shall
become exercisable in whole or in part for the excess Ordinary Shares subject to
that option until stockholder approval is obtained for a sufficient increase in
the number of Ordinary Shares available for issuance under the Plan. If such
stockholder approval is not obtained within twelve (12) months after the date
the
<PAGE>
first such excess option grants are made, then such options shall terminate and
cease to be exercisable with respect to the excess number of Ordinary Shares,
and no further option grants shall be made under the Plan.
III. TAX WITHHOLDING
The Corporation's obligation to deliver Ordinary Shares upon the exercise
of stock options for such shares under the Plan shall be subject to the
satisfaction of all applicable income and employment tax withholding
requirements.
IV. EFFECTIVE DATE AND TERM OF PLAN
A. This Plan became effective when adopted by the Board and approved by the
stockholders in 1993. On June 8, 1995, the Board approved an amendment to the
Plan to (i) increase the aggregate number of Ordinary Shares issuable over the
term thereof from 3,600,000* shares to 6,000,000* shares and (ii) increase the
number of Ordinary Shares for which options may be granted to any one individual
from 1,200,000* shares to 2,000,000* shares. The shareholders approved those
amendments at the 1995 Annual Meeting.
B. In June 1996, the Board amended the Plan to (i) increase the aggregate
number of Ordinary Shares issuable over the term of the Plan from 3,000,000*
Ordinary Shares to 4,000,000* Ordinary Shares. The stockholders approved such
amendment at the 1996 Annual Meeting.
C. On August 15, 1996, the Board amended and restated the Plan to
authorize, among other things, the separate but concurrent jurisdiction of the
Discretionary Option Grant Program by the Primary Committee and one or more
Secondary Committees of the Board, with the Primary Committee to have the sole
authority to administer such program with respect to Section 16 Insiders.
D. In September 1997, the Board approved an amendment to the Plan to
increase the aggregate number of Ordinary Shares issuable over the term thereof
from 8,000,000* to 10,400,000* shares. The shareholders approved those
amendments at the 1997 Annual Meeting.
E. In August 1998, the Board approved an amendment to the Plan to increase
the aggregate number of Ordinary Shares issuable over the term thereof from
10,400,000* to 14,400,000* shares. The shareholders approved this amendment at
the 1998 Annual Meeting.
F. In July 1999, the Board approved an amendment to the Plan to increase
the aggregate number of Ordinary Shares issuable over the term of the Plan from
14,400,000* Ordinary Shares to 16,400,000* Ordinary Shares. The shareholders
approved this amendment at the 1999 Annual Meeting.
G. In November 1999, the Board approved an amendment to the Plan to
increase the aggregate number of Ordinary Shares issuable over the term of the
Plan from 16,400,000* Ordinary Shares to 20,400,000* Ordinary Shares. The
shareholders approved this amendment at the 2000 Extraordinary General Meeting.
H. The Plan shall terminate upon the earlier of (i) November 30, 2003 or
(ii) the date on which all Ordinary Shares available for issuance under the Plan
shall have been issued or cancelled pursuant to the exercise, surrender or
cash-out of the options granted under the Plan. If the date of termination is
determined under clause (i) above, then all option grants outstanding on such
date shall thereafter continue to have force and effect in accordance with the
provisions of the instruments evidencing such grants.
V. USE OF PROCEEDS
Any cash proceeds received by the Corporation from the sale of Ordinary
Shares pursuant to option grants under the Plan shall be used for general
corporate purposes.
<PAGE>
VI. REGULATORY APPROVALS
A. The implementation of the Plan, the granting of any stock option or
stock appreciation right under the Plan, the issuance of any Ordinary Shares
upon the exercise or surrender of the stock options or stock appreciation rights
granted hereunder shall be subject to the Corporation's procurement of all
approvals and permits required by regulatory authorities having jurisdiction
over the Plan, the stock options and stock appreciation rights granted under it
and the Ordinary Shares issued pursuant to it.
B. No Ordinary Shares or other assets or securities shall be issued or
delivered under this Plan unless and until there shall have been compliance with
(i) all applicable requirements of U.S. and state securities laws, including the
filing and effectiveness of the Form S-8 registration statement for the Ordinary
Shares issuable under the Plan, (ii) all applicable listing requirements of any
securities exchange on which the Ordinary Shares are then listed for trading and
(iii) all applicable requirements of Singapore law.
VII. NO EMPLOYMENT/SERVICE RIGHTS
Neither the action of the Corporation in establishing the Plan, nor any
action taken by the Plan Administrator hereunder, nor any provision of the Plan
shall be construed so as to grant any individual the right to remain in the
Service of the Corporation (or any parent or subsidiary corporation) for any
period of specific duration, and the Corporation (or any parent or subsidiary
corporation retaining the services of such individual) may terminate such
individual's Service at any time and for any reason, with or without cause.
VIII. MISCELLANEOUS PROVISIONS
A. Except to the extent otherwise expressly provided in the Plan, the right
to acquire Ordinary Shares or other assets or securities under the Plan may not
be assigned, encumbered or otherwise transferred by any Optionee.
B. The provisions of the Plan shall inure to the benefit of, and be binding
upon, the Corporation and its successors or assigns, whether by Corporate
Transaction or otherwise, and the Participants and Optionees, the legal
representatives of their respective estates, their respective heirs or legatees
and their permitted assignees.
* Reflects two for one stock splits in the form of a bonus issue (the
equivalent of a stock dividend) effective December 22, 1998 and December
22, 1999.
Exhibit 4.3
THE DII GROUP, INC.
1993 STOCK OPTION PLAN
I. PURPOSES AND SCOPE OF PLAN.
DOVatron International, Inc. (the "Company") desires to afford certain
salaried officers and other salaried key employees of the Company and its
subsidiaries who are in a position to affect materially the profitability and
growth of the Company and its subsidiaries an opportunity to acquire a
proprietary interest in the Company, and thus to create in such persons interest
in and a greater concern for the welfare of the Company. Directors who are
salaried key employees within the meaning of the foregoing are eligible to
participate in the Plan.
The stock options offered pursuant to this 1993 Stock Option Plan (the
"Plan") are a matter of separate inducement and are not in lieu of any salary or
other compensation for services.
The Company, by means of the Plan, seeks to retain the services of persons
now holding key positions and to secure the services of persons capable of
filling such positions.
The options granted under the Plan may be designated as either incentive
stock options ("Incentive Options") within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code"), or options that do not
meet the requirements for Incentive Options ("Non-Qualified Options") but the
Company makes no warranty as to the qualification of any option as an Incentive
Option.
II. AMOUNT OF STOCK SUBJECT TO THE PLAN
The total number of ordinary shares of the Company which may be purchased
pursuant to the exercise of options granted under the Plan, including the shares
that are subject to options ("Substituted Options") that are substituted for
options to purchase shares of common stock of Dover Corporation ("Dover") in
connection with the distribution (the "Distribution") by Dover of all of the
outstanding common stock of the Company held by Dover to the holders of the
common stock of Dover, shall not exceed, in the aggregate, 550,000 shares of the
authorized shares, S$0.01 par value, per share, of the Company (the "Shares"),
subject to adjustment pursuant to Article XII of the Plan.
Shares which may be acquired under the Plan shall be authorized but
unissued Shares. If and to the extent that options granted under the Plan expire
or terminate without having been exercised, new options may be granted with
respect to the Shares covered by such expired or terminated option, provided
that the grant and the terms of such new options shall in all respects comply
with the provisions of the Plan.
Except as provided in Article XX, the Company may, from time to time during
the period beginning on the date (the "Distribution Date") that all of the
outstanding common stock of the Company is distributed to the holders of the
common stock of Dover (the "Effective Date") and ending ten years from the date
thereof (the "Termination Date") grant options to certain salaried officers and
other salaried key employees under the terms hereinafter set forth.
III. ADMINISTRATION
The Compensation Committee (the "Committee"), or the Board of Directors of
the Company (the "Board of Directors") if there is no Committee, will have sole
and exclusive authority to administer the Plan. The Committee shall consist of
no fewer than two (2) members of the Board of Directors, each of whom shall be a
"disinterested person" within the meaning of Rule 16b-3 (or any successor rule
or regulation) ("Rule 16b-3") promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act"). The Committee shall administer the Plan
so as to comply at all times with Rule 16b-3. A majority of the members of the
Committee shall
<PAGE>
constitute a quorum, and the act of a majority of the members of the Committee
shall be the act of the Committee. Any member of the Committee may be removed at
any time, either with or without cause, by resolution adopted by a majority of
the Board of Directors, and any vacancy on the Committee may at any time be
filled by resolution adopted by a majority of the Board of Directors.
Any or all powers and functions of the Committee may at any time and from
time to time be exercised by the Board of Directors; provided, however, that,
with respect to the participation in the Plan by persons who are members of the
Board of Directors, such powers and functions of the Committee may be exercised
by the Board of Directors only if, at the time of such exercise, all of the
members of the Board of Directors acting in the particular matter, are
"disinterested persons" within the meaning of Rule 16b-3 (or any successor rule
or regulation) promulgated under the Exchange Act.
Subject to the express provisions of the Plan, the Board of Directors or
the Committee, as the case may be, shall have authority, in its discretion, to
determine the persons to whom options shall be granted, the time when such
options shall be granted, the number of Shares which shall be subject to each
option, the purchase price of each Share which shall be subject to each option,
the period(s) during which such options shall be exercisable (whether in whole
or in part), whether such options shall be Incentive Options or Non-Qualified
Options and the other terms and provisions thereof. In determining the employees
to whom options shall be granted and the number of Shares for which options
shall be granted to each person, the Board of Directors or the Committee, as the
case may be, shall consider the length of service, the amount of earnings, and
the responsibilities and duties of such person.
Subject to the express provisions of the Plan, the Board of Directors or
the Committee, as the case may be, also shall have authority to construe the
Plan and options granted thereunder, to amend the Plan and options granted
thereunder, to prescribe, amend and rescind rules and regulations relating to
the Plan, to determine the terms and provisions of the respective options (which
need not be identical) and to make all other determinations necessary or
advisable for administering the Plan. The Board of Directors or the Committee,
as the case may be, also shall have the authority to require, in its discretion,
as a condition of the granting of any such option, that the optionee agree not
to sell or otherwise dispose of Shares acquired pursuant to the option for a
period of six (6) months following the latest of (i) the date of the grant of
such option or (ii) the date when the exercise price of an option is fixed if
such exercise price is not fixed on the date of grant.
The determination of the Board of Directors or the Committee, as the case
may be, on matters referred to in this Article III shall be conclusive.
The Board of Directors or the Committee, as the case may be, may employ
such legal counsel, consultants and agents as it may deem desirable for the
administration of the Plan and may rely upon any opinion received from any such
counsel or consultant and any computation received from any such consultant or
agent. Expenses incurred by the Board of Directors or the Committee in the
engagement of such counsel, consultant or agent shall be paid by the Company. No
member or former member of the Committee or of the Board of Directors shall be
liable for any action or determination made in good faith with respect to the
Plan or any option granted hereunder.
IV. ELIGIBILITY
Options may be granted only to certain salaried officers and other salaried
key employees of the Company and its subsidiaries who are not members of the
Committee; provided, that no person shall be eligible for any option if the
granting of such option to such person would prevent the satisfaction by the
Plan of the general exemptive conditions of Rule 16b-3.
An Incentive Option shall not be granted to any person who, at the time the
option is granted, owns shares of the Company or any subsidiary or parent of the
Company possessing more than ten percent (10%) of the total combined voting
power of all classes of shares of the Company or of any subsidiary or parent of
the Company unless (i) the option price is at least one hundred ten percent
(110%) of the fair market value per share (as defined in
<PAGE>
Article VI) of the shares subject to the option and (ii) the option is not
exercisable after the fifth anniversary of the date of grant of the option. In
determining share ownership of an employee, the rules of Section 424(d) of the
Code shall be applied, and the Board of Directors or the Committee, as the case
may be, may rely on representations of fact made to it by the employee and
believed by it to be true.
V. MAXIMUM ALLOTMENT OF INCENTIVE OPTIONS
If the aggregate fair market value of shares with respect to which
Incentive Options are exercisable for the first time by an employee during any
calendar year (under all stock option plans of the Company and any parent or any
subsidiary of the Company) exceeds $100,000, any options which otherwise qualify
as Incentive Options, to the extent of the excess, will be treated as
Non-Qualified Options.
VI. OPTION PRICE AND PAYMENT
Except with respect to the Substitute Options and the Distribution Date
Options (as hereinafter defined), the price per Share under any option granted
hereunder shall be such amount as the Board of Directors or the Committee, as
the case may be, shall determine, provided, however, such price shall not be
less than one hundred percent (100%) of the fair market value of the Shares
subject to such option, as determined in good faith by the Board of Directors or
the Committee, as the case may be, at the date the option is granted and
provided further that in no event may the price be less than the par value of a
share. In the case of Substitute Options, the price shall be determined
according to the formula set forth in the employee matters agreement, dated as
of May 4, 1993, between the Company and Dover entered into in connection with
the Distribution. In the case of options granted on the Distribution Date
("Distribution Date Options"), the price per Share shall be the average closing
price per share of the Company's common stock on the National Association of
Securities Dealers, Inc. Automated Quotation System ("NASDAQ") for the 30
trading days beginning 5 days after the Distribution Date.
If the Shares are listed on a national securities exchange in the United
States on the date any option is granted, the fair market value per Share shall
be deemed to be the highest sales price at which such Shares are sold on such
national securities exchange in the United States on the date upon which the
option is granted, but if the Shares are not traded on such date, or such
national securities exchange is not open for business on such date, the fair
market value per Share shall be the Closing price per share determined as of the
closest preceding date on which such exchange shall have been open for business
and the Shares were traded. If the Shares are listed on more than one national
securities exchange in the United States on the date any such option is granted,
the Board of Directors or the Committee, as the case may be, shall determine
which national securities exchange shall be used for the purpose of determining
the fair market value per Share. If the Shares are not listed on a national
securities exchange but are reported on NASDAQ, the fair market value per share
shall be deemed to be the average of the high bid and low asked prices on the
date upon which the option is granted as reported by NASDAQ.
For purposes of this Plan, the determination by the Board of Directors or
the Committee, as the case may be, of the fair market value of a Share shall be
conclusive.
Upon the exercise of an option granted hereunder, the Company shall cause
the purchased Shares to be issued only when it shall have received the full
purchase price for the Shares in cash.
VII. USE OF PROCEEDS
The cash proceeds of the sale of Shares subject to the options granted
hereunder are to be added to the general funds of the Company and used for its
general corporate purposes as the Board of Directors shall determine.
VIII. TERM OF OPTIONS AND LIMITATIONS ON THE RIGHT OF EXERCISE
Except with respect to the Substituted Options, the terms of each option
will be for such period as the Board of Directors or the Committee, as the case
may be, shall determine, but in no event may any option granted
<PAGE>
hereunder be exercisable more than ten (10) years from the date of grant of such
option. The Substituted options shall, to the extent permitted by all applicable
laws, contain terms and conditions applicable to the options for which they are
substituted.
The Board of Directors or the Committee, as the case may be, shall have the
right to limit, restrict or prohibit, in whole or in part, from time to time,
conditionally or unconditionally, rights to exercise any option granted
hereunder.
To the extent that an option is not exercised within the period of
exercisability specified therein, it shall expire as to the then unexercised
part.
IX. EXERCISE OF OPTIONS
Options granted under the Plan shall be exercised by the optionee as to all
or part of the Shares covered thereby by the giving of written notice of the
exercise thereof to the Company at the principal business office of the Company,
specifying the number of Shares to be purchased, accompanied by a check payable
to the Company for the full purchase price of such shares. The date of actual
receipt by the Company of such notice shall be deemed the date of exercise of
the option with respect to the Shares being purchased. Subject to the terms of
Articles XV, XVI, XVII and XVIII, the Company shall cause certificates for the
Shares so purchased to be delivered to the optionee, against payment of the full
purchase price.
X. NONTRANSFERABILITY OF OPTIONS
An option granted hereunder shall not be transferable, whether by operation
of law or otherwise, other than by will or the laws of descent and distribution,
and any option granted hereunder shall be exercisable, during the lifetime of
the holder, only by such holder.
The option of any person to acquire shares and all his rights thereunder
shall terminate immediately if the holder: (a) attempts to or does sell, assign,
transfer, pledge, hypothecate or otherwise dispose of the option or any rights
thereunder to any other person except as permitted above: or (b) becomes
insolvent or bankrupt or becomes involved in any manner so that the option or
any rights thereunder becomes subject to being taken from him to satisfy his
debts or liabilities.
The Company will stamp all share certificates delivered to the shareholder
with an appropriate legend if the Shares are not registered under the Securities
Act of 1933, as amended (the "Act") or are otherwise not free to be transferred
by the holder and will issue appropriate stop-order instructions to the transfer
agent for the Shares, if and to the extent such stamping or instructions may
then be required by the Act or by any rule or regulation of the Securities and
Exchange Commission issued pursuant to the Act.
XI. TERMINATION OF EMPLOYMENT
Upon termination of employment of any option holder, any option previously
granted to such option holder, unless otherwise specified by the Board of
Directors or the Committee, as the case may be, shall, to the extent not
theretofore exercised, terminate and become null and void, provided that:
(a) if the option holder shall die while in the employ of the Company
or any subsidiary of the Company, and at a time when such employee was
entitled to exercise an option as herein provided, his estate or the
legatees or distributees of his estate or of the option, as the case may
be, of such option holder, may, within one (1) year following the date of
death, but not beyond that time and in no event later than the expiration
date of the option, exercise such option, to the extent not theretofore
exercised, in respect of any or all of such number of Shares which the
option holder was entitled to purchase; and
<PAGE>
(b) if the employment of any option holder to whom such option shall
have been granted shall terminate by reason of the option holder's
retirement on or after he reaches the age of 60 years in such manner as
would entitle him to receive full Social Security benefits if he were then
65 years of age, or disability (as described in Section 22(e)(3) of the
Code), and while such employee is entitled to exercise such option as
herein provided, such option holder shall have the right to purchase under
the option the number of Shares, if any, which he is entitled to purchase
at the time of such termination, at any time up to and including three (3)
months after the date of such termination of employment, but not beyond
that time and in no event shall an option be exercised later than the
expiration date of the option.
In no event shall any person be entitled to exercise any option after the
expiration of the period of exercisability of such option as specified therein.
Other than as set forth above, if an option holder voluntarily terminates
his or her employment, or is discharged, any option granted hereunder shall be
canceled and the option holder shall have no further rights to exercise any such
option and all of the option holder's rights thereunder shall terminate as of
the effective date of such termination of employment.
If an option granted hereunder shall be exercised by the legal
representative of a deceased option holder or former option holder or by a
person who acquired an option granted hereunder by bequest or inheritance or by
reason of the death of any option holder or former option holder, written notice
of such exercise shall be accompanied by a certified copy of letters
testamentary or equivalent proof of the right of such legal representative or
other person to exercise such option.
For the purposes of the Plan, an employment relationship shall be deemed to
exist between an individual and a corporation if, at the time of the
determination, the individual was an "employee" of such corporation for purposes
of Section 422 (a) of the Code.
A termination of employment shall not be deemed to occur by reason of (i)
the transfer of an employee from employment by the Company to employment by a
subsidiary of the Company or (ii) the transfer of an employee from employment by
a subsidiary of the Company to employment by the Company or by another
subsidiary of the Company.
XII. ADJUSTMENT OF SHARES: EFFECT OF CERTAIN TRANSACTIONS
In the event of any change in the outstanding Shares through merger,
consolidation, reorganization, recapitalization, stock dividend, stock split,
split-up, split-off, spin-off, combination of shares, exchange of shares, or
other like change in capital structure of the Company, an adjustment shall, to
the extent permitted by all applicable laws, be made to each outstanding option
such that each such option shall thereafter be exercisable for such securities,
cash and/or other property as would have been received in respect of the Shares
subject to such option had such option been exercised in full immediately prior
to such change, and such an adjustment shall be made successively each time any
such change shall occur. The term "Shares" shall after any such change refer to
the securities, cash and/or property then receivable upon exercise of an option.
In addition, in the event of any such change, the Board of Directors or the
Committee, as the case may be, shall make any further adjustment as may be
appropriate to the maximum number of Shares subject to the Plan, the maximum
number of Shares for which options may be granted to any one employee, and the
number of Shares and price per Share subject to outstanding options as shall be
equitable to prevent dilution or enlargement of rights under such options, and
the determination of the Board of Directors or the Committee, as the case may
be, as to these matters shall be conclusive. Notwithstanding the foregoing, (i)
each such adjustment with respect to an Incentive Option shall comply with the
rules of Section 424 (a) of the Code, and (ii) in no event shall any adjustment
be made which would render any Incentive Option granted hereunder other than an
incentive stock option for purposes of Section 422 of the Code without the
consent of the grantee.
<PAGE>
XIII. RIGHT TO TERMINATE EMPLOYMENT
The granting of any option hereunder shall not alter or otherwise affect
the rights of the Company or of its subsidiaries to change the duties of any
option holder or the services to be performed by him or the place of performance
of such service or his compensation, and shall not lessen, restrict or otherwise
affect the right of the option holder's employer to terminate his employment at
any time. Any person who is granted an option under the plan agrees upon
acceptance of such option to remain in the employment of the Company or its
subsidiaries, as the case may be, for at least 12 months from the date of the
option, at his then base salary (or at such other salary as may be mutually
satisfactory to the individual and the employer), except in the event of his
earlier death or illness or other disability incapacitating him.
XIV. CHANGE OF CONTROL
Upon a Change of Control (as defined below) of the Company, all options
shall immediately vest and become exercisable in full during the remaining term
thereof, and shall remain so, whether or not the option holder to whom such
options have been granted remains an employee of the Company or its
subsidiaries.
A Change of Control shall be deemed to have taken place upon the occurrence
of any of the following events:
(i) any Person (which shall mean and include any individual,
corporation, partnership, group, association or other "person", as such
term is used in Sections 13 and 14 of the Securities Exchange Act of 1934)
is, becomes, or has the right to become the beneficial owner, directly or
indirectly, of securities of the Company representing 20% or more of the
Shares then outstanding, whether or not such Person continues to be the
beneficial owner of securities representing 20% or more of the outstanding
Shares; or
(ii) as the result of, or in connection with, any tender or exchange
offer, merger or other business combination, sale of assets or contested
election, any announcement of an intention to make any of the foregoing
transactions, or any combination of the foregoing transactions (a
"Transaction"), those persons who were directors of the Company before the
Transaction and were otherwise unaffiliated with any other party to the
Transaction shall cease to constitute a majority of the Board of Directors
of the Company or any successor to the Company (a "Change in the Board");
or
(iii) the shareholders of the Company approve any merger,
consolidation, reorganization, liquidation, dissolution, or sale of all or
substantially all of the Company's assets in which neither the Company nor
a successor resulting from a change in domicile or form of organization
will survive as an independent, publicly owned corporation.
(b) Notwithstanding anything herein to the contrary, no Change of Control
shall be deemed to have occurred by virtue of any event which results in any of
the following:
(i) the acquisition, directly or indirectly, of 20% or more of the
outstanding Shares by (A) the option holder or a Person including the
option holder, (B) the Company, or (C) any employee benefit plan of the
Company or of a subsidiary, or any entity holding securities of the company
recognized, appointed, or established by the Company or by a subsidiary for
or pursuant to the terms of such plan: or
(ii) a Change in the Board resulting from any Transaction in which the
option holder or a Person including the option holder participates directly
or indirectly with any party to the Transaction other than the Company.
XV. PURCHASE FOR INVESTMENT
Except as hereafter provided, the holder of an option granted hereunder
shall, upon any exercise thereof, execute and deliver to the Company a written
statement, in form satisfactory to the Company, in which such holder represents
and warrants that such holder is purchasing or acquiring the Shares acquired
thereunder for such holder's own account, for investment only and not with a
view to the resale or distribution thereof, and agrees that
<PAGE>
any subsequent offer for sale or sale or distribution of any of such Shares
shall be made only pursuant to either (a) a Registration Statement on an
appropriate form under the Act, which Registration Statement has become
effective and is current with regard to the Shares being offered or sold, or (b)
a specific exemption from the registration requirements of the Securities Act,
but in claiming such exemption the holder shall, prior to any offer for sale or
sale of such Shares, obtain a prior favorable written opinion, in form and
substance satisfactory to the Company, from counsel for or approved by the
Company, as to the applicability of such exemption thereto. The foregoing
restriction shall not apply to (i) issuances by the Company so long as the
Shares being issued are registered under the Securities Act and a prospectus in
respect thereof is current or (ii) reofferings of Shares by affiliates of the
Company (as defined in Rule 405 or any successor rule or regulation promulgated
under the Act) if the Shares being reoffered are registered under the Act and a
prospectus in respect thereof is current.
XVI. ISSUANCE OF CERTIFICATES; LEGENDS; PAYMENT OF EXPENSES
Upon any exercise of an option which may be granted hereunder and payment
of the purchase price, a certificate or certificates for the Shares as to which
the option has been exercised shall be issued by the Company in the name of the
person exercising the option and shall be delivered to or upon the order of such
person or persons.
The Company may endorse such legend or legends upon the certificates for
Shares issued upon exercise of an option granted hereunder and may issue such
"stop transfer" instructions to its transfer agent in respect of such Shares as,
in its discretion, it determines to be necessary or appropriate to (i) prevent a
violation of, or to perfect an exemption from, the registration requirements of
the Act, (ii) implement the provisions of the Plan and any agreement between the
Company and the optionee or grantee with respect to such Shares, or (iii) permit
the Company to determine the occurrence of a disqualifying disposition, as
described in Section 421(b) of the Code, of Shares transferred upon exercise of
an Incentive Option granted under the Plan.
The Company shall pay all issue taxes with respect to the issuance of
Shares upon exercise of an option, as well as all fees and expenses necessarily
incurred by the Company in connection with such issuance, except fees and
expenses which may be necessitated by the filing or amending of a Registration
Statement under the Act, which fees and expenses shall be borne by the recipient
of the Shares unless such Registration Statement has been filed by the Company
for its own corporate purposes (and the Company so states) in which event the
recipient of the Shares shall bear only such fees and expenses as are
attributable solely to the inclusion of the Shares he or she receives in the
Registration Statement, provided that the Company shall have no obligation to
include any shares in any Registration Statement.
All Shares issued as provided herein shall be fully paid and non-assessable
to the extent permitted by law.
XVII. WITHHOLDING TAXES
The Company may require an employee exercising a Non-Qualified Option or
disposing of Shares acquired pursuant to the exercise of an Incentive Option in
a disqualifying disposition (within the meaning of Section 421(b) of the Code)
to reimburse the corporation that employs such employee for any taxes required
by any government to be withheld or otherwise deducted and paid by such
corporation in respect of the issuance or disposition of Shares. In lieu
thereof, the corporation that employs such employee shall have the right to
withhold the amount of such taxes from any other sums due or to become due from
such corporation to the employee upon such terms and conditions as the Board of
Directors of the Committee, as the case may be, shall prescribe.
XVIII. LISTING OF SHARES AND RELATED MATTERS
If at any time the Board of Directors shall determine in its discretion
that the listing, registration or qualification of the Shares covered by the
Plan upon any national securities exchange or under any state or federal law or
the consent or approval of any governmental regulatory body, is necessary or
desirable as a condition of, or in connection with, the sale or purchase of
Shares under the Plan, no Shares shall be issued unless and until such listing,
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registration, qualification, consent or approval shall have been effected or
obtained, or otherwise provided for, free of any conditions not acceptable to
the Board of Directors.
XIX. AMENDMENT OF THE PLAN
The Board of Directors may, from time to time, amend the Plan, provided
that no amendment shall be made, without the approval of the shareholders of the
Company, that will (i) increase the total number of Shares which may be issued
under the Plan (other than an increase resulting from an adjustment provided for
in Article XII), (ii) reduce the exercise price of any Incentive Option granted
hereunder below the price required by Article VI (provided that in no event
shall the exercise price for each share be less than the par value of a share),
(iii) modify the provisions of the Plan relating to eligibility, (iv) materially
increase the benefits accruing to participants under the Plan, or (v) extend the
term of the Plan. The Board of Directors or the Committee, as the case may be,
shall be authorized to amend the Plan and the options granted hereunder to
permit the Incentive Options granted hereunder to qualify as incentive stock
options within the meaning of Section 422 of the Code. The rights and
obligations under any option granted before amendment of the Plan or any
unexercised portion of such option shall not be adversely affected by amendment
of the Plan or the option without the consent of the holder of the option.
XX. TERMINATION OR SUSPENSION OF THE PLAN
The Board of Directors may at any time suspend or terminate the Plan. The
Plan, unless sooner terminated by action of the Board of Directors, shall
terminate at the close of business on the Termination Date. An option may not be
granted while the Plan is suspended or after it is terminated. Rights and
obligations under any option granted while the Plan is in effect shall not be
altered or impaired by suspension or termination of the Plan, except upon the
consent of the person to whom the option was granted. The power of the Board of
Directors or the Committee, as the case may be, to construe and administer any
options granted prior to the termination or suspension of the Plan under Article
III nevertheless shall continue after such termination or during such
suspension.
XXI. GOVERNING LAW
The Plan, such options as may be granted thereunder and all related matters
shall be governed by, and construed and enforced in accordance with, the laws of
the State of Delaware.
XXII. PARTIAL INVALIDITY
The invalidity or illegality of any provision herein shall not be deemed to
affect the validity of any other provision.
XXIII. EFFECTIVE DATE
The Plan shall become effective only upon the approval of the Board of
Directors.
The DII Group, Inc.
1994 STOCK INCENTIVE PLAN
As Amended through May 6, 1999
I. PURPOSES AND SCOPE OF PLAN
The DII Group, Inc. (the "Company") desires to afford certain salaried
officers and other salaried key employees of the Company and its subsidiaries
who are in a position to affect materially the profitability and growth of the
Company and its subsidiaries an opportunity to acquire a proprietary interest in
the Company, and thus to create in such persons interest in and a greater
concern for the welfare of the Company. Directors who are salaried key employees
within the meaning of the foregoing are eligible to participate in the 1994
Stock Incentive Plan (the "Plan"). These objectives will be promoted through the
granting to such key employees of equity instruments including (i) incentive
stock options ("Incentive Options") which are intended to qualify under Section
422 of the Internal Revenue Code of 1986, as amended (the "Code"); (ii) options
which are not intended to so qualify ("NQSOs"); and (iii) performance shares
("Performance Shares").
The awards offered pursuant to this Plan are a matter of separate
inducement and are not in lieu of any salary or other compensation for services.
The Company, by means of the Plan, seeks to retain the services of persons
now holding key positions and to secure the services of persons capable of
filling such positions.
II. AMOUNT OF STOCK SUBJECT TO THE PLAN
The total number of shares of the Company reserved and available for
distribution pursuant to options and awards granted hereunder shall not exceed,
in the aggregate, 5,500,000 shares, S$0.01 par value, per share, of the Company
(the "Shares"), subject to adjustment described below.
Shares which may be acquired under the Plan shall be authorized but
unissued Shares. Whenever any outstanding option or award or portion thereof
expires, is canceled, is forfeited or is otherwise terminated for any reason
without having been exercised or payment having been made in respect of the
entire option or award, the Shares allocable to the expired, canceled, forfeited
or otherwise terminated portion of the option or award may again be the subject
of options or awards granted hereunder.
In the event of any stock dividend, stock split, combination or exchange of
Shares, recapitalization or other change in the capital structure of the
Company, corporate separation or division (including, but not limited to,
split-up, spin-off or distribution to Company shareholders other than a normal
cash dividend), sale by the Company of all or a substantial portion of its
assets, rights offering, merger, consolidation, reorganization or partial or
complete liquidation, or any other corporate transaction or event having an
effect similar to any of the foregoing, the aggregate number of Shares reserved
for issuance under the Plan, the number and option price of Shares subject to
outstanding options, the financial performance goals of the Shares contained in
a Performance Share award, the number of Shares subject to a Performance Share
award agreement and any other characteristics or terms of the options and awards
as the Committee (as hereinafter defined) shall deem necessary or appropriate to
reflect equitably the effects of such changes to the holders of options and
awards, shall be appropriately substituted for new shares or adjusted, as
determined by the Committee in its discretion. Notwithstanding the foregoing,
(i) each such adjustment with respect to an Incentive Option shall comply with
the rules of Section 424(a) of the Code, and (ii) in no event shall any
adjustment be made which would render any Incentive Option granted hereunder
other than an incentive stock option for purposes of Section 422 of the Code
without the consent of the grantee.
III. ADMINISTRATION
The Compensation Committee (the "Committee"), or the Board of Directors of
the Company (the "Board of Directors") if there is no Committee, will have sole
and exclusive authority to administer the Plan. The Committee
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shall consist of no fewer than two (2) members of the Board of Directors, each
of whom shall be a "non-employee Director" within the meaning of Rule 16b-3 or
any successor rule or regulation ("Rule 16b-3") promulgated under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). The Committee shall
administer the Plan so as to comply at all times with Rule 16b-3. A majority of
the members of the Committee shall constitute a quorum, and a resolution passed
by a majority of the members of the Committee shall be a resolution of the
Committee. Any member of the Committee may be removed at any time, either with
or without cause, by resolution adopted by a majority of the Board of Directors,
and any vacancy on the Committee may at any time be filled by resolution adopted
by a majority of the Board of Directors.
Subject to the express provisions of the Plan, the Board of Directors or
the Committee, as the case may be, shall have authority, in its discretion, to
(i) select employees of the Company as recipients of options or awards; (ii)
determine the number and type of options or awards to be granted; (iii)
determine the terms and conditions, not inconsistent with the terms hereof, of
any options or awards granted; (iv) adopt, alter and repeal such administrative
rules, guidelines and practices governing the Plan as it shall, from time to
time, deem advisable; (v) interpret the terms and provisions of the Plan and any
option or award granted and any agreements relating thereto; and (vi) otherwise
supervise the administration of the Plan.
The determination of the Board of Directors or the Committee, as the case
may be, on matters referred to in this Article III shall be conclusive.
The Board of Directors or the Committee, as the case may be, may employ
such legal counsel, consultants and agents as it may deem desirable for the
administration of the Plan and may rely upon any opinion received from any such
counsel or consultant and any computation received from any such consultant or
agent. Expenses incurred by the Board of Directors or the Committee in the
engagement of such counsel, consultant or agent shall be paid by the Company. No
member or former member of the Committee or of the Board of Directors shall be
liable for any action or determination made in good faith with respect to the
Plan or any option or award granted hereunder.
The Company shall indemnify each member of the Committee for all costs and
expenses and, to the extent permitted by applicable law, any liability incurred
in connection with defending any proceedings arising in connection with any
actions in administering the Plan or in authorizing or denying authorization to
any transaction hereunder in which judgment is given in his favor or in which he
is acquitted or in connection with any application, in relation to such
liability, in which relief is granted to him by the court.
IV. ELIGIBILITY
Options and Performance Share awards may be granted only to certain
salaried officers and other salaried key employees of the Company and its
subsidiaries who are not members of the Committee; provided, that no person
shall be eligible for any award if the granting of such award to such person
would prevent the satisfaction by the Plan of the general exemptive conditions
of Rule 16b-3. No employee shall be granted or awarded stock option and
Performance Shares covering, in aggregate, more than 300,000 Shares in any
fiscal year of the Company (subject to adjustment as provided in II. above).
V. SHARE OPTIONS
1. General. Options may be granted alone or in addition to other awards
granted under the Plan. Any options granted under the Plan shall be on such
terms as the Committee may from time to time approve and the provisions of the
option grants need not be the same with respect to each optionee. Options
granted under the Plan may be either Incentive Options or NQSOs. The Committee
may grant to any optionee Incentive Options, NQSOs or both types of options.
Options granted under the Plan shall be subject to the following terms and
conditions and shall contain such additional terms and conditions not
inconsistent with the terms of the Plan, as the Committee deems appropriate.
Each option grant shall be evidenced by an agreement executed on behalf of the
Company by an officer designated by the Committee and accepted by the optionee.
Such agreement shall describe the options and state that such
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options are subject to all the terms and provisions of the Plan and shall
contain such other terms and provisions, consistent with the Plan, as the
Committee may approve.
2. Exercise Price and Payment. The price per Share under any option granted
hereunder shall be such amount as the Board of Directors or the Committee, as
the case may be, shall determine, provided, however, that such price shall not
be less than one hundred percent (100%) of the fair market value of the Shares
subject to such option, as determined below, at the date the option is granted
(110% in the case of an Incentive Option granted to any person who, at the time
the option is granted, owns shares of the Company or any subsidiary or parent of
the Company possessing more than ten percent (10%) of the total combined voting
power of all classes of shares of the Company or of any subsidiary or parent of
the Company (a "10% Shareholder")), and provided further that in no event may
the price be less than the par value of a Share.
If the Shares are listed on a national securities exchange in the United
States on the date any option is granted, the fair market value per Share shall
be deemed to be the highest sales price at which such Shares are sold on such
national securities exchange in the United States on the date upon which the
option is granted, but if the Shares are not traded on such date, or such
national securities exchange is not open for business on such date, the fair
market value per Share shall be the closing price per share determined as of the
closest preceding date on which such exchange shall have been open for business
and the Shares were traded. If the Shares are listed on more than one national
securities exchange in the United States on the date any such option is granted,
the Board of Directors or the Committee, as the case may be, shall determine
which national securities exchange shall be used for the purpose of determining
the fair market value per Share. If the Shares are not listed on a national
securities exchange but are reported on the National Association of Securities
Dealers, Inc. Automated Quotation System ("Nasdaq"), the fair market value per
share shall be deemed to be the average of the high bid and low asked prices on
the date upon which the option is granted as reported by Nasdaq.
For purposes of this Plan, the determination by the Board of Directors or
the Committee, as the case may be, of the fair market value of a Share shall be
conclusive.
3. Term of Options and Limitations on the Right of Exercise. The term of
each option will be for such period as the Board of Directors or the Committee,
as the case may be, shall determine, provided that, except as otherwise provided
herein, in no event may any option granted hereunder be exercisable more than
ten (10) years from the date of grant of such option (five years in the case of
an Incentive Option granted to a 10% Shareholder). Each option shall become
exercisable in such installments and at such times as may be designated by the
Board of Directors or the Committee, as the case may be, and set forth in the
agreement related to the grant of options. To the extent not exercised,
installments shall accumulate and be exercisable, in whole or in part, at any
time after becoming exercisable, but not later than the date the option expires.
The Board of Directors or the Committee, as the case may be, shall have the
right to limit, restrict or prohibit, in whole or in part, from time to time,
conditionally or unconditionally, rights to exercise any option granted
hereunder.
To the extent that an option is not exercised within the period of
exercisability specified therein, it shall expire as to the then unexercised
part.
4. Exercise of Options. Options granted under the Plan shall be exercised
by the optionee as to all or part of the Shares covered thereby by the giving of
written notice of the exercise thereof to the Company at the principal business
office of the Company, specifying the number of Shares to be purchased,
accompanied by payment therefor made to the Company for the full purchase price
of such Shares. The date of actual receipt by the Company of such notice shall
be deemed the date of exercise of the option with respect to the Shares being
purchased.
Upon the exercise of an option granted hereunder, the Company shall cause
the purchased Shares to be issued only when it shall have received the full
purchase price for the Shares in cash.
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Notwithstanding the foregoing, the Company, in its sole discretion, may
establish cashless exercise procedures whereby an option holder, subject to the
requirements of Rule 16b-3, Regulation T, federal income tax laws, and other
federal, state and local tax and securities laws, can exercise an option or a
portion thereof without making a direct payment of the option price to the
Company, including a program whereby option shares would be sold on behalf of
and at the request of an option holder by a designated broker and the exercise
price would be satisfied out of the sale proceeds and delivered to the Company.
If the Company so elects to establish a cashless exercise program, the Company
shall determine, in its sole discretion, and from time to time, such
administrative procedures and policies as it deems appropriate and such
procedures and policies shall be binding on any option holder wishing to utilize
the cashless exercise program.
5. Nontransferability of Options. An option granted hereunder shall not be
transferable, whether by operation of law or otherwise, other than by will or
the laws of descent and distribution, and any option granted hereunder shall be
exercisable, during the lifetime of the holder, only by such holder.
The option of any person to acquire Shares and all his rights thereunder
shall terminate immediately if the holder: (a) attempts to or does sell, assign,
transfer, pledge, hypothecate or otherwise dispose of the option or any rights
thereunder to any other person except as permitted above; or (b) becomes
insolvent or bankrupt or becomes involved in any manner so that the option or
any rights thereunder becomes subject to being taken from him to satisfy his
debts or liabilities.
6. Termination of Employment. Upon termination of employment of any option
holder, any option previously granted to such option holder, unless otherwise
specified by the Board of Directors or the Committee, as the case may be, shall,
to the extent not theretofore exercised, terminate and become null and void,
provided that:
(a) if the option holder shall die while in the employ of the Company
or any subsidiary of the Company, and at a time when such employee was
entitled to exercise an option as herein provided, his estate or the
legatees or distributees of his estate or of the option, as the case may
be, of such option holder, may, within one (1) year following the date of
death, but not beyond that time and in no event later than the expiration
date of the option, exercise such option, to the extent not theretofore
exercised, in respect of any or all of such number of Shares which the
option holder was entitled to purchase; and
(b) if the employment of any option holder to whom such option shall
have been granted shall terminate by reason of the option holder's
retirement on or after he reaches the age of 60 years in such manner as
would entitle him to receive full Social Security benefits if he were then
65 years of age, or disability (as described in Section 22(e)(3) of the
Code), and while such employee is entitled to exercise such option as
herein provided, such option holder shall have the right to purchase under
the option the number of Shares, if any, which he was entitled to purchase
at the time of such termination, at any time up to and including three (3)
months after the date of such termination of employment, but not beyond
that time and in no event shall an option be exercised later than the
expiration date of the option.
In no event shall any person be entitled to exercise any option after the
expiration of the period of exercisability of such option as specified therein.
Except as otherwise determined by the Board of Directors or the Committee,
as the case may be, and other than as set forth above, if an option holder
voluntarily terminates his or her employment, or is discharged, any option
granted hereunder shall be canceled and the option holder shall have no further
rights to exercise any such option and all of the option holder's rights
thereunder shall terminate as of the effective date of such termination of
employment.
If an option granted hereunder shall be exercised by the legal
representative of a deceased option holder or former option holder or by a
person who acquired an option granted hereunder by bequest or inheritance or by
reason of the death of any option holder or former option holder, written notice
of such exercise shall be accompanied by a certified copy of letters
testamentary or equivalent proof of the right of such legal representative or
other person to exercise such option.
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For the purposes of the Plan, an employment relationship shall be deemed to
exist between an individual and a corporation if, at the time of the
determination, the individual was an "employee" of such corporation for purposes
of Section 422(a) of the Code.
A termination of employment shall not be deemed to occur by reason of (i)
the transfer of an employee from employment by the Company to employment by a
subsidiary of the Company or (ii) the transfer of an employee from employment by
a subsidiary of the Company to employment by the Company or by another
subsidiary of the Company.
7. Maximum Allotment of Incentive Options. If the aggregate fair market
value of Shares with respect to which Incentive Options are exercisable for the
first time by an employee during any calendar year (under all share option plans
of the Company and any parent or any subsidiary of the Company) exceeds
$100,000, any options which otherwise qualify as Incentive Options, to the
extent of the excess, will be treated as NQSOs.
VI. PERFORMANCE SHARES
1. General. Performance Shares may be granted alone or in addition to any
other awards granted under the Plan. The provisions of Performance Share awards
need not be the same with respect to each recipient. Performance Share awards
granted under the Plan shall be in such form as the Board of Directors or the
Committee, as the case may be, may from time to time approve. Each grant of a
Performance Share award shall be evidenced by an agreement executed on behalf of
the Company by an officer designated by the Board of Directors or the Committee,
as the case may be, and accepted by the recipient. Such agreement shall describe
the Performance Share award and state that such award is subject to all the
terms and provisions of the Plan and shall contain such other terms and
provisions, consistent with the Plan, as the Board of Directors or the
Committee, as the case may be, may approve.
2. Price. The purchase price for Performance Shares shall be such amount as
the Board of Directors or the Committee, as the case may be, shall determine,
and subject to applicable law, such purchase price may be zero. The purchase
price for Performance Shares, if any, shall be made in cash
3. Restrictions. Each Performance Share award shall be subject to
restrictions related to (A) the passage of time and/or (B) the attainment by the
Company of specified performance objectives. Company financial performance
objectives may be expressed in terms of (i) earnings per Share, (ii) pre-tax
profits, (iii) net earnings or net worth, (iv) return on equity or assets, (v)
any combination of the foregoing, or (vi) any other standard or standards deemed
appropriate by the Board of Directors or the Committee, as the case may be, at
the time the award is granted. Such time periods (the "Performance Period") and
financial performance goals shall be set by the Board of Directors or the
Committee, as the case may be, in its sole discretion.
Performance Shares shall become vested in a recipient upon the lapse of the
Performance Period, if any, and the attainment of the associated financial
performance goals set forth in the agreement between the recipient and the
Company or, in the discretion of the Board of Directors or the Committee, as the
case may be, upon the death, disability or retirement of the recipient.
4. Share Certificate and Legends. Performance Shares shall be registered in
the name of the recipient of an award thereof, provided that the recipient has
executed a Performance Share agreement evidencing the award, appropriate blank
stock powers and, in the discretion of the Board of Directors or the Committee,
as the case may be, an escrow agreement and any other documents which the Board
of Directors or the Committee, as the case may be, may require as a condition to
the issuance of such Shares. If a recipient shall fail to execute the agreement
evidencing a Performance Share award, the appropriate blank stock powers and, in
the discretion of the Board of Directors or the Committee, as the case may be,
an escrow agreement and any other documents which the Board of Directors or the
Committee, as the case may be, may require within the time period prescribed by
the Board of Directors or the Committee, as the case may be, at the time the
award is granted, the award shall be null and void. At the discretion of the
Board of Directors or the Committee, as the case may be, Shares issued in
connection with a Performance Share award shall be deposited together with the
stock powers with an escrow agent (which may be the Company) designated by the
Board of Directors or the Committee, as the case may be.
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5. Treatment of Dividends. At the time the Performance Share award is
granted, the Board of Directors or the Committee, as the case may be, may, in
its discretion, determine that the payment to the recipient of dividends, or a
specified portion thereof, declared or paid on such Shares by the Company shall
be (i) deferred until the lapsing of the restrictions imposed upon such
Performance Shares and (ii) held by the Company for the account of the recipient
until such time. Payment of deferred dividends in respect of Performance Shares
shall be made upon the lapsing of restrictions imposed on the Performance Shares
in respect of which the deferred dividends were paid, and any dividends deferred
in respect of any Performance Shares shall be forfeited upon the forfeiture of
such Performance Shares.
6. Share Restrictions. Subject to the provisions of this Plan and the
applicable agreement, during the period when the Performance Shares have not
vested, the recipient shall not be permitted to sell, transfer, pledge, assign
or otherwise encumber Performance Shares awarded under the Plan.
7. Shareholder Rights. Subject to applicable laws, the recipient shall have
no rights, with respect to the Performance Shares until they have vested,
including no right to vote the Performance Shares.
8. Termination of Employment. Upon termination of employment with the
Company because of death, disability or retirement, the Committee, at its
discretion, may provide for waiver of all or a portion of the restrictions
applicable to unvested Performance Shares. If termination occurs for any other
reason, all shares still subject to restriction shall be forfeited by the
recipient.
VII. CHANGE OF CONTROL
Notwithstanding anything to the contrary contained herein, upon a Change of
Control (as defined below) of the Company, (i) all options shall immediately
vest and become exercisable in full during the remaining term thereof, and shall
remain so, whether or not the option holder to whom such options have been
granted remains an employee of the Company or its subsidiaries, and (ii) the
restrictions applicable to any or all Performance Share awards shall lapse and
such awards shall be fully vested.
A Change of Control shall be deemed to have taken place upon the occurrence
of any of the following events:
(i) any Person (which shall mean and include any individual,
corporation, partnership, group, association or other "person", as such
term is used in Sections 13 and 14 of the Exchange Act) is, becomes, or has
the right to become the beneficial owner, directly or indirectly, of
securities of the Company representing 20% or more of the Shares then
outstanding, whether or not such Person continues to be the beneficial
owner of securities representing 20% or more of the outstanding Shares; or
(ii) as the result of, or in connection with, any tender or exchange
offer, merger or other business combination, sale of assets or contested
election, any announcement of an intention to make any of the foregoing
transactions, or any combination of the foregoing transactions (a
"Transaction"), those persons who were directors of the Company before the
Transaction and were otherwise unaffiliated with any other party to the
Transaction shall cease to constitute a majority of the Board of Directors
of the Company or any successor to the Company (a "Change in the Board");
or
(iii) the shareholders of the Company approve any merger,
consolidation, reorganization, liquidation, dissolution, or sale of all or
substantially all of the Company's assets in which neither the Company nor
a successor resulting from a change in domicile or form of organization
will survive as an independent, publicly owned corporation.
Notwithstanding anything herein to the contrary, no Change of Control (only
with respect to the particular option holder or award grantee referred to
therein in the case of (i)(A) and (ii) below) shall be deemed to have occurred
by virtue of any event which results in any of the following:
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(i) the acquisition, directly or indirectly, of 20% or more of the
outstanding Shares by (A) the option holder or Performance Share recipient
or a person including the option holder or Performance Share recipient, (B)
the Company, or (C) any employee benefit plan of the Company or of a
subsidiary, or any entity holding securities of the Company recognized,
appointed, or established by the Company or by a subsidiary for or pursuant
to the terms of such plan; or
(ii) a Change in the Board resulting from any Transaction in which the
option holder or Performance Share recipient or a Person including the
option holder or Performance Share recipient participates directly or
indirectly with any party to the Transaction other than the Company.
VIII. PURCHASE FOR INVESTMENT
Except as hereafter provided, the Company may require the recipient of
Shares pursuant to an option or award granted hereunder, upon receipt thereof,
to execute and deliver to the Company a written statement, in form satisfactory
to the Company, in which such holder represents and warrants that such holder is
purchasing or acquiring the Shares acquired thereunder for such holder's own
account, for investment only and not with a view to the resale or distribution
thereof, and agrees that any subsequent offer for sale or sale or distribution
of any of such Shares shall be made only pursuant to either (a) a Registration
Statement on an appropriate form under the Securities Act of 1993, as amended
(the "Act"), which Registration Statement has become effective and is current
with regard to the Shares being offered or sold, or (b) a specific exemption
from the registration requirements of the Act, but in claiming such exemption
the holder shall, prior to any offer for sale or sale of such Shares, obtain a
prior favorable written opinion, in form and substance satisfactory to the
Company, from counsel for or approved by the Company, as to the applicability of
such exemption thereto. The foregoing restriction shall not apply to (i)
issuances by the Company so long as the Shares being issued are registered under
the Act and a prospectus in respect thereof is current or (ii) reofferings of
Shares by affiliates of the Company (as defined in Rule 405 or any successor
rule or regulation promulgated under the Act) if the Shares being reoffered are
registered under the Act and a prospectus in respect thereof is current.
IX. ISSUANCE OF CERTIFICATES; LEGENDS; PAYMENT OF EXPENSES
The Company may endorse such legend or legends upon the certificates for
Shares issued pursuant to a grant hereunder and may issue such "stop transfer"
instructions to its transfer agent in respect of such Shares as, in its
discretion, it determines to be necessary or appropriate to (i) prevent a
violation of, or to perfect an exemption from, the registration requirements of
the Act, (ii) implement the provisions of the Plan and any agreement between the
Company and the optionee or grantee with respect to such Shares, or (iii) permit
the Company to determine the occurrence of a disqualifying disposition, as
described in Section 421(b) of the Code, of Shares transferred upon exercise of
an Incentive Option granted under the Plan.
The Company shall pay all issue or transfer taxes with respect to the
issuance or transfer of Shares upon exercise of an option or issuance of
Performance Shares, as well as all fees and expenses necessarily incurred by the
Company in connection with such issuance or transfer, except fees and expenses
which may be necessitated by the filing or amending of a Registration Statement
under the Act, which fees and expenses shall be borne by the recipient of the
Shares unless such Registration Statement has been filed by the Company for its
own corporate purposes (and the Company so states) in which event the recipient
of the Shares shall bear only such fees and expenses as are attributable solely
to the inclusion of the Shares he or she receives in the Registration Statement,
provided that the Company shall have no obligation to include any Shares in any
Registration Statement.
All Shares issued as provided herein shall be fully paid and non-assessable
to the extent permitted by law.
X. WITHHOLDING TAXES
The Company may require an employee exercising an NQSO or disposing of
Shares acquired pursuant to the exercise of an Incentive Option in a
disqualifying disposition (within the meaning of Section 421(b) of the Code) or
pursuant to the award of Performance Shares to reimburse the Company for any
taxes required by any government to be withheld or otherwise deducted and paid
by the Company in respect of the issuance or disposition
7
<PAGE>
of Shares. In lieu thereof, the Company shall have the right to withhold the
amount of such taxes from any other sums due or to become due from the Company
to the employee upon such terms and conditions as the Board of Directors or the
Committee, as the case may be, shall prescribe. Notwithstanding the foregoing,
the Committee may, by the adoption of rules or otherwise, modify the provisions
of this Article X or impose such other restrictions or limitations as may be
necessary to ensure that the withholding transactions described above will be
exempt transactions under Section 16(b) of the Exchange Act.
If an optionee makes a disposition, within the meaning of Section 424(c) of
the Code and regulations promulgated thereunder, of any Share or Shares issued
to such optionee pursuant to the exercise of an Incentive Option within the
two-year period commencing on the day after the date of the grant, the optionee
shall, within ten (10) days of such disposition, notify the Company thereof, by
delivery of written notice to the Company at its principal executive office.
XI. LISTING OF SHARES AND RELATED MATTERS
If at any time the Board of Directors or the Committee, as the case may be,
shall determine in its discretion that the listing, registration or
qualification of the Shares covered by the Plan upon any national securities
exchange or under any state or federal law or the consent or approval of any
governmental regulatory body, is necessary or desirable as a condition of, or in
connection with, the sale or purchase of Shares under the Plan, no Shares shall
be issued unless and until such listing, registration, qualification, consent or
approval shall have been effected or obtained, or otherwise provided for, free
of any conditions not acceptable to the Board of Directors or the Committee, as
the case may be.
XII. AMENDMENT OF THE PLAN
The Board of Directors or the Committee, as the case may be, may, from time
to time, amend the Plan, provided that no amendment shall be made, without the
approval of the shareholders of the Company, that will (i) increase the total
number of Shares which may be issued under the Plan (other than an increase
resulting from an adjustment provided for in Article II), (ii) modify the
provisions of the Plan relating to eligibility, (iii) materially increase the
benefits accruing to participants under the Plan, or (iv) extend the maximum
period of the Plan. The Board of Directors or the Committee, as the case may be,
shall be authorized to amend the Plan and the awards granted hereunder to permit
the Incentive Options granted hereunder to qualify as incentive stock options
within the meaning of Section 422 of the Code. The rights and obligations under
any option or award granted before amendment of the Plan or any unexercised
portion of such option shall not be adversely affected by amendment of the Plan
or the option without the consent of the holder of the option.
XIII. TERMINATION OR SUSPENSION OF THE PLAN
The Board of Directors or the Committee, as the case may be, may at any
time suspend or terminate the Plan. The Plan, unless sooner terminated by action
of the Board of Directors or the Committee, as the case may be, shall terminate
at the close of business on March 14, 2004. An option or award may not be
granted while the Plan is suspended or after it is terminated. Rights and
obligations under any option or award granted while the Plan is in effect shall
not be altered or impaired by suspension or termination of the Plan, except upon
the consent of the person to whom the option or award was granted. The power of
the Board of Directors or the Committee, as the case may be, to construe and
administer any options and awards granted prior to the termination or suspension
of the Plan under Article III nevertheless shall continue after such termination
or during such suspension.
XIV. GOVERNING LAW
The Plan, such options and awards as may be granted thereunder and all
related matters shall be governed by, and construed and enforced in accordance
with, the laws of the State of Delaware.
8
<PAGE>
XV. PARTIAL INVALIDITY
The invalidity or illegality of any provision herein shall not be deemed to
affect the validity of any other provision.
XVI. EFFECTIVE DATE
The Plan shall become effective upon the adoption by the Board of
Directors.
XVII. DEFERRAL
An employee may elect to defer (i) all or part of his Performance Shares
upon vesting or (ii) the Option Profit (as hereinafter defined) with respect to
any Shares subject to an NQSO, all in accordance with the provisions of the
Company's Deferred Compensation Plan. Any such deferral shall be made in writing
in accordance with the provisions of the Deferred Compensation Plan. In cases of
deferral, Shares otherwise issuable to the employee shall be issued to the Trust
established pursuant to the Deferred Compensation Plan. For purposes of this
provision, Option Profit shall mean the amount by which the fair market value of
a Share subject to an NQSO exceeds the exercise price of an NQSO, as calculated
under the Deferred Compensation Plan.
9
Exhibit 4.5
ORBIT SEMICONDUCTOR, INC.
1994 STOCK INCENTIVE PLAN
Section 1. Purpose.
The purpose of this stock incentive plan (the "Plan") is to promote the
interests of Orbit Semiconductor, Inc., a Delaware corporation (the "Company"),
its affiliates, and its stockholders by providing officers, directors,
consultants, and other key employees on whom rests the major responsibility for
the present and future success of the Company, with an opportunity to acquire a
proprietary interest in the Company, and thereby develop a stronger incentive to
put forth maximum effort for the continued success and growth of the Company and
its affiliates. The opportunity to acquire a proprietary interest in the Company
will aid in attracting and retaining key personnel of outstanding ability.
This Plan is an amendment and complete restatement of, and replaces, the
former Share Option/Stock Issuance Plan of the Company in its entirety.
Section 2. Administration.
All administrative duties hereunder shall rest with the Board of Directors
of the Company (the "Board"), except to the extent the Board appoints from among
its members a committee to administer the Plan (in either case, the group
administering the Plan is hereinafter referred to as the "Compensation
Committee" or "Committee"). The Committee shall have the duty and authority,
subject to the provisions of the Plan, to:
(a) determine which individuals shall receive awards under the Plan and the
nature of each award;
(b) grant the awards under the Plan; and issue shares in connection with
such awards, as provided in the Plan.
(c) determine the terms and conditions of the awards, which need not be
identical, including exercise dates, limitations on exercise, restrictions, and
the price and payment terms;
(d) determine the limitation, if any, on the number of shares acquired
under an award which may be sold by an awardee in any year;
(e) prescribe the form or forms of the instruments evidencing any awards
made under the Plan and of any of the instruments required under the Plan, and
to change such forms from time to time;
(f) adopt, amend and rescind such rules and regulations and to make all
other determinations in connection with the administration of the Plan as it
deems necessary or appropriate; and
(g) correct any defect or supply any omission or reconcile any
inconsistency in the Plan or in any Award agreement in the manner and to the
extent it shall deem expedient to carry the plan into effect.
In making the foregoing determinations, the Committee may take into account the
nature of the services rendered by the respective awardees, their present and
potential contributions to the Company's success, and such other factors as the
Committee, in its discretion, shall deem relevant.
The construction and interpretation by the Committee of the terms and
provisions of the Plan and the agreements entered into thereunder shall be final
and conclusive. No Committee member or director shall be liable for any action
or determination taken or made under or with respect to the Plan or any Award in
good faith.
<PAGE>
Section 3. Awards.
Awards made under the Plan ("Awards") may be in the form of share options
("Options"), stock appreciation rights ("SARs"), grants of Company shares
subject to certain restrictions ("Restricted Stock"), or any combination
thereof, as described hereinafter.
Section 4. Eligibility.
(a) Individuals eligible to participate in the Plan shall be those
officers, directors, executives, supervisory personnel and consultants, as well
as other employees of the Company or an Affiliate (as defined in Section 18)
determined in the sole discretion of the Committee, who are in a position to
make a significant contribution to the profitability and growth of the Company
and its Affiliates. In no event, however, may any person who is not an employee
of the Company or any of its related corporations participate in the Plan if
such participation is (a) prohibited, or (b) restricted (either absolutely or
subject to various securities requirements, whether legal or administrative,
being complied with), in the jurisdiction in which such person is resident under
the relevant securities laws of that jurisdiction. Provided Always That in the
case of (b) above, the relevant person's participation in the Plan may be
effected at the absolute discretion of the Committee if compliance with the
relevant securities requirements of the jurisdiction in which such person is
resident is not impractical (having regard to the nature of those requirements)
and would not involve undue expense. An individual who is the grantee of an
Award shall be hereinafter known as a "Participant."
(b) To the extent required by Rule 16b-3 of the Exchange Act (as defined in
Section 18) or Section 162(m) of the Internal Revenue Code of 1986, as amended
(the "Code"), any person who is a director or officer of the Company or any
Affiliate shall be granted Awards only if such person has been selected for
participation and the terms and provisions of such Awards have been determined
solely by, and in the sole discretion of, a Committee of two or more directors,
each of whom is a Disinterested Person (defined below) and an Outside Director
(defined below). The foregoing provision does not apply to any grant which
occurs prior to the date the Company first registers its Ordinary Shares (as
defined in Section 5) under Section 12 of the Securities Exchange Act of 1934.
(c) Unless otherwise permitted under Rule 16b-3, any right of the Company
under the Plan regarding the determination or approval of the form of payment by
the Company to the participant who is a director or officer of the Company,
shall be made solely by a Committee of two or more directors each of whom is a
"Disinterested Person."
(d) For the purposes of the Plan,
(i) a person is a "Disinterested Person" only either (x) if such
director has not, during the one year prior to service as an administrator
of this Plan or during such service, been granted or awarded any Awards
under this Plan or any equity securities (as defined in Rule 16a-4 of the
Exchange Act) of any other plan of the Company or an Affiliate or (y) if
such person is not disqualified from being a "disinterested person" under
paragraph (c)(2) of Rule 16b-2 of the Exchange Act; and
(ii) the term "officer" shall have the same meaning as in paragraph
(f) of Rule 16a-1 of the Exchange Act.
(iii) the term "Outside Director" shall have the same meaning as in
Section 162(m) of the Code and the regulations promulgated thereunder.
Section 5. Shares Subject to the Plan.
The shares that may be issued pursuant to Awards under the Plan shall be
ordinary shares, S$0.01 par value, of the Company ("Ordinary Shares"). The total
shares subject to Awards issued pursuant to the grant of options pursuant to the
Plan shall not exceed 2,250,000 Ordinary Shares, and the total shares subject to
all Awards issued pursuant to the Plan shall not exceed, in the aggregate,
2,250,000 Ordinary Shares (one or more shares per Award).
<PAGE>
To the extent required to satisfy the performance goal requirement of Section
162(m) of the Code, no employee may be granted more than 100,000 Options during
the term of the Plan. If any Award lapses or terminates for any reason without
having been exercised in full prior to the lapse or termination, the shares
covered by such Award or portion thereof remaining unexercised, may become
subject to subsequent Awards made or to be made under the Plan. Shares issued
under the Plan shall be authorized but previously unissued shares. Ordinary
Shares issuable upon exercise of Awards granted under the Plan may be subject to
such restrictions on transfer, forfeitability, repurchase rights, rights of
first refusal, or other restrictions as shall be determined by the Committee.
Section 6. Options.
(a) Granting of Options. Subject to the terms and conditions of the Plan,
the Committee may grant Options to purchase Ordinary Shares subject to such
terms and conditions as the Committee may determine. The day on which the
Committee approves the granting of an Option shall be considered as the date on
which such Option is granted unless the Committee approves a future date as the
date of grant. Options shall be designated as either incentive stock options
("ISOs") or nonstatutory stock options ("NSOs") at the time of grant. ISOs shall
comply with the requirements of Section 422 of the Code. No person shall be
granted any ISO under the Plan unless at the time such Option is granted, such
person is an employee of the Company or of any Parent Corporation or Subsidiary
(as such terms are defined in Section 18), and unless the requirements of
paragraph (c) are satisfied, does not own, directly or indirectly, shares
possessing more than 10% of the total combined voting power of all classes of
shares of the Company or of any Parent Corporation or Subsidiary.
(b) Option Price. The purchase price per Ordinary Share subject to an
Option (the "Option Price") shall be fixed by the Committee at the time the
Option is granted Provided Always That in no event may the purchase price be
less than the par value of an Ordinary Share. In the case of ISOs, such purchase
price shall not be less than the fair market value ("Fair Market Value") of
Ordinary Shares at the time the Option is granted. Fair Market Value, for all
applicable purposes under the Plan, shall be determined by the Board in good
faith taking into account any applicable requirements of law.
(c) Incentive Stock Options. Options granted under the Plan which are
intended to be ISOs shall be specifically designated as ISOs and shall be
subject to the following additional terms and conditions:
(i) 10% Stockholder. If any employee to whom an ISO is to be granted
under the Plan is at the time of the grant of such option the owner,
directly or indirectly, of shares possessing more than 10% of the total
combined voting power of all classes of shares of the Company or of any
Parent Corporation or any Subsidiary ("10% Stock Holder"), then the
following special provisions shall be applicable to the ISO granted to such
individual:
(x) The Option Price per share shall not be less than 110% of the
Fair Market Value of one Ordinary Share at the time of grant; and
(y) The option exercise period shall not exceed five (5) years
from the date of grant.
(d) Method of Exercising Options. A Participant may exercise an Option
granted hereunder by delivering to the Company at its main office (to the
attention of the Secretary) written notice of exercise, which notice shall
specify the number of shares with respect to which the Option is being
exercised, together with payment in cash of the Option Price in exchange for the
Company's issuance and delivery of certificates therefor. The Committee, in its
discretion, may permit cash payments of the Option Price to be in installments
or pursuant to a recourse note upon such terms as the Committee deems
appropriate. At the request of a Participant, and to the extent permitted by
applicable law, the Committee may approve arrangements with a brokerage firm
under which such firm, on behalf of the Participant, will pay the Option Price
to the Company and the Company will promptly deliver to such firm the share
certificates in respect to the shares exercised, so that the firm may sell such
shares, or a portion thereof, for the account of the Participant subject to the
terms of the Option.
<PAGE>
(e) Amount Exercisable. (i) Each Option may be exercised, from time to
time, in whole or in part, so long as it is valid and outstanding, subject to
any limitations with respect to the number of shares for which the Option may be
exercised at a particular time and to such other conditions as the Committee in
its discretion may specify upon granting the Option.
(ii) Ordinary Shares of the Company that are acquired pursuant to the
exercise of an ISO which has been granted to an employee under the Plan
shall be deemed to be acquired pursuant to the exercise of an incentive
stock option under Code Section 422, only to the extent that the aggregate
fair market value (determined as of the respective date or dates of grant)
of the Ordinary Shares with respect to which such ISO, and all other
incentive stock options which are granted to such employee under the Plan
(and under any other incentive stock option plans of the Company and any
Parent Corporation and any Subsidiary) are exercisable for the first time
by such employee in any one calendar year, does not exceed $100,000.
(iii) To effectuate the provisions of paragraph (e)(ii), the Committee
may designate the Ordinary Shares that are treated as acquired pursuant to
the exercise of an incentive stock option under Code Section 422 by issuing
a separate certificate for such shares and identifying such certificates as
incentive stock option shares in its statutory register.
Section 7. Stock Appreciation Rights.
(a) Each SAR is the right to receive payment of an amount equal to the
increase, if any, in the Fair Market Value of one Ordinary Share over the period
of time between the date of grant of the SAR and the date of exercise.
(b) SARs may be granted in conjunction with an Option, either at the time
of grant or thereafter, or separately. SARs shall be credited to an SAR account
to be maintained for the Participant. An Award of an SAR shall not entitle a
Participant to any dividend, voting or other rights of a shareholder of the
Company.
(c) SARs issued in conjunction with an Option shall be exercisable to the
extent that such Option shall be exercisable and in lieu of the exercise of such
Option which, to the extent of the exercise of the SAR, shall lapse. SARs which
are granted independent of an Option shall be exercisable during the exercise
period set forth in the SAR agreement.
(d) Upon the exercise of an SAR, the Participant shall receive, in respect
thereof, payment in cash, Ordinary Shares or a combination of both as the
Committee, in its sole discretion, shall determine, of the amount by which the
Fair Market Value of an Ordinary Share on the date of exercise exceeds the Fair
Market value of such share on the date of the SAR's grant.
Section 8. Restricted Stock Awards.
(a) Restricted Stock means one or more shares of Ordinary Shares awarded to
a Participant pursuant to this Section 8, which are subject to certain
limitations during a specified restriction period. Restricted Stock shall be
issued to a Participant without payment of any consideration. A certificate for
Restricted Stock so awarded shall be issued in the name of each Participant
receiving the Award and shall bear a restrictive legend prohibiting the sale,
transfer, pledge or hypothecation of the Restricted Stock evidenced thereby
until the expiration of the restriction period set forth therein.
(b) Holders of Restricted Stock shall have the right to vote such shares.
In granting an Award of Restricted Stock, the Committee, in its sole discretion,
may authorize the Participant to receive cash dividends or other distributions
with respect to such Ordinary Shares or may direct that they be retained by the
Company.
<PAGE>
(c) Upon the expiration of the restriction period contained in an Award,
all restrictions upon such Restricted Stock shall lapse and a new certificate
representing such shares will be issued without the restrictive legend described
in (a) above.
Section 9. Non-Transferability of Awards.
Awards of Options and SARs and Awards of Restricted Stock to the extent the
restriction period has not expired, shall not be transferable by a Participant
other than by will or under the laws of descent and distribution, and with
respect to Options and SARs shall be exercisable during his lifetime only by him
except as provided in Section 10.
Section 10. Exercise Period for Options and SARs.
(a) Generally. Each Award of an Option or SAR shall expire on such date as
the Committee shall determine on the date such Award is granted, but in no event
after the expiration of ten years from the day on which such Award is granted
(or five years in the case of ISOs granted to persons described in Section
6(c)(i) and Participants who are not employees of the Company or any of its
related corporations on the relevant date of grant), and in all cases each Award
shall be subject to earlier termination as provided in the Plan.
(b) Effect of Termination of Employment. No Award of an Option or SAR may
be exercised by a Participant unless, at the time of such exercise, the
Participant is, and continuously since the date of grant of his or her Award,
has been an employee or a director of or a consultant for one or more of the
Company or an Affiliate, except that subject to Section 11, and if and to the
extent the Award agreement or instrument so provides:
(i) the Award may be exercised within the period of three months after
the date the Participant ceases to be an employee or director of or
consultant for any of the foregoing entities (or within such lesser period
as may be specified in the Award agreement or instrument);
(ii) if the Participant dies while an employee or a director of or a
consultant for the Company or an Affiliate, or within three months after
the Participant ceases to be such an employee or director or consultant,
the Award may be exercised by the person to whom it is transferred by will
or the laws of descent and distribution within the period of one year after
the date of death (or within such lesser period as may be specified in the
Award agreement or instrument); and
(iii) if the Participant becomes disabled (within the meaning of
Section 22(e)(3) of the Code) while an employee or a director of or
consultant for the Company or an Affiliate, the Award may be exercised
within the period of one year after the date the Participant ceases to be
an employee or director of or consultant for any of the foregoing entities
because of such disability (or within such lesser period as may be
specified in the Award agreement or instrument);
provided, however, that in no event may any such Award be exercised after the
expiration date of the Award. Any Award or portion thereof that is not exercised
during the applicable time period specified above (or any shorter period
specified in Award agreement or instrument) shall be deemed terminated at the
end of the applicable time period for purposes of Section 5 hereof.
(c) Effective Date of Exercise. Subject to the provisions of paragraphs (a)
and (b) of this paragraph and Section 11, the exercise of an Award of an Option
or SAR by a Participant for cash, in whole or in part, shall take effect on the
date of receipt by the Company of written notice of exercise by the Participant,
together with any required payment for such exercise; provided, however, if, (i)
such Award is owned by an officer or director of the Company, (ii) such date of
receipt does not occur during the period beginning on the third business day
following the date of release of the financial data specified in paragraph
(e)(1)(ii) of Rule 16b-3 and ending on the twelfth business day following such
date, and (iii) the Company has not received a no-action letter from the
Securities and Exchange Commission that such Award or class of Awards is exempt
from the exercise period requirements of paragraph (e)(3) of Rule 16b-3, the
Company shall, within 10 days of receipt of the notice of exercise, notify the
Participant in writing
<PAGE>
of the lack of a no-action letter, and the exercise of the Award shall take
effect as of the first day of the period described above in clause (ii) next
following the date of such receipt, unless the Participant responds, in writing,
in substance and form satisfactory to the Company, within 5 days of receipt of
the Company's notification, that the date of receipt is to remain effective.
Section 11. Vesting of Awards.
(a) An Option or SAR may be exercised, and payment shall be made upon the
exercise of such Award, only to the extent that such Award has vested. An Award
of Restricted Stock may also be subject to a vesting schedule.
Awards shall vest in accordance with the schedule or terms set forth in the
Award agreement executed by the Participant and a duly authorized officer of the
Company. An Award agreement may, subject to compliance with applicable laws,
provide that an Award may be forfeited for cause (as defined in the agreement)
or that an Award's vested status may be accelerated at any time in the sole
discretion of the Board of Directors. Notwithstanding the foregoing, unless the
Board of Directors specifically authorizes a different vesting schedule with
respect to an Award, an Award shall vest based on the collective number of full
years of service that such Participant has completed with the Company and
Affiliates since the Award's date of grant, in accordance with the following
schedule:
Number of Years of Service Percentage of Award Available
Since Date of Grant for Exercise (Cumulative)
-------------------------- -----------------------------
1 25%
2 50%
3 75%
4 or more 100%
(b) Notwithstanding anything to the contrary in this Section 11, upon the
exercise of an Option or SAR by a director or officer of the Company, the
Company shall determine if such exercise complies with paragraph (c)(1) or
(e)(4) of Rule 16b-3. If such exercise does not so comply, the Company shall,
within 5 days of receipt of the notice of exercise, notify the Participant, in
writing, of such non-compliance and such exercise shall not be given effect
unless the Participant responds in writing, in substance and form satisfactory
to the Company, within 5 days of receipt of the Company's notification, that
such exercise is to remain effective.
Section 12. Capital Adjustments Affecting Ordinary Shares.
In the event that the outstanding Ordinary Shares of the Company are
changed into or exchanged for a different number or kind of shares or other
securities of the Company by reason of any recapitalization, reclassification,
stock split, stock dividend, combination or subdivision, merger, consolidation,
or other similar transaction, appropriate adjustment shall be made in the number
and kind of shares available under the Plan and under any Awards granted under
the Plan. Such adjustment to outstanding Awards shall be made without change in
the total value applicable to the unexercised portion of such Awards as of the
date of the adjustment. No such adjustment shall be made with respect to an ISO
which would, within the meaning of any applicable provisions of the Code,
constitute a modification, extension or renewal of any such option or a grant of
additional benefits to the holder of such Option.
Section 13. Change In Control.
Notwithstanding anything contained herein to the contrary, in the event of
a Chance In Control, as hereinafter defined, (i) all Awards then outstanding
shall become immediately exercisable and (ii) any restrictions then outstanding
on any Award of Restricted Stock which have not lapsed shall immediately lapse.
For purposes of this section, a "Change In Control" is deemed to occur at the
time when either (i) any entity, person or group (other than the Company or an
Affiliate or any savings, pension or other benefit plan for the benefit of
employees of the Company) which theretofore beneficially owned less than forty
percent (40%) of the Ordinary Shares then
<PAGE>
outstanding acquires Ordinary Shares in a transaction or series of transactions,
not previously approved by the Board, that results in such entity, person or
group erectly or indirectly owning forty percent (40s) or more of the
outstanding Ordinary Shares, or (ii) the election or appointment, within a
twelve (12) month period, of persons to the Board who are not Board members at
the beginning of such twelve (12) month period, whose election or appointment
was not approved by a majority of those persons who were Board members at the
beginning of such period, and which newly elected or appointed Board members
shall constitute a majority of the Board.
Section 14. General Restrictions.
(a) Investment Representations; Legends. The Company may require any person
to whom an Award is granted, as a condition of exercising such Award, to
(i) give written assurances, in substance and form satisfactory to the
Company, that such person is acquiring the Ordinary Shares subject to the
Award for his own account for investment and not with any present intention
of selling or otherwise distributing the same, and to such other effects as
the Company deems necessary or appropriate in order to comply with federal
and applicable state securities laws;
(ii) if the Participant is a director or officer, give written
assurances, in substance and form satisfactory to the Company, that such
person has consulted with competent counsel as to the application of
Section 16(b) of the Securities Exchange Act of 1934 to such exercise.
Certificates representing shares issued upon exercise of the Award shall
bear a legend prohibiting transfer of such shares unless, in the opinion of
competent counsel, such transfer is not inconsistent with any of the
requirements of any applicable securities law or such legend is not required.
(b) Compliance With Securities Laws.
(i) Each Award shall be subject to the requirement that, if at any
time counsel to the Company shall determine that the listing, registration
or qualification of such Award or the shares subject to such Award upon any
securities exchange or under any state or federal law, or the consent or
approval of any governmental or regulatory body, is necessary as a
condition of, or in connection with the grant of such Award or the issuance
or purchase of shares thereunder, such Award shall not be effective and
shall not be accepted or exercised in whole or in part unless such listing,
registration, qualification, consent or approval shall have been effected
or obtained on conditions acceptable to the Board of Directors. Nothing
herein shall be deemed to require the Company to apply for or to obtain
such listing, registration or qualification.
(ii) The Company shall provide each Participant with such information,
statements, discussions and analyses with respect to the Company in such
manner and at such times as may be required under state or federal
securities laws.
Section 15. Tax Withholding.
Tax withholding obligations, if any, in connection with an Award shall be
satisfied by a cash payment by the person receiving the Ordinary Shares subject
to the Award to the Company.
Section 16. No Rights as Shareholder.
No recipient of an Award shall have rights as a shareholder with respect to
Ordinary Shares covered by his Award until the date of allotment and issue of
such Ordinary Shares subject to any applicable restrictions thereon; and, except
as otherwise provided in Section 12 herein or in an Award agreement, no
adjustment for dividends, or otherwise, shall be made if the record date
therefor is prior to the date of issuance of such shares.
<PAGE>
Section 17. Employment Obligation and Employee Benefits.
The granting of any award shall not impose upon the Company any obligation
to employ or retain the services or continue to employ or retain the services of
a Participant. The right of the Company to terminate the employment of any
employee or consultant shall not be diminished or affected in any way by reason
of the fact that an Award has been granted to him.
The amount of any income deemed to be received by an Award Owner as a
result of the exercise of an Award or the sale of shares received upon such
exercise shall not constitute "compensation" or "earnings" with respect to which
any other benefits of such person are determined, including without limitation
benefits under any pension, profit sharing, life insurance or salary
continuation plan.
Section 18. Definition of Parent Corporation and Affiliate.
(a) Affiliate. The term "Affiliate" shall mean a corporation or other
person which, at the time of reference, directly or indirectly through one or
more intermediaries, controls, is controlled by, or is under common control
with, the company. The status of a person as an "Affiliate" shall be determined
as set forth above at the time of (1) the grant of the Award for purposes of
Section 4; (2) the Participant's cessation of services for purposes of Section
10(b); (3) the vesting date for purposes of Section 11; and (4) the date of the
Change In Control for purposes of Section 13.
(b) Exchange Act. The term "Exchange Act" shall mean the Securities
Exchange Act of 1934, as amended, or any successor rule.
(c) Parent Corporation. The term "Parent Corporation" shall mean any
corporation (other than the Company) in an unbroken chain of corporations ending
with ownership of the Company if, at the time of the grant of the Award, each of
the corporations other than the Company owns stock possessing more than 50% of
the combined voting power of all classes of stock in one of the other
corporations in such chain. The status of a person as a "Parent Corporation"
shall be determined as set forth above at the time of the grant of the Award.
(d) Subsidiary. The term "Subsidiary" shall mean any corporation (other
than the Company) in an unbroken chain of corporations beginning with ownership
by the Company if, at the time of the grant of the Award, each of the
corporations other than the last corporation in the unbroken chain owns stock
possessing more than 50% of the total combined voting power of all classes of
stock in one of the other corporations in such chain. The status of a person as
a "Subsidiary" shall be determined as set forth above at the time of the grant
of the Award.
Section 19. Written Agreement.
Each Award made hereunder shall be embodied in a written agreement which
shall be subject to the terms and conditions prescribed above and shall be
signed by the Participant and by the Chief Executive Officer or other duly
authorized officer of the Company for and on behalf of the Company prior to such
Award becoming effective. Such agreement shall contain such other provisions as
the Committee, in its sole discretion, shall deem advisable. Each agreement
shall be substantially in one of the forms attached hereto or in such other form
not inconsistent with the Plan as shall be specified by the Committee at the
time such Award is authorized to be granted.
Section 20. Amendment of the Plan.
(a) The Board of Directors may at any time and from time to time modify or
amend the Plan in any respect, except that without the approval of the
shareholders of the Company, the Board of Directors may not make any amendments
that require approval of the shareholders under Rule 16b-3. As of July 1994,
Rule 16b-3 required shareholder approval of amendments that materially increase
the benefits accruing to individuals who participate in the Plan, (ii)
materially increase the maximum number of shares which may be issued under the
Plan (except for permissible adjustments provided in the Plan), or (iii)
materially modify the requirements as to eligibility for participation in the
Plan. In addition, the Board shall not modify or amend the Plan in a manner that
would require
<PAGE>
shareholder approval under Section 422 of the Internal Revenue Code, without
obtaining such approval, if such amendment would affect the status of any
outstanding ISO as an incentive stock option under Section 422 of the Code. As
of July 1994, Section 422 of the Code required shareholder approval of
amendments that (A) increase the aggregate number of shares that may be issued
pursuant to ISOs (except for permissible adjustments provided in the Plan), or
(B) change the designation of employees or class of employees eligible to
receive ISOs. The termination or any modification or amendment of the Plan shall
not, without the consent of a Participant, affect his or her rights under an
Award previously granted to him or her. With the consent of the Participant
affected, the Committee may amend outstanding Award agreements in a manner not
inconsistent with the Plan.
(b) Notwithstanding the foregoing provisions of paragraph (a)(i) and (iii),
the Board of Directors shall have the right, but not the obligation, without the
consent of the Company's shareholders, to (i) amend or modify the terms and
provisions of the Plan and of any outstanding ISOs granted under the Plan or any
shares to be issued thereunder to the extent necessary to qualify any or all
such options or shares for such favorable federal income tax treatment
(including deferral of taxation upon exercise), as may be afforded incentive
stock options under Section 422 of the Code; and (ii) amend or modify the terms
and provisions of the Plan and of any outstanding Award granted under the Plan
or any shares to be issued thereunder to the extent necessary to comply with any
securities law to which, in the opinion of counsel to the Company, the Plan or
Award or shares is subject.
Section 21. Governing Law.
The Plan and all Award agreements issued hereunder shall be governed by the
laws of the State of Delaware.
Section 22. Expenses of Administration.
All costs and expenses incurred in the operation and administration of this
Plan shall be borne by the Company.
Section 23. Effective Date and Duration of the Plan.
(a) Effective Date. The Plan shall become effective when adopted by the
Board of Directors. Awards may be granted under the Plan at any time after the
effective date and before the date fixed for termination of the Plan.
(b) Termination. The Plan shall terminate upon the earlier of (i) the close
of business on the day next preceding the tenth anniversary of the date of its
adoption by the Board of Directors, or (ii) the date on which all shares
available for issuance under the Plan shall have been issued pursuant to the
exercise or cancellation of Awards granted under the Plan. If the date of
termination is determined under (i) above, then Awards outstanding on such date
shall continue to have force and effect in accordance with the provisions of the
Plan as then in effect and with the instruments evidencing such Awards.
Exhibit 4.6
KMOS SEMI-CUSTOM DESIGNS, INC.
1989 STOCK OPTION PLAN
1. Purpose of the Plan.
The purpose of the 1989 Stock Option Plan (the "Plan) of KMOS Semi-Custom
Designs, Inc. (the "Company") is to:
(a) Furnish incentive to certain key employees chosen to receive options
because they are considered capable of responding by improving operations and
increasing profits;
(b) Encourage selected employees to accept or continue employment with the
Company or its Affiliates; and
(c) Increases the interest of selected employees in the Company's welfare
through their participation in the growth in value of the ordinary shares,
S$0.01 par value, of the Company ("Ordinary Shares").
To accomplish the foregoing objectives, this Plan provides a means whereby
employees may receive options to purchase Ordinary Shares. Options granted under
this Plan ("Options") will be either nonqualified options ("NQOs") or Incentive
Stock Options ("ISOs") as defined in Section 422A of the Internal Revenue Code
of 1986, as amended (the "Code").
2. Eligible Persons.
Every person who at the date of grant is an employee of the Company or of
any Affiliate of the Company is eligible to receive NQOs or ISOs under this
Plan; provided, however, that an ISO may to be granted under this Plan to any
person who owns, directly or indirectly, shares of the Company constituting more
than ten percent of the total combined voting power of the Company's Outstanding
Ordinary Shares, or the stock of an Affiliate of the Company, unless the
exercise price of the ISO at the time the option is granted is at least 110
percent of the fair market value of the shares subject to the option, and the
option is exercisable for no more than five years after the date of grant, as
set forth in Section 6.2. The term "Affiliate" as used in this Plan; means a
parent or subsidiary corporation, as defined in the applicable provisions
(currently Section 425) of the Code. The term "employee" shall have the meaning
ascribed for purposes of Section 3401(c) of the Code and the Treasury
Regulations promulgated thereunder and shall include an office or a Director who
is also an employee.
3. Shares Subject To This Plan.
The total number of shares that may be issued upon the exercise of Options
is Three Million (3,000,000) Ordinary Shares. The shares covered by the portion
of any grant that expires unexercised under this Plan shall become available
again for grants under this Plan. All shares issued under this Plan shall be
counted against the Three Million (3,000,000) share limitation. The number of
shares reserved for purchase under this Plan is subject to adjustment in
accordance with the provisions for adjustment in this Plan. Shares shall be
issued from authorized but previously unissued shares.
4. Administration.
This Plan shall be administrative by the Board of Directors of the Company
(the "Board") or by a committee appointed by the Board which shall not have less
than one Board member (in either case, the "Administrator"). No option shall be
granted to a director of the Company except (i) by the Board when a majority of
the members of the Board, and a majority of the directors acting in the matter,
are disinterested persons, or (ii) by the Administrator when the Administrator
is composed of three or more persons having full authority to act in the
<PAGE>
matter and each member of the Administrator is a disinterested person. No Option
shall be granted to an officer of the Company except (i) by the Board, or (ii)
by the Administrator when the Administrator is composed solely of three or more
directors, or is composed of three or more persons having full authority to act
in the matter and each member of the Administrator is a disinterested person.
"Disinterested person" for this purpose, shall have the same meaning as in Rule
16b-3 or any successor rule ("Rule 16b-3") under the Securities Exchange Act of
1934, as amended (the "Exchange Act"). This Administrator may delegate
nondiscretionary administrative duties to such employees of the Company as it
deems proper. Subject to the provisions of this Plan, the Administrator shall
have the authority to select the persons to receive Options under this Plan, to
fix the number of shares that each optionee may purchase, to set the terms and
conditions of each Option (including whether each Option should be a NQO or an
ISO) and to determine all other matters relating to this Plan. To the extent
permitted under all applicable laws, no member of the Administrator shall be
liable for any act or omission on such member's own part, including but not
limited to the exercise of any power or discretion given to such member under
this Plan, except for those acts or omissions resulting from such member's own
gross negligence or willful misconduct. All questions of interpretation,
implementation, and application of this Plan shall be determined by the
Administrator. Such determinations shall be final and binding on all persons.
5. Granting of Rights.
5.1 Ten-Year Limitation. No Options shall be granted under this Plan after
ten years from the date of adoption of this Plan by the Board of Directors.
5.2 Written Agreement; Effect. Each Option shall be evidenced by a written
agreement, in form satisfactory to the Company, executed by the Company and the
person to whom such Option is Granted. If the agreement relates to an ISO or
NQO, the agreement shall specify whether each option it evidence is an NQO or an
ISO. Failure of the grantee to execute an agreement shall not void or invalidate
the grant of an Option; the Option ay not be exercised, however, until the
agreement is executed.
5.3 Annual $100,000 Limitation. In no event shall an ISO be granted
pursuant to this Plan which would cause the grantee to be in receipt of ISOs
covering shares of the Company which are exercisable for the first time during
any calendar year having an aggregate fair market value, determined for each
Option as of the date of grant thereof, in excess of $100,000.
5.4 Advance Approvals. The Administrator may approve the grant of Options
under this Plan to persons who are expected to become employees of the Company,
but are not employees at the date of approval. In such cases, the Option shall
be deemed granted (and the exercise price determined with reference to the fair
market value of the underlying shares), without further approval, on the date
the grantee becomes an employee and satisfies all requirements of this Plan for
Options granted on that date.
6. Terms and Conditions of Options.
Each Option shall be designated as an ISO or an NQO and shall be subject to
the terms and conditions set forth in Section 6.1. NQOs shall also be subject to
the terms and conditions set forth in Section 6.2, but not those set forth in
Section 6.3. ISOs shall also be subject to the terms and conditions set forth in
Section 6.3, but not those set forth in Section 6.2.
6.1 Terms and Conditions to Which All Options Are Subject. All Options
shall be subject to the following terms and conditions:
6.1.1 Changes in Capital Structure. Subject to Section 6.1.2, if the
shares of the Company is changed by reason of a stock split, reverse stock
split, stock dividend, or recapitalization, or converted into or exchanged
for other securities as a result of a merger, consolidation or
reorganization, appropriate adjustments shall be made in (A) the number and
class of shares subject to this Plan and each Option outstanding under this
Plan, and (B) the exercise price of each outstanding Option; provided,
however, that the Company shall not be required to
<PAGE>
issue fractional shares as a result of any such adjustment. Each such
adjustment shall be determined by the Administrator in its sole discretion,
which determination shall be final and binding on all persons.
6.1.2 Corporate Transactions. New option rights may be substituted for
the Options granted under this Plan, or the Company's obligations to
Options outstanding under this Plan may be assumed, by an employer
corporation other than the Company, or by a parent or subsidiary of such
employer corporation, in connection with any merger, consolidation,
acquisition, separation, reorganization, liquidation or like occurrence in
which the Company is involved, in such manner that the then outstanding
Options which are ISOs will continue to be "incentive stock options" within
the meaning of Section 422A of the Code to the full extent permitted
thereby. Notwithstanding the foregoing or the provisions of Section 6.1.1,
if such employer corporation, or parent or subsidiary of such employer
corporation, does not substitute new option rights for, and substantially
equivalent to, the Options granted hereunder, or assume the Options granted
hereunder, the Options shall terminate (A) upon dissolution or liquidation
of the Company, or similar occurrence, or (B) upon any merger,
consolidation, acquisition, separation, or similar occurrence, where the
Company will not in economic substance be the surviving corporation;
provided, however, that each optionee shall be mailed notice at least 15
days prior to such dissolution, liquidation, merger, consolidation,
acquisition, separation, or similar occurrence, and shall have at least 10
days after the mailing of such notice to exercise any unexpired option
rights granted hereunder. All Options are considered 100% vested in such
event.
6.1.3 Option Term. Each Option granted under this Plan shall expire
ten years from the date of its grant or such earlier date as may be set by
the Administrator on the date of its grant.
6.1.4 Time of Option Exercise. Subject to Section 6.3.3, Options shall
be exercisable in accordance with the terms of each eligible person's
Option, and shall be exercisable in whole or in part.
6.1.5 Option Grant Date. Except in the case of advance approvals
described in Section 5.4, the date of grant of an Option under this Plan
shall be the date as of which the Administrator approves the grant.
6.1.6 Nonassignability of Option Rights. No Option shall be assignable
or otherwise transferable by the optionee except by will or by the laws of
descent and distribution. During the life of the optionee, an Option shall
be exercisable only by the optionee or the optionee's guardian or legal
representative in the event of disability of the optionee. In the event of
voluntary termination of employment or disability, the optionee must offer
unexpired options to the Company under the terms of any shareholders'
agreement in force on the date of such event.
6.1.7 Payment. Payment in full, in cash, shall be made for all shares
purchased at the time written notice of exercise of an Option is given to
the Company, and proceeds of any payment shall constitute general funds of
the Company.
6.1.8 Termination of Employment. Option rights granted to an optionee
under this Plan, to the extent such rights have not then expired or been
exercised, shall terminate three months after the optionee ceases, for any
reason and with or without cause, to be an employee of the Company or any
Affiliate of the Company (in either case, "Employment Termination"), and
shall not be exercisable on or after said date. In no event, however, shall
any such option be exercisable after the specified expiration date of the
option term.
6.1.9 Other Provisions. Each Option may contain such other terms,
provisions, and conditions not inconsistent with this Plan as may be
determined by the Administrator, and each ISO granted under this Plan shall
include such provisions and conditions as are necessary to qualify the
Option as an "incentive stock option" within the meaning of Section 422A of
the Code.
6.2 Terms and Conditions to Which Only NQOs Are Subject. Options granted
under this Plan which are designated as NQOs or which become NQOs shall be
subject to the following terms and conditions:
6.2.1 Exercise Price. The exercise price of an NQO shall be determined
by the Administrator provided that in no event shall the exercise price per
share be less than the par value of a share.
<PAGE>
6.2.2 Withholding and Employment Taxes. At the time of exercise of an
NQO, the optionee shall remit to the Company in cash all applicable federal
and state withholding and employment taxes.
6.3 Terms and Conditions to Which Only ISOs Are Subject. Options granted
under this Plan which are designated as ISOs shall be subject to the following
terms and conditions:
6.3.1 Exercise Price. The exercise price of an ISO, which shall be
approved by the Board of Directors, shall be determined in accordance with
the applicable provisions of the Code and shall in no event be less than
the fair market value (determined as described in this Section 6.3.1) of
the shares covered by the ISO at the time the ISO is granted, except that
the exercise price of an ISO granted to any person who owns, directly or
indirectly (or is treated as owning by reason of attribution rules,
currently set forth in Code Section 425), shares of the Company
constituting more than ten percent of the total combined voting power of
the Company's outstanding shares, or the stock of any affiliate of the
Company, shall in no event be less than 110 percent of such fair market
value. In the absence of an established market for the shares; the fair
market value thereof shall be determined in good faith by the
Administrator, 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. If the shares in the Company is regularly quoted
by a recognized securities dealer, its fair market value shall be the mean
between the closing high bid and low asked quotations for the shares on the
date the ISO is granted (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) as quoted on the National Association of Securities Dealers
Automated Quotation System ("NASDAQ"), or any similar system of automated
dissemination of quotations of securities prices then in common use, as
reported in the Wall Street Journal or similar publication.
If the shares of the Company are listed on any established stock exchange,
its fair market value shall be the mean between the highest and lowest
selling price or the closing bid if no sale occurred, as quoted on such
exchange (or the largest such exchange) for the date the ISO is granted (or
if there are no sales for such date of grant, then for the last preceding
business day on which there were sales), as reported in the Wall Street
Journal or similar publication.
6.3.2 Expiration. Unless an earlier expiration date is specified by
the Administrator at the time of grant, each ISO granted under this Plan
shall expire ten years from the date of its grant, except that an ISO
granted to any person who owns, directly or indirectly (or is treated as
owning by reason of applicable attribution rules, currently set forth in
Code Section 425), shares of the Company constituting more than ten percent
of the total combined voting power of the Company's outstanding shares, or
the stock of any Affiliate of the Company, shall expire five years from the
date of its grant.
6.3.3 Disqualifying Dispositions. If shares acquired by exercise of an
ISO granted pursuant to this Plan is disposed of within two years from the
date of grant of the ISO or within one year after the transfer of the
shares to the optionee, the holder of the shares immediately prior to the
disposition shall promptly notify the Company in writing of the date and
terms of the disposition and shall provide such other information regarding
the disposition as the Company may require. Such holder shall pay to the
Company any withholding and employment taxes which the Company in its sole
discretion deems applicable to such disposition. Any disposition not in
accordance with this Section 6.3.3 shall be void and of no effect. The
Company may instruct its shares transfer agent by appropriate means,
including placement of legends or stock certificates, not to transfer
shares acquired by exercise of an ISO unless it has been advised by the
Company that the requirements of this Section 6.3.3 have been satisfied.
6.3.4 Withholding and Employment Taxes. At such time or times as the
Administrator determines, at or following the time of exercise of an ISO,
the optionee shall remit to the Company in cash all federal and state
withholding and employment taxes which the Administrator in its sole
discretion deems applicable to the exercise of an ISO or the disposition of
shares acquired by such exercise. The Administrator may, in the exercise of
the Administrator's sole discretion, permit an optionee to pay some or all
of such taxes by means of a promissory note on such terms as the
Administrator deems appropriate.
<PAGE>
7. Manner Of Exercise.
An optionee wishing to exercise an Option shall give written notice to the
Company at its principal executive office, accomplished by an executed stock
purchase agreement in form and substance satisfactory to the Company and by
payment of the exercise price as provided in Section 6.1.7. The date the Company
receives written notice of an exercise hereunder accomplished by payment of the
exercise price will be considered as the date such Option was exercised.
Promptly after receipt of written notice of exercise of an option, the Company
shall allot and issue the shares in respect of which the option is being
exercised and deliver to the optionee or such other person a certificate or
certificates for the requisite number of shares. An optionee shall not have any
privileges as shareholder with respect to any shares covered by the Option until
the date of allotment and issuance of the shares.
8. Employment Relationship.
Nothing in this Plan or any Option granted hereunder shall interfere with
or limit in any way the right of the Company or of any of its Affiliates to
terminate an optionee's employment or status as a director at any time, nor
confer upon any optionee any right to continue in the employ of, or as a
director of, the Company or any of its Affiliates.
9. Amendment, Suspension, Or Termination of This Plan.
The Board may at any time amend, alter, suspend, or discontinue this Plan,
except to the extent that shareholder approval is required by applicable law;
provided, however, no amendment, alteration, suspension, or discontinuation
shall be made that would impair the rights of any grantee under any Option
theretofore granted, without the grantee's consent. The Board shall have the
power to make such changes in this Plan and in the regulations and
administrative provisions hereunder or in any outstanding Option and in the
opinion of counsel for the Company may be necessary or appropriate from time to
time to enable any Option granted pursuant to this Plan to qualify as an
incentive stock option under Section 422A of the Code, subject in al events to
the consent of the holder of such Option. However, in the event of a change of
control of the voting shares or the sale of substantially all of the assets of
the Company, all Options issued under this Plan shall become immediately 100%
vested.
10. Indemnification of Administrator.
The Company shall indemnify each present and future member of the group
constituting the Administrator against, and each member of the group
constituting the Administrator shall be entitled without further act on his/her
part to indemnify 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 such person in connection with or arising out of
any action, suit, or proceeding to the full extent permitted by the laws of the
State of California and by the Bylaws of the Company.
11. Effective Date Of This Plan.
This Plan shall become effective upon adoption by the Board.
Exhibit 4.7
The KMOS Semi-Custom Designs, Inc.
1990 Non-Qualified Stock Option Plan
1. Purpose. The purpose of this Plan is to strengthen KMOS Semi-Custom
Designs, Inc. (the "Company"), by providing additional means of retaining and
attracting competent management personnel and key independent contractors, and
by providing to participating key employees and independent contractors added
incentive for high levels of performance and for unusual efforts to increase the
earnings of the Company. The Plan seeks to accomplish these purposes and results
by providing a means whereby such key persons may purchase shares of the Company
pursuant to options.
2. Administration. This Plan shall be administered by a committee (the
"Committee") consisting of members selected by, and serving at the pleasure of,
the Board of Directors of the Company (the "Board"). Any action of the Committee
with respect to the administration of the Plan shall be taken pursuant to a
majority vote, or to the written consent of a majority, of its members. Subject
to the express provisions of the Plan, the Committee shall have the authority to
construe and interpret the Plan, and to define the terms used therein, to
prescribe, amend, and rescind rules and regulations relating to the
administration of the Plan, and to make all other determinations necessary or
advisable for the administration of the Plan. The determinations of the
Committee on the foregoing matters shall be conclusive. Subject to the express
provisions of the Plan, the Committee shall determine from the eligible class
the individuals who shall receive options, and the terms and provisions of the
options (which need not be identical); provided, however, that all grants of
options shall be by the Board.
3. Participation. Key employees and independent contractors of the Company
or of any subsidiary corporation shall be eligible for selection to participate
in the Plan; provided, however, that members of the Committee shall not, while
members of the Committee, be eligible to receive the grant of options under the
Plan. In no event, however, may any independent contractor participate in the
Plan if such participation is (a) prohibited, or (b) restricted (either
absolutely or subject to various securities requirements, whether legal or
administrative, being complied with), in the jurisdiction in which such
independent contractor is resident under the relevant securities laws of that
jurisdiction. Provided Always That in the case of (b) above, the relevant
independent contractor's participation in the Plan may be effected at the
absolute discretion of the Committee if compliance with the relevant securities
requirements of the jurisdiction in which such independent contractor is
resident is not impractical (having regard to the nature of those requirements)
and would not involve undue expense. An individual who has been granted an
option may, if otherwise eligible, be granted an additional option or options if
the Board shall so determine.
4. Shares Subject to the Plan. Subject to adjustments as provided in
Section 11 hereof, the shares to be offered under the Plan shall be shares of
the Company's authorized but unissued ordinary shares (hereinafter called
"Shares") and the aggregate amount of stock to be delivered upon the exercise of
all options granted under the Plan shall not exceed Five Hundred Thousand Shares
(500,000), subject to adjustment as set forth in Section 11 of this Plan. If any
option granted hereunder shall expire or terminate for any reason without having
been fully exercised in full, the unpurchased shares subject thereto shall again
be available for the purposes of this Plan. Subject to the general limitations
contained in this Plan, the Board may make any adjustment in the exercise price,
the number of shares subject to, or the term of an option by cancellation of an
outstanding option and a subsequent regranting of an option, amendment, or
substitution, or regrant may have an exercise price which is higher or lower
than the prior option, provide for a greater or lesser number of shares subject
to the option, or a longer or shorter term than the prior option.
5. Option Price. The purchase price of Shares covered by each option shall
be determined by the Committee Provided That in no event shall the purchase
price per share be less than the par value of a share The purchase price of any
shares purchased shall be paid in full in cash or by check at the time of each
purchase.
<PAGE>
6. Option Period. Each option and all rights or obligations thereunder
shall expire on such date as the Committee or the Board shall determine, but not
later than the seventh (7th) anniversary of the date on which the option is
granted, and shall be subject to earlier termination as hereinafter provided.
7. Exercise of Options. Each person to whom an option is granted must
agree, at the request of the Company, to remain either (i) in the continuous
employ of the Company or a subsidiary or parent corporation or (ii) under
written or oral contract to perform services as an independent contractor for
the Company or a subsidiary or parent corporation, following the date of the
granting of the option for a period to be determined by the Committee and then
included in the specific Stock Option Agreement to be executed with each option
holder. Nothing contained in the Plan (or in any option granted pursuant to the
Plan) shall confer upon any employee or independent contractor any right to
continue in the employ of the Company or of any subsidiary or parent,
corporation or constitute any contract or agreement of employment or independent
contract or interfere in any way with the right of the Company or any subsidiary
or parent corporation to reduce such person's compensation from the rate in
existence at the time of the granting of an option or to terminate such person's
employment or other contractual relationship, but nothing contained herein or in
any option agreement shall affect any contractual rights of an employee or
independent contractor.
Each option shall become exercisable and the total number of shares subject
thereto shall be purchasable, in such installments, which need not be equal, as
the Committee shall determine; provided, however, that if the holder of an
option shall not in any given installment period purchase all of the shares that
such holder is entitled to purchase in such installment period, such holder's
right to purchase any shares not purchased in such installment period shall
continue until the expiration or sooner termination of such holder's option. No
option or installment thereof shall be exercisable except in respect of whole
shares, and fractional share interests shall be disregarded. No less than 10
shares may be purchased at one time unless the number purchased is at the time
the total number available for purchase under the option.
The option holder shall have the right to receive property at the time of
exercise of the option so long as the property is subject to inclusion in income
under Internal Revenue Code Section 83.
8. Nontransferability of Options. An option granted under this Plan shall,
by its terms, be non-transferable by the option holder other than by will or the
laws of descent and distribution, and shall be exercisable during his lifetime
only by the option holder.
9. Termination of Employment or Independent Contractor Relationship. If the
option holder ceases to be employed by or ceases to be an independent contractor
of the Company or any subsidiary or parent, because of discharge for cause, such
holder's option shall expire concurrently with such discharge for cause. The
term "cause" as used herein with respect to the discharge by the Company of any
option holder, shall mean failure by such option holder to perform in a
satisfactory manner such holder's duties as an employee or independent
contractor of the Company, as determined by the Board in its discretion, or
conduct on the part of such option holder which the Board, in good faith shall
determine would reflect to seriously upon the public reputation of the option
holder, if such conduct became publicly known, as to prejudice substantially the
Company's interests is such option holder were retained as an employee or
independent contractor of the Company or any subsidiary or parent. If the option
holder ceases to be employed by or ceases to be an independent contractor of the
Company or any subsidiary or parent, for any reason other than death or
discharge for cause, such holder's option shall, subject to earlier termination
pursuant to Section 6, expire as may be provided in the option.
10. Death of Employee. If any option holder dies while employed by or under
contract to the Company or any subsidiary or parent, or during the period
referred to in Section 9 hereof, such holder's option shall, subject to earlier
termination pursuant to Section 6, expire one year after the date of such death
(or after such shorter period as may be provided in the option), and during such
period after such death such option may, to the extent that installments, if
any, had accrued as of the date of the termination of such holder's employment,
be exercised by the
<PAGE>
person or persons to whom the option holder's rights under the option shall pass
by will or by the applicable laws of descent and distribution. In no event,
however, shall any such option be exercisable after the specified expiration
date of the option term.
11. Adjustments Upon Changes in Capitalization. If the outstanding shares
of the Company are increased, decreased, or changed into, or exchanged for a
different number or kind of shares or securities of the Company through
reorganization, merger, recapitalization, reclassification, stock split-up,
stock dividend, stock consolidation, or otherwise, an adjustment to the options
granted pursuant to this Plan shall either be made or not made, said
determination to be made by the Committee and included in the specific Stock
Option Agreement to be executed with each option holder.
Upon the dissolution or liquidation of the Company, or upon a
reorganization, merger, or consolidation of the Company with one or more
corporations as a result of which the Company is not the surviving corporation,
or upon a sale of substantially all the property of the Company to another
corporation, this Plan shall terminate, unless provision be made in connection
with such transaction for the assumption of options theretofore granted, or the
substitution for such options of new options covering the stock of a successor
employer corporation, or a parent or subsidiary thereof, with appropriate
adjustments as to number and kind of shares and prices.
12. Amendment and Termination. The Board may at any time suspend, amend, or
terminate this Plan and may, with the consent of an option holder, make such
modifications of the terms and conditions of such holder's option as it shall
deem advisable. No option may be granted during any suspension of the Plan or
after such termination. The amendment, suspension, or termination of the Plan
shall not, without the consent of the option holder, alter or impair any rights
or obligations under any option theretofore granted under this Plan.
13. Time for Granting of Options. The granting of an option pursuant to
this Plan shall take place at the time of the Committee's action, as described
in the second paragraph of Section 3 hereof; provided, however, that if the
appropriate resolutions of the Committee indicate that an option is to be
granted as of and at some future date, the date of grant shall be such future
date. In the event action by the Committee is taken by unanimous written consent
of its members, the action of the Committee shall be deemed to be at the time
the last member signs the consent.
14. Privileges of Share Ownership; Nodistributive Intent. The holder of an
option shall not be entitled to the privilege of share ownership as to any
shares not actually issued and delivered to him. Upon the exercise of an option
at a time when there is not in effect under the Securities Act of 1933 a
registration statement relating to the shares issuable upon exercise thereof and
available for delivery a prospectus meeting the requirements of Section 10(a)(3)
of said Act, the option holder shall represent and warrant in writing to the
Company that the shares purchased are not being acquired with a view to the
distribution thereof. No shares shall be issued upon the exercise of any option
unless and until any then applicable requirements of the Securities and Exchange
Commission, the California Commissioner of Corporations, or other regulatory
agencies having jurisdiction and of any exchanges upon which shares of the
Company may be listed shall have been fully complied with.
15. Effective Date of the Plan. This Plan shall be effective upon approval
thereof by the Board of Directors.
16. Termination. Unless previously terminated by the Board of Directors,
this Plan shall terminate at the close of business on October 1, 2000, and no
options shall be granted under it thereafter, but such termination shall not
affect any option theretofore granted.
Exhibit 5.1
[On the letterhead of Allen & Gledhill]
Flextronics International Ltd.
11 Ubi Road 1, #07-01/02,
Meiban Industrial Building,
Singapore 408723.
4th April, 2000
Dear Sirs,
Registration Statement on Form S-8 of
Flextronics International Ltd. (the "Company")
1. At your request, we have examined the Registration Statement on Form S-8
(the "Registration Statement") filed or to be filed by the Company with the
Securities and Exchange Commission on or about 4th April, 2000 in
connection with the registration under the Securities Act of 1933, as
amended, of:-
(a) an aggregate of 4,000,000 ordinary shares of S$0.01 each in the
capital of the Company ("Ordinary Shares") (the "1993 Option Shares")
subject to issuance by the Company upon the valid exercise of
subscription rights represented by outstanding share options granted
under 1993 Share Option Plan adopted by the Company (the "1993 Plan");
(b) an aggregate of 1,243,634 Ordinary Shares (the "1993 DII Option
Shares") subject to issuance by the Company upon the valid exercise of
subscription rights represented by outstanding share options granted
under The DII Group, Inc. 1993 Share Option Plan adopted by the
Company (the "1993 DII Plan");
(c) an aggregate of 3,885,239 Ordinary Shares (the "1994 DII Option
Shares") subject to issuance by the Company upon the valid exercise of
subscription rights represented by outstanding share options granted
under The DII Group, Inc. 1994 Stock Incentive Plan adopted by the
Company (the "1994 DII Plan");
(d) an aggregate of 106,222 Ordinary Shares (the "Orbit Option Shares")
subject to issuance by the Company upon the valid exercise of
subscription rights represented by outstanding share options granted
under the Orbit Semiconductor, Inc. 1994 Stock Incentive Plan adopted
by the Company (the "Orbit Plan"); and
(e) an aggregate of 5,957 Ordinary Shares (the "KMOS Option Shares")
subject to issuance by the Company upon the valid exercise of
subscription rights represented by outstanding share options granted
under the KMOS Semi-Custom Designs, Inc. 1989 Stock Option Plan
adopted by the Company (the "1989 KMOS Plan") and the KMOS Semi-Custom
Designs, Inc. 1990 Non-Qualified Stock Option Plan adopted by the
Company (the "1990 KMOS Plan");
(the 1993 Option Shares, the 1993 DII Option Shares, the 1994 DII Option
Shares, the Orbit Option Shares and the KMOS Option Shares are hereinafter
collectively referred to as the "Option Shares").
2. As your Singapore counsel, we have examined the proceedings taken by the
Company in connection with:-
<PAGE>
(a) the adoption of each of the 1993 Plan, the 1993 DII Plan, the 1994 DII
Plan, the Orbit Plan, the 1989 KMOS Plan and the 1990 KMOS Plan;
(b) the increase in the maximum number of Ordinary Shares authorised for
issuance under the 1993 Plan; and
(c) the allotment and issuance of new Ordinary Shares arising from the
exercise of the subscription/purchase rights represented by
outstanding share options granted under each of the 1993 Plan, the
1993 DII Plan, the 1994 DII Plan, the Orbit Plan, the 1989 KMOS Plan
and the 1990 KMOS Plan respectively (the "Company's Allotment
Procedures").
3. We have also made such other examinations of law and fact as we have
considered necessary in order to form a basis for the opinion hereafter
expressed.
4. Based on the foregoing and assuming that:-
(a) the total issued and paid-up share capital of the Company consequent
upon the issue of the Option Shares from time to time will not exceed
the authorised share capital of the Company at any time; and
(b) there shall be subsisting a valid authority given pursuant to Section
161 of the Singapore Companies Act, Chapter 50 in respect of the issue
of the Option Shares from time to time,
we are of the opinion that the Option Shares allotted and issued by the
Company (i) upon the exercise of the subscription rights represented by
outstanding share options granted under each of the 1993 Plan, the 1993 DII
Plan, the 1994 DII Plan, the Orbit Plan, the 1989 KMOS Plan and the 1990
KMOS Plan in accordance with their respective terms against full payment of
the applicable exercise price, (ii) pursuant to the Company's Allotment
Procedures, and (iii) represented by share certificates issued by the
Company in respect of such Option Shares, will be legally issued and
fully-paid.
5. We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to us, if any, in the
Registration Statement and any amendments thereto.
Yours faithfully,
/s/ Allen & Gledhill
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our report
for the year ended March 31, 1999 dated December 22, 1999 included in
Flextronics International Ltd.'s Form 8-K filed on December 23, 1999 and to all
references to our Firm included in this registration statement. Our report dated
April 21, 1999 included in Flextronics International Ltd.'s Form 10-K for the
year ended March 31, 1999 is no longer appropriate since restated financial
statements have been presented giving effect to a business combination accounted
for as a pooling-of-interests.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
San Jose, California
April 4, 2000
Exhibit 23.2
[LETTERHEAD OF MOORE STEPHENS]
Our Reference: 85/25725
3 April 2000
Flextronics International Limited
2241 Fortune Drive
San Jose
CA 95131
USA
FLEXTRONICS INTERNATIONAL LIMITED
FORM S-8
As independent public accountants, we hereby consent to the use of our reports
(and all references to our Firm) included in or made a part of this registration
statement.
/s/ Moore Stephens
Moore Stephens
