<PAGE>
As filed with the Securities and Exchange Commission on December 31, 1996
Registration No. 333-17593
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
-------------------------
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------
PREMIERE TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
Georgia 59-3074176
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3399 Peachtree Road, N.E., The Lenox Building, Suite 400, Atlanta, Georgia 30326
(404) 262-8400
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
PREMIERE TECHNOLOGIES, INC.
DIRECTOR STOCK PURCHASE WARRANTS
AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AND INCENTIVE OPTION AGREEMENTS
AMENDED AND RESTATED EMPLOYMENT AND INCENTIVE OPTION AGREEMENT
AMENDED AND RESTATED 1995 STOCK PLAN
-------------------------
Boland T. Jones
Chairman of the Board of Directors and President
Premiere Technologies, Inc.
3399 Peachtree Road, N.E.
The Lenox Building, Suite 400
Atlanta, Georgia 30326
(404) 262-8400
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
Jeffrey A. Allred, Esq.
Alston & Bird
1201 West Peachtree Street, N.E.
Atlanta, Georgia 30309-3424
(404) 881-7000
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 8. Exhibits.
--------
The Registrant amends its registration statement to add Exhibit No. 4.8
Premiere Technologies, Inc. Amended and Restated 1995 Stock Plan.
II-1
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this post-effective amendment to its registration statement to
be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Atlanta, State of Georgia, on December 31, 1996.
Premiere Technologies, Inc.
By: /s/ Boland T. Jones
------------------------------
Boland T. Jones
Chairman of the Board and
President
Pursuant to the requirements of the Securities Act of 1933, this post-
effective amendment to its registration statement has been signed by the
following persons in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Boland T. Jones Chairman of the Board and December 31, 1996
- --------------------------- President (principal
Boland T. Jones executive officer)
* Executive Vice President December 31, 1996
- --------------------------- and Director
D. Gregory Smith
/s/ Patrick G. Jones Senior Vice President of December 31, 1996
- --------------------------- Finance and Legal and
Patrick G. Jones Secretary (principal financial
and accounting officer)
* Director December 31, 1996
- ---------------------------
George W. Baker, Sr.
* Director December 31, 1996
- ---------------------------
Eduard J. Mayer
* Director December 31, 1996
- ---------------------------
Robert A. Jetmundsen
*By: /s/ Patrick G. Jones
-----------------------
Patrick G. Jones
Attorney-in-Fact
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<PAGE>
EXHIBIT INDEX
Exhibit
Number
------
4.8 Premiere Technologies, Inc. Amended and Restated 1995 Stock Plan.
<PAGE>
PREMIERE TECHNOLOGIES, INC.
AMENDED AND RESTATED 1995 STOCK PLAN
<PAGE>
PREMIERE TECHNOLOGIES, INC.
AMENDED AND RESTATED 1995 STOCK PLAN
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS............................. 1
ARTICLE II THE PLAN................................ 5
2.1 Name.................................... 5
2.2 Purpose................................. 5
2.3 Effective Date.......................... 5
ARTICLE III PARTICIPANTS............................ 5
ARTICLE IV ADMINISTRATION.......................... 6
4.1 Duties and Powers of the Committee...... 6
4.2 Interpretation; Rules................... 6
4.3 No Liability............................ 6
4.4 Majority Rule........................... 6
4.5 Company Assistance...................... 7
ARTICLE V SHARES OF STOCK SUBJECT TO PLAN......... 7
5.1 Limitations............................. 7
5.2 Antidilution............................ 8
ARTICLE VI OPTIONS................................. 9
6.1 Types of Options Granted................ 9
6.2 Option Grant and Agreement.............. 9
6.3 Optionee Limitations.................... 9
6.4 $100,000 Limitation..................... 10
6.5 Exercise Price.......................... 10
6.6 Exercise Period......................... 10
6.7 Option Exercise......................... 11
6.8 Reload Options.......................... 12
6.9 Nontransferability...................... 12
6.10 Termination of Employment or Service.... 12
6.11 Employment Rights....................... 13
6.12 Certain Successor Options............... 13
6.13 Effect of Change in Control............. 13
<PAGE>
ARTICLE VII RESTRICTED STOCK........................ 13
7.1 Awards of Restricted Stock.............. 13
7.2 Nontransferability...................... 14
7.3 Lapse of Restrictions................... 14
7.4 Termination of Employment............... 14
7.5 Treatment of Dividends.................. 14
7.6 Delivery of Shares...................... 14
ARTICLE VIII STOCK APPRECIATION RIGHTS............... 14
8.1 SAR Awards.............................. 14
8.2 Determination of Price.................. 15
8.3 Exercise of a SAR....................... 15
8.4 Payment for a SAR....................... 15
8.5 Status of SAR Shares.................... 15
8.6 Termination of SARs..................... 15
8.7 No Shareholder Rights................... 16
ARTICLE IX STOCK CERTIFICATES...................... 16
ARTICLE X TERMINATION AND AMENDMENT............... 17
10.1 Termination and Amendment............... 17
10.2 Effect on Grantee's Rights.............. 17
ARTICLE XI RELATIONSHIP TO OTHER COMPENSATION PLANS 17
ARTICLE XII MISCELLANEOUS........................... 17
12.1 Replacement or Amended Grants........... 17
12.2 Forfeiture for Competition.............. 18
12.3 Plan Binding on Successors.............. 19
12.4 Singular, Plural, Gender................ 18
12.5 Headings Not Part of Plan............... 18
12.6 Interpretation.......................... 18
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PREMIERE TECHNOLOGIES, INC.
AMENDED AND RESTATED 1995 STOCK PLAN
ARTICLE I
DEFINITIONS
As used herein, the following terms have the following meanings unless the
context clearly indicates to the contrary:
"Award" shall mean a grant of Restricted Stock or a SAR under this
-------
Plan.
"Board" shall mean the Board of Directors of the Company.
-------
"Cause" shall mean theft or destruction of property of the Company or
-------
any Subsidiary, disregard of the rules or policies of the Company or
any Subsidiary, or conduct evincing willful or wanton disregard of the
interests of the Company or any Subsidiary. Such determination shall
be made by the Committee based on information presented by the Company
and the Employee (if the Employee chooses to present information), and
shall be final and binding on the Company and the Employee.
"Change in Control" shall mean the occurrence of either of the
------------------
following events:
(a) A change in the composition of the Board as a result of which
fewer than one-half of the incumbent Directors are Directors who
either:
(i) were Directors of the Company twenty-four (24) months prior
to such change, or
(ii) were elected, or nominated for election, to the Board with
the affirmative votes of at least a majority of the
Directors who had been Directors of the Company twenty-four
(24) months prior to such change and who were still in
office at the time of the election or nomination; or
(b) Any "person" (as such term is used in Sections 13(d) and 14(d) of
the Exchange Act), other than any person who is a shareholder of
the Company on or before the effective date of this Plan, by the
acquisition or aggregation of securities is or becomes the
beneficial owner, directly or indirectly, of securities of the
Company representing fifty percent (50%) or more of the combined
voting power of the Company's then outstanding securities
ordinarily (and apart from rights accruing under special
circumstances) having the
<PAGE>
right to vote at elections of directors (the "Base Capital
Stock"); except that any change in the relative beneficial
ownership of the Company's securities by any person resulting
solely from a reduction in the aggregate number of outstanding
shares of Base Capital Stock shall be disregarded until such
person increases in any manner, directly or indirectly, such
person's beneficial ownership of any securities of the Company.
"Code" shall mean the Internal Revenue Code of 1986, including
------
effective date and transition rules (whether or not codified). Any
reference herein to a specific section of the Code shall be deemed to
include a reference to any corresponding provision of future law.
"Committee" shall mean a committee of at least two Directors appointed
-----------
from time to time by the Board, having the duties and authority set
forth herein in addition to any other authority granted by the Board;
provided, however, that (i) with respect to any Options or Awards
granted to an individual who is also a Section 16 Insider, the
Committee shall consist of at least two members of the Board (who need
not be members of the Committee with respect to Options or Awards
granted to any other individuals) who are Non-Employee Directors, and
(ii) with respect to any Options or Awards granted to an individual
who is also a Covered Employee, the Committee shall consist of at
least two members of the Board (who need not be members of the
Committee with respect to Options or Awards granted to any other
individuals) who are Outside Directors, and all authority and
discretion shall be exercised by such Non-Employee Directors or
Outside Directors, as the case may be. References herein to the
"Committee" shall mean such Employee Directors or Outside Directors
insofar as any actions or determinations of the Committee shall relate
to or affect Options or Awards made to or held by any Section 16
Insider or Covered Employee, as the case may be. At any time that the
Board shall not have appointed a committee as described above, any
reference herein to the Committee shall mean a reference to the Board.
"Company" shall mean Premiere Technologies, Inc., a Georgia
---------
corporation.
"Covered Employee" means an individual defined in Code Section
------------------
162(m)(3).
"Director" shall mean a member of the Board and any person who is an
----------
advisory or honorary director of the Company if such person is
considered a director for the purposes of Section 16 of the Exchange
Act, as determined by reference to such Section 16 and to the rules,
regulations, judicial decisions and interpretative or "no-action"
positions with respect
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<PAGE>
thereto of the Securities and Exchange Commission, as the same may be
in effect or set forth from time to time.
"Exchange Act" shall mean the Securities Exchange Act of 1934. Any
--------------
reference herein to a specific section of the Exchange Act shall be
deemed to include a reference to any corresponding provision of future
law.
"Exercise Price" shall mean the price at which an Optionee may
----------------
purchase a share of Stock under a Stock Option Agreement.
"Fair Market Value" on any date shall mean (i) the closing sales price
-------------------
of the Stock, regular way, on such date on the national securities
exchange having the greatest volume of trading in the Stock during the
thirty (30) day period preceding such date or, if such exchange was
not open for trading on such date, the next preceding date on which it
was open; (ii) if the Stock is not traded on any national securities
exchange, the average of the closing high bid and low asked prices of
the Stock on the over-the-counter market on the date such value is to
be determined, or in the absence of closing bids on such date, the
closing bids on the next preceding date on which there were bids; or
(iii) if the Stock also is not traded on the over-the-counter market,
the fair market value as determined in good faith by the Committee
based on such relevant facts as may be available, which may include
opinions of independent experts, the price at which recent sales of
Stock have been made, the book value of the Stock, and the Company's
past, current and future earnings.
"Grantee" shall mean a person who is an Optionee or a person who has
---------
received an Award of Restricted Stock or a SAR.
"Incentive Stock Option" shall mean an Option that complies with and
------------------------
is subject to the terms, limitations and conditions of Section 422 of
the Code and the regulations promulgated thereunder.
"Non-Employee Director" shall have the meaning assigned such term in
-----------------------
Rule 16b-3 promulgated under Section 16 of the Exchange Act.
"Officer" shall mean a person who constitutes an officer of the
---------
Company for the purposes of Section 16 of the Exchange Act, as
determined by reference to such Section 16 and to the rules,
regulations, judicial decisions, and interpretative or " no-action"
positions with respect thereto of the Securities and Exchange
Commission, as the same may be in effect or set forth from time to
time.
"Option" shall mean an option, including an Incentive Stock Option, to
--------
purchase Stock granted pursuant to the provisions of Article VI
hereof.
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<PAGE>
"Optionee" shall mean a person to whom an Option has been granted
----------
hereunder.
"Outside Director" shall have the meaning assigned such term in
------------------
Section 162 of the Code and the regulations promulgated thereunder.
"Permanent and Total Disability" shall have the meaning set forth in
--------------------------------
Code Section 22(e)(3) and the regulations promulgated thereunder.
"Plan" shall mean the Premiere Technologies, Inc. Amended and Restated
------
1995 Stock Plan, the terms of which are set forth herein.
"Purchasable" shall refer to Stock that may be purchased by an
-------------
Optionee under the terms of this Plan on or after a certain date
specified in the applicable Stock Option Agreement.
"Qualified Domestic Relations Order" shall have the meaning set forth
------------------------------------
in Code Section 414(p)(1)(A) and the regulations promulgated
thereunder.
"Reload Option" shall have the meaning set forth in Section 6.8
---------------
hereof.
"Restricted Stock" shall mean Stock issued to a Grantee pursuant to
------------------
Article VII hereof.
"Restriction Agreement" shall mean a written agreement setting forth
-----------------------
the terms of an Award of Restricted Stock, as provided in Section 7.1
hereof.
"SAR" means a stock appreciation right, which is the right to receive
-----
an amount equal to the appreciation, if any, in the Fair Market Value
of a share of Stock from the date of the grant of the right to the
date of its payment, as provided in Article VIII hereof.
"SAR Agreement" shall mean a written agreement setting forth the terms
---------------
of an Award of a SAR, as provided in Section 8.1 hereof.
"SAR Price" shall mean the base value established by the Committee for
-----------
a SAR on the date the SAR is granted and which is used in determining
the amount of benefit, if any, paid to a Grantee.
"Section 16 Insider" shall mean any person who is subject to the
--------------------
provisions of Section 16 of the Exchange Act, as provided in Rule 16a-
2 promulgated pursuant to the Exchange Act.
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<PAGE>
"Stock" shall mean the Common Stock, par value $.0l per share, of the
-------
Company or, in the event that the outstanding shares of Stock are
hereafter changed into or exchanged for shares of a different stock or
securities of the Company or some other entity, such other stock or
securities.
"Stock Option Agreement" shall mean a written agreement between the
------------------------
Company and an Optionee under which the Optionee may purchase Stock
hereunder, as provided in Article VI hereof.
"Subsidiary" shall mean any corporation, limited liability company,
------------
partnership or other entity in which the Company directly or
indirectly controls fifty percent (50%) or more of the total combined
voting power of such entity.
ARTICLE II
THE PLAN
2.1 Name. This Plan shall be known as the "Premiere Technologies, Inc.
----
Amended and Restated 1995 Stock Plan."
2.2 Purpose. The purpose of the Plan is to advance the interests of the
-------
Company, its Subsidiaries and its shareholders by affording certain employees of
the Company and its Subsidiaries, as well as key consultants and advisors to the
Company or any Subsidiary, an opportunity to acquire or increase their
proprietary interests in the Company. The objective of the Options and Awards
is to promote the growth and profitability of the Company and its Subsidiaries
by providing the Grantees with an additional incentive to achieve the Company's
objectives through participation in its success and growth and by encouraging
their continued association with or service to the Company and its Subsidiaries.
2.3 Effective Date. The effective date of this Plan is December 6, 1995,
--------------
as amended and restated effective as of September 12, 1996, subject to
shareholder approval of the amendments hereto no later than September 11, 1997.
ARTICLE III
PARTICIPANTS
The class of persons eligible to participate in this Plan shall consist of
all persons whose participation in the Plan the Committee determines to be in
the best interests of the Company which shall include, but not be limited to,
all employees of the Company or any Subsidiary, as well as directors, key
consultants and advisors to the Company or any Subsidiary.
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<PAGE>
ARTICLE IV
ADMINISTRATION
4.1 Duties and Powers of the Committee. This Plan shall be administered
----------------------------------
by the Committee. The Committee shall select one of its members as its Chairman
and shall hold its meetings at such times and places as it may determine. The
Committee shall keep minutes of its meetings and shall make such rules and
regulations for the conduct of its business as it may deem necessary. The
Committee shall have the power to act by unanimous written consent in lieu of a
meeting, and to meet telephonically. In administering this Plan, the
Committee's actions and determinations shall be binding on all interested
parties. The Committee shall have the power to grant Options or Awards in
accordance with the provisions of this Plan and may grant Options and Awards
singly, in combination, or in tandem. Subject to the provisions of this Plan,
the Committee shall have the discretion and authority to determine those persons
to whom Options or Awards will be granted and whether such Options will be
accompanied by the right to receive Reload Options, the number of shares of
Stock subject to each Option or Award, such other matters as are specified
herein, and any other terms and conditions of a Stock Option Agreement,
Restriction Agreement and SAR Agreement. The Committee shall also have the
discretion and authority to delegate to any Officer its powers to grant Options
or Awards under this Plan to any person who is an employee of the Company or any
Subsidiary but not an Officer or Director. To the extent not inconsistent with
the provisions of this Plan, the Committee may give a Grantee an election to
surrender an Option or Award in exchange for the grant of a new Option or Award,
and shall have the authority to amend or modify an outstanding Stock Option
Agreement, Restriction Agreement or SAR Agreement, or to waive any provision
thereof, provided that the Grantee consents to such action.
4.2 Interpretation; Rules. Subject to the express provisions of this
---------------------
Plan, the Committee shall have complete authority to interpret this Plan, to
prescribe, amend and rescind rules and regulations relating to it, to determine
the details and provisions of each Stock Option Agreement, Restriction Agreement
and SAR Agreement, and to make all other determinations necessary or advisable
for the administration of this Plan, including, without limitation, the amending
or altering of this Plan and any Options or Awards granted hereunder as may be
required to comply with or to conform to any federal, state or local laws or
regulations.
4.3 No Liability. Neither any Director nor any member of the Committee
------------
shall be liable to any person or entity for any act or determination made in
good faith with respect to this Plan or any Option or Award granted hereunder.
4.4 Majority Rule. A majority of the members of the Committee shall
-------------
constitute a quorum, and any action taken by a majority at a meeting at which a
quorum is present, or any action taken without a meeting evidenced by a writing
executed by all the members of the Committee, shall constitute the action of the
Committee.
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<PAGE>
4.5 Company Assistance. The Company shall supply full and timely
------------------
information to the Committee on all matters relating to eligible persons, their
employment, death, retirement, disability or other termination of employment,
and such other pertinent facts as the Committee may require. The Company shall
furnish the Committee with such clerical and other assistance as is necessary in
the performance of its duties.
ARTICLE V
SHARES OF STOCK SUBJECT TO PLAN
5.1 Limitations. Subject to any antidilution adjustment pursuant to the
-----------
provisions of Section 5.2, the maximum number of shares of Stock that may be
issued hereunder shall be one million five hundred thousand (1,500,000);
provided, that the stock dividend declared shortly prior to the Company's
initial public offering did not and shall not affect the maximum number of
shares of Stock that may be issued hereunder. Any or all shares of Stock
subject to the Plan may be issued in any combination of Incentive Stock Options,
non-Incentive Stock Options, Restricted Stock and SARs, and the amount of Stock
subject to the Plan may be increased from time to time in accordance with
Article X hereof. Notwithstanding any provision in the Plan to the contrary,
the maximum number of shares of Stock with respect to one or more Options and/or
SARs that may be granted during any one calendar year under the Plan to any one
Covered Employee shall be 200,000. The maximum fair market value of any
Restricted Stock Awards that may be received by a Covered Employee (less any
consideration paid by the participant for such Award) during any one calendar
year under the Plan shall be $2,000,000.
Shares subject to an Option or issued as an Award may be either authorized
and unissued shares or shares issued and later acquired by the Company. The
shares covered by any unexercised portion of an Option that has terminated for
any reason (except as set forth in the following paragraph), or any forfeited
portion of an Award, may again be optioned or Awarded under this Plan, and such
shares shall not be considered as having been optioned or issued in computing
the number of shares of Stock remaining available for Options or Awards
hereunder.
If Options are issued in respect of options to acquire stock of any entity
acquired, by merger or otherwise, by the Company or any Subsidiary, to the
extent that such issuance shall not be inconsistent with the terms, limitations
and conditions of Code Section 422 or Rule 16b-3 under the Exchange Act, the
aggregate number of shares of Stock for which Options may be granted hereunder
shall automatically be increased by the number of shares subject to the Options
so issued; provided, however, that the aggregate number of shares of Stock for
which Options may be granted hereunder shall automatically be decreased by the
number of shares covered by any unexercised portion of an Option so issued that
has terminated for any reason, and the shares subject to any such unexercised
portion may not be optioned to any other person.
-7-
<PAGE>
5.2 Antidilution.
------------
(a) If (i) the Outstanding shares of Stock are increased, decreased,
or changed into or exchanged for a different number or kind of shares or other
securities of the Company, by reason of merger, consolidation, reorganization,
recapitalization, reclassification, combination or exchange of shares, or stock
split or stock dividend (excluding the Stock dividend referred to in Section
5.1), (ii) any spin-off, split-off or other distribution of assets materially
affects the price of the Company's stock, or (iii) there is any assumption and
conversion to this Plan by the Company of an acquired company's outstanding
option grants, then:
(A) the aggregate number and kind of shares of Stock for which
Options or Awards may be granted hereunder shall be adjusted
appropriately by the Committee, and
(B) the rights of Optionees (concerning the number of shares
subject to Options and the Exercise Price) under outstanding Options
and the rights of the holders of Awards (concerning the terms and
conditions of the lapse of any then remaining restrictions), shall be
adjusted appropriately by the Committee.
(b) If the Company is a party to any reorganization in which it does
not survive, involving merger, consolidation, or acquisition of the stock or
substantially all the assets of the Company, the Committee, in its discretion,
may:
(i) notwithstanding other provisions hereof, declare that all
Options granted under this Plan shall become exercisable immediately
notwithstanding the provisions of the respective Stock Option
Agreements regarding exercisability, that all such Options shall
terminate thirty (30) days after the Committee gives written notice of
the immediate right to exercise all such Options and of the decision
to terminate all Options not exercised within such 30-day period, and
that all then-remaining restrictions pertaining to Awards under this
Plan shall immediately lapse; and/or
(ii) notify all Grantees that all Options and Awards granted
under this Plan shall be assumed by the successor corporation or
substituted on an equitable basis with options or restricted stock
issued by such successor corporation.
(c) If the Company is to be liquidated or dissolved in connection with
a reorganization described in Section 5.2(b), the provisions of that Section
shall apply. In all other instances, the adoption of a plan of dissolution or
liquidation of the Company shall, notwithstanding other provisions hereof, cause
all then-remaining restrictions pertaining to Options and Awards under the Plan
to lapse, and shall cause every Option
-8-
<PAGE>
outstanding under the Plan to terminate to the extent not exercised prior to the
adoption of the plan of dissolution or liquidation by the shareholders; provided
that, notwithstanding any other provisions hereof, the Committee may declare all
Options granted under the Plan to be exercisable at any time on or before the
fifth (5th) business day following such adoption, notwithstanding the provisions
of the respective Stock Option Agreements regarding exercisability.
(d) The adjustments described in paragraphs (a) through (c) of this
Section 5.2, and the manner of their application, shall be determined solely by
the Committee, and any such adjustment may provide for the elimination-of
fractional share interests; provided, however, that any adjustment made by the
Committee shall be made in a manner that will not cause an Incentive Stock
Option to be other than an Incentive Stock Option under applicable statutory and
regulatory provisions. The adjustments required under this Article V shall
apply to any successors of the Company and shall be made regardless of the
number or type of successive events requiring such adjustments.
ARTICLE VI
OPTIONS
6.1 Types of Options Granted. The Committee may, under this Plan, grant
------------------------
either Incentive Stock Options or Options which do not qualify as Incentive
Stock Options. Within the limitations provided in this Plan, both types of
Options may be granted to the same person at the same time, or at different
times, under different terms and conditions, as long as the terms and conditions
of each Option are consistent with the provisions of this Plan. Without
limitation of the foregoing, Options may be granted subject to conditions based
on the satisfaction of performance goals or any other factor the Committee deems
relevant.
6.2 Option Grant and Agreement. Each Option granted hereunder shall be
--------------------------
evidenced by minutes of a meeting or the written consent of the Committee and by
a written Stock Option Agreement executed by the Company and the Optionee. The
terms of the Option, including the Option's duration, time or times of exercise,
exercise price, whether the Option is intended to be an Incentive Stock Option,
and whether the Option is to be accompanied by the right to receive a Reload
Option, shall be stated in the Stock Option Agreement. No Incentive Stock
Option may be granted more than ten (10) years after the effective date of this
Plan. Separate Stock Option Agreements may be used for Options intended to be
Incentive Stock Options and those not so intended, but any failure to use such
separate agreements shall not invalidate, or otherwise adversely affect the
Optionee's interest in, the Options evidenced thereby.
6.3 Optionee Limitations. The Committee shall not grant an Incentive
--------------------
Stock Option to any person who, at the time the Incentive Stock Option is
granted:
(a) is not an employee of the Company or any of its Subsidiaries; or
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<PAGE>
(b) owns or is considered to own stock possessing at least ten percent
(10%) of the total combined voting power of all classes of stock of the
Company or any of its Subsidiaries; provided, however, that this limitation
shall not apply if at the time an Incentive Stock Option is granted the
Exercise Price is at least one hundred ten percent (110%) of the Fair
Market Value of the Stock subject to such Option and such Option by its
terms is not exercisable after five (5) years from the date on which the
Option is granted. For the purpose of this subsection (b), a person shall
be considered to own: (i) the stock owned, directly or indirectly, by or
for his or her brothers and sisters (whether by whole or half blood),
spouse, ancestors and lineal descendants; (ii) the stock owned, directly or
indirectly, by or for a corporation, partnership, estate or trust in
proportion to such person's stock interest, partnership interest or
beneficial interest therein; and (iii) the stock which such person may
purchase under any outstanding options of the Company or any Subsidiary.
6.4 $100,000 Limitation. Except as provided below, the Committee shall
-------------------
not grant an Incentive Stock Option to, or modify the exercise provisions of any
outstanding Incentive Stock Option held by, any person who, at the time the
Incentive Stock Option is granted (or modified), would thereby receive or hold
any Incentive Stock Options of the Company and any Subsidiary, such that the
aggregate Fair Market Value (determined as of the respective dates of grant or
modification of each Option) of the Stock with respect to which such Incentive
Stock Options are exercisable for the first time during any calendar year is in
excess of $100,000 (or such other limit as may be prescribed by the Code from
time to time); provided, that the foregoing restriction on modification of
outstanding Incentive Stock Options shall not preclude the Committee from
modifying an outstanding Incentive Stock Option if, as a result of such
modification and with the consent of the Optionee, such Option no longer
constitutes an Incentive Stock Option; and provided further that, if the
$100,000 limitation (or such other limitation prescribed by the Code) described
in this Section 6.4 is exceeded, the Incentive Stock Option, the granting or
modification of which resulted in the exceeding of such limit, shall be treated
as an Incentive Stock Option up to the limitation and the excess shall be
treated as an Option not qualifying as an Incentive Stock Option.
6.5 Exercise Price. The Exercise Price of the Stock subject to each
--------------
Option shall be determined by the Committee. Subject to the provisions of
Section 6.3(b) hereof, the Exercise Price of an Incentive Stock Option shall not
be less than the Fair Market Value of the Stock as of the date the Option is
granted (or in the case of an Incentive Stock Option that is subsequently
modified, on the date of such modification).
6.6 Exercise Period. The period for the exercise of each Option granted
---------------
hereunder shall be determined by the Committee, but the Stock Option Agreement
with respect to each Option intended to be an Incentive Stock Option shall
provide that such Option shall not be exercisable after the expiration of ten
(10) years from the date of grant (or modification) of the Option.
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6.7 Option Exercise.
---------------
(a) Unless otherwise provided in the Stock Option Agreement or Section
6.6 hereof, an Option may be exercised at any time or from time to time during
the term of the Option as to any or all full shares which have become
Purchasable under the provisions of the Option, but not at any time as to less
than one hundred (100) shares unless the remaining shares that have become so
Purchasable are less than one hundred (100) shares. The Committee shall have
the authority to prescribe in any Stock Option Agreement that the Option may be
exercised only in accordance with a vesting schedule during the term of the
Option.
(b) An Option shall be exercised by (i) delivery to the Company at its
principal office a written notice of exercise with respect to a specified number
of shares of Stock and (ii) payment to the Company at that office of the full
amount of the Exercise Price for such number of shares in accordance with
Section 6.7(c). If requested by an Optionee, an Option may be exercised with the
involvement of a stockbroker in accordance with the federal margin rules set
forth in Regulation T (in which case the certificates representing the
underlying shares will be delivered by the Company directly to the stockbroker).
(c) The Exercise Price is to be paid in full in cash upon the exercise
of the Option and the Company shall not be required to deliver certificates for
the shares purchased until such payment has been made; provided, however, the
Committee may provide in a Stock Option Agreement (or may otherwise determine in
Its sole discretion at the time of exercise) that in lieu of cash, all or any
portion of the Exercise Price may be paid by tendering to the Company shares of
Stock duly endorsed for transfer and owned by the Optionee, or by authorization
to the Company to withhold shares of Stock otherwise issuable upon exercise of
the Option, in each case to be credited against the Exercise Price at the Fair
Market Value of such shares on the date of exercise (however, no fractional
shares may be so transferred, and the Company shall not be obligated to make any
cash payments in consideration of any excess of the aggregate Fair Market Value
of shares transferred over the aggregate Exercise Price); provided further, the
Committee may provide in a Stock Option Agreement (or may otherwise determine in
its sole discretion at the time of exercise) that, in lieu of cash or shares,
all or a portion of the Exercise Price may be paid by the Optionee's execution
of a recourse note equal to the Exercise Price or relevant portion thereof,
subject to compliance with applicable state and federal laws, rules and
regulations.
(d) In addition to and at the time of payment of the Exercise Price,
the Company may withhold, or require the Optionee to pay to the Company in cash,
the amount of any federal, state and local income, employment or other
withholding taxes which the Committee determines are required to be withheld
under federal, state or local law in connection with the exercise of an Option;
provided, however, the Committee may provide in a Stock Option Agreement (or may
otherwise determine in its sole discretion at the time of exercise) that all or
any portion of such tax obligations may, upon the election
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of the Optionee, be paid by tendering to the Company whole shares of Stock duly
endorsed for transfer and owned by the Optionee, or by authorization to the
Company to withhold shares of Stock otherwise issuable upon exercise of the
Option, in either case in that number of shares having a Fair Market Value on
the date of exercise equal to the amount of such taxes thereby being paid.
(e) The holder of an Option shall not have any of the rights of a
shareholder with respect to the shares of Stock subject to the Option until such
shares have been issued and transferred to the Optionee upon the exercise of the
Option.
6.8 Reload Options.
--------------
(a) The Committee may specify in a Stock Option Agreement (or may
otherwise determine in its sole discretion) that a Reload Option shall be
granted, without further action of the Committee, (i) to an Optionee who
exercises an Option (including a Reload Option) by surrendering shares of Stock
in payment of amounts specified in Sections 6.7(c) or 6.7(d) hereof, (ii) for
the same number of shares as are surrendered to pay such amounts, (iii) as of
the date of such payment and at an Exercise Price equal to the Fair Market Value
of the Stock on such date, and (iv) otherwise on the same terms and conditions
as the Option whose exercise has occasioned such payment, except as provided
below and subject to such other contingencies, conditions, or other terms as the
Committee shall specify at the time such exercised Option is granted.
(b) Unless provided otherwise in the Stock Option Agreement, a Reload
Option may not be exercised by an Optionee (i) prior to the end of a one (1)
year period from the date that the Reload Option is granted, and (ii) unless the
Optionee retains beneficial ownership of the shares of Stock issued to such
Optionee upon exercise of the Option referred to above in Section 6.8(a)(i), for
a period of one (1) year from the date of such exercise.
6.9 Nontransferability. No Option shall be transferable by an Optionee
------------------
other than by will or the laws of descent and distribution or, in the case of
non-Incentive Stock Options, pursuant to a Qualified Domestic Relations Order.
During the lifetime of an Optionee, Options shall be exercisable only by such
Optionee (or by such Optionee's guardian or legal representative, should one be
appointed).
6.10 Termination of Employment or Service. The Committee shall have the
------------------------------------
power to specify, with respect to the Options granted to a particular Optionee,
the effect upon such Optionee's right to exercise an Option upon termination of
such Optionee's employment or service under various circumstances, which effect
may include immediate or deferred termination of such Optionee's rights under an
Option, or acceleration of the date at which an Option may be exercised in full;
provided, however, that in no event may an Incentive Stock Option be exercised
after the expiration of ten (10) years from the date of grant thereof.
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6.11 Employment Rights. Nothing in this Plan or in any Stock Option
-----------------
Agreement shall confer on any person any right to continue in the employ of the
Company or any of its Subsidiaries, or shall interfere in any way with the right
of the Company or any of its Subsidiaries to terminate such person's employment
at any time.
6.12 Certain Successor Options. To the extent not inconsistent with the
-------------------------
terms, limitations and conditions of Code Section 422 and any regulations
promulgated thereunder, an Option issued in respect of an option held by an
employee to acquire stock of any entity acquired, by merger or otherwise, by the
Company or any Subsidiary, may contain terms that differ from those stated in
this Article VI, but solely to the extent necessary to preserve for any such
employee the rights and benefits contained in such predecessor option, or to
satisfy the requirements of Code Section 424(a).
6.13 Effect of Change in Control. The Committee may determine, at the time
---------------------------
of granting an Option or thereafter, that such Option shall become exercisable
on an accelerated basis in the event that a Change in Control occurs with
respect to the Company (and the Committee shall have the discretion to modify
the definition of Change in Control in a particular Option Agreement). If the
Committee finds that there is a reasonable possibility that, within the
succeeding six (6) months, a Change in Control will occur with respect to the
Company, then the Committee may determine that all outstanding Options shall be
exercisable on an accelerated basis.
ARTICLE VII
RESTRICTED STOCK
7.1 Awards of Restricted Stock. The Committee may grant Awards of
--------------------------
Restricted Stock, which shall be governed by a Restriction Agreement between the
Company and the Grantee. Each Restriction Agreement shall contain such
restrictions, terms and conditions (including, without limitation, the
satisfaction of stated performance goals) as the Committee may, in its
discretion, determine, and may require that an appropriate legend be placed on
the certificates evidencing the subject Restricted Stock. Shares of Restricted
Stock granted pursuant to an Award hereunder shall be issued in the name of the
Grantee as soon as reasonably practicable after the Award is granted, provided
that the Grantee has executed the Restriction Agreement governing the Award, the
appropriate blank stock powers and, in the discretion of the Committee, an
escrow agreement and any other documents which the Committee may require as a
condition to the issuance of such Shares. If a Grantee shall fail to execute
the foregoing documents within the time period prescribed by the Committee, if
any, the Award shall be void. At the discretion of the Committee, Shares issued
in connection with an Award shall be deposited together with the stock powers
with an escrow agent designated by the Committee. Unless the Committee
determines otherwise and as set forth in the Restriction Agreement, upon
delivery of the Shares to the escrow agent, the Grantee shall have all of the
rights of a shareholder with respect to such Shares, including the night to vote
the Shares and to receive all dividends or other distributions paid or made with
respect to the Shares.
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<PAGE>
7.2 Nontransferability. Until any restrictions upon Restricted Stock
------------------
awarded to a Grantee shall have lapsed in a manner set forth in Section 7.3,
such shares of Restricted Stock shall not be transferable other than by will or
the laws of descent and distribution, or pursuant to a Qualified Domestic
Relations Order, nor shall they be delivered to the Grantee.
7.3 Lapse of Restrictions. Restrictions upon Restricted Stock awarded
---------------------
hereunder shall lapse at such time or times and on such terms and conditions as
the Committee may, in its discretion, determine at the time the Award is granted
or thereafter.
7.4 Termination of Employment. The Committee shall have the power to
-------------------------
specify, with respect to each Award granted to any particular Grantee, the
effect upon such Grantee's rights with respect to such Restricted Stock of the
termination of such Grantee's employment under various circumstances, which
effect may include immediate or deferred forfeiture of such Restricted Stock or
acceleration of the date on which any then remaining restrictions shall lapse.
7.5 Treatment of Dividends. At the time an Award of Restricted Stock is
----------------------
made the Committee may, in its discretion, determine that the payment to the
Grantee of any dividends, or a specified portion thereof, declared or paid on
such Restricted Stock shall be (a) deferred until the lapsing of the relevant
restrictions and (b) held by the Company for the account of the Grantee until
such lapsing. In the event of such deferral, there shall be credited at the end
of each year (or portion thereof) interest on the amount of the account
outstanding during such year at a rate per annum determined by the Committee.
Payment of deferred dividends, together with interest thereon, shall be made
upon the lapsing of restrictions imposed on such Restricted Stock, and any
dividends deferred (together with any interest thereon) in respect of Restricted
Stock shall be forfeited upon any forfeiture of such Restricted Stock.
7.6 Delivery of Shares. Except as provided otherwise in Article IX below,
------------------
within a reasonable period of time following the lapse of the restrictions on
shares of Restricted Stock, the Committee shall cause a stock certificate to be
delivered to the Grantee with respect to such shares and such shares shall be
free of all restrictions hereunder.
ARTICLE VIII
STOCK APPRECIATION RIGHTS
8.1 SAR Awards. The Committee may grant Awards of SARs, which shall be
----------
governed by a SAR Agreement between the Company and the Grantee. Each SAR
Agreement shall contain such restrictions, terms and conditions (including,
without limitation, the satisfaction of stated performance goals) as the
Committee may, in its discretion, determine.
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<PAGE>
8.2 Determination of Price. The SAR Price shall be established by the
----------------------
Committee in its sole discretion. The SAR Price shall not be less than one
hundred percent (100%) of the Fair Market Value of the Stock on the date the SAR
is granted for a SAR issued in tandem with an Incentive Stock Option.
8.3 Exercise of a SAR. Upon exercise of a SAR, the Grantee shall be
-----------------
entitled, subject to the terms and conditions of this Plan and the SAR
Agreement, to receive for each share of Stock being exercised under the SAR, the
excess of (a) the Fair Market Value of such share of Stock on the date of
exercise over (b) the SAR Price for such share of Stock.
8.4 Payment for a SAR. At the sole discretion of the Committee, the
-----------------
payment of such excess shall be made in (a) cash, (b) shares of Stock, or (c) a
combination of both. Shares of Stock used for this payment shall be valued at
their Fair Market Value on the date of exercise of the applicable SAR.
8.5 Status of SAR Shares. Shares of Stock subject to an Award of a SAR
--------------------
shall be considered shares of Stock which may be issued under this Plan for
purposes of Section 5.1 hereof, unless the SAR Agreement making the Award of the
SAR provides that the exercise of such SAR results in the termination of an
unexercised Option for the same number of shares of Stock.
8.6 Termination of SARs. A SAR may be terminated as follows:
-------------------
(a) During the period of a Grantee's continuous employment with the
Company or a Subsidiary, a SAR will be terminated only if it has been fully
exercised or it has expired by its terms.
(b) Upon termination of a Grantee's employment with the Company or a
Subsidiary, the SAR will terminate upon the earliest of (1) the full
exercise of the SAR, (ii) the expiration of the SAR by its terms, and (iii)
not more than three (3) months following the date of employment
termination; provided, however, should termination of employment (A) result
from the death or Permanent and Total Disability of the Grantee, the period
referenced in clause (iii) hereof shall be one (1) year, or (B) be for
Cause, the SAR will terminate on the date of employment termination. For
purposes of this Plan, a leave of absence approved by the Company shall not
be deemed to be termination of employment unless otherwise provided in the
SAR Agreement or by the Company on the date of the leave of absence.
(c) Subject to the terms of the SAR Agreement with the Grantee, if a
Grantee should die or become Subject to a Permanent and Total Disability
prior to the termination of employment with the Company or any Subsidiary
and prior to the termination of a SAR, such SAR may be exercised to the
extent that the Grantee shall have been entitled to exercise it at the time
of death or Permanent
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<PAGE>
and Total Disability, as the case may be, by the Grantee, the estate of the
Grantee or the person or persons to whom the SAR shall have been
transferred by will or by the laws of descent and distribution.
(d) Except as otherwise expressly provided in the SAR Agreement with
the Grantee, in no event will the continuation of the term of a SAR beyond
the date of termination of employment allow the Employee, or his
beneficiaries or heirs, to accrue additional rights under this Plan, have
additional SARs available for exercise, or receive a higher benefit than
the benefit payable as if the SAR had been exercised on the date of
employment termination.
8.7 No Shareholder Rights. The Grantee of a SAR shall have no rights as a
---------------------
shareholder with respect to such SAR. In addition, no adjustment shall be made
for dividends (ordinary or extraordinary, whether in cash, securities or other
property) or distributions or fights except as provided in Section 5.2 hereof.
ARTICLE IX
STOCK CERTIFICATES
The Company shall not be required to issue or deliver any certificate for
shares of Stock purchased upon the exercise of any Option granted hereunder or
any portion thereof, or deliver any certificate for shares of Restricted Stock
granted hereunder, prior to fulfillment of all of the following conditions:
(a) the admission Of Such shares to listing on all stock exchanges on
which the Stock is then listed;
(b) the completion of any registration or other qualification of such
shares which the Committee shall deem necessary or advisable under any
federal or state law or under the rulings or regulations of the Securities
and Exchange Commission or any other governmental regulatory body;
(c) the obtaining of any approval or other clearance from any federal
or state governmental agency or body which the Committee shall determine to
be necessary or advisable; and
(d) the lapse of such reasonable period of time following the exercise
of the Option as the Board from time to time may establish for reasons of
administrative convenience.
Stock certificates issued and delivered to Grantees shall bear such
restrictive legends as the Company shall deem necessary or advisable pursuant to
applicable federal and state securities laws.
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ARTICLE X
TERMINATION AND AMENDMENT
10.1 Termination and Amendment. The Board at any time may amend or
-------------------------
terminate the Plan without shareholder approval; provided, however, that the
Board may condition any amendment on the approval of shareholders of the Company
if such approval is necessary or advisable with respect to tax, securities or
other applicable laws.
10.2 Effect on Grantee's Rights. No termination, amendment or modification
--------------------------
of this Plan shall adversely affect a Grantee's rights under a Stock Option
Agreement, Restriction Agreement or SAR Agreement without the consent of the
Grantee or his legal representative.
ARTICLE XI
RELATIONSHIP TO OTHER COMPENSATION PLANS
The adoption of this Plan shall not affect any other stock option,
incentive or other compensation plans in effect for the Company or any of its
Subsidiaries; nor shall the adoption of the Plan preclude the Company or any of
its Subsidiaries from establishing any other form of incentive or other
compensation plan for employees or Directors of the Company or any of its
Subsidiaries.
ARTICLE XII
MISCELLANEOUS
12.1. Performance Goals. The Committee may determine that any Award
-----------------
granted pursuant to this Plan to a participant (including, but not limited to,
participants who are Covered Employees) shall be determined solely on the basis
of (a) the achievement by the Company or a Subsidiary of a specified target
return on equity or assets, (b) the Company's or Subsidiary's stock price, (c)
the achievement by the Company or a business unit of the Company or Subsidiary
of a specified target net income or earnings per share, including without
limitation earnings before income and taxes, or (d) any combination of the goals
set forth in (a) through (c) above. Furthermore, the Committee reserves the
right for any reason to reduce (but not increase) any Award, notwithstanding the
achievement of a specified goal. If an Award is made on such basis, the
Committee shall establish goals prior to the beginning of the period for which
such performance goal relates (or such later date as may be permitted under Code
Section 162(m)). Any payment of an Award granted with performance goals shall
be conditioned on the written certification of the Committee in each case that
the performance goals and any other material conditions were satisfied.
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12.2 Replacement or Amended Grants. At the sole discretion of the
-----------------------------
Committee, and subject to the terms of this Plan, the Committee may modify
outstanding Options or Awards or accept the surrender of outstanding Options or
Awards and grant new Options or Awards in substitution thereof. However, no
modification of an Option or Award shall adversely affect a Grantee's rights
under a Stock Option Agreement, Restriction Agreement or SAR Agreement without
the consent of the Grantee or his legal representative.
12.3 Forfeiture for Competition. If a Grantee provides services to a
--------------------------
competitor of the Company or any of its Subsidiaries, whether as an employee,
officer, director, independent contractor, consultant, agent or otherwise, which
services are of a nature that can reasonably be expected to involve the skills
and experience used or developed by the Grantee while an employee, consultant or
advisor of the Company or any Subsidiary, then that Grantee's rights under any
Options outstanding hereunder shall be forfeited and terminated, and any shares
of Restricted Stock held by such Grantee subject to remaining restrictions shall
be forfeited, subject in each case to a determination to the contrary by the
Committee.
12.4 Plan Binding on Successors. This Plan shall be binding upon the
--------------------------
successors and assigns of the Company.
12.5 Singular, Plural, Gender. Whenever used herein, nouns in the
------------------------
singular shall include the plural, and the masculine pronoun shall include the
feminine gender and vice versa.
12.6 Headings Not Part of Plan. Headings of Articles and Sections hereof
-------------------------
are inserted for convenience and reference, and they do not constitute part of
this Plan.
12.7 Interpretation. With respect to Section 16 Insiders, transactions
--------------
under this Plan are intended to comply with all applicable conditions of Rule
16b-3 or its successors under the Exchange Act, and shall be interpreted
consistent therewith.
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