SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
FORM 8K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report ( Date of Earliest Event Reported ) August 21, 1997
CELERITY SOLUTIONS, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 0-20102 52-1283993
(State of Jurisdiction) (Commission File Number) (IRS Employer ID No.)
200 Baker Avenue, Suite 300
Concord, MA 01742
(Address of Principle Executive Offices) (Zip Code)
Registrant's Telephone Number, Including Area Code (978) 287-5888
CAPITOL MULTIMEDIA, INC.
Former Name or Former Address, if Changed Since Last Report
<PAGE>
Item 5: Other Events
On August 21, 1997 registrant held its 1997 Annual Meeting of Stockholders at
the Company's corporate offices located at 200 Baker Avenue, Suite 300, Concord,
Massachusetts. The following voting matters were approved at the meeting:
Against/ Broker
For Withheld Abstain Non-Vote
--- -------- ------- --------
1. Election of seven persons to
the Board of Directors to hold
office until the next Annual
Meeting or until their
successors have been elected
and qualified or their earlier
resignation or removal:
Robert Donaldson 4,605,851 35,687 -- --
Luda Kopeikina 4,606,613 34,925 -- --
Nico B.M. Letschert 4,606,613 34,925 -- --
Igor Razboff 4,606,613 34,925 -- --
Philip Redmond 4,606,613 34,925 -- --
Richard Santagati 4,606,613 34,925 -- --
Alan White 4,606,613 34,925 -- --
2. Ratification and approval of
an Amendment to the Company's
Amended and Restated 1992
Non-Qualified Stock Option
Plan for Non-Employee
Directors to increase the
number of authorized shares of
the Company's common stock
issuable under the Director
Plan from 300,000 to 600,000.
2,520,854 209,781 54,765 1,856,138
3. Ratification and approval of
an Amendment to the Company's
Amended and Restated 1991
Non-Qualified Employee Stock
Option Plan increasing the
number of shares issuable
under the Employee Plan from
1,500,000 to 3,000,000.
2,379,114 209,681 106,487 1,946,256
4. Ratification and approval of
an Amendment to Article 1 of
the Company's Certificate of
Incorporation to change the
Company's name to "Celerity
Solutions, Inc.
4,598,059 23,985 19,494 --
Item 7. Financial Statements and Exhibits
(c.) Exhibits:
3.1 Certificate of Incorporation, as amended on August 22, 1997.
4.5 Amended and Restated 1991 Non-Qualified Celerity Solutions, Inc.
Employee Stock Option Plan.
4.6 Amended and Restated 1992 Non-Qualified Celerity Solutions, Inc. Stock
Option Plan for Non-Employee Directors.
2
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
CELERITY SOLUTIONS, INC.
------------------------
(Registrant)
Date: September 5, 1997 By: /s/ Edward Terino
-------------------------- -----------------
Edward Terino
Chief Financial Officer,
Treasurer, Secretary
EXHIBIT INDEX
Number Description of Exhibits Page
- ------ ----------------------- ----
----------------------------------------------------------------
3.1 Certificate of Incorporation as amended on August 22, 1997 4
----------------------------------------------------------------
4.5 Amended and Restated 1991 Non-Qualified Celerity Solutions, Inc.
Employee Stock Option Plan 12
----------------------------------------------------------------
4.6 Amended and Restate 1992 Non-Qualified Celerity Solutions, Inc. 24
Stock Option Plan for Non-Employee Directors
----------------------------------------------------------------
3
EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
CAPITAL VIDEO COMMUNICATIONS, INC.
The undersigned, a natural person, for the purpose of organizing a
corporation for conducting the business and subject to the requirements of the
laws of the State of Delaware (particularly Chapter 1, Title 9 of the Delaware
Code and the acts amendatory thereof and supplemental thereto, and know,
identified and referred to as the "General Corporation Law of the State of
Delaware"), hereby certifies that:
FIRST: The nature of the corporation (hereinafter called the "corporation")
is
CAPITAL VIDEO COMMUNICATIONS, INC.
SECOND: The address, including street, number, city, and county, of the
registered office of the corporation in the State of Delaware is 229 South State
Street, City of Dover, County of Kent, and the name of the registered agent of
the corporation in the State of Delaware at such address is The Prentice-Hall
Corporation System, Inc.
THIRD: The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
FOURTH: The total number of shares of stock which the corporation shall
have authority to issue is Five Million (5,000,000). The par value of each of
such shares is Ten Cents ($.10). All such shares are of one class and are shares
of Common Stock.
FIFTH: The name and the mailing address of the incorporator are as follows:
Name Mailing Address
R. G. Dickerson 229 South State Street, Dover, Delaware
SIXTH: The corporation is to have perpetual existence.
SEVENTH: Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this corporation under
the provisions of section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this corporation under the provisions of section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this corporation, as the case may be,
and also on this corporation.
EIGHTH: For the management of the business and for the conduct of the
affairs of the corporation, and in further definition, limitation and regulation
of the powers of the corporation and
4
<PAGE>
of its directors and of its stockholders or any class thereof, as the case may
be, it is further provided:
1. The management of the business and the conduct of the affairs of the
corporation shall be vested in its Board of Directors. The number of
directors which shall constitute the whole Board of Directors shall be
fixed by, or in the manner provided in, the By-Laws. The phrase "whole
Board" and the phrase "total number of directors" shall be deemed to
have the same meaning, to it, the total number of directors which the
corporation would have if there were no vacancies. No election of
directors need be by written ballot.
2. After the original or other By-Laws of the corporation have been
adopted, amended, or repealed, as the case may be, in accordance with
the provisions of Section 109 of the General Corporation Law of the
State of Delaware, and, after the corporation has received any payment
for any of its stock, the power to adopt, amend or repeal the By-Laws
of the corporation may be exercised by the Board of Directors of the
corporation provided, however, that any provision for the
classification of directors of the corporation for staggered terms
pursuant to the provisions of subsection (d) of Section 141 of the
General Corporation Law of the State of Delaware shall be set forth in
an initial By-Law or in a By-Law adopted by the stockholders entitled
to vote of the corporation unless provisions for such classification
shall be set forth in this certificate of incorporation.
3. Whenever the corporation shall be authorized to issue only one class
of stock, such outstanding share shall entitle the holder thereof to
notice of, and the right to vote at, any meeting of stockholders.
Whenever the corporation shall be authorized to issue more than one
class of stock, no outstanding share of any class of stock which is
denied voting power under the provisions of the certificate of
incorporation shall entitle the holder thereof to the right to vote at
any meeting of stockholders except as the provisions of paragraph (c)
(2) of section 242 of the General Corporation Law of the State of
Delaware shall otherwise require; provided, that no share of any such
class which is otherwise denied voting power shall entitle the holder
thereof to vote upon the increase or decrease in the number of
authorized shares of said class.
NINTH: The corporation shall, to the fullest extent permitted by Section
145 of the General Corporation Law of the State of Delaware, as the same may be
amended and supplemented, indemnify any and all persons whom it shall have power
to indemnify under said section from and against any and all of the expenses,
liabilities or other matters referred to in or covered by said sections, and the
indemnification provided for herein shall not be deemed exclusive of any other
rights to which those indemnified may be entitled under By-Law, agreement, vote
of stockholders or disinterested directors or otherwise, both as to action in
his official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
TENTH: From time to time any of the provisions of this certificate of
incorporation may be amended, altered or repealed, and other provisions
authorized by the laws of the State of Delaware at the time in force may be
added or inserted in the manner and at the time prescribed by said laws, and all
rights at any time conferred upon the stockholders of the corporation by this
certificate of incorporation are granted subject to the provisions of this
Article TENTH.
Signed on June 28, 1982.
/s/ R. G. Dickerson R. G. Dickerson
- -------------------
Incorporator
5
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
CAPITAL VIDEO COMMUNICATIONS, INC.
It is hereby certified that:
1. The name of the corporation (hereinafter called the "Corporation) is
CAPITAL VIDEO COMMUNICATIONS, INC.
2. The Certificate of Incorporation of the Corporation is hereby amended by
striking out Article First thereof and by substituting in lieu of said
Article the following new Article:
"First: The name of the corporation (hereinafter called the "corporation")
is CAPITOL VIDEO COMMUNICATIONS, INC.
3. The amendment of the Certificate of Incorporation herein certified has been
duly adopted in accordance with the provisions of Section 228 and 242 of
the General Corporation Law of the State of Delaware. Written notice of the
adoption of the amendment herein certified has been given to those
stockholders who have not consented in writing thereto, as provided in
Section 228 of the General Corporation Law of the State of Delaware.
Signed and attested to on November 29, 1983.
/s/ Douglas A. Weiss
- --------------------
Douglas A. Weiss
President
Attest:
/s/ Robert I. Bogin
- -------------------
Robert I. Bogin
Secretary
6
<PAGE>
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION OF
CAPITOL VIDEO COMMUNICATIONS, INC.
Capitol Video Communications, Inc., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of the Corporation adopted a resolution
at a meeting of the Board of Directors in November 1988, proposing and declaring
advisable amending and restating the first sentence of Article FOURTH to
increase the number of shares authorized so that the Article FOURTH shall be
amended to read as follows:
"FOURTH: The total number of shares which the Corporation shall have the
authority to issue is Six Million (6,000,000) with a par value of Ten Cents
($.10) each, amounting to Six Hundred Thousand Dollars ($600,000.00).
SECOND: That said amendment to the Certificate of Incorporation has been
consented to and authorized by the holders of a majority of the issued and
outstanding stock entitled to vote at the Annual Meeting of the Shareholders
held on November 17, 1989, after waiving notice required for such vote.
THIRD: That said amendment to the Certificate of Incorporation of the
Corporation had been duly adopted in accordance with the applicable provisions
of Section 141, 228 and 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said Corporation has caused its corporate seal to be
affixed and this Certificate to be signed by the officers whose respective names
and offices appear below, this 20th day of February, 1990.
CAPITOL VIDEO COMMUNICATIONS, INC.
BY: /s/ Robert I. Bogin
-------------------
Robert I. Bogin
Secretary / Executive Vice President
ATTEST:
BY: /s/ Zee Jacobs
--------------
Zee Jacobs
Assistant Secretary
7
<PAGE>
CERTIFICATE OF AMENDMENT
TO THE CERTIFICATE OF INCORPORATION OF
CAPITOL VIDEO COMMUNICATIONS, INC.
Capitol Video Communications, Inc., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation") DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of the Corporation ratified and adopted
a resolution at a meeting of the Board of Directors on December 3, 1991,
proposing and declaring advisable amending and restating Article FIRST to change
the name of the Corporation so that Article FIRST shall read as follows:
"FIRST: The name of the corporation (hereinafter called the "corporation")
is
CAPITOL MULTIMEDIA, INC."
SECOND: That the Board of Directors of the Corporation ratified and adopted
a resolution at a meeting of the Board of Directors on December 3, 1991,
proposing and declaring advisable amending and restating Article FOURTH
(previously amended on February 20, 1990 to increase the number of authorized
shares) to increase the number of shares authorized and to provide for a reverse
stock split so that Article FOURTH shall read as follows:
"FOURTH: The total number of shares which the Corporation shall have the
authority to issue is Ten Million (10,000,000). The Par Value of each such
shares in Ten Cents ($.10). All such shares are of one class and are shares of
Common Stock. The shares of Common Stock of the Corporation issued and
outstanding immediately prior to the time this amendment becomes effective,
shall be and are hereby automatically reclassified and changed (without further
act) into 2,160,000 fully paid and non-assessable shares of the Common stock of
the Corporation without increasing or decreasing the amount of state capital or
paid-in surplus of the Corporation."
THIRD: That the Board of Directors of the Corporation ratified and adopted
a resolution at a meeting of the Board of Directors on December 3, 1991,
proposing and declaring advisable amending and restating Article EIGHTH to limit
the personal liability of directors to the fullest extent allowed by law so that
Article EIGHTH shall read as follows:
"4. A director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director except (I) for any breach of the director's duty of loyalty
to the corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any
transaction from which the director derived an improper personal benefit."
FOURTH: That said amendments to the Certificate of Incorporation have been
consented to and authorized by the holders of a majority of the issued and
outstanding stock entitled to vote at the annual meetings of shareholders held
on November 17, 1989, and December 3, 1991.
FIFTH: That said amendments to the Certificate of Incorporation have been
duly adopted in accordance with the applicable provisions of Sections 141, 228
and 242 of the General Corporation Law of the State of Delaware.
8
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be affixed
and this Certificate to be signed by its President and attested by its
Secretary, whose respective names and offices appear below, this 31st day of
December, 1991.
CAPITOL VIDEO COMMUNICATIONS, INC.
BY: /s/ Robert I. Bogin
-------------------
Robert I. Bogin
President
ATTEST:
BY: /s/ Catherine K. Hoopes
-----------------------
Catherine K. Hoopes
Secretary and Chief Financial Officer
9
<PAGE>
CERTIFICATE OF AMENDMENT TO CERTIFICATE OF INCORPORATION
OF
CAPITOL MULTIMEDIA, INC.
Capitol Multimedia, Inc., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of the Corporation adopted a resolution at a
meeting of the Board of Directors on June 5, 1996, proposing and declaring
advisable amending and restating Article FOURTH (previously amended on December
31, 1991 to increase the number of authorized shares) to increase the number of
shares authorized so that Article FOURTH shall read as follows:
"FOURTH: The total number of shares of stock which the Corporation shall
have the authority to issue is Twenty Five Million (25,000,000). The par
value of each of such shares is Ten Cents ($.10). All such shares are of
one class and are shares of Common Stock.
SECOND: That said amendment to the Certificate of Incorporation has been
consented to and authorized by the holders of a majority of the issued and
outstanding stock entitled to vote at the Annual Meeting of Shareholders held on
August 22, 1996.
THIRD: That said amendment to the Certificate of Incorporation has been duly
adopted in accordance with the applicable provisions of Section 242 of the
General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be affixed
and this Certificate to be signed by its President and attested by its
Secretary, whose respective names and offices appear below, this 2nd day of
September, 1996.
CAPITOL MULTIMEDIA, INC.
BY:/s/ Robert I. Bogin
--------------------------
Robert I. Bogin, President
Attest:
BY:/s/ Catherine K. Hoopes
------------------------------
Catherine K. Hoopes, Secretary
10
<PAGE>
CERTIFICATE OF AMENDMENT
TO THE CERTIFICATE OF INCORPORATION OF
CAPITOL MULTIMEDIA, INC.
Capitol Multimedia, Inc. , a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware (the
"Corporation") DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of the Corporation ratified and adopted
a resolution at a meeting of the Board of Directors on June 12, 1997, proposing
and declaring advisable amending and restating Article FIRST to change the name
of the Corporation so that Article FIRST shall read as follows:
FIRST: The name of the corporation (hereinafter called the "corporation") is
CELERITY SOLUTIONS, INC.
SECOND: That said stock amendments to the Certificate of Incorporation have been
consented to and authorized by the holders of a majority of the issued and
outstanding stock entitled to vote at the annual meetings of stockholders held
on August 21, 1997.
THIRD: That said amendments to the Certificate of Incorporation have been duly
adopted in accordance with the applicable provisions of Sections 141, 228 and
242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be affixed
and this Certificate to be signed by its President and attested by its
Secretary, whose respective names and offices appear below, this 22nd day of
August, 1997.
CAPITOL MULTIMEDIA, INC.
BY: /s/ Luda Kopeikina
------------------
Luda Kopeikina
President
ATTEST:
BY: /s/ Edward Terino
-----------------
Edward Terino
Secretary and Chief Financial Officer
11
EXHIBIT 4.5
[GRAPHIC OMITTED]
THE AMENDED AND RESTATE 1991 NON-QUALIFIED
CELERITY SOLUTIONS, INC. EMPLOYEE STOCK OPTION PLAN
The following amends and restates the 1991 Non-Qualified Celerity
Solutions, Inc. Employee Stock Option Plan in its entirety.
1. Purpose of the Plan.
The purpose of the 1991 Non-Qualified Stock Option Plan of Celerity
Solutions, Inc., a Delaware corporation (the "Company"), is to further
promote the interests of the Company by enhancing the Company's ability to
attract, motivate and retain new and existing employees and consultants and
to encourage the highest level of performance by providing these employees
and consultants with a proprietary interest in the Company's growth and
financial success through grants of stock options and shares of restricted
stock in the future.
2. Definitions.
(a) "Board" shall mean the board of directors of the Company, as duly
elected from time to time.
(b) "Change in Control" shall be deemed to have occurred at such time as
either (i) the Company is merged or consolidated with or into another
entity (the "Merger Partner") and as a result of such merger or
consolidation less than fifteen percent (15%) of the outstanding
voting securities of the surviving or resulting entity shall be
beneficially owned in the aggregate, either directly or indirectly, by
the stockholders of the Company immediately prior to the effective
date of such merger or consolidation, or (ii) in the event that any
person, other than the Company, a wholly-owned subsidiary of the
Company, an employee benefit plan of the Company or one of its
subsidiaries, or an officer or director of the Company or an affiliate
of an officer or director, becomes the beneficial owner of fifty
percent (50%) or more of the Company's Common Stock.
(c) "Code" shall mean the Internal Revenue Code of 1986, as amended, and
as interpreted by the regulations thereunder.
(d) "Committee" shall mean the Compensation Committee of the Company, or
such other committee as may be appointed by the Board from time to
time.
12
As amended 9/2/97
<PAGE>
(e) "Common Stock" shall mean the common stock of the Company, par value
$.10 per share.
(f) "Company" shall mean Celerity Solutions, Inc., a Delaware corporation.
(g) "Consultant" shall mean any individual that is expressly designated as
a consultant of the Company or its Subsidiaries by the Committee in
its sole discretion.
(h) "Date of Grant" shall mean the date as of which the Committee resolves
to grant an Option to an Optionee or grant Restricted Stock to a
Participant, as the case may be.
(i) "Disinterested Director" shall mean a member of the Board who is not,
during the one year prior to service as an administrator under this
Plan (as described in Section 4 of this Plan), granted or awarded an
Option or Restricted Stock pursuant to the terms of this Plan (or any
other plan of the Company or any of its Subsidiaries) except (i)
participation in a formula plan meeting the conditions of Rule
16b-3(c)(2)(ii) under the Exchange Act, (ii) participation in an
ongoing securities acquisition plan meeting the conditions in Rule
16b-3(d)(2)(i) under the Exchange Act, (iii) an election to receive an
annual retainer fee in either cash or an equivalent amount of
securities of the Company, or partly in cash and partly in securities,
or (iv) that participation in this Plan shall not disqualify a
director for the purpose of administering another plan that does not
permit participation by the Board; provided, that the scope of the
exceptions in this paragraph shall automatically be reduced or
expanded to the extent that Rule 16b-3 under the Exchange Act is
amended to reduce or expand the scope of the exceptions thereunder.
(j) "Employee" shall include every individual performing services to the
Company or its Subsidiaries if the relationship between such
individual and the Company or its Subsidiaries is the legal
relationship of employer and employee. This definition of "Employee"
is qualified in its entirety and is subject to the definition set
forth in Section 3401(c) of the Code and the regulations thereunder.
(k) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and as interpreted by the rules and regulations promulgated
thereunder.
(l) "Exercise Price" shall mean the amount for which one Share may be
purchased upon exercise of an Option, as specified by the Committee in
the applicable Stock Option Agreement, but in no event less than the
par value per Share.
(m) "Fair Market Value" shall mean the average of the last trade price of
the Common Stock on all domestic exchanges on which the Common Stock
may at the time be listed or admitted to trading, or, if the Common
Stock, shall not be so listed or admitted to trading, the average of
the last trading price in the domestic over-the-counter market, in
each such case averaged over a period of 20 consecutive business days
prior to the day as of which Fair Market Value is being determined;
provided that if the Common Stock is listed on any domestic exchange,
the term "business days" as used in this sentence shall mean business
days on which such exchange is open for trading. If the Common Stock
is neither listed or admitted to trading on any
13
As amended 9/2/97
<PAGE>
domestic exchange nor quoted in the domestic over-the counter market,
the Fair Market Value shall mean the last trade price as furnished by
any dealer in securities dealing in the Common Stock.
(n) "Option" shall mean the right granted to purchase Common Stock under
the Plan.
(o) "Optionee" shall mean a Participant who holds an Option.
(p) "Participants" shall mean those individuals described in Section 1 of
this Plan selected by the Committee who are eligible under Section 6
of this Plan for grants of either Options or Restricted Stock under
this Plan.
(q) "Permanent and Total Disability" shall mean that an individual is
unable to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than twelve (12) months. An
individual shall not be considered to suffer from Permanent and Total
Disability unless such individual furnishes proof of the existence
thereof in such form and manner, and at such times, as the Committee
may reasonably require. The scope of this definition shall
automatically be reduced or expanded to the extent that Section
22(e)(3) of the Code is amended to reduce or expand the scope of the
definition of Permanent and Total Disability thereunder.
(r) "Plan" shall mean this 1991 Non-Qualified Celerity Solutions, Inc.
Employee Stock Option Plan, as amended from time to time.
(s) "Plan Award" shall mean the grant of either an Option or Restricted
Stock, as the context requires.
(t) "Restricted Stock" shall have that meaning set forth in Section 6(a)
of this Plan.
(u) "Restricted Stock Account" shall have that meaning set forth in
Section 6(a)(iii) of this Plan.
(v) "Restricted Stock Criteria" shall have that meaning in Section
6(a)(iv) of this Plan.
(w) "Restriction Period" shall have that meaning in Section 6(a)(v) of
this Plan.
(x) "Securities Act" shall mean the Securities Act of 1933, as amended,
and as interpreted by the rules and regulations promulgated
thereunder.
(y) "Services" shall mean services rendered to the Company or any of its
Subsidiaries by an Employee or Consultant, as the context requires.
(z) "Share" shall mean one share of Common Stock, as adjusted in
accordance with Sections 8 and 9 of this Plan (if applicable).
(aa) "Stock Option Agreement" shall mean the agreement executed between the
Company and an Optionee that contains the terms, conditions and
restrictions pertaining to the granting of an Option.
14
As amended 9/2/97
<PAGE>
(bb) "Subsidiary" shall mean any corporation as to which more than fifty
percent (50%) of the outstanding voting stock or shares shall now or
hereafter be owned or controlled, directly by a person, any Subsidiary
of such person, or any Subsidiary of such Subsidiary.
(cc) "Vest Date" shall have that meaning in Section 6(a)(v) of this Plan.
3. Shares of Common Stock Subject to the Plan.
(a) Subject to the provisions of Sections 8 and 9, the aggregate number of
Shares that may be issued or transferred pursuant to an exercise of
Option or a grant of Restricted Stock under the Plan shall not exceed
three million (3,000,000) Shares. Such Shares may be either
authorized, but unissued shares, or Shares issued and thereafter
acquired by the Company. The Committee shall not issue more Shares
than are available for issuance under this Plan. The number of Shares
that are subject to unexercised Options at any time under this Plan
shall not exceed the number of Shares that remain available for
issuance under this Plan. The Company, during the term of this Plan,
shall at all times reserve and keep available sufficient Shares to
satisfy the requirements of this Plan.
(b) In the event that an Option previously granted shall for any reason
expire or be terminated without being exercised in whole or in part,
the unpurchased shares of Common Stock subject to the Option shall be
restored to the total number of shares of Common Stock with respect to
which Options may be granted under the Plan.
(c) Plan Awards may be granted under the Plan from time to time in
substitution of Options or Restricted Stock held by Consultants for
thirty two thousand five hundred (32,500) Shares which were issued
prior to July 20, 1993. Unless expressly stated otherwise, any
provision in the Plan applying to Options or Restricted Stock granted
under the Plan shall also apply to Options or Restricted Stock granted
to Consultants under prior Option Agreements.
4. Administration of the Plan.
(a) This Plan shall be administered by the Committee, which shall consist
of at least two (2) persons, each of whom shall be Disinterested
Directors. The members of the Committee shall be appointed by the
Board for such terms as the Board may determine. The Board may from
time to time remove members from, or add members to, the Committee.
Vacancies on the Committee, however caused, may be filled by the
Board.
(b) The Board shall designate one of the members of the Committee as
chairman. The Committee may hold meetings at such times and places as
it shall determine. The acts of a majority of the Committee members
present at meetings at which a quorum exists, or acts reduced to or
approved in writing by a majority of all Committee members, shall be
valid acts of the Committee. A majority of the Committee shall
constitute a quorum.
15
As amended 9/2/97
<PAGE>
(c) This Plan shall be administered by, or under the direction of, the
Committee constituted in such a manner as to comply at all times with
Rule 16b-3 (or any successor rule) under the Exchange Act. The
Committee shall administer this Plan so as to comply at all times with
the Exchange Act and, subject to the Code, shall otherwise have
absolute and final authority to interpret this Plan and to make all
determinations specified in or permitted by this Plan or deemed
necessary or desirable for its administration or for the conduct of
the Committee's business including without limitation the authority to
take the following actions:
(i) To interpret this Plan and to apply its provisions;
(ii) To adopt, amend or rescind rules, procedures and forms relating
to this Plan;
(iii) To authorize any person to execute, on behalf of the Company,
any instrument required to carry out the purposes of this Plan;
(iv) To determine when Plan Awards are to be granted under this
Plan;
(v) To select the Optionees and Participants;
(vi) To determine the number of Shares to be made subject to each
Plan Award;
(vii) To prescribe the terms, conditions and restrictions of each
Plan Award, including without limitation the Exercise Price of
an Option;
(viii) To amend any outstanding Stock Option Agreement or the terms,
conditions and restrictions of a grant of Restricted Stock,
subject to applicable legal restrictions and the consent of the
Optionee or Participant, as the case may be, who entered into
such agreement;
(ix) To establish procedures so that an Optionee may obtain a loan
through a registered broker-dealer under the rules and
regulations of the Federal Reserve Board, for the purpose of
exercising an Option;
(x) To establish procedures for an Optionee (1) to have withheld
from the total number of Shares to be acquired upon the
exercise of an Option that number of Shares having a Fair
Market Value, which, together with such cash as shall be paid
in respect of fractional shares, shall equal the Exercise
Price, and (2) to exercise a portion of an Option by
delivering that number of Shares already owned by an Optionee
having a Fair Market Value which shall equal the partial
Exercise Price and to deliver the Shares thus acquired by such
Optionee in payment of Shares to be received pursuant to the
exercise of additional portions of the Option, the effect of
which shall be that an Optionee can in sequence utilize such
newly acquired shares in payment of the Exercise Price of the
entire Option, together with such cash as shall be paid in
respect of fractional shares;
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As amended 9/2/97
<PAGE>
(xi) To establish procedures whereby a number of Shares may be
withheld from the total number of Shares to be issued upon
exercise of an Option, to meet the obligation of withholding
for federal and state income and other taxes, if any, incurred
by the Optionee upon such exercise; and
(xii) To take any other actions deemed necessary or advisable for the
administration of this Plan.
All interpretations and determinations of the Committee made
with respect to the granting of Plan Awards shall be final,
conclusive, and binding on all interested parties. The
Committee may make grants of Plan Awards on an individual or
group basis. No member of the Committee shall be liable for
any action that is taken or is omitted to be taken if such
action or omission is taken in good faith with respect to
this Plan or grant of any Plan Award.
(d) The Committee may in its sole discretion require as a condition to the
granting of any Plan Award, that a Participant agree not to sell or
otherwise dispose of a Plan Award, any Shares acquired pursuant to a
Plan Award or any other "derivative security" (as defined by Rule
16a-1(c) under the Exchange Act) for a period of six (6) months
following the later of (i) the date of the grant of such Plan Award,
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.
(e) The Committee may in its sole discretion designate officers or
employees of the Company to assist the Committee in the administration
of the Plan and to execute documents on behalf of the Committee, and
the Committee may delegate to such officers and employees such other
ministerial and limited discretion duties as it sees fit.
5. Eligibility.
(a) Options and/or Restricted Stock may be granted under the Plan to any
Employee or Consultant (including Employees who are also directors of
the Company); provided, however, that no person shall be eligible for
any Plan Awards if the granting of a Plan Award to such person would
prevent the satisfaction by this Plan of the general exemptive
conditions of Rule 16b-3 under the Exchange Act. Determinations by the
Committee as to the identity of the persons to whom Options shall be
granted hereunder shall be conclusive. Directors who are also
Employees shall not be eligible to receive Options under both employee
and director's plans.
(b) [Intentionally omitted.]
6. Restricted Stock.
(a) The Committee shall have the authority to grant to Participants
certain Shares that are subject to certain terms, conditions and
restrictions (the "Restricted Stock"). The Restricted Stock may be
granted by the Committee either separately or in combination with
Options. The terms, conditions and restrictions of the Restricted
Stock shall be determined from time to time by
17
As amended 9/2/97
<PAGE>
the Committee without limitation, except as otherwise provided in this
Plan; provided, however, that each grant of Restricted Stock shall
require the Participant to remain an Employee of (or otherwise provide
Services to) the Company or any of its Subsidiaries for at least six
(6) months from the Date of Grant. The granting, vesting and issuing
of the Restricted Stock shall also be subject to the following
provisions:
(i) Restricted Stock shall be granted to Participants for Services
rendered and at no additional cost to Participant; provided,
however, that the value of the Services performed must, in the
opinion of the Committee, equal or exceed the par value of the
Restricted Stock to be granted to the Participant.
(ii) The Company shall establish a restricted stock account (the
"Restricted Stock Account") for each Participant to whom
Restricted Stock is granted, and such Restricted Stock shall be
credited to such account. No certificates will be issued to the
Participant with respect to the Restricted Stock until the Vest
Date as provided herein. Every credit of Restricted Stock under
this Plan to a Restricted Stock Account shall be considered
"contingent" and unfunded until the Vest Date. Such contingent
credits shall be considered bookkeeping entries only,
notwithstanding the "crediting" of "dividends" as provided
herein. Such accounts shall be subject to the general claims of
the Company's creditors. The Participant's rights to the
Restricted Stock Account shall be no greater than that of a
general creditor of the Company. Nothing contained herein shall
be construed as creating a trust or fiduciary relationship
between the Participants and the Company, the Board or the
Committee.
(iii) The terms, conditions and restrictions of the Restricted Stock
shall be determined by the Committee on the Date of Grant. The
Restricted Stock may not be sold, assigned, transferred,
redeemed, pledged or otherwise encumbered during the period in
which the terms, conditions and restrictions apply (the
"Restriction Period"). More than one grant of Restricted Stock
may be outstanding at any one time, and the Restriction Periods
may be of different lengths. Receipt of the Restricted Stock is
conditioned upon satisfactory compliance with the terms,
conditions and restrictions of this Plan and those imposed by
the Committee.
(iv) At the time of each grant of Restricted Stock, the Committee in
its sole discretion may establish certain criteria to determine
the times at which restrictions placed on Restricted Stock shall
lapse (i.e., the termination of the Restriction Period), which
criteria may include, without limitation, performance measures,
targets and holding period requirements (the "Restricted Stock
Criteria"). The Committee may establish a corresponding
relationship between the Restricted Stock Criteria and (i) the
number of Shares of Restricted Stock that may be earned, and
(ii) the extent to which the terms, conditions and restrictions
on the Restricted Stock shall lapse. Restricted Stock Criteria
may vary among grants of Restricted Stock; provided, however,
that once the Restricted Stock Criteria are established for a
grant of Restricted Stock, the Restricted Stock Criteria shall
not be modified with respect to such grant.
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<PAGE>
(v) On the date the Restriction Period terminates, the Restricted
Stock shall vest in the Participant (the "Vest Date"), who may
then require the Company to issue certificates evidencing the
Restricted Stock credited to the Restricted Stock Account of
such Participant.
(vi) The Committee may provide from time to time that amounts
equivalent to dividends shall be payable with respect to the
Restricted Stock held in the Restricted Stock Account of a
Participant. Such amounts shall be credited to the Restricted
Stock Account and shall be payable to the Participant on the
Vest Date.
(vii) If a Participant (x) with the consent of the Committee, ceases
to be an Employee or Consultant of, or otherwise ceases to
provide Services to, the Company or any of its Subsidiaries, or
(y) dies or suffers from Permanent and Total Disability, the
vesting or forfeiture (including without limitation the terms,
conditions and restrictions) of any grant under this Section 6
shall be determined by the Committee in its sole discretion,
subject to any limitations or terms of this Plan. If the
Participant ceases to be an Employee or Consultant of, or
otherwise ceases to provide Services to, the Company or any of
its Subsidiaries for any other reason, all grants of Restricted
Stock under this Plan shall be forfeited (subject to the terms
of this Plan).
(b) The Committee may establish procedures by which a Participant may
elect to defer the transfer of Restricted Stock to the Participant.
The Committee shall determine the terms and conditions of such
deferral in its sole discretion.
7. Terms and Conditions of Options.
(a) The purchase price of Common Stock under each Option granted under the
Plan shall be the Fair Market Value of the Common Stock on the date
the Option is granted.
(b) Subject to the provision of Section 12, an Option granted under the
Plan shall become exercisable at such a time as the Committee in its
sole discretion shall determine and shall specify in a Stock Option
Agreement to be entered into with the Participant. In servicing its
discretion hereunder, the Committee may determine that all Options
granted shall become exercisable immediately or that the Participant's
right to exercise such Options shall vest over a period of time and in
such increments as are specified by the Committee.
(c) The exercise of Options shall be subject to the following
requirements:
(i) An Option shall be deemed to be exercised when written notice of
such exercise has been given to the Company in accordance with
the terms of the Stock Option Agreement by the Optionee entitled
to exercise the Option and full payment for the Shares with
respect to which the Option is exercised has been received by
the Company. Full payment may, as authorized by the Committee,
consist of any form of consideration and method of payment
allowable under this
19
As amended 9/2/97
<PAGE>
Plan. Upon the receipt of notice of exercise and full payment
for the Shares, the Shares shall be deemed to have been issued
and the Optionee shall be entitled to receive such Shares and
shall be a stockholder with respect to such Shares, and the
Shares shall be considered fully paid and non-assessable. No
adjustment will be made for a dividend or other right for which
the record date is prior to the date on which the stock
certificate is issued, except as provided in Sections 8 or 9 of
this Plan. An Option may not be exercised for a fraction of a
Share. Each exercise of an Option shall reduce, by an equal
number, the total number of Shares that may thereafter be
purchased under such Option.
(ii) Except as provided in Subsections 7(c)(iii) and 7(c)(iv), an
Option held by an Optionee shall terminate on the date the
Optionee ceases to be an Employee or Consultant of the Company
in the event the Optionee is terminated for cause (as determined
in the sole discretion of the Committee). If the employment of
the Optionee is terminated other than for cause, then the
Optionee may, but only within ninety (90) days after such
termination, exercise the Option to the extent that the Optionee
was entitled to exercise the Option on such date; provided,
however, the Committee may in its sole discretion extend such
date on which the Optionee may exercise such Option. To the
extent the Optionee is not entitled to exercise an Option on
such date or if the Optionee does not exercise it within the
time specified in this subclause, the Option shall terminate.
(iii) Notwithstanding the provisions of Section 7(c)(i) and (ii)
above, in the event an Optionee is unable to continue to perform
Services for the Company or any of its Subsidiaries as a result
of such Optionee's Permanent and Total Disability, such Optionee
may exercise an Option in whole or in part notwithstanding that
such Option may not be fully exercisable, but only until the
earlier of the date (i) the Option held by the Optionee expires,
or (ii) twelve (12) months from the date of termination of
Services due to such Permanent and Total Disability. To the
extent the Optionee is not entitled to exercise an Option on
such date or if the Optionee does not exercise it within the
time specified herein, such Option shall terminate.
(iv) Upon the death of an Optionee, any Option held by an Optionee
shall terminate and be of no further effect; provided, however,
notwithstanding the provisions of Section 7(c)(ii) above, in the
event an Optionee's death occurs during the term of an Option
held by such Optionee and, at the time of death, the Optionee
was an Employee or Consultant, the Option may be exercised in
whole or in part notwithstanding that such Option may not have
been fully exercisable on the date of the Optionee's death, at
any time until the earlier of the date (i) the Option held by
the Optionee expires, or (ii) twelve (12) months from the date
of the Optionee's death, by the Optionee's estate or by a person
who acquired the right to exercise the Option by bequest or
inheritance. To the extent the Option is not entitled to be
exercised on such date or if the Option is not
20
As amended 9/2/97
<PAGE>
exercised within the time specified herein, such Option shall
terminate.
(v) If an Optionee retires at an age at which he would be eligible
to receive old-age benefits under the Federal Social Security
Act or retires with the consent of the Company, such Optionee's
Options shall expire six (6) months after the retirement date.
(d) Any Option granted under this Plan may not be sold, pledged, assigned,
hypothecated, transferred or disposed of in any manner other than by
will or by the laws of descent and distribution, and is not assignable
by operation of law or subject to execution, attachment or similar
process. Any Option granted under this Plan can only be exercised
during the Optionee's lifetime by such Optionee. Any attempted sale,
pledge, assignment, hypothecation or other transfer of the Option
contrary to the provisions hereof and the levy of any execution,
attachment or similar process upon the Option shall be null and void
and without force or effect. No transfer of the Option by will or by
the laws of descent and distribution shall be effective to bind the
Company unless the Company shall have been furnished written notice
thereof and an authenticated copy of the will and/or such other
evidence as the Committee may deem necessary to establish the validity
of the transfer and the acceptance by the transferee or transferees of
the terms and conditions of the Option. The terms of any Option
transferred by will or by the laws of descent and distribution shall
be binding upon the executors, administrators, heirs and successors of
Optionee.
(e) Any Option granted hereunder shall be deemed to be granted on the Date
of Grant. Written notice of the Committee's determination to grant an
Option to an Employee or Consultant, evidenced by a Stock Option
Agreement, dated as of the Date of Grant, shall be given to such
Employee or Consultant within a reasonable time after the Date of
Grant.
(f) Within the limitations of this Plan, the Committee may modify, extend
or renew outstanding Options or may accept the cancellation of
outstanding Options (to the extent not previously exercised) for the
granting of new Options in substitution therefor. The foregoing
notwithstanding, no modification of an Option shall, without the
consent of the Optionee, alter or impair the Optionee's rights or
obligations under such Option.
8. Adjustment Provisions.
If any subdivision or combination of shares of Common Stock or any stock
dividend, capital reorganization or recapitalization occurs after the
adoption of the Plan, the Committee shall make such proportionate
adjustments as are appropriate in the number of shares of Common Stock that
may be issued under Section 3 and in the purchase price of, and the number
of shares underlying, outstanding Options in order to prevent the dilution
or enlargement of the rights of any Option holder.
9. Effect of Merger or Other Reorganization.
If the Company shall be the surviving corporation in a merger,
consolidation or other reorganization, the holder of an Option shall be
entitled to receive an option to
21
As amended 9/2/97
<PAGE>
purchase the same number of shares (or a fraction of a share) in the
surviving corporation that a holder of a corresponding number of shares of
Common Stock will be entitled to receive under the terms of the merger,
consolidation or other reorganization. If the company dissolves, sells
substantially all of its assets, is acquired in a stock for stock or
securities exchange, or is a party to a merger, consolidation or other
reorganization in which it is not the surviving corporation, then each
Option shall be exercisable in full for a period of 60 days commencing upon
the date the action of the stockholders (or of the Board, if stockholder
action is not required) is taken to approve the transaction, and upon the
expiration of that period all Options and all rights thereto shall
automatically terminate.
10. General Provisions.
(a) No provision of this Plan, under any Stock Option Agreement or under
any grant of Restricted Stock shall be construed to give any
Participant any right to remain an Employee or Consultant of, or
provide Services to, the Company or any of its Subsidiaries or to
affect the right of the Company to terminate any Participant's service
at any time, with or without cause.
(b) As a condition to the transfer of any Shares issued under this Plan,
the Company may require an opinion of counsel, satisfactory to the
Company, to the effect that such transfer will not be in violation of
the Securities Act or any other applicable securities laws, rules or
regulations, or that such transfer has been registered under federal
and all applicable state securities laws. The Company may refrain from
delivering or transferring Shares issued under this Plan until the
Committee has determined that the Participant has tendered to the
Company any and all applicable federal, state or local tax owed by the
Participant as the result of the receipt of a Plan Award, the exercise
of an Option or the disposition of any Shares issued under this Plan,
in the event that the Company reasonably determines that it might have
a legal liability to satisfy such tax. The Company shall not be liable
to any person or entity for damages due to any delay in the delivery
or issuance of any stock certificate evidencing any Shares for any
reason whatsoever.
(c) No participant shall be entitled to the rights and privileges of stock
ownership relation to any shares of Common Stock underlying an Option
until such Option is exercised and the shares are issued.
(d) Each Option is personal to the grantee, is not transferable by the
Participant other than by will or by the laws of descent and
distribution, and is exercisable, during the Participant's lifetime,
only by the Participant or his legal representative.
(e) This Plan and any and all Stock Option Agreements and agreements
relating to the grant of Restricted Stock executed in connection with
this Plan shall be governed by and construed in accordance with the
laws of the State of Delaware, without regard to conflicts of laws
principles.
11. Amendment and Termination.
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As amended 9/2/97
<PAGE>
(a) The Board shall have the power, in its sole discretion, to amend,
suspend or terminate the Plan at any time. No such amendment shall,
without approval of the stockholders of the Company, except as
provided in Sections 8 and 9 or the Plan:
(i) change the class of person eligible to receive Options under the
Plan;
(ii) materially increase the benefits accruing to Participants under
the Plan;
(iii) increase the number of shares of Common Stock subject to the
Plan; or
(iv) amend this Section 11.
(b) No amendment, suspension or termination of the Plan shall, without the
consent of the Participant alter, terminate, impair or adversely affect any
right or obligations under any Option previously granted under or made a
party of the Plan.
12. Effective Date and Duration of Plan.
The Plan was originally adopted by the Board of Directors and took effect
on October 23, 1990. This Amended and Restated Plan shall be effective as
of the date of its approval and adoption by the Board of Directors subject
only to the approval of the holders of a majority of the Company's Common
Stock present or represented and entitled to vote at a meeting of
stockholders. All Options outstanding under the Plan as of the effective
date of this Amended and Restated Plan shall continue in full force and
effect in accordance with their terms as granted pursuant to the Plan. No
Option shall be granted under the Plan after the tenth anniversary of the
effective date of the Amended and Restated Plan.
23
As amended 9/2/97
EXHIBIT 4.6
[GRAPHIC OMITTED]
THE AMENDED AND RESTATED 1992 NON-QUALIFIED STOCK OPTION
PLAN FOR NON-EMPLOYEE DIRECTORS
1. Purpose
The purpose of this Non-Qualified Stock Option Plan For Non-Employee
Directors (the "Plan") is to improve the ability of CELERITY SOLUTIONS,
INC. (the "Company") to attract and retain highly qualified non-employee
directors by encouraging such directors of the Company to acquire a
proprietary stake in the Company and its future growth. It is the view of
the Company that it may achieve this goal by granting stock options under
the Plan.
2. Option Shares
Six hundred thousand (600,000) shares of the Common Stock of the Company,
par value $.10 per share (the "Stock"), are hereby reserved for issuance
upon the exercise of the stock options granted under the Plan (the
"Options"). The Stock may be issued pursuant to such Options either from
the Company's authorized, but unissued, Stock or from the Company's issued
but not outstanding Stock (treasury stock). Should any Options granted
hereunder not be exercised in the time allowed for such exercise, the
shares of Stock relating to such lapsed Options shall be available for
issuance pursuant to Options subsequently granted under the Plan.
3. Eligibility
All non-employee directors of the Company shall be eligible to receive
Options under the Plan.
4. Terms and Conditions
(a) Grant of Options: Subject to the provisions of the Plan, each
non-employee director of the Company shall be granted an Option for
the purchase of shares of Stock on each Date of Grant (as such term is
defined in paragraph (c) below) occurring during such director's
tenure as a director of the Company.
(b) Option Agreement: Each Option shall be evidenced by a written
agreement between the Company and the non-employee director specifying
the number of shares of Stock that may be purchased by its exercise.
(c) Date of Grant: The date on which an Option is granted to a
non-employee director (the "Date of Grant") shall be: (1) the date of
each annual meeting of
24
As amended 9/2/97
<PAGE>
shareholders of the Company at which a director is elected or
re-elected to serve on the Board of Directors commencing with the
annual meeting of shareholders for the fiscal year ended March 31,
1995, and (2) the date on which a director who is not also an employee
is first elected by the Board of Directors to fill a vacancy on the
Board of Directors.
(d) Number of Shares Granted: Each non-employee director shall receive an
Option to purchase 15,000 shares of Common Stock on each Date of Grant
during such director's service on the Board of Director's of the
Company. In addition, on the date of the annual meeting of
shareholders for the fiscal year ended March 31, 1995, each director
who is not also an employee of the Company and who has served as a
director of the Company for at least three years as of such date shall
be granted an Option to purchase 37,500 shares of Common Stock.
Non-employee directors who have served between two and three years as
of such date shall be granted an Option to purchase 25,000 shares of
Common Stock.
(e) Exercise of Options: Each Option issued hereunder shall be fully
vested as of the Date of Grant and each Option shall be exercisable
for a five year period commencing on the Date of Grant; provided,
however, that no Option granted hereunder may be exercised during the
six month period immediately following the Date of Grant pursuant to
Rule 16b-3(c) (1).
(f) Modification or Substitution of Options: Subject to the terms and
conditions and within the limitations of the Plan, the members of the
Board of Directors of the Company who are not eligible to participate
in the Plan may modify, extend or renew outstanding Options granted
under the Plan and accept the surrender and cancellation of
outstanding Options (to the extent not theretofore exercised) and
authorize the granting of new Options in substitution therefor or
Options as amended.
(g) Amendment: No amendment to this Section 5 of the Plan may be made more
than once every six (6) months, other than to comport with changes in
the Internal Revenue Code of 1986, as amended (the "Code"), the
Employee Retirement Income Security Act, or the rules promulgated
thereunder.
5. Option Price
The purchase price per share of Stock placed under an Option pursuant to
this Plan (the "Option Price") shall be equal to the Market Price of the
stock on the Date of Grant. "Market Price" shall mean the average of the
last trade price of the Common Stock on all domestic exchanges on which the
Common Stock may at the time be listed or admitted to trading, or, if the
Common Stock, shall not be so listed or admitted to trading, the average of
the last trading price in the domestic over-the-counter market, in each
such case averaged over a period of 20 consecutive business days prior to
the day as of which Market Price is being determined; provided that if the
Common Stock is listed on any domestic exchange, the term "business days"
as used in this sentence shall mean business days on which such exchange is
open for trading. If the Common Stock is neither listed or admitted to
trading on any domestic exchange nor quoted in the domestic over-the
counter market, the Market Price shall mean the last trade price as
furnished by any dealer in securities dealing in the Common Stock.
6. Duration of Option
25
As amended 9/2/97
<PAGE>
Each Option granted hereunder may be exercised only by the individual to
whom it is issued. An Option granted hereunder shall be effective upon the
Date of Grant, and shall be exercisable for a five year period (the "Option
Period") from the Date of Grant; provided, however, that no Option granted
hereunder may be exercised during the six month period immediately
following the Date of Grant pursuant to Rule 16b-3(c)(1). If such holder
dies before fully exercising any portion of an Option then exercisable,
such Option may be exercised by such holder's legal representative's,
heir(s) or devisee(s) at any time within the six (6) month period following
his or her death.
7. [Intentionally Deleted]
8. Termination of the Plan
This Plan shall terminate upon the close of business ten (10) years from
the Adoption Date unless it shall have been sooner terminated by reason of
there having been granted and fully exercised Options covering the entire
six hundred thousand (600,000) shares of Stock subject to this Plan. Upon
such termination, no further Options may be granted hereunder. If, after
termination of this Plan as provided above, there are outstanding Options
which have not been fully exercised, such Options shall remain in effect in
accordance with their terms and shall remain subject to the terms of this
Plan.
9. Exercise of Options
An Option granted pursuant to this Plan shall be exercisable at any time
within the Option Period, subject to the terms and conditions of such
Option. Exercise of any Option shall be made by the delivery, during the
period that such Option is exercisable, to the Company, in person or by
mail, of (i) written notice from the Optionee stating that the Optionee is
exercising such Option and (ii) the payment of the aggregate purchase price
of all shares as to which such Option is then exercised and the payment of
any required federal income tax withholding. Such aggregate purchase price
shall be paid to the Company in cash, Stock or any other class of equity
securities of the Company (such Stock and other class of equity securities
of the company are hereinafter collectively referred to as the "Company
Stock"), or in a combination of cash or Company Stock at the time of
exercise.
There may not, however, be any payment by an Optionee of the exercise price
in whole or in part with shares of Company Stock at a time when the Company
is Insolvent (as hereafter defined) or when such payment would make the
Company Insolvent, or as such payment may otherwise be prohibited by any
applicable state or Federal statute, rule or regulation, or any rule or
regulation of any stock exchange upon which Company Stock is traded, or if
Company Stock is traded on a recognized stock quotation service, which may
be the National Association of Securities Dealers Automated Quotations
System ("NASDAQ"), any rule or regulation of NASDAQ. For the purposes of
this Plan, "Insolvent' shall mean the inability of the company to pay its
debts as they become due in the usual course of its business. Company Stock
utilized in full or partial payment of the exercise price shall be valued
at the Market Price (as defined in paragraph 5 herein) on the date of
exercise of the Option.
Notwithstanding anything to the contrary contained herein, no written
notice shall be effective under this Section 9 unless it requests the
exercise of Options for one hundred (100) shares or an integral multiple
thereof; except to the extent necessary to make full exercise of the
Options in the event that only an odd lot remains. Upon the exercise of an
Option in compliance with the provisions of the Section, and upon the
receipt by the Company of the payment for the Stock so taken up, the
Company shall (i) deliver or
26
As amended 9/2/97
<PAGE>
cause to be delivered to the Optionee so exercising his Option a
certificate or certificates for the number of shares of Stock with respect
to which the Option is so exercised and payment is so made, and (ii)
register or cause such shares to be registered in the name of the
exercising Optionee in the corporate books and records.
10. Controlling Terms
Options granted pursuant hereto may include conditions that are more (but
not less) restrictive to the Optionee than the conditions contained herein
and, in such event, the more restrictive conditions shall apply.
11. Requirements of Law
If any law, regulation or order of the United States Securities and
Exchange Commission, or of any other commission or agency having
jurisdiction, shall require the Company or the exercising Optionee to take
any action with respect to the shares of Stock acquired by the exercise of
an Option, then the date upon which the Company shall deliver or cause to
be delivered the certificate or certificates for the shares of Stock shall
be postponed until full compliance has been made with all such requirements
of law or regulation. Further, in the event that the Company shall
determine that, in compliance with the Securities Act or any other
applicable statute or regulation, it is necessary to register any of the
shares of Stock with respect to which an exercise of an Option has been
made, or to qualify any such shares for exemption from any of the
requirements of the Securities Act or such other applicable statute or
regulation, it will do so at the Company's expense. Not until such an
action has been completed shall the Option shares be delivered to the
exercising Optionee. Further, in the event that at the time of exercise of
the Option the shares of Stock shall be listed on any stock exchange, then
if required by law or the exchange to do so, the Company shall register the
Option shares of Stock with respect to which exercise is so made in
accordance with the provisions of the Securities Act, any other applicable
law or regulation or any rules or regulations of any such exchange, and the
Company shall make prompt application for the listing of Option shares on
such exchange at the expense of the Company.
12. No Rights Conferred upon Granting of Options
The Optionee shall not have any rights as a shareholder of the Company with
respect to any shares of Stock prior to the date of issuance to the
Optionee of the certificate or certificates for such shares. Neither the
Plan nor the Option confer on the Optionee any right to be employed by the
Company.
13. Adjustments
In the event of any reorganization, merger, consolidation, acquisition,
separation, recapitalization, split-up, combination, exchange of shares or
stock dividend of the Stock or shares convertible into the Stock or similar
corporate action, the number and class of shares of Stock available
pursuant to this Plan and any Options granted pursuant to this Plan,
together with the Option Prices, shall be adjusted by appropriate
modifications in this Plan and in any Options outstanding pursuant to this
Plan. Any such adjustment to the Plan or to Options or Option Prices shall
be made by notice of the Company's Board of Directors, whose determination
shall be conclusive.
14. Amendment or Discontinuance of the Plan
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As amended 9/2/97
<PAGE>
The Company's Board of Directors may at any time suspend or discontinue the
Plan, but no amendment shall be authorized without shareholder approval
which (i) materially increases the benefits accruing to participants under
the Plan; (ii) materially increases the number of securities which may be
issued under the Plan, except as otherwise provided in Section 13; or (iii)
materially modifies the requirements as to eligibility for participation in
the Plan.
In addition, notwithstanding any other provision in the Plan, in the event
of a change in federal or state law or regulation which would make the
exercise of all or part of an existing Option unlawful or subject the
Company to a penalty, the Company's Board of Directors may restrict such
exercise without the consent of the Optionee or other holder thereof in
order to comply with such law or regulation or to avoid such penalty.
15. Liquidation of the Company
In the event of the complete liquidation or dissolution of the Company,
other than as an incident to a merger, reorganization or other adjustment
referred to in Section 13 above, any Options granted pursuant to this Plan
and remaining unexercised shall be deemed canceled without regard to or
without being limited by any other provisions of this Plan.
16. Unsecured Obligation
Optionees shall not have any interest in any fund or special asset of the
Company by reason of the Plan. No trust fund shall be created in connection
with the Plan or any award thereunder, and there shall be no required
funding of amounts which may become payable to any Optionee.
17. Governing Law
The Plan shall be governed by, construed and enforced in accordance with
the laws of the State of Delaware.
18. Compliance with Rule 16b-3
It is the intent of the Company that all Options granted hereunder comply
with the applicable provisions of Rule 16b-3, as amended, promulgated
pursuant to the Securities Exchange Act of 1934, as amended. As a result,
this Plan may be amended by the Company's Board of Directors in any manner
necessary or desirable to meet any provision or condition of Rule 16b-3. In
addition, all Options shall be granted in such a manner as to comply with
the applicable requirements of Rule 16b-3.
19. Approval
This Amended and Restated Plan shall take effect upon approval by the
holders of a majority of the Company's Common Stock present or represented
and entitled to vote at a meeting of stockholders, which approval must
occur within twelve (12) months after the date the Amended and Restated
Plan is adopted by the Board of Directors.
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As amended 9/2/97
