As filed with the Securities and Exchange Commission on May 19, 2000
================================================================================
Registration Statement No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CENTENNIAL TECHNOLOGIES, INC.
-----------------------------
(Exact Name of Registrant as Specified in Its Charter)
Delaware 04-2978400
-------- ----------
(State of Incorporation) (I.R.S. Employer Identification No.)
7 Lopez Road
Wilmington, Massachusetts 01887
(Address of Principal Executive Offices)
(Zip Code)
CENTENNIAL TECHNOLOGIES, INC.
1999 STOCK INCENTIVE PLAN
AS AMENDED AND RESTATED
(Full title of the plan)
L. Michael Hone
President and Chief Executive Officer
Centennial Technologies, Inc.
7 Lopez Road
Wilmington, Massachusetts 01887
(Name and Address of agent for service)
(978) 988-8848
(Telephone number, including area code of agent for service)
With a copy to:
Raymond C. Zemlin, P.C.
Scott F. Duggan, Esq.
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, Massachusetts 02109-2881
(617) 570-1000
CALCULATION OF REGISTRATION FEE
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<S> <C>
=============================== ======================== ========================== ========================= ======================
Title of Securities Being Amount to Be Proposed Maximum Proposed Maximum Amount of
Registered Registered(1) Offering Price Per Share Aggregate Offering Registration Fee
Price
- ------------------------------- ------------------------ -------------------------- ------------------------- ----------------------
Common Stock, par value 1,000,000 $ 7.97(2) $7,970,000 $2104.08(3)
$.01 per share
- ------------------------------- ------------------------ -------------------------- ------------------------- ----------------------
</TABLE>
(1) This Registration Statement also relates to such indeterminate number of
additional shares available for issuance under the Centennial
Technologies, Inc. 1999 Stock Option Plan as Amended and Restated (the
"Plan") as may be required pursuant to the Plan in the event of a stock
dividend, stock split, recapitalization or other similar event.
(2) Estimated solely for purposes of determining the registration fee
pursuant to Rule 457(c) and (h) under the Securities Act of 1933, as
amended and based on the average of the high and low sales prices of the
Common Stock as reported by certain Internet-based bulletin board
services on May 17, 2000.
(3) The Registration Statement also relates to the rights to purchase shares
of Series A Junior Participating Preferred Stock of the Registrant which
are attached to all shares of Common Stock issued, pursuant to the terms
of the Registrant's Shareholder Rights Agreement dated as of March 16,
1999. Until the occurrence of certain prescribed events, the rights are
not exercisable, are evidenced by the certificates for the Common Stock
and will be transfered with and only with such Common Stock. Because no
separate consideration is paid for the rights, the registration fee
therefore is included in the fee for the Common Stock.
================================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
Centennial Technologies, Inc. (the "Registrant") hereby incorporates by
reference the following documents which have previously been filed with the
Securities and Exchange Commission (the "Commission"):
(a) the Registrant's latest annual report on Form 10-K for the fiscal
year ended March 25, 2000 as filed with the Commission on May 17,
2000 pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 as amended (the "Exchange Act");
(b) all other reports filed with the Commission by the Registrant
pursuant to Section 13(a) or 15(d) of the Exchange Act, since
March 26, 2000; and
(c) the description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A, as filed with
the Commission on November 19, 1998, including any amendment or
report filed for the purpose of updating such description.
In addition, all documents subsequently filed with the Commission by the
Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment hereto that indicates that all
securities offered hereunder have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents. Any statement contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes hereof to the
extent that a statement contained herein or in any subsequently filed document
which also is incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article VII of the Registrant's Amended and Restated ByLaws provides
that each person who is a director or officer of the Registrant shall be
indemnified by the Registrant to the full extent permitted by Section 145 of the
General Corporation Law of Delaware ("Section 145").
Section 145 provides a detailed statutory framework covering
indemnification of directors and officers of liabilities and expenses arising
out of legal proceedings brought against them by reason of their status or
service as directors or officers. This section provides that a director or
officer of a corporation (i) shall be indemnified by the corporation for all
expenses of such legal proceedings when he is successful on the merits, (ii) may
be indemnified by the corporation for the expenses, judgments, fines and amounts
paid in settlement of such proceedings (other than a derivative suit), even if
he is not successful on the merits, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation (and, in the case of a criminal proceeding, had no reasonable cause
to believe his conduct was unlawful), and (iii) may be indemnified by the
corporation for expenses of a derivative suit (a suit by a shareholder alleging
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<PAGE>
a breach by a director or officer of a duty owed to the corporation), even if he
is not successful on the merits, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation. No indemnification may be made under clause (iii) above, however,
if the director or officer is adjudged liable for negligence or misconduct in
the performance of his duties to the corporation, unless a court determines
that, despite such adjudication and in view of all of the circumstances, he is
entitled to indemnification. The indemnification described in clauses (ii) and
(iii) above may be made only upon a determination that indemnification is proper
because the applicable standard of conduct has been met. Such a determination
may be made by a majority of a quorum of disinterested directors, independent
legal counsel or the stockholders. The board of Directors may authorize
advancing litigation expenses to a director or officer upon receipt of an
undertaking by such director or officer to repay such expenses if it is
ultimately determined that he is not entitled to be indemnified for them.
As permitted by Section 145, the Registrant has purchased a general
liability insurance policy which covers certain liabilities of directors and
officers of the Registrant arising out of claims based on acts or omissions in
their capacity as directors or officers.
ITEM 7. EXEMPTION FROM REGISTRATION.
Not applicable.
ITEM 8. EXHIBITS.
The following is a complete list of exhibits filed as part of this
Registration Statement.
EXHIBIT
3.1 Certificate of Incorporation of Centennial Technologies, Inc., as
amended (incorporated herein by reference to Exhibit 3.1 to the
Registrant's Quarterly Report on Form 10-Q filed with the Securities
and Exchange Commission (the "Commission") on November 6, 1998).
3.2 Amended and Restated By-laws of Centennial Technologies, Inc.
(incorporated herein by reference to Exhibit 3.1 to the Registrant's
Registration Report on Form 8-A filed with the Commission on November
19, 1998).
4.1 Specimen Certificate of Common Stock of the Registrant (incorporated
herein by reference to Exhibit 4.1 to the Registrant's Quarterly
Report on Form 10-Q filed with the Commission on August 14, 1997).
4.2 Rights Agreement dated as of March 16, 1999 (incorporated herein by
reference to Exhibit 4.2 to the Registrant's Annual Report on Form
10-K filed with the Commission on June 4, 1999).
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
securities being registered.
23.1 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5.1
hereto).
23.2 Consent of Ernst & Young LLP, Independent Auditors.
23.3 Consent of PricewaterhouseCoopers LLP, Independent Auditors.
24.1 Powers of Attorney (included in the signature page of this
Registration Statement).
99.1 1999 Stock Incentive Plan as Amended and Restated for Centennial
Technologies, Inc.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1)To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
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<PAGE>
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Not withstanding the foregoing, any increase or
decrease in volume of securities offered (if the
total dollar value of securities offered would not
exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume
and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the Registration Statement or any material change to
such information in the Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii)
herein do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained
in periodic reports filed by the undersigned Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in the Registration
Statement;
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof;
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the
Securities Act, and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the
final adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Wilmington, Commonwealth of Massachusetts, on this
17th day of May, 2000.
CENTENNIAL TECHNOLOGIES, INC.
By: /s/ L. Michael Hone
-------------------------------------
L. Michael Hone
President and Chief Executive Officer
KNOW ALL BY THESE PRESENTS that each individual whose signature appears
below constitutes and appoints each of L. Michael Hone and Richard J. Pulsifer
as such person's true and lawful attorney-in-fact and agent with full power of
substitution and resubstitution, for such person in such person's name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and all documents in connection therewith, with the
Securities and Exchange Commission, granting unto each said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as such person might or could do in person, hereby
ratifying and confirming all that any said attorney-in-fact and agent, or any
substitute or substitutes of any of them, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
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Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ L. Michael Hone President, Chief Executive Officer May 17, 2000
- -------------------------------------- (Principal Executive Officer)
L. Michael Hone
/s/ William J. Shea Chairman of the Board May 17, 2000
- --------------------------------------
William J. Shea
/s/ Richard J. Pulsifer Vice President and Chief Financial May 17, 2000
- -------------------------------------- Officer (Principal Financial and
Richard J. Pulsifer Accounting Officer)
/s/ Eugene M. Bullis Director May 17, 2000
- --------------------------------------
Eugene M. Bullis
/s/ Steven M. DePerrior Director May 17, 2000
- --------------------------------------
Steven M. DePerrior
/s/ Jay M. Eastman Director May 17, 2000
- ---------------------------------------
Jay M. Eastman
/s/ David A. Lovenheim Director May 17, 2000
- ---------------------------------------
David A. Lovenheim
/s/ John J. Shields Director May 17, 2000
- ---------------------------------------
John J. Shields
</TABLE>
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EXHIBIT INDEX
Exhibit No. Description
-----------
3.1 Certificate of Incorporation of Centennial Technologies, Inc., as
amended (incorporated herein by reference to Exhibit 3.1 to the
Registrant's Quarterly Report on Form 10-Q filed with the
Securities and Exchange Commission (the "Commission") on November
6, 1998).
3.2 Amended and Restated By-laws of Centennial Technologies, Inc.
(incorporated herein by reference to Exhibit 3.1 to the
Registrant's Registration Report on Form 8-A filed with the
Commission on November 19, 1998).
4.1 Specimen Certificate of Common Stock of the Registrant
(incorporated herein by reference to Exhibit 4.1 to the
Registrant's Quarterly Report on Form 10-Q filed with the
Commission on August 14, 1997).
4.2 Rights Agreement dated as of March 16, 1999 (incorporated herein
by reference to Exhibit 4.2 to the Registrant's Annual Report on
Form 10-K filed with the Commission on June 4, 1999).
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
securities being registered.
23.1 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5.1
hereto).
23.2 Consent of Ernst & Young LLP, Independent Auditors.
23.3 Consent of PricewaterhouseCoopers LLP, Independent Auditors.
24.1 Powers of Attorney (included in the signature page of this
Registration Statement).
99.1 1999 Stock Incentive Plan as Amended and Restated for Centennial
Technologies, Inc.
- ---------------------------
Exhibit 5.1
May 17, 2000
Centennial Technologies, Inc.
7 Lopez Road
Wilmington, Massachusetts 01887
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
This opinion is delivered in our capacity as counsel to Centennial
Technologies, Inc., a Delaware corporation (the "Company"), in connection with
the preparation and filing with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Securities Act"), of a Registration
Statement on Form S-8 (the "Registration Statement") relating to 1,000,000
shares (the "Shares") of the Company's common stock, par value $.01 per share
("Common Stock"), which the Company may issue pursuant to the 1999 Stock
Incentive Plan as Amended and Restated for Centennial Technologies, Inc. (the
"Option Plan").
As counsel for the Company, we have examined a copy of the Option Plan;
the Company's Certificate of Incorporation and By-laws, each as amended and
restated to date and presently in effect; the Registration Statement; and such
records, certificates and other documents of the Company as we have deemed
necessary or appropriate for the purposes of this opinion. In our examination,
we have assumed the genuineness of all signatures, the legal capacity of natural
persons, the authenticity of all documents submitted to us as certified,
photostatic or facsimile copies, the authenticity of the originals of such
copies and the authenticity of telephonic confirmations of public officials and
others. As to facts material to our opinion, we have relied upon certificates or
telephonic confirmations of public officials and certificates, documents,
statements and other information of the Company or representatives or officers
thereof.
We are attorneys admitted to practice in The Commonwealth of
Massachusetts. We express no opinion concerning the laws of any jurisdictions
other than the laws of the United States of America and The Commonwealth of
Massachusetts and the Delaware General Corporation Law.
Based on the foregoing, we are of the opinion that upon the issuance
and delivery of the Shares against payment therefor in accordance with the terms
of the Option Plan, the Shares will be validly issued, fully paid and
non-assessable shares of the Company's Common Stock.
<PAGE>
The foregoing assumes all requisite steps will be taken to comply with
the requirements of the Securities Act and applicable requirements of state laws
regulating the offer and sale of securities.
We hereby consent to the inclusion of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ GOODWIN, PROCTER & HOAR LLP
GOODWIN, PROCTER & HOAR LLP
Exhibit 23.2
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the 1999 Stock Incentive Plan as Amended and Restated of
Centennial Technologies, Inc. of our report dated May 1, 2000, with respect to
the consolidated financial statements and schedule of Centennial Technologies,
Inc. included in its Annual Report (Form 10-K) for the year ended March 25,
2000, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
ERNST & YOUNG LLP
Boston, Massachusetts
May 15, 2000
Exhibit 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated May 15, 1998 relating to the financial
statements and financial statement schedule, which appears in the Centennial
Technologies, Inc.'s Annual Report on Form 10-K for the year ended March 25,
2000.
/s/ PricewaterhouseCoopers LLP
Boston, Massachusetts
May 15, 2000
Exhibit 99.1
CENTENNIAL TECHNOLOGIES, INC.
1999 STOCK INCENTIVE PLAN
1. PURPOSE
The purpose of this 1999 Stock Incentive Plan (the "Plan") of Centennial
Technologies, Inc., a Delaware corporation (the "Company"), is to advance the
interests of the Company's stockholders by enhancing the Company's ability to
attract, retain and motivate persons who make (or are expected to make)
important contributions to the Company by providing such persons with equity
ownership opportunities and performance-based incentives and thereby better
aligning the interests of such persons with those of the Company's stockholders.
Except where the context otherwise requires, the term "Company" shall include
any of the Company's present or future subsidiary corporations as defined in
Section 424(f) of the Internal Revenue Code of 1986, as amended, and any
regulations promulgated thereunder (the "Code").
2. ELIGIBILITY
All of the Company's employees, officers, directors, consultants and
advisors (and any individuals who have accepted an offer for employment) are
eligible to be granted options, restricted stock awards, or other stock-based
awards (each, an "Award") under the Plan. Each person who has been granted an
Award under the Plan shall be deemed a "Participant".
3. ADMINISTRATION, DELEGATION
ADMINISTRATION BY BOARD OF DIRECTORS. The Plan will be administered by the
Board of Directors of the Company (the "Board"). The Board shall have authority
to grant Awards and to adopt, amend and repeal such administrative rules,
guidelines and practices relating to the Plan as it shall deem advisable. The
Board may correct any defect, supply any omission or reconcile any inconsistency
in the Plan or any Award in the manner and to the extent it shall deem expedient
to carry the Plan into effect and it shall be the sole and final judge of such
expediency. All decisions by the Board shall be made in the Board's sole
discretion and shall be final and binding on all persons having or claiming any
interest in the Plan or in any Award. No director or person acting pursuant to
the authority delegated by the Board shall be liable for any action or
determination relating to or under the Plan made in good faith.
DELEGATION TO EXECUTIVE OFFICERS. To the extent permitted by applicable
law, the Board or any Committee (as defined in Section 3(c)) may delegate to one
or more executive officers of the Company the power to make Awards to new
employees of the Company, excluding directors and officers, and to exercise such
other powers under the Plan as the Board may determine, provided that the Board
shall fix the maximum number of shares subject to Awards and the maximum number
of shares for any one Participant to be made by such executive officers.
APPOINTMENT OF COMMITTEES. To the extent permitted by applicable law, the
Board shall appoint a committee or subcommittee of the Board (a "Committee") of
not less than two members, each member of which shall be an "outside director"
within the meaning of Section 162(m) of the Code and a "non-employee director"
as defined in Rule 16b-3 promulgated under the Securities Exchange Act of 1934
(the "Exchange Act"). All references in the Plan to the "Board" shall mean the
Board or a Committee of the Board or the executive officer referred to in
Section 3(b) to the extent that the Board's powers or authority under the Plan
have been delegated to such Committee or executive officer.
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4. STOCK AVAILABLE FOR AWARDS
NUMBER OF SHARES. Subject to adjustment under Section 8, Awards may be made
under the Plan for up to 1,000,000 shares of common stock, $.01 par value per
share, of the Company (the "Common Stock"). If any Award expires or is
terminated, surrendered or canceled without having been fully exercised or is
forfeited in whole or in part or results in any Common Stock not being issued,
the unused Common Stock covered by such Award shall again be available for the
grant of Awards under the Plan, subject, however, in the case of Incentive Stock
Options (as hereinafter defined), to any limitation required under the Code.
Shares issued under the Plan may consist in whole or in part of authorized but
unissued shares or treasury shares.
PER-PARTICIPANT LIMIT. Subject to adjustment under Section 8, the maximum
number of shares of Common Stock with respect to which Awards may be granted to
any Participant under the Plan shall be 500,000 per calendar year. The
per-Participant limit described in this Section 4(b) shall be construed and
applied consistently with Section 162(m) of the Code ("Section 162(m)").
5. STOCK OPTIONS
GENERAL. The Board may grant options to purchase Common Stock (each, an
"Option") and determine the number of shares of Common Stock to be covered by
each Option, the exercise price of each Option and the conditions and
limitations applicable to the exercise of each Option, including conditions
relating to applicable federal or state securities laws, as it considers
necessary or advisable. An Option which is not intended to be an Incentive Stock
Option (as hereinafter defined) shall be designated a "Nonstatutory Stock
Option".
INCENTIVE STOCK OPTIONS. An Option that the Board intends to be an
"incentive stock option" as defined in Section 422 of the Code (an "Incentive
Stock Option") shall only be granted to employees of the Company and shall be
subject to and shall be construed consistently with the requirements of Section
422 of the Code. The Company shall have no liability to a Participant, or any
other party, if an Option (or any part thereof) which is intended to be an
Incentive Stock Option is not an Incentive Stock Option.
EXERCISE PRICE. The Board shall establish the exercise price at the time
each Option is granted and specify it in the applicable option agreement;
provided, however, that the exercise price shall be not less than 100% of the
fair market value of the Common Stock, as determined by the Board, at the time
the Option is granted.
DURATION OF OPTIONS. Each Option shall be exercisable at such times and
subject to such terms and conditions as the Board may specify in the applicable
option agreement; provided, however, that no Option will be granted for a term
in excess of 10 years.
EXERCISE OF OPTION. Options may be exercised by delivery to the Company of
a written notice of exercise signed by the proper person or by any other form of
notice (including electronic notice) approved by the Board together with payment
in full as specified in Section 5(f) for the number of shares for which the
Option is exercised. No Option that is classified as an Incentive Stock Option
may be exercised within one year of the date of grant of such Option.
PAYMENT UPON EXERCISE. Common Stock purchased upon the exercise of an
Option granted under the Plan shall be paid for as follows:
(1) in cash or by check, payable to the order of the Company;
(2) except as the Board may, in its sole discretion, otherwise provide
in an option agreement, by (i) delivery of an irrevocable and unconditional
undertaking by a creditworthy broker to deliver promptly to the Company
sufficient funds to pay the exercise price or (ii) delivery by the Participant
to the Company of a copy of irrevocable and unconditional instructions to a
creditworthy broker to deliver promptly to the Company cash or a check
sufficient to pay the exercise price;
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(3) by delivery of shares of Common Stock owned by the Participant
valued at their fair market value as determined by (or in a manner approved by)
the Board in good faith ("Fair Market Value"), provided (i) such method of
payment is then permitted under applicable law and (ii) such Common Stock was
owned by the Participant at least six months prior to such delivery;
(4) to the extent permitted by the Board, in its sole discretion and
consistent with applicable law, by (i) delivery of a promissory note of the
Participant to the Company on terms determined by the Board, or (ii) payment of
such other lawful consideration as the Board may determine; or
(5) by any combination of the above permitted forms of payment.
6. RESTRICTED STOCK
GRANTS. The Board may grant Awards entitling recipients to acquire shares
of Common Stock, subject to the right of the Company to repurchase all or part
of such shares at their issue price or other stated or formula price (or to
require forfeiture of such shares if issued at no cost) from the recipient in
the event that conditions specified by the Board in the applicable Award are not
satisfied prior to the end of the applicable restriction period or periods
established by the Board for such Award (each, a "Restricted Stock Award").
TERMS AND CONDITIONS. The Board shall determine the terms and conditions of
any such Restricted Stock Award, including the conditions for repurchase (or
forfeiture) and the issue price, if any. Any stock certificates issued in
respect of a Restricted Stock Award shall be registered in the name of the
Participant and, unless otherwise determined by the Board, deposited by the
Participant, together with a stock power endorsed in blank, with the Company (or
its designee). At the expiration of the applicable restriction periods, the
Company (or such designee) shall deliver the certificates no longer subject to
such restrictions to the Participant or if the Participant has died, to the
beneficiary designated, in a manner determined by the Board, by a Participant to
receive amounts due or exercise rights of the Participant in the event of the
Participant's death (the "Designated Beneficiary"). In the absence of an
effective designation by a Participant, Designated Beneficiary shall mean the
Participant's estate.
7. OTHER STOCK-BASED AWARDS
The Board shall have the right to grant other Awards based upon the Common
Stock having such terms and conditions as the Board may determine, including the
grant of shares based upon certain conditions, the grant of securities
convertible into Common Stock and the grant of stock appreciation rights.
8. ADJUSTMENTS FOR CHANGES IN COMMON STOCK AND CERTAIN OTHER EVENTS
CHANGES IN CAPITALIZATION. In the event of any stock split, reverse stock
split, stock dividend, recapitalization, combination of shares, reclassification
of shares, spin-off or other similar change in capitalization or event, or any
distribution to holders of Common Stock other than a normal cash dividend, (i)
the number and class of securities available under this Plan, (ii) the
per-Participant limit set forth in Section 4(b), (iii) the number and class of
securities and exercise price per share subject to each outstanding Option, (iv)
the repurchase price per share subject to each outstanding Restricted Stock
Award, and (v) the terms of each other outstanding Award shall be appropriately
adjusted by the Company (or substituted Awards may be made, if applicable) to
the extent the Board shall determine, in good faith, that such an adjustment (or
substitution) is necessary and appropriate. If this Section 8(a) applies and
Section 8(c) also applies to any event, Section 8(c) shall be applicable to such
event, and this Section 8(a) shall not be applicable.
LIQUIDATION OR DISSOLUTION. In the event of a proposed liquidation or
dissolution of the Company, the Board shall upon written notice to the
Participants provide that all then unexercised Options will (i) become
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exercisable in full as of a specified time at least 10 business days prior to
the effective date of such liquidation or dissolution and (ii) terminate
effective upon such liquidation or dissolution, except to the extent exercised
before such effective date. The Board may specify the effect of a liquidation or
dissolution on any Restricted Stock Award or other Award granted under the Plan
at the time of the grant of such Award.
ACQUISITION EVENTS
DEFINITION. An "Acquisition Event" shall mean: (a) any merger or
consolidation of the Company with or into another entity as a result of which
the Common Stock is converted into or exchanged for the right to receive cash,
securities or other property or (b) any exchange of shares of the Company for
cash, securities or other property pursuant to a statutory share exchange
transaction.
CONSEQUENCES OF AN ACQUISITION EVENT ON OPTIONS. Upon the occurrence of an
Acquisition Event, or the execution by the Company of any agreement with respect
to an Acquisition Event, the Board shall provide that all outstanding Options
shall be assumed, or equivalent options shall be substituted, by the acquiring
or succeeding corporation (or an affiliate thereof). For purposes hereof, an
Option shall be considered to be assumed if, following consummation of the
Acquisition Event, the Option confers the right to purchase, for each share of
Common Stock subject to the Option immediately prior to the consummation of the
Acquisition Event, the consideration (whether cash, securities or other
property) received as a result of the Acquisition Event by holders of Common
Stock for each share of Common Stock held immediately prior to the consummation
of the Acquisition Event (and if holders were offered a choice of consideration,
the type of consideration chosen by the holders of a majority of the outstanding
shares of Common Stock); provided, however, that if the consideration received
as a result of the Acquisition Event is not solely common stock of the acquiring
or succeeding corporation (or an affiliate thereof), the Company may, with the
consent of the acquiring or succeeding corporation, provide for the
consideration to be received upon the exercise of Options to consist solely of
common stock of the acquiring or succeeding corporation (or an affiliate
thereof) equivalent in fair market value to the per share consideration received
by holders of outstanding shares of Common Stock as a result of the Acquisition
Event.
Notwithstanding the foregoing, if the acquiring or succeeding corporation
(or an affiliate thereof) does not agree to assume, or substitute for, such
Options, then the Board shall, upon written notice to the Participants, provide
that all then unexercised Options will become exercisable in full as of a
specified time prior to the Acquisition Event and will terminate immediately
prior to the consummation of such Acquisition Event, except to the extent
exercised by the Participants before the consummation of such Acquisition Event;
provided, however, that in the event of an Acquisition Event under the terms of
which holders of Common Stock will receive upon consummation thereof a cash
payment for each share of Common Stock surrendered pursuant to such Acquisition
Event (the "Acquisition Price"), then the Board may instead provide that all
outstanding Options shall terminate upon consummation of such Acquisition Event
and that each Participant shall receive, in exchange therefor, a cash payment
equal to the amount (if any) by which (A) the Acquisition Price multiplied by
the number of shares of Common Stock subject to such outstanding Options
(whether or not then exercisable), exceeds (B) the aggregate exercise price of
such Options.
CONSEQUENCES OF AN ACQUISITION EVENT ON RESTRICTED STOCK AWARDS. Upon the
occurrence of an Acquisition Event, the repurchase and other rights of the
Company under each outstanding Restricted Stock Award shall inure to the benefit
of the Company's successor and shall apply to the cash, securities or other
property which the Common Stock was converted into or exchanged for pursuant to
such Acquisition Event in the same manner and to the same extent as they applied
to the Common Stock subject to such Restricted Stock Award.
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CONSEQUENCES OF AN ACQUISITION EVENT ON OTHER AWARDS. The Board shall
specify the effect of an Acquisition Event on any other Award granted under the
Plan at the time of the grant of such Award.
9. GENERAL PROVISIONS APPLICABLE TO AWARDS
TRANSFERABILITY OF AWARDS. Except as the Board may otherwise determine or
provide in an Award, Awards shall not be sold, assigned, transferred, pledged or
otherwise encumbered by the person to whom they are granted, either voluntarily
or by operation of law, except by will or the laws of descent and distribution,
and, during the life of the Participant, shall be exercisable only by the
Participant. References to a Participant, to the extent relevant in the context,
shall include references to authorized transferees.
DOCUMENTATION. Each Award shall be evidenced by a written instrument in
such form as the Board shall determine; such written instrument may be in the
form of an agreement signed by the Company and the Participant or a written
confirming memorandum to the Participant from the Company. Each Award may
contain terms and conditions in addition to those set forth in the Plan.
BOARD DISCRETION. Except as otherwise provided by the Plan, each Award may
be made alone or in addition or in relation to any other Award. The terms of
each Award need not be identical, and the Board need not treat Participants
uniformly.
TERMINATION OF STATUS. The Board shall determine the effect on an Award of
the disability, death, retirement, authorized leave of absence or other change
in the employment or other status of a Participant and the extent to which, and
the period during which, the Participant, the Participant's legal
representative, conservator, guardian or Designated Beneficiary may exercise
rights under the Award.
WITHHOLDING. Each Participant shall pay to the Company, or make provision
satisfactory to the Board for payment of, any taxes required by law to be
withheld in connection with Awards to such Participant no later than the date of
the event creating the tax liability. Except as the Board may otherwise provide
in an Award, when the Common Stock is registered under the Exchange Act,
Participants may, to the extent then permitted under applicable law, satisfy
such tax obligations in whole or in part by delivery of shares of Common Stock,
including shares retained from the Award creating the tax obligation, valued at
their Fair Market Value. The Company may, to the extent permitted by law, deduct
any such tax obligations from any payment of any kind otherwise due to a
Participant.
AMENDMENT OF AWARD. The Board may amend, modify or terminate any
outstanding Award, including but not limited to, substituting therefor another
Award of the same or a different type, changing the date of exercise or
realization, and converting an Incentive Stock Option to a Nonstatutory Stock
Option, provided that the Participant's consent to such action shall be required
unless the Board determines that the action, taking into account any related
action, would not materially and adversely affect the Participant.
CONDITIONS ON DELIVERY OF STOCK. The Company will not be obligated to
deliver any shares of Common Stock pursuant to the Plan or to remove
restrictions from shares previously delivered under the Plan until (i) all
conditions of the Award have been met or removed to the satisfaction of the
Company, (ii) in the opinion of the Company's counsel, all other legal matters
in connection with the issuance and delivery of such shares have been satisfied,
including any applicable securities laws and any applicable stock exchange or
stock market rules and regulations, and (iii) the Participant has executed and
delivered to the Company such representations or agreements as the Company may
consider appropriate to satisfy the requirements of any applicable laws, rules
or regulations.
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ACCELERATION. The Board may at any time provide that any Options shall
become immediately exercisable in full or in part, that any Restricted Stock
Awards shall be free of restrictions in full or in part or that any other Awards
may become exercisable in full or in part or free of some or all restrictions or
conditions, or otherwise realizable in full or in part, as the case may be.
10. MISCELLANEOUS
NO RIGHT TO EMPLOYMENT OR OTHER STATUS. No person shall have any claim or
right to be granted an Award, and the grant of an Award shall not be construed
as giving a Participant the right to continued employment or any other
relationship with the Company. The Company expressly reserves the right at any
time to dismiss or otherwise terminate its relationship with a Participant free
from any liability or claim under the Plan, except as expressly provided in the
applicable Award.
NO RIGHTS AS STOCKHOLDER. Subject to the provisions of the applicable
Award, no Participant or Designated Beneficiary shall have any rights as a
stockholder with respect to any shares of Common Stock to be distributed with
respect to an Award until becoming the record holder of such shares.
Notwithstanding the foregoing, in the event the Company effects a split of the
Common Stock by means of a stock dividend and the exercise price of and the
number of shares subject to such Option are adjusted as of the date of the
distribution of the dividend (rather than as of the record date for such
dividend), then an optionee who exercises an Option between the record date and
the distribution date for such stock dividend shall be entitled to receive, on
the distribution date, the stock dividend with respect to the shares of Common
Stock acquired upon such Option exercise, notwithstanding the fact that such
shares were not outstanding as of the close of business on the record date for
such stock dividend.
EFFECTIVE DATE AND TERM OF PLAN. The Plan shall become effective on the
date on which it is adopted by the Board, but the classification of an Option
granted to a Participant under the Plan as an Incentive Stock Option shall be
conditioned upon the approval of the Plan by the Company's stockholders within
one year of the effective date of the Plan. No Award granted to a Participant
after the first anniversary of the effective date of the Plan that is intended
to comply with Section 162(m) shall become exercisable, vested or realizable, as
applicable to such Award, unless and until the Plan has been approved by the
Company's stockholders to the extent stockholder approval is required by Section
162(m) in the manner required under Section 162(m) (including the vote required
under Section 162(m)). No Awards shall be granted under the Plan after the
completion of ten years from the earlier of (i) the date on which the Plan was
adopted by the Board or (ii) the date the Plan was approved by the Company's
stockholders, but Awards previously granted may extend beyond that date.
AMENDMENT OF PLAN. The Board may amend, suspend or terminate the Plan or
any portion thereof at any time, provided that to the extent required by Section
162(m), no Award granted to a Participant after the first anniversary o the
effective date of the Plan and after the date of such amendment that is intended
to comply with Section 162(m) shall become exercisable, realizable or vested, as
applicable to such Award, unless and until such amendment shall have been
approved by the Company's stockholders are required by Section 162(m) (including
the vote required under Section 162(m)).
GOVERNING LAW. The provisions of the Plan and all Awards made hereunder
shall be governed by and interpreted in accordance with the laws of the State of
Delaware, without regard to any applicable conflicts of law.
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