EXHIBIT 4.3
KIRLIN SECURITIES, INC.
DEFERRED COMMISSION PLAN
FOR PERIODS ON AND AFTER JULY 1, 2000
Effective as of July 1, 2000
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KIRLIN SECURITIES, INC.
DEFERRED COMMISSION PLAN
FOR PERIODS ON AND AFTER JULY 1, 2000
Effective as of July 1, 2000
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
1.1 BENEFICIARY........................................................1
1.2 CODE...............................................................1
1.3 COMPANY............................................................1
1.4 COMMON STOCK ......................................................1
1.5 GROSS PERSONAL PRODUCTION..........................................1
1.6 EFFECTIVE DATE.....................................................1
1.7 EMPLOYER...........................................................1
1.8 FAIR MARKET VALUE..................................................1
1.9 PARTICIPANT........................................................2
1.10 PLAN...............................................................2
1.11 PLAN YEAR..........................................................2
1.12 RESTRICTION PERIOD.................................................2
1.13 RESTRICTED STOCK...................................................2
ARTICLE II
STOCK SUBJECT TO PLAN
2.1 NUMBER OF SHARES...................................................2
2.2 ADJUSTMENT UPON CHANGES IN CAPITALIZATION, ETC.....................2
ARTICLE III
AYMENTS OF COMMISSIONS IN CASH AND RESTRICTED STOCK
3.1 CASH COMMISSIONS/GRANTS OF RESTRICTED STOCK........................2
3.2 TERMS AND CONDITIONS OF RESTRICTED STOCK...........................3
ARTICLE IV
ENTITLEMENT TO RESTRICTED STOCK
4.1 VESTING/FORFEITURE.................................................4
4.2 DISABILITY.........................................................5
4.3 DEATH..............................................................5
4.4 TERMINATION AFTER AGE 65...........................................5
4.5 TERMINATION OF EMPLOYMENT OF CERTAIN LONGTERM EMPLOYEES............5
4.6 FORFEITURE UPON VOLUNTARY TERMINATION BY
PARTICIPANT OR INVOLUNTARY TERMINATION.............................5
4.7 FORFEITURE UPON OCCURRENCE OF CERTAIN EVENTS.......................6
4.8 EMPLOYER'S WAIVER OF CONDITIONS....................................6
ARTICLE V
BENEFICIARIES; PARTICIPANT DATA
5.1 DESIGNATION OF BENEFICIARIES.......................................6
5.2 INFORMATION TO BE FURNISHED BY PARTICIPANT AND
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BENEFICIARIES; INABILITY TO LOCATE PARTICIPANT OR BENEFICIARIES....6
ARTICLE VI
ADMINISTRATION AND RECORDKEEPING
6.1 ADMINISTRATIVE AND RECORDKEEPING AUTHORITY.........................7
6.2 UNIFORMITY OF DISCRETIONARY ACTS...................................7
6.3 LITIGATION.........................................................8
ARTICLE VII
AMENDMENT
7.1 RIGHT TO AMEND.....................................................8
7.2 CONFLICTS..........................................................8
ARTICLE VIII
TERMINATION
8.1 EMPLOYER'S RIGHT TO TERMINATE OR SUSPEND PLAN......................8
8.2 AUTOMATIC TERMINATION OF PLAN......................................8
8.3 SUSPENSION OF CREDITS..............................................8
8.4 ALLOCATION AND DISTRIBUTION........................................8
8.5 SUCCESSOR TO EMPLOYER..............................................9
ARTICLE IX
MISCELLANEOUS
9.2 LIMITATIONS ON LIABILITY OF EMPLOYER...............................9
9.3 CONSTRUCTION.......................................................9
9.4 SPENDTHRIFT PROVISION.............................................10
9.5 TAX WITHHOLDING...................................................10
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KIRLIN SECURITIES, INC.
DEFERRED COMMISSION PLAN
FOR PERIODS ON AND AFTER JULY 1, 2000
Effective as of July 1, 2000
RECITALS
This Kirlin Securities, Inc. Deferred Commission Plan For Periods On and
After July 1, 2000 (the "Plan") hereby is adopted by Kirlin Securities, Inc.
(the "Employer") for the benefit of certain employees of the Employer. The
purpose of the Plan is to identify the Participants' interests with the
interests of the Employer. The Plan furthers this purpose by providing each
Participant with deferred payments of commissions due from the Employer in the
form of restricted stock of Kirlin Holding Corp. (the "Company").
Accordingly, the following Plan is adopted.
ARTICLE I
DEFINITIONS
The following terms, as used herein, unless a different meaning clearly is
implied by the context, have the following meanings:
1.1 BENEFICIARY means any person or persons so designated in accordance
with the provisions of Article V.
1.2 CODE means the Internal Revenue Code of 1986 and the regulations
thereunder, as amended from time to time.
1.3 COMPANY means Kirlin Holding Corp., a corporation organized under the
laws of the State of Delaware.
1.4 COMMON STOCK means the common stock of the Company, par value $.0001
per share.
1.5 GROSS PERSONAL PRODUCTION means the gross commissions received by the
Employer in respect of services performed by the Participant for the month of
reference, as adjusted by the Employer in accordance with its standard
procedures.
1.6 EFFECTIVE DATE means the effective date of this Plan, which shall be
July 1, 2000.
1.7 EMPLOYER means Kirlin Securities, Inc., its successors and assigns
unless otherwise herein provided, or any other corporation or business
organization which, with the consent of Kirlin Securities, Inc. or its
successors or assigns, assumes the Employer's obligations hereunder, or any
other corporation or business organization which agrees, with the consent of
Kirlin Securities, Inc., to become a party to the Plan.
1.8 FAIR MARKET VALUE, unless otherwise required by any applicable
provision of the Code or any regulations issued thereunder, means, as of any
given date: (i) if the Common Stock is listed on a national securities exchange
or quoted on the NASDAQ National Market, NASDAQ SmallCap Market or the NASD OTC
Bulletin Board, the last sale price of the Common Stock in the principal trading
market for the Common Stock on the last trading day preceding the date of grant
of an award hereunder, as reported by the exchange , NASDAQ or NASD OTC Bulletin
Board, as the case may be; (ii) if the Common Stock is not listed on a national
securities exchange or quoted on the NASDAQ National Market, NASDAQ SmallCap
Market or NASD OTC Bulletin Board, but is traded in the residual
over-the-counter market, the closing bid price for the Common Stock on the last
trading day preceding the date of grant of an award hereunder for which such
quotations are reported by the National Quotation Bureau, Incorporated or
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similar publisher of such quotations; and (iii) if the fair market value of the
Common Stock cannot be determined pursuant to clause (i) or (ii) above, such
price as the Employer shall determine, in good faith.
1.9 PARTICIPANT means any Registered Representative of the Employer who has
entered into an Association Agreement with the Employer which is in effect,
excluding (i) those Registered Representatives who are offered by the Employer
the right to elect not to participate in the Plan and who elect in writing not
to participate in the Plan and (ii) apprentices.
1.10 PLAN means this Kirlin Securities, Inc. Deferred Commission Plan For
Periods On and After July 1, 2000, as amended from time to time. This Plan
document governs the manner and terms of grants of Restricted Stock to
Participants described herein, which Restricted Stock is authorized to be issued
by the Kirlin Holding Corp. 1996 Stock Plan. The Kirlin Holding Corp. 1996 Stock
Plan hereby is incorporated herein by reference as if set forth completely
herein.
1.11 PLAN YEAR means the calendar year.
1.12 RESTRICTION PERIOD means the time or times within which an award of
Restricted Stock may be subject to forfeiture, pursuant to Article IV.
1.13 RESTRICTED STOCK means Common Stock of the Company, received under an
award made pursuant to the Plan, that is subject to restrictions under Article
IV.
ARTICLE II
STOCK SUBJECT TO PLAN
2.1 NUMBER OF SHARES. The total number of shares of Common Stock reserved
and available for distribution under the Plan shall be Two Million (2,000,000)
shares. Shares of Common Stock under the Plan may consist, in whole or in part,
of authorized and unissued shares or treasury shares. If any shares of
Restricted Stock granted hereunder are forfeited, such shares shall again be
available for distribution in connection with future grants and awards under the
Plan.
2.2 ADJUSTMENT UPON CHANGES IN CAPITALIZATION, ETC. In the event of any
merger, reorganization, consolidation, recapitalization, dividend (other than a
cash dividend), stock split, reverse stock split, or other change in corporate
structure affecting the Common Stock, such substitution or adjustment shall be
made in the aggregate number of shares reserved for issuance under the Plan and
in the number of shares subject to outstanding awards of Restricted Stock
granted under the Plan as may be determined to be appropriate by the Employer in
order to prevent dilution or enlargement of rights, provided that any fractional
shares resulting from such adjustment shall be eliminated by rounding to the
next lower whole number of shares.
ARTICLE III
PAYMENTS OF COMMISSIONS IN CASH AND RESTRICTED STOCK
3.1 CASH COMMISSIONS/GRANTS OF RESTRICTED STOCK. In accordance with rules
established by the Employer, the Employer shall pay to each Participant in cash
or in Restricted Stock amounts based on the Gross Personal Production generated
by the Participant for each month during which the Participant is a Participant,
in accordance with the following schedules:
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Amount Paid In Respect of Monthly Gross Personal Production
--------------------------------------------------------------------------------
Percentage of Monthly Percentage of Monthly
Gross Personal Gross Personal
Monthly Gross Personal Production Payable Production Deliverable
Production Monthly as Current Cash Quarterly in Restricted
Stock
---------------------------- ------------------------ -----------------------
Less than $10,000 40% 0%
$10,000 or more but less
than $20,000 40% 3%
$20,000 or more but less 5%
than $30,000 45%
$30,000 or more but less 6%
than $50,000 49%
$50,000 or more but less
than $75,000 50% 6%
$75,000 or more 50% 8%
The value of the shares of Restricted Stock which are granted to a
Participant for a calendar quarter shall be equal to the sum of the
Participant's Gross Personal Production for each month in the calendar quarter
multiplied by the applicable "Percentage of Monthly Gross Personal Production
Deliverable Quarterly in Restricted Stock" for the month (as determined in
accordance with the preceding table). When the value of shares of Restricted
Stock which are subject to grant to a Participant for a calendar quarter is
determined, the number of shares of Restricted Stock which shall be granted to
the Participant following the end of the calendar quarter shall be determined by
dividing such value by the Fair Market Value of a share of Common Stock on the
last trading day of the calendar quarter for which the Restricted Stock is
granted. The grant date for awards of Restricted Stock granted for a calendar
quarter shall be the first business day of the calendar quarter next following
the calendar quarter for which the Restricted Stock is awarded.
Notwithstanding the preceding, the Employer shall have the discretion to
pay to a Participant an amount of cash orgrant an amount of Restricted Stock in
percentages that are different than the percentages set forth above by a written
instrument signed by the Employer and the Participant, subject to any terms and
conditions specified therein, as determined by the Employer in its discretion.
In the case of any such written instrument, such written instrument shall be
deemed to be for all purposes a part of this Plan with respect to the
Participant named therein.
3.2 TERMS AND CONDITIONS OF RESTRICTED STOCK.
(a) Certificates. Restricted Stock, when issued, will be
represented by a stock certificate or certificates registered in the name of the
Participant to whom such Restricted Stock shall have been awarded. During the
Restriction Period, certificates representing Restricted Stock and any
securities constituting Retained Distributions (as defined below) shall bear a
legend to the effect that ownership of the Restricted Stock (and such Retained
Distributions), and the enjoyment of all rights appurtenant thereto, are subject
to the restrictions, terms and conditions provided in the Plan. Such
certificates shall be deposited by the Participant with the Company (or retained
by the Company at the Company's discretion), together with stock powers or other
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instruments of assignment, each endorsed in blank, which will permit transfer to
(or retention by) the Company of all or any portion of the Restricted Stock and
any securities constituting Retained Distributions that shall be forfeited or
that shall not become vested in accordance with the Plan.
(b) Rights of Participant. Restricted Stock shall constitute
issued and outstanding shares of Common Stock for all corporate purposes. The
Participant will have the right to vote such Restricted Stock, to receive and
retain all regular cash dividends and other cash equivalent distributions as the
Company may in its sole discretion designate, pay or distribute on such
Restricted Stock and to exercise all other rights, powers and privileges of a
holder of Common Stock with respect to such Restricted Stock, with the
exceptions that: (i) the Participant will not be entitled to delivery of the
stock certificate or certificates representing such Restricted Stock unless and
until the Restriction Period shall have expired, all other vesting requirements
with respect thereto shall have been fulfilled and all appropriate arrangements
have been made for the Employer's withholding of income taxes; (ii) the Company
will retain custody of the stock certificate or certificates representing the
Restricted Stock during the Restriction Period; (iii) other than regular cash
dividends and other cash equivalent distributions as the Company's Board of
Directors may in it sole discretion designate, pay or distribute, the Company
will retain custody of all distributions ("Retained Distributions") made or
declared with respect to the Restricted Stock (and such Retained Distributions
will be subject to the same restrictions, terms and conditions as are applicable
to the Restricted Stock) until such time, if ever, as the Restricted Stock with
respect to which such Retained Distributions shall have been made, paid or
declared shall have become vested and with respect to which the Restriction
Period shall have expired; (iv) a breach of any of the restrictions, terms or
conditions contained in this Plan or otherwise established by the Employer with
respect to any Restricted Stock or Retained Distributions will cause a
forfeiture of such Restricted Stock and any Retained Distributions with respect
thereto.
(c) No Fractional Shares. No fractional shares of Restricted
Stock shall be awarded under the Plan. If the calculations pursuant to Section
3.1 would result in the issuance of a fractional share, the cash value of the
fractional share (determined by the Employer as of the last trading day of the
calendar quarter for which the Restricted Stock would otherwise be awarded) will
be remitted to the Participant in the Participant's next following commission
check.
ARTICLE IV
ENTITLEMENT TO RESTRICTED STOCK
4.1 VESTING/FORFEITURE. Upon the expiration of the Restriction Period with
respect to each award of Restricted Stock and the satisfaction of any other
applicable restrictions, terms and conditions: (i) all or part of such
Restricted Stock shall become vested, and (ii) any Retained Distributions with
respect to such Restricted Stock shall become vested to the extent that the
Restricted Stock related thereto shall have become vested. Any such Restricted
Stock and Retained Distributions that do not vest shall be forfeited to the
Company upon the Participant's termination of employment (except as provided in
Sections 4.2 through 4.5) and the Participant shall not have any rights with
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respect to such Restricted Stock and Retained Distributions that shall have been
so forfeited. Except as provided in the remaining Sections of this Article IV,
the Restriction Period with respect to an award of Restricted Stock granted
under the Plan shall expire, and the Restricted Stock and any related Retained
Distributions shall vest, on the third anniversary of the date on which the
Restricted Stock was awarded.
4.2 DISABILITY. If a Participant, at any time prior to the vesting of the
Restricted Stock awarded to him or her as provided herein, shall become totally
and permanently disabled, and if proof of such disability satisfactory to the
Employer shall be furnished, such Participant shall continue to be credited with
vesting service following termination of employment due to total and permanent
disability with respect to the then-unvested Restricted Stock awarded to him or
her. Total and permanent disability means a medically determinable physical or
mental impairment which can be expected to result in death or to last at least
twelve (12) months, or by reason of which the Participant will be prevented from
performing his or her usual duties or any other similar duties available in the
Employer's employ.
4.3 DEATH. If a Participant dies prior to forfeiture of Restricted Stock
awarded to him or her under the Plan, all Restricted Stock awarded to the
Participant under the Plan become fully vested and shall become distributable to
the Participant's designated Beneficiary or Beneficiaries as provided in Article
V free of any restrictions.
4.4 TERMINATION AFTER AGE 65. If a Participant's employment relationship
terminates with the Employer following the Participant's attainment of age
sixty-five (65), the Participant shall continue to be credited with vesting
service following the Participant's termination of employment with the Employer
with respect to the then-unvested Restricted Stock awarded to him or her.
4.5 TERMINATION OF EMPLOYMENT OF CERTAIN LONG-TERM
EMPLOYEES. If a Participant's employment relationship with the Employer is
voluntarily terminated by the Participant and such Participant (i) was hired by
the Employer before, and was employed as an employee of the Employer on, January
1, 1996 or, (ii) as of the date of termination of employment, had been in
continuous employment with the Employer for five (5) full years, the Participant
shall continue to be credited with vesting service following the Participant's
termination of employment with the Employer with respect to the then-unvested
Restricted Stock awarded to him or her. This Section shall not apply to a
Participant whose employment is terminated by the Employer for "cause". For
these purposes, "cause" means, in connection with the termination of the
Participant's employment by the Employer, (a) the willful and continued failure
by the Participant substantially to perform the Participant's duties with the
Employer (other than any such failure resulting from his or her incapacity due
to physical or mental illness) or (b) the willful engaging by the Participant in
conduct that is demonstrably and materially injurious to the Employer,
monetarily or otherwise.
4.6 FORFEITURE UPON VOLUNTARY TERMINATION BY PARTICIPANT OR INVOLUNTARY
TERMINATION. Subject to Sections 4.1 through 4.5, if the Participant's
termination of employment relationship with the Employer occurs prior to the
Participant's vesting date specified in Section 4.1 or if the Employer's
employment relationship with the Participant is involuntarily terminated by the
Employer, the Participant shall forfeit all of his or her right and interest in
his or her then-unvested Restricted Stock award.
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4.7 FORFEITURE UPON OCCURRENCE OF CERTAIN EVENTS. A Participant who becomes
entitled to continue to have his or her Restricted Stock award become vested
following termination of employment under Sections 4.2, 4.4 or 4.5 and who has
entered into competitive employment with the Employer, has violated the
Participant's Association Agreement with the Employer or has violated any other
contractual obligation the Participant owes to the Employer (each as determined
by the Employer in its discretion) shall forfeit any amounts which are
then-unvested as of the date of the Employer's determination that such
competition or violation has occurred. A Participant shall be deemed to be in
competitive employment with the Employer if the Participant performs services,
as a sole proprietor, independent contractor, employee, partner, shareholder or
otherwise, of a nature similar to the services that had been performed by the
Participant for the Employer (other than the performance of investment services
for the Participant's personal investment account). The Participant's forfeiture
of his or her Restricted Stock award under this Section shall not affect the
Employer's other legal rights against the Participant as may arise from such
activities by the Participant.
4.8 EMPLOYER'S WAIVER OF CONDITIONS. The Employer may, in its sole and
absolute discretion, waive any condition to payment and/or vesting of any award
hereunder with respect to any one or more Participants and no waiver hereunder
of one Participant's conditions of payment and/or vesting of any awards shall
constitute a waiver of those of any other Participant nor shall any such waiver
serve to waive any obligations or conditions of forfeiture other than those that
are specifically set forth in writing in such waiver. No waiver shall be
effective unless it is set forth in writing and signed by a duly authorized
officer of the Employer.
ARTICLE V
BENEFICIARIES; PARTICIPANT DATA
5.1 DESIGNATION OF BENEFICIARIES. The Participant from time to time may
designate any person or persons (who may be named contingently or successively)
to receive a distribution of Restricted Stock under the Plan that becomes vested
upon or after the Participant's death under Section 4.3, and such designation
may be changed from time to time by the Participant by filing a new designation.
Each designation by the Participant will revoke all prior designations by the
Participant, shall be in the form prescribed by the Employer and will be
effective only when filed in writing with the Employer during the Participant's
lifetime.
In the absence of a valid Beneficiary designation, or if, at the time
a distribution of Restricted Stock is due to a Beneficiary, there is no living
Beneficiary validly named by the Participant, the Employer shall pay any such
benefit payment to the Participant's estate.
Restricted Stock that has become vested prior to the Participant's
death shall not be subject to the Plan.
5.2 INFORMATION TO BE FURNISHED BY PARTICIPANT AND
BENEFICIARIES; INABILITY TO LOCATE PARTICIPANT OR BENEFICIARIES. Any
communication, statement or notice addressed to the Participant or to a
Beneficiary at his or her last post office address as shown on the Employer's
records shall be binding on the Participant or Beneficiary for all purposes of
the Plan. The Employer shall not be obliged to search for the Participant or any
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Beneficiary beyond the sending of a registered letter to such last known
address. If the Employer notifies the Participant or any Beneficiary that he or
she is entitled to receive a distribution of Restricted Stock under the Plan and
the Participant or Beneficiary fails to claim such Restricted Stock or make his
or her location known to the Employer within three (3) years thereafter, then,
except as otherwise required by law, if the location of one or more of the next
of kin of the Participant is known to the Employer, the Employer may direct
distribution of such Restricted Stock to any one or more or all of such next of
kin, and in such proportions as the Employer determines. If the location of none
of the foregoing persons can be determined, the Employer shall have the right to
direct that the amount payable shall be deemed to be a forfeiture and paid to
the Employer, except that the dollar amount of the forfeiture, unadjusted for
deemed gains or losses in the interim, shall be paid by the Employer if a claim
for the benefit subsequently is made by the Participant or Beneficiary to whom
it was payable. If the Restricted Stock payable to the Participant or
Beneficiary is subject to escheat pursuant to applicable state law, the Employer
shall not be liable to any person for any payment made in accordance with such
law.
ARTICLE VI
ADMINISTRATION AND RECORDKEEPING
6.1 ADMINISTRATIVE AND RECORDKEEPING AUTHORITY. Except as otherwise
specifically provided herein, the Employer shall have the sole responsibility
for and the sole control of the operation, administration and recordkeeping of
the Plan, and shall have the power and authority to take all action and to make
all decisions and interpretations which may be necessary or appropriate in order
to administer and operate the Plan, including, without limiting the generality
of the foregoing, the power, duty and responsibility to:
(a) Resolve and determine all disputes or questions arising
under the Plan, including the power to determine the rights of the Participant
and Beneficiaries, and their respective benefits, and to remedy any ambiguities,
inconsistencies or omissions, in the Plan.
(b) Adopt such rules of procedure and regulations as in its
opinion may be necessary for the proper and efficient administration of the Plan
and as are consistent with the Plan.
(c) Implement the Plan in accordance with its terms and the
rules and regulations adopted as above.
(d) Make determinations concerning the vesting and
distribution of Participants' awards of Restricted Stock.
6.2 UNIFORMITY OF DISCRETIONARY ACTS. Whenever in the administration or
operation of the Plan discretionary actions by the Employer are required or
permitted, such action shall be consistently and uniformly applied to all
persons similarly situated, and no such action shall be taken which shall
discriminate in favor of any particular person or group of persons.
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6.3 LITIGATION. In any action or judicial proceeding affecting the Plan, it
shall be necessary to join as a party only the Employer. Except as may be
otherwise required by law, neither the Participant nor any Beneficiary shall be
entitled to any notice or service of process, and any final judgment entered in
such action shall be binding on all persons interested in, or claiming under,
the Plan.
ARTICLE VII
AMENDMENT
7.1 RIGHT TO AMEND. The Employer, by written instrument authorized by the
Board of Directors of the Employer, shall have the right to amend the Plan at
any time and with respect to any provisions hereof, and all parties hereto or
claiming any interest hereunder shall be bound by such amendment; provided,
however, that no such amendment shall deprive any Participant or Beneficiary of
a right accrued hereunder prior to the date of the amendment.
7.2 CONFLICTS. If any of the terms or provisions of the Plan conflict with
the requirements of the Code, then such terms shall be deemed inoperative to the
extent they so conflict with the requirements of the Code. Additionally, if this
Plan does not contain any provision required to be included herein under the
Code, such provision shall be deemed to be included herein with the same force
and effect as if such provision had been set out at length herein.
ARTICLE VIII
TERMINATION
8.1 EMPLOYER'S RIGHT TO TERMINATE OR SUSPEND PLAN. The Employer reserves
the right, at any time, to terminate the Plan and/or its obligation to make
further credits to the Participant's Account by resolution of the Employer's
board of directors; provided, however, that no such termination or suspension
shall deprive the Participant or any Beneficiary of a right accrued hereunder
prior to the date of termination or suspension. The Employer also reserves the
right, at any time, to suspend the operation of the Plan for a fixed or
indeterminate period of time.
8.2 AUTOMATIC TERMINATION OF PLAN. The Plan shall terminate automatically
upon the dissolution of the Employer or upon the Employer's merger into or
consolidation with any other corporation or business organization which does not
specifically adopt and agree to continue the Plan as provided in Section 8.5;
provided, however, that no such termination shall deprive the Participant or any
Beneficiary of a right accrued hereunder prior to the date of termination.
8.3 SUSPENSION OF CREDITS. In the event of a suspension of the Plan, the
Employer shall continue all aspects of the Plan, other than awards of Restricted
Stock, during the period of the suspension.
8.4 ALLOCATION AND DISTRIBUTION. This Section shall become operative on a
complete termination of the Plan. On such a termination, the Restricted Stock to
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which the Participant or Beneficiaries, as applicable, are entitled shall be
determined and paid to him or her as soon as is practicable after such
termination.
8.5 SUCCESSOR TO EMPLOYER. Any corporation or other business organization
which is a successor to the Employer by reason of a consolidation, merger or
purchase of substantially all of the assets of the Employer shall have the right
to become a party to the Plan by adopting the same by resolution of the entity's
board of directors or other appropriate governing body. If, within ninety (90)
days from the effective date of such consolidation, merger or sale of assets,
such new entity does not become a party hereto, as above provided, the Plan
shall be terminated automatically, and the provisions of the foregoing Section
shall become operative.
ARTICLE IX
MISCELLANEOUS
9.1 PAYMENT OF EXPENSES. Any expenses incurred in connection with the Plan
shall be paid by the Employer.
9.2 LIMITATIONS ON LIABILITY OF EMPLOYER. Neither the establishment of the
Plan nor any modification thereof, nor any award of Restricted Stock under the
Plan, nor the provision of any benefits under the Plan, shall be construed as
giving to the Participant or any other person any legal or equitable right
against the Employer or any officer or employee thereof, except as provided by
law or by any Plan provision. In no event shall the Employer be liable to any
person on account of any claim arising by reason of the provisions of the Plan
or of any instrument or instruments implementing its provisions, or for the
failure of the Participant, any Beneficiary or other person to be entitled to
any particular tax consequences with respect to the Plan or any credit or
contribution thereto or distribution therefrom.
9.3 CONSTRUCTION. If any provision of the Plan is held to be illegal or
void, such illegality or invalidity shall not affect the remaining provisions of
the Plan, but shall be fully severable, and the Plan shall be construed and
enforced as if said illegal or invalid provisions had never been inserted
herein. For all purposes of the Plan, where the context admits, the singular
shall include the plural, the plural shall include the singular, the feminine
shall include the masculine, and the masculine shall include the feminine.
Headings of Articles and Sections herein are inserted only for convenience of
reference and are not to be considered in the construction of the Plan. The laws
of the State of New York shall govern, control and determine all questions of
law arising with respect to the Plan and the interpretation and validity of its
respective provisions, except where those laws are preempted by the laws of the
United States. Participation under the Plan will not give the Participant the
right to be retained in the service of the Employer nor any right or claim to
any benefit under the Plan unless such right or claim has specifically accrued
hereunder.
The Plan is intended to be and at all times shall be
interpreted and administered so as to qualify as an unfunded plan of deferred
compensation, and no provision of this Plan shall be interpreted so as to give
any individual any right in any assets of the Employer which right is greater
than the rights of any general unsecured creditor of the Employer.
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9.4 SPENDTHRIFT PROVISION. No Restricted Stock payable to the Participant
or any Beneficiary under the Plan will, except as otherwise specifically
provided by law, be subject in any manner to anticipation, alienation,
attachment, garnishment, sale, transfer, assignment (either at law or in
equity), levy, execution, pledge, encumbrance, charge or any other legal or
equitable process, and any attempt to do so will be void; nor will any benefit
hereunder be in any manner liable for or subject to the debts, contracts,
liabilities, engagements or torts of the person entitled thereto. Further, (i)
the withholding of taxes from Plan benefit payments, (ii) the recovery under the
Plan of overpayments of benefits previously made to the Participant or any
Beneficiary, (iii) if applicable, the transfer of benefit rights from the Plan
to another plan, or (iv) the direct deposit of Plan benefit payments to an
account in a banking institution (if not actually part of an arrangement
constituting an assignment or alienation) shall not be construed as an
assignment or alienation.
In the event that the Participant's or any Beneficiary's
benefits hereunder are garnished or attached by order of any court, the Employer
may bring an action for a declaratory judgment in a court of competent
jurisdiction to determine the proper recipient of the benefits to be paid under
the Plan. During the pendency of said action, any benefits that become payable
shall be heldby the Employer on behalf of the Participant or Beneficiary or, if
the Employer elects, paid into the court as they become payable, to be
distributed by the court to the recipient as it deems proper at the close of
said action.
9.5 TAX WITHHOLDING. The Company or the Employer shall have the right to
deduct from any payment hereunder or from any other payment from the Company or
the Employer to the Participant any federal, state, local or employment taxes
which it deems are required by law to be withheld. At the request of the
Participant, or as required by law, such sums as may be required for the payment
of any estimated or accrued income tax liability may be withheld and paid over
to the governmental entity entitled to receive the same.
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<PAGE>
IN WITNESS WHEREOF, the Company and the Employer have caused this Plan to
be executed and its seal to be affixed hereto, effective as of the 1st day of
July, 2000.
ATTEST/WITNESS: KIRLIN SECURITIES, INC.
By:
---------------------------- --------------------------------------
(SEAL)
Print Name: Print Name:
----------------- ----------------------------
Date:
----------------------------------
ATTEST/WITNESS: KIRLIN HOLDING CORP.
By:
---------------------------- --------------------------------------
(SEAL)
Print Name: Print Name:
----------------- ----------------------------
Date:
----------------------------------
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