SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
SITEL CORPORATION
(Exact name of registrant as specified in its charter)
Minnesota 47-0684333
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
111 South Calvert Street, Suite 1900
Baltimore, Maryland 21202
(Address, including zip code, of Principal Executive Offices)
SITEL Corporation 1999 Stock Incentive Plan
(Full Title of the Plan)
Phillip A. Clough, Chief Executive Officer
111 South Calvert Street, Suite 1900
Baltimore, Maryland 21202
(410) 246-1505
(Name, Address, and Telephone Number, including area code, of Agent for Service)
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CALCULATION OF REGISTRATION FEE
=================================------------------------------------------------------------------------------------
Title of Proposed Proposed
securities Amount Maximum offering Maximum aggregate Amount of
to be registered to be registered(1) price per share (2) offering price (2) registration fee
=====================================================================================================================
Common stock,
$.001 par value 7,000,000 shares $2.9375 $20,562,500 $5,716.
=====================================================================================================================
<FN>
(1) This Form S-8 registers the maximum number of shares which may be acquired
under the plan. The number of shares registered hereunder shall include any
additional shares made available under the plan because of adjustment in such
7,000,000 shares on account of stock splits or stock dividends hereafter
effected by the Registrant.
(2) Estimated pursuant to Rule 457(c) of the Securities Act solely for purposes
of calculating the registration fee. The price is based upon the average of the
high and low prices of SITEL Corporation Common Stock on May 7, 1999 as reported
on the New York Stock Exchange.
</FN>
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This Form S-8 consists of 24 pages. The Exhibit Index is on page 8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
SITEL Corporation (the "Company") hereby incorporates by reference in
this registration statement the following documents previously filed with the
Securities and Exchange Commission (the "Commission"):
(a) the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998 (which incorporates by reference
portions of the Company's definitive Proxy Statement for the
Company's Annual Meeting of Stockholders held on May 6, 1999);
and
(b) the description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A, filed with the
Commission pursuant to Section 12 of the Exchange Act.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14, and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this registration statement which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated herein by reference
and be a part hereof from the date of the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
The class of securities offered by the Company pursuant to this
registration statement is registered under Section 12 of the Securities Exchange
Act of 1934.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Matters with respect to the legality of the Common Stock of the Company
being registered hereby have been passed upon by the firm of Abrahams Kaslow &
Cassman, counsel for the Company. Members of Abrahams Kaslow & Cassman directly
own a total of 24,182 shares of Common Stock of the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Amended and Restated Articles of Incorporation limit the
liability of directors to the maximum extent permitted by the Minnesota Business
Corporation Act. Specifically, directors will not be personally liable for
monetary damages for breach of their fiduciary duties as directors, except for
liability due to (i) any breach of the duty of loyalty to the Company or its
stockholders, (ii) acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law, (iii) dividends or other
distributions of corporate assets that are in contravention of certain statutory
or contractual restrictions, (iv) violations of certain Minnesota securities
laws, or (v) any transaction from which the director derives an improper
personal benefit. Liability under the federal securities laws is not limited by
the Amended and Restated Articles of Incorporation.
The Minnesota Business Corporation Act requires that the Company
indemnify any director or officer made or threatened to be made a party to a
legal proceeding, by reason of the former or present official capacity of the
person, against judgments, penalties, fines, settlements, and reasonable
expenses incurred in connection
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with the proceeding if certain statutory standards are met. A "proceeding" means
a threatened, pending or completed civil, criminal, administrative, arbitration
or investigative proceeding, including a derivative action in the name of the
Company. Reference is made to the detailed terms of the Minnesota
indemnification statute (Minn. Stat. ss. 302A.521) for a complete statement of
such indemnification rights. The Company's Amended and Restated Articles of
Incorporation require the Company to provide indemnification of these persons to
the fullest extent of the Minnesota indemnification statute.
The Company has entered into an indemnification agreement with each of
its directors and executive officers to provide him or her with specific
contractual assurances that the indemnification protection provided by the
Minnesota Business Corporation Act and the Company's Amended and Restated
Articles of Incorporation will be available to such director or officer and to
provide for the indemnification of and the advancing of expenses to such
director or officer to the fullest extent permitted by law. The Company also
presently maintains insurance to protect itself and its directors and officers
against certain liabilities, costs, and expenses arising out of claims or suits
against such directors and officers resulting from their service in such
capacity.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
[Remainder of this page intentionally left blank]
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ITEM 8. EXHIBITS
The exhibits filed as a part of this registration statement are:
Exhibit
No.
(1) 3.1 Amended and Restated Articles of Incorporation.
(2) 3.1(a) Articles of Amendment filed September 10, 1996 to the
Amended and Restated Articles of Incorporation.
(1) 3.4 Amended and Restated Bylaws.
(3) 3.4(a) Amended and Restated Bylaws of SITEL Corporation
(conformed copy including amendments through June 6,
1997).
(4) 3.4(b) Amendment No. 2 to Amended and Restated Bylaws.
4.1 SITEL Corporation 1999 Stock Incentive Plan.
4.2 Amendment No. 1 to the SITEL Corporation 1999 Stock
Incentive Plan.
5.1 Opinion of Abrahams, Kaslow & Cassman regarding
legality of Common Stock being registered.
23.1 Consent of KPMG LLP.
23.2 Consent of Abrahams, Kaslow & Cassman (included in
Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
- -------------------------
(1) Previously filed as an exhibit under the same exhibit number to the
Company's Registration Statement on Form S-1 (Registration No.
33-91092).
(2) Previously filed as Exhibit 4.1(a) to the Company's Registration
Statement on Form S-3 (Registration No. 333-13403).
(3) Previously filed as Exhibit 4.2 to the Company's Registration
Statement on Form S-3 (Registration No. 333-28131).
(4) Previously filed as Exhibit 3.2 to the Company's Form 10-Q for the
quarter ended September 30, 1998.
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ITEM 9. UNDERTAKINGS
(a) Rule 415 offering. The undersigned registrant hereby
undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(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; and
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
Provided, however, That paragraphs (a)(1)(i) and
(a)(1)(ii) of this section do not apply if the registration
statement is on Form S-3, Form S-8, or Form F-3, and the
information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the registrant
pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, 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) Filings incorporating subsequent Exchange Act documents by
reference. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) 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.
(h) Filing of registration statement on Form S-8. Insofar as
indemnification for liabilities arising under the Securities Act of 1933 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 Securities and Exchange Commission such
indemnification is against public policy as expressed in the 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 Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Omaha, State of Nebraska, on May 11, 1999.
SITEL CORPORATION
By: /s/ PHILLIP A. CLOUGH
Phillip A. Clough, Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that we, the undersigned directors and
officers of SITEL Corporation, do hereby jointly and severally constitute and
appoint Phillip A. Clough and W. Gar Richlin, and each of them individually, as
our true and lawful attorneys-in-fact and agents, with full powers of
substitution and resubstitution, for each of us and in our name, place, and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement on Form S-8 of SITEL
Corporation and to file such amendments with all exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto such attorneys-in-fact and agents, and each of them individually
and their substitutes, full power and authority to do and perform each and every
act and thing requisite or necessary to be done in and about the premises in
connection with this Registration Statement as fully to all intents and purposes
as each of us might or could do in person, hereby ratifying and confirming all
that such attorneys-in-fact and agents or any of them, or their or his
substitutes or substitute, lawfully may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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/s/ JAMES F. LYNCH Chairman of the Board May 11, 1999
- -------------------------------- and Director
James F. Lynch
/s/ PHILLIP A. CLOUGH Chief Executive Officer May 11, 1999
- -------------------------------- and Director (Principal
Phillip A. Clough Executive Officer)
/s/ W. GAR RICHLIN Chief Operating Officer May 11, 1999
- -------------------------------- and Chief Financial Officer
W. Gar Richlin (Principal Financial Officer)
/s/ ALAN G. SIEMEK Controller May 11, 1999
- -------------------------------- (Principal Accounting Officer)
Alan G. Siemek
/s/ HENK P. KRUITHOF Executive Vice Chairman May 11, 1999
- -------------------------------- and Director
Henk P. Kruithof
/s/ KELVIN C. BERENS Director May 11, 1999
- -------------------------
Kelvin C. Berens
/s/ BILL L. FAIRFIELD Director May 11, 1999
- -------------------------
Bill L. Fairfield
/s/ GEORGE J. KUBAT Director May 11, 1999
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George J. Kubat
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INDEX TO EXHIBITS
Page
No.
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(1) 3.1 Amended and Restated Articles of Incorporation......................--
(2) 3.1(a) Articles of Amendment filed September 10, 1996 to the Amended
and Restated Articles of Incorporation..............................--
(1) 3.4 Amended and Restated Bylaws.........................................--
(3) 3.4(a) Amended and Restated Bylaws (conformed copy including
amendments through June 6, 1997)....................................--
(4) 3.4(b) Amendment No. 2 to Amended and Restated Bylaws......................--
4.1 SITEL Corporation 1999 Stock Incentive Plan......................... 9
4.2 Amendment No. 1 to the SITEL Corporation 1999 Stock Incentive Plan..22
5.1 Opinion of Abrahams, Kaslow & Cassman regarding legality
of Common Stock being registered....................................23
23.1 Consent of KPMG LLP.................................................24
23.2 Consent of Abrahams, Kaslow & Cassman (included in Exhibit 5.1).....--
24.1 Power of Attorney (included in signature page)......................--
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(1) Previously filed as an exhibit under the same exhibit number to the
Company's Registration Statement on Form S-1 (Registration No.
33-91092).
(2) Previously filed as Exhibit 4.1(a) to the Company's Registration
Statement on Form S-3 (Registration No. 333-13403).
(3) Previously filed as Exhibit 4.2 to the Company's Registration
Statement on Form S-3 (Registration No. 333-28131).
(4) Previously filed as Exhibit 3.2 to the Company's Form 10-Q for the
quarter ended September 30, 1998.
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EXHIBIT 4.1
SITEL CORPORATION
1999 STOCK INCENTIVE PLAN
1. PURPOSE.
The SITEL Corporation 1999 Stock Incentive Plan seeks to promote the
long-term financial success of the Company and its Subsidiaries, and thereby
increase stockholder value, by providing stock-based incentives to employees,
consultants, and non-employee directors who contribute, or are likely to
contribute, significantly to such success.
2. CERTAIN DEFINITIONS.
"Board" means the Board of Directors of the Company.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, or any successor thereto. References to a particular section of the Code
shall include any regulations issued under such section.
"Committee" shall have the meaning provided in Section 3.
"Common Stock" means the Common Stock, $.001 par value per share, of
the Company.
"Company" means SITEL Corporation, a Minnesota corporation.
"Disability" means (i) with respect to the exercise of an Incentive
Stock Option after termination of employment, a disability within the meaning of
Section 22(e)(3) of the Code and (ii) for all other purposes, a mental or
physical condition which, in the opinion of the Committee, renders a grantee
unable or incompetent to carry out the job responsibilities which such grantee
held or the tasks to which such grantee was assigned at the time the disability
was incurred and which is expected to be permanent or for an indefinite duration
exceeding six months.
"Employee" means any employee of, or independent consultant to, the
Company or any Subsidiary.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time.
"Fair Market Value" means, as determined by the Committee:
(i) If the Common Stock is traded on a national securities exchange,
the average of the high and low prices of the Common Stock on the
trading day for which the determination is being made on the principal
national exchange on which the Common Stock is traded (or, if there are
no sales on that day, the last preceding day on which there was a
sale);
(ii) If the Common Stock is not traded on a national securities
exchange but is traded on a formal over-the-counter quotation system in
general use in the United States, the average of the high and low
prices of the Common Stock on the trading day for which the
determination is being made on the principal system on which the Common
Stock is traded (or, if there are no such quotations on that day, the
last preceding day on which there were such quotations); or
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(iii) If neither of the foregoing is applicable, then the fair market
value of the Common Stock as determined in good faith by the Committee.
"Incentive Stock Option" means any Stock Option intended to qualify as
an "incentive stock option" within the meaning of Section 422 of the Code.
"Non-Qualified Stock Option" means any Stock Option that is not
intended to be an Incentive Stock Option, including any Stock Option that
provides (as of the time such option is granted) that it will not be treated as
an Incentive Stock Option.
"Other Stock-Based Award" means an award granted pursuant to Section
11.
"Outside Director" means any director of the Company who is not an
employee of the Company or any Subsidiary.
"Participant" means an Employee or Outside Director who has been
granted an award under the Plan.
"Performance Unit Award" means an award granted pursuant to Section 8.
"Plan" means this SITEL Corporation 1999 Stock Incentive Plan, as
amended from time to time.
"Restricted Stock Award" means an award granted pursuant to Section 9.
"Rule 16b-3" means Rule 16b-3 under the Exchange Act, as in effect from
time to time.
"Stock Appreciation Right" means an award granted pursuant to Section
7.
"Stock Bonus Award" means an award granted pursuant to Section 10.
"Stock Option" means an award granted pursuant to Section 6.
"Subsidiary" means (i) as it relates to Incentive Stock Options, any
corporation (other than the Company) in an unbroken chain of corporations
beginning with the Company if, at the time of granting of the option, each of
the corporations (other than the last corporation in the unbroken chain) owns
stock possessing 50% of more of the total combined voting power of all classes
of stock in one of the other corporations in such chain and (ii) for all other
purposes, any business entity, domestic or foreign, now or hereafter existing,
in which not less than 50% of the total combined voting power is owned or
controlled by the Company or by a Subsidiary.
"vest" or "vested" means that portion, if any, of an award which is
exercisable as of the date for which the determination of vested or unvested
status is being made.
3. ADMINISTRATION.
(a) Committee. The Plan shall be administered by a committee of two or
more members of the Board (the "Committee") selected by the Board, each of whom
shall qualify as a "Non-Employee Director" within the meaning of Rule 16b-3 and
as an "outside director" within the meaning of Section 162(m) of the Code.
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(b) Authority to Grant Awards. The Committee shall have authority to
grant to eligible Employees, and the Board shall have authority to grant to
Outside Directors, pursuant to the terms of the Plan, (i) Stock Options, (ii)
Stock Appreciation Rights, (iii) Restricted Stock Awards, (iv) Performance Unit
Awards, (v) Stock Bonus Awards, (vi) Other Stock-Based Awards, or (vii) any
combination of the foregoing. No member of the Board shall act upon the granting
of an award to himself or herself.
(c) Committee and Board Powers. Subject to the applicable provisions of
the Plan, the Committee shall have authority to: (i) interpret the provisions of
the Plan, any award agreement, and any other agreement or document executed
pursuant to the Plan and to decide all questions of fact arising in the
application of such provisions; (ii) select the eligible Employees to whom
awards shall be granted under the Plan; (iii) determine whether and to what
extent awards shall be granted under the Plan to eligible Employees; (iv)
determine the types of awards to be granted under the Plan and the amount, size,
terms and conditions of each such award; (v) determine the time when awards
shall be granted under the Plan; (vi) determine whether awards will be granted
singly, in combination or in tandem with, in replacement of, or as alternatives
to, other awards under the Plan or any other incentive or compensation plan of
the Company; (vii) determine whether a Participant's employment with the Company
or any Subsidiary has terminated and whether such termination is with or without
cause, or because of death or Disability or otherwise; (viii) determine whether
any leave of absence constitutes a termination of employment or service and the
impact of such leave of absence on outstanding awards; (ix) accelerate or, with
the consent of the Participant, defer the vesting of any award and/or the
exercise date of any award; (x) determine whether an award has been earned
and/or become vested; (xi) with the consent of the Participant if such action
will materially impair any rights or materially increase any obligations of such
Participant, reprice, cancel and reissue, or otherwise adjust the terms of an
award previously issued to the Participant; (xii) without the consent of the
Participant, if such action with not materially impair any rights or materially
increase any obligations of such Participant, reprice, cancel, and reissue, or
otherwise adjust the terms of an award previously issued to the Participant;
(xiii) determine whether, to what extent and under what circumstances the
payment of Common Stock and other amounts payable with respect to an award
granted under the Plan shall be deferred either automatically or at the election
of the grantee; (xiv) determine the Fair Market Value of the Common Stock from
time to time; (xv) authorize persons to execute on behalf of the Company any
agreement required to be entered into under the Plan; (xvi) adopt, alter and
repeal such administrative rules, guidelines and practices governing the Plan as
the Committee from time to time shall deem advisable; (xvii) correct any defect
or omission, or reconcile any inconsistency in the Plan, any award, or any award
agreement; and (xviii) and make all other determinations necessary or advisable
for the administration of the Plan. Subject to the provisions of the Plan, the
Board shall have and may exercise the foregoing powers in respect of awards
granted or to be granted to Outside Directors.
(d) Committee and Board Determinations. Unless otherwise expressly
provided in the Plan, all decisions and determinations made by the Committee or
Board pursuant to the provisions of the Plan shall be made in the sole
discretion of the Committee or Board, respectively, and shall be final and
binding on all persons, including but not limited to the Company and its
Subsidiaries, the eligible Employees or Outside Directors to whom awards are
granted under the Plan, the heirs and legal representatives of such eligible
Employees or Outside Directors, and the personal representatives and
beneficiaries of the estates of such eligible Employees or Outside Directors.
(e) Committee Delegation. The Committee may delegate to any officer or
officers of the Company any of the Committee's duties, powers, and authorities
under the Plan upon such conditions and with such limitations as the Committee
may determine; provided that only the Committee may select for awards under the
Plan, and make grants of awards under the Plan to, Employees who are subject to
Section 16 of the Exchange Act at the time of such selection or the making of
such a grant.
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4. COMMON STOCK PROVISIONS.
(a) Shares Subject to the Plan. The aggregate number of shares of
Common Stock which may be issued or utilized in respect of (i) Stock Options,
(ii) Stock Appreciation Rights, (iii) Performance Unit Awards, (iv) Restricted
Stock Awards, (v) Stock Bonus Awards, (vi) Other Stock-Based Awards, or (vii)
any combination of the foregoing, granted under the Plan shall not exceed seven
million (7,000,000) shares, subject to adjustment under Section 13(a). The
aggregate number of shares of Common Stock which may be issued or utilized in
respect of (i) Stock Options, (ii) Stock Appreciation Rights, (iii) Performance
Unit Awards, (iv) Restricted Stock Awards, (v) Stock Bonus Awards, (vi) Other
Stock-Based Awards, or (vii) any combination of the foregoing, granted under the
Plan in any calendar year to any individual may not exceed one million
(1,000,000) shares, subject to adjustment under Section 13(a). The foregoing
shares may consist in whole or in part of authorized and unissued shares or
treasury shares or any combination thereof.
(b) Awards Not to Exceed Shares Available. The number of shares of
Common Stock issued or utilized in respect of awards which have been granted
under the Plan at any time during the Plan's term shall not, in the aggregate at
any time, exceed the number of shares authorized for issuance under the Plan.
The number of shares of Common Stock subject to a Stock Appreciation Right that
is settled in cash shall count as shares issued or utilized under the Plan and
shall not again be available for issuance under the Plan. The number of shares
of Common Stock subject to a Performance Unit Award, Stock Bonus Award or Other
Stock-Based Award that is settled in cash shall not count as shares issued or
utilized under the Plan and shall again be available for issuance under the
Plan. The number of shares of Common Stock which may be issued or utilized in
respect of an award which expires, is canceled, is forfeited or is terminated
for any reason shall not count as shares issued or utilized under the Plan and
shall again be available for issuance under the Plan.
5. ELIGIBILITY TO RECEIVE AWARDS.
(a) Employees. Awards may be granted under the Plan to any Employee
that the Committee determines has contributed, or is likely to contribute,
significantly to the success of the Company and its Subsidiaries. The granting
of an award under the Plan to an Employee shall conclusively evidence the
Committee's determination that such grantee so qualifies as an eligible
Employee.
(b) Outside Directors. The Corporation believes that Outside Directors
have contributed, and are likely to contribute in the future, significantly to
the success of the Company and its Subsidiaries. The Board may discretionarily
grant Non-Qualified Stock Options and any other awards under the Plan from time
to time to any Outside Director.
6. STOCK OPTIONS.
(a) Stock Option Defined. A Stock Option is an award of an option to
purchase one or more shares of Common Stock. A Stock Option may be an Incentive
Stock Option or a Non-Qualified Stock Option. To the extent that a Stock Option
does not qualify as an Incentive Stock Option, it shall constitute a separate
Non-Qualified Stock Option.
(b) Stock Option Award Agreements. Each Stock Option shall be
evidenced by a written award agreement which shall set forth the terms and
conditions pertaining to such Stock Option, provided that all such terms shall
be subject to and consistent with the Plan. The award agreement shall identify
the Stock Option evidenced thereby as an Incentive Stock Option or a
Non-Qualified Stock Option.
(c) Number of Shares Covered by a Stock Option. Each award agreement
shall state the number of shares of Common Stock for which the Stock Option is
exercisable, subject to adjustment of such shares
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pursuant to Section 13(a).
(d) Exercise Price. Each award agreement shall state the exercise
price for the shares of Common Stock to which the Stock Option pertains. The
exercise price of an Incentive Stock Option shall not be less than 100% of the
Fair Market Value of the shares of Common Stock to which the Stock Option
pertains on the date the Stock Option is granted (substituting "110%" for "100%"
for any Incentive Stock Option granted to an employee described in the second
sentence of Section 6(g)). The exercise price of a Stock Option granted to an
Employee who at time of grant is a "covered employee" within the meaning of
Section 162(m) of the Code shall not be less than 100% of the Fair Market Value
of the shares of Common Stock to which the Stock Option pertains on the date the
Stock Option is granted. Furthermore, in any event, the exercise price of a
Stock Option may not be below the par value of the shares of Common Stock to
which the Stock Option pertains.
(e) Exercise of Stock Options. Each award agreement shall include a
schedule describing the date, event or act upon which a Stock Option shall
become exercisable, in whole or in part, with respect to the shares of Common
Stock covered by such Stock Option. Each award agreement shall also specify the
manner and procedure for exercising a Stock Option and the effective date of
such exercise. Subject to Section 12(h), only a Participant may exercise a Stock
Option, and the Participant may exercise a Stock Option only on or after the
date on which the Stock Option becomes exercisable and only on or before the
date on which the term of the Stock Option expires.
(f) Term and Expiration of Stock Options. Each award agreement shall
specify the term of the Stock Option and any events upon which the Stock Option
shall expire earlier than the stated term. Without limitation, each award
agreement shall specify the effect on the Stock Option of termination of
employment of a Participant, whether by reason of death, Disability, or
otherwise and the extent (if any) to which and the period (if any) after
termination of employment during which the Participant, his legal
representative, guardian or heirs may exercise the Stock Option. Unless
expressly provided otherwise in the award agreement, a Stock Option shall also
expire earlier than the stated term upon the effective date of a transaction
described in the second sentence of Section 13(b).
(g) Eligibility for Incentive Stock Options. Incentive Stock Options
may be granted only to persons who are employed by the Company or a Subsidiary
within the meaning of Section 3401 of the Code. An employee who owns stock of
the Company possessing more than 10% of the combined voting power of all classes
of outstanding stock of the Company or any Subsidiary within the meaning of
Section 422 of the Code is eligible to be granted an Incentive Stock Option only
if the exercise price of each share subject to such Incentive Stock Option, when
granted, is equal to or exceeds 110% of the Fair Market Value of a share of
Common Stock and the term of the Incentive Stock Option does not exceed five
years.
(h) No Disqualification of Incentive Stock Options. Notwithstanding
any other provision of the Plan, the Plan shall not be interpreted, amended or
altered, nor shall any discretion or authority granted under the Plan be
exercised, so as to disqualify the Plan under Section 422 of the Code.
(i) Limitation on Incentive Stock Options. The aggregate Fair Market
Value (determined with respect to each Incentive Stock Option as of the date of
grant of such Incentive Stock Option) of all shares of Common Stock with respect
to which a Participant's Incentive Stock Options are exercisable for the first
time by the Participant during any calendar year (under the Plan and under other
incentive stock option plans of the Company, if any) shall not exceed
US$100,000. Any purported Incentive Stock Options in excess of such limitation
shall be recharacterized as Non-Qualified Stock Options.
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7. STOCK APPRECIATION RIGHTS.
(a) Stock Appreciation Right Defined. A Stock Appreciation Right is a
right to receive all or a portion of the future appreciation in the Fair Market
Value of a share of Common Stock over the exercise price of such right.
(b) Stock Appreciation Right Award Agreements. Each Stock
Appreciation Right shall be evidenced by a written award agreement which shall
set forth the terms and conditions pertaining to such Stock Appreciation Right,
provided that all such terms shall be subject to and consistent with the Plan.
(c) Number of Shares Covered by a Stock Appreciation Right. Each
Stock Appreciation Right award agreement shall state the number of shares of
Common Stock to which it pertains and the exercise price which is the basis for
determining future appreciation, subject to adjustment pursuant to Section
13(a). The exercise price of a Stock Appreciation Right granted to an Employee
who at time of grant is a "covered employee" within the meaning of Section
162(m) of the Code shall not be less than 100% of the Fair Market Value of the
shares of Common Stock to which the Stock Appreciation Right pertains on the
date the Stock Appreciation Right is granted.
(d) Stock Appreciation Rights Issued and Exercised Without Payment of
Consideration. A Stock Appreciation Right shall be issued to and exercised by a
Participant without payment by the Participant of any consideration.
(e) Exercise of Stock Appreciation Rights. Each award agreement shall
include a schedule describing the date, event or act upon which the Stock
Appreciation Right to which it pertains becomes exercisable, in whole or in
part. Each award agreement shall also specify the manner and procedure for
exercising a Stock Appreciation Right, and shall specify the effective date of
such exercise. The Stock Appreciation Right may be settled in the form of cash
(either in a lump sum payment or in installments), whole shares of Common Stock
or a combination thereof, as the award agreement prescribes. Subject to Section
12(h), only a Participant may exercise a Stock Appreciation Right, and the
Participant may exercise a Stock Appreciation Right only on or after the date on
which the Stock Appreciation Right becomes exercisable and only on or before the
date on which the Stock Appreciation Right expires.
(f) Term and Expiration of Stock Appreciation Rights. Each award
agreement shall specify the term of the Stock Appreciation Right and any
event(s) upon which the Stock Appreciation Right shall expire earlier than the
stated term. Without limitation, each award agreement shall specify the effect
on the Stock Appreciation Right of termination of employment of a Participant,
whether by reason of death, Disability, or otherwise and the extent (if any) to
which and the period (if any) after termination of employment during which the
Participant, his legal representative, guardian or heirs may exercise the Stock
Appreciation Right. Unless expressly provided otherwise in the award agreement,
a Stock Appreciation Right shall also expire earlier than the stated term upon
the effective date of a transaction described in the second sentence of Section
13(b).
8. PERFORMANCE UNIT AWARDS.
(a) Performance Unit Award Defined. A Performance Unit Award means an
award which grants the right to receive future payments based upon and subject
to the achievement of preestablished performance targets.
(b) Performance Unit Award Agreements. Each Performance Unit Award
shall be evidenced by a written award agreement which shall set forth the terms
and conditions pertaining to such Performance Unit Award, provided that all such
terms shall be subject to and consistent with the Plan.
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(c) Performance Period. The Committee shall establish with respect to
each Performance Unit the performance period during which performance shall be
measured.
(d) Unit Value. The Committee shall establish with respect to each
Performance Unit Award a value for each unit which shall not change thereafter
or which may vary thereafter on the basis of criteria specified by the
Committee; provided, however, that the maximum amount of compensation that may
be paid to any individual for any calendar year in respect of a Performance Unit
Award is $500,000.
(e) Performance Targets. The Committee shall establish with respect
to each Performance Unit Award maximum and minimum performance targets to be
achieved during the applicable performance period. The achievement of the
maximum targets shall entitle a Participant to payment with respect to the full
value of a Performance Unit Award. The achievement of less than the maximum
targets, but in excess of the minimum targets, shall entitle a grantee to
payment with respect to a portion of the Performance Unit Award according to the
level of achievement of the applicable targets as specified by the Committee. To
the extent the Committee deems necessary or appropriate to protect against the
loss of deductibility pursuant to Section 162(m) of the Code, such targets shall
be established in conformity with the requirements of Section 162(m) of the
Code.
(f) Business Criteria. The Committee shall select from among the
following list one or more objective business criteria to be used to establish
performance targets under Performance Unit Awards, each of which criteria may be
based on absolute standards or peer industry group comparatives, may have the
same or different weighting, and may be applied at various organizational levels
(e.g. corporate, division, subsidiary, group or business unit): (i) earnings per
share, (ii) return on equity, (iii) pre-tax profit, (iv) after-tax profit, (v)
consolidated net income, (vi) stock price, (vii) market share, (viii) revenues,
(ix) return on assets, (x) return on invested capital, (xi) cash flow, (xii)
discounted cash flow, (xiii) EBITDA, (xiv) economic value added, and (xv) total
shareholder return. To the extent the Committee deems necessary or appropriate
to protect against the loss of deductibility pursuant to Section 162(m) of the
Code, such business criterion or criteria shall be selected and applied in
conformity with the requirements of Section 162(m) of the Code.
(g) Adjustments. At any time prior to the settlement of a Performance
Unit Award, the Committee may adjust previously established performance targets
or other terms and conditions of such Performance Unit Award, including the
Company's or another company's financial performance for Plan purposes, in order
to reduce or eliminate, but not to increase, the payment with respect to a
Performance Unit Award that otherwise would be due upon the attainment of such
previously established performance targets. Such adjustments shall be made to
reflect major unforeseen events such as changes in laws, regulations or
accounting practices, mergers, acquisitions or divestitures or other
extraordinary, unusual or nonrecurring items or events.
(h) Settlement of a Performance Unit Award. Following the end of the
performance period applicable to a Performance Unit Award, the Committee shall
determine the extent to which the applicable performance targets have been
attained and any other terms and conditions have been satisfied for such
performance period and shall provide such certification thereof as may be
necessary to satisfy the requirements of Section 162(m) of the Code. The
Committee shall determine what, if any, payment is due on a Performance Unit
Award and, subject to the limitations set forth in Section 4, whether such
payment shall be made in cash (in a lump sum payment or in installments), in
shares of Common Stock (valued at their then Fair Market Value), or a
combination thereof, as the award agreement prescribes.
(i) Term and Expiration of Performance Unit Award. Each award
agreement shall specify the term of the Performance Unit Award and any event(s)
upon which the Performance Unit Award shall expire earlier than the stated term.
Without limitation, each award agreement shall specify the effect on the
Performance Unit Award of termination of employment of a Participant, whether by
reason of death, Disability, or otherwise
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and the extent (if any) to which and the period (if any) after termination of
employment during which the Participant, his legal representative, guardian or
heirs may receive payment under the Performance Unit Award. Unless expressly
provided otherwise in the award agreement, a Performance Unit Award shall also
expire earlier than the stated term upon the effective date of a transaction
described in the second sentence of Section 13(b).
9. RESTRICTED STOCK.
(a) Restricted Stock Award Defined. A Restricted Stock Award means an
award of Common Stock which is restricted against transfer, subject to a
substantial risk of forfeiture, and subject to other terms and conditions
intended to further the purpose of the Plan as the Committee may determine.
(b) Restricted Stock Award Agreements. Each Restricted Stock Award
shall be evidenced by a written award agreement which shall set forth the terms
and conditions pertaining to such Restricted Stock Award, provided that all such
terms shall be subject to and consistent with the Plan.
(c) Number of Shares Covered by a Restricted Stock Award. Each award
agreement shall state the number of shares of Common Stock to which a Restricted
Stock Award pertains and the purchase price per share that the Participant paid
for such shares, subject to adjustment pursuant to Section 13(a).
(d) Restricted Stock May Be Issued With or Without Payment of
Consideration. A Restricted Stock Award may be issued to a Participant with or
without payment by the Participant of any consideration, unless the Participant
is required to pay a minimum purchase price for such shares, such as par value.
(e) Vesting of Restricted Stock. Each award agreement shall include a
vesting schedule describing the date, event or act upon which the shares of
Common Stock to which the Restricted Award pertains shall vest, in whole or in
part.
(f) Forfeiture of Restricted Stock. Each award agreement shall
specify the term of the Restricted Stock Award and any event(s) upon which a
Restricted Stock Award which is not vested shall be forfeited earlier than the
stated term. Without limitation, each award agreement shall specify the effect
on the Restricted Stock Award which is not vested of termination of employment
of a Participant, whether by reason of death, Disability, or otherwise. Unless
expressly provided otherwise in the award agreement, a Restricted Stock Award
which is not vested shall also be forfeited earlier than the stated term upon
the effective date of a transaction described in the second sentence of Section
13(b).
10. STOCK BONUS AWARDS.
(a) Stock Bonus Award Defined. A Stock Bonus Award means an award of
shares of Common Stock or an amount of money which is determined by reference to
the Fair Market Value of shares of Common Stock, or a combination thereof.
(b) Stock Bonus Award Agreements. Each Stock Bonus Award shall be
evidenced by a written award agreement which shall set forth the terms and
conditions pertaining to such Stock Bonus Award, provided that all such terms
shall be subject to and consistent with the Plan.
(c) Qualified Performance-Based Compensation. Stock Bonus Awards
granted to Participants who are "covered employees" within the meaning of
Section 162(m) of the Code shall satisfy the requirements for "qualified
performance-based compensation" within the meaning of Section 162(m). Without
limitation, Stock Bonus Awards granted to such Participants shall be subject to
the same requirements and limitations (to the extent applicable) as stated in
Section 8(c) through (i) of the Plan.
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11. OTHER STOCK-BASED AWARDS.
(a) Other Stock-Based Awards Defined. An Other Stock-Based Award means
an award of shares of Common Stock or an award that is valued in whole or in
part by reference to or is otherwise based on Common Stock. The Committee may
make Other Stock-Based Awards, including without limitation, awards of
convertible preferred stock, convertible debentures, exchangeable securities and
options. Such other awards shall be evidenced by a written award agreement in
such form as the Committee shall approve from time to time. The agreement shall
contain in substance such terms and conditions, not inconsistent with the terms
of the Plan, as the Committee shall deem appropriate.
(b) Performance Goals and Other Criteria. The Committee may establish
performance goals, which may be based on performance goals related to book
value, Company or Subsidiary performance, or such other criteria as the
Committee may establish, restricted periods, conversion prices, maturities and
security, if any, for any Other Stock-Based Award. Other Stock-Based Awards may
be sold to Participants at the face value thereof or any discount therefrom or
awarded for no consideration or such minimum consideration as may be required by
applicable law.
12. GENERAL PROVISIONS APPLICABLE TO AWARDS.
(a) Other Provisions in Award Agreement. An award agreement may
contain such other provisions as the Committee deems advisable which are not
inconsistent with the terms of the Plan, including but not limited to: (i)
restrictions on the exercise or settlement of awards or on the vesting of shares
of Common Stock to which an award relates; (ii) restrictions on transfer of
shares of Common Stock to which an award relates; (iii) establishment of an
escrow agreement which enables the Company to hold shares of Common Stock to
which a Restricted Stock Award pertains on behalf of the Participant until such
shares vest in such Participant; (iv) submission by the Participant of such
forms and documents as the Committee may require; and/or (v) procedures to
facilitate the payment of the exercise price of an award under any method
allowable under Section 12(f). An award agreement need not be signed by a
Participant unless required by the Committee.
(b) Multiple Awards. Multiple forms of awards or combinations thereof
may be evidenced either by a single agreement or by multiple agreements, as
determined by the Committee.
(c) Dividends and Cash Awards. The Committee may provide in an award
agreement that a Participant shall receive (i) dividends or dividend equivalents
payable currently or deferred with or without interest, or (ii) cash payments in
lieu of or in addition to an award.
(d) Loans. The Committee may authorize the making of loans or cash
payments to Participants in connection with any award under the Plan, which loan
may be secured by any security, including Common Stock, underlying or related to
such award (provided that such loan shall not exceed the Fair Market Value of
the security subject to such award), and which may be forgiven upon such terms
and conditions as the Committee may establish at the time of such loan or at any
time thereafter.
(e) General Restrictions. Each award under the Plan shall be subject to
the requirement that if at any time the Committee shall determine that (i) the
listing, registration or qualification of the shares of Common Stock subject or
related thereto upon any securities exchange or under any state or federal law,
(ii) the consent or approval of any governmental regulatory body, or (iii) an
agreement by the grantee of an award with respect to the disposition of the
shares of Common Stock subject or related thereto is necessary or desirable as a
condition of, or in connection with, such award or the issuance or purchase of
shares of Common Stock thereunder, then such award may not be consummated and
any rights thereunder may not be exercised in whole or in part unless such
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listing, registration, qualification, consent, approval or agreement shall have
been effected or obtained upon conditions acceptable to the Committee. Awards
under the Plan shall be subject to such additional terms and conditions, not
inconsistent with the Plan, as the Committee deems necessary or desirable,
including but not limited to such terms and conditions as are necessary to
enable a grantee to avoid any short-swing profit recapture liability under
Section 16 of the Exchange Act.
(f) Terms of Payment. Subject to any other applicable provisions of the
Plan and to any applicable laws, whenever payment by a grantee is required with
respect to shares of Common Stock which are the subject of an award under the
Plan, the Committee shall determine the time, form and manner of such payment,
including but not limited to lump-sum payments and installment payments upon
such terms and conditions as the Committee may prescribe. Installment payment
obligations of a grantee may be evidenced by full-recourse, limited-recourse or
non-recourse promissory notes or other instruments, with or without interest and
with or without collateral or other security, as the Committee may determine.
The Committee may allow a Participant to pay, in whole or in part, the exercise
price of a Stock Option by exchanging a share or shares of Common Stock that the
Participant had acquired pursuant to the exercise of another Stock Option during
the preceding six months (under the Plan or any other plan or program of the
Company) or had otherwise acquired from the Company during the preceding six
months. The Committee may grant new Stock Options to a Participant who exercises
a Stock Option with previously acquired shares of Common Stock, with the number
of new Stock Options being equal to the number of shares the Participant submits
to the Company to pay for Stock Options just exercised.
(g) Withholding. The Company's obligation to (i) deliver shares of
Common Stock or pay cash upon the exercise of any Stock Option or Stock
Appreciation Right, (ii) deliver shares of Common Stock or pay cash in payment
of any Performance Unit Award, (iii) deliver stock certificates upon the vesting
of any Restricted Stock Award, (iv) deliver shares of Common Stock upon the
grant of any Stock Bonus Award, and (v) deliver shares of Common Stock or pay
cash in respect of any Other Stock-Based Award, shall be subject to applicable
federal, state and local tax withholding requirements. If permitted in any
specific case by the Committee, amounts required to be withheld for taxes may be
paid by the grantee in cash or shares of Common Stock (either through the
surrender of previously held shares of Common Stock or the withholding of shares
of Common Stock otherwise issuable upon the exercise or payment of such award)
having a Fair Market Value equal to the required tax withholding amount and upon
such other terms and conditions as the Committee shall determine; provided that
any election by a grantee subject to Section 16(b) of the Exchange Act to pay
any tax withholding in shares of Common Stock shall be subject to and must
comply with Rule 16b-3(e) under the Exchange Act.
(h) Non-Assignability. An award under the Plan shall, during the
lifetime of the Participant, be exercisable only by the Participant or the
Participant's guardian or legal representative. No award under the Plan shall be
assignable or transferable by the Participant except by will, by the laws of
descent and distribution or, with respect to awards other than Incentive Stock
Options, if permitted in any specific case by the Committee, pursuant to a
qualified domestic relations order or by such other means (if any) as the
Committee may approve from time to time with respect to holders whose
transactions in the Common Stock are not subject to Section 16(b) of the
Exchange Act. Any exercise of an award under the Plan following the
Participant's death shall be made only by the deceased Participant's executor or
administrator or other duly appointed representative reasonably acceptable to
the Board, unless the deceased Participant's will specifically devises such
award, in which case such exercise shall be made only by the beneficiary of such
specific devise, and in each case subject to the terms and conditions of the
Plan and the applicable award agreement. The Participant may not cause or permit
any encumbrance, pledge or charge of any nature to be imposed on any award or
right to receive an award. No right or benefit under the Plan shall in any
manner be subject to the debts, contracts, liabilities or torts of the person
entitled to such right or benefit.
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(i) Pooling. Notwithstanding anything in the Plan to the contrary, if
any right under or feature of the Plan would cause a transaction to be
ineligible for pooling of interests accounting that would, but for such right or
feature, be eligible for such pooling of interests accounting treatment, the
Board may modify or adjust the right or feature so that the transaction will be
eligible for pooling of interests accounting. Such modification or adjustment
may include without limitation payment of cash or issuance to a Participant of
shares of Common Stock having a Fair Market Value equal to the cash value of
such right or feature.
13. RECAPITALIZATION, DISSOLUTION, AND CHANGE OF CONTROL.
(a) Recapitalization. If the Committee determines that adjustments
are appropriate to prevent the dilution or enlargement of the rights of
Participants under the Plan in connection with any increase or decrease in the
number of issued shares of Common Stock resulting from the payment of a Common
Stock dividend, stock split, reverse stock split, recapitalization, combination,
reclassification or any other similar event which results in a change in the
number or kind of shares of Common Stock, or other property, to which
outstanding awards pertain or an increase or decrease in the number of issued
shares of Common Stock without receipt of adequate consideration by the Company
(as determined by the Committee), then the Committee may make any adjustments
which it deems appropriate to the aggregate number of shares of Common Stock
reserved for issuance under the Plan, the aggregate number of shares of Common
Stock for which awards may be made to an individual grantee, the number and kind
of shares of Common Stock, or other property, to which each outstanding award
pertains, and the exercise or other applicable price related to outstanding
awards, and/or any other adjustments as it deems equitable under the
circumstances, provided that the number of shares subject to any award always
shall be a whole number.
(b) Dissolution; Change in Control. Unless otherwise provided in an
award agreement, this Section 13(b) shall apply upon the (i) dissolution or
liquidation of the Company or (ii) merger or consolidation of the Company with
another corporation or other entity pursuant to which the Company is not the
surviving entity, (iii) sale or lease of all or substantially all the business
assets of the Company, or (iv) the sale of more than 80% of the outstanding
Common Stock of the Company in a single transaction or series of related
transactions involving the same acquiring entity or person. In any of the events
in the preceding sentence, if the surviving or acquiring corporation or entity,
or an affiliated corporation or entity, does not assume the outstanding awards,
then each award shall expire as of the effective date of such transaction,
provided that the Committee shall give at least fifteen (15) days prior written
notice of such event to any Participant who shall then have the right to
exercise the exercisable portion of his or her awards prior to the effective
date of such transaction. Assumption of outstanding awards may take the form of
replacement of the outstanding awards with substantially equivalent awards from
the surviving or acquiring or affiliated corporation or entity. The Committee
shall determine whether the outstanding awards have been assumed and whether the
assumption involved "substantially equivalent" awards. In any of the events
described in the first sentence of this Section 13(b), the Committee may instead
(i) provide for the acceleration of any time period relating to the exercise or
realization of the award, (ii) provide for the purchase of the award upon the
Participant's request for an amount of cash or other property that could have
been received upon the exercise or realization of the award had the award been
currently exercisable or payable, (iii) adjust the terms of the award in a
manner determined by the Committee to reflect the dissolution or change in
control event, (iv) cause the award to be assumed, or new rights substituted
therefor, by another entity, or (v) make such other provision as the Committee
may consider equitable and in the best interests of the Company.
14. RIGHTS AS A STOCKHOLDER.
Unless otherwise provided by the Plan, the grantee of any award under
the Plan shall have no rights as a stockholder of the Company with respect to
any shares of Common Stock subject or related to such award unless and until a
stock certificate for such shares of Common Stock is issued to such grantee or a
book-entry crediting
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shares to the Participant's account is made. No adjustment shall be made for
dividends (ordinary or extraordinary or whether in currency, securities, or
other property), distributions, or other rights for which the record date is
prior to the date such stock certificate is issued or such book-entry credit is
made.
15. RIGHTS AS AN EMPLOYEE, CONSULTANT OR DIRECTOR.
Nothing in the Plan or in any award agreement entered into pursuant to
the Plan shall confer upon any individual the right to continue in the
employment of the Company or any Subsidiary or affect any right which the
Company or any Subsidiary may have to terminate such individual's status as an
employee, consultant, or director at any time, with or without cause.
16. INDEMNIFICATION.
No member of the Board or the Committee, nor any officer or employee of
the Company or a Subsidiary acting on behalf of the Board or the Committee,
shall be personally liable for any action, determination or interpretation taken
or made in good faith with respect to the Plan; and all members of the Board or
the Committee and any officer or employee of the Company or any Subsidiary
acting on their behalf shall, to the extent permitted by law, be fully
indemnified and protected by the Company in respect of any such action,
determination or interpretation.
17. NONUNIFORM DETERMINATIONS.
The Committee's determinations under the Plan (including but not
limited to determinations of the persons to receive awards, the form, amount and
timing of awards, the terms and provisions of awards, and the agreements
evidencing awards, the establishment of values and performance targets, and
actions in respect of outstanding awards) need not be uniform and may be made by
the Committee selectively among the persons who have received, who receive, or
who are eligible to receive awards under the Plan, whether or not such persons
are similarly situated.
18. SEVERABILITY.
With respect to Participants subject to Section 16 of the Exchange Act,
(i) the Plan is intended to comply with all applicable conditions of Rule 16b-3
or any successor to such rule, (ii) all transactions involving grantees who are
subject to Section 16(b) of the Exchange Act are subject to such conditions,
regardless of whether the conditions are expressly set forth in the Plan, and
(iii) any provision of the Plan that is contrary to a condition of Rule 16b-3
shall not apply to grantees who are subject to Section 16(b) of the Exchange
Act. If any of the terms or provisions of the Plan, or awards made under the
Plan, conflict with the requirements of Section 162(m) or Section 422 of the
Code with respect to awards subject to or governed by Section 162(m) or Section
422 of the Code, as the case may be, then such terms or provisions shall be
deemed inoperative to the extent they so conflict with the requirements of
Section 162(m) or Section 422 of the Code, as the case may be. With respect to
an Incentive Stock Option, if the Plan does not contain any provision required
to be included in the Plan under Section 422 of the Code (as amended from time
to time) or any successor to such section, then such provision shall be deemed
to be incorporated in the Plan with the same force and effect as if such
provision had been expressly set out in the Plan.
19. EFFECT ON OTHER PLANS.
Participation in the Plan shall not affect an employee's eligibility to
participate in any other benefit or incentive plan of the Company or any
Subsidiary. Any grants or awards made pursuant to the Plan shall not be taken
into account in determining the benefits provided or to be provided under any
other plan of the Company or
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any Subsidiary unless otherwise specifically provided in such other plan.
20. GOVERNING LAW.
The Plan shall be governed by and construed in accordance with the laws
of Nebraska except that any matters relating to the internal governance of the
Company shall be governed by the general corporate laws of the State of
Minnesota.
21. TERM OF PLAN.
The Plan was adopted by the Board effective February 11, 1999, subject
to the approval of the Company's stockholders in accordance with this Section.
The Plan shall be subject to approval by the affirmative vote of the holders of
a majority of the outstanding shares present and entitled to vote at the first
annual meeting of stockholders of the Company following the adoption of the
Plan, and in any event no later than February 11, 2000. The Plan shall terminate
for purposes of further grants on the first to occur of (i) December 31, 2009 or
(ii) the effective date of the termination of the Plan by the Board pursuant to
Section 22. No awards may be granted under the Plan after the termination of the
Plan, but such termination shall not affect any awards outstanding at the time
of such termination or the authority of the Committee to continue to administer
the Plan apart from the making of further grants.
22. TERMINATION AND AMENDMENT OF PLAN.
The Board may terminate or amend the Plan or any portion thereof at any
time, including but not limited to amendments to the Plan necessary to comply
with the requirements of Section 16(b) of the Exchange Act. The termination or
amendment of the Plan shall not, without the consent of a grantee, adversely
affect such grantee's rights under an award previously made to such grantee
under the Plan.
21
EXHIBIT 4.2
AMENDMENT NO. 1
TO THE SITEL CORPORATION
1999 STOCK INCENTIVE PLAN
As approved by the Board of Directors on May 6, 1999
A Section 6(j) shall be added to the SITEL Corporation 1999 Stock Incentive Plan
and shall state in its entirety as follows:
(j) Shareholder Approval of Repricing. Notwithstanding
anything to the contrary in this Plan (including without limitation
Section 3(c)(xi)), in no event shall any issued and outstanding Stock
Option be repriced to a lower exercise price at any time during the
term of such Stock Option, without the prior affirmative vote of a
majority of the shares of Common Stock present at a stockholders
meeting in person or by proxy and entitled to vote thereon. Any
amendment or repeal of this provision shall require the affirmative
vote of a majority of the shares of Common Stock present at a
stockholders meeting in person or by proxy and entitled to vote
thereon.
22
EXHIBIT 5.1
OPINION OF ABRAHAMS KASLOW & CASSMAN
May 11, 1999
SITEL Corporation
111 South Calvert Street, Suite 1900
Baltimore, Maryland 21202
Gentlemen:
We have examined the Registration Statement on Form S-8 (the
"Registration Statement") to be filed by SITEL Corporation (the "Company") with
the Securities and Exchange Commission in connection with the registration of
7,000,000 shares of the Common Stock, $.001 par value per share, of the Company
(the "Shares") under the Securities Act of 1933, as amended.
We also have examined the SITEL Corporation 1999 Stock Incentive Plan
(the "Incentive Plan") and such corporate records, certificates and other
documents as we deemed relevant and appropriate.
It is our opinion that, when sold in accordance with the terms of the
Incentive Plan, the Shares will be legally issued, fully paid and
non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and to the reference to our firm in Item 5 of the Registration
Statement.
Very truly yours,
ABRAHAMS, KASLOW & CASSMAN
23
EXHIBIT 23.1
CONSENT OF KPMG LLP
The Board of Directors
SITEL Corporation:
We consent to the use of our reports incorporated by reference in this
Registration Statement of SITEL Corporation on Form S-8 of our report dated
February 5, 1999 relating to the consolidated balance sheets of SITEL
Corporation and its subsidiaries as of December 31, 1997 and 1998, and the
related consolidated statements of income (loss), stockholders' equity, and cash
flows for each of the years in the three-year period ended December 31, 1998,
which report is included in SITEL Corporation's Annual Report on Form 10-K for
the year ended December 31, 1998.
KPMG LLP
Omaha, Nebraska
May 10, 1999
24
