As filed with the Securities and Exchange Commission on August 20, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TECH-SYM CORPORATION
(Exact name of registrant as specified in its charter)
NEVADA 74-1509818
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
10500 WESTOFFICE DRIVE, SUITE 200
HOUSTON, TEXAS 77042
(Address, including zip code, of Principal Executive Offices)
TECH-SYM CORPORATION
1998 EQUITY INCENTIVE PLAN
(SECOND AMENDMENT AND RESTATEMENT)
(Full title of the plan)
J. RANKIN TIPPINS
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
10500 WESTOFFICE DRIVE, SUITE 200
HOUSTON, TEXAS 77042
(713) 785-7790
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
------------------------------
COPY TO:
THOMAS P. MASON
ANDREWS & KURTH L.L.P.
600 TRAVIS, SUITE 4200
HOUSTON, TEXAS 77002
(713) 220-4200
------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED
PROPOSED MAXIMUM
AMOUNT MAXIMUM AGGREGATE AMOUNT OF
TO BE OFFERING PRICE OFFERING REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED REGISTERED(1) PER SHARE(2) PRICE(2) FEE
- ---------------------------------------------- -------------- -------------- -------------- --------------
<S> <C> <C> <C> <C> <C>
Common Stock, Par Value $.10 Per Share ....... 750,000 $ 22.22 $16,665,000.00 $ 4,632.87
============== ============== ============== ==============
</TABLE>
(1) The number of shares of common stock registered hereby is subject to
adjustment to prevent dilution resulting from stock splits, stock dividends
or similar transactions.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h), based upon the average of the high and low prices
of a share of the Company's common stock for August 18, 1999 on the New York
Stock Exchange as reported in THE WALL STREET JOURNAL on August 19, 1999.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The Company incorporates herein by reference the following documents, or
portions of documents, as of their respective dates as filed with the Securities
and Exchange Commission:
(1) The Company's Annual Report on Form 10-K for the year ended December
31, 1998;
(2) The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1999 and June 30, 1999; and
(3) The description of the common stock, par value $0.10 per share, and
the rights associated with the common stock contained in the Company's
registration statements on Form 8-A, including any amendments or reports
filed for the purpose of updating the descriptions of the common stock or
the rights.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act after the date of this Registration Statement and
prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all such
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
The information required by Item 4 is not applicable to this Registration
Statement since the class of securities to be offered is registered under
Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
J. Rankin Tippins, General Counsel for the Company is the beneficial owner
of 38,291 shares of the Company's common stock. This number includes 27,000
shares subject to options exercisable within 60 days of the date of this
registration statement. Additionally, Mr. Tippins is the beneficial owner of
22,250 shares of common stock of GeoScience Corporation ("GeoScience"), a
subsidiary of the Company. This number includes 16,250 shares subject to options
exercisable within 60 days of the date of this registration statement.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Nevada Revised Statutes and certain provisions of the Company's
By-Laws under certain circumstances provide for indemnification of the Company's
Officers, Directors and controlling persons against liabilities that they may
incur in such capacities. A summary of the circumstances in which such
indemnification is provided for is contained herein, but this description is
qualified in its entirety by reference to the Company's By-Laws and to the
statutory provisions.
In general, any Officer, Director, employee or agent may be indemnified
against expenses, fines, settlements or judgments arising in connection with a
legal proceeding to which such person is a party, if that person's actions were
in good faith, were believed to be in the Company's best interest, and were not
unlawful. Unless such person is successful upon the merits in such an action,
indemnification may be awarded only after a determination by independent
decision of the Board of Directors, by legal counsel, or by a vote of the
shareholders, that the applicable standard of conduct was met by the person to
be indemnified.
II-1
<PAGE>
The circumstances under which indemnification is granted in connection
with an action brought on behalf of the Company is generally the same as those
set forth above; however, with respect to such actions, indemnification is
granted only with respect to expenses actually incurred in connection with the
defense or settlement of the action. In such actions, the person to be
indemnified must have acted in good faith and in a manner believed to have been
in the Company's best interest, and must not have been adjudged liable for
negligence or misconduct.
Indemnification may also be granted pursuant to the terms of agreements
that may be entered in the future or pursuant to a vote of shareholders or
Directors. The statutory provision cited above also grants the power to the
Company to purchase and maintain insurance which protects its Officers and
Directors against any liabilities incurred in connection with their service in
such a position, and such a policy may be obtained by the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
The information required by Item 7 is not applicable to this Registration
Statement.
ITEM 8. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION
------- -----------
5.1 Opinion of J. Rankin Tippins, General Counsel.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of J. Rankin Tippins, General Counsel
(included in Exhibit 5.1).
24.1 Power of Attorney (included in Part II of the
Registration Statement).
99.1 Tech-Sym Corporation 1998 Equity Incentive Plan (Second
Amendment and Restatement).
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(iii) To include any additional or changed material
information on the plan of distribution.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of the securities at that time
shall be deemed to be the initial bona fide offering.
(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.
II-2
<PAGE>
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 Houston, State of Texas, on the 19th day of
August, 1999.
TECH-SYM CORPORATION
(Registrant)
By: /s/ J. MICHAEL CAMP
J. Michael Camp
Chairman of the Board of Directors,
President, and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned officers and
directors of Tech-Sym Corporation (the "Company") hereby constitutes and
appoints J. Michael Camp and Ray F. Thompson, or either of them (with full power
to each of them to act alone), his true and lawful attorney-in-fact and agent,
with full power of substitution, for him and on his behalf and in his name,
place and stead, in any and all capacities, to sign, execute and file this
Registration Statement under the Securities Act of 1933, as amended, and any or
all amendments (including, without limitation, post-effective amendments), with
all exhibits and any and all documents required to be filed with respect
thereto, with the Securities and Exchange Commission or any regulatory
authority, granting unto such attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises in order to
effectuate the same, as fully to all intents and purposes as he himself might or
could do, if personally present, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their substitute or
substitutes, may lawfully do or cause to be done.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on August 19,
1999 in the capacities indicated.
SIGNATURE TITLE
/s/ J. MICHAEL CAMP Chairman of the Board of Directors, President and
J. Michael Camp Chief Executive Officer (principal executive officer)
/s/ RAY F. THOMPSON Vice President and Chief Financial Officer (principal
Ray F. Thompson financial officer)
/s/ PAUL L. HARP Treasurer and Controller (principal accounting officer)
Paul L. Harp
/s/ W. L. CREECH Director
W. L. Creech
/s/ MICHAEL C. FORREST Director
Michael C. Forrest
/s/ A. A. GALLOTTA, JR. Director
A. A. Gallotta, Jr.
/s/ WENDELL W. GAMEL Director
Wendell W. Gamel
II-3
<PAGE>
/s/ RICHARD S. FRIEDLAND Director
Richard S. Friedland
/s/ JAMES R. HENDERSON Director
James R. Henderson
/s/ WARREN G. LICHTENSTEIN Director
Warren G. Lichtenstein
/s/ COY J. SCRIBNER Director
Coy J. Scribner
/s/ CHARLES K. WATT Director
Charles K. Watt
II-4
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER
-------
5.1 Opinion of J. Rankin Tippins, General Counsel.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of J. Rankin Tippins, General Counsel
(included in Exhibit 5.1).
24.1 Power of Attorney (included in Part II of the
Registration Statement).
99.1 Tech-Sym Corporation 1998 Equity Incentive Plan (Second Amendment
and Restatement).
II-5
EXHIBIT 5.1
[Letterhead of Tech-Sym Corporation]
August 20, 1999
Board of Directors
Tech-Sym Corporation
10500 Westoffice Drive, Suite 200
Houston, Texas 77042
Gentlemen:
I have acted as counsel to Tech-Sym Corporation, a Nevada
corporation (the "Company"), in connection with the preparation and filing with
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Act"), of the registration statement on Form S-8
filed by the Company with the Commission on August 20, 1999 (the "Registration
Statement"), with respect to the offering and sale by the Company of up to
750,000 shares (the "Shares") of the Company's common stock, par value $.10 per
share, in connection with the Tech-Sym Corporation 1998 Equity Incentive Plan,
as amended and restated (the "Plan").
In arriving at the opinion expressed below, I have examined the
Company's Articles of Incorporation and By-Laws, each as amended to date, the
Registration Statement, and the originals or copies certified or otherwise
identified to my satisfaction of such other instruments and other certificates
of public officials, officers and representatives of the Company and such other
persons, and I have made such investigations of law, as I have deemed
appropriate as a basis for the opinions expressed below.
Based on the foregoing, and subject to the limitations and
exceptions set forth below, it is my opinion that the Shares will, when issued
and paid for in accordance with the terms of the Plan, be duly authorized,
validly issued, fully paid and nonassessable.
For the purposes of the opinion expressed above, I have assumed
that the Registration Statement, and any amendments thereto (including
post-effective amendments), will have become effective.
I express no opinion other than as to the federal laws of the
United States of America and the Nevada General Corporation laws. I consent to
the filing of this opinion as an exhibit to the Registration Statement and to
the reference to myself in the prospectus forming part of the Registration
Statement. This opinion is rendered solely for your benefit in connection with
the above matter and may not be relied upon in any manner by any other person
or entity without my express written consent.
Very truly yours,
/s/ J. RANKIN TIPPINS
J. Rankin Tippins
General Counsel
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) for the registration of 750,000 shares of Common Stock pertaining to the
Second Amended and Restated 1998 Equity Incentive Plan of Tech-Sym Corporation
of our report dated February 23, 1999 with respect to the consolidated financial
statements and schedule of Tech-Sym Corporation and subsidiaries included in its
Annual Report (Form 10-K) for the year ended December 31, 1998 filed with the
Securities and Exchange Commission.
/s/ PRICEWATERHOUSECOOPERS, LLP
PRICEWATERHOUSECOOPERS, LLP
Houston, Texas
August 20, 1999
EXHIBIT 99.1
TECH-SYM CORPORATION
1998 EQUITY INCENTIVE PLAN
(SECOND AMENDMENT AND RESTATEMENT)
Tech-Sym Corporation, a Nevada corporation (the "Company"), hereby amends
and restates this Tech-Sym Corporation 1998 Equity Incentive Plan (the
"Plan"), effective as of October 15, 1998, subject to stockholder approval.
1. PURPOSE. The purpose of the Plan is to promote the interests of the
Company by encouraging employees of, and consultants to, the Company and its
Affiliates and the directors of the Company who are not also employees of the
Company or an Affiliate, to acquire or increase their equity interests in the
Company and to provide a means whereby such persons may develop a sense of
proprietorship and personal involvement in the development and financial success
of the Company, and to encourage them to remain with and devote their best
efforts to the business of the Company, thereby advancing the interests of the
Company and its stockholders. The Plan is also contemplated to enhance the
ability of the Company and its Affiliates to attract and retain the services of
individuals who are believed to be essential for the growth and profitability of
the Company.
2. DEFINITIONS. As used in this Plan:
(a) "AFFILIATE" means, at any time, any corporation, partnership or
other entity in which the Company, directly or indirectly, has a
significant equity interest, as determined by the Committee.
(b) "APPRECIATION RIGHT" means a right granted pursuant to
Paragraph 5.
(c) "AWARD" means an Option Right, an Appreciation Right, a
Director Option, Phantom Shares, a Performance Unit, Bonus Stock,
Restricted Stock or a Cash Tax Right.
(d) "BOARD" means the Board of Directors of the Company.
(e) "BONUS STOCK" means unrestricted shares of Common Stock granted
pursuant to Paragraph 9.
(f) "CASH TAX RIGHT" means a right granted pursuant to Paragraph
10.
(g) "CHANGE IN CONTROL" shall occur if:
(i) any "person," as such term is used on Section 13(d)
and 14(d) of the Exchange Act (other than the Company or any
employee benefit plan of the Company) together with its
"affiliates" and "associates," as such terms are defined in
Rule 12b-2 of the Exchange Act, is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company representing
25% or more of the combined voting power of the Company's then
outstanding securities;
(ii) during any period of two consecutive years (not
including any period prior to the effective date of this Plan),
individuals who at the beginning of such period constitute the
Board, and any new director (other than a director designated by a
person who has entered into an agreement with the Company to
effect a transaction described in clause (i), (iii) or (iv) of
this definition) whose election by the Board or nomination for
election by the Company's stockholders was approved by a vote of
at least two-thirds of the directors then
<PAGE>
still in office who either were directors at the beginning of the
period or whose election or nomination for election was previously
so approved, cease for any reason to constitute at least a
majority thereof;
(iii) the stockholders of the Company approve a merger or
consolidation of the Company with any other company other than (1)
a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity)
more than 80% of the combined voting power of the voting
securities of the Company (or such surviving entity) outstanding
immediately after such merger or consolidation, or (2) a merger or
consolidation effected to implement a recapitalization of the
Company (or similar transaction) in which no "person" (as
hereinabove defined) acquires more than 25% of the combined voting
power of the Company's then outstanding securities; or
(iv) the stockholders of the Company adopt a plan of
complete liquidation of the Company or approve an agreement for
the sale, exchange or disposition by the Company of all or a
significant portion of the Company's assets. For purposes of this
clause (iv), the term "the sale, exchange or disposition by the
Company of all or a significant portion of the Company's assets"
shall mean a sale or other disposition transaction or series of
related transactions involving assets of the Company or any
subsidiary (including the stock of any subsidiary) in which the
value of the assets or stock being sold or otherwise disposed of
(as measured by the purchase price being paid therefor or by such
other method as the Board determines is appropriate in a case
where there is no readily ascertainable purchase price)
constitutes more than 25% of the fair market value of the Company
(as hereinafter defined). For purposes of the preceding sentence,
the "fair market value of the Company" shall be the aggregate
market value of the outstanding shares of common stock of the
Company (on a fully diluted basis) plus the aggregate market value
of the Company's other outstanding equity securities. The
aggregate market value of the shares of common stock of the
Company shall be determined by multiplying the number of shares of
the Company's common stock (on a fully diluted basis) outstanding
on the date of the execution and delivery of a definitive
agreement with respect to the transaction or series of related
transactions (the "Transaction Date") by the average closing
price of the shares of common stock of the Company for the ten
trading days immediately preceding the Transaction Date. The
aggregate market value of any other equity securities of the
Company shall be determined in a manner similar to that prescribed
in the immediately preceding sentence for determining the
aggregate market value of the shares of common stock of the
Company or by such other method as the Board shall determine is
appropriate.
(h) "CODE" means the Internal Revenue Code of 1986, as in effect
from time to time.
(i) "COMMITTEE" means the Compensation Committee of the Board.
(j) "COMMON STOCK" means the Common Stock, $0.10 par value, of the
Company or any security into which such Common Stock may be changed by
reason of any transaction or event of the type described in Paragraph 14.
(k) "DATE OF GRANT" means (i) with respect to an Award other than a
Director Option, the date specified by the Committee on which such Award
will become effective (which date will not be earlier
2
<PAGE>
than the date on which the Committee takes action with respect thereto) and
(ii) with respect to a Director Option, the automatic date of grant as
provided in Paragraph 11.
(l) "DIRECTOR" means a member of the Board who is not also an
employee of, or consultant to, the Company or an Affiliate.
(m) "DIRECTOR OPTION" means the right to purchase a share of Common
Stock upon exercise of an option granted pursuant to Paragraph 11.
(n) "DIVIDEND EQUIVALENT" means, with respect to an Option Right or
Phantom Share, an amount equal to the amount of any dividends that are
declared and become payable after the Date of Grant for such Award and on
or before the date such Award is exercised, paid or forfeited, as the case
may be.
(o) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
(p) "GRANT PRICE" means the price per share of Common Stock at
which an Appreciation Right not granted in tandem with an Option Right is
granted.
(q) "MARKET VALUE PER SHARE" means, at any date, the closing sale
price per share of the Common Stock on that date (or, if there are no sales
on that date, the last preceding date on which there was a sale) in the
principal market in which the Common Stock is traded.
(r) "OPTION PRICE" means the purchase price per share payable on
exercise of an Option Right or Director Option.
(s) "OPTION RIGHT" means the right to purchase a share of Common
Stock upon exercise of an option granted pursuant to Paragraph 4.
(t) "PARTICIPANT" means an employee of, or consultant to, the
Company or any of its Affiliates who is selected by the Committee to
receive an Award under any of Paragraphs 4 through 10 and shall also
include a Director who has received an automatic grant of Director Options
pursuant to Paragraph 11.
(u) "PERFORMANCE OBJECTIVES" means the objectives, if any,
established by the Committee that are to be achieved with respect to an
Award granted under this Plan, which may be described in terms of
Company-wide objectives, in terms of objectives that are related to
performance of a division, Subsidiary, department or function within the
Company or a Subsidiary in which the Participant receiving the Award is
employed or in individual or other terms, and which will relate to the
period of time (Performance Cycle) determined by the Committee. The
Performance Objectives intended to qualify under Section 162(m) of the Code
shall be with respect to one or more of the following (i) net earnings;
(ii) operating income; (iii) earnings before interest and taxes ("EBIT");
(iv) earnings before interest, taxes, depreciation, and amortization
expenses ("EBITDA"); (v) earnings before taxes and unusual or
nonrecurring items; (vi) revenue; (vii) return on investment; (viii) return
on equity; (ix) return on total capital; (x) return on assets; (xi) total
stockholder return; (xii) return on capital employed in the business;
(xiii) stock price performance; (xiv) earnings per share growth; and (xv)
cash flows. Which objectives to use with respect to an Award, the weighting
of the objectives if more than one is used, and whether the objective is to
be measured against a Company-established budget or target, an index or a
peer group of companies, shall be determined by the Committee in its
discretion at the time of grant of the Award. A Performance Objective need
not be based on an increase or a positive result and may include, for
example, maintaining the status quo or limiting economic losses. The
Committee, in its sole discretion and without the consent of the
Participant, may amend (i)
3
<PAGE>
any stock-based Award to reflect (1) a change in corporate capitalization,
such as a stock split or dividend, (2) a corporate transaction, such as a
corporate merger, a corporate consolidation, any corporate separation
(including a spinoff or other distribution of stock or property by a
corporation), any corporate reorganization (whether or not such
reorganization comes within the definition of such term in Section 368 of
the Code), (3) any partial or complete corporate liquidation, or (4) a
change in accounting rules required by the Financial Accounting Standards
Board and (ii) any Award that is not intended to meet the requirements of
Section 162(m) of the Code, to reflect significant event that the
Committee, in its sole discretion, believes to be appropriate to reflect
the original intent in the grant of the Award. With respect to an Award
that is subject to Section 162(m) of the Code, the Committee must first
certify that the Performance Objectives have been achieved before the Award
may be paid.
(v) "PERFORMANCE UNIT" means a unit equivalent to $100 (or such
other value as the Committee determines) awarded pursuant to Paragraph 8.
(w) "PHANTOM SHARES" means notional shares of Common Stock awarded
pursuant to Paragraph 7.
(x) "RESTRICTED STOCK" means shares of Common Stock granted or sold
pursuant to Paragraph 6 as to which neither the ownership restrictions nor
the restriction on transfers referred to therein has expired.
(y) "RULE 16B-3" means Rule 16b-3 of the Securities and Exchange
Commission (or any successor rule to the same effect) as in effect from
time to time.
(z) "SPREAD" means the amount determined by multiplying (i) the
excess of the Market Value per Share on the date when an Appreciation Right
is exercised over the Option Price provided for in the related Option Right
or, if there is no tandem Option Right, the Grant Price provided for in the
Appreciation Right by (ii) the number of shares of Common Stock in respect
of which the Appreciation Right is exercised.
(aa) "SUBSIDIARY" means, at any time, any corporation in which at
the time the Company then owns or controls, directly or indirectly, not
less than 50% of the total combined voting power represented by all classes
of stock issued by such corporation.
3. SHARES AVAILABLE UNDER PLAN. Subject to adjustments as provided in
Paragraph 14, 750,000 is the maximum number of shares of Common Stock which may
be issued or transferred and covered by all outstanding Awards under this Plan,
of which number no more than 150,000 shares may be issued or transferred as
Restricted Stock and/or Phantom Shares, the vesting of which is not subject to
the achievement of Performance Objectives, and/or as Bonus Stock. Such shares
may be shares of original issuance or treasury shares or a combination of the
foregoing. Upon exercise of any Appreciation Rights or the payment of any
Phantom Shares, there will be deemed to have been delivered under this Plan for
purposes of this Paragraph 3 the number of shares of Common Stock covered by the
Appreciation Rights or equal to the Phantom Shares, as applicable, regardless of
whether such Appreciation Rights or Phantom Shares were paid in cash or shares
of Common Stock. Subject to the provisions of the preceding sentence, any shares
of Common Stock which are subject to Option Rights, Appreciation Rights, or
Phantom Shares awarded or sold as Restricted Stock that are terminated
unexercised, forfeited or surrendered or which expire for any reason will again
be available for issuance under this Plan. No person may receive Appreciation
Rights, Option Rights, Phantom Shares, Bonus Stock and Restricted Stock awards
with respect to more than 250,000 shares during any calendar year; but
disregarding any Appreciation Rights
4
<PAGE>
granted in tandem with any Option Rights granted that year. Similarly, the
maximum value of Performance Units that may be granted to any person during any
calendar may not exceed $1 million.
4. OPTION RIGHTS. The Committee may from time to time authorize grants to
any Participant (other than a Director) of options to purchase shares of Common
Stock upon such terms and conditions as it may determine in accordance with the
following provisions:
(a) Each grant will specify the number of shares of Common Stock to
which it pertains and whether Dividend Equivalents are awarded with respect
to the option, and; if awarded, the payment or crediting of such Dividend
Equivalents.
(b) Each grant will specify its Option Price, which may not be less
than 100% of the Market Value per Share on the Date of Grant.
(c) Each grant will specify that the Option Price will be payable (i)
in cash or by check payable and acceptable to the Company or (ii) to the
extent provided in the grant agreement, (a) by tendering (actually or
constructively) to the Company shares of Common Stock owned by the optionee
(for more than six months if acquired pursuant to the prior exercise of an
Option Right) having an aggregate Market Value Per Share as of the date of
exercise and tender that is not greater than the full Option Price for the
shares with respect to which the option is being exercised and by paying
any remaining amount of the Option Price as provided in (i) above or (b) by
the optionee delivering to the Company a properly executed exercise notice
together with irrevocable instructions to a broker to promptly deliver to
the Company cash or a check payable and acceptable to the Company to pay
the Option Price and any required tax withholding amounts; provided that in
the event the optionee chooses to pay the Option Price as provided in
(ii)(b) above, the optionee and the broker shall comply with such
procedures and enter into such agreements of indemnity and other agreements
as the Committee shall prescribe as a condition of such payment procedure,
or (iii) by a combination of such payment methods. Payment instruments will
be received subject to collection.
(d) Successive grants may be made to the same Participant whether or
not any Option Rights previously granted to such Participant remain
unexercised.
(e) Each grant will specify the required period or periods of
continuous service by the Participant with the Company and the Affiliates
and/or the Performance Objectives (if any) to be achieved before the Option
Rights or installments thereof will become exercisable, and any grant may
provide for the earlier exercise of the Option Rights in the event of a
Change in Control or other corporate transaction or event or upon
termination of the Participant's employment due to death, disability,
retirement or otherwise, including an involuntary termination other than
for cause.
(f) Each grant the exercise of which, or the timing of the exercise
of which, is dependent, in whole or in part, on the achievement of
Performance Objectives may specify a minimum level of achievement in
respect of the specified Performance Objectives below which no Options
Rights will be exercisable and may set forth a formula or other method for
determining the number of Option Rights that will be exercisable if
performance is at or above such minimum but short of full achievement of
the Performance Objectives.
(g) Option Rights granted under this Plan may be (i) options which
are intended to qualify as incentive stock options under Section 422 of the
Code, provided, however, such options may only be granted to employees of
the Company, its parent corporation and subsidiaries of the Company, (ii)
options which are not intended to so qualify or (iii) combinations of the
foregoing.
5
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(h) Option Rights granted to a Participant who is an officer of the
Company or a Subsidiary may, in the discretion of the Committee, provide
for an automatic "reload" grant upon the exercise of the Option Right,
with such terms and conditions on any such reload grant as the Committee
may choose, provided, however, the Option Price may not be less than 100%
of the Market Value per Share on the Date of Grant of the reload option and
its term may not exceed the remaining term for the exercised option.
(i) Each grant may, in the discretion of the Committee, provide that
the Common Stock acquired upon exercise of the Option Right shall remain
subject to "forfeiture" upon such terms and conditions as the Committee
may determine.
(j) Each grant shall specify the period during which the Option Right
may be exercised, but no Option Right will be exercisable more than ten
years from the Date of Grant.
(k) Each grant of Option Rights will be evidenced by an agreement
executed on behalf of the Company by any officer and delivered to the
Participant and containing such terms and provisions, consistent with this
Plan, as the Committee may approve.
5. APPRECIATION RIGHTS. The Committee may also from time to time
authorize grants to any Participant (other than a Director) of Appreciation
Rights upon such terms and conditions as it may determine in accordance with
this Paragraph. Appreciation Rights may be granted in tandem with Option Rights
or separate and apart from a grant of Option Rights. An Appreciation Right will
be a right of the Participant granted such Award to receive from the Company,
upon exercise, an amount which will be determined by the Committee at the Date
of Grant and will be expressed as a percentage of the Spread (not exceeding
100%) at the time of exercise. An Appreciation Right granted in tandem with an
Option Right may be exercised only by surrender of the related Option Right.
Each grant of an Appreciation Right may utilize any or all of the
authorizations, and will be subject to all of the limitations, contained in the
following provisions:
(a) Each grant will state whether it is made in tandem with Option
Rights and, if not made in tandem with any Option Rights, will specify the
number of shares of Common Stock in respect of which it is made.
(b) Each grant made in tandem with Option Rights will specify the
Option Price and each grant not made in tandem with Option Rights will
specify the Grant Price, which in either case will not be less than 100% of
the Market Value per Share on the Date of Grant.
(c) Any grant may specify that the amount payable on exercise of an
Appreciation Right may be paid by the Company in (i) cash or Company check,
(ii) shares of Common Stock having an aggregate Market Value per Share
equal to the Spread or (iii) any combination thereof, as determined by the
Committee in its sole discretion.
(d) Any grant may specify that the amount payable on exercise of an
Appreciation Right may not exceed a maximum specified by the Committee at
the Date of Grant (valuing shares of Common Stock for this purpose at their
Market Value per Share at the date of exercise).
(e) Each grant will specify the required period or periods of
continuous service by the Participant with the Company and its Affiliates
and/or Performance Objectives to be achieved before the Appreciation Rights
or installments thereof will become exercisable, and will provide that no
Appreciation Right may be exercised except at a time when the Spread is
positive and, with respect to any grant made in tandem with Option Rights,
when the related Option Right is also exercisable. Any grant may provide
for the earlier exercise of the Appreciation Rights in the event of a
Change in
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Control or other corporate transaction or event or upon the Participant's
termination due to death, disability or retirement, including an
involuntary termination other than for cause.
(f) Each grant the exercise of which, or the timing of the exercise
of which, is dependent, in whole or in part, on the achievement of
Performance Objectives may specify a minimum level of achievement in
respect of the specified Performance Objectives below which no Appreciation
Rights will be exercisable and may set forth a formula or other method for
determining the number of Appreciation Rights that will be exercisable if
performance is at or above such minimum but short of full achievement of
the Performance Objectives.
(g) Each grant of an Appreciation Right will be evidenced by an
agreement executed on behalf of the Company by any officer and delivered to
and accepted by the Participant receiving the grant, which agreement will
describe such Appreciation Right, identify any Option Right granted in
tandem with such Appreciation Right, state that such Appreciation Right is
subject to all the terms and conditions of this Plan and contain such other
terms and provisions, consistent with this Plan, as the Committee may
approve.
6. RESTRICTED STOCK. The Committee may also from time to time authorize
grants or sales to any Participant (other than a Director) of Restricted Stock
upon such terms and conditions as it may determine in accordance with the
following provisions:
(a) Each grant or sale will constitute an immediate transfer of the
ownership of shares of Common Stock to the Participant in consideration of
the performance of services, entitling such Participant to voting and other
ownership rights, but subject to the restrictions hereinafter referred to.
Each grant or sale may limit the Participant's dividend rights during the
period in which the shares of Restricted Stock are subject to any such
restrictions.
(b) Each grant or sale will specify the Performance Objectives, if
any, that are to be achieved in order for the ownership restrictions to
lapse. Each grant or sale that is subject to the achievement of Performance
Objectives will specify a minimum acceptable level of achievement in
respect of the specified Performance Objectives below which the shares of
Restricted Stock will be forfeited and may set forth a formula or other
method for determining the number of shares of Restricted Stock with
respect to which restrictions will lapse if performance is at or above such
minimum but short of full achievement of the Performance Objectives.
(c) Each such grant or sale may be made without additional
consideration or in consideration of a payment by such Participant that is
less than the Market Value per Share at the Date of Grant.
(d) Each such grant or sale will provide that the shares of
Restricted Stock covered by such grant or sale will be subject, for a
period to be determined by the Committee at the Date of Grant, to one or
more restrictions, including, without limitation, a restriction that
constitutes a "substantial risk of forfeiture" within the meaning of
Section 83 of the Code and the regulations thereunder; provided, however,
with respect to any such Award that is intended on its Date of Grant to be
on a "performance based" Award under Section 162(m) of the Code, the
minimum restricted period shall be one year, and, with respect to any such
Award that is not intended on its Date of Grant to be such a "performance
based" Award, the minimum restricted period shall be three years.
Notwithstanding the foregoing however, any grant or sale may provide for
the earlier termination of such period in the event of a Change in Control
or other corporate transaction or event or upon termination of the
Participant's employment due to death, disability, retirement or otherwise,
including an involuntary termination other than for cause, to the extent
the inclusion of such acceleration provision(s) on the
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Date of Grant would not preclude an Award intended to be "performance
based" under section 162(m) from so qualifying.
(e) Each such grant or sale will provide that during the period for
which such restriction or restrictions are to continue, the transferability
of the Restricted Stock will be prohibited or restricted in a manner and to
the extent prescribed by the Committee at the Date of Grant (which
restrictions may include, without limitation, rights of repurchase or first
refusal in the Company or provisions subjecting the Restricted Stock to
continuing restrictions in the hands of any transferee).
(f) Each grant or sale of Restricted Stock will be evidenced by an
agreement executed on behalf of the Company by any officer and delivered to
and accepted by the Participant and containing such terms and provisions,
consistent with this Plan, as the Committee may approve.
(g) Unless otherwise approved by the Committee, certificates
representing shares of Common Stock transferred pursuant to a grant of
Restricted Stock will be held in escrow pursuant to an agreement
satisfactory to the Committee until such time as the restrictions on
transfer have expired or the shares have been forfeited.
7. PHANTOM SHARES. The Committee may also from time to time authorize
grants to any Participant (other than a Director) of Phantom Shares upon such
terms and conditions as it may determine in accordance with the following
provisions:
(a) Each grant will specify the number of Phantom Shares to which it
pertains and the payment or crediting of any Dividend Equivalents with
respect to such Phantom Shares.
(b) Each grant will specify the Performance Objectives, if any, that
are to be achieved in order for the Phantom Shares to be earned. Each grant
that is subject to the achievement of Performance Objectives will specify a
minimum acceptable level of achievement in respect of the specified
Performance Objectives below which the Phantom Shares will be forfeited and
may set forth a formula or other method for determining the number of
Phantom Shares to be earned if performance is at or above such minimum but
short of full achievement of the Performance Objectives.
(c) Each grant will specify the time and manner of payment of Phantom
Shares which have been earned, which payment may be made in (i) cash, (ii)
shares of Common Stock or (iii) any combination thereof, as determined by
the Committee in its sole discretion.
(d) Each grant of Phantom Shares will be evidenced by an agreement
executed on behalf of the Company by any officer and delivered to and
accepted by the Participant and containing such terms and provisions,
consistent with this Plan, as the Committee may approve, including
provisions relating to a Change in Control or other corporate transaction
or event or upon the Participant's termination due to death, disability or
retirement or otherwise, including an involuntary termination other than
for cause.
8. PERFORMANCE UNITS. The Committee may also from time to time authorize
grants to any Participant (other than a Director) of Performance Units upon such
terms and conditions as it may determine in accordance with the following
provisions:
(a) Each grant will specify the number of Performance Units to which
it pertains.
(b) Each grant will specify the Performance Objectives that are to be
achieved in order for the Performance Units to be earned. Each grant will
specify a minimum acceptable level of achievement in respect of the
specified Performance Objectives below which no payment will be made and
may set
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forth a formula or other method for determining the amount of payment to be
made if performance is at or above such minimum but short of full
achievement of the Performance Objectives.
(c) Each grant will specify the time and manner of payment of
Performance Units which have become payable, which payment may be made in
(i) cash, (ii) shares of Common Stock having an aggregate Market Value per
Share equal to the aggregate value of the Performance Units which have
become payable or (iii) any combination thereof, as determined by the
Committee in its sole discretion at the time of payment.
(d) Each grant of a Performance Unit will be evidenced by an
agreement executed on behalf of the Company by any officer and delivered to
and accepted by the Participant and containing such terms and provisions,
consistent with this Plan, as the Committee may approve, including
provisions relating to a Change in Control or other corporate transaction
or event or upon the Participant's termination of employment due to death,
disability, retirement or otherwise, including an involuntary termination
other than for cause.
9. BONUS STOCK. The Committee may also from time to time authorize grants
to any Participant (other than a Director) of Bonus Stock, which shall
constitute a transfer of shares of Common Stock, without other payment therefor,
as additional compensation for the Participant's services to the Company or its
Affiliates, provided, however, that no more than 10% of the shares of Common
Stock available for Awards under the Plan may be granted as Bonus Stock, but
excluding from this limitation all Bonus Stock grants made in lieu of salary or
cash bonuses having a value equal to the Bonus Stock Award.
10. CASH TAX RIGHTS.
(a) The Committee may also from time to time authorize grants to any
Participant (other than a Director) of Cash Tax Rights upon such terms and
conditions as it may determine in accordance with this Paragraph. Cash Tax
Rights may only be granted in tandem with an Award that is payable in
shares of Common Stock. A Cash Tax Right will be the right of the
Participant granted such Award to receive from the Company, upon receipt of
shares of Common Stock pursuant to the tandem Award, an amount of cash,
which will be determined by the Committee at the Date of Grant and will be
expressed as a percentage of the Market Value per Share (not exceeding
100%) of each share of Common Stock received upon payment of the tandem
Award.
(b) Each grant of a Cash Tax Right will (i) state the Award it is
made in tandem with and will specify the percentage of the Market Value per
Share that shall be payable in cash and (ii) be evidenced by an agreement
extended on behalf of the Company by any officer and delivered to and
accepted, by the Participant and containing such terms and provisions,
consistent with this Plan, as the Committee may approve, including
provisions relating to a Change in Control or other corporate transaction
or event or upon the Participant's termination of employment due to death,
disability, retirement or otherwise, including an involuntary termination
other than for cause.
11. DIRECTOR OPTIONS.
(a) Each Director who is elected or appointed to the Board for the
first time at or after the 1998 Annual Meeting of the Stockholders of the
Company shall automatically receive, on the date of his or her election or
appointment, a Director Option for 10,000 shares of Common Stock. In
addition, each person who is a Director on October 15, 1998, shall receive
on such date a Director Option for 6,000 shares of Common Stock ("Special
Director Options").
(b) On the day of the regular Annual Meeting of the Stockholders of
the Company in each year that this Plan is in effect (commencing with the
1999 Annual Meeting of Stockholders), each Director
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who is in office on that day and who was not elected or appointed for the
first time on such date shall automatically receive a Director Option for
5,000 shares of Common Stock.
(c) Each Director Option will be subject to all of the limitations
contained in the following provisions:
(i) Each Director Option shall be fully exercisable (vested) on
its Date of Grant, except for each Special Director Option which shall
be fully exercisable (vested) one year after its Date of Grant.
(ii) The Option Price of each Director Option shall be the Market
Value per Share on its Date of Grant.
(iii) Each Director Option may be exercised in full at one time or
in part from time to time by giving written notice to the Company,
stating the number of shares of Common Stock with respect to which the
Director Option is being exercised, accompanied by payment in full of
the Option Price for such shares, which payment may be (1) in cash by
check acceptable to the Company, (2) by tendering (actually or
constructively) to the Company shares of Common Stock owned by the
optionee (for more than six months if acquired pursuant to the prior
exercise of a Director Option) having an aggregate Market Value Per
Share as of the date of exercise and tender that is not greater than the
full option exercise price for the shares with respect to which the
Option is being exercised and by paying any remaining amount of the
option exercise price as provided (i) above, (3) by the optionee
delivering to the Company a properly executed exercise notice together
with irrevocable instructions to a broker to promptly deliver to the
Company cash or a check payable and acceptable to the Company to pay the
option exercise price and any required tax withholding amounts; provided
that in the event the optionee chooses to pay the exercise price in this
manner, the optionee and the broker shall comply with such procedures
and enter into such agreements of indemnity and other agreements as the
Committee shall prescribe as a condition of such payment procedure, or
(4) by a combination of such methods of payment. Payment instruments
will be received subject to collection.
(iv) Each Director Option shall expire 10 years from the Date of
Grant thereof, but shall be subject to earlier termination as follows:
Director Options must be exercised within one year of Director ceasing
to be a member of the Board unless such termination results from the
Director's death, disability (as determined by the Committee) or
retirement (as determined by the Committee), in which case the Director
Options may be exercised by the optionee or the optionee's legal
representative or the person to whom the Director's rights shall pass by
will or the laws of descent and distribution, as the case may be, within
three years from the date of termination; provided however, that no such
event shall extend the normal expiration date of such Director Options.
(v) In the event that the number of shares of Common Stock
available for grants under this Plan is insufficient to make all
automatic grants provided for in this Paragraph 11 on the applicable
date, then all Directors who are entitled to a grant on such date shall
share ratably in the number of shares then available for grant under
this Plan, and shall have no right to receive a grant with respect to
the deficiencies in the number of available shares and all future grants
under this Paragraph 11 shall terminate.
(vi) Grants made pursuant to this Paragraph 11 shall be subject to
all of the terms and conditions of this Plan; however, if there is a
conflict between the terms and conditions of this Paragraph 11 and the
terms and conditions of any other Paragraph, then the terms and
conditions
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of this Paragraph 11 shall control. The Committee may not exercise any
discretion with respect to this Paragraph 11 which would be inconsistent
with the intent that this Plan meet the requirements of Rule 16b-3.
12. LSARS. Notwithstanding anything in Paragraphs 4, 5 or 11 above to the
contrary, if during the 60-day period following the date of a Change in Control
or, with respect to an option, Appreciation Right or Director Option granted to
a Participant who is subject to Section 16(b) of the Exchange Act, the 60-day
period following the earlier of the date that Section 16(b) of the Exchange Act
ceases to apply to such person or six months following the date of grant of such
option, Appreciation Right or Director Option (but not to exceed the remaining
term of such option, Appreciation Right or Director Option), a Participant (or
beneficiary thereof) elects to exercise an option, Appreciation Right or
Director Option, as applicable, the holder shall receive in cash whichever of
the following amounts is applicable:
(a) with respect to an acquisition of Common Stock described in
clause (i) of the definition of Change in Control, an amount equal to the
Acquisition Spread (as defined below);
(b) with respect to a change in composition of the Board described in
clause (ii) of the definition of Change in Control, an amount equal to the
Spread (as defined below); or
(c) with respect to stockholder approval of an agreement or adoption
of a plan described in clause (iii) or (iv) of the definition of Change in
Control, an amount equal to the Merger Spread (as defined below).
As used in this Paragraph 12, the following terms shall have the meaning
indicated:
(i) The term "Acquisition Price Per Share" shall mean the
greater of (i) the highest price paid by a person (or an Affiliate or
Associate thereof) for any share of Common Stock acquired prior to, but
in connection with, a Change in Control described in clause (i) of the
definition of a Change in Control or (ii) the highest Market Value per
Share for any day during the 60-day period ending on the date the
option, Appreciation Right or Director Option is exercised.
(ii) The term "Acquisition Spread" shall mean an amount equal to
the product obtained by multiplying (i) the excess of (A) the
Acquisition Price Per Share over (B) the price per share of Common Stock
at which the option, Appreciation Right or Director Option is
exercisable, by (ii) the number of shares of Common Stock with respect
to which such option, Appreciation Right or Director Option is being
exercised.
(iii) The term "Merger Price Per Share" shall mean the greater
of (i) the fixed or formula price for the acquisition of shares of
Common Stock specified in such agreement or adoption, if such fixed or
formula price is determinable on the date on which such option,
Appreciation Right or Director Option is exercised, and (ii) the highest
Market Value per Share for any day during the 60-day period ending on
the date on which such option, Appreciation Right or Director Option is
exercised.
(iv) The term "Merger Spread" shall mean an amount equal to the
product obtained by multiplying (i) the excess of (A) the Merger Price
Per Share over (B) the price per share of Common Stock at which the
option, Appreciation Right or Director Option is exercisable, by (ii)
the number of shares of Common Stock with respect to which such option,
Appreciation Right or Director Option is being exercised.
(v) The term "Spread" shall mean an amount equal to the product
obtained by multiplying (i) the excess of (A) the highest Market Value
per Share for any day during the 60-day period
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ending on the date the option, Appreciation Right or Director Option is
exercised over (B) the price per share of Common Stock at which the
option, Appreciation Right or Director Option is exercisable, by (ii)
the number of shares of Common Stock with respect to which such option,
Appreciation Right or Director Option is being exercised.
The Company intends that this Paragraph 12 shall comply with the
requirements of Rule 16b-3 and any future rules promulgated in substitution
therefor ("the Rule") under the Exchange Act during the term of the Plan.
Should any provision of this Paragraph 12 not be necessary to comply with the
requirements of the Rule or should any additional provisions be necessary for
this Paragraph 12 to comply with the requirements of the Rule, the Board may
amend the Plan to add to or modify the provisions of the Plan accordingly.
13. TRANSFERABILITY. Except as provided below, no Award will be
transferable by a Participant other than by will or the laws of descent and
distribution or pursuant to a qualified domestic relations order. Director
Options, Option Rights or Appreciation Rights will be exercisable during the
Participant's lifetime only by the Participant or by the Participant's guardian
or legal representative. The Committee may, in its discretion, adopt rules or
guidelines under which any option (other than an incentive stock option) granted
to a Participant may be transferred (in whole or in part pursuant to such form
as approved by the Company) by the Participant to (i) the spouse, children or
grandchildren of the Participant ("Immediate Family Members"), (ii) a trust or
trusts for the exclusive benefit of the Immediate Family Members and, if
applicable, the Participant, (iii) a partnership, limited liability company or
other entity in which such Immediate Family Members and, if applicable, the
Participant are the only partners, members or stockholders, or (iv) to other
persons or entities as approved by the Committee in its discretion. Following
transfer, any such option shall continue to be subject to the same terms and
conditions as were applicable to the option immediately prior to transfer;
provided, however, that no transferred option shall be exercisable or payable,
as the case may be, unless arrangements satisfactory to the Company have been
made to satisfy any tax withholding obligations the Company may have with
respect to the option.
14. ADJUSTMENTS. The Board may make or provide for such adjustments in
the maximum number of shares specified in Paragraph 3, in the numbers of shares
of Common Stock covered by outstanding Director Options, Option Rights,
Appreciation Rights and Phantom Shares granted hereunder, in the Option Price or
Grant Price applicable to any such Director Options, Option Rights and
Appreciation Rights, and/or in the kind of shares covered thereby (including
shares of another issuer), as the Board, in its sole discretion exercised in
good faith, may determine is equitably required to prevent dilution or
enlargement of the rights of Participants that otherwise would result from any
stock dividend, stock split, combination of shares, recapitalization or other
change in the capital structure of the Company, merger, consolidation,
reorganization, partial or complete liquidation, issuance of rights or warrants
to purchase securities or any other corporation transaction or event having an
effect similar to any of the foregoing.
15. FRACTIONAL SHARES. The Company will not be required to issue any
fractional share of Common Stock pursuant to this Plan. The Committee may
provide for the elimination of fractions for the settlement of fractions in
cash.
16. WITHHOLDING OF TAXES. To the extent that the Company is required to
withhold federal, state, local or foreign taxes in connection with any grant or
payment made to a Participant or any other person under this Plan, it will be a
condition to the receipt of such grant or payment that the Participant or such
other person make arrangements satisfactory to the Company for the payment of
such taxes. With respect to any Participant who is subject to Rule 16b-3 at the
time withholding is required, the Participant may direct the Company to withhold
from such Award, to the extent such withholding is not satisfied by a tandem
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Cash Tax Right, if any, a number of shares of Common Stock having an aggregate
Market Value per Share equal to the amount of taxes required to be withheld by
the Company.
17. PARACHUTE TAX GROSS-UP. To the extent that the acceleration of the
vesting or payment of any Award to a Participant (a "Benefit") is subject to
excise tax under Section 4999(a) of the Code (a "Parachute Tax"), the Company
shall pay such Participant an amount of cash (the "Gross-up Amount") such that
the "net" Benefit received by the Participant under this Plan, after paying
all applicable Parachute Taxes (including those on the Gross-up Amount) and any
taxes on the Gross-up Amount, shall be equal to the Benefit that such
Participant would have received if such Parachute Tax had not been applicable.
18. ADMINISTRATION OF THE PLAN.
(a) This Plan will be administered by the Committee. A majority of
the Committee will constitute a quorum, and the action of the members the
Committee present at any meeting at which a quorum is present, or acts
unanimously approved writing, will be the acts of the Committee.
(b) The interpretation and construction by the Committee of any
provision of this Plan or of any agreement, notification or document
evidencing the grant of an Award and any determination by the Committee
pursuant to any provision of this Plan or of any such agreement,
notification or documentation will be final and conclusive. No member of
the Committee will be liable for any such action or determination made in
good faith or in the absence of gross negligence or willful misconduct on
the part of such member.
19. AMENDMENTS, ETC.
(a) This Plan may be amended from time to time by the Board but may
not be amended without the approval by the stockholders of the Company if
such amendment would change the class of eligible Participants or increase
the number of shares available for Awards.
(b) This Plan will not confer upon any Participant any right with
respect to continuance of employment or other service with the Company or
any Affiliate, nor will it interfere in any way with any right the Company
or any Affiliate would otherwise have to terminate such Participant's
employment or other service at any time.
20. TERM. This Second Amended and Restated Plan shall be effective as of
October 15, 1998, subject to approval by the Company's stockholders; provided,
however, no Special Director Option shall be exercisable or payable prior to the
date of such stockholders' approval. Unless sooner terminated, this Plan shall
terminate on December 31, 2007, and no further Awards shall be made, but all
outstanding Awards on such date shall remain effective in accordance with their
terms and the terms of this Plan.
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