-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, SZLRxMLSR9LY/MhGJ+OoqGyT5NIm5BSyFyBhA1pJ88QQNVumrDDaFOb0YiXtv6LK kduwcshKlof4ciuF908O1A== 0000914317-95-000100.txt : 19951003 0000914317-95-000100.hdr.sgml : 19951003 ACCESSION NUMBER: 0000914317-95-000100 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19950929 EFFECTIVENESS DATE: 19951018 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: PAR TECHNOLOGY CORP CENTRAL INDEX KEY: 0000708821 STANDARD INDUSTRIAL CLASSIFICATION: CALCULATING & ACCOUNTING MACHINES (NO ELECTRONIC COMPUTERS) [3578] IRS NUMBER: 161434688 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 033-63095 FILM NUMBER: 95577735 BUSINESS ADDRESS: STREET 1: PAR TECHNOLOGY PARK STREET 2: 8383 SENECA TURNPIKE CITY: NEW HARTFORD STATE: NY ZIP: 13413 BUSINESS PHONE: 3157380600 S-8 1 As filed with the Securities and Exchange Commission on September 29, 1995 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------------- PAR TECHNOLOGY CORPORATION ------------------------------------------------------ (Exact name of registrant as specified in its charter) Delaware 16-1434688 - ------------------------------- ------------------- (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) PAR Technology Park 8383 Seneca Turnpike New Hartford, New York 13413-4991 ----------------------------------------------------------- (Address of Principal Executive Offices including Zip Code) PAR Technology Corporation 1995 Stock Option Plan -------------------------- (Full title of the Plan) Gregory T. Cortese Vice President, General Counsel and Secretary PAR Technology Corporation PAR Technology Park 8383 Seneca Turnpike New Hartford, New York 13413-4991 (315) 738-0600 --------------------------------------------------------- (Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE ========================================================================================= Proposed Proposed maximum maximum Title of offering aggregate Amount of securities to Amount to be price per offering registration be registered registered unit price fee - ------------- ------------ -------- ------------ ------------ Common Stock, 500,000(1) $9.625(2) $4,812,500(2) $1,659.48 par value $.02 per share =========================================================================================
(1) Consists of shares of Common Stock to be issued pursuant to the PAR Technology Corporation 1995 Stock Option Plan. Such undeterminable number of additional shares as may be issuable pursuant to the operation of the recapitalization provisions of the Plan are hereby also registered. (2) Computed pursuant to Rules 457(h) solely for the purpose of determining the registration fee, based upon an assumed price of $9.625 per share, the average of the high and low sale prices of the Registrant's Common Stock, as reported on the New York Stock Exchange on September 27, 1995. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference Incorporated by reference in this Registration Statement are the following documents heretofore filed by PAR Technology Corporation (the "Company") with the Securities and Exchange Commission (the "Commission") pursuant to the Securities Act of 1933, as amended (the "Securities Act") and the Securities Exchange Act of 1934, as amended (the "Exchange Act"): (a) The Company's annual report filed pursuant to sections 13(a) or 15(d) of the Exchange Act; (b) All other reports filed by the Company pursuant to section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the annual report referred to in (a) above; and (c) The description of the Company's Common Stock, par value $.02 per share (the "Common Stock"), contained in a registration statement filed under the Exchange Act, and any amendment or report filed for the purpose of updating such description. All documents subsequently filed by the Company pursuant to sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a post-effective amendment that indicates that all securities offered hereby have been sold or that deregisters all such securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the dates of filing of such documents. Item 4. Description of Securities Not applicable. Item 5. Interests of Named Experts and Counsel None. Item 6. Indemnification of Directors and Officers Pursuant to the provisions of Section 145 of the Delaware General Corporation Law, every Delaware corporation has the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee or agent of any corporation, partnership, joint venture, trust or other enterprise, against any and all expenses, judgments, fines and amounts paid in settlement and reasonably incurred in connection with such action, suit or proceeding. The power to indemnify applies only if such person acted in good faith and in a manner he reasonably believed to be in the best interest, or not opposed to the best interest, of the corporation and with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The power to indemnify applies to actions brought by or in the right of the corporation as well, but only to the extent of defense and settlement expenses and not to any satisfaction of a judgment or settlement of the claim itself, and with the further limitation that in such actions no indemnification shall be made in the event of any adjudication of negligence or misconduct unless the court, in its discretion, believes that in light of all the circumstances indemnification should apply. To the extent of the persons referred to in the two immediately preceding paragraphs is successful in the defense of the actions referred to therein, such person is entitled, pursuant to Section 145, to indemnification as described above. Article IX of the Company's Amended By-laws provides for indemnification to officers and directors of the Company as follows: "Section 1. Nature of Indemnity. The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was or has agreed to become a director or officer of the Corporation, or is or was serving or has agreed to serve at the request of the Corporation as a director or officer, of another Corporation, partnership, joint venture, trust or other enterprise, or by reason of any action alleged to have been taken or omitted in such capacity, and may indemnify any person who was or is a party or is threatened to be made a party to such an action, suit or proceeding by reason of the fact that he is or was or has agreed to become an employee or agent of the Corporation, or is or was serving or has agreed to serve at the request of the Corporation as an employee or agent of another Corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or on his behalf in connection with such action, suit or proceeding and any appeal therefrom, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding had no reasonable cause to believe his conduct was unlawful; except that in the case of an action or suit by or in the right of the Corporation to procure a judgment in its favor (1) such indemnification shall be limited to expenses (including attorneys' fees) actually and reasonably incurred by such person in the defense or settlement of such action or suit, and (2) no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Delaware Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Delaware Court of Chancery or such other court shall deem proper. The termination of any action, suit or proceeding by judgment, order settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonably cause to believe that his conduct was unlawful." "Section 2. Successful Defense. To the extent that a director, officer, employee or agent of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in Section 1 hereof or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith." "Section 3. Determination that Indemnification is Proper. Any indemnification of a director or officer of the Corporation under Section 1 hereof (unless ordered by a court) shall be made by the Corporation unless a determination is made that indemnification of the director or officer is not proper in the circumstances because he has not met the applicable standard of conduct set forth in Section 1 hereof. Any indemnification of an employee or agent of the corporation under Section 1 hereof (unless ordered by a court) may be made by the Corporation upon a determination that indemnification of the employee or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in Section 1 hereof. Any such determination shall be made (1) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (2) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (3) by the shareholders." "Section 4. Advance Payment of Expenses. Expenses (including attorneys' fees) incurred by a director or officer in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of the director or officer to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as authorized in this Article. Such expenses (including attorneys' fees) incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the board of Directors deems appropriate. The Board of Directors may authorize the Corporation's counsel to represent such director, officer, employee or agent in any action, suit or proceeding, whether or not the Corporation is a party to such action, suit or proceeding." Section 6. Survival; Preservation of Other Rights. The foregoing indemnification provisions shall be deemed to be a contract between the Corporation and each director, officer, employee and agent who serves in any such capacity at any time while these provisions as well as the relevant provisions of the Delaware Corporation Law are in effect and any repeal or modification thereof shall not affect any right or obligation then existing with respect to any state of facts then or previously existing or any action, suit or proceeding previously or thereafter brought or threatened based in whole or in part upon any such state of facts. Such a "contract right" may not be modified retroactively without the consent of such director, officer, employee or agent. The indemnification provided by this Article IX shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any by-law, agreement, vote of shareholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person." "Section 7. Insurance. The Corporation shall purchase and maintain insurance on behalf of any person who is or was or has agreed to become a director or officer of the Corporation, or is or was serving at the request of the Corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him or on his behalf in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of this Article, provided that such insurance is available on acceptable terms, which determination shall be made by a vote of a majority of the entire Board of Directors." Item 7. Exemption from Registration Claimed Not applicable. Item 8. Exhibits An Exhibit Index, containing a list of all exhibits filed with this registration statement, is included on page 10. 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, unless the information is contained in periodic reports filed by the Registrant pursuant to section 13 or section 15(d) of the Exchange Act that are incorporated by reference in the Registration State- ment; (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, unless the information is contained in periodic reports filed by the Registrant pursuant to section 13 or section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) Subsequent Exchange Act Documents. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to section 13(a) or section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Indemnification. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. 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 Town of New Hartford, State of New York on the 28th day of September, 1995. PAR TECHNOLOGY CORPORATION By: /s/ John W. Sammon, Jr. ----------------------------- John W. Sammon, Jr. Chairman of the Board and President 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.
Signatures Title Date - ---------- ----- ---- /s/ John W. Sammon, Jr. Chairman of the September 28, 1995 - ------------------------- Board and John W. Sammon, Jr. President (Principal Executive Officer) and Director /s/ Ronald J. Casciano Vice President, September 28, 1995 - ------------------------- Chief Financial Ronald J. Casciano Officer and Treasurer (Principal Financial and Accounting Officer) Signatures Title Date - ---------- ----- ---- /s/ Charles A. Constantino Executive Vice September 28, 1995 - -------------------------- President and Charles A. Constantino Director Sangwoo Ahn Director /s/ J. Whitney Haney Director September 28, 1995 - -------------------------- J. Whitney Haney James C. Castle Director
Index to Exhibits
Exhibit No. Description of Exhibit - ----------- -------------------------------------- 4.1 Amended and Restated Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3(a) to the Company's Registration Statement on Form S-1 (Registration No. 32-80077)). 4.2 Amended By-laws of the Company (incorporated by reference to Exhibit 3(b) to the Company's Registration Statement on Form S-1 (Registration No. 32-80077)). 4.3 Form of Common Stock Certificate (incorporated by reference to Exhibit 4 to the Company's Registration Statement on Form S-1 (Registration No. 32-80077)). 5 Opinion of Gregory T. Cortese. 23.1 Consent of Price Waterhouse LLP. 23.2 Consent of Gregory T. Cortese (contained in his opinion filed as Exhibit 5). 99 PAR Technology Corporation 1995 Stock Option Plan.
EX-5 2 EXHIBIT 5 September 29, 1995 PAR Technology Corporation PAR Technology Park 8383 Seneca Turnpike New Hartford, New York 13413-4991 Dear Sirs: As General Counsel of PAR Technology Corporation, a Delaware corporation (the "Company"), I have participated in the preparation of the Registration Statement on Form S-8 (the "Registration Statement") to be filed by the Company under the Securities Act of 1933, as amended (the "Act") relating to 500,000 shares of the Company's common stock, par value $.02 per share (the "Common Stock") to be issued upon the exercise of options granted pursuant to the PAR Technology Corporation 1995 Stock Option Plan (the "Plan"). I am familiar with the written Plan document, and in rendering the opinion expressed below, I have examined the originals, or copies certified or otherwise identified to my satisfaction, of such other records, instruments, documents, certificates, opinions and representations of officers and representatives of the Company and such other persons as I deemed appropriate as a basis for such opinion. In rendering such opinion, I have assumed that the exercise price of options to be granted pursuant to the Plan will not be less than the par value of the Common Stock subject thereto. Based upon the foregoing, I am of the opinion that any previously unissued shares of Common Stock which may be issued under the Registration Statement and pursuant to the Plan have been duly authorized and when issued in accordance with the terms of the Plan will be validly issued, fully paid and non-assessable. The foregoing opinion is limited to the federal laws of the United States and the laws of the State of Delaware. I hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, I do not thereby admit that I am within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Securities and Exchange Commission thereunder. Very truly yours, /s/ Gregory T. Cortese Gregory T. Cortese General Counsel EX-23.1 3 EXHIBIT 23.1 [PRICE WATERHOUSE LLP LETTERHEAD] CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated February 21, 1995, which appears on page 22 of the 1995 Annual Report to Shareholders of PAR Technology Corporation, which is incorporated by reference in PAR Technology Corporation's Annual Report on Form 10-K for the year ended December 31, 1995. Syracuse, New York September 29, 1995 EX-99 4 EXHIBIT 99 PAR TECHNOLOGY CORPORATION 1995 STOCK OPTION PLAN ARTICLE I PURPOSE The 1995 Stock Option Plan (the "Plan") of PAR Technology Corporation (the "Company") is intended (a) to encourage the sense of proprietorship on the part of those key employees who are or will be largely responsible for the continued growth of the Company and its subsidiaries (as such term is defined in section 424(f) of the Internal Revenue Code of 1986, as amended (the "Code"), a "Subsidiary"); (b) to furnish such key employees with further incentive to develop and promote the business and financial success of the Company and its Subsidiaries, and (c) to attract and induce such key employees to continue in the service of the Company and its Subsidiaries, by providing a means whereby such key employees of the Company and its Subsidiaries may be given an opportunity to purchase the Company's common stock, par value $.02 per share ("Common Stock") pursuant to options ("Options") granted under the Plan which are intended to be either "Incentive Stock Options" ("Incentive Stock Options") under section 422 of the Code or options which are not Incentive Stock Options ("Nonqualified Stock Options"). ARTICLE II ADMINISTRATION 2.1 Administrative Body. The Plan shall be administered by a Committee (the "Committee") of the Board of Directors of the Company (the "Board"). The Committee shall be comprised of at least two members of the Board each of whom is a "disinterested person" within the meaning of Rule 16b-3 as promulgated under the Securities Exchange Act of 1934, as amended (the "Act"). 2.2 Authority. The Committee shall have authority, subject to the terms of the Plan: to determine the employees to whom Options may be granted, the type of option to be granted, the number of shares of Common Stock to be covered by each Option, the purchase price per share of Common Stock covered by each Option, the time or times at which Options may be granted and exercised, and the terms and provisions of the instruments by which Options shall be evidenced; with the consent of employees to whom Options have been granted, to grant in substitution for outstanding Options replacement Options, which may be at a lower purchase price (but, in the case of Incentive Stock Options at a purchase price not less than fair market value of the Common Stock subject to the replacement Option at the time of substitution), and to cancel replaced Options; to interpret the Plan; to establish guidelines for administering the Plan; and to make all determinations necessary or advisable, in its sole discretion, for the administration of the Plan. At all meetings of the Committee the presence of a majority of the members shall constitute a quorum for the transaction of business and the vote of a majority of the members present shall be the act of the Committee. Members of the Committee may participate in a meeting of the Committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in such a meeting shall constitute presence in person at such meeting. Any action required or permitted to be taken at any meeting of the Committee may be taken without a meeting, without prior notice and without a vote, if all of its members consent in writing to the action, and such writing is filed with the records of proceedings of the Committee. ARTICLE III ELIGIBILITY Key employees and all officers and directors of the Company or any of its Subsidiaries shall be eligible to participate in the Plan provided however that Incentive Stock Options shall not be granted to officers and directors who are not employees. The granting of any Option to any person under the Plan shall neither entitle such person to, nor disqualify such person from, participating in any other grant of Options or in any other incentive plan of the Company. ARTICLE IV STOCK Subject to adjustment as provided in Article VII, the total number of shares of Common Stock which may be issued under the Plan upon the exercise of Options and stock appreciation rights provided pursuant to the Plan shall not exceed 500,000 shares. Shares of Common Stock covered by Options that expire, terminate (other than by reason of the exercise of stock appreciation rights as provided in section 6.9), or are canceled without having been exercised shall become available for future grants under the Plan. Upon the exercise of Options, the Company may either issue unissued shares of Common Stock or transfer shares of Common Stock held in its treasury. ARTICLE V GRANTING OF OPTIONS Options may be granted under the Plan at any time on or prior to April 5, 2005. The date of grant of an Option under the Plan will be the date on which the Option is awarded by the Committee, unless a later date is specified by the Committee at the time of the award. ARTICLE VI TERMS AND CONDITIONS OF OPTIONS Options shall be evidenced by stock option agreements in such form or forms as the Committee may from time to time approve. Such stock option agreements shall conform to the following terms and conditions: 6.1 Option Price. The option price per share shall be determined by the Committee provided that in the case of an Incentive Stock Option, the option price per share shall not be less than the fair market value (determined in good faith by the Committee, subject to compliance with the principles, if any, enunciated by the Internal Revenue Service with respect to the determination of the fair market value of stock subject to grants of Incentive Stock Options) of a share of Common Stock on the date of grant, and provided further that in the case of an Incentive Stock Option granted to an employee who owns more than ten percent of the total combined voting power of all classes of stock of the Company or of any parent or Subsidiary, such price per share shall not be less than 110% of the fair market value of the Common Stock on the date of grant. Notwithstanding the foregoing sentence, in no event shall the option price be less than the par value of a share of Common Stock. 6.2 Term of Options. Each Option shall expire on the tenth anniversary of the date of its grant, or on such earlier date as may be specified in the stock option agreement evidencing such option; provided, however that in the case of an Incentive Stock Option granted to an employee who owns more than 10% of the total combined voting power of all classes of stock of the Company or of any parent or subsidiary corporation, the term may be no more than five years from the date of grant. 6.3 Exercisability. Subject to Article VIII, each Option shall become exercisable in one or more installments on the date or dates (no earlier than six months after the date of its grant) and upon satisfaction of such conditions as may be specified in the stock option agreement evidencing such Option. Notwithstanding the foregoing, to the extent required by the Code, the aggregate fair market value (determined as of the date of grant) of the shares of Common Stock with respect to which Incentive Stock Options are exercisable for the first time by an employee during any calendar year (under all plans of the Company or any Subsidiary) shall not exceed $100,000 and Options granted having a fair market value in excess of such amount shall be deemed to be Nonqualified Stock Options. Once an Option becomes exercisable with respect to a portion of the shares subject thereto, it shall remain exercisable with respect thereto until expiration or termination of such Option. An Option may be exercised from time to time, in whole or in part, up to the total number of shares with respect to which it is then exercisable. Notwithstanding any other provision hereof, no Incentive Stock Option granted hereunder will be exercisable following the tenth anniversary of the date of grant. 6.4 Payments. Upon exercise, the option price shall be paid in cash or, in the discretion of the Committee, in shares of Common Stock, or any other property acceptable to the Committee, or any combination of cash, shares of Common Stock and such property, in each case having an aggregate fair market value on the date of payment equal to such option price. 6.5 Termination of Employment. If the holder of an Option ceases, other than by reason of death, to be employed by the Company or any Subsidiary, such Option may be exercised to the extent of the number of shares of Common Stock with respect to which such holder could have exercised such Option on the date employment terminates, provided, however that such Option shall terminate on the earlier of (a) such Option's specified expiration date and (b) the date three months from the date of termination of such employment, provided that in the case of termination of employment by reason of normal or early retirement or disability (within the meaning of section 22(e)(3) of the Code), the applicable portion of a Nonqualified Stock Option granted hereunder shall remain exercisable until the first anniversary of termination of employment or, if earlier, the date of expiration of such Option, and provided further that in the case of termination of employment by reason of disability (within the meaning of section 22(e)(3) of the Code), the applicable portion of an Incentive Stock Option shall remain exercisable until the first anniversary of termination of employment or, if earlier, the date of expiration of such Option (or in any such case such earlier date as may be specified in the stock option agreement evidencing such Option). The Plan shall not be construed as creating any contract of employment or otherwise conferring upon any employee any legal right to continuation of employment, nor as limiting or qualifying the right of the Company or any Subsidiary to discharge any of its employees without regard to the effect that such discharge might have upon such employee's rights under the Plan. 6.6 Death. If the holder of an Option dies, such Option may be exercised, to the extent of the number of shares of Common Stock with respect to which such holder could have exercised such Option on the date of death, by such holder's estate, personal representative or beneficiary who acquires such Option by will or by the laws of descent and distribution at any time prior to the earlier of such Option's specified expiration date and the first anniversary of such holder's death. On the earlier of such dates, the Option shall terminate. 6.7 Assignability. No Option may be assigned, transferred or hypothecated by the employee who is the holder thereof, except by will or by the laws of descent and distribution, and during the lifetime of any such holder of an Option, such Option may be exercised only by such holder. At the request of the holder of an Option, shares of Common Stock purchased upon the exercise of such Option, or received on exercise of stock appreciation rights may be issued in or transferred into the name of such holder and another person, jointly with the right of survivorship. 6.8 Withholding. The Company's obligation to deliver shares of Common Stock or make any payment upon the exercise of any option or stock appreciation right shall be subject to applicable federal, state and local tax withholding requirements. 6.9 Stock Appreciation Right. In the sole discretion of the Committee, any employee who is the holder of an Option may be granted the right to elect (subject to any limitations expressly made applicable to rights contained in this section 6.9 and contained in the stock option agreement evidencing such Option), at any time in lieu of purchasing shares of Common Stock as to which such Option is then exercisable, to surrender such Option with respect to any or all of such shares, and to receive a payment from the Company having a value equal to the amount by which (a) the fair market value of a share of Common Stock on the date of such election, multiplied by the number of shares of Common Stock as to which the holder shall have made such election, exceeds (b) the total purchase price for such number of shares of Common Stock under such Option. An option holder who makes such an election shall receive payment in the sole discretion of the Committee, entirely in cash, entirely in shares of Common Stock or in a combination of cash and shares of Common Stock in such proportion as the Committee may determine. Any shares of Common Stock delivered pursuant to the immediately preceding sentence shall be valued at their fair market value on the date of such election. An election to exercise the rights provided by this section 6.9 shall be made by written notice addressed to the Committee. Upon election by the holder of an Option to receive a payment under this section 6.9, such Option shall thereafter remain exercisable, according to its terms, only with respect to the number of shares of Common Stock as to which it would otherwise be exercisable less the number of shares of Common Stock as to which such election shall have been made. 6.10 Other Terms. Stock option agreements evidencing options may contain such other provisions, not inconsistent with the Plan, as the Committee deems advisable. 6.11 Incentive Stock Options. Notwithstanding anything in the Plan to the contrary, no term of this Plan relating to Incentive Stock Options shall be interpreted, amended or altered, nor shall any discretion or authority granted under the Plan be so exercised, so as to disqualify the Plan under section 422 of the Code, or, without the consent of any employee affected thereby, to disqualify, or cause the modification of, any Incentive Stock Option under section 422 or 424 of the Code, respectively. ARTICLE VII CAPITAL ADJUSTMENTS Except as otherwise provided in any stock option agreement, in the event of any change in the number of outstanding shares of Common Stock by reason of any stock dividend, stock split, combination or exchange of shares, recapitalization, reclassification, merger, consolidation, spin-off, reorganization or other similar transaction, the Committee shall make appropriate adjustments in the number and option price of shares of Common Stock covered by each Option outstanding on the date of such transaction (by means of a grant of a substitute Option or an additional Option or otherwise), and in the total number of shares of Common Stock that may be issued under the Plan. ARTICLE VIII CHANGE OF CONTROL Upon the approval by the requisite vote of the Shareholders of the Company of any merger, consolidation or reorganization, as a result of which the Company will not survive as a publicly-owned corporation, then, subject to the next sentence, all Options shall terminate and the holder of each Option shall be entitled to receive, in respect thereof, an amount in cash equal to the product (i) the difference between (x) the fair market value of a share of Common Stock on the date immediately preceding the date of such Shareholder approval and (y) the exercise price of such Option, multiplied by (ii) the number of shares in respect of which such Option is then exercisable. Notwithstanding the foregoing sentence, if the Options are assumed by the successor entity formed by such consolidation or into which the Company is merged, or the parent of the entity into which the Company is merged or which merges into the Company, the Options shall not terminate as provided in this Article VIII, but each Option shall become an option pertaining to the securities or other property to which the holder of the number of shares of Common Stock to which such Option pertains would have been entitled to receive in connection with such merger, consolidation or reorganization. ARTICLE IX MISCELLANEOUS 9.1 Adoption. The Plan shall become effective as of the date of its adoption by the Board, subject to approval within twelve months thereafter by the holders of a majority of the shares of Common Stock of the Company present or represented and entitled to vote at a meeting of Shareholders or by the written consent of the holders of a majority of the shares of Common Stock of the Company entitled to vote. Prior to such Shareholder approval, Options may be granted under the Plan, but any such Option by its terms shall not be exercisable prior to such approval. If the Plan is not approved by the Shareholders of the Company within such twelve-month period, the Plan shall terminate, and all Options theretofore granted under the Plan shall terminate and become null and void. 9.2 Amendment or Termination. The Board may terminate or amend the Plan in any respect at any time, except that without Shareholder approval (i) the total number of shares that may be issued under the Plan may not be increased (other than by adjustment pursuant to Article VII), (ii) the provisions of Article III regarding eligibility may not be modified and (iii) the benefits accruing to participants under the Plan may not be materially increased. No action of the Board, Committee or the stockholders of the Company may, without the consent of the holder of an Option, alter or impair such holder's rights under any Option previously granted. 9.3 Number and Gender. Where from the context it appears appropriate, each term used in this Plan in either the singular or the plural shall include the singular and the plural, and pronouns stated in either the masculine, feminine or neuter gender shall include the masculine, feminine and neuter. 9.4 Captions. Captions of the Plan are inserted for convenience of reference only, and the Plan is not to be construed by interpretation thereof. 9.5 Applicable Law. This Plan shall be interpreted, construed and administered in accordance with the laws of the State of Delaware. -----END PRIVACY-ENHANCED MESSAGE-----