DEF 14A
1
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of
the Securities Exchange Act of 1934
Filed by the Registrant
Filed by a party other than the Registrant
Check the appropriate box:
Preliminary Proxy Statement
Definitive Proxy Statement
Definitive Additional Materials
Soliciting Material Pursuant to 240.14a-11(c) or 240.14a12
Zemex Corporation
(Name of Registrant as Specified
in its Charter)
Zemex Corporation
(Name of Person(s) Filing Proxy
Statement)
Payment of Filing Fee (check the appropriate
box)
$125 per Exchange Act Rules O-11(c)(1)(ii), 14a-6(i)(1),
or 14a-6(i)(2)*
$500 per each party to the controversy pursuant to
Exchange Act Rule 14a-6(i)(3)
Fee computed on table below per Exchange Act Rule
14a6(i)(4) and O-11
1) Title of each class of securities to which
transaction applies:
2) Aggregate number of securities to which
transaction
applies:
3) Per unit price or other underlying value of
transaction computed pursuant to Exchange Act Rule O-
11:
4) Proposed maximum aggregate value of transaction:
* Set forth the amount on which the filing
is calculated and state how it was determined.
Check box if any part of the fee is offset as provided
by Exchange Act Rule O-11(a)(2) and identify the filing
for which the offsetting fee was paid previously.
Identify the previous filing by registration statement
number, or the Form of Schedule and the date of its
filing.
(1) Amount previously paid: $125
(2) Form, Schedule or Registration Statement No.:
Preliminary Proxy Statement
(3) Filing Party: Zemex Corporation
(4) Date Filed: March 15, 1995
Notes: N/A
EX-1
2
A-1
EXHIBIT
A
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ZEMEX CORPORATION
This corporation was organized by filing its original
Certificate of Incorporation with the Secretary of State of
the State of Delaware on November 27, 1985 under the
name of "Pactin Reincorporation
Corporation". This Amended and Restated
Certificate of Incorporation, which restates, integrates
and further amends the Certificate of Incorporation
of this
corporation, was duly adopted in accordance with Section 245
of the General Corporation Law of the State of Delaware.
ARTICLE I
The corporation was organized and exists under Delaware law.
ARTICLE II
The name of the corporation is "Zemex Corporation"
(hereinafter referred to as the "Corporation").
ARTICLE III
The address of the Corporation's registered office in the
State of Delaware is Corporation Trust Center, 1209 Orange
Street, City of Wilmington, County of New Castle, Delaware
19801. The name of
its registered agent at such address is The Corporation
Trust Company.
ARTICLE IV
The nature of the business of the Corporation and the
purposes for which it is organized are to engage in any
business and in any lawful act or activity for which
corporations may be organized under the General Corporation
Law of the State of Delaware and to possess and employ all
powers and privileges now or hereafter granted or available
under the laws of the State of Delaware to such corporations.
ARTICLE V
5.1 The total number of shares that the Corporation shall
have authority to issue is 25,000,000 shares, of which
20,000,000 shares shall be Common Shares, each with a par
value of $1.00, and 5,000,000 shares shall be Preferred
Shares, each with a par value of $1.00.
5.2 The board of directors is authorized, subject to
limitations prescribed by law, to provide by resolution or
resolutions for the issuance of the shares of preferred stock
as a class or in series, and, by filing a certificate of
designations, pursuant to the Delaware General Corporation
Law, setting forth a copy of
such resolution or resolutions, to establish from time to
time the number of shares to be included in each such series,
and to
fix the designations, powers, preferences, and rights of
the shares of the class or of each such series and
the
qualifications, limitations, and restrictions thereof.
The
authority of the board of directors with respect to the class
or
each series shall include, but not be limited to,
determination of the following:
(a) The number of shares constituting any series and
the
distinctive designation of that series;
(b) The dividend rate on the shares of the class or of
any
series, whether dividends shall be cumulative, and, if so,
from which date or dates, and the relative rights of priority,
if any, of payment of dividends on shares of the class or of
that series;
(c) Whether the class or any series shall have voting rights,
in addition to the voting rights provided by law, and, if so,
the terms of such voting rights;
(d) Whether the class or any series shall have
conversion
privileges, and, if so, the terms and conditions of
such conversion, including provision for adjustment of the
conversion rate in such events as the board of directors shall
determine;
(e) Whether or not the shares of the class or of any
series
shall be redeemable and, if so, the terms and conditions of
such redemption, including the date or date upon or after
which they shall be redeemable and the amount per share
payable in case
of
redemption, which amount may vary under different conditions
and at different redemption dates;
(f) Whether the class or any series shall have a sinking
fund
for the redemption or purchase of shares of the class or of
that series, and, if so, the terms and amount of such sinking
fund;
(g) The rights of the shares of the class or of any series
in
the event of voluntary or involuntary dissolution or winding
up
of the corporation, and the relative rights of priority, if
any, of payment of shares of the class or of that series; and
(h) Any other powers, preferences, rights,
qualifications,
limitations, and restrictions of the class or of any series.
5.3 Stock certificates shall not be issued to
represent
fractions or interests of less than a full share of Common
Shares of
the Corporation resulting from any decrease of
the
Corporation's authorized Capital Stock pursuant to an
amendment of this Certificate of Incorporation or otherwise,
but instead any and all rights in and to fractions or
interests of less than a full share of Common Shares of
the Corporation shall
be
represented by bearer scrip certificates to be adopted by
the board of directors of the Corporation. Such scrip
certificates shall not confer upon the holders any rights to
dividends or any voting or other rights of stockholders of
the Corporation, but that the Corporation shall from time to
time, prior to the sale of the shares represented by scrip
certificates as provided below, issue one or more whole
shares of Common Shares upon the surrender of scrip
certificates for fractions of shares aggregating the
number of whole shares issuable in respect of the scrip
certificates so surrendered, and a scrip certificate for any
fraction of a share in excess of one or more whole shares.
The shares of Common Shares of the Corporation in respect
of
interests in which scrip certificates shall be outstanding
shall be issued in the name of the Treasurer of the
Corporation,
as
such, and after January 1, 1942, in the discretion of the
board of directors of the Corporation, the shares of Capital
Stock then represented by outstanding scrip certificates may be
sold. After such sale, scrip certificates then outstanding
shall entitle the holders thereof to no rights whatsoever
except to receive their respective pro rata shares of the
proceeds of the shares of Common Shares sold as aforesaid,
without interest thereon, less their pro rata shares of the
expenses of such sale.
ARTICLE VI
6.1 The number of directors of the Corporation shall be
fixed from time to time in the manner provided in the by-laws
and may be increased or decreased from time to time in
the manner provided in the by-laws.
6.2 The board of directors shall have the power to provide,
by the by-laws or otherwise, for the selection from among
their own number of an Executive Committee of such number as
they may from time to time designate, and to delegate to
such Executive Committee all or any of the powers of the board
of directors, in so far as the delegation of such powers is
not contrary to law.
ARTICLE VII
The board of directors of the Corporation is expressly
authorized to make, alter, or repeal the by-laws of the
Corporation, but such authorization shall not divest the
shareholders of the power, nor limit their power, to adopt,
amend, or repeal by-laws.
ARTICLE VIII
The Corporation shall, to the fullest extent permitted
by Delaware law, as in effect from time to time, indemnify
any person against all liability and expense (including
attorneys' fees) incurred by reason of the fact that he is or
was a director or officer of the Corporation or, while serving
at the request of the Corporation as a director, officer,
partner or trustee of, or in any similar managerial or
fiduciary position of, or an employee or agent of,
another corporation, partnership, joint venture, trust,
association, or other entity. Expenses (including
attorneys' fees) incurred in defending an action, suit, or
proceeding may be paid by the Corporation in advance of the
final disposition of such action, suit, or proceeding to the
fullest extent and under the circumstances permitted by
Delaware law. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director,
officer, employee, fiduciary, or agent of the Corporation
against any liability asserted against and incurred by such
person in any such capacity or arising out of such person's
position, whether or not the Corporation would have the
power to indemnify against such liability under the
provisions of this Article VIII.
The
indemnification provided by this Article VIII shall not be
deemed exclusive of any other rights to which those indemnified
may be entitled under this Certificate of Incorporation,
any by-law, agreement, vote of stockholders or
disinterested directors, statute, or otherwise, and shall
inure to the benefit of their heirs, executors, and
administrators. The provisions of this Article VIII shall
not be deemed to preclude the Corporation from indemnifying
other persons from similar or other expenses and liabilities
as the board of directors or the stockholders may determine
in a specific instance or be resolution of general
application. Any repeal or modification of this Article VIII
by the shareholders of the Corporation shall not adversely
affect any right or protection of a director or officer
of the Corporation existing at the time of such repeal or
modification.
ARTICLE IX
A director of the Corporation shall not be personally liable
to the Corporation or its shareholders for monetary damages
for breach of fiduciary duty as a director, except as to
liability for (i) any breach of the director's duty of
loyalty to the Corporation or its shareholders, (ii) acts or
omissions not in good faith or which involve intentional
misconduct or a knowing of violation of law, (iii)
violations of Section 174 of the Delaware General
Corporation Law, or (iv) any transaction from which the
director derived any improper personal benefit. If the
Delaware General Corporation Law hereafter is amended to
further eliminate or limit the liability of a director, then a
director of the Corporation, in addition to the circumstances
in which a director is not personally liable as set forth in
the preceding sentence, shall not be liable to the fullest
extent permitted by the amended Delaware General Corporation
Law. Any repeal or modification of this Article IX by
the stockholders of the Corporation shall not adversely
affect any right or protection of a director of the Corporation
existing at the time of such repeal or modification.
ARTICLE X
The Corporation shall have authority, to the fullest extent
now or hereafter permitted by the General Corporation Law
of the State of Delaware, or by any other applicable law, to
enter into any contract or transaction with one or more of its
directors or officers, or with any corporation, partnership,
joint venture, trust, association, or other entity in which
one or more of its directors or officers are directors or
officers, or have a financial interest, notwithstanding
such relationships and
notwithstanding the fact that the director or officer is
present at or participates in the meeting of the board of
directors or committee thereof which authorizes the contract
or transaction.
ARTICLE XI
The Corporation shall not be subject to the provisions of
Section 203 of the Delaware General Corporation Law.
The undersigned, for the purpose of Amending and Restating
the Certificate of Incorporation of the Corporation, does
make, file and record this Amended and Restated Certificate of
Incorporation and does hereby certify that the facts herein
stated are true; and I have accordingly hereunto set my hand.
Executed this 1st day of May, 1995.
____________________________________
Richard L. Lister
President and Chief Executive
Officer
ATTEST:
________________________________
Allen J. Palmiere
Vice President, Chief Financial Officer
and Assistant Secretary
EX-2
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EXHIBIT B
ZEMEX CORPORATION
1995
STOCK OPTION PLAN
1. Purpose
The Zemex Corporation 1995 Stock Option Plan (the "Plan")
provides for the grant of Stock Options and
Supplemental Bonuses to Employees, Consultants and/or Eligible
Nonemployee Directors of Zemex
Corporation (the "Corporation"), and such of its subsidiaries
(as defined in Section 424(f) of the Internal
Revenue Code of 1986, as amended (the "Code")) as the Board of
Directors of the Corporation (the
"Board") shall from time to time designate ("Particiating
Subsidiaries"), in order to advance the interests
of the Corporation and its Participating Subsidiaries through
the motivation, attraction and retention of
their respective Employees, Consultants and/or Eligible
Nonemployee Directors.
2. Incentive Stock Options and Non-Incentive Stock Options
The Stock Options granted under the Plan may be either:
(a) Incentive Stock Options ("ISOs") which are intended to
be
"Incentive Stock Options" as that term
is defined in Section 422 of the Code; or
(b) Nonstatutory Stock Options ("NSOs") which are intended
to
be options that do not qualify as
"Incentive Stock Options" under Section 422 of the Code.
All Stock Options shall be NSOs unless the Option Agreement
clearly designates the Stock Options
granted thereunder, or a specified portion thereof, as ISOs.
Subject to the other provisions of the Plan,
a Participant may receive ISOs and NSOs at the same time,
provided that the ISOs and NSOs are clearly
designated as such.
Except as otherwise expressly provided herein, all of the
provisions and requirements of the Plan relating
to Stock Options shall apply to ISOs and NSOs.
3. Administration
3.1 Committee. The Plan shall be administered by the
Compensation/Stock Option/Pension Committee
of the Board or such other committee as may be appointed by
the Board ("Committee"), which
Committee shall be composed of at least two or more members of
the Board, all of whom are
Disinterested Persons. The Committee shall have full authority
to administer the Plan, including authority
to interpret and construe any provision of the Plan and any
Stock Option or Supplemental Bonus granted
thereunder, and to adopt such rules and regulations for
administering the Plan as it may deem necessary
in order to comply with the requirements of the Code, in
order that Stock Options that are intended to
be ISOs will be classified as incentive stock options under
the Code, or in order to conform to any
regulation or to any change in any law or regulation
applicable thereto. The Committee may delegate
any of its responsibilities under the Plan, other than its
responsibility to grant Stock Options, to determine
whether the Supplemental Bonuses, if any, payable to a
Participant shall be paid in cash, in shares of
Common Stock or a combination thereof, or to interpret and
construe the Plan. If the Board is
composed entirely of Disinterested Persons, the Board may
reserve to itself any of the authority granted
to the Committee as set forth herein, and it may perform and
discharge all of the functions and
responsibilities of the Committee at any time that a duly
constituted Committee is not appointed and
serving. All references in the Plan to the "Committee" shall
be deemed to refer to the Board whenever
the Board is discharging the powers and responsibilities of the
Committee, and to any special committee
appointed by the Board to administer particular aspects of the
Plan.
3.2 Actions of Committee. Meetings of the Committee shall
be held at such times and places as shall
be determined by the Committee. A majority of the members of
the Committee shall constitute a quorum
for the transaction of business, and the vote of a majority of
those members present at any meeting at
which a quorum is present shall decide any question brought
before that meeting. In addition, the
Committee may take any action otherwise proper under the Plan
without a meeting by the unanimous
written consent of its members. No member of the Committee
shall be liable for any act or omission of
any other member of the Committee or for any act, determination
or omission made in good faith on his
own part, including but not limited to the exercise of any
power or discretion given to him under the
Plan, with respect to the Plan or any award thereunder. All
actions taken and all interpretations and
determinations made by the Committee in good faith (including
determinations of Fair Market Value)
shall be final and binding upon all Participants, the
Corporation and all other interested persons. No
member of the Committee shall be personally liable for any
action, determination or interpretation made
in good faith with respect to the Plan, and all members of the
Committee shall, in addition to their rights
as directors, be fully protected by the Corporation with
respect to any such action, determination or
interpretation.
4. Definitions
4.1 "Common Stock" means a share of authorized but unissued
or
authorized and issued treasury Capital
Stock (par value $1.00 per share) of the Corporation.
4.2 "Consultant" means a person who provides services to the
Corporation or a Participating Subsidiary
other than as an employee or director of the Corporation or
Participating Subsidiary, whether or not
pursuant to a written consulting agreement with the Corporation
or a Participating Subsidiary.
4.3 "Disinterested Person" means a director of the
Corporation
who, during the shorter of (a) the one
year prior to service as an administrator of the Plan, or (b)
the period between the date on which the
Corporation's Common Stock is registered pursuant to Section 12
of the Securities Exchange Act of 1934,
as amended, (the "1934 Act") and the director's service as an
administrator of the Plan, has not been
granted or awarded equity securities pursuant to the Plan or
any other plan of the Corporation or any of
its affiliates except as may be permitted by Rule 16b-3(c)(2)
under the 1934 Act or any successor to such
rule. Notwithstanding the foregoing, prior to the date the
Corporation's Common Stock is registered
pursuant to Section 12 of the 1934 Act, each director shall be
a Disinterested Person for purposes of this
Plan.
4.4 "Eligible Nonemployee Director" means a nonemployee
director of the Corporation who is not a
member of the Committee.
4.5 "Employee" means an employee of the Corporation or any
Participating Subsidiary and includes
employees who are also directors of the Corporation or a
Participating Subsidiary.
4.6 "Fair Market Value" means that if the Common Stock is
not
traded publicly, the Fair Market Value
of a share of Common Stock on any date shall be determined, in
good faith, by the Committee after such
consultation with outside legal, accounting and other experts
as the Committee may deem advisable, and
the Committee shall maintain a written record of its method of
determining such value. If the Common
Stock is traded publicly, the Fair Market Value of a share of
Common Stock on any date shall be the
average of the representative closing bid and asked prices, as
quoted by the National Association of
Securities Dealers through NASDAQ (its automated system for
reporting quotes), for the date in question
or, if the Common Stock is listed on the NASDAQ National Market
System or is listed on a national
stock exchange, the officially quoted closing price on NASDAQ
or such exchange, as the case may be,
on the date in question.
4.7 "Participant" means an Employee, Consultant or Eligible
Nonemployee Director to whom a Stock
Option or Supplemental Bonus is granted.
4.8 "Stock Option" means the right granted under the Plan
to
an Employee, Consultant, or an Eligible
Nonemployee Director to purchase, at such time or times and
at such price or prices ("Option Price")
as are determined by the Committee, the number of shares of
Common Stock determined by the
Committee.
4.9 "Supplemental Bonus" is the right to receive payment, in
shares of Common Stock, cash or a
combination of shares of Common Stock and cash, of an amount
determined under Section 7.7.
5. Eligibility and Participation
Grants of Stock Options and Supplemental Bonuses may be made to
Employees, Consultants, and/or
Eligible Nonemployee Directors. The Committee shall from time
to time determine the Employees,
Consultants, and Eligible Nonemployee Directors to whom Stock
Options shall be granted, the number
of shares of Common Stock subject to each Stock Option to be
granted to each such person, the Option
Price of such Stock Options and the terms and provisions of
such Stock Options, all as provided in the
Plan. Notwithstanding the foregoing only Employees are
eligible to receive Stock Options which are
ISOs. The Option Price of any ISO may be more than but shall
be not less than the Fair Market Value
of a share of Common Stock on the date on which the Stock
Option is granted, but the Option Price of
an NSO may be more than or less than the Fair Market Value on
the date the NSO is granted if the
Committee so determines. Notwithstanding the foregoing,
however, the Option Price of an NSO may
not be less than par value. If an ISO is granted to an
Employee who then owns stock possessing more
than 10% of the total combined voting power of all classes of
stock of the Corporation or any parent or
subsidiary corporation of the Corporation, the Option Price of
such ISO shall be at least 110% of the Fair
Market Value of the Common Stock subject to the ISO at the time
such ISO is granted, and such ISO
shall not be exercisable after five years after the date on
which it was granted. Each Stock Option shall
be evidenced by a written agreement ("Option Agreement")
containing such terms and provisions as the
Committee may determine, subject to the provisions of the Plan.
Any director of the Corporation may by notice to the
Corporation (which notice may be oral if confirmed
in writing) at any time irrevocably elect to be ineligible for
selection as a person to whom Stock Options
and/or Supplemental Bonuses may be granted.
6. Shares of Common Stock Subject to the Plan
6.1 Maximum Number.
(a) The stock subject to Stock Options that may be granted
under the Plan shall be shares of the
Common Stock as constituted on the date the Plan
becomes effective, and any other shares into
which such Common Stock shall thereafter be changed by
reason of a stock dividend,
recapitalization, merger, consolidation, amalgamation,
split-up, combination, reverse stock split,
exchange of shares, rights offering, or the like as
determined by the Committee in its discretion
pursuant to the provisions of Section 6.2 of the Plan.
The maximum number of shares of Common
Stock with respect to which Stock Options may be
granted under the Plan shall not exceed in the
aggregate ten percent of the number of shares of
Common Stock outstanding from time to time;
provided, however, that
(i) shares of Common Stock issued pursuant to the Plan or any
other employee benefit plan or
arrangement shall not be included in the number of
shares outstanding for purposes of
calculating under this sentence the number of shares as
to which Stock Options may be
granted under the Plan;
(ii) any increase in the number of shares of Common Stock
outstanding in connection with an
event which results in an adjustment pursuant to
Section 6.2 shall not be included in the
number of shares outstanding for purposes of
calculating under this sentence the number of
shares as to which Stock Options may be granted
under the Plan;
(iii) any reduction in the number of outstanding shares of
Common Stock shall not affect any
Stock Option granted under the Plan prior to such
reduction;
(iv) the class and aggregate number of shares of Common
Stock which may be subject to Stock
Options granted under the Plan shall be subject to
adjustment in accordance with the
provisions of Section 6.2 of the Plan; and
(v) the Committee may grant Stock Options the exercisability
of which is conditioned upon an
increase in the number of shares of Common Stock
outstanding from time to time and, until
such condition is satisfied, such Stock Options shall
not be taken into account in computing
the number of shares of Common Stock with respect to
which Stock Options have been
granted under the Plan.
(b) In the event that any outstanding Stock Option for any
reason shall expire or is terminated or
cancelled, the shares of Common Stock allocable to the
unexercised portion of such Stock Option
may again be subject to a Stock Option under the Plan.
There shall be reserved and kept available,
free from preemptive rights, out of the Corporation's
authorized but unissued shares of Common
Stock or its authorized and issued Common Stock held in
its treasury, or any combination thereof,
for sale under the Plan a number of shares of Common
Stock equal to the maximum number of
shares that may be purchased pursuant to Stock Options
granted or that may be granted under the
Plan.
(c) The Committee may, with the consent of the holder of any
Stock Option granted under the Plan,
cancel such Stock Option and grant a new Stock Option in
substitution therefor, provided that the
Stock Option as so substituted shall satisfy all of the
requirements of the Plan as of the date such
new Stock Option is granted.
(d) The aggregate Fair Market Value (determined as of the
time
the ISO is granted) of the Common
Stock as to which all ISOs granted to an Employee may
first become exercisable in a particular
calendar year may not exceed $100,000.
(e) No Stock Option may be granted under the Plan after
March
27, 2005.
6.2 Capital Changes. In the event any changes are made to
the
shares of Common Stock (whether
by reason of merger, consolidation, reorganization,
recapitalization, stock dividend in excess of ten
percent (10%) at any single time, stock split, combination of
shares, exchange of shares, change in
corporate structure or otherwise), appropriate adjustments
shall be made in: (i) the number of shares of
Common Stock theretofore made subject to Stock Options, and in
the purchase price of said shares and
(ii) the aggregate number of shares which may be made subject
to Stock Options. If any of the foregoing
adjustments shall result in a fractional share, the fraction
shall be disregarded, and the Corporation shall
have no obligation to make any cash or other payment with
respect to such a fractional share.
7. Exercise of Stock Options
7.1 Time of Exercise.
(a) Subject to the provisions of the Plan, including without
limitation Section 7.5, the Committee, in
its discretion, shall determine the time when a Stock
Option, or a portion of a Stock Option, shall
become exercisable, and the time when a Stock Option, or
a portion of a Stock Option, shall
expire. Such time or times shall be set forth in the
Option Agreement evidencing such Stock
Option. Subject to the provisions of Article V, an ISO
shall expire, to the extent not exercised,
no later than the tenth anniversary of the date on which
it was granted, and an NSO shall expire,
to the extent not exercised, no later than 10 years
after the date on which it was granted. No Stock
Option may be exercised prior to one year from the date
of grant. The Committee may accelerate
the vesting of any Participant's Stock Option by giving
written notice to the Participant. Upon
receipt of such notice, the Participant and the
Corporation shall amend the Option Agreement to
reflect the new vesting schedule. The acceleration of
the exercise period of a Stock Option shall
not affect the expiration date of that Stock Option.
(b) Stock Options shall be exercised by the delivery of
written notice to the Corporation, in such form
and to be filed in such manner as the Committee shall in
its sole discretion prescribe, not later than
5:00 p.m., New York City time, on the last day on which
such Stock Option may be exercised.
Any written notice of the exercise of a Stock Option
shall set forth the number of shares of
Common Stock with respect to which the Stock Option is
to be exercised, shall include any
statement or representation required by the applicable
Option Agreement, and shall be accompanied
by payment in full of the purchase price of such shares
of Common Stock.
7.2 Exchange of Outstanding Stock. Each Stock Option shall
provide that the purchase price of the
shares of Common Stock as to which a Stock Option shall be
exercised shall be paid to the Corporation
at the time of exercise either in cash or in such other
consideration as the Committee in its discretion
deems appropriate, including, but not limited to, shares of
Common Stock already owned by the optionee
having total Fair Market Value, as determined by the Committee,
equal to the purchase price, or a
combination of cash and Common Stock having a total Fair Market
Value, as so determined, equal to
the amount of the purchase price not paid in cash. As soon as
practicable after receipt of such payment,
the Corporation shall, subject to the provisions of Sections
7.4 and 14 of the Plan, deliver to the grantee
a certificate or certificates for the shares of Common Stock so
purchased.
7.3 Use of Promissory Note; Exercise Loans. The Committee
may, in its sole discretion, impose
terms and conditions, including conditions relating to the
manner and timing of payments, on the exercise
of Stock Options. Such terms and conditions may include, but
are not limited to, permitting a Participant
to deliver to the Corporation his promissory note as full or
partial payment for the exercise of a Stock
Option; provided that, with respect to any promissory note
given as payment or partial payment for the
exercise of an ISO, all terms of such note shall be determined
at the time a Stock Option is granted and
set forth in the Option Agreement. The Committee, in its sole
discretion, may authorize the Corporation
to make a loan to a Participant in connection with the exercise
of Stock Options, or authorize the
Corporation to arrange or guaranty loans to a Participant by a
third party.
7.4 Stock Restriction Agreement. The Committee may provide
that shares of Common Stock issuable
upon the exercise of a Stock Option shall, under certain
conditions, be subject to restrictions whereby the
Corporation has a right of first refusal with respect to such
shares or a right or obligation to repurchase
all or a portion of such shares, which restrictions may survive
a Participant's term of employment with
the Corporation. The acceleration of time or times at which a
Stock Option becomes exercisable may
be conditioned upon the Participant's agreement to such
restrictions.
7.5 Termination of Employment Before Exercise.
(a) If at any time prior to the expiration of a Stock Option
granted to an Employee of the Corporation
or a Participating Subsidiary, such optionee shall not
be an Employee of the Corporation or a
Participating Subsidiary, then:
(i) if such employment is terminated by retirement on or
after the earliest date on which an
immediate retirement benefit is payable in accordance
with the terms of a tax-qualified
retirement plan of the Corporation or a Participating
Subsidiary or by reason of disability as
determined by the Committee in its discretion, such
Stock Option may be exercised, to the
same extent it was exercisable at the date of such
termination of employment, during the
three-month period following the date of such
termination (but in no event after the expiration
of such Stock Option as provided in the Option Agreement
and, in the case of an ISO, in no
event beyond ten years from the date of grant of the
ISO);
(ii) if such employment is terminated by death, such
Stock
Option may be exercised by the
person or persons entitled to do so under the
optionee's will or, if the optionee shall have
failed to make testamentary disposition of such
Stock Option or shall have died intestate, by
the optionee's legal representative, to the same
extent is was exercisable on the date of such
optionee's death, during the twelve-month period
following the date of such optionee's death
(but in no event after the expiration of such Stock
Option as provided in the Option
Agreement and, in the case of an ISO, in no event
beyond ten years from the date of grant
of the ISO); and
(iii) if such employment is terminated voluntarily or
involuntarily for any reason other than
retirement, disability or death, such Stock Option
shall terminate and cease to be exercisable
immediately upon such termination of employment;
provided, however, that if the Board of
Directors shall determine that
(A) due to special and unusual circumstances, the Stock
Option should be permitted to be
exercised after termination of employment; and
(B) taking into account the optionee's record of service
and performance during his
employment and all of the circumstances surrounding
the termination of employment,
the optionee has not acted in a manner detrimental
to the Corporation or the
Participating Subsidiary by which the optionee was
employed,
such Stock Option may be exercised during the three-month
period following such
termination of employment (but in no event following the
expiration of such Stock Option as
provided in the Option Agreement and, in the case of an
ISO, in no event beyond ten years
from the date of grant of the ISO) with respect to such
number of shares as the Board of
Directors shall approve, but in no event with respect to
a number of shares of Common Stock
greater than the number of shares as to which such Stock
Option remains unexercised at the
date of termination of the optionee's employment.
(iv) for purposes of the foregoing, if the 10% ownership
limitations of Article V apply to the
Participant, five years shall be substituted for ten
years each place it appears in the preceding
paragraphs.
(b) If at any time prior to the expiration of a Stock Option
granted to a person who at the time of grant
is a Consultant or an Eligible Nonemployee Director,
such optionee shall not be a Consultant or
a director, as the case may be, then such Stock Option
may be exercised, to the extent it was
exercisable on the date the optionee ceased to be a
Consultant or a director, as the case may be,
during the seven-month period following the termination
of such consultancy or directorship, as the
case may be (but in no event after the expiration of
such Stock Option as provided in the Option
Agreement); provided, however, that the Corporation may
waive the Stock Option termination date
otherwise applicable under this paragraph (b) if the
optionee will become an Employee following
the termination of such consultancy or directorship.
(c) Notwithstanding the provisions of this Section 7.5 or
any
other provision of the Plan, with respect
to any Stock Options granted to an Employee in
connection with the commencement of employment
as an Employee, the Committee may provide for terms as
to retirement, disability, death or other
termination of employment which are different from the
terms provided in paragraph (a) of this
Section 11 if such different terms are set forth in a
written employment agreement with such
Employee, which agreement shall have been approved by
the Board, or are otherwise provided by
the Committee, subject to approval by the Board.
Notwithstanding the foregoing, no Stock Options
which are ISOs may be granted pursuant to this
subparagraph.
(d) Whether authorized leave of absence or absence on
military
service shall constitute severance of
the employment relationship between the Corporation or a
Participating Subsidiary and the optionee
shall be determined by the Committee at the time
thereof. Notwithstanding the foregoing, in the
case of Stock Options which are ISO's, if the period of
leave exceeds 90 days, unless the
individual's right to reemployment is guaranteed by
statute or contract, the employment relationship
will be deemed to have terminated on the 91st day of
such leave.
(e) If an optionee's status with the Corporation or a
Participating Subsidiary changes, but such optionee
continues as a Consultant to the Corporation, then the
Committee in its discretion may elect that
the Stock Option previously granted shall continue in
full force and effect so long as such Stock
Option is an NSO. The Committee shall be permitted in
its discretion, to grant NSOs, which
provide that the Stock Option shall continue in full
force and effect if the optionee's status with the
Corporation or a Participating Subsidiary changes, but
such person continues as a Consultant to the
Corporation.
7.6 Disposition of Forfeited Stock Options. If the Stock
Option is not exercised during the applicable
period, it shall be deemed to have been forfeited and of no
further force or effect. Any shares of
Common Stock subject to Stock Options forfeited by a
Participant shall not thereafter be eligible for
purchase by the Participant but may be made subject to Stock
Options granted to other Participants.
7.7 Grant of Supplemental Bonuses. The Committee, either at
the time of grant or at any time prior
to exercise of any Stock Option, may provide for a Supplemental
Bonus from the Corporation or
Participating Subsidiary in connection with a specified number
of shares of Common Stock then
purchasable, or which may become purchasable, under a Stock
Option. Such Supplemental Bonus shall
be payable upon the exercise of the Stock Option with regard to
which such Supplemental Bonus was
granted. A Supplemental Bonus shall not exceed the amount
necessary to reimburse the Participant for
the income tax liability incurred by him upon the exercise of
the Stock Option calculated using the
maximum combined federal and applicable state income tax rates
then in effect and taking into account
the tax liability arising from the Participant's receipt of the
Supplemental Bonus. Payment of a
Participant's Supplemental Bonus shall be made on or before the
90th day after the exercise of the Stock
Option with regard to which such Supplemental Bonus was
granted. The Committee may, in its
discretion, elect to pay any part or all of the Supplemental
Bonus in: (i) cash; (ii) shares of Common
Stock; or (iii) any combination of cash and shares of Common
Stock. The Committee's election pursuant
to this Section 7.7 shall be made by giving written notice to
the Participant within the 90-day payment
period, which notice shall specify the portion which the
committee elects to pay in cash, shares of
Common Stock or a combination thereof. In the event any
portion is to be paid in shares of Common
Stock, the number of shares to be delivered shall be determined
by dividing the amount which the
Committee elects to pay in shares of Common Stock by the Fair
Market Value of the share of Common
Stock on the date of exercise of the Stock Option with regard
to which the Supplemental Bonus was
granted. Any fractional share resulting from any such
calculation shall be disregarded. Said shares,
together with any cash payable to the Participant, shall be
delivered within said 90-day payment period.
Shares of Common Stock issued pursuant to this Section 7.7 shall
not be deemed to have been issued
upon the exercise of a Stock Option for purposes of the
limitations imposed by Section 6.1 of the Plan.
8. No Contract of Employment
Nothing in this Plan shall confer upon the Participant the right
to continue in the employ of the
Corporation, or any Participating Subsidiary, nor shall it
interfere in any way with the right of the
Corporation, or any such Participating Subsidiary, to discharge
the Participant at any time for any reason
whatsoever, with or without cause. Nothing in this Article VIII
shall affect any rights or obligations of
the Corporation or any Participant under any written contract of
employment.
9. No Rights as a Stockholder
A Participant shall have no rights as a stockholder with respect
to any shares of Common Stock subject
to a Stock Option. Except as provided in Section 6.2, no
adjustment shall be made in the number of
shares of Common Stock issued to a Participant, or in any other
rights of the Participant upon exercise
of a Stock Option by reason of any dividend, distribution or
other right granted to stockholders for which
the record date is prior to the date of exercise of the
Participant's Stock Option.
10. Assignability
No Stock Option or Supplemental Bonus right granted under this
Plan, nor any other rights acquired by
a Participant under this Plan, shall be assignable or
transferable by a Participant, other than by will or
the laws of descent and distribution or, in the case of an NSO,
pursuant to a qualified domestic relations
order as defined by the Code, Title I of the Employee Retirement
Income Security Act, or the rules
thereunder. Notwithstanding the preceding sentence, the
Committee may, in its sole discretion, permit
the assignment or transfer of an NSO by a Participant other
than an officer or director, and the exercise
thereof by a person other than such Participant, on such terms
and conditions as the Committee in its sole
discretion may determine. Any such terms shall be determined
at the time the NSO is granted, and shall
be set forth in the Option Agreement. In the event of his
death, the Stock Option or Supplemental Bonus
rights which are exercisable pursuant to the terms of the Plan
may be exercised by the Personal
Representative of the Participant's estate or, if no Personal
Representative has been appointed, by the
successor or successors in interest determined under the
Participant's will or under the applicable laws
of descent and distribution.
11. Merger or Liquidation of the Corporation
(a) The existence of outstanding Stock Options shall not affect
in any way the right or power of the
Corporation or its stockholders to make or authorize any or
all adjustments, recapitalizations,
reorganizations or other changes in the Corporation's
capital structure or its business, or any
merger or consolidation of the Corporation, or any issue of
bonds, debentures, preferred or prior
preference stock ahead of or affecting the Common Stock or
the rights thereof, or the dissolution
or liquidation of the Corporation, or any sale or transfer
of all or any part of its assets or
business, or any other corporate act or proceeding, whether
of a similar character or otherwise.
(b) If the Corporation is to be merged or amalgamated with or
into another corporation, or if the
Corporation is to be reorganized, liquidated or dissolved,
or if all or substantially all of the assets
or all of the outstanding Common Stock of the Corporation
is to be acquired by another
corporation (individually, a "Transaction" and
collectively, the "Transactions"), in lieu of any
outstanding Stock Options remaining exercisable for shares
of Common Stock following the
effective time of the Transaction, the Board of the
Corporation may make appropriate provision,
by resolution or by the terms of the Transaction as set
out in a written agreement relating to the
Transaction which has been approved by the Board and duly
executed and delivered on behalf
of the Corporation to the other party or parties to the
Transaction, or otherwise, for any of the
following: (1) after the Transaction, an optionee holding
an outstanding Stock Option shall be
entitled upon exercise of such Stock Option to receive
(subject to any required action by
stockholders) in lieu of the number and class of shares of
stock or other securities to which such
Stock Option would have been entitled, pursuant to the
terms of the Transaction if, immediately
prior to the effective time of the Transaction, such
holder had been the holder of record of the
number and class of shares equal to the number and class
of shares (as constituted prior to the
Transaction) as to which such Stock Option shall be so
exercised; or (2) an outstanding Stock
Option (other than any Stock Option held by an optionee
who is subject to Section 16(b) of the
Securities Exchange Act of 1934, as amended, which Stock
Options will not have been granted
more than six months prior to the effective time of the
Transaction) may be cancelled by the
Committee as of the effective time of the Transaction
provided that (x) notice of such cancellation
shall be given to the holder of the Stock Option and (y)
the Committee shall have waived any
limitations on exercise imposed pursuant to provisions of
the Plan or the Option Agreement with
respect to such Stock Option and the holder of such Stock
Option shall have the right to exercise
such Stock Option in full (without regard to any
limitations on exercise imposed pursuant to
provisions of the Plan or the Option Agreement) during a
25day period preceding the effective
time of the Transaction; or (3) at the effective time of
the Transaction the holder of an
outstanding Stock Option shall be entitled to receive in
cash with respect to each share as to
which the Stock Option remains unexercised at the
effective time of the Transaction (without
regard to any limitations on exercise imposed pursuant to
provisions of the Plan or the Option
Agreement) consideration having a Fair Market Value, as
determined by the Committee, equal
to the amount by which the value (as determined by the
Committee in its discretion) of the
consideration to be paid per outstanding share of Common
Stock pursuant to the terms of the
Transaction exceeds the per share exercise price of the
shares of Common Stock subject to such
Stock Option; or (4) there shall be substituted for a
Stock Option outstanding at the effective time
of the Transaction a stock option to purchase appropriate
stock of the Corporation or stock of the
surviving consolidated or continuing corporation in such
Transaction or an affiliate of the
Corporation or such corporation, provided that the excess
of the aggregate Fair Market Value of
the shares subject to the substitute stock option
immediately after such substitution over the
aggregate purchase price of such shares pursuant to such
substitute stock option is approximately
equal to the excess of the Fair Market Value of the shares
of Common Stock subject to such
Stock Option immediately before such substitution over the
aggregate purchase price of such
shares of Common Stock pursuant to such Stock Option. In
connection with a particular
Transaction, the Committee may in its discretion make
provision for one of the preceding
alternatives for all Stock Options or for different of the
preceding alternatives for different Stock
Options, including different Stock Options held by the
same optionee.
(c) Except as hereinbefore expressly provided or as provided
by the Committee in its discretion in
any particular Stock Option, the issue by the Corporation
of shares of stock of any class, or
securities convertible into shares of stock of any class,
for cash or property, or for labor or
services either upon direct sale or upon the exercise of
rights or warrants to subscribe therefor,
or upon conversion of shares or obligations of the
Corporation convertible into such shares or
other securities, shall not affect, and no adjustment by
reason thereof shall be made with respect
to, the number, class or price of shares of Stock then
subject to outstanding Stock Options.
12. Amendment
The Board may from time to time alter, amend, suspend or
discontinue the Plan, including, where
applicable, any modifications or amendments as it shall deem
advisable in order that ISOs will be
classified as incentive stock options under the Code, or in
order to conform to any regulation or to any
change in any law or regulation applicable thereto; provided,
however, that no such action shall adversely
affect the rights and obligations with respect to Stock Options
at any time outstanding under the Plan; and
provided further that no such action shall, without the
approval of the stockholders of the Corporation,
(i) increase the maximum number of shares of Common Stock that
may be made subject to Stock Options
(unless necessary to effect the adjustments required by Section
6.2), (ii) materially increase the benefits
accruing to Participants under the Plan, or (iii) materially
modify the requirements as to eligibility for
participation in the Plan.
13. Registration of Optioned Shares
The Stock Options shall not be exercisable unless the purchase
of such optioned shares is pursuant to an
applicable effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"),
or unless, in the opinion of counsel to the Corporation, the
proposed purchase of such optioned shares
would be exempt from the registration requirements of the 1933
Act and from the registration or
qualification requirements of applicable state securities laws.
14. Withholding Taxes
The Corporation or Participating Subsidiary may take such steps
as it may deem necessary or appropriate
for the withholding of any taxes which the Corporation or the
Participating Subsidiary is required by any
law or regulation or any governmental authority, whether
federal, state or local, domestic or foreign, to
withhold in connection with any Stock Option or Supplemental
Bonus, including, but not limited to, the
withholding of all or any portion of any payment or the
withholding of issuance of shares of Common
Stock to be issued upon the exercise of any Stock Option or
upon payment of any Supplemental Bonus,
until the Participant reimburses the Corporation or
Participating Subsidiary for the amount the
Corporation or Participating Subsidiary is required to withhold
with respect to such taxes, or cancelling
any portion of such payment or issuance in an amount sufficient
to reimburse itself for the amount it is
required to so withhold.
15. Brokerage Arrangements
The Committee, in its discretion, may enter into arrangements
with one or more banks, brokers or other
financial institutions to facilitate the disposition of shares
acquired upon exercise of Stock Options or
Supplemental Bonuses, including, without limitation,
arrangements for the simultaneous exercise of Stock
Options or Supplemental Bonuses, and sale of the shares
acquired upon such exercise.
16. Nonexclusivity of the Plan
Neither the adoption of the Plan by the Board nor the
submission of the Plan to stockholders of the
Corporation for approval shall be construed as creating any
limitations on the power or authority of the
Board to adopt such other or additional incentive or other
compensation arrangements of whatever nature
as the Board may deem necessary or desirable or preclude or
limit the continuation of any other plan,
practice or arrangement for the payment of compensation or
fringe benefits to employees generally, or
to any class or group of employees, which the Corporation or
any Participating Subsidiary now has
lawfully put into effect, including, without limitation, any
retirement, pension, savings and stock purchase
plan, insurance, death and disability benefits and executive
short-term incentive plans.
17. Indemnification
Any person who was or is a party or is threatened to be made a
party to any threatened, pending or
competed action, suit or proceeding, whether civil, criminal,
administrative or investigative (including
any action or suit by or in the right of the Corporation to
procure a judgment in its favor) by reason of
the fact that he is or was a member of the Committee, shall be
indemnified by the Corporation, if, as and
to the extent authorized by the laws of the State of Delaware,
against expenses (including attorney's fees),
judgments, fines and amounts paid in settlement (if the terms
of such settlement have been consented to
by the Corporation) actually and reasonably incurred by him in
connection with the defense or settlement
of such action, suit or proceeding. The indemnification
expressly provided by statute in a specific case
shall not be deemed exclusive of any other rights to which any
person indemnified may be entitled under
any lawful agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in
his official capacity an 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. No
right of indemnification under the
provisions set forth herein shall be available to or
enforceable by any such person unless, within sixty
(60) days after institution of any such action or proceeding,
such person shall have offered the
Corporation, in writing, notice of and the opportunity to
handle and defend same at its own expense
unless Corporation shall have waived the requirement to provide
such written notice and offer.
18. Effective Date
This Plan was adopted by the Board of Directors on March 27,
1995 and became effective as of February
8, 1995 and was approved by the Corporation's stockholders on
May 1, 1995. No Stock Options shall
be granted subsequent to ten years after the effective date of
the Plan. Stock Options outstanding
subsequent to ten years after the effective date of the Plan
shall continue to be governed by the provisions
of the Plan.