-----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, AqPg2x3EgDdFz5CUQ/sEa9kPVknT+Oo7XFTUBwRYBbJ8kJhWAdeQKI9yc4dn5lPi wYXL/0bVswGLXVoxv2ZIIQ== 0000950133-00-000627.txt : 20000223 0000950133-00-000627.hdr.sgml : 20000223 ACCESSION NUMBER: 0000950133-00-000627 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20000222 EFFECTIVENESS DATE: 20000222 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GUILFORD PHARMACEUTICALS INC CENTRAL INDEX KEY: 0000918066 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 521841960 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-30814 FILM NUMBER: 549900 BUSINESS ADDRESS: STREET 1: 6611 TRIBUTARY ST CITY: BALTIMORE STATE: MD ZIP: 21224 BUSINESS PHONE: 4106316300 S-8 1 FORM S-8 1 As filed with the Securities and Exchange Commission on February 18, 2000 Registration No. 333- ----- =============================================================================== SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 GUILFORD PHARMACEUTICALS INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 52-1841960 (State or other jurisdiction of 6611 TRIBUTARY STREET (I.R.S. Employer Incorporation or organization) BALTIMORE, MARYLAND 21224 Identification Number) (Address of principal executive offices)(Zip code)
1998 EMPLOYEE SHARE OPTION AND RESTRICTED SHARE PLAN (FULL TITLE OF THE PLAN) CRAIG R. SMITH, M.D. CHIEF EXECUTIVE OFFICER, PRESIDENT AND CHAIRMAN OF THE BOARD GUILFORD PHARMACEUTICALS INC. 6611 TRIBUTARY STREET BALTIMORE, MARYLAND 21224 (NAME AND ADDRESS OF AGENT FOR SERVICE) (410) 631-6300 (TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) ------------------------------------------------------------------------------ WITH A COPY TO: MICHAEL J. SILVER, ESQ. HOGAN & HARTSON L.L.P. 111 SOUTH CALVERT STREET BALTIMORE, MARYLAND 21202 (410) 659-2700 ------------------------------------------------------------------------------ CALCULATION OF REGISTRATION FEE
============================================================================================================================== TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF TO BE REGISTERED REGISTERED (1) OFFERING PRICE PER SHARE (1) AGGREGATE OFFERING PRICE (1) REGISTRATION FEE(1) - ------------------------------------------------------------------------------------------------------------------------------ Common Stock, par value 500,000 $32.563 $16,281,500 $4,299.00 $.01 per share, and Series A Junior Participation Preferred Share Purchase Rights
- ------------------------------------------------------------------------------ (1)Pursuant to Rule 457(h)(1), the proposed maximum offering price per share, proposed maximum aggregate offering price and the amount of the registration fee are based on the average of the bid and asked price of $32.563 per share of Guilford Pharmaceuticals Inc. common stock on February 16, 2000 as reported on the NASDAQ National Market. 2 PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS Guilford Pharmaceuticals Inc. (the "Registrant") will separately send or give documents containing the information required to be provided in this Part I to its employees participating in the Guilford Pharmaceuticals Inc. 1998 Employee Share Option and Restricted Share Plan, as amended August 17, 1999 (the "Plan"), as contemplated by Rule 428(b)(1) under the Securities Act of 1933, as amended (the "Securities Act"). In accordance with the instructions to Part I of Form S-8, the Registrant will not file these documents with the Securities and Exchange Commission (the "Commission"), either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The Registrant hereby incorporates by reference into this Registration Statement the following documents: (a) Annual report on Form 10-K for the year ended December 31, 1998 filed with the SEC on March 30, 1999; (b) All reports filed with the Commission pursuant to Section 13(a) or 15 (d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), since December 31, 1998. (c) The description of the Registrant's common stock contained in the Registrant's Registration Statement on Form 8-A filed with the Commission on March 25, 1994, registering shares of Common Stock pursuant to Section 12(g) of the Exchange Act. In addition, all documents subsequently filed by the Registrant pursuant to Section 13(a), 13(c), 14, or 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be part of hereof from the date of the filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference shall be deemed to be modified or superseded to the extent that a statement contained in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such prior statement. The documents required to be so modified or superseded shall not be deemed to constitute a part of this Registration Statement, except as so modified or superseded. To the extent that any proxy statement is incorporated by reference herein, such incorporation shall not include any information contained in such proxy statement which is not, pursuant to the Commission's rules, deemed to be "filed" with the Commission or subject to the liabilities of Section 18 of the Exchange Act. ITEM 4. DESCRIPTION OF SECURITIES. A description of the Registrant's common stock, par value $ .01 per share, is incorporated by reference under Item 3. 3 ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. NOT APPLICABLE. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Under Section 145 of the Delaware General Corporation Law ("DGCL"), the Registrant has broad powers to indemnify its directors and officers against liabilities they may incur in such capacities, including liabilities under the Securities Act. Article Nine of the Registrant's Amended and Restated Certificate of Incorporation provides that the Company will indemnify its directors and officers to the full extent permitted by law and that no director shall be liable for monetary damages to the Registrant or its stockholders for any breach of fiduciary duty, except to the extent provided by applicable law (i) for any breach of the director's duty of loyalty to the Registrant or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the DGCL or (iv) for any transaction from which such director derived an improper personal benefit. In addition, under indemnification agreements with its directors and officers, the Registrant is obligated, to the fullest extent permissible by the DGCL, as it currently exists or may be amended, to indemnify and hold harmless its directors and officers, from and against all expense, liability and loss reasonably incurred or suffered by such directors and officers. * * * * * Insofar as indemnification for liabilities arising under the Securities Act may be permitted to trustees, 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 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 the expenses incurred or paid by a trustee, officer or controlling person of the Registrant of the successful defense of any action, suit or proceeding) is asserted by such trustee, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by the Registrant is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. NOT APPLICABLE. ITEM 8. EXHIBITS. EXHIBIT NUMBER DESCRIPTION ------- ----------- 4.6 Guilford Pharmaceuticals Inc. 1998 Employee Share Option and Restricted Share Plan (as amended August 17, 1999) 5 Opinion of Hogan & Hartson L.L.P. regarding the legality of the shares of Common Stock being registered (filed herewith) 23.1 Consent of Hogan & Hartson L.L.P. (contained in Exhibit 5) 23.2 Consent of KPMG LLP (filed herewith) 24 Power of Attorney (contained on signature page) 4 ITEM 9. UNDERTAKINGS. (a) The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act; (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; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs 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 this 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) 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 that is incorporated by reference in this 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) The undertaking concerning indemnification is set forth under the response to Item 6. (d) The undersigned Registrant hereby undertakes to deliver or cause to be delivered with the prospectus, to each person to whom the prospectus is sent or given, the latest annual report, to security holders that is incorporated by reference in the prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3 or 14c-3 under the Securities Exchange Act of 1934; and, where interim financial information required to be presented by Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or cause to be delivered to each person to whom the prospectus is sent or given, the latest quarterly report that is specifically incorporated by reference in the prospectus to provide such interim financial information. 5 SIGNATURES Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Naples, Florida, on February 18, 2000 GUILFORD PHARMACEUTICALS INC. By: /s/ Craig R. Smith, M.D. ------------------------ Craig R. Smith, M.D. Chief Executive Officer, President and Chairman of the Board of Directors 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 date indicated. We, the undersigned officers and directors of Guilford Pharmaceuticals Inc., hereby severally and individually constitute and appoint Craig R. Smith, M.D., Andrew R. Jordan, Thomas C. Seoh, Stephen H. McElhennon and Michael J. Silver, and each of them, the true and lawful attorneys and agents of each of us to execute in the name, place and stead of each of us (individually and in any capacity stated below) any and all amendments to this Registration Statement on Form S-8, and all instruments necessary or advisable in connection therewith and to file the same with the Securities and Exchange Commission, each of said attorneys and agents to have power to act with or without the other and to have full power and authority to do and perform in the name and on behalf of each of the undersigned every act whatsoever necessary or advisable to be done in the premises as fully and to all intents and purposes as any of the undersigned might or could do in person, and we hereby ratify and confirm our signatures as they may be signed by our said attorneys and agents and each of them to any and all such amendment and amendments. Date: February 18, 2000 /s/ Craig R. Smith, M.D. ------------------------ Craig R. Smith, M.D. Chief Executive Officer, President and Chairman of the Board of Directors Date: February 18, 2000 /s/ Andrew R. Jordan -------------------- Andrew R. Jordan Senior Vice President, Chief Financial Officer and Treasurer Date: February 18, 2000 /s/ George L. Bunting, Jr. --------------------------- George L. Bunting, Jr. Director Date: February 18, 2000 /s/ Richard L. Casey -------------------- Richard L. Casey Director Date: February 18, 2000 /s/ Elizabeth M. Greetham ------------------------- Elizabeth M. Greetham Director Date: February 18, 2000 /s/ Joseph Klein, III --------------------- Joseph Klein, III Director Date: February 18, 2000 /s/ Solomon H. Snyder, M.D. --------------------------- Solomon H. Snyder, M.D. Director Date: February 18, 2000 /s/ W. Leigh Thompson, M.D., Ph.D. ---------------------------------- W. Leigh Thompson, M.D., Ph.D. Director 6 EXHIBIT INDEX EXHIBIT NUMBER DESCRIPTION ------ ----------- 4.6 Guilford Pharmaceuticals Inc. 1998 Employee Share Option and Restricted Share Plan (as amended August 17, 1999). 5 Opinion of Hogan & Hartson L.L.P. regarding the legality of the shares of Common Stock being registered 23.1 Consent of Hogan & Hartson L.L.P. (contained in Exhibit 5) 23.2 Consent of KPMG LLP 24 Power of Attorney (contained on signature page) EX-4.6 2 1998 EMPLOYEE SHARE OPTION & RESTRICTED SHARE PLAN 1 EXHIBIT 4.6 GUILFORD PHARMACEUTICALS INC. 1998 EMPLOYEE SHARE OPTION AND RESTRICTED SHARE PLAN (AS AMENDED AUGUST 17, 1999) 2 GUILFORD PHARMACEUTICALS INC. 1998 EMPLOYEE SHARE OPTION AND RESTRICTED SHARE PLAN (AS AMENDED AUGUST 17, 1999) Guilford Pharmaceuticals Inc., sets forth herein the terms of this 1998 Employee Share Option and Restricted Share Plan as follows: 1. PURPOSE The Plan is intended to advance the interests of the Company by providing eligible individuals (as designated pursuant to Section 5 below) with incentives to improve business results, by providing an opportunity to acquire or increase a proprietary interest in the Company, which thereby will create a stronger incentive to expend maximum effort for the growth and success of the Company, and will encourage such eligible individuals to continue to serve the Company. To this end, the Plan provides for the grant of share options and restricted shares all as set out herein. 2. DEFINITIONS For purposes of interpreting the Plan and related documents (including Share Option Agreements and Restricted Share Agreements), the following definitions shall apply: 2.1. "Affiliate" means any company or other trade or business that is controlled by or under common control with the Company (determined in accordance with the principles of Section 414(b) and 414(c) of the Code and the regulations thereunder). 2.2. "Agreement" means a written agreement between the Company and the recipient individual that sets out the terms and conditions of the grant of an Incentive Award. 2.3. "Board" means the Board of Directors of the Company. 2.4. "Code" means the Internal Revenue Code of 1986, as now in effect or as hereafter amended. 2.5. "Committee" means the stock option committee appointed by the Board pursuant to Section 3.2 of the Plan. 2.6. "Company" means Guilford Pharmaceuticals Inc. 2.7. "Effective Date" means the date of adoption of the Plan by the Board. 2.8. "Exchange Act" means the Securities Exchange Act of 1934, as now in effect or as hereafter amended. 2.9. "Exercise Price" means the Option Price multiplied by the number of Shares purchased pursuant to the exercise of an Option. 2.10. "Expiration Date" means the date fixed for termination of the option at the time it is granted, or, if earlier, the termination of the option pursuant to Section 18.3. 2.11. "Fair Market Value" means the value of each Share subject to the Plan determined as follows: if on the Grant Date or other determination date the Shares are listed on an established national or regional stock exchange, are admitted to quotation on the National Association of Securities Dealers Automated Quotation System, or are publicly traded on an established securities market, the Fair Market Value of the Shares shall be the closing price of the Shares on such exchange or in such market (the highest such closing price if there is more than one such exchange or market) on the trading day immediately preceding the Grant Date or such 3 other determination date (or if there is no such reported closing price, the Fair Market Value shall be the mean between the highest bid and lowest asked prices or between the high and low sale prices on such trading day) or, if no sale of the Shares is reported for such trading day, on the next preceding day on which any sale shall have been reported. If the Shares are not listed on such an exchange, quoted on such System or traded on such a market, Fair Market Value shall be determined by the Board in good faith. 2.12. "Grant Date" means the later of (i) the date as of which the Board approves the grant and (ii) the date as of which the Optionee and the Company or Subsidiary enter the relationship resulting in the Optionee being eligible for grants. 2.13. "Holder" means a person who holds Restricted Shares under the Plan. 2.14. "Incentive Award" means an award of an Option or Restricted Shares under the Plan. 2.15. "Option" means an option to purchase one or more Shares pursuant to the Plan. 2.16. "Optionee" means a person who holds an Option under the Plan. 2.17. "Option Period" means the period during which Options may be exercised as defined in Section 11. 2.18. "Option Price" means the purchase price for each Share subject to an Option. 2.19. "Plan" means the Guilford Pharmaceuticals Inc. 1998 Employee Share Option and Restricted Share Plan. 2.20. "Reporting Person" means a person who is required to file reports under Section 16(a) of the Exchange Act. 2.21. "Restricted Share Agreement" means the written agreement evidencing the grant of Restricted Shares hereunder. 2.22. "Restricted Share Award" means an award of the right to purchase restricted Shares granted pursuant to Section 12 of this Plan. 2.23. "1933 Act" means the Securities Act of 1933, as now in effect or as hereafter amended. 2.24. "Shares" mean share of common stock, par value $.01 per Share, of the Company. 2.25. "Share Option Agreement" means the written agreement evidencing the grant of an Option hereunder. 2.26. "Subsidiary" means any "subsidiary corporation" of the Company within the meaning of Section 425(f) of the Code. 3. ADMINISTRATION 3.1. BOARD. The Plan shall be administered by the Board, which shall have the full power and authority to take all actions and to make all determinations required or provided for under the Plan or any Option or Restricted Share Award granted or Share Option or Restricted Share Agreement entered into hereunder and all such other actions and determinations not inconsistent with the specific terms and provisions of the Plan deemed by the Board to be necessary or appropriate to the administration of the Plan or any Option granted or Share Option 4 Agreement entered into hereunder. The interpretation and construction by the Board of any provision of the Plan or of any Option granted or Share Option Agreement entered into hereunder shall be final and conclusive. 3.2. COMMITTEE The Board may from time to time appoint the Committee, and the Board, in its sole discretion, may provide that the role of the Committee shall be limited to making recommendations to the Board concerning any determinations to be made and actions to be taken by the Board pursuant to or with respect to the Plan, or the Board may delegate to the Committee such powers and authorities related to the administration of the Plan, as set forth in Section 3.1 hereof, as the Board shall determine, consistent with the Amended and Restated Certificate of Incorporation, as amended and Bylaws of the Company and applicable law. In the event that the Plan or any Option or Restricted Share Award granted or Share Option or Restricted Share Agreement entered into hereunder provides for any action to be taken by or determination to be made by the Board, such action may be taken by or such determination may be made by the Committee if the power and authority to do so has been delegated to the Committee by the Board as provided for in this Section 3.2. Unless otherwise expressly determined by the Board, any such action or determination by the Committee shall be final and conclusive. 3.3. NO LIABILITY No member of the Board or of the Committee shall be liable for any action or determination made, or any failure to take or make an action or determination, in good faith with respect to the Plan or any Option or Restricted Share Award granted or Share Option or Restricted Share Agreement entered into hereunder. 4. SHARES The Shares that may be issued pursuant to Incentive Awards may be treasury Shares or authorized but unissued Shares. The number of Shares that may be issued pursuant to Incentive Awards under the Plan shall not exceed, in the aggregate, 1,100,000 Shares. No more than 50,000 Shares may be issued pursuant to Restricted Share Awards under the Plan. If any Incentive Award expires, terminates, or is terminated or canceled for any reason prior to exercise or vesting in full, the Shares that were subject to the unexercised, forfeited, or terminated portion of such Incentive Award shall be available immediately for future grants of Incentive Awards under the Plan. 5. ELIGIBILITY 5.1. DESIGNATED RECIPIENTS Subject to the next sentence, Incentive Awards may be granted under the Plan to (i) any full-time employee of the Company or any Subsidiary (including any such individual who is an officer or director of the Company or any Subsidiary or Affiliate) as the Board shall determine and designate from time to time or (ii) any other individual whose participation in the Plan is determined by the Board to be in the best interests of the Company and is so designated by the Board (such determination to be deemed to be made with respect to any recipient by virtue of the grant of an Incentive Award to such an individual). 5.2. SUCCESSIVE GRANTS An individual may hold more than one Incentive Award, subject to such restrictions as are provided herein. 6. EFFECTIVE DATE AND TERM OF THE PLAN 6.1. EFFECTIVE DATE The Plan shall be effective as of February 17, 1998, the date of adoption by the Board. 6.2. TERM The Plan has no termination date. 5 7. GRANT OF OPTIONS Subject to the terms and conditions of the Plan, the Board may, at any time and from time to time, grant to such eligible individuals as the Board may determine, Options to purchase such number of Shares on such terms and conditions as the Board may determine. Such authority specifically includes the authority, in order to effectuate the purposes of the Plan but without amending the Plan, to modify grants to eligible individuals who are foreign nationals or are individuals who are employed outside the United States to recognize differences in local law, tax policy, or custom. 8. PARACHUTE LIMITATIONS Notwithstanding any other provision of this Plan or of any other agreement, contract, or understanding heretofore or hereafter entered into by the Optionee with the Company, except an agreement, contract, or understanding hereafter entered into that expressly modifies or excludes application of this paragraph (an "Other Agreement"), and notwithstanding any formal or informal plan or other arrangement for the direct or indirect provision of compensation to the Optionee (including groups or classes of participants or beneficiaries of which the Optionee is a member), whether or not such compensation is deferred, is in cash, or is in the form of a benefit to or for the Optionee (a "Benefit Arrangement"), if the Optionee is a "disqualified individual", as defined in Section 280G(c) of the Code, any Option held by that Optionee and any right to receive any payment or other benefit under this Plan shall not become exercisable or vested (i) to the extent that such right to exercise, vesting, payment, or benefit, taking into account all other rights, payments, or benefits to or for the Optionee under this Plan, all Other Agreements, and all Benefit Arrangements, would cause any payment or benefit to the Optionee under this Plan to be considered a "parachute payment" within the meaning of Section 280G(b)(2) of the Internal Revenue Code as then in effect (a "Parachute Payment") and (ii) if, as a result of receiving a Parachute Payment, the aggregate after-tax amounts received by the Optionee from the Company under this Plan, all Other Agreements, and all Benefit Arrangements would be less than the maximum after-tax amount that could be received by him or her without causing any such payment or benefit to be considered a Parachute Payment. In the event that the receipt of any such right to exercise, vesting, payment, or benefit under this Plan, in conjunction with all other rights, payments, or benefits to or for the Optionee under any Other Agreement or any Benefit Arrangement would cause the Optionee to be considered to have received a Parachute Payment under this Plan that would have the effect of decreasing the after-tax amount received by the Optionee as described in clause (ii) of the preceding sentence, then the Optionee shall have the right, in the Optionee's sole discretion, to designate those rights, payments, or benefits under this Plan, any Other Agreements, and any Benefit Arrangements that should be reduced or eliminated so as to avoid having the payment or benefit to the Optionee under this Plan be deemed to be a Parachute Payment. 9. SHARE OPTION AGREEMENTS All Options granted pursuant to the Plan shall be evidenced by Share Option Agreements, to be executed by the Company and by the Optionee, in such form or forms as the Board shall from time to time determine. Share Option Agreements covering Options granted from time to time or at the same time need not contain similar provisions; provided, however, that all such Option Agreements shall comply with all terms of the Plan. 10. OPTION PRICE The Option Price shall be fixed by the Board and stated in each Share Option Agreement. The Option Price shall not be less than the Fair Market Value of the Shares. 11. TERM AND EXERCISE OF OPTIONS 11.1. TERM Each Option granted under the Plan shall terminate and all rights to purchase shares thereunder shall cease at such time as may be fixed by the Board and stated in the Share Option Agreement relating to such Option. 6 11.2. OPTION PERIOD AND LIMITATIONS ON EXERCISE Each Option granted under the Plan shall be exercisable, in whole or in part, at any time and from time to time over a period commencing on or after the Grant Date and ending upon the expiration or termination of the Option, as the Board shall determine and set forth in the Share Option Agreement relating to such Option. Without limiting the foregoing, the Board, subject to the terms and conditions of the Plan, may in its sole discretion provide that an Option may not be exercised in whole or in part for a stated period or periods of time during which such Option is outstanding; provided, however, that any such limitation on the exercise of an Option contained in any Share Option Agreement may be rescinded, modified or waived by the Board, in its sole discretion, at any time and from time to time after the Grant Date of such Option, so as to accelerate the time at which the Option may be exercised. 11.2A. RETIREMENT If the Optionee retires from the Company or a Subsidiary following the attainment of age 62 and (i) the Optionee has completed at least five years but fewer than ten years of service with the Company or a Subsidiary, the Optionee shall have the right (subject to the limitations on exercise set forth in Section 3.7 below) to exercise all or any part of the Option, to the extent the Option was vested upon the Optionee's retirement, for a period equal to the shorter of (a) five (5) years following the Optionee's retirement or (b) the remaining term of the Option, or (ii) the Optionee has completed as least ten years of service with the Company or a Subsidiary, the Optionee shall have the right (subject to the limitations on exercise set forth in Section 3.7 below) to exercise all or any part of the Option, to the extent the Option was vested upon the Optionee's retirement, for the remaining term of the Option. 11.3. TERMINATION OF EMPLOYMENT Upon the termination of the employment of an Optionee with the Company, a Subsidiary or an Affiliate, other than by reason of the death or "permanent and total disability" (within the meaning of Section 22(e)(3) of the Code), any Option granted to an Optionee pursuant to the Plan shall terminate, and such Optionee shall have no further right to purchase Shares pursuant to such Option; provided further, that the Board may provide, by inclusion of appropriate language in any Share Option Agreement, that an Optionee may (subject to the general limitations on exercise set forth in Section 11.2 above), in the event of termination of employment of the Optionee with the Company, a Subsidiary or an Affiliate, exercise an Option, in whole or in part, at any time subsequent to such termination of employment and prior to termination of the Option pursuant to Section 11.2 above, either subject to or without regard to any installment limitation on exercise imposed pursuant to Section 11.2. above, as the Board, in its sole and absolute discretion, shall determine and set forth in the Share Option Agreement. Whether a leave of absence or leave on military or government service shall constitute a termination of employment for purposes of the Plan, shall be determined by the Board, which determination shall be final and conclusive. For purposes of the Plan, a termination of employment with the Company, a Subsidiary or an Affiliate shall not be deemed to occur if the Optionee is immediately thereafter employed with the Company, any other Subsidiary or any other Affiliate. 11.4. RIGHTS IN THE EVENT OF DEATH If an Optionee dies while employed by the Company, a Subsidiary or an Affiliate, the executors or administrators or legatees or distributees of such Optionee's estate shall have the right (subject to the general limitations on exercise set forth in Section 11.2 above), at any time within one year after the date of such Optionee's death and prior to termination of the Option pursuant to Section 11.1 above, to exercise any Option held by such Optionee at the date of such Optionee's death, whether or not such Option was exercisable immediately prior to such Optionee's death; provided, however, that the Board may provide by inclusion of appropriate language in any Share Option Agreement that, in the event of the death of an Optionee, the executors or administrators or legatees or distributees of such Optionee's estate may exercise an Option (subject to the general limitations on exercise set forth in Section 11.2 above), in whole or in part, at any time subsequent to such Optionee's death and prior to termination of the Option pursuant to Section 11.1 above, either subject to or without regard to any installment limitation on exercise imposed pursuant to Section 11.2 above, as the Board, in its sole and absolute discretion, shall determine and set forth in the Share Option Agreement. 7 11.5. RIGHTS IN THE EVENT OF DISABILITY If an Optionee terminates employment with the Company, a Subsidiary or an Affiliate by reason of the "permanent and total disability" (within the meaning of Section 22(e)(3) of the Code) of such Optionee, then such Optionee shall have the right (subject to the general limitations on exercise set forth in Section 11.2 above), at any time within one year after such termination of employment and prior to termination of the Option pursuant to Section 11.1 above, to exercise, in whole or in part, any Option held by such Optionee at the date of such termination of employment, whether or not such Option was exercisable immediately prior to such termination of employment; provided, however, that the Board may provide, by inclusion of appropriate language in any Share Option Agreement, that an Optionee may (subject to the general limitations on exercise set forth in Section 11.2 above), in the event of the termination of employment of the Optionee with the Company, a Subsidiary or an Affiliate by reason of the "permanent and total disability" (within the meaning of Section 22(e)(3) of the Code) of such Optionee, exercise an Option, in whole or in part, at any time subsequent to such termination of employment and prior to termination of the Option pursuant to Section 11.1 above, either subject to or without regard to any installment limitation on exercise imposed pursuant to Section 11.2 above, as the Board, in its sole and absolute discretion, shall determine and set forth in the Share Option Agreement. Whether a termination of employment is to be considered by reason of "permanent and total disability" for purposes of this Plan shall be determined by the Board, which determination shall be final and conclusive. 11.6. LIMITATIONS ON EXERCISE OF OPTION Notwithstanding the foregoing Sections, in no event may the Option be exercised, in whole or in part, after the occurrence of an event referred to in Section 18.3 below which results in termination of the Option. In no event may the Option be exercised for a fractional Share. 11.7. METHOD OF EXERCISE An Option that is exercisable hereunder may be exercised by the Optionee's delivery to the Company of written notice of the exercise and the number of Shares for which the Option is being exercised. Such delivery shall occur on any business day, at the Company's principal office, addressed to the attention of the Board. Such notice shall specify the number of Shares with respect to which the Option is being exercised and shall be accompanied by payment in full of the Option Price of the Shares for which the Option is being exercised. The minimum number of Shares with respect to which an Option may be exercised, in whole or in part, at any time shall be the lesser of (i) 100 shares or such lesser number set forth in the applicable Option Agreement and (ii) the maximum number of Shares available for purchase under the Option at the time of exercise. Payment of the Option Price for the Shares purchased pursuant to the exercise of an Option shall be made (i) in cash or in cash equivalents; (ii) through the tender to the Company of Shares (so long as any Shares so tendered that were originally acquired by the Optionee from the Company have been held by the Optionee for at least six (6) months prior to such tender), which Shares shall be valued, for purposes of determining the extent to which the Option Price has been paid thereby, at their Fair Market Value on the date of exercise; or (iii) by a combination of the methods described in (i) and (ii). The Board may provide, by inclusion of appropriate language in an Share Option Agreement, an amendment thereto or other agreement with the Optionee, that payment in full of the Option Price need not accompany the written notice of exercise provided the notice of exercise directs that the Share certificate or certificates for the Shares for which the Option is exercised be delivered to a licensed broker acceptable to the Company as the agent for the individual exercising the Option and, at the time such Share certificate or certificates are delivered, the broker tenders to the Company cash (or cash equivalents acceptable to the Company) equal to the Option Price for the Shares purchased pursuant to the exercise of the Option plus the amount (if any) of federal and/or other taxes which the Company may in its judgment, be required to withhold with respect to the exercise of the Option. An attempt to exercise any Option granted hereunder other than as set forth above shall be invalid and of no force and effect. Promptly after the exercise of an Option and the payment in full of the Option Price of the Shares covered thereby, the individual exercising the Option shall be entitled to the issuance of a Share certificate or Share certificates evidencing his or her ownership of such Shares. Unless otherwise stated in the applicable Share Option Agreement, an individual holding or exercising an Option shall have none of the rights of a stockholder (for example, the right to receive cash or dividend payments attributable to the subject Shares or to direct the voting of the subject Shares) until the Shares covered thereby are fully paid and issued to him or her. Except as provided in Section 18 below, no adjustment shall be made for dividends or other rights for which the record date is prior to the date of such issuance. 8 12. GRANT OF RESTRICTED SHARES 12.1. RESTRICTED SHARE AWARDS. (a) The Board may from time to time, and subject to the provisions of the Plan and such other terms and conditions as the Board may determine, grant Restricted Share Awards under the Plan. Each Restricted Share Award shall be evidenced by a written instrument which shall state the number of Shares covered by the award and the terms and conditions which the Board shall have determined with respect to such award, including the number of Shares that the Holder shall be entitled to purchase, the price to be paid, and the time within which the Holder must accept such offer, which shall in no event exceed thirty (30) days from the date upon which the Board made the determination to grant the Restricted Share Award. Upon the acceptance of each Restricted Share Award, subject to Section 12.3, a certificate representing the Shares covered by the award shall be registered in the name of the Holder and shall be delivered to the Holder. The Holder shall generally have the rights and privileges of a stockholder of the Company with respect to such Shares, including the right to vote and to receive dividends, subject to the restrictions specified in paragraphs (b) and (c). (b) The Board shall determine a period of time ("Limitation Period") which shall apply to the Shares transferred to a Holder with respect to each Restricted Shares Award. Except as otherwise determined by the Board, during the Limitation Period applicable with respect to each Restricted Shares Award, the Holder may not sell, transfer, assign, pledge or otherwise encumber or dispose of the Shares covered by such Restricted Shares Award. The Board in its discretion may prescribe conditions for the incremental lapse of the preceding restrictions during the Limitation Period, and for the lapse or termination of such restrictions upon the occurrence of certain events before the expiration of the Limitation Period. The Board in its discretion also may shorten or terminate the Limitation Period or waive any conditions for the lapse or termination of the restrictions with respect to all or any portion of the Shares covered by the Restricted Shares Award. The certificate representing the Shares distributed with respect to each Restricted Shares Award made under the Plan shall be affixed with a legend setting forth the restrictions applicable to the transfer of such Shares. The restrictions applicable to a Restricted Shares Award shall lapse and a certificate for the number of Shares with respect to which the restrictions have lapsed shall be delivered to the Holder free of all such restrictions upon the earliest of the following: (1) the expiration of the Limitation Period applicable to the Restricted Shares Award, (2) the occurrence of an event prescribed by the Board which results in the lapse of the restrictions, or (3) such other time as the Board may determine. (c) The Shares covered by a Restricted Share Award shall be subject to a repurchase option exercisable upon the voluntary or involuntary termination of the Holder's employment with the Company for any reason (including death or disability) during the Limitation Period. The purchase price for Shares repurchased pursuant to the Restricted Share Agreement shall be the original price paid by the Holder and may be paid by cancellation of any indebtedness of the Holder to the Company. 12.2. RESTRICTED SHARE AGREEMENT All Restricted Share Awards granted pursuant to the Plan shall be evidenced by Restricted Share Agreements, to be executed by the Company and by the Holder, in such form or forms as the Board shall from time to time determine. Restricted Share Agreements covering Restricted Shares granted from time to time or at the same time need not contain similar provisions; provided, however, that all such Restricted Share Agreements shall comply with all terms of the Plan. 12.3. CERTIFICATES FOR RESTRICTED SHARES The Board may require that the certificates evidencing the grant of a Restricted Share Award hereunder be held in escrow until such restrictions have expired. The Board may also cause a legend to be placed on such certificates that complies with the applicable securities laws and regulations and makes appropriate reference to the restrictions to which the Shares are subject. Upon attainment of the specified objectives and requirements (or, to the extent specified in the grant (or the portion of such Shares earned by partial attainment of the objectives and requirements, as applicable) free of restrictions. 9 13. TRANSFERABILITY OF SHARES AND OPTIONS 13.1 General. Except as provided in Section 13.2, during the lifetime of an Optionee, only such Optionee or grantee (or, in the event of legal incapacity or incompetency, the guardian or legal representative of the Optionee or grantee) may exercise the Option. No Restricted Shares shall be assignable or transferable, other than by will or the laws of descent and distribution, before the satisfaction of applicable performance and service requirements with respect to such Shares, as set forth in the applicable Restricted Share Agreement. 13.2 Family Transfers. The Board or Committee may, in its discretion, authorize all or a portion of the Options granted to an Optionee, or group of Optionees, to be on terms which permit transfer by such Optionee to a Family Member or an entity in which more than fifty percent of the voting interests are owned by Family Members (or the Optionee), provided that (x) there may be no consideration for any such transfer, (y) the Stock Option Agreement pursuant to which such Options are granted must be approved by the Board or Committee, and must expressly provide for transferability in a manner consistent with this Section, and (z) subsequent transfers of transferred Options shall be prohibited except those in accordance with Section 13.2 or by will or the laws of descent and distribution. Following transfer, any such Options shall continue to be subject to the same terms and conditions as were applicable immediately prior to transfer, provided that for purposes of Sections 11.7 hereof the term "Optionee" shall be deemed to refer the transferee. For purposes of this Section 13.2, the term "Family Member" means a person who is a child, stepchild, grandchild, parent, stepparent, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including adoptive relationships, of the Optionee, any person sharing the Optionee's household (other than a tenant or employee), a trust in which these persons have more than fifty percent of the beneficial interest, a foundation in which these persons (or the Optionee) control the management of assets, and any other entity in which these persons (or the Optionee) own more than fifty percent of the voting interests. The events of termination of employment of Section 11 hereof shall continue to be applied with respect to the original Optionee, following which the Options shall be exercisable by the transferee only to the extent, and for the periods specified in Section 11. 14. USE OF PROCEEDS The proceeds received by the Company from the sale of Shares pursuant to the exercise of Options granted under the Plan shall constitute general funds of the Company. 15. REQUIREMENTS OF LAW 10 The Company shall not be required to sell or issue any Shares under any Incentive Award if the sale or issuance of such Shares would constitute a violation by the Optionee, the Holder, the individual exercising the Option, or the Company of any provisions of any law or regulation of any governmental authority, including without limitation any federal or state securities laws or regulations. If at any time the Company shall determine, in its discretion, that the listing, registration or qualification of any Shares subject to the Option upon any securities exchange or under any governmental regulatory body, is necessary or desirable as a condition of, or in connection with, the issuance or purchase of Shares hereunder, the Option may not be exercised in whole or in part unless such listing registration, qualification, consent or approval shall have been effected or obtained free of any conditions not acceptable to the Company, and any delay caused thereby shall in no way affect the date of termination of the Option. Specifically in connection with the 1933 Act, at the time of grant of Restricted Shares or when such Shares becomes vested or upon the exercise of any Option, unless a registration statement under such act is in effect with respect to the Shares covered by Option, the Company shall not be required to sell or issue such Shares unless the Board has received evidence satisfactory to it that the holder of such Restricted Shares or Option, may acquire such Shares pursuant to an exemption from registration under such act. Any determination in this connection by the Board shall be final, binding, and conclusive. The Company may, but shall in no event be obligated to, register any securities covered hereby pursuant to the 1933 Act. The Company shall not be obligated to take any affirmative action in order to cause the exercise of an Option or the issuance of Shares pursuant thereto or pursuant to a grant of Restricted Shares to comply with any law or regulation of any governmental authority. As to any jurisdiction that expressly imposes the requirement that an Option shall not be exercisable or that Shares may not be issued pursuant to a Restricted Share Award unless and until the Shares covered by such grant or Option are registered or are exempt from registration, the exercise of such Option or issuance of Shares pursuant to such grant (under circumstances in which the laws of such jurisdiction apply) shall be deemed conditioned upon the effectiveness of such registration or the availability of such an exemption. 16. AMENDMENT AND TERMINATION OF THE PLAN The Board may, at any time and from time to time, amend, suspend, or terminate the Plan as to any Shares as to which Incentive Awards have not been granted. The Company may retain the right in an Agreement to cause a forfeiture of the Shares or gain realized by a holder of an Incentive Award on account of the holder taking actions in "competition with the Company," as defined in the applicable Agreement. Furthermore, the Company may annul the grant of an Option, or Restricted Shares if the holder of such grant was an employee of the Company or a Subsidiary and is terminated "for cause," as defined in the applicable Agreement. Except as permitted under this Section 16 or Section 18 hereof, no amendment, suspension, or termination of the Plan shall, without the consent of the holder of the Incentive Award, alter or impair rights or obligations under any Incentive Award theretofore granted under the Plan. 17. EXCHANGE ACT: RULE 16B-3 17.1. GENERAL The Plan is intended to comply with Rule 16b-3 ("Rule 16b-3") under the Exchange Act. Any provision inconsistent with Rule 16b-3 shall, to the extent permitted by law and determined to be advisable by the Board (constituted in accordance with Section 17.2 hereof) or the Board (acting pursuant to Section 17.3 hereof), be inoperative and void. 17.2. STOCK OPTION COMMITTEE The Committee appointed pursuant to Section 3.2 hereof shall consist of not fewer than two members of the Board each of whom shall qualify (at the time of appointment to the Committee and during all periods of service on the Committee) in all respects as a "non-employee director" as defined in Rule 16b-3. 11 17.3. ADDITIONAL RESTRICTION ON TRANSFER OF SHARES No director, officer or other "insider" of the Corporation subject to Section 16 of the Exchange Act shall be permitted to sell Shares (which such "insider" had received upon exercise of an Option or under a Restricted Share Award) during the six months immediately following the grant of such Option or Restricted Share Award. 18. EFFECT OF CHANGES IN CAPITALIZATION 18.1. CHANGES IN SHARES If the number of outstanding Shares is increased or decreased or the Shares are changed into or exchanged for a different number or kind of Shares or other securities of the Company on account of any recapitalization, reclassification, stock split, reverse split, combination of Shares, exchange of Shares, Share dividend or other distribution payable in capital stock, or other increase or decrease in such Shares effected without receipt of consideration by the Company, occurring after the closing of the initial public offering of Shares of the Company, the number and kinds of Shares for the issuance of which Restricted Share Awards may be granted and for the acquisition of which Options may be granted under the Plan shall be adjusted proportionately and accordingly by the Company. In addition, the number and kind of Shares for which Restricted Share Awards or Options, are outstanding shall be adjusted proportionately and accordingly so that the proportionate interest of the holder of the Restricted Share Awards or Option immediately following such event shall, to the extent practicable, be the same as immediately before such event. Any such adjustment in outstanding Options shall not change the aggregate Option Price payable with respect to Shares that are subject to the unexercised portion of the Option outstanding but shall include a corresponding proportionate adjustment in the Option Price per Share. 18.2. REORGANIZATION IN WHICH THE COMPANY IS THE SURVIVING ENTITY Subject to Section 18.3 hereof, if the Company shall be the surviving Entity in any reorganization, merger, or consolidation of the Company with one or more other entities, any Option theretofore granted pursuant to the Plan shall pertain to and apply to the securities to which a holder of the number of Shares subject to such Option would have been entitled immediately following such reorganization, merger, or consolidation, with a corresponding proportionate adjustment of the Option Price per Share so that the aggregate Option Price thereafter shall be the same as the aggregate Option Price of the Shares remaining subject to the Option immediately prior to such reorganization, merger, or consolidation. Subject to any contrary language in the applicable Restricted Share Agreement, any restrictions that were applicable to any previously granted Restricted Share Award shall apply as well to any replacement shares received by the Holder as a result of the reorganization, merger, or consolidation. 12 18.3. REORGANIZATION IN WHICH THE COMPANY IS NOT THE SURVIVING ENTITY OR SALE OF ASSETS OR SHARES Upon the dissolution or liquidation of the Company, or upon a merger, consolidation, or reorganization of the Company with one or more other entities in which the Company is not the surviving entity, or upon a sale of substantially all of the assets of the Company to another entity, or upon any transaction (including, without limitation, a merger or reorganization in which the Company is the surviving entity) approved by the Board that results in any person or entity (or person or entities acting as a group or otherwise in concert) owning 80 percent or more of the combined voting power of all classes of securities of the Company, the Plan and all Options outstanding hereunder shall terminate, except to the extent provision is made in writing in connection with such transaction for the continuation of the Plan or the assumption of such Options theretofore granted, or for the substitution for such Options of new options covering the stock of a successor Company, or a parent or subsidiary thereof, with appropriate adjustments as to the number and kinds of shares and exercise prices, in which event the Plan and Options theretofore granted shall continue in the manner and under the terms so provided. In the event of any such termination of the Plan, each individual holding an Option shall have the right (subject to the general limitations on exercise set forth in Section 11.2 above), immediately before the occurrence of such termination and during such period occurring before such termination as the Board in its sole discretion shall determine and designate, to exercise such Option in whole or in part, whether or not such Option was otherwise exercisable at the time such termination occurs. The Board shall send written notice of an event that will result in such a termination to all individuals who hold Options not later than the time at which the Company gives notice thereof to its stockholders but in no event less than 30 days before the occurrence of such termination. Unvested Restricted Share Awards shall be vested in the case of an event described in this Section 18.3. 18.4. ADJUSTMENTS Adjustments under this Section 18 related to Shares or securities of the Company shall be made by the Board, whose determination in that respect shall be final, binding, and conclusive. No fractional Shares or units of other securities shall be issued pursuant to any such adjustment, and any fractions resulting from any such adjustment shall be eliminated in each case by rounding downward to the nearest whole share or unit. 18.5. NO LIMITATIONS ON COMPANY The grant of Shares and Incentive Awards pursuant to the Plan shall not affect or limit in any way the right or power of the Company to make adjustments, reclassifications, reorganizations, or changes of its capital or business structure or to merge, consolidate, dissolve, or liquidate, or to sell or transfer all or any part of its business or assets. 19. DISCLAIMER OF RIGHTS No provision in the Plan or in any Incentive Award granted or Agreement entered into pursuant to the Plan shall be construed to confer upon any individual the right to remain in the employ or service of the Company, any Subsidiary or any Affiliate, or to interfere in any way with any contractual or other right or authority of the Company, any Subsidiary or any Affiliate either to increase or decrease the compensation or other payments to any individual at any time, or to terminate any employment or other relationship between any individual and the Company, a Subsidiary or an Affiliate. In addition, notwithstanding anything contained in the Plan to the contrary, unless otherwise stated in the applicable Agreement, no Incentive Award granted under the Plan shall be affected by any change of duties or position of the Optionee or Holder (including a transfer to or from the Company, a Subsidiary or an Affiliate), so long as such Optionee or Holder continued to be a director, officer, consultant, employee, or independent contractor (as the case may be) of the Company, a Subsidiary or an Affiliate. The obligation of the Company to pay any benefits pursuant to this Plan shall be interpreted as a contractual obligation to pay only those amounts described herein, in the manner and under the conditions prescribed herein. The Plan shall in no way be interpreted to require the Company to transfer any amounts to a third party trustee or otherwise hold any amounts in trust or escrow for payment to any participant or beneficiary under the terms of the Plan. 13 20. NONEXCLUSIVITY OF THE PLAN The adoption of the Plan shall not be construed as creating any limitations upon the right and authority of the Board to adopt such other incentive compensation arrangements (which arrangements may be applicable either generally to a class or classes of individuals or specifically to a particular individual or particular individuals) as the Board in its discretion determines desirable, including, without limitation, the granting of restricted shares or share options otherwise than under the Plan. 21. CAPTIONS The use of captions in this Plan or any Agreement is for the convenience of reference only and shall not affect the meaning of any provision of the Plan or such Agreement. 22. WITHHOLDING TAXES 22.1. WITHHOLDING 14 The Company shall have the right to deduct from payments of any kind otherwise due to an Optionee any Federal, state, or local taxes of any kind required by law to be withheld with respect to any Shares issued upon the exercise of an Option under the Plan or with respect to the termination of the Limitation Period with respect to Restricted Share Awards under the Plan. At the time of exercise or termination of the Limitation Period, the Optionee or Holder shall pay to the Company any amount that the Company may reasonably determine to be necessary to satisfy such withholding obligation. Subject to the prior approval of the Company, which may be withheld by the Company in its sole discretion, the Optionee or Holder may elect to satisfy such obligations, in whole or in part, (i) by causing the Company to withhold Shares otherwise issuable pursuant to the exercise of an Option or (ii) by delivering to the Company Shares already owned by the Optionee or Holder. The Shares so delivered or withheld shall have a fair market value equal to such withholding obligations. The fair market value of the Shares used to satisfy such withholding obligation shall be determined by the Company as of the date that the amount of tax to be withheld is to be determined. An Optionee or Holder who has made an election pursuant to this Section 24.1 may only satisfy his or her withholding obligation with Shares that are not subject to any repurchase, forfeiture, unfulfilled vesting, or other similar requirements. 22.2. LIMITATIONS FOR REPORTING PERSON Notwithstanding the foregoing, in the case of a Reporting Person, no election to use Shares for the payment of withholding taxes shall be effective unless made in compliance with any applicable requirements under Rule 16b-3(e) or any successor rule under the Exchange Act. 23. OTHER PROVISIONS Each Incentive Award granted under the Plan may contain such other terms and conditions not inconsistent with the Plan as may be determined by the Board, in its sole discretion. 24. NUMBER AND GENDER With respect to words used in this Plan, the singular form shall include the plural form, the masculine gender shall include the feminine gender, etc., as the context requires. 25. SEVERABILITY If any provision of the Plan or any Agreement shall be determined to be illegal or unenforceable by any court of law in any jurisdiction, the remaining provisions hereof and thereof shall be severable and enforceable in accordance with their terms, and all provisions shall remain enforceable in any other jurisdiction. 26. GOVERNING LAW The validity and construction of this Plan and the instruments evidencing the Incentive Awards granted hereunder shall be governed by the laws of the State of Maryland. EX-5 3 OPINION OF HOGAN & HARTSON L.L.P. 1 EXHIBIT 5 HOGAN & HARTSON L.L.P. 111 SOUTH CALVERT STREET BALTIMORE, MD 21202 FEBRUARY 18, 2000 GUILFORD PHARMACEUTICALS INC. 6611 TRIBUTARY STREET BALTIMORE, MARYLAND 21224 LADIES AND GENTLEMEN: This firm has acted as counsel to Guilford Pharmaceuticals Inc., a Delaware corporation (the "Company"), in connection with its registration, pursuant to a registration statement on Form S-8 filed on the date hereof (the "Registration Statement"), of 500,000 shares (the "Shares") of common stock, par value $.01 per share of the Company (the "Common Stock"), to be granted pursuant to the Guilford Pharmaceuticals Inc. 1998 Employee Share Option and Restricted Share Plan, as amended (the "Plan"). This letter is furnished to you pursuant to the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. Section 229.601(b)(5) in connection with such registration. For purposes of this opinion letter, we have examined copies of the following documents: 1. An executed copy of the Registration Statement. 2. The Certificate of Incorporation of the Company with amendments thereto, as certified by the Secretary of State of the State of Delaware on February 11, 2000, and as certified by the Secretary of the Company on the date hereof as being complete, accurate and in effect. 3. The Bylaws of the Company, as certified by the Secretary of the Company on the date hereof as being complete, accurate and in effect. 4. The Plan as adopted by the Board of Directors of the Company and as certified by the Secretary of the Company on the date hereof as being complete, accurate and in effect. 5. Resolutions of the Board of Directors of the Company adopted on February 17, 1998 and February 23, 1999, as certified by the Secretary of the Company on the date hereof as being complete, accurate and in effect, relating to, among other things, the approval of the Plan and the filing of the Registration Statement. 6. A certificate of certain officers of the Company, dated the date hereof, as to certain facts relating to the Company. In our examination of the aforesaid documents, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the accuracy and completeness of all documents submitted to us, the authenticity of all original documents and the conformity to authentic original documents of all documents submitted to us as copies (including telecopies). This opinion letter is given, and all statements herein are made, in the context of the foregoing. This opinion letter is based as to matters of law solely on the Delaware General Corporation Law, and we express no opinion as to any other laws, statutes, ordinances, rules or regulations. As used herein, the term "Delaware General Corporation Law, as amended" includes the statutory provisions contained therein, all applicable provisions of the Delaware Constitution and reported judicial decisions interpreting these laws. 2 Based upon, subject to and limited by the foregoing, we are of the opinion that following (i) effectiveness of the Registration Statement, (ii) issuance and delivery of the Shares pursuant to the terms of the Plan and in the manner contemplated by the Registration Statement and (iii) receipt by the Company of the consideration (the form of which is accordance with applicable law) for the Shares, the Shares will be validly issued, fully paid and non-assessable. We assume no obligation to advise you of any changes in the foregoing subsequent to the delivery of this opinion letter. This opinion letter has been prepared for your use in connection with filing of the Registration Statement and speaks as of the date hereof. We hereby consent to the filing of this opinion letter as Exhibit 5 to the Registration Statement. In giving this consent, we do not thereby admit that we are an "expert" within the meaning of the Securities Act of 1933, as amended. SINCERELY YOURS, HOGAN & HARTSON L.L.P. EX-23.2 4 CONSENT OF KPMG LLP 1 EXHIBIT 23.2 CONSENT OF INDEPENDENT AUDITORS THE BOARD OF DIRECTORS GUILFORD PHARMACEUTICALS INC. We consent to the use of our report incorporated herein by reference in the Form S-8 of Guilford Pharmaceuticals Inc. /s/ KPMG LLP PHILADELPHIA, PENNSYLVANIA FEBRUARY 16, 2000 -----END PRIVACY-ENHANCED MESSAGE-----