© 2001 | EDGAR Online, Inc.
DELAWARE 63-0819773
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3140 PELHAM PARKWAY
PELHAM, ALABAMA 35124
(Address of Principal Executive Offices)
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Proposed Proposed
maximum maximum
Title of securities Amount to be offering price aggregate Amount of
to be registered registered per unit offering price registration fee
-------------------- ------------ -------------- -------------- ----------------
Common 460,000(1) $1.00(2) $460,000(2) $115.00
Stock, par
value $.10 per
share
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(1) Consists of shares of Common Stock to be offered pursuant to the Moore-Handley, Inc. 2001 Incentive Compensation Plan (the "Plan"). Such indeterminate number of additional shares as may be issuable pursuant to the recapitalization provisions under the Plan is hereby also registered.
(2) Computed pursuant to Rule 457(h) solely for the purpose of determining the registration fee, based upon an assumed price of $1.00 per share, which was the average of the bid and ask prices of Moore-Handley, Inc. common shares on May 2, 2001, as reported on the NASDAQ Stock Market.
Item 3. Incorporation of Documents by Reference
Incorporated by reference in this Registration Statement are the following documents heretofore filed by Moore-Handley, Inc. (the "Company") with the Securities and Exchange Commission (the "Commission") pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"):
a. The Company's latest annual report filed pursuant to Sections 13(a) or 15(d) of the Exchange Act;
b. All other reports filed by the Company pursuant to sections 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the annual report referred to in (a) above; and
c. The description of the Company's Common Stock, par value $.10 per share (the "Common Stock"), contained in a registration statement filed under the Exchange Act, and any amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a post-effective amendment that indicates that all securities offered hereby have been sold or that deregisters all such securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the dates of filing of such documents.
Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein (or in any other subsequently filed document which also is incorporated or deemed to be incorporated by reference herein) modified or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.
Item 4. Description of Securities
None.
Item 6. Indemnification of Directors and Officers
The Delaware General Corporation Law (the "Delaware Law")
permits a Delaware corporation to include a provision in its Certificate of
Incorporation, and the Company's Restated Certificate of Incorporation so
provides, eliminating or limiting the personal liability of a director to the
Corporation or its Stockholders for monetary damages for breach of fiduciary
duty as a director, provided that such provision may not eliminate or limit the
liability of a director (i) for any such of the director's duty of loyalty to
the corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the Delaware Law which makes directors personally
liable for unlawful dividends or unlawful stock repurchases or redemptions.
Under Delaware law, directors and officers may be indemnified against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement in
connection with any threatened, pending or completed action, suit or proceeding
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation (a "derivative action")) if they acted in
good faith and in a manner they reasonably believed to be in or not opposed to
the best interest of the Company and, with respect to any criminal action or
proceeding, had no reasonable cause to believe their conduct was unlawful. In
derivative actions, indemnification extends only to expenses (including
attorneys' fees) incurred in connection with defense or settlement of such an
action and, in the event such person shall have been adjudged to be liable to
the corporation, only to the extent that a proper court shall have determined
that such person is fairly and reasonably entitled to indemnity for such
expenses.
The Company's Restated Certificate of Incorporation provides, among other things, that each person who was or is made a party to, or is threatened to be made a party to, or is involved in, any action, suit or proceeding by reason of the fact that he is the legal representative, or is or was a director or officer of the Company (or was serving at the request of the Company as a director, officer, employee or agent for another entity) while serving in such capacity, shall be indemnified and held harmless by the Company to the full extent authorized by the Delaware Law, as in effect (or, to the extent indemnification is broadened, as it may be amended), against all expenses, liability or loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amount to be paid in settlement) reasonably incurred by such person in connection therewith. The Company's Restated Certificate of Incorporation also provides that the right of indemnification conferred to the director, officer or legal representative by the Company's Restated Certificate of Incorporation shall include the right to be paid by the Company for expenses in defending the proceedings specified above, in advance of their
The Company maintains directors' and officers' reimbursement and liability insurance pursuant to standard form policies. The risks covered by such policies include certain liabilities under the securities law.
Item 7. Exemption from Registration Claimed
Item 8. Exhibits
An Exhibit Index, containing a list of all exhibits filed with this registration statement, is included on page 9.
Item 9. Undertakings
(a) Rule 415 Offering. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any Prospectus required by section 10(a)(3) of the Securities Act, unless the information is contained in periodic reports filed by the Registrant pursuant to section 13 or section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement;
(ii) To reflect in the Prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement, unless the information is contained in periodic reports filed by the Registrant pursuant to section 13 or section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement;
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) Subsequent Exchange Act Documents. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to section 13(a) or section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Indemnification. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
The Registrant. Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Pelham, Alabama on the 7th day of May, 2001.
By: /s/ Judi Watson
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Judi Watson
Treasurer
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Each person whose signature appears below does hereby make, constitute and appoint William Riley and Judi Watson and each of them, with full power to act without the other, his true and lawful attorney-in-fact and agent, in his name, place and stead to execute on his behalf, as a director of Moore-Handley, Inc. (the "Company"), the Registration Statement of the Company on Form S-8 (the "Registration Statement") for the registration of shares of the Company's common stock, par value $.10 ("Common Stock"), in connection with the Moore-Handley, Inc. 2001 Incentive Compensation Plan and any and all amendments (including post-effective amendments) to the Registration Statement, and file the same with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission (the "SEC") pursuant to the Securities Act of 1933 (the "Act"), and any and all other instruments which either of said attorneys-in-fact and agents deems necessary or advisable to enable the Company to comply with the Act, the rules, regulations and requirements of the SEC in respect thereof, and the securities or Blue Sky laws of any State or other governmental subdivision, giving and granting to each of said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing whatsoever necessary or appropriate to be done in and about the premises as fully to all intents as he might or could do if personally present at the doing thereof, with full power of substitution and resubstitution, hereby ratifying and confirming all that his said attorneys-in-fact and agents or substitutes may or shall lawfully do or cause to be done by virtue hereof.
Signatures Title Date
---------- ----- ----
Chairman of the Board, May 02, 2001
/s/ William Riley Director and Chief
-------------------------- Executive Officer
William Riley (Principal Executive
Officer)
Treasurer May 02, 2001
/s/ Judi Watson
--------------------------
Judi Watson
Director May 02, 2001
/s/ Michael J. Gaines
--------------------------
Michael J. Gaines
Director May 02, 2001
/s/ Pierce E. Marks, Jr.
--------------------------
Pierce E. Marks, Jr.
Director May 02, 2001
Michael B. Stubbs
--------------------------
Michael B. Stubbs
Director May 02, 2001
Michael Palmer
--------------------------
Michael Palmer
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Exhibit No. Description of Exhibit
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4.1 Specimen Certificate of Common Stock, $.10 par value per
share, of the Company (incorporated by reference to the
relevant exhibit to the Company's Registration Statement on
Form S-1 (Registration No. 33-3032)).
4.2 Restated Certificate of Incorporation of the Company
(incorporated by reference to the Company's Annual Report on
Form 10-K for the year ended December 31, 1987).
4.3 Bylaws of the Company (incorporated by reference to the
Company's Registration Statement on Form S-1 (Registration No.
33-3032)), as amended on May 7, 1987 (incorporated by
reference to the Company's Annual Report on Form 10-K for the
ended December 31, 1987).
5 Opinion of Debevoise & Plimpton (filed herewith).
23.1 Consent of Ernst & Young LLP (filed herewith).
23.2 Consent of Debevoise & Plimpton (included in Exhibit 5).
24 Powers of Attorney (filed herewith - see pages 7-8 of the
Registration Statement).
99 Moore-Handley, Inc. 2001 Incentive Compensation Plan (filed herewith).
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Dear Sirs:
We have acted as counsel to Moore-Handley, Inc., a Delaware corporation (the "Company"), in connection with the filing by the Company of a Registration Statement on Form S-8 (the "Registration Statement") relating to 460,000 shares of the Company's common stock, par value $.10 per share (the "Common Stock"), to be issued pursuant to the Moore-Handley, Inc. 2001 Incentive Compensation Plan (the "Plan").
We have examined the originals, or copies certified or otherwise identified to our satisfaction, of the Plan and such other corporate records, documents, certificates or other instruments as in our judgment are necessary or appropriate to enable us to render the opinion set forth below.
Based on the foregoing, we are of the opinion that authorized but not previously issued shares of Common Stock which may be issued under the Plan have been duly authorized and when issued in accordance with the terms of the Plan will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the Company's Registration Statement. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act of 1933 or the rules and regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Debevoise & Plimpton ------------------------ Debevoise & Plimpton |
We consent to the incorporation by reference in the Registration Statement on Form S-8 pertaining to the Moore-Handley, Inc. 2001 Incentive Compensation Plan of our report dated February 18, 2001, with respect to the financial statements of Moore-Handley, Inc. included in the Annual Report (Form 10-K) for the year ended December 31, 2000.
/s/ Ernst & Young LLP --------------------- ERNST & YOUNG LLP |
Birmingham, Alabama
May 02, 2001
SECTION 1. Purpose.
The purpose of the Plan is to enable the Company to attract, retain and reward key employees of the Company and its Subsidiaries, and strengthen the mutuality of interests between such key employees and the Company's shareholders.
SECTION 2. Definitions.
For purposes of the Plan, the following terms shall be defined as set forth below:
(a) "Act" means the Securities Exchange Act of 1934, as amended.
(b) "Board" means the Board of Directors of the Company.
(c) "Cause" means a felony conviction of a participant or the failure of a participant to contest prosecution for a felony, or a participant's willful misconduct or dishonesty, any of which is directly and materially harmful to the business or reputation of the Company or any Subsidiary.
(d) "Change in Control" means the happening of any of the following:
(i) after the date of adoption of this Plan, any person, including a "group" as defined in Section 13(d) of the Act, but excluding the Company and any Subsidiary and any employee benefit plan sponsored or maintained by the Company or any Subsidiary, becomes the beneficial owner, directly or indirectly, of Stock representing 20% or more of the combined voting power of the Stock (other than any person, including any such group, which beneficially owned Stock representing 20% or more of such voting power prior to the date of adoption hereof);
(ii) the commencement or announcement of a tender offer for a majority of the Stock;
(iii) during any period of 24 consecutive months, the individuals who at the beginning of such period constitute the Board (the "Incumbent Directors") cease to constitute at least a majority thereof, provided that a director who was not a director at the beginning of such 24-month period shall be deemed to be an Incumbent Director if such director was elected (other than as a result of any
(iv) the approval by shareholders of (x) an agreement for
the acquisition of the Company by an entity other than a Subsidiary
through the purchase of stock or assets, or by merger, or otherwise, or
(y) the liquidation of the Company.
(e) "Change in Control Price" means the highest price per share paid or offered in any bona fide transaction related to a Change in Control of the Company at any time during the 60-day period immediately preceding the occurrence of the Change in Control.
(f) "Code" means the Internal Revenue Code of 1986, as amended from time to time.
(g) "Committee" means the Compensation Committee of the Board or such other committee of the Board as the Board shall designate from time to time, which committee shall consist of two or more members. Each of the Committee members shall be a Non-Employee Director within the meaning of Rule 16b-3, as promulgated under the Act, and an "outside director" within the meaning of section 162(m) of the Code and the Treasury Regulations promulgated thereunder.
(h) "Company" means Moore-Handley, Inc., a corporation organized under the laws of the State of Delaware, or any successor corporation.
(i) "Deferred Stock" means an award representing the right to receive Stock at the end of a specified deferral period.
(j) "Fair Market Value" means, as of any given date, unless otherwise determined by the Committee in good faith, the closing sale price of the Stock on the National Association of Securities Dealers Automatic Quotation System ("NASDAQ") (or the closing sale price on the principal Stock exchange on which the Stock is listed) on such date, provided that if no sale of Stock occurs on such date, such determination shall be made as of the next preceding trading day on which sales of Stock occurred.
(k) "Family Member" means, as to an optionholder, any (i) child, stepchild, grandchild, parent, stepparent, grandparent, spouse, sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law (including adoptive relationships), of such optionholder, (ii) trusts for the exclusive benefit of such persons and (iii) other entity owned solely by such persons.
(m) "Non-Employee Director" means a director who is a "Non-Employee Director" within the meaning Rule 16b-3, as promulgated under the Act.
(n) "Non-Qualified Stock Option" means any Stock Option that is not an Incentive Stock Option.
(o) "Plan" means this Moore-Handley, Inc. 2001 Incentive Compensation Plan, as set forth herein and as may be amended from time to time.
(p) "Restricted Stock" means an award of shares of Stock that is subject to the restrictions on transfer set forth in Section 6.
(q) "Special Option" means an option to purchase shares of Stock granted automatically under the Plan pursuant to Section 8 to a Non-Employee Director.
(r) "Stock" means the common stock, $.10 par value per share, of the Company.
(s) "Stock Option" means any option to purchase shares of Stock
(including Restricted Stock and Deferred Stock, if the Committee so determines)
granted pursuant to Section 5 below and any Special Option.
(t) "Subsidiary" means any corporation (other than the Company) in an unbroken chain of corporations beginning with the Company if each of the corporations (other than the last corporation in the unbroken chain) owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in the chain.
SECTION 3. Shares Authorized.
There shall be 460,000 shares of Stock available for issuance under the Plan. Such shares may consist, in whole or in part, of authorized and unissued shares or treasury shares. If any shares of Stock that have been optioned cease to be subject to a Stock Option, or if any Restricted Stock or Deferred Stock award granted hereunder is forfeited or any such award or Stock Option otherwise terminates without a payment being made to the participant in cash or Stock, such shares shall again be available for distribution in connection with future awards under the Plan.
In the event of any merger, reorganization, consolidation, recapitalization, stock dividend, stock split or other change in corporate structure affecting the Stock, such
SECTION 4. Eligible Participants.
Non-Employee Directors shall be eligible for grants of Special Options. The Committee shall select the key employees of the Company and its Subsidiaries who are eligible to receive a grant or award under the Plan other than a Special Option. During any 12 month period, no individual optionholder may be granted or awarded Stock Options, Restricted Stock or Deferred Stock with respect to more than 100,000 shares of Stock.
SECTION 5. Stock Options for Employees.
(a) Grants. The Committee shall have the authority to grant to any eligible employee Incentive Stock Options, Non-Qualified Stock Options, or both types of Stock Options. Options granted under the Plan shall be subject to the terms and conditions set forth in this Section 5 and shall contain such additional terms and conditions, not inconsistent with the terms of the Plan, as the Committee shall deem desirable.
(b) Option Price. The option price per share of Stock purchasable under a Stock Option shall be determined by the Committee at the time of grant but shall be not less than 50% of the Fair Market Value of the Stock on the date of grant in the case of a Non-Qualified Stock Option and shall not be less than 100% of the Fair Market Value of the Stock on the date of grant in the case of an Incentive Stock Option.
(c) Term and Exercisability. The term of each Stock Option shall be fixed by the Committee, but no Stock Option shall be exercisable more than ten years after the date the Option is granted. Stock Options shall be exercisable at such time or times and subject to such terms and conditions as shall be determined by the Committee at or after grant. If any Stock Option is initially exercisable only in installments, the Committee may waive such installment exercise provisions, in whole or in part, at any time at or after grant.
(d) Method of Exercise. Stock Options which have become exercisable may be exercised in whole or in part at any time during the option period, by giving written
(e) Termination by Reason of Death or Disability. If an optionee's employment terminates by reason of his death or disability (as determined by the Committee on the basis of uniform rules, guidelines or procedures), any Stock Option held by such optionee may thereafter be exercised to the extent it was exercisable at the time of termination, or on such accelerated basis as the Committee may determine at or after grant, for a period of three years (or such shorter period as the Committee may specify at grant) from the date of such termination of employment or until the expiration of the stated term of such Stock Option, whichever period is shorter.
(f) Termination by Reason of Retirement. If an optionee's employment with the Company and any Subsidiary terminates by reason of his retirement at or after age 65 or, with the Committee's prior consent, pursuant to the early retirement provisions of any retirement plan sponsored by the Company or a Subsidiary, any Stock Option held by such optionee may thereafter be exercised to the extent it was exercisable at the time of such retirement, or on such accelerated basis as the Committee may determine at or after grant, for a period of three years (or such shorter period as the Committee may specify at grant) from the date of such termination of employment or until the expiration of the stated term of such Stock Option, whichever period is shorter.
(g) Death Following Termination Due to Disability or Retirement. If an optionee dies following the termination of his employment due to disability or on account of his retirement and during the period in which he may exercise a Stock Option pursuant to Section 5(e) or 5(f), any unexercised Stock Option held by such optionee shall thereafter be exercisable to the extent to which it was exercisable at the time of his death for a period of one year from the date of his death or until the expiration of the stated term of such Stock Option, whichever period is shorter.
(i) Incentive Stock Options. Anything in the Plan to the contrary notwithstanding, no term of this Plan relating to Incentive Stock Options shall be interpreted, amended or altered, nor shall any discretion or authority granted under the Plan be exercised, so as to disqualify the Plan under Section 422 of the Code, or, without the consent of the optionee(s) affected, to disqualify any Incentive Stock Option under such Section 422 (other than in connection with the cancellation of Stock Options pursuant to Section 9(a) below).
(j) Exchange Provisions. The Committee may offer a participant the right to exchange any previously granted Stock Option for a cash payment or for a new Stock Option, including a new Stock Option having a lower option exercise price.
SECTION 6. Restricted Stock.
(a) Awards. The Committee shall determine the eligible employees to whom, and the time or times at which, grants of Restricted Stock will be made, the number of shares to be awarded, the price (if any) to be paid by the recipient of Restricted Stock (subject to Section 6(b)), the time or times within which such awards may be subject to forfeiture, and all other terms and conditions of the awards. The provisions of Restricted Stock awards need not be the same with respect to each recipient.
(b) Restrictions and Conditions. The shares of Restricted Stock awarded pursuant to this Section 6 shall be subject to the following restrictions and conditions:
(i) Awards of Restricted Stock must be accepted within a period of 60 days (or such shorter period as the Committee may specify at grant) after the award date, by executing a Restricted Stock Award Agreement and paying the purchase price, if any, for such shares of Restricted Stock, which shall be equal to or less than their par value and may be zero.
(ii) Subject to the provisions of this Plan and the award agreement, during a period set by the Committee commencing with the date of such award (the "Restriction Period"), the participant shall not be permitted to sell, transfer, pledge or assign shares of Restricted Stock awarded under the Plan. Within these limits, the Committee, in its sole discretion, may provide for the lapse of such restrictions in installments and may accelerate or waive such restrictions in whole
(iii) Except as expressly provided in the Plan, or as otherwise determined by the Committee and set forth in a participant's award agreement, a recipient of Restricted Stock shall have all of the rights of a shareholder of the Company, including the right to vote the shares, and the right to receive any cash dividends. The Committee, in its sole discretion, as determined at the time of award, may permit or require the payment of cash dividends to be deferred and, if the Committee so determines, reinvested in additional Restricted Stock to the extent shares are available under Section 3. Stock dividends issued with respect to Restricted Stock shall be treated as additional shares of Restricted Stock that are subject to the same restrictions and other terms and conditions that apply to the shares with respect to which such dividends are issued.
(iv) Unless otherwise determined by the Committee at the time of grant, upon termination of a participant's employment with the Company and any Subsidiary for any reason during the Restriction Period, all shares still subject to restriction will vest, or be forfeited, under rules comparable to those relating to the exercisability of options as set forth in Sections 5(e) through 5(h).
SECTION 7. Deferred Stock.
(a) Awards. The Committee shall determine the eligible employees to whom, and the time or times at which, Deferred Stock shall be awarded, the number of shares of Deferred Stock to be awarded, the duration of the period (the "Deferral Period") during which, and the conditions under which, receipt of the Stock will be deferred, and the other terms and conditions of the award in addition to those set forth in Section 7(b). Each award shall be confirmed by, and subject to the terms of, a Deferred Stock agreement executed by the Company and the participant. The provisions of Deferred Stock awards need not be the same with respect to each recipient.
(b) Terms and Conditions. The shares of Deferred Stock awarded pursuant to this Section 7 shall be subject to the following terms and conditions:
(i) Subject to the provisions of this Plan and the award agreement, Deferred Stock awards may not be sold, transferred, pledged or assigned during the Deferral Period. At the expiration of the Deferral Period, certificates shall be delivered to the participant, or his legal representative, for a number of shares of Stock equal to the Deferred Stock award.
(ii) Unless otherwise determined by the Committee at grant, amounts equal to any dividends declared during the Deferral Period with respect to the
(iii) Unless otherwise determined by the Committee at the time of grant, upon termination of a participant's employment with the Company and any Subsidiary for any reason during the Deferral Period for a given award, the Deferred Stock in question will vest, or be forfeited, under rules comparable to those relating to the exercisability of options as set forth in Sections 5(e) through 5(h).
(iv) Based on such factors or criteria as the Committee may determine, the Committee may, at or after grant, accelerate the vesting of all or any part of any Deferred Stock award and/or waive the deferral limitations for all or any part of such award.
SECTION 8. Directors' Special Options.
On the day after each annual meeting of stockholders of the Company occurring during the term of the Plan and commencing with the 2001 annual meeting, there shall be granted (without any action or exercise of any discretion on the part of the Committee) to each Non-Employee Director a Non-Qualified Stock Option to purchase 2000 shares of Stock. Each such Special Option granted under this Section 8 (i) shall have an exercise price equal to the Fair Market Value of the Stock on the date of grant, payable in cash or cash equivalents at the time of exercise, (ii) shall be immediately exercisable as to all shares of Stock covered thereby as of the date of grant, and (iii) shall terminate, if not previously exercised, on the tenth anniversary of the date of grant or, if earlier, the third anniversary of the date the Outside Director ceases to be a director of the Company.
(a) Accelerated Vesting and Payment. Subject to the provisions of
Section 9(b), in the event of a Change in Control, (i) each Stock Option shall
be fully exercisable regardless of the exercise schedule otherwise applicable to
such Stock Option and, in connection with such a Change in Control, the
Committee may, in its discretion, provide that each Stock Option shall, upon the
occurrence of such Change in Control, be canceled in exchange for a payment in
an amount equal to the excess, if any, of the Change in Control Price over the
exercise price for such Stock Option and (ii) the restrictions and deferral
limitations applicable to any Restricted Stock and Deferred Stock not already
vested shall lapse and such shares and awards shall be deemed fully vested.
(b) Alternative Awards. Notwithstanding Section 9(a), no cancellation, acceleration of exercisability, vesting, cash settlement or other payment shall occur with respect to any Stock Option, Restricted Stock or Deferred Stock awards if the Committee reasonably determines in good faith prior to the occurrence of a Change in Control that such awards shall be honored or assumed, or new rights substituted therefor (such honored, assumed or substituted award hereinafter called an "Alternative Award"), by a participant's employer (or the parent or an affiliate of such employer) immediately following the Change in Control; provided that any such Alternative Award must:
(i) be based on stock which is traded on an established securities market, or that the Committee reasonably believes will be so traded within 60 days after the Change in Control;
(ii) provide such participants with rights and entitlements substantially equivalent to or better than the rights, terms and conditions applicable under such existing award, including, but not limited to, an identical or better exercise or vesting schedule and identical or better timing and methods of payment;
(iii) have substantially equivalent economic value to such existing award (determined at the time of the Change in Control); and
(iv) have terms and conditions which provide that in the event that the participant's employment is involuntarily terminated or constructively terminated, any conditions on an participant's rights under, or any restrictions on transfer or exercisability applicable to, each such Alternative Award shall be waived or shall lapse, as the case may be.
For purposes of this Section 9(b), a constructive termination shall mean a termination of employment by an optionholder following a material reduction in the participant's base salary or incentive compensation opportunity or a material reduction in the participant's responsibilities, in either case without the participant's written consent.
The Plan shall be administered by the Committee. The Committee shall have the authority to (i) adopt, alter and repeal such rules, guidelines and practices governing the Plan as it shall deem advisable; (ii) interpret the terms and provisions of the Plan and any award issued under the Plan and any agreements relating thereto; and (iii) supervise the administration of the Plan. All decisions made by the Committee pursuant to the provisions of the Plan shall be made in the Committee's sole discretion and shall be final and binding on all persons, including the Company and Plan participants.
SECTION 11. Amendments and Termination.
The Board may amend, alter, or discontinue the Plan, but no amendment, alteration, or discontinuation shall be made which would impair the rights of an optionee or participant under any outstanding Stock Option, Restricted Stock award or Deferred Stock award without the optionee's or participant's consent, or which, without the approval of the Company's stockholders, would:
(a) except as expressly provided in this Plan, increase the total number of shares of Stock issuable under the Plan;
(b) decrease the option price of any Stock Option to less than 50% of the Fair Market Value on the date of grant;
(c) materially change the employees or class of employees eligible to participate in the Plan; or
(d) extend the maximum option period under Section 5(c) of the Plan.
The Committee may amend the terms of any Stock Option or other award theretofore granted, prospectively or retroactively, but, subject to Section 3, no such amendment shall impair the rights of any holder without the holder's consent.
SECTION 12. General Provisions.
(a) Investment Representation. The Committee may require each person purchasing shares pursuant to a Stock Option to represent to and agree with the Company in writing that the optionee is acquiring the shares without a view to distribution thereof. All certificates for shares of Stock or other securities delivered under the Plan shall be subject to such stop-transfer orders and other restrictions as the Committee may deem advisable under the rules, regulations, and other requirements of the Securities and Exchange Commission, NASDAQ or any stock exchange upon which the Stock is then
(b) Transferability of Options. No Stock Option or other award made hereunder shall be transferable by the optionee otherwise than by will or by the laws of descent and distribution, and all Stock Options shall be exercisable, during the optionee's lifetime, only by the optionee or his guardian or legal representative provided that the Committee may, in a Stock Option agreement or otherwise, permit transfers of Non-Qualified Stock Options to Family Members (including, without limitation, transfers effected by a domestic relations order).
(c) No Right to Continued Employment. Neither the adoption of the Plan nor any grant or award thereunder shall confer upon any employee of the Company or any Subsidiary any right to continued employment nor shall it interfere in any way with the right of the Company or a Subsidiary to terminate the employment of any of its employees at any time.
(d) Tax Withholding. No later than the date as of which an amount first becomes includible in the gross income of the participant for Federal income tax purposes with respect to any award under the Plan, the participant shall pay to the Company, or make arrangements satisfactory to the Committee regarding the payment of, any Federal, state or local taxes of any kind required by law to be withheld with respect to such amount. Unless otherwise determined by the Committee, withholding obligations may be settled with Stock, including Stock that is part of the award that gives rise to the withholding requirement. The obligations of the Company under the Plan shall be conditioned upon such payment or arrangements, and the Company and its Subsidiaries shall, to the extent permitted by law, have the right to deduct any such taxes from any payment of any kind otherwise due to the participant.
(e) Governing Law. The Plan and all awards made and actions taken thereunder shall be governed by and construed in accordance with the laws of the State of Delaware.
SECTION 13. Term of the Plan.
The Plan shall be effective as of_____________ , 2001, subject to the approval of the Plan by the affirmative votes of the holders of a majority of the shares of Stock present or represented by proxy and entitled to vote at the annual meeting of stockholders of the Company in 2001. Any grants or awards made under the Plan prior to such approval shall be effective when made (unless otherwise specified by the Committee at the time of grant), but shall be conditioned on, and subject to, such approval of the Plan by such shareholders. No Stock Option, Restricted Stock award or Deferred Stock award shall be granted hereunder after _____________, 2011.