þ | Filed by the Registrant | |
o | Filed by a Party other than the Registrant |
o | Preliminary Proxy Statement | |
o | Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2)) | |
þ | Definitive Proxy Statement | |
o | Definitive Additional Materials | |
o | Soliciting Material Under Rule 14a-12 |
þ | No fee required | |
o | Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11. |
1) | Title of each class of securities to which transaction applies: | ||
2) | Aggregate number of securities to which transaction applies: | ||
3) | Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined): | ||
4) |
Proposed maximum aggregate value of transaction:
|
||
5) | Total fee paid: |
o | Fee paid previously with preliminary materials. | |
o | Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the form or schedule and the date of its filing. |
1) | Amount Previously Paid: | ||
2) | Form, Schedule or Registration Statement No.: | ||
3) | Filing Party: | ||
4) | Date Filed: |
1. | To elect eight (8) members of the Board of Directors to serve until the next Annual Meeting of Stockholders and until their respective successors have been duly elected and qualified; | |
2. | To approve the appointment of Grant Thornton LLP as independent auditors; | |
3. | To approve the Lannett 2006 Long-Term Incentive Plan; and | |
4. | To transact such other business as may properly come before the Annual Meeting or any adjournment thereof. |
December 22, 2006
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Philadelphia, Pennsylvania
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You may vote on matters to come before the meeting in two ways: | |||
| You may come to the Annual Meeting and cast your vote in person; | ||
| You may vote by signing and returning the enclosed proxy card by mail. If you do so, the individuals named on the card will vote your shares in the manner you indicate. You may revoke your proxy at any time prior to the Annual Meeting. |
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Table of Contents
Table of Contents
Table of Contents
Excluding Options | ||||||||||||||||||||||
and Debentures | Including Options (*) | |||||||||||||||||||||
Name and Address of | Number | Percent | Number | |||||||||||||||||||
Beneficial Owner | Office | of Shares | of Class | of Shares | Percent of Class | |||||||||||||||||
Directors/Executive Officers:
|
||||||||||||||||||||||
|
||||||||||||||||||||||
William Farber
9000 State Road |
Chairman of the
|
|||||||||||||||||||||
Philadelphia, PA 19136
|
Board | 13,619,129 | 1 | 56.38 | % | 13,698,296 | 2 | 55.38 | % | |||||||||||||
|
||||||||||||||||||||||
Arthur Bedrosian
|
President and
|
|||||||||||||||||||||
9000 State Road
|
Chief Executive
|
460,997 | 3 | 1.91 | % | 637,230 | 4 | 2.58 | % | |||||||||||||
Philadelphia, PA 19136
|
Officer | |||||||||||||||||||||
|
||||||||||||||||||||||
Ronald A. West
9000 State Road |
Vice Chairman | 7,310 | 0.03 | % | 48,925 | 5 | 0.20 | % | ||||||||||||||
Philadelphia, PA 19136
|
||||||||||||||||||||||
|
||||||||||||||||||||||
Jeffrey Farber
9000 State Road |
Director | 147,120 | 0.61 | % | 165,453 | 6 | 0.67 | % | ||||||||||||||
Philadelphia, PA 19136
|
||||||||||||||||||||||
|
||||||||||||||||||||||
Brian Kearns
9000 State Road |
Chief Financial
|
|||||||||||||||||||||
Philadelphia, PA 19136
|
Officer | 0 | 0.00 | % | 33,333 | 7 | 0.13 | % | ||||||||||||||
|
||||||||||||||||||||||
Bernard Sandiford
9000 State Road |
Vice President of
|
|||||||||||||||||||||
Philadelphia, PA 19136
|
Operations | 287 | 0.00 | % | 38,000 | 8 | 0.15 | % | ||||||||||||||
|
||||||||||||||||||||||
William Schreck
9000 State Road |
Vice President of
|
|||||||||||||||||||||
Philadelphia, PA 19136
|
Logistics | 0 | 0.00 | % | 21,745 | 9 | 0.09 | % | ||||||||||||||
|
||||||||||||||||||||||
Kevin Smith
|
Vice President of
|
|||||||||||||||||||||
9000 State Road
|
Sales and
|
|||||||||||||||||||||
Philadelphia, PA 19136
|
Marketing | 1,236 | 0.00 | % | 70,329 | 10 | 0.28 | % |
5
Excluding Options | ||||||||||||||||||||||
and Debentures | Including Options (*) | |||||||||||||||||||||
Name and Address of | Number | Percent | Number | |||||||||||||||||||
Beneficial Owner | Office | of Shares | of Class | of Shares | Percent of Class | |||||||||||||||||
Myron Winkelman
9000 State Road Philadelphia, PA 19136 |
Director | 1,000 | 0.00 | % | 29,333 | 11 | 0.12 | % | ||||||||||||||
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Albert Wertheimer
9000 State Road Philadelphia, PA 19136 |
Director | 1,000 | 0.00 | % | 14,334 | 12 | 0.06 | % | ||||||||||||||
|
||||||||||||||||||||||
All directors and
executive officers as |
14,238,079 | 58.95 | % | 14,756,978 | 59.66 | % | ||||||||||||||||
a group (10 persons)
|
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7
Age | Position | |||||
Directors:
|
||||||
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William Farber
|
75 | Chairman of the Board | ||||
|
||||||
Ronald A. West
|
72 | Vice Chairman of the Board, Director | ||||
|
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Arthur P. Bedrosian
|
61 | Director | ||||
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Jeffrey Farber
|
46 | Director | ||||
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Garnet Peck
|
76 | Director | ||||
|
||||||
Kenneth Sinclair
|
60 | Director | ||||
|
||||||
Albert Wertheimer
|
64 | Director | ||||
|
||||||
Myron Winkelman
|
69 | Director | ||||
|
||||||
Officers:
|
||||||
|
||||||
Arthur P. Bedrosian
|
61 | President and Chief Executive Officer | ||||
|
||||||
Brian J. Kearns
|
40 |
Vice President of Finance, Treasurer,
Secretary and Chief Financial Officer |
||||
|
||||||
Bernard Sandiford
|
77 | Vice President of Operations | ||||
|
||||||
Kevin Smith
|
46 | Vice President of Sales and Marketing | ||||
|
||||||
William Schreck
|
58 | Vice President of Logistics |
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9
10
11
12
13
14
15
16
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18
-1-
-2-
-3-
-4-
-5-
-6-
-7-
-8-
-9-
-10-
-11-
-12-
-13-
-14-
-15-
-16-
Long Term Compensation
Awards
(g)
Securities
Payouts
Annual Compensation
(e)
(f)
Under-
(h)
(i)
(a)
(b)
Other
Restricted
lying
LTIP
All Other
Name and Principal
Fiscal
(c)
(d)
Annual
Stock
Options/
Payouts
Compensation
Position
Year
Salary
1
Bonus
Compensation
Award(s)
SARs
Amount
Amounts
2006
$
278,641
$
92,970
$
0
0
25,000
$
0
$
3,003
2005
236,709
168,750
0
0
0
0
0
2004
212,548
240,000
0
0
177,900
0
0
2006
193,572
20,712
0
0
0
0
1,526
2005
47,115
0
0
0
100,000
0
0
2004
0
0
0
0
0
0
0
2006
178,883
54,898
0
0
12,000
0
5,146
2005
140,932
58,500
0
0
0
0
0
2004
159,440
78,000
0
0
0
0
0
2006
169,134
60,000
0
0
12,000
0
6,604
2005
140,862
73,750
0
0
0
0
0
2004
103,927
37,500
0
0
0
0
0
2006
191,810
66,895
0
0
12,000
0
6,212
2005
171,578
95,518
0
0
0
0
0
2004
160,488
158,410
0
0
0
0
0
1
Includes car allowance, and for Bernard Sandiford, salary contains apartment
allowance.
2
On May 5, 2002, Mr. Bedrosian was elected President of the Company. On January 3,
2006, Mr. Bedrosian was promoted to President and Chief Executive Officer.
3
Brian Kearns was hired March 14, 2005 as Chief Financial Officer.
Table of Contents
Potential Realizable
Value at Assumed Annual
Rates of
Number of
Percent of Total
Stock Price
Securities
Options Granted
Exercise
Appreciation for Option
Underlying Options
to Employees in
Price
Expiration
Term (2)
Name
Granted (#)(1)
Fiscal Year
($/Sh)
Date
5%
10%
25,000
23
%
$
8.00
1/18/2016
$
125,779
$
318,748
0
0
%
12,000
11
%
5.18
10/25/2015
39,092
99,067
12,000
11
%
5.18
10/25/2015
39,092
99,067
12,000
11
%
5.18
10/25/2015
39,092
99,067
(1)
Options granted in fiscal year 2006 are scheduled to vest and become
exercisable in yearly increments of 33% with full vesting occurring in
three years. Options expire ten years after grant under the terms of
the Companys Plan.
(2)
Amount reflects the potential realizable value at assumed annual rate
of appreciation for the option term based on a market value of
underlying shares of common stock on the date of grant less the
exercise price.
AND FISCAL YEAR-END OPTION VALUES
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(e)
Value of
Unexercised
(d)
In-the-Money
(b)
Number of Securities
Options at
Shares
Underlying Unexercised
FY-End
Acquired
(c)
Options at FY-End
Exercisable/
(a)
On
Value
Exercisable/
Unexercisable
Name
Exercise
Realized
Unexercisable
(1)
President and Chief
156,900 /
$
19,020/
0
$
0
46,000
$
0
Chief Financial Officer,
33,333 /
0 /
0
0
66,667
0
30,380 /
0 /
0
0
19,500
6,120
17,745 /
0 /
0
0
12,000
6,120
Vice President of Sales and
60,760 /
0 /
0
0
23,000
6,120
(1)
Amounts reflect the market value of the underlying
shares of Common Stock on June 30, 2006 $5.69, less the
exercise price.
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Attract and retain quality talent, which is critical to both the short-term and
long-term success of the Company.
Support strategic performance objectives through the use of compensation programs.
Create a mutuality of interest between executive officers and stockholders through
compensation structures that share the rewards and risks of strategic decision-making.
Table of Contents
Ronald West
Albert Wertheimer, Ph. D.
Myron Winkelman
AMONG LANNETT COMPANY, INC., THE RUSSELL 2000 INDEX
AND THE RDG MICROCAP PHARMACEUTICAL INDEX
*
$100 invested on 6/30/01 in stock or index-including reinvestment of dividends. Fiscal year ending June 30.
Table of Contents
Table of Contents
Ronald West
Albert Wertheimer, Ph. D.
Table of Contents
Audit Fees
Audit-Related (1)
Tax Fees (2)
All Other Fees (3)
Total Fees
$
282,000
$
$
43,209
$
56,217
$
381,426
$
260,500
$
2,850
$
52,475
$
53,895
$
369,720
$
92,124
$
5,000
$
29,621
$
38,325
$
165,070
and various tax planning services. Fiscal 2006
and 2005 include fees paid to Grant Thornton for services rendered during an IRS audit.
Table of Contents
LANNETT COMPANY, INC.
Table of Contents
Please be sure to sign and date
this Proxy in the box below.
Date
Stockholder
sign above
Co-holder
(if any) sign above
+
é
Detach above card, sign, date and mail in postage paid envelope provided.
é
LANNETT COMPANY, INC.
Please sign your name exactly as it appears hereon. Joint owners must
each sign. When signing as attorney, executor, administrator, trustee or guardian, please
give your full title as it appears thereon.
PLEASE ACT PROMPTLY
SIGN, DATE & MAIL YOUR PROXY CARD TODAY
IF YOUR ADDRESS HAS CHANGED, PLEASE CORRECT THE ADDRESS IN THE SPACE PROVIDED
BELOW AND RETURN THIS PORTION WITH
THE PROXY IN THE ENVELOPE PROVIDED.
Table of Contents
2006 Long-Term Incentive Plan
a.
Applicable Laws
means the legal requirements relating to the
administration of stock option plans and restricted stock plans, if any, under
applicable provisions of federal securities laws, state corporate and securities laws,
the Code, the rules of any applicable stock exchange or national market system, and
the rules of any foreign jurisdiction applicable to Options or Restricted Stock
granted to residents therein.
b.
Board means the Board of Directors of the Corporation.
c.
Cause
means, that such termination is for Cause as such term is
expressly defined in a then-effective written agreement between the Plan Participant
and the Company or a Related Entity; in the absence of such then-effective written
agreement or definition Cause is based on, in the determination of the Committee,
any act or omission of Plan Participant that would constitute cause for the purposes
of the applicable common law, including without limitation the Plan Participants:
(i) refusal or failure to act in accordance with any specific, lawful direction or
order of the Company or an affiliated Company or a Related Entity; (ii) unfitness or
unavailability for service or unsatisfactory performance (other than as a result of
Disability); (iii) performance of any act or failure to perform any act in bad faith
and to the detriment of the Company or a Related Entity; (iv) dishonesty, intentional
misconduct or material breach of any agreement with the Company or a Related Entity;
or (v) commission of a crime involving dishonesty, breach of trust, or physical or
emotional harm to any person. No Option issued to the Plan Participant under the Plan
may be exercised or purchased, and no Restricted Stock shall vest, subsequent to the
Plan Participants receipt of notice from the Company or a Related Entity of the
Companys or Related Entitys intention to terminate the Plan Participants employment
pursuant to (i) or (ii) above.
d.
Code means the Internal Revenue Code of 1986, as amended from time to time,
and any successor thereto, and all applicable, rules regulations and notices published
by the U.S. Department of Treasury thereunder that are in effect at the
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e.
Committee means the Compensation Committee of the Board, or such other
Committee of the Board as determined by the Board referred to in Section 2 of the
Plan. If at any time no Committee shall be in office, then the functions of the
Committee specified in the Plan shall be exercised by the Board.
f.
Corporate Transaction means any of the following transactions:
(i)
a merger or consolidation in which the Corporation is not the
surviving entity and which results in a greater than fifty percent (50%)
change in ownership of the Corporation, except for a transaction the principal
purpose of which is to change the state, territory, province or country in
which the Corporation is incorporated;
(ii)
the sale, transfer or other disposition of all or
substantially all of the assets of the Corporation (including the capital
stock of the Corporations subsidiary corporations);
(iii)
any reverse merger in which the Corporation is the surviving
entity but in which securities possessing more than fifty percent (50%) of the
total combined voting power of the Corporations outstanding securities are
transferred to a person or persons different from those who held such
securities immediately prior to such merger; or
(iv)
acquisition by any person or related group of persons (other
than the Corporation or by a Corporation-sponsored employee benefit plan) of
beneficial ownership (within the meaning of Rule 13d-3 of the Exchange Act) of
securities possessing more than fifty percent (50%) of the total combined
voting power of the Corporations outstanding securities, not including
securities held by such persons as of the effective date of this Plan.
g.
Corporation means Lannett Company, Inc., a corporation organized under the
laws of the State of Delaware or any successor organization.
h.
Director means a member of the Board or a member of the board of directors
of a Related Entity.
i.
Disability means permanent and total disability as determined under the
Corporations long-term disability program.
j.
Fair Market Value means, as of any date, the value of Common Stock
determined as follows:
(i)
Where there exists a public market for the Stock, the Fair Market Value shall be (A) the
closing price for a Share for the last market trading day
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(ii)
If the Stock is traded on the over-the counter market, the average of the closing bid and
asked prices of a Share of Stock on the day prior to the time of the determination (or if no such
quotations shall have been made on such date, on the last date on which there were such quotations,
provided that such quotations shall have been made within the ten (10) business days preceding the
date of determination), in each case, as reported in such source as the Committee deems reliable;
or
(iii)
In the absence of an established market for the Stock of the type described in (i) or
(ii), above, the Fair Market Value thereof shall be determined by the Committee in good faith.
k.
Incentive Stock Option means any Stock Option intended to be and designated
as an Incentive Stock Option within the meaning of Section 422 of the Code and
which, at all times, meets the necessary requirements and conditions to be treated as
an incentive stock option.
l.
Insider means a Participant who is subject to the requirements of the Rules
(as defined below).
m.
Non-Qualified Stock Option means any Stock Option that is not an Incentive
Stock Option and therefore is subject to Section 83 of the Code and the regulations
issued thereunder.
n.
Parent means a parent corporation, whether now or hereafter existing, as
defined in Section 424(e) of the Code
o.
Participant means an employee or Director to whom an award of Options or
Restricted Stock is granted pursuant to the Plan.
p.
Plan means the Lannett 2006 Long-Term Incentive Plan, as hereinafter
amended from time to time.
q.
Related Entity means any Parent, Subsidiary and any business, corporation,
partnership, limited liability company or other entity in which the Company, a Parent
or a Subsidiary holds a substantial ownership interest, directly or indirectly
Table of Contents
r.
Restricted Stock means an award of shares of Stock that is subject to
restrictions pursuant to Section 6 below.
s.
Rules means Section 16 of the Securities Exchange Act of 1934, as amended
(the Exchange Act) and the regulations promulgated thereunder.
t.
Securities Broker means the registered securities broker acceptable to the
Corporation who agrees to effect the cashless exercise of an Option pursuant to
Section 5(k) hereof.
u.
Share means a share of Stock.
v.
Stock means the Common Stock $0.001 par value per share, of the
Corporation.
w.
Stock Option or Option means any option to purchase shares of Stock
(including Restricted Stock, if the Committee so determines) granted pursuant to
Section 5 below.
x.
Subsidiary means a subsidiary corporation, whether now or hereafter
existing, as defined in Section 424(f) of the Code.
(i)
to select the officers and other management level employees and the Directors
of the Corporation to whom Stock Options and Restricted Stock may from time to time be
granted hereunder;
(ii)
to determine whether and to what extent Incentive Stock Options,
Non-Qualified Stock Options, Restricted Stock, or any combination thereof, are to be
granted hereunder;
(iii)
to determine the number of shares to be covered by each award granted
hereunder;
(iv)
to determine the terms and conditions, not inconsistent with the terms of the
Plan, of any award granted hereunder: including, but not limited to, the share price
and any restriction or limitation, or any vesting acceleration or forfeiture waiver
regarding any Stock Option or other award and/or the shares of Stock relating thereto,
based on such factors as the Committee shall determine, in its sole discretion;
Table of Contents
(v)
to determine whether and under what circumstances a Stock Option may be
settled in cash or stock, including Restricted Stock under Section 5(j);
(vi)
to determine whether and under what circumstances a Stock Option may be
exercised without a payment of cash under Section 5(k);
(vii)
to determine whether, to what extent and under what circumstances Stock and
other amounts payable with respect to an award under this Plan shall be deferred
either automatically or at the election of the Participant, subject to applicable
rules and limitations contained in relevant portions of the Code; and
(viii)
to determine, in good faith, that each award that is made is consistent with its
intended tax treatments for Federal and state income tax purposes both with respect to
the Corporation and with respect to any Participant.
a.
Stock Subject to Plan. The stock to be subject or related to awards under the
Plan shall be shares of the Corporations Stock and may be either authorized and
unissued or held in the treasury of the Corporation. The maximum number of shares of
Stock authorized with respect to the grant of awards under the Plan in each calendar
year during any part of which the Plan is in effect, subject to adjustment in
accordance with paragraph 3(d) below, shall be up to 2,500,000 shares of Stock.
Any or all of such 2,500,000 shares of Stock may be granted for awards of Incentive
Stock Options, Non-Qualified Stock Options or Restricted Stock.
b.
Computation of Stock Available for the Plan. For the purpose of computing the
total number of shares of Stock available for distribution at any time in each
calendar year during which the Plan is in effect in connection with the exercise of
options awarded under the Plan, there shall be debited against the
total number of shares of Stock determined to be available pursuant to paragraphs (a) and (c) of this
Section 3, the maximum number of shares of Stock subject to issuance upon exercise of
options or other stock based awards made under the Plan.
c.
Unused, Forfeited and Reacquired Shares. Any unused portion of the shares
annually available for award shall be carried forward and shall be made available
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d.
The Company, during the term of the Plan, will at all times reserve and keep
available such number of Shares as shall be sufficient to satisfy the requirements of
the Plan. The inability of the Company to obtain authority from any regulatory body
having jurisdiction, which authority is deemed by the Companys counsel to be
necessary to the lawful issuance and sale of any Shares hereunder, shall relieve the
Company of any liability in respect of the failure to issue or sell such Shares as to
which such requisite authority shall not have been obtained.
e.
Other Adjustment. In the event of any merger, reorganization, consolidation,
recapitalization, Stock dividend, or other change in corporate structure affecting the
Stock (a Recapitalization Event), such substitution or adjustment shall be made in
the aggregate number of shares reserved for issuance under the Plan, in the number and
option price of shares subject to outstanding Options granted under the Plan and in
the number and price of shares subject to other Restricted Stock made under the Plan,
as may be determined by the Committee to reflect and account for such Recapitalization
Event, provided that the number of shares subject to any award shall always be a whole
number.
Table of Contents
a.
Option Price
. The option price per share of Stock purchasable under
a Stock Option, whether an Incentive Stock Option or a Non-Qualified Stock Option,
shall be determined by the Committee at the time of grant but shall be not less than
100% of the Fair Market Value of the Stock at the time of grant. However, any
Incentive Stock Option granted to any Participant who, at the time the option is
granted, owns more than 10% of the voting power of all classes of stock of the
Corporation or of a Parent or Subsidiary corporation, shall have an exercise price no
less than 110% of Fair Market Value per share on date of the grant.
b.
Option Term
. The term of each Stock Option shall be fixed by the
Committee, but no Incentive Stock Option shall be exercisable more than ten years
after the date the Option is granted and no Non-Qualified Stock Option shall be
exercisable more than ten years and one day after the date the Option is granted.
However, any Incentive Stock Option granted to any Participant who, at the time the
option is granted owns more than 10% of the voting power of all classes of Stock of
the Corporation may not have a term of more than five years. No option may be
exercised by any person after expiration of the term of the option.
c.
Exercisability
. Stock Options shall be exercisable at such time or
times and subject to such terms and conditions as shall he determined by the Committee
at or after grant, provided, however, that, except as provided in Section 5(f) and
Section 7, unless otherwise determined by the Committee at or after grant, no Stock
option shall be exercisable during the six months following the date of the granting
of the Option. If the Committee provides, in its discretion, that any Stock option is
exercisable only in installments, the Committee may waive such installment exercise provisions at any time
at or after grant in whole or in part, based on such factors as the Committee shall
determine, in its sole discretion.
d.
Method of Exercise
. Subject to whatever installment exercise
provisions apply under Section 5(c), Stock options may be exercised in whole or in
part at any time and from time to time during the option period, by giving written
notice of exercise to the Corporation specifying the number of shares to be purchased.
Table of Contents
e.
Non-transferability of Options
. No Stock Option shall be
transferable by the Participant otherwise than by will or by the laws of descent and
distribution, and all Stock options shall be exercisable, during the Participants
lifetime, only by the Participant or by a designee acting pursuant to a valid power of
attorney.
f.
Termination by Reason of Death
. Subject to Section 5(i) if a
Participants employment or engagement by the Corporation or any Related Entity
terminates by reason of death, any Stock Option held by such Participant may
thereafter be exercised, to the extent then exercisable or on such accelerated basis
as the Committee may determine at or after grant, by the legal representative of the
estate or by the legatee of the Participant under
the will of the Participant, for a period of one (1) year (or such shorter period as
the Committee may specify at grant) from the date of such death or until the expiration
of the stated term of such Stock Option, whichever period is the shorter.
g.
Termination by Reason of Disability
. Subject to Section 5(j), if an
Participants employment or engagement by the Corporation or any Related Entity
terminates by reason of Disability, any Stock Option held by such Participant may
thereafter be exercised by the Participant, 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 one (1) year (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 the shorter;
provided, however, that if the Participant dies within such one-year period (or such
shorter period as the Committee shall specify at grant), any unexercised Stock Option
held by such Participant shall, at the sole discretion of
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h.
Other Termination
. Unless otherwise determined by the Committee at
or after grant, if a Participants employment or engagement with the Corporation or
any Related Entity terminates for any reason other than death or Disability, the Stock
Option shall thereupon terminate, except that such Stock Option may be exercised for
the lesser of three (3) months or the balance of such Stock Options term if the
Participant is involuntarily terminated by the Corporation or a Related Entity without
Cause.
i.
Incentive Stock Option Limitations
. To the extent required for
incentive stock option status under Section 422 of the Code, the aggregate Fair
Market Value (determined as of the time of grant) of the stock with respect to which
Incentive Stock options granted after 1986 are exercisable for the first time by the
Participant during any calendar year under the Plan and/or any other stock option plan
of the Corporation (within the meaning of Section 425 of the Code) after 1986 shall
not exceed $100,000.
To the extent (if any) permitted under Section 422 of the Code, if (i) a
participants employment with the Corporation is terminated by reason of death,
Disability or Retirement and (ii) the portion of any Incentive Stock Option that is
otherwise exercisable during the post-termination period specified under Section
5(f), (g) or (h), applied without regard to this Section 5(i), is greater than the
portion of such option that is exercisable as an incentive stock option during
such post -termination period under Section 422, such post-termination period shall
automatically be extended (but not
beyond the original option term) to the extent necessary to permit the Participant
to exercise such Incentive Stock Option. The Committee is also authorized to
provide at grant for a similar extension of the post-termination exercise period in
the event of a Change-in-Control. Incentive Stock Options may be granted only to
employees of the Company.
j.
Cash-out of Option: Settlement of Spread Value in Restricted Stock
.
On receipt of written notice to exercise, the Committee may, in its sole discretion,
elect to cash out all or part of the portion of any Non-Qualified Stock Option to be
exercised by paying the Participant an amount, in cash or Stock, equal to the excess
of the Fair Market Value of the Stock over the option price (the Spread Value) on
the effective date of such cash-out.
In addition, if the option agreement so provides at grant or is amended after grant
and prior to exercise to so provide (with the epitomes consent), the Committee may
require that all or part of the shares to be issued with respect as to the Spread
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k.
Cashless Exercise
. To the extent permitted under Applicable Law, and
with the consent of the Committee, the Corporation agrees to cooperate in a cashless
exercise of an option. The cashless exercise shall be effected by the Participant
delivering to the Securities Broker instructions to sell or withhold a sufficient
number of shares of Common Stock to cover the costs and expenses associated therewith.
l.
Time of Granting Options
. The date of grant of an Option shall for
all purposes be the date on which the Committee makes the determination to grant such
Option, or such other date as is determined by the Committee. Notice of the grant
determination shall be given to each Plan Participant to whom an Option is so granted
within a reasonable time after the date of such grant.
a.
Administration
. Shares of Restricted Stock may be issued either
alone or in addition to other awards granted under the Plan. The Committee, upon
consultation with the Chief Executive Officer of the Corporation, shall determine the
Directors, officers, and management level employees of the Corporation and its Related
Entities 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 conditions of the
awards.
The Committee may condition the grant of Restricted Stock upon the attainment of
specified performance goals or such other factors as the Committee may determine,
in its sole discretion.
The provisions of Restricted Stock awards need not be the same with respect to each
recipient.
b.
Awards and Certificates
. The prospective recipient of a Restricted
Stock award shall not have any legally enforceable rights with respect to such award,
unless and until such recipient has executed an agreement evidencing the award and has
delivered a fully executed copy thereof to the Corporation, and has otherwise complied
with the applicable terms and conditions of such award.
(i)
The purchase price for shares of Restricted Stock shall be as
determined by the Committee.
(ii)
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
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(iii)
Each participant receiving a Restricted Stock award shall be
issued a stock certificate in respect of such shares of Restricted Stock. Such
certificate shall be registered in the name of such participant, and shall
bear an appropriate legend referring to the terms, conditions, and
restrictions applicable to such award, substantially in the following form:
(iv)
The Committee shall require that the stock certificates
evidencing such shares be held in custody by the Corporation until the
restrictions thereon shall have lapsed, and that, as a condition of any
Restricted Stock award, the participant shall have delivered a stock power,
endorsed in blank, relating to the Stock covered by such award.
c.
Restrictions and Conditions
. The shares of Restricted Stock awarded
pursuant to this Section 6 shall be subject to the following restrictions and
conditions.
(i)
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 Restricted Period), the participant shall
not be permitted to sell, transfer, pledge,
assign or otherwise encumber 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 or in part, based on
service, performance and/or such other factors or criteria
as the Committee may determine, in its sole
discretion.
(ii)
Except as provided in this paragraph (ii)
and Section 6(c)(i), the participant shall have,
with respect to the shares of Restricted Stock,
all of the rights of a shareholder of the
Corporation, 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.
(iii)
Subject to the applicable provisions of the
award agreement and subject to this Section 6 and
Section 7 below, upon termination of a
participants
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(iv)
In the event of hardship or other special
circumstances of a participant whose employment
with the Corporation is involuntarily terminated
(other than for Cause) , the Committee may, in
its sole discretion, waive in whole or in part
any or all remaining restrictions with respect to
such participants shares of Restricted Stock,
based on such factors as the Committee may deem
appropriate.
(v)
If the Restricted Stock is subject to a Restricted Period and
such Restricted Period expires without a prior forfeiture of the Restricted
Stock subject to such Restricted Period, the certificates for such Shares
shall be delivered to the Plan Participant promptly.
(i)
The restrictions applicable to any Option awards under the
Plan shall lapse and such awards shall be deemed fully vested.
(ii)
The restrictions applicable to any Restricted Stock awards
for which the number of Shares of Restricted Stock has been established
because the realization of the performance goals have been determined shall
lapse and such Shares shall deemed fully vested.
(iii)
The restrictions applicable to any Restricted Stock awards
for which the number of Shares of Restricted Stock has not been established
because the realization of the performance goals has not yet been determined
shall lapse as follows: (a) if the Corporate Transaction occurs two (2) or
more years after the date of the commencement of three year period for
measuring performance, or if the period to measure performance is one year, then all restrictions
shall lapse and all of the Restricted Stock shall be fully vested; (b) if
the Corporate Transactions occurs one or more years and less than two
years after the date of the commencement of the three year period for
measuring performances, then the restrictions shall lapse on
66
2/3
% of the Restricted Stock, which Shares of Restricted
Stock shall be fully vested, and the restrictions on 33
1/3
% of
the Restricted Stock shall remain, and subject to the determination of the
Committee such Shares of Restricted Stock may be subject to forfeiture;
and (c) if the Corporate Transaction occurs less than one year after the
date of the commencement of the three year period for measuring
performance, then the restrictions
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(iv)
The value of all outstanding and vested Options and
Restricted Stock awards shall, unless otherwise determined by the Committee at
or after grant, be cashed out on the basis of the Corporate Transaction
Price as defined in Section 7(b) as of the date such Corporate Transaction is
determined to have occurred or such other date as the Committee may determine
prior to the Corporate Transaction.
b.
Corporate Transaction Price
. For purposes of this Section 7,
Corporate Transaction Price means, as of any given date, the highest sales price per
share paid in any transaction reported by the relevant exchange (consolidated trading)
as determined pursuant to Section 1(i) hereof, or paid or offered in any bona fide
transaction related to a potential or actual change in control of the Corporation at
any time during the preceding sixty day period as determined by the Committee except
that, in the case of Incentive Stock Options, such price shall be based only on
transactions reported for the date on which the Committee decides to cash out such
options.
c.
Compliance with Section 280G
. Except as provided in any employment
agreement with any Plan Participant, no payment shall be made under this Section 7
which, when aggregated with other payments made to the employee, would, as determined
by such person(s) as the Committee shall irrevocably designate at or prior to a
Corporate Transaction, result in an excess parachute payment for which the Corporation
would not receive a Federal income tax deduction by reason of Section 28OG of the
Code.
a.
The Committee may at any time amend, suspend or terminate the Plan. To the
extent necessary to comply with Applicable Laws, the Company shall obtain stockholder
approval of any Plan amendment in such a manner and to such a degree as required.
b.
No Option or Restricted Stock award may be granted during any suspension of
the Plan or after termination of the Plan.
c.
Any amendment, suspension or termination of the Plan shall not affect Options
or Restricted Stock already granted, and such Options and Restricted Stock shall
remain in full force and effect as if the Plan had not been amended, suspended or
terminated, unless mutually agreed otherwise between the Plan Participant and the
Committee, which agreement must be in writing and signed by the Plan Participant and
the Company.
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a.
If the Shares issued to a Plan Participant upon exercise of Options or upon a
grant of Restricted Stock is not registered, the Committee may require each person
purchasing shares pursuant to a Stock Option under the Plan to represent to and agree
with the Corporation in writing that the Participant or Participant
is acquiring the shares without a view to distribution thereof. The certificates for such shares may
include any legend which the Committee deems appropriate to reflect any restrictions
on transfer.
All certificates for shares of Stock or other securities delivered under the Plan
shall be subject to such stock transfer orders and other restrictions as the
Committee may deem advisable under the rules, regulations, and other requirements
of the Exchange Act, any stock exchange upon which the Stock is then listed, and
any applicable Federal or state securities law, and the Committee may cause a
legend or legends to be put on any such certificates to make appropriate reference
to such restrictions.
b.
Nothing contained in this Plan shall prevent the Board of Directors from
adopting other or additional compensation arrangements, subject to stockholder
approval if such approval is required; and such arrangements may be either generally
applicable or applicable only in specific cases.
c.
The adoption of the Plan shall not confer upon any employee of the
Corporation any right to continued employment with the Corporation, as the case may
be, nor shall it interfere in any way with the right of the Corporation to terminate
the employment of any of its employees at any time.
d.
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 Corporation, 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, the
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e.
At the time of grant, the Committee may provide in connection with any grant
made under this Plan that the shares of Stock received as a result of such grant shall
be subject to a right of first refusal, pursuant to which the participant shall be
required to offer to the Corporation any shares that the participant wishes to sell,
with the price being the then Fair Market Value of the Stock, subject to such other
terms and conditions as the Committee specify at the time of grant.
f.
The Committee shall establish such procedures as it deems appropriate for a
participant to designate a beneficiary to whom any amounts payable in the event of the
participants death are to be paid.
g.
The Plan and all awards made and actions taken thereunder shall he governed
by and construed in accordance with the laws of the State of Delaware.
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