As
filed with the Securities and Exchange Commission on May 19, 2010
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SYPRIS
SOLUTIONS
,
INC.
(Exact
name of registrant as specified in its charter)
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Delaware
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61-1321992
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(State
or other jurisdiction of
incorporation
or organization)
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(I.R.S.
Employer Identification Number)
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101
Bullitt Lane, Suite 450
Louisville,
Kentucky 40222
(502)
329-2000
(Address,
including zip code, and telephone number,
including
area code, of registrant’s principal executive offices)
Sypris
Solutions, Inc.
2010
Sypris Omnibus Plan
(Full
title of the Plan)
Jeffrey
T. Gill
President
and Chief Executive Officer
Sypris
Solutions, Inc.
101
Bullitt Lane, Suite 450
Louisville,
Kentucky 40222
(502)
329-2000
(Name,
address and telephone number of agent for service)
Copies
to:
John
B. Beckman
Hogan
Lovells US LLP
555
Thirteenth Street, N.W.
Washington,
D.C. 20004
(202)
637-5600
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer or a smaller reporting company. See
definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act (Check
one):
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Large
accelerated filer
o
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Accelerated
filer
o
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Non-accelerated
filer
o
(Do
not check if a smaller reporting company)
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Smaller
reporting company
x
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CALCULATION
OF REGISTRATION FEE
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Title
of securities to be registered
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Amount
to be
Registered
(1)
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Proposed
maximum
offering
price
per
unit (2)
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Proposed
maximum
aggregate
offering
price (2)
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Amount
of
registration
fee
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Common
Stock, par value $0.01 per share
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3,655,088
shares
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$
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4.72
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$
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17,252,015.36
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$
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1,230.07
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(1)
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Pursuant
to Rule 416(a) of the Securities Act of 1933, this Registration Statement
also covers an indeterminate number of shares that may become issuable
under the plan as a result of a stock split, stock dividend or similar
adjustment of the outstanding Common Stock.
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(2)
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Calculated
pursuant to Rule 457(c) and (h) under the Securities Act of 1933 on the
basis of $4.72 per share, which was the average of the high and low prices
of the Common Stock as reported on the NASDAQ Stock Market on May 17,
2010.
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PART
I
As permitted by the rules of the
Securities and Exchange Commission (the “Commission”), this Registration
Statement omits the information specified in Part I of Form S-8. The
documents containing the information specified in Part I will be delivered
to the participants in the plan as required by Rule 428(b)(1) under the
Securities Act of 1933, as amended (the “Securities Act”). Such documents are
not being filed with the Commission as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424. These
documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II hereof, taken together, constitute
a prospectus that meets the requirements of Section 10(a) of the Securities
Act.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference
Sypris Solutions, Inc. (the “Company”)
hereby incorporates by reference into this Registration Statement the following
documents:
(a) The
Company’s Annual Report on Form 10-K for the fiscal year ended December 31,
2009(Commission File No. 000-24020);
(b) The
Company’s Current Reports on Form 8-K filed March 5, May 13 and May 18, 2010
(Commission File No. 000-24020);
(c) The
Company’s Quarterly Report on Form 10-Q for the quarterly period ended
April 4, 2010 (Commission File No. 000-24020);
(d) The
description of the Company’s common stock, $.01 par value (the “Common Stock”),
which is contained in the Company’s current report on Form 8-K/A filed May 13,
1998, pursuant to Section 13 of the 1934 Act (Commission File No. 000-24020),
including any amendment or report filed for the purpose of updating such
description; and
(e) The
description of the Company’s Series A Preferred Stock purchase rights contained
in the registration statement on Form 8-A filed October 23, 2001 (Commission
File No. 000-24020), including 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 and 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment to this Registration Statement
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 a part hereof from the date of filing
of such documents (other than any documents, or portions of documents, not
deemed to be filed
)
.
Item
4. Description of Securities
Not
applicable.
Item
5. Interests of Named Experts and Counsel
Not
applicable.
Item
6. Indemnification of Directors and Officers
Section
145 of the Delaware General Corporation Law provides that under certain
circumstances a corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding whether civil, criminal, administrative or investigative, by
reason of the fact that he or she is or was a director, officer, employee or
agent of the corporation or is or was serving at its request in such capacity in
another corporation or business association, against expenses (including
attorneys’ fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or her in connection with such action, suit or
proceeding if he or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the corporation and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his or her conduct was unlawful.
Article Ninth of the Company’s
Certificate of Incorporation provides:
“A
director of the Corporation shall not be personally liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach 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 General Corporation Law, or (iv)
for any transaction from which the director derived an improper personal
benefit. If the Delaware General Corporation Law is amended after the filing of
the Certificate of Incorporation of which this Article is a part to authorize
corporate action further eliminating or limiting the personal liability of
directors, then the liability of a director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the Delaware General
Corporation Law, as so amended.
Any repeal or
modification of the foregoing paragraph by the stockholders of the Corporation
shall not adversely affect any right or protection of a director of the
Corporation existing at the time of such repeal or modification.”
Article
Eleventh, Section A of the Company’s Certificate of Incorporation
provides:
“The
Corporation shall indemnify and hold harmless, to the fullest extent permitted
by applicable law as it presently exists or may hereafter be amended, any person
who was or is made or is threatened to be made a party, or is otherwise involved
in any action, suit or proceeding, whether civil, criminal, administrative or
investigative (a “proceeding”), by reason of the fact that he, or a person for
whom he is the legal representative, is or was a director, officer, employee or
agent of the Corporation or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another Corporation or of a
partnership, joint venture, trust, enterprise or non-profit entity, including
service with respect to employee benefit plans, against all liability and loss
suffered and expenses reasonably incurred by such person. The Corporation shall
be required to indemnify a person in connection with a proceeding initiated by
such person only if the proceeding was authorized by the Board of Directors of
the Corporation.
Article
Eleventh, Section B of the Company’s Certificate of Incorporation
provides:
“
The Corporation
shall pay the expenses of directors and executive officers of the Corporation,
and may pay the expenses of all other officers, employees or agents of the
Corporation, incurred in defending any proceeding, in advance of its final
disposition, provided, however, that the payment of expenses incurred by a
director, officer, employee or agent in advance of the final disposition of the
proceeding shall be made only upon receipt of an undertaking by the director,
officer, employee or agent to repay all amounts advanced if it should be
ultimately determined that the director, officer, employee or agent is not
entitled to be indemnified under this Article ELEVENTH or
otherwise.”
Article
Eleventh, Section F of the Company’s Certificate of Incorporation
provides:
“Any
repeal or modification of the foregoing provisions of this Article ELEVENTH
shall not adversely affect any right or protection hereunder of any person in
respect of any act or omission occurring prior to the time of such repeal or
modification.”
While the
Company has executed no formal written indemnification agreements with its
directors or officers, the Company has arranged for and does maintain directors’
and officers’ liability insurance covering certain liabilities which may be
incurred by its directors and officers in the performance of their duties
.
Not
Applicable.
Item
8. Exhibits
The exhibits to this Registration
Statement are listed on the Exhibit Index, which appears elsewhere herein and is
incorporated by reference.
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 of 1933;
(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
this registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more
than a 20 percent change in the maximum aggregate offering price set forth in
the “Calculation of Registration Fee” table in the effective 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) of this section do not apply if the
registration statement is on Form S-8, and the information required to be
included in a post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Commission by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement.
(2) That, for the purpose of
determining any liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered herein, 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 further undertakes that, for the purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant’s annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan’s annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial
bona fide
offering
thereof.
(c)
Insofar as indemnification for liabilities arising under the Securities Act of
1933 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
of 1933 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 of 1933 and will be governed by the final adjudication of such
issue.
SIGNATURES
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
Louisville, State of Kentucky, on 19
th
May,
2010.
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Sypris
Solutions, Inc.
(Registrant)
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By:
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/s/
Jeffrey T. Gill
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Jeffrey
T. Gill
President
and Chief Executive Officer
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POWER
OF ATTORNEY
Each
person whose signature appears below constitutes and appoints Jeffrey T. Gill,
Brian A. Lutes and John R. McGeeney his or her true and lawful attorney-in-fact
and agent, each acting alone, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign any or all amendments (including post-effective
amendments) to the Registration Statement on Form S-8, and to file the same,
with all exhibits thereto, and all documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent, or his or her
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement
has been signed as of 19
th
May,
2010 by the following persons in the capacities indicated.
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Signature
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Title
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/s/
Robert E. Gill
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Chairman
of the Board
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Robert
E. Gill
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/s/
Jeffrey T. Gill
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President,
Chief Executive Officer, and Director (Principal Executive
Officer)
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Jeffrey
T. Gill
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/s/
Brian A. Lutes
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Vice
President and Chief Financial Officer (Principal Financial
Officer)
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Brian
A. Lutes
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/s/
Rebecca R. Eckert
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Controller
(Principal
Accounting Officer)
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Rebecca
R. Eckert
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/s/
John F. Brinkley
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Director
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John
F. Brinkley
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/s/
William G. Ferko
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Director
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William
G. Ferko
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/s/
R. Scott Gill
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Director
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R.
Scott Gill
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/s/
William L. Healey
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Director
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William
L. Healey
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/s/
Sidney R. Petersen
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Director
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Sidney
R. Petersen
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/s/
Robert Sroka
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Director
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Robert
Sroka
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EXHIBIT
INDEX
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Exhibit No.
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Description
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4.1
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Rights
Agreement dated as of October 23, 2001 between the Company and LaSalle
Bank National Association, as Rights Agent, including as Exhibit A the
Form of Certificate of Designation and as Exhibit B the Form of Right
Certificate (incorporated by reference to Exhibit 4.1 to the Company’s
Form 8-K filed on October 23, 2001 (Commission File No.
000-24020)).
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4.2
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Notice
of Removal of Rights Agent and Appointment of Successor Rights Agent and
Amendment No. 1 to the Rights Agreement effective as of September 8,
2008 (incorporated by reference to Exhibit 4.1 to the Company’s Form 10-Q
for the quarterly period ended September 28, 2008 filed on November 5,
2008 (Commission File No. 000-24020)).
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4.3
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Notice
of Removal of Rights Agent and Appointment of Successor Rights Agent to
the Rights Agreement effective as of October 26, 2009 (incorporated by
reference to Exhibit 4.1 to the Company’s Form 10-Q for the quarterly
period ended April 4, 2010 filed on May 18, 2010 (Commission File No.
000-24020)).
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5.1
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Opinion
of Hogan Lovells US LLP regarding the legality of the common stock
registered hereby.*
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10.1
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The
2010 Sypris Omnibus Plan.*
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23.1
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Consent
of Hogan Lovells US LLP (included in Exhibit 5.1).
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23.2
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Consent
of Ernst & Young LLP, independent registered public
accountants.*
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24.1
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Power
of Attorney (included in the signature page to this Registration
Statement).
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Exhibit 5.1
May 18,
2010
Board of
Directors
Sypris
Solutions, Inc.
101
Bullitt Lane, Suite 450
Louisville,
Kentucky 40222
Ladies
and Gentlemen:
We are
acting as counsel to Sypris Solutions, Inc., a Delaware corporation (the “
Company
”), in connection with
its registration statement on Form S-8 (the “
Registration Statement
”) filed
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended (the “
Act
”)
relating to the proposed public offering of up to 3,655,088 newly issued shares
of the common stock, par value $0.01 per share (the “
Common Stock
”) of the Company
(the “
Shares
”), all of
which shares may be issued by the Company pursuant to the Sypris Solutions, Inc.
2010 Sypris Omnibus Plan (the “
Plan
”), and the associated
stockholder protection rights, the “
Rights
”), all of which Rights
are to be issued pursuant to the Rights Agreement, dated as of October 23, 2001,
as amended September 8, 2008 and October 26, 2009 (the “
Rights Agreement
”), between
the Company and Computershare Trust Company, N.A., as Rights Agent (the “
Rights Agent
”).
For purposes of this opinion letter, we
have examined copies of such agreements, instruments and documents as we have
deemed an appropriate basis on which to render the opinions hereinafter
expressed. In our examination of the aforesaid documents, we have
assumed the genuineness of all signatures, the legal capacity of all 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). We also have assumed that the Rights Agreement has been
duly authorized, executed, and delivered by the Rights Agent, and that the
members of the Board of Directors of the Company have acted in a manner
consistent with their fiduciary duties as required under applicable law in
adopting the Rights Agreement.
As to all matters of fact, we have
relied on the representations and statements of fact made in the documents so
reviewed, and we have not independently established the facts so relied
on.
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, as
amended. We express no opinion herein 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.
Based upon, subject to and limited by
the foregoing, we are of the opinion that, as of the date hereof, the Shares and
the associated Rights have been duly authorized by all necessary corporate
action on the part of the Company and, following (i) effectiveness of the
Registration Statement, (ii) issuance and delivery of the Shares in the manner
and on the terms described in the Plan, and (iii) receipt by the Company of the
consideration for the Shares specified in the Plan or in resolutions of the
Board of Directors or a duly authorized committee thereof approving an award
pursuant to the Plan, the Shares and the associated Rights will be validly
issued, fully paid and nonassessable.
It should be understood that the
opinion above concerning the Rights does not address the determination a court
of competent jurisdiction may make regarding whether the Board of Directors of
the Company would be required to redeem or terminate, or take other action with
respect to, the Rights at some future time based on the facts and circumstances
existing at that time and that our opinion above addresses the Rights and the
Rights Agreement in their entirety and not any particular provision of the
Rights or the Rights Agreement and that it is not settled whether the invalidity
of any particular provision of a rights agreement or of rights issued thereunder
would result in invalidating in their entirety such rights.
This opinion letter has been prepared
for use in connection with the Registration Statement. We assume no
obligation to advise you of any changes in the foregoing subsequent to the
effective date of the Registration Statement.
We hereby consent to the filing of this
opinion letter as Exhibit 5.1 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.
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Very
truly yours,
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/s/
Hogan Lovells US LLP
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HOGAN
LOVELLS US LLP
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Exhibit
10.1
THE
2010 SYPRIS
OMNIBUS
PLAN
1.1
Purpose - The purpose of the 2010 Sypris
Omnibus
Plan (“
Plan”
) is to retain and to motivate
directors, officers
,
other employees
and consultants
(“
Associates”
) of Sypris Solutions, Inc. and its
subsi
diaries (together with
such subsidiaries, as appropriate in context, the “
Company”
).
1.2
Eligibility - The Company
’
s Compensation Committee (“
Committee”
) shall determine those Associates who
may participate in the Plan (“
Participants”
).
1.3
Term - T
he Committee may grant awards under this
Plan (“
Awards”
) from
May 11, 2010 (the “
Effective Date”
),
through
May 11,
2015, and such Awards
may, subject to the terms and conditions
of an Award,
survive the
Plan
’
s expiration
. Upon the Effective Date, no
furth
er awards will be made
under the Company
’
s 2004 Equity Plan (the “
2004 Plan”
)
.
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Article
II.
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Administration
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2.1
Interpretation - The Committee shall
have complete authority to interpret the Plan or any Award, to prescribe, amend
and rescind rules and
regulations relating thereto, and to
make all other determinations necessary or advisable for the administration of
the Plan or any Award Agreements (including to establish or amend any rules
regarding the Plan that are necessary or advisable to comply wi
t
h, or qualify under, any applicable law,
listing requirement, regulation or policy of any entity, agency, organization,
governmental entity, or the Company, in the Committee
’
s sole discretion (“
Rule”
))
.
Notwithstanding the
foregoing, any action hereunder
may be taken by the Board of Directors
of the Company (the “
Board”
) in lieu of the Committee and all
references herein to the Committee shall be deemed to be the Board when the
Board so acts.
2.2
Authority - The Committee shall have
final authority, in
its
sole discretion, to determine or interpret any of the following terms
(collectively, “
Terms”
), with respect to both new and
outstanding Awards, subject to applicable Rules:
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·
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eligibility criteria regarding any
participation or exercise
rights,
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·
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types o
f Awards
,
including those qualified under
26 USC §
422 or its
equivalent (“
ISOs”
)
and cash awards
,
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·
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amounts, classes, registration
rights or restricted legends of related
Shares,
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·
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timing and features of any rights,
benefits or payments due to Participants u
nder any Award (including voting,
exercise, or dividend
rights),
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·
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restrictions on assignment or
transfer of any Awards or rights
thereunder,
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·
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vesting and forfeiture
terms,
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·
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convertibility or deferral
rights,
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·
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the amounts, methods and forms of
consideration
due
from any Participant in exchange for the receipt or exercise of any Award
or rights thereunder (including the exchange of previously granted Awards)
and for any taxes incident
thereto,
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·
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whether an Award should be subject
to the satisfaction of
Perform
ance Objectives as described in
Section 2.3, and
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any other terms or conditions as the
Committee specifies in written agreements, which shall govern the terms of each
Award (and which need not be identical) (the “
Award Agreements”
). The Committee may
con
dition Awards upon the
Participant
’
s execution of Award Agreements,
representations regarding resale, blank stock powers, and any other documents
that it may specify. Shares may be deposited together with stock
powers with any escrow agent (including the
Company) as specified by the
Committee.
2.3
Performance Objectives
–
“
Performance Objectives”
may be expressed in terms of (a)
earnings per share, (b) Stock prices, (c) net income, (d) pre-tax income, (e)
operating income, (f) return on equity or
asse
ts, (g) economic value added
,
(h) sales, (i) cash flow from operating
activities, (j) working capital, (k)
productivity ratios, (l) expense
targets, (m) cost containment or reduction, (n) market share, (o) completion of
acquisitions of businesses or compan
ies, (p) completion of divestitures and
asset sales, (q) completion of business relocation
activities, (r)
other financial objectives, or
(
s
) any combination of the
foregoing,
with respect to
the Company, any of its subsidiaries, any of its divisions or a
ny combination thereof. Performance
Objectives may be absolute or relative (to prior performance of the Company or
to the performance of one or more other entities or external indices) and may be
expressed in terms of a progression within a specified rang
e
. Unless otherwise expressly waived by
the Committee, Performance Objectives shall be established in writing by the
Committee by the earlier of (x) the date on which a quarter of the performance
period has elapsed or (y) the date which is ninety (90) days
after the commencement of the
performance period, and in any event while the performance relating to the
Performance Objectives remains substantially uncertain.
At the time Performance Objectives are
established, the Committee may also determine to exclud
e charges
, credits
or revenues related to an event or
occurrence which the Committee determines should appropriately be excluded,
including (a) restructurings, discontinued operations, reserves or allowances
for loan losses, extraordinary items, and other
unusual or non-recurring revenues or
charges,
credits,
(b) an event
either not directly related to the operations of the Company or not within the
reasonable control of the Company
’
s management, or (c) the cumulative
effects of or accounting changes in acc
ordance with U.S. generally accepted
accounting principles or tax changes.
It is the intent of the Company that
Awards subject to the attainment of Performance Objectives that are granted to
persons who are designated by the Committee as likely to be “
cov
ered employees”
within the meaning of Section 162(m) of
the Internal Revenue Code of 1986, as amended (the “
Code”
) and the regulations thereunder shall,
if so designated by the Committee, constitute “
qualified performance based
compensation”
within the
me
a
ning of Section 162(m) of the Code and
the regulations thereunder. If any provision of the Plan or any Award Agreement
relating to such Awards does not comply or is inconsistent with the requirements
of Section 162(m) of the Code or regulations thereunder
,
such provision shall be construed or
deemed amended to the extent necessary to conform to such
requirements.
2.4
Amendments and Approvals - The
Committee, at its discretion, may amend the Plan, its interpretations or any
Award at any time, subject to a
pplicable Rules. With respect to any
amendment, action or approval hereunder, the Committee may require the approval
of any other persons or entities, pursuant to applicable
Rules.
2.5
Delegation - The Committee may delegate
any portion of their respons
ibilities and powers to one or more
persons selected by them, subject to applicable Rules. Such
delegation may be revoked by the Committee at any time.
|
Article
III.
|
Stock
Subject to Plan
|
3.1
Limit on Shares
–
The Committee shall limit Awards in the
a
ggregate to an aggregate
maximum amount (“
Cap”
) of: (a) total shares of the
Company
’
s $.01 par value common stock
(“
Common Stock”
), and (b) total shares of any other
classes of the Company
’
s then authorized common stock as are
determined by the Committee
t
o be no more dilutive than the Common
Stock (collectively, the “
Stock”
or, individually, the “
Shares”
); and no more than 50% of all Awards
shall be ISOs. Upon
the Effective Date
, such Cap shall be Three Million
(3,000,000)
Shares, plus
the number of Share
s that
remain outstanding and available for issuance under the Company
’
s 2004 Plan as of the Effective
Date
as calculated pursuant
to Section 3.2
.
Otherwise the Cap shall be increased
only: (x) if approved by a majority of the Company
’
s stockholders, (y)
pursuant to Article VI, or (z) if
approved by the Committee to replace any acquired business
’
equity plan with an appropriate number
of additional Shares, pursuant to applicable Rules.
3.2
Share Usage and Unvested Shares
–
Each Award shall be
counted,
as of the grant
date, against the limit set forth in Section 3.1 as one Share for every one
Share subject to an Award. Awards granted in substitution for awards held by
employees of a business entity acquired by the Company shall not count against
the Sh
a
res available for issuance under the
Plan.
If
, following the Effective
Date,
any Awards under
the
Plan or the 2004
Plan shall expire, be forfeited,
exchanged or cancelled without having been fully exercised or vested
(excluding, however, the use of
Share
s to satisfy the tax
withholding obligations or the payment of the purchase price of an
Award)
, the reserved but
unused Shares subject thereto shall
again
be available for new Awards
under the Plan.
3.3
Individual Limits
–
The maximum number of Shares
subject to options or
appreciation rights that can be issued under the Plan to any Participant is
500,000 in any one calendar year. The maximum number of Shares
subject to an Award other than options or appreciation rights that can be issued
under the Pl
a
n to any Participant is 250,000 in any
one calendar year. The maximum amount that can be earned by any Participant as a
cash award subject to the attainment of Performance Objectives in any
performance period of up to one calendar year is year is $750,000
and the maximum amount that can be
earned by any Participant as a cash award subject to the attainment of
Performance Objectives over any performance period of greater than one calendar
year is $2,000,000.
3.4
Share Issuance Book Entry
–
Notwithstanding
any other provision of this Plan to the
contrary, the issuance of Shares under the Plan may be evidenced in such manner
as the Committee, in its discretion, deems appropriate, including, without
limitation, book-entry registration or issuance of one or m
o
re share certificates
.
|
Article
IV.
|
Types of
Awards
|
4.1
Stock - The Committee may grant Awards
of Stock to Participants on Terms specified in the Award
Agreements.
4.2
Options - The Committee may grant Awards
of options to purchase or sell Stock,
to Participants on Terms specified in
the Award Agreements. The purchase price under any such Award shall
be the closing price of the Stock on the date of grant, and the sale price under
any such Award shall be the closing price of the Stock on the date
o
f the sale, unless the Committee
designates another price in the Award Agreement; provided further that, the fair
market value (on each ISO
’
s Award date) of all ISOs
’
Shares which first become exercisable
by a Participant in any calendar year under all Co
m
pany plans shall not exceed
$100,000. Awards above this limit or to non-employees shall be deemed
separate, non-qualified Awards under 26 USC §
422.
4.3
Appreciation Rights
–
The Committee may grant Awards of
rights to receive all or a portion of the a
ppreciation in the value of the Shares
over a period of time, to Participants on Terms specified in the Award
Agreements.
4.4
Cash Awards
–
The Committee may grant cash-based
Awards to Participants which may be based on the successful attainment of one
or more Performance
Objectives.
4.5
Other Awards - The Committee may grant
Awards in tandem with, contingent upon, or convertible into, other Awards on
Terms specified in the Award Agreements.
|
Article
V.
|
Termination
of Awards
|
5.1
Unvested Rights
-
E
xcept as otherwise provided in an Award
Agreement or by the Committee, every
unvested, unexercised right under this
Plan shall terminate and expire at the earlier of: the expiration date in the
Award Agreement
or
termination of the Participant
’
s employment
.
5.2
Vested Rights
-
Except as otherwise provided in an Award
Agreement or by the Committee, every
vested, unexercised right under this
Plan shall terminate and expire at the earlier of: (a) the expiration date in
the Award Agreement, (b) thirty days a
fter termination of employment, (c)
three months after a Participant
’
s retirement, or (d) one year after a
Participant
’
s death or disability,
provided that all of the foregoing
shall be administered subject to the Committee
’
s Rules.
|
Article
VI.
|
Adjustment
of
Number of Shares
|
6.1
Dividends - In the event that any stock
dividend is declared on the Stock, the number of Shares in any Award Agreement
and the maximum limit on Shares in Section 3.1 shall be adjusted by adding to
each such Share the number of S
hares which would be distributable
thereon (or any equivalent value of Stock as determined by the Committee in its
sole discretion) if such Share had been outstanding on the date fixed for
determining the stockholders entitled to receive such dividend.
In
the event of any other distribution to
the Company
’
s stockholders of securities of any
other entity or other assets (including an extraordinary dividend but excluding
a non-extraordinary dividend) without receipt of consideration by the Company,
the Comp
a
ny shall in such manner as the Company
deems appropriate adjust (i) the number and kind of Shares subject to
outstanding Awards and/or (ii) the purchase price of (or other consideration
for) outstanding Awards to reflect such distribution.
6.2
Reorgani
zation - In the event that the
outstanding Stock is exchanged for or changed into any different number or class
of securities, whether through reorganization, recapitalization, stock split,
reverse stock split, combination of shares, merger or consolidati
o
n, then there shall be substituted for
each Share subject to any Award and for the maximum limit on Shares
in Section 3.1, the number and class of securities for which each outstanding
Share shall be so exchanged or into which each such Share shall be
ch
a
nged.
|
Article
VII.
|
Change
OF
Control
|
7.1
Change
of
Control
–
A “
Change of Control”
includes any transaction (or series of
transactions): (a) if the stockholders of the
Company
immediately before the transaction do
not retain immediately after the tran
saction, in substantially the same
proportions, direct or indirect beneficial ownership of more than 50% of the
total combined voting power of the outstanding voting stock of the company; (b)
in which any person or group acquires, after the
Effective Date
,
more than 25% of the voting power of
the Company
’
s voting securities; (c) in which
substantially all of the assets of the Company are sold; or (d) any similar
event determined by the Committee to constitute a change in the control of the
Company.
Unless
o
therwise provided by the
Committee in an Award Agreement or any other agreement with a Participant,
in
the event of a Change
of
Control, the vesting date for all
unvested or forfeitable rights in any Award shall be accelerated to the earlier
of: (x) the da
te of such
Change
of
Control or (y) any other date
established by the Committee in its discretion to allow Participants an
effective opportunity to enjoy such rights under the
circumstances.
Without limiting the generality of the
foregoing, in connectio
n
with a Change of Control the Committee may elect, in its sole discretion, to (a)
cancel any outstanding Awards and pay or deliver, or cause to be paid or
delivered, to the holder thereof an amount in cash or securities having a value
(as determined by t
h
e Committee acting in good faith) equal
to the product of the number of Shares subject to the Award (the “
Grant Shares”
) multiplied by the amount, if any, by
which (i) the formula or fixed price per Share paid to holders of Shares
pursuant to such Change
o
f Control exceeds (ii) the purchase
price applicable to such Grant Shares, (b) provide in connection with such
Change of Control for the assumption or continuation of the Awards theretofore
granted, or for the substitution for such Awards for new Awards r
e
lating to the stock of a successor
entity, or a parent or subsidiary thereof, with appropriate adjustments as to
the number of shares (disregarding any consideration that is not common stock)
and exercise prices, such that Awards theretofore granted shall
continue in the manner and under the
terms so provided, or (c) cancel any outstanding Awards to the extent the
purchase price applicable to the Grant Shares issuable thereunder is greater
than the formula or fixed price per share paid to holders of Shares
pursuant to such Change of Control, with
or without any payment to the holders thereof. If the Company
establishes an exercise window in connection with a scheduled consummation of a
Change of Control, any exercise of an Option during such period shall
b
e
conditioned upon the consummation of
the event and shall be effective only immediately before the consummation of the
event.
|
Article
VIII.
|
Miscellaneous
|
8.1
No Other Rights - Participation under
the Plan shall not be construed as giving an employee
any future right of employment with the
Company. Subject to applicable Rules, acceptance of any Award shall constitute
acceptance of the Company
’
s right to terminate employment at will,
and acceptance of all provisions of the Plan.
8.2
Vesting
Causing L
oss of Compensation Deduction
–
No part of an Award
shall vest, settle or be
delivered
to the extent
such vesting, settlement or
delivery
would cause the
Participant to have compensation which is nondeductible by the Company pursuant
to applicable Rules.
Any
Award
not
vested, settled or delivered
because of this limitation shall
vest, settle or be
delivered
in any subsequent
year in which the
vesting,
settlement or delivery
would not cause the loss of such deduction
.
8.3
Governing Law - This Plan and
al
l matters relating to the
Plan shall be interpreted and construed under the laws of the State of Delaware
using any dispute resolution methods selected by the
Committee.
8.4
Termination of Plan - The Board of
Directors may, at its discretion, terminate
the Plan at any time for any
reason.
Except
as provided in Section 7.1, termination
of the Plan shall not affect unexpired
outstanding
Awards
previously granted.
8.5 Repricing
– The terms of outstanding options and appreciation rights may not be amended,
without stockholder approval, to reduce the purchase price applicable to such
Awards or cancel, exchange, substitute, buyout or surrender such outstanding
options or appreciation rights in exchange for cash, other Awards or options or
appreciation rights with an option price that is less than the purchase price of
the original options or appreciation rights.