Exhibit 10(viii)
KULICKE AND SOFFA INDUSTRIES, INC.
1994 EMPLOYEE INCENTIVE STOCK OPTION AND
NON-QUALIFIED STOCK OPTION PLAN
(As Amended and Restated Effective October 8, 1996)
SECTION 1. Purpose
This KULICKE AND SOFFA INDUSTRIES, INC. 1994 EMPLOYEE STOCK
OPTION PLAN ("Plan") is intended to provide a means whereby
KULICKE AND SOFFA INDUSTRIES, INC. ("Company") and any Subsidiary
(as hereinafter defined) may, through the grant of incentive
stock options and non-qualified stock options (collectively,
"Options") to officers and other Key Employees (as defined in
Section 3), attract and retain such Key Employees and motivate
such Key Employees to exercise their best efforts on behalf of
the Company and of any Subsidiary.
As used in the Plan, the term "incentive stock options" ("ISOs")
means Options which qualify as incentive stock options within the
meaning of section 422 of the Internal Revenue Code of 1986, as
amended from time to time ("Code"), at the time they are granted
and which are either designated as ISOs in the Grant Letters (as
hereinafter defined) covering such Options or which are
designated as ISOs by the Committee (as defined in Section 2
hereof) at the time of grant. The term "non-qualified stock
options" ("NQSOs") means all other Options granted under the
Plan. The term "Subsidiary" means any corporation (whether or
not in existence at the time the Plan is adopted) which, at the
time an Option is granted, is a subsidiary of the Company under
the definition of "subsidiary corporation" contained in section
424(f) of the Code or any similar provision hereafter enacted.
SECTION 2. Administration
The Plan shall be administered by the Company's Compensation
Committee ("Committee"), which shall consist of not fewer than
two (2) "non-employee directors" (within the meaning of Rule 16b-
3(b)(3) under the Securities Exchange Act of 1934, or any
successor thereto) of the Company who are also "outside
directors" (within the meaning of Treas. Reg. Section 1.162-
27(e)(3), or any successor thereto), who shall be appointed by,
and shall serve at the pleasure of, the Company's Board of
Directors ("Board"). Each member of such Committee, while
serving as such, shall be deemed to be acting in his or her
capacity as a director of the Company.
The Committee shall have full and final authority in its absolute
discretion, subject to the terms of the Plan, to select the
persons to be granted ISOs and NQSOs under the Plan, to grant
Options on behalf of the Company, and to set the date of grant
and the other terms of such Options. The Committee may correct
any defect, supply any omission and reconcile any inconsistency
in the Plan and in any Option granted hereunder in the manner and
to the extent it shall deem desirable. The Committee also shall
have the authority to establish such rules and regulations, not
inconsistent with the provisions of the Plan, for the proper
administration of the Plan, and to amend, modify or rescind any
such rules and regulations, and to make such determinations and
interpretations under, or in connection with, the Plan, as it
deems necessary or advisable. All such rules, regulations,
determinations and interpretations shall be binding and
conclusive upon the Company, its shareholders and all officers
and employees and former officers and employees, and upon their
respective legal representatives, beneficiaries, successors and
assigns and upon all other persons claiming under or through any
of them.
No member of the Board or the Committee shall be liable for any
action or determination made in good faith with respect to the
Plan or any Option granted hereunder.
SECTION 3. Eligibility
The class of employees who shall be eligible to receive Options
under the Plan shall be the Key Employees (including any
directors who also are Key Employees) of the Company and/or of a
Subsidiary. A "Key Employee" is an officer or other employee who
occupies a responsible executive, professional, managerial or
administrative position and who the Committee believes has the
capacity to contribute to the long-term success of the Company
and its Subsidiaries. More than one Option may be granted to a
Key Employee under the Plan.
SECTION 4. Stock
The number of shares of common stock of the Company, no par value
("Common Shares"), that may be subject to Options under the Plan
shall be 850,000 shares, subject to adjustment as hereinafter
provided. Shares issuable under the Plan may be authorized but
unissued shares or reacquired shares, as the Company may
determine from time to time. Any Common Shares subject to an
Option which expires or otherwise terminates for any reason
whatever (including, without limitation, the Key Employee's
surrender thereof) without having been exercised shall continue
to be available for the granting of Options under the Plan.
Notwithstanding anything in this Plan to the contrary, no Key
Employee shall receive Options for more than 300,000 Common
Shares under the Plan. If an Option is cancelled, the Common
Shares covered by the cancelled Option shall be counted against
such maximum number of shares for which Options may be granted to
a single Key Employee. If the exercise price of an Option is
reduced after the date of grant, the transaction shall be treated
as a cancellation of the original Option and the grant of a new
Option for purposes of counting the maximum number of shares for
which Options may be granted to a single Key Employee.
SECTION 5. Annual Limit
(a) ISOs. The aggregate Fair Market Value (determined as
of the date the ISO is granted) of the Common Shares with respect
to which ISOs become exercisable for the first time by a Key
Employee during any calendar year (under this Plan and any other
ISO plan of the Company or any parent corporation (within the
meaning of section 424(e) of the Code ("Parent")) or Subsidiary)
shall not exceed $100,000. The term "Fair Market Value" shall
mean the value of the Common Shares arrived at by a good faith
determination of the Committee and shall be:
1. The quoted closing price, if there is a market for
and there are sales of Common Shares on a registered securities
exchange or in an over the counter market, on the date specified;
2. The weighted average of the quoted closing prices
on the nearest date before and the nearest date after the
specified date, if there are no sales of Common Shares on the
specified date but there are such sales on dates within a
reasonable period both before and after the specified date;
3. The mean between the bid and asked prices, as
reported by the National Quotation Bureau on the specified date,
if actual sales are not available during a reasonable period
beginning before and ending after the specified date; or
4. Such other method of determining Fair Market Value
as shall be authorized by the Code, or the rules or regulations
thereunder, and adopted by the Committee.
Where the Fair Market Value of Common Shares is determined under
(2) above, the average of the closing prices on the nearest sales
date before and the nearest date after the specified date shall
be weighted inversely by the respective numbers of trading days
between the dates of reported sales and the specified date (i.e.,
the valuation date), in accordance with Treasury Regulation
Section 20.2031-2(b)(1), or any successor thereto, under the
Code.
(b) Options Over Annual Limit. If an Option intended as an
ISO is granted to a Key Employee and such Option may not be
treated in whole or in part as an ISO pursuant to the limitation
in (a) above, such Option shall be treated as an ISO to the
extent it may be so treated under such limitation and as a NQSO
as to the remainder. For purposes of determining whether an ISO
would cause such limitation to be exceeded, ISOs shall be taken
into account in the order granted.
(c) NQSOs. The annual limit set forth above for ISOs shall
not apply to NQSOs.
SECTION 6. Options
(a) Granting of Options. From time to time until the
expiration or earlier suspension or discontinuance of the Plan,
the Committee may, on behalf of the Company, grant to Key
Employees under the Plan such Options as it determines are
warranted, subject to the limitations of the Plan; provided,
however, that grants of ISOs and NQSOs shall be separate and not
in tandem (i.e., a Key Employee's exercise of an ISO shall not
affect his or her right to exercise an NQSO, and vice versa).
The granting of an Option under the Plan shall not be deemed
either to entitle the Key Employee to, or to disqualify the Key
Employee from, any participation in any other grant of Options
under the Plan. In making any determination as to whether a Key
Employee shall be granted an Option and as to the number of
shares to be covered by such Option, the Committee shall take
into account the duties of the Key Employee, the Committee's
views as to his or her present and potential contributions to the
success of the Company or a Subsidiary, and such other factors as
the Committee shall deem relevant in accomplishing the purposes
of the Plan. Moreover, the Committee may determine that the
Grant Letter (as defined below) shall provide that said Option
may be exercised only if certain conditions, as determined by the
Committee, are fulfilled.
(b) Terms and Conditions of Options. The Options granted
pursuant to the Plan shall specify whether they are ISOs or
NQSOs; however, if the Option is not designated in the Grant
Letter as an ISO or NQSO, the Option shall constitute an ISO if
it complies with the terms of section 422 of the Code, and
otherwise, it shall constitute an NQSO. In addition, the Options
granted pursuant to the Plan shall include expressly or by
reference the following terms and conditions, as well as such
other provisions not inconsistent with the provisions of this
Plan as the Committee shall deem desirable, and for ISOs granted
under this Plan, the provisions of section 422(b) of the Code:
(1) Number of Shares. A statement of the number of
Common Shares to which the Option pertains.
(2) Price. A statement of the Option exercise price,
which shall be determined and fixed by the Committee in its
discretion at the time of grant, but shall not be less than 100%
(110% in the case of an ISO granted to a more than 10%
shareholder as provided in Subsection (9) below) of the Fair
Market Value of the optioned Common Shares on the date the Option
is granted.
(3) Term.
(A) ISOs. Subject to earlier termination as
provided in Subsections (5), (6) and (7) below, the term of each
ISO shall be not more than 10 years (5 years in the case of a
more than 10% shareholder as provided in (9) below) from the date
of grant.
(B) NQSOs. Subject to earlier termination as
provided in Subsections (5), (6) and (7) below, the term of each
NQSO shall be not more than 10 years from the date of grant.
(4) Exercise.
(A) General. Options shall be exercisable in
such installments and on such dates, commencing not less than 12
months from the date of grant, as the Committee may specify,
provided that:
(i) In the case of new Options granted to a
Key Employee in replacement for options (whether granted under
this Plan or otherwise) held by the Key Employee, the new Options
may be made exercisable, if so determined by the Committee, in
its discretion, at the earliest date the replaced options were
exercisable; and
(ii) The Committee may accelerate the
exercise date of any outstanding Options in its discretion, if it
deems such acceleration to be desirable.
Any Common Shares the right to the purchase of which has accrued
under an Option may be purchased at any time up to the expiration
or termination of the Option. Exercisable Options may be
exercised, in whole or in part, from time to time by giving
written notice of exercise to the Company at its principal
office, specifying the number of Common Shares to be purchased
and accompanied by payment in full of the aggregate Option
exercise price for such shares. Options may not be exercised in
installments of less than 25 shares, unless such Option is
exhausted upon its exercise. Only full shares shall be issued
under the Plan, and any fractional share which might otherwise be
issuable upon the exercise of an Option granted hereunder shall
be forfeited.
(B) Manner of Payment. The Option price shall be
payable:
(i) In cash or its equivalent;
(ii) In the case of an ISO, if the
Committee, in its discretion, causes the Grant Letter so to
provide and in the case of an NQSO if the Committee, in its
discretion, so determines at or prior to the time of exercise, in
Common Shares previously acquired by the Key Employee, provided
that if such shares were acquired through the exercise of an ISO
granted under this Plan or any other plan of the Company and are
used to pay the Option exercise price of an ISO, such shares have
been held by the Key Employee for a period of not less than the
holding period described in section 422(a)(1) of the Code on the
date of exercise, or if such Common Shares were acquired through
exercise of an NQSO or ISO granted under this Plan or any other
plan of the Company and are used to pay the Option exercise price
of an NQSO, such shares have been held by the Key Employee for a
period of more than 12 months on the date of exercise; or
(iii) In the discretion of the Committee, in
any combination of (i) and (ii) above.
In the event such Option exercise price is paid, in whole or in
part, with Common Shares, the portion of the Option exercise
price so paid shall equal the Fair Market Value on the date of
exercise of the Option of the Common Shares surrendered in
payment of such Option exercise price.
(5) Termination of Employment. If a Key Employee's
employment by the Company (and Subsidiaries) is terminated by
either party prior to the expiration date fixed for his or her
Option for any reason other than death, disability, or Cause (as
hereinafter defined), such Option may be exercised, to the extent
of the number of shares with respect to which the Key Employee
could have exercised it on the date of such termination, or to
any greater extent permitted by the Committee, by the Key
Employee at any time prior to the earlier of:
(A) The expiration date specified in such Option;
or
(B) Three months after the date of such
termination of employment.
With respect to Options granted on or after October 8, 1996, the
foregoing provisions of this Subsection (5) shall apply in the
event of termination of employment for any reason other than
death, disability, Retirement, or Cause. If a Key Employee's
employment by the Company (and Subsidiaries) is terminated for
Cause, all Options held by the Key Employee shall terminate
concurrently with receipt by the Optionee of oral or written
notice that his or her employment has been terminated. For
purposes of this Plan, termination for Cause shall include
termination by reason of any dishonest or illegal act, or any
willful refusal or failure to perform duties properly assigned.
(5a) Exercise upon Retirement of Key Employee. With
respect to Options granted on or after October 8, 1996, if a Key
Employee's employment is terminated prior to the expiration date
fixed for his or her Option by reason of Retirement (as
hereinafter defined), such Option shall accelerate and may be
exercised, to the extent it remains unexercised on the date of
such Retirement, by the Key Employee at any time prior to the
earlier of:
(A) The expiration date specified in such Option;
or
(B) Three months after the date of such
Retirement.
For purposes of this Plan, Retirement shall mean a Key Employee's
retirement from the Company and its Subsidiaries at or after age
65, or before age 65 if expressly agreed to by the Company.
(6) Exercise upon Disability of Key Employee.
Effective with respect to Options outstanding on October 8, 1996
and Options granted on and after such date, if a Key Employee
shall become disabled (within the meaning of section 22(e)(3) of
the Code) during his or her employment and, prior to the
expiration date fixed for his or her Option, his or her
employment is terminated as a consequence of such disability,
such Option shall accelerate and may be exercised, to the extent
it remains unexercised on the date of such termination, by the
Key Employee at any time prior to the earlier of:
(A) The expiration date specified in such Option;
or
(B) One year after the date of such termination
of employment.
In the event of the Key Employee's legal disability, such Option
may be so exercised by the Key Employee's legal representative.
(7) Exercise upon Death of Key Employee. Effective
with respect to Options outstanding on October 8, 1996 and
Options granted on and after such date, if a Key Employee shall
die during his or her employment and prior to the expiration date
fixed for his or her Option, or if a Key Employee whose
employment is terminated for any reason shall die following his
or her termination of employment but prior to the earliest of:
(A) The expiration date fixed for his or her
Option;
(B) The expiration of the period determined under
Subsections (5), (5a) (if applicable), and (6) above; or
(C) In the case of an ISO which is to remain an
ISO, three months following termination of employment; his or her
Option shall accelerate and may be exercised, to the extent it
remains unexercised on the date of his or her death, by the Key
Employee's estate, personal representative or beneficiary who
acquired the right to exercise such Option by bequest or
inheritance or by reason of the death of the Key Employee, at any
time prior to the earlier of:
(i) The expiration date specified in such
Option; or
(ii) One year after the date of death.
(8) Rights as a Shareholder. A Key Employee shall
have no rights as a shareholder with respect to any shares
covered by his or her Option until the issuance of a stock
certificate to him or her for such shares.
(9) Ten Percent Shareholder. If the Key Employee owns
more than 10% of the total combined voting power of all shares of
stock of the Company or of a Subsidiary or Parent at the time an
ISO is granted to such Key Employee, the Option exercise price
for the ISO shall be not less than 110% of the Fair Market Value
of the optioned Common Shares on the date the ISO is granted, and
such ISO, by its terms, shall not be exercisable after the
expiration of five years after the date the ISO is granted. The
conditions set forth in this Subsection (9) shall not apply to
NQSOs.
(c) Grant Letters. Options granted under the Plan shall be
evidenced by written documents ("Grant Letters") in such form as
the Committee shall, from time to time, approve, which Grant
Letters shall contain such provisions, not inconsistent with the
provisions of the Plan, for NQSOs granted pursuant to the Plan,
and such conditions, not inconsistent with section 422(b) of the
Code or the provisions of the Plan, for ISOs granted pursuant to
the Plan, as the Committee shall deem advisable, and which Grant
Letters shall specify whether the Option is an ISO or NQSO;
provided, however, if the Option is not designated in the Grant
Letter as an ISO or NQSO, the Option shall constitute an ISO if
it complies with the terms of section 422 of the Code, and
otherwise, it shall constitute an NQSO. Each Key Employee shall
be bound by the terms of the Grant Letter.
SECTION 7. Capital Adjustments
The number of shares which may be issued under the Plan, the
maximum number of shares with respect to which Options may be
granted to any Key Employee under the Plan, both as stated in
Section 4 hereof, and the number of shares issuable upon exercise
of outstanding Options under the Plan (as well as the Option
exercise price per share under such outstanding Options) shall,
subject to the provisions of section 424(a) of the Code, be
adjusted, as may be deemed appropriate by the Committee, to
reflect any stock dividend, stock split, share combination, or
similar change in the capitalization of the Company.
In the event of a corporate transaction (as that term is
described in section 424(a) of the Code and the Treasury
Regulations issued thereunder as, for example, a merger,
consolidation, acquisition of property or stock, separation,
reorganization, or liquidation), each outstanding Option shall be
assumed by the surviving or successor corporation; provided,
however, that in the event of a proposed corporate transaction,
the Committee may terminate all or a portion of the outstanding
Options if it determines that such termination is in the best
interests of the Company. If the Committee decides to terminate
outstanding Options, the Committee shall give each Key Employee
holding an Option to be terminated not less than ten days' notice
prior to any such termination by reason of such a corporate
transaction, and any such Option which is to be so terminated
shall become fully exercisable and may be exercised up to, and
including the date immediately preceding such termination.
The Committee also may, in its discretion, change the terms of
any outstanding Option to reflect any such corporate transaction,
provided that, in the case of ISOs which are to remain ISOs, such
change is excluded from the definition of a "modification" under
section 424(h) of the Code unless the Option holder consents to
such change.
SECTION 8. Change in Control
All Options shall become fully vested and exercisable upon a
Change in Control of the Company. "Change in Control" shall mean
any of the following events:
(a) An acquisition (other than directly from the Company of
any voting securities of the Company ("Voting Securities") by any
"Person" (as such term is used for purposes of section 13(d) or
14(d) of the Securities Exchange Act of 1934, as amended (the
"1934 Act")) immediately after which such Person has "Beneficial
Ownership" (within the meaning of Rule 13d-3 promulgated under
the 1934 Act) of 50% or more of the combined voting power of all
then outstanding Voting Securities, provided, however, that any
such acquisition approved by two-thirds of the Incumbent Board
(as hereinafter defined) shall not be deemed to be a Change in
Control;
(b) The individuals who, as of December 13, 1994, are
members of the Company's Board of Directors (the "Incumbent
Board") cease for any reason to constitute at least two-thirds of
the Board of Directors; provided, however, that if the election,
or nomination for election by the shareholders, of any new
director was approved by a vote of at least two-thirds of the
members of the Board of Directors who constitute Incumbent Board
members, such new directors shall for all purposes be considered
as members of the Incumbent Board as of December 13, 1994;
provided further, however, that no individual shall be considered
a member of the Incumbent Board if such individual initially
assumed office as a result of either an actual or threatened
"Election Contest" (as described in Rule 14a-11 promulgated under
the 1934 Act) or other actual or threatened solicitation of
proxies or consents by or on behalf of a Person other than the
Board of Directors (a "Proxy Contest") including by reason of any
agreement intended to avoid or settle any Election Contest or
Proxy Contest;
(c) Approval by shareholders of the Company of (1) a merger
or consolidation involving the Company if the shareholders of the
Company immediately before such merger or consolidation do not
own, directly or indirectly, immediately following such merger or
consolidation more than 50% of the combined voting power of the
outstanding Voting Securities of the corporation resulting from
such merger or consolidation in substantially the same proportion
as their ownership of the Voting Securities immediately before
such merger or consolidation or (2) a complete liquidation or
dissolution of the Company or an agreement for the sale or other
disposition of all or substantially all of the assets of the
Company; or
(d) Acceptance of shareholders of the Company of shares in
a share exchange if the shareholders of the Company immediately
before such share exchange do not own, directly or indirectly,
immediately following such share exchange more than 50% of the
combined voting power of the outstanding Voting Securities of the
corporation resulting from such share exchange in substantially
the same proportion as their ownership of the Voting Securities
outstanding immediately before such share exchange.
SECTION 9. Amendment or Discontinuance of the Plan
At any time and from time to time, the Board may suspend or
terminate the Plan or amend it, and the Committee may amend any
outstanding Options, in any respect whatsoever, except that the
following amendments shall require the approval by the
affirmative votes of holders of at least a majority of the shares
present, or represented, and entitled to vote at a duly held
meeting of shareholders of the Company:
(a) Any amendment which would:
(1) Materially increase the benefits accruing to
directors and officers, within the meaning of Rule 16a-1(f) under
the 1934 Act (hereinafter referred to as "Officers"), under the
Plan;
(2) Materially increase the number of Common Shares
which may be issued to directors and Officers under the Plan; or
(3) Materially modify the requirements as to
eligibility for directors and Officers to participate in the
Plan;
(b) With respect to ISOs, any amendment which would:
(1) Change the class of employees eligible to
participate in the Plan;
(2) Except as permitted under Section 7 hereof,
increase the maximum number of Common Shares with respect to
which ISOs may be granted under the Plan; or
(3) Extend the duration of the Plan under Section 10
hereof with respect to any ISOs granted hereunder; and
(c) Any amendment which would require shareholder approval
pursuant to Treasury Regulation No. 1.162-27(e)(4)(vi), or any
successor thereto.
Notwithstanding the foregoing, no such suspension, discontinuance
or amendment shall materially impair the rights of any holder of
an outstanding Option without the consent of such holder.
SECTION 10. Termination of Plan
Unless earlier terminated as provided in the Plan, the Plan and
all authority granted hereunder shall terminate absolutely at
12:00 midnight on December 12, 2004, which date is within ten
years after the date the Plan was adopted by the Board, and no
Options hereunder shall be granted thereafter. Nothing contained
in this Section 10, however, shall terminate or affect the
continued existence of rights created under Options issued
hereunder and outstanding on December 12, 2004 which by their
terms extend beyond such date.
SECTION 11. Effective Date
This Plan became effective on December 13, 1994 (the date the
Plan was adopted by the Board), and was approved by shareholders
on February 14, 1995. As amended and restated, the Plan shall be
effective October 8, 1996.
SECTION 12. Miscellaneous
Governing Law. The Plan and the Grant Letters entered into, and
the Options granted thereunder, shall be governed by the
applicable Code provisions to the maximum extent possible.
Otherwise, the operation of, and the rights of Key Employees
under, the Plan, the Grant Letters, and the Options shall be
governed by applicable federal law and otherwise by the laws of
the Commonwealth of Pennsylvania.
Rights. Neither the adoption of the Plan nor any action of the
Board or the Committee shall be deemed to give any individual any
right to be granted an Option, or any other right hereunder,
unless and until the Committee shall have granted such individual
an Option, and then his or her rights shall be only such as are
provided by this Plan and the Grant Letter.
Any Option under the Plan shall not entitle the holder thereof to
any rights as a shareholder of the Company prior to the exercise
of such Option and the issuance of the shares pursuant thereto.
Further, notwithstanding any provisions of the Plan or any Grant
Letter with a Key Employee, the Company shall have the right, in
its discretion, to retire a Key Employee at any time pursuant to
its retirement rules or otherwise to terminate his or her
employment at any time for any reason whatsoever.
No Obligation to Exercise Option. The granting of an Option
shall impose no obligation upon a Key Employee to exercise such
Option.
Non-Transferability. No Option which is to remain an ISO and,
except as otherwise provided by the Committee, no other Option
shall be assignable or transferable by the Key Employee otherwise
than by will or by the laws of descent and distribution, and
subject to the preceding clause, during the lifetime of the Key
Employee, any Options shall be exercisable only by him or her or
by his or her guardian or legal representative. If a Key
Employee is married at the time of exercise of an Option and if
the Key Employee so requests at the time of exercise, the
certificate or certificates issued shall be registered in the
name of the Key Employee and the Key Employee's spouse, jointly,
with right of survivorship.
Withholding and Use of Shares to Satisfy Tax Obligations. The
obligation of the Company to deliver Common Shares to a Key
Employee pursuant to any Option under the Plan shall be subject
to applicable federal, state and local tax withholding
requirements.
In order to satisfy the withholding requirements of applicable
federal tax laws, the Committee, in its discretion (and subject
to such withholding rules ("Withholding Rules") as shall be
adopted by the Committee), may permit the Key Employee to satisfy
the minimum required federal withholding tax, in whole or in
part, by electing to have the Company withhold (or by returning
to the Company) Common Shares, which shares shall be valued, for
this purpose, at their Fair Market Value on the date of exercise
of the Option (or if later, the date on which the Key Employee
recognizes ordinary income with respect to such exercise)
("Determination Date"). An election to use Common Shares to
satisfy tax withholding requirements must be made in compliance
with and subject to the Withholding Rules. The Company may not
withhold shares in excess of the number necessary to satisfy the
minimum required federal income tax withholding requirements. In
the event Common Shares acquired under the exercise of an ISO,
granted under this Plan or any other plan of the Company, are
used to satisfy such withholding requirement, such Common Shares
must have been held by the Key Employee for a period of not less
than the holding period described in section 422(a)(1) of the
Code on the Determination Date, or if such Common Shares were
acquired through exercise of an NQSO, granted under the Plan or
any other plan of the Company, such option must have been granted
to the Key Employee at least six (6) months prior to the
Determination Date.
Listing and Registration of Shares. Each Option shall be subject
to the requirement that, if at any time the Committee shall
determine, in its discretion, that the listing, registration or
qualification of the shares covered thereby upon any securities
exchange or under any state or federal law, or the consent or
approval of any governmental regulatory body, is necessary or
desirable as a condition of, or in connection with, the granting
of such Option or the purchase or vesting of shares thereunder,
or that action by the Company or by the Key Employee should be
taken in order to obtain an exemption from any such requirement,
no such Option may be exercised, in whole or in part, unless and
until such listing, registration, qualification, consent,
approval, or action shall have been effected, obtained, or taken
under conditions acceptable to the Committee. Without limiting
the generality of the foregoing, each Key Employee or his or her
legal representative or beneficiary may also be required to give
satisfactory assurance that shares purchased upon exercise of an
Option are being purchased for investment and not with a view to
distribution, and certificates representing such shares may be
legended accordingly.