EXHIBIT 10.2
JEVIC TRANSPORTATION, INC.
1994 STOCK OPTION PLAN
Section 1. Purposes.
The purposes of the Plan are (a) to recognize and compensate
selected employees of the Company and its Subsidiaries who contribute to the
development and success of the Company and its Subsidiaries; (b) to maintain the
competitive position of the Company and its Subsidiaries by attracting and
retaining employees; and (c) to provide incentive compensation to such employees
based upon the Company's performance as measured by the appreciation in Common
Stock. The Options granted pursuant to the Plan are intended to constitute
either incentive stock options within the meaning of Section 422 of the Code, or
non-qualified stock options, as determined by the Board or the Committee at the
time of grant. The type of Options granted will be specified in the Option
Agreement between the Company and the recipient of the Options. The terms of
this Plan shall be incorporated in the Option Agreement to be executed by the
Optionee.
Section 2. Definitions.
(a) "Board" shall mean the Board of Directors of the Company,
as constituted from time to time.
(b) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(c) "Committee" shall mean the Committee appointed by the
Board in accordance with Section 4(a) of the Plan.
(d) "Company" shall mean Jevic Transportation, Inc., a New
Jersey corporation.
(e) "Common Stock" shall mean common stock of the Company,
$.01 par value per share.
(f) "Disability" or "Disabled" shall mean the inability of a
Participant or Optionee, as the case may be, to perform his or her normal
employment duties for the Company resulting from a mental or physical illness,
impairment or any other similar occurrence which can be expected to result in
death or which has lasted or can be expected to last for a period of twelve (12)
consecutive months, as determined by the Board of Directors.
(g) "Employee" shall mean any person (including officers)
employed by the Company or any Subsidiary. A director of the Company or any
Subsidiary shall not be considered to be employed by the Company or any
Subsidiary for purposes of this Plan solely by reason of
serving as such director or receiving compensation from the Company or any
Subsidiary for serving as such director.
(h) "Exchange Act" shall mean the Securities Exchange Act of
1934, as in effect from time to time.
(i) "Fair Market Value" shall mean the fair market value of a
share of Common Stock, as determined pursuant to Section 7 hereof.
(j) "Option" shall mean an incentive stock option or
non-qualified stock option to purchase Common Stock that is granted pursuant to
the Plan.
(k) "Option Agreement" shall mean a written agreement in such
form or forms as the Board (subject to the terms and conditions of this Plan)
may from time to time approve evidencing and reflecting the terms of an Option.
(l) "Optionee" shall mean a Participant to whom an Option is
granted.
(m) "Participant" shall mean each Employee.
(n) "Plan" shall mean this 1994 Stock Option Plan, as amended
from time to time.
(o) "Proprietary Information" shall mean any and all
confidential, proprietary, business and technical information or trade secrets
of the Company or of any Subsidiary or affiliate of the Company revealed,
obtained or developed in the course of Optionee's employment with the Company or
in the course of Optionee's performance of services for the Company in any other
capacity. Such Proprietary Information shall include but shall not be limited
to, methods of production and manufacture, research, marketing and development
plans and efforts, cost information, pricing information, marketing methods and
plans, identities of customers and suppliers, the Company's relationship with
actual or potential customers and the needs and requirements of any such actual
or potential customers, and any other confidential information relating to the
business of the Company. Proprietary Information shall not include (i) such
information as may be necessary or appropriate for an Optionee to disclose in
the course of his employment for the effective and efficient discharge of his
duties as an employee of the Company or as may be required by law to be
disclosed; and (ii) such information as is readily available to the general
public so long as such information did not become available to the general
public as a direct or indirect result of Optionee's breach of his obligation to
maintain confidentiality.
(p) "Public Offering" shall mean the consummation of an
underwritten public offering of the equity of the Company pursuant to the
Securities Act of 1933, as amended, which results in aggregate gross cash
proceeds to the Company (prior to the deduction of underwriters' commissions and
expenses, if any) of not less than Thirty Million Dollars ($30,000,000), and the
Company's outstanding equity had an aggregate market valuation of at least One
Hundred Million Dollars ($100,000,000).
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(q) "Sale of the Company" shall mean (i) a sale, transfer,
assignment of other disposition (including by merger or consolidation but
excluding a Public Offering), in one transaction or a series of related
transactions, of all of the outstanding Shares of the Company by the holders
thereof or of all or substantially all of the assets of the Company, (ii) a
liquidation of the Company, or (iii) dissolution of the Company.
(r) "Securities Act" shall mean the Securities Act of 1933, as
in effect from time to time.
(s) "Shares" shall mean shares of Common Stock.
(t) "Stock Purchase Agreement" shall mean an agreement in such
form as the Board may from time to time approve, which an Optionee may be
required to execute as a condition of purchasing Shares upon exercise of an
Option.
(u) "Subsidiary" shall mean a subsidiary corporation of the
Company, whether now or hereafter existing, as defined in Sections 424(f) and
(g) of the Code.
Section 3. Participation.
The Board may grant Options at any time and from time to time
to Participants who shall be selected by the Board. Options may be granted only
to Participants. Any grant of Options may include or exclude any Participant, as
the Board shall determine in its sole discretion. A Participant who has been
granted an Option, if he or she is otherwise eligible, may be granted additional
Options.
Section 4. Administration.
(a) Procedure. The Plan shall be administered by the Board or
a Committee consisting of not less than two persons appointed by the Board.
Members of the Board or the Committee who are eligible for Options or have been
granted Options may vote on any matters affecting the administration of the Plan
or the grant of any Options pursuant to the Plan, except that no such member
shall act upon the granting of an Option to himself or herself, but any such
member may be counted in determining the existence of a quorum at any meeting of
the Board or Committee during which action is taken with respect to the granting
of Options to himself or herself.
If a Committee is appointed by the Board, the Committee shall
have the power to administer the Plan on behalf of the Board, and the Committee
shall possess all of the power and authority of, and shall be authorized to take
any and all actions required to be taken hereunder by, and make any and all
determinations required to be made hereunder by, the Board, subject to such
terms and conditions as the Board may prescribe. Members of the Committee shall
serve for such period of time as the Board may determine. From time to time the
Board may increase
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the size of the Committee and appoint additional members thereto, remove members
(with or without cause) and appoint new members in substitution therefor, fill
vacancies however caused, or remove all members of the Committee and thereafter
directly administer the Plan. If no Committee is appointed, any and all actions
required to be taken hereunder by, and any and all determinations required to be
made hereunder by, the Committee shall instead be taken or made by the Board.
(b) Powers of the Board and the Committee. Subject to the
provisions of the Plan, the Board or its Committee shall have the authority, in
its discretion: (i) to grant Options; (ii) to determine the Fair Market Value
per Share in accordance with Section 7 of the Plan; (iii) to determine the
exercise price of the Options to be granted in accordance with Sections 6 and 7
of the Plan; (iv) to determine the Participants to whom, and the time or times
at which, Options shall be granted, and the number of Shares to be subject to
each Option; (v) to prescribe, amend and rescind rules and regulations relating
to the Plan; (vi) to determine the terms and provisions of each Option granted
under the Plan, each Option Agreement and each Stock Purchase Agreement (which
need not be identical with the terms of other Options, Option Agreements and
Stock Purchase Agreements), (vii) to modify or amend any Option, Option
Agreement or Stock Purchase Agreement, including, without limitation, to
accelerate the exercise date of any Option or to change the termination date of
any Option, (viii) to determine whether any Participant will be required to
execute a Stock Purchase Agreement or other agreement as a condition to the
exercise of an Option, and to determine the terms and provisions of any such
agreement (which need not be identical with the terms of any other such
agreement) and, with the consent of the Optionee, to amend any such agreement;
(ix) to interpret the Plan or any agreement entered into with respect to the
grant or exercise of Options; (x) to authorize any person to execute on behalf
of the Company any instrument required to effectuate the grant of an Option
previously granted by the Board or to take such other actions as may be
necessary or appropriate with respect to the Company's rights pursuant to
Options or agreements relating to the grant or exercise thereof; and (xii) to
make such other determinations and establish such other procedures as it deems
necessary or advisable for the administration of the Plan.
(c) Effect of the Board's or Committee's Decision. All
decisions, determinations and interpretations of the Board or the Committee
shall be final and binding on all Optionees and any other holders of any Options
granted under the Plan.
(d) Limitation of Liability. Notwithstanding anything herein
to the contrary, no member of the Board or of the Committee shall be liable for
any good faith determination, act or failure to act in connection with the Plan
or any Option granted hereunder.
Section 5. Stock Subject to the Plan.
Subject to this Section 5 and to the provisions of Section 8
of the Plan, the maximum aggregate number of Shares which may be optioned and
sold under the Plan is Twenty (20). Options may be either incentive stock
options or non-qualified stock options, as determined by the Board.
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If an Option expires or becomes unexercisable for any reason without having been
exercised in full, the Shares subject to such Option shall, unless the Plan
shall have been terminated, return to the Plan and become available for future
grant under the Plan.
Section 6. Terms and Conditions of Options.
Each Option granted pursuant to the Plan shall be authorized
by the Board and shall be evidenced by an Option Agreement. Each Option
Agreement shall incorporate by reference all other terms and conditions of the
Plan, and shall contain the following terms and conditions:
(a) Number of Shares. The number of shares subject to the
Option.
(b) Option Price. The price per share payable on the exercise
of any Option shall be stated in the Option Agreement and shall be determined by
the Committee. Notwithstanding the foregoing, if an Option which is an incentive
stock Option shall be granted under this Plan, the price payable upon exercise
shall be no less than 100 percent (100%) of the Fair Market Value per share of
the Common Stock on the date such Option is granted, and if it is granted to any
person who, at the time of the grant of such Option, owns capital stock
possessing more than 10% of the total combined voting power of all classes of
the Company's capital stock, the price per share payable upon exercise of such
incentive stock Option shall be no less than 110 percent (110%) of the Fair
Market Value per share of the Common Stock on the date such Option is granted.
(c) Consideration. The consideration to be paid for the Shares
to be issued upon exercise of an Option, including the method of payment, shall
be determined by the Board and may consist entirely of cash, check, promissory
notes or Shares having a Fair Market Value on the date of surrender equal to the
aggregate exercise price of the Shares as to which said Option shall be
exercised, or any combination of such methods of payment, or such other
consideration and method of payment permitted under any laws to which the
Company is subject which is approved by the Board. In making its determination
as to the type of consideration to accept, the Board shall consider if
acceptance of such consideration may be reasonably expected to benefit the
Company.
(i) If the consideration for the exercise of an Option is
a promissory note, it may, in the discretion of the Board, be either full
recourse or nonrecourse and shall bear interest at a per annum rate which is not
less than the applicable federal rate determined in accordance with Section
1274(d) of the Code as of the date of exercise. In such an instance, the Company
may, in its sole discretion, retain the Shares purchased upon exercise of the
Option in escrow as security for payment of the promissory note.
(d) Form of Option. The Option Agreement will state whether
the Option granted is an incentive stock option or a non-qualified stock option,
and will constitute a binding determination as to the form of Option granted.
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(e) Exercise of Options. Any Option granted hereunder shall be
exercisable at such times and under such conditions as shall be set forth in the
Option Agreement (as may be determined by the Board and as shall be permissible
under the terms of the Plan), which may include performance criteria with
respect to the Company and/or the Optionee, and as shall be permissible under
the terms of the Plan.
An Option may be exercised in accordance with the
provisions of this Plan as to all or any portion of the Shares then exercisable
under an Option from time to time during the term of the Option. At any time
that the number of shares of Common Stock outstanding exceeds 5,000,000, an
Option may not be exercised for a fraction of a Share.
An Option shall be deemed to be exercised when written
notice of such exercise has been given to the Company at its principal executive
office in accordance with the terms of the Option Agreement by the person
entitled to exercise the Option and full payment for the Shares with respect to
which the Option is exercised has been received by the Company, accompanied by
any agreements required by the terms of the Plan and/or Option Agreement,
including an executed Stock Purchase Agreement. Full payment may consist of such
consideration and method of payment allowable under Section 6 of the Plan. No
adjustment shall be made for a dividend or other right for which the record date
is prior to the date the Option is exercised, except as provided in Section 8 of
the Plan.
As soon as practicable after any proper exercise of an
Option in accordance with the provisions of the Plan, the Company shall, without
transfer or issue tax to the Optionee, deliver to the Optionee at the principal
executive office of the Company or such other place as shall be mutually agreed
upon between the Company and the Optionee, a certificate or certificates
representing the Shares for which the Option shall have been exercised. The time
of issuance and delivery of the certificate(s) representing the Shares for which
the Option shall have been exercised may be postponed by the Company for such
period as may be required by the Company, with reasonable diligence, to comply
with any applicable listing requirements of any national or regional securities
exchange or any law or regulation applicable to the issuance or delivery of such
Shares.
Exercise of an Option in any manner shall result in a
decrease in the number of Shares which thereafter may be available, both for
purposes of the Plan and for sale under the Option, by the number of Shares as
to which the Option is exercised.
(f) Vesting of Options.
Options shall vest as follows, provided that no Option
shall vest at the times set forth below if the Optionee is not then an employee
of the Company:
(i) An Option shall become 100% vested, to the extent not
sooner vested, on the date which is ten (10) years after the date of grant.
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(ii) Commencing on the first anniversary of the completion
by the Company of a Public Offering, and on each of the next four anniversaries
of such completion, each Option granted prior to the Public Offering will vest
in cumulative annual installments of twenty percent (20%) of the Shares subject
to purchase under such Option.
(iii) An Option shall become 100% vested 24 hours prior to
the closing of a Sale of the Company.
(g) Term and Exercise of Options.
(i) Options vested in accordance with Section 6(f)(i)
above must be exercised within thirty (30) days after the vesting date. Shares
purchased upon exercise of Options vested pursuant to Section 6(f)(i) shall be
subject to repurchase by the Company at their then-current Fair Market Value as
provided in the Option Agreement.
(ii) Options vested in accordance with Section 6(f)(ii)
may be exercised at any time during the period ending on the earlier of (i) the
expiration of the term of the Option as set forth in the Option Agreement, or
(ii) sixty (60) days after the termination of such Optionee's employment with
the Company; provided that if Optionee's termination of employment occurred by
reason of the Optionee's death or Disability, such Option may be exercised at
any time within one hundred eighty (180) days after the date of such Optionee's
death or Disability by the Optionee's personal representative or by the legatee
of the Optionee under the will of the Optionee.
(iii) Options vested in accordance with Section 6(f)(iii)
above must be exercised at or in connection with the closing of the Sale of the
Company.
(iv) Vested Options which are not exercised within the
applicable period of exercisability shall terminate.
(h) Termination of Options.
(i) Unless sooner terminated as provided in this Plan,
each Option shall be exercisable for the period of time as shall be determined
by the Board and set forth in the Option Agreement, and shall be void and
unexercisable thereafter.
(ii) Unvested Options will terminate if the employment of
the Optionee terminates for any reason (including by reason of death, Disability
or retirement). Vested or unvested Options may be terminated at any time by
agreement between the Company and the Optionee.
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(i) Forfeiture. Notwithstanding any other provision of this
Plan, if the Optionee's employment is terminated by the Company and the Board
makes a determination that the Optionee (i) has engaged in any type of
disloyalty to the Company, including without limitation, fraud, embezzlement,
theft, or dishonesty in the course of his employment, or (ii) has been convicted
of a felony or (iii) has disclosed any Proprietary Information without the
consent of the Company or (iv) has breached the terms of any written
confidentiality agreement or any non-competition agreement with the Company in
any material respect, all unexercised Options held by such Optionee shall
terminate on the date of such a finding.
Section 7. Determination of Fair Market Value of Common Stock.
(a) Except to the extent otherwise provided in this Section 7,
the Fair Market Value of a share of Common Stock shall be determined by the
Board in its sole discretion.
(b) In the event that Shares are traded in the
over-the-counter market, the Fair Market Value of a share of Common Stock shall
be the mean of the bid and asked prices for a share of Common Stock on the
relevant valuation date as reported in The Wall Street Journal, or, if there is
no trading on such date, on the next preceding trading date. In the event Shares
are listed on a national or regional securities exchange or traded in the Nasdaq
National Market, the Fair Market Value of a share of Common Stock shall be the
closing price of a share of Common Stock on the exchange or on Nasdaq National
Market, as reported in The Wall Street Journal on the relevant valuation date,
or if there is no trading on that date, on the next preceding trading date.
Section 8. Adjustments.
(a) Subject to required action by the shareholders, if
any, the number of shares of Common Stock as to which Options may be granted
under this Plan and the number of shares subject to outstanding Options and the
option prices thereof shall be adjusted proportionately for any increase or
decrease in the number of outstanding shares of Common Stock of the Company
resulting from stock splits, reverse stock splits, stock dividends,
reclassifications and recapitalizations.
(b) At any time that the number of shares of Common Stock
outstanding exceeds 5,000,000, (i) no Option shall vest in respect of a
fractional share of Common Stock, (ii) no fractional shares of Common Stock
shall be issuable upon the exercise of any Option on account of any action
mentioned in paragraph 8(a) above, and (iii) the aggregate number of shares into
which Shares then covered by under the Option, when changed as the result of
such action, shall be reduced to the number of whole shares resulting from such
action, unless the Board, in its sole discretion, shall determine to issue scrip
certificates with respect to any fractional shares, which scrip certificates, in
such event, shall be in a form and have such terms and conditions as the Board
in its discretion shall prescribe. The 5,000,000 number referred to in the
preceding sentence is not subject
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to adjustment in the case of stock splits, reverse stock splits, stock
dividends, reclassifications or recapitalizations pursuant to paragraph 8(a)
above.
Section 9. Rights as a Shareholder.
The Optionee shall have no rights as a shareholder of the
Company and shall have neither the right to vote nor receive dividends with
respect to any Shares subject to an Option until such Option has been exercised.
Section 10. Time of Granting Options.
The date of grant of an Option shall, for all purposes, be the
date on which the Board authorizes the granting of such Option. Notice of the
grant shall be given to each Participant to whom an Option is so granted within
a reasonable time after the date of such grant.
Section 11. Modification, Extension and Renewal of Option.
Subject to the terms and conditions of the Plan, the Board may
modify, extend or renew an Option, or accept the surrender of an Option (to the
extent not theretofore exercised). Notwithstanding the foregoing, (a) no
modification of an Option which adversely affects an Optionee shall be made
without the consent of such Optionee, and (b) no incentive stock Option may be
modified, extended or renewed if such action would cause it to cease to be an
"incentive stock option" under the Code, unless the Optionee specifically
acknowledges and consents to the tax consequences of such action.
Section 12. Conditions to Issuance of Shares Upon Exercise.
(a) The obligation of the Company to issue and sell Shares to
an Optionee upon the exercise of an Option granted under the Plan is conditioned
upon (i) the Company obtaining any required permit or order from appropriate
governmental agencies, authorizing the Company to issue and sell such Shares,
and (ii) such issuance and sale complying with all relevant provisions of law,
including, without limitation, the Securities Act, the Exchange Act, the rules
and regulations promulgated thereunder, and the requirements of any stock
exchange upon which the Shares may then be listed.
(b) At the option of the Board, the obligation of the Company
to issue and sell Shares to an Optionee upon the exercise of an Option granted
under the Plan may be conditioned upon obtaining appropriate representations,
warranties and agreements of the Optionee set forth in the Stock Purchase
Agreement. Among other representations, warranties, restrictions and agreements,
the Optionee may be required to represent and agree that the purchase of Shares
of Common Stock under the Option Agreement shall be for investment, and not with
a view to the public resale or distribution thereof, unless the Shares subject
to the Option are registered under the
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Securities Act and the issuance and sale of the Shares complies with all
other laws, rules and regulations applicable thereto. Unless the issuance of
such Shares is registered under the Securities Act, the Optionee shall
acknowledge that the Shares purchased on exercise of the Option are not
registered under the Securities Act and may not be sold or otherwise transferred
unless such Shares have been registered under the Securities Act in connection
with the sale or other transfer, or counsel satisfactory to the Company has
issued an opinion satisfactory to the Company that the sale or other transfer is
exempt from registration under the Securities Act, and unless said sale or other
transfer is in compliance with any other applicable laws, rules and regulations
including all applicable federal and state securities laws, rules and
regulations. Unless the Shares subject to an Option are registered under the
Securities Act, the certificates representing all Shares issued upon exercise of
such Option shall contain the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED OR ANY
APPLICABLE STATE SECURITIES LAWS. THESE
SHARES HAVE NOT BEEN ACQUIRED WITH A VIEW TO
DISTRIBUTION OR RESALE, AND MAY NOT BE SOLD,
ASSIGNED, EXCHANGED, MORTGAGED, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED OR
DISPOSED OF, BY GIFT OR OTHERWISE, OR IN ANY
WAY ENCUMBERED WITHOUT AN EFFECTIVE
REGISTRATION STATEMENT FOR SUCH SHARES UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND
ANY APPLICABLE STATE SECURITIES LAWS, OR A
SATISFACTORY OPINION OF COUNSEL SATISFACTORY
TO JEVIC TRANSPORTATION, INC. THAT
REGISTRATION IS NOT REQUIRED UNDER SUCH ACT
AND UNDER APPLICABLE STATE SECURITIES LAWS.
Section 13. Transferability.
No Option shall be assignable or transferable otherwise than
by will or by the laws of descent and distribution. During the lifetime of the
Optionee, the Optionee's Options shall be exercisable only by such Optionee, or
in the event of his or her legal incapacity, then by the Optionee's legal
representative.
Section 14. Other Provisions.
The Option Agreement and Stock Purchase Agreement may contain
such other provisions as the Board of Directors in its discretion deems
advisable and which are not inconsistent with the provisions of this Plan.
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Section 15. Amendment of the Plan.
Insofar as permitted by law and the Plan, the Board may from
time to time suspend, terminate or discontinue the Plan or revise or amend it in
any respect whatsoever with respect to any Shares at the time not subject to an
Option; provided, however, that without approval of the shareholders, no such
revision or amendment may change the aggregate number of Shares for which
Options may be granted hereunder, change the designation of the class of persons
eligible to receive Options or decrease the price at which Options may be
granted.
Any other provision of this Section 15 notwithstanding, the
Board specifically is authorized to adopt any amendment to this Plan deemed by
the Board to be necessary or advisable to assure that the incentive stock
Options or the non-qualified stock Options available under the Plan continue to
be treated as such, respectively, under the law.
Section 16. Application of Funds.
The proceeds received by the Company from the sale of shares
pursuant to the exercise of Options shall be used for general corporate purposes
or such other purpose as may be determined by the Company.
Section 17. No Obligation to Exercise Option.
The granting of an Option shall impose no obligation upon the
Optionee to exercise such Option.
Section 18. Reservation of Shares.
The Company, during the term of this Plan, shall at all times
reserve and keep available such number of Shares as shall be sufficient to
satisfy the requirements of the Plan.
The Company, during the term of this Plan, shall use its best
efforts to seek to obtain from appropriate regulatory agencies any requisite
authorization in order to issue and sell such number of Shares as shall be
sufficient to satisfy the requirements of the Plan. The inability of the Company
to obtain from any such regulatory agency having jurisdiction the requisite
authorization(s) deemed by the Company's counsel to be necessary for the lawful
issuance and sale of any Shares hereunder, or the inability of the Company to
confirm to its satisfaction that any issuance and sale of any Shares hereunder
will meet applicable legal requirements, shall relieve the Company of any
liability in respect to the failure to issue or sell such Shares as to which
such requisite authority shall not have been obtained.
Section 19. Taxes, Fees, Expenses and Withholding of Taxes.
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(a) The Company shall pay all original issue and transfer
taxes (but not income taxes, if any) with respect to the grant of Options and/or
the issue and transfer of Shares pursuant to the exercise thereof, and all other
fees and expenses necessarily incurred by the Company in connection therewith,
and will from time to time use its best efforts to comply with all laws and
regulations which, in the opinion of counsel for the Company, shall be
applicable thereto.
(b) The grant of Options hereunder and the issuance of Shares
pursuant to the exercise thereof is conditioned upon the Company's reservation
of the right to withhold in accordance with any applicable law, from any
compensation or other amounts payable to the Optionee, any taxes required to be
withheld under federal, state or local law as a result of the grant or exercise
of such Option or the sale of the Shares issued upon exercise thereof. To the
extent that compensation or other amounts, if any, payable to the Optionee is
insufficient to pay any taxes required to be so withheld, the Company may, in
its sole discretion, require the Optionee, as a condition of the exercise of an
Option, to pay in cash to the Company an amount sufficient to cover such tax
liability or otherwise to make adequate provision for the Company's satisfaction
of its withholding obligations under federal, state and local law.
Section 20. Notices.
Any notice to be given to the Company pursuant to the
provisions of this Plan shall be addressed to the Company in care of its
Secretary (or such other person as the Company may designate from time to time)
at its principal executive office, and any notice to be given to an Optionee
shall be delivered personally or addressed to him or her at the address given
beneath his or her signature on his or her Option Agreement, or at such other
address as such Participant or his or her transferee (upon the transfer of the
Shares purchased upon exercise) may hereafter designate in writing to the
Company. Any such notice shall be deemed duly given when enclosed in a properly
sealed envelope or wrapper addressed as aforesaid, registered or certified, and
deposited, postage and registry or certification fee prepaid, in a post office
or branch post office regularly maintained by the United States Postal Service.
It shall be the obligation of each Optionee and each transferee holding Shares
purchased upon exercise of an Option to provide the Secretary of the Company, by
letter mailed as provided herein, with written notice of his or her direct
mailing address.
Section 21. No Enlargement of Optionee Rights.
This Plan is purely voluntary on the part of the Company, and
the continuance of the Plan shall not be deemed to constitute a contract between
the Company and any Optionee, or to be consideration for or a condition of the
employment or service of any Optionee. Nothing contained in this Plan shall be
deemed to give any Optionee the right to be retained in the employ or service of
the Company or any Subsidiary, or to interfere with the right of the Company or
any such corporation to discharge or retire any Optionee thereof at any time,
subject to applicable law. No Optionee shall have any right to or interest in
Options authorized hereunder prior to the grant thereof to such Optionee, and
upon such grant he shall have only such rights and interests as are expressly
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provided herein, subject, however, to all applicable provisions of the Company's
Certificate of Incorporation, as the same may be amended from time to time.
Section 22. Invalid Provisions.
In the event that any provision of this Plan is found to be
invalid or otherwise unenforceable under any applicable law, such invalidity or
unenforceability shall not be construed as rendering any other provisions
contained herein as invalid or unenforceable, and all such other provisions
shall be given full force and effect to the same extent as though the invalid or
unenforceable provision was not contained herein.
Section 23. Applicable Law.
This Plan shall be governed by and construed in accordance
with the laws of the State of New Jersey.
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