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Exhibit 10.8.2
FIRST AMENDMENT
TO THE GENERAL SEMICONDUCTOR, INC.
1998 LONG-TERM INCENTIVE PLAN
WHEREAS, General Semiconductor, Inc, maintains the General
Semiconductor, Inc. 1998 Long-Term Incentive Plan (the "Plan"); and
WHEREAS, on October 19, 1999 the Compensation Committee
directed the Company to amend the definition of "Change in Control" in the Plan;
NOW, THEREFORE, the Plan is hereby amended as follows,
effective October 19, 1999:
Section 2, Definitions, is amended to read:
For purposes of the Plan:
2.1 "Adjusted Fair Market Value" means, in the event of a
Change of Control, the greater of (a) the highest price per Share paid to
holders of the Shares in any transaction (or series of transactions)
constituting or resulting in a Change of Control or (b) the highest Fair Market
Value of a Share during the ninety (90) day period ending on the date of a
Change of Control.
2.2 "Affiliate" means any entity, directly or indirectly,
controlled by, controlling or under common control with the Company or any
corporation or other entity acquiring, directly or indirectly, all or
substantially all the assets and business of the Company, whether by operation
of law or otherwise.
2.3 "Agreement" means the written agreement between the
Company and an Optionee or Grantee evidencing the grant of an Option or Award
and setting forth the terms and conditions thereof.
2.4 "Award" means a grant of Restricted Stock, Phantom Stock,
a Stock Appreciation Right, a Performance Award, a Dividend Equivalent Right, a
Share Award, Director Shares or any or all of them.
2.6 "Board" means the Board of Directors of the Company.
2.7 "Cause" means: unless otherwise set forth in an Agreement,
(a) intentional failure to perform reasonably assigned duties, (b) dishonesty or
willful misconduct in the performance of duties, (c) involvement in a
transaction in connection with the performance of duties to the Company or any
of its Subsidiaries which transaction is adverse to the interests of the Company
or any of its Subsidiaries and which is engaged in for personal profit or (d)
willful violation of any law, rule or regulation in connection with the
performance of duties (other than traffic violations or similar offenses).
2.8 "Change in Capitalization" means any increase or reduction
in the number of Shares, or any change (including, but not limited to, in the
case of a spin-off, dividend or other distribution in respect of Shares, a
change in value) in the Shares or exchange of Shares for a different number or
kind of shares or other securities of the Company or another corporation, by
reason of a reclassification, recapitalization, merger, consolidation,
reorganization, spin-off, split-up, issuance of warrants or rights or
debentures, stock dividend, stock split or reverse stock split, cash dividend,
property dividend, combination or exchange of shares, repurchase of shares,
change in corporate structure or otherwise.
2.9 "Change of Control" means the occurrence of any of the
following:
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(a) An acquisition (other than directly from the Company) of
any voting securities of the Company (the "Voting Securities") by any Person,
immediately after which such Person has "Beneficial Ownership" (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of thirty-three
percent (33%) or more of the then outstanding Shares or the combined voting
power of the Company's then outstanding Voting Securities; provided, however, in
determining whether a Change in Control has occurred pursuant to this Section
2.9 (a), Shares or Voting Securities which are acquired in a "Non-Control
Acquisition" (as hereinafter defined) shall not constitute an acquisition which
would cause a Change in Control. A "Non-Control Acquisition" shall mean an
acquisition by (i) an employee benefit plan (or a trust forming a part thereof)
maintained by (A) the Company or (B) any corporation or other Person of which a
majority of its voting power or its voting equity securities or equity interest
is owned, directly or indirectly, by the Company (for purposes of this
definition, a "Related Entity"), (ii) the Company or any Related Entity, or
(iii) any Person in connection with a "Non-Control Transaction" (as hereinafter
defined);
(b) The individuals who, as of October 19, 1999, are members
of the Board (the "Incumbent Board"), cease, for any reason, to constitute at
least two-thirds (2/3) of the members of the Board; provided, however, that if
the election, or nomination for election by the Company's common stockholders,
of any new director was approved by a vote of at least two-thirds (2/3) of the
Incumbent Board, such new director shall, for purposes of this Plan, be
considered as a member of the Incumbent Board; 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
Exchange Act) or other actual or threatened solicitation of proxies or consents
by or on behalf of a Person other than the Board (a "Proxy Contest") including
by reason of any agreement intended to avoid or settle any Election Contest or
Proxy Contest; or
(c) The consummation of:
(i) A merger, consolidation or reorganization with or
into the Company or in which securities of the Company are issued, unless such
merger, consolidation or reorganization is a "Non-Control Transaction." A
"Non-Control Transaction" shall mean a merger, consolidation or reorganization
with or into the Company or in which securities of the Company are issued where:
(A) the stockholders of the Company, immediately
before such merger, consolidation or reorganization, own directly or indirectly
immediately following such merger, consolidation or reorganization, at least a
majority of the combined voting power of the outstanding voting securities of
the corporation resulting from such merger or consolidation or reorganization
(the "Surviving Corporation"), in substantially the same proportion as their
ownership of the Voting Securities immediately before such merger, consolidation
or reorganization,
(B) the individuals, who were members of the
Incumbent Board immediately prior to the extension of the agreement providing
for such merger, consolidation or reorganization, constitute at least a majority
of the members of the board of directors of the Surviving Corporation, or a
corporation beneficially directly or indirectly owning a majority of the Voting
Securities of the Surviving Corporation, and
(C) no Person other than (1) the Company, (2) any
Related Entity, (3) any employee benefit plan (or any trust forming a part
thereof) that, immediately prior to such merger, consolidation or
reorganization, was maintained by the Company or any Related Entity, or (4) any
Person who, immediately prior to such merger, consolidation or reorganization
had Beneficial Ownership of thirty-three percent (33%) or more of the then
outstanding Voting Securities or Shares, has Beneficial Ownership of
thirty-three percent (33%) or more of the combined voting power of the Surviving
Corporation's then outstanding voting securities or its common stock.
(ii) A complete liquidation or dissolution of the
Company; or
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(iii) The sale or other disposition of all or
substantially all of the assets of the Company to any Person (other than a
transfer to a Related Entity or the distribution to the Company's stockholders
of the stock of a Related Entity or any other assets).
Notwithstanding the foregoing, a Change in Control shall not be deemed to occur
solely because any Person (the "Subject Person") acquired Beneficial Ownership
of more than the permitted amount of the then outstanding Shares or Voting
Securities as a result of the acquisition of Shares or Voting Securities by the
Company which, by reducing the number of Shares or Voting Securities then
outstanding, increases the proportional number of shares Beneficially Owned by
the Subject Persons, provided that if a Change in Control would occur (but for
the operation of this sentence) as a result of the acquisition of Shares or
Voting Securities by the Company, and after such share acquisition by the
Company, the Subject Person becomes the Beneficial Owner of any additional
Shares or Voting Securities Beneficially Owned by the Subject Person, then a
Change in Control shall occur.
2.10 "Code" means the Internal Revenue Code of 1986, as
amended.
2.11 "Committee" means a committee, as described in Section
3.1, appointed by the Board from time to time to administer the Plan and to
perform the functions set forth herein.
2.12 "Company" means General Semiconductor, Inc.
2.13 "Director" means a director of the Company.
2.14 "Director Option" means an Option granted pursuant to
Section 6.
2.15 "Director Share" means a Share issued or transferred
pursuant to Section 12.3.
2.16 "Disability" means a mental or physical condition which,
in the opinion of the Committee, renders a Grantee unable or incompetent to
carry out the job responsibilities which such Grantee held or the duties to
which such Grantee was assigned at the time the disability was incurred, and
which is expected to be permanent or for an indefinite duration.
2.17 "Division" means any of the operating units or divisions
of the Company designated as a Division by the Committee.
2.18 "Dividend Equivalent Right" means a right to receive all
or some portion of the cash dividends that are or would be payable with respect
to Shares.
2.19 "Eligible Director" means a director of the Company who
is not an employee of the Company or any Subsidiary, or a general partner of any
of the Forstmann Little Companies.
2.20 "Eligible Individual" means any director, officer or
employee of the Company or a Subsidiary, or any consultant or advisor of the
Company or a Subsidiary, designated by the Committee as eligible to receive
Options or Awards subject to the conditions set forth herein.
2.21 "Employee Option" means an Option granted pursuant to
Section 5.
2.22 "Exchange Act" means the Securities Exchange Act of 1934,
as amended.
2.23 "Fair Market Value" of any security of the Company or any
other issuer means, as of any applicable date:
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(a) if the security is listed for trading on the New York
Stock Exchange, the closing price, regular way, of the security as reported on
the New York Stock Exchange Composite Tape, or if no such reported sale of the
security shall have occurred on such date, on the next preceding date on which
there was such a reported sale, or
(b) if the security is not so listed, but is listed on another
national securities exchange or authorized for quotation on the National
Association of Securities Dealers, Inc.'s NASDAQ National Market System
("NASDAQ/NMS"), the closing price, regular way, of the security on such exchange
or NASDAQ/NMS, as the case may be, or if no such reported sale of the security
shall have occurred on such date, on the next preceding date on which there was
such a reported sale, or
(c) if the security is not listed for trading on a national
securities exchange or authorized for quotation on NASDAQ/NMS, the average of
the closing bid and asked prices as reported by the National Association of
Securities Dealers Automated Quotation System ("NASDAQ") or, if no such prices
shall have been so reported for such date, on the next preceding date for which
such prices were so reported, or
(d) if the security is not listed for trading on a national
securities exchange or is not authorized for quotation on NASDAQ/NMS or NASDAQ,
the fair market value of the security as determined in good faith by the
Committee and, in the case of an Incentive Stock Option, in accordance with
Section 422 of the Code.
2.24 "Grantee" means a person to whom an Award has been
granted under the Plan.
2.25 "Incentive Stock Option" means an Option satisfying the
requirements of Section 422 of the Code and designated by the Committee as an
Incentive Stock Option.
2.26 "Nonemployee Director" means a director of the Company
who is a "nonemployee director" within the meaning of Rule 16b-3 promulgated
under the Exchange Act.
2.27 "Nonqualified Stock Option" means an Option which is not
an Incentive Stock Option.
2.28 "Option" means a Nonqualified Stock Option, an Incentive
Stock Option, a Director Option, or any or all of them.
2.29 "Optionee" means a person to whom an Option has been
granted under the Plan.
2.30 "Outside Director" means a director of the Company who is
an "outside director" within the meaning of Section 162(m) of the Code and the
regulations promulgated thereunder.
2.31 "Parent" means any corporation which is a parent
corporation (within the meaning of Section 424(e) of the Code) with respect to
the Company.
2.32 "Performance Awards" means Performance Units, Performance
Shares or either or both of them.
2.33 "Performance-Based Compensation" means any Option or
Award that is intended to constitute "performance based compensation" within the
meaning of Section 162(m)(4)(C) of the Code and the regulations promulgated
thereunder.
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2.34 "Performance Cycle" means the time period specified by
the Committee at the time Performance Awards are granted during which the
performance of the Company, a Subsidiary or a Division will be measured.
2.35 "Performance Objectives" has the meaning set forth in
Section 11.
2.36 "Performance Shares" means Shares issued or transferred
to an Eligible Individual under Section 11. 2.37 "Performance Units" means
Performance Units granted to an Eligible Individual under Section 11.
2.38 "Person" shall mean a person within the meaning of
Sections 13(d) and 14(d) of the Exchange Act.
2.39 "Phantom Stock" means a right granted to an Eligible
Individual under Section 12 representing a number of hypothetical Shares.
2.40 "Plan" means the General Semiconductor, Inc. 1998
Long-Term Incentive Plan, as amended and restated from time to time.
2.41 "Pooling Transaction" means an acquisition of the Company
in a transaction which is intended to be treated as a "pooling of interests"
under generally accepted accounting principles.
2.42 "Restricted Stock" means Shares issued or transferred to
an Eligible Individual pursuant to Section 10.
2.43 "Section 16 Grantee" means a person subject to potential
liability with respect to equity securities of the Company under Section 16(b)
of the Exchange Act.
2.44 "Share Award" means an Award of Shares granted pursuant
to Section 12.
2.45 "Shares" means the common stock, par value $.01 per
share, of the Company.
2.46 "Stock Appreciation Right" means a right to receive all
or some portion of the increase in the value of the Shares as provided in
Section 8 hereof.
2.47 "Subsidiary" means any corporation which is a subsidiary
corporation (within the meaning of Section 424(f) of the Code) with respect to
the Company.
2.48 "Successor Corporation" means a corporation, or a parent
or subsidiary thereof within the meaning of Section 424(a) of the Code, which
issues or assumes a stock option in a transaction to which Section 424(a) of the
Code applies.
2.49 "Ten-Percent Stockholder" means an Eligible Individual,
who, at the time an Incentive Stock Option is to be granted to him or her, owns
(within the meaning of Section
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422(b)(6) of the Code) stock possessing more than ten percent
(10%) of the total combined voting power of all classes of stock of the Company,
or of a Parent or a Subsidiary.
General Semiconductor, Inc.
Date: November 17, 1999 By: /s/ Ronald A. Ostertag
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