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EXHIBIT 4.2
AMENDED AND RESTATED 1994 STOCK OPTION PLAN
OF
E-Z SERVE CORPORATION
1. PURPOSE OF PLAN.
This 1994 Stock Option Plan (the "Plan") is intended to act as an
incentive (a) to retain key management employees of E-Z Serve Corporation (the
"Company") and its Affiliates (as defined below), (b) to stimulate the active
interest of such persons in the development and financial success of the
Company, and (c) to provide a financial benefit to such persons at the same
time as the stockholders of the Company receive financial consideration based
on certain events as set forth herein. The options issued pursuant to this
Plan (the "Options") are not intended to qualify as incentive stock options
("nonqualified stock options") under Section 422 of the Internal Revenue Code
of 1986, as amended ("Code").
2. ADMINISTRATION OF PLAN
(a) The Board of Directors shall appoint and maintain as
administrator of this Plan the Compensation Committee (the
"Committee") which shall consist of at least two members of the Board
of Directors, each of whom shall be a "nonemployee director" within
the meaning of Rule 16b-3 promulgated by the Securities and Exchange
Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"). Each member of the Committee shall serve at the
pleasure of the Board of Directors of the Company ("Board").
(b) The Committee shall administer the Plan in accordance with its
terms as in effect from time to time and shall have the power to
determine all questions arising in connection with the administration,
interpretation, and application of the Plan. The Committee is
authorized to make any and all decisions and determinations as it may,
in its discretion, determine to make under or with respect to the
Plan. Any such decision or determination by the Committee shall be
conclusive and binding upon all persons. The Committee may establish
procedures, correct any defect, supply any information, or reconcile
any inconsistency in such manner and to such extent as it shall deem
necessary or advisable to carry out the purpose of the Plan. The
Committee shall have all powers necessary or appropriate to accomplish
its duties under the Plan.
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(c) The Committee shall be charged with the duties of the general
administration of the Plan, including, but not limited to, the
following:
(i) to determine all questions relating to the
eligibility of key employees to participate or remain eligible
to participate hereunder;
(ii) to grant Options pursuant to this Plan;
(iii) to interpret the provisions of the Plan and to make
and publish such rules for regulation of the Plan as are not
inconsistent with the terms hereof; and
(iv) to assist any employee regarding his rights,
benefits, or elections available under the Plan.
(d) The Committee shall keep or cause to be kept all books of
account, records, and other data (not including the general accounting
records of the Company) that may be necessary for proper
administration of the Plan.
(e) All decisions and selections made by the Committee pursuant to
the provisions of this Plan shall be made by a majority of its
members. Any decision reduced to writing and signed by a majority of
the members shall be fully effective as if it had been made by a
majority at a meeting duly held.
3. DEFINITIONS. For purposes of this Plan, the following definitions
shall apply:
(a) "Affiliates" means any Parent of the Company and any
Subsidiary of the Company within the meaning of Sections 424(e) and
(f) of the Code, respectively.
(b) "Cause" shall mean:
(i) for an Optionee who is not a Senior Executive, an
Optionee's actual fraud, gross negligence or willful or wanton
misconduct in the course of his employment by the Company or
any of its Affiliates; or
(ii) for an Optionee who is a Senior Executive, a Senior
Executive's (a) actual fraud, gross negligence or willful or
wanton misconduct in the course of his employment by the
Company or any of its Affiliates, (b) fraud, embezzlement or
other material dishonesty with respect to the Company or
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any of its Affiliates, (c) conviction of, or a plea of nolo
contendere to, a felony, (d) conduct that is materially
harmful to the business, interest or reputation of the
Company, (e) intentional failure to comply with any material
instructions of the Board contained in a duly adopted
resolution of the Board, or (f) failure to devote, other than
by reason of disability, such of the Senior Executive's entire
time, attention, business judgment, skill, energies and
business efforts to his duties as an executive of the Company
as are reasonably necessary to carry out his duties.
(c) "Common Stock" shall mean the common stock of the Company, par
value $0.01 per share.
(d) "Senior Executive" shall mean any of the senior executive
officers of the Company identified in a specific resolution of the
Committee to be included within the definition of this term.
(e) "Senior Executive Termination" shall mean (i) a Senior
Executive's permanent disability, as determined in the sole discretion
of the Committee, or death, (ii) the termination of a Senior
Executive's employment by the Company for reasons other than for
Cause, or (iii) a Senior Executive's voluntary termination of
employment within 90 days after a significant diminution of both the
Senior Executive's responsibility and base salary by the Company.
(f) "Fair Market Value" shall be determined as follows:
First, determine the average (mean) price for each of the thirty days
preceding the date of determination on which the Common Stock traded
as follows:
(i) the reported "high" and "low" sales price of the Common
Stock as reported in The Wall Street Journal's American Stock
Exchange Composite Transactions listing (corrected for obvious
typographical errors),
(ii) if the Common Stock is not reported in such listing,
then the reported "high" and "low" sales prices on the largest
national securities exchange (based on the aggregate dollar
value of securities listed) on which the Common Stock is
listed or traded,
(iii) if the Common Stock is not listed or traded on any
national securities exchange, then the reported "high" and
"low" sales prices for the Common
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Stock in the over-the-counter market, as reported on the
National Association of Securities Dealers Automated
Quotations System, or,
(iv) if such prices shall not be reported thereon, the
closing bid and asked prices so reported, or, if such prices
shall not be reported, then the closing bid and asked prices
reported by the National Quotation Bureau Incorporated;
Second, the relevant thirty-day average determined pursuant to clause
(i), (ii), (iii) or (iv) above shall then be multiplied by the total
number of shares of Common Stock traded on each date used to determine
such average (the "Value of Shares Traded Daily"); and
Third, the Value of Shares Traded Daily for each of the thirty days
shall be added together and the sum shall be divided by the total
number of shares of Common Stock traded during the thirty days, which
result shall be the Fair Market Value.
4. DESIGNATION OF PARTICIPANTS.
The persons eligible for participation in this Plan as recipients of
Options shall be such key employees of the Company or its Affiliates as
designated by the Committee. A person who has been granted an Option hereunder
("Optionee") may be granted an additional Option or Options, if the Committee
shall so determine.
5. STOCK RESERVED
Subject to adjustment as provided in Section 10, a total of 8,000,000
shares ("Stock") of Common Stock shall be subject to this Plan. The shares of
Stock subject to this Plan shall consist of unissued shares or previously
issued shares reacquired and held by the Company and such number of shares
shall be and is hereby reserved for sale for such purpose. Any of such shares
which may remain unsold and which are not subject to outstanding Options at the
expiration of this Plan shall cease to be reserved for the purpose of this
Plan, but until termination of this Plan and the expiration, exercise or lapse
of all Options granted hereunder, the Company shall at all times reserve a
sufficient number of shares to meet the requirements of this Plan. Should any
Option expire or be canceled prior to its exercise, the shares theretofore
subject to such Option may again be subject to an Option under this Plan.
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6. OPTION PRICE
The purchase price of each share of Stock subject to an Option granted
under this Plan prior to September 17, 1996 shall be $0.40. The purchase price
of each share of Stock subject to an Option granted under this Plan after
September 17, 1996 shall be determined by the Committee prior to granting the
Option, which may be any amount the Committee shall determine in its sole
discretion.
7. OPTION AND SALE PERIOD
No Options may be granted after December 31, 1997. Each Option
granted under this Plan shall terminate and be of no force and effect with
respect to any Stock not purchased upon exercise by the Optionee upon the
expiration of ten years from the date of granting of such Option or such
earlier date as the Committee, in its sole discretion, may prescribe at the
date of grant. In addition, any Stock purchased upon exercise of an Option but
unable to be sold pursuant to the terms of this Plan before the expiration of
ten years from the date of granting of the Option under which such Stock was
purchased shall be repurchased by the Company at the purchase price paid per
share by the Optionee as soon as practicable after such expiration date.
8. VESTING OF OPTIONS.
Each Option granted under this Plan shall be evidenced by an
agreement, in a form approved by the Committee, which shall be subject to the
express terms and conditions stated in this Plan and to such other terms and
conditions as the Committee may deem appropriate, including, but not limited to
terms and conditions related to the ability of an Optionee to exercise an
Option and sell any Stock purchased upon exercise of an Option. The Committee
may provide in the option agreement that an Option may be exercised in whole,
immediately, or is to be exercisable in increments. As of September 17, 1996,
all options outstanding under this Plan shall be fully vested and exercisable,
subject to approval of such vesting by the stockholders of the Company at any
time prior to September 17, 1997. All Options granted subsequent to September
17, 1996 shall be fully vested and exercisable upon grant.
9. EXERCISE OF OPTIONS.
(a) Options may be exercised solely by the Optionee during his
lifetime or after his death by the person or persons entitled thereto
under his will or the laws of descent and distribution.
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(b) In the event of termination of employment of an Optionee
(other than in the case of a Senior Executive Termination) for any
reason other than death or permanent disability, an Option may be
exercised only with respect to the number of shares of Stock that
could be sold (pursuant to Section 12 hereof) and any Options with
respect to shares of Stock that could not be sold (pursuant to Section
12) at that time shall lapse, unless the Committee shall otherwise
approve on a case by case basis; provided, that if the termination of
employment was for Cause, all Options held by such Optionee shall be
forfeited upon the termination of employment, and no exercise of the
Option shall be permitted; and provided further, that if the
termination was not for Cause, the Optionee must exercise the Options
(and such exercise may be made only to the extent that the underlying
Stock may be sold pursuant to Section 12) within 60 days of the
termination of employment at which time any unexercised Options shall
be forfeited, unless the Committee shall otherwise approve on a case
by case basis. Whether or not a termination of employment is for
Cause shall be determined in the sole discretion of the Committee.
(c) In the event of the death or permanent disability (whether or
not someone is permanently disabled shall be determined in the sole
discretion of the Committee) of an Optionee (other than a Senior
Executive) following the date of grant of any Option and while in the
employ of the Company or any of its Affiliates, and while Options
granted hereunder are still in force and unexpired under the terms of
Section 7, the entire Option (except for the portion of the Option for
which shares of Stock subject to the Option held by such Optionee
could, if the Option had been exercised, be sold at such time due to
the provisions of Section 12) shall be forfeited except for a portion
of the Option to acquire a number of shares of Stock equal to AxB,
where:
A = the number of shares of Stock subject to the Option granted
to the Optionee that, if the Option had been exercised by the
Optionee prior to his death or permanent disability, could not
have been sold pursuant to Section 12
B = the number of months elapsed (but not greater than 60) from
January 1, 1993, until Optionee's death or permanent
disability divided by 60.
(d) The purchase price of the shares of Stock as to which an
Option is exercised shall be paid in full at the time of the exercise.
Such purchase price shall be payable in cash (including certified
check, bank draft and postal or express money order payable to the
order of the Company).
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The Committee may, in its discretion and to the extent permitted by
the laws of the State of Delaware, determine to permit the holder of
an Option to satisfy the purchase price of the shares as to which an
Option is exercised by delivery of the Option holder's promissory
note, such note to be subject to such terms and conditions as the
Committee may determine. The Committee may, in its discretion and to
the extent permitted by the laws of the State of Delaware, determine
to cause the Company to lend to the holder of an Option funds, on such
terms and conditions as the Committee may determine to be appropriate,
sufficient for the holder of an Option to pay the purchase price of
the shares as to which an Option is to be exercised. No holder of an
Option shall be, or have any of the rights or privileges of, a
stockholder of the Company in respect of any shares purchasable upon
the exercise of any part of an Option unless and until certificates
representing such shares shall have been issued by the Company to such
holder.
(e) Within 60 days of a Senior Executive Termination, the Company
will provide to the Senior Executive an offer to pay the Senior
Executive an amount payable in cash in exchange for the Senior
Executive's relinquishment of all of such Senior Executive's Options.
Within 30 days of the Senior Executive's receipt of the Company's
offer, the Senior Executive, or his heirs or legal representatives in
the event of death or disability, must exercise one of the following
alternatives:
(i) Accept the Company's offer and relinquish the Senior
Executive's Options for the cash amount offered; or
(ii) In lieu of purchasing the shares of Stock subject to
purchase under the Options, relinquish the Options for a
number of shares of Common Stock to be determined as follows:
the number of shares of Common Stock issuable pursuant to such
relinquishment shall be a number equal to the quotient
obtained by dividing the Appreciated Value by the Stock Value
(both as defined below); or
(iii) Continue to hold the Options and exercise them prior
to the earlier of five years from the date of the Senior
Executive Termination or such earlier date as the period for
exercise of the Options would end pursuant to the terms of the
Plan.
As used in this Section 9, "Appreciated Value" shall mean the excess of (i) the
Stock Value times the number of shares of Common Stock covered by the Options
over (ii) the purchase price for each share specified in such Options times the
number of shares of Common Stock
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covered by the Options. As used in this Section 9, "Stock Value" of a share of
Common Stock shall mean (i) on a consolidated basis, the sum of (x) the
Company's earnings before interest, taxes, depreciation and amortization for
the four reported fiscal quarters prior to the date of the Senior Executive
Termination (the "Period") multiplied by 6, plus (y) the Company's average cash
during the Period, minus (z) the Company's average debt during the Period, (ii)
divided by the average number of shares of Common Stock outstanding during the
Period.
10. STOCK DIVIDENDS, STOCK SPLITS AND CERTAIN OTHER CORPORATION
TRANSACTIONS
(a) The existence of this Plan and Options granted hereunder shall
not affect in any way the right or power of the Company or its
stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the Company's
capital structure or its business, or any merger or consolidation of
the Company, or any issue of bonds, debentures or preferred or
preference stocks ranking prior to or affecting the Common Stock or
the rights attendant thereto, or the dissolution or liquidation of the
Company, or any sale or transfer of all or any part of the Company's
assets or business, or any other corporate act or proceeding, whether
of a similar character or otherwise.
(b) The shares with respect to which Options may be granted
hereunder are shares of Common Stock of the Company as presently
constituted. If, and whenever, prior to the delivery by the Company
of all of the shares of the Stock which are subject to Options granted
hereunder, the Company shall effect a subdivision or consolidation of
shares or other capital readjustment, the payment of a stock dividend,
a stock split, a combination of shares, a recapitalization or other
increase or reduction of the number of shares of Common Stock
outstanding without receiving consideration therefor in money,
services or property, the number of shares of Stock available under
this Plan and the number of shares of Stock with respect to which
Options granted hereunder may thereafter be exercised shall (i) in the
event of an increase in the number of outstanding shares, be
proportionately increased, and the cash consideration payable per
share shall be proportionately reduced, and (ii) in the event of a
reduction in the number of outstanding shares, be proportionately
reduced, and the cash consideration payable per share shall be
proportionately increased.
(c) If the Company is reorganized, merged or consolidated or is
otherwise a party to a plan of exchange with another corporation
pursuant to which reorganization, merger, consolidation or plan of
exchange the holders of Common Stock receive any
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shares of Common Stock or other securities or if the Company shall
distribute ("Spin Off") securities of another corporation to the
holders of Common Stock, there shall be substituted for the shares
subject to the unexercised portions of outstanding Options an
appropriate number of shares of (i) each class of stock or other
securities which were distributed to the holders of Common Stock in
respect of such shares in the case of a reorganization, merger,
consolidation or plan of exchange, or (ii) in the case of a Spin Off,
the securities distributed to the holders of Common Stock together
with shares of Stock; provided, however, that all such Options may be
canceled by the Company as of the effective date of (x) a
reorganization, merger, consolidation, plan of exchange or Spin Off or
(y) any dissolution or liquidation of the Company, by giving notice to
each holder thereof or his personal representative of its intention to
do so and by permitting the purchase for a period of at least thirty
days during the sixty days next preceding such effective date of all
of the shares subject to such outstanding exercisable Options; and
provided further that in the event of a Spin Off, the Company may, in
lieu of substituting securities or accelerating and canceling Options
as contemplated above, elect (i) to reduce the purchase price for each
share of Stock subject to an outstanding Option by an amount equal to
the fair market value (as determined by the Board) of the securities
distributed in respect of each outstanding share of Common Stock in
the Spin Off or (ii) to reduce proportionately the purchase price per
share and to increase proportionately the number of shares of Stock
subject to each Option in order to reflect the economic benefits
inuring to the holders of Stock as a result of the Spin Off.
(d) Except as hereinbefore expressly provided the issue by the
Company of shares of stock of any class, or securities convertible
into or exchangeable for shares of stock of any class, for cash or
property, or for labor or services, either upon direct sale or upon
the exercise of rights or warrants to subscribe therefor, or upon
conversion of shares or obligations of the Company convertible into or
exchangeable for shares of stock of any class shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number
of shares of Stock subject to Options granted hereunder.
11. PURCHASE FOR INVESTMENT
Unless the Options and shares of Stock covered by this Plan have been
registered under the Securities Act of 1933, as amended, or the Company has
determined that such registration is unnecessary, each person exercising an
Option under this Plan may be required by the Company to give a representation
in writing that he is acquiring such shares for his
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own account for investment and not with a view to, or for sale in connection
with, the distribution of any part thereof.
12. SALE OF COMMON STOCK AFTER EXERCISE OF OPTION.
Upon the exercise of an Option by an Optionee in accordance with
Section 9(d) of this Plan, the Company shall deliver to the Optionee
certificates for the number of shares of Common Stock with respect to which
such Option has been so exercised, issued in the name of the Optionee;
provided, however, that such delivery shall be deemed effected for all purposes
when a stock transfer agent of the Company shall have deposited such
certificates in the United States mail, addressed to the Optionee at the
Optionee's last known address. Once delivery of the shares of Common Stock
have been deemed delivered to the Optionee, the Optionee may sell, pledge,
hypothecate or otherwise encumber (for purposes of this Plan, any such act
referred to as a "sale" or being "sold") such shares of Common Stock purchased
through the exercise of an Option only as follows:
(a) Persons Entitled to Sell. Stock may be sold solely by the
Optionee during his lifetime or after his death by the person or
persons entitled thereto under his will or the laws of descent and
distribution.
(b) Secondary Offering. Upon the consummation of each
underwritten public offering of Common Stock pursuant to a
registration statement wherein the aggregate net proceeds (after
deducting all costs, discounts, commissions and other expenses of the
offering) to the Company's stockholders are at least $10,000,000
("Secondary Offering"), then:
(i) a percentage of all Stock subject to this Plan (on a
pro rata basis per Option granted under this Plan) shall be
able to be sold equal to a ratio determined by the number of
shares of Common Stock sold in the Secondary Offering divided
by the number of outstanding shares of Common Stock, on a
fully diluted basis, existing prior to the Secondary Offering;
and
(ii) regardless of any previous ability to sell due to a
previous offering under this clause (b), a percentage of all
remaining shares of Stock shall be able to be sold on the last
day of each month from the effective date of the Secondary
Offering until December 1997 equal to the number of months
that have elapsed since the effective date of the registration
statement divided by the total number of months between the
effective date of the registration statement and December 31,
1997; provided, that if no Secondary Offering
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has occurred prior to December 31, 1997, all shares of Stock
shall be able to be sold upon the consummation of any
Secondary Offering occurring after such date.
(c) Private Sale of Common Stock. Upon each transfer or series of
related transfers in a private transaction which would have the effect
of transferring to any transferee or group (as defined for purposes of
Section 13(d)(3) of the Exchange Act of persons beneficial ownership
(as defined in Rule 13(d)(3) of the Exchange Act) of a number of
shares of Common Stock that, in the aggregate is equal to or greater
than 10% of the then outstanding shares of Common Stock on a fully
diluted basis, a number of shares of all Stock subject to this Plan
(on a pro rata basis per Option granted under this Plan) shall be able
to be sold equal to the number of shares of Common Stock transferred
multiplied by 9%; provided, however, that shares of Stock purchased or
purchasable through the exercise of an Option may not be sold by the
Optionee upon any transfer to:
(i) a person or entity who is the beneficial owner (as defined
in Rule 13(d)(3) of the Exchange Act) of 5% or more of the
Common Stock on the Effective Date (as defined below), or
(ii) any person or entity controlling, controlled by or under
common control with any person or entity who is the beneficial
owner of 5% or more of the Common Stock on the Effective Date.
For purposes of this clause (ii), "control" (including the
terms "controlling," "controlled by" and "under common control
with") shall mean the direct or indirect possession of the
power to direct or cause the direction of the management and
policies of a person or entity, whether through the ownership
of voting securities, by contract or otherwise.
(d) Asset Sale. Upon the sale of all or substantially all of the
assets of the Company or its subsidiary E-Z Serve Convenience Stores,
Inc. (or whichever Affiliated subsidiary holds substantially all of
the assets related to the Company's convenience store business), 100%
of the Stock purchased or purchasable through the exercise of an
Option may be sold by the Optionee.
(e) Senior Executive Termination. Upon a Senior Executive
Termination, 100% of the applicable Senior Executive's Stock purchased
through the exercise of an Option may be sold by such Senior Executive
without restriction under this Plan.
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(f) Termination other than Senior Executive Termination. In the
event of termination of employment of an Optionee (other than in the
case of a Senior Executive Termination) for any reason other than
death or permanent disability, Stock purchased upon exercise of an
Option may be sold only with respect to the number of shares of Stock
able to sold at the time of such termination pursuant to Sections
12(b), (c) or (d). Any shares of Stock purchased upon exercise of an
Option and not able to be sold at the time of termination shall be
repurchased by the Company at the purchase price paid per share by
such Optionee as soon as practicable, unless the Committee shall
otherwise approve on a case by case basis; provided, that if the
termination of employment was for Cause, all shares of Stock held by
such Optionee shall be purchased by the Company at the purchase price
paid per share by such Optionee as soon as practicable and no sale of
the Stock to anyone other than the Company shall be permitted.
Whether or not a termination of employment is for Cause shall be
determined in the sole discretion of the Committee.
(g) Death or Disability. In the event of the death or permanent
disability (whether or not someone is permanently disabled shall be
determined in the sole discretion of the Committee) of an Optionee
(other than a Senior Executive) following the date of grant of any
Option and while in the employ of the Company or any of its
Affiliates, and prior to such time as 100% of the Stock may be sold,
the Company shall repurchase any shares of Stock purchased by an
Optionee upon exercise of an Option that are unable to be sold due to
the provisions of Section 12, at the purchase price paid per share by
such Optionee as soon as practicable except for such number of shares
of Stock equal to CxD, where:
C = the number of shares of Stock subject to the Option
purchased by the Optionee that were not able to be sold by the
Optionee prior to his death or permanent disability due to the
provisions of Section 12
D = the number of months elapsed (but not greater than 60) from
January 1, 1993, until Optionee's death or permanent
disability divided by 60.
Any shares of Stock that are unable to be sold and may be retained by the
Optionee in accordance with this clause (g) shall continue to be subject to the
limitation on the ability to sell such shares of Stock in accordance with the
provisions of this Plan while held by the persons entitled thereto in clause
(a) of this Section 12.
13. LEGEND. All certificates representing Stock issued upon exercise of
Options shall be endorsed on the reverse side thereof substantially as follows:
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BY THE TERMS OF THE AMENDED AND RESTATED 1994 STOCK OPTION
PLAN OF THE COMPANY, CERTAIN RESTRICTIONS HAVE BEEN PLACED UPON THE
TRANSFER OF THE SHARES REPRESENTED BY THIS CERTIFICATE. THE COMPANY
WILL FURNISH A COPY OF SUCH PLAN TO THE RECORD HOLDER OF THIS
CERTIFICATE WITHOUT CHARGE UPON WRITTEN REQUEST TO THE COMPANY AT ITS
PRINCIPAL PLACE OF BUSINESS OR REGISTERED OFFICE.
The Company shall also inform the transfer agent of the Common Stock to place
stop transfer instructions with respect to such shares of Stock in the Common
Stock transfer records for such purpose. Upon the occurrence of any event
listed in Section 12, an Optionee may request the Company and the transfer
agent for the Common Stock to remove such legend from the certificate
representing the applicable number of shares of Stock.
14. TAXES
The Company may make such provisions as it may deem appropriate for
the withholding of any taxes which it determines is required in connection with
any Options granted under this Plan.
15. EFFECTIVE DATE OF PLAN
This Plan shall be effective as of February 9, 1994 ("Effective
Date").
16. AMENDMENT OR TERMINATION
The Board of Directors may amend, alter or discontinue this Plan,
except that no amendment or alteration shall be made which would impair the
rights of any Optionee under any Option theretofore granted, without his
consent, and except that no amendment or alteration shall be made which,
without the approval of the stockholders, would:
(a) Increase the total number of shares reserved for the purposes
of this Plan or decrease the Option price provided for in Section 6,
except in each case as provided in Section 10, or change the class of
employees eligible to participate in this Plan as provided in Section
4;
(b) Extend the Option period provided for in Section 7;
(c) Materially increase the benefits accruing to Optionees under
this Plan; or
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(d) Materially modify the requirements as to eligibility for
participation in this Plan.
17. GOVERNMENT REGULATIONS
This Plan, and the grant and exercise of Options thereunder, and the
obligation of the Company to sell and deliver shares under such Options, shall
be subject to all applicable laws, rules and regulations, and to such approvals
by any governmental agencies or national securities exchanges as may be
required.
18. STOCKHOLDER APPROVAL.
All Options granted under this Plan are subject to, and may not be
exercised before, the approval of this Plan at the 1994 Annual Meeting of
Stockholders, or at a special meeting of stockholders called for that purpose
prior to the 1994 Annual Meeting, by the affirmative vote of the holders of a
majority of the outstanding shares of the Company present, or represented by
proxy, and entitled to vote thereat, or by the written consent of the holders
of a majority of the outstanding shares of the Company entitled to vote;
provided that if such approval by the stockholders of the Company is not
forthcoming, all Options previously granted under this Plan shall be void.
19. NOT A CONTRACT.
The Plan shall not be deemed to constitute a contract between the
Company and any employee or to be a consideration or an inducement for the
employment of any employee. No part of any employee's payments under the Plan
shall be used as a basis for calculation of retirement or any other benefits to
which such employee might be entitled under any other benefit plans which are
or may in the future be in place at the Company. Nothing contained in the Plan
shall be deemed to give any employee the right to be retained in the service of
the Company or to interfere with the right of the Company to discharge any
employee at any time regardless of the effect which such discharge shall have
upon him as a participant of the Plan.
20. INDEMNIFICATION.
In the event any claim, suit or proceeding is brought regarding the
Plan established hereunder to which the Committee, or any member thereof, or
any person or agent acting for or at the instruction or request of the
Committee, may be a party, the Committee and such members, persons or agents
shall be entitled to be reimbursed by the Company for any and
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all costs, attorney's fees, and other expenses pertaining thereto incurred by
them for which they shall have become liable.
21. COMPANY RECORDS.
No person shall, as a result of the existence of the Plan or such
person's participation therein, be entitled to review or have access to the
Company's books and records.
22. MISCELLANEOUS.
The headings of the Sections herein are inserted only for convenience
of reference and are not intended to be a part of or to affect the meaning or
interpretation of this Agreement. Any reference herein to the masculine gender
includes the feminine gender and any singular or plural reference includes the
other where the context requires.
ATTEST: E-Z SERVE CORPORATION
/s/ JOHN T. MILLER By: /s/ NEIL H. McLAURIN
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John T. Miller Neil H. McLaurin
Senior Vice President President
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