EXHIBIT 10.5
1990 STOCK INCENTIVE PLAN
PHARMACEUTICAL RESOURCES, INC.
SECTION 1. PURPOSE; DEFINITIONS.
The purpose of the Pharmaceutical Resources, Inc. 1990 Stock Incentive Plan
(the "Plan") is to enable Pharmaceutical Resources, Inc. (the "Company") to
offer to officers, other employees and independent agents, consultants and
attorneys of the Company and its subsidiaries, long-term performance-based stock
and/or other equity interests in the Company thereby enhancing their ability to
attract, retain and reward such individuals. The various types of long-term
incentive awards which may be provided under the Plan will enable Pharmaceutical
Resources, Inc. to respond to changes in compensation practices, tax laws,
accounting regulations and the size and diversity of its businesses.
For purposes of the Plan, the following terms shall be defined as set forth
below:
(a) "Agents" means those persons who are not employees of the Company or
any subsidiary, including independent agents, consultants and attorneys for the
Company.
(b) "Board" means the Board of Directors of Pharmaceutical Resources, Inc.
(c) "Code" means the Internal Revenue Code of 1986, as amended from time to
time, and any successor thereto.
(d) "Committee" means the Stock Option Committee of the Board or any other
committee of the Board which the Board may designate.
(e) "Company" means Pharmaceutical Resources, Inc., a corporation organized
under the laws of the State of New Jersey.
(f) "Deferred Stock" means Stock to be received, under an award made
pursuant to Section 8 below, at the end of a specified deferral period.
(g) "Disability" means disability as determined under procedures
established by the Committee for purposes of the Plan.
(h) "Early Retirement" means retirement, with the approval of the Committee
for purposes of one or more award(s) hereunder, from active employment with the
Company or any Subsidiary prior to age 65.
(i) "Fair Market Value", unless otherwise required by any applicable
provision of the Code or any regulations issued thereunder, means, as of any
given date: (i) if the Stock is listed on a national securities exchange or
quoted on the NASDAQ National Market System, the closing price of the Stock on
the last preceding day on which the Stock was traded, as reported on the
composite tape or by NASDAQ/NMS System Statistics, as the case may be;
1
(ii) if the Stock is not listed on a national securities exchange or quoted on
the NASDAQ National Market System, but is traded in the over-the-counter market,
the average of the closing bid and asked prices for the Stock on the last
preceding day for which such quotations are reported by NASDAQ; and (iii) if the
Fair Market Value of the Stock cannot be determined pursuant to clause (i) or
(ii) above, such price as the Committee shall determine.
(j) "Incentive Stock Option" means any Stock Option intended to be and
designated as an "incentive stock option" within the meaning of Section 422 of
the Code.
(k) "Non-Qualified Stock Option" means any Stock Option that is not an
Incentive Stock Option.
(l) "Normal Retirement" means retirement from active employment with the
Company or any Subsidiary on or after age 65.
(m) "Other Stock-Based Award" means an award under Section 9 below that is
valued in whole or in part by reference to, or is otherwise based upon, Stock.
(n) "Plan" means this Pharmaceutical Resources, Inc. 1990 Stock Incentive
Plan, as hereinafter amended from time to time.
(o) "Qualified Domestic Relations Order" shall have the meaning assigned to
such term under the Code.
(p) "Restricted Stock" means Stock, received under an award made pursuant
to Section 7 below, that is subject to restrictions under said Section 7.
(q) "Retirement" means Normal Retirement or Early Retirement.
(r) "SAR Value" means the value of the excess of the Fair Market Value of
one share of Stock over the option price per share specified in a related Stock
Option multiplied by the number of shares in respect of which the Stock
Appreciation Right shall be exercised, on the date of exercise.
(s) "Stock" means the Common Stock of the Company, par value $.01 per
share.
(t) "Stock Appreciation Right" means the right, pursuant to an award
granted under Section 6 below, to surrender to the Company all (or a portion) of
a Stock Option in exchange for an amount equal to the SAR Value.
(u) "Stock Option" or "Option" means any option to purchase shares of Stock
which is granted pursuant to the Plan.
(v) "Subsidiary" means any present or future subsidiary corporation of the
Company, as such term is defined in Section 424(f) of the Code, or any successor
thereto.
2
SECTION 2. ADMINISTRATION.
The Plan shall be administered by the Committee, the membership of which
shall be at all times constituted so as to not adversely affect the compliance
of the Plan with the requirements of Rule 16b-3 under the Securities Exchange
Act of 1934 (the "Exchange Act"), as in effect from time to time, or with the
requirements of any other applicable law, rule or regulation.
The Committee shall have full authority to grant, pursuant to the terms of
the Plan, to officers, other employees and Agents under Section 4 below: (i)
Stock Options, (ii) Stock Appreciation Rights, (iii) Restricted Stock, (iv)
Deferred Stock, and/or (v) Other Stock- Based Awards.
For purposes of illustration and not of limitation, the Committee shall
have the authority (subject to the express provisions of this Plan):
(i) to select the officers, other employees and Agents of the Company or
any Subsidiary to whom Stock Options, Stock Appreciation Rights, Restricted
Stock, Deferred Stock and/or Other Stock-Based Awards may from time to time be
granted hereunder;
(ii) to determine the Incentive Stock Options, Non-Qualified Stock
Options, Stock Appreciation Rights, Restricted Stock, Deferred Stock and/or
Other Stock-Based Awards, or any combination thereof, if any, to be granted
hereunder to one or more officers, other employees and Agents;
(iii) to determine the number of shares to be covered by each award
granted hereunder;
(iv) to determine the terms and conditions, not inconsistent with the
terms of the Plan, of any award granted hereunder (including, but not limited
to, share price, any restrictions or limitations, and any vesting, acceleration
or forfeiture provisions, as the Committee shall determine);
(v) to determine the terms and conditions under which awards granted
hereunder are to operate on a tandem basis and/or in conjunction with or apart
from other awards made by the Company or any Subsidiary outside of this Plan;
(vi) to determine the extent and circumstances under which Stock and
other amounts payable with respect to an award hereunder shall be deferred,
which may be either automatic or at the election of the participant; and
(vii) to substitute (A) new Stock Options for previously granted Stock
Options, which previously granted Stock Options have higher option exercise
prices and/or contain other less favorable terms, and (B) new awards of any
other type for previously granted awards of the same type, which previously
granted awards are upon less favorable terms.
Subject to Section 11 hereof, the Committee shall have the authority to
adopt, alter and repeal such administrative rules, guidelines and practices
governing the Plan as it shall, from
3
time to time, deem advisable, to interpret the terms and provisions of the Plan
and any award issued under the Plan (and to determine the form and substance of
all agreements relating thereto), and to otherwise supervise the administration
of the Plan.
Subject to Section 11 hereof, all decisions made by the Committee pursuant
to the provisions of the Plan shall be made in the Committee's sole discretion
and shall be final and binding upon all persons, including the Company, its
Subsidiaries and Plan participants.
SECTION 3. STOCK SUBJECT TO PLAN.
The total number of shares of Stock reserved and available for distribution
under the Plan shall be 2,050,000 shares. Such shares may consist, in whole or
in part, of authorized and unissued shares or treasury shares.
If any shares of Stock that have been optioned cease to be subject to a
Stock Option, or if any shares of Stock that are subject to any Stock
Appreciation Right, Restricted Stock, Deferred Stock award or Other Stock-Based
Award granted hereunder are forfeited or any such award otherwise terminates
without a payment being made to the participant in the form of cash and/or
Stock, such shares shall again be available for distribution in connection with
future grants and awards under the Plan.
In the event of any merger, reorganization, consolidation,
recapitalization, dividend (other than a dividend or its equivalent which is
credited to a Plan participant or a regular cash dividend), Stock split, or
other change in corporate structure affecting the Stock, such substitution or
adjustment shall be made in the aggregate number of shares reserved for issuance
under the Plan, in the number and option price of shares subject to outstanding
Options granted under the Plan, and in the number of shares subject to other
outstanding awards (including but not limited to awards of Restricted Stock,
Deferred Stock and Other Stock-Based Awards) granted under the Plan as may be
determined to be appropriate by the Committee in order to prevent dilution or
enlargement of rights, provided that the number of shares subject to any award
shall always be a whole number. Such adjusted option price shall also be used
to determine the amount payable by the Company upon the exercise of any Stock
Appreciation Right associated with any Stock Option.
SECTION 4. ELIGIBILITY.
Officers and other employees of the Company or any Subsidiary (but
excluding members of the Committee and any person who serves only as a director)
who are at the time of the grant of an award under this Plan regularly employed
by the Company or any Subsidiary on a full-time basis and who are responsible
for or contribute to the management, growth and/or profitability of the business
of the Company or any Subsidiary, are eligible to be granted Options and awards
under the Plan. Eligibility under the Plan for such officers and other
employees, and Agents, shall be determined by the Committee.
SECTION 5. STOCK OPTIONS.
(a) Grant and Exercise. Stock Options granted under the Plan may be of two
types: (i) Incentive Stock Options and (iii) Non-Qualified Stock Options. Any
Stock Option granted
4
under the Plan shall contain such terms as the Committee may from time to time
approve. The Committee shall have the authority to grant to any optionee
Incentive Stock Options, Non-Qualified Stock Options, or both types of Stock
Options (in each case with or without Stock Appreciation Rights), which may be
granted alone or in addition to other awards granted by the Company. To the
extent that any Stock Option does not qualify as an Incentive Stock Option, it
shall constitute a separate Non-Qualified Stock Option.
Anything in the Plan to the contrary notwithstanding, no term of the Plan
relating to Incentive Stock Options or any agreement providing for Incentive
Stock Options shall be interpreted, amended or altered, nor shall any discretion
or authority granted under the Plan be so exercised, so as to disqualify the
Plan under Section 422 of the Code, or, without the consent of the optionee(s)
affected, to disqualify any Incentive Stock Option under such Section 422.
(b) Terms and Conditions. Stock Options granted under the Plan shall be
subject to the following terms and conditions:
(i) Option Price. The option price per share of Stock purchasable
under a Stock Option shall be determined by the Committee at the time of grant
but shall be not less than 100% of the Fair Market Value at the time of grant
(110%, in the case of an Incentive Stock Option granted to an optionee ("10%
Stockholder") who, at the time of grant, owns Stock possessing more than 10% of
the total combined voting power of all classes of stock of the Company or its
parent (if any) or subsidiary corporations, as those terms are defined in
Sections 424(e) and (f) of the Code).
(ii) Option Term. The term of each Stock Option shall be fixed by the
Committee, but no Incentive Stock Option shall be exercisable more than ten
years (five years, in the case of an Incentive Stock Option granted to a 10%
Stockholder) after the date on which the Option is granted, and no Non-Qualified
Stock Option shall be exercisable more than ten years and one day after the date
on which the Option is granted.
(iii) Exercisability. Stock Options shall be exercisable at such time
or times and subject to such terms and conditions as shall be determined by the
Committee. If the Committee provides, in its discretion, that any Stock Option
is exercisable only in installments, the Committee may waive such installment
exercise provisions at any time at or after the time of grant in whole or in
part, based upon such factors as the Committee shall determine.
(iv) Method of Exercise. Subject to whatever installment, exercise and
waiting period provisions are applicable in a particular case, Stock Options may
be exercised in whole or in part at any time during the option period, by giving
written notice of exercise to the Company specifying the number of shares of
Stock to be purchased. Such notice shall be accompanied by payment in full of
the purchase price, which shall be in cash or, unless otherwise provided in the
Stock Option agreement referred to in Section 5(b)(xii) below, in whole shares
of Stock which are already owned by the holder of the Option or, unless
otherwise provided in the Stock Option agreement referred to in Section
5(b)(xii) below, partly in cash and partly in such Stock. Cash payments shall
be made by wire transfer, certified or bank check or personal check, in each
case payable to the order of the Company; provided,
5
however, that the Company shall not be required to deliver certificates for
shares of Stock with respect to which an Option is exercised until the Company
has confirmed the receipt of good and available funds in payment of the purchase
price thereof. Payments in the form of Stock (which shall be valued at the Fair
Market Value of a share of Stock on the date of exercise) shall be made by
delivery of stock certificates in negotiable form which are effective to
transfer good and valid title thereto to the Company, free of any liens or
encumbrances. The holder of an Option shall have none of the rights of a
stockholder with respect to the shares subject to the Option until such shares
shall be transferred to the holder upon the exercise of the Option. At the
discretion of the Board or the Committee, as the case may be, an Option may be
exercised with respect to a specified number of shares of Stock by written
notice of exercise to the Company stating that (i) the option price for the
shares and any withholding tax due thereon will be paid to the Company directly
by a broker-dealer designated by the optionee and irrevocable instructions to
such effect have been furnished by the optionee to such broker-dealer; and (ii)
an advice from the broker-dealer confirming payment to the Company will be
promptly delivered to the Company. The exercise of any such option shall be
irrevocable at the time of notice to the Company; provided, however, that the
Company shall not be required to deliver certificates for shares of Stock with
respect to the exercise of the option until the Company has confirmed the
receipt of good and sufficient funds in payment of the purchase price thereof.
(v) Transferability; Exercisability. No Stock Option shall be
transferable by the optionee otherwise than by will, by the laws of descent and
distribution or by a Qualified Domestic Relations Order, and all Stock Options
shall be exercisable, during the optionee's lifetime, only by the optionee or by
his spouse to whom the Option has been transferred pursuant to the terms of a
Qualified Domestic Relations Order.
(vi) Termination by Reason of Death. Subject to Section 5(b)(x) below,
in the event of the death of an optionee, any Stock Option held by such
optionee, unless otherwise determined by the Committee, shall be exercisable by
the legal representative of the estate or by the legatee of the optionee under
the will of the optionee, for a period of one year (or such other period as the
Committee may specify) from the date of such death or until the expiration of
the stated term of such Stock Option, whichever period is the shorter, to the
extent such Stock Option was exercisable at the time of death.
(vii) Termination by Reason of Disability of Employee Optionee. Subject
to Section 5(b)(x) below, any Stock Options held by an optionee who is an
officer or employee and whose employment by the Company or any Subsidiary
terminates by reason of Disability, unless otherwise determined by the
Committee, shall be exercisable by the optionee for a period of one year (or
such other period as the Committee may specify) from the date of such
termination of employment or until the expiration of the stated term of such
Stock Option, whichever period is the shorter, to the extent such Stock Option
was exercisable at the time of such disability; provided, however, that if the
optionee dies within such one-year period (or such other period as the Committee
shall specify), any unexercised Stock Option held by such optionee shall
thereafter be exercisable to the extent to which it was exercisable at the time
of death for a period of one year from the date of such death or until the
expiration of the stated term of such Stock Option, whichever period is the
shorter.
6
(viii) Termination by Reason of Retirement of Employee Optionee.
Subject to Section 5(b)(x) below, any Stock Options held by an optionee who is
an officer or employee and whose employment by the Company or a Subsidiary
terminates by reason of Normal Retirement, unless otherwise determined by the
Committee, shall be exercisable by the optionee for a period of one year (or
such other period as the Committee may specify) from the date of such
termination of employment or the expiration of the stated term of such Stock
Option, whichever period is the shorter, to the extent such Stock Option was
exercisable at the time of such Normal Retirement; provided, however, that if
the optionee dies within such one-year period, any unexercised Stock Option held
by such optionee shall thereafter be exercisable, to the extent to which it was
exercisable at the time of death, for a period of one year from the date of such
death or until the expiration of the stated term of such Stock Option, whichever
period is the shorter. If an optionee's employment with the Company or any
Subsidiary terminates by reason of Early Retirement, the Stock Option shall
thereupon terminate, provided if the Committee so approves at the time of Early
Retirement, any Stock Option held by the optionee shall be fully vested and may
thereafter be exercised by the optionee as provided above in connection with
termination of employment by reason of Normal Retirement.
(ix) Other Termination of Employment of Employee Optionee. Subject to
the provisions of Section 13(g) below and unless otherwise determined by the
Committee, if an optionee who is an officer or employee whose employment by the
Company or any Subsidiary terminates for any reason other than death, Disability
or Retirement, any Stock Options held by him shall thereupon automatically
terminate, except that if the optionee's employment is involuntarily terminated
by the Company or a Subsidiary, without cause, such Stock Option may be
exercised for the lesser of three months after termination of employment or the
balance of such Stock Option's term.
(x) Additional Incentive Stock Option Limitation. In the case of an
Incentive Stock Option, the amount of Stock (determined at the time of grant of
the Option using the Fair Market Value of the Stock as of such date) with
respect to which Incentive Stock Options are exercisable for the first time by
an optionee during any calendar year (under all such plans of optionee's
employer corporation and its parent and subsidiary corporations, as defined in
Sections 424(e) and (f) of the Code) shall not exceed $100,000.
(xi) Buy out and Settlement Provisions. The Committee may at any time
offer to buy out a Stock Option previously granted, based upon such terms and
conditions as the Committee shall establish and communicate to the optionee at
the time that such offer is made.
(xii) Stock Option Agreement. Each grant of a Stock Option shall be
confirmed by, and shall be subject to the terms of, an agreement executed by the
Company and the participant.
SECTION 6. STOCK APPRECIATION RIGHTS.
(a) Grant and Exercise. Stock Appreciation Rights may be granted in
conjunction with all or part of any Stock Option granted by the Company. In the
case of a Non-Qualified Stock Option, such rights may be granted either at or
after the time of the grant of such
7
Non-Qualified Stock Option. In the case of an Incentive Stock Option, such
rights may be granted only at the time of the grant of such Incentive Stock
Option.
A Stock Appreciation Right which is granted with respect to a given Stock
Option shall terminate and shall no longer be exercisable upon the termination
or exercise of the related Stock Option, except that, unless otherwise
determined by the Committee at the time of grant, a Stock Appreciation Right
granted with respect to less than the full number of shares covered by a related
Stock Option shall not be reduced until after the number of shares remaining
under the related Stock Option equals the number of shares covered by the Stock
Appreciation Right.
A Stock Appreciation Right may be exercised by an optionee, in accordance
with Section 6(b) below, by surrendering the applicable portion of the related
Stock Option. Upon such exercise and surrender, the optionee shall be entitled
to receive an amount (and in the form) determined in the manner prescribed in
Section 6(b) below. Stock Options which have been so surrendered, in whole or
in part, shall no longer be exercisable to the extent the related Stock
Appreciation Rights have been exercised.
(b) Terms and Conditions. Stock Appreciation Rights shall be subject
to the following terms and conditions:
(i) Stock Appreciation Rights shall be exercisable only at such time or
times and to the extent that the Stock Options to which they relate shall be
exercisable in accordance with the provisions of Section 5 above and this
Section 6 of the Plan; provided, however, that any Stock Appreciation Right
granted subsequent to the grant of the related Stock Option shall not be
exercisable during the first six months of the term of such Stock Appreciation
Right, except that this special limitation shall not apply in the event of
Disability or Termination of an employee optionee or death of an optionee prior
to the expiration of the six-month period.
(ii) Upon the exercise of a Stock Appreciation Right, an optionee shall
be entitled to receive up to, but not more than, an amount in cash and/or shares
of Stock equal to the SAR Value with the Committee having the right to determine
the form of payment, subject to Section 6(b)(v) below. For purposes of this
paragraph, the shares of Stock will be valued at their Fair Market Value at the
date of exercise of the Stock Appreciation Right.
(iii) Stock Appreciation Rights shall be transferable and exercisable
only when and to the extent that the underlying Stock Option would be
transferable and exercisable under Section 5(b)(v) of this Plan.
(iv) Upon the exercise of a Stock Appreciation Right, the Stock Option or
part thereof to which such Stock Appreciation Right is related shall be deemed
to have been exercised for the purpose of the limitation set forth in Section 3
of the Plan on the number of shares of Stock to be issued under the Plan, but
only to the extent of the number of shares issued under the Stock Appreciation
Right at the time of exercise based upon the SAR Value.
(v) The Committee may grant "Limited Stock Appreciation Rights", i.e.,
Stock Appreciation Rights that become exercisable only in the event of a Change
in Control as defined in Section 10 below, subject to such terms and conditions
as the Committee may
8
specify at the time of grant. Said Limited Stock Appreciation Rights shall be
settled solely in cash, in an amount equal to the SAR Value.
Each grant of Stock Appreciation Rights shall be confirmed by, and shall be
subject to the terms of, an agreement, executed by the Company and the
participant.
SECTION 7. RESTRICTED STOCK.
(a) Grant and Exercise. Shares of Restricted Stock may be issued either
alone or in addition to other awards granted by the Company. The Committee
shall determine the eligible persons to whom, and the time or times at which,
grants of Restricted Stock will be made, the number of shares to be awarded, the
price (if any) to be paid by the recipient, the time or times within which such
awards may be subject to forfeiture (the "Restriction Period"), the vesting
schedule and rights to acceleration thereof, and all other terms and conditions
of the awards.
The Committee may condition the grant of Restricted Stock upon the
attainment of specified performance goals or such other factors as the Committee
may determine.
(b) Terms and Conditions. Each Restricted Stock award shall be subject to
the following terms and conditions:
(i) Restricted Stock, when issued, will be represented by a stock
certificate or certificates registered in the name of the holder to whom such
Restricted Stock shall have been awarded. During the Restriction Period,
certificates representing the Restricted Stock and any securities constituting
Retained Distributions (as defined below) shall bear a restrictive legend to the
effect that ownership of the Restricted Stock (and such Retained Distributions),
and the enjoyment of all rights appurtenant thereto, are subject to the
restrictions, terms and conditions provided in the Plan and the applicable
Restricted Stock agreement. Such certificates shall be deposited by the holder
with the Company, together with stock powers or other instruments of assignment,
each endorsed in blank, which will permit transfer to the Company of all or any
portion of the Restricted Stock and any securities constituting Retained
Distributions that shall be forfeited or that shall not become vested in
accordance with the Plan and the applicable Restricted Stock agreement.
(ii) Restricted Stock shall constitute issued and outstanding shares of
Common Stock for all corporate purposes. The holder will have the right to vote
such Restricted Stock, to receive and retain all regular cash dividends and
other cash equivalent distributions as the Board may in its sole discretion
designate, pay or distribute on such Restricted Stock and to exercise all other
rights, powers and privileges of a holder of Common Stock with respect to such
Restricted Stock, with the exceptions that (A) the holder will not be entitled
to delivery of the stock certificate or certificates representing such
Restricted Stock until the Restriction Period shall have expired and unless all
other vesting requirements with respect thereto shall have been fulfilled; (B)
the Company will retain custody of the stock certificate or certificates
representing the Restricted Stock during the Restriction Period; (C) other than
regular cash dividends and other cash equivalent distributions as the Board may
in its sole discretion designate, pay or distribute, the Company will retain
custody of all distributions ("Retained Distributions") made or declared with
respect to the Restricted Stock (and such Retained
9
Distributions will be subject to the same restrictions, terms and conditions as
are applicable to the Restricted Stock) until such time, if ever, as the
Restricted Stock with respect to which such Retained Distributions shall have
been made, paid or declared shall have become vested and with respect to which
the Restriction Period shall have expired; (D) the holder may not sell, assign,
transfer, pledge, exchange, encumber or dispose of the Restricted Shares or any
Retained Distributions during the Restriction Period; and (E) a breach by the
holder of any of the restrictions, terms or conditions contained in this Plan or
the Restricted Stock agreement referred to in the following clause (iv) or
otherwise established by the Committee with respect to any Restricted Stock or
Retained Distributions will cause a forfeiture of such Restricted Stock and any
Retained Distributions with respect thereto.
(iii) Upon the expiration of the Restriction Period with respect to each
award of Restricted Stock and the satisfaction of any other applicable
restrictions, terms and conditions (A) all or part of such Restricted Stock
shall become vested in accordance with the terms of the Restricted Stock
agreement referred to in the following clause (iv), and (B) any Retained
Distributions with respect to such Restricted Stock shall become vested to the
extent that the Restricted Stock related thereto shall have become vested. Any
such Restricted Stock and Retained Distributions that do not vest shall be
forfeited to the Company and the holder shall not thereafter have any rights
with respect to such Restricted Stock and Retained Distributions that shall have
been so forfeited.
(iv) Each Restricted Stock award shall be confirmed by, and shall be
subject to the terms of, an agreement executed by the Company and the
participant.
SECTION 8. DEFERRED STOCK.
(a) Grant and Exercise. Deferred Stock may be awarded either alone or in
addition to other awards granted by the Company. The Committee shall determine
the eligible persons to whom and the time or times at which Deferred Stock shall
be awarded, the number of shares of Deferred Stock to be awarded to any person,
the duration of the period (the "Deferral Period") during which, and the
conditions under which, receipt of the Stock will be deferred, and all the other
terms and conditions of the awards.
The Committee may condition the grant of Deferred Stock upon the attainment
of specified performance goals or such other factors or criteria as the
Committee shall determine.
(b) Terms and Conditions. Each Deferred Stock award shall be subject to the
following terms and conditions:
(i) Subject to the provisions of this Plan and the award agreement
referred to in Section 8(b)(vii) below, Deferred Stock awards may not be sold,
assigned, transferred, pledged or otherwise encumbered during the Deferral
Period. At the expiration of the Deferral Period (or the Additional Deferral
Period referred to in Section 8(b)(vi) below, where applicable), share
certificates shall be delivered to the participant, or his legal representative,
in a number equal to the shares covered by the Deferred Stock award.
(ii) As determined by the Committee at the time of award, amounts equal
to any dividends declared during the Deferral Period (or the Additional Deferral
Period referred to
10
in Section 8(b)(vi) below, where applicable) with respect to the number of
shares covered by a Deferred Stock award may be paid to the participant
currently or deferred and deemed to be reinvested in additional Deferred Stock.
(iii) Subject to the provisions of the award agreement and this Section
8 and Section 13(g) below, upon termination of a participant who is an officer
or employee whose employment with the Company or any Subsidiary is terminated
for any reason during the Deferral Period (or the Additional Deferral Period
referred to in Section 8(b)(vi) below, where applicable) for a given award, the
Deferred Stock in question will vest or be forfeited in accordance with the
terms and conditions established by the Committee at the time of grant.
(iv) The Committee may, after grant, accelerate the vesting of all or any
part of any Deferred Stock award and/or waive the deferral limitations for all
or any part of a Deferred Stock award.
(v) In the event of hardship or other special circumstances of an Agent
or a participant who is an officer or employee whose employment with the Company
or any Subsidiary is involuntarily terminated (other than for cause), the
Committee may waive in whole or in part any or all of the remaining deferral
limitations imposed hereunder or pursuant to the award agreement referred to in
Section 8(b)(vii) below with respect to any or all of the participant's Deferred
Stock.
(vi) A participant may request to, and the Committee may at any time,
defer the receipt of an award (or an installment of an award) for an additional
specified period or until a specified event (the "Additional Deferral Period").
Subject to any exceptions adopted by the Committee, such request must generally
be made at least one year prior to expiration of the Deferral Period for such
Deferred Stock award (or such installment).
(vii) Each Deferred Stock award shall be confirmed by, and shall be
subject to the terms of, an agreement executed by the Company and the
participant.
SECTION 9. OTHER STOCK-BASED AWARDS.
(a) Grant and Exercise. Other Stock-Based Awards which may include
performance shares, and shares valued by reference to the performance of the
Company or any Subsidiary, may be granted either alone or in addition to or in
tandem with Stock Options, Stock Appreciation Rights, Restricted Stock or
Deferred Stock under this or any other plan.
The Committee shall determine the eligible persons to whom, and the time or
times at which, such awards shall be made, the number of shares of Stock to be
awarded pursuant to such awards, and all other terms and conditions of the
awards. The Committee may also provide for the grant of Stock under such awards
upon the completion of a specified performance period.
(b) Terms and Conditions. Each Other Stock-Based Award shall be subject to
the following terms and conditions:
11
(i) Shares of Stock subject to an Other Stock-Based Award may not be
sold, assigned, transferred, pledged or otherwise encumbered prior to the date
on which the shares are issued, or, if later, the date on which any applicable
restriction, performance or deferral period lapses.
(ii) The recipient of an Other Stock-Based Award shall be entitled to
receive, currently or on a deferred basis, dividends or dividend equivalents
with respect to the number of shares covered by the award, as determined by the
Committee at the time of the award. The Committee may provide that such amounts
(if any) shall be deemed to have been reinvested in additional Stock.
(iii) Any Other Stock-Based Award and any Stock covered by any Other
Stock-Based Award shall vest or be forfeited to the extent so provided in the
award agreement, as determined by the Committee.
(iv) In the event of Retirement, Disability or death of a participant who
is an officer or employee of the Company or any Subsidiary, or in cases of
special circumstances of any participant, the Committee may waive in whole or in
part any or all of the limitations imposed hereunder (if any) with respect to
any or all of an Other Stock-Based Award.
(v) Each Other Stock-Based Award shall be confirmed by, and shall be
subject to the terms of, an agreement executed by the Company and by the
participant.
SECTION 10. CHANGE IN CONTROL PROVISIONS.
(a) A "Change of Control" shall be deemed to have occurred on the tenth day
after:
(i) any individual, firm, corporation or other entity, or any group (as
defined in Section 13(d)(3) of the Securities Exchange Act of 1934) (the "Act")
becomes, directly or indirectly, the beneficial owner (as defined in the General
Rules and Regulations of the Securities and Exchange Commission with respect to
Sections 13(d) and 13(g) of the Act) of more than 20% of the then outstanding
shares of the Company's capital stock entitled to vote generally in the election
of directors of the Company; or
(i) the commencement of, or the first public announcement of the
intention of any individual, firm, corporation or other entity or of any group
(as defined in Section 13(d)(3) of the Act) to commence, a tender or exchange
offer subject to Section 14(d)(1) of the Act for any class of the Company's
capital stock; or
(ii) the stockholders of the Company approve (A) a definitive agreement
for the merger or other business combination of the Company with or into another
corporation pursuant to which the stockholders of the Company do not own,
immediately after the transaction, more than 50% of the voting power of the
corporation that survives and is a publicly owned corporation and not a
subsidiary of another corporation, or (B) a definitive agreement for the sale,
exchange or other disposition of all or substantially all of the assets of the
Company, or (C) any plan or proposal for the liquidation or dissolution of the
Company;
12
provided, however, that a "Change of Control" shall not be deemed to have
taken place if beneficial ownership is acquired by, or a tender or exchange
offer is commenced or announced by, the Company, any profit-sharing, employee
ownership or other employee benefit plan of the Company, any trustee of or
fiduciary with respect to any such plan when acting in such capacity, or any
group comprised solely of such entities.
(b) In the event of a "Change of Control" as defined in Subsection (a)
above, awards granted under the Plan will be subject to the following
provisions, unless the provisions of this Section 10 are suspended or terminated
by an affirmative vote of a majority of the Board prior to the occurrence of
such a "Change of Control":
(i) all outstanding Stock Options, and all Stock Appreciation Rights
(including Limited Stock Appreciation Rights) shall become exercisable in full,
whether or not otherwise exercisable at such time, and any such Stock Option or
Stock Appreciation Right shall remain exercisable in full thereafter until it
expires pursuant to its terms; and
(ii) all restrictions and deferral limitations contained in Restricted
Stock awards, Deferred Stock awards and Other Stock-Based Awards granted under
the Plan shall lapse.
SECTION 11. AMENDMENTS AND TERMINATION.
The Board may at any time, and from time to time, amend any of the
provisions of the Plan, and may at any time suspend or terminate the Plan;
provided, however, that no such amendment shall be effective unless and until it
has been duly approved by the holders of the outstanding shares of Stock if (a)
it increases the aggregate number of shares of Stock which are issued pursuant
to the Plan, (except as provided in Section 3 above) or (b) the failure to
obtain such approval would adversely affect the compliance of the Plan with the
requirements of Rule 16b-3 under the Act, as in effect from time to time, or
with the requirements of any other applicable law, rule or regulation. The
Committee may amend the terms of any award theretofore granted under the Plan;
provided, however, that subject to Section 3 above, no such amendment may be
made by the Committee which in any material respect impairs the rights of the
participant without the participant's consent.
SECTION 12. UNFUNDED STATUS OF PLAN.
The Plan is intended to constitute an "unfunded" plan for incentive and
deferred compensation. With respect to any payments not yet made to a
participant or optionee by the Company, nothing contained herein shall give any
such participant or optionee any rights that are greater than those of a general
creditor of the Company.
SECTION 13. GENERAL PROVISIONS.
(a) Investment Representations. The Committee may require each person
acquiring shares of Stock pursuant to a Stock Option or other award under the
Plan to represent to and agree with the Company in writing that the optionee or
participant is acquiring the shares for investment without a view to
distribution thereof.
13
All certificates for shares of Stock delivered under the Plan shall be
subject to such stop transfer orders and other restrictions as the Committee may
deem advisable under the rules, regulations, and other requirements of the
Securities and Exchange Commission, any stock exchange upon which the Stock is
then listed, any applicable Federal or state securities law, and any applicable
corporate law, and the Committee may cause a legend or legends to be put on any
such certificates to make appropriate reference to such restrictions.
(b) Additional Incentive Arrangements. Nothing contained in the Plan shall
prevent the Board from adopting such other or additional incentive arrangements
as it may deem desirable, including, but not limited to, the granting of stock
options and the awarding of stock and cash otherwise than under the Plan; and
such arrangements may be either generally applicable or applicable only in
specific cases.
(c) Continued Employment. Nothing contained in the Plan or in any award
hereunder shall be deemed to confer upon any officer, employee or Agent of the
Company or any Subsidiary any right to continued employment with the Company or
any Subsidiary, nor shall it interfere in any way with the right of the Company
or any Subsidiary to terminate the employment of any of its officers, employees
or Agents at any time.
(d) Withholding. Not later than the date as of which an amount first
becomes includable in the gross income of the participant for Federal income tax
purposes with respect to any award under the Plan, the participant shall pay to
the Company, or make arrangements satisfactory to the Committee regarding the
payment of, any Federal, state and local taxes of any kind required by law to be
withheld or paid with respect to such amount. If permitted by the Committee,
tax withholding or payment obligations may be settled with Stock, including
Stock that is part of the award that gives rise to the withholding requirement.
The obligations of the Company under the Plan shall be conditional upon such
payment or arrangements and the Company or the participant's employer (if not
the Company) shall, to the extent permitted by law, have the right to deduct any
such taxes from any payment of any kind otherwise due to the participant from
the Company or any Subsidiary.
(e) Governing Law. The Plan and all awards made and actions taken
thereunder shall be governed by and construed in accordance with the laws of the
State of New York (without regard to choice of law provisions).
(f) Other Benefit Plans. Any Stock Option granted or other award made under
the Plan shall not be deemed compensation for purposes of computing benefits
under any retirement plan of the Company or any Subsidiary and shall not affect
any benefits under any other benefit plan now or subsequently in effect under
which the availability or amount of benefits is related to the level of
compensation (unless required by specific reference in any such other plan to
awards under this Plan).
(g) Employee Status. A leave of absence, unless otherwise determined by the
Committee prior to the commencement thereof, shall not be considered a
termination of employment. Any Stock Option granted or awards made under the
Plan to officers and employees of the Company or any Subsidiary shall not be
affected by any change of employment, so long as the holder continues to be an
employee of the Company or any Subsidiary.
14
(h) Non-Transferability. Except as otherwise expressly provided in the
Plan, no right or benefit under the Plan may be alienated, sold, assigned,
hypothecated, pledged, exchanged, transferred, encumbered or charged, otherwise
than by will, by the laws of decent and distribution or by a Qualified Domestic
Relations Order, and any attempt otherwise to alienate, sell, assign,
hypothecate, pledge, exchange, transfer, encumber or charge the same shall be
void. No right or benefit hereunder shall in any manner be liable for or
subject to the debts, contracts, liabilities or torts of the person entitled to
such benefit.
(i) Applicable Laws. The obligations of the Company with respect to all
Stock Options and awards under the Plan shall be subject to (i) all applicable
laws, rules and regulations and such approvals by any governmental agencies as
may be required, including, without limitation, the effectiveness of a
registration statement under the Securities Act of 1933, and (ii) the rules and
regulations of any securities exchange on which the Stock may be listed.
(j) Conflicts. If any of the terms or provisions of the Plan conflict with
the requirements of Rule 16b-3 under the Act, as in effect from time to time, or
with the requirements of any other applicable law, rule or regulation, and/or
with respect to Incentive Stock Options, Section 422 of the Code, then such
terms or provisions shall be deemed inoperative to the extent they so conflict
with the requirements of said Rule 16b-3, and/or with respect to Incentive Stock
Options, Section 422 of the Code. With respect to Incentive Stock Options, if
this Plan does not contain any provision required to be included herein under
Section 422 of the Code, such provision shall be deemed to be incorporated
herein, with the same force and effect as if such provision had been set out at
length herein.
(k) Written Agreements. The Committee may terminate any Stock Option or
other award made under the Plan if a written agreement relating thereto is not
executed and returned to the Company within 30 days after such agreement has
been delivered to the participant for his or her execution.
(l) Consideration for Stock. The Committee may not grant any awards under
the Plan pursuant to which the Company will be required to issue any shares of
Stock unless the Company will receive consideration for the shares of Stock
sufficient under the laws of the State of New Jersey so that such shares of
Stock will be fully paid and nonassessable when issued.
SECTION 14. EFFECTIVE DATE OF PLAN.
The Plan was deemed adopted on the date it was approved by the stockholders
of Par and became effective as to Par as of March 23, 1990. The Plan was
adopted as to the Company on the date of adoption and assumption by the Board,
and the Plan became effective as to the Company on the effective date of the
merger of Par Merging Corp., a subsidiary of the Company, with and into Par.
15
SECTION 15. TERM OF PLAN.
No Stock Option, Stock Appreciation Rights Restricted Stock award, Deferred
Stock award or Other Stock-Based Award shall be granted pursuant to the Plan on
or after March 23, 2000, but awards granted prior to such date may extend beyond
that date.
AS OF JUNE 1995
16