EXHIBIT 4.1
AMTECH SYSTEMS, INC.
AMENDED AND RESTATED
1995 STOCK OPTION PLAN
1. Purpose of the Plan. The purposes of this Amended and Restated 1995
Stock Option Plan are to advance the interests of Amtech Systems, Inc. (the
"Company") by inducing persons of outstanding ability and potential to join and
remain with the Company, by encouraging, motivating and enabling employees to
acquire stock ownership in the Company, and by providing the participating
employees with an additional incentive to promote the success of the Company
through the grant of options to purchase shares of the Company's Common Stock.
Options granted hereunder may be either "Incentive Stock Options," as defined in
Section 422 of the Internal Revenue Code of 1986, as amended, or "Nonstatutory
Stock Options," at the discretion of the Board or a Committee appointed by the
Board and as reflected in the terms of the written option agreement ("Option
Agreement").
2. Definitions. As used herein, the following definitions shall apply:
(a) "Board" shall mean the Board of Directors of the Company
or the Committee, if one has been appointed.
(b) "Code" shall mean the Internal Revenue Code of 1986, as
amended, and the rules and regulations promulgated thereunder.
(c) "Common Stock" shall mean the common stock of the Company
described in the Company's Certificate of Incorporation, as amended.
(d) "Company" shall mean Amtech Systems, Inc., a Delaware
corporation, and shall include any parent or subsidiary corporation of the
Company as defined in Sections 424(e) and (f), respectively, of the Code.
(e) "Committee" shall mean the Committee appointed by the
Board in accordance with paragraph (a) of Section 4 of the Plan, if one is
appointed.
(f) "Employee" shall mean any person, including officers and
directors, employed by the Company. The payment of a director's fee by the
Company shall not be sufficient to constitute "employment" by the Company.
(g) "Exchange Act" shall mean the Securities and Exchange Act
of 1934, as amended.
(h) "Fair Market Value" shall mean, with respect to the date a
given Option is granted or exercised, the value of the Common Stock determined
by the Board or the
Committee in such manner as it may deem equitable for Plan purposes but, in the
case of an Incentive Stock Option, no less than is required by applicable laws
or regulations; provided, however, that where there is a public market for the
Common Stock, the Fair Market Value per Share shall be the average of the bid
and asked prices of the Common Stock on the date of grant if the Common Stock is
then included for quotation on the NASDAQ SmallCap Market or, the Fair Market
Value per Share shall be the closing price of the Common Stock if the Common
Stock is then included on the NASDAQ National Market or listed on the New York,
American or Pacific Stock Exchange. The Board or a Committee appointed by the
Board may rely upon published quotations in The Wall Street Journal or a
comparable publication for purposes of the calculation of the Fair Market Value
per Share as set forth above.
(i) "Incentive Stock Option" shall mean an Option which is
intended to qualify as an incentive stock option within the meaning of Section
422 of the Code.
(j) "Option" shall mean a stock option granted under the Plan.
(k) "Optioned Stock" shall mean the Common Stock subject to an
Option.
(l) "Optionee" shall mean an Employee of the Company who has
been granted one or more Options.
(m) "Parent" shall mean a "parent corporation," whether now or
hereafter existing, as defined in Section 424(e) of the Code.
(n) "Plan" shall mean this Stock Option Plan.
(o) "Share" shall mean a share of the Common Stock, as
adjusted in accordance with Section 11 of the Plan.
(p) "Subsidiary" shall mean a "subsidiary corporation,"
whether now or hereafter existing, as defined in Section 424(f) of the Code.
(q) "Tax Date" shall mean the date an Optionee is required to
pay the Company an amount with respect to tax withholding obligations in
connection with the exercise of an option.
3. Common Stock Subject to the Plan. Subject to the provisions of
Section 11 of the Plan, the maximum aggregate number of shares which may be
optioned and sold under the Plan is 320,000 Shares of Common Stock. The Shares
may be authorized, but unissued, or previously issued Shares acquired or to be
acquired by the Company and held in treasury.
If an Option should expire or become unexercisable for any
reason without having been exercised in full, the unpurchased Shares covered by
such Option shall, unless the Plan shall have been terminated, be available for
future grants of Options.
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4. Administration of the Plan.
(a) Procedure.
(1) The Plan shall be administered by the Board in
accordance with Securities and Exchange Commission Rule 16b-3 ("Rule 16b-3");
provided, however, that the Board may appoint a Committee to administer the Plan
at any time or from time to time and, provided further, that if members of the
Board are not "disinterested" within the meaning of Securities and Exchange
Commission Rule 16b-3, then any participation by directors in the Plan must be
administered by a Committee appointed by the Board.
(2) The Committee shall consist of at least two (2)
members of the Board, each of whom is "disinterested" within the meaning of
Securities and Exchange Commission Rule 16b-3 to administer the Plan on behalf
of the Board, subject to such terms and conditions as the Board may prescribe.
Once appointed, the Committee shall continue to serve until otherwise directed
by the Board. From time to time the Board may increase the size of the Committee
and appoint additional members thereof, remove members (with or without cause),
and appoint new members in substitution therefor, fill vacancies however caused,
or remove all members of the Committee and thereafter directly administer the
Plan; provided, however, that at no time may any director who is not
"disinterested" within the meaning of Securities and Exchange Commission Rule
16b-3 serve on the Committee nor shall a Committee of less than two (2) members
administer the Plan.
(b) Powers of the Board. Subject to the provisions of the
Plan, the Board or a Committee appointed by the Board shall have the authority,
in its discretion: (i) to grant Incentive Stock Options, in accordance with
Section 422 of the Code, and to grant "nonstatutory stock options;" (ii) to
determine, upon review of relevant information and in accordance with Section 2
of the Plan, the Fair Market Value of the Common Stock; (iii) to determine the
exercise price per Share of Options to be granted, which exercise price shall be
determined in accordance with Section 8(a) of the Plan; (iv) to determine the
Employees to whom, and the time or times at which Options shall be granted and
the number of shares to be represented by each Option; (v) to interpret the
Plan; (vi) to prescribe, amend and rescind rules and regulations relating to the
Plan; (vii) to determine the terms and provisions of each Option granted (which
need not be identical) and, with the consent of the Optionee thereof, modify or
amend each Option; (viii) to accelerate or defer (with the consent of the
Optionee) the exercise date of any Option; (ix) to authorize any person to
execute on behalf of the Company any instrument required to effectuate the grant
of an Option previously granted by the Board or a Committee appointed by the
Board; (x) to accept or reject the election made by an Optionee pursuant to
Section 18 of the Plan; and (xi) to make all other determinations deemed
necessary or advisable for the administration of the Plan.
(c) Effect of Board's Decision. All decisions, determinations
and interpretations of the Board or a Committee appointed by the Board, shall be
final and binding on all Optionees and any other holders of any Options granted
under the Plan.
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5. Eligibility.
(a) Consistent with the Plan's purposes, Options may be
granted only to Employees of the Company as determined by the Board or a
Committee appointed by the Board. An Employee who has been granted an Option
may, if he is otherwise eligible, be granted an additional Option or Options.
Incentive Stock Options may be granted only to those Employees who meet the
requirements applicable under Section 422 of the Code.
(b) With respect to Incentive Stock Options granted under the
Plan, the aggregate fair market value (determined at the time the Incentive
Stock Option is granted) of the Common Stock with respect to which Incentive
Stock Options are exercisable for the first time by the employee during any
calendar year (under all plans of the Company and its parent and subsidiary
corporations) shall not exceed One Hundred Thousand Dollars ($100,000).
The Plan shall not confer upon any Optionee any right with
respect to continuation of employment with the Company, nor shall it interfere
in any way with his right or the Company's right to terminate his employment at
any time.
6. Effective Date. The Plan shall take effect on October 20, 1995, the
date on which the Board approved the Plan. No Option may be granted after
October 20, 2005 (ten years from the effective date of the Plan); provided,
however, that the Plan and all outstanding Options shall remain in effect until
such Options have expired or until such Options are canceled. The Plan shall be
submitted for shareholder approval at the next meeting of shareholders of the
Company; provided, however, that failure to obtain such approval shall not
affect the effectiveness of the Plan.
7. Term of Option. Unless otherwise provided in the Option Agreement,
the term of each Incentive Stock Option shall be ten (10) years from the date of
grant thereof. Unless otherwise provided in the Option Agreement, the term of
each Option which is not an Incentive Stock Option shall be eleven (11) years
from the date of grant. Notwithstanding the above, in the case of an Incentive
Stock Option granted to an Employee who, at the time the Incentive Stock Option
is granted, owns ten percent (10%) or more of the Common Stock as such amount is
calculated under Section 422(b)(6) of the Code ("Ten Percent Shareholder"), the
term of the Incentive Stock Option shall be five (5) years from the date of
grant thereof or such shorter time as may be provided in the Option Agreement.
8. Exercise Price and Payment.
(a) Exercise Price. The per Share exercise price for the
Shares to be issued pursuant to exercise of an Option shall be determined by the
Board or a Committee appointed by the Board, but in the case of an Incentive
Stock Option shall be no less than one hundred percent (100%) of the Fair Market
Value per Share on the date of grant; provided, further, that in the case of an
Incentive Stock Option granted to an Employee who, at the time of the grant of
such Incentive Stock Option, is a Ten Percent Shareholder, the per Share
exercise price shall be no less than one hundred ten percent (110%) of the Fair
Market Value per Share on the date of grant. In no event may the exercise price
in the case of a nonstatutory stock option be less than eighty-five (85%) of the
Fair Market Value per share on the date of grant.
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The Company will pay any documentary stamp taxes,
handling or certificate issuance fees attributable to the initial issuance of
shares of Common Stock upon the exercise of any Option under the Plan; provided,
however, that the Company shall not be required to pay any fees or taxes which
may be payable with respect to any transfer involved in the issuance or delivery
of any certificates for shares in a name other than that of the holder of an
Option.
(b) Payment. The price of an exercised Option and any taxes
attributable to the delivery of Common Stock under the Plan, or portion thereof,
shall be paid:
(1) In United States dollars in cash or by check,
bank draft or money order payable to the order of the Company; or
(2) At the discretion of the Board or a Committee
appointed by the Board, through the delivery of shares of Common Stock, with an
aggregate Fair Market Value, equal to the option price; or
(3) By a combination of (1) and (2) above.
The Board or a Committee appointed by the Board shall
determine acceptable methods for tendering Common Stock as payment upon exercise
of an Option and may impose such limitations and conditions on the use of Common
Stock to exercise an Option as it deems appropriate. At the election of the
Optionee pursuant to Section 18, the Company may satisfy its withholding
obligations by retaining such number of shares of Common Stock subject to the
exercised Option which have an aggregate Fair Market value on the exercise date
equal to the Company's aggregate federal, state, local and foreign tax
withholding and FICA and FUTA obligations with respect to income generated by
the exercise of the Option by Optionee.
9. Exercise of Option.
(a) Procedure for Exercise; Rights as a Shareholder. Any
Option granted hereunder shall be exercisable at such times and under such
conditions as determined by the Board or a Committee appointed by the Board,
including performance criteria with respect to the Company and/or the Optionee,
and as shall be permissible under the terms of the Plan. Unless otherwise
determined by the Board or a Committee appointed by the Board at the time of
grant, an Option may be exercised in whole or in part, but in no case may any
option be exercised as to less than One Hundred (100) shares at any one time (or
the remaining shares covered by the option if less than One Hundred (100)
shares)). An Option may not be exercised for a fraction of a Share.
An Option shall be deemed to be exercised when written
notice of such exercise has been given to the Company at its principal office to
the attention of the Secretary of the Company in accordance with the terms of
the Option by the person entitled to exercise the Option and full payment for
the Shares with respect to which the Option is exercised has been received by
the Company. Full payment may, as authorized by the Board or a Committee
appointed by the Board, consist of any consideration and method of payment
allowable under Section 8(b) of the Plan. Until the issuance (as evidenced by
the appropriate entry on the books
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of the Company or of a duly authorized transfer agent of the Company) of the
stock certificate evidencing such Shares, no right to vote or receive dividends
or any other rights as a shareholder shall exist with respect to the Optioned
Stock, notwithstanding the exercise of the Option. No adjustment will be made
for a dividend or other right for which the record date is prior to the date the
stock certificate is issued, except as provided in Section 11 of the Plan.
Exercise of an Option in any manner shall result in a
decrease in the number of Shares which thereafter may be available, both for
purposes of the Plan and for sale under the Option by the number of Shares as to
which the Option is exercised.
Notwithstanding anything contained in this Plan to the
contrary, the Board or a Committee appointed by the Board may establish certain
restrictions on the times at which an Option may be exercised after a number of
elapsed years together with cumulative exercise rights and may retain certain
rights with respect to a fixed repurchase price for the Option Stock if the
Employee voluntarily terminates his employment with the Company within a certain
period of time after exercising the Option or whose employment is involuntarily
terminated for gross misconduct, fraud, embezzlement, theft, breach of any
fiduciary duty owed to the Company or for nonperformance of duties.
(b) Termination of Status as an Employee.
(1) Termination of Employment. Unless otherwise
provided in an Option Agreement relating to an Option that is not an Incentive
Stock Option, if an Employee's employment by the Company is terminated, whether
voluntary or for cause, except if such termination occurs due to retirement,
death or disability, the Option, to the extent not exercised, shall cease on the
date on which Employee's employment by the Company is terminated. For purposes
of this Section 9, an employee who leaves the employ of the Company to become an
employee of a subsidiary or parent corporation of the Company or a corporation
which has assumed the option of the Company as a result of a corporate
reorganization, etc., shall not be considered to have terminated his employment.
For purposes of this Section 9, the employment relationship of an employee or
the Company or of a subsidiary corporation of the Company will be treated as
continuing intact while he is on military or sick leave or other bona fide leave
of absence (such as temporary employment by the government) if such leave does
not exceed ninety (90) days, or, if longer, so long as his right to reemployment
is guaranteed either by statute or by contract.
(2) Retirement. For purposes of the Plan, the
retirement of an individual either pursuant to a pension or retirement plan
adopted by the Company or at the normal retirement date prescribed from time to
time by the Company, shall be deemed to be a termination of such individual's
employment other than voluntary or for cause. If an Employee's termination is
due to retirement, then the Employee may, but only within ninety (90) days after
the date he ceases to be an Employee of the Company, exercise his Option to the
extent that he was entitled to exercise it at the date of such termination. To
the extent that he was not entitled to exercise the Option at the date of such
termination, or if he does not exercise such Option (which he was entitled to
exercise) within the time specified herein, the Option shall terminate.
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(3) Disability. Unless otherwise provided in an
Option Agreement relating to an Option that is not an Incentive Stock Option,
notwithstanding the provisions of Section 9(b) above, in the event an Employee
is unable to continue his employment with the Company as a result of his
permanent and total disability (as defined in Section 22(e)(3) of the Code), he
may, but only within one (1) year from the date of termination, exercise his
Option to the extent he was entitled to exercise it at the date of such
termination. To the extent that he was not entitled to exercise the Option at
the date of termination, or if he does not exercise such Option (which he was
entitled to exercise) within the time specified herein, the Option shall
terminate.
(4) Death of Optionee. Unless otherwise provided in
an Option Agreement relating to an Option that is not an Incentive Stock Option,
if Optionee dies during the term of the Option and is at the time of his death
an Employee of the Company who shall have been in continuous status as an
Employee since the date of grant of the Option, the Option may be exercised at
any time within one (1) year following the date of death (or such other period
of time as is determined by the Board or a Committee appointed by the Board), by
the Optionee's estate or by a person who acquired the right to exercise the
Option by bequest or inheritance, but only to the extent that Optionee was
entitled to exercise the Option on the date of death. To the extent that
decedent was not entitled to exercise the Option on the date of death, or if the
Optionee's estate, or person who acquired the right to exercise the Option by
bequest or inheritance, does not exercise such Option (which he was entitled to
exercise) within the time specified herein, the Option shall terminate.
10. Non-Transferability of Option. An Option may not be sold, pledged,
assigned, hypothecated, transferred, or disposed of in any manner other than by
will or by the laws of descent or distribution and may be exercised, during the
lifetime of the Optionee, only by the Optionee.
11. Adjustments Upon Changes in Capitalization or Merger. Subject to
any required action by the shareholders of the Company, the number of shares of
Common Stock covered by each outstanding Option, and the number of shares of
Common Stock which have been authorized for issuance under the Plan but as to
which no Options have yet been granted or which have been returned to the Plan
upon cancellations or expiration of an Option, as well as the price per share of
Common Stock covered by each such outstanding Option, shall be proportionately
adjusted for any increase or decrease in the number of issued shares of Common
Stock resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the common stock, or any other increase or
decrease in the number of issued shares of Common Stock effected without receipt
of consideration by the Company; provided, however, that conversion of any
convertible securities of the Company shall not be deemed to have been "effected
without receipt of consideration." Such adjustment shall be made by the Board or
a Committee appointed by the Board, whose determination in that respect shall be
final, binding and conclusive. Except as expressly provided herein, no issuance
by the Company of shares of stock of any class, or securities convertible into
shares of stock of any class shall affect, and no adjustment by reason thereof,
shall be made with respect to the number or price of shares of Common Stock
subject to an Option.
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In the event of the proposed dissolution or liquidation of the
Company, the Option will terminate immediately prior to the consummation of such
proposed action, unless otherwise provided by the Board or a Committee appointed
by the Board. The Board or a Committee appointed by the Board may, in the
exercise of its sole discretion in such instances, declare that any Option shall
terminate as of a date fixed by the Board or a Committee appointed by the Board
and give each Optionee the right to exercise his Option as to all or any part of
the Optioned Stock, including Shares as to which the Option would not otherwise
be exercisable. In the event of a proposed sale of all or substantially all of
the assets of the Company, or the merger of the Company with or into another
corporation, the Option shall be assumed or an equivalent option shall be
substituted by such successor corporation or a parent or subsidiary of such
successor corporation, unless the Board or a Committee appointed by the Board
determines, in the exercise of its sole discretion and in lieu of such
assumption or substitution, that the Optionee shall have the right to exercise
the Option as to all of the Optioned Stock, including Shares as to which the
Option would not otherwise be exercisable. If the Board or a Committee appointed
by the Board makes an Option fully exercisable in lieu of assumption or
substitution in the event of a merger or sale of assets, the Board or a
Committee appointed by the Board shall notify the Optionee that the Option shall
be fully exercisable for a period of thirty (30) days from the date of such
notice (but not later than the expiration of the term of the Option under the
Option Agreement), and the Option will terminate upon the expiration of such
period.
12. Time of Granting Options. The date of grant of an Option shall, for
all purposes, be the date on which the Board or a Committee appointed by the
Board makes the determination granting such Option. Notice of the determination
shall be given to each Employee to whom an Option is so granted within a
reasonable time after the date of such grant.
13. Amendment and Termination of the Plan.
(a) Amendment and Termination. The Board may amend or
terminate the Plan from time to time in such respect as the Board may deem
advisable; provided, however, that the following revisions or amendments shall
require approval of the holders of a majority of the outstanding Shares of the
Company entitled to vote:
(1) Any increase in the number of Shares subject to
the Plan, other than in connection with an adjustment under Section 11 of the
Plan;
(2) Any change in the designation of the class of
employees eligible to be granted Options; or
(3) If the Company has a class of equity security
registered under Section 12 of the Exchange Act at the time of such revision or
amendment, any material increase in the benefits accruing to participants under
the Plan.
(b) Effect of Amendment or Termination. Any such amendment or
termination of the Plan shall not affect Options already granted and such
Options shall remain in full force and effect as if this Plan had not been
amended or terminated, unless mutually agreed otherwise between the Optionee and
the Board, which agreement must be in writing and signed by the Optionee and the
Company.
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14. Conditions Upon Issuance of Shares. Shares shall not be issued
pursuant to the exercise of an Optionee unless the exercise of such Option and
the issuance and delivery of such Shares pursuant thereto shall comply with all
relevant provisions of law, including, without limitation, the Securities Act of
1933, as amended, the Exchange Act, the rules and regulations promulgated
thereunder, and the requirements of any stock exchange upon which the Shares may
then be listed, and shall be further subject to the approval of counsel for the
Company with respect to such compliance.
As a condition to the exercise of an Option, the Company may
require the person exercising such Option to represent and warrant at the time
of any such exercise that the Shares are being purchased only for investment and
without any present intention to sell or distribute such Shares if, in the
opinion of counsel for the Company, such a representation is required by any of
the aforementioned relevant provisions of law.
In the case of an Incentive Stock Option, any Optionee who
disposes of Shares of Common Stock acquired on the exercise of an Option by sale
or exchange (a) either within two (2) years after the date of the grant of the
Option under which the Common Stock was acquired or (b) within one (1) year
after the acquisition of such Shares of Common Stock shall notify the Company of
such disposition and of the amount realized upon such disposition.
Stock certificates evidencing unregistered shares acquired
upon the exercise of Options shall bear a restrictive securities legend
substantially as follows:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
UNDER THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION.
THE SECURITIES MAY NOT BE SOLD OR OFFERED FOR SALE IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE
SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION,
OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED."
15. Change in Control. Each Option that is outstanding on a Control
Change Date, as hereinafter defined, shall be exercisable in whole or in part on
that date and thereafter during the remainder of the Option period stated in the
Option Agreement. A "Change in Control" occurs if, after the date of the initial
Agreement, (1) any person, including a "group" as defined in Section 13(d)(3) of
the Exchange Act, becomes the owner or beneficial owner of the Company's
securities having 20% or more of the combined voting power of the then
outstanding Company's securities that may be cast for the election of the
Company's directors (other than as a result of an issuance of securities
initiated by the Company, or open market purchases approved by the Board of
Directors as long as a majority of the Board of Directors approving the
purchases is in the majority at the time the purchases are made); or (2) as the
direct or indirect result of, or in connection with, a cash tender or exchange
offer, a merger or other
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business combination, a sale of assets, a contested election, or any combination
of these transactions, the persons who were directors of the Company before such
transactions ceased to constitute a majority of the Company's Board of Directors
or any successor's board, within two years of the last of such transactions. For
purposes of this Section, the "Control Change Date" is the date on which an
event described in (1) or (2) occurs. If a Change of Control occurs on account
of a series of transactions, the Control Change Date is the date of the last of
such transactions.
16. Reservation of Shares; Issuance and Sale of Shares. The Company,
during the term of this Plan, will at all times reserve and keep available such
number of Shares as shall be sufficient to satisfy the requirements of the Plan.
Inability of the Company to obtain authority from any regulatory body having
jurisdiction, which authority is deemed by the Company's counsel to be necessary
to the lawful issuance and sale of any Shares hereunder, shall relieve the
Company of any liability in respect of the failure to issue or sell such Shares
as to which such requisite authority shall not have been obtained.
17. Option Agreement. Options shall be evidenced by written option
agreements in such form as the Board shall approve.
18. Withholding Taxes. Subject to Section 4(b)(x) of the Plan and prior
to the Tax Date, the Optionee may make an irrevocable election to have the
Company withhold from those Shares that would otherwise be received upon the
exercise of any nonstatutory stock option, a number of Shares having a Fair
Market Value equal to the minimum amount necessary to satisfy the Company's
federal, state, local and foreign tax withholding obligations and FICA and FUTA
obligations with respect to the exercise of such Option by the Optionee.
An Optionee who is also an officer of the Company must make
the above-described election:
(a) at least six months after the date of grant of the Option
(except in the event of death or disability); and
(b) either:
(1) six months prior to the Tax Date, or
(2) prior to the Tax Date and during the period
beginning on the third business day following the date of the Company releases
its quarterly or annual statement of sales and earnings and ending on the
twelfth business day following such date.
19. Miscellaneous Provisions.
(a) Not a Contract of Employment. Nothing contained in the
Plan or in any Option Agreement executed pursuant to the Plan shall be deemed to
confer upon any individual to whom an Option may be granted hereunder any right
to remain in the employ or service of the Company or a parent or subsidiary
corporation of the Company.
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(b) Plan Expenses. Any expenses of administering this Plan
shall be borne by the Company.
(c) Use of Exercise Proceeds. The payment received from
Optionees from the exercise of Options shall be used for the general corporate
purposes of the Company.
(d) Construction of Plan. The place of administration of the
Plan shall be in the State of Arizona, and the validity, construction,
interpretation, administration and effect of the Plan and of its rules and
regulations, and rights relating to the Plan, shall be determined in accordance
with the laws of the State of Arizona and where applicable, in accordance with
the Code.
(e) Taxes. The Company shall be entitled if necessary or
desirable to pay or withhold the amount of any tax attributable to the delivery
of Common Stock under the Plan from other amounts payable to the Employee after
giving the person entitled to receive such Common Stock notice as far in advance
as practical, and the Company may defer making delivery of such Common Stock if
any such tax may be pending unless and until indemnified to its satisfaction.
(f) Indemnification. In addition to such other rights of
indemnification as they may have as members of the Board or a Committee
appointed by the Board, the members of the Board or a Committee shall be
indemnified by the Company against all costs and expenses reasonably incurred by
them in connection with any action, suit or proceeding to which they or any of
them may be a party by reason of any action taken or failure to act under or in
connection with the Plan or any Option, and against all amounts paid by them in
settlement thereof (provided such settlement is approved by independent legal
counsel selected by the Company) or paid by them in satisfaction of a judgment
in any such action, suit or proceeding, except a judgment based upon a finding
of bad faith; provided that upon the institution of any such action, suit or
proceeding a Board or Committee member shall, in writing give the Company notice
thereof and an opportunity, at its own expense, to handle and defend the same
before such Board or Committee member undertakes to handle and defend it on her
or his own behalf.
(g) Gender. For purposes of this Plan, words used in the
masculine gender shall include the feminine and neuter, and the singular shall
include the plural and vice versa, as appropriate.
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