EXHIBIT 99.1
Appendix a
AMISTAR CORPORATION
2005 STOCK OPTION PLAN
Table of Contents
1. Purpose...............................................................3
2. Definitions...........................................................3
3. Term of the Plan......................................................5
4. Stock Subject to the Plan.............................................5
5. Administration........................................................6
6. Authorization of Grants.............................................. 6
7. Specific Terms of Awards............................................. 7
8. Adjustment Provisions................................................ 9
9. Change of Control....................................................10
10. Settlement of Awards.................................................10
11. Reservation of Stock.................................................13
12. Limitation of Rights in Stock; No Special Service Rights.............13
13. Nonexclusivity of the Plan...........................................13
14. Termination and Amendment of the Plan................................13
15. Notices and Other Communications.....................................13
16. Governing Law........................................................14
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AMISTAR CORPORAITON
2005 STOCK OPTION PLAN
1. Purpose
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This Plan is intended to encourage ownership of Stock by employees,
consultants and directors of the Company and its Affiliates and to provide
additional incentive for them to promote the success of the Company's business
through the grant of Awards of shares of the Company's Stock. The Plan is
intended to be an incentive stock option plan within the meaning of Section 422
of the Code, but not all Awards are required to be Incentive Options.
2. Definitions
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As used in this Plan, the following terms shall have the following
meanings:
2.1. ACCELERATE, ACCELERATED, and ACCELERATION, means that as of the
time of reference an Option will become exercisable with respect to some or all
of the shares of Stock for which it was not then otherwise exercisable by its
terms.
2.2. ACQUISITION means a merger or consolidation of the Company into
another person (I.E., which merger or consolidation the Company does not
survive) or the sale, transfer, or other disposition of all or substantially all
of the Company's assets to one or more other persons in a single transaction or
series of related transactions.
2.3. AFFILIATE means any corporation, partnership, limited liability
company, business trust, or other entity controlling, controlled by or under
common control with the Company.
2.4. AWARD means any grant to the Plan of Options, including Incentive
Options and Nonstatutory Options.
2.5. AWARD AGREEMENT means an agreement between the Company and the
recipient of an Award, setting forth the terms and conditions of the Award.
2.6. BOARD means the Company's Board of Directors.
2.7. CHANGE OF CONTROL means the occurrence of any of the following
after the date of the approval of the Plan by the Board:
(a) an Acquisition, unless securities possessing more than 50%
of the total combined voting power of the survivor's or acquiror's outstanding
securities (or the securities of any parent thereof) are held by a person or
persons who held securities possessing more than 50% of the total combined
voting power of the Company's outstanding securities immediately prior to that
transaction, or
(b) any person or group of persons (within the meaning of
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended and in
effect from time to time) directly or indirectly acquires, including but not
limited to by means of a merger or consolidation, beneficial ownership
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(determined pursuant to Securities and Exchange Commission Rule 13d-3
promulgated under the said Exchange Act) of securities possessing more than 20%
of the total combined voting power of the Company's outstanding securities
pursuant to a tender or exchange offer made directly to the Company's
stockholders that the Board does not recommend such stockholders accept, other
than (i) the Company or an Affiliate, (ii) an employee benefit plan of the
Company or any of its Affiliates, (iii) a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or any of its
Affiliates, or (iv) an underwriter temporarily holding securities pursuant to an
offering of such securities, or
(c) over a period of 36 consecutive months or less, there is a
change in the composition of the Board such that a majority of the Board members
(rounded up to the next whole number, if a fraction) ceases, by reason of one or
more proxy contests for the election of Board members, to be composed of
individuals who either (i) have been Board members continuously since the
beginning of that period, or (ii) have been elected or nominated for election as
Board members during such period by at least a majority of the Board members
described in the preceding clause (i) who were still in office at the time that
election or nomination was approved by the Board; or
(d) a majority of the Board votes in favor of a decision that
a Change in Control has occurred.
2.8. CODE means the Internal Revenue Code of 1986, as amended from time
to time, or any successor statute thereto, and any regulations issued from time
to time thereunder.
2.9. COMMITTEE means the Compensation Committee of the Board, which in
general is responsible for the administration of the Plan, as provided in
Section 5 of the Plan. For any period during which no such committee is in
existence "Committee" shall mean the Board and all authority and responsibility
assigned to the Committee under the Plan shall be exercised, if at all, by the
Board.
2.10. COMPANY means Amistar Corporation, a corporation organized under
the laws of the California.
2.11. GRANT DATE means the date as of which an Option is granted, as
determined under Section 7.1(a).
2.12. INCENTIVE OPTION means an Option which by its terms is to be
treated as an "incentive stock option" within the meaning of Section 422 of the
Code.
2.13. MARKET VALUE means the value of a share of Stock on a particular
date determined by such methods or procedures as may be established by the
Committee. Unless otherwise determined by the Committee, the Market Value of
Stock as of any date is the closing price for the Stock as reported on Nasdaq
(or on any other national securities exchange on which the Stock is then
listed), or if not then so reported, as quoted by the National Quotation Bureau
or in the "Pink Sheets." for that date or, if no closing price is reported for
that date, the closing price on the next preceding date for which a closing
price was reported.
2.14. NONSTATUTORY OPTION means any Option that is not an Incentive
Option.
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2.15. OPTION means an option to purchase shares of Stock.
2.16. OPTIONEE means a Participant to whom an Option shall have been
granted under the Plan.
2.17. PARTICIPANT means any holder of an outstanding Award under the
Plan.
2.18. PLAN means this 2005 Stock Option Plan of the Company, as amended
from time to time, and including any attachments or addenda hereto.
2.19. STOCK means common stock of the Company, and such other
securities as may be substituted for Stock pursuant to Section 8.
2.20. TEN PERCENT OWNER means a person who owns, or is deemed within
the meaning of Section 422(b)(6) of the Code to own, stock possessing more than
10% of the total combined voting power of all classes of stock of the Company
(or any parent or subsidiary corporations of the Company, as defined in Sections
424(e) and (f), respectively, of the Code). Whether a person is a Ten Percent
Owner shall be determined with respect to an Option based on the facts existing
immediately prior to the Grant Date of the Option.
3. Term of the Plan
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Unless the Plan shall have been earlier terminated by the Board, Awards
may be granted under this Plan at any time in the period commencing on the date
of approval of the Plan by the Board and ending immediately prior to the tenth
anniversary of the earlier of the adoption of the Plan by the Board or approval
of the Plan by the Company's stockholders. Awards granted pursuant to the Plan
within that period shall not expire solely by reason of the termination of the
Plan. Awards of Incentive Options granted prior to stockholder approval of the
Plan are expressly conditioned upon such approval, but in the event of the
failure of the stockholders to approve the Plan shall thereafter and for all
purposes be deemed to constitute Nonstatutory Options.
4. Stock Subject to the Plan
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At no time shall the number of shares of Stock issued pursuant to or
subject to outstanding Awards granted under the Plan (including pursuant to
Incentive Options), nor the number of shares of Stock issued pursuant to
Incentive Options, exceed 300,000 shares of Stock; SUBJECT, HOWEVER, to the
provisions of Section 8 of the Plan. For purposes of applying the foregoing
limitation, (a) if any Option expires, terminates, or is cancelled for any
reason without having been exercised in full, the shares not purchased by the
Optionee or which are forfeited by the recipient shall again be available for
Awards to be granted under the Plan and (b) if any Option is exercised by
delivering previously owned shares in payment of the exercise price therefor,
only the net number of shares, that is, the number of shares issued minus the
number received by the Company in payment of the exercise price, shall be
considered to have been issued pursuant to an Award granted under the Plan. In
addition, settlement of any Award shall not count against the foregoing
limitations except to the extent settled in the form of Stock.
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5. Administration
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The Plan shall be administered by the Committee; PROVIDED, HOWEVER,
that at any time and on any one or more occasions the Board may itself exercise
any of the powers and responsibilities assigned the Committee under the Plan and
when so acting shall have the benefit of all of the provisions of the Plan
pertaining to the Committee's exercise of its authorities hereunder. Subject to
the provisions of the Plan, the Committee shall have complete authority, in its
discretion, to make or to select the manner of making all determinations with
respect to each Award to be granted by the Company under the Plan including the
employee, consultant or director to receive the Award and the form of Award. In
making such determinations, the Committee may take into account the nature of
the services rendered by the respective employees, consultants, and directors,
their present and potential contributions to the success of the Company and its
Affiliates, and such other factors as the Committee in its discretion shall deem
relevant. Subject to the provisions of the Plan, the Committee shall also have
complete authority to interpret the Plan, to prescribe, amend and rescind rules
and regulations relating to it, to determine the terms and provisions of the
respective Award Agreements (which need not be identical), and to make all other
determinations necessary or advisable for the administration of the Plan. The
Committee's determinations made in good faith on matters referred to in the Plan
shall be final, binding and conclusive on all persons having or claiming any
interest under the Plan or an Award made pursuant hereto.
6. Authorization of Grants
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6.1. ELIGIBILITY. The Committee may grant from time to time and at any
time prior to the termination of the Plan one or more Awards, either alone or in
combination with any other Awards, to any employee of or consultant to one or
more of the Company and its subsidiary of the Company or to non-employee member
of the Board or of any board of directors (or similar governing authority) of
any subsidiary of the Company. However, only employees of the Company, and of
any parent or subsidiary corporations of the Company, as defined in Sections
424(e) and (f), respectively, of the Code, shall be eligible for the grant of an
Incentive Option. Further, in no event shall the number of shares of Stock
covered by Options granted to any one person in any one calendar year exceed
100% of the aggregate number of shares of Stock subject to the Plan.
6.2. GENERAL TERMS OF AWARDS. Each grant of an Award shall be subject
to all applicable terms and conditions of the Plan (including but not limited to
any specific terms and conditions applicable to that type of Award set out in
the following Section), and such other terms and conditions, not inconsistent
with the terms of the Plan, as the Committee may prescribe. No prospective
Participant shall have any rights with respect to an Award, unless and until
such Participant has executed an agreement evidencing the Award, delivered a
fully executed copy thereof to the Company, and otherwise complied with the
applicable terms and conditions of such Award.
6.3. EFFECT OF TERMINATION OF EMPLOYMENT, ETC. Unless the Committee
shall provide otherwise with respect to any Award, if the Participant's
employment or other association with the Company and its Affiliates ends for any
reason, including because of the Participant's employer ceasing to be an
Affiliate, any outstanding Option of the Participant shall cease to be
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exercisable in any respect not later than 90 days following that event and, for
the period it remains exercisable following that event, shall be exercisable
only to the extent exercisable at the date of that event. Military or sick leave
or other bona fide leave shall not be deemed a termination of employment or
other association, PROVIDED that it does not exceed the longer of ninety (90)
days or the period during which the absent Participant's reemployment rights, if
any, are guaranteed by statute or by contract.
6.4. NON-TRANSFERABILITY OF AWARDS. Except as otherwise provided in
this Section 6.4, Awards shall not be transferable, and no Award or interest
therein may be sold, transferred, pledged, assigned, or otherwise alienated or
hypothecated, other than by will or by the laws of descent and distribution. All
of a Participant's rights in any Award may be exercised during the life of the
Participant only by the Participant or the Participant's legal representative.
However, the Committee may, at or after the grant of an Award of a Nonstatutory
Option provide that such Award may be transferred by the recipient to a family
member; PROVIDED, HOWEVER, that any such transfer is without payment of any
consideration whatsoever and that no transfer shall be valid unless first
approved by the Committee, acting in its sole discretion. For this purpose,
"family member" means any child, stepchild, grandchild, parent, stepparent,
spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law,
son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including
adoptive relationships, any person sharing the employee's household (other than
a tenant or employee), a trust in which the foregoing persons have more than
fifty (50) percent of the beneficial interests, a foundation in which the
foregoing persons (or the Participant) control the management of assets, and any
other entity in which these persons (or the Participant) own more than fifty
(50) percent of the voting interests.
7. Specific Terms of Awards
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7.1. OPTIONS.
(a) DATE OF GRANT. The granting of an Option shall take place
at the time specified in the Award Agreement. Only if expressly so provided in
the applicable Award Agreement shall the Grant Date be the date on which the
Award Agreement shall have been duly executed and delivered by the Company and
the Optionee.
(b) EXERCISE PRICE. The price at which shares of Stock may be
acquired under each Incentive Option shall be not less than 100% of the Market
Value of Stock on the Grant Date, or not less than 110% of the Market Value of
Stock on the Grant Date if the Optionee is a Ten Percent Owner. The price at
which shares may be acquired under each Nonstatutory Option shall not be so
limited solely by reason of this Section.
(c) OPTION PERIOD. No Incentive Option may be exercised on or
after the tenth anniversary of the Grant Date, or on or after the fifth
anniversary of the Grant Date if the Optionee is a Ten Percent Owner. The Option
period under each Nonstatutory Option shall not be so limited solely by reason
of this Section.
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(d) EXERCISABILITY. An Option may be immediately exercisable
or become exercisable in such installments, cumulative or non-cumulative, as the
Committee may determine. In the case of an Option not otherwise immediately
exercisable in full, the Committee may Accelerate such Option in whole or in
part at any time; PROVIDED, HOWEVER, that in the case of an Incentive Option,
any such Acceleration of the Option would not cause the Option to fail to comply
with the provisions of Section 422 of the Code or the Optionee consents to the
Acceleration.
(e) METHOD OF EXERCISE. An Option may be exercised by the
Optionee giving written notice, in the manner provided in Section 16, specifying
the number of shares with respect to which the Option is then being exercised.
The notice shall be accompanied by payment in the form of cash, check payable to
the order of the Company or wire transfer in an amount equal to the exercise
price of the shares to be purchased, or, subject in each instance to the
Committee's approval, acting in its sole discretion, and to such conditions, if
any, as the Committee may deem necessary to avoid adverse accounting effects to
the Company, by delivery to the Company of shares of Stock having a Market Value
equal to the exercise price of the shares to be purchased.
If the Stock is traded on an established market, payment of any exercise price
may also be made through and under the terms and conditions of any formal
cashless exercise program authorized by the Company entailing the sale of the
Stock subject to an Option in a brokered transaction (other than to the
Company). Receipt by the Company of such notice and payment in any authorized or
combination of authorized means shall constitute the exercise of the Option.
Within thirty (30) days thereafter but subject to the remaining provisions of
the Plan, the Company shall deliver or cause to be delivered to the Optionee or
his agent a certificate or certificates for the number of shares then being
purchased. Such shares shall be fully paid and nonassessable.
(f) LIMIT ON INCENTIVE OPTION CHARACTERIZATION. An Incentive
Option shall be considered to be an Incentive Option only to the extent that the
number of shares of Stock for which the Option first becomes exercisable in a
calendar year do not have an aggregate Market Value (as of the date of the grant
of the Option) in excess of the "current limit". The current limit for any
Optionee for any calendar year shall be $100,000 MINUS the aggregate Market
Value at the date of grant of the number of shares of Stock available for
purchase for the first time in the same year under each other Incentive Option
previously granted to the Optionee under the Plan, and under each other
incentive stock option previously granted to the Optionee under any other
incentive stock option plan of the Company and its Affiliates, after December
31, 1986. Any shares of Stock which would cause the foregoing limit to be
violated shall be deemed to have been granted under a separate Nonstatutory
Option, otherwise identical in its terms to those of the Incentive Option.
(g) NOTIFICATION OF DISPOSITION. Each person exercising any
Incentive Option granted under the Plan shall be deemed to have covenanted with
the Company to report to the Company any disposition of such shares prior to the
expiration of the holding periods specified by Section 422(a)(1) of the Code
and, if and to the extent that the realization of income in such a disposition
imposes upon the Company federal, state, local or other withholding tax
requirements, or any such withholding is required to secure for the Company an
otherwise available tax deduction, to remit to the Company an amount in cash
sufficient to satisfy those requirements.
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7.2. AWARDS TO PARTICIPANTS OUTSIDE THE UNITED STATES. The Committee
may modify the terms of any Award under the Plan granted to a Participant who
is, at the time of grant or during the term of the Award, resident or primarily
employed outside of the United States in any manner deemed by the Committee to
be necessary or appropriate in order that the Award shall conform to laws,
regulations, and customs of the country in which the Participant is then
resident or primarily employed, or so that the value and other benefits of the
Award to the Participant, as affected by foreign tax laws and other restrictions
applicable as a result of the Participant's residence or employment abroad,
shall be comparable to the value of such an Award to a Participant who is
resident or primarily employed in the United States. The Committee may establish
supplements to, or amendments, restatements, or alternative versions of the Plan
for the purpose of granting and administrating any such modified Award. No such
modification, supplement, amendment, restatement or alternative version may
increase the share limit of Section 4.
8. Adjustment Provisions
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8.1. ADJUSTMENT FOR CORPORATE ACTIONS. All of the share numbers set
forth in the Plan reflect the capital structure of the Company as of March 22,
2005. Subject to Section 8.2, if subsequent to that date the outstanding shares
of Stock (or any other securities covered by the Plan by reason of the prior
application of this Section) are increased, decreased, or exchanged for a
different number or kind of shares or other securities, or if additional shares
or new or different shares or other securities are distributed with respect to
shares of Stock, through merger, consolidation, sale of all or substantially all
the property of the Company, reorganization, recapitalization, reclassification,
stock dividend, stock split, reverse stock split, or other similar distribution
with respect to such shares of Stock, an appropriate and proportionate
adjustment will be made in (i) the maximum numbers and kinds of shares provided
in Section 4, (ii) the numbers and kinds of shares or other securities subject
to the then outstanding Awards, and (iii) the exercise price for each share or
other unit of any other securities subject to then outstanding Options (without
change in the aggregate purchase price as to which such Options remain
exercisable).
8.2. TREATMENT IN CERTAIN ACQUISITIONS. Subject to any provisions of
then outstanding Awards granting greater rights to the holders thereof, in the
event of an Acquisition in which outstanding Awards are not Accelerated in full
pursuant to Section 9, any then outstanding Awards shall nevertheless Accelerate
to the extent not assumed or replaced by comparable Awards referencing shares of
the capital stock of the successor or acquiring entity or parent thereof, and
thereafter (or after a reasonable period following the Acquisition, as
determined by the Committee) terminate. As to any one or more outstanding Awards
which are not otherwise Accelerated in full by reason of such Acquisition, the
Committee may also, either in advance of an Acquisition or at the time thereof
and upon such terms as it may deem appropriate, provide for the Acceleration of
such outstanding Awards in the event that the employment of the Participants
should subsequently terminate following the Acquisition. Each outstanding Award
that is assumed in connection with an Acquisition, or is otherwise to continue
in effect subsequent to the Acquisition, will be appropriately adjusted,
immediately after the Acquisition, as to the number and class of securities and
other relevant terms in accordance with Section 8.1.
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8.3. DISSOLUTION OR LIQUIDATION. Upon dissolution or liquidation of
the Company, other than as part of an Acquisition or similar transaction, each
outstanding Option shall terminate, but the Optionee shall have the right,
immediately prior to the dissolution or liquidation, to exercise the Option to
the extent exercisable on the date of dissolution or liquidation.
8.4. ADJUSTMENT OF AWARDS UPON THE OCCURRENCE OF CERTAIN UNUSUAL OR
NONRECURRING EVENTS. In the event of any corporate action not specifically
covered by the preceding Sections, including but not limited to an extraordinary
cash distribution on Stock, a corporate separation or other reorganization or
liquidation, the Committee may make such adjustment of outstanding Awards and
their terms, if any, as it, in its sole discretion, may deem equitable and
appropriate in the circumstances. The Committee may make adjustments in the
terms and conditions of, and the criteria included in, Awards in recognition of
unusual or nonrecurring events (including, without limitation, the events
described in this Section) affecting the Company or the financial statements of
the Company or of changes in applicable laws, regulations, or accounting
principles, whenever the Committee determines that such adjustments are
appropriate in order to prevent dilution or enlargement of the benefits or
potential benefits intended to be made available under the Plan.
8.5. RELATED MATTERS. Any adjustment in Awards made pursuant to this
Section 8 shall be determined and made, if at all, by the Committee and shall
include any correlative modification of terms, including of Option exercise
prices, rates of vesting or exercisability so as to ensure the rights of the
Participants in their respective Awards are not substantially diminished nor
enlarged as a result of the adjustment and corporate action other than as
expressly contemplated in this Section 8. No fraction of a share shall be
purchasable or deliverable upon exercise, but in the event any adjustment
hereunder of the number of shares covered by an Award shall cause such number to
include a fraction of a share, such number of shares shall be adjusted to the
nearest smaller whole number of shares.
9. Change of Control
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Except as otherwise provided below, upon the occurrence of a Change in
Control, any and all Options not already exercisable in full shall Accelerate
with respect to 100% of the shares for which such Options are not then
exercisable. The foregoing shall not apply in the case of any Award pursuant to
an Award Agreement requiring other or additional terms upon a Change in Control
(or similar event), or if specifically prohibited under applicable laws, or by
the rules and regulations of any governing governmental agencies or national
securities exchanges.
10. Settlement of Awards
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10.1. VIOLATION OF LAW. Notwithstanding any other provision of the Plan
or the relevant Award Agreement, if, at any time, in the reasonable opinion of
the Company, the issuance of shares of Stock covered by an Award may constitute
a violation of law, then the Company may delay such issuance and the delivery of
a certificate for such shares until (i) approval shall have been obtained from
such governmental agencies, other than the Securities and Exchange Commission,
as may be required under any applicable law, rule, or regulation and (ii) in the
case where such issuance would constitute a violation of a law administered by
or a regulation of the Securities and Exchange Commission, one of the following
conditions shall have been satisfied:
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(a) the shares are at the time of the issue of such shares
effectively registered under the Securities Act of 1933; or
(b) the Company shall have determined, on such basis as it
deems appropriate (including an opinion of counsel in form and substance
satisfactory to the Company) that the sale, transfer, assignment, pledge,
encumbrance or other disposition of such shares or such beneficial interest, as
the case may be, does not require registration under the Securities Act of 1933,
as amended or any applicable State securities laws.
The Company shall make all reasonable efforts to bring about the occurrence of
said events.
10.2. CORPORATE RESTRICTIONS ON RIGHTS IN STOCK. Any Stock to be issued
pursuant to Awards granted under the Plan shall be subject to all restrictions
upon the transfer thereof which may be now or hereafter imposed by the charter,
certificate or articles, and by-laws, of the Company.
10.3. INVESTMENT REPRESENTATIONS. The Company shall be under no
obligation to issue any shares covered by any Award unless the shares to be
issued pursuant to Awards granted under the Plan have been effectively
registered under the Securities Act of 1933, as amended, or the Participant
shall have made such written representations to the Company (upon which the
Company believes it may reasonably rely) as the Company may deem necessary or
appropriate for purposes of confirming that the issuance of such shares will be
exempt from the registration requirements of that Act and any applicable state
securities laws and otherwise in compliance with all applicable laws, rules and
regulations, including but not limited to that the Participant is acquiring the
shares for his or her own account for the purpose of investment and not with a
view to, or for sale in connection with, the distribution of any such shares.
10.4. REGISTRATION. If the Company shall deem it necessary or desirable
to register under the Securities Act of 1933, as amended or other applicable
statutes any shares of Stock issued or to be issued pursuant to Awards granted
under the Plan, or to qualify any such shares of Stock for exemption from the
Securities Act of 1933, as amended or other applicable statutes, then the
Company shall take such action at its own expense. The Company may require from
each recipient of an Award, or each holder of shares of Stock acquired pursuant
to the Plan, such information in writing for use in any registration statement,
prospectus, preliminary prospectus or offering circular as is reasonably
necessary for that purpose and may require reasonable indemnity to the Company
and its officers and directors from that holder against all losses, claims,
damage and liabilities arising from use of the information so furnished and
caused by any untrue statement of any material fact therein or caused by the
omission to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
under which they were made. In addition, the Company may require of any such
person that he or she agree that, without the prior written consent of the
Company or the managing underwriter in any public offering of shares of Stock,
he or she will not sell, make any short sale of, loan, grant any option for the
purchase of, pledge or otherwise encumber, or otherwise dispose of, any shares
of Stock during the 180 day period commencing on the effective date of the
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registration statement relating to the underwritten public offering of
securities. Without limiting the generality of the foregoing provisions of this
Section 10.5, if in connection with any underwritten public offering of
securities of the Company the managing underwriter of such offering requires
that the Company's directors and officers enter into a lock-up agreement
containing provisions that are more restrictive than the provisions set forth in
the preceding sentence, then (a) each holder of shares of Stock acquired
pursuant to the Plan (regardless of whether such person has complied or complies
with the provisions of clause (b) below) shall be bound by, and shall be deemed
to have agreed to, the same lock-up terms as those to which the Company's
directors and officers are required to adhere; and (b) at the request of the
Company or such managing underwriter, each such person shall execute and deliver
a lock-up agreement in form and substance equivalent to that which is required
to be executed by the Company's directors and officers.
10.5. PLACEMENT OF LEGENDS; STOP ORDERS; ETC. Each share of Stock to be
issued pursuant to Awards granted under the Plan may bear a reference to the
investment representation made in accordance with Section 10.4 in addition to
any other applicable restriction under the Plan, the terms of the Award and if
applicable under the Stockholders' Agreement and to the fact that no
registration statement has been filed with the Securities and Exchange
Commission in respect to such shares of Stock. All certificates for shares of
Stock or other securities delivered under the Plan shall be subject to such
stock transfer orders and other restrictions as the Committee may deem advisable
under the rules, regulations, and other requirements of any stock exchange upon
which the Stock is then listed, and any applicable federal or state securities
law, and the Committee may cause a legend or legends to be put on any such
certificates to make appropriate reference to such restrictions.
10.6. TAX WITHHOLDING. Whenever shares of Stock are issued or to be
issued pursuant to Awards granted under the Plan, the Company shall have the
right to require the recipient to remit to the Company an amount sufficient to
satisfy federal, state, local or other withholding tax requirements if, when,
and to the extent required by law (whether so required to secure for the Company
an otherwise available tax deduction or otherwise) prior to the delivery of any
certificate or certificates for such shares. The obligations of the Company
under the Plan shall be conditional on satisfaction of all such withholding
obligations and 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
recipient of an Award. However, in such cases Participants may elect, subject to
the approval of the Committee, acting in its sole discretion, to satisfy an
applicable withholding requirement, in whole or in part, by having the Company
withhold shares to satisfy their tax obligations. Participants may only elect to
have Shares withheld having a Market Value on the date the tax is to be
determined equal to the minimum statutory total tax which could be imposed on
the transaction. All elections shall be irrevocable, made in writing, signed by
the Participant, and shall be subject to any restrictions or limitations that
the Committee deems appropriate.
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11. Reservation of Stock
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The Company shall at all times during the term of the Plan and any
outstanding Awards granted hereunder reserve or otherwise keep available such
number of shares of Stock as will be sufficient to satisfy the requirements of
the Plan (if then in effect) and the Awards and shall pay all fees and expenses
necessarily incurred by the Company in connection therewith.
12. Limitation of Rights in Stock; No Special Service Rights
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A Participant shall not be deemed for any purpose to be a stockholder
of the Company with respect to any of the shares of Stock subject to an Award,
unless and until a certificate shall have been issued therefor and delivered to
the Participant or his agent. Nothing contained in the Plan or in any Award
Agreement shall confer upon any recipient of an Award any right with respect to
the continuation of his or her employment or other association with the Company
(or any Affiliate), or interfere in any way with the right of the Company (or
any Affiliate), subject to the terms of any separate employment or consulting
agreement or provision of law or corporate articles or by-laws to the contrary,
at any time to terminate such employment or consulting agreement or to increase
or decrease, or otherwise adjust, the other terms and conditions of the
recipient's employment or other association with the Company and its Affiliates.
13. Nonexclusivity of the Plan
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Neither the adoption of the Plan by the Board nor the submission of the
Plan to the stockholders of the Company shall be construed as creating any
limitations on the power of the Board to adopt such other incentive arrangements
as it may deem desirable, including without limitation, the granting of stock
options and restricted stock other than under the Plan, and such arrangements
may be either applicable generally or only in specific cases.
14. Termination and Amendment of the Plan
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The Board may at any time terminate the Plan or make such modifications
of the Plan as it shall deem advisable. Unless the Board otherwise expressly
provides, no amendment of the Plan shall affect the terms of any Award
outstanding on the date of such amendment. In any case, no termination or
amendment of the Plan may, without the consent of any recipient of an Award
granted hereunder, adversely affect the rights of the recipient under such
Award.
The Committee may amend the terms of any Award theretofore granted,
prospectively or retroactively, provided that the Award as amended is consistent
with the terms of the Plan, but no such amendment shall impair the rights of the
recipient of such Award without his or her consent.
15. Notices and Other Communications
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Any notice, demand, request or other communication hereunder to any
party shall be deemed to be sufficient if contained in a written instrument
delivered in person or duly sent by first class registered, certified or
overnight mail, postage prepaid, or telecopied with a confirmation copy by
regular, certified or overnight mail, addressed or telecopied, as the case may
be, (i) if to the recipient of an Award, at his or her residence address last
filed with the Company and (ii) if to the Company, at its principal place of
business, addressed to the attention of its Treasurer, or to such other address
or telecopier number, as the case may be, as the addressee may have designated
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by notice to the addressor. All such notices, requests, demands and other
communications shall be deemed to have been received: (i) in the case of
personal delivery, on the date of such delivery; (ii) in the case of mailing,
when received by the addressee; and (iii) in the case of facsimile transmission,
when confirmed by facsimile machine report.
16. Governing Law
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The Plan and all Award Agreements and actions taken thereunder shall be
governed, interpreted and enforced in accordance with the laws of the
California, without regard to the conflict of laws principles thereof.
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