Exhibit 4.2
GENERAL DATACOMM INDUSTRIES, INC.
2005 Stock and Bonus Plan, as Amended
GENERAL DATACOMM INDUSTRIES, INC.
TABLE OF CONTENTS
SECTION 1. GENERAL PURPOSE OF THE PLAN; DEFINITIONS..........................
SECTION 2. ADMINISTRATION OF PLAN; COMMITTEE AUTHORITY TO SELECT PARTICIPANTS
AND DETERMINE AWARDS..............................................
SECTION 3. SHARES ISSUABLE UNDER THE PLAN; MERGERS; SUBSTITUTION.............
SECTION 4. ELIGIBILITY ......................................................
SECTION 5. STOCK OPTIONS.....................................................
SECTION 6. CONDITIONED STOCK AWARDS..........................................
SECTION 7. UNRESTRICTED STOCK AWARDS.........................................
SECTION 8. TERMINATION AND RESCISSION OF STOCK OPTIONS.......................
SECTION 9. TAX WITHHOLDING...................................................
SECTION 10. TRANSFER, LEAVE OF ABSENCE, ETC...................................
SECTION 11. AMENDMENTS AND TERMINATION .......................................
SECTION 12. STATUS OF PLAN....................................................
SECTION 13. CHANGE OF CONTROL PROVISIONS......................................
SECTION 14. GENERAL PROVISIONS................................................
SECTION 15. EFFECTIVE DATE OF PLAN ...........................................
SECTION 16. GOVERNING LAW.....................................................
GENERAL DATACOMM INDUSTRIES
2005 STOCK AND BONUS PLAN, AS AMENDED
SECTION 1. GENERAL PURPOSE OF THE PLAN; DEFINITIONS
The name of the plan is the General DataComm Industries, Inc. 2005 Stock
and Bonus Plan (the "PLAN"). The purpose of the Plan is to encourage and enable
the officers, directors and employees of General DataComm Industries, Inc. (the
"COMPANY") and its Subsidiaries upon whose judgment, initiative and efforts the
Company largely depends for the successful conduct of its business, to either
acquire a proprietary interest in the Company or otherwise being additionally
compensated for their efforts on behalf of the Company. It is anticipated that
providing such persons with a direct stake in the Company's welfare or otherwise
being additionally compensated, will assure a closer identification of their
interests with those of the Company and its stockholders thereby stimulating
their efforts on the Company's behalf and strengthening their desire to remain
with the Company.
The following terms shall be defined as set forth below:
"ACT" means the Securities Exchange Act of 1934, as amended.
"AWARD" or "AWARDS", except where referring to a particular category of
grant under the Plan, shall include Incentive Stock Options, Non-Qualified Stock
Options, Conditioned Stock Awards and Unrestricted Stock Awards.
"BOARD" means the Board of Directors of the Company.
"CAUSE" means personal dishonesty with respect to the Company, willful
misconduct, breach of fiduciary duty involving personal profit, intentional
failure to perform stated duties, willful violation of any law, rule or
regulation (other than traffic violations or similar offenses) or final cease
and desist order.
"CHANGE OF CONTROL" shall have the meaning set forth in Section 13.
"CODE" means the Internal Revenue Code of 1986, as amended, and any
successor Code, and related rules, regulations and interpretations.
"COMMON STOCK" means the Common Stock, $.01 par value, of the Company,
subject to adjustments pursuant to Section 3.
"COMMITTEE" shall have the meaning set forth in Section 2.
"CONDITIONED STOCK AWARD" means an Award granted pursuant to Section 6.
"DISABILITY" means disability as set forth in Section 22(e) (3) of the
Code.
"EFFECTIVE DATE" shall have the meaning set forth in Section 15.
"ELIGIBLE PERSON" shall have the meaning set forth in Section 4.
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"FAIR MARKET VALUE" on any given date means the closing price per share of
the Stock on the trading day immediately preceding such date as reported by the
NASDAQ Stock Market or another nationally recognized stock exchange, or, if the
Stock is not listed on such an exchange, the fair market value of the Stock as
determined by the Committee.
"INCENTIVE STOCK OPTION" means any Stock Option designated and qualified
as an "incentive stock option" as defined in Section 422 of the Code.
"NON-QUALIFIED STOCK OPTION" means any Stock Option that is not an
Incentive Stock Option.
"NORMAL RETIREMENT" means retirement from active employment with the
Company and its Subsidiaries in accordance with the retirement policies of the
Company and its Subsidiaries then in effect.
"OPTION" or "STOCK OPTION" means any option to purchase shares of Stock
granted pursuant to Section 5.
"PLAN OF REORGANIZATION" means the plan of reorganization of the Company
in its Chapter 11 proceedings in the United States Bankruptcy Court for the
District of Delaware.
"STOCK" means the Common Stock of the Company.
"SUBSIDIARY" means a subsidiary as defined in Section 424 of the Code.
"UNRESTRICTED STOCK AWARD" means an Award granted pursuant to Section 7.
SECTION 2. ADMINISTRATION OF PLAN; COMMITTEE AUTHORITY TO SELECT
PARTICIPANTS AND DETERMINE AWARDS.
(a) COMMITTEE. The Plan shall be administered by a committee of the Board
(the "Committee") consisting of all members of the Stock Option Committee of the
Company. Except as specifically reserved to the Board under the terms of the
Plan, the Committee shall have full and final authority to operate, manage and
administer the Plan on behalf of the Company. Action by the Committee shall
require the affirmative vote of a majority of all members thereof.
(b) POWERS OF COMMITTEE. The Committee shall have the power and authority
to grant Awards consistent with the terms of the Plan, including the power and
authority:
(i) to select the officers, directors and other employees of the
Company and its Subsidiaries to whom Awards may from time to time be granted;
(ii) to determine the time or times of grant, and the extent, if
any, of Incentive Stock Options, Non-Qualified Stock Options, Conditioned Stock
and Unrestricted Stock Awards, or any combination of the foregoing, granted to
any one or more participants;
(iii) to determine the number of shares to be covered by any Award;
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(iv) to determine and modify the terms and conditions, including
restrictions, not inconsistent with the terms of the Plan, of any Award, which
terms and conditions may differ among individual Awards and participants, and to
approve the form of written instruments evidencing the Awards; PROVIDED,
HOWEVER, that no such action shall adversely affect rights under any outstanding
Award without the participant's consent; and PROVIDED FURTHER that the Committee
shall have no authority to change the exercise or purchase price of any Award
after the initial grant of the Award;
(v) to accelerate the exercisability or vesting of all or any
portion of any Award;
(vi) subject to the provisions of Section 5(a) (ii), to extend the
period in which any outstanding Stock Option may be exercised, provided,
however, that such modification of an Incentive Stock Option may cause the
option to fail to satisfy the incentive stock option requirements of the Code
and may not be effected without the consent of the holder;
(vii) to determine whether, and under what circumstances Stock and
other amounts payable with respect to an Award shall be deferred either
automatically or at the election of the participant and whether and to what
extent the Company shall pay or credit amounts equal to interest (at rates
determined by the Committee) or dividends or deemed dividends on such deferrals;
and
(viii) to adopt, alter and repeal such rules, guidelines and practices for
administration of the Plan and for its own acts and proceedings as it shall deem
advisable; to interpret the terms and provisions of the Plan and any Award
(including related written instruments); to make all determinations it deems
advisable in the administration of the Plan; to decide all disputes arising in
connection with the Plan; and to otherwise supervise the administration of the
Plan.
All decisions and interpretations of the Committee shall be binding on all
persons, including the Company and Plan participants.
SECTION 3. SHARES ISSUABLE UNDER THE PLAN; MERGERS; SUBSTITUTION.
(a) SHARES ISSUABLE. The maximum number of shares of Stock with respect to
which Awards may be granted under the Plan shall be two million four hundred
thousand (2,400,000) shares of Common Stock. For purposes of this limitation,
the shares of Stock underlying any Awards which are forfeited, canceled,
reacquired by the Company or otherwise terminated (other than by exercise) shall
be added back to the shares of Stock with respect to which Awards may be granted
under the Plan so long as the participants to whom such Awards had been
previously granted retained no benefits of ownership of the underlying shares of
Stock to which the Award related. Likewise, if any Option is exercised by the
delivery of a number of shares of Stock, either actually or by attestation, to
the Company as full or partial payment in connection with the exercise of an
Option under this or any prior plan of the Company, only the number of shares of
Stock issued net of the shares of Stock delivered shall be deemed issued for
purposes of determining the maximum number of shares of Stock available for
issuance under the Plan. Subject to such overall limitation, any type or types
of Award may be granted with respect to shares, including Incentive Stock
Options. Shares issued under the Plan may be authorized but unissued shares or
shares reacquired by the Company.
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(b) STOCK DIVIDENDS, MERGERS, ETC. In the event that the Company effects a
stock dividend or distribution in excess of 5% in the aggregate in any one
fiscal year, or stock split, reverse stock split, combination, or similar change
in capitalization affecting the Stock, the Committee shall make appropriate
adjustments in (i) the number and kind of shares of stock or securities with
respect to which Awards may thereafter be granted (including without limitation
the limitations set forth in Section 3(a) above), (ii) the number and kind of
shares remaining subject to Outstanding Awards, and (iii) the option or purchase
price in respect of such shares. No Award adjustment shall be made for stock
dividends, stock distributions or splits which are not in excess of 5% in any
one fiscal year in the aggregate (even though the cumulative total of such stock
dividends, distributions or splits over the life of Award may be in excess of 5%
in the aggregate), cash dividends or the issuance to stockholders of the Company
of rights to subscribe for additional Stock or other securities. In the event of
any merger, consolidation, dissolution or liquidation of the Company, the
Committee in its sole discretion may, as to any outstanding Awards, make such
substitution or adjustment in the aggregate number of shares reserved for
issuance under the Plan and in the number and purchase price (if any) of shares
subject to such Awards as it may determine and as may be permitted by the terms
of such transaction, or accelerate, amend or terminate such Awards upon such
terms and conditions as it shall provide (which, in the case of the termination
of the vested portion of any Award, shall require payment or other consideration
which the Committee deems equitable in the circumstances), subject, however, to
the other provisions of the Plan and provided no such change in the Plan or
Award adversely affects the rights of the holder of such Award without the
holder's consent.
(c) SUBSTITUTE AWARDS. The Committee may grant Awards under the Plan in
substitution for stock and stock based awards held by employees of another
corporation who concurrently become employees of the Company or a Subsidiary as
the result of a merger or consolidation of the employing corporation with the
Company or a Subsidiary or the acquisition by the Company or a Subsidiary of
property or stock of the employing corporation (collectively, "MERGER"). The
Committee may direct that the substitute awards be granted on such terms and
conditions as the Committee considers appropriate in the circumstances.
SECTION 4. ELIGIBILITY.
Awards may be granted only to directors, officers or employees of the
Company or its Subsidiaries ("ELIGIBLE PERSONS").
SECTION 5. STOCK OPTIONS.
Any Stock Option granted under the Plan shall be in such form as the
Committee may from time to time approve.
Stock Options granted under the Plan may be either Incentive Stock Options
or Non-Qualified Stock Options. To the extent that any option does not qualify
as an Incentive Stock Option, it shall constitute a Non-Qualified Stock Option.
No Incentive Stock Option shall be granted under the Plan after the tenth
anniversary of the Effective Date.
(a) GRANT OF STOCK OPTIONS. The Committee in its discretion may determine
the effective date of Stock Options, PROVIDED, HOWEVER, that grants of Incentive
Stock Options shall be made only to persons who are, on the effective date of
the grant, employees of the Company or any Subsidiary. Stock Options granted
pursuant to this Section 5(a) shall be subject to the following terms and
conditions and the terms and conditions of Sections 11 and 12 and shall contain
such additional terms and conditions, not inconsistent with the terms of the
Plan, as the Committee shall deem desirable.
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(i) EXERCISE PRICE. The exercise price per share for the Stock
covered by a Stock Option granted pursuant to this Section 5(a) shall
be determined by the Committee at the time of grant but shall be not
less than one hundred percent (100%) of the Fair Market Value on the
date of grant. If an employee owns or is deemed to own (by reason of
the attribution rules applicable under Section 424(d) of the Code) more
than ten percent (10%) of the combined voting power of all classes of
stock of the Company or any Subsidiary or parent corporation and an
Incentive Stock Option is granted to such employee, the option price
shall be not less than one hundred ten percent (110%) of the Fair
Market Value on the grant date.
(ii) OPTION TERM. The term of each Stock Option shall be fixed by
the Committee but no Stock Option shall be exercisable more than ten
(10) years after the date the option is granted. If an employee owns or
is deemed to own (by reason of the attribution rules of Section 424(d)
of the Code) more than ten percent (10%) of the combined voting power
of all classes of stock of the Company or any Subsidiary or parent
corporation and an Incentive Stock Option is granted to such employee,
the term of such option shall be no more than five (5) years from the
date of grant.
(iii) EXERCISABILITY; RIGHTS OF A STOCKHOLDER. Stock Options shall
become vested and exercisable at such time or times, whether or not in
installments, as shall be determined by the Committee at or after the
grant date. The Committee may at any time accelerate the exercisability
of all or any portion of any Stock Option. An optionee shall have the
rights of a stockholder only as to shares acquired upon the exercise of
a Stock Option and not as to unexercised Stock Options.
(iv) METHOD OF EXERCISE. Stock Options may be exercised in whole or
in part, by delivering written notice of exercise to the Company,
specifying the number of shares to be purchased. Payment of the
purchase price may be made by one or more of the following methods:
(A) In cash, by certified or bank check or other instrument acceptable to
the Committee;
(B) If permitted by the Committee, in its discretion, in the form of
"mature" shares of Stock (as defined in the Financial Accounting Standards
Board's Emerging Issues Task Force Issue 84-18 ("Issue 84-18")) that are not
then subject to restrictions under any Company plan. Such surrendered shares
shall be valued at Fair Market Value on the exercise date; or
(C) If permitted by the Committee, in its discretion, by the optionee
delivering to the Company a properly executed exercise notice together with
irrevocable instructions to a broker to promptly deliver to the Company cash or
a check payable and acceptable to the Company to pay the purchase price;
PROVIDED that in the event the optionee chooses to pay the purchase price as so
provided, the optionee and the broker shall comply with such procedures and
enter into such agreements of indemnity and other agreements as the Committee
shall prescribe as a condition of such payment procedure. The Company need not
act upon such exercise notice until the Company receives full payment of the
exercise price; or
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(D) If permitted by the Committee, in its discretion, by reducing the
number of option shares otherwise issuable to the optionee upon exercise of the
option by a number of shares of Stock having a Fair Market Value equal to such
aggregate exercise price (it being understood that this alternative will be
available only if the optionee holds sufficient "mature" shares as defined in
Issue 84-18);
(E) By any other means (including, without limitation, by delivery of a
promissory note of the optionee payable on such terms as are specified by the
Committee) which the Committee determines are consistent with the purpose of the
Plan and with applicable laws and regulations.
The delivery of certificates representing shares of Stock to be purchased
pursuant to the exercise of a Stock Option will be contingent upon receipt from
the Optionee (or a purchaser acting in his stead in accordance with the
provisions of the Stock Option) by the Company of the full purchase price for
such shares and the fulfillment of any other requirements contained in the Stock
Option or applicable provisions of laws.
(v) NON-TRANSFERABILITY OF OPTIONS. Except as otherwise may be
provided in this Section 5(a)(v) or in an option agreement governing an
Option granted under the Plan, no Stock Option shall be transferable
other than by will or by the laws of descent and distribution, and all
Stock Options shall be exercisable, during the optionee's lifetime,
only by the optionee. The Committee may, however, in its sole
discretion, permit transferability or assignment of a Non-Qualified
Stock Option if such transfer or assignment is, in its sole
determination, for valid estate planning purposes and such transfer or
assignment is permitted under the Code and Rule 16b-3 under the
Exchange Act. For purposes of this Section 5(a)(v), a transfer for
valid estate planning purposes includes, but is not limited to: (a) a
transfer to a revocable inter-vivos trust as to which the participant
is both the settlor and trustee, (b) a transfer for no consideration
to: (i) any member of the participant's Immediate Family, (ii) any
trust solely for the benefit of members of the participant's Immediate
Family, (iii) any partnership whose only partners are members of the
participant's Immediate Family, or (iv) any limited liability
corporation or corporate entity whose only members or equity owners are
members of the Participant's Immediate Family. For purposes of this
Section 5(a)(v), "IMMEDIATE FAMILY" includes, but is not necessarily
limited to, a Participant's parents, spouse, children, grandchildren
and great-grandchildren. Nothing contained in this Section 5(a)(v)
shall be construed to require the Committee to give its approval to any
transfer or assignment of any Non-Qualified Stock Option or portion
thereof, and approval to transfer or assign any Non-Qualified Stock
Option or portion thereof does not mean that such approval will be
given with respect to any other Non-Qualified Stock Option or portion
thereof. The transferee or assignee of any Non-Qualified Stock Option
shall be subject to all of the terms and conditions applicable to such
Non-Qualified Stock Option immediately prior to the transfer or
assignment and shall be subject to any conditions prescribed by the
Committee with respect to such Non-Qualified Stock Option.
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(vi) ANNUAL LIMIT ON INCENTIVE STOCK OPTIONS. To the extent
required for "incentive stock option" treatment under Section 422 of
the Code, the aggregate Fair Market Value (determined as of the time of
grant) of the Stock with respect to which incentive stock options
granted under this Plan and any other plan of the Company or its
Subsidiaries become exercisable for the first time by an optionee
during any calendar year shall not exceed $100,000. Notwithstanding the
foregoing, to the extent that the aggregate Fair Market Value
(determined as of the time of grant) of the Stock with respect to which
Incentive Stock Options granted under this Plan and any other plan of
the Company or its Subsidiaries become exercisable for the first time
by an optionee during any calendar year exceeds $100,000 said excess
shall be treated as a Non-Qualified Stock Option.
(vii) FORM OF SETTLEMENT. Shares of Stock issued upon exercise of
a Stock Option shall be free of all restrictions under the Plan, except
as otherwise provided in this Plan.
(b) RELOAD OPTIONS. At the discretion of the Committee, Options granted
under Section 5(a) may include a so-called "reload" feature pursuant to which an
optionee exercising an option (the "ORIGINAL OPTION") by the delivery of a
number of shares of Stock in accordance with Section 5(a)(iv)(B) hereof would
automatically be granted an additional Option (with an exercise price equal to
the Fair Market Value of the Stock on the date the additional Option is granted
and with the same expiration date as the original Option being exercised, and
with such other terms as the Committee may provide) to purchase that number of
shares of Stock equal to the number delivered to exercise the Original Option;
provided, however, that the grant of such additional Option shall be subject to
the availability of shares of Stock under the Plan at the time of the exercise
of the Original Option.
SECTION 6. CONDITIONED STOCK AWARDS.
(a) NATURE OF CONDITIONED STOCK AWARD. The Committee in its discretion may
grant Conditioned Stock Awards to any Eligible Person. A Conditioned Stock Award
is an Award entitling the recipient to acquire, at no cost or for a purchase
price determined by the Committee, shares of Stock subject to such restrictions
and conditions as the Committee may determine at the time of grant ("CONDITIONED
STOCK"). Conditions may be based on continuing employment and/or achievement of
pre-established performance goals and objectives. In addition, a Conditioned
Stock Award may be granted to an employee by the Committee in lieu of a cash
bonus due to such employee pursuant to any other plan of the Company.
(b) ACCEPTANCE OF AWARD. A participant who is granted a Conditioned Stock
Award shall have no rights with respect to such Award unless the participant
shall have accepted the Award within sixty (60) days (or such shorter date as
the Committee may specify) following the award date by making payment to the
Company, if required, by certified or bank check or other instrument or form of
payment acceptable to the Committee in an amount equal to the specified purchase
price, if any, of the shares covered by the Award and by executing and
delivering to the Company a written instrument that sets forth the terms and
conditions of the Conditioned Stock in such form as the Committee shall
determine.
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(c) RIGHTS AS A SHAREHOLDER. Upon complying with Section 6(b) above, a
participant shall have all the rights of a stockholder with respect to the
Conditioned Stock, including voting and dividend rights, subject to
non-transferability restrictions and Company repurchase or forfeiture rights
described in this Section 6 and subject to such other conditions contained in
the written instrument evidencing the Conditioned Award. Unless the Committee
shall otherwise determine, certificates evidencing shares of Conditioned Stock
shall remain in the possession of the Company until such shares are vested as
provided in Section 6(e) below.
(d) RESTRICTIONS. Shares of Conditioned Stock may not be sold, assigned,
transferred, pledged or otherwise encumbered or disposed of except as
specifically provided herein. In the event of termination of employment by (or
termination of services with) the Company and its Subsidiaries for any reason
(including death, Disability, Normal Retirement and for Cause), the Company
shall have the right, at the discretion of the Committee, to repurchase shares
of Conditioned Stock with respect to which conditions have not lapsed at their
purchase price, or to require forfeiture of such shares to the Company if
acquired at no cost, from the participant or the participant's legal
representative. The Company must exercise such right of repurchase or forfeiture
within ninety (90) days following such termination of employment or service
(unless otherwise specified, in the written instrument evidencing the
Conditioned Award).
(e) VESTING OF CONDITIONED STOCK. The Committee at the time of grant shall
specify the date or dates and/or the attainment of pre-established performance
goals, objectives and other conditions on which the non-transferability of the
Conditioned Stock and the Company's right of repurchase or forfeiture shall
lapse. Subsequent to such date or dates and/or the attainment of such
preestablished performance goals, objectives and other conditions, the shares on
which all restrictions have lapsed shall no longer be Conditioned Stock and
shall be deemed "vested." The Committee at any time may accelerate such date or
dates and otherwise waive or, subject to Section 12, amend any conditions of the
Award.
(f) WAIVER, DEFERRAL AND REINVESTMENT OF DIVIDENDS. The written instrument
evidencing the Conditioned Stock Award may require or permit the immediate
payment, waiver, deferral or investment of dividends paid on the Restricted
Stock.
SECTION 7. UNRESTRICTED STOCK AWARDS.
(a) GRANT OR SALE OF UNRESTRICTED STOCK. The Committee in its discretion
may grant or sell to any Eligible Person shares of Stock free of any
restrictions under the Plan ("UNRESTRICTED STOCK") which in the case of a grant
shall be without the payment of a purchase price and, in the case of a sale, at
a purchase price determined by the Committee. Shares of Unrestricted Stock may
be granted or sold as described in the preceding sentence in respect of past
services or other valid consideration.
(b) RESTRICTIONS ON TRANSFERS. The right to receive unrestricted Stock may
not be sold, assigned, transferred, pledged or otherwise encumbered, other than
by will or the laws of descent and distribution.
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SECTION 8. VESTING TERMINATION AND RESCISSION OF STOCK OPTIONS.
Unless otherwise provided in the applicable agreement pursuant to which
the Award was granted,
(a) STOCK OPTIONS:
(i) TERMINATION BY DEATH. If any participant's employment or
directorship with the Company and its Subsidiaries terminates by reason of
death, any Stock Option owned by such participant whether or not exercisable or
vested at the date of death, shall be automatically fully exercisable and vested
as at the time of death and may thereafter be exercised to the fullest extent,
notwithstanding any vesting limitations in the Option at the date of death, by
the legal representative or legatee of the participant, until the expiration of
the stated term of the Stock Option.
(ii) TERMINATION BY REASON OF DISABILITY OR NORMAL RETIREMENT.
(A) Any Stock Option held by a participant whose employment or
directorship with the Company and its Subsidiaries has terminated by
reason of Disability whether or not exercisable or vested at the date
of termination, shall be automatically fully exercisable and vested as
at the date of termination and may thereafter be exercised, to the
fullest extent notwithstanding any vesting limitations in the Option at
the time of such termination by the participant or, in the event of the
participant's death subsequent to such termination, by the legal
representative or legatees of the participant, until the expiration of
the stated term of the Option.
(B) Any Stock Option held by a participant whose employment or
directorship with the Company and its Subsidiaries has terminated by
reason of Normal Retirement may thereafter be exercised, to the extent
it was exercisable at the time of such termination, for a period of
three (3) months from the date of such termination of employment or
directorship or until the expiration of the stated term of the Option,
if earlier.
(C) The Committee shall have sole authority and discretion to
determine whether a participant's employment or directorship has been
terminated by reason of Disability or Normal Retirement.
(D) Except as otherwise provided by the Committee at the time
of grant, the death of a participant during a period provided in this
Section 8(a)(ii) for the exercise of a Stock Option shall extend such
period to the expiration of the stated term of the Option.
(iii) TERMINATION VOLUNTARILY OR FOR CAUSE. If any participant's
employment or directorship with the Company and its Subsidiaries has
been terminated by the optionee voluntarily (other than by reason of
Normal Retirement) or by the Company or any of its Subsidiaries for
Cause, any Stock Option held by such participant shall immediately
terminate at the end of the last day of the optionee's employment or
directorship and shall thereafter be of no further force and effect.
The Committee shall have sole authority and discretion to determine
whether a participant's employment or directorship has been terminated
by the optionee voluntarily or by the Company or any of its
Subsidiaries for Cause.
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(iv) TERMINATION WITHOUT CAUSE. Unless otherwise determined by the
Committee, if a participant's employment or directorship with the
Company and its subsidiaries is terminated by the Company or any of its
Subsidiaries without cause, any Stock Option held by such participant
may
thereafter be exercised, to the extent it was exercisable on the date
of termination of employment or directorship, for three (3) months
from the last day of the optionee's employment or directorship (or
such longer period as the Committee shall specify at any time, it
being understood that any Incentive Options that are not exercised by
such terminated optionee within three (3) months after such
termination shall thereafter become Nonqualified Options) or until the
expiration of the stated term of the Option, if earlier.
(v) COVENANT NOT TO COMPETE AND CANCELLATION AND RESCISSION OF
OPTIONS. As a condition for acceptance of Stock Options, participants
shall agree that during the one (1) year period following their
termination of employment for any reason (excluding any such
termination by the Company without cause) the participant shall not,
directly or indirectly, work for or render any services to any person,
firm or business located within a 150 mile radius of the Company's
office in Naugatuck, Connecticut (or participant's principal location
with the Company as determined by the Committee) which offers products
and/or services competitive to the products and/or services of
participant. Upon termination, in order to ascertain if future
employment would be deemed to be in non-compliance with this covenant,
a participant should notify the Company as to participant's future
employer and make a request for approval to retain participant's rights
with respect to Stock Options on the basis of demonstrating that
participant is not entering into a competitive situation. If a
non-competitive situation is demonstrated to the Company's
satisfaction, then such approval shall not be unreasonably withheld. In
the event participant fails to comply with or otherwise breaches this
covenant in any way, during the one year period following any such
termination, the Company may notify participant in writing of the
rescission of any options exercised by participant during such one year
period following such termination or within nine (9) months prior to
any such termination of participant's employment. Within ten (10) days
after receiving such a notice from the Company, the participant shall
pay to the Company in cash, the aggregate amount of any gain resulting
from the exercise by participant of such rescinded options and the
subsequent sales of the shares received on the exercise or, if no such
sale of said shares has occurred, upon the Company's demand, return the
shares received on the exercise of such rescinded options against the
refund by the Company of the exercise price therefor.
(b) OTHER AWARDS. All Awards other than Stock Options granted under the
Plan shall contain such terms and conditions with respect to its termination as
the Committee, in its discretion, may from time to time determine.
SECTION 9. TAX WITHHOLDING.
(a) PAYMENT BY PARTICIPANT. Each participant shall, no later than the Date
as of which the value of an Award or of any Stock or other amounts received
thereunder first becomes includable in the gross income of the participant for
Federal income tax purposes, pay to the Company, or make arrangements
satisfactory to the Committee regarding payment of any Federal, state or local
taxes of any kind required by law to be withheld with respect to such income.
The Company and its Subsidiaries 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.
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(b) PAYMENT IN SHARES. A participant may elect, with the consent of the
Committee, in its discretion, to have such tax-withholding obligation satisfied,
in whole or in part, by authorizing the Company to withhold from shares of Stock
to be issued pursuant to an Award a number of shares with an aggregate Fair
Market Value (as of the date the withholding is effected) that would satisfy the
withholding amount due with respect to such Award. If shares are withheld from
an Award in order to satisfy said withholding tax or payroll tax requirements,
only the number of Shares with an aggregate Fair Market Value equal to the
minimum withholding amount due shall be so withheld.
SECTION 10. TRANSFER, LEAVE OF ABSENCE, ETC.
For purposes of the Plan, the following events shall not be deemed a
termination of employment:
(a) a transfer to the employment of the Company from a Subsidiary or from
the Company to a Subsidiary, or from one Subsidiary to another;
(b) an approved leave of absence for military service or sickness, or for
any other purpose approved by the Company, if the employee's right to
re-employment is guaranteed either by a statute or by contract or under the
policy pursuant to which the leave of absence was granted or if the Committee
otherwise so provides in writing.
SECTION 11. AMENDMENTS AND TERMINATION.
The Board may at any time amend or discontinue the Plan and the Committee
may at any time amend or cancel any outstanding Award (or provide substitute
Awards at the same or reduced exercise or purchase price or with no exercise or
purchase price, but such price, if any, must satisfy the requirements which
would apply to the substitute or amended Award if it were then initially granted
under this Plan) for the purpose of satisfying changes in law or for any other
lawful purpose, but no such action shall adversely affect rights under any
outstanding Award without the holder's consent. However, no such amendment,
unless approved by the stockholders of the Company, shall be effective if it
would cause the Plan to fail to satisfy the incentive stock option requirements
of the Code if the Plan is approved by stockholders within one (1) year from
adoption by the Board of Directors, or cause transactions under the Plan to fail
to satisfy the requirements of Rule 16b-3 or any successor rule under the Act as
in effect on the date of such amendment.
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SECTION 12. STATUS OF PLAN.
With respect to the portion of any Award which has not been exercised and
any payments in cash, Stock or other consideration not received by a
participant, a participant shall have no rights greater than those of a general
creditor of the Company unless the Committee shall otherwise expressly determine
in connection with any Award or Awards. In its sole discretion, the Committee
may authorize the creation of trusts or other arrangements to meet the Company's
obligations to deliver Stock or make payments with respect to Awards hereunder,
provided that the existence of such trusts or other arrangements is consistent
with the provision of the foregoing sentence.
SECTION 13. CHANGE OF CONTROL PROVISIONS.
(a) In the event of a Change of Control while unexercised Stock Options,
Conditional Stock Awards, or Stock Awards remain outstanding under the Plan,
then (i) the time for exercise of all unexercised and unexpired Awards shall be
automatically accelerated, effective as of the effective time of the Change of
Control (or such earlier date as may be specified by the Committee), and (ii)
after the effective time of such Change of Control, unexercised Stock Options,
Conditional Stock Awards, or Stock Awards, shall remain outstanding and shall be
exercisable for shares of Stock (or consideration based upon the Fair Market
Value of Stock) or cash, or if applicable, for shares of such securities, cash
or property (or consideration based upon shares of such securities, cash or
property) as the holders of shares of Stock received in connection with such
Change of Control.
(b) "CHANGE OF CONTROL" shall mean the occurrence of any one of the
following events:
(i) persons who, as of January 26, 2005, constituted the Company's
Board (the "INCUMBENT BOARD") cease for any reason, including without
limitation as a result of a tender offer, proxy contest, merger or
similar transaction, to constitute at least a majority of the Board,
provided that any person becoming a director of the Company subsequent
to January 26, 2005 whose election was approved by, or who was
nominated either with the approval of, at least a majority of the
directors then comprising the Incumbent Board or who was elected in
accordance with rights provided to Abelco Finance LLC and the Indenture
Trustee for the Debentures under the Company's Plan of Reorganization,
shall, for purposes of this Plan, be considered a member of the
Incumbent Board, including those persons initially elected as directors
as provided in the Plan of Reorganization; or
(ii) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation or other
entity, other than a merger or consolidation which would result in the
voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) more than
sixty-five percent (65%) of the combined voting power of the voting
securities of the Company of such surviving entity outstanding
immediately after such merger or consolidation; or
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(iii) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition
by the Company of all or substantially all of the Company's assets.
SECTION 14. GENERAL PROVISIONS.
(a) NO DISTRIBUTION; COMPLIANCE WITH LEGAL REQUIREMENTS. The Committee may
require each person acquiring shares pursuant to an Award to represent to and
agree with the Company in writing that such person is acquiring the shares
without a view to distribution thereof.
No shares of Stock shall be issued pursuant to an Award until all
applicable securities laws and other legal and stock exchange requirements have
been satisfied. The Committee may require the placing of such stop orders and
restrictive legends on certificates for Stock and Awards as it deems
appropriate.
(b) DELIVERY OF STOCK CERTIFICATES. Delivery of stock certificates to
participants under this Plan shall be deemed effected for all purposes when the
Company or a stock transfer agent of the Company shall have delivered such
certificates in the United States mail, addressed to the participant, at the
participant's last known address on file with the Company.
(c) OTHER COMPENSATION ARRANGEMENTS; NO EMPLOYMENT RIGHTS. Nothing
contained in this Plan shall prevent the Board from adopting other or additional
compensation arrangements, including trusts, subject to stockholder approval if
such approval is required; and such arrangements may be either generally
applicable or applicable only in specific cases. The adoption of the Plan or any
Award under the Plan does not confer upon any employee any right to continued
employment with the Company or any Subsidiary.
(d) DELEGATION BY COMMITTEE. The Committee may delegate to the Chief
Executive Officer of the Company the authority to make decisions relating to the
grant or exercise of Options or other Awards (other than to himself), including
without limitation the authority to permit the holder of an award to deliver
Stock in payment of the exercise price and the authority to permit a holder of
an Award to satisfy a tax withholding obligation by authorizing the Company to
withhold shares from the shares of Stock to be issued pursuant to an Award.
SECTION 15. EFFECTIVE DATE OF PLAN.
The Effective Date of the adoption of this Plan shall be January 26, 2005.
The Plan was amended on November 30, 2005 effective as of November 22, 2005
increasing authorized shares available for grant.
SECTION 16. GOVERNING LAW.
This Plan shall be governed by, and construed and enforced in accordance
with, the substantive laws of the State of Delaware without regard to its
principles of conflicts of laws.
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