o |
Fee
computed on table below per Exchange Act Rules 14a-6(i)(1) and
0-11.
|
(1) |
Title
of each class of securities to which transaction applies:
|
(2) |
Aggregate
number of securities to which transaction
applies:
|
(3) |
Per
unit price or other underlying value of transaction computed pursuant
to
Exchange Act Rule 0-11 (set forth the amount on which the filing
fee is
calculated and state how it was
determined):
|
(4) |
Proposed
maximum aggregate value of transaction:
|
(5) |
Total
fee paid:
|
o |
Fee
paid previously with preliminary materials:
|
o |
Check
box if any part of the fee is offset as provided by Exchange Act
Rule
0-11(a)(2) and identify the filing for which the offsetting fee was
paid
previously. Identify the previous filing by registration statement
number,
or the Form or Schedule and the date of its
filing.
|
(1) |
Title
of each class of securities to which transaction
applies:
|
(2) |
Form,
Schedule or Registration Statement No.:
|
(3) |
Filing
Party:
|
(4) |
Date
Filed:
|
o |
Check
box if any part of the fee is offset as provided by Exchange Act
Rule
0-11(a)(2) and identify the filing for which the offsetting fee was
paid
previously. Identify the previous filing by registration statement
number,
or the Form or Schedule and the date of its
filing.
|
(1) |
Amount
Previously Paid:
|
(2) |
Form,
Schedule or Registration Statement No.:
|
(3) |
Filing
Party:
|
(4) |
Date
Filed:
|
1. |
To
elect four (4) directors of the Company to hold office for a one-year
term
and until their successors are duly elected and
qualified;
|
2. |
To
approve an
amendment to the Company’s Amended and Restated Certificate of
Incorporation, as amended, pursuant to which the total number of
authorized shares of capital stock will be reduced from 205 million
to 55
million and the total number of authorized shares of common stock
will be
reduced from 200 million to 50 million;
|
3. |
To
approve the Company’s new 2007 Incentive Award
Plan;
|
4. |
To
ratify the appointment of Burr, Pilger, and Mayer LLP as our Independent
Registered Public Accounting Firm for the fiscal year ending March
31,
2008; and
|
5. |
To
transact such other business as may properly come before the meeting
or
any adjournment or postponement of the
meeting.
|
By
Order of the Board of Directors
|
|
TEGAL
CORPORATION
|
|
|
|
Petaluma,
California
|
CHRISTINE
T. HERGENROTHER
Vice
President, Chief Financial Officer,
Secretary
and Treasurer
|
· |
the
election of all of the directors nominated
below;
|
· |
the
approval of an amendment to the Company’s Amended and Restated Certificate
of Incorporation, as amended, pursuant to which the total number
of
authorized shares of capital stock will be reduced from 205 million
to 55
million and the total number of authorized shares of common stock
will be
reduced from 200 million to 50 million;
|
· |
the
approval of the Company’s new 2007 Incentive Award Plan;
and
|
· |
the
ratification of the appointment of Burr, Pilger, and Mayer LLP as
our
Independent Registered Public Accounting Firm for the fiscal year
ending
March 31, 2008.
|
Name
|
Age
|
Director
Since
|
New
Term Will Expire
|
Edward
A. Dohring
|
73
|
1996
|
2008
|
Jeffrey
M. Krauss
|
50
|
1992
|
2008
|
H.
Duane Wadsworth
|
70
|
2002
|
2008
|
Thomas
R Mika
|
55
|
2006
|
2008
|
Name
|
Age
|
Position
|
Thomas
R. Mika
|
55
|
President
and Chief Executive Officer
|
Christine
T. Hergenrother
|
41
|
Vice
President, Chief Financial Officer and Treasurer
|
Steven
Selbrede
|
55
|
Vice
President and Chief Technology Officer
|
Vahan
Tchakerian
|
46
|
Vice
President, Global Sales
|
Murali
Narasimhan*
|
42
|
Vice
President, Marketing
|
Scott
Brown
|
50
|
Vice
President, Sales for North America
|
o |
Pay
total compensation that is competitive with the practices of other
companies of similar size and in similar
industries;
|
o |
Use
total cash compensation (salary plus annual cash bonus) to recognize
appropriately each individual officer’s scope of responsibility, role in
the organization, experience and
contributions;
|
o |
Reward
performance by:
|
o |
Providing
short-term bonus compensation by establishing a Bonus Plan (the “Bonus
Plan”) to reward achievement at specified levels of financial and
individual performance. Each executive’s goals relate to key financial
measures, including company-specific measures representing achievement
of
targeted revenue, gross profit and operating expense levels. Performance
by executives can have a significant impact on each of these items,
resulting in improved financial performance and therefore value to
stockholders. There is an expectation that goals specific to each
individual executive officer represent an advance over current conditions
rather than a continuation of the status
quo.
|
o |
Providing
long-term incentives in the form of stock options and restricted
stock
awards in order to retain those individuals with the leadership abilities
necessary for increasing long-term stockholder value while aligning
the
interests of our officers with those of our
stockholders.
|
THE
COMPENSATION COMMITTEE
|
|
|
Ed
Dohring, Chair
Jeff
Krauss
Duane
Wadsworth
|
Stock
Awards
($) (1)
|
Option
Awards
($) (2)
|
All
Other
Compensation
($) (3)
|
Total
($)
|
|||
Name
and Principal Position
|
Year
|
Salary
($)
|
||||
Thomas
Mika
|
||||||
Chairman,
President & CEO
|
2007
|
225,639
|
459,777
|
67,509
|
9,900
|
762,826
|
Christine
Hergenrother
|
|
|||||
Vice
President & CFO
|
2007
|
148,624
|
166,687
|
73,104
|
388
|
388,803
|
Scott
Brown
|
||||||
Vice
President, Sales N. America
|
2007
|
202,312
(4)
|
34,500
|
100,019
|
9,807
|
346,637
|
Murali
Narasimhan
|
||||||
VP
Marketing
|
2007
|
175,843
|
228,018
|
17,217
|
135
|
421,213
|
Steven
Selbrede
|
||||||
VP
Technology & CTO
|
2007
|
148,857
|
176,167
|
65,105
|
411
|
390,540
|
Vahan
Tchakerian
|
||||||
Vice
President, Global Sales
|
2007
|
219,152
(5)
|
187,770
|
59,568
|
9,874
|
476,364
|
(1) |
The
amounts included in the “Stock Awards” column represent the compensation
cost that was recognized by the Company in fiscal year 2007 related
to
awards of restricted stock granted during fiscal year 2007 and previous
fiscal years determined in accordance with Statement of Financial
Accounting Standards No. 123R (“SFAS 123R”). The valuation assumptions
used in determining such amounts are described in Note 1 to our
consolidated financial statements included in our annual report on
Form
10-K for the fiscal year ended March 31, 2007. Please see the “Grants of
Plan-Based Awards in Fiscal 2007” table for more information regarding
awards of restricted stock during fiscal
2007.
|
(2) |
The
amounts included in the “Option Awards” column represent the compensation
cost that was recognized by the Company in fiscal year 2007 related
to
grants of options during fiscal year 2007 and previous fiscal years
determined in accordance with SFAS 123R. Please see the “Grants of
Plan-Based Awards in Fiscal 2007” table for more information regarding
awards of restricted stock during fiscal
2007.
|
(3) |
All
other compensation in fiscal 2007 includes for all individuals the
value
of the Company’s match under the 401(k) Plan. In addition, for Messrs.
Brown, Mika, and Tchakerian, the amount reflects $9,000 each for
an annual
automobile allowance.
|
(4) |
This
amount includes commissions paid to Mr. Brown in the amount of $36,696.
|
(5) |
This
amount includes commissions paid to Mr. Tchakerian in the amount
of
$57,999.
|
All
Other
Stock
Awards:
Number
of
Shares
of
Stock
or
Unit
(#)
|
All
Other
Option
Awards:
Number
of
Shares
of
Stock
or
Unit
(#)
|
|||||
Exercise
or
Base
Price
of
Option
Awards
($/Sh)
|
Grant
Date
Fair
value of Stock and
Option
Awards
($)
(1)
|
|||||
Approval
Date
|
Grant
Date
|
|||||
Name
|
||||||
Thomas
Mika
|
10/30/2006
|
11/15/2006
|
|
16,339
(3)
|
4.60
|
67,509
|
|
10/30/2006
|
11/15/2006
|
16,339
(2)
|
|
|
75,159
|
|
12/8/2006
|
12/8/2006
|
62,438
(4)
|
|
|
384,618
|
|
|
|
|
|
|
|
Christine
Hergenrother
|
10/30/2006
|
11/15/2006
|
|
17,693
(3)
|
4.60
|
73,104
|
|
10/30/2006
|
11/15/2006
|
17,692
(2)
|
|
|
81,383
|
|
12/8/2006
|
12/8/2006
|
13,848
(4)
|
|
|
85,304
|
|
|
|
|
|
|
|
Scott
Brown
|
10/30/2006
|
11/15/2006
|
|
7,500
(3)
|
4.60
|
30,989
|
|
10/30/2006
|
11/15/2006
|
7,500
(2)
|
|
|
34,500
|
|
|
|
|
|
|
|
Murali
Narasimhan
|
10/30/2006
|
11/15/2006
|
|
4,167
(3)
|
4.60
|
17,217
|
|
10/30/2006
|
11/15/2006
|
4,166
(2)
|
|
|
19,163
|
|
12/8/2006
|
12/8/2006
|
33,905
(4)
|
|
|
208,855
|
|
|
|
|
|
|
|
Steven
Selbrede
|
10/30/2006
|
11/15/2006
|
|
15,757
(3)
|
4.60
|
65,105
|
|
10/30/2006
|
11/15/2006
|
15,757
(2)
|
|
|
72,482
|
|
12/8/2006
|
12/8/2006
|
16,832
(4)
|
|
|
103,685
|
|
|
|
|
|
|
|
Vahan
Tchakerian
|
10/30/2006
|
11/15/2006
|
|
14,417
(3)
|
4.60
|
59,568
|
|
10/30/2006
|
11/15/2006
|
14,416
(2)
|
|
|
66,314
|
|
12/8/2006
|
12/8/2006
|
19,717
(4)
|
|
|
121,457
|
(1) |
The
amounts set forth in the “Grant Date Fair Value of Stock and Option
Awards” column are the full grant date fair value of the awards as
determined in accordance with SFAS123R. The valuation assumptions
used in
determining such amounts are described in Note 1 to our consolidated
financial statements included in our annual report on Form 10K for
the
fiscal year ended March 31, 2007
|
(2) |
Options
vest at a rate of twenty-five percent (25%) of the shares on the
first
anniversary of the date the Option is granted. Twenty-five percent
(25%)
of the shares on the second anniversary of the date the Option is
granted;
and 2.083% of the shares shall vest on the last day of each month
commencing with the 25th
month, with full vesting on the last day of the 48th
month.
|
(3) |
Restricted
Stock Units granted on November 15, 2006 will vest at a rate of 25%
each
anniversary of the date the restricted stock units were granted.
|
(4) |
On
December 8, 2006, the named executive officers along with other employees
participated in a tender offer to exchange stock options for restricted
stock units. This amount represents the number of restricted stock
units
granted in connection with the tender offer. 50% of the restricted
stock
units will vest at the end of the first year and 50% at the end of
the
second year, with the restricted stock units being fully vested at
the end
of the two years.
|
Options
Awards
|
Stock
Awards
|
|||||
Number
of
Securities
Underlying
Unexercised
Options
(#)
Exercisable
|
Number
of
Securities
Underlying
Unexercised
Options
(#)
(1)
Unexercisable
|
Market
Value
of
Shares
or
Units
of
Stock
That
Have
Not Vested
($)
(3)
|
||||
Number
of
Shares
or
Units
of
Stock
That
Have
Not Vested
(#)
(2)
|
||||||
Option
Exercise
Price
($)
|
||||||
Option
Expiration
Date
|
||||||
Name
|
||||||
Thomas
Mika
|
16,339
|
4.60
|
11/15/2016
|
|||
16,339
|
75,976
|
|||||
62,438
|
290,337
|
|||||
Christine
Hergenrother
|
17,693
|
4.60
|
11/15/2016
|
|||
17,692
|
82,268
|
|||||
13,848
|
64,393
|
|||||
Scott
Brown
|
6,250
|
7.08
|
2/28/2016
|
|||
18,750
|
7.08
|
2/28/2016
|
||||
7,500
|
34,875
|
|||||
Steven
Selbrede
|
15,757
|
4.60
|
11/15/2016
|
|||
15,757
|
73,270
|
|||||
16,832
|
78,269
|
|||||
Vahan
Tchakerian
|
14,417
|
4.60
|
11/15/2016
|
|||
14,416
|
67,034
|
|||||
19,717
|
91,684
|
|||||
Murali
Narasimhan
|
4,167
|
4.60
|
11/15/2016
|
|||
4,166
|
19,372
|
|||||
33,905
|
157,658
|
(1) |
Options
vest at a rate of twenty-five percent (25%) of the shares on the
first
anniversary of the date the Option is granted; twenty-five percent
(25%)
of the shares on the second anniversary of the date the Option is
granted;
and 2.083% of the shares shall vest on the last day of each month
commencing with the 25th
month, with full vesting on the last day of the 48th
month.
|
(2) |
Restricted
Stock Units granted on November 15, 2006 will vest at a rate of 25%
on
each anniversary of the date the restricted stock units were granted.
Restricted Stock Units granted on December 8, 2006 will vest at a
rate of
50% on each anniversary of the date the restricted stock units were
granted.
|
(3) |
Based
on a closing stock price of $4.65 at fiscal-year end (March
31, 2007).
|
Termination
without Cause Severance($)
(1)
|
||||
Termination
Related to Change of Control
|
||||
Severance
($)
(2)
|
Acceleration
of Options ($)
(3)
|
Acceleration
of Stock Awards ($)
(4)
|
||
Name
|
||||
Tom
Mika
|
112,500
|
225,000
|
817
|
366,313
|
Christine
Hergenrother
|
74,250
|
148,500
|
885
|
146,661
|
Scott
Brown
|
82,500
|
165,000
|
375
|
34,875
|
Murali
Narasimhan
|
87,500
|
175,000
|
208
|
177,030
|
Steven
Selbrede
|
74,250
|
148,500
|
788
|
151,539
|
Vahan
Tchakerian
|
89,410
|
178,820
|
721
|
158,718
|
Plan
Category
|
Number
of Securities to be Issued upon Exercise of all
Outstanding
Awards
|
Weighted-Average
Exercise
Price of
Outstanding
Options,
Warrants
and Rights
|
Number
of Securities
Remaining
Available for
Future
Issuance Under
Equity
Compensation
Plans
(Excluding
Securities
Reflected
in Column (a))
|
(a)
|
(b)
|
(c)
|
|
Equity
compensation plans approved by security holders
|
1,007,725
|
$10.80
|
818,624
|
Equity
compensation plans not approved by security holders
|
—
|
—
|
—
|
Total
|
1,007,725
|
$10.80
|
818,624
(1)
|
Fees
Earned or Paid in Cash
|
Option
Awards
($)
(1)
|
Total
($)
|
|
Name
|
|||
Edward
Dohring
|
33,500
|
66,468
|
99,968
|
Jeffrey
Krauss
|
33,250
|
63,811
|
97,061
|
Duane
Wadsworth
|
31,375
|
44,549
|
75,924
|
Name
of Beneficial Owner
|
Position
|
Shares
Beneficially Owned
(
# ) (1)
|
Percent
Of Class
(
% ) (1)
|
Thomas
R. Mika (2)
|
President
& CEO
|
17,833
|
*
|
Christine
T. Hergenrother (3)
|
Vice
President & CFO
|
208
|
*
|
Scott
Brown (4)
|
Vice
President, North America Sales
|
6,250
|
*
|
Murali
Narasimhan (5)
|
Vice
President, Marketing
|
*
|
|
Steven
Selbrede (6)
|
Vice
President & CTO
|
25,000
|
*
|
Vahan
Tchakerian (7)
|
Vice
President of Global Sales
|
*
|
|
Jeffrey
M. Krauss (8)
|
Director
|
45,502
|
*
|
Edward
A. Dohring (9)
|
Director
|
47,894
|
*
|
Duane
Wadsworth (10)
|
Director
|
31,674
|
*
|
Directors
and Executive Officers as a group (11 individuals) (11)
|
174,361
|
2.45
|
|
5%
Stockholders
|
|||
Lloyd
I Miller, III (12)
|
Investor
|
357,551
|
5.03
|
Bonanza
Capital (13)
|
Investor
|
769,229
|
10.44
|
Special
Situations Funds (14)
|
Investor
|
2,120,172
|
26.98
|
1.
|
The
name of the Corporation (hereinafter called the “Corporation”) is Tegal
Corporation.
|
2.
|
The
Certificate of Incorporation is hereby amended by striking out
Article
FOURTH thereof and by substituting in lieu of said Article the
following
new Article:
|
3.
|
The
amendment of the Certificate of Incorporation herein certified
was
submitted to the stockholders of the Corporation and was duly approved
by
the required vote of stockholders of the Corporation in accordance
with
the provisions of Sections 222 and 242 of the General Corporation
Law of
the State of Delaware. The total number of outstanding shares entitled
to
vote or consent to this Amendment was
7,113,372 shares
of Common Stock. A majority of the outstanding shares of Common
Stock,
voting together as a single class, voted in favor of this Certificate
of
Amendment. The vote required was a majority of the outstanding
shares of
Common Stock, voting together as a single class.
|
IN
WITNESS WHEREOF, Tegal Corporation has caused this Certificate
of
Amendment to be signed by its President & Chief Executive Officer as
of _______________, 2007.
|
Section 2.01 |
“Award”
means an Option, a Restricted Stock award, a Stock Appreciation Right
award, a Performance Share award, a Performance Stock Unit award,
a
Dividend Equivalents award, a Stock Payment award, a Deferred Stock
award,
a Restricted Stock Unit award, a Performance Bonus Award, or a
Performance-Based Award granted to a Participant pursuant to the
Plan.
|
Section 2.02 |
“Award
Agreement”
means any written agreement, contract, or other instrument or document
evidencing an Award, including through electronic
medium.
|
Section 2.03 |
“Board”
means the Board of Directors of the
Company.
|
Section 2.04 |
“Change
in Control”
means and includes each of the following:
|
(a) |
A
transaction or series of transactions (other than an offering of
Stock to
the general public through a registration statement filed with the
Securities and Exchange Commission) whereby any “person” or related
“group” of “persons” (as such terms are used in Sections 13(d) and
14(d)(2) of the Exchange Act) (other than the Company, any of its
subsidiaries, an employee benefit plan maintained by the Company
or any of
its subsidiaries or a “person” that, prior to such transaction, directly
or indirectly controls, is controlled by, or is under common control
with,
the Company) directly or indirectly acquires beneficial ownership
(within
the meaning of Rule 13d-3 under the Exchange Act) of securities of
the
Company possessing more than 50% of the total combined voting power
of the
Company’s securities outstanding immediately after such acquisition;
or
|
(b) |
During
any period of two consecutive years, individuals who, at the beginning
of
such period, constitute the Board together with any new director(s)
(other
than a director designated by a person who shall have entered into
an
agreement with the Company to effect a transaction described in Section
2.4(a)
or
Section 2.4(c))
whose election by the Board or nomination for election by the Company’s
stockholders was approved by a vote of at least two-thirds of the
directors then still in office who either were directors at the beginning
of the two-year period or whose election or nomination for election
was
previously so approved, cease for any reason to constitute a majority
thereof; or
|
(c) |
The
consummation by the Company (whether directly involving the Company
or
indirectly involving the Company through one or more intermediaries)
of
(x) a merger, consolidation, reorganization, or business combination
or (y) a sale or other disposition of all or substantially all of the
Company’s assets in any single transaction or series of related
transactions or (z) the acquisition of assets or stock of another
entity, in each case other than a
transaction:
|
(i) |
Which
results in the Company’s voting securities outstanding immediately before
the transaction continuing to represent (either by remaining outstanding
or by being converted into voting securities of the Company or the
person
that, as a result of the transaction, controls, directly or indirectly,
the Company or owns, directly or indirectly, all or substantially
all of
the Company’s assets or otherwise succeeds to the business of the Company
(the Company or such person, the “Successor
Entity”))
directly or indirectly, at least a majority of the combined voting
power
of the Successor Entity’s outstanding voting securities immediately after
the transaction, and
|
(ii) |
After
which no person or group beneficially owns voting securities representing
50% or more of the combined voting power of the Successor Entity;
provided,
however,
that no person or group shall be treated for purposes of this Section
2.4(c)(ii)
as
beneficially owning 50% or more of combined voting power of the Successor
Entity solely as a result of the voting power held in the Company
prior to
the consummation of the transaction; or
|
(d) |
The
Company’s stockholders approve a liquidation or dissolution of the
Company.
|
Section 2.05 |
“Code”
means the Internal Revenue Code of 1986, as
amended.
|
Section 2.06 |
“Committee”
means the committee of the Board described in Article 13.
|
Section 2.07 |
“Consultant”
means any consultant or adviser if: (a) the consultant or adviser
renders
bona fide services to the Company or any Subsidiary; (b) the services
rendered by the consultant or adviser are not in connection with
the offer
or sale of securities in a capital-raising transaction and do not
directly
or indirectly promote or maintain a market for the Company’s securities;
and (c) the consultant or adviser is a natural
person.
|
Section 2.08 |
“Covered
Employee”
means an Employee who is, or could be, a “covered employee” within the
meaning of Section 162(m) of the Code.
|
Section 2.09 |
“Deferred
Stock”
means a right to receive a specified number of shares of Stock during
specified time periods pursuant to Section 8.5.
|
Section 2.10 |
“Director”
means a member of the Board, or as applicable, a member of the board
of
directors of a Subsidiary.
|
Section 2.11 |
“Disability” means
that the Participant qualifies to receive long-term disability payments
under the Company’s long-term disability insurance program, as it may be
amended from time to time.
|
Section 2.12 |
“Dividend
Equivalents”
means a right granted to a Participant pursuant to
Section 8.3
to
receive the equivalent value (in cash or Stock) of dividends paid
on
Stock.
|
Section 2.13 |
“Effective
Date”
shall have the meaning set forth in Section 14.1.
|
Section 2.14 |
“Eligible
Individual”
means any person who is an Employee, a Consultant or an Independent
Director, as determined by the Committee.
|
Section 2.15 |
“Employee”
means any officer or other employee (as defined in accordance with
Section
3401(c) of the Code) of the Company or any
Subsidiary.
|
Section 2.16 |
“Equity
Restructuring”
shall mean a nonreciprocal transaction between the company and its
stockholders, such as a stock dividend, stock split, spin-off, rights
offering or recapitalization through a large, nonrecurring cash dividend,
that affects the shares of Stock (or other securities of the Company)
or
the share price of Stock (or other securities) and causes a change
in the
per share value of the Stock underlying outstanding
Awards.
|
Section 2.17 |
“Exchange
Act”
means the Securities Exchange Act of 1934, as
amended.
|
Section 2.18 |
“Fair
Market Value”
means, as of any given date, (a) if Stock is traded on any established
stock exchange, the closing price of a share of Stock as reported
in the
Wall
Street Journal
(or such other source as the Company may deem reliable for such purposes)
for such date, or if no sale occurred on such date, the first trading
date
immediately prior to such date during which a sale occurred; or (b)
if
Stock is not traded on an exchange but is quoted on a national market
or
other quotation system, the last sales price on such date, or if
no sales
occurred on such date, then on the date immediately prior to such
date on
which sales prices are reported; or (c) if Stock is not publicly
traded,
the fair market value established by the Committee acting in good
faith.
|
Section 2.19 |
“Incentive
Stock Option”
means an Option that is intended to meet the requirements of Section
422
of the Code or any successor provision
thereto.
|
Section 2.20 |
“Independent
Director”
means a Director of the Company who is not an
Employee.
|
Section 2.21 |
“Non-Employee
Director”
means a Director of the Company who qualifies as a “Non-Employee Director”
as defined in Rule 16b-3(b)(3) under the Exchange Act, or any successor
rule.
|
Section 2.22 |
“Non-Qualified
Stock Option”
means an Option that is not intended to be an Incentive Stock
Option.
|
Section 2.23 |
“Option”
means a right granted to a Participant pursuant to Article 5
of
the Plan to purchase a specified number of shares of Stock at a specified
price during specified time periods. An Option may be either an Incentive
Stock Option or a Non-Qualified Stock
Option.
|
Section 2.24 |
“Participant”
means any Eligible Individual who, as a member of the Board, Consultant
or
Employee, has been granted an Award pursuant to the
Plan.
|
Section 2.25 |
“Performance-Based
Award”
means an Award granted to selected Covered Employees pursuant to
Section
8.7,
but which is subject to the terms and conditions set forth in Article
9.
All Performance-Based Awards are intended to qualify as Qualified
Performance-Based Compensation.
|
Section 2.26 |
“Performance
Bonus Award”
has the meaning set forth in Section 8.7.
|
Section 2.27 |
“Performance
Criteria”
means the criteria that the Committee selects for purposes of establishing
the Performance Goal or Performance Goals for a Participant for a
Performance Period. The Performance Criteria that will be used to
establish Performance Goals are limited to the following: net earnings
(either before or after interest, taxes, depreciation and amortization),
economic value-added, sales or revenue, net income (either before
or after
taxes), operating earnings, cash flow (including, but not limited
to,
operating cash flow and free cash flow), cash flow return on capital,
return on net assets, return on stockholders’ equity, return on assets,
return on capital, stockholder returns, return on sales, gross or
net
profit margin, productivity, expense, margins, operating efficiency,
customer satisfaction, working capital, earnings per share, price
per
share of Stock, and market share, any of which may be measured either
in
absolute terms or as compared to any incremental increase or as compared
to results of a peer group. The Committee shall define in an objective
fashion the manner of calculating the Performance Criteria it selects
to
use for such Performance Period for such Participant.
|
Section 2.28 |
“Performance
Goals”
means, for a Performance Period, the goals established in writing
by the
Committee for the Performance Period based upon the Performance Criteria.
Depending on the Performance Criteria used to establish such Performance
Goals, the Performance Goals may be expressed in terms of overall
Company
performance or the performance of a division, business unit, or an
individual. The Committee, in its discretion, may, within the time
prescribed by Section 162(m) of the Code, adjust or modify the calculation
of Performance Goals for such Performance Period in order to prevent
the
dilution or enlargement of the rights of Participants (a) in the
event of,
or in anticipation of, any unusual or extraordinary corporate item,
transaction, event, or development, or (b) in recognition of, or
in
anticipation of, any other unusual or nonrecurring events affecting
the
Company, or the financial statements of the Company, or in response
to, or
in anticipation of, changes in applicable laws, regulations, accounting
principles, or business conditions.
|
Section 2.29 |
“Performance
Period”
means the one or more periods of time, which may be of varying and
overlapping durations, as the Committee may select, over which the
attainment of one or more Performance Goals will be measured for
the
purpose of determining a Participant’s right to, and the payment of, a
Performance-Based Award.
|
Section 2.30 |
“Performance
Share”
means a right granted to a Participant pursuant to Section 8.1,
to receive Stock, the payment of which is contingent upon achieving
certain Performance Goals or other performance-based targets established
by the Committee.
|
Section 2.31 |
“Performance
Stock Unit”
means a right granted to a Participant pursuant to Section 8.2,
to receive Stock, the payment of which is contingent upon achieving
certain Performance Goals or other performance-based targets established
by the Committee.
|
Section 2.32 |
“Plan”
means this Tegal Corporation 2007 Incentive Award Plan, as it may
be
amended from time to time.
|
Section 2.33 |
“Prior
Plans”
means, collectively, the following plans of the Company: the Eighth
Amended and Restated 1998 Equity Participation Plan of Tegal Corporation
and the Fifth Amended and Restated Stock Option Plan for Outside
Directors
of Tegal Corporation, in each case as such plan may be amended from
time
to time.
|
Section 2.34 |
“Qualified
Performance-Based Compensation”
means any compensation that is intended to qualify as “qualified
performance-based compensation” as described in Section 162(m)(4)(C)
of the Code.
|
Section 2.35 |
“Restricted
Stock”
means Stock awarded to a Participant pursuant to Article 6
that is subject to certain restrictions and may be subject to risk
of
forfeiture.
|
Section 2.36 |
“Restricted
Stock Unit”
means an Award granted pursuant to Section 8.6.
|
Section 2.37 |
“Securities
Act”
shall mean the Securities Act of 1933, as
amended.
|
Section 2.38 |
“Stock”
means the common stock of the Company and such other securities of
the
Company that may be substituted for Stock pursuant to
Article 12.
|
Section 2.39 |
“Stock
Appreciation Right”
or “SAR”
means a right granted pursuant to Article 7
to
receive a payment equal to the excess of the Fair Market Value of
a
specified number of shares of Stock on the date the SAR is exercised
over
the Fair Market Value on the date the SAR was granted as set forth
in the
applicable Award Agreement.
|
Section 2.40 |
“Stock
Payment”
means (a) a payment in the form of shares of Stock, or (b) an option
or
other right to purchase shares of Stock, as part of any bonus, deferred
compensation or other arrangement, made in lieu of all or any portion
of
the compensation, granted pursuant to Section 8.4.
|
Section 2.41 |
“Subsidiary”
means any “subsidiary corporation” as defined in Section 424(f) of the
Code and any applicable regulations promulgated thereunder or any
other
entity of which a majority of the outstanding voting stock or voting
power
is beneficially owned directly or indirectly by the
Company.
|
Section 3.01 |
Number
of Shares.
|
(a) |
Subject
to Article 12 and Section 3.1(b) the aggregate number of shares of
Stock
which may be issued or transferred pursuant to Awards under the Plan
is
the sum of: (i) 1,000,000 shares
and (ii) any shares of Stock which as of the Effective Date are available
for issuance under any of the Prior Plans, or are subject to awards
under
the Prior Plans which are forfeited or lapse unexercised and which
following the Effective Date are not issued under the Prior Plans;
provided,
however,
no more than 1,000,000 shares of Stock may be issued upon the exercise
of
Incentive Stock Options.
|
(b) |
To
the extent that an Award terminates, expires, or lapses for any reason,
any shares of Stock subject to the Award shall again be available
for the
grant of an Award pursuant to the Plan. Additionally, any shares
of Stock
tendered or withheld to satisfy the grant or exercise price or tax
withholding obligation pursuant to any Award shall again be available
for
the grant of an Award pursuant to the Plan. To the extent permitted
by
applicable law or any exchange rule, shares of Stock issued in assumption
of, or in substitution for, any outstanding awards of any entity
acquired
in any form of combination by the Company or any Subsidiary shall
not be
counted against shares of Stock available for grant pursuant to this
Plan.
The payment of Dividend Equivalents in cash in conjunction with any
outstanding Awards shall not be counted against the shares available
for
issuance under the Plan. Notwithstanding the provisions of this Section
3.1(b),
no shares of Common Stock may again be optioned, granted or awarded
if
such action would cause an Incentive Stock Option to fail to qualify
as an
incentive stock option under Section 422 of the
Code.
|
Section 3.02 |
Stock
Distributed.
Any Stock distributed pursuant to an Award may consist, in whole
or in
part, of authorized and unissued Stock, treasury Stock or Stock purchased
on the open market.
|
Section 3.03 |
Limitation
on Number of Shares Subject to Awards.
Notwithstanding any provision in the Plan to the contrary, and subject
to
Article 12,
the maximum number of shares of Stock with respect to one or more
Awards
that may be granted to any one Participant during any calendar year
shall
be 350,000 and the maximum amount that may be paid in cash during
any
calendar year with respect to any Performance-Based Award (including,
without limitation, any Performance Bonus Award) shall be
$500,000.
|
Section 4.01 |
Eligibility.
Each Eligible Individual shall be eligible to be granted one or more
Awards pursuant to the Plan.
|
Section 4.02 |
Participation.
Subject to the provisions of the Plan, the Committee may, from time
to
time, select from among all Eligible Individuals, those to whom Awards
shall be granted and shall determine the nature and amount of each
Award.
No Eligible Individual shall have any right to be granted an Award
pursuant to this Plan.
|
Section 4.03 |
Foreign
Participants.
Notwithstanding any provision of the Plan to the contrary, in order
to
comply with the laws in other countries in which the Company and
its
Subsidiaries operate or have Eligible Individuals, the Committee,
in its
sole discretion, shall have the power and authority to: (i) determine
which Subsidiaries shall be covered by the Plan; (ii) determine which
Eligible Individuals outside the United States are eligible to participate
in the Plan; (iii) modify the terms and conditions of any Award granted
to
Eligible Individuals outside the United States to comply with applicable
foreign laws; (iv) establish subplans and modify exercise procedures
and
other terms and procedures, to the extent such actions may be necessary
or
advisable (any such subplans and/or modifications shall be attached
to
this Plan as appendices); provided,
however,
that no such subplans and/or modifications shall increase the share
limitations contained in Sections 3.1
and 3.3
of
the Plan; and (v) take any action, before or after an Award is made,
that
it deems advisable to obtain approval or comply with any necessary
local
governmental regulatory exemptions or approvals. Notwithstanding
the
foregoing, the Committee may not take any actions hereunder, and
no Awards
shall be granted, that would violate the Exchange Act, the Code,
any
securities law or governing statute or any other applicable
law.
|
Section 5.01 |
General.
The Committee is authorized to grant Options to Eligible Individuals
on
the following terms and conditions:
|
(a) |
Exercise
Price.
The exercise price per share of Stock subject to an Option shall
be
determined by the Committee and set forth in the Award Agreement;
provided,
that, subject to Section 5.2(d),
the exercise price for any Option shall not be less than 100% of
the Fair
Market Value of a share of Stock on the date of
grant.
|
(b) |
Time
and Conditions of Exercise.
The Committee shall determine the time or times at which an Option
may be
exercised in whole or in part; provided
that the term of any Option granted under the Plan shall not exceed
ten
years. The Committee shall also determine the performance or other
conditions, if any, that must be satisfied before all or part of
an Option
may be exercised.
|
(c) |
Payment.
The Committee shall determine the methods by which the exercise price
of
an Option may be paid, the form of payment, including, without limitation:
(i) cash, (ii) shares of Stock held for such period of time as may
be
required by the Committee in order to avoid adverse accounting
consequences and having a Fair Market Value on the date of delivery
equal
to the aggregate exercise price of the Option or exercised portion
thereof, or (iii) other property acceptable to the Committee (including
through the delivery of a notice that the Participant has placed
a market
sell order with a broker with respect to shares of Stock then issuable
upon exercise of the Option, and that the broker has been directed
to pay
a sufficient portion of the net proceeds of the sale to the Company
in
satisfaction of the Option exercise price; provided
that payment of such proceeds is then made to the Company upon settlement
of such sale). The Committee shall also determine the methods by
which
shares of Stock shall be delivered or deemed to be delivered to
Participants. Notwithstanding any other provision of the Plan to
the
contrary, after the Public Trading Date, no Participant who is a
Director
or an “executive officer” of the Company within the meaning of Section
13(k) of the Exchange Act shall be permitted to pay the exercise
price of
an Option, or continue any extension of credit with respect to the
exercise price of an Option with a loan from the Company or a loan
arranged by the Company in violation of Section 13(k) of the Exchange
Act.
|
(d) |
Evidence
of Grant.
All Options shall be evidenced by an Award Agreement between the
Company
and the Participant. The Award Agreement shall include such additional
provisions as may be specified by the
Committee.
|
Section 5.02 |
Incentive
Stock Options.
Incentive Stock Options shall be granted only to Employees and the
terms
of any Incentive Stock Options granted pursuant to the Plan, in addition
to the requirements of Section 5.1,
must comply with the provisions of this Section 5.2.
|
(a) |
Expiration.
Subject to Section 5.2(c),
an Incentive Stock Option shall expire and may not be exercised to
any
extent by anyone after the first to occur of the following
events:
|
(i) |
Ten
years from the date it is granted, unless an earlier time is set
in the
Award Agreement;
|
(ii) |
Three
months after the Participant’s termination of employment as an Employee;
and
|
(iii) |
One
year after the date of the Participant’s termination of employment or
service on account of Disability or death. Upon the Participant’s
Disability or death, any Incentive Stock Options exercisable at the
Participant’s Disability or death may be exercised by the Participant’s
legal representative or representatives, by the person or persons
entitled
to do so pursuant to the Participant’s last will and testament, or, if the
Participant fails to make testamentary disposition of such Incentive
Stock
Option or dies intestate, by the person or persons entitled to receive
the
Incentive Stock Option pursuant to the applicable laws of descent
and
distribution.
|
(b) |
Dollar
Limitation.
The aggregate Fair Market Value (determined as of the time the Option
is
granted) of all shares of Stock with respect to which Incentive Stock
Options are first exercisable by a Participant in any calendar year
may
not exceed $500,000 or such other limitation as imposed by Section
422(d)
of the Code, or any successor provision. To the extent that Incentive
Stock Options are first exercisable by a Participant in excess of
such
limitation, the excess shall be considered Non-Qualified Stock
Options.
|
(c) |
Ten
Percent Owners.
An Incentive Stock Option shall be granted to any individual who,
at the
date of grant, owns stock possessing more than ten percent of the
total
combined voting power of all classes of Stock of the Company only
if such
Option is granted at a price that is not less than 110% of Fair Market
Value on the date of grant and the Option is exercisable for no more
than
five years from the date of grant.
|
(d) |
Notice
of Disposition.
The Participant shall give the Company prompt notice of any disposition
of
shares of Stock acquired by exercise of an Incentive Stock Option
within
(i) two years from the date of grant of such Incentive Stock Option
or
(ii) one year after the transfer of such shares of Stock to the
Participant.
|
(e) |
Right
to Exercise.
During a Participant’s lifetime, an Incentive Stock Option may be
exercised only by the Participant.
|
(f) |
Failure
to Meet Requirements.
Any Option (or portion thereof) purported to be an Incentive Stock
Option,
which, for any reason, fails to meet the requirements of Section
422 of
the Code shall be considered a Non-Qualified Stock
Option.
|
Section 6.01 |
Grant
of Restricted Stock.
The Committee is authorized to make Awards of Restricted Stock to
any
Eligible Individual selected by the Committee in such amounts and
subject
to such terms and conditions as determined by the Committee. All
Awards of
Restricted Stock shall be evidenced by an Award
Agreement.
|
Section 6.02 |
Issuance
and Restrictions.
Restricted Stock shall be subject to such restrictions on transferability
and other restrictions as the Committee may impose (including, without
limitation, limitations on the right to vote Restricted Stock or
the right
to receive dividends on the Restricted Stock). These restrictions
may
lapse separately or in combination at such times, pursuant to such
circumstances, in such installments, or otherwise, as the Committee
determines at the time of the grant of the Award or
thereafter.
|
Section 6.03 |
Forfeiture.
Except as otherwise determined by the Committee at the time of the
grant
of the Award or thereafter, upon termination of employment or service
during the applicable restriction period, Restricted Stock that is
at that
time subject to restrictions shall be forfeited; provided,
however,
that, the Committee may (a) provide in any Restricted Stock Award
Agreement that restrictions or forfeiture conditions relating to
Restricted Stock will be waived in whole or in part in the event
of
terminations resulting from specified causes, and (b) in other cases
waive
in whole or in part restrictions or forfeiture conditions relating
to
Restricted Stock.
|
Section 6.04 |
Certificates
for Restricted Stock.
Restricted Stock granted pursuant to the Plan may be evidenced in
such
manner as the Committee shall determine. If certificates representing
shares of Restricted Stock are registered in the name of the Participant,
certificates must bear an appropriate legend referring to the terms,
conditions, and restrictions applicable to such Restricted Stock,
and the
Company may, at its discretion, retain physical possession of the
certificate until such time as all applicable restrictions
lapse.
|
Section 7.01 |
Grant
of Stock Appreciation Rights.
|
(a) |
A
Stock Appreciation Right may be granted to any Eligible Individual
selected by the Committee. A Stock Appreciation Right shall be subject
to
such terms and conditions not inconsistent with the Plan as the Committee
shall impose and shall be evidenced
by an Award Agreement.
|
(b) |
A
Stock Appreciation Right shall entitle the Participant (or other
person
entitled to exercise the Stock Appreciation Right pursuant to the
Plan) to
exercise all or a specified portion of the Stock Appreciation Right
(to
the extent then exercisable pursuant to its terms) and to receive
from the
Company an amount equal to the product of (i) the excess of (A) the
Fair
Market Value of the Stock on the date the Stock Appreciation Right
is
exercised over (B) the Fair Market Value of the Stock on the date
the
Stock Appreciation Right was granted and (ii) the number of shares
of
Stock with respect to which the Stock Appreciation Right is exercised,
subject to any limitations the Committee may
impose.
|
Section 7.02 |
Payment
and Limitations on Exercise.
|
(a) |
Subject
to Sections 7.2(b)
payment of the amounts determined under Sections 7.1(b)
above shall be in cash, in Stock (based on its Fair Market Value
as of the
date the Stock Appreciation Right is exercised) or a combination
of both,
as determined by the Committee in the Award
Agreement.
|
(b) |
To
the extent any payment under Section 7.1(b)
is
effected in Stock, it shall be made subject to satisfaction of all
provisions of Article 5
above pertaining to Options.
|
Section 8.01 |
Performance
Share Awards.
Any Eligible Individual selected by the Committee may be granted
one or
more Performance Share awards which shall be denominated in a number
of
shares of Stock and which may be linked to any one or more of the
Performance Criteria or other specific performance criteria determined
appropriate by the Committee, in each case on a specified date or
dates or
over any period or periods determined by the Committee. In making
such
determinations, the Committee shall consider (among such other factors
as
it deems relevant in light of the specific type of award) the
contributions, responsibilities and other compensation of the particular
Participant.
|
Section 8.02 |
Performance
Stock Units. Any
Eligible Individual selected by the Committee may be granted one
or more
Performance Stock Unit awards which shall be denominated in unit
equivalent of shares of Stock and/or units of value including dollar
value
of shares of Stock and which may be linked to any one or more of
the
Performance Criteria or other specific performance criteria determined
appropriate by the Committee, in each case on a specified date or
dates or
over any period or periods determined by the Committee. In making
such
determinations, the Committee shall consider (among such other factors
as
it deems relevant in light of the specific type of award) the
contributions, responsibilities and other compensation of the particular
Participant.
|
Section 8.03 |
Dividend
Equivalents.
|
(a) |
Any
Eligible Individual selected by the Committee may be granted Dividend
Equivalents based on the dividends declared on the shares of Stock
that
are subject to any Award, to be credited as of dividend payment dates,
during the period between the date the Award is granted and the date
the
Award is exercised, vests or expires, as determined by the Committee.
Such
Dividend Equivalents shall be converted to cash or additional shares
of
Stock by such formula and at such time and subject to such limitations
as
may be determined by the Committee.
|
(b) |
Dividend
Equivalents granted with respect to Options or SARs that are intended
to
be Qualified Performance-Based Compensation shall be payable, with
respect
to pre-exercise periods, regardless of whether such Option or SAR
is
subsequently exercised.
|
Section 8.04 |
Stock
Payments. Any
Eligible Individual selected by the Committee may receive Stock Payments
in the manner determined from time to time by the Committee. The
number of
shares shall be determined by the Committee and may be based upon
the
Performance Criteria or other specific performance criteria determined
appropriate by the Committee, determined on the date such Stock Payment
is
made or on any date thereafter.
|
Section 8.05 |
Deferred
Stock.
Any Eligible Individual selected by the Committee may be granted
an award
of Deferred Stock in the manner determined from time to time by the
Committee. The number of shares of Deferred Stock shall be determined
by
the Committee and may be linked to the Performance Criteria or other
specific performance criteria determined to be appropriate by the
Committee, in each case on a specified date or dates or over any
period or
periods determined by the Committee. Stock underlying a Deferred
Stock
award will not be issued until the Deferred Stock award has vested,
pursuant to a vesting schedule or performance criteria set by the
Committee. Unless otherwise provided by the Committee, a Participant
awarded Deferred Stock shall have no rights as a Company stockholder
with
respect to such Deferred Stock until such time as the Deferred Stock
Award
has vested and the Stock underlying the Deferred Stock Award has
been
issued.
|
Section 8.06 |
Restricted
Stock Units.
The Committee is authorized to make Awards of Restricted Stock Units
to
any Eligible Individual selected by the Committee in such amounts
and
subject to such terms and conditions as determined by the Committee.
At
the time of grant, the Committee shall specify the date or dates
on which
the Restricted Stock Units shall become fully vested and nonforfeitable,
and may specify such conditions to vesting as it deems appropriate.
At the
time of grant, the Committee shall specify the maturity date applicable
to
each grant of Restricted Stock Units which shall be no earlier than
the
vesting date or dates of the Award and may be determined at the election
of the grantee. On the maturity date, the Company shall, subject
to
Section 11.5(b),
transfer to the Participant one unrestricted, fully transferable
share of
Stock for each Restricted Stock Unit scheduled to be paid out on
such date
and not previously forfeited.
|
Section 8.07 |
Performance
Bonus Awards.
Any Eligible Individual selected by the Committee may be granted
one or
more Performance-Based Awards in the form of a cash bonus (a “Performance
Bonus Award”)
payable upon the attainment of Performance Goals that are established
by
the Committee and relate to one or more of the Performance Criteria,
in
each case on a specified date or dates or over any period or periods
determined by the Committee. Any such Performance Bonus Award paid
to a
Covered Employee shall be based upon objectively determinable bonus
formulas established in accordance with Article 9.
|
Section 8.08 |
Term.
Except as otherwise provided herein, the term of any Award of Performance
Shares, Performance Stock Units, Dividend Equivalents, Stock Payments,
Deferred Stock or Restricted Stock Units shall be set by the Committee
in
its discretion.
|
Section 8.09 |
Exercise
or Purchase The
Committee may establish the exercise or purchase price, if any, of
any
Award of Performance Shares, Performance Stock Units, Deferred Stock,
Stock Payments or Restricted Stock Units; provided,
however,
that such price shall not be less than the par value of a share of
Stock
on the date of grant, unless otherwise permitted by applicable state
law.
|
Section 8.10 |
Exercise
upon Termination of Employment or Service.
An
Award of Performance Shares, Performance Stock Units, Dividend
Equivalents, Deferred Stock, Stock Payments and Restricted Stock
Units
shall only be exercisable or payable while the Participant is an
Employee,
Consultant or Director, as applicable; provided,
however,
that the Committee in its sole and absolute discretion may provide
that an
Award of Performance Shares, Performance Stock Units, Dividend
Equivalents, Stock Payments, Deferred Stock or Restricted Stock Units
may
be exercised or paid subsequent to a termination of employment or
service,
as applicable, or following a Change in Control of the Company, or
because
of the Participant’s retirement, death or disability, or otherwise;
provided,
however,
that any such provision with respect to Performance Shares or Performance
Stock Units shall be subject to the requirements of Section 162(m)
of the
Code that apply to Qualified Performance-Based
Compensation.
|
Section 8.11 |
Form
of Payment.
Payments with respect to any Awards granted under this Article
8
shall be made in cash, in Stock or a combination of both, as determined
by
the Committee.
|
Section 8.12 |
Award
Agreement.
All Awards under this Article 8
shall be subject to such additional terms and conditions as determined
by
the Committee and shall be evidenced by an Award
Agreement.
|
Section 9.01 |
Purpose.
The purpose of this Article 9
is
to provide the Committee the ability to qualify Awards other than
Options
and SARs and that are granted pursuant to Articles 6
and 8
as
Qualified Performance-Based Compensation. If the Committee, in its
discretion, decides to grant a Performance-Based Award to a Covered
Employee, the provisions of this Article 9
shall control over any contrary provision contained in Articles
6
or
8;
provided,
however,
that the Committee may in its discretion grant Awards to Covered
Employees
that are based on Performance Criteria or Performance Goals that
do not
satisfy the requirements of this Article 9.
|
Section 9.02 |
Applicability.
This Article 9
shall apply only to those Covered Employees selected by the Committee
to
receive Performance-Based Awards. The designation of a Covered Employee
as
a Participant for a Performance Period shall not in any manner entitle
the
Participant to receive an Award for the period. Moreover, designation
of a
Covered Employee as a Participant for a particular Performance Period
shall not require designation of such Covered Employee as a Participant
in
any subsequent Performance Period and designation of one Covered
Employee
as a Participant shall not require designation of any other Covered
Employees as a Participant in such period or in any other
period.
|
Section 9.03 |
Procedures
with Respect to Performance-Based Awards.
To the extent necessary to comply with the Qualified Performance-Based
Compensation requirements of Section 162(m)(4)(C) of the Code, with
respect to any Award granted under Articles 6
or
8
which may be granted to one or more Covered Employees, no later than
ninety (90) days following the commencement of any fiscal year in
question
or any other designated fiscal period or period of service (or such
other
time as may be required or permitted by Section 162(m) of the Code),
the
Committee shall, in writing, (a) designate one or more Covered Employees,
(b) select the Performance Criteria applicable to the Performance
Period,
(c) establish the Performance Goals, and amounts of such Awards,
as
applicable, which may be earned for such Performance Period, and
(d)
specify the relationship between Performance Criteria and the Performance
Goals and the amounts of such Awards, as applicable, to be earned
by each
Covered Employee for such Performance Period. Following the completion
of
each Performance Period, the Committee shall certify in writing whether
the applicable Performance Goals have been achieved for such Performance
Period. In determining the amount earned by a Covered Employee, the
Committee shall have the right to reduce or eliminate (but not to
increase) the amount payable at a given level of performance to take
into
account additional factors that the Committee may deem relevant to
the
assessment of individual or corporate performance for the Performance
Period.
|
Section 9.04 |
Payment
of Performance-Based Awards.
Unless otherwise provided in the applicable Award Agreement, a Participant
must be employed by the Company or a Subsidiary on the day a
Performance-Based Award for such Performance Period is paid to the
Participant. Furthermore, a Participant shall be eligible to receive
payment pursuant to a Performance-Based Award for a Performance Period
only if the Performance Goals for such period are achieved. In determining
the amount earned under a Performance-Based Award, the Committee
may
reduce or eliminate the amount of the Performance-Based Award earned
for
the Performance Period, if in its sole and absolute discretion, such
reduction or elimination is appropriate.
|
Section 9.05 |
Additional
Limitations.
Notwithstanding any other provision of the Plan, any Award which
is
granted to a Covered Employee and is intended to constitute Qualified
Performance-Based Compensation shall be subject to any additional
limitations set forth in Section 162(m) of the Code (including any
amendment to Section 162(m) of the Code) or any regulations or rulings
issued thereunder that are requirements for qualification as qualified
performance-based compensation as described in Section 162(m)(4)(C)
of the
Code, and the Plan shall be deemed amended to the extent necessary
to
conform to such requirements.
|
Section 10.01 |
The
Board may grant Awards to Independent Directors, subject to the
limitations of the Plan, pursuant to a written non-discretionary
formula
established by the Committee, or any successor committee thereto
carrying
out its responsibilities on the date of grant of any such Award (the
“Independent
Director Equity Compensation Policy”).
The Independent Director Equity Compensation Policy shall set forth
the
type of Award(s) to be granted to Independent Directors, the number
of
shares of Stock to be subject to Independent Director Awards, the
conditions on which such Awards shall be granted, become exercisable
and/or payable and expire, and such other terms and conditions as
the
Committee (or such other successor committee as described above)
shall
determine in its discretion.
|
Section 11.01 |
Stand-Alone
and Tandem Awards.
Awards granted pursuant to the Plan may, in the discretion of the
Committee, be granted either alone, in addition to, or in tandem
with, any
other Award granted pursuant to the Plan. Awards granted in addition
to or
in tandem with other Awards may be granted either at the same time
as or
at a different time from the grant of such other
Awards.
|
Section 11.02 |
Award
Agreement.
Awards under the Plan shall be evidenced by Award Agreements that
set
forth the terms, conditions and limitations for each Award which
may
include the term of an Award, the provisions applicable in the event
the
Participant’s employment or service terminates, and the Company’s
authority to unilaterally or bilaterally amend, modify, suspend,
cancel or
rescind an Award.
|
Section 11.03 |
Limits
on Transfer.
No right or interest of a Participant in any Award may be pledged,
encumbered, or hypothecated to or in favor of any party other than
the
Company or a Subsidiary, or shall be subject to any lien, obligation,
or
liability of such Participant to any other party other than the Company
or
a Subsidiary. Except as otherwise provided by the Committee, no Award
shall be assigned, transferred, or otherwise disposed of by a Participant
other than by will or the laws of descent and distribution or pursuant
to
beneficiary designation procedures approved from time to time by
the
Committee (or the Board in the case of Awards granted to Independent
Directors). The Committee by express provision in the Award or an
amendment thereto may permit an Award (other than an Incentive Stock
Option) to be transferred to, exercised by and paid to certain persons
or
entities related to the Participant, including but not limited to
members
of the Participant’s family, charitable institutions, or trusts or other
entities whose beneficiaries or beneficial owners are members of
the
Participant’s family and/or charitable institutions, or to such other
persons or entities as may be expressly approved by the Committee,
pursuant to such conditions and procedures as the Committee may establish.
Any permitted transfer shall be subject to the condition that the
Committee receive evidence satisfactory to it that the transfer is
being
made for estate and/or tax planning purposes (or to a “blind trust” in
connection with the Participant’s termination of employment or service
with the Company or a Subsidiary to assume a position with a governmental,
charitable, educational or similar non-profit institution) and on
a basis
consistent with the Company’s lawful issue of
securities.
|
Section 11.04 |
Beneficiaries.
Notwithstanding Section 11.3,
a
Participant may, in the manner determined by the Committee, designate
a
beneficiary to exercise the rights of the Participant and to receive
any
distribution with respect to any Award upon the Participant’s death. A
beneficiary, legal guardian, legal representative, or other person
claiming any rights pursuant to the Plan is subject to all terms
and
conditions of the Plan and any Award Agreement applicable to the
Participant, except to the extent the Plan and Award Agreement otherwise
provide, and to any additional restrictions deemed necessary or
appropriate by the Committee. If the Participant is married and resides
in
a community property state, a designation of a person other than
the
Participant’s spouse as his or her beneficiary with respect to more than
50% of the Participant’s interest in the Award shall not be effective
without the prior written consent of the Participant’s spouse. If no
beneficiary has been designated or survives the Participant, payment
shall
be made to the person entitled thereto pursuant to the Participant’s will
or the laws of descent and distribution. Subject to the foregoing,
a
beneficiary designation may be changed or revoked by a Participant
at any
time provided the change or revocation is filed with the
Committee.
|
Section 11.05 |
Stock
Certificates; Book Entry Procedures.
|
(a) |
Notwithstanding
anything herein to the contrary, the Company shall not be required
to
issue or deliver any certificates evidencing shares of Stock pursuant
to
the exercise of any Award, unless and until the Board has determined,
with
advice of counsel, that the issuance and delivery of such certificates
is
in compliance with all applicable laws, regulations of governmental
authorities and, if applicable, the requirements of any exchange
on which
the shares of Stock are listed or traded. All Stock certificates
delivered
pursuant to the Plan are subject to any stop-transfer orders and
other
restrictions as the Committee deems necessary or advisable to comply
with
federal, state, or foreign jurisdiction, securities or other laws,
rules
and regulations and the rules of any national securities exchange
or
automated quotation system on which the Stock is listed, quoted,
or
traded. The Committee may place legends on any Stock certificate
to
reference restrictions applicable to the Stock. In addition to the
terms
and conditions provided herein, the Board may require that a Participant
make such reasonable covenants, agreements, and representations as
the
Board, in its discretion, deems advisable in order to comply with
any such
laws, regulations, or requirements. The Committee shall have the
right to
require any Participant to comply with any timing or other restrictions
with respect to the settlement or exercise of any Award, including
a
window-period limitation, as may be imposed in the discretion of
the
Committee.
|
(b) |
Notwithstanding
any other provision of the Plan, unless otherwise determined by the
Committee or required by any applicable law, rule or regulation,
the
Company shall not deliver to any Participant certificates evidencing
shares of Stock issued in connection with any Award and instead such
shares of Stock shall be recorded in the books of the Company (or,
as
applicable, its transfer agent or stock plan
administrator).
|
Section 11.06 |
Paperless
Administration.
In the event that the Company establishes, for itself or using the
services of a third party, an automated system for the documentation,
granting or exercise of Awards, such as a system using an internet
website
or interactive voice response, then the paperless documentation,
granting
or exercise of Awards by a Participant may be permitted through the
use of
such an automated system.
|
Section 12.01 |
Adjustments.
|
(a) |
In
the event of any stock dividend, stock split, combination or exchange
of
shares, merger, consolidation or other distribution (other than normal
cash dividends) of Company assets to stockholders, or any other change
affecting the shares of Stock or the share price of the Stock other
than
an Equity Restructuring, the Committee shall make such equitable
adjustments, if any, as the Committee in its discretion may deem
appropriate to reflect such change with respect to (a) the aggregate
number and kind of shares that may be issued under the Plan (including,
but not limited to, adjustments of the limitations in Sections
3.1
and 3.3);
(b) the terms and conditions of any outstanding Awards (including,
without
limitation, any applicable performance targets or criteria with respect
thereto); and (c) the grant or exercise price per share for any
outstanding Awards under the Plan. Any adjustment affecting an Award
intended as Qualified Performance-Based Compensation shall be made
consistent with the requirements of Section 162(m) of the
Code.
|
(b) |
In
the event of any transaction or event described in Section 12.1
or
any unusual or nonrecurring transactions or events affecting the
Company,
any affiliate of the Company, or the financial statements of the
Company
or any affiliate, or of changes in applicable laws, regulations or
accounting principles, the Committee, in its sole and absolute discretion,
and on such terms and conditions as it deems appropriate, either
by the
terms of the Award or by action taken prior to the occurrence of
such
transaction or event and either automatically or upon the Participant’s
request, is hereby authorized to take any one or more of the following
actions whenever the Committee determines that such action is appropriate
in order to prevent dilution or enlargement of the benefits or potential
benefits intended to be made available under the Plan or with respect
to
any Award under the Plan, to facilitate such transactions or events
or to
give effect to such changes in laws, regulations or
principles:
|
(i) |
To
provide for either (A) termination of any such Award in exchange
for an
amount of cash, if any, equal to the amount that would have been
attained
upon the exercise of such Award or realization of the Participant’s rights
(and, for the avoidance of doubt, if as of the date of the occurrence
of
the transaction or event described in this Section 12.2
the Committee determines in good faith that no amount would have
been
attained upon the exercise of such Award or realization of the
Participant’s rights, then such Award may be terminated by the Company
without payment) or (B) the replacement of such Award with other
rights or
property selected by the Committee in its sole
discretion;
|
(ii) |
To
provide that such Award be assumed by the successor or survivor
corporation, or a parent or subsidiary thereof, or shall be substituted
for by similar options, rights or awards covering the stock of the
successor or survivor corporation, or a parent or subsidiary thereof,
with
appropriate adjustments as to the number and kind of shares and prices;
|
(iii) |
To
make adjustments in the number and type of shares of Common Stock
(or
other securities or property) subject to outstanding Awards, and
in the
number and kind of outstanding Restricted Stock or Deferred Stock
and/or
in the terms and conditions of (including the grant or exercise price),
and the criteria included in, outstanding options, rights and awards
and
options, rights and awards which may be granted in the
future;
|
(iv) |
To
provide that such Award shall be exercisable or payable or fully
vested
with respect to all shares covered thereby, notwithstanding anything
to
the contrary in the Plan or the applicable Award Agreement;
and
|
(v) |
To
provide that the Award cannot vest, be exercised or become payable
after
such event.
|
(c) |
In
connection with the occurrence of any Equity Restructuring, and
notwithstanding anything to the contrary in Sections 12.1(a)
and 12.1(b):
|
(i) |
The
number and type of securities subject to each outstanding Award and
the
exercise price or grant price thereof, if applicable, will be equitably
adjusted. The adjustments provided under this Section 12.1(c)(i)
shall be
nondiscretionary and shall be final and binding on the affected
Participant and the Company.
|
(ii) |
The
Committee shall make such equitable adjustments, if any, as the Committee
in its discretion may deem appropriate to reflect such Equity
Restructuring with respect to the aggregate number and kind of shares
that
may be issued under the Plan (including, but not limited to, adjustments
of the limitations in Sections 3.1 and
3.3).
|
Section 12.02 |
Acceleration
Upon a Change in Control.
Notwithstanding Section 12.1,
and except as may otherwise be provided in any applicable Award Agreement
or other written agreement entered into between the Company and a
Participant, if a Change in Control occurs and a Participant’s Awards are
not converted, assumed, or replaced by a successor entity, then
immediately prior to the Change in Control such Awards shall become
fully
exercisable and all forfeiture restrictions on such Awards shall
lapse.
Upon, or in anticipation of, a Change in Control, the Committee may
cause
any and all Awards outstanding hereunder to terminate at a specific
time
in the future, including but not limited to the date of such Change
in
Control, and shall give each Participant the right to exercise such
Awards
during a period of time as the Committee, in its sole and absolute
discretion, shall determine. In the event that the terms of any agreement
between the Company or any Company subsidiary or affiliate and a
Participant contains provisions that conflict with and are more
restrictive than the provisions of this Section 12.2,
this Section 12.2
shall prevail and control and the more restrictive terms of such
agreement
(and only such terms) shall be of no force or
effect.
|
Section 12.03 |
No
Other Rights.
Except as expressly provided in the Plan, no Participant shall have
any
rights by reason of any subdivision or consolidation of shares of
stock of
any class, the payment of any dividend, any increase or decrease
in the
number of shares of stock of any class or any dissolution, liquidation,
merger, or consolidation of the Company or any other corporation.
Except
as expressly provided in the Plan or pursuant to action of the Committee
under the Plan, 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 of shares of Stock subject to an Award or the grant or
exercise
price of any Award.
|
Section 13.01 |
Committee.
Unless and until the Board delegates administration of the Plan to
a
Committee as set forth below, the Plan shall be administered by the
full
Board, and for such purposes the term “Committee” as used in this Plan
shall be deemed to refer to the Board. The Board, at its discretion
or as
otherwise necessary to comply with the requirements of Section 162(m)
of
the Code, Rule 16b-3 promulgated under the Exchange Act or to the
extent
required by any other applicable rule or regulation, may delegate
administration of the Plan to a Committee consisting of two or more
members of the Board. Unless otherwise determined by the Board, the
Committee shall consist solely of two or more members of the Board
each of
whom is an “outside director,” within the meaning of Section 162(m) of the
Code, a Non-Employee Director and an “independent director” under the
rules of the Nasdaq Stock Market (or other principal securities market
on
which shares of Stock are traded); provided that any action taken
by the
Committee shall be valid and effective, whether or not members of
the
Committee at the time of such action are later determined not to
have
satisfied the requirements for membership set forth in this Section
13.1
or
otherwise provided in any charter of the Committee. Notwithstanding
the
foregoing: (a) the full Board, acting by a majority of its members
in
office, shall conduct the general administration of the Plan with
respect
to all Awards granted to Independent Directors and for purposes of
such
Awards the term “Committee” as used in this Plan shall be deemed to refer
to the Board and (b) the Committee may delegate its authority hereunder
to
the extent permitted by Section 13.5.
In its sole discretion, the Board may at any time and from time to
time
exercise any and all rights and duties of the Committee under the
Plan
except with respect to matters which under Rule 16b-3 under the Exchange
Act or Section 162(m) of the Code, or any regulations or rules issued
thereunder, are required to be determined in the sole discretion
of the
Committee. Except as may otherwise be provided in any charter of
the
Committee, appointment of Committee members shall be effective upon
acceptance of appointment; Committee members may resign at any time
by
delivering written notice to the Board; and vacancies in the Committee
may
only be filled by the Board.
|
Section 13.02 |
Action
by the Committee.
Unless otherwise established by the Board or in any charter of the
Committee, a majority of the Committee shall constitute a quorum
and the
acts of a majority of the members present at any meeting at which
a quorum
is present, and acts approved in writing by a majority of the Committee
in
lieu of a meeting, shall be deemed the acts of the Committee. Each
member
of the Committee is entitled to, in good faith, rely or act upon
any
report or other information furnished to that member by any officer
or
other employee of the Company or any Subsidiary, the Company’s independent
certified public accountants, or any executive compensation consultant
or
other professional retained by the Company to assist in the administration
of the Plan.
|
Section 13.03 |
Authority
of Committee.
Subject to any specific designation in the Plan, the Committee has
the
exclusive power, authority and discretion
to:
|
(a) |
Designate
Participants to receive Awards;
|
(b) |
Determine
the type or types of Awards to be granted to each
Participant;
|
(c) |
Determine
the number of Awards to be granted and the number of shares of Stock
to
which an Award will relate;
|
(d) |
Determine
the terms and conditions of any Award granted pursuant to the Plan,
including, but not limited to, the exercise price, grant price, or
purchase price, any reload provision, any restrictions or limitations
on
the Award, any schedule for lapse of forfeiture restrictions or
restrictions on the exercisability of an Award, and accelerations
or
waivers thereof, any provisions related to non-competition and recapture
of gain on an Award, based in each case on such considerations as
the
Committee in its sole discretion determines; provided,
however,
that the Committee shall not have the authority to accelerate the
vesting
or waive the forfeiture of any Performance-Based
Awards;
|
(e) |
Determine
whether, to what extent, and pursuant to what circumstances an Award
may
be settled in, or the exercise price of an Award may be paid in,
cash,
Stock, other Awards, or other property, or an Award may be canceled,
forfeited, or surrendered;
|
(f) |
Prescribe
the form of each Award Agreement, which need not be identical for
each
Participant;
|
(g) |
Decide
all other matters that must be determined in connection with an
Award;
|
(h) |
Establish,
adopt, or revise any rules and regulations as it may deem necessary
or
advisable to administer the Plan;
|
(i) |
Interpret
the terms of, and any matter arising pursuant to, the Plan or any
Award
Agreement; and
|
(j) |
Make
all other decisions and determinations that may be required pursuant
to
the Plan or as the Committee deems necessary or advisable to administer
the Plan.
|
Section 13.04 |
Decisions
Binding.
The Committee’s interpretation of the Plan, any Awards granted pursuant to
the Plan, any Award Agreement and all decisions and determinations
by the
Committee with respect to the Plan are final, binding, and conclusive
on
all parties.
|
Section 13.05 |
Delegation
of Authority.
To the extent permitted by applicable law, the Board may from time
to time
delegate to a committee of one or more members of the Board or one
or more
officers of the Company the authority to grant or amend Awards to
Participants other than (a) Employees who are subject to Section
16 of the
Exchange Act, (b) Covered Employees, or (c) officers of the Company
(or
Directors) to whom authority to grant or amend Awards has been delegated
hereunder. Any delegation hereunder shall be subject to the restrictions
and limits that the Board specifies at the time of such delegation,
and
the Board may at any time rescind the authority so delegated or appoint
a
new delegatee. At all times, the delegatee appointed under this Section
13.5
shall serve in such capacity at the pleasure of the
Board.
|
Section 14.01 |
Effective
Date.
The Plan is effective as of the date the Plan is approved by the
Company’s
stockholders (the “Effective
Date”).
The Plan will be deemed to be approved by the stockholders if it
is
approved either:
|
(a) |
By
a majority of the votes cast at a duly held stockholder;s meeting
at which
a quorum representing a majority of outstanding voting stock is,
either in
person or by proxy, present and voting on the plan;
or
|
(b) |
By
a method and in a degree that would be treated as adequate under
Delaware
law in the case of an action requiring stockholder approval.
|
Section 14.02 |
Expiration
Date.
The Plan will expire on, and no Award may be granted pursuant to
the Plan
after the tenth anniversary of the Effective Date, except that no
Incentive Stock Options may be granted under the Plan after the earlier
of
the tenth anniversary of (a) the date the Plan is approved by the
Board or
(b) the Effective Date. Any Awards that are outstanding on the tenth
anniversary of the Effective Date shall remain in force according
to the
terms of the Plan and the applicable Award
Agreement.
|
Section 15.01 |
Amendment,
Modification, and Termination.
Subject to Section 16.14,
with the approval of the Board, at any time and from time to time,
the
Committee may terminate, amend or modify the Plan; provided,
however,
that (a) to the extent necessary and desirable to comply with any
applicable law, regulation, or stock exchange rule, the Company shall
obtain stockholder approval of any Plan amendment in such a manner
and to
such a degree as required, and (b) stockholder approval shall be
required
for any amendment to the Plan that (i) increases the number of shares
available under the Plan (other than any adjustment as provided by
Article
12),
(ii) permits the Committee to grant Options with an exercise price
that is
below Fair Market Value on the date of grant, or (iii) permits the
Committee to extend the exercise period for an Option beyond ten
years
from the date of grant. Notwithstanding any provision in this Plan
to the
contrary, absent approval of the stockholders of the Company, no
Option
may be amended to reduce the per share exercise price of the shares
subject to such Option below the per share exercise price as of the
date
the Option is granted and, except as permitted by Article 12,
no Option may be granted in exchange for, or in connection with,
the
cancellation or surrender of an Option having a higher per share
exercise
price.
|
Section 15.02 |
Awards
Previously Granted.
Except with respect to amendments made pursuant to Section 16.14,
no termination, amendment, or modification of the Plan shall adversely
affect in any material way any Award previously granted pursuant
to the
Plan without the prior written consent of the Participant.
|
Section 16.01 |
No
Rights to Awards.
No Eligible Individual or other person shall have any claim to be
granted
any Award pursuant to the Plan, and neither the Company nor the Committee
is obligated to treat Eligible Individuals, Participants or any other
persons uniformly.
|
Section 16.02 |
No
Stockholders Rights.
Except as otherwise provided herein, a Participant shall have none
of the
rights of a stockholder with respect to shares of Stock covered by
any
Award until the Participant becomes the record owner of such shares
of
Stock.
|
Section 16.03 |
Withholding.
The Company or any Subsidiary shall have the authority and the right
to
deduct or withhold, or require a Participant to remit to the Company,
an
amount sufficient to satisfy federal, state, local and foreign taxes
(including the Participant’s employment tax obligations) required by law
to be withheld with respect to any taxable event concerning a Participant
arising as a result of this Plan. The Committee may in its discretion
and
in satisfaction of the foregoing requirement allow a Participant
to elect
to have the Company withhold shares of Stock otherwise issuable under
an
Award (or allow the return of shares of Stock) having a Fair Market
Value
equal to the sums required to be withheld. Notwithstanding any other
provision of the Plan, the number of shares of Stock which may be
withheld
with respect to the issuance, vesting, exercise or payment of any
Award
(or which may be repurchased from the Participant of such Award within
six
months (or such other period as may be determined by the Committee)
after
such shares of Stock were acquired by the Participant from the Company)
in
order to satisfy the Participant’s federal, state, local and foreign
income and payroll tax liabilities with respect to the issuance,
vesting,
exercise or payment of the Award shall be limited to the number of
shares
which have a Fair Market Value on the date of withholding or repurchase
equal to the aggregate amount of such liabilities based on the minimum
statutory withholding rates for federal, state, local and foreign
income
tax and payroll tax purposes that are applicable to such supplemental
taxable income.
|
Section 16.04 |
No
Right to Employment or Services.
Nothing in the Plan or any Award Agreement shall interfere with or
limit
in any way the right of the Company or any Subsidiary to terminate
any
Participant’s employment or services at any time, nor confer upon any
Participant any right to continue in the employ or service of the
Company
or any Subsidiary.
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Section 16.05 |
Unfunded
Status of Awards.
The Plan is intended to be an “unfunded” plan for incentive compensation.
With respect to any payments not yet made to a Participant pursuant
to an
Award, nothing contained in the Plan or any Award Agreement shall
give the
Participant any rights that are greater than those of a general creditor
of the Company or any Subsidiary.
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Section 16.06 |
Indemnification.
To the extent allowable pursuant to applicable law, each member of
the
Committee or of the Board shall be indemnified and held harmless
by the
Company from any loss, cost, liability, or expense that may be imposed
upon or reasonably incurred by such member in connection with or
resulting
from any claim, action, suit, or proceeding to which he or she may
be a
party or in which he or she may be involved by reason of any action
or
failure to act pursuant to the Plan and against and from any and
all
amounts paid by him or her in satisfaction of judgment in such action,
suit, or proceeding against him or her; provided
he
or she gives the Company an opportunity, at its own expense, to handle
and
defend the same before he or she undertakes to handle and defend
it on his
or her own behalf. The foregoing right of indemnification shall not
be
exclusive of any other rights of indemnification to which such persons
may
be entitled pursuant to the Company’s `Certificate of Incorporation or
Bylaws, as a matter of law, or otherwise, or any power that the Company
may have to indemnify them or hold them
harmless.
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Section 16.07 |
Relationship
to other Benefits.
No payment pursuant to the Plan shall be taken into account in determining
any benefits pursuant to any pension, retirement, savings, profit
sharing,
group insurance, welfare or other benefit plan of the Company or
any
Subsidiary except to the extent otherwise expressly provided in writing
in
such other plan or an agreement
thereunder.
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Section 16.08 |
Expenses.
The expenses of administering the Plan shall be borne by the Company
and
its Subsidiaries.
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Section 16.09 |
Titles
and Headings.
The titles and headings of the Sections in the Plan are for convenience
of
reference only and, in the event of any conflict, the text of the
Plan,
rather than such titles or headings, shall
control.
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Section 16.10 |
Fractional
Shares.
No fractional shares of Stock shall be issued and the Committee shall
determine, in its discretion, whether cash shall be given in lieu
of
fractional shares or whether such fractional shares shall be eliminated
by
rounding up or down as appropriate.
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Section 16.11 |
Limitations
Applicable to Section 16 Persons.
Notwithstanding any other provision of the Plan, the Plan, and any
Award
granted or awarded to any Participant who is then subject to Section
16 of
the Exchange Act, shall be subject to any additional limitations
set forth
in any applicable exemptive rule under Section 16 of the Exchange
Act
(including any amendment to Rule 16b-3 under the Exchange Act) that
are
requirements for the application of such exemptive rule. To the extent
permitted by applicable law, the Plan and Awards granted or awarded
hereunder shall be deemed amended to the extent necessary to conform
to
such applicable exemptive rule.
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Section 16.12 |
Government
and Other Regulations.
The obligation of the Company to make payment of awards in Stock
or
otherwise shall be subject to all applicable laws, rules, and regulations,
and to such approvals by government agencies as may be required.
The
Company shall be under no obligation to register pursuant to the
Securities Act, as amended, any of the shares of Stock paid pursuant
to
the Plan. If the shares paid pursuant to the Plan may in certain
circumstances be exempt from registration pursuant to the Securities
Act,
as amended, the Company may restrict the transfer of such shares
in such
manner as it deems advisable to ensure the availability of any such
exemption.
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Section 16.13 |
Governing
Law.
The Plan and all Award Agreements shall be construed in accordance
with
and governed by the laws of the State of
Delaware.
|
Section 16.14 |
Section
409A.
To the extent that the Committee determines that any Award granted
under
the Plan is subject to Section 409A of the Code, the Award Agreement
evidencing such Award shall incorporate the terms and conditions
required
by Section 409A of the Code. To the extent applicable,
the Plan and Award Agreements shall be interpreted in accordance
with
Section 409A of the Code and Department of Treasury regulations and
other
interpretive guidance issued thereunder, including without limitation
any
such regulations or other guidance that may be issued after the Effective
Date. Notwithstanding any provision of the Plan to the contrary,
in the
event that following the Effective Date the Committee determines
that any
Award may be subject to Section 409A of the Code and related Department
of
Treasury guidance (including such Department of Treasury guidance
as may
be issued after the Effective Date), the Committee may adopt such
amendments to the Plan and the applicable Award Agreement or adopt
other
policies and procedures (including amendments, policies and procedures
with retroactive effect), or take any other actions, that the Committee
determines are necessary or appropriate to (a) exempt the Award from
Section 409A of the Code and/or preserve the intended tax treatment
of the
benefits provided with respect to the Award, or (b) comply with the
requirements of Section 409A of the Code and related Department of
Treasury guidance and thereby avoid the application of any penalty
taxes
under such Section.
|
1.
Call
toll
free 1-866-395-9276
on
a Touch-Tone Phone. There is NO
CHARGE
to
you for this call.
|
2.
Via
the Internet at and
follow the instructions.
|
3.
Mark, sign and date your proxy card and return it promptly in the
enclosed
envelope.
|
1.Election
of Directors:
01
Edward A. Dohring, 02 Jeffrey M. Krauss, 03 H. Duane Wadsworth
and 04
Thomas R Mika.
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FOR
[
]
|
WITHHOLD
ALL
[
]
|
FOR
ALL
EXCEPT
[
]
|
||
INSTRUCTION:
To withhold authority to vote for any nominee(s), mark “For All Except”
and write that nominee(s’) name(s) or number(s) in the space provided
below.
_____________________________________________________
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|||||
2.Proposal
to approve an
amendment to the Company’s Amended and Restated Certificate of
Incorporation, as amended, pursuant to which the total number of
authorized shares of capital stock will be reduced from 205 million
to 55
million and the total number authorized shares of common stock
will be
reduced from 200 million to 50 million
|
FOR
[ ]
|
AGAINST
[ ]
|
ABSTAIN
[ ]
|
||
3.Proposal
to approve the 2007 Incentive Award Plan
|
FOR
[ ]
|
AGAINST
[ ]
|
ABSTAIN
[ ]
|
||
4.Proposal
to ratify the appointment of Burr, Pilger & Mayer LLP as our
Independent Registered Public Accounting Firm for the fiscal year
ending
March 31, 2008.
|
FOR
[ ]
|
AGAINST
[ ]
|
ABSTAIN
[ ]
|
||
5.In
their discretion, the proxies are authorized to vote upon
such other business as may properly come before the Annual Meeting
and any
and all adjournments or postponements of the Annual Meeting.
|
1. |
By
Mail;
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