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EXHIBIT 10.19
AMENDED AND RESTATED AGREEMENT
Amended and Restated Agreement made as of the 20th day of August, 1996
between ▇▇▇▇▇▇ ▇▇▇▇▇ (the "Director") and ▇▇▇▇▇ ▇▇▇▇▇, Inc. (the "Company").
WHEREAS, the Director is a member of the Board of Directors of the
Company and the Company desires to reward the Director for his services to the
Company by allowing him to participate in accordance with and subject to the
terms of this Agreement in an increase in the fair market value per share of the
Common Stock of the Company; and
WHEREAS, the Director and the Company are parties to that certain
Agreement dated as of August 15, 1993, which the parties desire to amend and
restate as set forth in this Agreement.
NOW, THEREFORE, in consideration of the services rendered and to be
rendered by the Director and for other good and valuable consideration, the
Company and the Director hereby agree as follows:
1. Definitions. The following terms shall have the following definitions
for purposes of this Agreement.
A. "Base Price Per Share" shall mean $14.94, the mean of the high
and low sales prices of a Share of Common Stock on the New York Stock Exchange
on September 15, 1993, as such amount may be adjusted as provided herein.
B. "Common Stock" shall mean shares of common stock, $.000000005
par value per share, of the Company, any common stock into which such common
stock may be changed and any common stock resulting from a reclassification of
such common stock.
C. "Director Units" means the 10,000 units granted to the
Director pursuant to this Agreement, as such number of units may be adjusted as
provided herein.
D. "Exercise Payment" shall mean the amount equal to the product
of (i) the number of exercised Director Units multiplied by (ii) the amount, if
any, by which the Fair Market Value Per Share of Common Stock on the date of
exercise exceeds the Base Price Per Share.
E. "Fair Market Value Per Share" shall mean the value, on a
particular date, of a share of Common Stock determined as follows:
(i) If the Common Stock is listed or admitted to trading
on such date on the New York Stock Exchange, the mean of the high and
low sales prices of
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a Share on such date as reported in the principal consolidated
transaction reporting system with respect to securities listed or
admitted to trading on the New York Stock Exchange; or
(ii) If the Common Stock is not listed or admitted to
trading on the New York Stock Exchange but is listed or admitted to
trading on another national exchange, the mean of the high and low sales
prices of a Share on such date as reported in the principal consolidated
transaction reporting system with respect to securities listed or
admitted to trading on such national exchange; or
(iii) If the Common Stock is not listed or admitted to
trading on any national exchange, the mean of the closing bid and asked
prices (or, if available, the high and low sales prices) of a Share on
such date in the over-the-counter market, as reported by the National
Association of Securities Dealers, Inc. Automatic Quotation System, the
National Quotation Bureau or such other system then in use with regard
to the Common Stock or, if on such date the stock of the Company is
publicly traded but not quoted by any such system, the mean of the
closing bid and asked prices of a Share on such date as furnished by a
professional market maker making a market in the Common Stock;
(iv) If in (i), (ii) or (iii) above, as applicable, there
were no sales on such date reported as provided above, the respective
prices on the most recent prior day on which a sale of a Share took
place; or
(v) If the Common Stock is not publicly traded, such
amount set by the Board of Directors of the Company in good faith.
F. "Share" shall mean a share of Common Stock.
2. Exercise and Payment of Director Units. (a) The Director Units
granted to the Director herein may be exercised at any time and from time to
time during the period beginning on the date hereof and ending on the first
anniversary of the date of termination of the Director's status as a member of
the Board of Directors of the Company as a result of the Director's death,
disability, retirement, resignation, removal or otherwise. The Director (or the
permitted transferee of the Director Units under Section 4 hereof) may exercise
the Director Units granted herein in whole or in part by written notice
requesting the Exercise Payment delivered to the Company which notice shall
include the number of Director Units exercised. In the event any Director Unit
is exercised by any person who is a permitted transferee
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under Section 4 hereof, the notice of exercise must be accompanied by
appropriate proof of the right of such transferee to exercise such Director
Unit.
(b) Upon any exercise of Director Units granted to the Director
herein, the Company shall deliver to the Director, within thirty (30) days after
the date of exercise, a check for the Exercise Payment due to the Director
pursuant to such exercise.
3. Adjustment. (a) If the Company shall pay to the holders of Shares a
dividend payable in Shares of Common Stock or shall subdivide the outstanding
Shares of Common Stock into a greater number of Shares or shall combine the
outstanding Shares of Common Stock into a smaller number of Shares, the Director
Units and the Base Price Per Share shall be proportionately adjusted as follows:
(i) If the Company pays a dividend in Shares of Common
Stock, the Base Price Per Share in effect at the opening of business on the day
following the date fixed for the determination of stockholders entitled to
receive such dividend shall be reduced by multiplying such Base Price Per Share
by a fraction, the numerator of which shall be the number of Shares of Common
Stock outstanding at the close of business on the date fixed for such
determination and the denominator shall be the sum of such number of Shares and
the total number of Shares constituting such dividend or other distribution,
such reduction to become effective immediately after the opening of business on
the day following the date fixed for such determination;
(ii) In case outstanding Shares of Common Stock shall be
subdivided into a greater number of Shares of Common Stock, the Base Price Per
Share in effect at the opening of business on the day following the day upon
which such subdivision becomes effective shall be proportionately reduced, and,
conversely, in case outstanding Shares of Common Stock shall each be combined
into a smaller number of Shares of Common Stock, the Base Price Per Share in
effect at the opening of business on the day following the day upon which such
combination becomes effective shall be proportionately increased, such reduction
or increase, as the case may be, to become effective immediately after the
opening of business on the day following the day upon which such subdivision or
combination becomes effective;
(iii) Upon each adjustment of the Base Price Per Share
pursuant to this subparagraph (a), the number of Director Units held by the
Director immediately prior to such adjustment shall be adjusted to a number of
Director Units equal to the number of Director Units held by the Director
immediately prior to such adjustment multiplied by a fraction, the numerator of
which shall be the Base Price Per Share in effect immediately prior to such
adjustment and the denominator of which shall be
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the Base Price Per Share in effect immediately after such adjustment.
(b) Except as expressly provided in subparagraph (a) above, the
issuance by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, for cash, property, labor or
services, upon direct sale, upon the exercise of rights or warrants to subscribe
therefor, or upon conversion of shares or other securities, and in any case
whether or not for fair value, shall not affect, and no adjustment by reason
thereof shall be made with respect to, the Director Units or Base Price Per
Share.
4. Nontransferability. No rights under this Agreement shall be
transferable by the Director otherwise than by will or under applicable laws of
descent and distribution. No rights hereunder shall be assigned, negotiated,
pledged, or hypothecated in any way (whether by operation of law or otherwise),
and no rights hereunder shall be subject to execution, attachment or similar
process. Upon any transfer, assignment, negotiation, pledge or hypothecation of
any rights hereunder, or in the event of any levy upon any rights hereunder by
reason of any execution or similar process, contrary to the provisions hereof,
all rights hereunder shall immediately become null and void.
5. Notices. Any notice, request, demand or other communication required
or permitted hereunder shall be in writing and deemed to be properly given when
delivered personally, by commercial courier, the United States mail or by
telegraph, fax or telecopier transmission to the parties at the following
addresses, or to such other address as a party may designate in accordance with
the provisions of this Section 5:
If to the Company:
▇▇▇▇▇ ▇▇▇▇▇, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
If to the Director:
▇▇▇▇▇▇ ▇▇▇▇▇
Proskauer ▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
6. Benefit of Agreement; No Rights as Stockholder. This Agreement shall
inure to the benefit of and be binding upon the parties hereto, the successors
and assigns of the Company and the executors, administrators and permitted
transferees of the
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Director. Director shall not have any rights as a stockholder as a result of
this Agreement.
7. Applicable Law. This Agreement shall be governed by and construed
under the laws of the State of California.
8. Headings; Counterparts. The headings used in this Agreement are not a
part of this Agreement and shall not be used in construing it. This Agreement
may be signed in counterpart copies, all of which taken together shall
constitute one original.
9. Severability. If any provision of this Agreement shall be held to be
invalid or unenforceable, such provision shall be construed and enforced as if
it had been more narrowly drawn so as not to be invalid or unenforceable, and
such invalidity or unenforceability shall not affect or render invalid or
unenforceable any other provision of this Agreement.
10. Entire Agreement. This Agreement sets forth the parties' final and
entire agreement, and supersedes any and all prior understandings, with respect
to the subject matter hereof. This Agreement may not be modified or amended by
oral agreement, but only by an agreement in writing signed by the parties and
any waiver of any of the terms hereof must be in writing signed by the party to
be charged.
Executed as of the day and year first above written.
▇▇▇▇▇ ▇▇▇▇▇, INC.
By: /s/ C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
President and Chief Executive
Officer
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇
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