x
|
Filed
by the Registrant
|
o
|
Filed
by a Party other than the
Registrant
|
o
|
Preliminary
Proxy Statement
|
o
|
Confidential,
for Use of the Commission Only (as permitted by Rule 14a-6(e)
(2)
|
x
|
Definitive
Proxy Statement
|
o
|
Definitive
Additional Materials
|
o
|
Soliciting
Material under Sec. 240.14a-11 (c) or Sec.
240.14a-12
|
x
|
No
fee required
|
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 in 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)
|
Amount
Previously Paid:
|
|
2)
|
Form,
Schedule or Registration Statement
No.:
|
|
3)
|
Filing
Party:
|
|
4)
|
Date
Filed:
|
Sincerely,
|
|
/s/
Dan Mondor
|
|
Dan
Mondor
|
|
President
and Chief Executive Officer
|
|
(1)
|
To
elect six (6) directors to serve until the next Annual Meeting of
Stockholders;
|
|
(2)
|
To
ratify the appointment by the Audit Committee of the Board of Directors of
Deloitte & Touche LLP as Concurrent’s independent registered public
accountants for the fiscal year ending June 30,
2010;
|
|
(3)
|
To
approve amendments to the Concurrent Computer Corporation Second Amended
and Restated 2001 Stock Option
Plan:
|
|
a.
|
to
increase the number of shares authorized by 500,000 from 1,100,000 to
1,600,000 (at the time of mailing, 20,252 of the 1,100,000 authorized were
available for grant),
|
|
b.
|
to
require that no more than 5% of the shares authorized will be granted with
performance restrictions that can all lapse within one year,
and
|
|
c.
|
to
require stockholder approval for any repricing of previously granted stock
options; and
|
|
(4)
|
To
transact such other business as may properly come before the meeting or
any adjournment of the meeting.
|
By
order of the Board of Directors,
|
|
/s/
Kirk L. Somers
|
|
Kirk
L. Somers
|
|
Executive
Vice President and Secretary
|
|
a.
|
to
increase the number of shares authorized by 500,000 from 1,100,000 to
1,600,000,
|
|
b.
|
to
require that no more than 5% of the shares authorized will be granted with
performance restrictions that can all lapse within one year,
and
|
|
c.
|
to
require stockholder approval for any repricing of previously granted stock
options
|
|
·
|
vote
via the internet or by telephone;
|
|
·
|
properly
submit a proxy (even if you do not provide voting instructions);
or
|
|
·
|
attend
the meeting and vote in person.
|
|
·
|
sending
written notice to the corporate secretary at 4375 River Green Parkway,
Suite 100, Duluth, Georgia 30096 so that it is received prior to October
21, 2009;
|
|
·
|
voting
again over the Internet prior to 11:59 p.m., eastern time on October 20,
2009;
|
|
·
|
signing
another proxy with a later date and sending it so that it is received by
Concurrent’s corporate secretary prior to October 21, 2009;
or
|
|
·
|
voting
at the meeting.
|
|
·
|
vote
FOR the election of the six nominees for
director;
|
|
·
|
WITHHOLD
AUTHORITY to vote for the six nominees;
or
|
|
·
|
WITHHOLD
AUTHORITY to vote for one or more of the nominees and vote FOR the
remaining nominees.
|
|
·
|
vote
FOR ratification;
|
|
·
|
vote
AGAINST ratification; or
|
|
·
|
ABSTAIN
from voting on the proposal.
|
|
·
|
vote
FOR the proposal;
|
|
·
|
vote
AGAINST the proposal; or
|
|
·
|
ABSTAIN
from voting on the proposal.
|
Director
|
Compensation
|
Audit
|
Nominating
|
Executive
|
Charles
Blackmon
|
Chair
|
X
|
X
|
|
Larry
L. Enterline
|
X
|
Chair
|
||
C.
Shelton James
|
X
|
Chair
|
X
|
|
Steve
G. Nussrallah
|
X
|
Chair
|
||
Dan
Mondor
|
X
|
|||
Krish
Panu
|
X
|
|
·
|
to
review Concurrent’s financial statements contained in filings with the
SEC;
|
|
·
|
to
pre-approve all audit and non-audit services to be provided by
Concurrent’s independent registered public
accountants;
|
|
·
|
to
review matters relating to the examination of Concurrent’s financial
statements by its independent registered public accountants, accounting
procedures and controls; and
|
|
·
|
to
appoint Concurrent’s independent registered public
accountants.
|
|
·
|
to
select potential candidates for director and recommend selected candidates
to the full Board;
|
|
·
|
to
develop and recommend to the Board a self-evaluation process for the Board
and its committees and oversee such evaluation process;
and
|
|
·
|
to
make recommendations to the Board concerning the structure and membership
of other Board committees.
|
|
·
|
to
review and approve compensation (salary, bonus, and long-term and
short-term incentives) of Named Executive Officers and senior
management;
|
|
·
|
to
oversee the administration of Concurrent’s incentive
compensation plans, equity-based plans and other employee benefit plans,
subject to certain limitations; and
|
|
·
|
to
annually review and approve the annual incentive bonus
structure.
|
|
1.
|
Submit
recommendations in writing to the corporate secretary at Concurrent’s
corporate headquarters.
|
|
2.
|
Include
in the submission the following information concerning the recommended
individual for the Committee to
consider:
|
|
·
|
age;
|
|
·
|
business
address and residence address of such
person;
|
|
·
|
five-year
employment history, including employer names and business
descriptions;
|
|
·
|
the
class and number of shares of Concurrent which are beneficially owned by
such person;
|
|
·
|
ability
of the individual to read and comprehend financial
statements;
|
|
·
|
the
information required by Item 404 of SEC Regulation S-K (certain
relationships and related
transactions);
|
|
·
|
board
memberships (if any);
|
|
·
|
any
other information relating to such person that is required to be disclosed
in solicitations or proxies for election of directors, or is otherwise
required, in each case pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”);
and
|
|
·
|
a
statement supporting the nominating stockholder’s view that the
recommended individual possesses the minimum qualifications prescribed by
the Nominating Committee for
nominees.
|
|
3.
|
Include
with the submission a written consent of the individual to be interviewed
by the Nominating Committee and to stand for election if nominated and to
serve if elected.
|
|
4.
|
Include
in the submission the following information concerning the stockholder (or
group of stockholders) recommending the individual for the Nominating
Committee to consider:
|
|
·
|
the
name and address, as they appear on Concurrent’s books, of such
stockholder or stockholders; and
|
|
·
|
the
class and number of shares of Concurrent which are beneficially owned by
such stockholder or stockholders.
|
|
5.
|
The
nominating recommendation must state the relationship between the proposed
nominee and the recommending stockholder and any agreements or
understandings between the nominating stockholder and the nominee
regarding the nomination.
|
|
·
|
the
highest personal and professional ethics, integrity and
values;
|
|
·
|
business
or professional knowledge and experience that will contribute to the
effectiveness of the Board and the committees of the
Board;
|
|
·
|
sound
judgment;
|
|
·
|
any
potential conflicts of interest;
and
|
|
·
|
demonstrated
professional achievement.
|
|
·
|
consent
to stand for election if nominated and to serve if elected;
and
|
|
·
|
devote
sufficient time to carrying out his or her duties and responsibilities
effectively.
|
|
·
|
at
least a majority of the Board must be independent as determined by the
Board under the Nasdaq listing
standards;
|
|
·
|
at
least one member of the Board should have the qualifications and skills
necessary to be considered an “audit committee financial expert,” as
defined by the rules of the SEC;
and
|
|
·
|
at
least three directors must meet the requirements for Audit Committee
membership required by the Nasdaq listing standards and the
SEC.
|
Arris Group,
Inc.
|
SCM Microsystems,
Inc.
|
C-COR,
Inc.
|
Terayon,
Inc.
|
Harmonic
Inc.
|
Wind River Systems,
Inc.
|
SeaChange
International, Inc.
|
BigBand Networks,
Inc.
|
Mercury Computer
Systems
|
SeaChange
International, Inc.
|
||
Harmonic
Inc.
|
Numerex
Corp.
|
Video Display
Corporation
|
||
Hauppauge Digital,
Inc.
|
OpenTV
Corp.
|
Wind River Systems,
Inc.
|
||
Innotrac
Corporation
|
SCM Microsystems,
Inc.
|
|
·
|
3,275
shares of restricted stock with the restrictions lapsing on 3,000 shares
on the first anniversary, 150 shares on the second anniversary, and 125
shares on the third anniversary. Any shares on which the
restrictions have not yet lapsed will be forfeited upon a director’s
departure.
|
|
·
|
1,000
performance shares with restrictions lapsing over three years under the
same conditions as the performance shares granted to the Named Executive
Officers pursuant to the fiscal 2009 grants as described
below.
|
Name
|
Fees
Earned or Paid in Cash
($)
|
Stock
Awards
($)
(1)
|
Total
($)
|
|||||||||
Steve
G. Nussrallah (2)
|
$ | 68,500 | $ | 13,444 | $ | 81,944 | ||||||
Charles
Blackmon (2)
|
52,000 | 13,444 | 65,444 | |||||||||
Larry
L. Enterline (2)
|
38,000 | 13,444 | 51,444 | |||||||||
C.
Shelton James (2)
|
52,000 | 13,444 | 65,444 | |||||||||
Krish
Panu (3)
|
20,500 | 0 | 20,500 |
|
(1)
|
The
amounts in this column reflect the dollar amount recognized for financial
statement reporting purposes in fiscal year 2009, determined in accordance
with the Financial Accounting Standards Board’s Statement of Financial
Accounting Standard (“FAS”) No. 123 (revised), Share-Based Payment
(“FAS 123R”). However, pursuant to SEC rules these values are
not reduced by an estimate for the probability of
forfeiture. See Note 11 of Notes to Consolidated Financial
Statements set forth in our Annual Report on Form 10-K for fiscal year
2009 for the assumptions used in determining the value of such
awards. The grant date fair value of fiscal year 2009 awards
based on FAS 123R was $12,740 per non-employee director, or $50,960 in
aggregate.
|
|
(2)
|
As
of June 30, 2009, the aggregate number of outstanding restricted stock
awards, held by the non-employee directors were, respectively, as follows:
Mr. Nussrallah, 4,575; Mr. Blackmon 4,575; Mr. Enterline, 4,575; and Mr.
James, 4,575.
|
|
(3)
|
Mr.
Krish Panu joined the Board effective November 13, 2008. Mr.
Panu is a director of the Galleon Group, a former shareholder of
Concurrent. As a result, Mr. Panu has not accepted any stock or
option grants to date to avoid any perceived conflicts of
interest.
|
|
·
|
pay
salaries that are competitive and attract, retain, and motivate a highly
competent executive team;
|
|
·
|
provide
market-based bonus programs that link corporate performance and total
executive compensation; and
|
|
·
|
align
executives’ financial interests with the creation of stockholder value by
providing long-term incentive plans subject to vesting over time and/or
performance-based incentives tied to meaningful and quantifiable
performance metrics.
|
|
·
|
the
compensation packages of executive officers in similar positions at a
comparable group of peer companies based on reported and survey
information as described below;
|
|
·
|
the
experience and contribution levels of the individual executive officer;
and
|
|
·
|
advice
received from compensation
consultants.
|
BigBand
Networks, Inc
|
|
Mercury
Computer Systems
|
|
SeaChange
International, Inc.
|
Harmonic
Inc.
|
|
Numerex
Corp.
|
|
Video
Display Corporation
|
Hauppauge
Digital, Inc.
|
|
OpenTV
Corp.
|
Wind
River Systems, Inc.
|
|
Innotrac
Corporation
|
|
SCM
Microsystems, Inc.
|
|
·
|
The ERI Survey is based
upon over 20 million measures and includes compensation data from 14,000
companies that report through the SEC, third-party surveys, and annual
reports and information circulars released by companies in the United
States, Canada, European Union and United Kingdom. The ERI
Survey reports results based upon (1) calculations using statistical
analysis, (2) size-sensitive information such as assets, revenue and
number of employees in reporting organizations, (3) industry
classification based upon an enhanced Standard Industrial Classification
(SIC) code, and (4) geographical
location.
|
|
·
|
The Culpepper Survey
data is based upon independent data from 1,353 companies and includes
9,542 executive positions. Further, the information can
be subdivided based on percentile rankings, company size, industry group
and geographic zones.
|
|
·
|
Achievement
Below Target. If revenue and operating income for the year were
below the target, but not below the threshold, the bonus payout for the
period would decrease in an approximately linear fashion from the
target. If results were below the threshold, then there would
be no payout.
|
|
·
|
Achievement
At Target. If revenue and operating income results for the year
matched the targets, the bonus payout for the year would be 100% of the
target bonus payable.
|
|
·
|
Achievement
Above Target. If revenue and operating income for the year exceeded
the targets, the bonus payout would increase in an approximately linear
fashion from the target to the maximum bonus payable. There was
no additional increase in the bonus payout if results exceeded the maximum
goals for the period.
|
|
·
|
The
first criterion is based on the AIP for fiscal years 2009, 2010, and
2011. The restrictions will lapse in up to one-third of the
performance shares in each year based on the percentage of target bonus
per the AIP that is achieved in that year. If 100% of target
bonus is achieved, then the restrictions will lapse on 1/3 of the
performance shares granted. If 52% of the target bonus in the
AIP is achieved, then the restrictions will lapse on 52% of one-third of
the performance shares granted. There will be a catch up
provision in years two and three if less than 100% of AIP target bonus is
achieved in the prior year but greater than 100% of target bonus is
achieved in the next year. In no case can more than 100% of the
initial quantity be earned. The restrictions in years two and
year three will be tied to the fiscal year 2010 AIP and the fiscal year
2011 AIP, respectively. There will be no catch-up for year
three if the year three goals are not met. For fiscal year
2010, 66.81% of the AIP was achieved so the restrictions will lapse on
66.81% of one-third of the performance shares
granted.
|
|
·
|
The
second criterion is tied to stock price. The base price is the
closing stock price on the grant date of October 28, 2008 (“Initial Date”)
which was $2.98 (“Initial Price”). If the performance
requirements described in the bullet point above are not achieved, but the
stock price has appreciated at least 25% per year, in aggregate, by
October 28, 2011, then the restrictions of the performance shares will
lapse on October 28, 2011 (“Measurement Date”). The stock price
for the three year measurement will be the average stock price for the 30
days immediately preceding the Measurement Date. Since the
Initial Price was $2.98 the 30 day average stock price prior to the
Measurement Date would have to be at least $5.82 ($2.98 X 1.25 = $3.73 X
1.25 = $4.66 X 1.25 = $5.82) for the restrictions to lapse. If
the stock price was flat for the first two years, but increased the third
year such that the 30 day average prior to the Measurement Date is over
$5.82, the restrictions would lapse. This criterion operates on
an “all or nothing” basis. Thus, if the aggregate stock
appreciation on the Measurement Date is less than 25% per year, then no
restrictions will lapse per this criterion. If the aggregate
stock appreciation on the Measurement Date is more than 25% per year, then
all remaining restrictions will lapse per this
criterion.
|
Named Executive Officer
|
Restricted Shares Granted
|
Performance Shares Granted
|
||||||
Dan
Mondor
|
11,813 | 45,104 | ||||||
Emory
O. Berry
|
5,651 | 21,577 | ||||||
Kirk
L. Somers
|
4,789 | 18,286 |
|
·
|
The
first criterion is based on the AIP for fiscal years 2010, 2011 and
2012. The restrictions will lapse in up to one-third of the
performance shares in each year based on the percentage of target bonus
per the AIP that is achieved in that year. If 100% of target
bonus is achieved, then the restrictions will lapse on 1/3 of the
performance shares granted. If 52% of the target bonus in the
AIP is achieved, then the restrictions will lapse on 52% of one-third of
the performance shares granted. There will be a catch up
provision in years two and three if less than 100% of AIP target bonus is
achieved in the prior year but greater than 100% of target bonus is
achieved in the next year. In no case can more than 100% of the
initial quantity be earned. The restrictions in years two and
year three will be tied to the fiscal year 2011 AIP and the fiscal year
2012 AIP, respectively. There will be no catch-up for year
three if the year three goals are not
met.
|
|
·
|
The
second criterion is tied to stock price. The base price is the
closing stock price on the grant date of August 27, 2009, (“Initial Date”)
which was $4.56 (“Initial Price”). If the performance
requirements described in the bullet point above are not achieved, but the
stock price has appreciated at least 25% per year, in aggregate, by August
27, 2012, then the restrictions of the performance shares will lapse on
August 27, 2012 (“Measurement Date”). The stock price for the
three year measurement will be the average stock price for the 30 days
immediately preceding the Measurement Date. Since the Initial
Price was $4.56 the 30 day average stock price prior to the Measurement
Date would have to be at least $8.91 ($4.56 X 1.25 = $5.70 X 1.25 = $7.13
X 1.25 = $8.91) for the restrictions to lapse. If the stock
price was flat for the first two years, but increased the third year such
that the 30 day average prior to the Measurement Date is over $8.91, the
restrictions would lapse. This criterion operates on an “all or
nothing” basis. Thus, if the aggregate stock appreciation on
the Measurement Date is less than 25% per year, then no restrictions will
lapse per this criterion. If the aggregate stock appreciation
on the Measurement Date is more than 25% per year, then all remaining
restrictions will lapse per this
criterion.
|
Compensation
Committee of the Board
|
|
Charles
Blackmon, Chairman
|
|
C.
Shelton James
|
|
Steve
G. Nussrallah
|
|
September
9, 2009
|
Name
and
Principal Position
|
Fiscal
Year
|
Salary
($)
|
Stock
Awards (1) ($)
|
Option
Awards (2) ($)
|
Non-Equity
Incentive Plan Compensation
($)
|
Bonus ($)
|
All
Other Compensation ($)
|
Total ($)
|
||||||||||||||||||||||
Dan
Mondor (3)
|
2009
|
370,000 | 54,713 | 72,835 | 160,671 | 38,730 | (6) | 696,949 | ||||||||||||||||||||||
President
and Chief Executive Officer
|
2008
|
103,885 | 9,126 | 11,210 | - | 15,323 | 2,438 | 141,982 | ||||||||||||||||||||||
Kirk
L. Somers (4)
|
2009
|
250,000 | 5,902 | 58,544 | 66,807 | 7,500 | 9,011 | (7) | 397,764 | |||||||||||||||||||||
E.V.P.,
General Counsel and Secretary
|
2008
|
250,000 | 10,358 | 46,964 | 148,534 | - | 16,125 | 471,981 | ||||||||||||||||||||||
Emory
O. Berry (5)
|
2009
|
300,417 | 14,587 | 30,575 | 90,329 | 6,552 | (8) | 442,460 | ||||||||||||||||||||||
E.V.P.
of Operations and Chief Financial Officer
|
2008
|
342,864 | - | 37,490 | - | - | - | 380,354 |
(1)
|
The
amount reported in this column for each Named Executive Officer represents
the dollar value of the performance or restricted stock awards as
recognized for financial statement reporting purposes in the applicable
fiscal year, determined in accordance with FAS 123R. However,
pursuant to SEC rules these values are not reduced by an estimate for the
probability of forfeiture. See Note 11 of the Notes to
Consolidated Financial Statements set forth in our Annual Report on Form
10-K for fiscal year 2009 for the assumptions used to value these
awards.
|
(2)
|
The
amount reported in this column for each Named Executive Officer represents
the dollar value of stock options granted to the Named Executive Officers
prior to fiscal year 2008 as recognized for financial statement reporting
purposes in fiscal year 2009, determined in accordance with FAS
123R. However, pursuant to SEC rules these values are not
reduced by an estimate for the probability of forfeiture. See
Note 11 of the Notes to Consolidated Financial Statements set forth in our
Annual Report on Form 10-K for fiscal year 2009 for the assumptions used
to value these awards.
|
(3)
|
The
amount reflected in the Bonus column is a discretionary amount granted to
Mr. Mondor in fiscal year 2008 equivalent to 2/12th
of the prior CEO’s calculated
bonus.
|
(4)
|
The
amount reflected in the Bonus column is a discretionary payment in lieu of
merit increase awarded to Mr. Somers in August of
2008.
|
(5)
|
Mr.
Berry’s annual salary was $295,000 but for fiscal year 2009, he received
11/12th
of this salary and one month of payment as a full-time consultant for
TechCFO, all of which aggregated to
$300,417.
|
(6)
|
Includes
matching contributions to the company-sponsored 401(k) plan in the amount
of $9,045 and a gain of $29,325 from shares that vested from the Stock
Option Plan.
|
(7)
|
Includes
matching contributions to the company-sponsored 401(k) plan in the amount
of $7,023 and a gain of $1,988 from shares that vested from the Stock
Option Plan.
|
(8)
|
Includes
matching contributions to the company-sponsored 401(k) plan in the amount
of $6,552.
|
Estimated Possible Payouts Under Non-Equity
Incentive Plan Awards (1)
|
All Other Stock Awards: Number of Shares of stock
or units (#) (2)
|
All Other Option Awards: Number of Securities
Underlying Options (#) (2)
|
Exercise or Base Price of Option Awards
($/Sh)
|
Grant Date Fair Value of Option Awards ($)
(3)
|
||||||||||||||||||||||||||||
Name
|
Grant Date
|
Threshold ($)
|
Target ($)
|
Maximum ($)
|
||||||||||||||||||||||||||||
Dan
Mondor
|
4,810 | 240,500 | 360,750 | |||||||||||||||||||||||||||||
Kirk
L. Somers
|
2,000 | 100,000 | 150,000 | |||||||||||||||||||||||||||||
10-28-08 | 20,993 | 62,559 | ||||||||||||||||||||||||||||||
Emory
O. Berry
|
2,704 | 135,208 | 202,812 | |||||||||||||||||||||||||||||
08-01-08 | 20,000 | 6.40 | 82,260 | |||||||||||||||||||||||||||||
08-01-08 | 10,000 | - | 64,000 |
(1)
|
The
amounts shown in these columns represent the Named Executive Officers’
annual incentive opportunity under the AIP. See “Compensation
Discussion and Analysis— Fiscal 2009 Annual Bonuses” for more information
regarding this plan. The amounts actually paid are disclosed in
the Summary Compensation Table.
|
(2)
|
All
grants were made under the Second Amended and Restated 2001 Stock Option
Plan.
|
(3)
|
Reflects
the grant date fair value of non-qualified stock options as determined
under FAS 123R. Regardless of the value placed on a stock
option on the date of grant, the actual value of the option will depend on
the market value of our common stock on the date of exercise. A
discussion of the assumptions used in calculating these values may be
found in Note 11 of the Notes to Consolidated Financial Statements set
forth in our Annual Report on Form 10-K for fiscal year
2009.
|
Option Awards
|
Stock Awards
|
|||||||||||||||||||||||||||||||||||
Name
|
Number of Securities Underlying Unexercised
Options
(#)
Exercisable
|
Number of Securities Underlying Unexercised
Options
(#) (3)
Unexercisable
|
Option Exercise Price
($)
|
Option Grant Date
|
Option Expiration Date
|
Number of Shares or Units of Stock That Have Not
Vested
(#)
|
Market Value of Shares or Units of Stock That Have
Not Vested
($) (1)
|
Equity Incentive Plan Awards: Number of Unearned
Shares, Units or Other Rights That Have Not Vested
(#) (2)
|
Equity Incentive Plan Awards: Market or Payout
Value of Unearned Shares, Units or Other Rights That Have Not
Vested
($) (1) (2)
|
|||||||||||||||||||||||||||
Dan
Mondor
|
15,001 | 44,999 | 7.30 | 04-23-08 | 04-23-2018 | 22,500 | 128,250 | |||||||||||||||||||||||||||||
Kirk
L. Somers
|
3,000 | 140.05 | 11-26-01 | 11-26-2011 | ||||||||||||||||||||||||||||||||
250 | 68.50 | 04-30-02 | 04-30-2012 | |||||||||||||||||||||||||||||||||
565 | 21.20 | 04-28-03 | 04-28-2013 | |||||||||||||||||||||||||||||||||
565 | 30.70 | 08-25-03 | 08-25-2013 | |||||||||||||||||||||||||||||||||
565 | 45.60 | 10-27-03 | 10-27-2013 | |||||||||||||||||||||||||||||||||
565 | 49.40 | 02-02-04 | 02-02-2014 | |||||||||||||||||||||||||||||||||
2,500 | 22.10 | 01-28-05 | 01-28-2015 | |||||||||||||||||||||||||||||||||
5,506 | 21.50 | 06-22-05 | 06-22-2015 | |||||||||||||||||||||||||||||||||
5,106 | 5,104 | 13.50 | 08-14-06 | 08-14-2016 | ||||||||||||||||||||||||||||||||
3,308 | 9,923 | 14.00 | 08-20-07 | 08-20-2017 | ||||||||||||||||||||||||||||||||
10-29-08 | 10-29-2018 | 20,993 | 119,660 | |||||||||||||||||||||||||||||||||
Emory
O. Berry
|
0 | 20,000 | 6.40 | 08-01-08 | 08-01-2018 | 10,000 | 57,000 | |||||||||||||||||||||||||||||
5,000 | 5,000 | 15.20 | 03-08-07 | 03-08-2017 | ||||||||||||||||||||||||||||||||
2,250 | 6,750 | 13.30 | 09-12-07 | 09-12-2017 |
(1)
|
The
amounts shown in these columns reflect the market value of the unvested
shares based on the closing market price on June 30, 2009, (the last
business day of fiscal year 2009) of $5.70 multiplied by the number of
shares.
|
(2)
|
The
restrictions on the shares reported in this column lapse when performance
goals based on revenue and operating income and stock price are
achieved.
|
(3)
|
The
options vest and become exercisable in equal installments on the first,
second, third and fourth anniversaries of the grant
date.
|
|
Stock Awards
|
|||||||
Name
|
Number of Shares Acquired on Vesting
(#)
|
Value Realized on Vesting
($)
|
||||||
Dan
Mondor
|
7,500 | 29,325 | (1) | |||||
Kirk
L. Somers
|
554 | 1,989 | (2) | |||||
Emory
O. Berry
|
- | - | ||||||
|
|
(1)
|
The
amount reported represents the market value of the stock on the day the
stock vested which was April 23, 2009
($3.91)
|
|
(2)
|
The
amount reported represents the market value of the stock on the day the
stock vested which was October 25, 2008
($3.59)
|
|
·
|
directly
by us without Due Cause,
|
|
·
|
in
certain circumstances constructively by us,
or
|
|
·
|
in
the case of Messrs. Mondor and Berry, within one year of a Change in
Control (as defined below),
|
|
(a)
|
committed
a willful serious act to enrich himself at our expense or has been
convicted of a felony involving moral
turpitude;
|
|
(b)
|
willfully
and grossly neglected his duties, or intentionally failed to observe
specific lawful directives or policies of the
Board;
|
|
(c)
|
failed
to take reasonable and appropriate steps to determine the accuracy of
Sarbanes-Oxley Act certifications;
or
|
|
(d)
|
failed
to fulfill any of his duties to administer effective systems and controls
necessary for compliance with the Sarbanes-Oxley
Act.
|
|
(a)
|
the
acquisition of 35% or more of our stock by a party that is not a fiduciary
holding the shares for the benefit of the
Company;
|
|
(b)
|
a
change in the composition of the Board such that a minority of the
directors have been directors for at least 24 months (“24 Month
Directors”) or were elected by at least two-thirds of the 24 Month
Directors or were serving as the result of a Merger as defined in (c)
below;
|
|
(c)
|
a
merger, consolidation, reorganization, sale of substantially all of our
assets, or the acquisition of assets or stock of another company,
(“Merger”) unless (i) those holding our shares prior to the Merger hold
more than 50% of the voting shares of the successor entity, (ii) more than
50% of the directors were our directors prior to the Merger, and (iii) no
entity owns 35% or more of our shares without approval of our Board;
or.
|
|
(d)
|
a
liquidation or dissolution of the
Company.
|
Payments and Benefits upon
Termination
|
Voluntary Termination
($)
|
Change in Control
($)
|
Constructive Termination
($)
|
For Cause Termination
($)
|
Termination without Cause
($)
|
Death
($)
|
Disability
($)
|
|||||||||||||||||||||
Compensation:
|
||||||||||||||||||||||||||||
Base
Salary
|
- | 370,000 | 370,000 | - | 370,000 | 185,000 | 185,000 | |||||||||||||||||||||
Bonus
(1)
|
- | 15,323 | 15,323 | 15,323 | - | 15,323 | ||||||||||||||||||||||
Long
Term Incentives
|
- | - | ||||||||||||||||||||||||||
Stock
Awards
|
- | - | - | - | - | - | - | |||||||||||||||||||||
Unvested
and accelerated (2)
|
- | 128,250 | - | - | - | - | ||||||||||||||||||||||
Benefits
and Perquisites:
|
||||||||||||||||||||||||||||
Post
termination Medical (3)
|
- | 9,600 | 9,600 | - | 9,600 | - | 9,600 | |||||||||||||||||||||
Accrued
Vacation Pay
|
11,918 | 11,918 | 11,918 | - | 11,918 | 11,918 | 11,918 | |||||||||||||||||||||
Total
|
11,918 | 535,091 | 406,841 | - | 406,841 | 196,918 | 221,841 |
(1)
|
The
bonus amount reflects the bonus Mr. Mondor was paid for fiscal year
2008.
|
(2)
|
The
amount in this row represents the “in-the-money” value of unvested stock
options and the full value of unvested restricted stock as of June 30,
2009, to the extent vesting would be accelerated upon termination under
these scenarios. The assumed price is $5.70, which was the
closing price of our common stock on June 30, 2009, the last trading day
of our fiscal year. Mr. Mondor would only be entitled to the
base salary and bonus components if he were terminated within one year of
a Change in Control.
|
(3)
|
Includes
employer portion of the medical and dental premiums which would be paid to
Mr. Mondor during severance period. Cost of continued benefits
is estimated by using current rate multiplied by 12
months.
|
Payments and Benefits upon
Termination
|
Voluntary Termination
($)
|
Change in Control
($)
|
Constructive Termination
($)
|
For Cause Termination
($)
|
Termination without Cause
($)
|
Death
($)
|
Disability
($)
|
|||||||||||||||||||||
Compensation:
|
||||||||||||||||||||||||||||
Base
Salary
|
- | - | 250,000 | - | 250,000 | 125,000 | 125,000 | |||||||||||||||||||||
Long
Term Incentives
|
- | - | - | - | - | - | ||||||||||||||||||||||
Stock
Awards
|
- | - | - | - | - | - | - | |||||||||||||||||||||
Unvested
and accelerated (1)
|
- | 119,660 | - | - | - | - | - | |||||||||||||||||||||
Benefits
and Perquisites:
|
||||||||||||||||||||||||||||
Post
termination Medical (2)
|
- | 9,600 | 9,600 | - | 9,600 | - | 9,600 | |||||||||||||||||||||
Accrued
Vacation Pay
|
24,639 | 24,639 | 24,639 | - | 24,639 | 24,639 | 24,639 | |||||||||||||||||||||
Total
|
24,639 | 153,899 | 284,239 | - | 284,239 | 149,639 | 159,239 |
(1)
|
The
amount in this row represents the “in-the-money” value of unvested stock
options and the full value of unvested restricted stock as of June 30,
2009, to the extent vesting would be accelerated upon termination under
these scenarios. The assumed price is $5.70, which was the
closing price of our common stock on June 30, 2009, the last trading day
of our fiscal year.
|
(2)
|
Includes
employer portion of the medical and dental premiums which would be paid to
Mr. Somers during severance period. Cost of continued benefits
is estimated by using current rate multiplied by 12
months.
|
Payments and Benefits upon
Termination
|
Voluntary Termination
($)
|
Change in Control
($)
|
Constructive Termination
($)
|
For Cause Termination
($)
|
Termination without Cause
($)
|
Death
($)
|
Disability
($)
|
|||||||||||||||||||||
Compensation:
|
||||||||||||||||||||||||||||
Base
Salary
|
- | 295,000 | 295,000 | - | 295,000 | 147,500 | 147,500 | |||||||||||||||||||||
Bonus
|
- | - | - | - | - | - | ||||||||||||||||||||||
Long
Term Incentives
|
- | - | - | |||||||||||||||||||||||||
Stock
Awards
|
- | - | - | - | - | - | - | |||||||||||||||||||||
Unvested
and accelerated (1)
|
- | 57,000 | - | - | - | - | ||||||||||||||||||||||
Benefits
and Perquisites:
|
||||||||||||||||||||||||||||
Post
termination Medical (2)
|
- | 9,600 | 9,600 | - | 9,600 | - | 9,600 | |||||||||||||||||||||
Accrued
Vacation Pay
|
14,325 | 14,325 | 14,325 | - | 14,325 | 14,325 | 14,325 | |||||||||||||||||||||
Total
|
14,325 | 375,925 | 318,925 | - | 318,925 | 161,825 | 171,425 |
(1)
|
The
amount in this row represents the “in-the-money” value of unvested stock
options and the full value of unvested restricted stock as of June 30,
2009, to the extent vesting would be accelerated upon termination under
these scenarios. The assumed price is $5.70, which was the
closing price of our common stock on June 30, 2009, the last trading day
of our fiscal year. Mr. Berry would only be entitled to the
base salary and bonus components if he were terminated within one year of
a Change in Control.
|
(2)
|
Includes
employer portion of the medical and dental premiums which would be paid to
Mr. Berry during severance period. Cost of continued benefits
is estimated by using current rate multiplied by 12
months.
|
Plan Category
|
Number of securities to be issued upon exercise of
outstanding options, warrants and rights
|
Weighted- average exercise price of outstanding
options, warrants and rights
|
Number of securities remaining available for
future issuance under equity compensation plans
|
|||||||||
Equity
compensation plans approved by security holders
|
||||||||||||
1991
Option Plan (1)
|
104,551 | $ | 116.58 | - | ||||||||
2001
Option Plan
|
475,162 | $ | 17.93 | 276,058 | ||||||||
Subtotal
|
579,713 | $ | 35.72 | 276,058 | ||||||||
Equity
compensation plans not approved by security holders
|
||||||||||||
2001
Rifenburgh Stock Option Plan (2)
|
- | $ | - | - | ||||||||
1999
Vivid Stock Option Plan (3)
|
- | - | - | |||||||||
Subtotal
|
- | $ | - | - | ||||||||
Total
|
579,713 | $ | 35.72 | 276,058 |
|
(1)
|
The
2001 Option Plan replaced the 1991 Stock Option Plan (“1991 Option Plan”)
that expired on January 31, 2002.
|
|
(2)
|
Relates
to an option to purchase 10,000 shares issued to Richard Rifenburgh, a
former director, in connection with his retirement from the
Board. The option vested immediately and has a ten year
term.
|
|
(3)
|
Relates
to options issued in 1999 associated with the acquisition of Vivid
Technology. As of the time of the acquisition, all options were
fully vested.
|
|
·
|
reviewed
and discussed with management Concurrent’s audited financial statements to
be included in Concurrent’s Annual Report on Form 10-K for fiscal year
2009;
|
|
·
|
discussed
with Deloitte & Touche LLP, Concurrent’s independent registered public
accountants, the matters required by Statement of Auditing Standards No.
114, as amended; and
|
|
·
|
received
from and discussed with Deloitte & Touche LLP the written disclosures
and letter required by Independence Standards Board Standard No. 1 and
discussed with them their
independence.
|
Audit
Committee
|
|
C.
Shelton James, Chairman
|
|
Charles
Blackmon
|
|
Larry
L. Enterline
|
|
September
10, 2009
|
|
a.
|
to
increase the number of shares authorized by 500,000 from 1,100,000 to
1,600,000,
|
|
b.
|
to
require that no more than 5% of the shares authorized will be granted with
performance restrictions that can all lapse within one year,
and
|
|
c.
|
to
require stockholder approval for any repricing of previously granted stock
options.
|
Number
of Shares Beneficially Owned
(1)
|
Options
Exercisable Within 60 Days
(2)
|
Percent
of Outstanding Shares
(3)
|
||||||||||
Directors and Named Executive
Officers:
|
||||||||||||
Emory
O. Berry
|
3,240 | (4) | 14,500 | * | ||||||||
Charles
Blackmon
|
1,300 | 7,000 | * | |||||||||
Larry
L. Enterline
|
1,300 | 4,000 | * | |||||||||
C.
Shelton James
|
2,950 | (5) | 8,700 | * | ||||||||
Dan
Mondor
|
13,506 | (6) | 15,001 | * | ||||||||
Steve
G. Nussrallah
|
6,300 | 7,000 | * | |||||||||
Kirk
L. Somers
|
5,247 | (7) | 27,792 | * | ||||||||
Directors,
Named Executive Officers, and other current officers as a group (7
persons)
|
33,843 | 83,993 | 1.0 | |||||||||
Five Percent Stockholders:
|
||||||||||||
Dimension
Fund Advisors, Inc.
|
564,284 | (8) | 6.6 | |||||||||
Royce
& Associates, LLC
|
560,516 | (9) | 6.55 |
|
(1)
|
Unless
otherwise indicated in the footnotes to this table and subject to
community property laws where applicable, we believe that each of the
stockholders named in this table has sole voting and investment power with
respect to the shares indicated as beneficially owned. This
table is based upon information supplied by Named Executive Officers,
directors and principal stockholders, and Schedule 13Gs and 13Fs filed
with the SEC.
|
|
(2)
|
Represents
shares that can be acquired through stock option exercises on or prior to
October 24, 2009.
|
|
(3)
|
Based
on an aggregate of 8,282,114 shares of common stock outstanding as of
August 24, 2009. Assumes that all options exercisable on or
prior to October 24, 2009, owned by this person are
exercised. The total number of shares outstanding used in
calculating this percentage also assumes that none of the options owned by
other persons are exercised.
|
|
(4)
|
Includes
740 shares held for the benefit of Mr. Berry in Concurrent’s 401k
Retirement Savings Plan.
|
|
(5)
|
Includes
200 shares that are held by Mr. James’
spouse.
|
|
(6)
|
Includes
1,006 shares held for the benefit of Mr. Mondor in Concurrent’s 401k
Retirement Savings Plan.
|
|
(7)
|
Includes
1,580 shares held for the benefit of Mr. Somers in Concurrent’s 401k
Retirement Savings Plan.
|
|
(8)
|
Represents
shares of common stock beneficially owned by Dimension Fund Advisors, Inc.
(“DFA”). DFA has shared dispositive and voting power with
respect to 564,284 shares. The address of DFA is 6300 Bee Cave
Road, Austin, TX 78746-5149. This information is included in
reliance upon a Schedule 13F filed by DFA with the SEC as of June 30,
2009.
|
|
(9)
|
Represents
shares of common stock beneficially owned by Royce & Associates, LLC.
(“Royce”). Royce has shared dispositive and voting power with
respect to 560,516 shares. The address of Royce is 745 Fifth
Avenue, New York, NY 10151-0099. This information is included
in reliance upon a Schedule 13F filed by Royce with the SEC as of June 30,
2009.
|
|
·
|
provide
written notice that is received by the corporate secretary of Concurrent
not less than 60 days nor more than 90 days prior to the date of the
annual meeting; provided, however, that if less than 70 days notice or
prior public disclosure of the date of the annual meeting is given or made
to the stockholders, the stockholder’s notice will be timely if received
by no later than the close of business on the 10th
day following the day on which notice of the date of the meeting was
mailed or such public disclosure was made;
and
|
|
·
|
supply
the additional information listed in Article IV of Concurrent’s
Bylaws.
|
By
Order of the Board,
|
|
/s/
Kirk L. Somers
|
|
Kirk
L. Somers
|
|
Executive
Vice President & Secretary
|
|
a.
|
“Affiliate”
means a corporation or other entity controlled (as determined by the
Committee) directly, or indirectly through one or more intermediaries, by
the Company and designated by the Committee as
such.
|
|
b.
|
“Award” means an
award granted to a Participant in the form of a Stock Appreciation Right,
Stock Option, or Restricted Stock, or any combination of the
foregoing.
|
|
c.
|
“Board” means
the Board of Directors of the
Company.
|
|
d.
|
“Cause” shall
have the meaning set forth in Section
9.
|
|
e.
|
“Change of
Control” shall have the meaning set forth in Section
12.
|
|
f.
|
“Code” means the
Internal Revenue Code of 1986, as amended from time to time, and any
successor thereto.
|
|
g.
|
“Committee”
means the Committee referred to in Section
5.
|
|
h.
|
“Company” means
Concurrent Computer Corporation, a Delaware
corporation.
|
|
i.
|
“Disability”
means permanent and total disability as determined under procedures
established by the Committee for purposes of the Plan (provided, in the
case of Incentive Stock Option "Disability" is determined consistent with
permanent and total disability as defined in Section 22(e)(3) of the
Code).
|
|
j.
|
“Exchange Act”
means the Securities Exchange Act of 1934, as amended from time to time,
and any successor thereto.
|
|
k.
|
“Fair Market
Value” means the closing sale price as of any given date of a share
of Stock if the Stock is listed on a national securities exchange or
quoted on the NASDAQ system or, if no such closing price is available on
such date, such closing price as reported for the immediately preceding
business day. If the Stock is not listed on a national
securities exchange or quoted on the NASDAQ system, the Fair Market Value
of the Stock shall be determined by the Committee in good
faith.
|
|
l.
|
“Incentive Stock
Option” means any Stock Option intended to be and designated as an
“incentive stock option” within the meaning of Section 422 of the
Code.
|
|
m.
|
“Non-Employee
Director” means any director of the Company who is not an employee
of the Company or any of its
Affiliates.
|
|
n.
|
“Non-Qualified Stock
Option” means any Stock Option that is not an Incentive Stock
Option.
|
|
o.
|
“Normal
Retirement” means retirement from active employment with the
Company or an Affiliate at or after age 65 or at such other age as may be
specified by the Committee in the Award
agreement.
|
|
p.
|
“Participant”
means an officer, employee, non-employee director or consultant of the
Company or of an Affiliate to whom an Award has been granted that has not
terminated, expired or been fully
exercised.
|
|
q.
|
“Plan” means the
Concurrent Computer Corporation 2001 Stock Option Plan, as set forth
herein and as hereinafter amended from time to
time.
|
|
r.
|
“Restriction
Period” means the period of time, which may be a single period or
multiple periods, during which Restricted Stock awarded to a Participant
remains subject to the Restrictions imposed on such Stock, as determined
by the Committee.
|
|
s.
|
“Restrictions”
means the restrictions and conditions imposed on Restricted Stock awarded
to a Participant, as determined by the Committee, that must be satisfied
in order for the Restricted Stock to vest, in whole or in part, in the
Participant.
|
|
t.
|
“Restricted
Stock” means an award of Stock subject to Restrictions whereby the
Participant’s rights to full enjoyment of the Stock are conditioned upon
the future performance of substantial services or are otherwise subject to
a “substantial risk of forfeiture” within the meaning of Section 83 of the
Code.
|
|
u.
|
“Restricted Stock
Agreement” means a written agreement between a Participant and the
Company evidencing an Award of Restricted
Stock.
|
|
v.
|
“Restricted Stock Award
Date" means the date on which the Committee awarded Restricted
Stock to the Participant.
|
|
w.
|
“Retirement”
means Normal Retirement or early retirement if the Company’s Profit
Sharing and Savings Plan provides for
same.
|
|
x.
|
“Rule 16b-3”
means the exemption under Rule 16b-3 to Section 16(b) of the Exchange Act,
as amended from time to time.
|
|
y.
|
“Stock” means
common stock, $.01 per share par value, of the
Company.
|
|
z.
|
“Stock Appreciation
Right” means a right granted under Section 10 to receive the
appreciation in a share of Stock.
|
|
aa.
|
“Stock Option”
or “Option” means
an option granted under Section 7 or
9.
|
|
bb.
|
“Termination of
Employment” means the termination of a Participant’s employment
with the Company and any Affiliate. A Participant employed by
an Affiliate also shall be deemed to incur a Termination of Employment if
the Affiliate ceases to be an Affiliate and the Participant does not
immediately thereafter become an employee of the Company or another
Affiliate.
|
SECTION
3.
|
Effective
Date. The effective date of the Plan shall be November
1, 2001.
|
SECTION
4.
|
Stock Subject to
Plan.
|
SECTION
5.
|
Administration.
|
|
(a)
|
to
select the officers, employees and consultants to whom Awards may from to
time be granted;
|
|
(b)
|
to
determine whether and to what extent Incentive Stock Options,
Non-Qualified Stock Options, Stock Appreciation Rights and Restricted
Stock, or any combination thereof, are to be granted
hereunder;
|
|
(c)
|
to
determine the number of shares of Stock to be covered by each Award
granted hereunder;
|
|
(d)
|
to
determine the terms and conditions of any Award granted hereunder
(including, but not limited to, the Option price, any vesting restriction
or limitation, any repurchase rights in favor of the Company and any
vesting acceleration or forfeiture waiver regarding any Award and the
shares of Stock relating thereto, based on such factors as the Committee
shall determine);
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|
(e)
|
to
determine under what circumstances an Award may be settled in cash or
Stock; and
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|
(f)
|
to
determine Fair Market Value.
|
SECTION
6.
|
Eligibility and Annual
Grant Caps.
|
SECTION
7.
|
Options Granted to New
Non-Employee Directors.
|
SECTION
8.
|
Duration of the
Plan.
|
SECTION
9.
|
Stock
Options.
|
SECTION
10.
|
Stock Appreciation
Rights.
|
|
(i)
|
Stock
Appreciation Rights shall be exercisable only at such time or times and to
the extent that the Stock Options to which they relate are exercisable in
accordance with the provisions of Section 9 and this Section
10.
|
|
(ii)
|
Upon
the exercise of a Stock Appreciation Right, an optionee shall be entitled
to receive an amount in cash, shares of Stock, or both, equal in value to
the excess of the Fair Market Value of one share of Stock over the Option
price per share specified in the related Stock Option multiplied by the
number of shares in respect of which the Stock Appreciation Right shall
have been exercised, with the Committee having the right to determine the
form of payment.
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|
(iii)
|
Stock
Appreciation Rights shall be transferable only when and to the extent that
the underlying Stock Option would be transferable under Section
9(e).
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|
(iv)
|
Upon
the exercise of a Stock Appreciation Right, the Stock Option or part
thereof to which such Stock Appreciation Right is related shall be deemed
to have been exercised for the purpose of determining the number of shares
of Stock available for issuance under the Plan in accordance with Section
4, but only to the extent of the number of shares resulting from dividing
the value of the Stock Appreciation Right at the time of exercise,
determined in accordance with this Section 10, by the Fair Market Value of
one share of Stock.
|
SECTION
11.
|
Terms of Restricted
Stock Awards.
|
SECTION
12.
|
Change of
Control.
|
|
(a)
|
any
and all outstanding Options and Stock Appreciation Rights shall become
immediately exercisable, and the Committee, in its discretion, shall have
the right (but not the obligation) to cash out prior to the transaction
each Option and Stock Appreciation Right by paying the optionee an amount,
in cash or Stock, equal to the excess of the Fair Market Value of a share
of Stock over the Option price per share of Stock times the number of
shares of Stock subject to the Option on the effective date of the cash
out (in which event each Option and Stock Appreciation Right shall
thereupon expire); and
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|
(b)
|
the
Restriction Period and Restrictions imposed on the Restricted Stock shall
lapse, and the Restricted Stock shall vest in the Participant, and any
dividends and distributions paid with respect to the Restricted Stock that
were escrowed during the Restriction Period shall be paid to the
Participant.
|
|
For
purposes of this Plan, “Change of Control” means the occurrence of any of
the following events:
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|
(a)
|
the
acquisition, directly or indirectly, by any “person” or “group” (as those
terms are defined in Sections 3(a)(9), 13(d), and 14(d) of the Exchange
Act and the rules thereunder, including, without limitation, Rule
13d-5(b)) of “beneficial ownership” (as determined pursuant to Rule 13d-3
under the Exchange Act) of securities entitled to vote generally in the
election of directors (“voting securities”) of the Company that represent
35% or more of the combined voting power of the Company’s then outstanding
voting securities, other than:
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|
(i)
|
an
acquisition by a trustee or other fiduciary holding securities under any
employee benefit plan (or related trust) sponsored or maintained by the
Company or any person controlled by the Company or by any employee benefit
plan (or related trust) sponsored or maintained by the Company or any
person controlled by the Company,
or
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|
(ii)
|
an
acquisition of voting securities by the Company or a corporation owned,
directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of the stock of the
Company, or
|
|
(iii)
|
an
acquisition of voting securities pursuant to a transaction described in
clause (c) below that would not be a Change of Control under clause
(c);
|
|
(b)
|
a
change in the composition of the Board that causes less than a majority of
the directors of the Company to be directors that meet one or more of the
following descriptions:
|
|
(i)
|
a
director who has been a director of the Company for a continuous period of
at least 24 months, or
|
|
(ii)
|
a
director whose election or nomination as director was approved by a vote
of at least two-thirds of the then directors described in clauses (b)(i),
(ii), or (iii) by prior nomination or election, but excluding, for the
purpose of this sub clause (ii), any director whose initial assumption
of office occurred as a result of an actual or threatened (y)
election contest with respect to the election or removal of directors or
other actual or threatened solicitation of proxies or consents by or on
behalf of a person or group other than the Board or (z) tender offer,
merger, sale of substantially all of the Company’s assets, consolidation,
reorganization, or business combination that would be a Change of Control
under clause (c) on consummation thereof,
or
|
|
(iii)
|
who
were serving on the Board as a result of the consummation of a transaction
described in clause (c) that would not be a Change of Control under clause
(c);
|
|
(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 or (z) the acquisition of assets or stock of another
entity, in each case, other than in a
transaction
|
|
(i)
|
that
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 50% of the combined voting power of the Successor
Entity’s outstanding voting securities immediately after the transaction,
and
|
|
(ii)
|
after
which more than 50% of the members of the board of directors of the
Successor Entity were members of the Board at the time of the Board’s
approval of the agreement providing for the transaction or other action of
the Board approving the transaction (or whose election or nomination was
approved by a vote of at least two-thirds of the members who were members
of the Board at that time), and
|
|
(iii)
|
after
which no person or group beneficially owns voting securities representing
35% or more of the combined voting power of the Successor Entity, unless
the Board determines in its discretion that beneficial ownership by a
person or group of voting securities representing 35% or more of the
combined voting power of the Successor Entity shall not be deemed a Change
of Control; or
|
|
(d)
|
a
liquidation or dissolution of the
Company.
|
SECTION
13.
|
Amendments and
Termination.
|
SECTION
14.
|
General
Provisions.
|
|
(a)
|
Nothing
contained in the Plan shall prevent the Company or an Affiliate from
adopting other or additional compensation arrangements for its
employees.
|
|
(b)
|
The
Plan shall not confer upon any employee any right to continued employment
nor shall it interfere in any way with the right of the Company or an
Affiliate to terminate the employment of any employee at any
time.
|
|
(c)
|
No
later than the date as of which an amount first becomes includible in the
gross income of a Participant for federal income tax purposes with respect
to any Award under the Plan, the Participant shall pay to the Company, or
make arrangements satisfactory to the Company regarding the payment of,
any federal, state, local or foreign taxes of any kind required by law to
be withheld with respect to such amount. Unless otherwise
determined by the Company, withholding obligations may be settled with
Stock, including Stock that is part of the Award that gives rise to the
withholding requirement. The obligations of the Company under
the Plan shall be conditional on such payment or arrangements, and the
Company and its Affiliates shall, to the extent permitted by law, have the
right to deduct any such taxes from any payment otherwise due to the
Participant. No federal tax withholding shall be effected under
the Plan that exceeds the minimum statutory federal withholding
requirements.
|
|
(d)
|
The
Committee shall establish such procedures as it deems appropriate for a
Participant to designate a beneficiary to whom any amounts payable in the
event of the Participant’s death are to be
paid.
|
|
(e)
|
Agreements
entered into by the Company and Participants relating to Awards under the
Plan, in such form as may be approved by the Committee from time to time,
to the extent consistent with or permitted by the Plan shall control with
respect to the terms and conditions of the subject Award. If
any provisions of the Plan or any agreement entered into pursuant to the
Plan shall be held invalid or unenforceable, such invalidity or
unenforceability shall not affect any other provisions of the Plan or the
subject agreement.
|
|
(f)
|
As
a condition to the grant of an Award, or the issuance of shares of Stock
subject to an Award, the Committee may prescribe corporate, divisional,
and/or individual performance goals applicable to all or any portion of
the shares subject to the Award. Performance goals may be based
on achieving a certain level of revenue, earnings, earnings per share, net
income, return on equity, return on capital, return on assets, total
stockholder return, return on sales or cash flow, or any combination
thereof, of the Company or the Company and its Affiliates, or any division
thereof, or on the extent of changes in such
criteria.
|
|
(g)
|
All
references to sections are to sections of the Plan unless otherwise
indicated. The Plan and all Awards made and actions taken
thereunder shall be governed by and construed in accordance with the laws
of the State of Delaware.
|