Exhibit 10.22


 


HAYNES INTERNATIONAL, INC.


 


AMENDED AND RESTATED STOCK OPTION PLAN


 


As adopted by the Board of Directors as of November 7, 2005


 


The Board of Directors of Haynes International, Inc. (the “Company”)
has determined that the best interests of the Company will be served by making
available to eligible employees and directors of the Company and its
Subsidiaries a means to acquire shares of the Company’s common stock (the “Shares”)
through the granting of stock options.  The
Haynes International, Inc. Stock Option Plan (the “Plan”) is intended to
promote the growth of the Company and its shareholders by attracting and
motivating key employees and directors whose efforts are deemed worthy of
encouragement through the incentive effects of stock options.


 


The Shares purchased pursuant to the Plan shall be subject to certain
restrictions, the details of which are set forth below.  There is currently no public market for the
Shares.  The future market price, if any,
of the Shares may be highly volatile depending on a number of factors.  In addition, the ownership of the Company
represented by Options may be diluted by the future issuances of Shares or
convertible securities.


 


Accordingly, the Company’s Board of Directors adopts this Plan in
accordance with the Plan of Reorganization (as defined below), effective as of
the Effective Date.


 


1.                                       DEFINITIONS.
 For purposes of the Plan, the following
terms, when capitalized, shall have the meaning set forth below:


 


(a)                                  “Board”
or “Board of Directors” means the board of directors of the Company.


 


(b)                                 “CEO”
means the Chief Executive Officer of the Company.


 


(c)                                  “Code”
means the Internal Revenue Code of 1986, as amended.


 


(d)                                 “Committee”
means the Compensation Committee of the Board, and the composition of the
Committee shall be governed by the Compensation Committee Charter as adopted by
the Board and as amended from time to time.


 


(e)                                  “Company”
means Haynes International, Inc.


 


(f)                                    “Director”
means any person serving on the Board of Directors of the Company.


 


(g)                                 “Disability”
means total and permanent disability as defined in the Haynes International
Inc. Pension Plan.


 


(h)                                 “Discretionary
Participant” means any additional Participant as may be designated on a limited
basis by the Committee upon the recommendation of the CEO to accommodate new
hires, promotions and other similar circumstances.


 





















 


(i)                                     “Effective
Date” has the meaning set forth in the Plan of Reorganization.


 


(j)                                     “Employee”
means any person, including officers, employed by the Company or any
Subsidiary.  The payment of a director’s
fee by the Company shall not be sufficient to constitute employment” by the
Company.


 


(k)                                  “Exchange
Act” means the Securities Exchange Act of 1934, as amended.


 


(l)                                     “Executive”
means executives occupying the management positions listed on EXHIBIT A
attached hereto.


 


(m)                               “Fair
Market Value” per share as of a particular date means the last reported sale
price (on the day immediately preceding such date) of the Shares quoted on the
NASDAQ National Market or the NASDAQ SmallCap Market (or any other exchange or
national market system upon which price quotations for the Shares are regularly
available); provided, however, if price quotations for the Shares are not
regularly available on any exchange or national market system, Fair Market
Value per share shall mean, as of any date, the fair market value of such
Shares on such date as determined in good faith by the Board or Committee.


 


(n)                                 “Good
Reason” means the occurrence of any of the following actions or failures to
act, but in each case only if it is not consented to by the Optionee in
writing: (a) a material adverse change in the Optionee’s duties, reporting
responsibilities, titles or elected or appointed offices as in effect
immediately prior to the effective date of such change; (b) a material
reduction by the Company in the Optionee’s base salary or annual bonus
opportunity in effect immediately prior to the effective date of such
reduction, not including any reduction resulting from changes in the market
value of securities or other instruments paid or payable to the Optionee; (c) solely
in the case of the CEO, any change of more than fifty (50) miles in the
location of the principal place of employment of the CEO immediately prior to
the effective date of such change.  For
purposes of this definition, none of the actions described in clauses (a) and
(b) above shall constitute “Good Reason” with respect to the Optionee if
it was an isolated and inadvertent action not taken in bad faith by the Company
and if it is remedied by the Company within thirty (30) days after receipt of
written notice thereof given by the Optionee (or, if the matter is not capable
of remedy within thirty (30) days, then within a reasonable period of time
following such thirty (30) day period, provided that the Company has commenced
such remedy within said thirty (30) day period); provided that “Good Reason”
shall cease to exist for any action described in clauses (a) and (b) above
on the sixtieth (60th) following the later of the occurrence of such action or the
Optionee’s knowledge thereof, unless the Optionee has given the Company written
notice thereof prior to such date.


 


(o)                                 “New
Common Stock” has the meaning set forth in the Plan of Reorganization.


 


(p)                                 “Non-Employee
Director” means a Director who is a “non-employee director” within the meaning
of Rule 16b-3 and who is also an “outside director” within the meaning of Section 162(m)
of the Code.


 


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(q)                                 “Option”
means any stock option issued pursuant to the Plan.  Options will be “Nonqualified Options” which
are defined as options not intended to meet the requirements of Section 422
of the Code.


 


(r)                                    “Option
Agreement” means the written agreement by and between the Participant and the
Company setting forth the terms and conditions of an Option.  Each Option Agreement shall be subject to the
terms and conditions of the Plan and need not be identical.


 


(s)                                  “Optionee”
means the holder of an outstanding Option granted under the Plan.


 


(t)                                    “Participant”
means the CEO, Executive, Non-Employee Director or Discretionary Participant
who has entered into an Option Agreement with the Company pursuant to this
Plan.


 


(u)                                 “Plan”
means this Haynes International, Inc. Stock Option Plan as provided herein
and as may be amended from time to time.


 


(v)                                 “Plan
of Reorganization” means the First Amended Plan of Reorganization for the
Company that was filed with the United States Bankruptcy Court Southern
District Indianapolis Division and approved on August 16, 2004.


 


(w)                               “Retirement”
means in the case of the CEO, a resignation by the CEO after having reached age
fifty-five (55), but in no event prior to September 30, 2007, and, in the
case of any other Participant, a resignation after reaching age fifty-five (55)
and completing at least five (5) years of service with the Company, but in
no event prior to September 30, 2007.


 


(x)                                   “Rule 16b-3”
means Rule 16b-3 promulgated under the Exchange Act or any successor to Rule 16b-3,
as in effect from time to time.


 


(y)                                 “Share”
means a share of common stock of the Company authorized under the Plan of
Reorganization, as may be adjusted in accordance with Section 5(b) below.


 


(z)                                   “Shares
Outstanding” means the total number of Shares outstanding on a fully diluted
basis, as reflected in the Company’s financial statements for purposes of
determining earnings per share.


 


(aa)                            “Subsidiary”
and “Subsidiaries” used herein means a company or companies of which 80% or
more of the total voting power of the equity of each such company and 80% or
more of the total value of the equity of each such company are owned by the
Company or a Subsidiary of the Company.


 


(bb)                          “Terminated
for Cause,” “Termination for Cause” or “Cause” means, (i) if the Optionee
is a party to an employment or service agreement with the Company or its
Subsidiaries and such agreement provides for a definition of Cause, the
definition therein contained, or, (ii) if no such agreement exists, a
termination by reason of the good faith


 


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determination
of the Board that the Optionee (A) continually failed to substantially
perform his duties with the Company (other than a failure resulting from the
Optionee’s medically documented incapacity due to physical or mental illness),
including, without limitation, repeated refusal to follow the reasonable
directions of the Board, knowing violation of the law in the course of
performance of the Optionee’s duties with the Company or a Subsidiary, repeated
absences from work without a reasonable excuse, or intoxication with alcohol or
illegal drugs while on the Company’s or a Subsidiary’s premises during regular
business hours, (B) engaged in conduct which constituted a material breach
of such Optionee’s employment agreement (if applicable), (C) was indicted
(or equivalent under applicable law), convicted of or entered a plea of nolo
contendere to the commission of a felony or crime involving dishonesty or moral
turpitude, or (D) engaged in conduct which is demonstrably and materially
injurious to the financial condition, business reputation, or otherwise of the
Company or its Subsidiaries or affiliates, or (E) perpetuated a fraud or
embezzlement against the Company or its Subsidiaries or affiliates, and in each
case the particular act or omission was not cured, if curable, in all material
respects by the Optionee within thirty (30) days after receipt of written
notice from the Board, which shall set forth in reasonable detail the nature of
the facts and circumstances which constitute “Cause;” provided, however, the
Optionee shall not be deemed to have been Terminated for Cause unless there
shall have been delivered to the Optionee a copy of a resolution duly adopted
by the Board.  If the Company has
reasonable belief that the Optionee has committed any of the acts described
above, it may suspend the Optionee (with or without pay) while it investigates
whether it has or could have Cause to terminate the Optionee.  The Company may terminate the Optionee for
Cause prior to the completion of its investigation; provided, that, if it is
ultimately determined that the Optionee has not committed an act which would
constitute Cause, Optionee shall be treated as if he were terminated without
Cause.


 


2.                                       ADMINISTRATION
OF THE PLAN.


 


(a)                                  COMMITTEE.
 The Plan shall be administered by the
Committee.  The Committee shall have full
authority to administer the Plan, authority to interpret and construe any
provision of the Plan and to adopt such rules and regulations for
administering the Plan as it may deem necessary in order to comply with the
requirements of the Plan, or in order to conform to any regulation or to any
change in any law or regulation applicable thereto.


 


(b)                                 ACTIONS
OF THE COMMITTEE.  All actions taken and
all interpretations and determinations made by the Committee in good faith
(including determinations of Fair Market Value) shall be final and binding upon
all Participants, the Company, and all other interested persons.  No member of the Committee shall be personally
liable for any action, determination or interpretation made in good faith with
respect to the Plan, and all members of the Committee shall, in addition to
their rights as Directors, be fully protected to the extent permitted by law by
the Company with respect to any such action, determination, or interpretation.


 


(c)                                  POWERS
OF THE COMMITTEE.  Subject to the
provisions of the Plan, the Committee shall have the authority, in its
discretion: (i) to determine, upon review of


 


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the relevant
information, the Fair Market Value of the Shares; (ii) to determine the
persons to whom Options shall be granted, the time or times at which Options
shall be granted, the number of Shares to be represented by each Option, and the
exercise price per Share; (iii) to interpret the Plan; (iv) to prescribe,
amend, and rescind rules and regulations relating to the Plan; (v) to
accelerate or defer (with the consent of the Participant unless otherwise
provided herein) the vesting of any Option; (vi) to authorize any person to
execute on behalf of the Company any instrument required to effectuate the
grant of an Option previously granted by the Board or the Committee; and (vii) to
make all other determinations deemed necessary or advisable for the
administration of the Plan.


 


3.                                       ELIGIBILITY
AND PARTICIPATION.


 


(a)                                  ELIGIBILITY.
 Grants of Options shall be made to the
CEO and the Executives in accordance with Exhibit A and, in the discretion
of the Committee, may be made to any Non-Employee Director or any Discretionary
Participant.


 


(b)                                 PARTICIPATION
BY DIRECTOR.  Members of the Committee
who are eligible either for Options or have been granted Options may vote on
any matters affecting the administration of the Plan or the grant of any Options
pursuant to the Plan, except that no such member shall act upon the granting of
an Option to himself, but any such member may be counted in determining the
existence of a quorum at any meeting of the Committee and may be counted as
part of an action by unanimous written consent during or with respect to which
action is taken to grant Options to him or her.


 


4.                                       EXERCISE
PRICE, CONSIDERATION AND FORM OF OPTION AGREEMENT.


 


(a)                                  EXERCISE
PRICE.  The price to be paid for Shares
upon the exercise of an Option (“exercise price”) shall be determined by the
Committee at the time such Option is granted.


 


(b)                                 PAYMENT
OF EXERCISE PRICE.  The exercise price
shall be paid in full, at the time of exercise of the Option, (i) by
personal or bank cashier’s check, (ii) if the Participant may do so
without violating Section 16(b) or (c) of the Exchange Act, and
subject to approval by the Committee, by tendering to the Company whole Shares
owned by such Participant having a Fair Market Value at the time of exercise equal
to the exercise price of the Shares to which the Option is being exercised, (iii) if
the Participant may do so without violating Section 16(b) or (c) of
the Exchange Act, and subject to approval by the Committee, by surrendering sufficient
vested options based on the difference between the exercise price and the Fair
Market Value at the time of exercise of the Shares to equal the exercise price
of the Shares to which the Option is being exercised, or (iv) any
combination of (i), (ii) or (iii).  Unless
otherwise specifically provided in an Option Agreement, the purchase price of
Shares acquired pursuant to an Option that is paid by delivery to the Company
of other Shares or attestation of ownership thereof acquired, directly or
indirectly from the Company, shall be paid only with Shares that have been held
for more than six (6) months (or such longer or shorter period of time
required to avoid a charge to earnings for financial accounting purposes).


 


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(c)                                  FORM OF
OPTION AGREEMENT.  Each Option shall be
evidenced by an Option Agreement specifying the number of Shares which may be purchased
upon exercise of the Option and containing such terms and provisions as the
Committee may determine, subject to the provisions of the Plan.


 


5.                                       SHARES
OF COMMON STOCK SUBJECT TO THE PLAN.


 


(a)                                  NUMBER.
 Subject to adjustment as provided in
paragraph (b) of this Section 5, the maximum aggregate number of
Shares which may be issued pursuant to Options granted under the Plan shall not
exceed one (1) million Shares.  To
the extent any Option granted under the Plan shall for any reason expire or
otherwise terminate or become unexercisable, in whole or in part, without
having been exercised in full, the Shares not acquired under such Option shall
revert to and thereafter be available for future grants under the Plan.


 


(b)                                 CAPITAL
CHANGES.  In the event of any
extraordinary dividend or other distribution (whether in the form of cash,
Shares, other securities, or other property), recapitalization,
reclassification, stock split, reverse stock split, spin-off, or exchange of
Shares or other securities of the Company, issuance of warrants or other rights
to purchase Shares or other securities of the Company, or other similar corporate
transaction or event (an “Event”), and such Event affects the Shares such that
an adjustment is reasonably determined by the Committee to be 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 an Option, then
the Committee shall, in such manner as it may reasonably deem equitable, take
action to make the appropriate adjustment, including, without limitation,
adjusting any or all of the following: (i) the number and kind of Shares
(or other securities or property) with respect to which Options may be granted
or awarded; (ii) the number and kind of Shares (or other securities or
property) subject to outstanding Options; and (iii) the grant or exercise
price with respect to any Option; provided, however, that no Committee action
under this Section 5(b) shall result in a reduction in the aggregate
value of outstanding Options (whether or not vested) held by any Participant immediately
prior to the Event.  The Committee’s
determination under this Section 5(b) shall be final, binding and
conclusive.  If any of the foregoing
adjustments shall result in a fractional Share, the fraction shall be
disregarded, and the Company shall have no obligation to make any cash or other
payment with respect to such a fractional Share.


 


(c)                                  SALE
PROTECTION.  In the event that the
Company’s Shares are not readily traded on a national exchange or quotations
system, and the Company is sold in a sale or merger, the Fair Market Value of
the Shares received upon the exercise of each vested Option shall be the value
per Share payable or used in such transaction.


 


(d)                                 TERMINATION
OF OPTIONS. Unless otherwise provided in an Option Agreement and except in the
case of a Change in Control (as defined below) which shall have the effect provided
by Section 11, upon the occurrence of an Event or other corporate event or
transaction in which outstanding Options are not to be assumed or otherwise continued
following such an Event or other corporate event or transaction, the


 


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Committee may,
in its discretion, terminate any outstanding Option without a Participant’s consent
and (i) provide for the purchase of any such Option for an amount of cash
equal to the positive amount (if any) that could have been attained upon the
exercise of such Option or realization of the Participant’s rights had such
Option been currently exercisable or payable or fully vested, net of the
exercise price for such Option; and/or (ii) provide that such Option shall
be exercisable (whether or not vested) as to all Shares covered thereby for at
least thirty (30) days prior to such an Event or other corporate event or
transaction.


 


(e)                                  FUTURE
TRANSACTIONS.  The existence of the Plan,
any Option Agreement and the Options granted hereunder shall not affect or
restrict in any way the right or power of the Company or the shareholders of
the Company to make or authorize any adjustment, recapitalization, reorganization
or other change in the Company’s capital structure or its business, any merger
or consolidation of the Company, any issue of stock or of options, warrants or
rights to purchase stock or of bonds, debentures, preferred or prior preference
stocks whose rights are superior to or affect the Shares or the rights thereof
or which are convertible into or exchangeable for Shares, or the dissolution or
liquidation of the Company, or any sale or transfer of all or any part of its
assets or business, or any other corporate act or proceeding, whether of a
similar character or otherwise.


 


6.                                       EXERCISE
OF STOCK OPTIONS.


 


(a)                                  VESTING.
 Except as provided otherwise in this
Plan or the applicable Option Agreement, each Option shall become vested and
exercisable in three (3) equal installments such that the Option may be
exercised as to Shares covered by the first installment from and after the first
anniversary of the date of the grant of the Option, with the second and third
installments becoming vested and exercisable on the two succeeding anniversary
dates.  Except as provided herein, or except
as specifically restricted by the Committee, any Option may be exercised in
whole at any time or in part at any time to the extent that such Shares under
the Option are then vested and exercisable.  In no event, however, may any Option be
exercised after the expiration of its exercise period, as described in Section 6(b),
below.


 


(b)                                 EXERCISE
PERIOD.  Notwithstanding any provision
herein to the contrary, any Option granted pursuant to this Plan shall expire,
to the extent not exercised, no later than the tenth (10th) anniversary of the
date on which it was granted.  Such time
or times shall be set forth in the Option Agreement evidencing such Option.


 


(c)                                  NOTICE
OF EXERCISE.  A Participant electing to
exercise an Option shall give written notice to the Company, as specified by
the Option Agreement, of his election to purchase a specified number of Shares.  Such notice shall be accompanied by the
instrument evidencing such Option and any other documents required by the
Company, and payment of the exercise price of the Shares the Participant has
elected to purchase.  If the notice of
election to exercise is given by the executor or administrator of a deceased
Participant, or by the person or persons to whom the Option has been
transferred by the Participant’s will or the applicable laws of descent and distribution,
the


 


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Company will
be under no obligation to deliver Shares pursuant to such exercise unless and
until the Company is satisfied that the person or persons giving such notice is
or are entitled to exercise the Option.


 


(d)                                 TERMINATION
OF EMPLOYMENT WITHOUT CAUSE OR FOR GOOD REASON.


 


(i)                                     Unless
specifically provided otherwise in the Option Agreement, if the CEO’s
employment is Terminated without Cause by the Company or by the CEO for Good
Reason during the term of his employment agreement, all unvested Options of the
CEO shall vest immediately and all Options held by the CEO shall remain
exercisable for one (1) year following termination of employment, but in
no event later than the expiration date of such Option as specified in the
applicable Option Agreement.  If the
Option is not exercised during this period it shall be void and deemed to have
been forfeited and be of no further force or effect.  In the CEO’s employment terminates on September 30,
2007 upon expiration of the employment term under his employment agreement, any
unvested Options shall terminate immediately and any vested Options shall
remain exercisable for ninety (90) days following termination of employment.  If the Option is not exercised during this
period, it shall be void and deemed to have been forfeited and be of no further
force or effect.


 


(ii)                                  Unless
specifically provided otherwise in the Option Agreement, if the employment of
an Executive or Discretionary Participant is Terminated without Cause by the
Company or by the Executive or Discretionary Participant for Good Reason, all
unvested Options held by the Executive or Discretionary Participant, as the
case may be, shall terminate immediately and any vested Options shall remain
exercisable for six (6) months following the date of such event, but in no
event later than the expiration of such Options as specified in the applicable
Option Agreement.  If the Option is not
exercised during this period, it shall be void and deemed to have been forfeited
and be of no further force or effect.


 


(e)                                  TERMINATION
DUE TO DEATH, DISABILITY OR RETIREMENT.


 


(i)                                     In
addition to any rights under Section 10, upon the death, Disability or
Retirement of the CEO, all unvested Options shall vest immediately and all
Options held by the CEO shall remain exercisable for one (1) year in the
event of death or Disability and six (6) months in the event of Retirement
following the date of any such event, but in no event later than the expiration
date of Option as specified in the applicable Option Agreement.  If the Option is not exercised during this
period it shall be void and deemed to have been forfeited and be of no further
force or effect.


 


(ii)                                  In
addition to any rights under Section 10, upon the death or Disability of
an Executive, a Director or a Discretionary Participant, all unvested Options
shall vest immediately and all Options held by such Executive, Director,


 


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or Discretionary Participant,
as the case may be, shall remain exercisable for six (6) months following
the date of such event, but in no event later than the expiration date of such Option
as specified in the applicable Option Agreement.  If the Option is not exercised during this
period, it shall be void and deemed to have been forfeited and be of no further
force or effect.


 


(iii)                               Upon
the Retirement of the Executive, a Non-Employee Director, or a Discretionary
Participant, all unvested Options shall terminate immediately and all vested
Options held by such Executive, Non-Employee Director or Discretionary
Participant, as the case may be, shall remain exercisable for six (6) months
following the date of such event, but in no event later than the expiration
date of such Options as specified in the applicable Option Agreement.  If the Option is not exercised during this
period, it shall be void and deemed to have been forfeited and be of no further
force or effect.


 


(f)                                    FORFEITURE
BY REASON OF TERMINATION FOR CAUSE OR WITHOUT GOOD REASON.


 


(i)                                     Notwithstanding
the exercise period described in Section 6(b), if the employment or
service of a Participant or a Director is Terminated for Cause by the Company,
all rights or interests in any Option, regardless of the extent to which it
might otherwise have been vested and exercisable on the date of such
Termination for Cause, shall be void and forfeited effective on the date of
such Termination for Cause, and such Option shall no longer be exercisable to
any extent whatsoever.


 


(ii)                                  Unless
specifically provided otherwise in the Option Agreement, if the CEO’s
employment is terminated by the CEO without Good Reason, all unvested Options
held by the CEO shall terminate immediately and all vested Options held by the
CEO shall remain exercisable for thirty (30) days following termination, but in
no event later than the expiration dateof such Option as specified in the
applicable Option Agreement.  If the
Option is not exercised during this period, it shall be void and deemed to have
been forfeited and be of no further force or effect.


 


(iii)                               Unless
specifically provided otherwise in the Option Agreement, if the employment of
any Participant other than the CEO is terminated by the Participant without
Good Reason, all vested and unvested Options held by the Participant shall terminate
immediately and all rights or interests therein shall be void and forfeited
effective on the date of such termination.


 


(g)                                 DISPOSITION
OF TERMINATED STOCK OPTIONS.  Any Shares
subject to Options which have been terminated and forfeited as provided above shall
not thereafter be eligible for purchase by the Participant but shall again be
available for grant by the Board or the Committee to other Participants.


 


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7.                                       RESTRICTIONS
ON RESALE OR DISPOSITION OF SHARES.


 


(a)                                  IN
GENERAL.  Except as specifically provided
in Sections 6(e) and 10, any Shares purchased under this Plan shall not be
assigned, sold, transferred, pledged, hypothecated or otherwise disposed of by
a Participant.


 


(b)                                 ISSUANCE
OF SHARES AND COMPLIANCE WITH SECURITIES LAWS.  The Shares are being offered in reliance upon
an exemption from registration provided by the federal Securities Act of 1933,
as amended (the “Securities Act”), and an exemption from registration provided
by applicable state securities laws.  Accordingly,
a Participant may not sell or transfer the Shares to any person other than the
Company without registering the Shares under the Securities Act or until the Participant
has obtained an opinion of legal counsel satisfactory to the Company that the
sale or disposition is exempt from such registration requirements.  A Participant has no right at any time to require
the Company to register the Shares under federal or state securities laws.  Any person purchasing Shares upon exercise of
an Option issued pursuant to the Plan may be required to make such
representations and furnish such information as may, in the opinion of counsel
for the Company, be appropriate to permit the Company, in light of the existence
or nonexistence with respect to such Shares of an effective registration under
the Securities Act, or any similar state statute, to issue the Shares in
compliance with the provisions of those or any comparable acts.  These restrictions are imposed by federal and
state securities laws.


 


(c)                                  SECURITIES
RESTRICTIONS.  All certificates for
Shares delivered under the Plan shall be subject to such stock-transfer orders
and other restrictions as the Committee may deem advisable under the rules, regulations,
and other requirements of the Securities and Exchange Commission, any stock
exchange upon which the Shares are then listed, and any applicable federal or
state securities law, and the Committee may cause a legend or legends to be put
on any such certificates to make appropriate reference to such restrictions.  If the Committee determines that the issuance
of Shares hereunder is not in compliance with, or subject to an exemption from,
any applicable federal or state securities laws, such shares shall not be
issued until such time as the Committee determines that the issuance is permissible.


 


8.                                       NO
CONTRACT OF EMPLOYMENT.  Unless otherwise
expressed in a separate writing signed by an authorized officer of the Company,
all Employees are employed for an unspecified period of time and are considered
to be “at-will employees.” Nothing in this Plan shall confer upon any
Participant the right to continue in the employ of the Company or any
Subsidiary, nor shall it limit or restrict in any way the right of the Company
or any Subsidiary to discharge the Participant at any time for any reason
whatsoever, with or without cause.


 


9.                                       NO
RIGHTS AS A STOCKHOLDER.  A Participant
shall have no rights as a stockholder with respect to any Shares subject to an
Option unless and until the Participant duly exercises the Option, makes full
payment of the Option price and certificates evidencing ownership of Shares are
issued to the Participant.  Thereafter,
cash dividends, stock dividends, stock splits and other securities and rights
to subscribe shall be paid or distributed with respect to Shares acquired
pursuant to the Plan in the same manner as such items are paid or distributed
to other shareholders of the Company.  Adjustments
to the number and kind of Shares in the event of certain transactions shall be
made as described in Section 5(b).


 


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10.                                 NONTRANSFERABILITY
OF OPTIONS; DEATH OR DISABILITY OF PARTICIPANT.  No Option acquired by a Participant under the
Plan shall be assignable or transferable by a Participant, other than by will
or the laws of descent and distribution, and such Options are exercisable,
during his lifetime, only by the Participant.  In the event of the Participant’s death or Disability,
the Option may be exercised by the personal representative of the Participant’s
estate or if no personal representative has been appointed, by the successor(s)
in interest determined under the Participant’s will or under the applicable
laws of descent and distribution during the exercise period set forth in Section 6(e) herein.
 During such exercise period and only if
price quotations for the Shares are NOT available on any exchange or national
market system, in the case of the death or Disability of the CEO, an Executive,
or a Discretionary Participant, such individual in the case of Disability, or
the beneficial holder of such Option in the case of death, shall have the right
during the exercise period provided in Section 6(e)(i) or (ii), as
applicable, and in accordance with procedures that the Committee, in its
discretion, may establish from time to time, to demand that the Company
purchase each vested Option at a value equal to the value of the difference
between the Fair Market Value of the Shares of the Company and the exercise
price of such Options.


 


11.                                 CHANGE
IN CONTROL.  In the event of a “Change in
Control” (as defined below), all Options shall become exercisable as to all
shares covered thereby without regard to the normal vesting schedule of
the Options: (i) immediately upon the Change in Control if the Change in
Control is of the nature described in Sections 11(a) or (b); or (ii) starting
on a date which is at least thirty (30) days prior to such Change in Control if
the Change in Control is of the nature described in Sections 11(c) or (d).  If the Options will continue to be
outstanding following the Change in Control, such Options will remain fully
exercisable following the Change in Control and will not be subject to any
other vesting schedule, provided that such Options will expire on the
expiration date as specified in the applicable Option Agreement.  “Change in Control” shall mean the occurrence
of any one of the following events:


 


(a)                                  any
“Person” other than an Existing Substantial Shareholder (as defined below)
becomes the Beneficial Owner, directly or indirectly, of securities of the
Company representing a majority of the combined voting power of the Company’s
then outstanding securities (assuming conversion of all outstanding non-voting securities
into voting securities and the exercise of all outstanding options or other convertible
securities);


 


(b)                                 the
following individuals cease for any reason to constitute a majority of the
number of Directors then serving: individuals who, on the Effective Date,
constitute the Board and any new Director (other than a Director whose initial
assumption of office is in connection with an actual or threatened election
contest, including but not limited to, a consent solicitation, relating to the
election of Directors of the Company) whose appointment or election by the Board
or nomination for election by the Company’s stockholders was approved or
recommended by a vote of at least two-thirds (2/3) of the Directors then still
in office who either were Directors on the Effective Date or whose appointment,
election or nomination for election was previously so approved or recommended;


 


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(c)                                  the
consummation of a merger or consolidation of the Company or any direct or
indirect subsidiary of the Company with any other corporation (other than with
an Existing Substantial Shareholder or any of its affiliates), other than (x) a
merger or consolidation which would result in the voting securities of the
Company outstanding immediately prior to such merger or consolidation continuing
to represent, either by remaining outstanding or by being converted into voting
securities of the surviving entity or any parent thereof, a majority of the
combined voting power of the securities of the Company or such surviving entity
or any parent thereof outstanding immediately after such merger or
consolidation, or (y) a merger or consolidation effected to implement a recapitalization
of the Company (or similar transaction) in which no Person, is or becomes the
Beneficial Owner, directly or indirectly, of securities of the Company
representing a majority of the combined voting power of the Company’s then
outstanding securities; or


 


(d)                                 the
stockholders of the Company approve a plan of complete liquidation or
dissolution of the Company or there is consummated an agreement for the sale or
disposition by the Company of all or substantially all of the Company’s assets,
other than a sale or disposition by the Company of all or substantially all of
the Company’s assets to an entity controlled by an Existing Substantial Shareholder
or any of its affiliates, or to an entity a majority of the combined voting
power of the voting securities of which is owned by substantially all of the
stockholders of the Company immediately prior to such sale in substantially the
same proportions as their ownership of the Company immediately prior to such
sale.  As used herein the term “Existing
Substantial Shareholder” means any Person that alone or together with its affiliates
shall be the Beneficial Owner of or entitled to receive more than 15% of New
Common Stock as of the Effective Date.  As
used herein the term “Beneficial Owner” shall have the meaning set forth in Rule 13d-3
under the Exchange Act.  As used herein
the term “Person” shall have the meaning given in Section 3(a)(9) of
the Exchange Act and used in Sections 13(d) and 14(d) thereof, except
that such term shall not include (i) the Company or any subsidiary of the
Company, (ii) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any of its affiliates, (iii) an underwriter
temporarily holding securities pursuant to an offering of such securities or (iv) a
corporation owned, directly or indirectly, by substantially all of the
stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company.


 


12.                                 AMENDMENTS;
DISCONTINUANCE OF PLAN.  The Board may
from time to time alter, amend, suspend, or discontinue the Plan, including, where
applicable, any modifications or amendments as it shall deem advisable for any
reason, including satisfying the requirements of any law or regulation or any change
thereof; provided, however, except as provided in Section 5, that no such
action shall adversely affect the rights and obligations with respect to
Options at that time outstanding under the Plan; and provided further, that no
such action shall, without the approval of the stockholders of the Company, (a) increase
the maximum number of Shares of common stock that may be made subject to
Options (unless necessary to effect the adjustments required by Section 5(b)).


 


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13.                                 WITHHOLDING
TAXES; TAXES SATISFIED BY WITHHOLDING OPTIONED SHARES.


 


(a)                                  GENERALLY.
 The Company or any Subsidiary may take
such steps as it may deem necessary or appropriate for the withholding of any
taxes which the Company or any Subsidiary is required by law or regulation of
any governmental authority, whether federal, state, or local, domestic or
foreign, to withhold in connection with any Option including, but not limited
to, requiring the Participant to pay such tax at the time of exercise or the
withholding of issuance of Shares to be issued upon the exercise of any Option
until the Participant reimburses the Company for the amount the Company is
required to withhold with respect to such taxes, or, at the Company’s sole discretion,
canceling any portion of such issuance of Shares in any amount sufficient to
reimburse itself for the amount it is required to so withhold.


 


(b)                                 SATISFYING
TAXES BY WITHHOLDING OPTIONED SHARES.  Option
Agreements under the Plan may, at the discretion of the Board or the Committee,
contain a provision to the effect that all federal and state taxes required to
be withheld or collected from a Participant upon exercise of an Option may be
satisfied by the withholding of a sufficient number of exercised Shares that
are subject to the Option which, valued at Fair Market Value on the date of
exercise, would be equal to the total withholding obligation of the Participant
for the exercise of such Option; provided, however, that if the Company is a
public reporting corporation, no person who is an “officer” of the Company, as
such term is defined in Rule 3b-2 under the Exchange Act, may elect to
satisfy the withholding of federal and state taxes upon the exercise of an
Option by the withholding of exercised Shares that are subject to the Option, unless
such election is made either (i) at least six (6) months prior to the
date that the exercise of the Option becomes a taxable event or (ii) during
any of the periods beginning on the third business day following the date on
which the Company issues a news release containing the operating results of a
fiscal quarter or fiscal year and ending on the twelfth business day following
such date.  Such election shall be deemed
made upon receipt of notice thereof by an officer of the Company, by mail,
personal delivery, or by facsimile message, and shall (unless notice to the
contrary is provided to the Company) be operative for all Option exercises
which occur during the twelve-month period following the election.


 


14.                                 EFFECTIVE
DATE AND TERM OF PLAN.  The Plan is
effective as of the Effective Date and Options may be granted at any time on or
after such date.  No Options shall be
granted subsequent to August 30, 2014 (which is ten (10) years after
the effective date of the Plan).


 


[Exhibit A -
List of Executives has been omitted from the Agreement as filed with the
Securities and Exchange Commission (the “SEC”). 
The omitted information is filed as Exhibit 10.22 to the Registration
Statement.  The Registrant will furnish
supplementally a copy of any of the omitted exhibit to the SEC upon request
from the SEC.]


 


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