def14a
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
(Rule 14a-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities Exchange Act of
1934
Filed by the Registrant þ
Filed by a Party other than the Registrant o
Check the appropriate box:
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Preliminary Proxy Statement |
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Confidential, For Use of the Commission Only (as permitted by 14a-6(e)(2)) |
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Definitive Proxy Statement |
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Definitive Additional materials |
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Soliciting Material Pursuant To § 240.14a-12 |
SUPERCONDUCTOR TECHNOLOGIES INC.
(Name of Registrant as Specified in Its Charter)
Payment of filing fee (Check the appropriate box):
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No fee required.
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Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
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securities to which transaction applies:
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(3) Per unit price
or other underlying value of transaction
computed pursuant to Exchange Act Rule 0-11 (set forth
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the
amount on which the
filing fee is calculated and state how it was determined):
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(4) Proposed maximum
aggregate value of transaction:
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o Fee paid previously with preliminary materials:
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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.
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(1) Amount previously
paid:
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(2) Form, schedule or
registration statement no.:
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NOTICE OF ANNUAL MEETING OF
STOCKHOLDERS
TO BE HELD ON MAY 20,
2008
To Our Stockholders:
The Annual Meeting of Stockholders (our Annual
Meeting) of Superconductor Technologies Inc. will be
held on Tuesday, May 20, 2008, at 11:00 a.m., Pacific
Time, at our offices at 460 Ward Drive, Santa Barbara,
California for the following purposes, as more fully described
in the accompanying Proxy Statement:
1. To elect two Class 1 Directors to hold office
until our 2011 Annual Meeting or until their successors are
elected and qualified;
2. To amend our 2003 Equity Incentive Plan to delete the
sub-limit for granting restricted stock thereunder;
3. To ratify the appointment of Stonefield Josephson, Inc.
as our independent registered public accounting firm for
2008; and
4. To transact such other business as may properly come
before our Annual Meeting or any adjournment(s) thereof
Only stockholders of record at the close of business on
April 4, 2008 are entitled to notice of and to vote at our
Annual Meeting. A list of stockholders as of this date will be
available during normal business hours for examination at our
offices by any stockholder for any purpose germane to our Annual
Meeting for a period of ten days prior to meeting.
All stockholders are urged to attend our Annual Meeting in
person or by proxy. YOUR VOTE IS IMPORTANT. WHETHER OR NOT
YOU EXPECT TO ATTEND OUR ANNUAL MEETING IN PERSON, PLEASE SIGN
AND SUBMIT YOUR PROXY AS SOON AS POSSIBLE SO THAT YOUR SHARES
CAN BE VOTED AT OUR ANNUAL MEETING IN ACCORDANCE WITH YOUR
INSTRUCTIONS. The proxy is revocable at any time prior to
its exercise and will not affect your right to vote in person in
the event you attend our Annual Meeting.
By Order of the Board of Directors
Jeffrey A. Quiram
President and Chief Executive Officer
Santa Barbara, California
April 14, 2008
TABLE OF CONTENTS
ANNUAL
MEETING TO BE HELD ON MAY 20, 2008
460 Ward Drive
Santa Barbara, California
93111-2310
(805) 690-4500
This Proxy Statement contains information related to the
solicitation of proxies by and on behalf of the Board of
Directors (our Board) of Superconductor
Technologies Inc. for use in connection with our Annual Meeting
of Stockholders to be held on Tuesday, May 20, 2008,
beginning at 11:00 a.m., Pacific Time, at the offices of
Superconductor located at 460 Ward Drive, Santa Barbara,
California 93111, and at any and all adjournments or
postponements thereof. This Proxy Statement and the accompanying
proxy card are being mailed to stockholders on or about
April 18, 2008.
INFORMATION
CONCERNING SOLICITATION AND VOTING
Record
Date
Only holders of record of our voting stock at the close of
business on April 4, 2008 (the Record
Date) are entitled to notice of our Annual Meeting and
to vote at our Annual Meeting. As of the Record Date, we had
15,612,775 shares of our voting common stock issued and
outstanding.
Revocability
of Proxies
Any proxy given pursuant to this solicitation may be revoked by
the person giving it at any time before its use by delivering to
our Secretary, at or before the taking of the vote at our Annual
Meeting, a written notice of revocation or a duly executed proxy
bearing a later date or by attending our Annual Meeting and
voting in person.
Voting
and Solicitation
Each share of common stock is entitled to one vote on all
matters presented at our Annual Meeting. Stockholders do not
have the right to cumulate their votes in the election of
directors.
Shares of common stock represented by properly executed proxies
will, unless such proxies have been previously revoked, be voted
in accordance with the instructions indicated thereon. In the
absence of specific instructions to the contrary, properly
executed unrevoked proxies will be voted: (i) FOR the
election of two nominees for Class 1 director,
(ii) FOR the amendments to our 2003 Equity Incentive Plan
and (iii) FOR the ratification of the selection of
Stonefield Josephson, Inc. as our independent auditors for 2008.
No business other than that set forth in the accompanying Notice
of Annual Meeting of Stockholders is expected to come before our
Annual Meeting. Should any other matter requiring a vote of
stockholders properly arise, the persons named in the enclosed
form of proxy will vote such proxy in accordance with the
recommendation of our Board.
If you will not be able to attend our Annual Meeting to vote in
person, please vote your shares by completing and returning the
accompanying proxy card or by voting electronically via the
Internet or by telephone. To vote by mail, please mark, sign and
date the accompanying proxy card and return it promptly in the
enclosed postage paid envelope. To vote by Internet, go to
www.proxyvote.com and to vote by telephone, call
1-800-690-6903,
and follow the instructions to cast your vote. For voting by
Internet or telephone, you will need to have your
12-digit
control number, located on your proxy card, available. Please do
not return the enclosed paper ballot if you are voting by
Internet or telephone.
We intend to solicit proxies primarily by mail. However,
directors, officers, agents and employees may communicate with
stockholders, banks, brokerage houses and others by telephone,
e-mail, in
person or otherwise to solicit proxies. Additionally, we intend
to post this Proxy Statement on our website for public review.
We have no present plans to hire special employees or paid
solicitors to assist in obtaining proxies, but reserve the
option to do so. All expenses incurred in connection with this
solicitation will be borne by us. We request that brokerage
houses, nominees, custodians, fiduciaries and other like parties
forward the soliciting materials to the underlying beneficial
owners of our Common Stock. We will reimburse reasonable charges
and expenses in doing so.
Quorum;
Abstentions; Broker Non-Votes
The required quorum for the transaction of business at our
Annual Meeting is a majority of the votes eligible to be cast by
holders of shares of our common stock issued and outstanding on
the Record Date. Shares that are voted FOR or
AGAINST a matter are treated as being present at the
meeting for purposes of establishing a quorum and are also
treated as shares entitled to vote at our Annual Meeting with
respect to such matter.
We believe that abstentions should be counted for purposes of
determining both the presence and absence of a quorum for the
transaction of business and the total number of votes cast with
respect to a proposal (other than the election of directors). In
the absence of controlling precedent to the contrary, we intend
to treat abstentions in this manner. Accordingly, abstentions
will have the same effect as a vote against a proposal (other
than the election of directors).
Broker non-votes are shares held in street name for which a
broker returns a proxy card but indicates that instructions have
not been received from the beneficial owners or other persons
entitled to vote and for which the broker does not have
discretionary voting authority. We count broker non-votes for
the purposes of determining the presence or absence of a quorum
for the transaction of business, but not for purposes of
determining the number of votes cast with respect to the
particular proposal on which the broker has expressly not voted.
Thus, a broker non-vote will not affect the outcome of the
voting on a proposal requiring solely a majority of shares voted.
Deadline
for Receipt of Stockholder Proposals
Any stockholder who intends to present a proposal at our 2009
Annual Meeting of Stockholders must ensure that the proposal is
received by the Corporate Secretary at Superconductor
Technologies Inc., 460 Ward Drive, Santa Barbara,
California 93111 not later than December 17, 2008 in order
to be considered for inclusion in our proxy materials for that
meeting.
2
PROPOSAL ONE
ELECTION
OF CLASS 1 DIRECTOR
Our Board currently consists of six directors divided into three
classes Class 1 (Mr. Quiram), Class 2
(Mr. Horowitz, Mr. Kaplan and Mr. Davis) and
Class 3 (Mr. Vellequette and
Mr. Lockton) with the directors in each class
holding office for staggered terms of three years each or until
their successors have been duly elected and qualified.
Class 1 Directors will be elected at this years
Annual Meeting or any adjournments or postponements thereof. The
nominees for election as the Class 1 Director are
Mr. Quiram and Martin A. Kaplan. (In order to equalize the
classes, Mr. Kaplan will be moved to being a
Class 1 Director). Each Class 1 Director
will serve until the year 2011 Annual Meeting or until his
successor is elected and qualified. Assuming the nominees are
elected, we will have six directors serving as follows:
Class 1: Jeffrey A. Quiram, Martin A. Kaplan
Class 2: Lynn J. Davis, Dennis J. Horowitz,
Class 3: John D. Lockton, David W. Vellequette
The accompanying proxy card grants to the holder the power to
vote the proxy for substitute nominees in the event that any
nominee becomes unavailable to serve as a
Class 1 Director. Management presently has no
knowledge that any nominee will refuse or be unable to serve as
a Class 1 Director for the prescribed term.
Required
Vote
Directors are elected by a plurality of the shares
voted. Plurality means that the nominee with the largest number
of votes is elected, up to the maximum number of directors to be
chosen (in this case, two directors). Stockholders can either
vote for the nominee or withhold authority to vote
for the nominee. However, shares that are withheld will have no
effect on the outcome of the election for directors. Broker
non-votes also will not have any effect on the outcome of the
election of the directors.
Board
Recommendation
OUR BOARD RECOMMENDS A VOTE FOR MR.
QUIRAM AND FOR MR. KAPLAN.
Corporate
Governance Policies and Practices
The following is a summary of our corporate governance policies
and practices:
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A majority of the members of our Board are independent
directors, as defined by NASDAQ. Our Board has determined that
all of our directors other than Mr. Quiram are independent.
Independent directors do not receive consulting, legal or other
fees from us other than Board and Committee compensation.
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All of our employees, officers and directors are subject to our
Code of Business Conduct and Ethics Policy, which is available
on our website at www.suptech.com. The ethics policy
meets the requirements of NASDAQ, as well as the code of ethics
requirements of the Securities and Exchange Commission
(SEC). If any material provisions of our Code of
Business Conduct and Ethics Policy are waived for our Chief
Executive Officer or senior financial officers, or if any
substantive changes are made to our policy as they relate to any
director or executive officer, we will disclose that fact on our
website within five (5) business days. In addition, any
other material amendment to our code will be disclosed in the
same manner.
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Our Boards current policy is to separate the roles of
Chairman of our Board and Chief Executive Officer.
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The Audit, Compensation and Governance & Nominating
Committees consist entirely of independent directors.
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Our Board reviews at least annually our business initiatives,
capital projects and budget matters.
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The Audit Committee reviews and approves all related-party
transactions.
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As part of our Code of Business Conduct and Ethics Policy, we
have made a whistleblower hotline available to all
employees for anonymous reporting of financial or other
concerns. The Audit Committee receives directly, without
management participation, all hotline activity reports
concerning accounting, internal controls or auditing matters.
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Stockholder
Communications with Directors
Stockholders who want to communicate with our Board or with a
particular director may send a letter to our Secretary at
Superconductor Technologies Inc., 460 Ward Drive,
Santa Barbara, California 93111. The mailing envelope
should contain a clear notation indicating that the enclosed
letter is a Board Communication or Director
Communication. All such letters should state whether the
intended recipients are all members of our Board or just certain
specified individual directors. The Secretary will circulate the
communications (with the exception of commercial solicitations)
to the appropriate director or directors. Communications marked
Confidential will be forwarded unopened.
Board
Meetings and Committees
During 2007, all of our directors attended at least seventy-five
percent (75%) of (i) the total number of Board meetings and
(ii) the total number of committee meetings on which the
director served.
Board
of Directors
Our Board held a total of seven meetings during the year ended
December 31, 2007. Our Board has three standing
committees an Audit Committee established in
accordance with section 3(a)(58)(A) of the Securities
Exchange Act of 1934, a Compensation Committee and a
Governance & Nominating Committee (the
Nominating Committee). Until April 20,
2007, our Board also had an Executive Committee. Current
committee members are listed below. New committee members will
be appointed at the Board meeting immediately following our
Annual Meeting. The Audit Committee, the Compensation Committee
and the Nominating Committee each have a charter which is
available on our website at www.suptech.com. A copy of
the Audit Committee charter is also attached as Annex A.
Audit
Committee
The principal functions of the Audit Committee are to recommend
selection of independent public auditors to our Board, to review
the scope and results of the year-end audit with management and
the independent auditors, to review our accounting principles
and its system of internal accounting controls and to review our
annual and quarterly reports before filing with the SEC. The
Audit Committee met seven times during 2007. The current members
of the Audit Committee are Dennis J. Horowitz (Chairman), John
D. Lockton, Lynn J. Davis, and David W. Vellequette.
Our Board has determined that all members of the Audit Committee
are independent as defined under the rules of the
SEC and the listing standards of NASDAQ. Our Board has
determined that David Vellequette is a financial
expert who is independent of management in accordance with
the applicable regulations. The material in this paragraph
shall not be deemed to be incorporated by reference by any
general statement incorporating by reference this Proxy
Statement into any filing under the Securities Act of 1933 or
under the Securities Exchange Act of 1934, except to the extent
that it specifically incorporates this information by reference,
and shall not otherwise be deemed soliciting material or filed
under such acts.
Compensation
Committee
The Compensation Committee reviews and approves salaries,
bonuses and other benefits payable to the executive officers and
administers the Management Incentive Plan. The Compensation
Committee is specifically responsible for determining the
compensation of the Chief Executive Officer. The Compensation
Committee met four times during 2007. The current members of the
Compensation Committee are Lynn J. Davis (Chairman), Dennis J.
Horowitz and Martin A. Kaplan. Our Board has determined that all
members of the Compensation Committee are
independent as defined under the rules of the SEC
and the listing standards of NASDAQ. The
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Compensation Committee created the Stock Option Committee
consisting of two members the Compensation Committee
Chairman and the Chief Executive Officer. The purpose of the
Stock Option Committee is to facilitate the timely granting of
stock options in connection with hiring, promotions and other
special situations and therefore meets only periodically as
certain events occur. The Stock Option Committee is empowered to
grant options to non-executive employees up to a preset annual
aggregate limit (120,000 shares for 2007). The Stock Option
Committee made 12 grants during 2007 totaling
45,670 shares. The Compensation Committee supervises these
grants and retains exclusive authority for all executive officer
grants and the annual employee grants. The current members of
the Stock Option Committee are Lynn J. Davis (Chairman) and
Jeffrey Quiram.
Governance &
Nominating Committee
The Nominating Committee is responsible for overseeing and, as
appropriate, making recommendations to our Board regarding,
membership and constitution of our Board and its role in
overseeing our affairs. The Nominating Committee is responsible
for proposing a slate of directors for election by the
stockholders at each annual meeting and for proposing candidates
to fill any vacancies. The Nominating Committee is also
responsible for the corporate governance practices and policies
of our Board and its committees. The current members of the
Nominating Committee are Martin A. Kaplan (Chairman), John D.
Lockton, and David W. Vellequette. The Nominating Committee met
four times in 2007.
The Nominating Committee manages the process for evaluating
current Board members at the time they are considered for
re-nomination. After considering the appropriate skills and
characteristics required on our Board, the current makeup of our
Board, the results of the evaluations, and the wishes of our
Board members to be re-nominated, the Nominating Committee
recommends to our Board whether those individuals should be
re-nominated.
The Nominating Committee periodically reviews with our Board
whether it believes our Board would benefit from adding a new
member(s), and if so, the appropriate skills and characteristics
required for the new member(s). If our Board determines that a
new member would be beneficial, the Nominating Committee
solicits and receives recommendations for candidates and manages
the process for evaluating candidates. All potential candidates,
regardless of their source, are reviewed under the same process.
The Nominating Committee (or its chair) screens the available
information about the potential candidates. Based on the results
of the initial screening, interviews with viable candidates are
scheduled with Nominating Committee members, other members of
our Board and senior members of management. Upon completion of
these interviews and other due diligence, the Nominating
Committee may recommend to our Board the election or nomination
of a candidate.
Candidates for independent Board members have typically been
found through recommendations from directors or others
associated with us. Our stockholders may also recommend
candidates by sending the candidates name and resume to
the Nominating Committee under the provisions set forth above
for communication with our Board. No such suggestions from our
stockholders were received in time for our 2008 Annual Meeting.
The Nominating Committee has no predefined minimum criteria for
selecting Board nominees, although it believes that all
independent directors should share qualities such as,
independence; experience at the corporate, rather than
divisional level, in multi-national organizations larger than
us; relevant, non-competitive experience; and strong
communication and analytical skills. In any given search, the
Nominating Committee may also define particular characteristics
for candidates to balance the overall skills and characteristics
of our Board and our perceived needs. However, during any search
the Nominating Committee reserves the right to modify its stated
search criteria for exceptional candidates.
5
Non-Employee
Director Compensation
Our Board maintains a written compensation policy for its
non-employee directors. The following table summarizes the
compensation policy for board service:
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Annual Retainer(1)
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Cash
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Options(2)
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Chairman of the Board
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$
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40,000
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15,000
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Other Non-Employee Directors
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$
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20,000
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10,000
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Special Grant for New Director (First Year)(3)
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NA
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25,000
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The annual retainer is paid bi-annually and requires the
director attend at least 75% of our Board meetings. |
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Directors receive annual stock option grants on the date of each
annual meeting. These options vest in three equal annual
installments on each anniversary of the grant date. |
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New directors receive an initial stock option grant for
25,000 shares of common stock on the date they join our
Board. The option vests in three equal annual installments on
each anniversary of the grant date. |
Our Board provides additional compensation for service as
chairman of its standing committees as follows:
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Annual Retainer(1)
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Cash
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Audit Committee Chairman
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$
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10,000
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Compensation Committee Chairman
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$
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10,000
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Nominating Committee Chairman
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$
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10,000
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The annual retainer is paid bi-annually. |
Non-employee directors do not receive compensation from us other
than as a director or as committee member. There are no family
relationships among our directors and executive officers.
DIRECTORS
AND EXECUTIVE OFFICERS
The following table sets forth certain information regarding
those individuals currently serving as our directors (or
nominated to serve as a director) and executive officers:
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Name
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Age
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Position
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John D. Lockton(1)(3)
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70
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Chairman of the Board
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Lynn J. Davis(1)(2)(4)
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61
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Director
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Dennis J. Horowitz(1)(2)
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61
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Director
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Martin A. Kaplan(2)(3)
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70
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Director
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David W. Vellequette(1)(3)
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52
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Director
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Jeffrey A. Quiram(4)
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47
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President, Chief Executive Officer and Director
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William J. Buchanan
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Controller, Principal Financial Officer, Principal Accounting
Officer
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Robert B. Hammond, Ph.D.
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60
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Senior Vice President, Chief Technical Officer
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Robert L. Johnson
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57
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Senior Vice President, Operations
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Terry A. White
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56
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Vice President, Worldwide Sales
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Adam L. Shelton
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41
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Vice President, Product Management and Marketing
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Thomas R. Giunta
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47
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Vice President, Engineering
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Member of the Audit Committee. |
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Member of the Compensation Committee. |
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Member of Nominating Committee. |
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Member of Stock Option Committee. |
6
John Lockton joined our Board in December 1997 and was
named Chairman of our Board in 2001. Mr. Lockton is a
founder, initial chairman and is now a consultant to IPWireless,
Inc., a wireless internet access and IP telephony service
provider of 3G technology. From 1991 to 1998, he was President,
Chief Executive Officer and a director of International Wireless
Communications, Inc. (IWC), an operator of cellular
systems and in 1998 he served IWC as Vice-Chairman and a
director. From 1990 to 1991 he was Managing Partner of Corporate
Technology Partners, a joint venture with Bell Canada
Enterprises. In 1988, Mr. Lockton founded Cellular Data,
Inc., a cellular wireless data technology company, and Star
Associates, Inc., a cellular radio RSA company. He founded and
was a director of Interactive Network, Inc., a wireless-based
television company, and was Chairman of that companys
Board of Directors until 1994. From 1983 to 1987
Mr. Lockton was Executive Vice President of Pacific Bell
(now part of SBC Communications). From 1980 to 1983 he was
President of Warner Amex (now Time Warner) Cable Television,
Inc. From 1968 to 1980 Mr. Lockton held various senior
positions at Dun & Bradstreet. Mr. Lockton is the
primary inventor of a patented wireless technology for Personal
Communication Services (PCS). Mr. Lockton is a graduate of
Yale University (Phi Beta Kappa), Harvard Law School, and holds
an Executive M.B.A. from Columbia University.
Lynn J. Davis was appointed to our Board in 2005. In 2006
he retired as President, Chief Operating Officer and director of
August Technology, a manufacturer of inspection equipment for
the semiconductor fabrication industry, which he joined in 2005.
From 2002 to 2004, he was a partner at Tate Capital Partners
Fund, LLC, a private investment firm he co-founded. Prior to
Tate, Mr. Davis was an employee of ADC Telecommunications
for 28 years, serving in 14 management positions, including
corporate president, group president and chief operating
officer. He is also a member of the Board of Directors of
Flexsteel Industries Inc., a furniture manufacturer.
Mr. Davis holds a B.S. in electrical engineering from Iowa
State University and an M.B.A. from the University of Minnesota.
Dennis J. Horowitz has served on our Board since 1990.
Mr. Horowitz is currently President of DH Partners, a
consulting Company that helps Chinese and American Companies
develop businesses in many locations, especially Mexico. He
retired as Chairman of the Board of Wolverine Tube, Inc., a
manufacturer and distributor of copper and copper alloy tube, of
which he had been the Chairman and CEO through 2005, after
joining the firm in 1998. From 1994 to 1997, he served as
Corporate Vice President and President of the Americas of AMP
Incorporated, an interconnection device company. From 1993 to
1994, Mr. Horowitz served as President and Chief Executive
Officer of Philips Technologies, a Philips Electronics North
America company. From 1990 to 1993, he served as President and
Chief Executive Officer of Philips Components, Discrete Products
Division. From 1988 to 1990, he served as President and Chief
Executive Officer of Magnavox CATV, and from 1980 to 1988 was
involved in the general administration of North American Philips
Corporation. Mr. Horowitz holds an M.B.A and a B.A. in
economics from St. Johns University.
Martin A. Kaplan was appointed to our Board in 2002.
Since 2000, Mr. Kaplan has served as Chairman of the Board
of JDS Uniphase, Inc., a telecommunications equipment company.
Mr. Kaplan also serves as a director of Tekelec. In a
career spanning forty years, Mr. Kaplan served as Executive
Vice-President of Pacific Telesis Group, which became a
subsidiary of SBC Communications in 1997, from 1986 until 2000,
as President, Network Services Group of Pacific Bell, and its
successor, Pacific Telesis, and in various other senior
management positions. Mr. Kaplan earned a B.S. in
engineering from California Institute of Technology.
David W. Vellequette was appointed to our Board on
January 18, 2007. Mr. Vellequette currently serves as
Chief Financial Officer of JDS Uniphase, Inc., a world leader in
optical communications, broadband and test and measurement, and
optical commercial and consumer applications, a position he has
held since 2005. He joined JDSU as Vice President and Operations
Controller in 2004, having previously served as Vice President
of Worldwide Sales and Service Operations at Openwave Systems,
Inc., an independent provider of software solutions for the
mobile communications and media industries, from 2002 to 2004.
From 1992 to 2002, Mr. Vellequette served as Corporate
Controller of StrataCom Corporation which was acquired by Cisco
Systems, Inc. in 1996, and subsequently, as Vice President of
Finance of Cisco Systems, the worldwide leader in networking for
the Internet. From 1984 to 1992, Mr. Vellequette was
Corporate Controller at Altera Corporation, a supplier of
programmable silicon solutions to the electronics industry.
Mr. Vellequette began his finance career as an auditor with
Ernst and Young. He holds a B.S. in Accounting from the
University of California, Berkeley, and is a CPA.
7
Jeffrey A. Quiram has been a member of our Board and our
President and Chief Executive Officer since 2005. From 1991 to
2004, Mr. Quiram served ADC Telecommunications in a variety
of management roles, including Vice President of its business
wireless unit. Mr. Quiram has a BS in Quantitative Methods
and Computer Science from College of St. Thomas, and an MBA from
University of Minnesota.
William J. Buchanan joined us in 1998 and has served as
our Controller since 2000. For 16 years prior to joining
us, he was a self-employed private investor and investment
advisor. For the nine years prior to that, he served in various
executive and accounting positions with Applied Magnetics Corp
and Raytheon Co. Mr. Buchanan holds a B.A. in Economics
from California State University, Fresno.
Robert B. Hammond, Ph.D., has served as our Senior Vice
President and Chief Technical Officer since 1992.
Dr. Hammond served as our Vice President of Technology, and
Chief Technical Officer, until August 1990. He has also served
as Secretary from October 1999 to 2002. From May 1991 to
December 1991, and July 1992 to December 1992, he served as
Acting Chief Operating Officer. From December 1987 to August
1990, he served as Program Manager. Dr. Hammond also serves
on our Technical Advisory Board. For over eleven years prior to
joining us, he was at Los Alamos National Laboratory, most
recently as Deputy Group Leader of Electronics Research and
Development a group that performs research,
development, and pilot production of solid-state electronics and
optics. Dr. Hammond received his Ph.D. and M.S. in applied
physics and his B.S. in physics from the California Institute of
Technology.
Robert L. Johnson is our Senior Vice President,
Operations. Mr. Johnson joined us in 2000 as Vice President
of Wireless Manufacturing. From 1996 to 2000, Mr. Johnson
was the Director and General Manager of Schlumberger ATE. From
1990 to 1996, he served as Vice President and General Manager of
Harman International Industries. Mr. Johnson majored in
industrial engineering at Arizona State University.
Terry A. White was appointed our Vice President Worldwide
Sales in 2005. From 2003 to 2005, Mr. White was Vice
President of Worldwide Sales for Mahi Networks, a telecom
company. From 2002 to 2003, Mr. White was Vice President of
Global Sales at Turnstone Systems. Prior to that position and
from 1992 to 2001, he held various positions at ADC
Telecommunications. His most recent position at ADC was Senior
Vice President of BIA Sales. Mr. White has been employed in
sales management for more than 20 years. Mr. White
holds a Bachelor of Arts degree from Kennesaw College.
Adam L. Shelton joined us in 2006 as Vice President,
Product Management and Marketing. From 2005 to 2006,
Mr. Shelton was the Senior Director of Marketing for
Motorola where he was responsible for the marketing of Motorola
Networks products. From 2003 to 2005, he was the Senior Director
of Marketing for Advanced Fibre Communications (AFC), now
Tellabs. Mr. Shelton also held various management and
executive management positions with Mahi Networks, ATU
Communications and Bell Canada. Mr. Shelton graduated with
deans honors as a Civil Engineering Technologist from
Seneca College in Toronto, Canada.
Thomas R. Giunta was appointed as our Vice President
Engineering in March 2008. Prior to joining us, from 2004 to
2008 Mr. Giunta held senior management positions in
Motorolas IP Video Solutions and Motorola Wireline
Networks organizations, where he was responsible for video
compression and networking products. From 2002 to 2004, he
served as vice president, switching development engineering at
Ciena Corporation, where he was responsible for Cienas
CoreDirector optical core network switching platform. In
addition, he previously served in senior leadership and senior
engineering/product development and management roles at Mahi
Networks, Advanced Fibre Communications, Fujitsu Network
Communications and Alcatel. Giunta holds an MBA from the W.P.
Carey School of Business at Arizona State University and
Bachelor of Science degree in Computer Science from Florida
International University.
8
VOTING
SECURITIES OF PRINCIPAL STOCKHOLDERS AND MANAGEMENT
The following table sets forth the beneficial ownership of our
common stock as of April 4, 2008 by (i) each person
known by us to be the beneficial owner of more than five percent
(5%) of our outstanding common stock (based upon review of 13F
and 13G filings as of March 31, 2008), (ii) each of
our directors, (iii) each of the executive officers named
in the table under Executive Compensation
Summary Compensation Table, and (iv) all of our
directors and executive officers as a group. Except as otherwise
indicated in the footnotes to the table, (i) the persons
and entities named in the table have sole voting and investment
power with respect to all shares beneficially owned, subject to
community property laws where applicable, and (ii) the
business address of each person is 460 Ward Drive,
Santa Barbara, California 93111.
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Number of
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Name
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Shares(3)
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Percentage Ownership
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Hunchun Baoli Communications Co. Ltd
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2,148,296
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(1)
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13.8
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%
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Bldg. D, Longha Huayuan
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Hunchun City, Jilin Province
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China
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Kopp Investment Advisors, LLC
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1,066,600
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(2)
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6.8
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%
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7701 France Avenue South, #500
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Edina, MN 55435
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Jeffrey A. Quiram
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120,000
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*
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William Buchanan
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*
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Robert L. Johnson
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7,500
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*
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Robert B. Hammond
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50,000
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*
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Adam L. Shelton
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34,646
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*
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John D. Lockton
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11,400
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*
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Dennis J. Horowitz
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15,500
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*
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Lynn J. Davis
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5,350
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*
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Martin A. Kaplan
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12,030
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*
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David W. Vellequette
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625
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*
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All executive officers and directors as a group (12 persons)
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359,551
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2
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%
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* |
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Less than one percent. |
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(1) |
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Based on amounts purchased from us in February 2008. Hunchun
Baoli Communications Co. Ltd also owns 387,321 shares of
our Series A Preferred Stock. Subject to the terms and
conditions of our Series A Preferred Stock and to customary
adjustments to the conversion rate, each share of our
Series A Preferred Stock is convertible into 10 shares
of our common stock so long as the number of shares of our
common stock beneficially owned by the holder and related
parties following such conversion does not exceed 9.9% of our
outstanding common stock. As a result of Hunchun Baoli
Communications Co. Ltds ownership of our common stock,
none of its Series A Preferred is currently convertible. |
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(2) |
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Based on information reported in a Schedule 13G filed by
Kopp Investment Advisors, LLC, on behalf of Kopp Investment
Advisors, LLC, Kopp Holding Company, LLC, Kopp Holding Company
and Leroy C. Kopp. Kopp Investment Advisers is an investment
adviser registered under the Investment Advisers Act of 1940. It
is wholly-owned by Kopp Holding Company, LLC which is controlled
by Mr. Kopp through Kopp Holding Company. Of the 1,066,600,
239,100 shares are held in a fiduciary or representative
capacity. Accordingly, persons other than the listed persons
have the right to receive, or the power to direct the receipt
of, dividends from, or the proceeds from the sale of, such
sales. No person individually has an interest that relates to
more than five percent of our common stock. |
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(3) |
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Includes shares issuable upon the exercise of stock options that
are exercisable within 60 days of April 4, 2008 as
follows: Mr. Quiram, 120,000 shares;
Mr. Horowitz, 15,100 shares; Mr. Lockton,
11,400 shares; Mr. Kaplan, 9,110 shares;
Mr. Davis, 5,350 shares; Mr. Shelton,
28,646 shares; Mr. Vellequette, 625 shares; and
all executive officers and directors as a group,
290,631 shares. |
9
Section 16(a)
Beneficial Ownership Reporting Compliance
Under Section 16(a) of the Securities Exchange Act of 1934,
our directors, executive officers and significant stockholders
(defined by statute as stockholders beneficially owning more
than ten percent (10%) of the common stock) are required to file
with the Securities and Exchange Commission and us reports of
ownership, and changes in ownership, of our common stock. Based
solely on a review of the reports, and on written
representations by certain directors and executive officers,
received by us, we believe that all of our executive officers,
directors and significant stockholders complied with all
applicable filing requirements under Section 16(a) during
2007.
EXECUTIVE
COMPENSATION
COMPENSATION
DISCUSSION AND ANALYSIS
Overview
of Compensation Program
The Compensation Committee is responsible for oversight of our
compensation and employee benefit plans and practices, including
our executive compensation, incentive-compensation and
equity-based plans. The Compensation Committee also establishes
our policies with respect to compensation of executive officers,
including our named executive officers (as defined below) and
reviews and presents to our Board for its approval our executive
compensation disclosures as required by the SEC to be included
in our annual proxy statement or annual report on
Form 10-K
filed with the SEC. Our executive compensation programs are
designed to attract, motivate and retain the executive talent
needed to optimize stockholder value. The programs are designed
to enhance stockholder value by aligning the financial interests
of our executive officers with those of our stockholders.
Throughout this Proxy Statement, we refer to the individuals who
served as our Chief Executive Officer and Chief Financial
Officer during 2007, as well as the other individuals included
in the Summary Compensation Table below, as our named
executive officers.
Compensation
Philosophy and Objectives
We seek to maintain a competitive total compensation package
that aligns the economic interest of our named executive
officers with that of our stockholders and rewards individual
and corporate performance, while also considering multiple
factors including competitive compensation, our budget, the
accounting and tax treatment and any impact on share dilution.
Our executive compensation programs are based on the belief that
the interests of our executives should be closely aligned with
our stockholders. In support of this philosophy, a meaningful
portion of each executives compensation is placed at-risk
and is linked to the accomplishment of specific results that are
expected to lead to the creation of value for stockholders from
both a short-term and long-term perspective.
The Compensation Committee uses data from the Radford Executive
Survey, a nationally recognized executive compensation survey,
to review and compare our compensation levels to market
compensation levels, taking into consideration the other
companies size, the industry, and the individual
executives level of responsibility, as well as from
anecdotal data regarding the compensation practices of other
employers. We do not annually benchmark our executive
compensation against a defined peer group, since we believe that
defining such a group is difficult and would not materially
affect our decisions. The Compensation Committee does not
generally hire an outside consulting firm to assist with
compensation, as we believe that the value of doing so is
exceeded by the costs.
2007
Executive Compensation Components
For the year ended December 31, 2007, the principal
components of compensation for our named executive officers were:
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base salary;
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annual bonuses;
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long-term equity incentive compensation; and
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perquisites and other personal benefits.
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10
While the elements of compensation are considered separately,
the Compensation Committee takes into account the total
compensation package afforded by us to the individual executive.
Base Salary. We pay our named executive
officers a base salary to provide a minimum compensation level
and to reflect the perceived current value of each executive
relative to his or her peers. We establish base salary levels
for executive officers based on factors such as (i) the
responsibilities of the position, (ii) the
individuals performance and perceived ability to influence
our financial performance in the short and long-term,
(iii) the compensation of our other employees and
(iv) our evaluation of salaries for similar positions at
other employers. The base salaries for some of our named
executive officers are set in their employment agreements with
us. Subject to any applicable employment agreements, the
Compensation Committee reviews the salaries of the executive
officers (including the Chief Executive Officer) annually as
well as upon any promotion or other significant change in job
responsibility. Changes in base salary may reflect changes in
the cost of living, changes in compensation paid by our peer
group and other employers, or the Compensation Committees
assessment, in consultation with our management, of the
individuals performance. The Compensation Committee did
not increase the base salary for any of our named executive
officers in 2007. For the amount of the base salary of each of
our named executive officers for 2007, see SUMMARY OF
COMPENSATION. Although the rate of payment of base salary
was not increased for 2007, the actual amounts paid for 2007
base salaries to our named executive officers as shown in that
table increased from that in 2006 because of partial years and
salary increases in March, 2006.
Annual Bonuses. We maintain a bonus plan for
executive officers and selected other members of senior
management. Our bonus plan is intended to provide incentives to
senior management for achieving certain objective performance
goals. Under the plan, the Compensation Committee establishes
financial and other pertinent objectives for the period. The
Compensation Committee also retains the authority to award
discretionary bonuses for performance in other aspects of the
business not covered by the established goals. At the beginning
of 2007, the Compensation Committee established the performance
target of $34.8 million in net revenue and assigned each
named executive officer an annual target bonus amount based on a
percentage of his or her base salary as follows:
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Name
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% of Base Salary
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Jeffrey A. Quiram
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100
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William J. Buchanan
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40
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Robert L. Johnson
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40
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Robert B. Hammond
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40
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Adam L. Shelton
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40
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The financial objectives established by the Compensation
Committee for 2007 were not met, and no bonuses were paid based
on quantitative targets. The Compensation Committee did award
discretionary bonuses based on its assessment of significant
accomplishments during 2007 with respect to the establishment of
our Chinese joint venture, the raising of additional capital and
the management of the business through significant financial
challenges. These bonuses, as a percentage of base salary, were
significantly less than the bonus targets set at the beginning
of the year based on the quantitative measures. For the amount
of the cash bonus of each of our named executive officers for
2007, see SUMMARY OF COMPENSATION.
Long-term equity incentive compensation. We
grant stock options and stock awards to our named executive
officers to attempt to align their interests with those of our
stockholders, to encourage long term retention of executives and
to reward share price appreciation and the attainment of other
corporate goals over a multi-year period. In addition to any
periodic grants, stock option grants and awards may be made to
executive officers, for example: upon initial employment, upon
promotion to a new, higher level position that entails increased
responsibilities and accountability, for the recognition of
superior performance, or as an incentive for continued service
with us as well as continued superior performance. The
Compensation Committee takes into account the total compensation
offered to our named executive officers when considering the
number of options awarded. In 2007, no stock awards or stock
options were awarded to our named executive officers.
Perquisites and Other Personal Benefits. Our
named executive officers participate in our employee plans on
the same basis as other employees, including vacation, medical
and health benefits and our retirement savings plan under
Section 401(k) of the Internal Revenue Code. In addition,
we provide our named executive officers with
11
limited perquisites and other personal benefits that we believe
are reasonable and consistent with our overall compensation
program to better enable us to attract and retain superior
employees for key positions, which include (i) living and
commuting expenses for Messrs. Quiram and Shelton, and
(ii) life insurance premiums for all named executive
officers. These benefits are considered by the Compensation
Committee in its review of compensation for our named executive
officers. We believe these perquisites, while not representing a
significant portion of our named executive officers total
compensation, reflect our intent to create overall market
comparable compensation packages. For information concerning the
value of the perquisites of each of our named executive officers
during 2007, see SUMMARY OF COMPENSATION.
Tax and
Accounting Implications
Section 162(m) of the Internal Revenue Code generally
disallows a tax deduction to public corporations for
compensation paid to executive officers in excess of $1,000,000
during any fiscal year. It is the current policy of the
Compensation Committee to preserve, to the extent reasonably
possible, our ability to obtain a corporate tax deduction for
compensation paid to executive officers to the extent consistent
with our best interests. However, the Compensation Committee
believes that its primary responsibility is to provide a
compensation program that will attract, retain and reward the
executive talent necessary for our success. Consequently, the
Compensation Committee recognizes that the loss of a tax
deduction may be necessary in some circumstances. We believe
that the compensation paid to our named executive officers in
2007 should generally be fully deductible for federal income tax
purposes.
We account for stock-based payments, including awards under our
Management Incentive Plan, in accordance with the requirements
of FASB Statement 123(R).
Change of
Control Payments
As described below under Principal Compensation Agreements
and Plans Change of Control Agreements, we are
obligated under the employment contracts with
Messrs. Quiram and White and change of control agreements
with Messrs. Hammond, Johnson and Shelton to make severance
payments to such officers in the event their employment is
terminated under certain circumstances within 24 months
after a change of control as defined in those agreements. We
believe that these payments were necessary to attract and retain
these officers.
Role of
Executive Officers in Compensation Decisions
Under its charter, the Compensation Committee makes all
compensation decisions with respect to the Chief Executive
Officer and makes recommendations to our Board regarding
non-equity compensation and equity awards to our other named
executive officers and all other elected officers. In doing so,
with respect to named executive officers other than the Chief
Executive Officer, the Compensation Committee generally receives
a recommendation from our Chief Executive Officer and other
officers as appropriate. Our Chief Executive Officer also
generally recommends the number of options to be granted to
executive officers, within a range associated with the
individual executives salary level, and presents this to
the Compensation Committee for its review and approval.
Compensation
Committee Interlocks and Insider Participation
The Compensation Committee is composed of three non-employee
directors Lynn J. Davis (Chairman), Dennis J.
Horowitz and Martin A. Kaplan. No interlocking relationship
exists between our Board and the compensation committee of any
other company, and no such interlocking relationship has existed
in the past.
12
COMPENSATION
COMMITTEE REPORT
The Compensation Committee has reviewed and discussed the
Compensation Discussion and Analysis required by
Item 402(b) of
Regulation S-K
with management and, based on such review and discussions, the
Compensation Committee recommended to our Board that the
Compensation Discussion and Analysis be included in this Proxy
Statement.
THE COMPENSATION COMMITTEE
Lynn J. Davis, Chairman
Dennis J. Horowitz
Martin A. Kaplan
PRINCIPAL
COMPENSATION AGREEMENTS AND PLANS
Employment
Agreements
Jeffrey A. Quiram. We entered into an
employment agreement with Mr. Quiram in 2005, which we
amended in 2007 to comply with the deferred compensation rules
under the Internal Revenue Code. The employment agreement
provides for the following:
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Appointment as President, Chief Executive Officer and a member
of our Board;
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A base salary, which has been $315,000 per year since 2006;
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A bonus of up to 100% of his base salary based upon achievement
of annual performance goals to be developed by the Compensation
Committee and Mr. Quiram;
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Initial stock option grants totaling 240,000 shares of
stock;
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Accelerated vesting of all his equity grants in the event of an
Involuntary Termination or Change of Control (both as defined in
his employment agreement);
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A severance payment equal to one years salary and
continued benefits for one year in the event of involuntary
termination;
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In the event of a Change of Control , whether or not he is
terminated, Mr. Quiram is entitled to (i) payment of
two times his annual base salary, (ii) 24 months of
benefits coverage, and (iii) accelerated vesting of all of
his outstanding equity grants;
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Payment or reimbursement of travel expenses from his present
home in Minnesota and the lease of an apartment for
Mr. Quiram near our Santa Barbara headquarters. We are
also obligated to make a special indemnity payment for any taxes
resulting from the payment or reimbursement of such
expenses; and
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Lease of an automobile.
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Terry A. White. We entered into an employment
agreement with Mr. White in 2005, which we amended in 2007
to comply with the deferred compensation rules under the
Internal Revenue Code. The employment agreement provides for the
following:
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Appointment as Vice President Worldwide Sales;
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A base salary of $220,000 per year;
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An annual sales bonus;
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A stock option for 100,000 shares of stock;
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A severance payment equal to six months salary and continued
benefits for six months in the event of Involuntary Termination
(as defined in his employment agreement), which is increased to
12 months if his employment is terminated following a
Change On Control (as defined in his employment agreement);
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13
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In the event of a Change of Control, whether or not he is
terminated, he shall receive (i) accelerated vesting of 50%
of his options and (ii) accelerated vesting of his
remaining options if he does not resign from us for six months
after the Change of Control; and
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Accelerated vesting of his stock options in the event of an
Involuntary Termination or a Change of Control.
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Change of Control Agreements. We also have
change of control agreements with
Messrs. Hammond, Johnson and Shelton. These change of
control agreements generally provide that, if the
employees employment is terminated within twenty-four
months of a Change of Control (as defined in the
change of control agreements) either (i) by us for any
reason other than death, Cause or
Disability (as both terms are defined in the change
of control agreements) or (ii) by the employee for
Good Reason (as defined in the change of control
agreements), then the terminated employee will be entitled to a
severance benefits salary continuation payments and continuation
of health/life insurance benefits for 18 months and
accelerated vesting for all outstanding unvested stock options
and similar equity securities held by the employee. Any payments
or distributions made to or for the benefit of the named
employees under these change of control agreements will be
reduced, if necessary, to an amount that would result in no
excise taxes being imposed under Internal Revenue Code
Section 4999.
Stock
Option Plan
We presently have a single plan for granting equity
incentives the 2003 Equity Incentive Plan (as
amended, the Plan). The following summarizes
the essential features of the Plan. A copy of the Plan is
attached to this Proxy Statement, and you are encouraged to read
it in full for its precise terms. We are asking that
stockholders approve an amendment to the Plan under
Proposal Two. In addition to stock options outstanding
under the Plan, we have stock options outstanding under the
following prior equity compensation plans: the 1999 Stock Option
Plan, the 1998 Stock Option Plan, the 1992 Stock Option Plan and
the Non-statutory 1992 Directors Option Plan, as well as
the Conductus 2001 Stock Option Plan. All of these plans are
administrated by the Compensation Committee, but no new grants
may be made under any of them except the Plan.
Eligibility The Plan provides for grants to our key
employees, directors and consultants. As of April 14, 2008,
there were approximately 135 employees and directors
eligible to receive awards under the Plan.
Purpose. The purpose of the Plan is to promote
our success, and enhance our value, by linking the personal
interests of participating employees and directors to those of
our stockholders and by providing such employees and directors
with an incentive for outstanding performance. The Plan is
further intended to provide us flexibility in our ability to
motivate, attract and retain the services of participating
employees upon whose judgment, interest and special efforts we
are is largely dependent for the successful conduct of our
operations.
Administration The Plan is administered by the
Compensation Committee.
Types of Awards. The Plan provides for stock
options, stock appreciation rights (SARs),
restricted stock awards, performance unit awards and performance
share awards:
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Options. Plan participants may receive options
to purchase shares of our common stock for an exercise price
fixed on the date of the grant. The exercise price may not be
less than the fair market value of our common stock on the date
of the grant. Grants of option rights under the Plan may be
incentive stock options or non-qualified stock options. An
incentive stock option is an option that is intended to qualify
as an incentive stock option under Section 422
of the Internal Revenue Code. A Plan participant may pay the
exercise price of an option in cash, by check, or by the
transfer of unrestricted shares of our common stock owned for a
period of time acceptable to the Compensation Committee and
having a value at the time of exercise equal to the exercise
price, by any other consideration the plan committee may deem
appropriate, or by a combination thereof. The Compensation
Committee shall determine the vesting schedule and requirements
for continuous service associated with each grant of options and
may provide for earlier vesting under specified circumstances.
The vesting or exercise of option rights may be subject to the
optionee or the achievement of management objectives. No
incentive options shall be exercisable more than 10 years
after the date of grant.
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14
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Stock Appreciation Rights
(SAR). The Plan permits the grant of
three types of SARs: Affiliated SARs, Freestanding SARs, Tandem
SARs, or any combination thereof. An Affiliated SAR is an SAR
that is granted in connection with a related option and which
will be deemed to automatically be exercised simultaneously with
the exercise of the related option. A Freestanding SAR is an SAR
that is granted independently of any options. A Tandem SAR is an
SAR that is granted in connection with a related option, the
exercise of which requires a forfeiture of the right to purchase
a share under the related option (and when a share is purchased
under the option, the SAR is similarly cancelled). The
Compensation Committee has complete discretion to determine the
number of SARs granted to any optionee or recipient and the
terms and conditions pertaining to such SARs. However, the grant
price must be at least equal to the fair market value of a share
of our common stock on the date of grant in the case of a
Freestanding SAR and equal to the option price of the related
option in the case of an Affiliated or Tandem SAR.
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Restricted Stock Awards. The Plan permits the
grant of restricted stock awards which are restricted shares of
our common stock that vest in accordance with terms established
by the Compensation Committee. The Compensation Committee may
impose restrictions and conditions on the shares, including,
without limitation, restrictions based upon the achievement of
specific performance goals (company-wide, divisional
and/or
individual),
and/or
restrictions under applicable federal or state securities laws.
The Compensation Committee may accelerate the time at which any
restrictions lapse,
and/or
remove any restrictions.
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Performance Unit/ Share Awards. The Plan
permits the grant of performance unit and performance share
awards which are bonuses credited to an account established for
the recipient and payable in cash, our common stock, or a
combination thereof. Each performance unit has an initial value
that is established by the Compensation Committee at the time of
its grant. Each performance share has an initial value equal to
the fair market value of a share of our common stock on the date
of its grant. The number
and/or value
of performance unit/shares that will be paid out to recipients
will depend upon the extent to which performance goals
established by the Compensation Committee are satisfied. After a
performance unit/share award has vested, the recipient will be
entitled to receive a payout of the number of performance
unit/shares earned by the recipient, to be determined as a
function of the extent to which the corresponding performance
goals have been achieved. The Compensation Committee also may
waive the achievement of any performance goals for such
performance units/shares. Subject to the applicable award
agreement, performance units/shares awarded to recipients will
be forfeited upon the earlier of the recipients
termination of employment or the date set forth in the award
agreement.
|
Term. No grants of incentive stock options may
be made under the Plan after March 20, 2013. All awards
made under the Plan that remain outstanding subsequent to that
date shall continue to be governed by the terms of the Plan.
Nontransferability of Award. Awards granted
under the Plan may not be sold, transferred, pledged, assigned,
or otherwise alienated or hypothecated, other than by will or by
the applicable laws of descent and distribution. However, an
optionee or recipient may designate one or more beneficiaries to
receive any exercisable or vested awards following his or her
death.
Plan Benefits. As the grant of awards under
the Plan is discretionary, it is impossible to determine the
amount and terms of such future grants under the Plan. Our
common stock underlies all of the options and rights to be
awarded under the Plan. The market value of our common stock at
the close of trading on April 4, 2008 was $4.23 per share.
The limits and sub-limits on the number of awards under the
Plan, and the number of shares and price per share applicable to
any outstanding award, are subject to adjustment in the event of
stock dividends, stock splits, combinations of shares,
recapitalizations, mergers, consolidations or other
reorganizations.
Prohibition on Repricing. The Compensation
Committee may not lower the exercise price of outstanding option
rights without the approval of our stockholders.
Federal Tax Aspects. The following is a
summary of certain federal income tax consequences relating to
awards under the Plan, based on federal income tax laws
currently in effect. This summary is not intended to and does
not describe all of the possible tax consequences that could
result from the acquisition, holding, exercise or
15
disposition of an option right or shares of common stock
purchased or granted pursuant to, or any other award granted
under, the Plan and does not describe any state, local or
foreign tax consequences.
Tax
Consequences to Participants
Incentive Stock Options. A Plan participant
will not recognize income upon the grant of an option intended
to be an incentive stock option. Furthermore, a Plan participant
will not recognize ordinary income upon the exercise of an
incentive stock option if he or she satisfies certain employment
and holding period requirements although the exercise may be
subject to alternative minimum tax. To satisfy the employment
requirement, a Plan participant must exercise the option not
later than three (3) months after he or she ceases to be
our employee (one (1) year if he or she is disabled). To
satisfy the holding period requirement, a Plan participant must
hold the shares acquired upon exercise of the incentive stock
option for more than two (2) years from the grant of the
option and more than one (1) year after the shares are
transferred to him or her. If these requirements are satisfied,
the Plan participant will be taxed on the difference between his
or her basis in the shares and the net proceeds of the sale at
capital gain rates on the sale of the shares.
If a Plan participant disposes of shares of our common stock
acquired upon the exercise of an incentive stock option without
satisfying the holding period requirement, the Plan participant
will usually recognize ordinary income at the time of
disposition equal to the amount of the difference between the
fair market value of that stock on the date the option is
exercised and the exercise price of the option.
Non-Qualified Stock Options. In general, a
Plan participant will not recognize income at the time an option
is granted. At the time of exercise of the option, he or she
will recognize ordinary income if the shares are not subject to
a substantial risk of forfeiture (as defined in Section 83
of the Internal Revenue Code). The amount of such income will be
equal to the difference between the option exercise price and
the fair market value of the shares of our common stock on the
date of exercise. At the time of the sale of the shares of our
common stock acquired pursuant to the exercise of an option,
appreciation in value of the shares after the date of exercise
will be treated as either short-term or long-term capital gain,
and depreciation in value will be treated as short-term or
long-term capital loss, depending on how long the shares have
been held. Long-term capital gains may be eligible for reduced
rates if the participant has satisfied applicable holding period
requirements.
Stock Appreciation Rights. A Plan participant
will not recognize income upon the grant of a stock appreciation
right. In general, a participant will recognize ordinary income
at the time he or she receives payment on a stock appreciation
right in the amount of the payment.
Restricted Shares. In general, a Plan
participant will not recognize ordinary income upon receipt of
restricted shares. The Plan participant will recognize ordinary
income when the shares are transferable by the Plan participant
or are no longer subject to a substantial risk of forfeiture,
whichever occurs first. At such time, the Plan participant will
recognize ordinary income in an amount equal to the current fair
market value of the shares. A Plan participant may, however,
elect to recognize ordinary income when the restricted shares
are granted in an amount equal to the fair market value of the
shares at that time, determined without regard to the
restrictions. Any appreciation in the value of the shares after
the date the shares become transferable or are no longer subject
to substantial risk of forfeiture, or after the participant has
made the election referred to in the preceding sentence, if
applicable, will be treated as either short-term or long-term
capital gain, and any depreciation in value will be treated as
either short-term or long-term capital loss, depending upon how
long the shares have been held.
Performance Units. A Plan participant will not
recognize income upon the grant of performance units. In
general, a Plan participant will recognize ordinary income at
the time he or she receives payment with respect to performance
units in the amount of the payment.
Tax Consequences to us. To the extent that a
Plan participant recognizes ordinary income as described above,
we will be entitled to a corresponding deduction provided that,
among other things, the income meets the test of reasonableness,
is an ordinary and necessary business expense, is not an
excess parachute payment within the meaning of
Section 280G of the Internal Revenue Code and is not
disallowed by the $1,000,000 limitation on certain executive
compensation under Section 162(m) of the Internal Revenue
Code.
16
SUMMARY
COMPENSATION TABLE
The following table sets forth the base salary and other
compensation of our named executive officers with respect to
2006 and 2007:
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|
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|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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(e)
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(f)
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(i)
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(c)
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(d)
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Stock
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Option
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All Other
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(j)
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(a)
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(b)
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Salary
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Bonus
|
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Awards
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Awards
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Compensation
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Total
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Name and Principal Position
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Year
|
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($)
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($)
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($)(1)
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($)(2)
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($)(3)
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($)
|
|
Jeffrey A. Quiram
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2007
|
|
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315,650
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100,000
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|
|
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75,000
|
|
|
|
|
|
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110,885
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|
|
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601,535
|
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Director, President, Chief
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2006
|
|
|
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310,961
|
|
|
|
|
|
|
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31,313
|
|
|
|
|
|
|
|
135,326
|
|
|
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477,600
|
|
Executive Officer
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|
|
|
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|
|
|
|
|
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|
|
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|
|
|
|
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|
|
|
|
|
|
|
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William J. Buchanan
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|
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2007
|
|
|
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205,063
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|
|
|
20,506
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|
|
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15,000
|
|
|
|
|
|
|
|
1,334
|
|
|
|
241,903
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|
Controller and Acting Chief Financial Officer
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|
|
2006
|
|
|
|
188,026
|
|
|
|
|
|
|
|
6,263
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|
|
|
|
|
|
|
9,945
|
|
|
|
204,234
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Robert L. Johnson
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2007
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|
|
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235,400
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|
|
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24,000
|
|
|
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30,000
|
|
|
|
|
|
|
|
1,290
|
|
|
|
290,690
|
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Senior Vice President, Operations
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2006
|
|
|
|
227,244
|
|
|
|
|
|
|
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12,525
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|
|
|
|
|
|
|
1,290
|
|
|
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241,059
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Robert B. Hammond
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2007
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248,442
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24,000
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30,000
|
|
|
|
|
|
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1,290
|
|
|
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303,732
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Senior Vice President,
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2006
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|
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244,087
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|
|
|
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12,525
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|
|
|
|
|
|
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1,290
|
|
|
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257,902
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Chief Technical Officer
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|
|
|
|
|
|
|
|
|
|
|
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|
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|
|
|
|
|
|
|
|
|
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Adam L. Shelton(4)
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2007
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240,000
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|
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24,000
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|
|
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11,250
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|
|
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38,250
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|
|
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46,532
|
|
|
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360,032
|
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Vice President Product
Management and Marketing
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2006
|
|
|
|
170,440
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|
|
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75,000
|
|
|
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4,697
|
|
|
|
28,697
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|
|
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39,745
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|
|
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318,569
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|
|
|
|
(1) |
|
The amounts in column (e) reflect the following 2006
restricted stock awards: Mr. Quiram, 100,000 shares;
Mr. Buchanan, 20,000 shares; Mr. Johnson
40,000 shares; Mr. Hammond, 40,000 shares;
Mr. Shelton, 15,000 shares. There were no restricted
stock awards in 2007. We used the value recognized for financial
statement reporting purposes in accordance with FAS 123(R),
under the assumptions included in footnote 7 to our audited
financial statements for the years ended December 31, 2007
and December 31, 2006 included in our Annual Report to
Stockholders, excluding assumed forfeitures. |
|
(2) |
|
The amounts in column (f) reflect the dollar amount
recognized for financial statement reporting purposes for 2007,
in accordance with FAS 123(R) of awards of options to
purchase the following numbers of shares of our Common Stock, as
follows: for Mr. Shelton, 55,000 shares in 2006.
Assumptions used in the calculation of these amounts are
included in footnote 7 to our audited financial statements for
2007 included in our Annual Report on
Form 10-K
filed with the SEC on March 27, 2007, excluding assumed
forfeitures. |
|
(3) |
|
The amounts shown in column (i) reflect the value
attributable to term life insurance premiums for each named
executive officer as well as other perquisites described below.
Each named executive officer is responsible for paying income
tax on such amounts. The aggregate dollar amount of perquisites
or other personal benefits for our named executive officers is
less than $10,000 for each named executive officer, except with
respect to Messrs. Quiram and Shelton. Pursuant to the
terms of their employment agreements, Mr. Quiram received
$110,435 in 2007 and $134,876 in 2006 for travel expenses from
his home in Minnesota, the lease of an apartment near our
Santa Barbara headquarters, the lease of an automobile, and
special indemnity payments to cover the taxes resulting from the
payment or reimbursement of such travel and housing expenses and
Mr. Shelton received $46,197 in 2007 and $39,416 in 2006
for travel expenses for travel from his home in California to
our headquarters. |
|
(4) |
|
The 2006 numbers for Mr. Shelton are for a partial year. |
GRANTS OF
PLAN BASED AWARDS
We did not make any grants of plan based awards to our named
executive officers in 2007.
17
OUTSTANDING
EQUITY AWARDS AT FISCAL YEAR-END
The following table sets forth certain information with respect
to outstanding equity grants on December 31, 2007:
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Option Awards
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Stock Awards
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Market
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|
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Number of
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|
Number of
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|
|
|
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Number of
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|
Value of
|
|
|
Securities
|
|
Securities
|
|
|
|
|
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Shares or
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|
Shares or
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|
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Underlying
|
|
Underlying
|
|
|
|
|
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Units of
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|
Units of
|
|
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Unexercised
|
|
Unexercised
|
|
Option
|
|
Option
|
|
Stock That
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|
Stock That
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|
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Options (#)
|
|
Options (#)
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|
Exercise
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|
Expiration
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|
Have Not
|
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Have Not
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Name
|
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Exercisable
|
|
Unexercisable
|
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Price
|
|
Date
|
|
Vested
|
|
Vested
|
(a)
|
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(1)(b)
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(2)(c)
|
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($)(e)
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(f)
|
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(3)(g)
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($)(h)
|
|
Jeffrey A Quiram
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|
|
120,000
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|
|
|
|
|
|
|
6.90
|
|
|
|
5/25/2015
|
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|
|
|
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|
|
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|
|
|
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|
|
|
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|
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100,000
|
|
|
|
555,000
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|
William J Buchanan
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
|
|
|
|
|
|
|
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|
|
|
|
|
|
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|
20,000
|
|
|
|
111,000
|
|
Robert L Johnson
|
|
|
|
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
|
40,000
|
|
|
|
222,000
|
|
Robert B Hammond
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
40,000
|
|
|
|
222,000
|
|
Adam L Shelton
|
|
|
22,917
|
|
|
|
32,083
|
|
|
|
4.03
|
|
|
|
4/24/2016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
15,000
|
|
|
|
83,250
|
|
|
|
|
(1) |
|
These options are fully vested. |
|
(2) |
|
We granted options to purchase a total of 55,000 shares to
Mr. Shelton in 2006 and did not grant any options in 2007.
These options vest 25% after one year and ratably, monthly, for
the remaining three years. |
|
(3) |
|
All stock awards were granted in July 2006 and become fully
vested in July 2008. |
OPTION
EXERCISES AND STOCK VESTED
There were no stock options exercised by, nor did any stock
awards become vested for, our named executive officers during
fiscal 2007.
POTENTIAL
PAYMENTS UPON TERMINATION OR CHANGE OF CONTROL
The information below sets forth the amount of compensation we
expect to pay to each of our named executive officers in the
event of termination of such executives employment,
including certain estimates of the amount which would have been
paid on certain dates under what we believe to be reasonable
assumptions. However, the actual amounts to be paid out can only
be determined at the time of such executives termination.
Regardless of the manner in which any of our employees
(including any of our named executive officers) is terminated,
the employee is entitled to receive certain amounts due during
such employees term of employment. Such amounts include:
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Any unpaid base salary from the date of the last payroll to the
date of termination;
|
|
|
|
Any unpaid annual bonus for a previously completed year, unless
specified otherwise;
|
|
|
|
Reimbursement for any properly incurred unreimbursed business
expenses; and
|
|
|
|
unpaid, accrued and unused personal time off through the date of
termination;
|
In addition, the terminated employee will retain certain rights:
|
|
|
|
|
any existing rights to indemnification for prior acts through
the date of termination; and
|
|
|
|
Any stock options awarded pursuant to the Plan to the extent
provided in the Plan and the grant or award.
|
18
In addition to the foregoing, the following sets forth the
payments to be made to our named executive officers on any
termination:
Payments Made Upon Termination by Us Without Cause or by the
Officer for Good Reason. Under his employment
agreement, Mr. Quiram is entitled to receive a severance
payment equal to one years salary and continued benefits
for one year in the event of his involuntary termination, and
all of Mr. Quirams equity grants then outstanding
will vest immediately. Under his employment agreement,
Mr. White is entitled to receive a severance payment equal
to six months salary and continued benefits for six months
in the event of his involuntary termination, and all of
Mr. Whites equity grants then outstanding will vest
immediately. Based on compensation paid in 2007, then unvested
options, and using medical insurance premiums and the price of
our Common Stock as of December 31, 2007, we estimate that
the approximate value of these severance payments on
December 31, 2007 would have been $890,000 for
Mr. Quiram and $350,000 for Mr. White.
Payments on Termination following a Change of
Control. Under his employment agreement, in the
event of a change of control, whether or not he is terminated,
Mr. Quiram is entitled to (i) payment of two times his
annual base salary, (ii) 24 months of benefits
coverage, and (iii) vesting of all of his outstanding
equity grants. Under his employment agreement, in the event of a
change of control, whether or not he is terminated,
Mr. White is entitled to (i) vesting of 50% of his
equity grants and (ii) vesting of his remaining equity
grants if he does not resign from us for six months after the
change of control. In addition, if Mr. Whites
employment is terminated involuntarily following a change of
control, then he is entitled to a lump sum payment equal to one
year of his base salary. Based on compensation paid in 2007,
then unvested equity grants, and using medical insurance
premiums and the price of our Common Stock as of
December 31, 2007, we estimate that the approximate value
of these benefits on December 31, 2007 would have been
$1.2 million for Mr. Quiram, and $111,000 for
Mr. White. If Mr. White does not resign for six months
after the change of control, he would have received an estimated
additional $111,000 in benefits under such assumptions. If
Mr. White is terminated involuntarily following a change of
control, he would have received an estimated additional $220,000
in benefits under such assumptions.
If within twenty-four months of a change of control any of
Messrs. Hammond, Johnson or Shelton (i) is terminated
by us for any reason other than death, cause or
disability or (ii) terminates his employment
for good reason, then the terminated executive will
be entitled to a severance payment equal to 1.5 times the
executives annual base salary, continuation of certain
benefits and immediate vesting of all his equity grants then
outstanding. Based on compensation paid in 2007, then unvested
equity grants, and using medical insurance premiums and the
price of our common stock as of December 31, 2007, we
estimate that the approximate value of these benefits on
December 31, 2006 would have been $620,000 for
Mr. Hammond, $600,000 for Mr. Johnson and $550,000 for
Mr. Shelton.
Payments Made Upon Death or Disability. Except
as noted above, none of our named executive officers have any
contractual severance arrangements on termination or change of
control.
PROPOSAL TWO
APPROVAL
OF AMENDMENT OF THE 2003 EQUITY INCENTIVE PLAN
We believe that our officers and other key employees should have
a significant stake in our stock price performance under
programs which link compensation to stockholder return. As a
result, stock option grants and other equity incentives are an
integral part of our compensation program. The Plan has an
aggregate limit of 2,500,000 shares of our common stock for
all awards and related sub-limits on awards to a single person
and on certain types of equity awards.
At the time the Plan was adopted, we (like most companies) had
historically used only options because of certain tax and
accounting advantages. As a result, section 4.1.2 of the
Plan included a limitation of 360,000 shares available for
issuance pursuant to awards of Restricted Stock, Performance
Units and Performance Shares. Accounting changes since the time
the Plan was adopted have made it commonplace for companies to
grant restricted stock as well as options. This small number of
shares available for issuance as restricted stock as a result of
the section 4.1.2 limitation has effectively removed this
valuable long-term incentive compensation benefit from our
compensation package. Accordingly, our Board is requesting that
you approve the deletion of section 4.1.2 and
19
the special sub-limit on grants of awards of Restricted Stock,
Performance Units and Performance Shares. If Proposal Two
is approved, we would be allowed to make awards of Restricted
Stock, Performance Units and Performance Shares of grants under
the Plan without special restriction, but still subject to any
other applicable limits under the Plan, including the maximum
number of shares available for options of all types of awards to
a single participant in one year, the maximum number of shares
that can be granted in any year, and the maximum number of
shares that may be granted under the Plan.
For a summary description of the Plan, see Executive
Compensation Stock Option Plans. That summary
is qualified in its entirety by reference to the full text of
the amended plan which is attached to this Proxy Statement as
Annex B. The proposed changes to the Plan are shown on
Annex B.
Vote
Required
Proposal Two requires the affirmative vote of a majority of
the votes cast on the proposal. Stockholders may vote
for or against the proposal, or they may
abstain from voting on the proposal. Abstentions and broker
non-votes will not have any effect on the outcome of this
proposal.
Board
Recommendation
THE BOARD OF DIRECTORS RECOMMENDS A VOTE
FOR APPROVAL OF THE AMENDMENT OF THE
2003 EQUITY INCENTIVE PLAN.
PROPOSAL THREE
RATIFICATION
OF APPOINTMENT OF INDEPENDENT AUDITORS
The Audit Committee of our Board has selected Stonefield
Josephson, Inc., an independent registered public accounting
firm, to audit our financial statements for 2008. The Audit
Committee is submitting its selection to the stockholders for
ratification. Stonefield Josephson, Inc. has served as our
auditor since 2006 and has no financial interest of any kind in
us except the professional relationship between auditor and
client. A representative of Stonefield Josephson is expected to
attend the meeting, will be afforded an opportunity to make a
statement if he or she desires to do so, and will be available
to respond to appropriate questions by stockholders.
Required
Vote
Proposal Three requires the affirmative vote of a majority
of the votes cast on the proposal. Stockholders may vote
for or against the proposal, or they may
abstain from voting on the proposal. Abstentions and broker
non-votes will not have any effect on the outcome of this
proposal. In the event the stockholders do not approve this
proposal, the Audit Committee will reconsider the appointment of
Stonefield Josephson, Inc. as our independent auditors.
Board
Recommendation
OUR BOARD RECOMMENDS A VOTE FOR
THIS PROPOSAL.
AUDIT
COMMITTEE REPORT
The Audit Committee reviews our financial reporting process on
behalf of our Board. Management has the primary responsibility
for the financial statements and the reporting process,
including the system of internal controls. The Audit Committee
has reviewed and discussed the audited financial statements with
management. In addition, the Audit Committee has discussed with
the independent auditors the matters required to be discussed by
Statements on Auditing Standards No. 90.
The Audit Committee has also received the written disclosures
and the letter from the independent accountants required by
Independence Standards Board Standard No. 1,
Independence Discussions with Audit Committees,
20
and has discussed with Stonefield Josephson, Inc. its
independence, including whether their provision of other
non-audit services to us is compatible with maintaining its
independence.
The Committee discussed with our independent auditors the
overall scope and plans for the respective audits. The Committee
meets with the independent auditors, with and without management
present to discuss the results of their examinations, the
evaluation of our internal controls and the overall quality of
our reporting.
Based upon the review and discussions referred to in the
foregoing paragraph, the Audit Committee recommended to our
Board that the audited financial statements be included in our
Annual Report on
Form 10-K
for the last year for filing with the Commission. The Audit
Committee and our Board also have recommended, subject to
stockholder approval, the selection of our independent auditors.
No portion of this Audit Committee Report shall be deemed to be
incorporated by reference into any filing under the Securities
Act of 1933, as amended (the Securities Act), or the
Exchange Act, through any general statement incorporating by
reference in its entirety the Proxy Statement in which this
report appears, except to the extent that we specifically
incorporates this report or a portion of it by reference. In
addition, this report shall not be deemed to be filed under
either the Securities Act or the Exchange Act.
AUDIT COMMITTEE
Dennis J. Horowitz (Chairman)
David Vellequette
John D. Lockton
Lynn J. Davis
FEES PAID
TO INDEPENDENT AUDITORS
The Audit Committee regularly reviews and determines whether
specific non-audit projects or expenditures with our independent
auditors, Stonefield Josephson, Inc., potentially affect their
independence. The Audit Committees policy is to
pre-approve all audit and permissible non-audit services
provided by PricewaterhouseCoopers. Pre-approval is generally
provided by the Audit Committee for up to one year, as detailed
as to the particular service or category of services to be
rendered, as is generally subject to a specific budget. The
Audit Committee may also pre-approve additional services of
specific engagements on a
case-by-case
basis.
The following table sets forth the aggregate fees billed to us
by PricewaterhouseCoopers and Stonefield Josephson for 2006 and
Stonefield Josephson, Inc. for 2007, all of which were
pre-approved by the Audit Committee:
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|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
|
|
2006
|
|
|
2007
|
|
|
Audit fees(1)
|
|
$
|
300,293
|
|
|
$
|
236,388
|
|
Audit-related fees(2)
|
|
|
|
|
|
$
|
5,475
|
|
All other fees(3)
|
|
$
|
12,630
|
|
|
$
|
26,415
|
|
Total
|
|
$
|
312,923
|
|
|
$
|
268,278
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
Includes fees for professional services rendered for the audit
of our annual financial statements and review of our annual
report on
Form 10-K
and for reviews of the financial statements included in our
quarterly reports on
Form 10-Q
for the first three quarters of 2007 and 2006. |
|
(2) |
|
Fees related to financial reporting or disclosure matters not
classified as audit services. |
|
(3) |
|
In 2007 these fees related to services rendered for our
S-3
registration, while in 2006 these fees related to services
rendered for our SEC letter response and compliance software
fees. |
21
TRANSACTIONS
WITH RELATED PERSONS
BAOLI Investment. Under an agreement entered
into in 2007, on February 27, 2008, we issued to Hunchun
BaoLi Communication Co. Ltd. (BAOLI) and two
associated purchasers a total of (a) 3,101,361 shares
of our common stock (of which 953,065 must be voted in
accordance with the votes of our other shares, effectively
giving the holder no voting power over such shares) and
(b) 611,523 shares of our Series A Convertible
Preferred Stock (convertible under certain conditions into
6,115,230 shares of our common stock). We received
$15.0 million in cash, of which $4.0 million was
funded in 2007 and the $11.0 million balance was funded in
January 2008.
Subject to the terms and conditions of our Series A
Preferred and to customary adjustments to the conversion rate,
each share of our Series A Preferred is convertible into
ten shares of our common stock so long as the number of shares
of our common stock beneficially owned by the holder and related
persons following such conversion does not exceed 9.9% of our
outstanding common stock. Except for a preference on liquidation
of $.01 per share, each share of Series A Preferred is the
economic equivalent of the ten shares of common stock into which
it is convertible. Except as required by law, the Series A
Preferred will not have any voting rights.
BAOLI Joint Venture. We and BAOLI have
established a joint venture to manufacture and market our
SuperLink®
interference elimination solution for the China market. Our
agreements provide that BAOLI will provide the manufacturing
expertise and financing in exchange for 55 percent of the
equity and we will provide an exclusive license in the China
market of the enabling technology in exchange for
45 percent of the equity and a royalty on sales.
Procedures. Our Code of Business Conduct and
Ethics defines a conflict of interest as any situation in which
a director, officer or employee has competing professional or
personal interests, which could possibly make it difficult to
fulfill his or her duties and responsibilities in an impartial
manner. It is specifically required by our Code of Business
Conduct and Ethics that all of our officers, directors and
employees (1) fully disclose to the appropriate parties all
actual or perceived conflicts of interest and (2) ensure
that their duties and responsibilities are handled in such a
manner that ensures impartiality.
Under our corporate governance procedures, related party
transactions and waivers of conflicts and other provisions of
our Code of Business Conduct and Ethics must be approved by the
Nominating Committee, with any interested members abstaining. If
such a waiver is granted to any of our executive officers, we
expect to announce the waiver within four business days at our
website at www.suptech.com.
ANNUAL
MEETING ATTENDANCE
We expect that all of our Board members attend our Annual
Meeting in the absence of a showing of good cause for failure to
do so. All of the members of our Board attended our 2007 Annual
Meeting.
ANNUAL
REPORT TO STOCKHOLDERS
Our Annual Report for the year ended December 31, 2007 is
being mailed to our stockholders along with this Proxy
Statement. Our Annual Report is not to be incorporated by
reference by any general statement incorporating by reference
this Proxy Statement into any filing under the Securities Act of
1933 or under the Securities Exchange Act of 1934, except to the
extent that we specifically incorporates this information by
reference, and shall not otherwise be deemed soliciting material
or filed under such acts.
INVESTOR
INFORMATION
All reports filed by us with the SEC are available free of
charge via EDGAR through the SEC website at www.sec.gov. In
addition, the public may read and copy materials filed by us
with the SEC at the SECs public reference room located at
450 Fifth St., N.W., Washington, D.C., 20549. You can
obtain information about the operation of the SECs Public
Reference Room by calling the SEC at
1-800-SEC-0330.
We also provide copies of its
Forms 8-K,
10-K,
10-Q, Proxy,
Annual Report and press releases at no charge to investors upon
request and make
22
electronic copies of such reports and press releases available
through our website at www.suptech.com as soon as
reasonable practicable after filing such material with the SEC.
Requests should be sent to us, attention: Amy Ott.
We know of no other matters to be submitted at our Annual
Meeting. If any other matters properly come before the meeting,
it is the intention of the persons named in the enclosed proxy
card to vote the shares they represent as our Board may
recommend.
By Order of the Board of Directors
Jeffrey A. Quiram
President and Chief Executive Officer
Santa Barbara, California
April 14, 2008
23
ANNEX A
SUPERCONDUCTOR
TECHNOLOGIES INC.
AUDIT COMMITTEE CHARTER
Statement
of Policy
The Audit Committee of the Board of Directors shall assist the
directors in fulfilling their oversight responsibilities. The
Audit Committee will review the financial reporting process, the
system if internal controls, the audit process and the
Companys process for monitoring compliance with laws and
regulations. In performing its duties, the Audit Committee will
maintain free and open communication between the directors, the
independent auditors and the financial management of the
Company. The Audit Committee is intended to provide an
independent and, as appropriate, confidential forum in which
interested parties can freely discus information and concerns.
Organization
Independence: The Audit Committee shall be
comprised of at least three directors who are independent of the
management and the Company. Members of the Audit Committee shall
be considered independent if they meet the then
current standards of the Nasdaq Stock Market, Inc. (NASDAQ), the
SEC and Section 10A(m)(3) of the Securities Exchange Act of
1934. An independent director cannot have any relationship
which, in the opinion of the Board of Directors, would interfere
with the exercise of independent judgment in carrying out the
responsibilities of a director. In addition,
Section 10A(m)(3) prohibits any director serving on the
Audit Committee from receiving any consulting, advisory or other
compensatory fee from the company or any parent or subsidiary of
the company, other than compensation for board or board
committee service. Section 10A(m)(3) also prohibits any
person affiliated with the company or any parent or subsidiary
from serving on the Audit Committee. If future SEC or NASD rules
require a more limited definition of independent,
then this charter will be deemed amended when so required to
conform with any additional limitations. The Audit
Committees chairperson shall be designated by the full
Board or, if it does not do so, the Audit Committee members
shall elect a chairperson by vote of a majority of the Audit
Committee.
Knowledge and Experience: All Audit Committee
members will have the ability to read and understand fundamental
financial statements, including a balance sheet, income
statement and cash flow statement. Additionally, the Audit
Committee shall have at least one member who qualifies as a
financial expert under NASD Rule 4350(d)(2)(A)(i). Under
that rule, the Audit Committee must have at least one member
who has past employment experience in finance or
accounting, requisite professional certification in accounting,
or any other comparable experience or background which results
in the individuals financial sophistication, including
being or having been a chief executive officer, chief financial
officer or other senior officer with financial oversight
responsibilities. The Audit Committee will also endeavor,
wherever practicable, to secure as a member a financial expert
that also meets the definition of audit committee
financial expert adopted by the SEC in Rule 401(h) of
Regulation S-K.
Meetings: The Audit Committee will meet in an
executive session at least quarterly, or more frequently as
circumstances dictate. In connection with each meeting, the
Committee will provide an opportunity for the independent
auditors and management to meet separately with the Audit
Committee, without members of the other group present.
Compensation: Audit Committee members may not
receive any director or indirect compensation from
Superconductor, other than as a director
and/or as a
member of any committee of the board.
Responsibilities
In carrying out its responsibilities, the Audit Committee
believes its policies and procedures should remain flexible in
order to be able to best react to changing conditions, and to
ensure that the corporate accounting and reporting practices of
the Company are in accordance with all requirements and are of
the highest quality.
A-1
In carrying out these responsibilities, the Audit Committee will:
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Obtain the approval of the full Board of Directors of the
Charter, and review and reassess this Charter at least annually
or as conditions dictate.
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Hire the independent auditors to be selected to audit the
financial statements of the Company and its divisions and
subsidiaries.
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Review and approve all related party transactions.
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Approve all fees and engagement terms.
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Have a clear understanding with the independent auditors that
the auditors are ultimately accountable to the Audit Committee,
as the shareholders representatives, who have the ultimate
authority in deciding to engage, evaluate and, if appropriate,
terminate their services.
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Pre-approve all audit and non-audit services performed by
Superconductors auditors, subject to a de-minimis
exception for expenditures for non-audit services. The
preapproval requirement is waived with respect to the provision
of non-audit services if (i) the aggregate amount of all
such non-audit services constitutes not more than 5% of the
total fees paid by Superconductor to its auditors during the
fiscal year, (ii) such services were not recognized by the
company at the time of engagement to be non-audit services and
(iii) such services are promptly brought to the attention
of the Audit Committee and approved prior to completion of the
audit by the Audit Committee or by one or more members of the
Audit Committee who has been authorized by the Audit Committee
to grant such approvals. In reviewing non-audit services, the
Audit Committee will consider whether the provision of non-audit
services, if any, by the independent auditors is compatible with
maintaining the independent auditors independence. The Audit
Committee will not approve any of the Prohibited Services listed
on Appendix A to the charter, and in making a business
judgment about particular non-audit services, the Audit
Committee will consider the guidelines contained in
Appendix A to the charter. The Audit Committee may delegate
to one or more of its members the authority to grant any
required preapprovals of audit or non-audit services. The
granting of such approval by the designated member(s) shall be
reported to the full Audit Committee at its next regularly
scheduled meeting.
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Meet with the independent auditors and financial management of
the Company to review the scope of the proposed audit, including
the timing of the audit, the procedures to be utilized and the
adequacy of the independent auditors compensation, and at
the conclusion of the audit process, review with the independent
auditors their findings.
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Review with the independent auditors the adequacy and
effectiveness of the accounting and financial controls of the
Company. Elicit any recommendations for the improvement of such
internal controls or particular areas where new or more detailed
controls or procedures are desirable.
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Review communications received by the Company from regulators
and other legal and regulatory matters that may have a material
effect on the financial statements or on the Companys
compliance policies.
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Inquire of management and the independent auditors about
significant areas of risk or exposure and assess the steps
management has taken to minimize such risks.
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Review the financial statements contained in the annual report
to shareholders and other SEC filings with management and the
independent auditors to determine that the independent auditors
are satisfied with the disclosure and content of the financial
statements to be presented to the shareholders. Review with
financial management and the independent auditors the results of
their analysis of significant financial reporting issues and
practices, including changes in or adoptions of accounting
principles and disclosure practices, review significant
period-end adjustments and discuss any other matters required to
be communicated to the Committee by the auditors. Also review
with financial management and the independent auditors their
judgment about the quality, not just acceptability, of
accounting principles and the clarity of the financial
disclosure practices used or proposed to be used and
particularly, the degree of aggressiveness or conservatism of
the Companys accounting principles and underlying
estimates and other significant decisions made in preparing the
financial statements.
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A-2
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Meet with the independent auditors without members of management
present. Among the items to be discussed in these meeting are
the independent auditors evaluation of the Companys
financial, accounting and auditing personnel and the cooperation
that the independent auditors received during the course of the
audit.
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Review with financial management any quarterly, annual or other
press releases containing historical or forward
looking financial information before the press release is issued
to the general public or filed with the SEC. In the case of
forward-looking financial information, the Audit Committee may
consult with the full board as and when deemed appropriate by
the Audit Committee.
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Report the results of the annual audit to the Board of Directors
and, if requested by the Board, invite the independent auditors
to attend the full Board of Directors meeting to assist in
reporting the results of the annual audit or to answer the
directors questions.
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On an annual basis, obtain form the independent auditors a
written communication delineating all their relationships and
professional services, as required by Independence Standards
Board Standard No. 1, Independence Discussion with Audit
Committees. In addition, review with the independent auditors
the nature and scope of any disclosed relationships or
professional services and take, appropriate action to ensure the
continuing independence of the auditors.
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Submit the minutes of all meeting of the Audit Committee to, or
discuss the matters discussed at each committee meeting with,
the Board of Directors.
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Investigate any matter brought to its attention within the scope
of its duties with the power to retain outside counsel,
accountants, or others for this purpose if, in its judgment,
that is appropriate.
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Confirm in writing to the NASD annually or with respect to any
changes on the Audit Committee regarding independence, financial
capabilities and the annual review and reassessment of the Audit
Committee Charter.
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Disclose on the Companys Proxy Statement the Audit
Committee Charter. The Charter will be including in the Proxy
Statement every three years or when significant amendments are
made to it.
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Procedures
for Responding to Concerns
Every employee of or consultant to the Company who has, or who
hears expressed by another person, any concerns about the manner
in which the Companys financial statements or public
reports are prepared, the sufficiency of its internal financial
controls, the honesty or competence of its financial management
or independent auditors or any other matter within the purview
of the Audit Committee is directed and strongly encouraged to
report the matter promptly to any member of the Audit Committee.
The Audit Committee will attempt to keep the name of the person
reporting the potential issue confidential to the extent
requested by that person and not inconsistent with the best
interests of the Company. The Audit Committee will not
tolerate retaliation against any person who reports potential
issues to the Audit Committee in good faith.
Any member of the Audit Committee who receives such a complaint
or inquiry shall notify the Chair of the Audit Committee, who
shall then notify the other members of the Audit Committee. The
Audit Committee will then promptly decide on an appropriate
methodology to investigate, understand and resolve the potential
issue in a timely fashion. To do so, the Audit Committee has the
power to retain outside counsel, accountants and other
professionals to assist in responding to and investigating any
issue. After review and discussion in an executive session and
(as the Audit Committee deems necessary) with the full Board of
Directors and with outside counsel or other outside advisors,
the Audit Committee shall seek to promptly address the concerns
and respond privately or publicly, as appropriate, to address
the matter. The decision of the Audit Committee in any such
matter will be final and binding on the Company without further
action of the Board of Directors.
Approved by the Board of Directors and the Audit Committee as of
May 25, 2004.
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Dennis J. Horowitz
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John D. Lockton
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Chairman, Audit Committee
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Chairman of the Board of Directors
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A-3
APPENDIX A
To help maintain internal audit controls, the following
non-audit services shall not be performed by
Superconductors independent auditors (Prohibited
Services):
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Bookkeeping or other services related to the Companys
accounting records;
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Financial information systems design and implementation;
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Appraisal or valuation services, fairness opinions, or
contribution-in-kind
reports;
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Actuarial services;
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Internal audit outsourcing services;
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Management functions or human resources;
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Broker, dealer, investment adviser, or investment banking
services;
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Legal services and expert services unrelated to the
audit; and
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Any other service the SEC or the NASDAQ determines, by
regulations is not permitted.
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Some factors which may be considered by the Audit Committee when
deciding whether to approve audit and non-audit services, which
are not Prohibited Services, include:
1. Whether the service facilitates the performance of the
audit, improves the Companys financial reporting process,
or is otherwise in the interest of the Company and its
shareholders.
2. Whether the service is being performed principally for
the Audit Committee.
3. The effects of the service, if any, on audit
effectiveness or on the quality and timeliness of the
Companys financial reporting process.
4. Whether the service would be performed by specialists
who ordinarily also provide recurring audit support.
5. Whether the service would be performed by audit
personnel and, if so, whether it will enhance their knowledge of
the Companys business and operations.
6. Whether the role of those performing the service would
be inconsistent with the auditors role.
7. Whether the audit firms personnel would be
assuming a management role or creating a mutuality of interest
with management.
8. Whether the auditors, in effect, would be auditing their
own numbers.
9. Whether the project must be started and completed very
quickly.
10. The size of the fee(s) for the non-audit service(s).
A-4
ANNEX B
2003
Equity Incentive Plan, as proposed to be amended
Superconductor Technologies Inc. hereby adopts the 2003 Equity
Incentive Plan, effective as of March 20, 2003, as amended
May 25, 2005, March 13, 2006, September 21, 2007
and April 3, 2008 (the Plan) as
follows:
SECTION 1
BACKGROUND,
PURPOSE AND DURATION
1.1 Background and Effective
Date. The Plan provides for the granting of
Nonqualified Stock Options, Incentive Stock Options, Stock
Appreciation Rights (or SARs), Restricted Stock, Performance
Units, and Performance Shares. The Plan is adopted and effective
as of March 20, 2003, subject to approval by the
stockholders of the Company within twelve (12) months. The
Company will seek stockholder approval in the manner and to the
degree required under Applicable Laws. Awards may be granted
prior to the receipt of stockholder approval, but such grants
shall be null and void if such approval is not in fact received
within twelve (12) months.
1.2 Purpose of the Plan. The
purpose of the Plan is to promote the success, and enhance the
value, of the Company by aligning the interests of Participants
with those of the Companys shareholders, and by providing
Participants with an incentive for outstanding performance. The
Plan is further intended to provide flexibility to the Company
in its ability to motivate, attract, and retain the services of
outstanding individuals, upon whose judgment, interest, and
special effort the success of the Company largely is dependent.
1.3 Duration of the Plan. The Plan
shall commence on the date specified in Section 1.1 and
subject to SECTION 12 (concerning the Boards right to
amend or terminate the Plan), shall remain in effect thereafter.
However, without further stockholder approval, no Incentive
Stock Option may be granted under the Plan on or after
March 20, 2013.
1.4 Termination of Old Plans. The
Companys four existing stock option plans (the 1992 Stock
Option Plan, the Nonstatutory 1992 Directors Stock Option
Plan, the 1998 Stock Option Plan and the 1999 Stock Option Plan)
shall terminate effective upon stockholder approval of this
Plan, and no further grants of awards shall be made under those
plans after the date of such approval. The termination of those
plans will not affect the rights of holders of options
previously granted and outstanding under those plans.
SECTION 2
DEFINITIONS
The following words and phrases shall have the following
meanings unless a different meaning is plainly required by the
context:
2.1 1934 Act means the Securities
Exchange Act of 1934, as amended. Reference to a specific
section of the Exchange Act or regulation thereunder shall
include such section or regulation, any valid regulation
promulgated under such section, and any comparable provision of
any future legislation or regulation amending, supplementing or
superseding such section or regulation.
2.2 Affiliate means any corporation or
any other entity (including, but not limited to, partnerships
and joint ventures) controlling, controlled by, or under common
control with the Company.
2.3 Affiliated SAR means an SAR that is
granted in connection with a related Option, and which
automatically will be deemed to be exercised at the same time
that the related Option is exercised.
2.4 Applicable Laws means the
requirements relating to the administration of equity plans
under U.S. state corporate laws, U.S. federal and
state securities laws, the Code, any stock exchange or quotation
system on which the Shares are is listed or quoted and the
applicable laws of any foreign country or jurisdiction where
Awards are, or will be, granted under the Plan.
B-1
2.5 Award means, individually or
collectively, a grant under the Plan of Nonqualified Stock
Options, Incentive Stock Options, SARs, Restricted Stock,
Performance Units, or Performance Shares.
2.6 Award Agreement means the written
agreement setting forth the terms and provisions applicable to
each Award granted under the Plan.
2.7 Board or Board of
Directors means the Board of Directors of the Company.
2.8 Change in Control is defined in
Section 15.4.
2.9 Code means the Internal Revenue Code
of 1986, as amended. Reference to a specific section of the Code
or regulation thereunder shall include such section or
regulation, any valid regulation promulgated under such section,
and any comparable provision of any future legislation or
regulation amending, supplementing or superseding such section
or regulation.
2.10 Committee means the committee
appointed by the Board to administer the Plan pursuant to
Section 3.1.
2.11 Company means Superconductor
Technologies Inc., a Delaware corporation, or any successor
thereto.
2.12 Consultant means an individual who
provides significant services to the Company
and/or an
Affiliate, including a Director who is not an Employee.
2.13 Director means any individual who
is a member of the Board of Directors of the Company.
2.14 Disability means a permanent and
total disability within the meaning of Code
Section 22(e)(3).
2.15 Employee means an employee of the
Company or of an Affiliate, whether such employee is so employed
at the time the Plan is adopted or becomes so employed
subsequent to the adoption of the Plan.
2.16 ERISA means the Employee Retirement
Income Security Act of 1974, as amended. Reference to a specific
section of ERISA shall include such section, any valid
regulation promulgated thereunder, and any comparable provision
of any future legislation amending, supplementing or superseding
such section.
2.17 Fair Market Value means as of any
date, the value of a Share determined as follows:
(a) If the Shares are listed on any established stock
exchange or a national market system, including without
limitation the Nasdaq National Market or The Nasdaq SmallCap
Market of The Nasdaq Stock Market, its Fair Market Value shall
be the closing sales price for such Share (or the closing bid,
if no sales were reported) as quoted on such exchange or system
on the day of, or the last market trading day prior to, the day
of determination, as reported in The Wall Street Journal or such
other source as the Committee deems reliable;
(b) If the Shares are regularly quoted by a recognized
securities dealer but selling prices are not reported, the Fair
Market Value of the Share shall be the mean between the high bid
and low asked prices for the Shares on the day of, or the last
market trading day prior to, the day of determination, as
reported in The Wall Street Journal or such other source as the
Committee deems reliable; or
(c) In the absence of an established market for the Shares,
the Fair Market Value shall be determined in good faith by the
Committee.
2.18 Freestanding SAR means a SAR that
is granted independently of any Option.
2.19 Incentive Stock Option
or ISO means an option to purchase
Shares, which is designated as an Incentive Stock Option and is
intended to meet the requirements of Section 422 of the
Code.
2.20 Nonqualified Stock Option means an
option to purchase Shares which is not intended to be an
Incentive Stock Option.
2.21 Option means an Incentive Stock
Option or a Nonqualified Stock Option.
2.22 Option Price means the price at
which a Share may be purchased pursuant to an Option.
2.23 Participant means an Employee,
Consultant or Director who has an outstanding Award.
B-2
2.24 Performance Share means an Award
granted to an Employee pursuant to SECTION 8 having an
initial value equal to the Fair Market Value of a Share on the
date of grant.
2.25 Performance Unit means an Award
granted to an Employee pursuant to SECTION 8 having an
initial value (other than the Fair Market Value of a Share) that
is established by the Committee at the time of grant.
2.26 Period of Restriction means the
period during which the transfer of Shares of Restricted Stock
are subject to restrictions.
2.27 Plan means the Superconductor
Technologies Inc. 2003 Equity Incentive Plan, as set forth in
this instrument and as hereafter amended from time to time.
2.28 Restricted Stock means an Award
granted to a Participant pursuant to SECTION 7.
2.29 Retirement means, in the case of an
Employee, a Termination of Employment by reason of the
Employees retirement at or after age 62.
2.30 Rule 16b-3
means
Rule 16b-3
promulgated under the 1934 Act, and any future regulation
amending, supplementing or superseding such regulation.
2.31 Section 16 Person means a
person who, with respect to the Shares, is subject to
Section 16 of the 1934 Act.
2.32 Shares means the shares of common
stock, $0.001 par value, of the Company.
2.33 Stock Appreciation Right
or SAR means an Award, granted alone or
in connection with a related Option, that pursuant to the terms
of SECTION 7 is designated as an SAR.
2.34 Subsidiary means any
subsidiary corporation (other than the Company) as
defined in Code Section 424(f).
2.35 Tandem SAR means an SAR that is
granted in connection with a related Option, the exercise of
which shall require forfeiture of the right to purchase an equal
number of Shares under the related Option (and when a Share is
purchased under the Option, the SAR shall be canceled to the
same extent).
2.36 Termination of Employment means a
cessation of the employee-employer or director or other service
arrangement relationship between an Employee, Consultant or
Director and the Company or an Affiliate for any reason,
including, but not by way of limitation, a termination by
resignation, discharge, death, Disability, Retirement, or the
disaffiliation of an Affiliate, but excluding any such
termination where there is a simultaneous reemployment or
re-engagement by the Company or an Affiliate.
SECTION 3
ADMINISTRATION
3.1 The Committee. The Plan shall
be administered by a committee of the Board that meets the
requirements of this Section 3.1 (hereinafter referred to
as the Committee). The Committee shall consist of
not less than two (2) Directors. The members of the
Committee shall be appointed from time to time by, and shall
serve at the pleasure of, the Board of Directors. The Committee
shall be comprised solely of Directors who are both
outside directors under
Rule 16b-3
and independent directors under the requirements of
any national securities exchange or system upon which the Shares
are then listed
and/or
traded.
3.2 Authority of the
Committee. The Committee shall have all
powers and discretion necessary or appropriate to administer the
Plan and to control its operation, including, but not limited
to, the power (a) to determine which Employees, Consultants
and Directors shall be granted Awards, (b) to prescribe the
terms and conditions of such Awards, (c) to interpret the
Plan and the Awards, (d) to adopt rules for the
administration, interpretation and application of the Plan as
are consistent therewith, and (e) to interpret, amend or
revoke any such rules.
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The Committee, in its sole discretion and on such terms and
conditions as it may provide, may delegate all or any part of
its authority and powers under the Plan to one or more directors
and/or
officers of the Company; provided, however , that the Committee
may not delegate its authority and powers with respect to
Section 16 Persons.
3.3 Decisions Binding. All
determinations and decisions made by the Committee shall be
final, conclusive, and binding on all persons, and shall be
given the maximum deference permitted by law.
SECTION 4
SHARES SUBJECT
TO THE PLAN
4.1 Shares Available.
4.1.1 Maximum Shares Available under
Plan. The aggregate number of Shares available
for issuance under the Plan may not exceed two million five
hundred thousand (2,500,000) Shares. Such shares may be
authorized but unissued shares or treasury shares.
4.1.2 Intentionally omitted.
4.1.3 Limitation on Incentive Stock Options and Stock
Appreciation Rights. No Participant may
receive Options and SARs for more than one hundred twenty
thousand (120,000) Shares in the aggregate in any single
calendar year; provided, however , that a Participant may
receive Options and SARs for up two hundred forty thousand
(240,000) Shares in the Participants initial year of
service to the Company.
4.1.4 General Award Limitation. No
Participant may receive Awards under the Plan, the value of
which Awards is based solely on an increase in the value of
Shares after the date of grant of such Awards, for more than one
hundred twenty thousand (120,000) Shares in the aggregate in any
single calendar year; provided, however, that a Participant may
receive Options and SARs for up two hundred forty thousand
(240,000) Shares in the Participants initial year of
service to the Company. The foregoing annual limitation
specifically includes the grant of any Awards representing
qualified performance-based compensation within the
meaning of Section 162(m) of the Code.
4.1.5 Adjustments. All Share
numbers in this Section 4.1 are subject to adjustment as
provided in SECTION 15.
4.2 Number of Shares. The
following rules will apply for purposes of the determination of
the number of Shares available for grant under the Plan:
(a) While an Award is outstanding, it shall be counted
against the authorized pool of Shares, regardless of its vested
status.
(b) The grant of an Option or Restricted Stock shall reduce
the Shares available for grant under the Plan by the number of
Shares subject to such Award.
(c) The grant of a Tandem SAR shall reduce the number of
Shares available for grant by the number of Shares subject to
the related Option (i.e., there is no double counting of Options
and their related Tandem SARs); provided, however , that, upon
the exercise of such Tandem SAR, the authorized Share pool shall
be credited with the appropriate number of Shares representing
the number of shares reserved for such Tandem SAR less the
number of Shares actually delivered upon exercise thereof or the
number of Shares having a Fair Market Value equal to the cash
payment made upon such exercise.
(d) The grant of an Affiliated SAR shall reduce the number
of Shares available for grant by the number of Shares subject to
the SAR, in addition to the number of Shares subject to the
related Option; provided, however, that, upon the exercise of
such Affiliated SAR, the authorized Share pool shall be credited
with the appropriate number of Shares representing the number of
shares reserved for such Affiliated SAR less the number of
Shares actually delivered upon exercise thereof or the number of
Shares having a Fair Market Value equal to the cash payment made
upon such exercise.
(e) The grant of a Freestanding SAR shall reduce the number
of Shares available for grant by the number of Freestanding SARs
granted; provided, however , that, upon the exercise of such
Freestanding SAR, the
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authorized Share pool shall be credited with the appropriate
number of Shares representing the number of shares reserved for
such Freestanding SAR less the number of Shares actually
delivered upon exercise thereof or the number of Shares having a
Fair Market Value equal to the cash payment made upon such
exercise.
(f) The Committee shall in each case determine the
appropriate number of Shares to deduct from the authorized pool
in connection with the grant of Performance Units
and/or
Performance Shares.
(g) To the extent that an Award is settled in cash rather
than in Shares, the authorized Share pool shall be credited with
the appropriate number of Shares having a Fair Market Value
equal to the cash settlement of the Award.
4.3 Lapsed Awards. If an Award is
cancelled, terminates, expires, or lapses for any reason (with
the exception of the termination of a Tandem SAR upon exercise
of the related Option, or the termination of a related Option
upon exercise of the corresponding Tandem SAR), any Shares
subject to such Award again shall be available to be the subject
of an Award.
SECTION 5
STOCK OPTIONS
5.1 Grant of Options. Options may
be granted to Employees, Consultants and Directors at any time
and from time to time, as determined by the Committee in its
sole discretion. The Committee, in its sole discretion, shall
determine the number of Shares subject to Options granted to
each Participant. The Committee may grant ISOs, NQSOs, or a
combination thereof.
5.2 Award Agreement. Each Option
shall be evidenced by an Award Agreement that shall specify the
Option Price, the expiration date of the Option, the number of
Shares to which the Option pertains, any conditions to exercise
of the Option, and such other terms and conditions as the
Committee, in its discretion, shall determine. The Award
Agreement also shall specify whether the Option is intended to
be an ISO or a NQSO.
5.3 Option Price. Subject to the
provisions of this Section 5.3, the Option Price for each
Option shall be determined by the Committee in its sole
discretion.
5.3.1 Nonqualified Stock
Options. In the case of a Nonqualified Stock
Option, the Option Price shall be not less than one hundred
percent (100%) of the Fair Market Value of a Share on the date
that the Option is granted.
5.3.2 Incentive Stock Options. In
the case of an Incentive Stock Option, the Option Price shall be
not less than one hundred percent (100%) of the Fair Market
Value of a Share on the date that the Option is granted;
provided, however , that if at the time that the Option is
granted, the Employee (together with persons whose stock
ownership is attributed to the Employee pursuant to
Section 424(d) of the Code) owns stock possessing more than
10% of the total combined voting power of all classes of stock
of the Company or any of its Subsidiaries, the Option Price
shall be not less than one hundred and ten percent (110%) of the
Fair Market Value of a Share on the date that the Option is
granted.
5.3.3 Substitute
Options. Notwithstanding the provisions of
Sections 5.3.1 and 5.3.2, in the event that the Company or
an Affiliate consummates a transaction described in
Section 424(a) of the Code (e.g., the acquisition of
property or stock from an unrelated corporation), persons who
become Employees, Consultants or Directors on account of such
transaction may be granted Options in substitution for options
granted by their former employer. If such substitute Options are
granted, the Committee, in its sole discretion, may determine
that such substitute Options shall have an exercise price less
than 100% of the Fair Market Value of the Shares on the date the
Option is granted.
5.4 Expiration of Options. Unless
the applicable stock option agreement provides otherwise, each
Option shall terminate upon the first to occur of the events
listed in Section 5.4.1, subject to Section 5.4.2.
5.4.1 Expiration Dates.
(a) The date for termination of the Option set forth in the
Award Agreement;
(b) The expiration of ten years from the date the Option
was granted, or
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(c) The expiration of three months from the date of the
Participants Termination of Employment for a reason other
than the Participants death, Disability or
Retirement, or
(d) The expiration of twelve months from the date of the
Participants Termination of Employment by reason of
Disability, or
(e) The expiration of twelve months from the date of the
Participants death, if such death occurs while the
Participant is in the employ or service of the Company or an
Affiliate.
5.4.2 Committee Discretion. The
Committee shall provide, in the terms of each individual Option,
when such Option expires and becomes unexercisable. After the
Option is granted, the Committee, in its sole discretion may
extend the maximum term of such Option. The foregoing
discretionary authority is subject to the limitations and
restrictions on Incentive Stock Options set forth in
Section 5.8.
5.5 Exercise of Options. Options
granted under the Plan shall be exercisable at such times, and
subject to such restrictions and conditions, as the Committee
shall determine in its sole discretion. After an Option is
granted, the Committee, in its sole discretion, may accelerate
the exercisability of the Option.
5.6 Payment. The Committee shall
determine the acceptable form of consideration for exercising an
Option, including the method of payment. In the case of an
Incentive Stock Option, the Committee shall determine the
acceptable form of consideration at the time of grant. Such
consideration may consist entirely of:
(a) cash;
(b) check;
(c) promissory note;
(d) other Shares which (i) in the case of Shares
acquired upon exercise of an Option, have been owned by the
Participant for more than six (6) months on the date of
surrender, and (ii) have a Fair Market Value on the date of
surrender equal to the aggregate exercise price of the Shares as
to which said Option shall be exercised;
(e) consideration received by the Company from a licensed
broker under a cashless exercise program implemented by the
Company to facilitate same day exercises and sales
of Options;
(f) a reduction in the amount of any Company liability to
the Participant, including any liability attributable to the
Participants participation in any Company-sponsored
deferred compensation program or arrangement;
(g) any combination of the foregoing methods of
payment; or
(h) such other consideration and method of payment for the
issuance of Shares to the extent permitted by applicable laws.
5.7 Restrictions on Share
Transferability. The Committee may impose
such restrictions on any Shares acquired pursuant to the
exercise of an Option, as it may deem advisable, including, but
not limited to, restrictions related to Federal securities laws,
the requirements of any national securities exchange or system
upon which such Shares are then listed
and/or
traded,
and/or any
blue sky or state securities laws.
5.8 Certain Additional Provisions for Incentive Stock
Options.
5.8.1 Exercisability. The
aggregate Fair Market Value (determined at the time the Option
is granted) of the Shares with respect to which Incentive Stock
Options are exercisable for the first time by any Employee
during any calendar year (under all plans of the Company and its
Subsidiaries) shall not exceed $100,000.
5.8.2 Termination of
Employment. No Incentive Stock Option may be
exercised more than three months after the Participants
termination of employment for any reason other than Disability
or death, unless (a) the Participant dies during such
three-month period, and (b) the Award Agreement
and/or the
Committee permits later exercise. No Incentive Stock Option may
be exercised more than one year after the Participants
termination of employment on account of Disability, unless
(a) the Participant dies during such one-year period, and
(b) the Award Agreement
and/or the
Committee permit later exercise.
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5.8.3 Company and Subsidiaries
Only. Incentive Stock Options may be granted
only to persons who are Employees of the Company
and/or a
Subsidiary at the time of grant.
5.8.4 Expiration. No Incentive
Stock Option may be exercised after the expiration of
10 years from the date such Option was granted; provided,
however , that if the Option is granted to an Employee who,
together with persons whose stock ownership is attributed to the
Employee pursuant to Section 424(d) of the Code, owns stock
possessing more than 10% of the total combined voting power of
all classes of the stock of the Company or any of its
Subsidiaries, the Option may not be exercised after the
expiration of 5 years from the date that it was granted.
5.9 Nontransferability of
Options. No Option granted under the Plan may
be sold, transferred, pledged, assigned, or otherwise alienated
or hypothecated, other than by will, the laws of descent and
distribution, or as provided under SECTION 9. All Options
granted to a Participant under the Plan shall be exercisable
during his or her lifetime only by such Participant.
SECTION 6
STOCK
APPRECIATION RIGHTS
6.1 Grant of SARs. An SAR may be
granted to an Employee, Consultant or Director at any time and
from time to time as determined by the Committee, in its sole
discretion. The Committee may grant Affiliated SARs,
Freestanding SARs, Tandem SARs, or any combination thereof. The
Committee shall have complete discretion to determine the number
of SARs granted to any Participant, and consistent with the
provisions of the Plan, the terms and conditions pertaining to
such SARs. However, the grant price of a Freestanding SAR shall
be at least equal to the Fair Market Value of a Share on the
date of grant. The grant price of Tandem or Affiliated SARs
shall equal the Option Price of the related Option.
6.2 Exercise of Tandem
SARs. Tandem SARs may be exercised for all or
part of the Shares subject to the related Option upon the
surrender of the right to exercise the equivalent portion of the
related Option. A Tandem SAR may be exercised only with respect
to the Shares for which its related Option is then exercisable.
6.2.1 ISOs. Notwithstanding any
contrary provision of the Plan, with respect to a Tandem SAR
granted in connection with an ISO: (i) the Tandem SAR shall
expire no later than the expiration of the underlying ISO;
(ii) the value of the payout with respect to the Tandem SAR
shall be for no more than one hundred percent (100%) of the
difference between the Option Price of the underlying ISO and
the Fair Market Value of the Shares subject to the underlying
ISO at the time the Tandem SAR is exercised; and (iii) the
Tandem SAR shall be exercisable only when the Fair Market Value
of the Shares subject to the ISO exceeds the Option Price of the
ISO.
6.3 Exercise of Affiliated
SARs. An Affiliated SAR shall be deemed to be
exercised upon the exercise of the related Option. The deemed
exercise of an Affiliated SAR shall not necessitate a reduction
in the number of Shares subject to the related Option.
6.4 Exercise of Freestanding
SARs. Freestanding SARs shall be exercisable
on such terms and conditions as the Committee, in its sole
discretion, shall determine.
6.5 SAR Agreement. Each SAR shall
be evidenced by an Award Agreement that shall specify the grant
price, the term of the SAR, the conditions of exercise, and such
other terms and conditions as the Committee, in its sole
discretion, shall determine.
6.6 Expiration of SARs. An SAR
granted under the Plan shall expire upon the date determined by
the Committee, in its sole discretion, and set forth in the
Award Agreement. Notwithstanding the foregoing, the rules of
Section 5.4 (pertaining to Options) also shall apply to
SARs.
6.7 Payment of SAR Amount. Upon
exercise of an SAR, a Participant shall be entitled to receive
payment from the Company in an amount determined by multiplying:
(a) The difference between the Fair Market Value of a Share
on the date of exercise over the grant price; times
(b) The number of Shares with respect to which the SAR is
exercised.
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At the discretion of the Committee, the payment upon SAR
exercise may be in cash, in Shares of equivalent value, or in
some combination thereof.
6.8 Nontransferability of SARs. No
SAR granted under the Plan may be sold, transferred, pledged,
assigned, or otherwise alienated or hypothecated, other than by
will, the laws of descent and distribution, or as permitted
under SECTION 9. An SAR granted to a Participant shall be
exercisable during the Participants lifetime only by such
Participant.
SECTION 7
RESTRICTED
STOCK
7.1 Grant of Restricted
Stock. Subject to the terms and provisions of
the Plan, the Committee, at any time and from time to time, may
grant Shares of Restricted Stock to Employees, Consultants or
Directors in such amounts as the Committee, in its sole
discretion, shall determine.
7.2 Restricted Stock
Agreement. Each Award of Restricted Stock
shall be evidenced by an Award Agreement that shall specify the
Period of Restriction, the number of Shares granted, and such
other terms and conditions as the Committee, in its sole
discretion, shall determine. Unless the Committee determines
otherwise, shares of Restricted Stock shall be held by the
Company as escrow agent until the restrictions on such Shares
have lapsed.
7.3 Transferability. Except as
provided in this SECTION 7, Shares of Restricted Stock may
not be sold, transferred, pledged, assigned, or otherwise
alienated or hypothecated until the end of the applicable Period
of Restriction. All rights with respect to the Restricted Stock
granted to a Participant under the Plan shall be available
during his or her lifetime only to such Participant.
7.4 Other Restrictions. The
Committee, in its sole discretion, may impose such other
restrictions on any Shares of Restricted Stock as it may deem
advisable including, without limitation, restrictions based upon
the achievement of specific performance goals (Company-wide,
divisional,
and/or
individual),
and/or
restrictions under applicable Federal or state securities laws;
and may legend the certificates representing Restricted Stock to
give appropriate notice of such restrictions. For example, the
Committee may determine that some or all certificates
representing Shares of Restricted Stock shall bear the following
legend:
The sale or other transfer of the shares of stock
represented by this certificate, whether voluntary, involuntary,
or by operation of law, is subject to certain restrictions on
transfer as set forth in the Superconductor Technologies Inc.
2003 Equity Incentive Plan, and in a Restricted Stock Agreement.
A copy of the Plan and such Restricted Stock Agreement may be
obtained from the Secretary of Superconductor Technologies
Inc.
7.5 Removal of
Restrictions. Except as otherwise provided in
this SECTION 7, Shares of Restricted Stock covered by each
Restricted Stock grant made under the Plan shall be released
from escrow as soon as practicable after the last day of the
Period of Restriction. The Committee, in its discretion, may
accelerate the time at which any restrictions shall lapse,
and/or
remove any restrictions. After the restrictions have lapsed, the
Participant shall be entitled to have any legend or legends
under Section 7.4 removed from his or her Share
certificate, and the Shares shall be freely transferable by the
Participant.
7.6 Voting Rights. During the
Period of Restriction, Participants holding Shares of Restricted
Stock granted hereunder may exercise full voting rights with
respect to those Shares, unless the Committee determines
otherwise.
7.7 Dividends and Other
Distributions. During the Period of
Restriction, Participants holding Shares of Restricted Stock
shall be entitled to receive all dividends and other
distributions paid with respect to such Shares, unless otherwise
provided in the Award Agreement. If any such dividends or
distributions are paid in Shares, the Shares shall be subject to
the same restrictions on transferability and forfeitability as
the Shares of Restricted Stock with respect to which they were
paid.
7.8 Return of Restricted Stock to
Company. Subject to the applicable Award
Agreement and Section 7.5, upon the earlier of (a) the
Participants Termination of Employment, or (b) the
date set forth in the Award Agreement, the Restricted Stock for
which restrictions have not lapsed shall revert to the Company
and, subject to Section 4.3, again shall become available
for grant under the Plan.
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7.9 Repurchase Option. Unless the
Committee determines otherwise, the Restricted Stock Purchase
Agreement shall grant the Company a repurchase option
exercisable upon the voluntary or involuntary termination of the
Participants service with the Company for any reason
(including death or Disability). The purchase price for Shares
repurchased pursuant to the Restricted Stock Purchase Agreement
shall be the original price paid by the Participant and may be
paid by cancellation of any indebtedness of the Participant to
the Company. The repurchase option shall lapse at a rate
determined by the Committee.
SECTION 8
PERFORMANCE
UNITS AND PERFORMANCE SHARES
8.1 Grant of Performance
Units/Shares. Performance Units and
Performance Shares may be granted to Employees, Consultants or
Directors at any time and from time to time, as shall be
determined by the Committee, in its sole discretion. The
Committee shall have complete discretion in determining the
number of Performance Units and Performance Shares granted to
each Participant.
8.2 Value of Performance
Units/Shares. Each Performance Unit shall
have an initial value that is established by the Committee at
the time of grant. Each Performance Share shall have an initial
value equal to the Fair Market Value of a Share on the date of
grant. The Committee shall set performance goals in its
discretion which, depending on the extent to which they are met,
will determine the number
and/or value
of Performance Units/Shares that will be paid out to the
Participants. The time period during which the performance goals
must be met shall be called the Performance Period.
8.3 Earning of Performance
Units/Shares. After the applicable
Performance Period has ended, the holder of Performance
Units/Shares shall be entitled to receive a payout of the number
of Performance Units/Shares earned by the Participant over the
Performance Period, to be determined as a function of the extent
to which the corresponding performance goals have been achieved.
After the grant of a Performance Unit/Share, the Committee, in
its sole discretion, may adjust
and/or waive
the achievement of any performance goals for such Performance
Unit/Share.
8.4 Form and Timing of Payment of Performance
Units/Shares. Payment of earned Performance
Units/Shares shall be made as soon as practicable after the
expiration of the applicable Performance Period. The Committee,
in its sole discretion, may pay earned Performance Units/Shares
in the form of cash, in Shares (which have an aggregate Fair
Market Value equal to the value of the earned Performance
Units/Shares at the close of the applicable Performance Period)
or in a combination thereof.
8.5 Cancellation of Performance
Units/Shares. Subject to the applicable Award
Agreement, upon the earlier of (a) the Participants
Termination of Employment, or (b) the date set forth in the
Award Agreement, all remaining Performance Units/Shares shall be
forfeited by the Participant to the Company, and subject to
Section 4.3, the Shares subject thereto shall again be
available for grant under the Plan.
8.6 Nontransferability. Performance
Units/Shares may not be sold, transferred, pledged, assigned, or
otherwise alienated or hypothecated, other than by will, the
laws of descent and distribution, or as permitted under
SECTION 9. A Participants rights under the Plan shall
be exercisable during the Participants lifetime only by
the Participant or the Participants legal representative.
SECTION 9
BENEFICIARY
DESIGNATION
If permitted by the Committee, a Participant may name a
beneficiary or beneficiaries to whom any unpaid vested Award
shall be paid in event of the Participants death. Each
such designation shall revoke all prior designations by the same
Participant and shall be effective only if given in a form and
manner acceptable to the Committee. In the absence of any such
designation, benefits remaining unpaid at the Participants
death shall be paid to the Participants estate and,
subject to the terms of the Plan, any unexercised vested Award
may be exercised by the Committee or executor of the
Participants estate.
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SECTION 10
DEFERRALS
The Committee, in its sole discretion, may permit a Participant
to defer receipt of the payment of cash or the delivery of
Shares that would otherwise be due to such Participant under an
Award. Any such deferral elections shall be subject to such
rules and procedures as shall be determined by the Committee in
its sole discretion.
SECTION 11
RIGHTS OF
EMPLOYEES AND CONSULTANTS
11.1 No Effect on Employment or
Service. Nothing in the Plan shall interfere
with or limit in any way the right of the Company to terminate
any Participants employment or service at any time, with
or without cause.
11.2 Participation. No Employee,
Consultant or Director shall have the right to be selected to
receive an Award under this Plan, or, having been so selected,
to be selected to receive a future Award.
SECTION 12
AMENDMENT,
SUSPENSION, OR TERMINATION
The Board, in its sole discretion, may alter, amend or terminate
the Plan, or any part thereof, at any time and for any reason.
However, as required by Applicable Laws, no alteration or
amendment shall be effective without further stockholder
approval. Neither the amendment, suspension, nor termination of
the Plan shall, without the consent of the Participant, alter or
impair any rights or obligations under any Award theretofore
granted. No Award may be granted during any period of suspension
nor after termination of the Plan.
SECTION 13
TAX
WITHHOLDING
13.1 Withholding
Requirements. Prior to the delivery of any
Shares or cash pursuant to an Award, the Company shall have the
power and the right to deduct or withhold, or require a
Participant to remit to the Company, an amount sufficient to
satisfy Federal, state, and local taxes required to be withheld
with respect to such Award.
13.2 Shares Withholding. The
Committee, in its sole discretion and pursuant to such
procedures as it may specify from time to time, may permit a
Participant to satisfy the minimum statutory tax withholding
obligation, in whole or in part, by delivering to the Company
Shares already owned for more than six (6) months having a
value equal to the amount required to be withheld. The value of
the Shares to be delivered will be based on their Fair Market
Value on the date of delivery.
SECTION 14
INDEMNIFICATION
Each person who is or shall have been a member of the Committee,
or of the Board, shall be indemnified and held harmless by the
Company against and from any loss, cost, liability, or expense
that may be imposed upon or reasonably incurred by him or her in
connection with or resulting from any claim, notion, suit, or
proceeding to which he or she may be a party or in which he or
she may be involved by reason of any action taken or failure to
act under the Plan or any Award Agreement and against and from
any and all amounts paid by him or her in settlement thereof,
with the Companys approval, or paid by him or her in
settlement thereof, with the Companys approval, or paid by
him or her in satisfaction of any judgment in any such action,
suit, or proceeding against him or her, provided he or she shall
give the Company an opportunity, at its own expense, to handle
and defend the same before he or she undertakes to handle and
defend it on his or her own behalf. The foregoing right of
indemnification shall not be exclusive of any other rights of
indemnification to which such persons may be entitled under the
Companys
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Certificate of Incorporation or Bylaws, as a matter of law, or
otherwise, or any power that the Company may have to indemnify
them or hold them harmless.
SECTION 15
ADJUSTMENTS
UPON CHANGES IN CAPITALIZATION, DISSOLUTION, MERGER OR ASSET SALE
15.1 Changes in Capitalization; No Award
Repricing. Subject to any required action by
the shareholders of the Company, the number of Shares covered by
each outstanding Award, and the number of Shares which have been
authorized for issuance under the Plan but as to which no Awards
have yet been granted or which have been returned to the Plan
upon cancellation or expiration of an Award, as well as the
price per Share covered by each such outstanding Award, shall be
proportionately adjusted for any increase or decrease in the
number of issued Shares resulting from a stock split, reverse
stock split, stock dividend, combination or reclassification of
the Shares, or any other increase or decrease in the number of
issued Shares effected without receipt of consideration by the
Company; provided, however , that conversion of any convertible
securities of the Company shall not be deemed to have been
effected without receipt of consideration. Such
adjustment shall be made by the Board, whose determination in
that respect shall be final, binding and conclusive. Except as
expressly provided herein, no issuance by the Company of shares
of stock of any class, or securities convertible into shares of
stock of any class, shall affect, and no adjustment by reason
thereof shall be made with respect to, the number or price of
Shares subject to an Award. Further, except for the adjustments
provided herein, no Award may be amended to reduce its initial
exercise price, and no Award may be cancelled and replaced with
an Award with a lower price.
15.2 Dissolution or
Liquidation. In the event of the proposed
dissolution or liquidation of the Company, the Committee shall
notify each Participant as soon as practicable prior to the
effective date of such proposed transaction. The Committee in
its discretion may provide for a Participant to have the right
to exercise his or her Award until ten (10) days prior to
such transaction as to all of the Shares covered thereby,
including Shares as to which the Award would not otherwise be
exercisable. In addition, the Committee may provide that any
Company repurchase option applicable to any Shares purchased
upon exercise of an Award shall lapse as to all such Shares,
provided the proposed dissolution or liquidation takes place at
the time and in the manner contemplated. To the extent it has
not been previously exercised, an Award will terminate
immediately prior to the consummation of such proposed action.
15.3 Merger or Asset Sale. In the
event of a merger of the Company with or into another
corporation, or the sale of substantially all of the assets of
the Company, each outstanding Award shall be assumed or an
equivalent option or right substituted by the successor
corporation or a Parent or Subsidiary of the successor
corporation. In the event that the successor corporation refuses
to assume or substitute for the Award, the Participant shall
fully vest in and have the right to exercise the Award as to all
of the Shares as to which it would not otherwise be vested or
exercisable. If an Award becomes fully vested and exercisable in
lieu of assumption or substitution in the event of a merger or
sale of assets, the Committee shall notify the Participant in
writing or electronically that the Award shall be fully vested
and exercisable for a period of fifteen (15) days from the
date of such notice, and the Award shall terminate upon the
expiration of such period. For the purposes of this paragraph,
the Award shall be considered assumed if, following the merger
or sale of assets, the option or right confers the right to
purchase or receive, for each Share subject to the Award
immediately prior to the merger or sale of assets, the
consideration (whether stock, cash, or other securities or
property) received in the merger or sale of assets by holders of
Shares for each Share held on the effective date of the
transaction (and if holders were offered a choice of
consideration, the type of consideration chosen by the holders
of a majority of the outstanding Shares); provided, however ,
that if such consideration received in the merger or sale of
assets is not solely common stock of the successor corporation
or its Parent, the Committee may, with the consent of the
successor corporation, provide for the consideration to be
received upon the exercise of the Award, for each Share subject
to the Award, to be solely common stock of the successor
corporation or its Parent equal in fair market value to the per
share consideration received by holders of Shares in the merger
or sale of assets.
15.4 Change in Control. In the
event of a Change of Control (as defined below), except as
otherwise determined by the Board, the Participant shall fully
vest in and have the right to exercise the Awards as to all of
the Shares, including Shares as to which it would not otherwise
be vested or exercisable. If an Award becomes fully
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vested and exercisable as the result of a Change of Control, the
Committee shall notify the Participant in writing or
electronically prior to the Change of Control that the Award
shall be fully vested and exercisable for a period of fifteen
(15) days from the date of such notice, and the Award shall
terminate upon the expiration of such period. For purposes of
this Agreement, a Change of Control means the
happening of any of the following events:
(a) When any person, as such term is used in
Sections 13(d) and 14(d) of the Exchange Act (other than
the Company, a Subsidiary or a Company employee benefit plan,
including any trustee of such plan acting as trustee) is or
becomes the beneficial owner (as defined in
Rule 13d-3
under the Exchange Act), directly or indirectly, of securities
of the Company representing fifty percent (50%) or more of the
combined voting power of the Companys then outstanding
securities entitled to vote generally in the election of
directors; or
(b) The stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other
than a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity)
more than fifty percent (50%) of the total voting power
represented by the voting securities of the Company or such
surviving entity outstanding immediately after such merger or
consolidation, or the stockholders of the Company approve an
agreement for the sale or disposition by the Company of all or
substantially all the Companys assets; or
(c) A change in the composition of the Board of Directors
of the Company, as a result of which fewer than a majority of
the directors are Incumbent Directors. Incumbent
Directors shall mean directors who either (A) are
directors of the Company as of the date the Plan is approved by
the stockholders, or (B) are elected, or nominated for
election, to the Board of Directors of the Company with the
affirmative votes of at least a majority of the Incumbent
Directors at the time of such election or nomination (but shall
not include an individual whose election or nomination is in
connection with an actual or threatened proxy contest relating
to the election of directors to the Company).
SECTION 16
CONDITIONS
UPON ISSUANCE OF SHARES
16.1 Legal Compliance. Shares
shall not be issued pursuant to the exercise of an Award unless
the exercise of such Award and the issuance and delivery of
Shares shall comply with Applicable Laws and shall be further
subject to the approval of counsel for the Company with respect
to such compliance.
16.2 Investment
Representations. As a condition to the
exercise of an Award, the Company may require the person
exercising such Award to represent and warrant at the time of
any such exercise that the Shares are being purchased only for
investment and without any present intention to sell or
distribute such Shares if, in the opinion of counsel for the
Company, such a representation is required.
SECTION 17
INABILITY TO
OBTAIN AUTHORITY
The inability of the Company to obtain authority from any
regulatory body having jurisdiction, which authority is deemed
by the Companys counsel to be necessary to the lawful
issuance and sale of any Shares hereunder, shall relieve the
Company of any liability in respect of the failure to issue or
sell such Shares as to which such requisite authority shall not
have been obtained.
SECTION 18
RESERVATION
OF SHARES
The Company, during the term of this Plan, will at all times
reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
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SECTION 19
LEGAL
CONSTRUCTION
19.1 Gender and Number. Except
where otherwise indicated by the context, any masculine term
used herein also shall include the feminine; the plural shall
include the singular and the singular shall include the plural.
19.2 Severability. In the event
any provision of the Plan shall be held illegal or invalid for
any reason, such illegality or invalidity shall not affect the
remaining parts of the Plan, and the Plan shall be construed and
enforced as if the illegal or invalid provision had not been
included.
19.3 Requirements of Law. The
granting of Awards and the issuance of Shares under the Plan
shall be subject to all Applicable Laws.
19.4 Securities Law
Compliance. With respect to
Section 16 Persons, transactions under this Plan are
intended to comply with all applicable conditions of
Rule 16b-3.
To the extent any provision of the Plan, Award Agreement or
action by the Committee fails to so comply, it shall be deemed
null and void, to the extent permitted by law and deemed
advisable by the Committee.
19.5 Governing Law. The Plan and
all Award Agreements shall be construed in accordance with and
governed by the laws of the State of Delaware.
19.6 Captions. Captions are
provided herein for convenience only, and shall not serve as a
basis for interpretation or construction of the Plan.
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DETACH HERE
PROXY
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
SUPERCONDUCTOR TECHNOLOGIES INC.
ANNUAL MEETING OF STOCKHOLDERS
MAY 20, 2008
The undersigned stockholder of SUPERCONDUCTOR TECHNOLOGIES INC., a Delaware corporation, hereby acknowledges receipt of the Notice of Annual Meeting of Stockholders and Proxy Statement, each dated April 14, 2008, and hereby appoints Jeffrey A. Quiram as proxy and attorney-in-fact with full power of substitution, on behalf and in the name of the undersigned, to represent the
undersigned at the Annual Meeting of Stockholders
of Superconductor Technologies Inc. to be held on Tuesday, May 20, 2008 at 11:00 a.m., local time, at the offices of Superconductor Technologies Inc, located at 460 Ward Drive, Santa Barbara, California and at any adjournment or adjournments thereof, and to vote all shares of capital stock that the undersigned would be entitled to vote if then and there personally present, on the matters set forth on the reverse side.
[SEE REVERSE SIDE] CONTINUED AND TO BE SIGNED ON REVERSE SIDE [SEE REVERSE SIDE]
[BACK OF PROXY]
DETACH HERE
[X] Please mark votes as in this example
1. TO ELECT TWO CLASS 1 DIRECTORS.
Nominees: Jeffrey A. Quiram and Martin A. Kaplan
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o FOR NOMINEES
(except listed to the contrary below)
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o WITHHELD NOMINEES
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o EXCEPTION |
(INSTRUCTION: To withhold authority to vote for any individual nominee, mark the Exceptions box and write that nominees name in the space provided above.)
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2. PROPOSAL TO ELIMINATE SUB-LIMIT ON THE AGGREGATE NUMBER OF SHARES AVAILABLE FOR ISSUANCE PURSUANT TO AWARDS OF RESTRICTED STOCK, PERFORMANCE UNITS AND PERFORMANCE SHARES
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3. PROPOSAL TO RATIFY THE SELECTION OF STONEFIELD JOSEPHSON, INC. AS INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM OF THE COMPANY FOR 2008.
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As to any other matters that may properly come before the meeting or any adjournments thereof, the proxy holders are authorized to vote in accordance with their best judgment.
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MARK HERE FOR ADDRESS CHANGE AND NOTE AT LEFT
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PLEASE CHECK HERE IF YOU PLAN TO ATTEND THE MEETING
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(This Proxy should be marked, dated and signed by the stockholder(s) exactly as his or her name appears hereon, and returned promptly in the enclosed envelope. Persons signing in a fiduciary capacity should so indicate. If shares are held by joint tenants or as community property, both should sign.)
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Signature:
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Date:
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Signature:
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Date:
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THIS PROXY WILL BE VOTED AS DIRECTED, OR IF NO CONTRARY DIRECTION IS INDICATED, WILL BE VOTED FOR THE ELECTION OF DIRECTORS, AND FOR THE RATIFICATION OF THE APPOINTMENT OF PRICEWATERHOUSECOOPERS LLP AS INDEPENDENT AUDITORS OF THE COMPANY FOR THE YEAR ENDING DECEMBER 31, 2008, AND AS THE PROXY HOLDERS DEEM ADVISABLE ON SUCH OTHER MATTERS AS MAY PROPERLY COME BEFORE THE MEETING.