12
EXHIBIT (10.4)
FIRST INTERSTATE BANCORP
1995 PERFORMANCE STOCK PLAN
1. Purpose. The purpose of the 1995 Performance Stock
Plan (the "Plan") is to promote the interests of First Interstate
Bancorp (the "Company") and its Subsidiaries by providing
performance incentives to certain of its key employees who are
responsible for the management, growth and financial success of
the Company. Pursuant to the Plan, stock options, stock
appreciation rights, restricted stock awards, performance units
and stock awards may be granted.
2. Administration. The Plan shall be administered by a
Committee (the "Committee") consisting of those members of the
Compensation Committee of the Board of Directors of the Company
who are (a) at least the minimum number of members required under
Rule 16b-3 (or any successor rule) promulgated by the Securities
and Exchange Commission pursuant to the Securities Exchange Act
of 1934 ("Rule 16b-3"), (b) "disinterested persons" as defined
under such rule and (c) "outside directors" as defined in Section
162(m) of the Internal Revenue Code of 1986, as amended
("Internal Revenue Code") and the regulations thereunder. The
Committee shall have full authority to administer the Plan,
including authority to interpret and construe any provision of
the Plan and to adopt such rules and regulations for
administering the Plan as it may deem necessary. Decisions of
the Committee shall be final and binding on all persons who have
an interest in the Plan.
3. Eligibility. The persons eligible to participate in
the Plan shall be those key employees (including officers,
whether or not directors) of the Company and its Subsidiaries
selected by the Committee. Directors who are not officers are
not eligible to participate in the Plan.
4. Shares Subject to the Plan. The shares subject to the
Plan shall be shares of the Company's $2 par value Common Stock
("Common Stock"). The aggregate number of shares of Common Stock
which may be delivered pursuant to awards granted under this Plan
shall not exceed 5,000,000, subject to adjustment pursuant to
Section 9. The maximum number of shares of Common Stock for
which stock options, including those containing Stock
Appreciation Rights, may be granted under this Plan shall not
exceed 150,000 per Participant during any calendar year, subject
to adjustment pursuant to Section 9. If Restricted Stock is
forfeited or if an option shall expire or terminate for any
reason, except for the surrender thereof upon exercise of a
related Stock Appreciation Right, without having been exercised
in full, such Restricted Stock or the shares applicable to the
unexercised portion of such option shall become available under
the Plan for all purposes. To the extent any award of
Performance Units is paid in cash rather than shares, the number
of shares represented by such Performance Units shall again be
available for purposes of the Plan. If shares of Common Stock
already owned by a Participant are tendered or exchanged under
Section 5.3(b) in full or partial payment of the purchase price
of an exercised option, such tendered or exchanged shares shall
be added back to the number of shares available for issuance or
delivery under this Plan; provided that for purposes of
determining the number of shares available for the granting of
Incentive Options, the aggregate number of shares available for
delivery or issuance under this Plan shall not be increased by
the number of shares tendered or exchanged. If any of the
foregoing provisions for determining the number of shares
available for issuance under the Plan would cause the Plan to not
be considered to be described under Rule 16b-3, such provision
shall have no effect, and the number of shares available for
issuance shall instead be determined in a manner which complies
with such rule. Either authorized and unissued shares or treasury
shares may be delivered under the Plan; provided, however, that
unissued shares shall not be awarded as Restricted Stock, or
pursuant to Performance Units, or as Stock Awards to any
Participant unless the Committee expressly determines, after
consideration of all other remuneration paid or payable to the
Participant, that the services already rendered to the Company
and its Subsidiaries by the Participant have a value of not less
than the par value of the shares so awarded.
5. Stock Options. Stock options granted under the Plan
may be either incentive stock options qualifying under Section
422 of the Internal Revenue Code ("Incentive Options") or non-
qualified stock options ("Non-Qualified Options"). The options
shall be evidenced by agreements in such form as the Committee
may, from time to time, approve ("Stock Option Agreement") and
shall be subject to the following terms and conditions.
5.1 Option Price. The option price of the shares of Common
Stock subject to each option shall be determined by the Committee
but shall be not less than 100% of the Fair Market Value of such
shares on the date of granting of the option.
5.2 Terms of Exercise. Each option granted under the Plan
shall be exercisable in whole or in part on such terms as the
Committee may determine, but in no event shall the option be
exercisable within six months of or more than 10 years after the
date the option is granted.
5.3 Manner of Exercise. The option shall be exercised in
the manner specified by the Committee. Payment of the option
price may be by any of the following methods, as determined by
the Committee at the date of grant and provided for in the Stock
Option Agreement:
(a) In cash;
(b) In shares of Common Stock already owned by the
holder of the option ("Optionee") or partly in cash and partly in
shares of Common Stock. If Common Stock is used to pay the
purchase price (i.e., a "Stock-for-Stock Swap Transaction"), the
Common Stock used must have been owned by the Optionee for at
least six months prior to the date of exercise and must not have
been used in a Stock-for-Stock Swap Transaction within the
preceding six months (i.e., the Common Stock must be "mature").
Payments made in Common Stock shall be valued at the Fair Market
Value of the Common Stock on the date of exercise. Any portion
of the option price representing a fraction of a share shall be
paid in cash.
(c) Subject to such guidelines as may be promulgated
by the Committee, an Optionee may deliver a notice instructing
the Company to deliver the shares being purchased to a broker,
subject to the broker's delivery of cash to the Company equal to
the purchase price and any applicable tax withholding amount.
5.4 Additional Terms of Incentive Options. An Incentive
Option granted pursuant to the Plan:
(a) Must be designated as an Incentive Option by the
Committee.
(b) Shall only be an Incentive Option to the extent
that the aggregate Fair Market Value of the Common Stock
(determined as of the date of grant of the option) with respect
to which the option is first exercisable in any calendar year
does not exceed $100,000. For the purpose of the preceding
sentence all options granted by the Company and any Parent or
Subsidiary which are intended to be incentive stock options under
Section 422 of the Internal Revenue Code shall be taken into
account. To the extent the $100,000 limit is exceeded, the
$100,000 in options (measured as described above) granted
earliest in time will be treated as incentive stock options; and
(c) If issuable to an employee who on the date of
grant is the owner of stock (determined with application of the
ownership attribution rules of Section 424(d) of the Internal
Revenue Code) possessing more than 10% of the total combined
voting power of all classes of stock of the Company or any Parent
or Subsidiary, the Incentive Option price shall not be less than
110% of the Fair Market Value of the Common Stock on the date of
grant and the Incentive Option shall not have a term in excess of
five years from the date of grant.
5.5 Termination of Right to Exercise Options. Each option
granted under this Plan shall set forth a termination date
thereof, which date shall be determined by the Committee. In any
event, all options granted pursuant to the Plan shall terminate
upon the first to occur of the following events:
(a) The expiration of 10 years from the date such
option was granted, or any earlier termination date specified in
the Stock Option Agreement;
(b) The expiration of three months from the date an
Optionee ceases to be employed by the Company or a Subsidiary
other than by reason of death, Retirement, Disability or
termination of employment for cause as determined by the
Committee;
(c) The expiration of one year from the date an
Optionee ceases to be employed by the Company or a Subsidiary by
reason of Disability or death;
(d) The expiration of three years from the date an
Optionee ceases to be employed by the Company or a Subsidiary by
reason of Retirement;
(e) The termination of the Optionee's employment for
cause, as determined by the Committee; or
(f) The termination of the Plan pursuant to Section
10;
provided, that if an Optionee's death occurs after the Optionee
ceases to be employed by the Company or a Subsidiary for a reason
other than Retirement but at a time when the Optionee has a right
to exercise any options pursuant to the foregoing, the right to
exercise such option shall not expire prior to one year from the
date of death of the Optionee. Subsequent to termination of the
Optionee's employment for any reason, only that portion of an
option which was exercisable on the date of termination of
employment shall be exercisable, and only during the period, if
any, set forth above. Failure to exercise an Incentive Option
within three months of the date the Optionee ceases to be
employed by the Company or a Subsidiary by reason of Retirement
shall cause an Incentive Option to cease to be treated as an
incentive stock option for purposes of Section 421 of the
Internal Revenue Code.
5.6 Stock Appreciation Rights. Any option granted pursuant
to the Plan may, in the discretion of the Committee, contain a
stock appreciation right ("Stock Appreciation Right"). A Stock
Appreciation Right will permit the holder thereof to exercise
such right by the surrender of the option or portion thereof
which is then exercisable and receive in exchange therefor, upon
such terms, restrictions and conditions as the Committee deems
advisable, an amount equal to the excess of the Fair Market Value
of the shares of Common Stock offered by the option surrendered,
or portion thereof, determined on the date of surrender, over the
aggregate option exercise price of such shares. Such payment may
be made in shares of Common Stock valued at Fair Market Value, in
cash, or partly in cash and partly in shares of Common Stock as
the holder may elect, subject to the consent or disapproval of
the Committee in its sole discretion. If a Stock Appreciation
Right extends to less than all the shares of Common Stock covered
by the related option and if a portion of the related option is
thereafter exercised, the number of shares subject to the
unexercised Stock Appreciation Right shall be reduced only if and
to the extent that the remaining number of shares covered by such
related option is less than the remaining number of shares
subject to such Stock Appreciation Right.
The Stock Appreciation Right, in addition to any other
restrictions imposed by the Committee:
(a) shall expire no later than the underlying stock option;
(b) shall not permit the issuance of cash or shares of a
value which exceeds the difference between the exercise price of
the underlying stock option and the Fair Market Value of the
Common Stock subject to the underlying option at the time the
Stock Appreciation Right is exercised;
(c) shall be transferable only when the underlying stock
option is transferable, and under the same conditions;
(d) shall be exercisable only when the underlying stock
option is eligible to be exercised and then only when the Fair
Market Value of the stock subject to the underlying option
exceeds the option exercise price; and
(e) shall contain such conditions upon exercise (including,
without limitation, conditions limiting the time of exercise to
specified periods) as may be required to satisfy applicable
regulatory requirements, including, without limitation, Rule 16b-
3 (or any successor rule) promulgated by the Securities and
Exchange Commission.
In the event of the exercise of a Stock Appreciation Right,
shares represented by the option or part thereof surrendered upon
such exercise shall not be available for reissuance under the
Plan.
5.7 Award of Accelerated Ownership Stock Option. If the
Committee so provides in the Stock Option Agreement, effective as
of the date of exercise by an Optionee of all or part of an
option using "mature" Common Stock as defined in Section 5.3 of
the Plan as payment for the full purchase price (except that cash
may be used to purchase the nearest whole share of Common Stock),
an Employee shall be granted an accelerated ownership Non-
Qualified Option ("AO") to purchase at the Fair Market Value as
of the date of said exercise and grant, the number of share of
Common Stock equal to the sum of the number of whole shares used
by the Optionee in payment of the purchase price. An AO may be
exercised between the date of vesting and the original date of
expiration of the underlying option to which the AO is related.
No AO shall vest sooner than six months after its date of grant.
The AO shall be evidenced by an agreement containing such
additional terms and conditions as the Committee shall approve,
which conditions may provide that upon exercise of any AO, an
additional AO may be granted with respect to the number of whole
shares used to exercise the AO.
5.8 Options Non-transferable. Except as otherwise provided
in the Stock Option Agreement, no option rights shall be
assignable or transferable except by will or the laws of descent
and distribution (except to the extent not permitted in the case
of an Incentive Option). During the lifetime of an Optionee, an
option or Stock Appreciation Right shall be exercisable only by
the Optionee or by the Optionee's guardian or legal
representative. After the death of an Optionee, the option or
Stock Appreciation Right may be exercised prior to its
termination by the Optionee's legal representative, heir or
legatee. The foregoing shall not restrict, to the extent
permitted by the Committee and provided for in the Stock Option
Agreement, and subject to such terms and conditions as deemed
appropriate by the Committee, transfers for estate and financial
planning purposes, provided the inclusion of such features would
not render the particular award ineligible for the benefits of
Rule 16b-3. Nothing contained herein shall require the Committee
to permit such other transfers.
6. Restricted Stock Awards. The award of restricted stock
("Restricted Stock") to employees may be made in the discretion
of the Committee pursuant to agreements in such forms as the
Committee may, from time to time, approve ("Restricted Stock
Agreement"), subject to the following terms and conditions.
6.1 Restricted Period. The Committee shall set a
restricted period during which the Restricted Stock may not be
sold, assigned, transferred, pledged or otherwise encumbered,
except as permitted by this Plan and the Restricted Stock
Agreement (the "Restricted Period"). If a holder of Restricted
Stock ceases to be an employee of the Company or a Subsidiary
during the Restricted Period for any reason other than death,
Disability or Retirement, all shares of Restricted Stock which
are then subject to the restrictions imposed by the Committee
shall upon such termination of employment be immediately
forfeited and returned to the Company. If a holder of Restricted
Stock ceases to be an employee of the Company or a Subsidiary
during the Restricted Period by reason of death, Disability or
Retirement, shares of Restricted Stock shall become free of the
restrictions imposed by the Committee only to the extent
determined by the Committee, and the Company will deliver to the
holder, or the holder's successor, as the case may be, within 60
days, such shares of Common Stock as are freed from restrictions,
and all other shares shall be forfeited and returned to the
Company. The Committee may, at any time, reduce or terminate the
Restricted Period. Subject to the foregoing, at the end of the
Restricted Period, the holder of Restricted Stock shall be
entitled to receive the Restricted Stock free of restrictions.
In the event that employees of the Company or its Subsidiaries
become employees of another company pursuant to a stock or asset
sale, merger or similar transaction, or in the event of a
corporate reorganization, reduction in force or similar event,
the Committee shall have the authority, which shall be exercised
in its sole discretion, to continue to credit service for
purposes of satisfying the restricted period requirements set
forth in the Restricted Stock Agreement. Such Committee
authority shall only apply to Restricted Stock granted to
individuals who are not subject to Section 16 of the Securities
Exchange Act of 1934.
6.2 Restrictive Legend and Deposit of Certificates. Each
certificate issued in respect of shares of Restricted Stock
awarded under the Plan shall be registered in the name of the
Participant, shall be deposited by the Participant with the
Company together with a stock power endorsed in blank and shall
bear the following legend:
"The transferability of this certificate and the shares of
stock represented hereby are subject to the terms and
conditions contained in an Agreement entered into between
the registered owner and First Interstate Bancorp. A copy
of such Agreement is on file in the office of the Secretary
of First Interstate Bancorp, 633 West Fifth Street, Los
Angeles, California 90071."
6.3 Rights as Shareholder. Subject to the terms of the
Restricted Stock Agreement, the holder of Restricted Stock shall
have all the rights of a shareholder with respect to the
Restricted Stock, including the right to vote such shares;
provided, however, that dividends paid with respect to the shares
of Restricted Stock shall be deposited with the Company and shall
be subject to forfeiture until the expiration of the Restricted
Period, subject to the condition that the sums so deposited shall
be free of restriction and not subject to forfeiture to the
extent applied by the Company to satisfy that employee's
withholding obligations with respect to Restricted Stock
pursuant to Section 13 of the Plan, or otherwise released by the
Committee in its sole discretion. The holder of Restricted Stock
shall not be entitled to interest with respect to the dividends
so deposited.
6.4 Purchase Price. Unless the purchase price of
Restricted Stock is its par value, it shall be at least equal to
50% of Fair Market Value, unless otherwise allowed under Rule 16b-
3.
7. Performance Units. The award of performance units
("Performance Units") to employees shall be made in the
discretion of the Committee pursuant to agreements in such form
as the Committee may, from time to time, approve ("Performance
Unit Agreement"), subject to the following terms and conditions.
7.1 Payment of Shares and Dividends. Each Performance Unit
shall represent one share of Common Stock and shall, at the time
and to the extent it becomes vested, be payable by the delivery
of one share of Common Stock, subject to the provisions of
Section 9 of this Plan, or, if and to the extent provided in the
Performance Unit Agreement, cash based on the Fair Market Value
of the Common Stock at the time of payment. In addition, each
Participant who has been awarded Performance Units shall receive
additional Performance Unit credit based on the value of any
dividends which would have been paid to the Participant if he or
she had owned a number of shares of Common Stock equal to the
number of his or her Performance Units. The amount of such
dividend credit shall be applied towards additional Performance
Units for the Participant at the value of shares of Common Stock
on the dividend date.
7.2 Performance Conditions. The Performance Unit
Agreements shall specify any terms and conditions relating to
performance or otherwise which may be established in the
discretion of the Committee.
7.3 Incentive Plan Deferrals. Performance Units under this
Plan may be attributable to a Participant's deferral election
under the annual Management Incentive Plan, Regional Incentive
Plan or Corporate Executive Incentive Plan, or any successor plan
thereto. Such Performance Units will be payable at the time
selected by the Participant and permitted by the Committee in the
applicable Performance Unit Agreement in shares of Common Stock,
one share for each Performance Unit or, if permitted by the
Committee and provided in the Performance Unit Agreement, in cash
based on the Fair Market Value of the Common Stock at the time of
payment.
8. Stock Awards. The award of Common Stock ("Stock
Award") to employees may be made in the discretion of the
Committee at such times and in such amounts as the Committee
deems appropriate.
8.1 No Restrictions. Common Stock issued to a Participant
pursuant to a Stock Award shall not be subject to any
restrictions under the Plan.
8.2 Corporate Executive Incentive Plan. The Committee may,
in its discretion, issue Stock Awards to key employees who are
also participants in the Corporate Executive Incentive Plan
("CEIP"). A Stock Award to participants in the CEIP pursuant to
this Plan shall be made solely on account of the achievement of
the performance goals established by the Committee under the CEIP
for the year in question. No such award shall be issued under
this Plan until the Committee has certified in writing that such
performance goals have been achieved and has determined the
amount of the participant's cash award under the CEIP. The
maximum stock award attainable by participants in the CEIP under
this Plan shall be that number of shares which is equivalent in
value to one-third of the participant's cash award under the
CEIP, based on the Fair Market Value of the Common Stock on the
date that such cash award is approved by the Committee.
9. Changes in Capitalization. If there are any changes in
the capitalization of the Company affecting in any manner the
number or kind of outstanding shares of Common Stock of the
Company, whether such changes have been occasioned by declaration
of stock dividends, stock split-ups, reclassifications or
recapitalization of such stock, or because the Company has merged
or consolidated with some other corporation (and provided the
option is not thereby terminated pursuant to Section 10 hereof),
or for any other reason whatsoever, then the number and kind of
shares then subject to this Plan and to outstanding options and
the prices to be paid therefor, as well as any related Stock
Appreciation Right, and the number of Performance Units then
outstanding shall be proportionately adjusted by the Committee
whenever and to the extent that the Committee determines that any
such change equitably requires an adjustment. Any shares of
Common Stock or other securities received by a holder of
Restricted Stock with respect to such Restricted Stock by reason
of any such change shall be subject to the same restrictions and
shall be deposited with the Company.
10. Mergers or Consolidations. If the Company, at any
time, should elect to dissolve, undergo a reorganization, merge
or consolidate with any other corporation and the Company is not
the surviving corporation, then (unless in the case of a
reorganization, merger or consolidation, one or more of the
surviving corporations assumes the options under the Plan or
issues substitute options in place thereof) each Optionee holding
outstanding options not yet exercised shall be notified of the
Optionee's right to exercise such options and any related Stock
Appreciation Right to the extent then exercisable prior to such
dissolution, reorganization, merger or consolidation. Subject to
Section 11, the Committee may, in its discretion and on such
terms and conditions as it deems appropriate, accelerate the
vesting of such options and any related Stock Appreciation Right
with respect to all shares covered thereby. Any option and
related Stock Appreciation Right not so exercised within 30 days
of such notification shall thereupon be deemed terminated and
simultaneously the Plan itself shall be deemed terminated.
11. Acceleration of Options, Stock Appreciation Rights, and
Restricted Stock Awards. In the event of a Change in Control,
(i) each option and each related Stock Appreciation Right shall
become immediately exercisable to the full extent theretofore not
exercisable, (ii) the Restricted Period for Restricted Stock
shall immediately expire, and (iii) unless otherwise provided in
Performance Unit Agreements, all Performance Units shall be
immediately payable in Common Stock in the maximum amount
available under the terms of such Performance Unit Agreements;
provided, however, that Awards other than Restricted Stock Awards
shall not, in any event, be so accelerated to a date less than
six months after the date of grant. Acceleration of Awards shall
comply with applicable regulatory requirements, including,
without limitation, Rule 16b-3. Notwithstanding the foregoing,
any Participant shall be entitled to decline the acceleration of
all or any of his or her options, Stock Appreciation Rights or
Restricted Stock if he or she determines that such acceleration
may result in adverse tax consequences to him or her.
12. Expiration of Options. In the event employees of the
Company or its Subsidiaries become employees of another company
pursuant to a stock or asset sale, merger, or similar transaction
or in the event of a corporate reorganization, reduction in force
or similar event, the Committee shall have the authority, which
shall be exercised in its sole discretion, to modify the dates
upon which options previously granted (including any related
Stock Appreciation Rights) shall expire. Such Committee
authority shall only apply to options granted to individuals who
are not subject to Section 16 of the Securities Exchange Act of
1934. Any modification to the terms under which the option would
otherwise expire shall not cause the option to expire later than
the date the option was originally scheduled to expire pursuant
to the terms of the original Stock Option Agreement.
13. Effect on Employment. Nothing herein shall be
construed to limit or restrict the right of the Company or any of
its Subsidiaries to terminate the employment of any Participant
in the Plan, at any time, with or without cause, or to increase
or decrease the compensation of such Participant from the rate of
compensation in existence at the time the employee became a
Participant.
14. Withholding. The Company shall have the right to
withhold from amounts due Participants, or to collect from
Participants directly, the amount which the Company deems
necessary to satisfy any taxes required by law to be withheld by
reason of participation in the Plan. There is no obligation
under this Plan that any Participant be advised of the existence
of the tax or the amount required to be withheld. The
Participant may, prior to the payment of any Award, pay such
amounts to the Company in cash or in shares of Common Stock
already owned (which shall be valued at their Fair Market Value
on the date of payment). The Company may also require, or grant
Participants the right to elect, subject to such terms and
conditions as the Committee may establish, that shares be
withheld to satisfy tax withholding requirements arising from the
exercise of an option, the receipt of a Stock Award or the
vesting of a Restricted Stock award. Notwithstanding any other
provision of this Plan, the Committee may impose such conditions
on the payment of any withholding obligation as may be required
to satisfy applicable regulatory requirements, including, without
limitation, Rule 16b-3 (or any successor rule) promulgated by the
Securities and Exchange Commission.
15. Additional Definitions. "Awards" shall mean an
Incentive Option, a Non-Qualified Option, a Stock Appreciation
Right, A Restricted Stock award, a Performance Unit or a Stock
Award.
"Change in Control" of the Company means and shall be deemed
to have occurred if and when any one of the following five events
occurs: (a) any "person" (as such term is used Section 13(d) of
the Securities Exchange Act of 1934) or group becomes a
beneficial owner, directly or indirectly, of securities of the
Company representing 20% or more of the combined voting power of
the Company's then outstanding securities; (b) individuals who
were members of the Board of Directors of the Company immediately
prior to a meeting of the stockholders of the Company involving a
contest for the election of Directors do not constitute a
majority of the Board of Directors following such election; (c)
the stockholders of the Company approve the dissolution or
liquidation of the Company; (d) the stockholders of the Company
approve an agreement to merge or consolidate, or otherwise
reorganize, with or into one or more entities which are not
Subsidiaries, as a result of which less than 50% of the
outstanding voting securities of the surviving or resulting
entity are, or are to be, owned by former stockholders of the
Company (excluding from the term "former stockholders" a
stockholder who is, or as a result of the transaction in question
becomes, an "affiliate", as that term is used in the Exchange Act
and the Rules promulgated thereunder, of any party to such
merger, consolidation or reorganization); or (e) the stockholders
of the Company approve the sale of substantially all of the
Company's business and/or assets to a person or entity which is
not a Subsidiary.
"Disability" shall mean such physical or mental condition
affecting the employee as shall be determined by the Committee,
in its sole discretion, to constitute a disability causing a
termination of employment.
"Fair Market Value" on a specified day means the closing
price on that day of the Common Stock as reported on New York
Stock Exchange-Composite Tape, or if no sale of the Common Stock
was so reported on that date, on the next preceding day on which
there was such a sale.
"Parent" means any corporation owning directly or indirectly
50% or more of the total combined voting power of all classes of
stock of the Company.
"Participant" means an eligible employee selected by the
Committee to participate in the Plan.
"Retirement" means normal or early retirement in accordance
with the provisions of the Retirement Plan of First Interstate
Bancorp and its Affiliates.
"Subsidiary" means any corporation of which the Company
owns, directly or indirectly, 50% or more of the total combined
voting power of all classes of stock. If an entity ceases to be
a Subsidiary, each employee of that entity shall no longer be
deemed employed by the Company or a Subsidiary under the Plan
(unless the employee continues to be employed by the Company or
another entity which is a Subsidiary).
16. Amendment of Plan. The Board of Directors of the
Company may make such amendments to this Plan and to any
agreements thereunder as it shall deem advisable, including, but
not limited to, accelerating the time at which an option may be
exercised or the time when restrictions on Restricted Stock shall
expire. Such amendments shall be subject to shareholder approval
to the extent such approval is required by Rule 16b-3 or the
federal tax rules applicable to Incentive Options or other
applicable law. Without the consent of the Participant, no
amendment shall impair rights of any Participant under the Plan,
except as permitted by the Plan.
17. Construction of the Plan. It is the intent of the
Company that this Plan and the Awards hereunder satisfy and be
interpreted in a manner that, in the case of Participants who are
or may be subject to Section 16 of the Securities Exchange Act of
1934, satisfies the applicable requirements of Rule 16b-3 so that
such persons (unless they otherwise agree) will be entitled to
the benefits of Rule 16b-3 or other exemptive rules under Section
16. If any provision of this Plan or of any Award would conflict
with this intent, that provision to the extent possible shall be
interpreted and deemed amended so as to avoid such conflict, but
to the extent such conflict cannot be avoided, such provision
shall be disregarded as to such Participants.
18. Effective Date and Termination of Plan. The Plan shall
be effective upon filing with the Securities and Exchange
Commission, subject to receipt of shareholder approval of the
Plan at the 1995 Annual Shareholder Meeting. All Awards pursuant
to the Plan prior to the receipt of shareholder approval shall be
subject to receipt of such approval. If such approval is not
received the Awards shall be forfeited. The Plan shall terminate
10 years from the effective date; provided, however, that the
Board of Directors of the Company may terminate the Plan at any
prior time within its absolute discretion. No such termination,
other than as provided for in Section 10 hereof, shall in any way
affect any Award then outstanding.