DST SYSTEMS, INC.
1995 STOCK OPTION AND PERFORMANCE AWARD PLAN,
AMENDED AND RESTATED AS OF 05/09/2000
Section 1. Purpose.
The purposes of the DST Systems, Inc. 1995 Stock Option and Performance
Award Plan (the "Plan") are to generate an increased incentive for Employees of
the Company to contribute to the Company's future success, to secure for the
Company and its stockholders the benefits inherent in equity ownership by
Employees of the Company and to enhance the ability of the Company and its
Affiliates to attract and retain exceptionally qualified Employees upon whom, in
large measure, the sustained progress, growth and profitability of the Company
depend. By encouraging Employees of the Company and its Affiliates to acquire a
proprietary interest in the Company's growth and performance, the Company
intends to more closely align the interests of the Company's Employees,
management and stockholders and motivate Employees to enhance the value of the
Company for the benefit of all stockholders.
Section 2. Definitions.
As used in the Plan, the following terms shall have the meanings set
forth below:
(a) "Affiliate" means (i) any Person that directly, or
through one (1) or more intermediaries, controls, or
is controlled by, or is under common control with,
the Company, (ii) any entity in which the Company has
an equity interest of at least fifty percent (50%),
and (iii) any entity in which the Company has any
other significant equity interest, as determined by
the Committee.
(b) "Award" means any Option, Stock Appreciation Right,
Limited Right, Performance Share, Performance Unit,
Restricted Stock, Shares, Dividend Equivalent, or any
other right, interest, or option relating to Shares
granted pursuant to the provisions of the Plan.
(c) "Award Agreement" means any written agreement,
contract, or other instrument or document evidencing
any Award granted hereunder and signed by both the
Company and the Participant or by both the Company
and an Outside Director.
(d) "Board" means the Board of Directors of the Company.
(e) "Code" means the Internal Revenue Code of 1986, as
amended from time to time.
(f) "Committee" means the Compensation Committee of the
Board, or such other committee designated by the
Board, authorized to administer the Plan under
Section 3 hereof. The Committee shall consist of not
less than three (3) directors, each of whom is a
Disinterested Person within the meaning of Rule 16b-3
and an outside director within the meaning of Code
Section 162(m). Until the date of completion of the
Public Offering, the KCSI Compensation and
Organization Committee shall serve as the Committee
authorized to administer this Plan.
(g) "Company" means DST Systems, Inc., a Delaware
corporation.
(h) "Dividend Equivalent" means any right granted
pursuant to Section 13(f) hereof.
(i) "Employee" means any management employee or employee
with long standing service with the Company or of any
Affiliate, as determined by the Committee, regularly
employed for more than twenty (20) hours per week and
more than five (5) months per year.
(j) "Exchange Act" means the Securities and Exchange Act
of 1934, as amended, or any successors thereto, and
the rules and regulations promulgated thereunder, all
as shall be amended from time to time.
(k) "Fair Market Value" means, with respect to any
property, the market value of such property
determined by such methods or procedures as shall be
established from time to time by the Committee.
(l) "Incentive Stock Option" means an Option granted
under Section 6 hereof that is intended to meet the
requirements of Section 422 of the Code or any
successor provision thereto.
(m) "KCSI" means Kansas City Southern Industries, Inc.,
a Delaware corporation.
(n) "Limited Right" means any right granted to a
Participant pursuant to Section 7(b)
hereof.
(o) "Non-Qualified Stock Option" means an Option granted
under Section 6 hereof that is not intended to be an
Incentive Stock Option, and an Option granted to an
Outside Director pursuant to Section 9 hereof.
(p) "Option" means an Incentive Stock Option or
Non-Qualified Stock Option.
(q) "Outside Director" means a member of the Board wh
is not an Employee of the Company or of any
Affiliate.
(r) "Participant" means an Employee who is selected to
receive an Award under the Plan.
(s) "Performance Award" means any Award of
Performance Shares or Performance Units pursuant
to Section 8 hereof.
(t) "Performance Period" means that period established by
the Committee at the time any Performance Award is
granted or at any time thereafter during which any
performance goals specified by the Committee with
respect to such Award are to be measured.
(u) "Performance Share" means any grant pursuant to
Section 8 hereof of a unit valued by reference to a
designated number of Shares.
(v) "Performance Unit" means any grant pursuant to
Section 8 hereof of (i) a bonus consisting of cash or
other property the amount or value of which, and/or
the entitlement to which, is conditioned upon the
attainment of any performance goals specified by the
Committee, or (ii) a unit valued by reference to a
designated amount of property other than Shares.
(w) "Person" means any individual, corporation,
partnership, association, joint-stock company, trust,
unincorporated organization, or government or
political subdivision thereof.
(x) "Public Offering" means a public offering of Shares
of the Company which results in a reduction of KCSI's
ownership of Shares to less than eighty percent
(80%).
(y) "Rule 16b-3" means Rule 16b-3 promulgated by the
Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended, or any
successor rule or regulation thereto.
(z) "Shares" means shares of the common stock of the
Company, one cent ($.01) par value.
(aa) "Stock Appreciation Right" means any right
granted to a Participant pursuant to Section
7(a) hereof.
(ab) "Stockholders Meeting" means the annual meeting of
stockholders of the Company in each year.
(ac) "Restricted Stock" means any Share issued with the
restriction that the holder may not sell, transfer,
pledge, or assign such Share and with such other
restrictions as the Committee, in its sole
discretion, may impose (including, without
limitation, any restriction on the right to
vote such Share, and the right to receive any
cash dividends), which restrictions may lapse
separately or in combination upon such conditions
and at such time or times, in installments or
otherwise, as the Committee may deem appropriate,
and which restriction shall provide that the Shares
subject to such restriction shall be forfeited if
the restriction does not lapse prior to such date
or such event as the Committee may deem appropriate.
(ad) "Restricted Stock Award" means an award of
Restricted Stock under Section 8A hereof.
Section 3. Administration.
The Plan shall be administered by the Committee. Subject to applicable
law and the terms of the Plan, the Committee shall have full power and authority
to: (i) designate Participants; (ii) determine the type or types of Awards to be
granted to each Participant hereunder; (iii) determine the number of Shares to
be covered by or with respect to which payments, rights, or other matters are to
be calculated in connection with each Award; (iv) determine the terms and
conditions of any Award; (v) determine whether, to what extent, and under what
circumstances Awards may be settled or exercised in cash, Shares, other
securities, other Awards, or other property, or canceled, forfeited, or
suspended, and the method or methods by which Awards may be settled, exercised,
canceled, forfeited, or suspended; (vi) determine whether, to what extent and
under what circumstances cash, Shares, other securities, other Awards, other
property and other amounts payable with respect to an Award under this Plan
shall be deferred either automatically or at the election of the Participant or
the Committee; (vii) interpret and administer the Plan and any instrument or
agreement relating to, or Award made under, the Plan; (viii) establish, amend,
suspend or waive such rules and regulations and appoint such agents as it shall
deem appropriate for the proper administration of the Plan; and (ix) make any
other determination and take any other action that the Committee deems necessary
or desirable for administration of the Plan. Subject to the terms of the Plan
(including without limitation Section 11 hereof), the Committee shall also have
the authority to grant Awards in replacement of Awards previously granted under
this Plan or any other compensation plan of the Company or an Affiliate. Unless
otherwise expressly provided in the Plan, all determinations, designations,
interpretations, and other decisions of the Committee shall be final, conclusive
and binding upon all Persons, including the Company, any Participant, any
stockholder, and any Employee of the Company or of any Affiliate. All
determinations of the Committee shall be made by a majority of its members. The
Committee, in its discretion, may delegate its authority and duties under the
Plan to the Chief Executive Officer and/or to other officers of the Company
under such conditions and/or limitations as the Committee may establish;
provided, however, that only the Committee may select and grant Awards, or
otherwise take any action with respect to Awards, to Participants who are (i)
officers or directors of the Company for purposes of Section 16 of the Exchange
Act; or (ii) Participants who are "covered employees" under Section 162(m) of
the Code.
Section 4. Shares Subject to the Plan.
(a) Subject to adjustment as provided in Section 4(c),
a total of Twelve Million (12,000,000) Shares shall be
available for the grant of Awards under the Plan. Any
Shares issued hereunder may consist, in whole or in part,
of authorized and unissued shares or treasury shares. If any
Shares subject to any Award granted hereunder are forfeited
or such Award otherwise terminates without the issuance
of such Shares or of other consideration in lieu of such
Shares, the Shares subject to such Award, to the extent of
any such forfeiture or termination, shall again be
available for grant under the Plan. In addition, to the
extent permitted by Section 422 of the Code, any Shares
issued by, and any Awards granted by or that become
obligations of, the Company through or as the result of the
assumption of outstanding grants or the substitution of
Shares under outstanding grants of an acquired company
shall not reduce the Shares available for grants under the
Plan (except in the case of Awards granted to
Participants who are officers or directors of the Company to
the extent required by Section 16 of the Exchange Act).
(b) For purposes of this Section 4,
(i) If an Award (other than a Dividend Equivalent) is
denominated in Shares, the number of Shares covered
by such Award, or to which such Award relates, shall
be counted on the date of grant of such Award against
the aggregate number of Shares available for granting
Awards under the Plan;
(ii) Dividend Equivalents and Awards not denominated in
Shares shall be counted against the aggregate number
of Shares available for granting Awards under the
Plan in such amount and at such time as the Committee
shall determine under procedures adopted by the
Committee consistent with the purposes of the Plan;
and
(iii) Awards that operate in tandem with (whether granted
simultaneously with or at a different time from), or
that are substituted for, other Awards or awards
under other Company plans may be counted or not
counted under procedures adopted by the Committee in
order to avoid double counting.
(c) In the event that the Committee shall determine that
any dividend or other distribution (whether in the form
of cash, Shares, or other securities or property), stock
split, reverse stock split, merger, reorganization,
consolidation, recapitalization, split-up, spin-off,
repurchase, exchange of shares, issuance of warrants
or other rights to purchase Shares or other securities of
the Company, or other transaction or event affects the
Shares such that an adjustment is determined by the
Committee to be appropriate in order to prevent dilution or
enlargement of the benefits or potential benefits intended
to be made available under the Plan, then the Committee may:
(i) make adjustments in the aggregate number and class of
shares or property which may be delivered under the Plan and
may substitute other shares or property for delivery under
the Plan, including shares of another entity which is
a party to any such merger, reorganization, consolidation
or exchange of shares; and (ii) make adjustments in the
number, class and option price of shares or property subject
to outstanding Awards and Options granted under the Plan,
and may substitute other shares or property for
delivery under outstanding Awards and Options, including
shares of another entity which is a party to any such merger,
reorganization, consolidation or exchange of shares, as
may be determined to be appropriate by the Committee in its
sole discretion, provided that the number of Shares subject
to any Award or Option shall always be a whole number. The
preceding sentence shall not limit the actions which may be
taken by the Committee under Section 10 of the Plan. No
adjustment shall be made with respect to Awards of Incentive
Stock Options that would cause the Plan to violate Section
422 of the Code.
Section 5. Eligibility.
Any Employee shall be eligible to be selected as a Participant.
Notwithstanding any other provision of the Plan to the contrary, no Participant
may be granted an Option, Limited Right, Stock Appreciation Right, Performance
Shares, Shares or Restricted Stock with respect to a number of Shares in any one
(1) calendar year which, when added to the Shares subject to any other Option,
Limited Right, Stock Appreciation Right, Performance Shares, Shares or
Restricted Stock granted to such Participant in the same calendar year shall
exceed Four Hundred Thousand (400,000) Shares. If an Option, Limited Right,
Stock Appreciation Right, or Performance Share is cancelled, the cancelled
Option, Limited Right, Stock Appreciation Right or Performance Share continues
to count against the maximum number of Shares for which an Option, Limited
Right, Stock Appreciation Right or Performance Share may be granted to a
Participant in any calendar year. All Shares specified in this Section 5 shall
be adjusted to the extent necessary to reflect adjustments to Shares required by
Section 4(c) hereof. No Participant may be granted Performance Units in any one
(1) calendar year which when added to all other Performance Units granted to
such Participant in the same calendar year shall exceed 300% of the
Participant's annual base salary as of the first day of such calendar year (or,
if later, as of the date on which the Participant becomes an Employee);
provided, however, that no more than $1,000,000 of annual base salary may be
taken into account for purposes of determining the maximum amount of Performance
Units which may be granted in any calendar year to any Participant.
Section 6. Stock Options.
Options may be granted hereunder to Participants either alone or in
addition to other Awards granted under the Plan. Options may be Incentive Stock
Options within the meaning of Section 422 of the Code or Non-Qualified Stock
Options (i.e., stock options which are not Incentive Stock Options), or a
combination thereof. Any Option granted to a Participant under the Plan shall be
evidenced by an Award Agreement in such form as the Committee may from time to
time approve. Any such Option shall be subject to the following terms and
conditions and to such additional terms and conditions, not inconsistent with
the provisions of the Plan, as the Committee shall deem desirable:
(a) Option Price. The purchase price per Share purchasable under
an Option shall be determined by the Committee; provided,
however, that such purchase price shall not be less than one
hundred percent (100%) of the Fair Market Value of the Share
on the effective date of the grant of the Option (or, if the
Committee so determines, in the case of any Option
retroactively granted in tandem with or in substitution for
another Award or any outstanding Award granted under any other
plan of the Company, on the effective date of grant of such
other Award or award under another Company plan).
(b) Option Term. The term of each Option shall be fixed by the
Committee in its sole discretion;except as provided below
for Incentive Stock Options.
(c) Exercisability. Options shall be exercisable at such time or
times and subject to such exercise acceleration conditions (if
any) as determined by the Committee at or subsequent to grant;
except as otherwise provided in Section 10(a).
(d) Method of Exercise. Subject to the other provisions of
the Plan and any applicable Award Agreement, any Option may
be exercised by the Participant in whole or in part atsuch
time or times, and the Participant may make payment of the
option price in such form or forms as the Committee shall
determine, including, without limitation, payment by delivery
of cash, Shares, Restricted Stock, or other consideration
(including, where permitted by law and the Committee, Awards)
having a Fair Market Value on the exercise date equal to the
total option price, or by any combination of cash, Shares,
Restricted Stock and other consideration as the Committee may
specify in the applicable Award Agreement; provided, however,
that if Restricted Stock is surrendered to pay the option
price, an equal number of shares issued as a result of the
option exercise shall be subject to the same restrictions.
(e) Incentive Stock Options. In accordance with rules and
procedures established by the Committee, the aggregate Fair
Market Value (determined as of the time of grant) of the
Shares with respect to which Incentive Stock Options held by
any Participant are exercisable for the first time by such
Participant during any calendar year under the Plan (and under
any other benefit plans of the Company or of any parent or
subsidiary corporation of the Company as defined in Section
424 of the Code) shall not exceed One Hundred Thousand Dollars
($100,000) or, if different, the maximum limitation in effect
at the time of grant under Section 422 of the Code, or any
successor provision, and any regulations promulgated
thereunder. The option price per Share purchasable under an
Incentive Stock Option shall not be less than one hundred
percent (100%)of the Fair Market Value of the Share on the
date of grant of the Option. Each Incentive Stock Option shall
expire not later than ten (10) years from its date of grant.
No Incentive Stock Option shall be granted to any Participant
if at the time the Option is granted such Participant owns
stock possessing more than ten percent (10%) of the total
combined voting power of all classes of stock of the Company,
its parent or its subsidiaries unless (i) the option price per
Share is at least one hundred and ten percent (110%) of the
Fair Market Value of the Share on the date of grant, and (ii)
such Option by its terms is not exercisable after the
expiration of five (5) years from the date such Option is
granted. The terms of any Incentive Stock Option granted
hereunder shall comply in all respects with the provisions of
Section 422 of the Code, or any successor provision, and any
regulations promulgated thereunder.
(f) Form of Settlement. In its sole discretion, the Committee may
provide at the time of grant that the Shares to be issued upon
an Option's exercise shall be in the form of Shares subject to
restrictions as the Committee may determine, or other similar
securities, or may reserve the right so to provide after the
time of grant.
(g) Reload Options. If and to the extent the Committee expressly
provides, at the time of grant or later, that the Participant
shall have the right to receive reload options with respect to
Non-Qualified Stock Options, the Participant shall receive
reload options in accordance with and subject to the following
terms and conditions:
(i) Grant of the Reload Option; Number of Shares; Price.
Subject to paragraph (ii) of this Subsection and,
except as provided in paragraph (viii) hereof, to the
availability of Shares to be optioned to the
Participant under the Plan (including the limitations
set forth in Section 5), if a Participant has an
Option (the "original option") with reload rights and
pays for the exercise of the original option by
surrendering Shares or Restricted Stock (whether by
means of delivering Shares or Restricted Stock
previously held by the optionee or by delivering
Shares or Restricted Stock simultaneously acquired on
exercise of the original option), the Participant
shall receive a new Option ("reload option") for the
number of Shares or Restricted Shares so surrendered
at an option price per Share equal to the Fair Market
Value of a Share on the date of the exercise of the
original option.
(ii) Conditions to Grant of Reload Option. A reload option
will not be granted: (A) if the Fair Market Value of
a Share on the date of exercise of the original
option is less than the exercise price of the
original option; or (B) if the Participant is no
longer an Employee of the Company or an Affiliate.
(iii) Term of Reload Option. The reload option shall expire
on the same date as the original option, or at such
later date as the Committee may provide.
(iv) Type of Option. The reload option shall be a Non-
Qualified Stock Option.
(v) Additional Reload Options. Except as expressly
provided by the Committee (at the time of the grant
of the original option or reload option or later),
reload options shall not include any right to
subsequent reload options.
(vi) Date of Grant, Vesting. The date of grant of the
reload option shall be the date of the exercise of
the original option. The reload options shall be
exercisable in full beginning from date of grant,
except as otherwise provided by the Committee.
(vii) Stock Withholding; Grants of Reload Options. If and
to the extent permitted by the Committee, if the
other requirements of this Subsection are satisfied,
and if Shares are withheld or Shares surrendered for
tax withholding pursuant to Section 13(g), a reload
option will be granted for the number of Shares
surrendered as payment for the exercise of the
original option plus the number of Shares surrendered
or withheld to satisfy tax withholding.
(viii) Share Limits. Reload options shall not be counted
against or as a reduction from the number of shares
available for grant under Section 4 hereof because
such grants are a substitute for Shares transferred
to or withheld by the Company.
(ix) Other Terms and Conditions. In connection with reload
options for officers who are subject to Section 16 of
the Exchange Act, the Committee may at any time
impose any limitations which, in the Committee's sole
discretion, are necessary or desirable in order to
comply with Section 16(b) of the Exchange Act and the
rules and regulations thereunder, or in order to
obtain any exemption therefrom. Except as otherwise
provided in this Subsection, all the provisions of
the Plan shall apply to reload options.
Section 7. Stock Appreciation and Limited Rights.
(a) Stock Appreciation Rights may be granted hereunder to
Participants either alone or in addition to other Awards
granted under the Plan and may, but need not, relate to a
specific Option granted under Section 6. The provisions of
Stock Appreciation Rights need not be the same with respect to
each recipient. Any Stock Appreciation Right related to a
Non-Qualified Stock Option may be granted at the same time
such Option is granted or at any time thereafter before
exercise or expiration of such Option. Any Stock Appreciation
Right related to an Incentive Stock Option must be granted at
the same time such Option is granted and must have a grant
price equal to the option price of such Option. In the case of
any Stock Appreciation Right related to any Option, the Stock
Appreciation Right or applicable portion thereof shall
terminate and no longer be exercisable upon the termination or
exercise of the related Option, except that a Stock
Appreciation Right granted with respect to less than the full
number of Shares covered by a related Option shall not be
reduced until the exercise or termination of the related
Option exceeds the number of Shares not covered by the Stock
Appreciation Right. Any Option related to any Stock
Appreciation Right shall no longer be exercisable to the
extent the related Stock Appreciation Right has been
exercised. Any Stock Appreciation Right related to an Option
shall be exercisable to the extent, and only to the extent,
that the related Option is exercisable. The Committee may
impose such other conditions or restrictions on the
exercise of any Stock Appreciation Right as it shall deem
appropriate. Subject to the terms of the Plan and any
applicable Award Agreement, a Stock Appreciation Right granted
under the Plan shall confer on the holder thereof a right to
receive, upon exercise thereof, the excess of (i) the Fair
Market Value of one (1) Share on the date of exercise or with
respect to any right related to an Option other than an
Incentive Stock Option, at any time during a specified
period before or after the date of exercise as determined by
the Committee over (ii) the grant price of the right as
specified by the Committee, which shall not be less than the
Fair Market Value of one (1) Share on the date of grant of the
Stock Appreciation Right (or, if the Committee so determines,
in the case of any Stock Appreciation Right retroactively
granted in tandem with or in substitution for another Award or
any outstanding award granted under any other plan of the
Company, on the date of grant of such other Award or award)
multiplied by the number of Shares as to which the holder is
exercising the Stock Appreciation Right. Subject to the terms
of the Plan and any applicable Award Agreement, the terms and
conditions of any Stock Appreciation Right shall be as
determined by the Committee. The Committee may impose such
conditions or restrictions on the exercise of any Stock
Appreciation Right as it may deem appropriate.
(b) Limited Rights may be granted hereunder to Participants only
with respect to an Option granted under Section 6 hereof or a
stock option granted under another plan of the Company. The
provisions of Limited Rights need not be the same with respect
to each recipient. Any Limited Right related to a Non-
Qualified Stock Option may be granted at the same time such
Option is granted or at any time thereafter before exercise or
expiration of such Option. Any Limited Right related to an
Incentive Stock Option must be granted at the same time such
Option is granted. A Limited Right shall terminate and no
longer be exercisable upon termination or exercise of the
related Option, except that a Limited Right granted wit
respect to less than the full number of Shares covered by a
related Option shall not be reduced until the exercise or
termination of the related Option exceeds the number of Shares
not covered by the Limited Right. Any Option related to any
Limited Right shall no longer be exercisable to the extent
the related Limited Right has been exercised. Any Limited
Right shall be exercisable to the extent, and only to the
extent, the related Option is exercisable and only during the
three (3) month period immediately following a Change in
Control of the Company (as defined in Section 10 hereof). The
Committee may impose such other conditions or restrictions on
the exercise of any Limited Right as it shall deem
appropriate. Subject to the terms of the Plan and any
applicable Award Agreement, a Limited Right granted under the
Plan shall confer on the holder thereof a right to receive,
upon exercise thereof, an amount equal to the excess of (i)
the Fair Market Value of one (1) Share on the date of exercise
or if greater and only with respect to any Limited Right
related to an Option other than an Incentive Stock Option, the
highest price per Share paid in connection with any Change in
Control of the Company, over (ii) the option price of the
related Option, multiplied by the number of Shares as to which
the holder is exercising the Limited Right. The amount payable
to the holder shall be paid by the Company in cash. Subject to
the terms of the Plan and any applicable Award Agreement, the
terms and conditions of any Limited Right shall be as
determined by the Committee. The Committee may impose such
conditions or restrictions on the exercise of any Limited
Right as it may deem appropriate.
Section 8. Performance Awards.
Performance Awards may be issued hereunder to Participants in the form
of Performance Shares or Performance Units, for no cash consideration or for
such minimum consideration as may be required by applicable law, either alone or
in addition to other Awards granted under the Plan. The value represented by a
Performance Share or Unit shall be payable to, or upon the exercise by, the
Participant holding such Award, in whole or in part, following achievement of
such performance goals during such Performance Period as determined by the
Committee. Except as provided in Section 10, Performance Awards will be paid
only after the end of the relevant Performance Period. Performance Awards may be
paid in cash, Shares, Restricted Stock, Options, other property or any
combination thereof, in the sole discretion of the Committee at the time of
payment. The length of the Performance Period, the performance criteria or
levels to be achieved for each Performance Period, and the amount of the Award
to be distributed shall be conclusively determined by the Committee. Performance
Awards may be paid in a lump sum or in installments following the close of the
Performance Period or, in accordance with procedures established by the
Committee, on a deferred basis. Notwithstanding the foregoing, an Award
Agreement may condition the vesting or exercise of a Performance Award on any
combination of the achievement of one or more performance goals and/or the
completion of a specified period of service as the Committee shall determine at
the time of grant. To the extent determined by the Committee, when making
Performance Awards the Committee shall adopt performance goals, certify
completion of such goals and comply with any other Code requirements necessary
to be in compliance with the performance-based compensation requirements of Code
Section 162(m). Performance goals for Performance Awards may be based, in whole
or in part, on one or more of the following performance-based criteria or such
other criteria as the Committee may determine: (i) attainment during the
Performance Period of a specified price per share of the Company's common stock;
(ii) attainment during the Performance Period of a specified rate of growth or
increase in the amount of growth in the price per share of the Company's common
stock; (iii) attainment during the Performance Period of a specified level of
the Company's earnings or earnings per share of the Company's common stock; (iv)
attainment during the Performance Period of a specified rate of growth or
increase in the amount of growth of the Company's earnings or earnings per share
of the Company's common stock; (v) attainment during the Performance Period of a
specified level of the Company's cash flow or cash flow per share of the
Company's common stock; (vi) attainment during the Performance Period of a
specific rate of growth or increase in the amount of growth of the Company's
cash flow or cash flow per share of the Company's common stock; (vii) attainment
during the Performance Period of a specified level of the Company's return on
equity; (viii) attainment during the Performance Period of a specific rate of
growth or increase in the amount of growth of the Company's return on equity;
(ix) attainment during the Performance Period of a specified level of the
Company's return on assets; or (x) attainment during the Performance Period of a
specific rate of growth or increase in the amount of growth of the Company's
return on assets.
Section 8A. Restricted Stock.
(a) Issuance. Restricted Stock Awards may be issued hereunder to
Participants, for no cash consideration or for such minimum
consideration as may be required by applicable law, either
alone or in addition to other Awards granted under the Plan.
The provisions of Restricted Stock Awards need not be the same
with respect to each recipient. The granting of Restricted
Stock shall take place on the date the Committee decides to
grant the Restricted Stock, or if the Restricted Stock Award
provides that the grant of Restricted Stock is conditioned
upon the achievement of performance goals specified in the
Restricted Stock Award, on a date established by the Committee
following the achievement of such performance goals.
(b) Registration. Any Restricted Stock issued hereunder may be
evidenced in such manner as the Committee in its sole
discretion shall deem appropriate, including, without
limitation, book-entry registration or issuance of a stock
certificate or certificates. In the event any stock
certificate is issued in respect of shares of Restricted Stock
awarded under the Plan, such certificate shall be registered
in the name of the Participant, shall bear an appropriate
legend referring to the terms, conditions, and restrictions
applicable to such Award, and shall be held in escrow by the
Company.
(c) Forfeiture. A Restricted Stock Award may condition the grant
of Restricted Stock and/or the lapse of any restriction or
restrictions on Restricted Stock on any combination of the
achievement of one or more performance goals and/or the
completion of a specified period of service as the Committee
shall determine at the time the Restricted Stock Award is
made. To the extent determined by the Committee, when making
Restricted Stock Awards the Committee shall adopt performance
goals, certify completion of such goals and comply with any
other Code requirements necessary to be in compliance with the
performance-based compensation requirements of Code Section
162(m). Performance goals for Restricted Stock Awards may be
based, in whole or in part, on one or more of the following
performance-based criteria or such other criteria as the
Committee may determine: (i) attainment during the Performance
Period of a specified price per share of the Company's common
stock; (ii) attainment during the Performance Period of a
specified rate of growth or increase in the amount of growth
in the price per share of the Company's common stock; (iii)
attainment during the Performance Period of a specified level
of the Company's earnings or earnings per share of the
Company's common stock; (iv) attainment during the Performance
Period of a specified rate of growth or increase in the amount
of growth of the Company's earnings or earnings per share of
the Company's common stock; (v) attainment during the
Performance Period of a specified level of the Company's cash
flow or cash flow per share of the Company's common stock;
(vi) attainment during the Performance Period of a specific
rate of growth or increase in the amount of growth of the
Company's cash flow or cash flow per share of the Company's
common stock; (vii) attainment during the Performance Period
of a specified level of the Company's return on equity; (viii)
attainment during the Performance Period of a specific rate of
growth or increase in the amount of growth of the Company's
return on equity; (ix) attainment during the Performance
Period of a specified level of the Company's return on assets;
or (x) attainment during the Performance Period of a specific
rate of growth or increase in the amount of growth of the
Company's return on assets.
As soon as practicable following the lapse of the
restrictions on Restricted Stock, unrestricted Shares,
evidenced in such manner as the Committee shall deem
appropriate, shall be issued to the grantee.
Except as otherwise determined by the Committee at
the time of grant, upon termination of employment for any
reason before the restriction lapses, all shares of Restricted
Stock still subject to restriction shall be forfeited by the
Participant (who shall sign any document and take any other
action required to assign such shares back to the Company) and
reacquired by the Company.
Section 9. Outside Directors' Options.
(a) Grant of Options. Immediately prior to the Public Offering,
and when an Outside Director first takes a position on the
Board after the Public Offering, the Outside Director shall
receive an Option to purchase Shares ("Initial Options"). On
the date of each Stockholders' Meeting, each Outside Director
shall automatically be granted an Option to purchase Shares
("Annual Options"); provided, however, that an Outside
Director shall not be entitled to receive and shall not be
granted any Annual Options on the date of any particular
Stockholders' Meeting if he will not continue to serve as an
Outside Director immediately following such Stockholders'
Meeting. An Outside Director who first takes a position on the
Board at the annual Stockholders' Meeting shall be entitled to
receive the Initial Options plus the Annual Options. All such
Options shall be Non-Qualified Stock Options. The number of
Shares to be subject to the Initial Option and Annual Option
grants shall be determined from time to time by the Committee.
The price at which each Share covered by such Options may be
purchased shall be one hundred percent (100%) of the fair
market value of a Share on the date the Option is granted.
Fair market value for purposes of this Section 9 shall be
deemed to be the average of the high and low prices of the
Shares as reported on the New York Stock Exchange Composite
Transactions tape on the day the Option is granted or, if no
sale of Shares shall have been made on that day, the next
preceding day on which there was a sale of Shares. For
purposes of Options granted immediately prior to the Public
Offering, the Fair Market Value of the Shares subject to such
Options shall be the offering price at which Shares are first
sold in the Public Offering.
(b) Exercise of Options. Except as set forth in this Section 9,
all Shares subject to an Option granted to an Outside Director
shall become exercisable as follows: fifty percent (50%) on
the day preceding the date of the first Stockholders' Meeting
after the date of the grant of the Option; twenty-five percent
(25%) on the day preceding the date of the second Stockholders'
Meeting after the date of grant of the Option; and the
remaining twenty-five percent (25%) on the day preceding the
third Stockholders' Meeting after the date of grant of the
Option. However, no Option shall be exercisable more than ten
(10) years after the date of grant. Options may be exercised
by an Outside Director during the period that: (i) the Outside
Director remains a member of the Board; (ii) for a period of
one (1) year after ceasing to be a member of the Board by
reason of death; (iii) for the remaining term of the Option in
the event of an Outside Director's disability; (iv) for the
remaining term of the Option if the Outside Director retires
(as defined below) from the Board; or (v) for a period of
ninety (90) days after ceasing to be a member of the Board for
reasons other than retirement, death or disability; however,
only those Options exercisable at the date the Outside
Director ceases to be a member of the Board shall remain
exercisable. All Options held by an Outside Director shall
become exercisable immediately prior to termination of the
Outside Director's service on the Board by reason of an
Outside Director's death, disability or retirement, except
that Options shall not be exercisable earlier than six (6)
months from the date of grant to the extent required by
Section 16(b) of the Exchange Act. For purposes of this
Section 9, "retire" or "retirement" shall mean discontinuance
of service as a director after the director has reached age
sixty (60) and has at least five (5) years or more of service
on the Board. Notwithstanding any provision herein to the
contrary, no Option hereunder shall be exercisable more than
ten (10) years after the date of grant. All Options shall
immediately become exercisable in the event of a Change in
Control, as hereinafter defined, except that Options shall not
be exercisable earlier than six (6) months from the date of
grant if required for exemption under Rule 16(b)-3 under the
Exchange Act.
If a former Outside Director shall die holding an
Option that has not expired and has not been fully exercised,
the Option shall remain exercisable until the later of one (1)
year after the date of death or the end of the period in which
the former Outside Director could have exercised the Option
had he not died, but in no event shall the Option be
exercisable more than ten (10) years after the date of grant.
In the event of the death of an Outside Director or former
Outside Director, his Options shall be exercisable only to the
extent that they were exercisable at his date of death and
only by the executor or administrator of the Outside
Director's estate, by the person or persons to whom the
Outside Director's rights under the Option shall pass under
the Outside Director's will or the laws of descent and
distribution, or by a beneficiary designated in writing in
accordance with Section 13(a) hereof.
(c) Payment. An Option granted to an Outside Director shall be
exercisable only upon payment to the Company of the full
purchase price of the Shares with respect to which the Option
is being exercised. Payment for the Shares shall be in United
States dollars, payable in cash or by check or by delivery of
Shares having a Fair Market Value on the exercise date equal
to the total option price, or by any combination of cash and
Shares.
Section 10. Change in Control.
(a) In order to maintain the Participants' rights in the event of
any Change in Control of the Company, as hereinafter defined,
the Committee, as constituted before such Change in Control,
may, in its sole discretion, as to any Award, either at the
time an Award is made hereunder or any time thereafter, take
any one (1) or more of the following actions: (i) provide for
the purchase by the Company of any such Award, upon the
Participant's request, for an amount of cash equal to the
amount that could have been attained upon the exercise of such
Award or realization of the Participant's rights had such
Award been currently exercisable or payable; (ii) make such
adjustment to any such Award then outstanding as the Committee
deems appropriate to reflect such Change in Control; or (iii)
cause any such Award then outstanding to be assumed, or new
rights substituted therefor, by the acquiring or surviving
corporation after such Change in Control. In the event of a
Change of Control, there shall be an automatic acceleration of
any time periods relating to the exercise or realization of
any such Award and all performance award standards shall be
deemed satisfactorily completed without any action required by
the Committee so that such Award may be exercised or realized
in full on or before a date fixed by the Committee, except no
Award shall be exercisable earlier than six (6) months after
the date of grant to the extent required by Section 16 of the
Exchange Act. The Committee may, in its discretion, include
such further provisions and limitations in any agreement
documenting such Awards as it may deem equitable and in the
best interests of the Company.
(b) For purposes of this Plan, a "Change in Control" shall be
deemed to have occurred if (i) for any reason at any time
less than seventy-five percent (75%) of the members of the
Board of Directors of the Company shall be individuals who
fall into any of the following categories: (A) individuals who
were members of such Board on September 1, 1995; or (B)
individuals whose election, or nomination for election by the
Company's stockholders, was approved by a vote of at least
seventy-five percent (75%) of the members of the Board then
still in office who were members of such Board on September 1,
1995; or (C) individuals whose election, or nomination for
election by the Company's stockholders, was approved by a vote
of at least seventy-five percent (75%) of the members of the
Board then still in office who were elected in the manner
described in (A) or (B) above, or (ii) any "person" (as such
term is used in Sections 13(d) and 14(d)(2) of the Exchange
Act) shall have become, according to a public announcement or
filing, without the prior approval of the Board of Directors
of the Company, the "beneficial owner" (as defined in Rule 13
(d)-3 under the Exchange Act) directly or indirectly, of
securities of the Company representing forty percent (40%) or
more (calculated in accordance with Rule 13(d)-3) of the
combined voting power of the Company's then outstanding voting
securities (such "person" hereafter referred to as a "Major
Stockholder"); or (iii) the stockholders of the Company shall
have approved a merger, consolidation or dissolution of the
Company or a sale, lease, exchange or disposition of all or
substantially all of the Company's assets, or a Major
Stockholder shall have proposed any such transaction, unless
such merger, consolidation, dissolution, sale, lease, exchange
or disposition shall have been approved by at least seventy-
five percent (75%) of the members of the Board of Directors of
the Company who are individuals falling into any combination
of the following categories: (A) individuals who were members
of such Board of Directors on September 1, 1995, or (B)
individuals whose election or nomination for election by the
Company's stockholders was approved by at least seventy-five
percent (75%) of the members of the Board of Directors then
still in office who are members of the Board of Directors on
September 1, 1995, or (C) individuals whose election, or
nomination for election by the Company's stockholders was
approved by a vote of at least seventy-five percent (75%) of
the members of the Board then still in office who were elected
in manner described in (A) or (B) above.
Section 11. Amendments and Termination.
The Board may amend, alter, suspend, discontinue, or terminate the
Plan, but no amendment, alteration, suspension, discontinuation, or termination
shall be made that would materially impair the rights of an optionee or
Participant under an Award theretofore granted, without the optionee's or
Participant's consent. In addition, the Board may consider for each amendment
whether the approval of stockholders is desirable or is necessary for the
amendment to be effective.
The Committee may amend the terms of any Award theretofore granted,
prospectively or retroactively, and may also substitute new Awards for Awards
previously granted under this Plan or for awards granted under any other
compensation plan of the Company or an Affiliate to Participants, including
without limitation previously granted Options having higher option prices, but
no such amendment or substitution shall materially impair the rights of any
Participant without his consent.
The Committee shall be authorized, without the Participant's consent,
to make adjustments in Performance Award criteria or in the terms and conditions
of other Awards in recognition of events that it deems in its sole discretion to
be unusual or nonrecurring that affect the Company or any Affiliate or the
financial statements of the Company or any Affiliate, or in recognition of
changes in applicable laws, regulations or accounting principles, whenever the
Committee determines that such adjustments are appropriate in order to prevent
the dilution or enlargement of benefits or potential benefits under the Plan.
The Committee may correct any defect, supply any omission or reconcile any
inconsistency in the Plan or any Award in the manner and to the extent it shall
deem desirable to carry it into effect. In the event the Company shall assume
outstanding employee benefit awards or the right or obligation to make future
such awards in connection with the acquisition of another corporation or
business entity, the Committee may, in its discretion, make such adjustments in
the terms of Awards under the Plan as it shall deem appropriate.
Section 12. Termination of Employment and Noncompetition.
The Committee shall have full power and authority to determine whether,
to what extent and under what circumstances any Award shall be canceled or
suspended and shall promulgate rules and regulations to (i) determine what
events constitute disability, retirement, termination for an approved reason and
termination for cause for purposes of the Plan, and (ii) determine the treatment
of a Participant under the Plan in the event of his death, disability,
retirement, or termination for an approved reason. If a Participant's employment
with the Company or an Affiliate is terminated for cause, all unexercised,
unearned, and/or unpaid Awards, including, but not by way of limitation, Awards
earned, but not yet paid, all unpaid dividends and dividend equivalents, and all
interest accrued on the foregoing shall be canceled or forfeited, as the case
may be, unless the Participant's Award Agreement provides otherwise. In
addition, but without limitation, all outstanding Awards to any Participant
shall be canceled if the Participant, without the consent of the Committee,
while employed by the Company or after termination of such employment, becomes
associated with, employed by, renders services to, or owns any interest in
(other than any nonsubstantial interest, as determined by the Committee), any
business that is in competition with the Company or any Affiliate, or with any
business in which the Company or any Affiliate has a substantial interest as
determined by the Committee or such officers or committee of senior officers to
whom the authority to make such determination is delegated by the Committee.
Section 13. General Provisions.
(a) Nonassignability. No Award shall be assignable or transferable
by a Participant or an Outside Director otherwise than by will
or by the laws of descent and distribution; provided, however,
that a Participant or Outside Director may, pursuant to a
written designation of beneficiary filed with and approved by
the Committee prior to his death, designate a beneficiary to
exercise the rights of the Participant with respect to any
Award upon the death of the Participant or Outside Director.
Each Award shall be exercisable during the lifetime of the
Participant or the Outside Director, only by the Participant
or the Outside Director or, if permissible under applicable
law, by the guardian or legal representative of the
Participant or Outside Director.
(b) Terms. Except for Options granted pursuant to Section 9, the
term of each Award shall be for such period of months or years
from the date of its grant as may be determined by the
Committee; provided, however, that in no event shall the term
of any Incentive Stock Option or any Stock Appreciation or
Limited Right related to any Incentive Stock Option exceed a
period of ten (10) years from the date of its grant.
(c) Rights to Awards. No Employee, Participant or other Person
shall have any claim to be granted any Award under the Plan,
and there is no obligation for uniformity of treatment of
Employees, Participants, or holders or beneficiaries of Awards
under the Plan.
(d) No Cash Consideration for Awards. Awards shall be granted for
no cash consideration or for such minimal cash consideration
as may be required by applicable law.
(e) Restrictions. All certificates for Shares delivered under the
Plan pursuant to any Award shall be subject to such
stock-transfer orders and other restrictions as the Committee
may deem advisable under the rules, regulations, and other
requirements of the Securities and Exchange Commission, any
stock exchange upon which the Shares are then listed, and any
applicable Federal or state securities law, and the Committee
may cause a legend or legends to be placed on any such
certificates to make appropriate reference to such
restrictions.
(f) Dividend Equivalents. Subject to the provisions of this Plan
and any Award Agreement, the recipient of an Award (including,
without limitation, any deferred Award) may, if so determined
by the Committee, be entitled to receive, currently or on a
deferred basis, interest or dividends, or interest or dividend
equivalents, with respect to the number of Shares covered by
the Award, as determined by the Committee, in its sole
discretion, and the Committee may provide that such amounts
(if any) shall be deemed to have been reinvested in additional
Shares or otherwise reinvested.
(g) Withholding. The Company shall be authorized to withhold from
any Award granted, payment due or shares or other property
transferred under the Plan the amount of income, withholding
and payroll taxes due and payable in respect of an Award,
payment or shares or other property transferred hereunder and
to take such other action as may be necessary in the opinion
of the Company to satisfy all obligations for the payment of
such taxes. The Company may require the Participant or Outside
Director to pay to it such tax prior to and as a condition of
the making of such payment or transfer of Shares or property
under the Plan. In accordance with any applicable
administrative guidelines it establishes, the Committee may
allow a Participant to pay the amount of taxes due or payable
in respect of an Award by withholding from any payment of
Shares due as a result of such Award, or by permitting the
Participant to deliver to the Company, Shares having a fair
market value, as determined by the Committee, equal to the
amount of such taxes.
(h) Deferral of Awards. At the discretion of the Committee,
payment of a Performance Dividend Equivalent or any portion
thereof may be deferred by a Participant until such time as
the Committee may establish. All such deferrals shall be
accomplished by the delivery on a form provided by the Company
of a written, irrevocable election by the Participant prior to
such time payment would otherwise be made. Further, all
deferrals shall be made in accordance with administrative
guidelines established by the Committee to ensure that such
deferrals comply with all applicable requirements of the Code
and its regulations. Deferred payments shall be paid in a lump
sum or installments, as determined by the Committee. The
Committee may also credit interest, at such rates to be
determined by the Committee, on cash payments that are
deferred and credit Dividend Equivalents on deferred payments
denominated in the form of Shares.
(i) No Limit on Other Compensation Arrangements. Nothing contained
in this Plan shall prevent the Company or any Affiliate from
adopting other or additional compensation arrangements,
subject to stockholder approval if such approval is required
and such arrangements may be either generally applicable or
applicable only in specific cases.
(j) Governing Law. The validity, construction, and effect
of the Plan and any rules and regulations relating to
the Plan shall be determined in accordance with the laws
of the State of Delaware and applicable Federal law.
(k) Severability. If any provision of this Plan or any Award is or
becomes or is deemed to be invalid, illegal or unenforceable
in any jurisdiction, or as to any Person or Award, or would
disqualify the Plan or any Award under any law deemed
applicable by the Committee, such provision shall be construed
or deemed amended to conform to applicable laws, or if it
cannot be construed or deemed amended without, in the
determination of the Committee, materially altering the intent
of the Plan or the Award, it shall be stricken and the
remainder of the Plan and any such Award shall remain in full
force and effect.
(l) No Right to Employment. The grant of an Award shall not be
construed as giving a Participant the right to be retained in
the employ of the Company or any Affiliate. Further, the
Company or an Affiliate may at any time terminate the
employment of a Participant, free from any liability, or any
claim under the Plan, unless otherwise expressly provided in
the Plan or in any Award Agreement.
(m) No Trust or Fund Created. Neither the Plan nor any Award shall
create or be construed to create a trust or separate fund of
any kind or a fiduciary relationship between the Company or
any Affiliate and a Participant or any other Person. To the
extent that any Person acquires a right to receive payments
from the Company or any Affiliate pursuant to an Award, such
right shall be no greater than the right of any unsecured
general creditor of the Company or any Affiliate.
(n) No Fractional Shares. No fractional Shares shall be issued or
delivered pursuant to the Plan or any Award, and the Committee
shall determine whether cash, other securities, or other
property shall be paid or transferred in lieu of any
fractional Shares, or whether such fractional Shares or any
rights thereto shall be canceled, terminated, or otherwise
eliminated.
(o) Headings. Headings are given to the Sections and subsections
of the Plan solely as a convenience to facilitate reference.
Such headings shall not be deemed in any way material or
relevant to the construction or interpretation of the Plan or
any provision thereof.
(p) With respect to persons subject to Section 16 of the Exchange
Act, transactions under this Plan are intended to comply with
all applicable conditions of Rule 16b-3. To the extent any
provision of this Plan or action by the Committee fails to so
comply, the Committee may deem, for such persons, such
provision or action null and void to the extent permitted by
law.
Section 14. Effective Date of Plan.
The Plan shall be effective as of September 1, 1995.
Section 15. Term of Plan.
No Award shall be granted pursuant to the Plan after August 31, 2005,
but any Award theretofore granted may extend beyond that date.