[DESCRIPTION] EXHIBIT 10(f)
FAHNESTOCK VINER HOLDINGS INC.
1996 EQUITY INCENTIVE PLAN
AMENDED AND RESTATED
AS AT JANUARY 7, 1997
Table of Contents
Section Page
1. Purpose 1
2. Definitions 1
3. Shares Subject to the Plan 2
4. Grant of Awards and Award Agreements 4
5. Duration of the Plan 5
6. Terms and Conditions of Incentive Stock
Options 5
7. Terms and Conditions of Nonqualified
Options 6
8. Automatic Grant of Options to
Directors of the Company Who are not
Employees of the Company 6
9. Provisions Relating to Options 7
10. Other Stock Awards 9
11. Certificates for Awards of Class A
Shares 9
12. Beneficiary 10
13. Administration of the Plan 11
14. Amendment or Discontinuance 12
15. Adjustments in Event of Change in Class
A Shares 13
16. Miscellaneous 13
17. Effective Date and Stockholder Approval 16
FAHNESTOCK VINER HOLDINGS INC.
1996 Equity Incentive Plan
Amended and Restated as at January 7, 1997
1. Purpose
The purpose of the Fahnestock Viner Holdings Inc. 1996 Equity Incentive Plan
(the "Plan) is to provide additional compensation incentives for high levels
of performance and productivity of key employees, officers and directors of
the Participating Companies. The Plan is intended to strengthen the
Participating Companies' existing operations and its ability to attract and
retain outstanding key employees, officers and directors upon whose judgment,
initiative and efforts the continued success, growth and development of the
Participating Companies is dependent. Such incentive awards may consist of
Class A non-voting shares of the Company, incentive stock options or
nonqualified stock options.
2. Definitions
When used herein, the following terms shall have the following meanings:
(a) "Award" means an award, in the form of Class A Shares or Options,
granted to any Eligible Employee in accordance with the provisions of
the Plan.
(b) "Award Agreement" means the written agreement or certificate evidencing
each Award granted to an Eligible Employee under the Plan.
(c) "Beneficiary" means the beneficiary or beneficiaries designated pursuant
to Section 12 to receive the amount, if any, payable under the Plan upon the
death of an Eligible Employee.
(d) "Board" means the Board of Directors of the Company.
(e) "Class A Shares" means the Class A non-voting shares of the Company.
(f) "Code" means the United States Internal Revenue Code of 1986, as amended.
(g) "Company" means Fahnestock Viner Holdings Inc. and its successors and
assigns.
(h) "Committee" means the Committee appointed by the Board pursuant to
Section 13.
(i) "Effective Date" means April 19, 1996.
(j) "Eligible Employee" means an employee, officer or director of any
Participating Company whose responsibilities and decisions, in the judgment
of the Committee, directly affect the management, growth, performance or
profitability of any Participating Company. When required by the context,
"Eligible Employee" includes an individual who has been granted an Award but
is no longer an employee of any Participating Company. Except as provided
in Section 8, the directors of the Company who are not employees or officers
of the Company shall not be eligible for Awards hereunder.
(k) "Fair Market Value" means, the closing price of the Class A Shares as
reported by The Toronto Stock Exchange or the New York Stock Exchange (or if
such shares are not listed on The Toronto Stock Exchange or the New York
Stock Exchange, or only on another national stock exchange or a national
quotation system, as reported or quoted by such exchange or system) on the
date of grant. (Amended effective January 7, 1997.)
(l) "Participating Company" means the Company and any "subsidiary" within
the meaning of Section 424 of the Code.
(m) "Plan" means the Fahnestock Viner Holdings Inc. 1996 Equity Incentive
Plan, as the same may be amended, administered or interpreted from time to
time.
(n) "Option" means an option to purchase Class A Shares subject to the
applicable provisions of Sections 6, 7, 8 and 9 and awarded in accordance
with the terms of the Plan and which may be an incentive stock option under
Section 422 of the Code or a nonqualified stock option.
(o) "Total Disability" means the complete and permanent inability of an
Eligible Employee to perform all of his or her duties under the terms of his
or her employment with any Participating Company, as determined by the
Committee upon the basis of such evidence, including independent medical
reports and data, as the Committee deems appropriate or necessary.
3. Shares Subject to the Plan
(a) The maximum number of Class A Shares which may be issued pursuant to
Awards granted under the Plan and awards or options granted under another
plan or program of the Company shall be 1,850,000 shares, except for
adjustments as provided in Section 15 of this Plan. Such shares shall be
made available from authorized and unissued shares or shares held by the
Company in its treasury.
(The Plan as approved by the shareholders of the Company on May 29, 1996,
provided for a maximum of 1,224,421 Class A Shares. On July 16, 1996, the
Committee and the Board approved amendments to the Plan including an
increase in the maximum number of Class A Shares to 1,850,000 which amendment
has been approved by The Toronto Stock Exchange but does not become effective
until confirmed by a resolution passed by a simple majority of the votes cast
by the holders of the Class B voting shares of the Corporation at a meeting
duly called for such purpose (the "shareholder approval").
(b) The maximum number of Class A Shares which may be issuable in any one
year period under the Plan or under another Plan or program of the Company to
Insiders as a group may not exceed 10% of the issued Class A Shares and
Class B voting shares of the Company or to any one Insider may not exceed 5%
of the issued Class A Shares and Class B voting shares. For the purposes
hereof "Insider" means:
(i) every director or senior officer of the Company,
(ii) every director or senior officer of a company that is itself an insider
of the Company,
(iii) any person or company who beneficially owns, directly or indirectly,
voting securities of the Company or who exercises control or direction over
voting securities of the Company or a combination of both carrying more than
10 per cent of the voting rights attached to all voting securities of the
Company for the time being outstanding other than voting securities held by
the person or company as underwriter in the course of a distribution.
(iv) any company of which a person named in (i), (ii) and (iii) beneficially
owns, directly or indirectly, voting securities carrying more than 10 per
cent of the voting rights attached to all voting securities of the company
for the time being outstanding,
(v) any partner of a person or company named in (i), (ii), (iii) and (iv),
(vi) any trust or estate in which a person or company named in (i), (ii),
(iii) and (iv) has a substantial beneficial interest or as to which such
person or company serves as trustee or in a similar capacity,
(vii) any relative of a person named in (i), (ii), (iii) and (iv) who resides
in the same home as that person,
(viii) any person of the opposite sex who resides in the same home as a
person named in (i), (ii), (iii) and (iv) and to whom that person is married
or with whom that person is living in a conjugal relationship outside
marriage, or (ix) any relative of a person mentioned in (viii) who has the
same home as that person;
(c) The maximum number of Class A Shares which may be issuable at any time
to Insiders under Awards granted under the Plan and awards or options
granted under another plan or program of the Company shall not exceed 10%
of the then outstanding Class A Shares and Class B voting shares of the
Company. (Amended effective July 16, 1996.)
(d) If, for any reason, any Class A Shares awarded or subject to purchase
or issuance under the Plan are not delivered or are reacquired by the Company
for reasons including, but not limited to, a forfeiture, termination,
expiration or a cancellation of an Award, such Class A Shares shall be deemed
not to have been issued pursuant to Awards under the Plan.
4. Grant of Awards and Award Agreements
(a) Subject to the provisions of the Plan and the requirements of The
Toronto Stock Exchange (and in the case of Awards in the form of Class A
Shares to the prior approval of The Toronto Stock Exchange), the Committee
shall
(i) determine and designate from time to time those Eligible Employees or
groups of Eligible Employees to whom Awards are to be granted; (ii) grant
awards to Eligible Employees; (iii) determine the form or forms of Award to
be granted to any Eligible Employee; (iv) determine the amount or number of
Class A Shares subject to each Award; (v) determine the terms and conditions
(which need not be identical) of each Award; (vi) determine the price at
which Class A Shares may be offered under each Award, which price may be
zero; (vii) interpret, construe and administer the Plan and any related
Award Agreement and define the terms employed therein; and (viii) make all of
the determinations necessary or advisable with respect to the Plan or any
Award granted thereunder. (Amended effective January 7, 1997.)
(b) Each Award granted under the Plan shall be evidenced by a written Award
Agreement, in a form approved by the Committee. Such agreement shall be
subject to and incorporate the express terms and conditions, if any, required
under the Plan or as required by the Committee for the form of Award granted
and such other terms and conditions as the Committee may specify.
(c) Subject to the applicable policies and requirements of The Toronto Stock
Exchange, the Committee may permit the voluntary surrender of all or a
portion of any Award granted under the Plan to be conditioned upon the
granting of a new Award, or may require such voluntary surrender as a
condition to a grant of a new Award. Any such new Award shall be subject to
such terms and conditions as are specified by the Committee at the time the
new Award is granted, determined in accordance with the provisions of the
Plan without regard to the terms of the surrendered Award. (Amended
effective January 7, 1997.)
5. Duration of the Plan
Subject to the provisions of Section 14, the Plan shall remain in effect
until April 19, 2006.
6. Terms and Conditions of Incentive Stock Options
Incentive stock options shall be evidenced by Award Agreements, which
agreements shall be subject to the terms and conditions set forth in Section
9 of this Plan and shall contain in substance the following terms and
conditions and such other terms and conditions not inconsistent therewith as
the Committee may approve:
(a) Option Price. Except as hereinafter provided, the option price per
Class A Share underlying each incentive stock option shall be 100% of the
Fair Market Value of a Class A Share at the time such Option is granted.
(b) Ten Percent Shareholders. The option price per Class A Share underlying
any incentive stock option granted to any individual who, at the time of the
grant, owns shares possessing more than ten (10) percent of the total
combined voting power of all classes of shares of the Company or any of its
subsidiary corporations shall be 110% of the Fair Market Value of a Class A
Share at the time such Option is granted.
(c) Annual Limit. No incentive stock option may be granted under this Plan
if such grant, together with applicable prior grants which are incentive
stock options within the meaning of Section 422 of the Code, would exceed any
maximum established under the Code for incentive stock options that may be
granted to an individual employee. To the extent such maximum is exceeded,
the Option shall be treated as a nonqualified option.
(d) Medium and Time of Payment. An Option shall be exercised by giving
written notice of exercise to the Company. Such notice shall specify the
number of Class A Shares to be purchased and shall be accompanied by a
certified cheque, cashier's cheque, money order or bank draft for the full
purchase price therefor. In addition, the employee shall, upon notification
of the amount due and prior to, or concurrently with, the delivery to the
employee of a certificate representing the Class A Shares, pay promptly any
amount necessary to satisfy applicable federal, provincial, state or local
tax requirements with respect to the issue or transfer of shares.
(e) Withholding. It shall be a condition to the performance of the
Company's obligation to issue or transfer Class A Shares upon exercise of
an Option or Options that the optionee pay, or make provision satisfactory
to the Company for the payment of, any taxes (other than stock transfer
taxes) which the Company is obligated to collect with respect to the issue
or transfer of Class A Shares upon such exercise.
(f) Exercise. No Option granted which is an incentive stock option shall
be exercisable unless the grantee remains in the employ of a Participating
Company for at least two years from the date of grant, and until the
expiration of such two-year period, except as provided in Section 9 hereof.
7. Terms and Conditions of Nonqualified Options
Nonqualified options shall be evidenced by Award Agreements which shall be
subject to the terms and conditions set forth in Section 9 of this Plan and
shall contain in substance the terms and conditions set forth in
subparagraphs (d) and (e) of Section 6 of this Plan and the following terms
and such other terms and conditions not inconsistent therewith as the
Committee may approve. The option price per Class A Share under a
nonqualified option shall be determined by the Committee at the time of the
grant of each Option in accordance with the requirements of any stock
exchange upon which the Class A Shares are listed.
8. Automatic Grant of Options to Directors of the Company Who are not
Employees of the Company
Subject to:
(a) the confirmation by a simple majority of the votes cast by the holders
of the Class B voting shares of the Company at the annual and special meeting
of the shareholders of the Company on May 29, 1996, or at any adjournment
thereof (which confirmation was obtained on May 29, 1996);
(b) compliance by the Company with all applicable securities regulatory
requirements; and
(c) there being a sufficient number of Class A Shares issuable under the
Plan to accommodate the automatic grant of Options provided for in this
Section 8;
Options to purchase Class A Shares shall be granted to directors of the
Company who are not employees of the Company ("Non-Employee Directors"),
including members of the Committee as follows:
(i) Commencing on December 31 of the year in which a Non-Employee Director
shall have served as a director of the Company for three full years and on
each December 31 thereafter, each Non-Employee Director shall be granted
automatically an Option (a "Director's Option") to purchase 5,000 Class A
Shares for each year of service as a director; provided, however, the total
number of Class A Shares subject to Options granted to a Non-Employee
Director with respect to any five-year period shall not exceed 25,000 shares
(reduced by the number of shares subject to any option granted to such
Director under another plan or program of the Company). On the fifth
anniversary of the date of grant of a Director's Option or a Director's
Option under the Company's 1986 Employee Stock Option Plan (collectively,
a "Prior Option") shall be granted automatically a new Director's Option to
purchase the same number of Class A Shares that were subject to the
Prior Option. Each Director's Option shall be exercisable on a cumulative
basis as to 25% of the Class A Shares covered by each such Director's Option
commencing on the last days of each of the 24th, 36th, 42nd and 48th months
after the date of grant and shall expire on the fifth anniversary of the
grant of each Director's Option. (Amended effective January 7, 1997.)
(ii) Each Director's Option shall be exercisable at a price per share equal
to 100% of the Fair Market Value. (Amended effective January 7, 1997.)
(iii) Except as specifically otherwise provided in this Section 8,
all Director's Options shall be subject to the provisions of the Plan as if
the Non-Employee director were an officer or employee of the Company.
9. Provisions Relating to Options
Except as otherwise provided in Section 8 with respect to Director's Options,
all Options granted under this Plan shall be subject to the following
provisions:
(a) Term. An Option shall have such term as is fixed by the Committee,
provided that no Option may be exercised after the expiration of ten (10)
years from the date of grant of such Option, further provided that no
incentive stock option granted to any individual who, at the time of the
grant, owns shares of the Company possessing more than ten per cent of the
total combined voting power of all classes of shares of the Company or any
of its subsidiary companies may be exercised after the expiration of five
(5) years from the date of grant of such Option.
(b) Exercise. Each Option granted under the Plan shall be exercisable with
respect to such number of Class A Shares and, subject to the provisions of
Section 9 hereof, at such time or times, including periodic instalments, as
may be determined by the Committee at the time of the grant.
(c) Rights as a Shareholder. A recipient of Options shall have no rights as
a shareholder with respect to any shares issuable or transferable upon
exercise thereof until the date of issuance of a stock certificate to him for
such shares. Except as otherwise expressly provided in the Plan, no
adjustment shall be made for dividends or other rights for which the record
date is prior to the date such stock certificate is issued.
(d) Non-Assignability of Options. No Option shall be assignable or
transferable by the recipient except by will or by the laws of descent and
distribution. During the lifetime of a recipient, Options shall be
exercisable only by him.
(e) Effect of Termination of Employment, Disability or Death. Subject to
the other provisions of Section 9 hereof, any unexercised portion of any
Option granted under the Plan automatically shall terminate and have no
further force or effect whatsoever upon the grantee's ceasing to be employed
by a Participating Company, (or by a corporation or subsidiary of such
corporation issuing a new stock option or assuming such stock option in a
transaction to which Section 424 of the Code is applicable), unless (i) such
cessation of employment shall be because of (a) involuntary termination of
employment by the employer corporation which the board of directors of the
employer corporation in its sole discretion shall determine to be without
cause, or (b) retirement in accordance with and as permitted by the terms
and conditions of a retirement plan adopted by the employer corporation, in
each of which cases the Option shall be exercisable within a period of three
(3) months following the date of such cessation of employment, (ii) such
cessation of employment shall be because of Total Disability (as determined
by the Committee in its discretion), in which case the Option shall be
exercisable within a period of one (1) year following the date of cessation
of employment by the grantee, his guardian, committee or other authorized
representative, or (iii) such cessation of employment shall be because of
death, in which case an incentive stock option shall be exercisable within
a period of three (3) months, and a non-qualified stock option shall be
exercisable within a period of one (1) year following the date of death by
the estate of the grantee or by the person or persons to whom the grantee's
rights under the Option shall pass by the grantee's will or the laws of
descent and distribution; provided, however, that in no event may an Option
be exercised after the expiration date thereof. (Amended effective October
17, 1996.)
(f) Acceleration. Notwithstanding anything to the contrary set forth in
this Plan, but subject to Section 3(b) of this Plan, the Board of Directors
of the Company shall have the power to cause all Options then outstanding to
be deemed to have been amended to permit the exercise hereof in whole or in
part by the holder at any time or from time to time. To the extent that an
acceleration of the exercisability of an incentive stock option pursuant to
this paragraph causes the aggregate Fair Market Value of Class A Shares
(determined as of the time the Option with respect to such stock was granted)
with respect to which incentive stock options are exercisable for the first
time by an employee during any calendar year under the Plan (or any other
plan of the Company or a parent or subsidiary thereof providing for the grant
of incentive stock options) to exceed US$100,000, such Options shall be
treated as nonqualified options. (Amended effective January 7, 1997.)
(g) General Restriction. Each Option granted under the Plan shall be
subject to the requirement that, if at any time the Board of Directors
shall determine, in its discretion, that the listing, registration, or
qualification of the Class A Shares issuable or transferable upon exercise
thereof upon any securities exchange or under any state, provincial or
federal law, or the consent or approval of any governmental regulatory body,
is necessary or desirable as a condition of, or in connection with, the
granting of such Option or the issue or transfer of Class A Shares thereunder,
such Option may not be exercised in whole or in part unless such listing,
registration, qualification, consent, or approval shall have been effected or
obtained free of any conditions not acceptable to the Board of Directors.
10. Other Stock Awards
The Committee may grant other Awards under the Plan which are denominated in
stock units or pursuant to which Class A Shares may be acquired, including
Awards valued using measures other than market value, if deemed by the
Committee in its discretion to be consistent with the purposes of the Plan
and in compliance with applicable securities laws and the requirements of
any stock exchange on which the Class A Shares are listed. Subject to the
terms of the Plan, the Committee shall determine the form of such Awards,
the number of Class A Shares to be granted or covered pursuant to such Awards
and all other terms and conditions of such Awards.
11. Certificates for Awards of Class A Shares
(a) Subject to Section 6(d), each Eligible Employee entitled to receive
Class A Shares under the Plan shall be issued a certificate for such shares.
Such certificate shall be registered in the name of the Eligible Employee,
and shall bear an appropriate legend reciting the terms, conditions and
restrictions, if any, applicable to such shares and shall be subject to
appropriate stop-transfer orders.
(b) The Company shall not be required to issue or deliver any certificates
for Class A Shares prior to (i) the listing of such shares on any stock
exchange or quotation system on which the Class A Shares may then be listed
or quoted and (ii) the completion of any registration, qualification,
approval or authorization of such Class A Shares under any federal,
provincial or state law, or any ruling or regulation or approval or
authorization of any governmental body which the Company shall, in its sole
discretion, determine to be necessary or advisable.
(c) All certificates for Class A Shares delivered under the Plan shall also
be subject to such stop-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 Class A Shares are then listed and any applicable federal,
provincial or state securities laws, and the Committee may cause a legend or
legends to be placed on any such certificates to make appropriate reference
to such restrictions. The foregoing provisions of this Section 11(c) shall not
be effective if and to the extent that the Class A Shares delivered under
the Plan are covered by an effective and current registration statement under
the Securities Act of 1933, or if and so long as the Committee determines
that application of such provisions is no longer required or desirable. In
making such determination, the Committee may rely upon an opinion of counsel
for the Company.
(d) Each Eligible Employee who receives an award of Class A Shares shall
have all of the rights of a shareholder with respect to such shares,
including the right to vote the shares and receive dividends and other
distributions. No Eligible Employee shall have any right as a shareholder
with respect to any shares subject to such Award prior to the date of
issuance to him or her of a certificate or certificates for such shares.
12. Beneficiary
(a) Each Eligible Employee shall file with the Committee a written
designation of one or more persons as the Beneficiary who shall be entitled
to receive the Award, if any, payable under the Plan upon his or her death.
An Eligible Employee may from time to time revoke or change his or her
Beneficiary designation without the consent of any prior Beneficiary by
filing a new designation with the Committee. The last such designation, or
change or revocation thereof, shall be controlling; provided, however,
that no designation, or change or revocation thereof, shall be effective
unless received by the Committee prior to the Eligible Employee's death, and
in no event shall it be effective as of a date prior to such receipt.
(b) If no such Beneficiary designation is in effect at the time of an
Eligible Employee's death, or if no designated Beneficiary survives the
Eligible Employee or if such designation conflicts with law, the Eligible
Employee's estate shall be entitled to receive the Award, if any, payable
under the Plan upon his or her death. If the Committee is in doubt as to
the right of any person to receive such Award, the Company may retain such
Award, without liability for any interest thereon, or the Company may pay
such Award into any court of appropriate jurisdiction and such payment shall
be a complete discharge of the liability of the Company therefor.
13. Administration of the Plan
(a) The Plan shall be administered by the Committee, which shall consist of
two or more persons, as appointed by the Board and serving at the Board's
pleasure. Each member of the Committee shall be a member of the Board and a
"disinterested person" within the meaning of Rule 16b-3(c)(2) under the
Securities Exchange Act of 1934 or any successor rule or regulation. Except
as provided in Section 8, no member of the Committee shall have been granted
Options under the Plan or have been granted or awarded an Option or other
right with respect to equity securities of the Company pursuant to any other
plan of the Company at the time within the one-year period immediately
preceding the member's appointment to the Committee.
(b) All decisions, determinations or actions of the Committee made or taken
pursuant to grants of authority under the Plan shall be made or taken in the
sole discretion of the Committee and shall be final, conclusive and binding
on all persons for all purposes.
(c) The Committee shall have full power, discretion and authority to
interpret, construe and administer the Plan and nay part thereof and any
related Award agreement, and its interpretations and constructions thereof
and actions taken thereunder shall be, except as otherwise determined by
the Board, final, conclusive and binding on all persons for all purposes.
(d) The Committee shall have full power, discretion and authority to
prescribe and rescind rules, regulations and policies for the administration
of the Plan.
(e) The Committee's decisions and determinations under the Plan and with
respect to any Award granted thereunder need not be uniform and may be made
selectively among Eligible Employees, whether or not such Eligible Employees
are similarly situated.
(f) The Committee shall keep minutes of its actions under the Plan. The act
of a majority of the members present at a meeting duly called and held shall
be the act of the Committee. Any decision or determination reduced to
writing and signed by all members of the Committee shall be fully as
effective as if made by unanimous vote at a meeting duly called and held.
(g) The Committee may employ such legal counsel, including without
limitation independent legal counsel and counsel regularly employed by
the Company, consultants a nd agents as the Committee may deem appropriate
for the administration of the Plan and may rely upon any opinion received
from any such counsel or consultant and any computations received from
any such consultant or agent. All expenses incurred by the Committee in
interpreting and administering the Plan, including without limitation,
meeting fees and expenses and professional fees, shall be paid by the
Company.
(h) No member or former member of the Committee or the Board shall be
liable for any action or determination made in good faith with respect
to the Plan or any Award granted or not granted under it. Each member
of former member of the Committee or the Board shall be indemnified and
held harmless by the Company against all cost or expense (including counsel
fees and expenses) or liability (including any sum paid in settlement of
a claim with the approval of the Board) arising out of an act or omission
to act in connection with the Plan unless arising out of such member's or
former member's own fraud or bad faith. Such indemnification shall be
in addition to any rights of indemnification or insurance the members or
former members may have as directors or under the by-laws of the Company
or otherwise.
14. Amendment or Discontinuance
The Board may, at any time, amend or terminate the Plan, except that no
amendment shall increase the maximum number of shares which may be optioned
(except in accordance wit the provisions of Section 15 hereof), change the
class of employees eligible to receive Options, decrease the option price,
or extend the terms of the Plan without the prior approval of a simple
majority of the votes cast by the holders of the Class B voting shares of
the Company at a meeting duly called for such purpose. All such amendments
to the Plan, whether or not requiring shareholder approval, shall be subject
to the approval, if applicable, or any stock exchange upon which the shares
of the Company are listed. The Plan may also be amended by the Committee,
provided that all such amendments shall be reported to the Board. No
amendment shall become effective unless approved by affirmative vote of the
Company's shareholders if such approval is necessary or desirable for the
continued validity of the Plan or if the failure to obtain such approval
would adversely affect the compliance of the Plan with Rule 16b-3 or any
successor rule under the Securities Exchange Act of 1934, or any other rule
or regulation. No amendment or termination shall, when taken as a whole,
adversely and materially affect the rights of any recipient of a previously
granted award without his or her consent unless the amendment or termination
is necessary of desirable for the continued validity of the Plan or its
compliance with Rule 16b-3 or any successor rule under the Securities
Exchange Act of 1934 or any other rule or regulation.
15. Adjustments in Event of Change in Class A Shares
In the even of any recapitalization, reclassification, stock dividend,
split-up or consolidation of Class A Shares, amalgamation, merger or
consolidation of the Company, or other event affecting the Class A Shares
as determined by the Committee, the Committee shall make appropriate
adjustments in the number and kind of securities which may be issued pursuant
to Awards under the Plan, including Awards then outstanding, and the
Committee may make such adjustments to the terms, conditions or restrictions
on securities or Awards as the Committee deems equitable.
16. Miscellaneous
(a) Nothing in this Plan or any Award granted hereunder shall confer upon
any employee any right to continue in the employee of any Participating
Company or interfere in any way with the right of any Participating Company
to terminate his or her employment at any time.
(b) No Award payable under the Plan shall be deemed salary or compensation
for the purpose of computing benefits under any employee benefit plan or
other arrangement of any Participating Company for the benefit of its
employees unless the Company shall determine otherwise.
(c) No Eligible Employee shall have any claim to an Award until it is
actually granted under the Plan. To the extent that any person acquires a
right to receive payments from the Company under this Plan, such right shall
be no greater than the right of an unsecured general creditor of the Company.
All payments of Awards provided for under the Plan shall be paid by the
Company either by issuing Class A Shares or by delivering cash from the
general funds of the Company or other property of the Company; provided,
however, that such payments shall be reduced by the amount of any payments
made to the participant or his or her dependents, beneficiaries or estate
from any trust or special or separate fund established in connection with
this Plan. The Company shall not be required to establish a special or
separate fund or other segregation of assets to assure any payments, and, if
the Company shall make any investments to aid it in meeting its obligations
hereunder the participant shall have no right, title or interest whatever in
or to any such investments except as may otherwise be expressly provided in
a separate written instrument relating to such investments.
(d) At the time of any exercise of any Option under the Plan, the Committee
may, if it shall deem it necessary or desirable for any reason connected
with any applicable law or regulation of any governmental authority relating
to the regulation of securities, require as a condition to the issuance of
any Class A Shares to the optionee that the optionee represent in writing to
the Company that it is his then intention to acquire the shares for
investment and not with a view to the distribution thereof. In the event such
a representation is required and made, no shares shall be issued to the
optionee unless and until the Company is satisfied with the correctness of
such representation. Certificates for shares as to which such representation
is required and made may, in the discretion of the Committee, and subject to
any applicable securities laws or the requirements of any stock exchange
upon which the Class A Shares are listed, be endorsed with a legend noting
such representations.
(e) Any optionee who disposes of any Class A Shares acquired through the
exercise of an option granted under the Plan either (a) within two years
from the date of the grant of the Option pursuant to which the subject
shares were acquired or (b) within one year after the issue of such shares
of the optionee, shall promptly notify the Company of such disposition and
the amount of consideration realized upon such disposition.
(f) If the Committee shall find that any person to whom any Award, or
portion thereof, is payable under the Plan is unable to care for his or her
affairs because of illness or accident, or is a minor, then any payment due
him or her (unless a prior claim therefor has been made by a duly appointed
legal representative) may, if the Committee so directs the Company, be paid
to his or her spouse, a child, a relative, an institution maintaining or
having custody of such person, or any other person deemed by the Committee
to be a proper recipient on behalf of such person otherwise entitled to
payment. Any such payment shall be a complete discharge of the liability
of the Company therefor.
(g) The right of any Eligible Employee or other person to any Award under
the Plan may not be assigned, transferred, pledged or encumbered, either
voluntarily or by operation of law, except as provided in Section 9 with
respect to the designation of a Beneficiary or as may otherwise be required
by law. If, by reason of any attempted assignment, transfer, pledge or
encumbrance or any bankruptcy or other event happening at any time, any
amount payable under the Plan would be made subject to the debts or
liabilities of the Eligible Employee or his or her Beneficiary or would
otherwise devolve upon anyone else and not be enjoyed by the Eligible
Employee or his or her Beneficiary, then the Committee may terminate such
person's interest in any such payment and direct that the same be held and
applied to or for the benefit of the Eligible Employee, his or her
Beneficiary or any other persons deemed to be the natural objects of his or
her bounty, taking into account the expressed wishes of the Eligible
Employee, (or, in the event of his or her death, those of his or her
Beneficiary) in such manner as the Committee may deem proper.
(h) Copies of the Plan and all amendments, administrative rules and
procedures and interpretations shall be made available for review to all
Eligible Employees at all reasonable times at the Company's administrative
offices.
(i) The Committee may cause to be made, as a condition precedent to the
payment of any Award, or otherwise, appropriate arrangements with the Eligible
Employee or his or her Beneficiary, for the withholding of any federal,
provincial, state or local taxes. The Committee may in its discretion permit
the payment of such withholding taxes by authorizing the Company to withhold
Class A Shares to be issued, or by delivering to the Company shares of Class
A Shares owned by the Eligible Employee or Beneficiary, in either case having
a Fair Market Value equal to the amount of such taxes.
(j) The Plan and the grant of Awards shall be subject to all applicable
federal, state and provincial laws, rules and regulations and to such
approvals by any governmental or regulatory agency as may be required.
(k) All elections, designations, requests, notices, instructions and other
communications from an Eligible Employee, Beneficiary or other person to the
Committee, required or permitted under the Plan, shall be in such form as is
prescribed from time to time by the Committee and shall be mailed by first
class mail or delivered to such location as shall be specified by the
Committee.
(l) The terms of the Plan shall be binding upon the Company and its
successors and assigns.
(m) Absence on leave approved by a duly constituted officer of the Company
shall not be considered interruption or termination of employment for any
purposes of the Plan; provided, however, that no Award may be granted to an
employee while he or she is absent on leave.
(n) Captions preceding the sections hereof are inserted solely as a matter
of convenience and in no way define or limit the scope or intent of any
provisions hereof.
17. Effective Date and Stockholder Approval
The Effective Date of the Plan shall be April 19, 1996, subject to approval
by the holders of a majority of Class B voting Shares present in person or by
proxy at the Company's 1996 Annual Meeting of Shareholders. No Awards will
be granted under the Plan after the expiration of ten years from the
Effective Date.
THIS DOCUMENT CONSTITUTES PART OF THE PROSPECTUS COVERING
SECURITIES THAT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
OF THE UNITED STATES.
February 6, 1997