Exhibit 4.4
REVISED 2/6/98
STOCK PLAN FOR EMPLOYEES AND DIRECTORS OF
LITTELFUSE, INC.
1. Purpose. Littelfuse, Inc. (the "Corporation") desires to attract and
retain Employees and directors of outstanding talent. The Stock Plan for
Employees and Directors of Littelfuse, Inc. (the "Plan") affords eligible
Employees and directors the opportunity to acquire proprietary interests in the
Corporation and thereby encourages their highest levels of performance and
interest.
2. Scope and Duration.
a. Awards under the Plan may be granted in the following forms:
(1) incentive stock options ("incentive stock options"), as
provided in Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code"), and non-qualified stock options ("non-qualified
options"; the term "options" includes incentive stock options and
non-qualified options);
(2) shares of Common Stock of the Corporation (the "Common
Stock") which are restricted as provided in paragraph 10. ("restricted
shares"); or
(3) rights to acquire shares of Common Stock which are
restricted as provided in paragraph 10. ("units" or "restricted
units").
Options may be accompanied by stock appreciation rights ("rights").
b. The maximum aggregate number of shares of Common Stock as to
which awards of options, restricted shares, units, or rights may be made from
time to time under the Plan is 1,000,000 shares. Shares issued pursuant to this
Plan may be in whole or in part, as the Board of Directors of the Corporation
(the "Board of Directors") shall from time to time determine, authorized but
unissued shares or issued shares reacquired by the Corporation. If for any
reason any shares as to which an option has been granted cease to be subject to
purchase thereunder or any restricted shares or restricted units are forfeited
to the Corporation, or to the extent that any awards under the Plan denominated
in shares or units are paid or settled in cash or are surrendered upon the
exercise of an option, then (unless the Plan shall have been terminated) such
shares or units, and any shares surrendered to the Corporation upon such
exercise, shall become available for subsequent awards under the Plan; provided,
however, that shares surrendered by the Corporation upon the exercise of an
incentive stock option and shares subject to an incentive stock option
surrendered upon the exercise of a right shall not be available for subsequent
award of additional stock options under the Plan.
c. No incentive stock option shall be granted hereunder after
December 15, 2001.
3. Administration.
a. The Plan shall be administered by the Stock Option Committee or
any successor thereto of the Board of Directors of the Corporation or by such
other committee (the "Committee") as shall be determined by the Board of
Directors. The Committee shall consist of not less than two members of the Board
of Directors, each of whom shall qualify as a odisinterested persono to
administer the Plan as contemplated by Rulea16b-3, as amended, or other
applicable rules under Section 16(b) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
b. The Committee shall have plenary authority in its sole
discretion, subject to and not inconsistent with the express provisions of this
Plan:
(1) to grant options, to determine the purchase price of the
Common Stock covered by each option, the term of each option, the
persons to whom, and the time or times at which, options shall be
granted and the number of shares to be covered by each option;
(2) to designate options as incentive stock options or
non-qualified options and to determine which options shall be
accompanied by rights;
(3) to grant rights and to determine the purchase price of
the Common Stock covered by each right or related option, the term of
each right or related option, the Employees and Eligible Directors (as
such terms are defined below) to whom, and the time or times at which,
rights or related options shall be granted and the number of shares to
be covered by each right or related option;
(4) to grant restricted shares and restricted units and to
determine the term of the Restricted Period (as defined in
paragrapha10.) and other conditions applicable to such shares or units,
the Employees to whom, and the time or times at which, restricted
shares or restricted units shall be granted and the number of shares or
units to be covered by each grant;
(5) to interpret the Plan;
(6) to prescribe, amend and rescind rules and regulations
relating to the Plan;
(7) to determine the terms and provisions of the option and
rights agreements (which need not be identical) and the
restricted share and restricted unit agreements (which
need not be identical) entered into in connection with
awards under the Plan;
and to make all other determinations deemed necessary or advisable for the
administration of the Plan.
Without limiting the foregoing, the Committee shall have plenary
authority in its sole discretion, subject to, and not inconsistent with, the
express provisions of the Plan, to:
(1) select Participants (as defined below) for
participation in the plan;
(2) determine the timing, price, and amount of any grant or
award under the Plan to any Participant; and
(3) either
(a) determine the form in which payment of any right
granted or awarded under the Plan will be made (i.e., cash,
securities, or any combination thereof), or
(b) approve the election of the Participant to
receive cash in whole or in part in settlement of any right
granted or awarded under the Plan.
As used in the Plan, the following terms shall have
the following meanings: the term oLittelfuse Officero shall
mean an officer (other than an assistant officer) of the
Corporation or any of its Subsidiaries and any other person
who may be designated as any executive officer by the Board of
Directors of the Corporation; the term oParticipanto shall
mean an Employee or Eligible Director; the term oEmployeeo
shall mean a full-time, non-union, salaried employee of the
Corporation or any of its Subsidiaries; the term oEligible
Directoro shall mean any individual who is a member of the
Board of Directors of the Corporation who is not then an
Employee or a beneficial owner, either directly or indirectly,
of more than ten percent (10%) of the Common Stock of the
Corporation; and the term oSubsidiarieso shall mean all
corporations in which the Corporation owns, directly or
indirectly, more than fifty percent (50%) of the total voting
power of all classes of stock.
(c) The Committee may delegate to one or more of its
members or to one or more agents such administrative duties as
it may deem advisable, and the Committee or any person to whom
it has delegated duties as aforesaid may employ one or more
persons to render advice with respect to any responsibility
the Committee or such person may have under the Plan;
provided, that the Committee may not delegate any duties to a
member of the Board of Directors who, if elected to serve on
the Committee, would not qualify as a odisinterested persono
to administer the Plan as contemplated by Rulea16b-3, as
amended, or other applicable rules under the Exchange Act. The
Committee may employ attorneys, consultants, accountants, or
other persons, and the Committee, the Corporation, its
Subsidiaries, and their respective officers and directors
shall be entitled to rely upon the advice, opinions or
valuations of any such persons. All actions taken and all
interpretations and determinations made by the Committee in
good faith shall be final and binding upon all Participants,
the Corporation, its Subsidiaries, and all other interested
persons. No member or agent of the Committee shall be
personally liable for any action, determination, or
interpretation made in good faith with respect to the Plan or
awards made hereunder, and all members and agents of the
Committee shall be fully protected by the Corporation in
respect of any such action, determination, or interpretation.
4. Eligibility; Factors to be Considered in Making Awards.
a. Persons eligible to participate in this Plan shall include all
Employees of the Corporation and all Eligible Directors; provided, however, that
Eligible Directors shall only be eligible to receive grants of options pursuant
to subparagrapha4.e.
b. In determining the Employees to whom awards shall be granted and
the number of shares or units to be covered by each award, the Committee shall
take into account the nature of the EmployeeAEs duties, his or her present and
potential contributions to the success of the Corporation or any of its
Subsidiaries and such other factors as it shall deem relevant in connection with
accomplishing the purposes of the Plan.
c. Awards may be granted singly, in combination, or in tandem and
may be made in combination or in tandem with or in replacement of, or as
alternatives to, awards or grants under any other employee plan maintained by
the Corporation or any of its Subsidiaries. An award made in the form of a unit
or a right may provide, in the discretion of the Committee, for
(1) the crediting to the account of, or the current payment
to, each Employee who has such an award of an amount equal to the cash
dividends and stock dividends paid by the Corporation upon one share of
Common Stock for each restricted unit or share of Common Stock subject
to a right included in such award (oDividend Equivalentso), or
(2) the deemed reinvestment of such Dividend Equivalents and
stock dividends in shares of Common Stock, which deemed reinvestment
shall be deemed to be made in accordance with the provisions of
paragrapha10., and credited to the EmployeeAEs account (oAdditional
Deemed Shareso).
Such Additional Deemed Shares shall be subject to the same restrictions
(including but not limited to provisions regarding forfeitures) applicable with
respect to the unit or right with respect to which such credit is made. Dividend
Equivalents not deemed reinvested as stock dividends shall not be subject to
forfeiture, and may bear amounts equivalent to interest or cash dividends as the
Committee may determine.
d. The Committee, in its sole discretion, may grant to an Employee
who has been granted an award under the Plan or any other employee plan
maintained by the Corporation or any of its Subsidiaries, or any successor
thereto, in exchange for the surrender and cancellation of such award, a new
award in the same or a different form and containing such terms, including,
without limitation, a price which is different (either higher or lower) than any
price provided in the award so surrendered and cancelled, as the Committee may
deem appropriate.
e. Each Eligible Director shall be automatically granted a
non-qualified option to purchase 4,000 shares of Common Stock, which option
shall be granted on the earlier of the January, 1992 meeting of the Committee or
the first meeting of the Committee following the date on which the Eligible
Director is first elected as a member of the Board of Directors of the
Corporation. The purchase price for the Common Stock covered by each such option
shall be the fair market value (as defined below) of such Common Stock on the
date the option is granted, payable at the time and in the manner provided in
subparagrapha5.b. below. Each option granted to an Eligible Director shall be
exercisable as follows: with respect to twenty-percent (20%) of the Common Stock
covered thereby during the ten (10) year period commencing one (1) year
following the date of grant; with respect to an additional twenty percent (20%)
of the Common Stock covered thereby during the ten (10) year period commencing
two (2) years following the date of grant; with respect to an additional twenty
percent (20%) of the Common Stock covered thereby during the ten (10) year
period commencing three (3) years following the date of grant; with respect to
an additional twenty percent (20%) of the Common Stock covered thereby during
the ten (10) year period commencing four (4) years following the date of grant;
and with respect to the remaining twenty percent (20%) of the Common Stock
covered thereby during the ten (10) year period commencing five (5) years
following the date of grant. The foregoing formula can only be amended to the
extent permitted by Rulea16b-3, as amended, under the Exchange Act.
5. Option Price.
a. The purchase price of the Common Stock covered by each option
awarded to an Employee shall be determined by the Committee; provided, however,
that in the case of incentive stock options, the purchase price shall not be
less than 100% of the fair market value of the Common Stock on the date the
option is granted. Fair market value shall mean,
(1) if the Common Stock is duly listed on a national
securities exchange or on the National Association of Securities
Dealers Automatic Quotation System/National Market System ("NASDAQ")
("Duly Listed"), the closing price of the Common Stock for the date on
which the option is granted, or, if there are no sales on such date, on
the next preceding day on which there were sales, or
(2) if the Common Stock is not Duly Listed, the fair market
value of the Common Stock for the date on which the option is granted,
as determined by the Committee in good faith. Such price shall be
subject to adjustment as provided in paragrapha13.
The price so determined shall also be applicable in connection with the exercise
of any related right.
b. The purchase price of the shares as to which an option is
exercised shall be paid in full at the time of exercise; payment may be made in
cash, which may be paid by check or other instrument acceptable to the
Corporation, or, if permitted by the Committee, in shares of the Common Stock,
valued at the closing price of the Common Stock as reported on either a national
securities exchange or NASDAQ for the date of exercise, or if there were no
sales on such date, on the next preceding day on which there were sales (or, if
the Common Stock is not Duly Listed, the fair market value of the Common Stock
on the date of exercise, as determined by the Committee in good faith), or, if
permitted by the Committee and subject to such terms and conditions as it may
determine, by surrender of outstanding awards under the Plan. In addition, the
Participant shall pay any amount necessary to satisfy applicable federal, state,
or local tax requirements promptly upon notification of the amount due. The
Committee may permit such amount to be paid in shares of Common Stock previously
owned by the Participant, or a portion of the shares of Common Stock that
otherwise would be distributed to such Participant upon exercise of the option,
or a combination of cash and shares of such Common Stock.
6. Term of Options. The term of each incentive stock option granted
under the Plan shall be such period of time as the Committee shall determine,
but not more than ten years from the date of grant, subject to earlier
termination as provided in paragraphsa11. and 12. The term of each non-qualified
option granted under the Plan to Employees shall be such period of time as the
Committee shall determine, subject to earlier termination as provided in
paragraphs 11. and 12.
7. Exercise of Options.
a. Each option shall become exercisable, in whole or in part, as the
Committee shall determine; provided, however, that the Committee may also, in
its discretion, accelerate the exercisability of any option in whole or in part
at any time.
b. Subject to the provisions of the Plan and unless otherwise
provided in the option agreement, an option granted under the Plan shall become
exercisable in full at the earliest of the ParticipantAEs death, Eligible
Retirement (as defined below), Total Disability, or a Change in Control (as
defined in paragraph 12.). For purposes of this Plan, the term "Eligible
Retirement" shall mean (1) the date upon which an Employee, having attained an
age of not less than sixty-two, terminates his employment with the Corporation
and its Subsidiaries, provided that such Employee has been employed by the
Corporation or any of its Subsidiaries or any corporation of which the
Corporation or any of its Subsidiaries is the successor for a period of not less
than five (5) years prior to such termination, or (2) the date upon which an
Eligible Director, having attained the age of not less than sixty-two,
terminates his service as a director of the Corporation.
c. An option may be exercised, at any time or from time to time
(subject, in the case of an incentive stock option, to such restrictions as may
be imposed by the Code), as to any or all full shares as to which the option has
become exercisable; provided, however, that an option may not be exercised at
any one time as to less than 100 shares or less than the number of shares as to
which the option is then exercisable, if that number is less than 100 shares.
d. Subject to the provisions of paragraphs 11. and 12., in the case
of incentive stock options, no option may be exercised at any time unless the
holder thereof is then an Employee.
e. Upon the exercise of an option or portion thereof in accordance
with the Plan, the option agreement and such rules and regulations as may be
established by the Committee, the holder thereof shall have the rights of a
shareholder with respect to the shares issued as a result of such exercise.
8. Award and Exercise of Rights.
a. A right may be awarded by the Committee in connection with any
option granted under the Plan, either at the time the option is granted or
thereafter at any time prior to the exercise, termination or expiration of the
option ("tandem right"), or separately ("freestanding right"). Each tandem right
shall be subject to the same terms and conditions as the related option and
shall be exercisable only to the extent the option is exercisable. No right
shall be exercisable for cash by a Littelfuse Officer within six (6) months from
the date the right is awarded (and then, as to a tandem right, only to the
extent the related option is exercisable) or, if the exercise price of the right
is not fixed on the date of the award, within six (6) months from the date when
the exercise price is so fixed, and in any case only when the Littelfuse
OfficerAEs election to receive cash in full or partial satisfaction of the
right, as well as the Littelfuse Officer's exercise of the right for cash, is
made during a Quarterly Window Period (as defined below); provided, that a right
may be exercised by a Littelfuse Officer for cash outside a Quarterly Window
Period if the date of exercise is automatic or has been fixed in advance under
the Plan and is outside the Littelfuse Officer's control. The term "Quarterly
Window Period" shall mean the period beginning on the third business day
following the date of release of each of the Corporation's quarterly and annual
summary statements of sales and earnings and ending on the twelfth business day
following such release; and the date of any such release shall be deemed to be
the date it either:
(1) appears on a wire service,
(2) appears on a financial news service,
(3) appears in a newspaper of general circulation, or
(4) is otherwise made publicly available, for example, by
press releases to a wire service, financial news service, or newspapers
or general circulation.
b. A right shall entitle the Employee upon exercise in accordance
with its terms (subject, in the case of a tandem right, to the surrender
unexercised of the related option or any portion or portions thereof which the
Employee from time to time determines to surrender for this purpose) to receive,
subject to the provisions of the Plan and such rules and regulations as from
time to time may be established by the Committee, a payment having an aggregate
value equal to the product of
(1) the excess of
(a) the fair market value on the exercise date of one share
of Common Stock over
(b) the exercise price per share, in the case of a tandem
right, or the price per share specified in the terms of
the right, in the case of a freestanding right,
multiplied by
(2) the number of shares with respect to which the right
shall have been exercised.
The payment may be made only in cash, subject to subparagrapha8.a. hereof.
c. The exercise price per share specified in a right shall be as
determined by the Committee, provided that, in the case of a tandem right
accompanying an incentive stock option, the exercise price shall be not less
than fair market value of the Common Stock subject to such option on the date of
grant.
d. If upon the exercise of a right the Employee is to receive a
portion of the payment in shares of Common Stock, the number of shares shall be
determined by dividing such portion by the fair market value of a share on the
exercise date. The number of shares received may not exceed the number of shares
covered by any option or portion thereof surrendered. Cash will be paid in lieu
of any fractional share.
e. No payment will be required from an Employee upon exercise of a
right, except that any amount necessary to satisfy applicable federal, state, or
local tax requirements shall be withheld or paid promptly by the Employee upon
notification of the amount due and prior to or concurrently with delivery of
cash or a certificate representing shares. The Committee may permit such amount
to be paid in shares of Common Stock previously owned by the Employee, or a
portion of the shares of Common Stock that otherwise would be distributed to
such Employee upon exercise of the right, or a combination of cash and shares of
such Common Stock.
f. The fair market value of a share shall mean the closing price of
the Common Stock as reported on either a national securities exchange or NASDAQ
for the date of exercise, or if there are no sales on such date, on the next
preceding day on which there were sales; provided, however, that in the case of
rights that relate to an incentive stock option, the Committee may prescribe, by
rules of general application, such other measure of fair market value as the
Committee may in its discretion determine but not in excess of the maximum
amount that would be permissible under Section 422 of the Code without
disqualifying such option under Section 422.
g. Upon exercise of a tandem right, the number of shares subject to
exercise under the related option shall automatically be reduced by the number
of shares represented by the option or portion thereof surrendered.
h. A right related to an incentive stock option may only be
exercised if the fair market value of a share of Common Stock on the exercise
date exceeds the option price.
9. Non-Transferability of Options, Rights, and Units;
Holding Periods for Littelfuse Officers and Eligible
Directors.
a. Options, rights, and units granted under the Plan shall not be
transferable by the grantee thereof otherwise than by will or the laws of
descent and distribution; provided, however, that
(1) the designation of a beneficiary by a Participant shall
not constitute a transfer, and
(2) options and rights may be exercised during the lifetime
of the Participant only by the Participant or, unless
such exercise would disqualify an option as an
incentive stock option, by the ParticipantAEs guardian
or legal representative.
b. Notwithstanding anything contained in the Plan to the contrary,
(1) any shares of Common Stock awarded hereunder to a
Littelfuse Officer may not be transferred or disposed of for at least
six (6) months from the date of award thereof,
(2) any option, right, or unit awarded hereunder to a
Littelfuse Officer or Eligible Director, or the shares of Common Stock
into which any such option, right or unit is exercised or converted,
may not be transferred or disposed of for at least six (6) months
following the date of acquisition by the Littelfuse Officer or Eligible
Director of such option, right, or unit, and
(3) the Committee shall take no action whose effect would
cause a Littelfuse Officer or Eligible Director to be in violation of
clausea(1) or (2) above.
c. Notwithstanding the foregoing and anything else contained in the
Plan to the contrary, up to 25% of the number of non-qualified options (said
percentage to be calculated using as the nominator the sum of the amountaof
outstanding and unexercised non-qualified options proposed to be transferred
plus the number of non-qualified options previously transferred by said
Participant within the previous four years and using as the denominator the
aggregate number of non-qualified options granted to said Participant within the
previous four years) may be transferred (but only on a gift basis) by a
Participant to an immediate family member of the Participant or a trust which
has as beneficiaries at the time of transfer only the Participant and/or
immediate family members of the Participant. As used herein, the term oimmediate
family memberso shall mean the spouse of the Participant, children of the
Participant and their spouses, grandchildren of the Participant and their
spouses and great-grandchildren of the Participant and their spouses
(hereinafter referred to as a oPermitted Transfereeo). All transferred
non-qualified options shall remain subject to all of the provisions of the Plan
and any agreement between the Participant and the Corporation pertaining
thereto, including, without limitation, all vesting, termination and forfeiture
provisions, and the rights and obligations of a transferee with respect to a
non-qualified option transferred thereto shall be determined pursuant to the
provisions of the Plan and any such agreement as if the Participant remained the
holder thereof. In no event shall any transferee of a transferred non-qualified
option be entitled to transfer such non-qualified option except pursuant to the
laws of descent and distribution. Any transfer of non-qualified options made
pursuant to this subsection (c) must be made pursuant to legal documentation
provided by the Corporation, which legal documentation may contain such terms
and conditions as the Corporation, in its discretion, deems appropriate, and
shall be subject to verification by the Corporation or its legal counsel that
the proposed transferee is a Permitted Transferee. Notwithstanding the
foregoing, the Committee, in its absolute discretion, may restrict or deny the
transfer of non-qualified options with respect to one or more Participants. The
provisions of this subsection (c) shall be deemed to override and control over
any provisions in any Non-Qualified Stock Option Agreement between the
Corporation and a Participant which is dated before January 1, 1998, to the
extent such provisions would not allow a transfer of non-qualified options
pursuant to the provisions of this subsection (c).
10. Award and Delivery of Restricted Shares or Restricted Units.
a. At the time an award of restricted shares or restricted units is
made, the Committee shall establish a period of time (the oRestricted Periodo)
applicable to such award. Each award of restricted shares or restricted units
may have a different Restricted Period. The Committee may, in its sole
discretion, at the time an award is made, prescribe conditions for the
incremental lapse of restrictions during the Restricted Period and for the lapse
or termination of restrictions upon the satisfaction of other conditions in
addition to or other than the expiration of the Restricted Period with respect
to all or any portion of the restricted shares or restricted units. Subject to
paragrapha9., the Committee may also, in its sole discretion shorten, or
terminate the Restricted Period, or waive any conditions for the lapse or
termination of restrictions with respect to all or any portion of the restricted
shares or restricted units. Notwithstanding the foregoing but subject to
paragrapha9., all restrictions shall lapse or terminate with respect to all
restricted shares or restricted units upon the earliest to occur of an
EmployeeAEs Eligible Retirement, a Change in Control, death, or Total
Disability.
b. (1) Unless such shares are issued as uncertificated shares
pursuant to subparagraph 10.b.(2)(a) below, a stock certificate representing the
number of restricted shares granted to an Employee shall be registered in the
Employee's name but shall be held in custody by the Corporation or an agent
therefor for the Employee's account. The Employee shall generally have the
rights and privileges of a shareholder as to such restricted shares, including
the right to vote such restricted shares, except that, subject to the provisions
of paragraphs 11. and 12., the following restrictions shall apply:
(a) the Employee shall not be entitled to delivery of the
certificate until the expiration or termination of the Restricted
Period and the satisfaction of any other conditions prescribed by the
Committee;
(b) none of the restricted shares may be sold, transferred,
assigned, pledged, or otherwise encumbered or disposed of during the
Restricted Period and until the satisfaction of any other conditions
prescribed by the Committee; and
(c) all of the restricted shares shall be forfeited and all
rights of the Employee to such restricted shares shall terminate
without further obligation on the part of the Corporation unless the
Employee has remained an Employee until the expiration or termination
of the Restricted Period and the satisfaction of any other conditions
prescribed by the Committee applicable to such restricted shares. At
the discretion of the Committee,
(i) cash and stock dividends with respect to the
restricted shares may be either currently paid or withheld by
the Corporation for the Employee's account, and interest may
be paid on the amount of cash dividends withheld at a rate and
subject to such terms as determined by the Committee, or
(ii) the Committee may require that all cash
dividends be applied to the purchase of additional shares of
Common Stock, and such purchased shares, together with any
stock dividends related to such restricted shares (such
purchased shares and stock dividends are hereafter referred to
as "Additional Restricted Shares") shall be treated as
Additional Shares, subject to forfeiture on the same terms and
conditions as the original grant of the restricted shares to
the Employee.
(2) The purchase of any such Additional Restricted Shares shall
be made either
(a) through a dividend reinvestment plan that may be
established by the Corporation which satisfies the requirements of
Rule 16b-2 under the Exchange Act, in which event the price of such
shares so purchased through the reinvestment of dividends shall be as
determined in accordance with the provisions of that plan and no stock
certificate representing such Additional Restricted Shares shall be in
the EmployeeAEs name, or
(b) in accordance with such alternative procedure as is
determined by the Committee in which event the price of such purchased
shares shall be
(i) if the Common Stock is Duly Listed, the closing
price of the Common Stock as reported on either a national
securities exchange or NASDAQ for the date on which such
purchase is made, or if there were no sales on such date, the
next preceding day on which there were sales, or
(ii) if the Common Stock is not Duly Listed, the fair
market value of the Common Stock for the date on which such
purchase is made, as determined by the Committee in good
faith. In the event that the Committee shall not require
reinvestment, cash, or stock dividends so withheld by the
Committee shall not be subject to forfeiture. Upon the
forfeiture of any restricted shares (including any Additional
Restricted Shares), such forfeited shares shall be transferred
to the Corporation without further action by the Employee. The
Employee shall have the same rights and privileges, and be
subject to the same restrictions, with respect to any shares
received pursuant to paragraph 13.
c. Upon the expiration or termination of the Restricted Period and
the satisfaction of any other conditions prescribed by the Committee or at such
earlier time as provided for in paragraphs 11. and 12., the restrictions
applicable to the restricted shares (including Additional Restricted Shares)
shall lapse and a stock certificate for the number of restricted shares
(including any Additional Restricted Shares) with respect to which the
restrictions have lapsed shall be delivered, free of all such restrictions,
except any that may be imposed by law, to the Employee or the Employee's
beneficiary or estate, as the case may be. The Corporation shall not be required
to deliver any fractional share of Common Stock but will pay, in lieu thereof,
the fair market value (determined as of the date the restrictions lapse) of such
fractional share to the Employee or the Employee's beneficiary or estate, as
the case may be. No payment will be required from the Employee upon the issuance
or delivery of any restricted shares, except that any amount necessary to
satisfy applicable federal, state, or local tax requirements shall be withheld
or paid promptly upon notification of the amount due and prior to or
concurrently with the issuance or delivery of a certificate representing such
shares. The Committee may permit such amount to be paid in shares of Common
Stock previously owned by the Employee, or a portion of the shares of Common
Stock that otherwise would be distributed to such Employee upon the lapse of the
restrictions applicable to the restricted shares, or a combination of cash and
shares of such Common Stock.
d. In the case of an award of restricted units, no shares of Common
Stock shall be issued at the time the award is made, and the Corporation shall
not be required to set aside a fund for the payment of any such award.
e. (1) Upon the expiration or termination of the Restricted Period
and the satisfaction of any other conditions prescribed by the Committee or at
such earlier time as provided in paragraphs 11 and 12., the Corporation shall
deliver to the Employee or the Employee's beneficiary or estate, as the case
may be, one share of Common Stock for each restricted unit with respect to which
the restrictions have lapsed ("vested unit").
(2) In addition, if the Committee has not required the deemed
reinvestment of such Dividend Equivalents pursuant to paragraph 4., at such time
the Corporation shall deliver to the Employee cash equal to any Dividend
Equivalents or stock dividends credited with respect to each such vested unit
and, to the extent determined by the Committee, the interest thereupon. However,
if the Committee has required such deemed reinvestment in connection with such
restricted unit, in addition to the stock represented by such vested unit, the
Corporation shall deliver the number of Additional Deemed Shares credited to the
Employee with respect to such vested unit.
(3) Notwithstanding the foregoing, the Committee may, in its sole
discretion, elect to pay cash or part cash and part Common Stock in lieu of
delivering only Common Stock for the vested units and related Additional Deemed
Shares. If a cash payment is made in lieu of delivering Common Stock, the amount
of such cash payment shall be equal to
(a) if the Common Stock is Duly Listed, the closing price of
the Common Stock as reported on either a national securities exchange
or NASDAQ for the date on which the Restricted Period lapsed with
respect to such vested unit and related Additional Deemed Shares (the
oLapse Dateo) or, if there are no sales on such date, on the next
preceding day on which there were sales, or
(b) if the Common Stock is not Duly Listed, the fair market
value of the Common Stock for the Lapse Date, as determined by the
Committee in good faith.
f. No payment will be required from the Employee upon the award of
any restricted units, the crediting or payment of any Dividend Equivalents or
Additional Deemed Shares, or the delivery of Common Stock or the payment of cash
in respect of vested units, except that any amount necessary to satisfy
applicable federal, state, or local tax requirements shall be withheld or paid
promptly upon notification of the amount due. The Committee may permit such
amount to be paid in shares of Common Stock previously owned by the Employee, or
a portion of the shares of Common Stock that otherwise would be distributed to
such Employee in respect of vested units and Additional Deemed Shares, or a
combination of cash and shares of such Common Stock.
g. In addition, the Committee shall have the right, in its absolute
discretion, upon the vesting of any restricted shares (including Additional
Restricted Shares) and restricted units (including Additional Deemed Shares) to
award cash compensation to the Employee for the purpose of aiding the Employee
in the payment of any and all federal, state, and local income taxes payable as
a result of such vesting, if the performance of the Corporation during the
Restricted Period meets such criteria as then or theretofore determined by the
Committee.
11. Termination of Employment or Service. In the event that the
employment of an Employee or the service as a director of an Eligible Director
to whom an option or right has been granted under the Plan shall be terminated
for any reason other than as set forth in paragrapha12., such option or right
may, subject to the provisions of the Plan, be exercised (but only to the extent
that the Employee or an Eligible Director was entitled to do so at the
termination of his employment or service as a director, as the case may be) at
any time within three (3) months after such termination, but in no case later
than the date on which the option or right terminates.
Unless otherwise determined by the Committee, if an Employee to whom
restricted shares or restricted units have been granted ceases to be an
Employee, for any reason other than as set forth in paragrapha12., prior to the
end of the Restricted Period and the satisfaction of any other conditions
prescribed by the Committee, the Employee shall immediately forfeit all
restricted shares and restricted units, including all Additional Restricted
Shares or Additional Deemed Shares related thereto.
Any option, right, restricted share or restricted unit agreement, or
any rules and regulations relating to the Plan, may contain such provisions as
the Committee shall approve with reference to the determination of the date
employment terminates and the effect of leaves of absence. Any such rules and
regulations with reference to any option agreement shall be consistent with the
provisions of the Code and any applicable rules and regulations thereunder.
Nothing in the Plan or in any award granted pursuant to the Plan shall confer
upon any Participant any right to continue in the employ or service of the
Corporation or any of its Subsidiaries or interfere in any way with the right of
the Corporation or its Subsidiaries to terminate such employment or service at
any time.
12. Eligible Retirement, Death, or Total Disability of Employee or
Eligible Director, Change in Control. If any Employee or Eligible Director to
whom an option, right, restricted share, or restricted unit has been granted
under the Plan shall die or suffer a Total Disability while employed by the
Corporation or in the service of the Corporation as a director, if any Employee
terminates his employment or any Eligible Director terminates his service as a
director pursuant to an Eligible Retirement, or if a Change in Control should
occur, such option or right may be exercised as set forth herein, or such
restricted shares or restricted unit shall be deemed to be vested, whether or
not the Participant was otherwise entitled at such time to exercise such option
or right, or be treated as vested in such share or unit. Subject to the
restrictions otherwise set forth in the Plan, such option or right shall be
exercisable by the Participant, a legatee or legatees of the Participant under
the Participant's last will, or by the Participant's personal representatives
or distributees, whichever is applicable, at the earlier of
a. the date on which the option or right terminates in
accordance with the term of grant, or
b. any time prior to the expiration of three (3) months
after the date of such ParticipantAEs Eligible
Retirement, his termination due to total disability, or
the occurrence of a Change in Control, or, if
applicable, within one year of such ParticipantAEs
death.
For purposes of this paragraph 12., "Total Disability" is defined as the
permanent inability of a Participant, as a result of accident or sickness, to
perform any and every duty pertaining to such Participant's occupation or
employment for which the Participant is suited by reason of the Participant's
previous training, education, and experience.
A "Change in Control" shall be deemed to have occurred upon
a. a business combination, including a merger or
consolidation, of the Corporation and the shareholders of the
Corporation prior to the combination do not continue to own, directly
or indirectly, more than fifty-one percent (51%) of the equity of the
combined entity;
b. a sale, transfer, or other disposition in one or more
transactions (other than in transactions in the ordinary course of
business or in the nature of a financing) of the assets or earning
power aggregating more than forty-five percent (45%) of the assets or
operating revenues of the Corporation to any person or affiliated or
associated group of persons (as defined by Rule 12b-2 of the Exchange
Act in effect as of the date hereof);
c. the liquidation of the Corporation;
d. one or more transactions which result in the acquisition
by any person or associated group of persons (other than the
Corporation, any employee benefit plan whose beneficiaries are
Employees of the Corporation or any of its Subsidiaries, or TCW Special
Credits or any of its affiliates) of the beneficial ownership (as
defined in Rule 13d-3 of the Exchange Act, in effect as of the date
hereof) of forty percent (40%) or more of the Common Stock of the
Corporation, securities representing forty percent (40%) or more of the
combined voting power of the voting securities of the Corporation which
affiliated persons owned less than forty percent (40%) prior to such
transaction or transactions; or
e. the election or appointment, within a twelve (12) month
period, of any person or affiliated or associated group, or its or
their nominees, to the Board of Directors of the Corporation, such that
such persons or nominees, when elected or appointed, constitute a
majority of the Board of Directors of the Corporation and whose
appointment or election was not approved by a majority of those persons
who were directors at the beginning of such period or whose election or
appointment was made at the request of an Acquiring Person.
An "Acquiring Person" is any person who, or which, together with all
affiliates or associates of such person, is the beneficial owner of twenty
percent (20%) or more of the Common Stock of the Corporation then outstanding,
except that an Acquiring Person does not include the Corporation or any employee
benefit plan of the Corporation or any of its Subsidiaries or any person holding
Common Stock of the Corporation for or pursuant to such plan. For the purpose of
determining who is an Acquiring Person, the percentage of the outstanding shares
of the Common Stock of which a person is a beneficial owner shall be calculated
in accordance with Rule 13d-e of the Exchange Act.
13. Adjustments Upon Changes in Capitalization, etc. Notwithstanding
any other provision of the Plan, the Committee may at any time make or provide
for such adjustments to the Plan, to the number and class of shares available
thereunder or to any outstanding options, restricted shares, or restricted units
as it shall deem appropriate to prevent dilution or enlargement of rights,
including adjustments in the event of distributions to holders of Common Stock
other than a normal cash dividend, changes in the outstanding Common Stock by
reason of stock dividends, split-ups, recapitalizations, mergers,
consolidations, combinations, or exchanges of shares, separations,
reorganizations, liquidations, and the like. In the event of any offer to
holders of Common Stock generally relating to the acquisition of their shares,
the Committee may make such adjustment as it deems equitable in respect of
outstanding options, rights, and restricted units including in the CommitteeAEs
discretion revision of outstanding options, rights, and restricted units so that
they may be exercisable for or payable in the consideration payable in the
acquisition transaction. Any such determination by the Committee shall be
conclusive. No adjustment shall be made in the minimum number of shares with
respect to which an option may be exercised at any time. Any fractional shares
resulting from such adjustments to options, rights, limited rights, or
restricted units shall be eliminated.
14. Effective Date. The Plan as theretofore amended shall become
effective as of Decembera16, 1991, provided that the Plan shall be approved by
the Corporation's stockholders on or before December 15, 1992. The Committee
may, in its discretion, grant awards under the Plan, the grant, exercise, or
payment of which shall be expressly subject to the conditions that, to the
extent required at the time of grant, exercise, or payment,
a. the shares of Common Stock covered by such awards shall
be Duly Listed, upon official notice of issuance, and
b. if the Corporation deems it necessary or desirable, a
Registration Statement under the Securities Act of 1933
with respect to such shares shall be effective.
15. Termination and Amendment. The Board of Directors of the
Corporation may suspend, terminate, modify, or amend the Plan, provided that if
any such amendment requires shareholder approval to meet the requirement of the
then applicable rules under Section 16(b) of the Exchange Act, such amendment
shall be subject to the approval of the Corporation's stockholders. If the Plan
is terminated, the terms of the Plan shall, notwithstanding such termination,
continue to apply to awards granted prior to such termination. In addition, no
suspension, termination, modification, or amendment of the Plan may, without the
consent of the Employee or Eligible Director to whom an award shall theretofore
have been granted, adversely affect the rights of such Employee or Eligible
Director under such award.
16. Written Agreements. Each award of options, rights, restricted
shares, or restricted units shall be evidenced by a written agreement, executed
by the Participant and the Corporation, which shall contain such restrictions,
terms and conditions as the Committee may require.
17. Effect on Other Stock Plans. The adoption of the Plan shall have
no effect on awards made, or to be made, pursuant to other stock plans covering
Employees or Eligible Directors of the Corporation or any successors thereto.