EXHIBIT 10.16
NEWELL CO.
AMENDED 1993 STOCK OPTION PLAN
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SECTION 1. PURPOSE
The purpose of the 1993 Stock Option Plan of Newell Co. (the
"Plan") is to benefit Newell Co. (the "Company") and its Subsidiaries
(as defined in Section 2) by recognizing the contributions made to the
Company by officers and other key employees (including Directors of
the Company who are also employees) of the Company and its
Subsidiaries, to provide such persons with additional incentive to
devote themselves to the future success of the Company, and to improve
the ability of the Company to attract, retain and motivate
individuals, by providing such persons with a favorable opportunity to
acquire or increase their proprietary interest in the Company over a
period of years through receipt of options to acquire common stock of
the Company. In addition, the Plan is intended as an additional
incentive to members of the Board of Directors of the Company who are
not employees of the Company ("Non-Employee Directors") to serve on
the Board of Directors of the Company (the "Board") and to devote
themselves to the future success of the Company by providing them with
a favorable opportunity to acquire or increase their proprietary
interest in the Company through receipt of options to acquire common
stock of the Company.
The Company may grant stock options which constitute "incentive
stock options" ("ISOs") within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code"), or stock
options which do not constitute ISO ("NSOs") (ISOs and NSOs being
hereinafter collectively referred to as "Options").
SECTION 2. ELIGIBILITY
Non-Employee Directors shall participate in the Plan only in
accordance with the provisions of Section 5 of the Plan. The
Committee (as defined in Section 3) shall initially, and from time to
time thereafter, select those officers and other key employees
(including Directors of the Company who are also employees)
(collectively referred to herein as "Key Employees") of the Company or
any other entity of which the Company is the direct or indirect
beneficial owner of not less than fifty percent (50%) of all issued
and outstanding equity interests ("Subsidiaries"), to participate in
the Plan on the basis of the special importance of their services in
the management, development and operations of the Company or its
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Subsidiaries (each such Director and Key Employee receiving Options
granted under the Plan is referred to herein as an "Optionee").
SECTION 3. ADMINISTRATION
3.1 THE COMMITTEE
The Plan shall be administered by the Compensation Committee
of the Board (the "Committee"). The Committee shall be comprised of
two (2) or more members of the Board. All members of the Committee
shall satisfy the "disinterested" administration requirements set
forth in Rule 16b-3 promulgated under the Securities Exchange Act of
1934, as amended (the "1934 Act"), or any successor rule or
regulation. If at any time any member of the Committee does not
satisfy such disinterested administration requirements, no Options
shall be granted under this Plan to any person until such time as all
members of the Committee satisfy such requirements. No person who is
an officer or employee of the Company or any Subsidiary shall be a
member of the Committee.
3.2 AUTHORITY OF THE COMMITTEE
No person, other than members of the Committee, shall have
any authority concerning decisions regarding the Plan. Subject to the
express provisions of this Plan, including but not limited to Section
5, the Committee shall have sole discretion concerning all matters
relating to the Plan and Options granted hereunder. The Committee, in
its sole discretion, shall determine the Key Employees of the Company
and its Subsidiaries to whom, and the time or times at which Options
will be granted, the number of shares to be subject to each Option,
the expiration date of each Option, the time or times within which the
Option may be exercised, the cancellation of the Option (with the
consent of the holder thereof) and the other terms and conditions of
the grant of the Option. The terms and conditions of the Options need
not be the same with respect to each Optionee or with respect to each
Option.
The Committee may, subject to the provisions of the Plan,
establish such rules and regulations as it deems necessary or
advisable for the proper administration of the Plan, and may make
determinations and may take such other action in connection with or in
relation to the Plan as it deems necessary or advisable. Each
determination or other action made or taken pursuant to the Plan,
including interpretation of the Plan and the specific terms and
conditions of the Options granted hereunder by the Committee shall be
final and conclusive for all purposes and upon all persons including,
but without limitation, the Company, its Subsidiaries, the Committee,
the Board, officers and the affected employees of the Company and/or
its Subsidiaries and their respective successors in interest.
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No member of the Committee shall, in the absence of bad
faith, be liable for any act or omission with respect to service on
the Committee. Service on the Committee shall constitute service as a
Director of the Company so that members of the Committee shall be
entitled to indemnification pursuant to the Company's Restated
Certificate of Incorporation and By-Laws.
SECTION 4. SHARES OF COMMON STOCK SUBJECT TO PLAN
4.1 The total number of shares of common stock, par value $1.00
per share, and associated preferred stock purchase rights of the
Company (the "Common Stock"), that may be issued and sold under the
Plan shall initially be 4,000,000. The total number of shares of
Common Stock that may be available for Options under the Plan shall be
adjusted on January 1 of each calendar year, within the Applicable
Period (as defined below), so that the total number of shares of
Common Stock that may be issued and sold under the Plan as of January
1 of each calendar year within the Applicable Period shall be equal to
five percent (5%) of the outstanding shares of Common Stock of the
Company on such date; provided, however, that no such adjustment shall
reduce the total number of shares of Common Stock that may be issued
and sold under the Plan below 4,000,000. For purposes of the
preceding sentence, Applicable Period shall be the ten-year period
commencing on January 1, 1993 and ending on December 31, 2002. The
aforementioned total number of shares of Common Stock shall be
adjusted in accordance with the provisions of Section 4.2 hereof.
Notwithstanding the foregoing, the total number of shares of Common
Stock that may be subject to ISOs under the Plan shall be 4,000,000
shares of Common Stock, adjusted in accordance with the provisions of
Section 4.2 hereof. With respect to Options granted to Optionees who
are not subject to Section 16 of the 1934 Act, the number of shares of
Common Stock delivered by any such Optionee or withheld by the Company
on behalf of any such Optionee pursuant to Sections 8.2 or 8.3 of the
Plan shall once again be available for issuance pursuant to subsequent
Options. Any shares of Common Stock subject to issuance upon exercise
of Options but which are not issued because of a surrender (other than
pursuant to Sections 8.2 or 8.3 of the Plan), forfeiture, expiration,
termination or cancellation of any such Option, to the extent
consistent with applicable law, rules and regulations, shall once
again be available for issuance pursuant to subsequent Options.
4.2 The number of shares of Common Stock subject to the Plan and
to Options granted under the Plan shall be adjusted as follows: (a)
in the event that the number of outstanding shares of Common Stock is
changed by any stock dividend, stock split or combination of shares,
the number of shares subject to the Plan and to Options previously
granted thereunder shall be proportionately adjusted, (b) in the event
of any merger, consolidation or reorganization of the Company with any
other corporation or corporations, there shall be substituted on an
equitable basis as determined by the Board of Directors, in its sole
discretion, for each share of Common Stock then subject to the Plan
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and for each share of Common Stock then subject to an Option granted
under the Plan, the number and kind of shares of stock, other
securities, cash or other property to which the holders of Common
Stock of the Company are entitled pursuant to the transaction, and (c)
in the event of any other change in the capitalization of the Company,
the Committee, in its sole discretion, shall provide for an equitable
adjustment in the number of shares of Common Stock then subject to the
Plan and to each share of Common Stock then subject to an Option
granted under the Plan. In the event of any such adjustment, the
exercise price per share shall be proportionately adjusted.
SECTION 5. GRANT OF OPTIONS TO NON-EMPLOYEE DIRECTORS
5.1. GRANTS
All grants of Options to Non-Employee Directors shall be
automatic and non-discretionary. Grants of Options to Non-Employee
Directors shall be made under both paragraph (a) and paragraph (b) of
this Section 5.1 as set forth below.
(a) Each individual who is a Non-Employee Director
on the effective date of the Plan who was first elected to
the Board after May 1, 1992 shall be granted automatically a
NSO to purchase 5,000 shares of Common Stock on the
effective date on the Plan. Each individual who is a Non-
Employee Director (other than a Non-Employee Director who
was previously an employee Director) on the effective date
of the Plan who was first elected to the Board prior to May,
1992, shall be granted automatically a NSO to purchase 5,000
shares of Common Stock on the fifth anniversary of the date
such Director was last granted a NSO under the Company's
Amended and Restated 1984 Stock Option Plan. Each
individual who becomes a Non-Employee Director (other than a
Non-Employee Director who was previously an employee
Director) after the effective date of the Plan shall be
granted automatically a NSO to purchase 5,000 shares of
Common Stock on the date he or she becomes a Non-Employee
Director. Each individual who is a Non-Employee Director on
the effective date of the Plan and who was previously an
employee Director shall be granted automatically a NSO to
purchase 5,000 shares of Common Stock on the fifth
anniversary of the date the Director was last granted an
Option. Each individual who is an employee Director of the
Company on the effective date of the Plan and who thereafter
becomes a Non-Employee Director shall be granted
automatically a NSO to purchase 5,000 shares of Common Stock
on the fifth anniversary of the date the Director was last
granted an Option. Thereafter, each Non-Employee Director
who holds NSOs granted pursuant to this Section 5.1(a) shall
be granted automatically an additional NSO to purchase 5,000
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shares of Common Stock on the fifth anniversary of the date
the Director was last granted an Option.
(b) Each individual who is a Non-Employee Director on
November 6, 1997 shall be granted automatically a NSO to
purchase 5,000 shares of Common Stock on November 6, 1997.
Thereafter, each such Non-Employee Director shall be granted
an additional NSO to purchase 5,000 shares of Common Stock
on the fifth anniversary of the date the Director was last
granted an Option pursuant to this paragraph 5.1(b). Each
individual who becomes a Non-Employee Director after
November 6, 1997 shall be granted automatically a NSO to
purchase 5,000 shares of Common Stock on the date he or she
becomes a Non-Employee Director. Thereafter, each such Non-
Employee Director shall be granted automatically an
additional NSO to purchase 5,000 shares of Common Stock on
the fifth anniversary of the date the Director was last
granted an Option pursuant to this paragraph 5.1(b).
5.2 EXERCISE PRICE AND PERIOD
The per share Option exercise price of each such NSO granted
to a Non-Employee Director shall be the "Fair Market Value," on the
date on which the Option is granted, of the Common Stock subject to
the Option. "Fair Market Value" shall mean the closing sales price of
the Common Stock on the New York Stock Exchange Composite Tape (as
reported in THE WALL STREET JOURNAL, Midwest Edition). Each such NSO
shall become exercisable with respect to one-fifth of the total number
of shares of Common Stock subject to the Option on the date twelve
months after the date of its grant and with respect to an additional
one-fifth of the total number of shares of Common Stock subject to the
Option at the end of each twelve-month period thereafter during the
succeeding four years. Each NSO shall expire on the date ten years
after the date of grant.
SECTION 6. GRANTS OF OPTIONS TO EMPLOYEES
6.1 GRANT
Subject to the terms of the Plan, the Committee may from
time to time grant Options, which may be ISOs or NSOs, to Key
Employees of the Company or any of its Subsidiaries. Unless otherwise
expressly provided at the time of the grant, Options granted under the
Plan to Key Employees will be ISOs.
6.2 OPTION AGREEMENT
Each Option shall be evidenced by a written Option Agreement
specifying the type of Option granted, the Option exercise price, the
terms for payment of the exercise price, the expiration date of the
Option, the number of shares of Common Stock to be subject to each
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Option and such other terms and conditions established by the
Committee, in its sole discretion, not inconsistent with the Plan.
6.3 EXPIRATION
Except to the extent otherwise provided in or pursuant to
Section 7, each Option shall expire, and all rights to purchase shares
of Common Stock shall expire, on the tenth anniversary of the date on
which the Option was granted.
6.4 EXERCISE PERIOD
Except to the extent otherwise provided in or pursuant to
Section 7, or in the proviso to this sentence, Options shall become
exercisable pursuant to the following schedule: with respect to one-
fifth of the total number of shares of Common Stock subject to Option
on the date twelve months after the date of its grant and with respect
to an additional one-fifth of the total number of shares of Common
Stock subject to the Option at the end of each twelve-month period
thereafter during the succeeding four years; provided, however, that
the Committee, in its sole discretion, shall have the authority to
shorten or lengthen the exercise schedule with respect to any or all
Options, or any part thereof, granted to Key Employees under the Plan.
6.5 REQUIRED TERMS AND CONDITIONS OF ISOS
Each ISO granted to a Key Employee shall be in such form and
subject to such restrictions and other terms and conditions as the
Committee may determine, in its sole discretion, at the time of grant,
subject to the general provisions of the Plan, the applicable Option
Agreement, and the following specific rules:
(a) Except as provided in Section 6.5(d), the per
share exercise price of each ISO shall be the Fair Market
Value of the shares of Common Stock on the date such ISO is
granted.
(b) The aggregate Fair Market Value (determined with
respect to each ISO at the time such Option is granted) of
the shares of Common Stock with respect to which ISOs are
exercisable for the first time by an individual during any
calendar year (under all incentive stock option plans of the
Company and its parent and subsidiary corporations) shall
not exceed $100,000. If the aggregate Fair Market Value
(determined at the time of grant) of the Common Stock
subject to an Option, which first becomes exercisable in any
calendar year exceeds the limitation of this Section 6.5(b),
so much of the Option that does not exceed the applicable
dollar limit shall be an ISO and the remainder shall be a
NSO; but in all other respects, the original Option
Agreement shall remain in full force and effect.
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(c) As used in this Section 6, the words "parent" and
"subsidiary" shall have the meanings given to them in
Section 425(e) and 425(f) of the Code.
(d) Notwithstanding anything herein to the contrary,
if an ISO is granted to an individual who owns stock
possessing more than ten percent (10%) of the total combined
voting power of all classes of stock of the Company or of
its parent or subsidiary corporations, within the meaning of
Section 422(b)(6) of the Code, (i) the purchase price of
each share of Common Stock subject to the ISO shall be not
less than one hundred ten percent (110%) of the Fair Market
Value of the Common Stock on the date the ISO is granted,
and (ii) the ISO shall expire and all rights to purchase
shares thereunder shall cease no later than the fifth
anniversary of the date the ISO was granted.
(e) No ISOs may be granted under the Plan after
February 9, 2003.
6.6 REQUIRED TERMS AND CONDITIONS OF NSOS
Each NSO granted to Key Employees shall be in such form and
subject to such restrictions and other terms and conditions as the
Committee may determine, in its sole discretion, at the time of grant,
subject to the general provisions of the Plan, the applicable Option
Agreement, and the following specific rule: the per share exercise
price of each NSO shall be the Fair Market Value of the shares of
Common Stock on the date the NSO is granted; provided however, that in
no event may the exercise price be less than the par value of the
shares of Common Stock subject to such NSO.
SECTION 7. EFFECT OF TERMINATION OF EMPLOYMENT
7.1 TERMINATION GENERALLY
Except as provided in Sections 7.2, 7.3 and 11, or by the
Committee, in its sole discretion, any Option held by an Optionee
whose employment with the Company and its Subsidiaries or during
service on the Board is terminated for any reason, shall terminate on
the date of termination of employment or service on the Board. The
transfer of employment from the Company to a Subsidiary, or from a
Subsidiary to the Company, or from a Subsidiary to another Subsidiary,
shall not constitute a termination of employment for purposes of the
Plan. Options granted under the Plan shall not be affected by any
change of duties in connection with the employment of the Optionee or
by leave of absence authorized by the Company or a Subsidiary.
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7.2 DEATH AND DISABILITY
In the event of the death or Disability (as defined below)
of an Optionee during employment with the Company or any of its
Subsidiaries or during service on the Board, all Options held by the
Optionee shall become fully exercisable on such date of death or
Disability. Each of the Options held by such an Optionee shall expire
on the earlier of (a) the first anniversary of the date of death or
Disability and (b) the date that such Option expires in accordance
with its terms. For purposes of this Section 7.2, "Disability" shall
mean the inability of an individual to engage in any substantial
gainful activity by reason of any medical determinable physical or
mental impairment which is expected to result in death or which has
lasted or can be expected to last for a continuous period of not less
than twelve (12) months. The Committee, in its sole discretion, shall
determine the date of any Disability.
7.3 RETIREMENT OF EMPLOYEES
(a) KEY EMPLOYEES (OTHER THAN KEY EMPLOYEES WHO ARE ALSO
DIRECTORS OF THE COMPANY). In the event the employment of a Key
Employee with the Company and/or its Subsidiaries (other than a Key
Employee who is also a Director of the Company) shall be terminated by
reason of Employee Retirement, all Options held by the Key Employee
shall become fully exercisable. Each of the Options held by such a
Key Employee shall expire on the earlier of (i) the first anniversary
of the date of the Employee Retirement and (ii) the date that such
Option expires in accordance with its terms. For purposes of this
Section 7.3, "Employee Retirement" shall mean retirement of a Key
Employee at age 65. In the event the employment of a Key Employee
with the Company and/or its Subsidiaries shall be terminated by reason
of a retirement that is not an Employee Retirement as herein defined,
the Committee may, in its sole discretion, determine that the
exercisability and exercise periods set forth in this Section 7.3(a)
shall be applicable to Options held by such Key Employee.
(b) NON-EMPLOYEE DIRECTORS. In the event the service of a
Non-Employee Director on the Board shall be terminated by reason of
the retirement of such Non-Employee Director of the Company in
accordance with the Company's retirement policy for Directors, any
Option or Options granted to such Non-Employee Director shall continue
to vest and remain exercisable pursuant to Section 5, in the same
manner and to the same extent as if such Director had continued his or
her service on the Board during such period.
(c) KEY EMPLOYEES WHO ARE ALSO DIRECTORS. Section 7.3(b)
shall be applicable to Options held by any Key Employee who is also a
Director in the event the employment of such Key Employee with the
Company and/or its Subsidiaries shall be terminated by reason of
Employee Retirement, so long as the service of such Key Employee on
the Board continues after such Employee Retirement. Section 7.3(a)
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shall be applicable to Options held by any Key Employee who is also a
Director in the event the employment of such Key Employee with the
Company and/or its Subsidiaries shall be terminated by reason of
Employee Retirement, if such Key Employee ceases to be a Director on
the date of such Key Employee's Employee Retirement.
SECTION 8. EXERCISE OF OPTIONS
8.1. NOTICE
A person entitled to exercise an Option may do so by
delivery of a written notice to that effect specifying the number of
shares of Common Stock with respect to which the Option is being
exercised and any other information the Committee may prescribe. The
notice shall be accompanied by payment as described in Section 8.2.
The notice of exercise shall be accompanied by the Optionee's copy of
the writing or writings evidencing the grant of the Option. All
notices or requests provided for herein shall be delivered to the
Secretary of the Company.
8.2 EXERCISE PRICE
Except as otherwise provided in the Plan or in any Option
Agreement, the Optionee shall pay the purchase price of the shares of
Common Stock upon exercise of any Option (a) in cash, (b) in cash
received from a broker-dealer to whom the Optionee has submitted an
exercise notice consisting of a fully endorsed Option (however, in the
case of an Optionee subject to Section 16 of the 1934 Act, this
payment option shall only be available to the extent such insider
complies with Regulation T issued by the Federal Reserve Board), (c)
by delivering shares of Common Stock having an aggregate Fair Market
Value on the date of exercise equal to the Option exercise price, (d)
by directing the Company to withhold such number of shares of Common
Stock otherwise issuable upon exercise of such Option having an
aggregate Fair Market Value on the date of exercise equal to the
Option exercise price, (e) in the case of a Key Employee, by such
other medium of payment as the Committee, in its discretion, shall
authorize at the time of grant, or (f) by any combination of (a), (b),
(c), (d) and (e). In the case of an election pursuant to (a) or (b)
above, cash shall mean cash or a check issued by a federally insured
bank or savings and loan, and made payable to Newell Co. In the case
of payment pursuant to (b), (c) or (d) above, the Optionee's election
must be made on or prior to the date of exercise and shall be
irrevocable. In the case of an Optionee who is subject to Section 16
of the 1934 Act and who elects payment pursuant to (d) above, the
election must be made in writing either (i) within the ten (10)
business days beginning on the third business day following release of
the Company's quarterly or annual summary of earnings and ending on
the twelfth business day following such day, or (ii) at least six (6)
months prior to the date of exercise of such Option. In lieu of a
separate election governing each exercise of an Option, an Optionee
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may file a blanket election with the Committee which shall govern all
future exercises of Options until revoked by the Optionee. The
Company shall issue, in the name of the Optionee, stock certificates
representing the total number of shares of Common Stock issuable
pursuant to the exercise of any Option as soon as reasonably
practicable after such exercise, provided that any shares of Common
Stock purchased by an Optionee through a broker-dealer pursuant to
clause (b) above shall be delivered to such broker-dealer in
accordance with 12 C.F.R. Section 220.3(e)(4) or other applicable
provision of law.
8.3 TAXES GENERALLY
At the time of the exercise of any Option, as a condition of
the exercise of such Option, the Company may require the Optionee to
pay the Company an amount equal to the amount of the tax the Company
or any subsidiary may be required to withhold to obtain a deduction
for federal and state income tax purposes as a result of the exercise
of such Option by the Optionee or to comply with applicable law.
8.4 PAYMENT OF TAXES
At any time when an Optionee is required to pay an amount
required to be withheld under applicable income tax or other laws in
connection with the exercise of an Option, the Optionee may satisfy
this obligation in whole or in part by (a) directing the Company to
withhold such number of shares of Common Stock otherwise issuable upon
exercise of such Option having an aggregate Fair Market Value on the
date of exercise equal to the amount of tax required to be withheld,
or (b) delivering shares of Common Stock of the Company having an
aggregate Fair Market Value equal to the amount required to be
withheld. In the case of payment of taxes pursuant to (a) or (b)
above, the Optionee's election must be made on or prior to the date of
exercise and shall be irrevocable. The Committee may disapprove any
election or delivery or may suspend or terminate the right to make
elections or deliveries. In the case of an Optionee who is subject to
Section 16 of the 1934 Act, an election to withhold shares of Common
Stock must be made in writing either (a) six months prior to the
exercise date, (b) during a period beginning on the third business day
following the date of release for publication of the Company's
quarterly or annual summary consolidated statements of revenue and
income and ending on the twelfth business day following such date or
(c) more than six months and one day from the later of the date of the
grant of the Option hereunder to such person or the date of the most
recent transaction by such person which is treated as a purchase of
the Common Stock of the Company pursuant to the 1934 Act and the rules
and regulations thereunder, and which is not exempt from Section 16(b)
of the 1934 Act. In lieu of a separate election governing each
exercise of an Option, an Optionee may file a blanket election with
the Committee which shall govern all future exercises of Options until
revoked by the Optionee.
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SECTION 9. TRANSFERABILITY OF OPTIONS
No Option granted pursuant to the Plan shall be transferable
otherwise than by will or by the laws of descent and distribution or
pursuant to a qualified domestic relations order as defined by the
Code.
SECTION 10. RIGHTS AS STOCKHOLDER
An Optionee or a transferee of an Optionee pursuant to Section 9
shall have no rights as a stockholder with respect to any Common Stock
covered by an Option or receivable upon the exercise of an Option
until the Optionee or transferee shall have become the holder of
record of such Common Stock, and no adjustments shall be made for
dividends in cash or other property or other distributions or rights
in respect to such Common Stock for which the record date is prior to
the date on which the Optionee shall have in fact become the holder of
record of the shares of Common Stock acquired pursuant to the Option.
SECTION 11. CHANGE IN CONTROL
11.1 EFFECT OF CHANGE IN CONTROL
Notwithstanding any of the provisions of the Plan or any
Option Agreement evidencing Options granted hereunder, upon a Change
in Control of the Company (as defined in Section 11.2) all outstanding
Options shall become fully exercisable and all restrictions thereon
shall terminate in order that Optionees may fully realize the benefits
thereunder. Further, in addition to the Committee's authority set
forth in Section 3, the Committee, as constituted before such Change
in Control, is authorized, and has sole discretion, as to any Option,
either at the time such Option is granted hereunder or any time
thereafter, to take any one or more of the following actions: (a)
provide for the purchase of any such Option, upon the Optionee's
request, for an amount of cash equal to the difference between the
exercise price and the then Fair Market Value of the Common Stock
covered thereby had such Option been currently exercisable; (b) make
such adjustment to any such Option then outstanding as the Committee
deems appropriate to reflect such Change in Control; and (c) cause any
such Option then outstanding to be assumed, by the acquiring or
surviving corporation, after such Change in Control.
11.2 DEFINITION OF CHANGE IN CONTROL
The term "Change in Control" shall mean the occurrence, at
any time during the specified term of an Option granted under the
Plan, of any of the following events:
(a) The occurrence of any "Distribution Date," as such
term is defined in Section 3 of the Rights Agreement between
the Company and First Chicago Trust Company of New York
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dated October 20, 1988, as such may be amended from time to
time;
(b) The Company is merged or consolidated or
reorganized into or with another corporation or other legal
person (an "Acquiror") and as a result of such merger,
consolidation or reorganization less than 50% of the
outstanding voting securities or other capital interests of
the surviving, resulting or acquiring corporation or other
person are owned in the aggregate by the stockholders of the
Company, directly or indirectly, immediately prior to such
merger, consolidation or reorganization, other than the
Acquiror or any corporation or other person controlling,
controlled by or under common control with the Acquiror;
(c) The Company sells all or substantially all of its
business and/or assets to an Acquiror, of which less than
50% of the outstanding voting securities or other capital
interests are owned in the aggregate by the stockholders of
the Company, directly or indirectly, immediately prior to
such sale, other than the Acquiror or any corporation or
other person controlling, controlled by or under common
control with the Acquiror; or
(d) The election to the Board, without the
recommendation or approval of the incumbent Board, of the
lesser of (i) three Directors or (ii) Directors constituting
a majority of the number of Directors of the Company then in
office.
SECTION 12. POSTPONEMENT OF EXERCISE
The Committee may postpone any exercise of an Option for such
time as the Committee in its sole discretion may deem necessary in
order to permit the Company (a) to effect, amend or maintain any
necessary registration of the Plan or the shares of Common Stock
issuable upon the exercise of an Option under the Securities Act of
1933, as amended, or the securities laws of any applicable
jurisdiction, (b) to permit any action to be taken in order to (i)
list such shares of Commons Stock on a stock exchange if shares of
Common Stock are then listed on such exchange or (ii) comply with
restrictions or regulations incident to the maintenance of a public
market for its shares of Common Stock, including any rules or
regulations of any stock exchange on which the shares of Common Stock
are listed, or (c) to determine that such shares of Common Stock and
the Plan are exempt from such registration or that no action of the
kind referred to in (b)(ii) above needs to be taken; and the Company
shall not be obligated by virtue of any terms and conditions of any
Option or any provision of the Plan to recognize the exercise of an
Option or to sell or issue shares of Common Stock in violation of the
Securities Act of 1933 or the law of any government having
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jurisdiction thereof. Any such postponement shall not extend the term
of an Option and neither the Company nor its directors or officers
shall have any obligation or liability to an Optionee, to the
Optionee's successor or to any other person with respect to any shares
of Common Stock as to which the Option shall lapse because of such
postponement.
SECTION 13. TERMINATION OR AMENDMENT OF PLAN
The Board or the Committee may terminate, suspend, or amend the
Plan, in whole or in part, from time to time, without the approval of
the stockholders of the Company to the extent allowed by law;
provided, however, that (a) no Plan amendment shall be effective until
approved by the stockholders of the Company insofar as stockholder
approval thereof is required in order for the Plan to continue to
satisfy the requirements of Rule 16b-3 under the 1934 Act, and (b) the
provisions of the Plan applicable to Non-Employee Directors may not be
amended more than once every six (6) months, except to comply with
changes in the Code and the Employee Retirement Income Security Act,
or the rules and regulations under each.
The Committee may correct any defect or supply an omission or
reconcile any inconsistency in the Plan or in any Option granted
hereunder in the manner and to the extent it shall deem desirable, in
its sole discretion, to effectuate the Plan.
No amendment or termination of the Plan shall in any manner
affect any Option theretofore granted without the consent of the
Optionee, except that the Committee may amend the Plan in a manner
that does affect Options theretofore granted upon a finding by the
Committee that such amendment is in the best interest of holders of
outstanding Options affected thereby.
This Plan is intended to comply with all applicable requirements
of Rule 16b-3 or its successors under the 1934 Act, insofar as
participants subject to Section 16 of the 1934 Act are concerned. To
the extent any provision of the Plan does not so comply, the provision
shall, to the extent permitted by law and deemed advisable by the
Committee, be deemed null and void with respect to such participants.
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SECTION 14. EFFECTIVE DATE
The Plan has been adopted and authorized by the Board of
Directors for submission to the stockholders of the Company. If the
Plan is approved by the affirmative vote of a majority of the shares
of the voting stock of the Company entitled to be voted by the holders
of stock represented at a duly held stockholders' meeting, it shall be
deemed to have become effective as of February 9, 1993. Options may
be granted under the Plan prior, but subject, to approval of the Plan
by stockholders of the Company and, in each such case, the date of
grant shall be determined without reference to the date of approval of
the Plan by the stockholders of the Company.