Exhibit 10.4
Adopted May 13, 1991, As Amended
Through December 16, 1993
MOTOROLA, INC.
SHARE OPTION PLAN OF 1991
1. Purpose:
This Plan shall be known as the "Share Option Plan of 1991" (hereinafter
referred to as the "Plan"). The purpose of the Plan is to provide certain key
employees of Motorola, Inc. (the "Company") and its subsidiaries with additional
incentive to increase their efforts on the Company's behalf and to remain in the
employ of the Company or any of its subsidiaries by granting key employees from
time to time options to purchase shares of Common Stock of the Company. The
options granted under this Plan may, but need not, constitute "incentive stock
options" (referred to herein as "Incentive" options) within the meaning of
Section 422, or any successor section, of the Internal Revenue Code of 1986, as
amended (the "Code"). An option granted which does not constitute an Incentive
option shall for purposes of the Plan constitute a "Non-Qualified" option. The
terms "subsidiary" and "subsidiaries" mean and include any corporation,
partnership, joint venture or other business entity or organization in which a
fifty percent (50%) or greater interest is, at the time, directly or indirectly,
owned by the Company or by one or more subsidiaries or by the Company and one or
more subsidiaries, except that with respect to any key employee who is subject
to Section 16 of the Securities Exchange Act of 1934, as amended, (the "1934
Act"), the terms "subsidiary" or "subsidiaries" mean and include any corporation
or other entity at least a majority of the outstanding voting shares of which
(other than directors' qualifying shares) is, at the time, directly or
indirectly owned by the Company or by one or more subsidiaries. Notwithstanding
the foregoing definitions, with respect to Incentive options, "subsidiary" shall
mean "subsidiary corporation" as defined in Section 424(f) of the Code.
2. Administration:
The Plan shall be administered by the Compensation Committee (the
"Committee") of the Board of Directors of the Company (the "Board of
Directors"), or such other committee as may be designated by the Board of
Directors. The Committee shall have full authority to act in all matters
pertaining to the Plan. Without limiting the generality of the foregoing
provision, the Committee is authorized and shall have full power and authority,
subject to the provisions of the Plan, from time to time, to establish such
rules and regulations as it may deem appropriate for the proper administration
and operation of the Plan, and to make such determinations under, and such
interpretations of, and to take such steps in connection with the Plan and the
options granted thereunder as it may deem necessary or advisable. All
determinations of the Committee shall be final, conclusive and binding upon all
persons.
3. Shares:
The shares to be optioned under the Plan shall be shares of the Company's
Common Stock, $3 par value (the "Shares"), which Shares may either be authorized
but unissued or treasury Shares. The aggregate number of Shares for which
options may be granted under the Plan shall (subject to the provisions of
paragraph 11 hereof) be (i) 8,000,000 Shares, plus (ii) the total number of
Shares with respect to which no options have been granted under the Company's
Share Option Plan of 1982 on the date the Plan is implemented as hereinafter
provided in paragraph 17, plus (iii) the total number of Shares as to which
options granted under the Share Option Plan of 1982 terminate or expire without
being wholly exercised. New options may be granted under this Plan covering the
number of Shares to which such termination or expiration relates.
4. Granting of Options:
Subject to the approval of this Plan by the affirmative votes of the
holders of a majority of the Shares of the Company present or represented and
entitled to vote at a meeting duly held in accordance with the applicable laws
of the State of Delaware, and subject to the provisions of this paragraph and
paragraph 3 hereof, the Committee may at any time and from time to time after
May 13, 1991, and prior to the expiration of five (5) years from the date on
which this Plan is approved by the stockholders of the Company, grant options to
such key employees of the Company or any subsidiary, and for such numbers of
Shares, as the Committee shall designate.
An individual optionee may be granted (i) an Incentive option, (ii) a Non-
Qualified option, or (iii) an Incentive option and a Non-Qualified option at the
same time.
Incentive options shall be evidenced by Incentive option certificates and
Non-Qualified options shall be evidenced by Non-Qualified option certificates.
Each option certificate shall be in such form as the Committee shall, from time
to time, designate, and shall include, by reference, the terms of the Plan as a
condition under which the option is issued and received.
The following terms and conditions shall apply to Incentive options:
(a) No Incentive option shall be granted to any participant who, at the time
the option is granted, would own (within the meaning of Section 422(b) of the
Code) stock possessing more than ten percent (10%) of the total combined voting
power of all classes of stock of the Company.
(b) The aggregate Fair Market Value, as defined in paragraph 9 hereof,
(determined as of the time the option is granted) of the Shares of Common Stock
with respect to which one or more Incentive options are exercisable for the
first time by any individual optionee during any calendar year (under all plans
of the Company and its subsidiaries) shall not exceed $100,000.00.
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(c) Each Incentive option, by its terms, shall (i) not be exercisable after
the expiration of ten (10) years after the date it is granted and (ii) not be
transferable by the optionee otherwise than by will or the applicable laws of
descent and distribution or by operation of a death beneficiary designation made
by the optionee in accordance with rules established by the Committee and shall
be exercisable during the optionee's lifetime only by the optionee or the
optionee's guardian or legal representative if the optionee is legally
incompetent.
5. Price:
The option price per Share ("Option Price") for options granted hereunder
shall be determined by the Committee. No option granted under the Plan shall
have an Option Price less than the Fair Market Value of a Share on the date of
grant of such option as determined by the Committee.
6. Term and Exercise of Options:
Except as provided herein for optionees who die while in the employ of the
Company or any subsidiary or for a Change in Control, as hereinafter defined, no
option granted under this Plan may be exercised prior to the expiration of
twelve (12) months from the date it is granted (hereinafter referred to as the
"non-exercise period"). In the event of a Change in Control, on the date of the
Change in Control, the following shall apply to every option then outstanding
which has a non-exercise period in effect: (a) the non-exercise period shall
automatically terminate and have no further force or effect and (b) each such
option shall be immediately exercisable for the entire amount of Shares subject
to each such option. For purposes hereof, a Change in Control shall mean a
change in control of a nature that would be required to be reported in response
to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the 1934 Act
whether or not the Company is then subject to such reporting requirement;
provided that, without limitation, such a change in control shall be deemed to
have occurred if (A) any "person" or "group" (as such terms are used in Section
13(d) and 14(d) of the 1934 Act) is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the 1934 Act), directly or indirectly, of securities
of the Company representing 20% or more of the combined voting power of the
Company's then outstanding securities (other than the Company, any employee
benefit plan of the Company, any "person" who is a natural person and who was
shown as the "beneficial owner," directly or indirectly, of securities of the
Company representing more than 5% of the combined voting power of the Company's
securities in the Company's Proxy Statement dated earlier than, but closest to,
the date the Plan is approved by the Company's stockholders, and, for purposes
of the Plan, no change in control shall be deemed to have occurred as a result
of the "beneficial ownership," or changes therein, of the Company's securities
by any of the foregoing), (B) there shall be consummated (i) any consolidation
or merger of the Company in which the Company is not the surviving or continuing
corporation or pursuant to which shares of the Company's Common Stock would be
converted into cash, securities or other property, other than a merger of the
Company in which the holders of the Company's Common Stock immediately prior
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to the merger have (directly or indirectly) at least 80% ownership interest in
the outstanding Common Stock of the surviving corporation immediately after the
merger, or (ii) any sale, lease, exchange or other transfer (in one transaction
or a series of related transactions) of all, or substantially all, the assets of
the Company, (C) the stockholders of the Company approve any plan or proposal
for the liquidation or dissolution of the Company, or (D) as the result of, or
in connection with, any cash tender offer, exchange offer, merger or other
business combination, sale of assets, proxy or consent solicitation (other than
by the Board of Directors), contested election or substantial stock accumulation
(a "Control Transaction"), the members of the Board of Directors immediately
prior to the first public announcement relating to such Control Transaction
shall thereafter cease to constitute a majority of the Board of Directors.
No option shall be exercisable for less than a minimum of fifty (50)
Shares except in cases where the number of Shares represented by the option
being exercised is less than fifty (50), in which case, the option shall not be
exercisable for less than all Shares represented by the option.
Anything in the Plan to the contrary notwithstanding, no option granted
under the Plan shall be exercisable in any amount after a date ten (10) years
from the date the option was granted.
Subject to the specific provisions of this paragraph 6 and of paragraph 8
of the Plan with respect to the exercise and termination of options granted
under the Plan, each such option shall be exercisable in such manner (including
any installments), at such time or times and subject to such terms, conditions
or limitations as shall be fixed by the Committee, in its sole discretion, at
the time such option is granted.
7. Non-Transferability of Option Rights:
No option shall be transferable by an optionee otherwise than by operation
of a death beneficiary designation made by the optionee in accordance with rules
established by the Committee, by will or by the applicable laws of descent and
distribution, nor shall any optionee pledge, hypothecate, or otherwise create
any lien thereon. During the lifetime of any optionee, an option shall be
exercisable only by the optionee or by the optionee's guardian or legal
representative if the optionee is legally incompetent.
8. Effect of Termination of Employment:
Notwithstanding any time period specified in this paragraph 8 or elsewhere
in the Plan for exercise of an option, no option may be exercised after
expiration of its stated term.
(a) Termination of Employment During the Non-Exercise Period.
(i) If, during the non-exercise period, the optionee's employment with the
Company and its subsidiaries shall terminate for any reason (including
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retirement) other than death, transfer to an Affiliate, as herein defined, or
Total or Permanent Disability (as that term is defined in the Motorola
Employees' Savings and Profit Sharing Plan) of the optionee, as determined by
the Committee or its designee, the optionee's right to exercise the option shall
terminate and all rights thereunder shall cease; provided, however, if the
optionee's employment terminates by reason of the transfer of such optionee to a
corporation, partnership, joint venture or other business entity in which the
Company or a subsidiary of the Company has an ownership interest (an
"Affiliate"), the Committee shall have the power and authority, in its
discretion, to determine whether or not any or all of the options held by the
optionee shall terminate or shall continue in effect. Any option which the
Committee permits to continue in effect shall be subject to all of the terms and
conditions of the Plan, including this paragraph 8 (with "termination of
employment", "employment shall terminate", "terminates employment", "employment
is terminated" or "employment shall have been terminated" or words of like
import or intent meaning termination of employment with the Affiliate).
(ii) If, during the non-exercise period, an optionee dies while in the employ
of the Company or any subsidiary, the deceased optionee's Successor-in-Interest,
as hereinafter defined, shall have the right to exercise, in whole or in part,
at any time during the remainder of the term of the option, the entire amount of
the Shares subject to such option (without regard to any installment limitation
on the exercise of the option). For purposes of the Plan, the term "Successor-
in-Interest" shall mean the deceased optionee's death beneficiary, personal
representative, or any person who acquired the right to exercise such option by
bequest or inheritance or by reason of the laws of descent and distribution.
(iii) If an optionee's employment with the Company and its subsidiaries shall
terminate because of the Total and Permanent Disability of the optionee or if
the optionee shall be put on disability leave of absence status because of Total
and Permanent Disability of the optionee, each option held by such an optionee
which has a non-exercise period in effect at the time of termination of
employment or commencement of the disability leave of absence shall become
exercisable at the time the applicable non-exercise period elapses, and the
optionee shall then have the right to exercise, in whole or in part, each such
option for the entire amount of Shares subject to each such option (without
regard to any installment limitation on exercise of the option) at any time
during the remainder of the term of the option. The unexercised portion of each
option shall terminate upon expiration of the term of each such option, and any
unexercised portion shall terminate immediately if and when the optionee is
employed by a competitor of the Company or any subsidiary without written
consent of the Committee.
(b) Termination of Employment After the Non-Exercise Period.
(i) By Termination of Employment Without Cause.
If the non-exercise period shall have elapsed and the optionee's
employment with the Company and its subsidiaries shall have been terminated
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thereafter by the Company or any subsidiary without cause, the optionee shall
have the right to exercise the then presently exercisable unexercised portion of
the option at any time during a period of twelve (12) months after the date of
termination of employment. The unexercised portion of the option may be
exercised, in whole or in part, for the number of Shares which were or would
have become exercisable under and pursuant to paragraph 6 of the Plan to the
extent the optionee could have exercised such option had the optionee remained
in the employ of the Company or any subsidiary during the twelve (12) month
period immediately following the date of termination of employment. The
unexercised and/or unexercisable portion of each option shall terminate twelve
(12) months after an optionee's employment with the Company and its subsidiaries
shall have been so terminated, and any unexercised and/or unexercisable portion
shall terminate immediately if and when the optionee is employed by a competitor
of the Company or any subsidiary without the written consent of the Committee.
(ii) By Termination of Employment for Cause.
If an optionee's employment is terminated by the Company or any subsidiary
for cause, any unexercised portion of any option granted to the optionee shall
terminate with the optionee's termination of employment. As used herein, the
term "cause" means (a) the failure of the optionee to carry out the duties
assigned to the optionee as a result of incompetence or willful neglect, as
determined by the Committee, or (b) such other reasons, including the existence
of a conflict of interest, as the Committee may determine.
(iii) By Voluntary Termination of Employment.
If an optionee voluntarily terminates employment with the Company or any
subsidiary for reasons other than the retirement of the optionee, any
unexercised portion of the optionee's option shall terminate with the optionee's
termination of employment.
(iv) By Retirement.
If the non-exercise period shall have elapsed or terminated and the
optionee's employment with the Company or any subsidiary shall have been
terminated because of the retirement of the optionee from the Company or any
subsidiary at age 55 or older, the optionee shall have the right to exercise, in
whole or in part, the unexercised portion of any Incentive or Non-Qualified
option held by such optionee for the entire amount of Shares subject to such
option (without regard to any installment limitation on exercise of the option)
at any time during the remainder of the term of the option. The unexercised
portion of each option shall terminate upon expiration of the term applicable to
each such option, and any unexercised portion shall terminate immediately if and
when the optionee is employed by a competitor of the Company or any subsidiary
without written consent of the Committee.
For purposes of the Plan, if the optionee is a participant in the
Company's pension plan or the pension plan of any subsidiary, the term
"retirement" shall mean the optionee's retirement as provided for in the
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applicable pension plan. If the optionee is not a participant in the Company's
pension plan or the pension plan of any subsidiary, "retirement" of an optionee
shall be determined by the Committee. In no event can retirement take place
prior to age 55 even if permitted under the applicable pension plan.
(v) By Total and Permanent Disability.
If the non-exercise period shall have elapsed and the optionee's
employment with the Company and its subsidiaries shall have been terminated
because of the Total and Permanent Disability of the optionee or if the optionee
shall be put on disability leave of absence status because of the Total and
Permanent Disability of the optionee, the optionee shall have the right to
exercise, in whole or in part, the unexercised portion of any Incentive or Non-
Qualified option held by such optionee for the entire amount of Shares subject
to such option (without regard to any installment limitation on exercise of the
option) at any time during the remainder of the term of the option. The
unexercised portion of each option shall terminate upon expiration of the term
of each such option, and any unexercised portion shall terminate immediately if
and when the optionee is employed by a competitor of the Company or any
subsidiary without written consent of the Committee.
(vi) By Death.
If an optionee dies while in the employ of the Company or any subsidiary,
the unexercised portion of the option may be exercised, in whole or in part, at
any time during the remainder of the term of the option by the optionee's
Successor-in-Interest for the entire number of Shares subject to the option
(without regard to any installment limitation on exercise of the option).
(vii) Effect of Death After Termination of Employment Without Cause or
Retirement.
If an optionee dies during the twelve (12) month period immediately
following the optionee's termination of employment without cause and at the time
of death such optionee is not employed by a competitor of the Company or any
subsidiary (or while employed by a competitor of the Company or any subsidiary
with the written consent of the Committee), the unexercised portion of the
option may be exercised by the optionee's Successor-in-Interest at any time
during the remainder of the term of the option, in whole or in part, for the
number of Shares which were or would have become exercisable under and pursuant
to paragraph 6 of the Plan had the optionee survived for the remainder of the
terms of the option, without regard to the requirement of exercise within twelve
(12) months after termination of employment without cause.
If an optionee dies after retirement prior to the expiration of the term
of the option, and if at the time of death such optionee is not employed by a
competitor of the Company or any subsidiary (or while employed by a competitor
of the Company or any subsidiary with the written consent of the Committee),
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the unexercised portion of the option may be exercised for the entire number of
Shares subject to such option (without regard to any installment limitation on
exercise of the option), by the optionee's Successor-in-Interest at any time
during the remainder of the term of the option.
(viii) By Transfer of Optionee to an Affiliate.
If the non-exercise period shall have elapsed and the optionee's
employment with the Company and its subsidiaries shall terminate by reason of
the transfer of such optionee to an Affiliate, as defined in this paragraph 8,
the Committee shall have the power and authority, in its discretion, to
determine whether or not any or all of the options held by the optionee shall
continue in effect for the remainder of the term of the option or for the period
otherwise applicable under the provisions of the Plan. Any option which the
Committee permits to continue in effect beyond the period otherwise applicable
under the Plan shall be subject to all of the terms and conditions of the Plan,
including this paragraph 8 (with "termination of employment", "employment shall
terminate", "terminates employment", "employment is terminated" or "employment
shall have been terminated" or words of like import or intent meaning
termination of employment with the Affiliate).
(c) Procedure on Death.
No transfer of an option to a Successor-in-Interest pursuant to sub-
paragraphs (a)(ii), (b)(vi) and (b)(vii) above, by will or by the laws of
descent and distribution, shall be effective unless the Company shall have been
furnished with written notice of the optionee's death and a copy of the will (if
the optionee had a will) and/or such other evidence as the Committee may deem
necessary to establish the validity of the transfer and the acceptance by the
Successor-in-Interest or Successors-in-Interest of the terms and conditions of
the option, and under no circumstances shall the right of any such Successor-in-
Interest to exercise any such option extend beyond the expiration of the term of
such option.
(d) Leaves of Absence and Lay-offs.
If an optionee is placed on leave of absence status by the Company or any
subsidiary, any then exercisable option shall be suspended at such time. If an
optionee is placed on lay-off status by the Company or any subsidiary, any then
exercisable option may be exercised during the following period of twelve (12)
months and shall be suspended thereafter. In either case, the unexercised
portion of the option shall either (i) terminate upon the optionee's termination
of employment with the Company and its subsidiaries or (ii) be reinstated upon
such optionee being re-employed from leave of absence or lay-off status by the
Company or any subsidiary.
(e) Meaning of Termination of Employment.
Wherever in this paragraph 8 or elsewhere in the Plan the words
"termination of employment, employment is terminated, employment shall terminate
or employment shall have been terminated" or words of like import or
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intent are used, they shall mean the last day worked by the optionee rather than
the last day the optionee is on the payroll of the Company or any of its
subsidiaries.
9. Payment for Shares; Withholding Tax:
(a) Payment for Shares purchased upon exercise of an option granted
hereunder shall be made in full for all Shares purchased at the time of
purchase. An optionee may pay the option price (a) in cash, (b) by transferring
to the Company Shares owned by the optionee equal in Fair Market Value, as
herein defined, to all or part of the aggregate option price of the Shares being
purchased, or (c) by a combination of the means specified in (a) or (b). No
fractional Shares may be purchased. For purposes of this paragraph and
paragraph 4 hereof, the Fair Market Value of Shares shall be determined as
follows: (i) if the New York Stock Exchange is open for trading on the date of
the purchase or grant and Shares trade on the New York Stock Exchange on that
day, the Fair Market Value shall be the average of the high and low prices for
Shares as reported on the Composite Tape, or (ii) if the New York Stock Exchange
is not open for trading on the date of the purchase or grant or if Shares do not
trade on the New York Stock Exchange on that day, the Fair Market Value shall be
the closing price for Shares as reported on the Composite Tape for the last
previous day on which Shares did so trade.
(b) If the Company is required to withhold any tax for Federal Insurance
Contribution Act ("FICA") purposes and/or any federal, state or local income tax
or taxes in connection with the exercise of a Non-Qualified option by an
optionee, the Committee may permit the optionee, subject to the restrictions
herein contained, to satisfy, in whole or in part, the optionee's obligation to
pay to the Company the amount of such tax or taxes by electing (a) to have the
Company withhold a portion of the Shares which would otherwise be issuable to
such optionee upon exercise of the option, or (b) to deliver and transfer to the
Company Shares previously owned by the optionee, or (c) by a combination of the
means specified in (a) and (b); provided, however, that the amount of federal,
state and local income taxes that may be paid by delivery or withholding of
Shares shall not exceed the applicable statutory minimum withholding
requirements. The amount of any withholding tax not paid by delivery or
withholding of Shares shall be paid by the optionee to the Company in cash. Any
fractional Share shall also be paid in cash. Shares delivered or withheld shall
have a Fair Market Value equal (as near as possible) to the amount of tax
required to be withheld, or such part of such tax that the optionee elects to
pay with Shares. The Fair Market Value of the Shares delivered to or withheld
by the Company shall be determined as provided in this Section 9 as of the date
the amount of tax to be withheld is determined (the "Tax Date") or if Shares did
not trade on the New York Stock Exchange on the Tax Date, as of the last
previous date Shares did so trade. An election by an optionee to deliver Shares
or to have Shares withheld to satisfy tax withholding requirements shall be
subject to the following restrictions: (1) if the election is made by an
optionee other than an optionee who is a director or officer of the Company
subject to Section 16 of the 1934 Act: (i) the election shall be made on or
prior to the option exercise date, (ii) the election shall be irrevocable unless
revocation is approved by the Committee,
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and (iii) the election shall be subject to the approval or disapproval of the
Committee; (2) if the election is made by an optionee who is a director or
officer of the Company subject to Section 16 of the 1934 Act (a "Section 16
Optionee"), and the election is to deliver and transfer to the Company Shares
previously owned by the optionee, the restrictions stated in (1) above shall
apply; (3) if the election is made by a Section 16 Optionee, and the election is
to have the Company withhold a portion of the Shares which would otherwise be
issuable to such Section 16 Optionee upon exercise of the option, the election
shall be made in accordance with either (A), (B) or (C) hereinafter: (A)(i) the
election shall be made at least six (6) months prior to the date the option is
exercised and the Shares are withheld, (ii) the election shall be irrevocable
unless revocation is permitted by a rule or ruling of the SEC, and then only in
accordance with such rule or ruling, provided that the Committee also approves
the revocation, and (iii) the election shall be subject to the approval or
disapproval of the Committee, or (B)(i) the election shall be made during the
period beginning on the third business day following the date of the release by
the Company for publication of the Company's quarterly or annual summary
statement of sales and earnings and ending on the twelfth business day following
such date (the "Window Period"), and the option exercise and the withholding of
the Shares shall occur during the same Window Period, and (ii) the election
shall be subject to the approval or disapproval of the Committee, or (C)(i) the
election shall be made in advance of a Window Period to take effect in the
Window Period next succeeding the date the election is made, with the option
being exercised and the shares withheld in such Window Period, (ii) the election
shall be subject to the approval or disapproval of the Committee, and (iii) the
election may be revoked only if permitted by a rule or ruling of the SEC, and
then only in accordance with such rule or ruling, provided that the Committee
also approves the revocation.
10. Rights as a Stockholder:
An optionee or a Successor-in-Interest of an optionee shall have no rights
as a stockholder with respect to any Shares covered by the optionee's option
until the optionee or Successor-in-Interest shall have become the holder of
record of such Shares, and no adjustment, except as may be effected pursuant to
the provisions of paragraph 11 below, shall be made for dividends (ordinary or
extraordinary, whether in cash, securities or other property) or distributions
or other rights in respect of such Shares for which the record date is prior to
the date on which the optionee or Successor-in-Interest shall become the holder
of record thereof.
11. Merger, Consolidation, Reclassification, Stock Dividend, Etc.:
In the event of any merger, consolidation, reorganization,
reclassification, recapitalization, subdivision, stock dividend, stock split-up,
reverse stock split-up, or other change in the corporate structure, which
affects the Shares, such adjustment, if any, as the Committee in its sole
discretion deems appropriate to reflect such change, shall be made in the
aggregate number of Shares subject to the Plan, the maximum number of Shares
which may be granted to a participant in a calendar year and the number of
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Shares and the price per Share subject to outstanding options.
12. Company's Right to Terminate Employment:
Nothing contained herein or in any share option agreement shall restrict
the right of the Company or any subsidiary to terminate the employment of any
optionee at any time, with or without cause, or to increase or decrease the
compensation of any optionee.
13. Indemnification and Exculpation:
Each person, who is or shall have been a member of the Board of Directors
or of the Committee, shall be indemnified and held harmless by the Company
against and from any and all loss, cost, liability or expense that may be
imposed upon or reasonably incurred by such person in connection with or
resulting from any claim, action, suit or proceeding to which such person may be
a party or in which such person may be involved by reason of any action taken or
failure to act under the Plan and against and from any and all amounts paid by
such person in settlement thereof (with the Company's written approval) or paid
by such person in satisfaction of a judgment in any such action, suit, or
proceeding, except a judgment based upon a finding of such person's bad faith,
subject, however, to the condition that upon the institution of any claim,
action, suit or proceeding against such person, such person shall in writing
give the Company an opportunity, at its own expense, to participate in, and to
the extent it may wish, to assume the defense thereof before such person
undertakes to handle it on such person's own behalf. The foregoing right of
indemnification shall not be exclusive of any other right to which such person
may be entitled as a matter of law under the Delaware General Corporation Law,
the Bylaws of the Company or otherwise, or any power that the Company may have
to indemnify such person or hold such person harmless. Each member of the Board
of Directors or of the Committee, and each officer and employee of the Company
shall be fully justified in relying or acting upon any information furnished on
behalf of the Company by any person or persons other than himself or herself in
connection with the administration of the Plan. In no event shall any person
who is or shall have been a member of the Board of Directors or of the
Committee, or an officer or employee of the Company, be liable for any
determination made or other action taken or any omission to act in reliance upon
any such information, or for any action taken (including the furnishing of
information) or any failure to act, if in good faith.
14. Use of Proceeds:
The proceeds received from the sale of Shares pursuant to the Plan will be
used for general corporate purposes.
15. Amendment and Termination of Plan:
The Board of Directors may at any time terminate the Plan. The Board of
Directors or any committee thereof to whom authority is delegated by the Board
of Directors may make such amendments and modifications as it deems advisable,
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in its sole discretion, except that the Board of Directors or such committee may
not, without approval of the stockholders, (a) materially increase the total
number of Shares on which options may be granted under the Plan, except as may
be effected pursuant to the provisions of paragraph 11 hereof, (b) materially
increase the benefits accruing to participants under the Plan, (c) materially
change the requirement as to eligibility for participation in the Plan, or (d)
extend the termination date of the Plan or the term of any option granted
thereunder so that its term exceeds 10 years from the date of its original
grant. Unless sooner terminated, the Plan shall terminate at midnight, Central
Time, on May 12, 1996; provided, however, that all options granted under the
Plan shall continue in full force and effect until terminated in accordance with
the terms and conditions of the options and the Plan. No amendment,
modification or termination of the Plan shall in any manner affect any option
theretofore granted under the Plan without the consent of the optionee or the
Successor-in-Interest of the optionee, as applicable.
16. Approval by Stockholders:
The Plan has been approved by the Board of Directors and is subject to
approval by the affirmative votes of the holders of a majority of the Shares
present, or represented, and entitled to vote at the meeting of stockholders at
which the Plan is submitted.
17. Implementation of the Plan and Grant of Options Under 1982 Plan:
If the Plan is implemented, except as hereinafter provided, no further
options will be granted under the Share Option Plan of 1982. If the Board of
Directors terminates the Plan after it has been implemented, options may be
granted under the Share Option Plan of 1982, but not as to any Shares issued or
under option pursuant to the Plan.
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