Exhibit 10.05
W. R. GRACE & CO.
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1994 STOCK INCENTIVE PLAN
W. R. GRACE & CO.
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1994 STOCK INCENTIVE PLAN
1. PURPOSES: The purposes of this Plan are (a) to enable Key
Persons to have incentives related to Common Stock, (b) to encourage Key
Persons to increase their interest in the growth and prosperity of the
Company and to stimulate and sustain constructive and imaginative thinking
by Key Persons, (c) to further the identity of interests of Key Persons
with the interests of the Company's shareholders, and (d) to induce the
service or continued service of Key Persons and to enable the Company to
compete with other organizations offering similar or other incentives in
obtaining and retaining the services of the most highly qualified
individuals.
2. DEFINITIONS: When used in this Plan, the following terms
shall have the meanings set forth in this section 2.
BOARD OF DIRECTORS: The Board of Directors of the Company.
CESSATION OF SERVICE (OR WORDS OF SIMILAR IMPORT): When a person
ceases to be an employee of, or consultant to, the Company or a Subsidiary;
provided, however, in the case of an Incentive Stock Option, "cessation of
service" (or words of similar import) shall mean when a person ceases to be an
employee of the Company or a Subsidiary.
CODE: The Internal Revenue Code of 1986, as amended.
COMMITTEE: The Compensation, Employee Benefits and Stock Incentive
Committee of the Board of Directors of the Company or any other committee
designated by such Board of Directors to administer stock incentive and stock
option plans of the Company and its subsidiaries generally or this Plan
specifically.
COMMON STOCK: The common stock of the Company, par value $1.00 per
share, or such other class of shares or other securities or property as may be
applicable pursuant to the provisions of section 8.
COMPANY: W. R. Grace & Co., a New York corporation.
FAIR MARKET VALUE: (a) The mean between the high and low sales
prices of a share of Common Stock in New York Stock Exchange
Composite Transactions on the applicable date, as reported in THE WALL STREET
JOURNAL or another newspaper of general circulation, or, if no sales of shares
of Common Stock were reported for such date, for the next preceding date for
which such sales were so reported, or (b) the fair market value of a share of
Common Stock determined in accordance with any other reasonable method
approved by the Committee.
INCENTIVE STOCK OPTION: A stock option that states that it is an
incentive stock option and that is intended to meet the requirements of Section
422A of the Code and the regulations thereunder applicable to incentive stock
options, as in effect from time to time.
ISSUANCE (OR WORDS OF SIMILAR IMPORT): The issuance of authorized
but unissued Common Stock or the transfer of issued Common Stock held by the
Company or a Subsidiary.
KEY EMPLOYEE: An employee of the Company or a Subsidiary who is
a Key Person.
KEY PERSON: An employee of, or consultant to, the Company or a
Subsidiary who, in the opinion of the Committee, has contributed or can
contribute significantly to the growth and successful operations of the Company
or one or more Subsidiaries. The grant of a Stock Incentive to an employee or
consultant shall be deemed a determination by the Committee that such person is
a Key Person.
NON-STATUTORY STOCK OPTION: An Option that is not an Incentive
Stock Option or another form of statutory stock option (within the meanings
of sections 422, 423 and 424 of the Code and the regulations thereunder, as
in effect from time to time).
OPTION: An option granted under this Plan to purchase shares of
Common Stock.
PLAN: The 1994 Stock Incentive Plan of the Company herein set
forth, as the same may from time to time be amended.
RULE 16b-3: Rule 16b-3 of the Securities and Exchange Commission
(or any successor provision in effect at the applicable time).
SERVICE: Service to the Company or a Subsidiary as an employee or
consultant. "To serve" has a correlative meaning.
STOCK AWARD: An issuance of shares of Common Stock or an
undertaking (other than an Option) to issue such shares in the future.
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STOCK INCENTIVE: A stock incentive granted under this Plan in
one of the forms provided for in section 3.
SUBSIDIARY: A corporation (or other form of business association)
of which shares (or other ownership interests) having 50% or more of the
voting power regularly entitled to vote for directors (or equivalent management
rights) are owned, directly or indirectly, by the Company; provided, however,
that in the case of an Incentive Stock Option, the term "Subsidiary" shall
mean a Subsidiary (as defined by the preceding clause) that is also a
"subsidiary corporation" as defined in section 425(f) of the Code and the
regulations thereunder, as in effect from time to time.
3. GRANTS OF STOCK INCENTIVES:
(a) Subject to the provisions of this Plan, the Committee may at
any time and from time to time grant Stock Incentives under this Plan to, and
only to, Key Persons; provided, however, that Incentive Stock Options may be
granted to, and only to, Key Employees.
(b) The Committee may grant a Stock Incentive to be effective at a
specified future date or upon the future occurrence of a specified event. For
the purposes of this Plan, any such Stock Incentive shall be deemed granted on
the date it becomes effective. An agreement or other commitment to grant a
Stock Incentive that is to be effective in the future shall not be deemed the
grant of a Stock Incentive until the date on which such Stock Incentive becomes
effective.
(c) Stock Incentives may be granted in the form of:
(i) a Stock Award, or
(ii) an Option, or
(iii) a combination of a Stock Award and an Option.
4. STOCK SUBJECT TO THIS PLAN:
(a) Subject to the provisions of paragraph (c) of this section 4
and the provisions of section 8, the maximum number of shares of Common Stock
that may be issued pursuant to Stock Incentives granted under this Plan shall
not exceed 3,000,000 shares of Common Stock.
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(b) Authorized but unissued shares of Common Stock and issued
shares of Common Stock held by the Company or a Subsidiary, whether acquired
specifically for use under this Plan or otherwise, may be used for purposes
of this Plan.
(c) If any shares of Common Stock subject to a Stock Incentive
shall not be issued and shall cease to be issuable because of the termination,
in whole or in part, of such Stock Incentive or for any other reason, or if any
such shares shall, after issuance, be reacquired by the Company or a Subsidiary
for any reason, such shares shall no longer be charged against the limitation
provided for in paragraph (a) of this section 4 and may again be made subject to
Stock Incentives.
(d) Of the total number of shares specified in paragraph (a) of
this section 4 (subject to adjustment as specified therein), during the term
of this Plan as defined in section 9, (i) no more than 10% may be subject to
Options granted to any one Key Person, (ii) no more than 15% may be subject
to Stock Incentives granted to any one Key Person, and (iii) no more than 3%
in the aggregate may be subject to Stock Incentives granted to all Key Persons
who are consultants to the Company and/or one or more Subsidiaries at the date
the relevant Stock Incentive is granted
5. STOCK AWARDS:
Except as otherwise provided in section 12, Stock Incentives in the
form of Stock Awards shall be subject to the following provisions:
(a) For purposes of this Plan, all shares of Common Stock
subject to a Stock Award shall be valued at not less than 100% of the Fair
Market Value of such shares on the date such Stock Award is granted,
regardless of whether or when such shares are issued pursuant to such
Stock Award and whether or not such shares are subject to restrictions
affecting their value.
(b) Shares of Common Stock subject to a Stock Award may be
issued to a Key Person at the time the Stock Award is granted, or at any
time subsequent thereto, or in installments from time to time. In the
event that any such issuance shall not be made at the time the Stock Award
is granted, the Stock Award may provide for the payment to such Key Person,
either in cash or shares of Common Stock, of amounts not exceeding the
dividends that would have been payable to such Key Person in respect of
the number of shares of Common Stock subject to such Stock Award (as adjusted
under section 8) if such shares had been issued to such Key Person at the
time such Stock Award was granted. Any Stock Award may provide that the
value of any shares of Common Stock subject to such
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Stock Award may be paid in cash, on each date on which shares would
otherwise have been issued, in an amount equal to the Fair Market
Value on such date of the shares that would otherwise have been issued.
(c) The material terms of each Stock Award shall be determined
by the Committee. Each Stock Award may be evidenced by a written instrument
consistent with this Plan. It is intended that a Stock Award would be (i)
made contingent upon the attainment of one or more specified performance
objectives and/or (ii) subject to restrictions on the sale or other disposition
for a period of three or more years of the Stock Award or the shares subject
thereto; provided that (x) a Stock Award may include restrictions and
limitations in addition to those provided for herein and (y) of the total
number of shares specified in paragraph (a) of section 4 (subject to adjustment
as specified therein), up to 3% may be subject to Stock Awards not subject to
clause (i) or clause (ii) of this sentence.
(d) A Stock Award shall be granted for such lawful consideration
as may be provided for therein.
6. OPTIONS: Except as otherwise provided in section 12, Stock
Incentives in the form of Options shall be subject to the following provisions:
(a) Subject to the provisions of paragraph (f) of this section 6,
the purchase price per share of Common Stock shall be not less than 100% of the
Fair Market Value of a share of Common Stock on the date the Option is granted.
The Option may provide for the purchase price to be paid (i) in cash, or (ii) in
shares of Common Stock (including shares issued pursuant to a Stock Award
granted subject to restrictions as provided for in paragraph (c) of section 5),
or (iii) in a combination of cash and such shares. Any shares of Common Stock
delivered to the Company in payment of the purchase price shall be valued at
their Fair Market Value on the date of exercise. No certificate for shares of
Common Stock shall be issued upon the exercise of an Option until the purchase
price for such shares has been paid in full.
(b) If so provided in the Option, the Company shall, upon
the request of the holder of the Option and at any time and from time to
time, cancel all or a portion of the Option then subject to exercise and
either (i) pay the holder an amount of money equal to the excess, if any,
of the Fair Market Value, at such time or times, of the shares subject to
the portion of the Option so canceled over the purchase price for such shares,
or (ii) issue shares of Common Stock to the holder with a Fair Market Value, at
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such time or times, equal to such excess, or (iii) pay such excess by a
combination of money and shares.
(c) Each Option may be exercisable in full at the time of grant,
or may become exercisable in one or more installments and at such time or times
or upon the occurrence of such events, as may be specified in the Option, as
determined by the Committee. Unless otherwise provided in the written
instrument provided in paragraph (g) of this section 6, an Option, to the extent
it is or becomes exercisable, may be exercised at any time in whole or in part
until the expiration or termination of such Option.
(d) Each Option shall be exercisable during the life of the holder
only by him and, after his death, only by his estate or by a person who acquires
the right to exercise the Option by will or the laws of descent and
distribution. An Option, to the extent that it shall not have been exercised or
canceled, shall terminate as follows after the holder ceases to serve: (i) if
the holder shall voluntarily cease to serve without the consent of the Committee
or shall have his service terminated for cause, the Option shall terminate
immediately upon cessation of service; (ii) if the holder shall cease to serve
by reason of death, incapacity or retirement under a retirement plan of the
Company or a Subsidiary, the Option shall terminate three years after the date
on which he ceased to serve; and (iii) except as provided in the next sentence,
in all other cases the Option shall terminate three months after the date on
which the holder ceased to serve unless the Committee shall approve a longer
period (which approval may be given before or after cessation of service) not to
exceed three years. If the holder shall die or become incapacitated during the
three-month period (or such longer period as the Committee may approve) referred
to in the preceding clause (iii), the Option shall terminate three years after
the date on which he ceased to serve. A leave of absence for military or
governmental service or other purposes shall not, if approved by the Committee
(which approval may be given before or after the leave of absence commences), be
deemed a cessation of service within the meaning of this paragraph (d).
Notwithstanding the foregoing provisions of this paragraph (d) or any other
provision of this Plan, no Option shall be exercisable after expiration of a
period of ten years and one month from the date the Option is granted. Where a
Non-Statutory Stock Option is granted for a term of less than ten years and one
month, the Committee may, at any time prior to the expiration of the Option,
extend its term for a period ending not later than ten years and one month from
the date the Option was granted. Such an extension shall not be deemed the
grant of a new Option under this Plan.
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(e) No Option nor any right thereunder may be assigned or
transferred except by will or the laws of descent and distribution, unless
otherwise provided in the Option.
(f) An Option may, but need not, be an Incentive Stock Option.
All shares of Common Stock that may be made subject to Stock Incentives under
this Plan may be made subject to Incentive Stock Options; provided that (i) no
Incentive Stock Option may be granted more than ten years after the effective
date of this Plan, as provided in section 9, (ii) the purchase price per share
of Common Stock subject to an Incentive Stock Option shall be not less than 100%
of the Fair Market Value of a share of Common Stock on the date such Incentive
Stock Option is granted, and (iii) the aggregate Fair Market Value (determined
as of the time an Incentive Stock Option is granted) of the shares subject to
each installment becoming exercisable for the first time in any calendar year
under Incentive Stock Options granted, on or after January 1, 1987 (under all
plans, including this Plan, of his employer corporation and its parent and
subsidiary corporations), to the Key Employee to whom such Incentive Stock
Option is granted, shall not exceed $100,000.
(g) The material terms of each Option shall be determined by the
Committee. Each Option shall be evidenced by a written instrument consistent
with this Plan. An Option may include restrictions and limitations in addition
to those provided for in this Plan.
(h) Options shall be granted for such lawful consideration as may
be provided for in the Option.
7. COMBINATION OF STOCK AWARDS AND OPTIONS: Stock Incentives
authorized by paragraph (c)(iii) of section 3 in the form of combinations of
Stock Awards and Options shall be subject to the following provisions:
(a) A Stock Incentive may be a combination of any form of Stock
Award and any form of Option, provided, however, that the terms and conditions
of such Stock Incentive pertaining to a Stock Award are consistent with
section 5 and the terms and conditions of such Stock Incentive pertaining to
an Option are consistent with section 6.
(b) Such combination Stock Incentive shall be subject to such
other terms and conditions as may be specified therein including, without
limitation, a provision terminating in whole or in part a portion thereof
upon the exercise in whole or in part of another portion thereof.
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(c) The material terms of each combination Stock Incentive
shall be determined by the Committee. Each combination Stock Incentive
shall be evidenced by a written instrument consistent with this Plan.
8. ADJUSTMENT PROVISIONS:
(a) In the event that any reclassification, split-up or
consolidation of the Common Stock shall be effected, or the outstanding
shares of Common Stock are, in connection with a merger or consolidation
of the Company or a sale by the Company of all or a part of its assets,
exchanged for a different number or class of shares of stock or other
securities or property of the Company or for shares of the stock or other
securities or property of any other corporation or person, or a record date
for determination of holders of Common Stock entitled to receive a dividend
payable in Common Stock shall occur, (i) the number and class of shares or
other securities or property that may be issued pursuant to Stock Incentives
thereafter granted, (ii) the number and class of shares or other securities
or property that have not been issued under outstanding Stock Incentives,
(iii) the purchase price to be paid per share or other unit under outstanding
Stock Incentives, and (iv) the price to be paid per share or other unit by
the Company or a Subsidiary for shares or other securities or property
issued pursuant to Stock Incentives that are subject to a right of the
Company or a Subsidiary to re-acquire such shares or other securities
or property, shall in each case be equitably adjusted as determined by
the Committee.
(b) In the event that any spin-off or other distribution of
assets of the Company to its shareholders shall occur, (i) the number and
class of shares or other securities or property that may be issued pursuant
to Stock Incentives thereafter granted, (ii) the number and class of shares
or other securities or property that have not been issued under outstanding
Stock Incentives, (iii) the purchase price to be paid per share or other unit
under outstanding Stock Incentives, and (iv) the price to be paid per share
or other unit by the Company or a Subsidiary for shares or other securities
or property issued pursuant to Stock Incentives that are subject to a right
of the Company or a Subsidiary to re-acquire such shares or other securities
or property, may in each case be equitably adjusted as may be determined by
the Committee.
(c) In the event of a merger or consolidation of the Company
in which the Common Stock is converted into the right to receive a specified
amount of cash per share (the "merger price"), then each Option outstanding
immediately prior to the effective time of such merger or consolidation
(the "effective time") shall be treated as follows: (i) each such Option
having a per share purchase price equal to or greater than
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the merger price shall terminate at the effective time and be of no further
force and effect, without the making of any payment to the holder of such
Option; and (ii) each such Option having a per share purchase price less
than the merger price shall terminate at the effective time and be of no
further force and effect, and the holder of such Option shall be paid in
cash, as promptly as practicable following the effective time, an amount
equal to the product of (A) the excess of the merger price over the per
share purchase price of such Option times (B) the number of shares covered
by such Option immediately prior to the effective time.
9. TERM:
This Plan shall be deemed adopted and shall become effective on the
date it is approved by the shareholders of the Company. No Stock Incentives
shall be granted under this Plan after April 30, 2004.
10. ADMINISTRATION:
(a) This Plan shall be administered by the Committee. No director
shall be designated as or continue to be a member of the Committee unless he
shall at the time of designation and at all times during service as a member of
the Committee be a "disinterested person" within the meaning of Rule 16b-3. The
Committee shall have full authority to act in the matter of selection of Key
Persons and in granting Stock Incentives to them and such other authority as is
granted to the Committee by this Plan.
(b) The Committee may establish such rules and regulations, not
inconsistent with the provisions of this Plan, as it deems necessary to
determine eligibility to be granted Stock Incentives under this Plan and for the
proper administration of this Plan, and may amend or revoke any rule or
regulation so established. The Committee may make such determinations and
interpretations under or in connection with this Plan as it deems necessary or
advisable. All such rules, regulations, determinations and interpretations
shall be binding and conclusive upon the Company, the Subsidiaries, its
shareholders and its directors, officers, consultants and employees, and upon
their respective legal representatives, beneficiaries, successors and assigns,
and upon all other persons claiming under or through any of them.
(c) Members of the Board of Directors and members of the Committee
acting under this Plan shall be fully protected in relying in good faith upon
the advice of counsel and shall incur no liability in the performance of their
duties except as otherwise provided by applicable law.
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11. GENERAL PROVISIONS:
(a) Nothing in this Plan or in any instrument executed pursuant
hereto shall confer upon any person any right to continue in the service of the
Company or a Subsidiary, or shall affect the right of the Company or of a
Subsidiary to terminate the service of any person with or without cause.
(b) No shares of Common Stock shall be issued pursuant to a Stock
Incentive unless and until all legal requirements applicable to the issuance of
such shares have, in the opinion of counsel to the Company, been complied with.
In connection with any such issuance the person acquiring the shares shall, if
requested by the Company, give assurances, satisfactory to counsel to the
Company, in respect of such matters as the Company or a Subsidiary may deem
desirable to assure compliance with all applicable legal requirements.
(c) No person (individually or as a member of a group), and no
beneficiary or other person claiming under or through him, shall have any
right, title or interest in or to any shares of Common Stock allocated or
reserved for the purposes of this Plan or subject to any Stock Incentive
except as to such shares of Common Stock, if any, as shall have been
issued to him.
(d) In the case of a grant of a Stock Incentive to a Key Person
of a Subsidiary, such grant may provide for the issuance of the shares covered
by the Stock Incentive to the Subsidiary, for such consideration as may be
provided, upon the condition or understanding that the Subsidiary will
transfer the shares to the Key Person in accordance with the terms of the
Stock Incentive.
(e) In the event the laws of a country in which the Company or a
Subsidiary has employees prescribe certain requirements for stock incentives to
qualify for advantageous tax treatment under the laws of that country
(including, without limitation, laws establishing options analogous to
Incentive Stock Options), the Committee, may, for the benefit of such employees,
amend, in whole or in part, this Plan and may include in such amendment
additional provisions for the purposes of qualifying the amended plan and Stock
Incentives granted thereunder under such laws; provided, however, that (i) the
terms and conditions of a Stock Incentive granted under such amended plan may
not be more favorable to the recipient than would be permitted if such Stock
Incentive had been granted under this Plan as herein set forth, (ii) all shares
allocated to or utilized for the purposes of such amended plan shall be
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subject to the limitations of section 4, and (iii) the provisions of the
amended plan may restrict but may not extend or amplify the provisions
of sections 9 and 13.
(f) The Company or a Subsidiary may make such provisions as it
may deem appropriate for the withholding of any taxes that the Company or a
Subsidiary determines it is required to withhold in connection with any Stock
Incentive.
(g) Nothing in this Plan is intended to be a substitute for, or
shall preclude or limit the establishment or continuation of, any other plan,
practice or arrangement for the payment of compensation or benefits to
directors, officers, employees or consultants generally, or to any class or
group of such persons, that the Company or any Subsidiary now has or may
hereafter put into effect, including, without limitation, any incentive
compensation, retirement, pension, group insurance, stock purchase,
stock bonus or stock option plan.
12. ACQUISITIONS: If the Company or any Subsidiary should merge
or consolidate with, or purchase stock or assets or otherwise acquire the whole
or part of the business of, another entity, the Company, upon the approval of
the Committee, (a) may assume, in whole or in part and with or without
modifications or conditions, any stock incentives granted by the acquired
entity to its directors, officers, employees or consultants in their capacities
as such, or (b) may grant new Stock Incentives in substitution therefor.
Such assumed or substitute stock incentives may contain terms and conditions
inconsistent with the provisions of this Plan (including the limitations set
forth in paragraph (d) of section 4), including additional benefits for the
recipient, provided that, if such assumed or substitute stock incentives
are Incentive Stock Options, such terms and conditions are permitted under
the plan of the acquired entity. For the purposes of any applicable plan
provision involving time or a date, a substitute stock incentive shall be
deemed granted as of the date of grant of the original stock incentive
by the acquired entity.
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13. AMENDMENTS AND TERMINATION:
(a) This Plan may be amended or terminated by the Board of
Directors upon the recommendation of the Committee; provided that, without
the approval of the shareholders of the Company, no amendment shall be made
which (i) causes this Plan to cease to comply with Rule 16b-3 or applicable
law, (ii) permits any person who is not a Key Person to be granted a Stock
Incentive (except as otherwise provided in section 12), (iii) amends the
provisions of paragraph (d) of section 4, paragraph (a) of section 5 or
paragraph (a) or paragraph (f) of section 6 to permit shares to be valued
at, or to have a purchase price of, respectively, less than the percentage
of Fair Market Value specified therein, (iv) amends section 9 to extend the
date set forth therein, or (v) amends this section 13.
(b) No amendment or termination of this Plan shall adversely
affect any Stock Incentive theretofore granted, and no amendment of any
Stock Incentive granted pursuant to this Plan shall adversely affect such
Stock Incentive, without the consent of the holder thereof.
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