GIBRALTAR STEEL CORPORATION
INCENTIVE
STOCK OPTION PLAN
___________________________
Fourth Amendment and Restatement
__________________________
WHEREAS, Gibraltar Steel Corporation, a Delaware corporation
with offices at 3556 Lake Shore Road, Buffalo, New York 14219
(the "Company") adopted an incentive stock option plan known as
the "Gibraltar Steel Corporation Incentive Stock Option Plan (the
"Plan") on September 21, 1993 to enable the Company to attract
and retain highly qualified individuals as officers and key
employees of the Company by providing such officers and key
employees an equity based form of incentive compensation; and
WHEREAS, the Company amended the Plan effective August 9,
1994 to allow members of the Committee of Directors that
administers the Plan to be eligible to receive options under the
terms of other plans which, from time to time, are adopted and
maintained by the Company including, but not limited to, the
Gibraltar Steel Corporation Non-Qualified Stock Option Plan; and
WHEREAS, the Company amended the Plan effective February 15,
1996 to increase the total number of shares of common stock, par
value $.01 per share of the Company (hereinafter the "Common
Stock") which may be issued in connection with options granted
pursuant to the terms of the Plan by Two Hundred Thousand
(200,000) shares; and
WHEREAS, the Company amended the Plan effective as of May
20, 1997 to permit the Executive Officers of the Company to
transfer options which they have been granted or may be granted
in the future to the extent that such options are not "qualified"
options and to increase the number of shares of Common Stock
which may be issued in connection with options granted pursuant
to the terms of the Plan by Two Hundred Fifty Thousand (250,000)
and to make certain other technical amendments to the terms of
the Plan; and
WHEREAS, the Company now desires to amend and restate the
Plan to clarify the definition of the term "Retirement Date" and
to make certain other technical changes to the terms of the Plan;
NOW, THEREFORE, in consideration of the foregoing, the
Company hereby adopts the following as the Fourth Amendment and
Restatement of the Gibraltar Steel Corporation Incentive Stock
Option Plan effective as of February 9, 1999:
1. Purpose of Plan. The Gibraltar Steel Corporation
Incentive Stock Option Plan (the "Plan") is intended to provide
officers and other key employees of the Company and officers and
other key employees of any subsidiaries of the Company as that
term is defined in Section 3 below (hereinafter individually
referred to as a "Subsidiary" and collectively as "Subsidiaries")
with an additional incentive for them to promote the success of
the business, to increase their proprietary interest in the
success of the Company and its Subsidiaries, and to encourage
them to remain in the employ of the Company or its Subsidiaries.
The above aims will be effectuated through the granting of
certain stock options, as herein provided, which are intended to
qualify as Incentive Stock Options ("ISOs") under Section 422 of
the Internal Revenue Code of 1986, as the same has been and shall
be amended ("Code").
2. Administration. The Plan shall be administered by a
Committee (the "Committee") composed of not less than two (2)
Directors of the Company who shall be appointed by and serve at
the pleasure of the Board of Directors of the Company. If the
Committee is composed of two (2) Directors, both members of the
Committee must approve any action to be taken by the Committee in
order for such action to be deemed to be an action of the
Committee pursuant to the provisions of this Plan. If the
Committee is composed of more than two (2) Directors, a majority
of the Committee shall constitute a quorum for the conduct of its
business, and (a) the action of a majority of the Committee
members present at any meeting at which a quorum is present, or
(b) action taken without a meeting by the approval in writing of
a majority of the Committee members, shall be deemed to be action
by the Committee pursuant to the provisions of the Plan. The
Committee is authorized to adopt such rules and regulations for
the administration of the Plan and the conduct of its business as
it may deem necessary or proper.
Any action taken or interpretation made by the
Committee under any provision of the Plan or any option granted
hereunder shall be in accordance with the provisions of the Code,
and the regulations and rulings issued thereunder as such may be
amended, promulgated, issued, renumbered or continued from time
to time hereafter in order that, to the greatest extent possible,
the options granted hereunder shall constitute "incentive stock
options" within the meaning of the Code. All action taken
pursuant to this Plan shall be lawful and with a view to
obtaining for the Company and the option holder the maximum
advantages under the law as then obtaining, and in the event that
any dispute shall arise as to any action taken or interpretation
made by the Committee under any provision of the Plan, then all
doubts shall be resolved in favor of such having been done in
accordance with the said Code and such revenue laws, amendments,
regulations, rulings and provisions as may then be applicable.
Any action taken or interpretation made by the Committee under
any provision of the Plan shall be final. No member of the Board
of Directors or the Committee shall be liable for any action,
determination or interpretation taken or made under any provision
of the Plan or otherwise if done in good faith.
3. Participation. The Committee shall determine from
among the officers and key employees of the Company and its
Subsidiaries (as such term is defined in Section 424 of the Code)
those individuals to whom options shall be granted (sometimes
hereinafter referred to as "Optionees"), the terms and provisions
of the options granted (which need not be identical), the time or
times at which options shall be granted and the number of shares
of Common Stock, (or such number of shares of stock in which the
Common Stock may at any time hereafter be constituted), for which
options are granted.
In selecting Optionees and in determining the number of
shares for which options are granted, the Committee may weigh and
consider the following factors: the office or position of the
Optionee and his degree of responsibility for the growth and
success of the Company and its Subsidiaries, length of service,
remuneration, promotions, age and potential. The foregoing
factors shall not be considered to be exclusive or obligatory
upon the Committee, and the Committee may properly consider any
other factors which to it seems appropriate. The terms and
conditions of any option granted by the Committee under this Plan
shall be contained in a written statement which shall be
delivered by the Committee to the Optionee as soon as practicable
following the Committee's establishment of the terms and
conditions of such option.
An Optionee who has been granted an option under the
Plan may be granted additional options under the Plan if the
Committee shall so determine.
Notwithstanding the foregoing, if at the time an option
is granted to an individual under this Plan, the individual owns
stock of the Company possessing more than ten percent (10%) of
the total combined voting power of all classes of stock of the
Company or any of its Subsidiaries, (or if such individual would
be deemed to own such percentage of such stock under Section
424(d) of the Code) such option shall continue to be valid and
binding upon the Company according to its terms but shall not be
deemed to be an "incentive stock option" as defined in Section
422(b) of the Code unless: (a) the price per share at which
common stock of the Company may be acquired in connection with
the exercise of such options is not less than one hundred ten
percent (110%) of the fair market value of such common stock,
determined as of the date of the grant of such options; and (b)
the period of time within which such options must be exercised
does not exceed five (5) years from the date on which such
options are granted. In addition, in no event shall any options
be granted under this Plan at any time after the termination date
set forth at the end of this Plan.
4. Shares Subject to the Plan. The Company is authorized
to issue options under this Plan for the purchase of the number
of shares of Common Stock described in the following provisions
of this Section 4. On September 21, 1993 (the date on which this
Plan became effective), the aggregate number of shares of Common
Stock which were reserved for issuance pursuant to options which
were permitted to be granted hereunder was Four Hundred Thousand
(400,000) shares (subject to the anti-dilutive adjustments
provided for by Section 5 hereof). Effective February 15, 1996,
in addition to the number of shares of Common Stock reserved for
issuance pursuant to options which were permitted to be granted
as of February 14, 1996, an additional Two Hundred Thousand
(200,000) shares of Common Stock were reserved for issuance
pursuant to options which may be granted hereunder. Effective
May 20, 1997, in addition to the number of shares of Common Stock
reserved for issuance pursuant to options which were permitted to
be granted as of May 19, 1997, an additional Two Hundred Fifty
Thousand (250,000) shares of Common Stock shall be reserved for
issuance pursuant to options which may be granted hereunder.
Accordingly, the total number of shares of Common Stock which may
be issued pursuant to the exercise of options which may be
granted under the terms of this Plan shall be equal to the sum
of: (a) Four Hundred Thousand (400,000) shares (subject to anti-
dilutive adjustments made at any time after September 21, 1993
pursuant to Section 5 hereof); (b) Two Hundred Thousand (200,000)
shares (subject to anti-dilutive adjustments made at any time
after February 15, 1996 pursuant to Section 5 hereof); and (c)
Two Hundred Fifty Thousand (250,000) shares (subject to anti-
dilutive adjustments made at any time after May 20, 1997 pursuant
to Section 5 hereof).
With respect to shares which may be acquired pursuant
to options which expire or terminate pursuant to the provisions
of this Plan without having been exercised in full, such shares
shall be considered to be available again for placement under
options granted thereafter under the Plan. Shares issued
pursuant to the exercise of incentive stock options granted under
the Plan shall be fully paid and non-assessable.
5. Anti-Dilution Provisions. The aggregate number of
shares of Common Stock and the class of such shares as to which
options may be granted under the Plan, the number and class of
such shares subject to each outstanding option, the price per
share thereof (but not the total price), and the number of such
shares as to which an option may be exercised at any one time,
shall all be adjusted proportionately in the event of any change,
increase or decrease in the outstanding shares of Common Stock of
the Company or any change in classification of its Common Stock
without receipt of consideration by the Company which results
either from a split-up, reverse split or consolidation of shares,
payment of a stock dividend, recapitalization, reclassification
or other like capital adjustment so that upon exercise of the
option, the Optionee shall receive the number and class of shares
that he would have received had he been the holder of the number
of shares of Common Stock for which the option is being exercised
immediately preceding such change, increase or decrease in the
outstanding shares of Common Stock. Any such adjustment made by
the Committee shall be final and binding upon all Optionees, the
Company, and all other interested persons. Any adjustment of an
incentive stock option under this paragraph shall be made in such
manner as not to constitute a "modification" within the meaning
of Section 424(h)(3) of the Code.
Anything in this Section 5 to the contrary
notwithstanding, no fractional shares or scrip representative of
fractional shares shall be issued upon the exercise of any
option. Any fractional share interest resulting from any change,
increase or decrease in the outstanding shares of Common Stock or
resulting from any reorganization, merger, or consolidation for
which adjustment is provided in this Section 5 shall disappear
and be absorbed into the next lowest number of whole shares, and
the Company shall not be liable for any payment for such
fractional share interest to the Optionee upon his exercise of
the option.
6. Option Price. The purchase price for each share of
Common Stock which may be acquired upon the exercise of each
option issued under the Plan shall be determined by the Committee
at the time the option is granted, but in no event shall such
purchase price be less than one hundred percent (100%) of the
fair market value of the Common Stock on the date of the grant.
Notwithstanding the foregoing, in the case of an individual that
owns stock of the Company possessing more than ten percent (10%)
of the total combined voting power of all classes of stock of the
Company or any of its Subsidiaries (or if such individual would
be deemed to own such percentage of such stock under Section
424(d) of the Code), (any such individual being hereinafter
referred to as a "Ten Percent Shareholder") in no event shall the
purchase price for each share of Common Stock which may be
acquired upon the exercise of each option issued to such Ten
Percent Shareholder be less than one hundred ten percent (110%)
of the fair market value of the Common Stock on the date of the
grant. If the Common Stock is listed upon an established stock
exchange or exchanges on the day the option is granted, such fair
market value shall be deemed to be the highest closing price of
the Common Stock on such stock exchange or exchanges on the day
the option is granted, or if no sale of the Company's Common
Stock shall have been made on any stock exchange on that day, on
the next preceding day on which there was a sale of such stock.
If the Common Stock is listed in the NASDAQ National
Market System, the fair market value of the Common Stock shall be
the average of the high and low closing sale prices in the NASDAQ
National Market System on the day the option is granted, or if no
sale of the Common Stock shall have been made on the NASDAQ
National Market System on that day, on the next preceding day on
which there was a sale of such stock.
7. Option Exercise Periods. The time within which any
option granted hereunder may be exercised shall be, by its terms,
not earlier than one (1) year from the date such option is
granted and not later than ten (10) years from the date such
option is granted; provided that, in the case of any options
granted to a Ten Percent Shareholder, the time within which any
option granted to such Ten Percent Shareholder may be exercised
shall be, by its terms, not earlier than one (1) year from the
date such option is granted and not later than five (5) years
from the date such option is granted. Subject to the provisions
of Section 10 hereof, the Optionee must remain in the continuous
employment of the Company or any of its Subsidiaries from the
date of the grant of the option to and including the date of
exercise of option in order to be entitled to exercise his
option. Options granted hereunder shall be exercisable in such
installments and at such dates as the Committee may specify. In
addition, with respect to all options granted under this Plan,
unless the Committee shall specify otherwise, the right of each
Optionee to exercise his option shall accrue, on a cumulative
basis, as follows:
(a) one-fourth (1/4) of the total number of shares of
Common Stock which could be purchased (subject to adjustment as
provided in Section 5 hereof) (such number being hereinafter
referred to as the "Optioned Shares") shall become available for
purchase pursuant to the option at the end of the one (1) year
period beginning on the date of the option grant;
(b) one-fourth (1/4) of the Optioned Shares shall
become available for purchase pursuant to the option at the end
of the two (2) year period beginning on the date of the option
grant;
(c) one-fourth (1/4) of the Optioned Shares shall
become available for purchase pursuant to the option at the end
of the three (3) year period beginning on the date of the option
grant; and
(d) one-fourth (1/4) of the Optioned Shares shall
become available for purchase pursuant to the option at the end
of the four (4) year period beginning on the date of the option
grant.
Continuous employment shall not be deemed to be
interrupted by transfers between the Subsidiaries or between the
Company and any Subsidiary, whether or not elected by termination
from any Subsidiary of the Company and re-employment by any other
Subsidiary or the Company. Time of employment with the Company
shall be considered to be one employment for the purposes of this
Plan, provided there is no intervening employment by a third
party or no interval between employments which, in the opinion of
the Committee, is deemed to break continuity of service. The
Committee shall, at its discretion, determine the effect of
approved leaves of absence and all other matters having to do
with "continuous employment". Where an Optionee dies while
employed by the Company or any of its Subsidiaries, his options
may be exercised following his death in accordance with the
provisions of Section 10 below.
Notwithstanding the foregoing provisions of this
Section 7, in the event the Company or the stockholders of the
Company enter into an agreement to dispose of all or
substantially all of the assets or stock of the Company by means
of a sale, merger, consolidation, reorganization, liquidation, or
otherwise, or in the event a Change of Control (as hereinafter
defined) shall occur, an option shall become immediately
exercisable with respect to the full number of shares subject to
that option during the period commencing as of the date of
execution of such agreement and ending as of the earlier of: (i)
ten (10) years from the date such option was granted; or (ii)
ninety (90) days following the date on which a Change in Control
occurs or the disposition of assets or stock contemplated by the
agreement is consummated. Ninety (90) days following the
consummation of any such disposition of assets or stock, or
Change in Control, this Plan and any unexercised options issued
hereunder (or any unexercised portion thereof) shall terminate
and cease to be effective, unless provision is made in connection
with such transaction for assumption of options previously
granted or the substitution for such options of new options
covering the securities of a successor corporation or an
affiliate thereof, with appropriate adjustments as to the number
and kind of securities and prices.
For purposes of this Plan, a "Change in Control" shall
be deemed to have occurred if:
(a) any "person" or "group" (within the meaning of
Sections 13(d) and 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")) becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act) of more
than thirty percent (30%) of the then outstanding voting stock of
the Company, otherwise than through a transaction arranged by, or
consummated with the prior approval of its Board of Directors; or
(b) during any period of two consecutive years,
individuals who at the beginning of such period constitute the
Board of Directors of the Company (and any new director whose
election to the Board of Directors or whose nomination for
election by the Company's stockholders was approved by a vote of
at least two thirds of the directors then still in office who
either were directors at the beginning of such period or whose
election or nomination for election was previously so approved)
(the "Continuing Directors") cease for any reason to constitute a
majority thereof; or
(c) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other
than a merger or consolidation which would result in the voting
securities of the Company immediately prior thereto continuing to
represent (either by remaining outstanding or being converted
into voting securities of the surviving entity) at least 80% of
the combined voting power of the voting securities of the Company
or such surviving entity outstanding immediately after such
merger or consolidation (provided, however, that if prior to the
merger or consolidation, the Board of Directors of the Company
adopts a resolution that is approved by a majority of the
Continuing Directors providing that such merger or consolidation
shall not constitute a "Change in Control" for purposes of the
Plan, then such a merger or consolidation shall not constitute a
"Change in Control"); or
(d) the stockholders of the Company approve an
agreement for the sale or disposition by the Company of all or
substantially all the assets of the Company.
Any change or adjustment made pursuant to the terms of
this paragraph shall be made in such a manner so as not to
constitute a "modification" as defined in Section 424 of the
Code, and so as not to cause any incentive stock option issued
under this Plan to fail to continue to qualify as an incentive
stock option as defined in Section 422(b) of the Code.
Notwithstanding the foregoing, in the event that any agreement
providing for the sale or other disposition of all or
substantially all the stock or assets of the Company shall be
terminated without consummating the disposition of said stock or
assets, any unexercised unaccrued installments that had become
exercisable solely by reason of the provisions of this paragraph
shall again become unaccrued and unexercisable as of said
termination of such agreement; subject, however, to such
installments accruing pursuant to the normal accrual schedule
provided in the terms under which such option was granted. Any
exercise of an installment prior to said termination of said
agreement shall remain effective despite the fact that such
installment became exercisable solely by reason of the Company or
its stockholders entering into said agreement to dispose of the
stock or assets of the Company.
8. Exercise of Option. Options shall be exercised as
follows:
(a) Notice and Payment. Each option, or any
installment thereof, shall be exercised, whether in whole or in
part, by giving written notice to the Company at its principal
office, specifying the options being exercised (by reference to
the date of the grant of the option), the number of shares to be
purchased and the purchase price being paid, and shall be
accompanied by the payment of all or such part of the purchase
price as shall be required to be paid in connection with the
exercise of such option as specified in the written notice of
exercise of the option, by cash, certified or bank check payable
to the order of the Company. Each such notice shall contain
representations on behalf of the Optionee that he acknowledges
that the Company is selling the shares being acquired by him
under a claim of exemption from registration under the Securities
Act of 1933 as amended (the "Act"), as a transaction not
involving any public offering; that he represents and warrants
that he is acquiring such shares with a view to "investment" and
not with a view to distribution or resale; and that he agrees not
to transfer, encumber or dispose of the shares unless: (i) a
registration statement with respect to the shares shall be
effective under the Act, together with proof satisfactory to the
Company that there has been compliance with applicable state law;
or (ii) the Company shall have received an opinion of counsel in
form and content satisfactory to the Company to the effect that
the transfer qualifies under Rule 144 or some other disclosure
exemption from registration and that no violation of the Act or
applicable state laws will be involved in such transfer, and/or
such other documentation in connection therewith as the Company's
counsel may in its sole discretion require.
(b) Issuance of Certificates. Certificates
representing the shares purchased by the Optionee shall be issued
as soon as practicable after the Optionee has complied with the
provisions of Section 8(a) hereof.
(c) Rights as a Stockholder. The Optionee shall have
no rights as a stockholder with respect to the shares of Common
Stock purchased until the date of the issuance to him of a
certificate representing such shares.
9. Assignment of Option. (a) Subject to the provisions of
Sections 9(b) and 10(c) hereof, options granted under this Plan
may not be assigned voluntarily or involuntarily or by operation
of law and any attempt to transfer, assign, pledge, hypothecate
or otherwise dispose of, or to subject to execution, attachment
or similar process, any incentive stock option, or any right
thereunder, contrary to the provisions hereof shall be void and
ineffective, shall give no right to the purported transferee, and
shall, at the sole discretion of the Committee, result in
forfeiture of the option with respect to the shares involved in
such attempt.
(b) Notwithstanding anything to the contrary contained
in the terms of the Plan as in effect at any time prior to the
date hereof and notwithstanding anything to the contrary
contained in the terms of any statement, letter or other document
or agreement setting forth the terms and conditions of any
options previously issued pursuant to the terms of this Plan, any
and all Non-Qualified Options (as defined in Section 13 hereof)
previously issued to any officer of the Company (as defined in
Rule 16A-a(f) issued under the Securities and Exchange Act of
1934 (hereinafter an "Executive Officer")) pursuant to the terms
of the Plan and, subject to the approval of the Committee, any
Non-Qualified Options which may be granted or issued to any
Executive Officer of the Company at any time in the future
pursuant to the terms of the Plan shall be transferable by the
Executive Officer to whom such Non-Qualified Options have been or
are granted to: (i) the spouse, children or grandchildren of the
Executive Officer (hereinafter "Immediate Family Members"); (ii)
a trust or trusts for the exclusive benefit of such Immediate
Family Members; (iii) a partnership or limited liability company
in which such Immediate Family Members are the only partners or
members; or (iv) a private foundation established by the
Executive Officer; provided that: (x) there may be no
consideration for any such transfer; (y) in the case of Non-
Qualified Options which may be granted in the future, the
statement, letter or other document or agreement setting forth
the terms and conditions of any such Non-Qualified Options must
expressly provide for and limit the transferability of such Non-
Qualified Options to transfers which are permitted by the
foregoing provisions of this Section 9(b); and (z) any subsequent
transfer of transferred Non-Qualified Options shall, except for
transfers occurring as a result of the death of the transferee as
contemplated by Section 10(e), be prohibited. Following the
transfer of any Non-Qualified Options as permitted by the
foregoing provisions of this Section 9(b), any such transferred
Non-Qualified Options shall continue to be subject to the same
terms and conditions applicable to such Non-Qualified Options
immediately prior to the transfer; provided that, for purposes of
this Plan, the term "Optionee" shall be deemed to refer to the
transferee. Notwithstanding the foregoing, the events of
termination of employment of Section 10 hereof shall continue to
be applied with respect to the original Optionee for the purpose
of determining whether or not the Non-Qualified Options shall be
exercisable by the transferee and, upon termination of the
original Optionee's employment, the Non-Qualified Options shall
be exercisable by the transferee only to the extent and for the
periods that the original Optionee (or his estate) would have
been entitled to exercise such options as specified in Section 10
below.
10. Effect of Termination of Employment, Death or
Disability. (a) In the event of the termination of employment of
an Optionee during the two (2) year period after the date of
issuance of an option to him either by reason of: (i) a discharge
for cause; or (ii) voluntary separation on the part of the
Optionee and without consent of the Company or the Subsidiary for
whom the Optionee was employed, any rights of the Optionee to
purchase shares of Common Stock pursuant to the terms of any
option or options theretofore granted to him under this Plan
during the two (2) year period ending on the date his employment
with the Company is terminated, shall be terminated immediately
to the extent not theretofore exercised by the Optionee.
(b) In the event of the termination of employment of an
Optionee (otherwise than by reason of death or retirement of the
Optionee at his Retirement Date) by the Company or by any of the
Subsidiaries employing the Optionee at such time, any option or
options granted to him under the Plan to the extent not
theretofore exercised shall be deemed cancelled and terminated
forthwith, except that, subject to the provisions of subparagraph
(a) of this Section, such Optionee may exercise any options
theretofore granted to him, which have not then expired and which
are otherwise exercisable within the provisions of Section 7
hereof, within three (3) months after such termination. If the
employment of an Optionee shall be terminated by reason of the
Optionee's retirement at his Retirement Date by the Company or by
any of the Subsidiaries employing the Optionee at such time, the
Optionee shall have the right to exercise such option or options
held by him to the extent that such options have not expired, at
any time within three (3) months after such retirement. The
provisions of Section 7 to the contrary notwithstanding, upon
retirement, all options held by an Optionee shall be immediately
exercisable in full. The transfer of an Optionee from the employ
of the Company to a Subsidiary of the Company or vice versa, or
from one Subsidiary of the Company to another, shall not be
deemed to constitute a termination of employment for purposes of
this Plan.
(c) In the event that an Optionee shall die while
employed by the Company or by any of the Subsidiaries or shall
die within three (3) months after retirement on his Retirement
Date (from the Company or any Subsidiary), any option or options
granted to him under this Plan and not theretofore exercised by
him or expired shall be exercisable by the estate of the Optionee
or by any person who acquired such option by bequest or
inheritance from the Optionee in full, notwithstanding the
provisions of Section 7 hereof, at any time within one (1) year
after the death of the Optionee. References herein above to the
Optionee shall be deemed to include any person entitled to
exercise the option after the death of the Optionee under the
terms of this Section.
(d) In the event of the termination of employment of an
Optionee by reason of the Optionees' disability, the Optionee
shall have the right, notwithstanding the provisions of Section 7
hereof, to exercise all options held by him, in full, to the
extent that such options have not previously expired or been
exercised, at any time within one (1) year after such
termination. The term "disability" shall, for the purposes of
this Plan, be defined in the same manner as such term is defined
in Section 22(e)(3) of the Internal Revenue Code of 1986.
(e) For the purposes of this Plan, the "Retirement
Date" of an Optionee shall mean the date on which the Optionee's
employment with the Company, or, if applicable, the Subsidiary by
whom the Optionee is employed, is terminated; provided that, such
termination occurs after: (i) the Optionee has either: (A) been
continuously employed by the Company or, if applicable, a
Subsidiary for a period of a least five (5) years and attained at
least age sixty (60); or (B) attained at least age sixty-five
(65); and (ii) the Optionee has given at least thirty (30) days
advance written notice to the Company or, if applicable, the
Subsidiary by whom the Optionee is employed, that the Optionee
will retire from his employment with the Company or the
Subsidiary by whom he is employed on such date. For purposes of
the foregoing, the period of an Optionee's employment with the
Company or any Subsidiary shall be considered to be one
continuous employment for purposes of determining whether the
Optionee has been continuously employed for at least five (5)
years provided that there is no intervening employment by a third
party or no interval between employments which, in the sole
opinion of the Committee, is deemed to break the continuity of
the Optionee's employment. Continuous employment shall not be
deemed to be interrupted by transfers between the Subsidiaries or
between the Company and any Subsidiary, whether or not elected by
the Optionee. The Committee shall, in its sole discretion,
determine the effect of approved leaves of absence and all other
matters having to do with continuous employment.
11. Amendment and Termination of the Plan. The Board of
Directors of the Company may at any time suspend, amend or
terminate the Plan; provided, however, that except as permitted
in Section 13 hereof, no amendment or modification of the Plan
which would:
(a) increase the maximum aggregate number of shares as
to which options may be granted hereunder (except as contemplated
in Section 5); or
(b) reduce the option price or change the method of
determining the option price; or
(c) increase the time for exercise of options to be
granted or those which are outstanding beyond a term of ten (10)
years; or
(d) change the designation of the employees or class of
employees eligible to receive options under this Plan,
may be adopted unless with the approval of the holders
of a majority of the outstanding shares of Common Stock
represented at a stockholders' meeting of the Company, or with
the written consent of the holders of a majority of the
outstanding shares of Common Stock. No amendment, suspension or
termination of the Plan may, without the consent of the holder of
the option, terminate his option or adversely affect his rights
in any material respect.
12. Incentive Stock Options; Power to Establish Other
Provisions. It is intended that the Plan shall conform to and
(except as otherwise expressly set forth herein) each option
shall qualify and be subject to exercise only to the extent that
it does qualify as an "incentive stock option" as defined in
Section 422 of the Code and as such section may be amended from
time to time or be accorded similar tax treatment to that
accorded to an incentive stock option by virtue of any new
revenue laws of the United States. The Board of Directors may
make any amendment to the Plan which shall be required so to
conform the Plan. Subject to the provisions of the Code, the
Committee shall have the power to include such other terms and
provisions in options granted under this Plan as the Committee
shall deem advisable. The grant of any options pursuant to the
terms of this Plan which do not qualify as "incentive stock
options" as defined in Section 422 of the Code is hereby approved
provided that the maximum number of shares of Common Stock of the
Company which can be issued pursuant to the terms of this Plan
(as provided for in Section 4 hereof but subject to anti-dilutive
adjustments made pursuant to Section 5 hereof) is not exceeded by
the grant of any such options and, to the extent that any options
previously granted pursuant to the terms of this Plan were not
"incentive stock options" within the meaning of Section 422 of
the Code, the grant of such options is hereby ratified, approved
and confirmed.
13. Maximum Annual Value of Options Exercisable.
Notwithstanding any provisions of this Plan to the contrary if:
(a) the sum of: (i) the fair market value (determined as of the
date of the grant) of all options granted to an Optionee under
the terms of this Plan which become exercisable for the first
time in any one calendar year; and (ii) the fair market value
(determined as of the date of the grant) of all options
previously granted to such Optionee under the terms of this Plan
or any other incentive stock option plan of the Company or its
subsidiaries which also become exercisable for the first time in
such calendar year; exceeds (b) $100,000; then, (c) those options
shall continue to be binding upon the Company in accordance with
their terms but, to the extent that the aggregate fair market of
all such options which become exercisable for the first time in
any one calendar year (determined as of the date of the grant)
exceeds $100,000, such options (referred to, for purposes of this
Plan, as "Non-Qualified Options") shall not be deemed to be
incentive stock options as defined in Section 422(b) of the Code.
For purposes of the foregoing, the determination of which options
shall be recharacterized as not being incentive stock options
issued under the terms of this Plan shall be made in inverse
order of their grant dates and, accordingly, the last options
received by the Optionee shall be the first options to be
recharacterized as not being incentive stock options granted
pursuant to the terms of the Plan.
14. General Provisions (a) No incentive stock option shall
be construed as limiting any right which the Company or any
parent or subsidiary of the Company may have to terminate at any
time, with or without cause, the employment of an Optionee.
(b) The Section headings used in this Plan are intended
solely for convenience of reference and shall not in any manner
amplify, limit, modify or otherwise be used in the construction
or interpretation of any of the provisions hereof.
(c) The masculine, feminine or neuter gender and the
singular or plural number shall be deemed to include the other
whenever the content so indicates or requires.
(d) No options shall be granted under the Plan after
ten (10) years from the date the Plan is adopted by the Board of
Directors of the Company or approved by the stockholders of the
Company, whichever is earlier.
15. Effective Date and Duration of the Plan. The Plan
became effective on September 21, 1993, the date the adoption of
the Plan was approved by the Board of Directors of the Company.
On November 5, 1993, as required by Section 422 of the Code, the
Plan was approved by the Stockholders of the Company. The Plan
will terminate on September 20, 2003; provided however, that the
termination of the Plan shall not be deemed to modify, amend or
otherwise affect the terms of any options outstanding on the date
the Plan terminates.
IN WITNESS WHEREOF, the undersigned has executed this Plan
by and on behalf of the Company on and as of the 9th day of
February, 1999.
GIBRALTAR STEEL CORPORATION
By: Walter T. Erazmus
DATE ADOPTED BY BOARD OF DIRECTORS: September 21, 1993
DATE APPROVED BY STOCKHOLDERS: November 5, 1993
TERMINATION DATE: September 21, 2003