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EXHIBIT 10.14
ARCH CHEMICALS, INC. 1999 LONG TERM INCENTIVE PLAN
(As amended effective October 28, 1999 and December 14, 2000)
Section 1. Purpose
The purposes of the Arch Chemicals, Inc. 1999 Long Term Incentive Plan
(the "Plan") are to encourage selected salaried employees of Arch Chemicals,
Inc. (together with any successor thereto, the "Company") and its Affiliates (as
defined below) to acquire a proprietary interest in the Company's growth and
performance, to generate an increased incentive to contribute to the Company's
future success and to enhance the ability of the Company and its Affiliates to
attract and retain qualified individuals.
Section 2. Definitions
As used in the Plan:
(a) "Affiliate" means (i) any entity that, directly or through one or
more intermediaries, is controlled by the Company, and (ii) any
entity in which the Company has a significant equity interest as
determined by the Committee.
(b) "Award" means any Option, Restricted Stock, Restricted Stock Unit,
Performance Award or Dividend Equivalent granted under the Plan.
(c) "Award Agreement" means any written agreement or other instrument
or document evidencing an Award granted under the Plan. The terms
of any plan or guideline adopted by the Board or the Committee and
applicable to an Award shall be deemed incorporated in and a part
of the related Award Agreement.
(d) "Board" means the Board of Directors of the Company.
(e) "Code" means the Internal Revenue Code of 1986, as amended from
time to time.
(f) "Committee" means a committee of the Board designated by the Board
to administer the Plan and composed of not less than two
directors, each of
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whom is qualified as a "Non-Employee Director" as contemplated by
the Section 16 Rules and as an "Outside Director" as defined in
Code Section 162(m) and any regulations promulgated thereunder.
(g) "Dividend Equivalent" means any right granted under Section
6(d)(iv) of the Plan.
(h) "Fair Market Value" means, with respect to any property
(including, without limitation, Shares or other securities), the
fair market value of such property determined by such methods or
procedures as shall be established from time to time by the
Committee.
(i) "Incentive Stock Option" means an option to purchase Shares
granted under Section 6(a) of the Plan that is intended to meet
the requirements of Section 422 of the Code or a successor
provision thereto.
(j) "Non-Qualified Stock Option" means an option to purchase Shares
granted under Section 6(a) of the Plan that is not intended to be
an Incentive Stock Option.
(k) "Option" means an Incentive Stock Option or a Non-Qualified Stock
Option.
(l) "Participant" means a Salaried Employee granted an Award under the
Plan.
(m) "Performance Award" means any award granted under Section 6(c) of
the Plan.
(n) "Person" means any individual, corporation, partnership,
association, joint-stock company, trust, unincorporated
organization, or government or political subdivision thereof.
(o) "Released Securities" means securities that were Restricted
Securities with respect to which all applicable restrictions
imposed under the terms of the relevant Award have expired, lapsed
or been waived or satisfied.
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(p) "Restricted Securities" means Awards of Restricted Stock or other
Awards under which outstanding Shares are held subject to certain
restrictions.
(q) "Restricted Stock" means any Share granted under Section 6(b) of
the Plan.
(r) "Restricted Stock Unit" means any right granted under Section 6(b)
of the Plan that is denominated in Shares.
(s) "Salaried Employee" means any salaried employee of the Company or
of an Affiliate.
(t) "Section 16 Rules" means the rules promulgated by the Securities
and Exchange Commission with respect to Section 16 of the
Securities Exchange Act of 1934, as amended, or any successor
rules.
(u) "Shares" means the common stock of the Company and such other
securities or property as may become the subject of Awards
pursuant to an adjustment made under Section 4(b) of the Plan.
Section 3. Administration
The Plan shall be administered by the Committee which shall have full
power and authority to: (i) designate Participants; (ii) determine the Awards to
be granted to Participants; (iii) determine the number of Shares (or securities
convertible into Shares) to be covered by Awards; (iv) determine the terms and
conditions of any Award; (v) determine whether, to what extent, and under what
circumstances Awards may be settled or exercised in cash, Shares, other
securities, other Awards, or other property, or canceled, substituted, forfeited
or suspended, and the method or methods by which Awards may be settled,
exercised, canceled, substituted, forfeited or suspended; (vi) determine
whether, to what extent, and under what circumstances cash, Shares, other
securities, other Awards, other property and other amounts payable with respect
to an Award under the Plan shall be deferred either automatically or at the
election of the Participant or of the Committee; (vii) interpret and administer
the Plan and any instrument or agreement relating to, or Award made under, the
Plan; (viii) establish, amend,
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suspend or waive such rules and guidelines and appoint such agents as it shall
deem appropriate for the administration of the Plan; and (ix) make any other
determination and take any other action that it deems necessary or desirable for
such administration. All designations, determinations, interpretations and other
decisions with respect to the Plan or any Award shall be within the sole
discretion of the Committee and shall be final, conclusive and binding upon all
Persons, including the Company, any Affiliate, any Participants, any holder or
beneficiary of any Award, any shareholder and any employee of the Company or of
any Affiliate. The Committee's powers include the adoption of modifications,
amendments, procedures, subplans and the like as are necessary to comply with
provisions of the laws of other countries in which the Company or an Affiliate
may operate in order to assure the viability of Awards granted under the Plan
and to enable Participants employed in such other countries to receive benefits
under the Plan and such laws.
Section 4. Shares Available for Awards
(a) Shares Available. The aggregate number of Shares available for
issuance under the Plan shall be 2,123,000 subject to adjustment
pursuant to subsection (b) below.
(b) Adjustments. In the event that the Committee determines that any
dividend or other distribution, recapitalization, stock split,
reverse stock split, reorganization, merger, consolidation,
split-up, spin-off, combination, repurchase or exchange of Shares
or other securities of the Company, issuance of warrants or other
rights to purchase Shares or other securities of the Company, or
other similar corporate transaction or event affects the Shares
such that an adjustment is determined by the Committee to be
appropriate in order to prevent dilution or enlargement of the
benefits intended to be made available under the Plan, then the
Committee shall, in such manner as it may deem equitable, adjust
any or all of (i) the number and type of Shares (or other
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securities or property) which thereafter may be made the subject
of Awards, (ii) the number and type of Shares (or other securities
or property) subject to outstanding Awards, (iii) the grant,
purchase or exercise price with respect to any Award, or, if the
Committee deems it appropriate, make provision for a cash payment
to the holder of an outstanding Award and (iv) the limitation
contained in Section 4(c). Notwithstanding the foregoing, a
Participant to whom Dividend Equivalents or dividend units have
been awarded shall not be entitled to receive a special or
extraordinary dividend or distribution unless the Committee shall
have expressly authorized such receipt.
(c) Limitation on Awards. Notwithstanding anything contained in this
Plan to the contrary, grants to any one Participant of Awards
which represent or are designated in Shares shall not exceed
300,000 Shares in any calendar year.
Section 5. Eligibility
Any Salaried Employee, including any officer or employee-director of the
Company or an Affiliate shall be eligible to be designated a Participant.
Section 6. Awards
(a) Options. The Committee is authorized to grant Options to
Participants with the following terms and conditions and with such
additional terms and conditions, not inconsistent with the
provisions of the Plan, as the Committee shall determine:
(i) Exercise Price. The purchase price per Share purchasable
under an Option shall be determined by the Committee;
provided, however, that such purchase price shall not be
less than the Fair Market Value of a Share on the date of
grant of such Option.
(ii) Option Term. The term of each Option shall be fixed by the
Committee, provided that in no event shall the term of an
Option exceed a period of ten years from the date of its
grant.
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(iii) Exercise. The Committee shall determine the time or times
at which an Option may be exercised in whole or in part
(but in no event shall an Option be exercisable after the
expiration of ten years from the date of its grant), and
the method or methods by which, and the form or forms
(including, without limitation, cash, Shares, other Awards
or other property, or any combination thereof, having a
Fair Market Value on the exercise date equal to the
relevant exercise price) in which, payment of the exercise
price with respect thereto may be made; provided that no
Shares may be used by a Participant in payment of the
exercise price of an Option unless such Shares were
acquired in the open market or have been held by the
Participant for at least six months.
(iv) Incentive Stock Options. The terms of any Incentive Stock
Option granted under the Plan shall comply in all respects
with the provisions of Section 422 of the Code, or any
successor provision thereto, and any regulations
promulgated thereunder. Without limiting the preceding
sentence, the aggregate Fair Market Value (determined at
the time an option is granted) of Shares with respect to
which Incentive Stock Options are exercisable for the first
time by a Participant during any calendar year (under the
Plan and any other plan of the Participant's employer
corporation and its parent and subsidiary corporations
providing for Options) shall not exceed such dollar
limitation as shall be applicable to Incentive Stock
Options under Section 422 of the Code or a successor
provision.
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(b) Restricted Stock and Restricted Stock Units.
(i) Issuance. The Committee is authorized to grant Awards of
Restricted Stock and Restricted Stock Units to
Participants.
(ii) Restrictions. Shares of Restricted Stock and Restricted
Stock Units shall be subject to such restrictions as the
Committee may impose (including, without limitation, any
limitation on the right to vote a Share of Restricted Stock
or the right to receive any dividend or other right or
property), which restrictions may lapse separately or in
combination at such time or times, in such installments or
otherwise, as the Committee may deem appropriate, provided
that in order for a Participant to vest in Awards of
Restricted Stock or Restricted Stock Units where vesting is
based solely on continued service, the Participant must
remain in the employ of the Company or an Affiliate for a
period of not less than three years commencing on the date
of grant of the Award, subject to Section 9 hereof and
subject to relief for specified reasons as may be approved
by the Committee.
(iii) Registration. Any Restricted Stock granted under the Plan
may be evidenced in such manner as the Committee may deem
appropriate, including, without limitation, book-entry
registration or issuance of a stock certificate or
certificates. In the event any stock certificate is issued
in respect of Shares of Restricted Stock granted under the
Plan, such certificate shall be registered in the name of
the Participant and when delivered to the Participant shall
bear an appropriate legend referring to the terms,
conditions and restrictions applicable to such Restricted
Stock.
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(iv) Forfeiture. Except as otherwise determined by the
Committee, upon termination of employment for any reason
during the applicable restriction period, all Shares of
Restricted Stock and all Restricted Stock Units still
subject to restriction shall be forfeited and reacquired by
the Company; provided, however, that the Committee may, in
its sole discretion, waive in whole or in part any or all
remaining restrictions with respect to Shares of Restricted
Stock or Restricted Stock Units. Unrestricted Shares,
evidenced in such manner as the Committee shall deem
appropriate, shall be delivered to the holder of Restricted
Stock promptly after such Restricted Stock shall become
Released Securities.
(c) Performance Awards. The Committee is authorized to grant
Performance Awards to Participants. Subject to the terms of the
Plan and any applicable Award Agreement, a Performance Award
granted under the Plan (i) may be denominated or payable in cash,
Shares (including, without limitation, Restricted Stock or
Restricted Stock Units), other securities, other Awards or other
property and (ii) shall confer on the holder thereof rights valued
as determined by the Committee and payable to, or exercisable by,
the holder of the Performance Award, in whole or in part, upon the
achievement of such performance goals during such performance
periods as the Committee shall establish. Subject to the terms of
the Plan and any applicable Award Agreement, the performance goals
to be achieved during any performance period, the length of any
performance period, the amount of any Performance Award granted,
and the amount of any payment or transfer to be made pursuant to
any Performance Award shall be determined by the Committee,
provided that a performance period shall be at least one year,
subject to Section 9 hereof.
(d) General.
(i) No Cash Consideration for Awards. Participants shall not be
required to make
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any cash payment for the granting of an Award except for
such minimum consideration as may be required by applicable
law.
(ii) Awards May Be Granted Separately or Together. Awards may be
granted either alone or in addition to, in tandem with, or
in substitution for any other Award or any award or benefit
granted under any other plan or arrangement of the Company
or any Affiliate, or as payment for or to assure payment of
an award or benefit granted under any such other such plan
or arrangement, provided that the purchase or exercise
price under an Award encompassing the right to purchase
Shares shall not be reduced by the cancellation of such
Award and the substitution of another Award. Awards so
granted may be granted either at the same time as or at a
different time from the grant of such other Awards or
awards or benefits.
(iii) Forms of Payment Under Awards. Subject to the terms of the
Plan and of any applicable Award Agreement, payments to be
made by the Company or an Affiliate upon the grant,
exercise, or payment of an Award may be made in such form
or forms as the Committee shall determine, including,
without limitation, cash, Shares, other securities, other
Awards, or other property or any combination thereof, and
may be made in a single payment or transfer, in
installments, or on a deferred basis, in each case in
accordance with rules and procedures established by the
Committee.
(iv) Dividend Equivalents or Interest. Subject to the terms of
the Plan and any applicable Award Agreement, a Participant,
including the recipient of a deferred Award, shall, if so
determined by the Committee, be entitled to receive,
currently or on a deferred basis, interest or
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dividends or interest or dividend equivalents, with respect
to the Shares covered by the Award. The Committee may
provide that any such amounts shall be deemed to have been
reinvested in additional Shares or otherwise reinvested.
Notwithstanding the award of Dividend Equivalents or
dividend units, a Participant shall not be entitled to
receive a special or extraordinary dividend or distribution
unless the Committee shall have expressly authorized such
receipt.
(v) Limits on Transfer of Awards. No Award (other than Released
Securities) or right thereunder shall be assignable or
transferable by a Participant, other than (unless limited
in the Award Agreement) by will or the laws of descent and
distribution (or, in the case of an Award of Restricted
Securities, to the Company), except that an Option may be
transferred by gift to any member of the holder's immediate
family or to a trust for the benefit of one or more of such
immediate family members, if permitted in the applicable
Award Agreement; provided, however, that, if so determined
by the Committee, a Participant may, in the manner
established by the Committee, designate a beneficiary or
beneficiaries with respect to any Award to exercise the
rights of the Participant, and to receive any property
distributable, upon the death of the Participant. Each
Award, and each right under any Award, shall be
exercisable, during the Participant's lifetime, only by the
Participant or, if permissible under applicable law by the
Participant's guardian or legal representative unless it
has been transferred to a member of the holder's immediate
family or to a trust for the benefit of one or more of such
immediate family members, in which case it shall be
exercisable only by such transferee. For the purposes of
this provision, a holder's "immediate family" shall mean
the holder's
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spouse, children and grandchildren. No Award (other than
Released Securities), and no right under any such Award,
may be pledged, attached or otherwise encumbered other than
in favor of the Company, and any purported pledge,
attachment, or encumbrance thereof other than in favor of
the Company shall be void and unenforceable against the
Company or any Affiliate.
(vi) Term of Awards. Except as otherwise expressly provided in
the Plan, the term of each Award shall be for such period
as may be determined by the Committee.
(vii) Section 16 Rule Six-Month Limitations. To the extent
required in order to otherwise satisfy the requirements for
exemption under the Section 16 Rules only, any derivative
or equity security offered pursuant to the Plan may not be
sold for at least six months after acquisition or grant (or
such other period as may be required by the Section 16
Rules), except in the case of death. Terms used in the
preceding sentence shall, for the purposes of such sentence
only, have the meanings, if any, assigned or attributed to
them under Section 16 Rules.
(viii) No Rights to Awards. No Salaried Employee, Participant or
other Person shall have any claim to be granted an Award,
and there is no obligation for uniformity of treatment of
Salaried Employees, Participants or holders or
beneficiaries of Awards under the Plan. The terms and
conditions of Awards need not be the same with respect to
each recipient. The prospective recipient of any Award
under the Plan shall not, with respect to such Award, be
deemed to have become a Participant, or to have any rights
with respect to such Award, until and unless such recipient
shall have executed an agreement or other instrument
accepting the Award and delivered a fully executed copy
thereof to
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the Company, and otherwise complied with the then
applicable terms and conditions.
(ix) Delegation. Notwithstanding any provision of the Plan to
the contrary, the Committee may delegate to one or more
officers or managers of the Company or any Affiliate, or a
committee of such officers or managers, the authority,
subject to such terms and limitations as the Committee
shall determine, to grant Awards to, or to cancel, modify,
waive rights or conditions with respect to, alter,
discontinue, suspend, or terminate Awards held by, Salaried
Employees who are not officers or directors of the Company
for purposes of the Section 16 Rules.
(x) Withholding. The Company or any Affiliate may withhold from
any Award granted or any payment due or transfer made under
any Award or under the Plan the amount (in cash, Shares,
other securities, other Awards, or other property) of
withholding taxes due in respect of an Award, its exercise
or any payment under such Award or under the Plan, and take
such other action as may be necessary in the opinion of the
Company or Affiliate to satisfy all obligations for the
payment of such taxes.
(xi) Other Compensation Arrangements. Nothing contained in the
Plan shall prevent the Company or any Affiliate from
adopting or continuing in effect other or additional
compensation arrangements, and such arrangements may be
either generally applicable or applicable only in specific
cases.
(xii) No Right to Employment. The grant of an Award shall not be
construed as giving a Participant the right to be retained
in the employ of the Company or any Affiliate. Nothing in
the Plan or any Award Agreement
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shall limit the right of the Company or an Affiliate at any
time to dismiss a Participant from employment, free from
any liability or any claim under the Plan or the Award
Agreement.
(xiii) Governing Law. The validity, construction and effect of the
Plan and any rules and regulations relating to the Plan
shall be determined in accordance with the laws of the
State of Connecticut and applicable Federal law.
(xiv) Severability. If any provision of the Plan or any Award is
determined to be invalid, illegal or unenforceable in any
jurisdiction, or as to any Person or Award, or would
disqualify the Plan or any Award under any law deemed
applicable by the Committee, such provision shall be
construed or deemed amended to conform to applicable laws,
or, if it cannot be so construed or deemed amended without,
in the determination of the Committee, materially altering
the intent of the Plan or the Award, such provision shall
be stricken as to such jurisdiction, Person or Award, and
the remainder of the Plan and any such Award shall remain
in full force and effect.
(xv) No Trust or Fund Created. Neither the Plan nor any Award
shall create or be construed to create a trust or separate
fund of any kind or a fiduciary relationship between the
Company or any Affiliate and a Participant or any other
Person. To the extent that any Person acquires a right to
receive payments from the Company or any Affiliate pursuant
to an Award, such right shall be no greater than the right
of any unsecured general creditor of the Company or any
Affiliate.
(xvi) No Fractional Shares. No fractional Shares shall be issued
or delivered pursuant to the Plan or any Award, and the
Committee shall
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determine whether cash, other securities or other property
shall be paid or transferred in lieu of any fractional
Shares, or whether such fractional Shares or any rights
thereto shall be canceled, terminated or otherwise
eliminated.
(xvii) Share Certificates. All certificates for Shares or other
securities delivered under the Plan pursuant to any Award
or the exercise thereof shall be subject to such stop
transfer orders and other restrictions as the Committee may
deem advisable under the Plan or the rules, regulations and
other requirements of the Securities and Exchange
Commission, any stock exchange upon which such Shares or
other securities are then listed, and any applicable
Federal or state securities laws, and the Committee may
cause a legend or legends to be put on any such
certificates to make appropriate reference to such
restrictions.
(xviii) Conflict with Plan. In the event of any inconsistency or
conflict between the terms of the Plan and an Award
Agreement, the terms of the Plan shall govern.
(xix) Performance Based Awards. Notwithstanding any provision in
this Plan to the contrary, Awards granted under Sections
6(b) or 6(c) and designated by the Committee as being
performance-based shall have as performance measures Return
on Equity, Total Return to Shareholders and/or Cumulative
Earnings per Share Growth. For purposes of the Plan,
"Return on Equity" shall mean consolidated income of the
Company after taxes and before the after-tax effect of any
special charge or gain and any cumulative effect of any
change in accounting, divided by average shareholders
equity; "Total Return to Shareholders" shall mean for the
performance period total return to shareholders of $100
worth of Shares for such period assuming
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reinvestment of dividends on a quarterly basis and
"Cumulative Earnings per Share Growth" shall mean the
compound annual growth rate for Arch diluted Earnings per
Share for the performance or measurement period. The base
Earnings per Share upon which the annual growth rate will
be computed will be determined by the Committee prior to
the start of the performance period. "Earnings per Share"
shall mean the actual Arch diluted earnings per share at
the end of the performance or measurement period
(calculated as the Arch net income available to common
stockholders divided by the weighted average number of
shares of common stock plus any potential dilutive shares
of common stock (such as stock options) outstanding for
each year within the performance or measurement period).
The Committee shall determine the performance goals for
each such performance measure with respect to each such
Award.
(xx) Transfer from Olin Plans. As of the dividend payment date
fixed by the board of directors of Olin Corporation for the
distribution of all outstanding shares of common stock of
the Company to the shareholders of Olin Corporation
("Distribution"), Options for Shares, options for common
stock of Olin Corporation, Restricted Stock Units and
restricted stock units of Olin Corporation held by
employees of the Company (after giving effect to the
adjustment for the Distribution) shall be transferred to
this Plan from stock option and incentive plans maintained
by Olin Corporation. Any Options and Restricted Stock Units
transferred to this Plan shall not reduce the number of
Awards that may be designated in Shares for any Participant
in any calendar year pursuant to Section 4(c). As used in
and for all purposes of the Plan (other than for purposes
of Sections 4(a) with respect to
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options to purchase stock of Olin Corporation, 4(c) and
6(a)(i) of the Plan), the term "Option" includes an option
transferred to the Plan in connection with the Distribution
("Transferred Option"), the term "Restricted Stock Unit"
includes a restricted stock unit transferred to the Plan in
connection with the Distribution ("Transferred Stock Unit")
and the term "Award" includes a Transferred Option and a
Transferred Stock Unit.
Section 7. Amendment and Termination
(a) Amendments to the Plan. The Board (or any authorized committee
thereof) may amend, suspend, discontinue or terminate the Plan,
including, without limitation, any amendment, suspension,
discontinuation or termination that would impair the rights of any
Participant, or any other holder or beneficiary of any Award
theretofore granted, without the consent of any shareholder,
Participant, other holder or beneficiary of an Award, or other
Person; provided, however, that, notwithstanding any other
provision of the Plan or any Award Agreement, without the approval
of the shareholders of the Company, no such amendment, suspension,
discontinuation or termination shall be made that would (i) amend
the definition of "Participant" or the definition of "Salaried
Employee" to include non-employee directors of the Company, (ii)
except for adjustments provided in Section 4(b), increase the
number of shares available for issuance under the Plan as
specified in Section 4(a), or (iii) permit any Award encompassing
rights to purchase Shares to be granted with per Share purchase or
exercise prices of less than the Fair Market Value of a Share on
the date of grant thereof; and provided further that no amendment,
suspension, discontinuation or termination that would impair the
rights of such Participant, holder or beneficiary shall be made
with respect to Section 9 of the Plan after a Change in Control,
as defined therein.
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(b) Amendments to Awards. The Committee may waive any conditions or
rights with respect to, or amend, alter, suspend, discontinue, or
terminate, any unexercised Award theretofore granted,
prospectively or retroactively, without the consent of any
relevant Participant or holder or beneficiary of an Award,
provided that no amendment, alteration, suspension,
discontinuation or termination of an Award that would impair the
rights of such Participant, holder or beneficiary shall be made
after a Change in Control, as defined in Section 9; provided
further that the Committee may not increase the payment of any
Award granted any Participant.
(c) Adjustments of Awards Upon Certain Acquisitions. In the event the
Company or any Affiliate shall assume outstanding employee awards
or the right or obligation to make future such awards in
connection with the acquisition of another business or another
company, the Committee may make such adjustments, not inconsistent
with the terms of the Plan, in the terms of Awards as it shall
deem appropriate.
(d) Adjustments of Awards Upon the Occurrence of Certain Unusual or
Nonrecurring Events. The Committee may make adjustments in the
terms and conditions of Awards in recognition of unusual or
nonrecurring events (including, without limitation, the events
described in Section 4(b) hereof) affecting the Company, any
Affiliate, or the financial statements of the Company or any
Affiliate, or of changes in applicable laws, regulations, or
accounting principles, whenever the Committee determines that
statements of the Company or any Affiliate, or of changes in
applicable laws, regulations, or accounting principles, whenever
the Committee determines that such adjustments are appropriate in
order to prevent dilution or enlargement of the benefits to be
made available under the Plan.
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Section 8. Additional Conditions to Enjoyment of Awards.
(a) The Committee may cancel any unexpired, unpaid or deferred Awards
if at any time the Participant is not in compliance with all
applicable provisions of the Award Agreement, the Plan and the
following conditions:
(i) A Participant shall not render services for any
organization or engage, directly or indirectly, in any
business which, in the judgment of the Committee or, if
delegated by the Committee to the Chief Executive Officer,
in the judgment of such Officer, is or becomes competitive
with the Company or any Affiliate, or which is or becomes
otherwise prejudicial to or in conflict with the interests
of the Company or any Affiliate. Such judgment shall be
based on the Participant's positions and responsibilities
while employed by the Company or an Affiliate, the
Participant's post-employment responsibilities and position
with the other organization or business, the extent of
past, current and potential competition or conflict between
the Company or an Affiliate and the other organization or
business, the effect on customers, suppliers and
competitors of the Participant's assuming the
post-employment position, the guidelines established in the
then current edition of the Company's Standards of Ethical
Business Practices, and such other considerations as are
deemed relevant given the applicable facts and
circumstances. The Participant shall be free, however, to
purchase as an investment or otherwise, stock or other
securities of such organization or business so long as they
are listed upon a recognized securities exchange or traded
over the counter, and such investment does not represent a
substantial investment to the Participant or a greater than
1% equity interest in the organization or business.
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(ii) Participant shall not, without prior written authorization
from the Company, disclose to anyone outside the Company,
or use in other than the Company's business, any secret or
confidential information, knowledge or data, relating to
the business of the Company or an Affiliate in violation of
his or her agreement with the Company or the Affiliate.
(iii) A Participant, pursuant to his or her agreement with the
Company or an Affiliate, shall disclose promptly and assign
to the Company or the Affiliate all right, title and
interest in any invention or idea, patentable or not, made
or conceived by the Participant during employment by the
Company or the Affiliate, relating in any manner to the
actual or anticipated business, research or development
work of the Company or the Affiliate and shall do anything
reasonably necessary to enable the Company or the Affiliate
to secure a patent where appropriate in the United States
and in foreign countries.
(b) Notwithstanding any other provision of the Plan, the Committee in
its sole discretion may cancel any Award at any time prior to the
exercise thereof, if the employment of the Participant shall be
terminated, other than by reason of death, unless the conditions
in this Section 8 are met.
(c) Failure to comply with the conditions of this Section 8 prior to,
or during the six months after, any exercise, payment or delivery
pursuant to an Award shall cause the exercise, payment or delivery
to be rescinded. The Company shall notify the Participant in
writing of any such rescission within two years after such
exercise payment or delivery and within 10 days after receiving
such notice, the Participant shall pay to the Company the amount
of any gain realized or payment received as a result of the
exercise, payment or delivery rescinded. Such payment shall be
made either in cash or by returning
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to the Company the number of Shares that the Participant received
in connection with the rescinded exercise, payment or delivery.
(d) Upon exercise, payment or delivery pursuant to an Award, the
Committee may require the Participant to certify on a form
acceptable to the Committee, that he or she is in compliance with
the terms and conditions of the Plan.
(e) Nothing herein shall be interpreted to limit the obligations of a
Participant under his or her employee agreement or any other
agreement with the Company.
Section 9. Change in Control
(a) Except as the Board or the Committee may expressly provide
otherwise prior to a Change in Control of the Company (as defined
below), in the event of a Change in Control of the Company:
(i) all Options then outstanding shall become immediately and
fully exercisable, notwithstanding any provision therein
for the exercise in installments;
(ii) all restrictions and conditions of all Restricted Stock and
Restricted Stock Units then outstanding shall be deemed
satisfied as of the date of the Change in Control; and
(iii) all Performance Awards shall become vested, deemed earned
in full and promptly paid to the Participants, cash units
in cash and phantom stock units in the Shares represented
thereby or such other securities, property or cash as may
be deliverable in respect of Shares as a result of a Change
in Control, without regard to payment schedules and
notwithstanding that the applicable performance cycle or
retention cycle shall not have been completed.
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(b) A Change in Control of the Company shall have occurred in the
event that:
(i) the Company ceases to be, directly or indirectly, owned of
record by at least 1,000 shareholders;
(ii) a person, partnership, joint venture, corporation or other
entity, or two or more of any of the foregoing acting as a
"person" within the meaning of Sections 13(d)(3) of the
Securities Exchange Act of 1934, as amended (the "Act"),
other than the Company, a majority-owned subsidiary of the
Company or an employee benefit plan of the Company or such
subsidiary (or such plan's related trust), become(s) the
"beneficial owner" (as defined in Rule 13d-3 under the Act)
of 20% or more of the then outstanding voting stock of the
Company;
(iii) during any period of two consecutive years, individuals who
at the beginning of such period constitute the Company's
Board of Directors (together with any new Director whose
election by the Company's Board or whose nomination for
election by the Company's shareholders, 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) cease for any reason to constitute
a majority of the Directors then in office;
(iv) all or substantially all of the business of the Company is
disposed of pursuant to a merger, consolidation or other
transaction in which the Company is not the surviving
corporation or the Company combines with another company
and is the surviving corporation (unless the shareholders
of the Company immediately following such merger,
consolidation, combination, or other
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transaction beneficially own, directly or indirectly, more
than 50% of the aggregate voting stock or other ownership
interests of (x) the entity or entities, if any, that
succeed to the business of the Company or (y) the combined
company); or
(v) the shareholders of the Company approve a sale of all or
substantially all of the assets of the Company or a
liquidation or dissolution of the Company.
Section 10. Effective Date of the Plan
The Plan shall be effective as of the Distribution Date.
Section 11. Term of the Plan
No Award shall be granted under the Plan after January 31, 2009, but
unless otherwise expressly provided in the Plan or in an applicable Award
Agreement, any Award theretofore granted may extend beyond such date.