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EXHIBIT 4.9
MOTIVEPOWER INDUSTRIES, INC.
STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
ARTICLE 1 - PURPOSE
The purpose of this Plan is to encourage the highest level of performance from
those members of the Board who are not employees of the Company by granting such
directors discounted options to purchase the Company's common stock. Ownership
of such stock provides non-employee directors with a proprietary interest in the
Company's success and increases their identification with the interests of the
Company's stockholders.
ARTICLE 2 - DEFINITIONS
The following words shall have the meaning set forth in this Article, unless a
different meaning is clearly required by the context in which they appear.
Whenever appropriate, words used in the singular shall be deemed to include the
plural and vice versa, and the masculine gender shall be deemed to include the
feminine gender.
2.1 BOARD shall mean the Board of Directors of the Company.
2.2 CAUSE shall mean a Non-Employee Director's (i) willful engagement in
conduct materially injurious to the Company, (ii) commission of an act
of fraud or embezzlement against the Company or any Subsidiary, or
(iii) conviction for any felony involving moral turpitude. For purposes
of clause (i) of this definition, no act, or failure to act on the
director's part shall be deemed "willful" unless done, or omitted to be
done, by the director not in good faith and without reasonable belief
that the director's act, or failure to act, was in the best interests
of the Company.
2.3 CODE shall mean the Internal Revenue Code of 1986, as now in effect or
as hereafter amended.
2.4 COMMITTEE shall mean the Executive Committee of the Board.
2.5 COMMON STOCK shall mean the $.01 par value common stock of the Company.
2.6 COMPANY shall mean MotivePower Industries, Inc., a Delaware
corporation.
2.7 EFFECTIVE DATE shall mean April 1, 1994.
2.8 FAIR MARKET VALUE shall mean the average of the highest and lowest
quoted selling prices per share of the Common Stock reported on the
NASDAQ on the pertinent date, or, if no sales are reported on that
date, on the next preceding date on which such sales are reported.
2.9 NON-EMPLOYEE DIRECTOR is a member of the Board who is neither an
employee of the Company or any of its Subsidiaries nor an employee of
Morrison Knudsen Corporation, a Delaware corporation.
2.10 OPTION shall mean an Option granted under this Plan.
2.11 PARTICIPANT shall mean any Non-Employee Director who participates in
the Plan.
2.12 PLAN shall mean the MotivePower Industries, Inc. Stock Option Plan for
Non-Employee Directors as set forth herein and as amended from time to
time.
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2.13 SUBSIDIARY shall mean any corporation that at the time qualifies as a
subsidiary of the Company under the definition of "subsidiary
corporation" contained in Section 424(f) of the Code, as that section
may be amended from time to time.
ARTICLE 3 - ADMINISTRATION
The Committee shall interpret and administer the Plan. The interpretation and
construction by the Committee of any provision of this Plan shall be final and
binding on all persons interested in the Plan. No member of the Committee shall
be liable for any action taken or determination made in good faith with respect
to the Plan. The Plan and all action taken under it shall be governed, as to
construction and administration, by the law of the State of Delaware.
ARTICLE 4 - ELIGIBILITY
Each Non-Employee Director shall be a Participant in the Plan.
ARTICLE 5 - SHARES SUBJECT TO PLAN
The total number of shares of Common Stock with respect to which Options may be
granted hereunder shall be two hundred twenty-five thousand (225,000) (subject
to adjustment as provided in this Article 5 and Article 8.1). The shares of
Common Stock issued upon exercise of an Option shall be from authorized but
unissued Common Stock or from any outstanding Common Stock which has been
reacquired by the Company. In the event that an Option terminates for any
reason, without having been exercised in full, the unpurchased shares of Common
Stock subject to that Option shall again be available for grant under this
Plan."
ARTICLE 6 - GRANT OF OPTION
On the Effective Date, each current Non-Employee Director shall be granted an
Option to purchase 12,000 shares of Common Stock. In addition, each Non-Employee
Director who is elected to the Board after the Effective Date (except an
incumbent director) shall be granted upon his election, an Option to purchase
12,000 shares of Common Stock. All such Options shall be subject to the terms
and conditions set forth in this Plan.
ARTICLE 7 - TERMS AND CONDITIONS OF OPTIONS
All Options granted under the Plan shall be evidenced by an Option Agreement
which shall be in such form as the Committee may determine and shall be executed
on behalf of the Company by an officer of the Company. Each such Option
Agreement shall be subject to the terms and conditions of the Plan and shall
provide in substance as follows:
7.1 PRICE PER SHARE
The purchase price per share for the shares covered by the Option shall be equal
to fifty percent (50%) of the Fair Market Value of the Common Stock on the date
of grant.
7.2 TERM AND EXERCISE OF OPTION
All Options granted hereunder shall vest over a three (3) year period in annual
increments of one-third (1/3rd) on each anniversary of the date of grant;
provided that, if a Participant ceases to be a Non-Employee Director for any
reason (other than termination of directorship for "Cause"), all vested Options
then held by such Participant shall be exercisable thereafter for a period of
three (3) years and all unvested Options shall terminate thirty (30) days after
such person ceases to be a Non-Employee Director. If a Participant's
directorship is terminated for Cause, all vested Options then held by such
participant shall be exercisable thereafter for a period of thirty (30) days and
all unvested Options shall automatically terminate on the date of termination as
a director.
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7.3 EXERCISE OF OPTION
Each Option Agreement shall provide that the Option evidenced thereby shall be
exercised by delivering a written notice of exercise to the Company. Each such
notice shall state the number of whole shares of Common Stock with respect to
which the Option is being exercised and shall be signed by the Participant. In
the event the Option is being exercised by any person other than the Participant
the notice shall be accompanied by proof, satisfactory to counsel for the
Company, of the right of such person to exercise the Option. Each notice shall
also be accompanied by (i) cash payment to the Company of the full amount of the
purchase price for the shares being purchased, (ii) shares of Common Stock
previously held by the Participant for more than six (6) months with a Fair
Market Value equal to the full amount of the purchase price for the shares being
purchased, or (iii) by a combination of cash and Common Stock as described in
(i) and (ii) above.
The date of exercise of an Option shall be the date on which written notice of
exercise shall have been received by the Company, but the exercise of an Option
shall not be effective until the person exercising the Option shall have
complied with all the provisions of the Option Agreement governing the exercise
of the Option subject to Article 10. The Company shall thereafter deliver as
soon as possible certificates for the shares of the Common Stock with respect to
which the Option has been exercised.
7.4 NON-TRANSFERABILITY OF OPTIONS
Each Option Agreement shall provide that the Option evidenced thereby is
non-transferable and non-assignable by the Participant other than by will or the
laws of descent and distribution and during the lifetime of the Participant such
Option may be exercised only by the Participant or such Participant's legal
representative.
ARTICLE 8 - EFFECT OF CERTAIN CHANGES
8.1 ANTI-DILUTION
The aggregate number of shares of Common Stock with respect to which Options may
be granted hereunder, the number of shares of Common Stock subject to each
outstanding Option, and the price per share for each such Option, may au be
appropriately adjusted, as the Committee may determine, for any increase or
decrease in the number of shares of issued Common Stock resulting from a
subdivision or consolidation of shares whether through reorganization, payment
of a share dividend or other increase or decrease in the number of such shares
outstanding, without payment of consideration to the Company, provided, however,
that any fractional shares resulting from any such adjustment shall be
eliminated by rounding down to the closest number of whole shares; provided
further, that no such adjustment shall be made if the change in the number of
outstanding shares results from a contribution, directly or indirectly, of
Common Stock by the Company to any Company employee benefit plan.
8.2 SALE OF ASSETS, MERGER OR DISSOLUTION
Subject to any required action by the stockholders, if the Company is dissolved
or becomes a party to a transaction involving a sale of substantially all its
assets, or a merger or a consolidation with another corporation as a result of
which the Company is not the surviving corporation, all unexercised Options
under the Plan shall become exercisable in full immediately before the
consummation of such transaction, and to the extent any Option is not exercised
prior to the consummation of such transaction, such Option shall automatically
terminate upon the consummation of such transaction. The Company shall use its
best efforts, consistent with any applicable legal restrictions, to give all
Participants at least fifteen (15) days advance notice of such a transaction.
ARTICLE 9 - AMENDMENT AND TERMINATION
The Board shall have the right to amend, suspend or terminate this Plan at any
time, provided that unless first approved by the stockholders of the Company no
amendment shall be made to the Plan which: (i) would cause Rule
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16b-3 of the Securities Exchange Act of 1934 to become inapplicable to the Plan,
(ii) materially modifies the eligibility requirements of Article 4, (iii)
increases the total number of shares of Common Stock which may be issued under
the Plan, (iv) reduces the purchase price of shares under the Plan, (v) extends
the term of the Plan, (vi) extends the term of any Option granted under the
Plan, or (vii) otherwise materially increases the benefits of the Plan to
Participants. No amendment shall impair the rights of a Participant under any
outstanding Option, without the Participant's consent.
ARTICLE 10 - COMPLIANCE WITH GOVERNMENT REGULATIONS
The granting of Options under this Plan and the issuance or transfer of shares
of Common Stock under Options are subject to compliance with all applicable
federal and state laws, rules and regulations and to such approvals by any
regulatory or governmental agency which the Company determines to be necessary
or advisable in connection therewith. In connection with any shares of Common
Stock issued pursuant to the exercise of Options, the person acquiring such
shares shall, if requested by the Company, give assurances satisfactory to the
Company in respect of such matters as the Company may deem necessary or
advisable to assure compliance with all applicable legal requirements. The
Company shall not be required to deliver any shares of Common Stock under the
Plan or any Option prior to (i) the admission of such shares to listing on any
stock exchange on which Common Stock may then be listed, and (ii) the completion
of such registration or other qualification of such shares under any state or
federal law, rule or regulation, as the Company shall determine to be necessary
or advisable.
ARTICLE 11 - NOTICE
Any notice to the Company required or permitted under this Plan shall be in
writing and shall either be delivered in person or sent by registered or
certified mail, return receipt requested, postage prepaid, to the Company at the
following address or such other address as may be specified from time to time:
MotivePower Industries, Inc.
Two Gateway Center, 14th Floor
Pittsburgh, PA 15222
Attention: Scott Wahlstrom
ARTICLE 12 - TERM OF PLAN
The Plan shall terminate ten years after the date upon which it is approved by
the stockholders of the Company or on such earlier date as may be determined by
the Board. No Options may be granted after termination of the Plan. All
unexpired Options shall continue in force after termination of the Plan until
they lapse or are exercised as provided herein.
ARTICLE 13 - EFFECTIVE DATE
This Plan shall be effective as specified by the Company's Board of Directors
and upon approval by the affirmative vote of the holders of a majority of the
shares of the Company's Common Stock.
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