EXHIBIT 10(iii)f
COMMERCIAL METALS COMPANY
1999 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
The Commercial Metals Company 1999 Non-Employee Director Stock Option
Plan (hereinafter called the "Plan") was adopted by the Board of Directors of
Commercial Metals Company, a Delaware corporation (hereinafter called the
"Company"), effective as of November 22, 1999.
ARTICLE 1
PURPOSE
The purpose of the Plan is to attract and retain Outside Directors of
Commercial Metals Company and to provide such persons with a proprietary
interest in the Company through the issuance of Common Stock that will
(a) increase the interest of such persons in the Company's
welfare;
(b) furnish an incentive to such persons to continue their
services for the Company; and
(c) provide a means through which the Company may attract able
persons as directors.
ARTICLE 2
DEFINITIONS
For the purpose of the Plan, unless the context requires otherwise, the
following terms shall have the meanings indicated:
2.1 "Black-Scholes Value" means the value of a Stock Option granted
under the Plan to purchase one share of Common Stock determined pursuant to the
option pricing model commonly known as the Black-Scholes method.
2.2 "Board" means the board of directors of the Company.
2.3 "Change of Control" means any of the following: (i) any
consolidation, merger or share exchange of the Company in which the Company is
not the continuing or surviving corporation or pursuant to which shares of the
Company's Common Stock would be converted into cash, securities or other
property, other than a consolidation, merger or share exchange of the Company in
which the holders of the Company's Common Stock immediately prior to such
transaction have the same proportionate ownership of Common Stock of the
surviving corporation immediately after such transaction; (ii) any sale, lease,
exchange or other transfer (excluding transfer by way of pledge or
hypothecation) in one transaction or a series of related transactions, of all or
substantially all of the assets of the Company; (iii) the stockholders of the
Company approve any plan or proposal for the liquidation or dissolution of the
Company; (iv) the cessation of control (by virtue of their not constituting a
majority of directors) of the Board by the individuals (the "Continuing
Directors") who (x) at the date of this Plan were directors or (y) become
directors after the date of this Plan and whose election or nomination for
election by the Company's stockholders, was approved by a vote of at least
two-thirds of the directors then in office who
were directors at the date of this Plan or whose election or nomination for
election was previously so approved; (v) the acquisition of beneficial ownership
(within the meaning of Rule 13d-3 under the 1934 Act) of an aggregate of 15% of
the voting power of the Company's outstanding voting securities by any person or
group (as such term is used in Rule 13d-5 under the 1934 Act), provided,
however, that notwithstanding the foregoing, an acquisition shall not constitute
a Change of Control hereunder if the acquirer is (w) Daniel E. Feldman, Moses
Feldman, Robert L. Feldman, or Sara B. Feldman (the "Feldmans"), or any of his
or her affiliates, so long as the Feldmans and their affiliates do not
beneficially own an aggregate of 25% or more of the shares of Common Stock then
outstanding, (x) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company and acting in such capacity, (y) a
Subsidiary of the Company or a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as their
ownership of voting securities of the Company or (z) any other person whose
acquisition of shares of voting securities is approved in advance by a majority
of the Continuing Directors; or (vi) in a Title 11 bankruptcy proceeding, the
appointment of a trustee or the conversion of a case involving the Company to a
case under Chapter 7. Under sub-clause (w) of clause (v) of the preceding
sentence, if a person or entity is an affiliate of one or more of the Feldmans
and of another person or entity, such sub-clause (w) shall not serve to exempt
such other person or entity in determining whether a Change of Control has
occurred.
2.4 "Code" means the Internal Revenue Code of 1986, as amended.
2.5 "Committee" means the committee appointed or designated by the
Board to administer the Plan in accordance with ARTICLE 3 of this Plan.
2.6 "Common Stock" means the common stock which the Company is
currently authorized to issue or may in the future be authorized to issue.
2.7 "Company" means Commercial Metals Company, a Delaware corporation,
and any successor entity.
2.8 "Date of Grant" means the effective date on which a Stock Option is
awarded to an Outside Director as set forth in the applicable Stock Option
Agreement in accordance with the terms of the Plan.
2.9 "Election Form" means a form approved by the Committee pursuant to
which an Outside Director elects a method of payment of Fees.
2.10 "Employee" means common law employee (as defined in accordance
with the Regulations and Revenue Rulings then applicable under Section 3401(c)
of the Code) of the Company or any Subsidiary of the Company.
2.11 "Fair Market Value" means, as of a particular date, the mean of
the highest and lowest prices per share on the New York Stock Exchange
Consolidated Tape, or such reporting service as the Committee may select, on the
appropriate date, or in the absence of reported sales on such day, the most
recent previous day for which sales were reported.
2.12 "Fees" means the cash retainer payable by the Company to an
Outside Director for service as an Outside Director of the Company, as such
amount may be changed from time to time.
2.13 "Optioned Shares" means the full shares of Common Stock which a
Participant may purchase pursuant to the exercise of a Stock Option granted
pursuant to this Plan.
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2.14 "Option Period" means the period during which a Stock Option may
be exercised.
2.15 "Option Price" means the price which must be paid by a Participant
upon exercise of a Stock Option to purchase a share of Common Stock.
2.16 "Options Election Period" means the period beginning on October
1(st) (or, with respect to the first full calendar year during the term of the
Plan, November 22, 1999) of each year during the term of the Plan and ending on
the following December 31(st), or such other time period designated by the
Committee, during which Outside Directors may elect to receive Stock Options as
payment of some or all of their Fees. If a person becomes an Outside Director on
or after January 1(st) but before October 1(st), including a person serving as a
director and an Employee who becomes an Outside Director because such director's
employment with the Company terminates during such period, the Options Election
Period for such person for that year shall commence on the date such person
first becomes an Outside Director and end 30 days thereafter.
2.17 "Outside Director" means a director of the Company who is not an
Employee.
2.18 "Participant" shall mean an Outside Director of the Company.
2.19 "Plan" means this Commercial Metals Company 1999 Outside Director
Stock Option Plan, as amended from time to time.
2.20 "Plan Year" means a yearly period during the term of the Plan
beginning on the date of the Company's annual meeting of stockholders and ending
on the day before the Company's next annual meeting of stockholders.
2.21 "Retirement" means Termination of Service as a Director at or
after attaining age 62.
2.22 "Stock Option" means a non-qualified option to purchase Common
Stock granted under the Plan.
2.23 "Stock Option Agreement" means a written agreement between a
Participant and the Company which sets out the terms of the grant of a Stock
Option.
2.24 "Subsidiary" means (i) any corporation in an unbroken chain of
corporations beginning with the Company, if each of the corporations other than
the last corporation in the unbroken chain owns stock possessing a majority of
the total combined voting power of all classes of stock in one of the other
corporations in the chain, (ii) any limited partnership, if the Company or any
corporation described in item (i) above owns a majority of the general
partnership interest and a majority of the limited partnership interests
entitled to vote on the removal and replacement of the general partner, and
(iii) any partnership or limited liability company, if the partners or members
thereof are composed only of the Company, any corporation listed in item (i)
above or any limited partnership listed in item (ii) above. "Subsidiaries" means
more than one of any such corporations, limited partnerships, partnerships or
limited liability companies.
2.25 "Termination of Service as a Director" occurs when a Participant
who is an Outside Director of the Company shall cease to serve as a director of
the Company for any reason.
2.26 "Total and Permanent Disability" means that the Participant,
because of ill health, physical or mental disability or any other reason beyond
his or her control, is unable to perform his or her duties as a director for a
period of six (6) continuous months, as determined in good faith by the
Committee.
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ARTICLE 3
ADMINISTRATION
The Plan shall be administered by a committee appointed by the Board
(the "Committee"). The Committee shall consist of not fewer than two persons,
each of whom must be a "Non-Employee Director", as defined in Rule 16b-3
promulgated under the Securities Exchange Act of 1934, as such rule now exists
or may hereafter be amended. Any member of the Committee may be removed at any
time, with or without cause, by resolution of the Board. Any vacancy occurring
in the membership of the Committee may be filled by appointment by the Board.
The Committee shall select one of its members to act as its Chairman
and shall make such rules and regulations for its operation as it deems
appropriate. A majority of the Committee shall constitute a quorum, and the act
of a majority of the members of the Committee present at a meeting at which a
quorum is present shall be the act of the Committee. The Committee, in its
discretion, shall (i) interpret the Plan, (ii) prescribe, amend, and rescind any
rules and regulations necessary or appropriate for the administration of the
Plan, and (iii) make such other determinations and take such other action as it
deems necessary or advisable in the administration of the Plan; provided,
however, that the Committee shall have no discretion with respect to the
eligibility or selection of Outside Directors to receive awards under the Plan
or the time at which any such awards are to be granted, and provided further,
that the Committee shall not have the authority to take any action or make any
determination that would materially increase the benefits accruing to
Participants under the Plan. Any interpretation, determination, or other action
made or taken by the Committee shall be final, binding, and conclusive on all
interested parties.
ARTICLE 4
ELIGIBILITY; GRANT OF OPTIONS
4.1 Automatic Grant of Options. On the first day of every Plan Year,
each Outside Director serving as such on that date shall automatically be
granted a Stock Option to purchase one thousand five hundred (1,500) shares of
Common Stock on such date, without further action by the Committee.
If a person becomes an Outside Director during a Plan Year on a date
after the first day of a Plan Year, including a person serving as a director and
an Employee who becomes an Outside Director because such director's employment
with the Company terminates during such Plan Year, such Outside Director shall
automatically be granted a Stock Option to purchase that number of shares of
Common Stock equal to 1,500 multiplied by a fraction, the numerator of which
shall be the number of days until the end of such Plan Year and the denominator
of which shall be the total number of days in such Plan Year. In the event that
such calculation would result in a fractional share being subject to a Stock
Option, the number of shares that may be purchased under such Stock Option shall
be rounded up to the next whole number of shares. Stock Options granted under
this paragraph shall automatically be granted on the date such person becomes an
Outside Director, without further action by the Committee.
4.2 Election to Receive Stock Options in Lieu of Cash Fees. A
Participant may elect to receive all or part of the Fees otherwise payable to
him or her during a calendar year in the form of a Stock Option to purchase the
number of shares of Common Stock determined as set forth below in this Section
4.2. An Outside Director who wishes to receive Fees for a calendar year in the
form of a Stock Option must irrevocably elect to do so by delivering a valid
Election Form during the Options Election
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Period to the Secretary of the Company or such other person as the Committee may
designate. An Outside Director's timely election to receive a Stock Option in
lieu of cash Fees under this Section 4.2 will be effective as of the first day
of the calendar year covered by the Election Form. Elections to receive Stock
Options in lieu of cash Fees are irrevocable and shall be valid only for the
calendar year covered by such election. The Date of Grant for Stock Options
granted under this Section 4.2 will be the first day of the Plan Year
immediately following the calendar year covered by the Election Form.
The Committee shall cause to be calculated the Black-Scholes Value as
of the first day of the Plan Year immediately following the calendar year
covered by the Election Form. The Committee shall have complete discretion to
assign such values to the factors utilized in the calculation of the
Black-Scholes Value as the Committee deems appropriate. The Committee may, but
shall not be required to, use the services of Employees, consultants or other
agents to assist the Committee in calculating the Black-Scholes Value. The
number of shares subject to a Stock Option granted pursuant to this Section 4.2
shall be the number of whole shares equal to (i) the dollar amount of the Fees
earned by the Outside Director that the Outside Director elected to receive in
the form of a Stock Option divided by (ii) the Black-Scholes Value. In
determining the number of Optioned Shares, any fraction of a share will be
rounded up to the next highest whole number of shares.
For example:
Assume that an Outside Director has elected to receive $5,000
of his or her Fees in the form of a Stock Option and that the
Black-Scholes Value was determined to be $10. The Outside Director
would be granted a Stock Option to purchase 500 shares of Common Stock
as payment of the $5,000 compensation, calculated as follows: $5,000
divided by $10 = 500 shares.
4.3 Vesting; Time of Exercise.
(a) Stock Options granted pursuant to Section 4.1 will be
exercisable in the following cumulative installments:
First Installment: A Stock Option will be exercisable for up
to 50% of the Optioned Shares (rounded down so that no
fractional share is exercisable) at any time following the
first anniversary of the Date of Grant.
Second Installment: A Stock Option will be exercisable for the
remainder of the Optioned Shares not exercisable in the first
installment at any time following the second anniversary of
the Date of Grant.
Notwithstanding the foregoing, the vesting of installments
under Stock Options granted pursuant to Section 4.1 shall automatically
accelerate and the Stock Options shall be exercisable in full upon (i)
the Participant's death, (ii) the Participant's Termination of Service
as a Director as a result of Total and Permanent Disability, or (iii)
the occurrence of a Change of Control. The determination of the
Committee that any of the foregoing conditions has been met shall be
binding and conclusive on all parties.
(b) Stock Options granted pursuant to Section 4.2 will be
fully vested and exercisable on the Date of Grant.
4.4 Stock Option Agreement. The grant of a Stock Option shall be
evidenced by a Stock Option Agreement setting forth the total number of shares
of Common Stock subject to the Stock Option, the Option Price, the maximum term
of the Stock Option, the Date of Grant, and such other terms and
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provisions as are approved by the Committee, but not inconsistent with the Plan.
The Company shall execute a Stock Option Agreement with a Participant promptly
after the Date of Grant of the Stock Option.
ARTICLE 5
SHARES SUBJECT TO PLAN
The maximum number of shares of Common Stock that may be issued under
the Plan is two hundred thousand (200,000) (as may be adjusted in accordance
with ARTICLES 11 and 12 hereof). All Stock Options granted under the Plan shall
be designated as non-qualified stock options. Shares of Common Stock to be
issued under the Plan may be made available from either authorized but unissued
Common Stock or Common Stock held by the Company in its treasury. Shares of
Common Stock previously subject to Stock Options that are forfeited, terminated,
or settled in cash in lieu of Common Stock, or expired unexercised shall
immediately become available for grants of Stock Options under the Plan.
During the term of this Plan, the Company will at all times reserve and
keep available the number of shares of Common Stock that shall be sufficient to
satisfy the requirements of this Plan.
ARTICLE 6
OPTION PRICE
The Option Price for any share of Common Stock which may be purchased
under a Stock Option shall be One Hundred Percent (100%) of the Fair Market
Value of the share on the Date of Grant.
ARTICLE 7
OPTION PERIOD; FORFEITURE
No Stock Option granted under the Plan may be exercised at any time
after the end of its Option Period.
The Option Period for each Stock Option will terminate on the first of
the following to occur:
(a) 5 p.m. on the seventh anniversary of the Date of Grant;
(b) 5 p.m. on the date which is one (1) year following the
Participant's Termination of Service as a Director due to death or
Total and Permanent Disability;
(c) 5 p.m. on the date that is two (2) years following the
Participant's Termination of Service as a Director due to Retirement;
provided that any installment not vested and exercisable on the
Participant's Retirement shall terminate and be forfeited on such date;
or
(d) 5 p.m. on the date that is thirty (30) days after any
other Termination of Service as a Director; provided that any
installment not vested and exercisable on the date of such Termination
of Service as a Director shall terminate and be forfeited on such date.
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ARTICLE 8
EXERCISE OF OPTION
Stock Options may be exercised during the Option Period. Stock Options
may be exercised at such times and in such amounts as provided in this Plan and
the applicable Stock Option Agreements, subject to the terms, conditions, and
restrictions of the Plan.
In no event may a Stock Option be exercised or shares of Common Stock
be issued pursuant to a Stock Option if a necessary listing of the shares on a
stock exchange or any registration under state or federal securities laws
required under the circumstances has not been accomplished. No Stock Option may
be exercised for a fractional share of Stock. The granting of a Stock Option
shall impose no obligation upon the Participant to exercise that Stock Option.
Subject to such administrative regulations as the Committee may from
time to time adopt, a Stock Option may be exercised by the delivery of written
notice to the Committee setting forth the number of shares of Common Stock with
respect to which the Stock Option is to be exercised and the date of exercise
thereof (the "Exercise Date") which shall be at least three (3) days after
giving such notice unless an earlier time shall have been mutually agreed upon.
On the Exercise Date, the Participant shall deliver to the Company consideration
with a value equal to the total Option Price of the shares of Common Stock to be
purchased, payable as follows: (a) cash, check, bank draft, or money order
payable to the order of the Company, (b) Common Stock owned by the Participant
on the Exercise Date, valued at its Fair Market Value on the Exercise Date, (c)
by delivery (including by FAX) to the Company or its designated agent of an
executed irrevocable option exercise form together with irrevocable instructions
from the Participant to a broker or dealer, reasonably acceptable to the
Company, to sell certain of the shares of Common Stock purchased upon exercise
of the Stock Option or to pledge such shares as collateral for a loan and
promptly deliver to the Company the amount of sale or loan proceeds necessary to
pay such purchase price, and/or (d) any other form of consideration that is
acceptable to the Committee in its sole discretion.
Upon payment of all amounts due from the Participant, the Company shall
cause certificates for the Common Stock then being purchased to be delivered to
the Participant (or the person exercising the Participant's Stock Option in the
event of his death) at its principal business office promptly after the Exercise
Date. The obligation of the Company to deliver shares of Common Stock shall,
however, be subject to the condition that if at any time the Committee shall
determine in its discretion that the listing, registration, or qualification of
the Stock Option or the Common Stock upon any securities exchange or under any
state or federal law, or the consent or approval of any governmental regulatory
body, is necessary or desirable as a condition of, or in connection with, the
Stock Option or the issuance or purchase of shares of Common Stock thereunder,
the Stock Option may not be exercised in whole or in part unless such listing,
registration, qualification, consent, or approval shall have been effected or
obtained free of any conditions not acceptable to the Committee.
If the Participant fails to pay for any of the Common Stock specified
in such notice or fails to accept delivery thereof, the Participant's right to
purchase such Common Stock may be terminated by the Company.
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ARTICLE 9
AMENDMENT OR DISCONTINUANCE
Subject to the limitations set forth in this ARTICLE 9, the Board may
at any time and from time to time, without the consent of the Participants,
suspend or discontinue the Plan in whole or in part. The Board may amend the
Plan at any time and for any reason without stockholder approval; provided,
however, that the Board may condition any amendment on the approval of
stockholders of the Company if such approval is necessary or deemed advisable
with respect to tax, securities or other applicable laws, policies and
regulations.
Subject to the forgoing, any such amendment shall, to the extent deemed
necessary or advisable by the Committee, be applicable to any outstanding Stock
Options theretofore granted under the Plan, notwithstanding any contrary
provisions contained in any Stock Option Agreement. In the event of any such
amendments to the Plan, the holder of any Stock Option outstanding under the
Plan shall, upon request of the Committee and as a condition to the
exercisability thereof, execute a conforming amendment in the form prescribed by
the Committee to any Stock Option Agreement relating thereto within such
reasonable time as the Committee shall specify in such request. Notwithstanding
anything contained in this Plan to the contrary, unless required by law, no
action contemplated or permitted by this ARTICLE 9 shall adversely affect any
rights of Participants or obligations of the Company to Participants with
respect to any Stock Options theretofore granted under the Plan without the
consent of the affected Participant.
ARTICLE 10
STOCKHOLDER APPROVAL; TERM
Anything in the Plan to the contrary notwithstanding, the effectiveness
of the Plan and of the grant of all Stock Options hereunder is in all respects
subject to the approval of the Plan by the affirmative vote of the holders of a
majority of the shares of the Common Stock present in person or by proxy and
entitled to vote at a meeting of stockholders at which the Plan is presented for
approval. Stock Options may be granted under the Plan prior to the time of
stockholder approval. Any such Stock Options granted prior to such stockholder
approval shall be subject to such stockholder approval. Unless sooner terminated
by action of the Board, the Plan will terminate on January 31, 2010, but Stock
Options granted before such date will continue to be effective in accordance
with their terms and conditions.
ARTICLE 11
CAPITAL ADJUSTMENTS
If at any time while the Plan is in effect or unexercised Stock Options
are outstanding there shall be any increase or decrease in the number of issued
and outstanding shares of Common Stock resulting from (1) the declaration or
payment of a stock dividend, (2) any recapitalization resulting in a stock
split-up, combination, or exchange of shares of Common Stock, or (3) other
increase or decrease in such shares of Common Stock effected without receipt of
consideration by the Company, then and in such event:
(i) An appropriate adjustment shall be made in the maximum
number of shares of Common Stock then subject to being issued under the
Plan, to the end that the same proportion of the Company's issued and
outstanding shares of Common Stock shall continue to be subject to
being so issued.
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(ii) Appropriate adjustments shall be made in the number of
shares of Common Stock subject to purchase pursuant to Stock Options to
be granted under ARTICLE 4 of the Plan, to the end that Stock Options
to purchase the same proportion of the Company's issued and outstanding
shares of Common Stock shall be granted under ARTICLE 4.
(iii) Appropriate adjustments shall be made in the number of
shares of Common Stock and the Option Price thereof then subject to
purchase pursuant to each such Stock Option previously granted and
unexercised, to the end that the same proportion of the Company's
issued and outstanding shares of Common Stock in each such instance
shall remain subject to purchase at the same aggregate Option Price.
Except as otherwise expressly provided herein, the issuance by the
Company of shares of its capital stock of any class, or securities convertible
into shares of capital stock of any class, either in connection with direct sale
or upon the exercise of rights or warrants to subscribe therefor, or upon
conversion of shares or obligations of the Company convertible into such shares
or other securities, shall not affect, and no adjustment by reason thereof shall
be made with respect to, the number of or Option Price of shares of Common Stock
then subject to outstanding Stock Options granted under the Plan.
Upon the occurrence of each event requiring an adjustment with respect
to any Stock Option, the Company shall mail to each Participant its computation
of such adjustment which shall be conclusive and shall be binding upon each such
Participant.
ARTICLE 12
RECAPITALIZATION, MERGER AND CONSOLIDATION
12.1 General. The existence of this Plan and Stock Options granted
hereunder shall not affect in any way the right or power of the Company or its
stockholders to make or authorize any or all adjustments, recapitalizations,
reorganizations, or other changes in the Company's capital structure and its
business, or any merger or consolidation of the Company, or any issue of bonds,
debentures, preferred or preference stocks ranking prior to or otherwise
affecting the Common Stock or the rights thereof (or any rights, options, or
warrants to purchase same), or the dissolution or liquidation of the Company, or
any sale or transfer of all or any part of its assets or business, or any other
corporate act or proceeding, whether of a similar character or otherwise.
12.2 Adjustment; Company Survives. Subject to any required action by
the stockholders, if the Company shall be the surviving or resulting corporation
in any merger, consolidation or share exchange, any Stock Option granted
hereunder shall pertain to and apply to the securities or rights (including
cash, property, or assets) to which a holder of the number of shares of Common
Stock subject to the Stock Option would have been entitled.
12.3 Adjustment; Company Does Not Survive. In the event of any
reorganization, merger, consolidation or share exchange pursuant to which the
Company is not the surviving or resulting corporation, there shall be
substituted for each share of Common Stock subject to the unexercised portions
of such outstanding Stock Options that number of shares of each class of stock
or other securities or that amount of cash, property or assets of the surviving,
resulting or consolidated company which were distributed or are to be
distributed to the stockholders of the Company in respect of each share of
Common Stock held by them, such outstanding Stock Options to be thereafter
exercisable for such stock, securities, cash or property in accordance with
their terms. Notwithstanding the foregoing, however, the Committee, in its sole
discretion, may cancel all such Stock Options as of the effective date of any
such reorganization, merger, consolidation, share exchange or of any dissolution
or liquidation of the Company
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by giving notice to each holder thereof or his personal representative of its
intention to do so and by permitting the purchase, during the thirty (30) day
period next preceding such effective date, of all of the shares of Common Stock
subject to such outstanding Stock Options.
12.4 Notice of Adjustment. Upon the occurrence of each event requiring
an adjustment of the Option Price or the number of shares of Common Stock
purchasable pursuant to Stock Options granted pursuant to the terms of this
Plan, the Company shall mail to each Participant its computation of such
adjustment, which shall be conclusive and shall be binding upon each such
Participant.
ARTICLE 13
LIQUIDATION OR DISSOLUTION
In case the Company shall, at any time while any Stock Option under
this Plan shall be in force and remain unexpired, (i) sell all or substantially
all of its property, or (ii) dissolve, liquidate, or wind up its affairs, then
each Participant may thereafter receive upon exercise hereof (in lieu of each
share of Common Stock of the Company which such Participant would have been
entitled to receive) the same kind and amount of any securities or assets as may
be issuable, distributable, or payable upon any such sale, dissolution,
liquidation, or winding up with respect to each share of Common Stock of the
Company. If the Company shall, at any time prior to the expiration of any Stock
Option, make any partial distribution of its assets, in the nature of a partial
liquidation, whether payable in cash or in kind (but excluding the distribution
of a cash dividend payable out of earned surplus and designated as such) then in
such event the Option Prices then in effect with respect to each Stock Option
shall be reduced, on the payment date of such distribution, in proportion to the
percentage reduction in the tangible book value of the shares of the Company's
Common Stock (determined in accordance with generally accepted accounting
principles) resulting by reason of such distribution.
ARTICLE 14
MISCELLANEOUS PROVISIONS
14.1 Assignability. No Stock Option granted under this Plan shall be
assignable or otherwise transferable by the Participant (or his or her
authorized legal representative) during the Participant's lifetime and, after
the death of the Participant, other than by will or the laws of descent and
distribution or as provided below in this ARTICLE 14. All or a portion of a
Stock Option granted to a Participant may be assigned by such Participant to (i)
the spouse, children or grandchildren of the Participant ("Immediate Family
Members"), (ii) a trust or trusts for the exclusive benefit of such Immediate
Family Members, or (iii) a partnership in which such Immediate Family Members
are the only partners, (iv) an entity exempt from federal income tax pursuant to
Section 501(c)(3) of the Code or any successor provision, or (v) a split
interest trust or pooled income fund described in Section 2522(c)(2) of the Code
or any successor provision, provided that (x) there shall be no consideration
for any such transfer, and (y) subsequent transfers of transferred Stock Options
shall be prohibited except those by will or the laws of descent and
distribution. Following transfer, any such Stock Option shall continue to be
subject to the same terms and conditions as were applicable immediately prior to
transfer, provided that for purposes of Articles 8, 9, 11, 12, 13 and 14 hereof
the term "Participant" shall be deemed to include the transferee. The events of
Termination of Service shall continue to be applied with respect to the original
Participant, following which the Stock Options shall be exercisable by the
transferee only to the extent and for the periods specified in the Plan and the
Stock Option Agreement. The Committee and the Company shall have no obligation
to inform any transferee of a Stock Option of any expiration, termination, lapse
or acceleration of such Option. The Company shall have no obligation to register
with any federal or state securities
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commission or agency any Common Stock issuable or issued under a Stock Option
that has been transferred by a Participant under this Section 14.1.
14.2 Investment Intent. The Company may require that there be presented
to and filed with it by any Participant(s) under the Plan, such evidence as it
may deem necessary to establish that the Stock Options granted or the shares of
Common Stock to be purchased or transferred are being acquired for investment
purposes and not with a view to their distribution.
14.3 No Employment Relationship. Each Participant is not an Employee of
the Company. Nothing herein shall be construed to create an employer-employee
relationship between the Company and the Participant.
14.4 Stockholders' Rights. The holder of a Stock Option shall have none
of the rights or privileges of a stockholder except with respect to shares which
have been actually issued.
14.5 Effect of the Plan. Neither the adoption of this Plan nor any
action of the Board or the Committee shall be deemed to give any person any
right to be granted a Stock Option to purchase Common Stock of the Company or
any other rights except as may be evidenced by a Stock Option Agreement, or any
amendment thereto, duly authorized by the Committee and executed on behalf of
the Company, and then only to the extent and upon the terms and conditions
expressly set forth therein.
14.6 Indemnification of Board and Committee. No current or previous
member of the Board or the Committee, nor any officer or employee of the Company
acting on behalf of the Board or the Committee, shall be personally liable for
any action, determination, or interpretation taken or made in good faith with
respect to the Plan, and all such members of the Board and the Committee and
each and any officer or employee of the Company acting on their behalf shall, to
the extent permitted by law, be fully indemnified and protected by the Company
in respect of any such action, determination or interpretation. The foregoing
right of indemnification shall not be exclusive of any other rights of
indemnification to which such individuals may be entitled under the Company's
Certificate of Incorporation or Bylaws, by contract, as a matter of law, or
otherwise.
14.7 Restrictions. This Plan, and the granting and exercise of Stock
Options hereunder, and the obligation of the Company to sell and deliver Common
Stock under such Stock Options, shall be subject to all applicable foreign and
United States laws, rules and regulations, and to such approvals on the part of
any governmental agencies or stock exchanges or transaction reporting systems as
may be required. No Common Stock or other form of payment shall be issued with
respect to any Stock Option unless the Company shall be satisfied based on the
advice of its counsel that such issuance will be in compliance with applicable
federal and state securities laws and the requirements of any regulatory
authority having jurisdiction over the securities of the Company. Unless the
Stock Options and Common Stock covered by this Plan have been registered under
the Securities Act of 1933, as amended, each person exercising a Stock Option
under this Plan may be required by the Company to give a representation in
writing in form and substance satisfactory to the Company to the effect that he
is acquiring such shares for his own account for investment and not with a view
to, or for sale in connection with, the distribution of such shares or any part
thereof. If any provision of this Plan is found not to be in compliance with
such rules, such provision shall be null and void to the extent required to
permit this Plan to comply with such rules. Certificates evidencing shares of
Common Stock delivered under this Plan may be subject to such stop transfer
orders and other restrictions as the Committee may deem advisable under the
rules, regulations and other requirements of the Securities and Exchange
Commission, any securities exchange or transaction reporting system upon which
the Common Stock is then listed or quoted, and any applicable federal, foreign
and state securities law. The Committee may cause a legend or legends to be
placed upon any such certificates to make appropriate reference to such
restrictions.
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14.8 Gender and Number. Where the context permits, words in the
masculine gender shall include the feminine and neuter genders, the plural form
of a word shall include the singular form, and the singular form of a word shall
include the plural form.
14.9 Tax Requirements. The Company shall have the right to deduct from
all amounts hereunder paid in cash or other form, any Federal, state, or local
taxes required by law to be withheld with respect to such payments. The
Participant receiving shares of Common Stock issued upon exercise of Stock
Options granted under the Plan shall be required to pay the Company the amount
of any taxes which the Company is required to withhold with respect to such
shares of Common Stock. Such payments shall be required to be made prior to the
delivery of any certificate representing such shares of Common Stock. Such
payment may be made in cash, by check or through the delivery of shares of
Common Stock owned by the Participant (which may be effected by the actual
delivery of shares of Common Stock by the Participant or by the Company's
withholding a number of shares to be issued upon the exercise of a Stock Option,
if applicable), which shares have an aggregate Fair Market Value equal to the
required minimum withholding payment, or any combination thereof.
14.10 Use of Proceeds. Proceeds from the sale of shares of Common Stock
pursuant to Stock Options granted under this Plan shall constitute general funds
of the Company.
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