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EXHIBIT 10.2.2
TCC INDUSTRIES, INC.
1995 NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
(Which Amends and Restates the 1985 Non-Employee Directors Stock Option Plan)
BACKGROUND:
As of July 23, 1985 TCC Industries, Inc., a Texas corporation formerly
named TeleCom Corporation (the "Corporation"), adopted that certain 1985
Non-Employee Directors Stock Option Plan, which plan was amended August 20,
1985 and May 6, 1987 (said plan, as so amended, being referred to herein as the
"Original Plan"). Under the Original Plan, options could be granted for the
purchase of an aggregate of 50,000 shares of Common Stock ("Common Stock") of
the Corporation. As of August 2, 1995, stock options were outstanding under
the Original Plan to Non-Employee Directors of the Corporation for the purchase
of an aggregate 16,500 shares of Common Stock. On August 2, 1995, the Board of
Directors of the Corporation approved an amendment and restatement of the
Original Plan, as set forth below. On February 28, 1996, the Board of
Directors approved a reduction in the number of shares of Common Stock that may
be issued pursuant to Options granted and to be granted under the Plan, from
100,000 to 75,000 shares. Such reduction is reflected below. The amendment
and restatement of the Original Plan, set forth below, shall be referred to
hereafter as the 1995 Non-Employee Directors Stock Option Plan and referred to
herein as the "Plan." Capitalized words and phrases used in this Plan, and not
otherwise defined herein, have the meanings stated in Section 17 below.
1. STATEMENT OF PURPOSE. The principal purpose of this Plan
is to benefit the Corporation through offering its directors who are not
employees or officers (each a "Non-Employee Director") of the Corporation or
its subsidiaries, a favorable opportunity to become holders of the Common
Stock, thereby giving them a stake in the growth and prosperity of the
Corporation, in order to align more fully their viewpoints with the other
stockholders of the Corporation and to encourage them to continue serving as
directors of the Corporation.
2. ELIGIBILITY. Options shall be granted under this Plan only
to Non-Employee Directors.
3. TOTAL SHARES SUBJECT TO PLAN. Options may be granted for a
total of 75,000 shares of Common Stock, of which Options for a total of 16,500
such shares remain outstanding under the Original Plan as of August 2, 1995, as
described on Schedule 1 attached hereto. The Corporation shall reserve
sufficient shares to meet the Plan's requirements. Shares issued upon an
Option exercise may be authorized and unissued shares or shares held in the
Corporation's treasury. If an outstanding Option expires or terminates, shares
allocable to the unexercised portion of the Option may be optioned again under
the Plan.
4. PLAN ADMINISTRATION. The Committee will administer this
Plan. The Committee will interpret and construe the Plan and the terms of any
Option and will make all
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other decisions necessary or advisable for administering the Plan.
5. OPTION GRANTS. (a) Each person eligible to receive an Option
pursuant to the terms of Section 2 hereof who is first elected to the Board of
Directors after adoption of this Plan, and who is a Non-Employee Director on
the date of such election, will receive an Option for the purchase of 4,000
shares of Common Stock. On the date that each Non-Employee Director completes
two full years of service as a Non-Employee Director, such person will receive,
automatically and without the exercise of discretion on the part of any person,
an Option (in addition to any Options which have may been granted to such
person under the Original Plan or otherwise pursuant to this Plan) for the
purchase of 2,000 shares of Common Stock, and on the date that such person
completes four full years of service as a Non-Employee Director, such person
will receive, automatically and without the exercise of discretion on the part
of any person, an Option (in addition to any Options which may have been
granted to such person under the Original Plan or otherwise pursuant to this
Plan) for the purchase of an additional 2,000 shares of Common Stock, and
thereafter, such Non-Employee Director will not be eligible to receive any
further or additional grants or awards of Options under this Plan, regardless
of whether such Non-Employee Director exercises in whole or in part the Option
or Options representing the original grant, except that upon expiration of an
Option (each an "Expired Option") the exercise price under which exceeds the
fair market value (as determined in Section 5(b) below) of the Common Stock on
the expiration date thereof, without such Expired Option having been exercised
in its entirety, and subject to the limitations of Section 5(c) below, such
Optionee shall be automatically granted a new Option (each a "New Option") for
the purchase of such number of shares of Common Stock as shall equal the number
of shares remaining unexercised under and upon expiration of such Expired
Option, and the exercise price for such shares underlying the New Option will
be the fair market value of the Common Stock as of the date of grant of the New
Option, as determined in Section 5(b) immediately below.
(b) Subject to adjustment under Section 10, the option price
shall be the fair market value of the Common Stock at the time the option is
granted, as determined by the average closing price of the Common Stock for the
seven trading days immediately preceding the date of such grant on any exchange
or dealer market that serves as the primary trading market for the Common Stock
at such time.
(c) An Option may not be granted after August 1, 2005. An
Option must be exercised within 10 years after the date the Option is granted.
(d) Except as provided below, the right of the Optionee to
purchase shares of Stock under each Option shall accrue and vest in five equal
annual installments beginning on the first anniversary of the date of the grant
of such Option.
(e) Options granted under the Plan are intended not to be
treated as incentive stock options as defined in Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code").
6. NON-TRANSFERABILITY OF OPTION. During the lifetime of the
Optionee, Options shall be exercisable only by the Optionee and Options
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shall not be assignable or transferable by the Optionee other than by will or
by the laws of descent and distribution, or pursuant to a qualified domestic
relations order as defined by (a) the Code or (b) Title I of the Employee
Retirement Income Security Act of 1974, as amended, or the rules thereunder.
7. EXERCISE AND PAYMENT. An Option may be exercised from time to
time during the term of the Option as to any or all full shares which have
vested under the Option, subject to compliance with the terms of the agreement
evidencing the Option. Exercise of an Option will not be effective until the
Corporation has received written notice of the exercise, specifying the whole
number of shares to be purchased, accompanied by payment in full of the
aggregate price of the Common Stock purchased. Fractional shares will not be
issued or sold. The purchase price of Common Stock for which an Option is
exercised must be paid to the Corporation in full at the time of exercise.
Payment must be in the form of cash or a certified or cashier's check. Within a
reasonable time after payment is received, the Corporation will issue and
deliver to Optionee a certificate representing the Common Stock purchased.
8. TERMINATION -- EXERCISE THEREAFTER. (a) In the event an
Optionee ceases to be a director of the Corporation for any reason other than
death or permanent disability, the Optionee may exercise the outstanding
portion of his or her Option at any time within one month after such
termination to the extent Optionee's right to exercise has vested; provided
that if, having ceased to be a director, such Optionee immediately becomes an
employee or consultant of the Corporation or a subsidiary of the Corporation,
termination for purposes of this sentence shall be deemed to occur when such
Optionee ceases to be an employee or consultant. Notwithstanding the
foregoing, if Optionee is removed from his or her position as a director for
dishonesty or other acts detrimental to the interests of the Corporation or an
Affiliate, all Options granted to Optionee will automatically be void and not
exercisable immediately upon the occurrence of such termination.
(b) In the event of the death or permanent disability (as that term
is defined in Section 22(e)(3) of the Code, as now in effect or as it shall be
subsequently amended) of an Optionee, an Option may be exercised by such
Optionee or, if he or she is not living, by his or her heirs, legatees, or
legal representative, as the case may be, during its specified term prior to
one year after the date of death or permanent disability, but only to the
extent the Option was exercisable at the date of death or permanent disability.
9. LIMITED RIGHTS. An Optionee will not have any rights as a
shareholder regarding any Option shares before the date when the Corporation
issues Optionee a certificate for such shares. No adjustment will be made for
dividends or distributions or other rights for which the record date occurs
before the certificate is issued. Nothing contained in the Plan or in any
option granted pursuant thereto shall, in itself, confer upon any Optionee any
right to continue serving as a director of the Corporation or interfere in any
way with any right of the Board of Directors or stockholders of the
Corporation, pursuant to the Articles of Incorporation or Bylaws of the
Corporation or applicable law, to remove such director.
10. CERTAIN ADJUSTMENTS. (a) In the event that the Corporation
shall hereafter at
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any time change as a whole, by split-up, subdivision or combination in any
manner or by the making of a stock dividend, the number of shares of Common
Stock into a different number of shares of Common Stock, (i) both (A) the
aggregate number of shares of Common Stock subject to this Plan as specified in
Paragraph 3 hereinabove, and (B) the number of shares of Common Stock which
immediately prior to such change the holders of Options shall have been
entitled to purchase, shall be increased or decreased in direct proportion to
the increase or decrease, respectively, in the number of shares of Common Stock
outstanding immediately prior to such change, and (ii) the Option Price per
share applicable to such Option shall be increased or decreased as the case may
be, in inverse proportion to such increase or decrease in the number of shares
of Common Stock outstanding immediately prior to such change.
(b) A dissolution or liquidation of the Corporation, a merger or
consolidation in which the Corporation is not the surviving corporation, or a
transaction in which another corporation or other entity or person becomes the
owner of 80% or more of the total combined voting power of all classes of stock
of the Corporation will cause every Option then outstanding to fully vest, and
in such event, the Optionee holding each then outstanding Option will have a
right, exercisable within a period of 30 days immediately prior to the closing
of such dissolution, liquidation, merger, consolidation, or transaction, to
exercise such Option in full or in part.
11. DUTY TO FURNISH INFORMATION. Each Optionee must furnish to
the Corporation all information requested by the Corporation to enable it to
comply with any reporting or other requirement imposed upon the Corporation
under any applicable statute or regulation.
12. COMPLIANCE WITH SECURITIES LAWS. An Option may not be
exercised in whole or in part unless (i) a registration statement under the
Securities Act is filed and effective for shares subject to the Option, and
exercise of the Option and issuance of shares thereunder are qualified under
any applicable state securities or Blue Sky laws; or (ii) exercise of the
Option and issuance of shares thereunder without Securities Act registration or
state law qualification is otherwise permissible, and the Corporation receives
an opinion of counsel acceptable to the Corporation to that effect. A
certificate for shares issued upon exercise of an Option which have not been
registered under the Securities Act or qualified under applicable state
securities or Blue Sky laws must bear the following legend:
"The Securities represented by this instrument have been acquired for
investment and have not been registered under the federal Securities
Act of 1933, as amended, or the securities laws of any state. Without
such registration, such securities may not be sold, pledged,
hypothecated or otherwise transferred, except upon delivery to the
Corporation of an opinion of counsel satisfactory to the Corporation
that registration is not required for such transfer or the submission
to the Corporation of such other evidence as may be satisfactory to
the Corporation to the effect that any such transfer shall not be in
violation of the Securities Act of 1933, as amended, or applicable
state securities laws or any rule or regulation promulgated
thereunder."
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13. AMENDMENT OR DISCONTINUANCE OF PLAN. The Board of Directors
may amend or discontinue the Plan at any time; provided, however:
(a) that no amendment or discontinuance shall change or impair any
Options previously granted without the consent of the Optionee;
(b) that no amendment shall, without the affirmative vote of the
holders of a majority of the shares of all classes of stock of the Corporation
voting in person or by proxy, and entitled to vote at a duly held stockholders
meeting, or without the written consent of the holders of a majority of the
shares of all classes of stock entitled to vote, (i) materially increase the
benefits accruing to participants under the Plan, (ii) materially increase the
number of securities which may be issued under the Plan, or (iii) materially
modify the requirements as to eligibility for participation in the Plan;
(c) that the provisions of the Plan relating to the amount and price
of securities to be issued under the Plan, or the timing of such issuances,
shall not be amended more than once every six months, other than to comply with
changes in the Code, the Employee Retirement Income Security Act of 1974, as
amended, or the rules thereunder.
14. EFFECTIVE DATE. This Plan has been adopted and authorized by
the Board of Directors for submission to the stockholders of the Corporation.
If this Plan is approved by the affirmative vote of the holders of a majority
of the voting stock of the Corporation voting in person or by proxy at a duly
held stockholders' meeting it shall be deemed to have become effective on
August 2, 1995, the date of adoption by the Board of Directors. Options may be
granted under this Plan prior, but subject, to the approval of this Plan by
stockholders of the Corporation and, in each such case, the date of grant shall
be determined without reference to the date of approval of this Plan by the
stockholders of the Corporation. Notwithstanding any other provision of this
Plan to the contrary, no Option granted hereunder shall be exercisable prior to
the date on which this Plan is approved by the stockholders as herein
contemplated. Notwithstanding the foregoing, nothing herein affects the rights
of Optionees under Options granted under the Original Plan.
15. HOLDING PERIOD. Anything contained in the Plan to the
contrary notwithstanding, any disposition of an Option otherwise permitted by
the terms of the Plan, or of the Common Stock acquired upon exercise of an
Option, shall be subject to compliance with the requirements of paragraph
(c)(1) of Rule 16b-3 promulgated under the Securities Exchange Act of 1934, as
amended, applicable to such disposition, and any date, period or procedure
specified or referred to in the Plan with respect to any such disposition,
shall be adjusted, if necessary, so as to give effect to this Section 15.
16. OPTION AGREEMENT. Each Option must be evidenced by a written
agreement, substantially in the form attached hereto as Exhibit A, signed by
the Optionee and by an authorized officer of the Corporation. Terms of the
agreement must conform to the Plan, state the Option price and specify the
period for which the Option is granted. The agreement may contain such other
terms consistent with the provisions of the Plan as the Committee may deem
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appropriate.
17. DEFINITIONS. As used in this Plan, the words and phrases
below have the following meanings, and the following rules apply:
(a) AFFILIATE - a Parent or Subsidiary.
(b) BOARD - the Board of Directors of the Corporation.
(c) COMMITTEE - The Committee appointed by the Board. The
Board may fill vacancies on the Committee and from time to time may remove
members from or add members to the Committee. The Committee will select one of
its members as Chairman and will hold meetings when and where it determines. A
majority of Committee members will constitute a quorum for a Committee meeting.
A majority vote of the Committee at which a quorum is present, or decisions
reduced to writing and signed by a majority of the Committee membership, will
be valid acts of the Committee. If a Committee is not appointed, or the Board
in its discretion so chooses, the Board may act as the Committee and may
exercise all powers and fulfill all duties of the Committee. No Board or
Committee member will be liable for any action or decision made in good faith
concerning the Plan or any Option.
(d) COMMON STOCK - The Common Stock, $1.00 par value per
share, of the Corporation, or any other class of common stock of the
Corporation hereafter issued in exchange or in substitution thereof which has
dividend and voting rights no less favorable than the voting power and dividend
rights of presently outstanding common stock of the Corporation, provided all
shares reserved for sale under the Plan will be free of preemptive rights of
shareholders of the Corporation.
(e) CORPORATION - TCC Industries, Inc., a Texas
corporation.
(f) EMPLOYEE - any person employed by the Corporation or
an Affiliate of the Corporation.
(g) NON-EMPLOYEE DIRECTOR - As defined in Section 1.
(h) OPTION - an Option granted under this Plan.
(i) OPTIONEE - the holder of an unexpired Option which
has not been exercised in full. This term includes the executor or
administrator of the holder's estate, or any person who inherited all or part
of the Option, and who may validly exercise the Option under Section 8(b).
(j) PARENT - any corporation which qualifies at the time
of an Option grant as a parent in an unbroken chain of corporations ending with
the Corporation, determined by using the definition of "parent corporation"
contained in Section 425(e) of the Code or any
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substantially similar provision later enacted.
(k) PLAN - the 1995 Non-Employee Directors Stock Option
Plan (which amends and restates the 1985 Non-Employee Directors Stock Option
Plan of the Corporation), as set forth in this document and including any
subsequent amendments approved by the Board of Directors or by the shareholders
of the Corporation.
(l) SECURITIES ACT - the federal Securities Act of 1933,
48 Stat. 74, as amended.
(m) SECURITIES EXCHANGE ACT - the federal Securities
Exchange Act of 1934, 48 Stat. 881, as amended.
(n) SUBSIDIARY - any corporation which qualifies at the
time of an Option grant as a subsidiary in an unbroken chain of corporations
beginning with the Corporation, determined by using the definition of
"subsidiary corporation" contained in Section 425(f) of the Code or
any substantially similar provision later enacted.
APPROVED by the Board of Directors by duly adopted resolution on August 2,
1995.
RATIFIED AND APPROVED by the Shareholders of the Corporation by duly
adopted resolution on ___________________ , 1996.
_____________________________
Secretary
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SCHEDULE 1
DATE OF OPTION PRICE NO. OF UNEXERCISED
OPTION NO. OPTIONEE GRANT PER SHARE SHARES OPTIONS
- ---------- --------------------------------------- -------- ------------ ------ -----------
1. William Callahan....................... 8/20/85 $3.125 4,000 4,000
4. Ed R.L. Wroe, Jr....................... 8/20/85 $3.125 4,000 4,000
8. William Callahan....................... 5/06/87 $1.875 4,000 4,000
10. Ed R.L. Wroe, Jr....................... 5/06/87 $1.875 4,000 500
18. Frank W. Denius........................ 11/03/93 $3.50 4,000 4,000
------ ------
Total 20,000 16,500