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EXHIBIT 10.8
KERR GROUP, INC.
AMENDED AND RESTATED
1993 EMPLOYEE STOCK OPTION PLAN
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ARTICLE I
PURPOSE
The Kerr Group, Inc. ("Company") 1993 Employee Stock Option Plan
(the "Old Plan") became effective on April 27, 1993 (the "Effective Date")
when the Old Plan was approved by a majority of the Company's stockholders.
On and effective February 28, 1995, the Board of Directors of the Company (the
"Board") amended and restated (subject to shareholder approval as set forth in
Article XIX) the Old Plan in the form of The Kerr Group, Inc. Amended and
Restated 1993 Employee Stock Option Plan (the "Plan"). The purpose of the
1995 amendment and restatement is to (i) increase the number of shares of
common stock of the Company, par value $.50 per share ("Common Stock") which
may be purchased hereunder and (ii) add provisions ensuring that Section
162(m) of the Internal Revenue Code of 1986, as amended (the "Code"), does not
limit tax
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deductions otherwise available to the Company on account of the exercise of
options granted hereunder.
The Plan is intended as an incentive and to encourage stock
ownership by key employees of the Company and of its subsidiaries in order to
increase their proprietary interest in the Company's success and to encourage
them to remain in the employ of the Company.
The word "Company" when used in the Plan with reference to
employment shall include any subsidiaries of the Company.
ARTICLE II
ADMINISTRATION
The Plan shall be administered by a Stock Option and Compensation
Committee (the "Committee") appointed by the Board from among its members and
shall consist of not less than three members thereof, each of whom must be
both a "disinterested person" within the meaning of Rule 16b-3(a)(2)(i)
promulgated under the Securities Exchange Act of 1934 (the "Exchange Act") and
an "outside director" within the meaning of Section 162(m) of the Code.
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Subject to the provisions of the Plan, the Committee shall have sole
authority, in its absolute discretion: (a) to determine which of the eligible
employees of the Company and its subsidiaries shall be granted options; (b) to
determine whether the options granted shall be "incentive stock options"
within the meaning of Section 422(b) of the Code, nonstatutory stock options
or any combination thereof; (c) to determine the times when options shall be
granted and the number of shares to be optioned; (d) to determine the purchase
price for the shares underlying the options granted ("Option Shares"); (e) to
determine the time or times when each option becomes exercisable and the
duration of the exercise period; (f) to prescribe the form or forms of the
option agreements under the Plan which forms shall be consistent with the Plan
but need not be identical to it; (g) to adopt, amend and rescind such rules
and regulations as, in its opinion, may be advisable in the administration of
the Plan; and (h) to construe and interpret the Plan, the rules and
regulations and the option agreements under the Plan and to make all other
determinations deemed necessary or advisable for the administration of the
Plan. All decisions,
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determinations and interpretations of the Committee shall be final and binding
on all optionees.
The Committee shall hold its meetings at such times and places as it
may determine, with a majority of the Committee constituting a quorum. Any
action which the Committee has the power to take at a meeting may be taken by
the Committee without a meeting if all of the members of the Committee give
their consent to such action in writing.
ARTICLE III
STOCK
The Option Shares shall be shares of authorized but unissued Common
Stock or previously issued shares of Common Stock reacquired by the Company.
Under the Plan the total number of Option Shares which may be purchased
pursuant to options granted hereunder shall not exceed in the aggregate
280,000 except as such number of shares shall be adjusted in accordance with
the provisions of ARTICLE IX hereof. No person may be granted options under
the Plan covering more than 200,000 Option Shares over the life of the Plan.
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In the event that any outstanding option under the Plan expires for
any reason or is terminated prior to the end of the period during which
options may be granted, the unexercised portion of such option may again be
granted pursuant to the Plan.
ARTICLE IV
ELIGIBILITY OF PARTICIPANTS
Officers and other key employees of the Company or of its
subsidiaries (including employees who are also Directors of the Company or the
Company's subsidiaries excluding persons who are members of the Committee)
shall be eligible to participate in the Plan.
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ARTICLE V
OPTION PRICE
Options shall be exercisable at prices (the "Option Price")
specified in the option agreements.
ARTICLE VI
EXERCISE AND TERM OF OPTIONS
The exercise of options may be limited in whole or in part for any
period or periods of time as specified in the option agreements. Except as
may be so specified, any option may be exercised in whole at any time or in
part from time to time during the option period. Notwithstanding the above,
(i) no option granted hereunder to a person subject to the restrictions of
Section 16(b) of the Exchange Act shall be exercisable before the date six
months following the date of grant of such option and (ii) this Article VI is
subject to the provisions of Article XIX.
All stock options granted hereunder shall terminate concurrently
with the termination of the optionee's employment if the Company terminates
the employment for cause or if the optionee resigns.
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Any other provision of the Plan notwithstanding, no option shall be
exercised after the date ten years from the date of grant of such option.
ARTICLE VII
PAYMENT OF SHARES
Payment for Option Shares shall be made in full upon exercise of the
option.
ARTICLE VIII
NON-TRANSFERABILITY OF OPTION
No option shall be transferable except by will or the laws of
descent and distribution. During the lifetime of the optionee, the option
shall be exercisable only by the optionee.
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ARTICLE IX
ADJUSTMENT FOR RECAPITALIZATION, MERGER, ETC.
If there is any stock dividend, split-up or combination of shares of
Common Stock or any other change in Common Stock, whether by way of exchange,
offering of subscription rights, recapitalization or otherwise, an adjustment
shall be made in the number of Option Shares in respect of which options may
be granted hereunder, the number of Option Shares to which each outstanding
option relates and the Option Price to be as the Committee, in its sole
discretion, may deem equitable.
Subject to any required action by the stockholders, if the Company
shall be the surviving corporation in any merger or consolidation, the holder
of the then unexercised portion of any option granted hereunder shall, upon
exercise in accordance with the terms hereof, receive the property, whether
Common Stock or other securities, into which the Option Shares otherwise
issuable upon exercise of the option would have been converted had they been
outstanding at the time of such event.
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The foregoing adjustments and the manner of application of the
foregoing provisions shall be determined by the Committee in its sole
discretion. Any such adjustment may provide for the elimination of any
fractional share which might otherwise become subject to an option.
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ARTICLE X
RIGHTS UPON MERGER, SALE OF ASSETS, LIQUIDATION, ETC.
If the Company shall be the surviving corporation in any merger or
consolidation, or if the Company shall merge with or into a wholly-owned
subsidiary and the Company is not the survivor, the holder of the then
unexercised portion of any option granted hereunder shall, upon exercise in
accordance with the terms hereof, receive the property, whether Common Stock or
other securities, into which the Option Shares otherwise issuable upon exercise
of such unexercised portion, would have been converted had they been
outstanding at the time of such event; provided, however, that the optionee
shall not have the right to exercise such unexercised portion as a result of
such event if the Committee makes an appropriate adjustment in the securities
covered by and/or the Option Price of such option as provided in Article IX
hereof.
If the Company is not the surviving corporation in any merger
or consolidation and substitute options are not issued, or if the Company sells
substantially all of its assets or liquidates, then during the ten (10) day
period commencing on the date of such
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event, the holder of an option granted hereunder may exercise all or any
unexercised part of the option, including any part thereof which would
otherwise not then be exercisable, and receive upon such exercise the property
into which the Option Shares otherwise issuable upon exercise of the option
would have been converted had such shares been outstanding at the time of such
event. The options shall terminate after such 10 day period.
If a single stockholder or a group of stockholders who would
be deemed to be a "person" within the meaning of Section 13(d)(3) of the
Securities Exchange Act of 1934 acquires more than 50% of the shares of the
Company's capital stock which are entitled to vote for the election of
directors, then during the sixty (60) day period commencing after such event,
the holder of an option granted hereunder may exercise the unexercised portion
of such option as to all or any part of the Optioned Shares, including shares
as to which such option would not then otherwise be exercisable. If such
option is exercised in accordance with the provisions of the immediately
preceding sentence as to less than all of the Optioned Shares, such option
shall be deemed to have
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been so exercised in inverse chronological order with respect to the vesting
thereof. Upon the expiration of such 60 day period, the unexercised portion of
any such portion shall be exercisable only to the extent it was exercisable
prior to the occurrence of such event.
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ARTICLE XI
NO OBLIGATION TO EXERCISE OPTION
The granting of an option shall impose no obligation on the
recipient to exercise such option.
ARTICLE XII
USE OF PROCEEDS
The proceeds received from the sale of Option Shares pursuant
to the Plan shall be used for general corporate purposes.
ARTICLE XIII
RIGHTS AS A STOCKHOLDER
An optionee or a transferee of an option shall have no rights
as a stockholder with respect to any Option Share
covered by his option until such person shall have become the holder of record
of such share, and such person shall not be entitled to any dividends or
distributions of other rights in respect of such share for which the record
date is prior to the date on which such person shall have become the holder of
record thereof.
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ARTICLE XIV
REGULATORY MATTERS
Every option under the Plan is granted upon the express
conditions that (i) the inability of the Company to obtain, or any delay in
obtaining, from each regulatory body having jurisdiction, all requisite
authority to issue or transfer shares of stock necessary to satisfy such option
or (ii) the inability of the Company to comply with, or any delay in complying
with, any laws, rules or regulations governing the issuance of Option Shares
necessary to satisfy such option (including but not limited to complying with
the Securities Act of 1933 and all rules and regulations promulgated
thereunder), the fulfillment of which conditions are deemed necessary by
counsel for the Company to the lawful issuance or transfer of any such shares,
shall relieve the Company of any liability for the non-issuance or
non-transfer, or any delay in the issuance or transfer of, such shares.
At the time of exercise of any option, the Company may, if it
shall deem it necessary or desirable in order to comply with the Securities Act
of 1933, as amended (the "Act"), require the
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holder of the option to represent in writing to the Company that it is then the
holder's intention to acquire the Option Shares for the account of the holder,
that the holder shall not sell, transfer or dispose of such shares except
pursuant to an effective registration statement under the Act or an exemption
therefrom, as determined by, or with approval of, counsel satisfactory to the
Company, and that the holder acknowledges that such shares are unregistered
under the Act and accordingly must be held indefinitely unless such shares are
subsequently registered or an exemption from such registration is available.
In such event a legend shall be placed on the stock certificate representing
such shares to reflect the transfer restrictions, and stop transfer
instructions shall be issued to the Company's transfer agent with respect to
such shares.
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ARTICLE XV
CANCELLATION OF OPTIONS
The Committee in its discretion may, with the consent of any
optionee, cancel any outstanding option hereunder.
ARTICLE XVI
EXPIRATION DATE OF PLAN
No option shall be granted hereunder after 10 years following
the Effective Date.
ARTICLE XVII
AMENDMENT OR DISCONTINUANCE OF PLAN
The Board may, without the consent of optionees, at any time
terminate the Plan entirely and at any time or from
time to time amend or modify the Plan, provided that no such action shall
adversely affect options theretofore granted hereunder, and provided further
that no such action by the Board, without approval of the stockholders, may (a)
increase the total number of Option Shares, except as contemplated in ARTICLE
IX; (b) change the class of officers or employees eligible to receive options
under the Plan; or (c) extend the term of the Plan.
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ARTICLE XVIII
LIMITATION ON GRANTS OF INCENTIVE STOCK OPTIONS
To the extent the aggregate fair market value (determined as
of the date of grant of such options) of the shares of Common Stock with
respect to which any incentive stock options may be exercisable for the first
time by the optionee in any calendar year (under this Plan or any other stock
option plan of the Company and any parent or subsidiary of the Company) exceeds
$100,000, such options shall be treated as nonstatutory stock options.
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ARTICLE XIX
SHAREHOLDER APPROVAL
The amendment and restatement of the Plan by the Board is
effective February 28, 1995. However, notwithstanding
anything in the Plan or in an option agreement to the contrary, no option
granted hereunder on or after February 28, 1995 may be exercised until approval
of the Plan by the stockholders of the Company on or after such date in a
manner which complies with Rule 16b-3 promulgated pursuant to the Exchange Act
and Sections 162(m) and 422(b)(1) of the Code.
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