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EXHIBIT 10.1
CHEMPOWER, INC.
1991 INCENTIVE/NON-QUALIFIED STOCK OPTION PLAN
AS AMENDED AND RESTATED
1. PURPOSE OF THE PLAN
The purpose of this amended and restated Chempower, Inc. 1991
Incentive/Non-qualified Stock Option Plan (the "Plan") is to provide a
method of providing officers and other key employees, as well as directors,
of Chempower, Inc. and its subsidiaries (collectively, the "Company") with
greater incentive to serve and promote the interests of the Company and its
shareholders. The premise of the Plan is that, if such persons acquire a
proprietary interest in the business of the Company or increase such
proprietary interest as they may already hold, then the incentive of such
person to work toward the Company's continued success will be commensurately
increased. Accordingly, the Company will, from time to time during the
effective period of the Plan, grant to such persons as may be selected to
participate in the Plan options to purchase Common Shares, $.10 par value
("Shares"), of the Company on the terms and subject to the conditions set
forth in the Plan. This amended and restated Plan increases the number of
Shares reserved for issuance under the Plan and makes certain additional
changes.
2. ADMINISTRATION OF THE PLAN
The Plan shall be administered by the Stock Plan Committee of the Board of
Directors or by such other Committee composed of no fewer than two (2)
members of the Board of Directors of the Company (the "Committee").
Subject to the provisions of the Plan, the Committee shall have full and
final authority, in its absolute discretion, (a) to determine the employees
to be granted options under the Plan, (b) to determine the number of Shares
subject to each option, (c) to determine the time or times at which options
will be granted, (d) to determine the option price of the Shares subject to
each option, which price shall not be less than the minimum specified in
Section 6 of the Plan, (e) to determine the time or times when each option
becomes exercisable and the duration of the exercise period, (f) to
determine the terms and conditions under which the Committee shall accept
the surrender of an option or any portion thereof pursuant to Section 9 of
the Plan and to determine the form in which payment for such surrendered
option or portion thereof shall be made, (g) to prescribe the form or forms
of the agreements evidencing any options granted under the Plan, and (i) to
construe and interpret the Plan and the agreements evidencing options
granted under the Plan and to make all other determinations deemed necessary
or advisable for the administration of the Plan. Any decision made or action
taken in good faith by the Committee in connection with the administration,
interpretation, and implementation of the Plan shall, to the extent
permitted by law, be conclusive and binding
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upon all optionees under the Plan and upon any person claiming under or
through such an optionee, and no member of the Board of Directors shall be
liable for any such decision made or action taken by the Committee.
3. SHARES AVAILABLE FOR OPTIONS
Subject to the provisions of Section 10 of the Plan, the aggregate number of
Shares for which options may be granted under the Plan shall not exceed one
million three hundred thousand (1,300,000).
The Shares to be delivered upon exercise of options under the Plan shall be
made available, at the discretion of the Board of Directors, either from the
authorized but unissued Shares of the Company or from Shares held by the
Company as treasury shares, including Shares purchased in the open market.
If an option granted under the Plan shall expire or terminate unexercised as
to any Shares covered thereby, such Shares shall thereafter be available for
the granting of other options under the Plan. If, however, an option granted
under the Plan shall be accepted for surrender pursuant to terms and
conditions determined by the Committee under Section 9, any Shares covered
thereby shall not thereafter be available for the granting of other options
under the Plan.
Options granted under the Plan shall constitute either incentive stock
options, as defined in Section 422A of the Internal Revenue Code of 1986, as
amended (the "Code"), hereinafter referred to as "incentive stock options",
or non-qualified stock options as the Committee shall determine with respect
to each option granted on or after such date.
4. ELIGIBILITY
Options will be granted only to persons who are employees or Directors of
the Company. The term "employee" shall include officers as well as other
employees of the Company and shall include Directors who are also employees
of the Company. Each grant of an option shall be evidenced by an agreement
executed on behalf of the Company by the Chairman of the Board or another
executive officer and delivered to and accepted by the optionee.
In selecting the persons to whom options shall be granted under the Plan, as
well as in determining the number of Shares subject to and the type and
terms and provisions of each option, the Committee shall weigh such factors
as it shall deem relevant to accomplish the purpose of the Plan, namely, to
enhance the incentive of those key employees of the Company who exert
authority over and are responsible for the management and conduct of the
Company's business. A person who has been granted an option under the Plan
may be granted an additional option or options if the Committee shall so
determine.
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5. TERM OF OPTIONS
The full term of each option granted under the Plan shall be such period as
the Committee shall determine, but shall not be more than ten (10) years
from the date of granting thereof, provided, however, that if an employee to
whom an incentive stock option is granted is at the time of grant of the
incentive stock option an owner as defined in Section 425(d) of the Code of
more than 10 percent of the total combined voting power of all classes of
stock of the Company or any subsidiary corporation, hereinafter referred to
as a "Substantial Shareholder", no incentive stock option granted to such an
employee shall be exercisable after the expiration of five (5) years from
the date of grant of such option.
Each option shall be subject to earlier termination as provided in
Paragraphs (c) and (d) of Section 8 and in Section 9 of the Plan.
The Committee may, with the concurrence of the affected optionee, cancel any
option granted under the Plan and authorize the grant of a new option or
options to buy Shares in such number and at such price as the Committee
shall determine, subject to the provisions of the Plan.
6. OPTION PRICE
The option price shall be determined by the Committee at the time any option
is granted; provided, however, that if an incentive stock option is granted,
the option price shall not be less than 100 percent of the fair market value
of the Shares covered thereby at the time the option is granted (provided
further, however, that any incentive stock option granted to any optionee
who, at the time the option is granted, is a substantial shareholder, shall
have an exercise price no less than 110 percent of the fair market value of
the Shares covered thereby), such fair market value to be determined in
accordance with procedures to be established by the Committee.
7. NON-TRANSFERABILITY OF OPTION
No option granted under the Plan shall be transferable by the optionee other
than (a) by will or by the laws of descent and distribution or (b) as
otherwise hereafter permitted in accordance with Rule 16b-3 without
jeopardizing or impairing any exemption provided for thereunder. Any
restriction on the transferability of derivative securities required by Rule
16b-3 in order to qualify for an exemption thereunder is hereby
incorporated in the Plan to the extent necessary to obtain the applicable
exemption.
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8. EXERCISE OF OPTIONS
(a) Each option granted under the Plan shall be exercisable on such date or
dates and during such period and for such number of Shares as shall be
set forth in the agreement evidencing such option.
(b) A person electing to exercise an option shall give written notice to the
Company of such election and the number of Shares such person has
elected to purchase and shall, at the time of exercise, tender the full
purchase price of the Shares such person has elected to purchase. The
purchase price may be paid either in cash or in the Company's Shares
(excluding fractional shares), or a combination thereof; provided,
however, that the practice known as "Pyramiding", which involves
successive option exercises using Shares received from a preceding
exercise to immediately exercise another option and so on, shall not be
permitted. Shares delivered in payment of the purchase price shall be
valued at the fair market value of such Shares on the date of exercise
of the option. Until such person has been issued a certificate or
certificates for the Shares so purchased, such person shall possess no
rights of a record holder with respect to any such Shares.
(c) No option shall be affected by any change of duties or position of the
optionee (including transfer to or from a subsidiary), so long as such
optionee continues to be an employee of the Company or one of its
subsidiaries. If an optionee shall cease to be an employee for any
reason other than death, the options held by such optionee shall
thereafter be exercisable only to the extent of the purchase rights, if
any, which had accrued as of the date of such cessation, provided that
the Committee may provide in the agreement evidencing any option that
the Committee may in its absolute discretion, upon any such cessation of
employment, determine (but shall be under no obligation to determine)
that such accrued purchase rights shall be deemed to include additional
Shares covered by such option. Upon any such cessation of employment,
such accrued rights to purchase shall in any event terminate upon the
earlier of (A) the expiration of the full term of the option or (B) the
expiration of thirty (30) days from the date of such cessation of
employment if by reason of discharge or immediately if by reason of
voluntary quit. The agreements evidencing options granted under the Plan
may contain such provisions as the Committee shall approve with
reference to the effect of approved leaves of absence. Nothing in the
Plan or in any option granted hereunder shall confer upon any optionee
any right to continue in the employ of the Company or any of its
subsidiaries, or to limit or interfere in any way with the right of the
Company or its subsidiaries to terminate such optionee's employment at
any time, with or without cause.
(d) Should an optionee die while in the employ of the Company, such person as
shall have acquired, by will or by the laws of descent and distribution
(the "personal representative"), the right to exercise any option
theretofore granted such optionee
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may exercise such option at any time prior to expiration of its full
term or one (1) year from the date of death of the optionee, whichever
is earlier, provided that any such exercise shall be limited to the
purchase rights which had accrued as of the date when the optionee
ceased to be an employee, whether by death or otherwise, and provided
further, however, that the Committee may provide in the agreement
evidencing any option that all Shares covered by such option shall
become subject to purchase immediately upon the death of the optionee.
(e) In the case of incentive stock options, the aggregate fair market
value (determined as of the date the option is granted) of the Shares
with respect to which options are exercisable for the first time by any
individual during any calendar year (under this Plan and all such plans
of the Company and any parent or subsidiary corporation) shall not
exceed $100,000.
9. SURRENDER OF OPTIONS - STOCK APPRECIATION RIGHTS
The Cornmittee may, in its absolute discretion and under such terms and
conditions as it deems appropriate, accept the surrender by an optionee, or
the personal representative of an optionee, of an option, or any portion
thereof, to purchase Shares granted under the Plan and authorize the
payment in consideration for such surrender of an amount equal to the
excess of the fair market value at the date of surrender of the Shares
covered by the option, or portion thereof, surrendered over the aggregate
option price of such Shares, such payment to be in Shares (valued at fair
market value on the date of such surrender) or in cash, or partly in Shares
and partly in cash as determined by the Committee, provided that the
Committee determines that such surrender is consistent with the purpose set
forth in Section 1 hereof.
10. ADJUSTMENT UPON CHANGES IN CAPITALIZATION
In the event of any change in the number of outstanding Shares through the
declaration of share dividends, share splits, mergers, or consolidations,
through recapitalizations, or by reason of any other increase or decrease
in the number of outstanding Shares effected without receipt of
consideration by the Company, the number of Shares available and reserved
for options which may thereafter be granted, the number of Shares reserved
for and subject to any options outstanding but unexercised, and the price
per share payable on the exercise of any options outstanding but
unexercised, shall be adjusted as the Committee considers appropriate, and
all such adjustments by the Committee shall be conclusive and binding upon
all optionees under the Plan and upon any person claiming under or through
such an optionee.
11. ISSUANCE OF SUBSTITUTE OPTIONS
The Committee may also make a determination, subject to approval and
authorization by the Board of Directors, to issue option having terms and
provisions which vary from those specified herein, provided that any
options issued pursuant to this Section are issued in
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substitution for, or in connection with the assumption of, existing
options issued by another corporation and assumed or otherwise agreed to
be provided for by the Company pursuant to or by reason of a transaction
involving a corporate merger, consolidation, acquisition of property or
stock, separation, reorganization or liquidation in which the Company or a
subsidiary is a party.
12. AMENDMENT, SUSPENSION OR TERMINATION OF PLAN
The Board of Directors may at any time terminate or from time to time amend
or suspend the Plan; provided, however, that no such amendment shall,
without approval of the shareholders of the Company, except as provided in
Section 10 hereof, (a) increase the aggregate number of Shares as to which
options may be granted under the Plan; (b) increase the maximum period
during which options may be exercised; or (c) extend the effective period of
this Plan. No option may be granted during any suspension of the Plan or
after the Plan has been terminated and no amendment, suspension or
termination shall, without the optionee's consent, alter or impair any of
the rights or obligations under any option theretofore granted to such
person under the Plan. Notwithstanding the foregoing, no amendment may be
made without shareholder approval if such approval is required under Rule
16b-3 under the Securities Exchange Act of 1934, as amended to qualify for
the exemption from Section 16(b) of that Act or is required by the rules of
the National Association of Securities Dealers Automated Quotation System.
13. EFFECTIVE DATE AND DURATION OF PLAN
This amended and restated Plan was adopted by the Board of Directors on
March 6, 1996. This amended and restated Plan shall become effective upon
its approval by the affirmative vote of the holders of a majority of the
outstanding Shares present in person or by proxy and entitled to vote on
this Plan at the Annual Meeting of the Shareholders of the Company on May
2, 1996, or any adjournment thereof. No options may be granted under this
Plan subsequent to May 1, 2001.
Dated: March 6, 1996 CHEMPOWER, INC.
/s/ T.J. Kukk
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T.J. Kukk, President
/s/ Ernest M. Rochester
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Ernest M. Rochester, Secretary
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