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EXHIBIT 10.6
CALIBER SYSTEM, INC.
1996 EQUITY INCENTIVE COMPENSATION PLAN
1. Purpose. The purposes of the Caliber System, Inc. 1996
Equity Incentive Compensation Plan are to attract, retain and
motivate key employees of the Company and its Subsidiaries, to
compensate them for their contributions to the growth and profits
of the Company and its Subsidiaries and to encourage ownership by
them of Stock of the Company.
2. Definitions. As used in the Plan, the following
capitalized words shall have the meanings indicated below:
"Administrator" means the individual or individuals to whom
the Committee delegates authority under the Plan in accordance with
Section 5(b).
"Award" means an award made pursuant to the terms of the
Plan.
"Award Agreement" means a written agreement between the
Company or one of its Subsidiaries which is approved in accordance with
Section 12(e), which is executed by the Participant and by an officer
on behalf of the Company and which sets forth the terms and conditions
of the Award to the Participant.
"Award Certificate" means a written certificate issued by the
Company which is approved in accordance with Section 12(e), which is
executed by an officer on behalf of the Company and which sets forth
the terms and conditions of an Award.
"Board" means the Board of Directors of the Company.
"Code" means the Internal Revenue Code of 1986, as amended,
and the applicable rulings and regulations thereunder.
"Committee" means the Compensation Committee of the Board, any
successor committee thereto or any other committee appointed by the
Board to administer the Plan. The Committee shall consist of at least
two individuals, each of whom is both a "disinterested person" within
the meaning of Rule 16b-3 under the Exchange Act and an "outside
director" within the meaning of Treasury Regulation Section 1.162-27
(e) (3) promulgated under the Code and who shall serve at the pleasure
of the Board.
"Company" means Caliber System, Inc.
"Date of the Award" means the effective date of an Award
(whether a mandatory Award or an elected Award pursuant to Section
12(a)) as specified by the Committee and set forth in the applicable
Award Agreement or Award Certificate.
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"Eligible Individuals" means the individuals described in
Section 6 who are eligible for Awards under the Plan.
"Employee Trust" means any trust established by the Company in
connection with an employee benefit plan (including the Plan) under
which current and former employees of the Company constitute the
principal beneficiaries.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the applicable rulings and regulations thereunder.
"Fair Market Value" means, with respect to a share of Stock,
the fair market value thereof as of the relevant date of determination,
as determined in accordance with a valuation methodology approved by
the Committee.
"Option" means an option to purchase Stock, the terms of which
are described in Section 9.
"Option Award" means an Award of Options pursuant to Section
9. An option Award may consist of options, the receipt of which was
elected pursuant to Section 12(a).
"Other Award" means any other form of award authorized under
Section 11 of the Plan. An Other Award may consist of Awards, the
receipt of which was elected pursuant to Section 12(a).
"Participant" means an individual to whom an Award has
been made.
"Performance Criteria" means one or more criteria that the
Committee shall select for purposes of establishing Performance
Goal(s). The Performance Criteria that will be used to establish such
Performance Goal(s) shall be limited to the following: stock price,
market share, sales, earnings per share, net earnings, operating
earnings, profit margins, return on capital, assets, net assets or
equity, costs, cash flow and any combination thereof.
"Performance Goals" means one or more goals established by the
Committee for a performance period or performance cycle based upon
Performance Criteria.
"Plan" means the Caliber System, Inc. 1996 Equity
Incentive Compensation Plan, as the same may be amended from
time to time in accordance with Section 15(f) below.
"SAR" means a stock appreciation right, as described in
Section 10.
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"SAR Award" means an Award of SARs pursuant to Section 10. An
SAR Award may be freestanding or granted in tandem with another type of
Award. An SAR Award may consist of SARs, the receipt of which was
elected pursuant to Section 12(a).
"Section 162(m) Participant" means, for a given fiscal year of
the Company, a Participant designated by the Compensation Committee by
not later than 90 days following the start of such year as a
Participant (or such other time as may be required or permitted by
Section 162(m) of the Code) whose compensation for such fiscal year may
be subject to the limit on deductible compensation imposed by Section
162(m) of the Code.
"Shares" means the shares of Stock underlying,
constituting, subject to, or corresponding to an Award.
"Stock" means the common stock, without par value, of the
Company.
"Stock Award" means an Award of Shares pursuant to Section 7.
A Stock Award may consist of Stock, the receipt of which was elected
pursuant to Section 12(a).
"Stock Unit" means a restricted stock unit, as described
in Section 8.
"Stock Unit Award" means an Award of Stock Units, pursuant to
Section 8. A Stock Unit Award may consist of Stock Units, the receipt
of which was elected pursuant to Section 12(a).
"Subsidiary" means (i) a corporation or other entity with
respect to which the Company, directly or indirectly, has the power,
whether through the ownership of voting securities, by contract or
otherwise, to elect at least a majority of the members of such
corporation's board of directors or analogous governing body, or (ii)
any other corporation or other entity in which the Company, directly or
indirectly, has an equity or similar interest and which the Committee
designates as a Subsidiary for purposes of the Plan.
"Substitute Awards" means Awards granted upon assumption of,
or in substitution for, outstanding awards previously granted by a
corporation or other entity acquired by the Company or with which the
Company combines.
"Term of the Plan" means the period beginning on the date that
the Plan is adopted by the Board and ending on the date that the Plan
terminates in accordance with Section 3 or 15(f) below.
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3. Effective Date and Term. The Plan shall become effective upon its
adoption by the Board subject to its approval by the stockholders of the
Company. Prior to such stockholder approval, the Committee may grant Awards
conditioned on stockholder approval. If such stockholder approval is not
obtained at or before the first annual meeting of stockholders to occur after
the adoption of the Plan by the Board, the Plan and any Awards made thereafter
shall terminate ab initio and be of no further force and effect. In no event
shall any Awards be made under the Plan after the tenth anniversary of the date
of stockholder approval; provided however, that no incentive stock option,
within the meaning of Section 422 of the Code may be granted under the Plan
after the tenth anniversary of the adoption of the Plan by the Board.
4. Stock Subject to Plan.
(a) One million, nine hundred thousand shares of Stock (whether issued
or unissued) shall be authorized for issuance under the Plan (the "Section 4
Limit").
(b) The number and kind of shares authorized for issuance hereunder,
including the maximum number of Shares subject to Options or SARs as provided in
Section 4(d) below, may be equitably adjusted in the discretion of the Committee
in the event of a stock split, stock dividend, recapitalization, reorganization,
merger, consolidation, extraordinary dividend, split-up, spinoff, combination,
exchange of shares, warrants or rights offering to purchase Stock at a price
substantially below Fair Market Value or other similar corporate event affecting
the Stock in order to preserve the benefits or potential benefits intended to be
made available to Participants granted Awards. In the event of any of the
foregoing events, the number of outstanding Awards and the number and kind of
shares subject to any outstanding Award and the purchase price per share, if
any, under any outstanding Award may be equitably adjusted (including by payment
of cash to a Participant) in the discretion of the Committee in order to
preserve the benefits or potential benefits intended to be made available to
Participants granted Awards. Such adjustments shall be made by the Committee,
whose determination as to what adjustments shall be made, and the extent
thereof, shall be final. Unless otherwise determined by the Committee, such
adjusted Awards shall be subject to the same vesting schedule and restrictions
to which the underlying Award is subject. No fractional shares of Stock shall be
reserved or authorized by any such adjustment.
(c) In calculating the number of shares of Stock remaining for issuance
under the Plan, the following rules shall apply:
1. The Section 4 Limit shall be reduced by the number of
Shares subject to outstanding Awards and, for Awards
which are not denominated in Shares, by the number of
Shares delivered upon payment or settlement of the
Award.
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2. The Section 4 Limit shall be increased by the number
of, shares of Stock tendered to pay the exercise
price of any Option or Other Award and by the number
of Shares withheld from any Award to satisfy a
Participant's tax withholding obligation or, if
applicable, withheld to pay the exercise price of an
Option or Other Award.
3. The Section 4 Limit shall be increased by the
number of Shares subject to an Award (or portion
thereof) granted hereunder that is forfeited, is
settled through the issuance of consideration other
than Shares or otherwise terminates without the
issuance of such Shares. With respect to SAR
Awards that are settled in whole or in part in
Stock, this Section 4(c)(3) shall be applied by
increasing the Section 4 Limit by the excess, if
any, of the number of Shares subject to the SAR
Award over the number of Shares delivered to the
Participant upon exercise of such Award.
4. Any Shares underlying Substitute Awards shall not be
counted against the Section 4 Limit and shall not be
subject to Section 4(d), except in the case of Shares
with respect to which Substitute Awards are granted
to officers or directors of the Company subject to
the reporting obligations of Section 16(a) of the
Exchange Act.
In no event may the operation of the foregoing result in the
issuance under the Plan of a number of Shares in excess of the
Section 4 Limit.
(d) The maximum number of Shares that may be subject to Awards granted
to or elected by a Participant (i) in the fiscal year in which the Plan is
approved by the stockholders of the Company shall equal 150,000 Shares, and (ii)
in each subsequent fiscal year shall equal 110% of such maximum number for the
preceding fiscal year.
5. Administration.
(a) The Plan shall be administered by the Committee, which shall have
full power and authority, subject to the express provisions hereof, (i) to
select Participants from among the Eligible Individuals, (ii) to make Awards in
accordance with the Plan, (iii) to determine the number of Shares subject to
each Award or the cash amount payable in connection with an Award, (iv) to
determine the terms and conditions of each Award, including, without limitation,
those related to vesting, forfeiture, payment, exercisibility, and the effect,
if any, of a Participant's termination of employment with the Company or a
change in control of the Company on the outstanding Awards granted to such
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Participant, and including the authority to amend the terms and conditions of an
Award after the granting thereof to a Participant in a manner that is not
prejudicial to the rights of such Participant in such Award, (v) to determine
whether the terms and conditions of each Award will be set forth in an Award
Agreement or Award Certificate and to specify and approve the provisions of the
Award Agreements and Award Certificates delivered to Participants in connection
with their Awards, (vi) to construe and interpret any Award Agreement or Award
Certificate delivered under the Plan, (vii) to prescribe, amend and rescind
rules and procedures relating to the Plan, (viii) to vary the terms of Awards to
take account of tax, securities law and other regulatory requirements of foreign
jurisdictions and (ix) to make all other determinations and to formulate such
procedures as may be necessary or advisable for the administration of the Plan.
(b) The Committee may, but need not, from time to time delegate some or
all of its authority under the Plan to an Administrator consisting of one or
more members of the Committee or of one or more officers of the Company;
provided, however, that the Committee may not delegate its authority (i) to make
Awards to Eligible Individuals (A) who are subject on the Date of the Award to
the reporting rules under Section 16(a) of the Exchange Act, (B) who are Section
162(m) Participants or (C) who are officers of the Company and are delegated
authority by the Committee hereunder, or (ii) under Sections 5(c) and 15(f) of
the Plan. Any delegation hereunder shall be subject to the restrictions and
limits that the Committee specifies at the time of such delegation or
thereafter. Nothing in the Plan shall be construed as obligating the Committee
to delegate authority to an Administrator, and the Committee may at any time
rescind the authority delegated to an Administrator appointed hereunder or
appoint a new Administrator. At all times, the Administrator appointed under
this Section 5(b) shall serve in such capacity at the pleasure of the Committee.
Any action undertaken by the Administrator in accordance with the Committee's
delegation of authority shall have the same force and effect as if undertaken
directly by the Committee, and any reference in the Plan to the Committee shall,
to the extent consistent with the terms and limitations of such delegation, be
deemed to include a reference to the Administrator.
(c) The Committee shall have full power and authority, subject to the
express provisions hereof, to construe and interpret the Plan.
(d) All determinations by the Committee in carrying out and
administering the Plan and in construing and interpreting the Plan shall be
final, binding and conclusive for all purposes and upon all persons interested
herein. In the event of any disagreement between the Committee and the
Administrator, the Committee's determination on such matter shall be final and
binding on all interested persons, including the Administrator.
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(e) No member of the Committee or the Administrator shall be liable for
anything whatsoever in connection with the administration of the Plan except as
a result of such person's own willful misconduct. Under no circumstances shall
any member of the Committee or the Administrator be liable for any act or
omission of any other member of the Committee or, in the case of members of the
Committee, the Administrator. In the performance of its functions with respect
to the Plan, the Committee and the Administrator shall be entitled to rely upon
information and advice furnished by the Company's officers, the Company's
accountants, the Company's counsel and any other party the Committee or the
Administrator deems necessary or appropriate, and no member of the Committee or
the Administrator shall be liable for any action taken or not taken in reliance
upon any such advice.
6. Eligibility. Eligible Individuals shall include all officers, other
key employees and consultants of the Company and its Subsidiaries, nonemployee
directors of Subsidiaries and employees and consultants of joint ventures,
partnerships or similar business organizations in which the Company or a
Subsidiary has an equity or similar interest, other than those individuals who
may be designated by the Committee from time to time as ineligible for such
period of time as the Committee shall determine. In accordance with rules
specified by the Committee, Eligible Individuals may include former employees or
former consultants of the Company and such joint ventures, partnerships or
similar business organizations. Members of the Committee will not be eligible to
participate in the Plan. An individual's status as an Administrator will not
affect his or her eligibility to participate in the Plan.
7. Stock Awards. Stock Awards shall consist of one or more Shares of
Stock granted or offered for sale to an Eligible Individual, and shall be
subject to the terms and conditions established by the Committee in connection
with the Award and specified in the applicable Award Agreement or Award
Certificate. The Shares subject to a Stock Award may, among other things, be
subject to Performance Goals, vesting requirements or restrictions on
transferability.
8. Stock Unit Awards. Stock Unit Awards shall consist of a grant of one
or more Stock Units, and shall be subject to the terms and conditions
established by the Committee, including Performance Goals, in connection with
the Award and specified in the applicable Award Agreement or Award Certificate.
Each Stock Unit awarded to a Participant shall correspond to one Share. Upon
satisfaction of the conditions to vesting and payment specified in the
applicable Award Agreement or Award Certificate, a Stock Unit will be payable,
at the discretion of the Committee, in Stock or in cash equal to Fair Market
Value on the payment date of one Share.
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9. Option Awards.
(a) An Option Award shall consist of the grant of an Option to purchase
such number of Shares as determined by the Committee, and shall be subject to
the terms and conditions established by the Committee in connection with the
Award and specified in the applicable Award Agreement or Award Certificate. Upon
satisfaction of the conditions to exercisability specified in the applicable
Award Agreement or Award Certificate, a Participant shall be entitled to
exercise the Option in whole or in part and to receive, upon satisfaction or
payment of the exercise price or an irrevocable notice of exercise in the manner
contemplated by Section 9(b) below, the number of Shares in respect of which the
Option shall have been exercised. Such Options may be either nonqualified stock
options or incentive stock options within the meaning of Section 422 of the
Code.
(b) Subject to the provisions of the applicable Award Agreement or
Award Certificate, the exercise price of the Option may be paid in cash or
previously owned shares of Stock or a combination thereof and, if the applicable
Award Agreement or Award Certificate so provides, in whole or in part through
the withholding of Shares subject to the Option with a value equal to the
exercise price. In accordance with the rules and procedures established by the
Committee for this purpose, the Option may also be exercised through a "cash
less exercise" procedure approved by the Committee that affords Participants the
opportunity to sell immediately some or all of the Shares underlying the
exercised portion of the Option in order to generate sufficient cash to pay the
Option exercise price and/or to satisfy withholding tax obligations related to
the Option.
(c) Options which are intended to qualify as incentive stock options
under Section 422 of the Code shall expire no later than the tenth anniversary
of the date of the grant thereof.
10. SAR Awards. An SAR Award shall consist of the grant of one or more
SARs, and shall be subject to the terms and conditions established by the
Committee in connection with the Award and specified in the applicable Award
Agreement or Award Certificate. Upon satisfaction of the conditions to the
payment specified in the applicable Award Agreement or Award Certificate, each
SAR shall entitle a Participant to an amount, if any, equal to the Fair Market
Value of a Share on the date of exercise over the SAR exercise price specified
in the applicable Award Agreement or Award Certificate. At the discretion of the
Committee, payments to a Participant upon exercise of an SAR may be made in
Shares, cash or a combination thereof.
11. Other Awards. The Committee shall have the authority to
specify the terms and provisions, including Performance Goals, of
other forms of equity-based or equity-related Awards not described
above which the Committee determines to be consistent with the
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purpose of the Plan and the interests of the Company, which Awards may provide
for cash payments based n whole or in part on the value or future value of
Stock, for the acquisition or future acquisition of Stock, or any combination
thereof. Other Awards shall also include cash payments (including the cash
payment of dividend equivalents) under the Plan which may be based on one or
more criteria determined by the Committee which are unrelated to the value of
Stock and which may be granted in tandem with, or independent of, other Awards
under the Plan.
12. Awards in General.
(a) Awards under the Plan may, in the discretion of the Committee, be
made in substitution in whole or in part for cash or other compensation payable
to an Eligible Individual. In accordance with rules and procedures established
by the Committee, an Eligible Individual may elect to receive one form of Award
permitted under the Plan in lieu of any other form of Award, or may elect to
receive an Award under the Plan in lieu of all or part of any compensation which
otherwise might have been paid to such Eligible Individual; provided, however,
that any such election shall not require the Committee to make any Award to such
Eligible Individual. Any such substitute or elective Awards shall have terms and
conditions consistent with the provisions of the Plan applicable to such Award.
At the discretion of the Committee, Stock Units may at any time be substituted
for the portion of a Stock Award that has not vested in accordance with the
provisions of the applicable Award Agreement or Award Certificate. The
substitution contemplated by the previous sentence may be made at any time prior
to the applicable vesting date of the Stock Award.
(b) For purposes of determining the number of Shares subject to an
Award, the Committee may value the shares at a discount to Fair Market Value to
reflect the various restrictions, conditions and limitations set forth in the
Plan and the applicable Award Agreement or Award Certificate or otherwise
applicable to the Shares.
(c) With respect to any dividend or distribution on the Shares
corresponding to an Award, the Committee may in its discretion authorize current
or deferred payments (payable in cash or Stock or a combination thereof) or
appropriate adjustments to the outstanding Award to reflect such dividend or
distribution.
(d) In accordance with the procedures specified by, and subject to the
approval of, the Committee, Participants may be given the opportunity to defer
the payment or settlement of an Award to one or more dates selected by the
Participant. In connection with such deferral, the Committee may provide that
Awards so deferred may be credited with a notional return during the period of
deferral based upon the corresponding return on one or more investments
designated by the Committee or elected by the Participant in accordance with the
procedures established by the
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Committee for this purpose. The Committee shall have the right at any time to
accelerate the payment or settlement of any Award granted under the Plan,
including, without limitation, any Award subject to a prior deferral election.
(e) The terms and provisions of an Award shall be set forth in a
written Award Agreement or Award Certificate approved by the Committee and
delivered or made available to the Participant as soon as practicable following
the Date of the Award.
(f) The vesting, exercisability, payment and other restrictions
applicable to an Award (which may include, without limitation, restrictions on
transferability or provision for mandatory resale to the Company) shall be
determined by the Committee and set forth in the applicable Award Agreement or
Award Certificate. Notwithstanding the foregoing, the Committee may accelerate
(i) the vesting or payment of any Award, (ii) the lapse of restrictions on any
Award (including a Stock Award) or (iii) the date on which any Option or SAR
first becomes exercisable. The date of a Participant's termination of employment
for any reason shall be determined in the sole discretion of the Committee. The
Committee shall also have full authority to determine and specify in the
applicable Award Agreement or Award Certificate the effect, if any, that a
Participant's termination of employment for any reason will have on the vesting,
exercisability, payment or lapse of restrictions applicable to an outstanding
Award.
(g) If the Committee conditions the vesting of any Awards under the
Plan, other than Option Awards and SAR Awards, upon service alone, such vesting
may not occur before three years from the Date of the Award. Notwithstanding
anything in this Plan to the contrary, not more than 95,000 shares of Stock in
the aggregate available under this Plan may be subject to Awards, other than
Option Awards and SAR Awards, which do not meet the requirements of the first
sentence of this subsection (g) or to which the Committee may accelerate or
waive any restrictions imposed by the Committee or, in the case of grants of
Option Awards, which the Committee may subsequently determine, with the
Participant's consent but without any approval or consent of the Company's
stockholders, are not to be subject to the limitations of Section 15(f).
13. Certain Restrictions.
(a) Except as otherwise provided by the terms of any applicable
Employee Trust, prior to the exercise of any Option or SAR Award or payment of
Stock pursuant to any Stock Unit Award or Other Award, the Participant shall not
have any rights as a stockholder with respect to any Shares subject to such
Option or SAR or corresponding to such Stock Unit or Other Award. Subject to the
terms of any applicable Employee Trust, each Participant shall be the beneficial
owner of any Shares actually issued by the Company in connection with an Award.
Except for the risk of forfeiture and the restrictions on transfer which may
apply to
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certain Shares (including restrictions relating to any dividends or other
rights), the Participant shall be entitled to all rights of ownership,
including, without limitation, the right (i) to vote such Shares and (ii) to
receive cash or stock dividends thereon.
(b) Unless the Committee determines otherwise, no Award granted under
the Plan shall be transferable other than by will or by the laws of descent and
distribution; provided, however, that the Committee may, subject to such terms
and conditions as the Committee shall specify, permit the transfer of an Award
to a Participant's family members or to one or more trusts established in whole
or in part for the benefit of one or more of such family members; provided,
further, that the restrictions in this sentence shall not apply to the Shares
received in connection with an Award after the date that the restrictions on
transferability of such Shares set forth in the applicable Award Agreement or
Award Certificate have lapsed. During the lifetime of the Participant, an
Option, SAR or similar-type Other Award shall be exercisable only by him or by
the family member or trust to whom such Option, SAR or Other Award has been
transferred in accordance with the previous sentence.
14. Investment Representation. Each Award shall be conditioned on the
Participant making any representations required in the applicable Award
Agreement or Award Certificate. Each Award shall also be conditioned upon the
making of any filings and the receipt of any consents or authorizations required
to comply with or required to be obtained under, applicable local law.
15. Miscellaneous Provisions.
(a) As a condition to the making of any Award, the vesting or payment
of any Award or the lapse of the restrictions pertaining thereto (including
those related to the exercise of an Option or SAR),the Company may require the
Participant to pay such sum to the Company as may be necessary to discharge the
Company's obligations with respect to any taxes, assessments or other
governmental charges imposed on property or income received by a Participant
pursuant to the Plan. In accordance with rules and procedures established by the
Committee and, in the discretion of the Committee, such payment may be in the
form of cash or other property. In accordance with rules and procedures
established by the Committee, in satisfaction of such taxes, assessments or
other governmental charges the Company may, in the discretion of the Committee,
make available for delivery a lesser number of Shares in payment or settlement
of an Award or permit a Participant to tender previously owned Shares to satisfy
such withholding obligation. At the discretion of the Committee, the Company may
deduct or withhold the amount of taxes, assessments or other charges from any
payment or distribution to a Participant whether or not pursuant to the Plan. In
accordance with rules and procedures established by the Committee, the Company
may offer loans to Participants to satisfy withholding requirements and to
satisfy the exercise price when
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exercising Options which are not designated or qualified hereunder or by the
Code as "incentive stock options," on such terms as the Committee may determine,
which terms may, in the discretion of the Committee, be non-interest bearing.
The Company and the Participant may also make similar arrangements with respect
to the payment of any taxes with respect to which withholding is not required.
(b) The Plan shall not give rise to any right on the part of any
Participant to continue in the employ of the Company or its Subsidiaries.
(c) All expenses and costs in connection with the administration of the
Plan or issuance of Shares, Options, SARs, Stock Units or Other Awards hereunder
shall be borne by the Company.
(d) The headings of sections herein are included solely for convenience
of reference and shall not affect the meaning of any of the provisions of the
Plan.
(e) The Plan and all rights hereunder shall be construed in accordance
with and governed by the internal laws of the State of Ohio.
(f) The Board or Committee may modify, amend, suspend or terminate the
Plan in whole or in part at any time; provided, however, that such modification,
amendment, suspension or termination shall not, without a Participant's consent,
affect adversely the rights of such Participant with respect to any Award
previously made; and provided, further, that such modification, amendment,
suspension or termination shall not, without the approval of the Company's
shareholders:
(i) except as expressly provided in this Plan, increase
the total number of shares of Stock reserved for the purpose
of the Plan;
(ii) extend the maximum period for exercise of Share
Awards or SAR Awards applicable under the Plan;
(iii) decrease the price of an Option Award, whether
directly or indirectly; or
(iv) otherwise materially increase the benefits accruing
to Participants under the Plan.
(g) The Plan is intended to comply with and be subject to Rule 16b-3 as
in effect prior to May 1, 1991. The Committee may at any time elect that the
Plan shall be subject to Rule 16b-3 as in effect on and after May 1, 1991.
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