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EXHIBIT 10.1.13
ENROLLMENT INFORMATION FOR PROSPECTIVE PARTICIPANTS
IN THE
[TELXON CORPORATION LOGO] CORPORATION
1995 EMPLOYEE STOCK PURCHASE PLAN
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THIS DOCUMENT CONSTITUTES PART OF A PROSPECTUS COVERING SECURITIES THAT HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. IN CONSIDERING WHETHER AND TO
WHAT EXTENT YOU WISH TO INVEST IN THE COMPANY'S COMMON STOCK THROUGH
PARTICIPATION IN THE TELXON CORPORATION 1995 EMPLOYEE STOCK PURCHASE PLAN, YOU
SHOULD READ AND UNDERSTAND THIS AND THE OTHER DOCUMENTS WHICH ARE ALSO PART OF
THAT PROSPECTUS, AS WELL AS THE INFORMATION CONCERNING THE COMPANY INCORPORATED
BY REFERENCE HEREIN. ANY QUESTIONS YOU MAY HAVE AFTER REVIEWING THE ABOVE
DOCUMENTS SHOULD BE DIRECTED TO THE COMPANY'S AKRON HUMAN RESOURCES DEPARTMENT
AT 1-800-800-8001.
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NOVEMBER 23, 1998
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CONTENTS
Information Regarding the Plan............................................... 1
Information Regarding the Company............................................ 2
Available Information........................................................ 3
1995 Employee Stock Purchase Plan......................................Exhibit A
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LIKE ANY OTHER INVESTMENT IN STOCK, ANY MONEYS YOU SPEND FOR THE PURCHASE OF
SHARES OF THE COMPANY'S COMMON STOCK THROUGH PAYROLL DEDUCTION CONTRIBUTIONS TO
THE PLAN WILL BE AT RISK. MARKET PRICES FOR ANY STOCK FLUCTUATE DAY-TO-DAY BASED
ON COMPANY PERFORMANCE, GENERAL BUSINESS CONDITIONS, NATIONAL AND INTERNATIONAL
ECONOMIC AND POLITICAL EVENTS AND OTHER FACTORS. IN PARTICULAR, THE MARKET PRICE
FOR THE COMPANY'S STOCK HAS BEEN VOLATILE; HISTORICALLY, CHANGES IN THE
COMPANY'S ACTUAL OR EXPECTED OPERATING RESULTS HAVE RESULTED IN SIGNIFICANT
CHANGES IN ITS STOCK PRICE.
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NEITHER THIS DOCUMENT NOR ANY OTHER DOCUMENT PROVIDED TO EMPLOYEES IN CONNECTION
WITH THE OFFERING OF SECURITIES UNDER THE PLAN CONSTITUTES AN OFFER OR
SOLICITATION BY ANYONE IN ANY STATE OR OTHER JURISDICTION IN WHICH SUCH OFFER OR
SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR
SOLICITATION IS NOT QUALIFIED TO DO SO, OR TO ANY PERSON TO WHOM IT IS UNLAWFUL
TO MAKE SUCH OFFER OR SOLICITATION.
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YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS DOCUMENT AND ANY OTHER
DOCUMENTS CONSTITUTING A PART OF THE PROSPECTUS AND IN DOCUMENTS FILED BY THE
COMPANY WITH THE SEC WHICH ARE REFERRED TO IN THIS DOCUMENT. THE COMPANY HAS NOT
AUTHORIZED ANYONE TO PROVIDE YOU WITH ANY DIFFERENT OR ADDITIONAL INFORMATION.
IN RELYING ON SUCH INFORMATION, YOU SHOULD NOT ASSUME THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE OF THE DOCUMENT IN WHICH IT
IS CONTAINED OR ANY EARLIER DATE THERE INDICATED AS OF WHICH SUCH INFORMATION IS
PROVIDED.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY OTHER FEDERAL, STATE OR
FOREIGN SECURITIES COMMISSION OR OTHER REGULATORY AUTHORITY HAS APPROVED OR
DISAPPROVED OF THE SECURITIES OFFERED PURSUANT TO THE PLAN OR PASSED UPON THE OR
ADEQUACY OR ACCURACY OF THIS DOCUMENT OR ANY OTHER DOCUMENT CONSTITUTING A PART
OF THE PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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INFORMATION REGARDING THE PLAN
Through the Telxon Corporation 1995 Employee Stock Purchase Plan (the
"Plan"), you and other eligible employees of the Company and its participating
subsidiaries have the opportunity to purchase shares of the Common Stock, par
value $0.01 per share, of the Company through payroll deductions at a 15%
discount from market price. The Company's Common Stock is traded on The Nasdaq
National Market tier of The Nasdaq Stock Market (ticker symbol TLXN).
The Plan was established to promote the interests of the Company and its
stockholders by providing employees with additional incentive to continue in
their employment and encouraging them to make increased efforts to promote the
best interests of the Company. The Plan is neither qualified under Section
401(a) of the Internal Revenue Code of 1986, as amended, nor subject to any of
the provisions of the Employee Retirement Income Security Act of 1974 (commonly
known as "ERISA").
The Plan is administered by the Option and Stock Committee (the
"Committee") of the Company's Board of Directors. The membership of the
Committee is annually appointed by the Board from among its members. The
Company's Board of Directors is classified into three classes, each of which
classes serves for a three year term, with one class being elected by the
Company's stockholders at each annual meeting. A Director is subject to removal
from the Board only for cause and only upon the affirmative vote of the holders
of at least 80% of the voting power of the stockholders entitled to elect the
Director.
A copy of the Plan is attached as Exhibit A. You should be carefully
study the Plan for a complete understanding of its terms and the respective
rights and obligations of the Company and employee participants thereunder.
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INFORMATION REGARDING THE COMPANY
As a publicly traded company, the Company is required to file periodic
reports, proxy and information statements and other information with the SEC. In
addition, the Company has filed a Registration Statement on Form S-8 with
respect to the Shares issuable under the Plan; as prepared in accordance with
the applicable SEC rules and regulations, the prospectus of which this document
is a part does not contain all of the information set forth in the Registration
Statement. You may read and copy the Registration Statement, as well as the
other reports, proxy and information statements and other information filed by
the Company with the SEC, at the SEC's Public Reference Room at 450 Fifth
Street, N.W., Washington, D.C. 20549. For information on the operation of the
Public Reference Room, you can call the SEC at 1-800-SEC- 0330. In addition, the
SEC maintains an Internet site (web address - http://www.sec.gov) that contains
reports, proxy and information statements and other information regarding the
Company. You can also access the SEC's database of the Company's filings through
the Company's Internet site (web address - http://www.telxon.com).
Because the following documents have already been or will be filed by the
Company with SEC, the information concerning the Company contained in these
filings is incorporated by reference into the prospectus of which this document
is a part in lieu of including that information directly in the prospectus:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended March 31, 1998, as amended by Amendments No.1 and 2 thereto, each
on Form 10-K/A (as so amended, the "Form 10-K"),
(b) The Company's Current Report on Form 8-K dated April 21, 1998,
(c) The Company's Current Report on Form 8-K dated May 8, 1998,
(d) The Company's Current Report on Form 8-K dated June 5, 1998,
(e) The Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1998, as amended by Amendment No.1 thereto on Form 10-Q/A,
(f) The Company's Current Report on Form 8-K dated July 20, 1998,
(g) The Company's Current Report on Form 8-K dated August 26,
1998,
(h) The Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1998,
(i) The Company's Current Report on Form 8-K dated October 20,
1998,
(j) All other reports filed by the Company with the SEC pursuant
to Sections 13(a) or 15(d) of the Exchange Act subsequent to the Form
10-K and prior to the filing of a post-effective amendment indicating
that all of the Shares have been sold or deregistering all such Shares
then remaining unsold, and
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(k) The description of the Common Stock set forth under the
caption "Item 1. Description of Registrant's Securities to be Registered"
in the Registration Statement on Form 8-A filed by the Company with
respect to the Common Stock pursuant to Section 12(g) of the Exchange
Act, as amended by Amendment No.1 thereto filed under cover of a Form 8
and Amendment No. 2 thereto filed on Form 8-A/A.
AVAILABLE INFORMATION
You may request, orally or in writing, copies of the following
documents from the Company, which will be provided to you free of charge:
- all of the documents listed in (a) through (k) immediately
above (excluding any exhibits to such documents unless such
exhibits are specifically incorporated by reference into
the Registration Statement on Form S-8 which is filed with
the SEC with respect to the Common Stock issuable under the
Plan),
- all documents constituting part of the prospectus under the
Form S-8 Registration Statement, and
- all reports, proxy statements and other communications
distributed by the Company to its stockholders generally.
Of the above documents, a copy of the Company's Form 10-K for its most recent
fiscal year ended March 31, 1998 accompanies this document. You should direct
requests for copies of any of the above documents to Telxon Corporation, 3330
West Market Street, Akron, Ohio 44333, Attention: Vice President, Human
Resources/Administration; telephone 1-800-800-8001.
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EXHIBIT A
TELXON CORPORATION
1995 EMPLOYEE STOCK PURCHASE PLAN
(AS AMENDED THROUGH SEPTEMBER 26, 1995)
1. PURPOSE OF THE PLAN. The Plan is intended as an incentive to and to
encourage stock ownership by all Eligible Employees of the Company and
Participating Subsidiaries so that they may share in the fortunes of the
Company by acquiring or increasing their proprietary interest in the Company.
The Plan is designed to encourage Eligible Employees to remain in the employ of
the Company. It is intended that options granted pursuant to this Plan shall
constitute options issued pursuant to an "employee stock purchase plan" within
the meaning of Section 423 of the Code.
2. DEFINITIONS. In addition to such other capitalized terms as are
defined elsewhere in this Plan, the following terms shall when used in this Plan
have the respective meanings set forth below:
(a) "Business Day" means a day on which there is trading in the
Common Stock on the Principal Market
(b) "Base Compensation" means an employee's annual base salary, or
if not salaried, annualized amount of hourly pay (including any shift or
other compensatory premium which employee will regularly receive) based
on the employee's regular weekly or biweekly hours, for services rendered
to the Company and Participating Subsidiaries, including paid vacation
and holidays and before adjustment for salary reduction contributions to
the Company's 401(k) plan, health care or dependent care spending
accounts and similar pre-tax plans but excluding bonuses and commissions.
(c) "Closing Price" means the closing price for one share of
Common Stock on the Principal Market.
(d) "Code" means the Internal Revenue Code of 1986, as amended
ftom time to time.
(e) "Committee" means the Stock Option and Restricted Stock
Committee of the Board of Directors.
(f) "Common Stock" means the Common Stock, par value $.O1 per
share, of the Company.
(g) "Company" means Telxon Corporation, a Delaware corporation.
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(h) "Covered Compensation" means an employee's Base Compensation
plus bonuses, commissions, overtime and other premium payments, sick pay,
and short-term disability payments but excluding severance pay and
taxable fringe benefits (such as club dues, excess life insurance and
personal automobile use); provided, however, that no more than $150,000
in cumulative aggregate amount of all of the foregoing forms of included
compensation during any single Payment Period or two Payment Periods
together comprising a single calendar year may be counted as Covered
Compensation for purposes of any payroll deductions, stock purchases or
other computations under this Plan with respect to such Payment
Period(s).
(i) "Eligible Employees" shall have the meaning set forth in
Section 3.
(j) "Option Price" means, in respect of each Payment Period, the
dollar amount (carried out to one one-thousandth of a cent ($0.00001))
equal to 85% of the lesser of (i) the Closing Price of the Common Stock
on the first Business Day of the Payment Period and (ii) the Closing
Price of the Common Stock on the last Business Day of the Payment Period.
(k) "Participating Subsidiaries" means any majority-owned
subsidiary of the Company which is designated by the Committee to
participate in the Plan. The Committee shall have the power to make such
designation before or after the Plan is approved by the Company's
stockholders.
(l) "Payment Period" means the six month periods during which
payroll deductions will be accumulated under the Plan.
(m) "Plan" means this Telxon Corporation 1995 Employee Stock
Purchase Plan.
(n) "Principal Market" means The Nasdaq Stock Market's National
Market or stock exchange which is then the principal trading market for
the Common Stock (if the Common Stock is traded on more than one market,
that market which the Committee determines to be the principal trading
market).
(o) "Securities Law Requirements" means the Securities Act of
1933, the Securities and Exchange Act of 1934 and the rules and
regulations promulgated by the Securities and Exchange Commission
thereunder, including but not limited to Rule 16b-3, as adopted and
amended from time to time and as interpreted by formal or informal
opinions of and releases published or other interpretative advice
provided by the Staff of the Securities and Exchange Commission. and the
requirements of any stock exchange, automated interdealer quotation
system or other recognized securities market on which the Common Stock is
listed or traded on in which the Common Stock is included, as adopted and
amended from time to time and as interpreted by formal or informal
opinions of, and other interpretative advice provided by, the
representatives of such stock exchange, quotation system or other
securities market.
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3. ELIGIBLE EMPLOYEES. Each full-time employee of the Company or any of
its Participating Subsidiaries, and each part-time employee thereof regularly
working at least 20 hours per week or 40 hours every two weeks, who has
completed 12 months of continuous employment with the Company and/or one or more
of its Participating Subsidiaries and whose Base Compensation does not exceed
$150,000 shall be eligible to receive options under this Plan to purchase Common
Stock (except employees in countries whose laws make participation impractical).
Persons who have been so employed for 12 months or more on the first day of a
Payment Period shall receive their options as of such day. The determination of
an employee's Plan eligibility with respect to the Base Compensation limitation
will be made only as of the beginning of each Payment Period, based on the rate
of Base Compensation he or she is then receiving, without regard to any changes
in his or her Base Compensation that may subsequently be made during that
Payment Period (including any changes given retroactive effect to a date prior
to the commencement of the Payment Period). Except as otherwise provided in
Section 14, all other eligibility requirements must be satisfied at all times
throughout the Payment Period until and including the third Friday of the last
month of such Payment Period or, in the case of the requirement that a
participant be employed by the Company or a Participating Subsidiary, up until
and including the last Business Day of such Payment Period (provided that, after
the third Friday of the last month of the Payment Period, satisfaction of said
employment conditions shall be determined without regard to the full-time and
part-time minimum hour requirements of the first sentence of this Section 3,
which full-time and part-time minimum shall apply for that Payment Period only
through said third Friday). All participating employees satisfying the
eligibility requirements of the Plan as of said third Friday or last Business
Day of the Payment Period as provided in the preceding sentence shall be
entitled to purchase shares on the last Business Day of such Payment Period as
provided in this Plan. Any employee eligible to and duly participating in the
Plan as of the beginning of a Payment Period but who at any time during that
Payment Period loses his or her status as an Eligible Employee will be deemed to
have lost such status, and to have withdrawn from participation in the Plan as
described in Section 10, effective as of the beginning of the regular payroll
period during which he or she ceases to satisfy any such requirement; provided,
however, that if such ineligibility is the result of the termination of his or
her employment, the provisions of Section 15 shall, subject to the provisions of
Section 14, control over the foregoing provisions of this sentence.
In no event may an employee be granted an option if such employee,
immediately after the option is granted, owns stock representing 5% or more of
the total combined voting power or value of all classes of stock of the Company.
For purposes of determining stock ownership under this paragraph, the rules of
Section 425(d) of the Code shall apply, and stock which the employee may
purchase under outstanding options shall be treated as stock owned by the
employee.
4. STOCK SUBJECT TO THE PLAN. The total number of shares of Common Stock
that may be optioned under the Plan is 500,000 shares, which may consist, in
whole or in part, of unissued shares or treasury shares.
5. PAYMENT PERIODS AND GRANT OF OPTIONS. The six-month periods, January 1
to June 30 and July 1 to December 31, are the Payment Periods during which
payroll deductions will be accumulated under the Plan.
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Two times each year, on the first Business Day of each Payment Period,
each Eligible Employee who is then a participant in the Plan will automatically
be granted by the Company an option to purchase, on the last Business Day of
such Payment Period, at the applicable Option Price, such number of whole
shares of the Common Stock reserved under this Plan as such employee is
entitled to purchase under this Plan with the payroll deductions authorized and
credited to his or her account during each Payment Period in accordance with the
terms hereof; up to that number of shares which does not exceed 15% of the
employee's Covered Compensation during the Payment Period divided by the Option
Price, provided that such employee remains eligible to participate in the Plan
as provided herein. The participant shall be entitled to exercise such options
as granted only to the extent of his or her unused payroll deductions
accumulated as of the third Friday of the last month of a Payment Period.
Deductions after the third Friday of the last month of a Payment Period shall be
included in the subsequent Payment Period.
No employee shall be granted an option which permits his or her rights to
purchase Common Stock under the Plan and any similar plans of the Company or any
parent or subsidiary corporations to accrue at a rate which exceeds $25,000 of
fair market value of such stock (determined at the time such option is granted)
for each calendar year in which such option is outstanding at any time. The
purpose of the lImitation in the preceding sentence is to comply with Section
423(b)(8) of the Code.
6. EXERCISE OF OPTIONS. Each Eligible Employee who continues to qualify
as such as of the last Business Day of a Payment Period, or would have been a
continuing participant in the Plan as of such date had he or she not withdrawn,
or been deemed to have withdrawn, from participation pursuant to Section 10,
shall be deemed by his or her payroll deduction contributions to the Plan during
such Payment Period to have irrevocably stated his or her intention to exercise
his or her option on the last Business Day of such Payment Period and shall be
deemed to have purchased from the Company such number of whole SIres of the
Common Stock reserved for the purposes of the Plan as his or her unused payroll
deductions accumulated as of the third Friday of the last month of such Payment
Period will pay for at the Option Price. If a participant is not an employee of
the Company or any Participating Subsidiary on the last Business Day of a
Payment Period, he or she shall not be entitled to exercise his or her option.
7. AUTHORIZATION FOR ENTERING PLAN. An employee may enter the Plan by
filling out, signing and delivering to the Company's Human Resources Department
a written "Authorization", in form and manner satisfactory to the Company:
(a) stating the whole percentage of Covered Compensation to be deducted
regularly from his or her pay; and
(b) authorizing the purchase of stock for him or her in each Payment
Period in accordance with the terms of the Plan.
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Such Authorization must be received by the Company's Human Resources
Department no later than the third Friday of the last month of a Payment Period
in order to be effective for the following Payment Period.
The Company will accumulate as a credit for the employee's account the
authorized deductions made from his or her pay. No interest will be paid on such
accumulated amounts.
8. AMOUNT OF PAYROLL DEDUCTIONS. An employee may authorize payroll
deductions in a whole percentage amount not less than 1% but not more than 15%
of his or her Covered Compensation received during the Payment Period. Covered
Compensation is considered received on the date a payroll check for, or direct
deposit of; the net amount thereof due employee is issued or made by the Company
(provided, however, that any commission or other advances are not considered
Covered Compensation received until the date such advanced amount has been
actually earned and would have regularly been paid had such amount not been
advanced), and deductions therefrom authorized for purchases of Common Stock
under this Plan are considered made at the time of the issuance or making of the
related check or deposit and not as of the date as of which the associated
Covered Compensation was earned or accrued.
9. CHANGE IN PAYROLL DEDUCTIONS. An employee may increase or decrease
(including to zero) his or her rate of payroll deduction effective only as of
the beginning of a Payment Period and, except as otherwise provided in Section
10, not as of any other time. A new written Authorization will be required to
effect any such change and must be received by the Company's Human Resources
Department no later than the third Friday of the last month of a Payment Period
in order to be effective for the following Payment Period.
10. WITHDRAWAL FROM PARTICIPATION. An employee may withdraw from
participation in the Plan, in whole but not in part, at any time by delivering
to the Company's Human Resources Department a written "Withdrawal", in form and
manner satisfactory to the Company, indicating such employee's intent to
withdraw. Deductions will be stopped as soon as practicable, and deductions
accumulated during such Payment Period prior to the discontinuation of
deductions will be applied to the purchase of stock as of the end of the Payment
Period. Once made, a Withdrawal is irrevocable for the balance of that Payment
Period, and no further contributions can be made during that Payment Period.
An employee who withdraws or is deemed to have withdrawn from the Plan as
provided in this Section 10 will be treated (other than with respect to the
purchase of stock with his or her accumulated pre-withdrawal deductions) as an
employee who has never entered the Plan. To resume participation in the Plan in
any future Payment Period (which resumed participation will be effective only as
of the beginning of such Payment Period), he or she must file a new
Authorization by the third Friday of the last month of the preceding Payment
Period.
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11. ESTABLISHMENT OF BROKERAGE ACCOUNT. By enrolling in the Plan, each
participating employee will be deemed to have authorized the establishment of a
brokerage account in his or her name at such securities brokerage firm as may be
designated from time to time by the Committee and to have consented to the
sharing by such brokerage firm with the Company of information regarding the
disposition of shares from said brokerage account
12. ISSUANCE OF STOCK. Stock purchased under the Plan will be issued, or
in the event the Committee establishes brokerage accounts pursuant to Section
11, held in an account, in the name of the employee, or if his or her
Authorization so designates, in the name of the employee and another person of
legal age as joint tenants with rights of survivorship, unless prohibited by
state or local law. Stock will be issued to or for the account of a
participating employee or his or her designee as of the end of each Payment
Period in an amount equal to the number of shares calculated by dividing his or
her unused payroll deductions accumulated as of the third Friday of the last
month of such Payment Period by the Option Price, rounded down to the nearest
whole share. No fractional shares will be issued or accrued, but the excess of
an employee's accumulated payroll deductions over the aggregate Option Price for
the whole number of shares that can be purchased with such accumulated
deductions with respect to such Payment Period will be carried forward for the
employee's account under the Plan until applied to the purchase of shares in
future Payment Periods or refunded pursuant to the provisions of the Plan. The
Committee may establish a procedure for the refund of such carried-forward
balance to requesting employees who do not continue participation in the Plan
during the Payment Period (or number of Payment Periods specified by the
Committee) subsequent to the Payment Period with respect to which such excess
arises.
13. NO TRANSFER OR ASSIGNMENT OF EMPLOYEE'S RIGHTS. An employee's rights
under the Plan are his or hers alone and may not be transferred, assigned, or be
availed of by any other person. Any option granted to an employee may be
exercised only by him or her.
14. SUSPENSION OF PARTICIPATION. An employee's leave of absence (absence
from active employment not involving authorized vacation, death, retirement,
resignation, discharge, reduction-in-force or layoff, such as due to disability,
illness, compensable or non-compensable injury, personal emergency or other
approved personal leave) shall not have any effect on his or her eligibility to
participate in the Plan, and if such employee was participating in the Plan at
the time such leave commenced, his or her deductions shall be automatically
suspended for the duration of such leave (which suspension shall not constitute
a withdrawal from the Plan subject to Section 10) and, upon such employee's
resumption of an eligible level of active employment, shall automatically resume
at the pre-suspension amount authorized by the employee unless the employee has
properly submitted a revised Authorization in the interim; provided that if the
employee receives Covered Compensation, or payments in lieu thereof; from the
Company during any such leave of absence (such as, for example, short-term
disability benefits), the deduction rate authorized by the employee prior to
such leave (or if the employee has properly submitted a revised Authorization,
at the level specified therein) shall be applied to all such amounts so paid
during such leave of absence.
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15. TERMINATION OF EMPLOYEE'S RIGHTS. Except as otherwise provided in
Section 14, an employee's rights under the Plan will terminate when he or she is
no longer employed by the Company or any Participating Subsidiary, whether
because of retirement, resignation, discharge, death, or for any other reason.
All accumulated payroll deductions not used to purchase stock as of the date of
such cessation of employment will be refunded to the former employee or, in the
event of an employee's death, to his or her estate as an adjustment to such
former employee's final paycheck.
16. TERMINATION OF AND AMENDMENTS TO THE PLAN. The Plan may be terminated
at any time by the Committee. It will terminate in any case when all or
substantially all of the shares of stock reserved for the purposes of the Plan
have been purchased. If at any time shares of stock reserved for the purpose of
the Plan remain available for purchase but not in sufficient number to satisfy
all then unfilled purchase requirements, the available shares shall be
apportioned among participants in proportion to their options, and the Plan
shall terminate. Upon such termination or any other termination of the Plan, all
payroll deductions not used to purchase stock will be refunded.
The Committee also has authority to amend the Plan from time to time in
any respect; provided, however, that no amendment shall be effective without
prior approval of the stockholders of the Company, which would (a) except as
provided in Section 23, increase the number of shares of Common Stock to be
offered above, or (b) change the class of employees eligible to receive options
under the Plan.
17. LIMITATIONS ON SALE OF STOCK PURCHASED UNDER THE PLAN. The Plan is
intended to provide Common Stock for investment and not for resale. The Company
does not, however, intend to restrict or influence any employee in the conduct
of his or her own affairs. An employee may, therefore, sell or otherwise dispose
of stock purchased under the Plan at any time he or she chooses; provided,
however, so that the Company is able to properly account for the consequences
that a disposition of shares purchased under the Plan under the United States
income tax laws, each employee agrees by his or her participation in the Plan to
(a) notify the Company in writing of any withdrawal of shares from the brokerage
account established pursuant to Section 11 and any related sale or other
disposition of the withdrawn shares within ten days thereof, (b) provide such
further information. and otherwise cooperate with the Company in taking such
further steps (which may include the legending of the withdrawn shares), as the
Company may reasonably request to enable it to properly account for such tax
consequences of the transaction described in the notification and any subsequent
sale or other disposition of the withdrawn stock, and (c) if the withdrawal does
not involve a sale or other disposition which is reported on that initial
notification. provide the Company with written notice of any subsequent sale or
other disposition of that withdrawn stock within ten days after the making
thereof An employee shall be obligated to provide such notices and cooperation
under the preceding sentence where such withdrawal, sale or other disposition
occurs within (i) two years after the date of grant of the applicable option. or
(ii) one year after the transfer of such stock to such employee. The Company may
waive such written notification requirement to the extent that it is able to
obtain the necessary information from the brokerage firm designated and serving
pursuant to Section 11. The employee assumes the risk of all market fluctuations
in the price of all stock acquired hereunder.
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18. PLAN EXPENSES. The Company will bear all costs of administering and
carrying out the Plan.
19. ADMINISTRATION OF THE PLAN. The Plan shall be administered by the
Committee. Acts by a majority of the Committee, or acts reduced to or approved
in writing by a majority of the members of the Committee, shall be the valid
acts of the Committee.
The interpretation and construction of the Plan are antrusted to the
discretion of the Committee, and its interpretation and construction of any
provisions of the Plan or of any option granted under it shall be final. The
Committee may from time to time adopt such rules and regulations for carrying
out the Plan as it may deem best. No member of the Board of Directors or the
Committee shall be liable for any action or determination made in good faith
with respect to the Plan or any option granted under it
20. NO EMPLOYMENT RIGHTS. The existence of this Plan shall not create in
any employee any right to be granted an option or to purchase Common Stock
hereunder. Neither the existence of this Plan nor the granting of any option
hereunder to any employee shall confer upon such employee any right to the
continuation of his or her employment with the Company or any subsidiary thereof
or shall in any way interfere with or otherwise limit the right which such
employee, the Company or any subsidiary may otherwise have to terminate such
employment at any time with or without cause. Any benefits realized by an
employee under this Plan or any option granted hereunder shall not be deemed a
part of such employee's regular, recurring compensation for purposes of the
termination, indemnity or severance pay laws of any jurisdiction and shall not
be included in, or have any effect on, the determination of benefits under any
such law or, except as otherwise expressly provided thereby or determined in the
discretion of the person or group authorized to administer the same, any other
employee benefit plan or similar arrangement in which an employee may otherwise
be eligible to participate.
21. OPTIONEES NOT STOCKHOLDERS. Neither the granting of an option to an
employee nor the deductions from his or her pay shall constitute such employee
the owner of the shares covered by an option until such shares have been
purchased by him or her.
22. APPLICATION OF FUNDS. The proceeds received by the Company from the
sale of Common Stock pursuant to options granted under the Plan may be used by
the Company for any corporate purpose. The Company shall have no obligation to
segregate employees' payroll deductions from any other funds of the Company or
to hold funds representing the same pending the application thereof in
accordance with this Plan.
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23. CHANGES IN CAPITAL. If the Common Stock subject to the Plan shall at
any time be changed or exchanged by declaration of a stock dividend, stock
split, combination of shares, recapitalization, merger, consolidation or other
corporate reorganization in which the Company is the surviving corporation, the
number and kind of shares subject to this Plan and the Option Price shall be
appropriately and equitably adjusted. In the event of a dissolution or
liquidation of the Company or a merger, consolidation, sale of all or
substantially all of its assets, or other corporate reorganization in which the
Company is not the surviving corporation, or any merger in which the Company is
the surviving corporation but the holders of its Common Stock receive securities
of another corporation, the then current Payment Period shall be deemed to end
as of the Business Day prior to the effective date of such transaction such that
all then accumulated payroll deductions shall be applied to the purchase of
Common Stock in accordance with the provisions hereof. Other than giving effect
to the provisions of this Section 23, the existence of the Plan or options
hereunder shall not in any way prevent any transaction described herein, and no
holder of an option shall have the right to prevent such transaction.
24. CONDITIONS UPON ISSUANCE OF SHARES. Shares shall not be issued with
respect to an Option unless the exercise of such Option and the issuance and
delivery of Shares pursuant thereto shall comply with all applicable Securities
Law Requirements and all other applicable provisions of law, including, without
limitation, any applicable state "blue sky" laws and foreign (national and
local) securities laws and the rules and regulations promulgated under any of
such laws, and shall be further subject to the approval of counsel for the
Company with respect to such compliance.
As a condition to the exercise of an Option or the issuance of Shares
upon exercise of an Option, the Company may require the person exercising such
Option to make such representations and warranties to the Company as may be
required, in the opinion of counsel for the Company, by any of the
aforementioned Securities Law Requirements and other laws, which may include,
without limitation, representations and warranties that the Shares are being
purchased only for investment and without any present intention to sell or
distribute such Shares.
The Company shall not have any liability to any Plan participant in
respect of any delay in the sale or issuance of Shares hereunder until the
Company is able to obtain governmental authority (domestic or foreign) or the
authority of a self-regulatory organization having jurisdiction over it, which
authority is deemed by the Company's counsel to be necessary to the lawful sale
and issuance of such Shares, or any failure to sell or issue such Shares as to
which such requisite authority the Company is unable to obtain.
25. GOVERNING LAW. To the extent the laws of the United States (such as
the Code) or the Delaware General Corporation Law do not otherwise control, this
Plan and all determinations made and actions taken pursuant hereto shall be
governed by the laws of the State of Ohio, without regard to principles of
conflicts of laws, and construed accordingly.
26. CAPTIONS. The captions contained in this Plan are for convenience of
reference only and shall not affect the meaning of any term or provisions
hereof.
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27. APPROVAL OF STOCKHOLDERS; IMPLEMENTATION OF PLAN. This Plan was
adopted by the Company's Board of Directors subject to and to become effective
only upon approval hereof by the Company's stockholders, which approval was
obtained at the Annual Meeting of such stockholders held August31, 1995. The
Plan shall begin operation using an initial three month transitional Payment
Period ending December 31, 1995, for the purposes of which initial Payment
Period the Closing Price on September 1, 1995 shall be used as the initial
Closing Price called for by Section 2(j)(i) for purposes of determining the
Option Price, October 1, 1995 shall be used as the date for measuring employees'
length of continuous service and Base Compensation for purposes of determining
their eligibility to participate in the Plan, and October 20, 1995 shall be used
as the initial date as of which payroll deductions shall begin to accumulate
under the Plan. Except as specifically provided otherwise in this Section 27,
the Plan shall, during and with respect to said initial Payment Period, be
governed by and administered in accordance with the provisions of the foregoing
Sections 1 through 26 of this Plan. With respect to all Payment periods
beginning on or after January 1, 1996, the Payment Periods, related
determinations of the Option Price and employee eligibility and accumulation of
payroll deductions, and all other matters arising under the Plan shall be
governed by and administered in accordance with the provisions of this Plan
without regard to the transitional rules set forth for the initial
implementation of the Plan as set forth in this Section 27.
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