EXHIBIT 10.1
TUPPERWARE CORPORATION
1996 INCENTIVE PLAN
(As amended August 18, 1999 and August 10, 2000)
Article 1. Establishment, Purpose, and Duration
1.1 Establishment of the Plan. Tupperware Corporation, a
Delaware corporation (hereinafter referred to as the
''Company''), hereby establishes an incentive compensation plan
to be known as the ''Tupperware Corporation 1996 Incentive Plan''
(hereinafter referred to as the ''Plan''), as set forth in this
document. The Plan permits the grant of Nonqualified Stock
Options, Incentive Stock Options, Stock Appreciation Rights,
Restricted Stock, and Performance Awards. The Plan shall become
effective as of the Effective Date, and shall remain in effect as
provided in Section 1.3 herein.
1.2 Purpose of the Plan. The purpose of the Plan is to promote
the success and enhance the value of the Company by linking the
personal interests of Participants to those of the Company's
stockholders, and by providing Participants with an incentive for
outstanding performance. The Plan is further intended to provide
flexibility to the Company in its ability to motivate, attract,
and retain the services of Participants upon whose judgment,
interest, and special efforts the successful conduct of its
operations largely is dependent.
1.3 Duration of the Plan. The Plan shall commence on the
Effective Date and shall remain in effect, subject to the right
of the Board of Directors to terminate, amend or modify the Plan
at any time pursuant to Article 14 herein, until all Shares
subject to it shall have been purchased or acquired according to
the Plan's provisions. However, in no event may an Award be
granted under the Plan on or after May 1, 2006.
Article 2. Definitions
Whenever used in the Plan, the following terms shall have the
meanings set forth below and, when the meaning is intended, the
initial letter of the word is capitalized:
(a) ''Award'' means, individually or collectively, a grant
under this Plan of Nonqualified Stock Options, Incentive
Stock Options, SARs, Restricted Stock, or Performance
Awards.
(b) ''Award Agreement'' means an agreement entered into by
each Participant and the Company, setting forth the terms
and provisions applicable to Awards granted to Participants
under this Plan.
(c) ''Beneficial Owner'' shall have the meaning ascribed to
such term in Rule 13d-3 of the General Rules and
Regulations under the Exchange Act.
(d) ''Beneficiary'' means a person who may be designated by
a Participant pursuant to Article 10 and to whom any
benefit under the Plan is to be paid in case of the
Participant's death or physical or mental incapacity, as
determined by the Committee, before he or she receives any
or all of such benefit.
(e) ''Board'' or ''Board of Directors'' means the Board of
Directors of the Company.
(f) ''Cause'' means (i) conviction of a Participant for
committing a felony under federal law or the law of the
state in which such action occurred, (ii) dishonesty in the
course of fulfilling a Participant's employment duties or
(iii) willful and deliberate failure on the part of a
Participant to perform his employment duties in any
material respect, or such other events as shall be
determined by the Committee. The Committee shall have the
sole discretion to determine whether ''Cause'' exists, and
its determination shall be final.
(g) ''Change of Control'' of the Company means:
i. An acquisition by any Person of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 20% or more of either (1) the then
outstanding Shares (the ''Outstanding Company Common
Stock'') or (2) the combined voting power of the then
outstanding Shares entitled to vote generally in the
election of directors (the ''Outstanding Company Voting
Securities''); excluding, however, the following: (1)
any acquisition directly from the Company, other than an
acquisition by virtue of the exercise of a conversion
privilege unless the security being so converted was
itself acquired from the Company, (2) any acquisition by
the Company, (3) any acquisition by any employee benefit
plan (or related trust) sponsored or maintained by the
Company or any corporation controlled by the Company or
(4) any acquisition by any Person pursuant to a
transaction which complies with clauses (1), (2) and (3)
of subsection (iii) of this definition; or
ii. A change in the composition of the Board such that
the individuals who, as of the effective date of the
Plan, constitute the Board (such Board shall be
hereinafter referred to as the ''Incumbent Board'')
cease for any reason to constitute at least a majority
of the Board; provided, however, for purposes of this
definition, that any individual who becomes a member of
the Board subsequent to such effective date, whose
election, or nomination for election by the Company's
stockholders, was approved by a vote of at least a
majority of those individuals who are members of the
Board and who were also members of the Incumbent Board
(or deemed to be such pursuant to this proviso) shall be
considered as though such individual were a member of
the Incumbent Board; but, provided further, that any
such individual whose initial assumption of office
occurs as a result of either an actual or threatened
election contest (as such terms are used in Rule 14a-11
of Regulation 14A promulgated under the Exchange Act) or
other actual or threatened solicitation of proxies or
consents by or on behalf of a person or legal entity
other than the Board shall not be so considered as a
member of the Incumbent Board; or
iii. The approval by the stockholders of the Company of
a reorganization, merger or consolidation or sale or
other disposition of all or substantially all of the
assets of the Company or the acquisition of assets of
another corporation (''Corporate Transaction'') or, if
consummation of such Corporate Transaction is subject,
at the time of such approval by stockholders, to the
consent of any government or governmental agency, the
obtaining of such consent (either explicitly or
implicitly by consummation); excluding, however, such a
Corporate Transaction pursuant to which (1) all or
substantially all of the individuals and entities who
are the Beneficial Owners, respectively, of the
Outstanding Company Common Stock and Outstanding Company
Voting Securities immediately prior to such Corporate
Transaction will beneficially own, directly or
indirectly, more than 60% of, respectively, the
outstanding Shares, and the combined voting power of the
then outstanding Shares entitled to vote generally in
the election of directors, as the case may be, of the
Company resulting from such Corporate Transaction
(including, without limitation, a corporation which as a
result of such transaction owns the Company or all or
substantially all of the Company's assets either
directly or through one or more subsidiaries) in
substantially the same proportions as their ownership,
immediately prior to such Corporate Transaction, of the
Outstanding Company Common Stock and Outstanding Company
Voting Securities, as the case may be, (2) no Person
(other than the Company, any employee benefit plan (or
related trust) sponsored or maintained by the Company or
any corporation controlled by the Company or such
corporation resulting from such Corporate Transaction)
will beneficially own, directly or indirectly, 20% or
more of, respectively, the outstanding shares of common
stock of the corporation resulting from such Corporate
Transaction or the combined voting power of the
outstanding voting securities of such corporation
entitled to vote generally in the election of directors
except to the extent that such ownership existed with
respect to the Company prior to the Corporate
Transaction and (3) individuals who were members of the
Incumbent Board will constitute at least a majority of
the board of directors of the corporation resulting from
such Corporate Transaction; or
iv. The approval by the stockholders of the Company of a
complete liquidation or dissolution of the Company.
(h) ''Change of Control Price'' means the higher of (i) the
highest reported sales price, regular way, of a share of
Common Stock in any transaction reported on the New York
Stock Exchange Composite Tape or other national exchange on
which such shares are listed or on NASDAQ during the 60-day
period prior to and including the date of a Change of
Control or (ii) if the Change of Control is the result of a
tender or exchange offer or a Corporate Transaction, the
highest price per share of Common Stock paid in such tender
or exchange offer or Corporate Transaction; provided,
however, that (x) in the case of a Stock Option which (A)
is held by an optionee who is an officer or director of the
Corporation and is subject to Section 16(b) of the Exchange
Act and (B) was granted within 240 days of the Change of
Control, then the Change of Control Price for such Stock
Option shall be the Fair Market Value of the Common Stock
on the date such Stock Option is exercised or deemed
exercised and (y) in the case of Incentive Stock Options
and Stock Appreciation Rights relating to Incentive Stock
Options, the Change of Control Price shall be in all cases
the Fair Market Value of the Common Stock on the date such
Incentive Stock Option or Stock Appreciation Right is
exercised. To the extent that the consideration paid in any
such transaction described above consists all or in part of
securities or other noncash consideration, the value of
such securities or other noncash consideration shall be
determined in the sole discretion of the Board.
(i) ''Code'' means the Internal Revenue Code of 1986, as
amended from time to time.
(j) ''Commission'' means the Securities and Exchange
Commission or any successor agency.
(k) ''Committee'' means the committee described in Article
3 or (unless otherwise stated) its designee pursuant to a
delegation by the Committee as contemplated by Section 3.3.
(l) ''Company'' means Tupperware Corporation, a Delaware
corporation, or any successor thereto as provided in
Article 16 herein.
(m) ''Covered Employee'' has the meaning ascribed thereto
in Section 162(m) of the Code and the regulations
thereunder.
(n) ''Director'' means any individual who is a member of
the Board of Directors of the Company.
(o) ''Disinterested Person'' means a member of the Board
who qualifies as a disinterested person as defined in Rule
16b-3(c)(2), as promulgated by the Commission under the
Exchange Act, or any successor definition adopted by the
Commission.
(p) ''Effective Date'' means May 20, 1996.
(q) ''Employee'' means any nonunion employee of the Company
or of the Company's Subsidiaries. Directors who are not
otherwise employed by the Company shall not be considered
Employees under this Plan.
(r) ''Exchange Act'' means the Securities Exchange Act of
1934, as amended from time to time, or any successor Act
thereto.
(s) ''Fair Market Value'' means, except as expressly
provided otherwise, as of any given date, the mean between
the highest and lowest reported sales prices of the Common
Stock on the New York Stock Exchange Composite Tape or, if
not listed on such exchange, on any other national
securities exchange on which the Common Stock is listed or
on NASDAQ. If there is no regular public trading market for
such Common Stock, the Fair Market Value of the Common
Stock shall be determined by the Committee in good faith.
(t) ''Freestanding SAR'' means a SAR that is granted
independently of any Options pursuant to Section 7.1
herein.
(u) ''Incentive Stock Option'' or ''ISO'' means an option
to purchase Shares, granted under Article 6 herein, which
is designated as an Incentive Stock Option and is intended
to meet the requirements of Section 422 of the Code.
(v) ''Insider'' shall mean an Employee who is, on the
relevant date, an officer, director, or ten percent (10%)
beneficial owner of the Company, as defined under Section
16 of the Exchange Act.
(w) ''Nonqualified Stock Option'' or ''NQSO'' means an
option to purchase Shares, granted under Article 6 herein,
which is not intended to be an Incentive Stock Option.
(x) ''Option'' means an Incentive Stock Option or a Non-
qualified Stock Option.
(y) ''Option Price'' means the price at which a Share may
be purchased by a Participant pursuant to an Option, as
determined by the Committee.
(z) ''Participant'' means an Employee of the Company who
has been granted an Award under the Plan.
(aa) ''Performance Award'' means an Award granted to an
Employee, as described in Article 9 herein, including
Performance Units and Performance Shares.
(ab) ''Performance Goals'' means the performance goals
established by the Committee prior to the grant of
Performance Awards that are based on the attainment of one
or any combination of the following: specified levels of
earnings per share from continuing operations, operating
income, revenues, return on operating assets, return on
equity, stockholder return (measured in terms of stock
price appreciation) and/or total stockholder return
(measured in terms of stock price appreciation and/or
dividend growth), achievement of cost control, working
capital turns, cash flow, net income, economic value added,
segment profit, sales force growth, or stock price of the
Company or such subsidiary, division or department of the
Company for or within which the Participant is primarily
employed and that are intended to qualify under Section
162(m) (4) (c) of the Code. Such Performance Goals also may
be based upon the attaining of specified levels of Company
performance under one or more of the measures described
above relative to the performance of other corporations.
Such Performance Goals shall be set by the Committee within
the time period prescribed by Section 162(m) of the Code
and related regulations.
(ac) ''Performance Period'' means a time period during
which Performance Goals established in connection with
Performance Awards must be met.
(ad) ''Performance Unit'' means an Award granted to an
Employee, as described in Article 9 herein.
(ae) ''Performance Share'' means an Award granted to an
Employee, as described in Article 9 herein.
(af) ''Restriction Period'' or ''Period'' means the period
or periods during which the transfer of Shares of
Restricted Stock is limited based on the passage of time
and the continuation of service with the Company, and the
Shares are subject to a substantial risk of forfeiture, as
provided in Article 8 herein.
(ag) ''Person'' shall have the meaning ascribed to such
term in Section 3(a) (9) of the Exchange Act and used in
Sections 13(d) and 14(d) thereof, including a ''group'' as
defined in Section 13(d).
(ah) ''Restricted Stock'' means an Award granted to a
Participant pursuant to Article 8 herein.
(ai) ''Share'' means a share of common stock of the
Company.
(aj) ''Subsidiary'' or ''Subsidiaries'' means any
corporation or corporations in which the Company owns
directly, or indirectly through subsidiaries, at least
fifty percent (50%) of the total combined voting power of
all classes of stock, or any other entity (including, but
not limited to, partnerships and joint ventures) in which
the Company owns at least fifty percent (50%) of the
combined equity thereof.
(ak) ''Stock Appreciation Right'' or ''SAR'' means an
Award, granted alone (Freestanding SAR) or in connection
with a related Option (Tandem SAR), designated as a SAR,
pursuant to the terms of Article 7 herein.
(al) ''Tandem SAR'' means an SAR that is granted in
connection with a related Option pursuant to Section 7.1
herein, the exercise of which shall require forfeiture of
the right to purchase a Share under the related Option (and
when a Share is purchased under the Option, the Tandem SAR
shall similarly be cancelled).
Article 3. Administration
3.1 The Committee. The Plan shall be administered by the
Compensation and Directors Committee or such other committee of
the Board as the Board may from time to time designate (the
''Committee''), which shall be composed of not less than two
Disinterested Persons each of whom shall be an ''outside
director'' for purposes of Section 162(m)(4) of the Code, and
shall be appointed by and serve at the pleasure of the Board.
3.2 Authority of the Committee. The Committee shall have plenary
authority to grant Awards pursuant to the terms of the Plan to
officers and employees of the Company and its subsidiaries and
Affiliates.
Among other things, the Committee shall have the authority,
subject to the terms of the Plan:
(a) To select the officers and employees to whom Awards may
from time to time be granted;
(b) To determine whether and to what extent Incentive Stock
Options, NonQualified Stock Options, SARs, Restricted Stock
and Performance Awards or any combination thereof are to be
granted hereunder;
(c) To determine the number of Shares to be covered by each
Award granted hereunder;
(d) To determine the terms and conditions of any Award
granted hereunder (including, but not limited to, the
option price (subject to Section 6.4 (a)), any vesting
condition, restriction or limitation (which may be related
to the performance of the Participant, the Company or any
subsidiary or Affiliate) and any vesting acceleration or
forfeiture waiver regarding any Award and the Shares
relating thereto, based on such factors as the Committee
shall determine;
(e) To modify, amend or adjust the terms and conditions of
any Award, at any time or from time to time, including but
not limited to Performance Goals, unless at the time of
establishment of goals the Committee shall have precluded
its authority to make such adjustments; and
(f) To determine to what extent and under what
circumstances Shares and other amounts payable with respect
to an Award shall be deferred.
The Committee shall have the authority to adopt, alter and repeal
such administrative rules, guidelines and practices governing the
Plan as it shall from time to time deem advisable, to interpret
the terms and provisions of the Plan and any Award issued under
the Plan (and any agreement relating thereto) and to otherwise
supervise the administration of the Plan.
3.3 Action of the Committee. The Committee may act only by a
majority of its members then in office, except that the members
thereof may (i) delegate to an officer of the Company the
authority to make decisions pursuant to Section 6.4, provided
that no such delegation may be made that would cause Awards or
other transactions under the Plan to cease either to be exempt
from Section 16(b) of the Exchange Act or to qualify as
''qualified performance-based compensation'' as such term is
defined in the regulations promulgated under Section 162(m) of
the Code, and (ii) authorize any one or more of their number or
any officer of the Company to execute and deliver documents on
behalf of the Committee.
3.4 Decisions Binding. Any determination made by the Committee or
pursuant to delegated authority pursuant to the provisions of the
Plan with respect to any Award shall be made in the sole
discretion of the Committee or such delegate at the time of the
grant of the Award or, unless in contravention of any express
term of the Plan, at any time thereafter. All decisions made by
the Committee or any appropriately delegated officer pursuant to
the provisions of the Plan shall be final and binding on all
persons, including the Company and Plan Participants.
Article 4. Shares Subject to the Plan
4.1 Number of Shares. Subject to adjustment as provided in
Section 4.3 herein, the total number of Shares available for
grant under the Plan shall be six million one hundred thousand
(6,100,000); provided, however, that if during the term of the
Plan the Company repurchases Shares, additional Options may be
granted equal to the number of Shares so repurchased, except that
no more than one million five hundred thousand (1,500,000)
additional Shares shall be authorized for Options under this
proviso; and provided further that the total number of available
Shares that may be used for Restricted Stock Awards under the
Plan shall be limited to three hundred thousand (300,000). No
Participant may be granted Awards covering in excess of 10% of
the Shares available for issuance over the life of the Plan.
Shares subject to an Award under the Plan may be authorized and
unissued shares or may be treasury shares.
The following rules will apply for purposes of the determination
of the number of Shares available for grant under the Plan:
(a) While an Award is outstanding, it shall be counted
against the authorized pool of Shares, regardless of its
vested status.
(b) The grant of an Option or Restricted Stock shall reduce
the Shares available for grant under the Plan by the number
of Shares subject to such Award.
(c) The grant of a Tandem SAR shall not reduce the number
of Shares available for grant by the number of Shares
subject to the related Option (i.e., there is no double
counting of Options and their related Tandem SARs).
(d) The grant of a Freestanding SAR shall reduce the number
of Shares available for grant by the number of Freestanding
SARs granted.
(e) The Committee shall reduce the appropriate number of
Shares from the authorized pool where a Performance Award
is payable in Shares.
4.2 Lapsed Awards. If any Award granted under this Plan is
cancelled, forfeited, terminates, expires, or lapses for any
reason (with the exception of the termination of a Tandem SAR
upon exercise of the related Option or the termination of a
related Option upon exercise of the corresponding Tandem SAR),
any Shares subject to such Award again shall be available for the
grant of an Award under the Plan. However, in the event that
prior to the Award's cancellation, forfeiture, termination,
expiration, or lapse, the holder of the Award at any time
received one or more ''benefits of ownership'' pursuant to such
Award (as defined by the Commission, pursuant to any rule or
interpretation promulgated under Section 16 or any successor rule
of the Exchange Act), the Shares subject to such Award shall not
be made available for regrant under the Plan to Insiders, but
shall be available for regrants under the Plan to Participants
who are not Insiders.
4.3 Adjustments in Authorized Shares and Prices. In the event of
any change in corporate capitalization, such as a stock split or
a corporate transaction, such as any merger, consolidation,
separation, including a spin-off, or other distribution of stock
or property of the Company, any reorganization (whether or not
such reorganization comes within the definition of such term in
Section 368 of the Code) or any partial or complete liquidation
of the Company, the Committee or Board may make such substitution
or adjustments in the aggregate number and class of shares
reserved for issuance under the Plan, in the number, kind and
option price of shares subject to outstanding Stock Options or
SARs, in the number and kind of shares subject to other
outstanding Awards granted under the Plan and/or such other
equitable substitution or adjustments as it may determine to be
appropriate in its sole discretion; provided, however, that the
number of shares subject to any Award shall always be a whole
number. Such adjusted option price shall also be used to
determine the amount payable by the Company upon the exercise of
any Tandem SAR.
Article 5. Eligibility and Participation
5.1 Eligibility. Persons eligible to be granted Awards under this
Plan include all Employees of the Company and its Subsidiaries,
as determined by the Committee, including Employees who are
members of the Board, but excluding Directors who are not
Employees.
5.2 Actual Participation. Subject to the provisions of the Plan,
the Committee may, from time to time, select from all eligible
Employees, those to whom Awards shall be granted and shall
determine the nature and amount of each Award.
Article 6. Stock Options
6.1 Grant of Options. Stock Options may be granted alone or in
addition to other Awards granted under the Plan and may be of two
types: Incentive Stock Options and Nonqualified Stock Options.
Any Stock Option granted under the Plan shall be in such form as
the Committee may from time to time approve. The Committee shall
have the authority to grant any optionee Incentive Stock Options,
Nonqualified Stock Options or both types of Stock Options (in
each case with or without Stock Appreciation Rights); provided,
however, that grants hereunder are subject to the aggregate limit
on grants to individual Participants set forth in Article 4.
Incentive Stock Options may be granted only to employees of the
Company and any ''subsidiary corporation'' (as such term is
defined in Section 424(f) of the Code). To the extent that any
Stock Option is not designated as an Incentive Stock Option or
even if so designated does not qualify as an Incentive Stock
Option, it shall constitute a Nonqualified Stock Option.
6.2 Award Agreement. Stock Options shall be evidenced by option
agreements, the terms and provisions of which may differ. An
option agreement shall indicate on its face whether it is
intended to be an agreement for an Incentive Stock Option or a
Nonqualified Stock Option. The grant of a Stock Option shall
occur on the date the Committee by resolution selects an
individual to be a Participant in any grant of a Stock Option,
determines the number of Shares to be subject to such Stock
Option to be granted to such individual and specifies the terms
and provisions of the Stock Option, or such later date as the
Committee designates. The Company shall notify a Participant of
any grant of a Stock Option, and a written option agreement or
agreements shall be duly executed and delivered by the Company to
the Participant. Such agreement or agreements shall become
effective upon execution by the Company and the Participant.
6.3 Incentive Stock Options. Anything in the Plan to the contrary
notwithstanding, no term of the Plan relating to Incentive Stock
Options shall be interpreted, amended or altered nor shall any
discretion or authority granted under the Plan be exercised so as
to disqualify the Plan under Section 422 of the Code or, without
the consent of the optionee affected, to disqualify any Incentive
Stock Option under such Section 422.
6.4 Terms and Conditions. Stock Options granted under the Plan
shall be subject to the following terms and conditions and shall
contain such additional terms and conditions as the Committee
shall deem desirable:
(a) Option Price. The option price per Share purchasable under a
Stock Option shall be determined by the Committee and set forth
in the option agreement, and shall not be less than the Fair
Market Value of the Common Stock subject to the Stock Option on
the date of grant. Options may not be repriced without
shareholder approval.
(b) Option Term. The term of each Stock Option shall be fixed by
the Committee, but no Incentive Stock Option shall be exercisable
more than 10 years after the date the Stock Option is granted.
(c) Exercisability. Except as otherwise provided herein, Stock
Options shall be exercisable at such time or times and subject to
such terms and conditions as shall be determined by the
Committee. If the Committee provides that any Stock Option is
exercisable only in installments, the Committee may at any time
waive such installment exercise provisions, in whole or in part,
based on such factors as the Committee may determine. In
addition, the Committee may at any time accelerate the
exercisability of any Stock Option.
(d) Method of Exercise. Subject to the provisions of this Article
6, Stock Options may be exercised, in whole or in part, at any
time during the option term by giving written notice of exercise
to the Company specifying the number of Shares subject to the
Stock Option to be purchased.
Such notice shall be accompanied by payment in full of the
purchase price by certified or bank check or such other
instrument as the Company may accept. If approved by the
Committee, payment, in full or in part, may also be made in the
form of delivery of unrestricted Shares already owned by the
optionee of the same class as the Shares subject to the Stock
Option (based on the Fair Market Value of the shares on the date
the Stock Option is exercised), or by certifying ownership of
such Shares by the Participant to the satisfaction of the Company
for later delivery to the Company as specified by the Committee;
provided, however, that, in the case of an Incentive Stock Option
the right to make a payment in the form of already owned Shares
of the same class as the Shares subject to the Stock Option may
be authorized only at the time the Stock Option is granted.
In the discretion of the Committee, payment for any Shares
subject to a Stock Option may also be made pursuant to a
''cashless exercise'' by delivering a properly executed exercise
notice to the Company, together with a copy of irrevocable
instructions to a broker to deliver promptly to the Company the
amount of sale or loan proceeds to pay the purchase price, and,
if requested, the amount of any federal, state, local or foreign
withholding taxes. To facilitate the foregoing, the Company may
enter into agreements for coordinated procedures with one or more
brokerage firms.
No shares shall be issued until full payment therefor has been
made. An optionee shall have all of the rights of a stockholder
of the Company holding the class or series of Shares that is
subject to such Stock Option (including, if applicable, the right
to vote the shares and the right to receive dividends), when the
optionee has given written notice of exercise and has paid in
full for such Shares.
(e) Restrictions on Share Transferability. The Committee may
impose such restrictions on any Shares acquired pursuant to the
exercise of an Option under the Plan as it may deem advisable,
including, without limitation, restrictions under applicable
Federal securities laws, under the requirements of any stock
exchange or market upon which such Shares are then listed and/or
traded, and under any blue sky or state securities laws
applicable to such Shares.
(f) Nontransferability of Stock Options. No Stock Option shall be
transferable by the optionee other than (i) by will or by
application of the laws of descent and distribution; or (ii) in
the case of a Nonqualified Stock Option, pursuant to (a) a
domestic relations order issued by a tribunal of competent
jurisdiction or (b) a gift to members of such optionee's
immediate family, whether directly or indirectly or by means of a
trust or partnership or otherwise, if expressly permitted under
the applicable option agreement. All Stock Options shall be
exercisable, subject to the terms of this Plan, during the
optionee's lifetime, only by the optionee or by the guardian or
legal representative of the optionee or, in the case of a
Nonqualified Stock Option, its alternative payee pursuant to such
domestic relations order, it being understood that the term
''holder'' and ''optionee'' include the guardian and legal
representative of the optionee named in the option agreement and
any person to whom an option is transferred by will or the laws
of descent and distribution or, in the case of a Nonqualified
Stock Option, pursuant to a domestic relations order or a gift
permitted under the applicable option agreement.
(g) Death. Unless otherwise determined by the Committee, if an
optionee's employment terminates by reason of death, any Stock
Option held by such optionee shall become immediately and fully
exercisable and (unless another period is specified by the
Committee in the option agreement) may thereafter be exercised
by the estate of the optionee for a period of three years from
the date of such death; provided, however, that if the optionee
is at least sixty years of age at the time of death and has
fifteen years service with the Company, such Stock Option may
thereafter be exercised by the estate of the optionee for a
period of six years from the date of such death. In no event,
however, may a Stock Option be exercisable beyond the stated
expiration date of such Stock Option. Notwithstanding any
provision herein to the contrary, unless otherwise determined by
the Committee, if an optionee dies after termination of the
optionee's employment, any Stock Option held by such optionee may
thereafter be exercised, to the extent such Stock Option was
exercisable as of the date of such death, for a period that
expires on the earliest of (i) the first anniversary of the date
of such death, (ii) the last date on which the optionee would
have been entitled to exercise such Stock Option had the optionee
not died or (iii) the date on which the stated term of such Stock
Option expires; provided, however, that if such optionee had
retired from the Company prior to the date of death, the estate
of the optionee shall continue to have the benefit of the vesting
and exercisability benefits specified by Section 6.4(i).
(h) Termination by Reason of Disability. Unless otherwise
determined by the Committee, if an optionee's employment
terminates by reason of Disability, any Stock Option held by such
optionee, if not fully vested and exercisable as of the date of
such termination, shall continue to vest according to such Stock
Option's stated vesting schedule and may thereafter be exercised
by the optionee, to the extent it was exercisable at the time of
termination or thereafter becomes exercisable, or on such
accelerated basis as the Committee may determine, for a period of
three years (or such shorter period as the Committee may specify
in the option agreement) from the date of such termination of
employment or until the expiration of the stated term of such
Stock Option, whichever period is the shorter; provided, however,
that if the optionee dies within such period, any unexercised
Stock Option held by such optionee shall continue to be
exercisable to the extent to which it was exercisable at the time
of death for the remainder of such period, or for a period of 12
months from the date of such death, or until the expiration of
the stated term of such Stock Option, whichever period is the
shortest. In the event of termination of employment by reason of
Disability, if an Incentive Stock Option is exercised after the
expiration of the exercise periods that apply for purposes of
Section 422 of the Code, such Stock Option will thereafter be
treated as a Nonqualified Stock Option.
(i) Termination by Reason of Retirement. Unless otherwise
determined by the Committee, if an optionee's employment
terminates by reason of retirement, the following vesting and
exercisability terms will apply. For purposes of this Plan, an
optionee shall be deemed to have terminated employment by reason
of retirement if such optionee is age 55 years or older with 10
or more years of service with the Company, has given due notice
(as determined by the Committee), and has entered into an
agreement, the form and content of which shall be specified by
the Committee, not to compete with the Company and its Affiliates
for a period of one year following such retirement.
Years of Years of
Age at Continued Continued
Retirement Vesting Exercisability
Following Following
Retirement Retirement
---------- ---------- --------------
55-59 1 2
60-64 2 3
65 or more 3 3
With respect to any grants of a Stock Option occurring after
August 18, 1999, and notwithstanding any inconsistent provision
contained in the first paragraph of this Section 6.4(i), the
following vesting and exercisability terms shall apply. Any
optionee who has attained the age of 60 years or older with 15 or
more years of service with the company, and who meets the other
conditions specified by the second sentence of the first
paragraph of the Section 6.4(i), shall have 6 years of continued
vesting and exercisability following retirement.
Notwithstanding the foregoing, if the optionee dies within such
period of continued exercisability, any unexercised Stock Option
held by such optionee shall continue to be exercisable to the
extent to which it was exercisable at the time of death for the
remainder of such period, or for a period of 12 months from the
date of such death, or until the expiration of the stated term of
such Stock Option, whichever period is the shortest. In the event
of termination of employment by reason of retirement, if an
Incentive Stock Option is exercised after the expiration of the
exercise periods that apply for purposes of Section 422 of the
Code, such Stock Option will thereafter be treated as a
Nonqualified Stock Option.
(j) Other Termination. Unless otherwise determined by the
Committee: (A) if an optionee incurs a voluntary termination of
Employment, any Stock Option held by such optionee, to the extent
then exercisable, or on such accelerated basis as the Committee
may determine, may be exercised for the lesser of thirty days
from the date of such termination of Employment or the balance of
such Stock Option's term; and (B) if an optionee incurs a
termination of Employment because such optionee's Employment is
terminated by the Company or an Affiliate, other than by reason
of retirement or Disability or for Cause, any Stock Option held
by such optionee, to the extent then exercisable, or becomes
exercisable during the one-year period following termination of
employment by the Company or an Affiliate, or on such accelerated
basis as the Committee may determine, may be exercised for the
lesser of one year from the date of such termination of
Employment or the balance of such Stock Option's term; provided,
however, that if the optionee dies within such thirty-day or one-
year period, as the case may be, any unexercised Stock Option
held by such optionee shall continue to be exercisable to the
extent to which it was exercisable at the time of death for the
remainder of such period, or for a period of 12 months from the
date of such death, or until the expiration of the stated term of
such Stock Option, whichever period is the shortest.
Notwithstanding the foregoing, if an optionee incurs a
Termination of Employment at or after a Change of Control, other
than by reason of death, Disability or Retirement, any Stock
Option held by such optionee shall be exercisable for the lesser
of (1) six months and one day from the date of such termination
of Employment, and (2) the balance of such Stock Option's term.
In the event of termination of Employment, if an Incentive Stock
Option is exercised after the expiration of the exercise periods
that apply for purposes of Section 422 of the Code, such Stock
Option will thereafter be treated as a Nonqualified Stock Option.
(k) Termination for Cause. Unless otherwise determined by the
Committee, if an optionee incurs a Termination of Employment for
Cause, all Stock Options held by such optionee shall thereupon
terminate.
(l) Change of Control Cash-Out. Notwithstanding any other
provision of the Plan, during the 60-day period from and after a
Change of Control (the ''Exercise Period''), unless the Committee
shall determine otherwise at the time of grant, an optionee shall
have the right, whether or not the Stock Option is fully
exercisable and in lieu of the payment of the exercise price for
the Shares being purchased under the Stock Option and by giving
notice to the Company, to elect (within the Exercise Period) to
surrender all or part of the Stock Option to the Company and to
receive cash, within 30 days of such notice, in an amount equal
to the amount by which the Change of Control Price per Share
shall exceed the exercise price per Share under the Stock Option
(the ''Spread'') multiplied by the number of Shares granted under
the Stock Option as to which the right granted under this Section
6.4(l) shall have been exercised; provided, however, that if the
Change of Control is within six months of the date of grant of a
particular Stock Option held by an optionee who is an officer or
director of the Company and is subject to Section 16(b) of the
Exchange Act no such election shall be made by such optionee with
respect to such Stock Option prior to six months from the date of
grant. However, if the end of such 60-day period from and after a
Change of Control is within six months of the date of grant of a
Stock Option held by an optionee who is an officer or director of
the Company and is subject to Section 16(b) of the Exchange Act,
such Stock Option shall be cancelled in exchange for a cash
payment to the optionee, effected on the day which is six months
and one day after the date of grant of such Option, equal to the
Spread multiplied by the number of Shares granted under the Stock
Option.
Article 7. Stock Appreciation Rights
7.1 Grant of SARs. Subject to the terms and conditions of the
Plan, a SAR may be granted to an Employee at any time and from
time to time as shall be determined by the Committee. The
Committee may grant Freestanding SARs, Tandem SARs, or any
combination of these forms of SAR. In the case of a Nonqualified
Stock Option, Tandem SARs may be granted either at or after the
time of grant of such Stock Option. In the case of an Incentive
Stock Option, Tandem SARs may be granted only at the time of
grant of such Stock Option.
The Committee shall have complete discretion in determining the
number of SARs granted to each Participant (subject to Article 4
herein) and, consistent with the provisions of the Plan, in
determining the terms and conditions pertaining to such SARs.
However, the grant price of a Freestanding SAR shall be at least
equal to the Fair Market Value of a Share on the date of grant of
the SAR. The grant price of Tandem SARs shall equal the Option
Price of the related Option. In no event shall any SAR granted
hereunder become exercisable within the first six (6) months of
its grant. SARs may not be repriced without stockholder approval.
7.2 Exercise of Tandem SARs. Tandem SARs may be exercised for all
or part of the Shares subject to the related Option upon the
surrender of the right to exercise the equivalent portion of the
related Option. A Tandem SAR shall terminate and no longer be
exercisable upon the termination or exercise of the related Stock
Option. A Tandem SAR may be exercised only with respect to the
Shares for which its related Option is then exercisable.
Notwithstanding any other provision of this Plan to the contrary,
with respect to a Tandem SAR granted in connection with an ISO;
(i) the Tandem SAR will expire no later than the expiration of
the underlying ISO; (ii) the value of the payout with respect to
the Tandem SAR may be for no more than one hundred percent (100%)
of the difference between the Option Price of the underlying ISO
and the Fair Market Value of the Shares subject to the underlying
ISO at the time the Tandem SAR is exercised; and (iii) the Tandem
SAR may be exercised only when the Fair Market Value of the
Shares subject to the ISO exceeds the Option Price of the ISO.
7.3 Exercise of Freestanding SARs. Subject to the other
provisions of this Article 7, Freestanding SARs may be exercised
upon whatever terms and conditions the Committee, at its sole
discretion, imposes upon them.
7.4 SAR Agreement. Each SAR grant shall be evidenced by an Award
Agreement that shall specify the grant price, the term of the
SAR, and such other provisions as the Committee shall determine.
7.5 Term of SARs. The term of a SAR granted under the Plan shall
be determined by the Committee, at its sole discretion; provided,
however, that such term shall not exceed ten (10) years.
7.6 Payment of SAR Amount. Upon exercise of a SAR, a Participant
shall be entitled to receive payment from the Company in an
amount determined by multiplying:
(a) The excess of the Fair Market Value of a Share on the
date of exercise over the grant price of the SAR; by
(b) The number of Shares with respect to which the SAR is
exercised.
At the discretion of the Committee, the payment upon SAR exercise
may be in cash, in Shares of equivalent value, or in some
combination thereof.
7.7 Rule 16b-3 Requirements. Notwithstanding any other provision
of the Plan, the Committee may impose such conditions on exercise
of a SAR (including, without limitation, the right of the
Committee to limit the time of exercise to specified periods) as
may be required to satisfy the requirements of any rule or
interpretation promulgated under Section 16 (or any successor
rule) of the Act.
7.8 Nontransferability of SARs. No SAR granted under the Plan may
be sold, transferred, pledged, assigned, or otherwise alienated
or hypothecated, other than by will or by application of the laws
of descent and distribution. Further, all SARs granted to a
Participant under the Plan shall be exercisable during his or her
lifetime only by such Participant. Notwithstanding the foregoing,
at the discretion of the Committee, an Award Agreement may permit
the transferability of a SAR by a Participant solely to members
of the Participant's immediate family or trusts for the benefit
of such persons.
Article 8. Restricted Stock
8.1 Administration. Shares of Restricted Stock may be awarded
either alone or in addition to other Awards granted under the
Plan. The Committee shall determine the officers and employees to
whom and the time or times at which grants of Restricted Stock
will be awarded, the number of shares to be awarded to any
Participant (subject to the aggregate limit on grants to
individual Participants set forth in Article 4), the conditions
for vesting, the time or times within which such Awards may be
subject to forfeiture and any other terms and conditions of the
Awards, in addition to those contained in Section 8.3.
The Committee may, prior to grant, condition the vesting of
Restricted Stock upon continued service of the Participant. The
provisions of Restricted Stock Awards need not be the same with
respect to each recipient.
8.2 Awards and Certificates. Shares of Restricted Stock shall be
evidenced in such manner as the Committee may deem appropriate,
including book-entry registration or issuance of one or more
stock certificates. Any certificate issued in respect of shares
of Restricted Stock shall be registered in the name of such
Participant and shall bear an appropriate legend referring to the
terms, conditions, and restrictions applicable to such Award,
substantially in the following form:
''The sale or other transfer of the Shares of stock
represented by this certificate, whether voluntary,
involuntary, or by operation of law, is subject to certain
restrictions on transfer as set forth in the Tupperware
Corporation 1996 Incentive Plan, and in a Restricted Stock
Agreement. A copy of the Plan and such Restricted Stock
Agreement may be obtained from Tupperware Corporation.''
The Committee may require that the certificates evidencing such
Shares be held in custody by the Company until the restrictions
thereon shall have lapsed and that, as a condition of any Award
of Restricted Stock, the Participant shall have delivered a stock
power, endorsed in blank, relating to the Common Stock covered by
such Award.
8.3 Terms and Conditions. Shares of Restricted Stock shall be
subject to the following terms and conditions:
(a) Subject to the provisions of the Plan and the
Restricted Stock Agreement referred to in Section 8.3(f),
during the Restricted Period, the Participant shall not be
permitted to sell, assign, transfer, pledge or otherwise
encumber shares of Restricted Stock, except that, if
expressly provided in the Restricted Stock Agreement, a
Participant may, during the Restriction Period, transfer
shares of Restricted Stock to members of the Participant's
immediate family or trusts or partnerships for the benefit
of such persons. Within these limits, the Committee may
provide for the lapse of restrictions based upon period of
service in installments or otherwise and may accelerate or
waive, in whole or in part, restrictions based upon period
of service. Notwithstanding the foregoing, any Restricted
Stock Award granted hereunder shall have a Restriction
Period of not less than three years, except that an
aggregate amount of Restricted Stock Awards not exceeding
one-third of the Shares available for use as Restricted
Stock Awards pursuant to Section 4.1 of the Plan may be
issued without a minimum Restriction Period.
(b) Except as provided in this paragraph (b) and paragraph
(a), above, and the Restricted Stock Agreement, the
Participant shall have, with respect to the shares of
Restricted Stock, all of the rights of a stockholder of the
Company holding the class or series of Shares that is the
subject of the Restricted Stock, including, if applicable,
the right to vote the shares and the right to receive any
cash dividends. Unless otherwise determined by the
Committee in the applicable Restricted Stock Agreement,
dividends payable in Shares shall be paid in the form of
Restricted Stock of the same class as the Shares with which
such dividend was paid, held subject to the vesting of the
underlying Restricted Stock. In the event that any dividend
constitutes a ''derivative security'' or an ''equity
security'' pursuant to Rule 16(a) under the Act, such
dividend shall be subject to a vesting period equal to the
longer of: (i) the remaining vesting period of the Shares
of Restricted Stock with respect to which the dividend is
paid; or (ii) six months. The Committee shall establish
procedures for the application of this provision.
(c) Except to the extent otherwise provided in the
applicable Restricted Stock Agreement and paragraphs (a)
and (d) of this Section 8.3 and Section 13.1(b), upon a
Participant's Termination of Employment for any reason
during the Restriction Period, all Shares still subject to
restriction shall be forfeited by the Participant.
(d) Except to the extent otherwise provided in Section
13.1(b), in the event that a Participant retires or such
Participant's employment is involuntarily terminated (other
than for Cause), the Committee shall have the discretion to
waive, in whole or in part, any or all remaining
restrictions with respect to any or all of such
Participant's shares of Restricted Stock.
(e) If and when any applicable Restriction Period expires
without a prior forfeiture of the Restricted Stock,
unlegended certificates for such shares shall be delivered
to the Participant upon surrender of the legended
certificates.
(f) Each Award shall be confirmed by, and be subject to,
the terms of a Restricted Stock Agreement.
Article 9. Performance Awards
9.1 Grant of Performance Awards. Subject to the terms of the
Plan, Performance Awards may be granted to eligible Employees at
any time and from time to time, as shall be determined by the
Committee, and may be granted either alone or in addition to
other Awards granted under the Plan. The Committee shall have
complete discretion in determining the number, amount and timing
of Awards granted to each Participant. Such Performance Awards
may take the form determined by the Committee, including without
limitation, cash, Shares, Performance Units and Performance
Shares, or any combination thereof. Performance Awards may be
awarded as short-term or long-term incentives.
9.2 Performance Goals. (a) The Committee shall set Performance
Goals at its discretion which, depending on the extent to which
they are met, will determine the number and/or value of
Performance Awards that will be paid out to the Participants, and
may attach to such Performance Awards one or more restrictions,
including, without limitation, a requirement that Participants
pay a stipulated purchase price for each Performance Share, or
restrictions which are necessary or desirable as a result of
applicable laws or regulations. Each Performance Award may be
confirmed by, and be subject to, a Performance Award Agreement.
(b) The Committee shall have the authority at any time to
make adjustments to Performance Goals for any outstanding
Performance Awards which the Committee deems necessary or
desirable unless at the time of establishment of goals the
Committee shall have precluded its authority to make such
adjustments.
(c) Performance Periods shall, in all cases, exceed six (6)
months in length.
9.3 Value of Performance Units/Shares. (a) Each Performance Unit
shall have an initial value that is established by the Committee
at the time of grant.
(b) Each Performance Share shall have an initial value
equal to the Fair Market Value of a Share on the date of
grant.
9.4 Earning of Performance Awards. After the applicable
Performance Period has ended, the holder of Performance Awards
shall be entitled to receive the payout earned by the Participant
over the Performance Period, to be determined as a function of
the extent to which the corresponding Performance Goals have been
achieved, except as adjusted pursuant to Section 9.2(b) or as
deferred pursuant to Article 11.
9.5 Timing of Payment of Performance Awards. Payment of earned
Performance Awards shall be made in accordance with terms and
conditions prescribed or authorized by the Committee. The
Committee may permit the Participants to elect to defer or the
Committee may require the deferral of, the receipt of Performance
Awards upon such terms as the Committee deems appropriate.
9.6 Nontransferability. Performance Awards may not be sold,
transferred, pledged, assigned, or otherwise alienated or
hypothecated, other than by will or by application of the laws of
descent and distribution. Further, a Participant's rights under
the Plan shall be exercisable during the Participant's lifetime
only by the Participant or the Participant's Beneficiary.
Notwithstanding the foregoing, at the discretion of the
Committee, an Award Agreement may permit the transferability of a
Performance Award by a Participant solely to members of the
Participant's immediate family or trusts or partnerships for the
benefit of such persons.
9.7 Termination. Performance Awards shall be subject to the
following terms and conditions:
(a) Except to the extent otherwise provided in the
applicable Performance Award Agreement, if any, and
Sections 9.7(b) and 13.1(c), upon a Participant's
Termination of Employment for any reason during the
Performance Period or before any applicable Performance
Goals are satisfied, the rights to the shares still covered
by the Performance Award shall be forfeited by the
Participant.
(b) Except to the extent otherwise provided in Section
13.1(c), in the event that a Participant's employment is
terminated (other than for Cause), or in the event a
Participant retires, the Committee shall have the
discretion to waive, in whole or in part, any or all
remaining payment limitations (other than, in the case of
Performance Awards with respect to which a Participant is a
Covered Employee, satisfaction of any applicable
Performance Goals unless the Participant's employment is
terminated by reason of death or disability) with respect
to any or all of such Participant's Performance Awards.
Article 10. Beneficiary
10.1 Designation. Each Participant under the Plan may, from time
to time, name any Beneficiary or Beneficiaries (who may be named
contingently or successively). Each such designation shall revoke
all prior designations by the same Participant, shall be in a
form prescribed by the Company, and shall be effective only when
filed by the Participant in writing with the Company during the
Participant's lifetime. Any such designation shall control over
any inconsistent testamentary or inter vivos transfer by a
Participant, and any benefit of a Participant under the Plan
shall pass automatically to a Participant's Beneficiary pursuant
to a proper designation pursuant to this Section 10.1 without
administration under any statute or rule of law governing the
transfer of property by will, trust, gift or intestacy.
10.2 Absence of Designation. In the absence of any such
designation contemplated by Section 10.1, benefits remaining
unpaid at the Participant's death shall be paid pursuant to the
Participant's will or pursuant to the laws of descent and
distribution.
Article 11. Deferrals
The Committee may permit a Participant to elect, or the Committee
may require at its sole discretion subject to the proviso set
forth below, any one or more of the following: (i) the deferral
of the Participant's receipt of cash, (ii) a delay in the
exercise of an Option or SAR, (iii) a delay in the lapse or
waiver of restrictions with respect to Restricted Stock, or (iv)
a delay of the satisfaction of any requirements or goals with
respect to Performance Awards; provided, however, the Committee's
authority to take such actions hereunder shall exist only to the
extent necessary to reduce or eliminate a limitation on the
deductibility of compensation paid to the Participant pursuant to
(and so long as such action in and of itself does not constitute
the exercise of impermissible discretion under) Section 162(m) of
the Code, or any successor provision thereunder. If any such
deferral is required or permitted, the Committee shall establish
rules and procedures for such deferrals, including provisions
relating to periods of deferral, the terms of payment following
the expiration of the deferral periods, and the rate of earnings,
if any, to be credited to any amounts deferred thereunder.
Article 12. Rights of Employees
12.1 Employment. Nothing in the Plan shall interfere with or
limit in any way the right of the Company to terminate any
Participant's employment at any time, nor confer upon any
Participant any right to continue in the employ of the Company.
For purposes of the Plan, transfer of employment of a Participant
between the Company and any one of its Subsidiaries (or between
Subsidiaries) shall not be deemed a termination of employment.
12.2 Participation. No Employee shall have the right to be
selected to receive an Award under this Plan, or, having been so
selected, to be selected to receive a future Award.
Article 13. Change of Control
13.1 Impact of Event. Notwithstanding any other provision of the
Plan to the contrary, in the event of a Change of Control:
(a) Any Stock Options or SARs outstanding as of the date
such Change of Control is determined to have occurred, and
which are not then exercisable and vested, shall become
fully exercisable and vested to the full extent of the
original grant; provided, however, that in the case of the
holder of Stock Options or SARs who is actually subject to
Section 16(b) of the Exchange Act, such Stock Options or
SARs shall have been outstanding for at least six months at
the date such Change of Control is determined to have
occurred.
(b) The restrictions and deferral limitations applicable to
any Restricted Stock shall lapse, and such Restricted Stock
shall become free of all restrictions and become fully
vested and transferable to the full extent of the original
grant.
(c) All Performance Awards shall be considered to be earned
and payable in full, and any deferral or other restriction
shall lapse and such Performance Units shall be settled in
cash as promptly as is practicable.
Article 14. Amendment, Modification, and Termination
14.1 Amendment, Modification, and Termination. At any time and
from time to time, the Board may terminate, amend, or modify the
Plan. However, no amendment, alteration or discontinuation shall
be made which would disqualify the Plan from the exemption
provided by Rule 16b-3, and no such amendment shall be made
without the approval of the Company's stockholders to the extent
such approval is required by law or agreement.
14.2 Awards Previously Granted. No termination, amendment, or
modification of the Plan shall adversely affect in any material
way any Award previously granted under the Plan, without the
written consent of the Participant holding such Award except such
an amendment made to cause the Plan or Award to qualify for the
exemption provided by Rule 16b-3. The Committee shall have the
right to replace any previously-granted Award under the Plan with
an Award equal to the value of the replaced Award at the time of
replacement, without obtaining the consent of the Participant
holding such Award.
Subject to the above provisions, the Board shall have authority
to amend the Plan to take into account changes in law and tax and
accounting rules as well as other developments, and to grant
Awards which qualify for beneficial treatment under such rules
without stockholder approval.
Article 15. Withholding
15.1 Tax Withholding. The Company shall have the power and the
right to deduct or withhold, or require a Participant to remit to
the Company, an amount sufficient to satisfy Federal, state, and
local taxes (including the Participant's FICA obligation)
required by law to be withheld with respect to any taxable event
arising under or as a result of this Plan.
15.2 Share Withholding. With respect to withholding required
and/or permitted upon the exercise of Options or SARs, upon the
lapse of restrictions on Restricted Stock, or upon any other
taxable event hereunder, Participants may elect, subject to the
approval of the Committee, to satisfy the withholding
requirement, in whole or in part, by having the Company withhold
Shares (or by surrendering Shares previously owned which have
been held for longer than six months) having a Fair Market Value
on the date the tax is to be determined equal to the minimum
statutory total tax which could be imposed on the transaction.
All elections shall be irrevocable, made in writing, signed by
the Participant, and elections by Insiders shall additionally
comply with the requirements established by the Committee.
Article 16. Successors
All obligations of the Company under the Plan, with respect to
Awards granted hereunder, shall be binding on any successor to
the Company, whether the existence of such successor is the
result of a direct or indirect purchase, merger, consolidation,
spin-off, or otherwise, of all or substantially all of the
business and/or assets of the Company.
Article 17. Legal Construction
17.1 Gender and Number. Except where otherwise indicated by the
context, any masculine term used herein also shall include the
feminine; the plural shall include the singular and the singular
shall include the plural.
17.2 Severability. In the event any provision of the Plan shall
be held illegal or invalid for any reason, the illegality or
invalidity shall not affect the remaining parts of the Plan, and
the Plan shall be construed and enforced as if the illegal or
invalid provision had not been included.
17.3 Requirements of Law. The granting of Awards and the issuance
of Shares under the Plan shall be subject to all applicable laws,
rules, and regulations, and to such approvals by any governmental
agencies or national securities exchanges as may be required.
With respect to Insiders, transactions under this Plan are
intended to comply with all applicable conditions of Rule 16b-3
or its successors under the Exchange Act. To the extent any
provision of the plan or action by the Committee fails to comply
with Section 17.3, it shall be deemed null and void, to the
extent permitted by law and deemed advisable by the Committee.
Notwithstanding any other provision set forth in the Plan, if
required by any rule or interpretation promulgated under Section
16 of the Exchange Act, any ''derivative security'' or ''equity
security'' offered pursuant to the Plan to any Insider may not be
sold or transferred for at least six (6) months after the date of
grant of such Award. The terms ''equity security'' and
''derivative security'' shall have the meanings ascribed to them
in the then-current Rule 16(a) under the Exchange Act.
Notwithstanding any other provision of the Plan or agreements
made pursuant thereto, the Company shall not be required to issue
or deliver any certificate or certificates for Shares under the
Plan prior to fulfillment of all of the following conditions:
i. Listing or approval for listing upon notice of
issuance, of such shares on the New York Stock Exchange,
Inc., or such other securities exchange as may at the time
be the principal market for the Shares;
ii. Any registration or other qualification of such
Shares under any state or federal law or regulation, or the
maintaining in effect of any such registration or other
qualification which the Committee shall, in its absolute
discretion upon the advice of counsel, deem necessary or
advisable; and
iii. Obtaining any other consent, approval, or permit
from any state or federal governmental agency which the
Committee shall, in its absolute discretion after receiving
the advice of counsel, determine to be necessary or
advisable.
17.4 Pooling. Notwithstanding anything in the Plan to the
contrary, if any right granted pursuant to this Plan would make a
Change of Control transaction ineligible for pooling-of-interests
accounting under APB No.16 that but for the nature of such grant
would otherwise be eligible for such accounting treatment, the
Committee shall have the ability to substitute for the cash
payable pursuant to such grant Common Stock with a Fair Market
Value equal to the cash that would otherwise be payable
hereunder.
17.5 Governing Law. To the extent not preempted by Federal law,
the Plan, and all agreements hereunder, shall be construed in
accordance with and governed by the laws of the State of
Delaware.