Exhibit 10.5
AMENDED AND RESTATED
FISHER COMPANIES INCENTIVE PLAN OF 1995
1. Purpose
The purpose of the Plan is to provide selected eligible key employees of
Fisher Companies Inc. ("Company") or any present or future subsidiary of
the Company with an inducement to remain in the employ of the Company and
to participate in the ownership of the Company, and with added incentives
to advance the interests of the Company and increase the value of the
Company's common stock.
2. Definitions
(a) "Committee" shall mean the committee described in Section 3 hereof and
selected by the Company's Board of Directors to administer the Plan.
(b) "Nonemployee Director" has the meaning set forth in Rule 16b-3 under
the Securities Exchange Act of 1934, as amended.
(c) "Options" means any incentive stock option or non-statutory stock
option granted hereunder.
(d) "Rights" means any restricted stock right or performance stock right
granted hereunder.
(e) "Subsidiary" as used in the Plan shall mean any corporation in an
unbroken chain of corporations beginning with the Company if each of
the corporations other than the last corporation in the broken chain,
owns stock possessing 50% or more of the total combined voting power
of all classes of stock in one of the other corporations in such
chain.
3. Administration
(a) The Plan shall be administered by a Committee appointed by the Board
of Directors and to consist of not less than three members of the
Board of Directors, all of whom shall be Nonemployee Directors.
(b) Subject to the terms of the Plan, the Committee shall have full and
final authority to determine the persons who are to be granted Options
and Rights under the Plan and the number of shares subject to each
Option and Right, the option price, the form, terms and conditions,
including but not limited to any target stock prices or any
performance goals of the Options, whether the Options granted shall be
incentive stock options or non-statutory stock options, or both, the
time or times when each Option becomes exercisable, the duration of
the exercise period and the terms and conditions of all
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Rights granted hereunder, and to make such other determinations as may
be appropriate or necessary for the administration of the Plan.
(c) The Committee shall select one of its members as the Chairman, and
shall hold its meetings at such times and places as it shall deem
advisable. At least one-half of its members shall constitute a quorum
for the conduct of business, and any decision or determination
approved by a majority of members present at any meeting in which a
quorum exists shall be deemed to have been made by the Committee. In
addition, any decision or determination reduced to writing and signed
by all of the members shall be deemed to have been made by the
Committee. The Committee may appoint a Secretary, shall keep minutes
of its meetings, and may make such rules and regulations for the
conduct of its business and for the carrying out of the Plan as it
shall deem appropriate.
(d) The interpretation and construction by the Committee of any provisions
of the Plan and of the Options and Rights granted thereunder shall be
final and conclusive on all persons having any interest thereunder.
4. Shares Subject to Plan
Subject to the provisions of Section 18 (relating to adjustment due to
changes in capital structure), the number of shares of stock which may be
issued and sold pursuant to Options and Rights granted under the Plan shall
not exceed Seventy Thousand (70,000) shares of the Company's common stock
(Two Hundred Eighty Thousand (280,000) shares in the event of a four-for-
one stock split that will be effective May 15, 1995, subject to stockholder
approval of an increase in the number of authorized shares). If any Options
or Rights granted under the Plan shall terminate or expire without having
been exercised in full, the stock not purchased or acquired under such
Options or Rights shall be available again for the purposes of the Plan.
5. Eligibility
(a) Options and Rights may be granted only to salaried key management
employees of the Company or a Subsidiary (including officers and
directors who are also salaried employees) who, in the judgment of the
Committee, will perform services of special importance in the
management, operation and development of the business of the Company
or the businesses of one or more of its Subsidiaries, provided:
(i) The Option or Right grant date for an employee shall not occur
during or after the calendar year in which the employee reaches
the age of 65, and
(ii) An Option or Right shall not be granted to an employee who,
immediately after the Option or Right is granted, owns stock
possessing more than five percent (5%) of the total combined
voting power or value of all classes of stock of the Company or a
Subsidiary.
(b) For purposes of determining the stock owned at a given time by an
individual under Section 5(a)(ii) hereof, the following rules shall
apply:
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(i) Stock which the individual may purchase or acquire under
outstanding Options or Rights shall be treated as stock owned by
such individual;
(ii) Stock owned directly or indirectly by or for the individual's
brothers, sisters, spouse, ancestors and lineal descendants
shall be considered as owned by such individual;
(iii) Stock owned directly or indirectly by or for a corporation,
partnership, estate or trust, shall be considered as owned
proportionately by or for its shareholders, partners or
beneficiaries.
6. Price and Term of Option
(a) The exercise price under each Option will be determined by the
Committee but shall not be less than 100% of the fair market value of
the shares of stock covered by the Option at the time of the grant of
the Option, as determined by the Committee,
(b) The term of each Option shall be as determined by the Committee, but
not in excess of ten (10) years from the date it is granted. An Option
granted for an initial term of less than ten (10) years may be
extended by amendment for a period of up to ten (10) years from the
date of the initial grant, provided that no such amendment of an
incentive stock Option shall be made without the prior consent of the
optionee.
7. Limitations on Exercise of Option Rights
(a) Except as provided in Section 13 hereof, the optionee must remain in
the continuous employ of the Company and/or its Subsidiaries for at
least one year from the date the Option is granted before any part
thereof or right thereunder may be exercised. Absence on leave or on
account of illness or disability under rules established by the
Committee shall not, however, be deemed an interruption of employment
for purposes of the Plan. Thereafter, the Option may be exercisable in
whole or in installments in accordance with its terms, as determined
by the Committee.
(b) The minimum number of shares with respect to which option rights may
be exercised in part at any time shall be determined by the Committee
at the time the Option is granted.
(c) With respect to incentive stock Options granted to an employee under
the Plan, the aggregate fair market value (determined at the time the
Options are granted) of the stock with respect to which incentive
stock Options are exercisable for the first time by such employee
during any calendar year (including all such plans of the Company and
its Subsidiaries) shall not exceed $100,000.
8. Method of Exercise of Option
Each exercise of an Option granted hereunder, whether in whole or in part,
shall be by written notice to the Chief Executive Officer of the Company
designating the number of shares as to which the Option is exercised, and,
where stock is to be purchased pursuant to such exercise, shall be
accompanied by payment in full for the number of shares so
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designated. Stock to be purchased under the Plan may be paid for in cash,
in shares of the Company's common stock (held by the Optionee for more than
six months) at their fair market value on the date of exercise, or partly
in cash and partly in such shares. Fractional shares may not be purchased
under an Option, and fractional shares may not be delivered to the Company
for payment of the option price. No shares shall be issued until full
payment thereof has been made. Each optionee who has exercised an Option
shall, upon notification of the amount due and prior to or concurrently
with delivery of the certificates representing the shares, pay to the
Company amounts necessary to satisfy applicable federal, state and local
withholding tax requirements.
9. Form of Option Agreement
Each Option agreement shall contain the essential terms of the Option and
such other provisions as the Committee shall from time to time determine,
but such Option agreements need not be identical. If the Option is an
incentive stock option, the instrument evidencing such Option shall contain
such terms and provisions relating to exercise and otherwise as may be
necessary to render it an incentive stock option under the applicable
provisions of the Internal Revenue Code of 1986, as amended (presently
Section 422 thereof), and the Regulations thereunder, or corresponding
provisions of subsequent laws and regulations.
10. Financing of Options
The Company and its Subsidiaries may not extend credit, arrange credit,
guarantee obligations, or otherwise aid employees in financing their
purchases of stock pursuant to Options granted under this Plan.
11. Restricted Stock Rights
(a) The Committee may grant any eligible employee restricted stock rights
which entitle such employee to receive a stated number of shares of
the Company's stock if the employee for a stated number of years
remains continuously employed by the Company or a Subsidiary or,
following the employee's normal retirement, serves on the Board of
Directors of the Company or in another capacity approved by the
Committee (the "Restricted Period"). At the time the restricted stock
right is issued, the Committee shall designate the length of the
Restricted Period and the service that will qualify under the
Restricted Period; provided, however, in no event may the Restricted
Period extend beyond the fifth anniversary date of the employee's
termination of employment. The Committee shall also have full and
final authority to select the employees who receive restricted stock
rights, to specify the number of shares of stock subject to each such
right, and to establish the other terms, conditions and definitions
that govern such rights.
(b) The Company shall pay to each holder of an unexpired restricted stock
right during the Restricted Period, as additional compensation, an
amount of cash equal to the dividends that would have been payable to
the holder of such right during the Restricted Period if the holder
had owned the stock subject to the right. Such amount shall be paid as
near in time as reasonably practical to the applicable dividend
payment dates.
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(c) At the expiration of each Restricted Period, the Company shall issue
to the holder of the restricted stock right the shares of stock
relating to such Restricted Period, provided all conditions have been
met.
(d) Upon grant of a restricted stock right, the Company shall deliver to
the recipient a document which sets forth and describes in detail the
terms and conditions of the right.
12. Performance Stock Rights
(a) The Committee may grant to an eligible employee performance stock
rights which entitle such employee to receive a stated number of
shares of the Company's common stock if the employee attains certain
specified performance goals within a stated performance period. The
Committee shall have full and final authority to select the employees
who receive performance stock rights, to specify the number of shares
of stock subject to each such right, to establish the performance
requirements, to establish the performance period and to establish the
terms, conditions and definitions that govern such rights.
(b) Unlike restricted stock rights, the Company shall not pay to each
holder of an unexpired performance stock right during the performance
period an amount of cash equal to the dividends that would have been
payable to the holder during the performance period if the holder had
owned the stock subject to the right.
(c) At such time that the performance requirements of a performance stock
right are satisfied, the Company shall issue to the holder of the
performance stock right the shares of stock subject to the right. If
the performance requirements are not met by the expiration of the
performance period, the performance stock right shall expire and the
holder thereof shall have no further rights thereunder.
(d) Upon granting a performance stock right, the Company shall issue to
the recipient a document which sets forth and describes in detail the
terms and conditions of the right.
13. Termination of Employment
(a) In the event the employment of an optionee by the Company or a
Subsidiary shall terminate for any reason other than the optionee's
normal retirement, the optionee having become age 65, physical
disability as hereinafter provided or death, the Option may be
exercised by the optionee at any time prior to the expiration date of
the Option or the expiration of three months after the date of such
termination of employment, whichever is the shorter period, but only
if and to the extent the optionee was entitled to exercise the Option
at the date of such termination.
(b) If an optionee retires under the normal retirement policies of the
Company or a Subsidiary having become age 65, the Option may be
exercised by the optionee at any time prior to the expiration date of
the Option but in any event no later than the fifth anniversary date
of the optionee's termination of employment.
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(c) If an optionee dies while in the employ of the Company or a
Subsidiary, or dies following termination of employment but during the
period that the Option could have been exercised by the optionee, the
optionee's Option rights may be exercised at any time by the person or
persons to whom such rights under the Option shall pass by will or by
the laws of descent and distribution, and, with respect to such
decedents, such Options may be exercised without regard to the
limitation provided in Section 7(a) (relating to one year of
employment) or installment limitations, if any, that would otherwise
apply. But with respect to a decedent whose employment was terminated
for any reason other than normal retirement, death or disability
within the meaning of Section 22(e)(3) of the Internal Revenue Code of
1986, as amended, such Option rights may be exercised only to the
extent exercisable on the date of termination of employment.
(d) In the event of the termination of the optionee's employment because
of the disability within the meaning of Section 22(e)(3) of the
Internal Revenue Code of 1986, as amended, the Option may be exercised
by the optionee at any time prior to the expiration date of the Option
or the expiration of one year after the date of such termination,
whichever is the shorter period, and, with respect to such optionee,
such Option may be exercised without regard to the limitation provided
in Section 7(a) (relating to one year of employment) or installment
limitations, if any, that would otherwise apply.
(e) In the event a holder of restricted stock rights issued under the
provisions of Section 11 hereof fails to satisfy the employment or
service requirements for the issuance of stock under such rights for
any reason other than death or disability as herein defined, such
holder shall lose all rights to receive stock under the provisions of
the restricted stock rights. In the event a holder of a restricted
stock right is unable to satisfy the requirements of a restricted
stock right because of death or disability within the meaning of
Section 22(e)(3) of the Internal Revenue Code of 1986, as amended,
then, the holder or the personal representative of the holder's
estate, as the case may be, shall be issued a number of shares of
stock equal in number to the total number of unissued shares covered
by such restricted stock rights. Such shares shall be issued or
payment made without regard to any employment or other service
requirement stated in the restricted stock rights.
(f) In the event the employment of an employee who holds a performance
stock right granted under the provisions of Section 12 hereof
terminates for any reason prior to the expiration of the performance
period specified in the performance stock right, then, except to the
extent the Committee may decide otherwise in select situations, such
employee shall lose all fights to thereafter receive any stock under
such performance stock right.
(g) To the extent that the Option of any deceased optionee or of any
optionee whose employment is terminated shall not have been exercised
within the time periods provided above, all further rights to purchase
shares pursuant to such Option shall cease and terminate at the
expiration of such period.
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(h) If a corporation ceases to be a Subsidiary of the Company, employees
of such corporation shall be deemed to have terminated their
employment with the Company or a Subsidiary of the Company for
purposes of this Plan.
14. Options and Rights Not Transferable
Any Option or Right granted hereunder shall not be transferable except by
will or by the laws of descent and distribution of the state or country of
the employee's domicile at the date of death, and, during the lifetime of
the person to whom the Option or Right is granted, only the optionee or the
guardian of the optionee may exercise it.
15. Rights as Stockholder
Neither a person to whom an Option or Right is granted, nor such person's
legal representative, heir, legatee or distributee, shall be deemed to be
the holder of, or to have any rights of a holder with respect to, any
shares subject to such Option or Right, until after the stock is issued.
16. Amendments to the Plan
The Company's Board of Directors may from time to time make such amendments
to the Plan as it may deem proper and in the best interests of the Company
or a Subsidiary, provided that -
(a) No amendment shall be made which (i) would impair, without the consent
of the applicable employee, any Option or Right theretofore granted
under the Plan or deprive any employee of any shares of stock which he
may have acquired through or as a result of the Plan, or (ii) would
withdraw the administration of the Plan from a Committee of Directors
of the Company meeting the qualifications set forth in Section 3(a)
hereof.
(b) Any such amendment which would --
(i) Materially increase the benefits accruing to participants under
the Plan,
(ii) Increase the number of securities which may be issued under the
Plan, or
(iii) Materially modify the requirements as to eligibility for
participation in the Plan
shall be submitted to the shareholders of the Company for their approval at
the next annual or special meeting after adoption by the Board of
Directors, and if such shareholder approval is not obtained, the amendment,
together with any actions taken under the Plan on the necessary authority
of such amendment, shall be null and void.
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17. Termination of the Plan
Options and Rights may be granted under the Plan at any time prior to the
seventh (7th) anniversary date of the effective date of the Plan, on which
anniversary date the Plan will expire except as to those Options and Rights
then outstanding thereunder, which Options and Rights shall remain in
effect until they have been exercised or have expired in accordance with
their terms. The Plan may be abandoned or terminated at any time by the
Company's Board of Directors, except with respect to Options and Rights
then outstanding under the Plan.
18. Changes in Capital Structure
(a) Except as provided in subparagraph (c), in the event that the
outstanding shares of stock are hereafter increased or decreased or
changed into or exchanged for a different number or kind of shares or
other securities of the Company or of another corporation, by reason
of any reorganization, merger, consolidation, recapitalization,
reclassification, stock split-up, combination of shares, dividend
payable in shares, rights offering, change in the corporate structure
of the Company, or otherwise appropriate adjustment shall be made in
the number and kind of shares for which Options and Rights may be
granted under the Plan. In addition, an appropriate adjustment shall
be made in the number and kind of shares as to which outstanding
Options and Rights, or portions thereof then unexercised, shall be
exercisable, to the end that the proportionate interest of the
existing holder of an Option or Right shall be maintained as before
the occurrence of such event. Such adjustment in outstanding Options
and Rights shall be made without change in the total price applicable
to the unexercised portion of the Option and Right and with a
corresponding adjustment in the exercise price per share. Any such
adjustment made by the Board of Directors shall be conclusive.
(b) In the event of dissolution or liquidation of the Company or a
reorganization, merger or consolidation with one or more corporations,
in lieu of providing for Options and Rights as provided for above in
this Section 18, the Board of Directors of the Company may, in its
sole discretion, provide a 30-day period immediately prior to such
event during which optionees shall have the right to exercise Options
in whole or in part without any limitations on exercisability.
19. Approvals
The obligation of the Company under this Plan shall be subject to the
approval of such state or federal authorities or agencies, if any, as may
have jurisdiction in the matter. Shares shall not be issued with respect to
an Option or Right unless the exercise and the issuance and delivery of the
shares shall comply with all relevant provisions of law, including, without
limitation, any applicable state securities laws, the Securities Act of
1933, as amended, the Securities Exchange Act of 1934, as amended, the
Internal Revenue Code of 1986, as amended, the respective rules and
regulations promulgated thereunder, and the requirements of any stock
exchange upon which the shares may then be listed, and shall be further
subject to the approval of counsel for the Company with respect to such
compliance. Inability of the Company to obtain from any regulatory body
having jurisdiction authority deemed by the
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Company's counsel to be necessary to the lawful issuance and sale of any
shares hereunder shall relieve the Company of any liability for the
nonissuance or sale of such shares. The Board may require any action or
agreement by an employee holding an Option or Right as may from time to
time be necessary to comply with the federal and state securities laws. The
Company shall not be obliged to register Options or Rights, or stock
granted or purchased under the Plan.
20. Employment Rights
Nothing in this Plan or any Option or Right granted pursuant thereto shall
confer upon any employee any right to be continued in the employment of the
Company or any Subsidiary of the Company, or to interfere in any way with
the right of the Company, in its sole discretion, to terminate such
employee's employment at any time.
21. Effective Date of the Plan
The original effective date of this Plan is April 27, 1995. This Plan was
amended effective April 11, 1997. This Plan was further amended on April
29, 1999, effective with regard to all grants of Options or Rights on or
after April 29,1999, and to Options or Rights granted prior thereto,
provided that the optionee or the holder of the Rights consents to the
application of the April 29, 1999, amendment.
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