EXHIBIT 10.96
UNITED STATIONERS INC.
Restated Management Equity Plan
(11/5/98)
1. PURPOSE
United Stationers Inc., a Delaware corporation (the "Company"), by means of this
Management Equity Plan (the "Plan") desires to afford certain of its directors,
key employees and the key employees of any parent corporation or subsidiary
corporation thereof now existing or hereafter formed or acquired who are
responsible for the continued growth of the Company an opportunity to acquire a
proprietary interest in the Company, and thus to create in such persons an
increased interest in and a greater concern for the welfare of the company and
any parent corporation or subsidiary corporation thereof. As used in the Plan,
the terms "parent corporation" and "subsidiary corporation" shall mean,
respectively, a corporation within the definition of such terms contained in
Sections 424(e) and 424(f), respectively, of the Internal Revenue Code of 1986,
as amended (the "Code").
The stock options described in Section 6 (the "Options"), and the shares of
common stock of the Company acquired pursuant to the exercise of such Options
are a matter of separate inducement and are not in lieu of any salary or other
compensation for services.
2. ADMINISTRATION
The Plan shall be administered by the Option Committee, or any successor
thereto, of the Board of Directors of the Company or by such other committee, as
determined by the Board (the "Committee"). The Committee shall consist of not
less than two members of the Board of Directors of the Company, each of whom
shall qualify as a "disinterested person" to administer the Plan within the
meaning of Rule 16b-3, as amended, or other applicable Rules under Section 16(b)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). The
Committee shall administer the Plan so as to comply at all times with the
Exchange Act. A majority of the Committee shall constitute a quorum, and subject
to the provisions of Section 5, the acts of a majority of the members present at
any meeting at which a quorum is present, or acts approved in writing by a
majority of the Committee, shall be the acts of the Committee.
3. SHARES AVAILABLE
Subject to the adjustments provided in Section 7, the maximum aggregate number
of shares of common stock of the Company which may be granted for all purposes
under the Plan shall be 4,100,000 [8,200,000 shares of common after 1998 stock
split]. If, for any reason, any shares as to which Options have been granted
cease to be subject to purchase thereunder, including, without limitation, the
expiration of such Option, the termination of such option prior to exercise or
the forfeiture of such Option, such shares shall thereafter be available for
grants to such individual or other individuals under the Plan. Options granted
under the Plan may be fulfilled in accordance with the terms of the Plan with
either authorized and unissued shares of the common stock of the Company or
issued shares of such common stock held in the Company's treasury.
4. ELIGIBILITY AND BASES OF PARTICIPATION
Grants under the Plan may be made, pursuant to Section 6, to key employees,
officers and directors of the Company, or any parent corporation or subsidiary
corporation thereof, who are regularly employed on a salaried basis and who are
so employed on the date of such grant (the "Officer and Key Employee
Participants"), or who are non-employee directors of the Company on the date of
such grant.
5. AUTHORITY OF COMMITTEE
Subject to and not inconsistent with the express provisions of the Plan and the
Code, the Committee shall have plenary authority, in its sole discretion, to:
a. determine the persons to whom Options shall be granted, the time when
such Options shall be granted, the number of Options, the purchase price
or exercise price of each Option, the period(s) during which such Option
shall be exercisable (whether in whole or in part), the restrictions to
be applicable to Options and the other terms and provisions thereof
(which need not be identical);
b. require, as a condition to the granting of any Option, that the person
receiving such Option agree not to sell or otherwise dispose of such
Option, any common stock acquired pursuant to such Option or any other
"derivative security" (as defined by Rule 16a-l(c) under the Exchange
Act) for a period of at least six (6) months following the later of (i)
the date of the grant of such Option or (ii) the date when the exercise
price of such Option is fixed if such exercise price is not fixed at the
date of grant of such Option;
c. provide an arrangement through registered broker-dealers whereby
temporary financing may be made available to an optionee by the
broker-dealer, under the rules and regulations of the Federal Reserve
Board, for the purpose of assisting the optionee in the exercise of an
Option, such authority to include the payment by the Company of the
commissions of the broker-dealer;
d. provide the establishment of procedures for an optionee (1) to have
withheld from the total number of shares to be acquired upon the exercise
of an Option that number of Shares having a Fair Market Value (as defined
in Section 9) which, together with such cash as shall be paid in respect
of fractional Shares, shall equal the Option exercise price, and (2) to
exercise a portion of an Option by delivering that number of shares
already owned by such optionee having a Fair Market Value which shall
equal the partial Option exercise price and to deliver the shares thus
acquired by such optionee in payment of shares to be received pursuant to
the exercise of additional portions of such Option, the effect of which
shall be that such optionee can in sequence utilize such newly acquired
shares in payment of the exercise price of the entire Option, together
with such cash as shall be paid in respect of fractional shares;
e. provide the establishment of a procedure whereby a number of shares of
common stock or other securities may be withheld from the total number of
shares of common stock or other securities to be issued upon exercise of
an Option to meet the obligation of withholding for taxes incurred by an
optionee upon such exercise;
f. prescribe, amend, modify and rescind rules and regulations relating to
the Plan;
g. make all determinations specified in or permitted by the Plan or
deemed necessary or desirable for its administration or for the conduct
of the Committee's business; and
h. establish any procedures determined to be appropriate in discharging
its responsibilities under the Plan.
The Committee may delegate to one or more of its members, or to one or more
agents, such administrative duties as it may deem advisable, and the Committee
or any person to whom it has delegated duties as aforesaid may employ one or
more persons to render advice with respect to any responsibility the Committee
or such person may have under the Plan; PROVIDED, HOWEVER, that the Committee
may not delegate any duties to a member of the Board of Directors of the Company
who, if elected to serve on the Committee, would not qualify as a "disinterested
person" to administer the Plan as contemplated by Rule 16b-3, as amended, or
other applicable rules under the Exchange Act. The Committee may employ
attorneys, consultants, accountants, or other persons and the committee, the
Company, and its officers and directors shall be entitled to rely upon the
advice, opinions or valuations of any such persons. All actions taken and all
interpretations and determinations made by the Committee in good faith shall be
final and binding upon all persons who have received grants under the Plan, the
company and all other interested persons. No member or agent of the Committee
shall be personally liable for any action, determination or interpretation made
in good faith with respect to the Plan and all members and agents of the
Committee shall be fully protected by the Company in respect of any such action,
determination or interpretation.
6. GRANTS OF STOCK OPTIONS
The Committee shall have the authority, in its sole discretion, to grant
incentive stock options ("Incentive Options") pursuant to Section 422 of the
Code, or to grant non-qualified stock options ("Non-Qualified 0ptions") (options
which do not qualify under Section 422 of the Code) or to grant both types of
Options. No option shall be granted for a term of more than ten (10) years.
Notwithstanding anything contained herein to the contrary, an Incentive Option
may be granted only to Officer and Key Employee Participants. The terms and
conditions of the Options shall be determined from time to time by the
Committee: PROVIDED, HOWEVER, that the Options granted under the Plan shall be
subject to the following:
a. OPTION PRICE. The Committee shall establish the option price at
the time any Option is granted at such amount as the Committee
shall determine. The option price for each share purchasable under
any Incentive Option granted hereunder shall be such amount as the
Committee shall, in its best judgment, determine to be not less
than one hundred percent (100%) of the Fair Market Value per share
at the date the Option is granted; PROVIDED, HOWEVER, that in the
case of an Incentive Option granted to a person who, at the time
such Incentive Option is granted, owns shares of the Company, or
any parent corporation or subsidiary corporation thereof, which
possess more than ten percent (10%) of the total combined voting
power of all classes of shares of the Company or of any subsidiary
corporation or parent corporation of the Company, the purchase
price for each share shall be such amount as the Committee, in its
best judgment, shall determine to be not less than one hundred ten
percent (110%) of the Fair Market Value per share at the date the
Option is granted. The Option price will be subject to adjustment
in accordance with the provisions of Section 7 of the Plan.
b. PAYMENT. The price per share of common stock of the Company with
respect to each Option shall be payable at the time the Option is
exercised. Such price shall be payable in cash, which may be paid
by wire transfer in immediately available funds, by check or by any
other instrument acceptable to the Company or, in the discretion of
the Committee, by delivery to the Company of shares or common stock
of the Company owned by the optionee
or by the Company withholding from the total number of shares to
be acquired pursuant to the Option a portion of such shares.
Shares delivered to or withheld by the Company in payment of the
option price shall be valued at the Fair Market Value of the
common stock of the Company on the day preceding the date of the
exercise of the option.
c. CONTINUATION OF EMPLOYMENT. Notwithstanding anything else
contained herein, each Option by its terms shall require the
optionee to remain in the continuous employ of, or as a director
of, the Company, or any parent corporation or subsidiary
corporation thereof, for at least six (6) months (or three (3)
months in the case of an Incentive Option) from the date of grant
of the Option before the right to exercise any part of the Option
will accrue.
d. EXERCISABILITY OF STOCK OPTION. Each Option shall be exercisable
in such installments as may be determined by the Committee at the
time of the grant. The right to purchase shares shall be cumulative
so that when the right to purchase any shares has accrued such
shares or any part thereof may be purchased at any time thereafter
until the expiration or termination of the Option. No Option by its
terms shall be exercisable after the expiration of ten (10) years
from the date of the grant of the Option; PROVIDED, HOWEVER, in the
case of an Incentive Option granted to a person who, at the time
such Option is granted, owns stock of the Company, or any parent
corporation or subsidiary corporation thereof, possessing more than
ten percent (10%) of the total combined voting power of all classes
of stock of the Company, or any corporation or subsidiary
corporation thereof, such Option shall not be exercisable after the
expiration of five (5) years from the date such Option is granted.
e. DEATH. In the event of the death of any optionee, the estate of
such optionee shall have the right, within the period designated by
the Committee at the time of grant, which shall in no event be less
than within six (6) months after the date of death (but not after
the expiration date of the Option), to exercise such optionee's
Option with respect to all or any part of the shares of stock which
such optionee was entitled to purchase immediately prior to the
time of his death, or will become entitled to purchase during the
period of exercise.
f. DISABILITY OR RETIREMENT. If the employment of any optionee is
terminated because of Disability (as defined in Section 9), or
because of retirement, such optionee shall have the right, within
the period designated by the Committee at the time of grant, which
shall in no event be less that within six (6) months after the date
of termination (or within one (1) year after the date of such
termination in the case of an Incentive Option) (but in no case
after the expiration of the Option), to exercise the Option with
respect to all or any part of the shares of stock which such
optionee was entitled to purchase immediately prior to the time of
such termination, or will become entitled to purchase during the
period of exercise.
g. OTHER TERMINATION OR FOR CAUSE. If the employment of an optionee
is terminated for any reason other than those specified in the
subsections 6(e) and (f) above, such optionee shall have the right,
within the period designated by the Committee which shall in no
event be less than thirty (30) days (or three (3) months in the
case of an Incentive Option) after the date of such termination
(but not after the expiration date of the Option), to exercise his
Option with respect to all or any part of the shares of stock which
such optionee was entitled to purchase immediately prior to the
time of such termination, except that, if such optionee's
employment was terminated by the Company, or any parent corporation
or subsidiary corporation thereof, for good cause, or if the
optionee voluntarily terminates employment without the consent of
the Company, or
any parent corporation or subsidiary corporation thereof (of
which fact the Committee shall be the sole judge), such optionee
shall immediately forfeit all rights under his Option except as
to the shares of stock already purchased. Termination for "good
cause" shall mean (unless another definition is agreed to in
writing by the Company and the optionee) termination by action of
the Board of Directors because of: (A) the optionee's theft or
embezzlement, or attempted theft or embezzlement, of money or
tangible or intangible assets or property of the Company or any
parent corporation or subsidiary corporation thereof, (B) any act
or acts of moral turpitude by optionee, (C) other than as a
result of a Disability, optionee's failure to devote adequate
time to the Company's or such parent corporation's or such
subsidiary corporation's business as determined in the reasonable
judgment of the Board of Directors, after having given notice of
the asserted problem and a reasonable opportunity to cure, (D)
any intentional acts by optionee which establish optionee's
loyalty to a business entity or person other than the Company,
(E) gross negligence or willful misconduct in the performance of
optionee's duties, (F) conviction of a felony, (G) conviction of
a crime, the conviction of which results in a material injury to
the Company or any parent corporation or subsidiary corporation
thereof, or (H) a willful material breach of any employment
agreement entered into between optionee and the Company or any
parent corporation or subsidiary corporation thereof. The
determination that there exists "good cause" for termination
shall be made by the Option Committee (unless otherwise agreed to
in writing by the Company and the optionee) and such
determination shall be conclusive.
h. MAXIMUM EXERCISE. The aggregate Fair Market Value of stock
(determined at the time of the grant of the Option) with respect to
which Incentive Options are exercisable for the first time by an
optionee during any calendar year under all plans of the Company,
or any parent corporation or subsidiary corporation thereof, shall
not exceed $100,000.
i. LIMIT ON INDIVIDUAL GRANTS. In any calendar year, the maximum
number of shares for which options may be granted under the Plan to
any one optionee is 400,000 shares of common stock [800,000 shares
of common stock after 1998 stock split] (subject to adjustment in
accordance with Section 7 of the Plan.
7. ADJUSTMENT OF SHARES
In the event there is any change in the common stock of the Company by reason of
any consolidation, combination, liquidation, reorganization, recapitalization ,
stock dividend, stock split, split-up, split-off, spin-off, combination of
shares, exchange of shares or other like change in the capital structure of the
Company, the number or kind of shares or interests subject to an Option and the
per share price or value thereof shall be appropriately adjusted by the
Committee at the time of such event, provided that each optionee's position with
respect to the Option and the per share price or value thereof shall not, as a
result of such adjustment, be worse than it had been immediately prior to such
event. Any fractional shares or interests resulting from such adjustment shall
be eliminated. Notwithstanding the foregoing, (i) each such adjustment with
respect to an Incentive Option shall comply with the rules of Section 424(a) of
the Code, and (ii) in no event shall nay adjustment be made which would render
any Incentive Option granted hereunder other than an "incentive stock option"
for purposes of Section 422 of the Code.
In the event of a Change of Control or a merger between the Company and another
corporation in which the Company is not the surviving entity and where any
optionee holds Options issued pursuant to this Plan which have not been
exercised, such Options shall be canceled and replacement Options shall be
issued by the surviving entity in accordance with Rule 16b-3(f)(1) under the
Exchange Act.
8. MISCELLANEOUS PROVISIONS
a. ASSIGNMENT OR TRANSFER. The Committee may, in its discretion,
authorize all or a portion of the options, other than Incentive
Stock Options, to be granted to an optionee to be on terms which
permit transfer by such optionee to (i) the spouse, children or
grandchildren of the optionee ("Immediate Family Members"), (ii) a
trust or trusts for the exclusive benefit of such Immediate Family
Members, or (iii) a partnership in which such Immediate Family
Members are the only partners, provided that (x) there may be no
consideration for any such transfer, (y) the stock option agreement
pursuant to which such options are granted must be approved by the
Committee and must expressly provide for transferability in a
manner consistent with this Section, and (z) subsequent transfers
of transferred options shall be prohibited except by will or the
laws of descent and distribution. Following transfer, any such
options shall continue to be subject to the same terms and
conditions as were applicable immediately prior to transfer."
b. INVESTMENT REPRESENTATION. If a registration statement under the
Securities Act of 1933, as amended (the "Securities Act"), with
respect to the common stock issuable upon exercise of an Option, is
not in effect at the time such Option is exercised, the Company may
require, for the sole purpose of complying with the Securities Act,
that prior to delivering such common stock to the exercising
optionee, such optionee must deliver to the Secretary of the
Company a written statement (i) representing and warranting that
such common stock is being acquired for investment only and not
with a view to the resale or distribution thereof, (ii)
acknowledging and confirming that such common stock may not be sold
unless registered for sale under the Securities Act or pursuant to
an exemption from such registration and (iii) agreeing that the
certificates representing such common stock shall bear a legend to
the effect of the foregoing.
If subsequent to the delivery by an optionee of the written
statement described in the preceding paragraph, the common stock
issuable upon exercise of an Option is registered under the
Securities Act, the Company may release such optionee from such
written statement without effecting a "modification" of the Plan
within the meaning of Section 424(h)(3) of the Code.
c. WITHHOLDING TAXES. In the case of distributions of common stock
or other securities hereunder, the Company, as a condition of such
distribution, may require the payment (through withholding from the
optionee's salary, reduction of the number of shares of common
stock or other securities to be issued, or otherwise) of any
federal, state, local or foreign taxes required by law to be
withheld with respect to such distribution.
d. COSTS AND EXPENSES. The costs and expenses of administering the
Plan shall be borne by the Company and shall not be charged against
any Option nor to any employee receiving an Option.
e. FUNDING OF PLAN. The Plan shall be unfunded. The Company shall
not be required to make any segregation of assets to assure the
payment of any Option under the Plan.
f. OTHER INCENTIVE PLANS. The adoption of the Plan does not
preclude the adoption by appropriate means of any other incentive
plan for employees.
g. EFFECT ON EMPLOYMENT. Nothing contained in the Plan or any
agreement related hereto or referred to herein shall affect, or be
construed as affecting, the terms of employment of any Officer and
Key Employee Participants except to the extent specifically
provided herein shall impose, or be construed as imposing, an
obligation on (i) the Company, or any parent corporation or
subsidiary corporation thereof, to continue the employment of any
Officer and Key Employee Participant, and (ii) any Officer and Key
Employee Participant to remain in the employ of the Company, or any
parent corporation or subsidiary corporation thereof.
9. DEFINITIONS
a. "Fair Market Value" shall, as it relates to the common stock of
the Company, mean the average of the high and low prices of such
common stock as reported on a national stock exchange or as listed
for quotation on the NASDAQ National Market System on the date
specified herein, or if there were no sales on such date, on the
next preceding day on which there were sales, or if such common
stock is not listed on a national stock exchange or is not listed
for quotation on the NASDAQ National Market System, the value of
such common stock on such date as determined by the Board of
Directors of the Company in good faith.
b. "Disability" means optionee's inability, due to illness,
accident, injury, physical or mental incapacity or other disability
effectively to carry out his duties and obligations as an employee
of the Company or to participate effectively and actively as an
employee of the Company for 90 consecutive days or shorter periods
aggregating at least 180 days (whether or not consecutive) during
any twelve-month period.
10. AMENDMENT OF PLAN
The Board of Directors of the Company shall have the right to amend, modify,
suspend or terminate the Plan at any time, provided that no amendment shall be
made which shall increase the total number of shares of the common stock of the
Company which may be issued and sold pursuant to Options granted under the Plan
or decrease the minimum option price in the case of an Incentive Option, or
modify the provisions of the Plan relating to eligibility with respect to
Incentive Options unless such amendment is made by or with the approval of the
stockholders. The Board of Directors shall be authorized to amend the Plan and
the Options granted thereunder (i) to qualify as "incentive stock options"
within the meaning of Section 422 of the Code or (ii) to comply with Rule 16b-3
(or any successor rule) under the Exchange Act. No amendment, modification,
suspension or termination of the Plan shall alter or impair any Options
previously granted under the Plan, without the consent of the holder thereof.
11. EFFECTIVE DATE
The Plan shall become effective January 31, 1992, the date as of which the Plan
was adopted by the Board of Directors (the "Effective Date"); PROVIDED, HOWEVER,
that if the Plan is not approved by a vote of the stockholders of the Company at
an annual meeting or by written consent within twelve (12) months before or
after the Effective Date, the Plan and any Options granted thereunder shall
terminate.