EXHIBIT 10.13
DAIN RAUSCHER CORPORATION
DEFERRED COMPENSATION PLAN
FOR NON-EMPLOYEE DIRECTORS
1. ESTABLISHMENT AND PURPOSE.
1.1 ESTABLISHMENT. DAIN RAUSCHER CORPORATION, a Delaware
corporation, together with any and all subsidiaries, hereby establishes,
effective as of April , 1999, a deferred compensation plan for the
non-employee members of its Board of Directors which shall be known as the
Deferred Compensation Plan for Non-Employee Directors (hereinafter called the
"Plan").
1.2 PURPOSE. The purpose of this Plan is to provide a means
whereby amounts payable by the Company to its Non-Employee Directors for
services as a member of the Company's Board or any committee thereof, or any
committee thereof, may be deferred to some future period. It is also the
purpose of this Plan to motivate such Non-Employee Directors to continue to
make contributions to the growth and profits of the Company and to increase
their ownership of shares of Common Stock, and thereby align their interest
in the long-term success of the Company with that of the other stockholders.
This will be accomplished by allowing each Participating Director to elect
voluntarily to receive all or a portion of his or her annual Stock Retainer,
Special Retainer and meeting Fees in the form of shares of deferred Common
Stock pursuant to an irrevocable election made under this Plan.
2. DEFINITIONS.
2.1 DEFINITIONS. Whenever used in this Plan, the following terms
shall have the meanings set forth below:
(a) "ACCOUNTS" means the Deferred Stock Account and the Deferred
Cash Account for any Participating Director.
(b) "ACQUIRING PERSON" shall mean any Person who or which,
together with all Affiliates and Associates of such Person, is
the Beneficial Owner, directly or indirectly, of securities of
the Company, representing thirty-five percent (35%) or more of
the combined voting power of the Company's then outstanding
securities, but shall not include the Company, any subsidiary
of the Company or any employee benefit plan of the Company or
any subsidiary of the Company or any entity holding shares of
stock of the Company organized, appointed or established for,
or pursuant to the terms of, any such plan.
(c) "ADMINISTRATIVE COMMITTEE" means the Chief Executive Officer
and Chief Financial Officer of the Company, whether or not
such individuals are also members of the Board of the Company.
(d) "AFFILIATE" shall have the meaning ascribed to the term
"Affiliate" in Rule 12b-2 promulgated under the Exchange Act.
(e) "ASSOCIATE" shall have the meaning ascribed to such term in
Rule 12b-2 promulgated under the Exchange Act.
(f) "BENEFICIAL OWNER" shall have the meaning ascribed to such
term in Rule 13d-3 promulgated under the Exchange Act.
(g) "BENEFICIARY" means a Person designated by a Participating
Director (or automatically, by operation of this Plan) to
receive any benefit remaining at the death of such
Participating Director under the terms of this Plan.
(h) "BOARD" means the Board of Directors of the Company.
(i) "CHANGE IN CONTROL" means:
(i) the public announcement (which for purposes of this
definition), shall include, without limitation, a report
filed pursuant to Section 13(d) of the Exchange Act that
any person, entity or group, within the meaning of
Section 13(d)(3) or 14(d)(2) of the Exchange Act, other
than the Company or any of its subsidiaries, or the
Company Retirement Plan or any employee benefit plan of
the Company or any of its subsidiaries, or any entity
holding shares in stock of the Company organized,
appointed or established for, or pursuant to the terms
of such plan, has become the Beneficial Owner of
thirty-five percent (35%) or more of the combined voting
power of the Company's then outstanding voting
securities in a transaction or series of transactions;
(ii) the Continuing Directors cease to constitute a majority
of the Board;
(iii) the shareholders of the Company approve (1) any
consolidation or merger of the Company in which the
Company is not the continuing or surviving corporation
or pursuant to which shares of the Company's stock would
be converted into cash, securities or other property,
other than a merger of the Company in which shareholders
immediately prior to the merger have the same
proportionate ownership of stock of the surviving
corporation immediately after merger; (2) any sale,
lease, exchange or other transfer (in one transaction or
a series of related transactions) of all or
substantially all of the assets of the Company; or (3)
any plan of liquidation or dissolution of the Company; or
(iv) the majority of the Continuing Directors determine, in
their sole and absolute discretion, that there has been
a change in control of the Company.
(j) "COMMON STOCK" means the common stock, par value $0.125 per
share, of the Company.
(k) "COMPANY" means DAIN RAUSCHER CORPORATION, a Delaware
corporation, together with all its subsidiaries.
(l) "CONTINUING DIRECTOR" means any person who is a member of the
Board, while such person is a member of the Board, who is not
an Acquiring Person or an Affiliate or Associate of an
Acquiring Person, or a representative of an Acquiring Person
or of any such Affiliate or Associate, and who (A) was a
member of the Board on January 1, 1999, or (B) subsequently
becomes a member of the Board, if such person's initial
nomination for election or initial election to the Board is
recommended or approved by the majority of the Continuing
Directors.
(m) "CONVERSION PRICE" means the average of the reported closing
prices per share of the Common Stock on the NYSE as reported
for each of the five business days prior to the measurement
date for any crediting of shares under this Plan.
(n) "DEFERRAL ELECTIONS" means the elections made pursuant to
Section 4.1 of this Plan.
(o) "DEFERRED CASH ACCOUNT" means the bookkeeping account of this
Plan to which all of a Participating Director's deemed cash
allocations are credited pursuant to this Plan.
(p) "DEFERRED STOCK ACCOUNT" means the bookkeeping account of this
Plan to which all of a Participating Director's deemed stock
allocations are credited pursuant to this Plan.
(q) "DISTRIBUTION ELECTION" means the elections made pursuant to
Section 4.3 of the Plan.
(r) "ELECTION AMOUNTS" means the amounts of the Retainer and/or
Fees and Special Retainer the Participating Director elects to
defer, as provided for in Section 4.1 of this Plan.
(s) "ELECTION FORM" means the form containing the irrevocable
elections of a Participating Director to (i) defer the receipt
of the Retainer and/or the Fees and Special Retainer payable
to such Participating Director, as provided for in Section 4.4
of this Plan, and (ii) cause the distribution of
the amounts credited to such Participating Director's Accounts
to be made on a date or dates selected by such Participating
Director, as provided for in Section 4.3 of this Plan.
(t) "ELIGIBLE DIRECTOR" means any Non-Employee Director of the
Company as set forth in Section 3.1 of this Plan.
(u) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
(v) "FEES" means the amount payable quarterly in cash to a
Director during a Plan Year for attendance at meetings of the
Board or any committee thereof, as set forth in Section 4.1 of
this Plan.
(w) "INITIAL CREDIT" shall have the meaning set forth in Section
4.4 of this Plan.
(x) "NON-EMPLOYEE DIRECTOR" means an individual who is a member of
the Board of the Company but who is not an officer or employee
of the Company or any of its subsidiaries.
(y) "NORMAL RETIREMENT" shall have the meaning set forth in
Section 6.1 of this Plan.
(z) "NYSE" means the New York Stock Exchange, Inc.
(aa) "PARTICIPATING DIRECTOR" has the meaning set forth in Section
4.1 of this Plan.
(bb) "PLAN YEAR" means the approximately 12-month period which runs
from the first meeting of the Board following the election of
such Board at the annual meeting of stockholders of the
Company until the next meeting of stockholders at which any
members of such Board are elected by the stockholders of the
Company.
(cc) "PERSON" shall have the meaning ascribed to such term as such
term is used in Sections 13(d) and 14(d) of the Exchange Act.
(dd) "RETAINER" means the amounts payable annually in shares of
Common Stock to a Non-Employee Director for services rendered
to the Company as a Director during a Plan Year, but does not
include the Special Retainer and Fees.
(ee) "SPECIAL RETAINER" means the special retainer payable during a
Plan Year quarterly in cash to Non-Employee Directors who
chair committees of the Board, in the amounts determined by
the Board from time to time.
(ff) "TERMINATION DATE" has the meaning set forth in Section 3.2 of
this Plan.
(gg) "1996 PLAN" means the 1996 Stock Incentive Plan of the
Company, as it may be amended from time to time.
2.2 RULES OF INTERPRETATION. Whenever appropriate, words used
herein in the singular may be read in the plural, or words used herein in the
plural may be read in the singular; the masculine may include the feminine
and the words "hereof," "herein" or "hereunder" or other similar compounds of
the word "here" shall mean and refer to this entire Plan Statement and not to
any particular paragraph or section of this Plan Statement unless the context
clearly indicates to the contrary. The titles given to the various sections
of this Plan Statement are inserted for convenience of reference only and are
not part of this Plan Statement. and they shall not be considered in
determining the purpose, meaning or intent of any provision hereof. Any
reference in this Plan Statement to a statute or regulation shall be
considered also to mean and refer to any subsequent amendment or replacement
of that statute or regulation. This instrument has been executed and
delivered in the State of Minnesota and has been drawn in conformity to the
laws of that State and shall be construed and enforced in accordance with the
laws of the State of Minnesota.
3. ELIGIBILITY FOR PARTICIPATION.
3.1 ELIGIBILITY. Any Non-Employee Director of the Company shall
be eligible to participate in this Plan (an "Eligible Director"). In the
event a Participating Director no longer meets the requirements for
participation in this Plan, he shall become an inactive Participating
Director, retaining all the rights described under this Plan, except the
right to make any further deferrals, until the time (if ever) that he again
becomes an active Participating Director.
3.2 TERMINATION OF SERVICE AS A DIRECTOR. If a Participating
Director leaves the Board before the conclusion of any calendar quarter, he
or she will be paid the quarterly installment of the Special Retainer and
Fees entirely in cash, notwithstanding that a Deferral Election made by such
Participating Director is on file with the Company. The date of termination
of a Participating Director's service as a Director of the Company will be
deemed to be the earlier of (i) the date of such Director's death,
resignation or removal from the Board of Directors or (ii) the expiration of
such Director's term as a Director without reelection to the Board of
Directors (the "Termination Date").
4. ELECTIONS TO DEFER COMPENSATION.
4.1 ELECTIONS TO DEFER COMPENSATION. On forms provided by the
Company, each Eligible Director who decides to participate (each, a
"Participating Director") may irrevocably elect to make up to two separate
deferral elections (the "Deferral Elections") to defer, in increments equal
to 25%, 50%, 75% or 100% of each of, (i) receipt of the shares of Common
Stock constituting the Retainer and/or (ii) the sum of the Special Retainer
and any Fees otherwise payable to such Participating Director in cash, in
each case, for services to be rendered in the Plan Year following such
election or elections. The amounts to be deferred will be deferred in the
form of credits to the Participating Director's Deferred Stock Account and
Deferred Cash Account, as set forth in Article 5 hereof, for the amount of
the Retainer and/or the
Special Retainer and Fees the Participating Director elects to defer (the
"Election Amounts"). The Deferral Elections shall be made pursuant to
Section 4.2 hereof. Any Deferral Election may only be amended or revoked in
accordance with the procedure set forth in Section 4.4 hereof.
4.2 MANNER OF MAKING DEFERRAL ELECTION. A Participating Director
may elect to defer payment of the Retainer and/or payment of the Special
Retainer and Fees pursuant to this Plan by filing, at any time prior to the
beginning of a Plan Year (or by such other date as the Administrative
Committee shall determine), an irrevocable election with the Administrative
Committee on a form provided for that purpose (the "Election Form"), except
that:
(a) for the Plan Year which begins April 27, 1999, an Election
Form may be filed at any time on or prior to April 30, 1999,
to be effective for the Retainer and/or Special Retainer and
Fees to be paid after the inception of the Plan on May 1, 1999
and thereafter during such Plan Year, and
(b) any person who is first elected to the Board of the Company
after the beginning of a Plan Year may make initial Deferral
Elections pursuant to Section 4.1 hereof at any time prior to
his attendance at the first meeting of the Board or any
committee thereof after his election to the Board, and shall
be effective as of the date the Participating Director was
elected.
The Election Form shall specify an amount or amounts to be deferred expressed
as a percentage (either 25%, 50%, 75% or 100%, respectively) of the value of
the Participating Director's Retainer and/or Special Retainer and Fees. In
all circumstances, the first credit (after the Initial Credit described in
Section 4.5 hereof) to a Participating Director's Deferred Stock Account and
Deferred Cash Account (if necessary) will only include the Retainer and/or
Special Retainer and Fees for services performed after the date on which the
Administrative Committee receives such Form.
4.3 DISTRIBUTION ELECTION. At the same time that a Participating
Director elects to participate in the Plan with respect to any Plan Year and
makes his Deferral Elections, such Participating Director shall also elect
the timing of the distribution of the amounts credited to such Participating
Director's Accounts with respect to any such Deferral Election by delivering
a signed and completed Election Form to the Company. Unless the following
distribution elections are subsequently amended or otherwise modified by the
Administrative Committee, a Participating Director may only elect to have
distributions attributable to any Deferral Election for any Plan Year be made
in one lump sum or paid out in two or three equal, annual installments, in
each case, following the Termination Date.
4.4 ANNUAL CHANGE IN ELECTIONS. Once each calendar year, a
Participating Director may irrevocably elect in writing to (i) change an
earlier Deferral Election, either to change the percentage of that
Participating Director's Retainer and/or Special Retainer and Fees to be
credited to his Accounts, or to receive the entire Retainer and/or Special
Retainer and Fees when paid without deferral and/or (ii) to change the
Distribution Election. Such amended Election Form shall become effective on
the first business day of the Plan Year following receipt
by the Administrative Committee thereof with respect to Election Amounts
being deferred for and after such Plan Year.
4.5 INITIAL CREDIT. In connection with the adoption of this
Plan, the Board authorized, and the Participating Directors agreed to, the
termination of the Company's individual retirement agreements with each
Non-Employee Director who will be a director on May 1, 1999, effective as of
the commencement of this Plan. Each Participating Director who will be a
director on May 1, 1999, has agreed to accept a one-time payment, in lieu of
his accrued benefit under his retirement agreement, of shares of Common Stock
to be credited to his Deferred Stock Account hereunder in an amount equal to
the net present value of such accrued benefit as of May 1, 1999, divided by
the Conversion Price of one share of Common Stock as of April 30, 1999 (the
"Initial Credit"). Therefore, effective as May 1, 1999, each Participating
Director's Deferred Stock Account shall be credited with the Initial Credit.
5. DEFERRED COMPENSATION ACCOUNTS.
5.1 ESTABLISHMENT OF ACCOUNTS. The amount of benefits to be paid
by the Company to each Participating Director under this Plan shall be
determined by reference to the Accounts to be established and maintained by
the Company for each Participating Director. Such Accounts shall be
established for bookkeeping purposes only and shall not be considered as, or
as evidence of the creation of, a trust fund or a transfer or other
segregation of assets for the benefit of the Participating Directors or their
designated beneficiaries. Such Accounts will be composed of a Deferred Cash
Account and a Deferred Stock Account for each Participating Director
5.2 CREDITS TO ACCOUNTS.
5.2.1 DEFERRED STOCK ACCOUNT. Except as otherwise
described in the last sentence of this Section 5.2.1, the entire amount of
any Election Amount deferred by a Participating Director shall be allocated
and credited to such Participating Director's Stock Account pursuant to the
terms of this Section 5.2.1. With respect to Deferral Elections covering the
Retainer, such amounts shall be credited as of the first day of the Plan Year
to which such election relates; with respect to Deferral Elections covering
the Special Retainer and/or Fees, such amounts shall be credited as of the
first day of the calendar quarter following the date of such election. Such
Participating Director's Deferred Stock Account shall be deemed to have been
allocated that number of whole shares of Common Stock, rounded down to the
nearest share, resulting from dividing the portion of the Election Amount so
deferred by the Conversion Price in effect on the effective date of
crediting to his Accounts. The portion of any Election Amount equal to the
fraction of a share of Common Stock resulting from such calculation, if any,
shall be deemed to have been allocated to such Participating Director's
Deferred Cash Account.
5.2.2 DIVIDEND ADDITIONS TO STOCK ACCOUNTS. At such times
as dividends are declared by the Company on the outstanding shares of Common
Stock, a determination shall be made of the number of shares of Common Stock
which are credited to a Participating Director's Deferred Stock Account on
the dividend record date, and an amount equal to such total number of shares
of Common Stock multiplied by the declared dividend per share of
Common Stock shall be credited, on the date such dividends are paid by the
Company, initially to such Participating Director's Deferred Cash Account (if
the dividends are declared in cash) or to such Participating Director's
Deferred Stock Account (if the dividends are declared in shares of Common
Stock). Thereafter, all funds credited to a Participating Director's
Deferred Cash Account under this Plan shall be deemed to have been used to
purchase whole shares of Common Stock once, at the end of each calendar
quarter in which such funds were initially credited. The number of additional
shares of Common Stock credited to each Participating Director's Deferred
Stock Account after the end of each Plan Year due to deemed purchases with
the credited cash dividends (and other deemed cash allocations made to the
Deferred Cash Account under this Plan) shall be equal to the number of whole
shares, rounded down, derived by dividing the total amount of cash credited
to the Participating Director's Deferred Cash Account by the Conversion Price
as of the date of the deemed purchase of the shares of Common Stock credited
to such Participating Director's Deferred Stock Account under this Section
5.2.2. Any credited cash hereunder that would otherwise be deemed to have
been used to purchase a fractional share of Common Stock shall, instead,
continue to be credited to the Participating Director's Deferred Cash Account.
5.3 CHARGES AGAINST ACCOUNTS. On each date that a distribution is
made by, or on behalf of, the Company under this Plan to a Participating
Director, the amount of such distribution shall be charged against, and shall
reduce the remaining credited balance of, the appropriate Account or Accounts
of such Participating Director. The Company also reserves the right to
charge Participating Directors' Accounts with reasonable out-of-pocket costs
incurred by the Company in the administration and record keeping for the Plan.
6. DISTRIBUTIONS TO PARTICIPATING DIRECTORS.
6.1 FORM OF DISTRIBUTION; TAX WITHHOLDING. Subject to such terms
and conditions as the Administrative Committee may from time to time impose:
(a) distributions of all of a Participating Director's Accounts as
a result of such Participating Director's ceasing to serve as
a Director (other than due to his death or disability or due
to a Change in Control) ("Normal Retirement") shall be made,
at such Participating Director's election pursuant to a
Distribution Election, either:
(i) in a single payment; or
(ii) in two annual installments, the first of which shall be
equal to fifty percent (50%) of all amounts deemed
allocated to such Participating Director's Accounts on
the first payment date, and the second of which shall be
equal to all amounts deemed allocated to such
Participating Director's Accounts on the second payment
date; or
(iii) in three annual installments, the first of which
shall be equal to thirty- three and one-third percent
(33_%) of all amounts deemed
allocated to such Participating Director's Accounts on
the first payment date, the second of which shall be
equal to thirty-three and one-third percent (33_%) of
all amounts deemed allocated to such Participating
Director's Accounts on the second payment date and the
third of which shall be equal to all amounts deemed
allocated to such Participating Director's Accounts on
the third payment date;
(b) distributions of all of a Participating Director's Accounts
pursuant to such Director's ceasing to serve as a Director due
to his death or disability shall be made in a single payment;
and
(c) distributions of all of a Participating Director's Accounts
upon the occurrence of a Change of Control shall be made in a
single payment.
All amounts credited to a Participating Director's Deferred Stock Account
shall only be distributed in shares of Common Stock; EXCEPT that, no
fractional shares shall be issued. Whenever, under the terms of this Plan, a
fractional share would be required to be issued, an amount in lieu thereof
shall be paid in cash for such fractional share based upon the value per
share of Common Stock described in the next sentence of this Section 6.1.
The value of each share of Common Stock credited to a Participating
Director's Deferred Stock Account shall be equal to the closing price per
share of Common Stock on the NYSE as reported for the business day preceding
the distribution date set forth in this Section 6.1 above. A Participating
Director's Deferred Cash Account shall be distributed in cash.
6.2 TIMING OF DISTRIBUTION. Subject to such terms and conditions
as the Administrative Committee may, from time to time, impose:
(a) distributions of the Accounts of a Participating Director due
to a Normal Retirement shall be payable on January 15, or as
soon as administratively feasible following such date, of each
of the Plan Year or Years following the Plan Year in which his
Normal Retirement occurred (in accordance with such
Participating Director's Distribution Election);
(b) distributions of the Accounts of a Participating Director
following the death or disability of a Participating Director
shall be made as soon as administratively feasible following
the end of the next calendar quarter; and
(c) distributions of the Accounts of a Participating Director due
to a Change in Control shall be made as soon as
administratively feasible, but in no case later than sixty
(60) days, after the occurrence of the Change in Control.
6.3 DISTRIBUTIONS TO BENEFICIARIES. Distribution of the Accounts
of a Participating Director who dies before payment to such Participating
Director is made shall
commence or be made to such Participating Director's Beneficiary as soon as
administratively feasible.
6.4 DESIGNATION OF BENEFICIARY. Each Participating Director shall
have the right to designate in writing, in form satisfactory to the
Administrative Committee, one or more beneficiaries to receive the unpaid
balance of the Participating Director's Accounts in the event of his death
prior to receiving full distribution thereof, and may change or revoke any
prior Beneficiary designation by a similar instrument in writing prior to his
death. If a Participating Director shall fail to designate a Beneficiary or,
having revoked a prior Beneficiary designation, shall fail to designate a new
Beneficiary, or in the event the Participating Director's Beneficiary
designation shall fail, in whole or in part, by reason of the prior death of
a designated Beneficiary or for any other cause, then the undistributed
balance of the Participating Director's Accounts, or the portion thereof as
to which such designation shall fall, as the case may be, shall be paid to
the personal representative of the Participating Director's estate.
6.5 DISCLAIMERS BY BENEFICIARIES. A Beneficiary entitled to a
distribution of all or a portion of a deceased Participating Director's
Accounts may disclaim his interest therein subject to the following
requirements. To be eligible to disclaim, a Beneficiary must be a natural
person, must not have received a distribution of all or any portion of such
Accounts at the time such disclaimer is executed and delivered, and must have
attained at least age twenty-one (21) years as of the date of the
Participating Director's death. Any disclaimer must be in writing and must
be executed personally by the Beneficiary before a notary public. A
disclaimer shall state that the Beneficiary's entire interest in the
undistributed Accounts is disclaimed or shall specify what portion thereof is
disclaimed. To be effective, duplicate original executed copies of the
disclaimer must be both executed and actually delivered to the Administrative
Committee after the date of the Participating Director's death but not later
than one hundred eighty (180) days after the date of the Participating
Director's death. A disclaimer shall be irrevocable when delivered to the
Administrative Committee. A disclaimer shall be considered to be delivered
to the Administrative Committee only when actually received by the
Administrative Committee. The Administrative Committee shall be the sole
judge of the content, interpretation and validity of a purported disclaimer.
Upon the filing of a valid disclaimer, the Beneficiary shall be considered
not to have survived the Participating Director as to the interest
disclaimed. A disclaimer by a Beneficiary shall not be considered to be a
transfer of an interest in violation of the provisions of Article 8 hereof
and shall not be considered to be an assignment or alienation of benefits in
violation of any law prohibiting the assignment or alienation of benefits
under this Plan. No other form of attempted disclaimer shall be recognized
by the Administrative Committee.
6.6 SPENDTHRIFT PROVISIONS. Neither any Participating Director
nor any Beneficiary of any Participating Director shall have any transferable
interest in the Participating Director's Accounts nor any right to
anticipate, alienate, dispose of, pledge or encumber the same prior to actual
receipt of payments in accordance with this Article 6, nor shall the same be
subject to attachment, garnishment, execution following judgment or other
legal process instituted by creditors of the Participating Director or any
such Beneficiary.
7. SHARES AVAILABLE FOR ISSUANCE.
7.1 SOURCE OF SHARES AVAILABLE. The shares of Common Stock
available for issuance under this Plan shall be issued under, and in
accordance with the terms of, the 1996 Plan.
7.2 ADJUSTMENTS TO SHARES. In the event of any reorganization,
merger, consolidation, recapitalization, liquidation, reclassification, stock
dividend, stock split, combination of shares, rights offering, divestiture or
extraordinary dividend affecting the Common Stock generally, an appropriate
adjustment will be made in the number and/or kind of securities available for
issuance under this Plan, and to the shares of Common Stock credited to the
Deferred Stock Accounts of Participating Directors to prevent either the
dilution or the enlargement of the rights of the Eligible and Participating
Directors.
8. NONTRANSFERABILITY.
In no event shall the Company make any payment under this Plan to
any assignee or creditor of a Participating Director or of a Beneficiary.
Prior to the time of payment hereunder, a Participating Director or
Beneficiary shall have no rights by way of anticipation or otherwise to
assign or otherwise dispose of any interest under this Plan nor shall such
rights be assigned or transferred by operation of the law.
9. LIMITATION ON RIGHTS OF ELIGIBLE AND PARTICIPATING DIRECTORS.
9.1 SERVICE AS A DIRECTOR. Nothing in this Plan will interfere
with or limit in any way the right of the Board or the Company's stockholders
to remove an Eligible or Participating Director from the Board. Neither this
Plan nor any action taken pursuant to it will constitute or be evidence of
any agreement or understanding, express or implied, that the Board or the
Company's stockholders have retained or will retain an Eligible or
Participating Director for any period of time or at any particular rate of
compensation.
9.2 NONEXCLUSIVITY OF THE PLAN. Nothing contained in this Plan is
intended to effect, modify or rescind any of the Company's existing
compensation plans or programs or to create any limitations on the Board's
power or authority to modify or adopt compensation arrangements as the Board
may from time to time deem necessary or desirable.
10. PLAN AMENDMENT, MODIFICATION AND TERMINATION. The Board may
suspend or terminate this Plan at any time, and shall terminate at such time
as the 1996 Plan (or any successor plan thereto) is terminated. The Board
may amend this Plan from time to time in such respects as the Board may deem
advisable in order that this Plan will conform to any change in applicable
laws or regulations or in any other respect that the Board may deem to be in
the Company's best interests; PROVIDED, HOWEVER, that no amendments to this
Plan will be effective without approval of the Company's stockholders, if
stockholder approval of the amendment is then required pursuant to Rule 16b-3
(or any successor rule) under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), or the rules of the NYSE (or other exchange on which
the shares of Common Stock are then listed and primarily traded).
11. PARTICIPATING DIRECTORS ARE GENERAL CREDITORS OF THE COMPANY. The
Participating Directors and Beneficiaries thereof shall be general, unsecured
creditors of the Company with respect to any payments to be made pursuant to
this Plan and shall not have any preferred interest by way of trust, escrow,
lien or otherwise in any specific assets of the Company. If the Company
shall, in fact, elect to set aside monies or other assets to meet its
obligations hereunder (there being no obligation to do so), whether in a
grantor's trust or otherwise, the same shall, nevertheless, be regarded as a
part of the general assets of the Company subject to the claims of its
general creditors, and neither any Participating Director nor any Beneficiary
thereof shall have a legal, beneficial or security interest therein.
12. MISCELLANEOUS.
12.1 SECURITIES LAW AND OTHER RESTRICTIONS. Notwithstanding any
other provision of this Plan or any Deferral Election or amended Deferral
Election delivered pursuant to this Plan, the Company will not be required to
issue any shares of Common Stock under this Plan and a Participating Director
may not sell, assign, transfer or otherwise dispose of shares of Common Stock
issued pursuant to this Plan, unless (a) there is in effect with respect to
such shares a registration statement under the Securities Act of 1933, as
amended (the "Securities Act") and any applicable state securities laws or an
exemption from such registration under the Securities Act and applicable
state securities laws, and (b) there has been obtained any other consent,
approval or permit from any other regulatory body that the Administrative
Committee, in its sole discretion, deems necessary or advisable. The Company
may condition such issuance, sale or transfer upon the receipt of any
representations or agreements from the parties involved, and the placement of
any legends on certificates representing shares of Common Stock, as may be
deemed necessary or advisable by the Company, in order to comply with such
securities law or other restriction.
12.2 GOVERNING LAW. The validity, construction, interpretation,
administration and effect of this Plan and any rules, regulations and actions
relating to this Plan will be governed by and construed exclusively in
accordance with the laws of the State of Delaware.
12.3 1996 PLAN. Except as otherwise specifically stated herein,
all of the terms and conditions of the 1996 Plan shall also govern the
issuances of shares of Common Stock under this Plan.