File No. 333-
As filed with the Securities and Exchange Commission on April 4, 1996
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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TYCO INTERNATIONAL LTD.
(Exact Name of Registrant as Specified in Its Charter)
MASSACHUSETTS 04-2297459
(State or other Jurisdiction of (IRS Employer Identification No.)
Incorporation or Organization)
ONE TYCO PARK, EXETER, NEW HAMPSHIRE 03833
(Address of Principal Executive Offices)
603-778-9700
(Registrant's Telephone Number)
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THE EARTH TECHNOLOGY CORPORATION (USA) 1987 STOCK PLAN
THE EARTH TECHNOLOGY CORPORATION (USA) DIRECTOR OPTION PLAN
SUMMIT ENVIRONMENTAL GROUP, INC. STOCK OPTION PLAN
HAZWASTE INDUSTRIES INCORPORATED 1987 STOCK OPTION PLAN
(Full Title of the Plans)
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Mark H. Swartz
Vice President and Chief Financial Officer
TYCO INTERNATIONAL LTD.
ONE TYCO PARK
EXETER, NEW HAMPSHIRE 03833
(Name and Address of Agent for Service)
(603) 778-9700
(Telephone Number, Including Area Code, of Agent for Service)
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Calculation of Registration Fee
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Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate Amount of
Securities to to be Price Offering Registration
be Registered Registered(1) Per Share Price Fee
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Common Stock, 261,645 $38.6684 (2) $10,117,394 $3,489.00
$0.50 par value
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(1) Plus such additional number of shares as may be required pursuant to
the option plan in the event of a stock dividend, reverse stock split,
split-up, recapitalization or other similar event.
(2) This estimate is made pursuant to Rule 457(h) under the Securities
Act of 1933, as amended, (the "Securities Act") solely for the purpose
of determining the amount of the registration fee and is based upon the
weighted average price at which outstanding options may be exercised.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
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Tyco International Ltd. (the "Company") hereby incorporates by
reference the documents listed below, which have previously been filed with
the Securities and Exchange Commission:
The Company's Annual Report on Form 10-K for the fiscal year ended June
30, 1995; and
The Company's Quarterly Reports on Form 10-Q for the quarters ended
September 30, 1995 and December 31, 1995.
In addition, all documents subsequently filed with the Securities and
Exchange Commission by the Company pursuant to Sections 13(a) and 13(c), Section
14 and Section 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered hereunder
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this registration statement and to
be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
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Not Applicable.
Item 5. Interests of Named Experts and Counsel.
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The validity of the shares to be offered hereby will be passed upon for
the Company by M. Brian Moroze, General Counsel and Assistant Secretary of
the Company.
Item 6. Indemnification of Directors and Officers.
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The Restated Articles of Organization of the Company provide that the
Company shall indemnify certain persons, including directors and officers,
against liabilities, amounts paid in settlement and professional fees and other
disbursements incurred by each such person in connection with any action, suit
or proceeding, civil or criminal, brought or threatened in or before any court,
tribunal, administrative or legislative body or agency in which he is involved
as a result of his serving or having served in such position or, at the request
of the Company, in certain positions of any other corporation in which the
Company owns shares or of which it is a creditor. No indemnification shall be
provided to an individual with respect to a matter as to which it shall have
been adjudicated that he did not act in good faith in the reasonable belief that
his action was in the best interests of the Company. In the event that any
action, suit or proceeding is compromised or settled so as to impose any
liabilities or obligation upon a person eligible for indemnification by the
Company, no indemnification shall be provided to him with respect to such matter
if the Company has obtained an opinion of its counsel that with respect to said
matter he did not act in good faith in the reasonable belief that his action was
in the best interests of the Company. The Restated Articles of Organization of
the Company further provide that nothing in them shall limit any lawful rights
to indemnification existing independently of them.
Section 67 of Chapter 156B of the General Laws of the Commonwealth of
Massachusetts provides that a corporation may indemnify any director or officer
(among others) except as to any matter as to which he is adjudicated in any
proceeding not to have acted in good faith in the reasonable belief that his
action was in the best interests of the corporation. Section 67 further provides
that a corporation has the power to purchase and maintain insurance policies on
behalf of any such officer or director against liability incurred by him in such
capacity or arising out of his status as such, whether or not the corporation
has the power to indemnify such officer or director against such liability.
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The Company maintains $35,000,000 of insurance to reimburse its
directors and officers for charges and expenses incurred by them for wrongful
acts claimed against them by reason of their being or having been directors or
officers of the Company or any Subsidiary thereof. Such insurance specifically
excludes reimbursement of any director or officer for any charge or expense
incurred in connection with various designated matters, including libel or
slander, illegally obtained personal profits, profits recovered by the Company
pursuant to Section 16(b) of the Exchange Act and deliberate dishonesty.
Item 7. Exemption from Registration Claimed.
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Not Applicable.
Item 8. Exhibits.
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(a) The following is a complete list of exhibits filed or incorporated
by reference as part of this registration statement.
Exhibit
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3.1 Restated Articles of Organization, as amended [incorporated by
reference to Exhibit 3(a) to the Company's Annual Report on Form
10-K for the fiscal year ended May 31, 1987].
3.2 Articles of Amendment dated November 9, 1993, effective November
10, 1993 [incorporated by reference to Exhibit 3 to the Company's
Current Report on Form 8-K filed on November 12, 1993].
3.3 By-laws [incorporated by reference to Exhibit 3 to the Company's
Current Report on Form 8-K filed on August 17, 1990].
5.1 Opinion of M. Brian Moroze, General Counsel and Assistant
Secretary, as to the legality of the securities being registered.
10.1 The Earth Technology Corporation (USA) 1987 Stock Plan
10.2 The Earth Technology Corporation (USA) Director Option Plan
10.3 Summit Environmental Group, Inc. Stock Option Plan
10.4 Hazwaste Industries Incorporated 1987 Stock Option Plan
23.1(a) Consent of Counsel (included in Exhibit 5.1 hereto).
23.1(b) Consent of Coopers & Lybrand L.L.P.
23.1(c) Consent of Price Waterhouse LLP
24 Powers of Attorney (included in Part II of this registration
statement).
Item 9. Undertakings.
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(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the information
set forth in the registration statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
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provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) herein do not apply
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if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the undersigned
registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act, and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Exeter, State of New Hampshire, on the 4th day of
April, 1996.
TYCO INTERNATIONAL LTD.
By: /s/ Mark H. Swartz
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Mark H. Swartz
Vice President -Chief Financial Officer
(Principal Financial and Accounting Officer)
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned constitutes
and appoints L. DENNIS KOZLOWSKI and MARK H. SWARTZ, and each of them, his true
and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign this Registration Statement and all pre-effective and
post-effective amendments, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto such attorneys-in-fact and agents, and each of them
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that such attorneys-in-fact and agents or any of them or their or
his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS ON
APRIL 4, 1996 IN THE CAPACITIES INDICATED BELOW.
Chairman of the Board, Chief Executive Officer
/s/ L. Dennis Kozlowski and Director (Principal Executive Officer)
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L. Dennis Kozlowski
/s/ Joshua M. Berman Director
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Joshua M. Berman
/s/ Richard S. Bodman Director
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Richard S. Bodman
/s/ John F. Fort Director
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John F. Fort
/s/ Stephen W. Foss Director
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Stephen W. Foss
/s/ Richard A. Gilleland Director
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Richard A. Gilleland
/s/ Philip M. Hampton Director
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Philip M. Hampton
/s/ Mark H. Swartz Vice President - Chief Financial Officer
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Mark H. Swartz
/s/ Frank W. Walsh, Jr. Director
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Frank W. Walsh, Jr.
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EXHIBIT INDEX
Exhibit No. Description
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3.1 Restated Articles of Organization, as amended [incorporated
by reference to Exhibit 3(a) to the Company's Annual Report
on Form 10-K for the fiscal year ended May 31, 1987].
3.2 Articles of Amendment dated November 9, 1993, effective
November 10, 1993 [incorporated by reference to Exhibit 3 to
the Company's Current Report on Form 8-K filed on November
12, 1993].
3.3 By-laws [incorporated by reference to Exhibit 3 to the
Company's Current Report on Form 8-K filed on August 17,
1990].
5.1 Opinion of M. Brian Moroze, General Counsel and Assistant
Secretary, as to the legality of the securities being
registered.
10.1 The Earth Technology Corporation (USA) 1987 Stock Plan
10.2 The Earth Technology Corporation (USA) Director Option Plan
10.3 Summit Environmental Group, Inc. Stock Option Plan
10.4 Hazwaste Industries Incorporated 1987 Stock Option Plan
23.1(a) Consent of Counsel (included in Exhibit 5.1 hereto).
23.1(b) Consent of Coopers & Lybrand L.L.P.
23.1(c) Consent of Price Waterhouse LLP
24 Powers of Attorney (included in Part II of this registration
statement).
EXHIBIT 5.1
April 4, 1996
Tyco International Ltd.
One Tyco Park
Exeter, New Hampshire 03833
Re: The Earth Technology Corporation (USA) 1987 Stock Plan
The Earth Technology Corporation (USA) Director Option Plan
Summit Environmental Group, Inc. Stock Option Plan
Hazwaste Industries Incorporated 1987 Stock Option Plan
Dear Sirs:
I am General Counsel of Tyco International Ltd., a Massachusetts
corporation (the "Company"). I refer to the registration pursuant to the
Securities Act of 1933, as amended (the "Act"), of 261,645 shares of Common
Stock, par value $.50 per share (the "Shares"), of the Company which may be
issued under the The Earth Technology Corporation (USA) 1987 Stock Plan, The
Earth Technology Corporation (USA) Director Option Plan, The Summit
Environmental Group, Inc. Stock Option Plan, and The Hazwaste Industries
Incorporated 1987 Stock Option Plan (collectively, the "Plans").
I have advised the Company in connection with the registration of the
Shares under the Act. I have examined the Plans; the Restated Articles of
Organization and the By-laws of the Company, each as amended to date; such
records of the corporate proceedings of the Company as I deemed relevant; the
Registration Statement on Form S-8 under the Act relating to the Shares (the
"Registration Statement"); and such other certificates, records and documents as
I considered necessary for the purposes of this opinion. I have also examined
and relied upon representations, statements or certificates of public officials
and officers and representations of the Company.
Based upon the foregoing, I am of the opinion that upon the issuance and
delivery of the Shares in accordance with the terms of the Registration
Statement and the Plans, the Shares will be legally issued, fully paid and
non-assessable shares of the Company's Common Stock. My opinion assumes that all
requisite steps will be taken to comply with the requirements of the Act and
applicable requirements of state laws regulating the offer and sale of
securities.
I am an attorney admitted to practice in the Commonwealth of Massachusetts
and the State of New York. I express no opinion concerning the laws of any
jurisdiction other than the laws of the United States of America, the
Commonwealth of Massachusetts, and the State of New York.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of my name therein. I am delivering this
opinion to the Company, and no other person other than the Company may rely on
it.
Very truly yours,
/s/ M. Brian Moroze
M. Brian Moroze
General Counsel and Assistant Secretary
Exhibit 10.1
THE EARTH TECHNOLOGY CORPORATION (USA)
1987 STOCK PLAN
Section 1. Establishment, Purpose, and Effective Date of Plan
1.1 Establishment. Earth Technology Corporation (USA) hereby establishes
"The Earth Technology Corporation (USA) 1987 Stock Plan" (the "Plan") for key
employees. The Plan permits the grant of nonstatutory Stock Options and
Restricted Stock.
1.2 Purpose. The purpose of the Plan is to advance the interests of the
Company and its stockholders, by providing key employees with incentives to
achieve superior Company performance, by encouraging them to take an equity
interest in the success of the Company through Stock ownership, and by enabling
the Company to attract and retain the services of key employees upon whose
judgment, interest, and special effort the successful conduct and profitability
of its operations are largely dependent.
1.3 Effective Date. The Plan shall become effective on the date of its
approval by vote of the holders of a majority of the outstanding shares of the
Company's Common Stock present, in person or by proxy, and entitled to vote at a
duly held meeting of the stockholders.
Section 2. Definitions
2.1 Definitions. Whenever used herein, the following terms shall have their
respective meanings set forth below:
(a) "Award" means any Stock Option or Restricted Stock granted under
this Plan.
(b) "Board" means the Board of Directors of the Company.
(c) "Code" means the Internal Revenue Code of 1986, as amended.
(d) "Committee" means a committee appointed by the Board composed of
three or more persons who are "outside," independent directors. No person,
while a member of the Committee, shall be eligible for participation in the
Plan, and no person shall become a member of the Committee if, within one
year prior to becoming a member, that person shall have been eligible for
selection as a Participant in the Plan.
(e) "Company" means The Earth Technology Corporation (USA).
(f) "Disability" refers to a Participant's total and permanent
disability resulting from illness or personal injury which causes him to be
absent from employment with the Company and its Subsidiaries and would, in
the opinion of the Committee, entitle him to disability insurance benefits
under the Social Security Act.
(g) "Employee" means a regular salaried employee (including officers
and directors who are also employees) of the Company and/or its
Subsidiaries, or any branch or division thereof.
(h) "Employment" means employment as an Employee of the Company and/or
any Subsidiary and "termination of employment" shall mean termination of
the Participant's employment by all of the Company and its Subsidiaries.
(i) "Fair Market Value" as of any date means the average of the highest
and lowest prices of the Stock as reported by the consolidated tape of the
NASDAQ or the closing price as reported by the principal stock exchange on
which the Stock is then listed, as the case may be, on that particular
date. In the event that there are no Stock transactions on such date, the
Fair Market Value shall be determined as of the immediately preceding date
on which there were Stock transactions.
(j) "Option" means the right to purchase Stock at a stated price for a
specified period of time.
(k) "Participant" means any Employee designated by the Committee to
participate in the Plan.
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(l) "Period of Restriction" means the period during which the transfer of
shares of Restricted Stock is restricted pursuant to Section 8 of the Plan.
(m) "Restricted Stock" means Stock granted to a Participant pursuant to
Section 8 of the Plan.
(n) "Retirement" (including "Early Retirement" and "Normal Retirement")
means termination of employment for reasons other than death after a Participant
has attained age 65 (for Normal Retirement) or has attained age 55 with ten
years of service to the Company, but prior to age 65 (for Early Retirement).
(o) "Stock" means the Common Stock of the Company, par value of $. 10 per
share.
(p) "Subsidiary" means any corporation, partnership, joint venture or
other entity, domestic or foreign, in which the Company, either directly or
through another Subsidiary or Subsidiaries, has a greater than 50%
ownership interest.
2.2 Gender and Number. Except when otherwise indicated by the context, words
in the masculine gender when used in the Plan shall include the feminine gender,
the singular shall include the plural, and the plural shall include the
singular.
Section 3. Eligibility and Participation
3.1 Eligibility and Participation. Participants in the Plan shall be
selected by the Committee from among those employees who, in opinion of the
Committee, are key employees who are in a position to contribute materially to
the Company's continued growth and development and to its long-term financial
success.
Section 4. Administration
4.1 Administration. The Committee shall be responsible for the
administration of the Plan. The Committee is authorized to select Participants,
to interpret the Plan, to prescribe, amend, and rescind rules and regulations
relating to the Plan, to provide for conditions and assurances deemed necessary
or advisable to protect the interests of the Company, and to make all other
determinations necessary or advisable for the administration of the Plan, but
only to the extent not contrary to the express provisions of the Plan. All
determinations, interpretations, decisions and selections made by the Committee
pursuant to this Plan shall be made by vote of a majority of the Committee
present at a duly noticed meeting at which a majority of members is present or
by the unanimous written consent of the members of the Committee.
Determinations, interpretations, or other actions made or taken by the Committee
pursuant to the provisions of the Plan shall be final and binding and conclusive
for all purposes and upon all persons whomsoever.
Section 5. Stock Subject to Plan
5.1 Number. The total number of shares of Stock subject to Awards under the
Plan may not exceed 200,000, subject to adjustment upon occurrence of any of the
events indicated in Section 5.3. Of this total number, up to 50,000 shares of
Stock may be issued in Restricted Stock. The shares to be delivered under the
Plan may consist, in whole or in part, of authorized but unissued Stock, or
treasury Stock not reserved for any other purpose.
5.2 Lapsed Awards. If any Award granted under the Plan terminates, expires,
or lapses for any reason, any shares subject to such Award shall again be
available for the grant of an Award.
5.3 Adjustment in Capitalization. In the event of any change in the
outstanding shares of Stock that occurs after ratification of the Plan by the
stockholders of the Company by reason of a Stock dividend or split,
recapitalization, merger, consolidation, combination, exchange of shares, or
other similar corporate change, the aggregate number of shares of Stock subject
to each outstanding Option, and its stated Option price, shall be adjusted
appropriately by the Committee, whose determination shall be conclusive,
provided, however, that fractional shares shall be rounded to the nearest whole
share. In such event, the Committee also shall have discretion to make
appropriate adjustments in the
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number and type of shares of Restricted Stock then outstanding under the Plan
pursuant to the terms of the grants of such Restricted Stock or otherwise.
Section 6. Duration of Plan
6.1 Duration of Plan. The Plan shall remain in effect, subject to the
Board's right to earlier terminate the Plan pursuant to Section 11 hereof, until
all Stock subject to it shall have been purchased or acquired pursuant to the
provisions hereof. Notwithstanding the foregoing, no Award may be granted under
the Plan on or after the tenth (10th) anniversary of the Plan's effective date.
Section 7. Stock Options
7.1 Grant of Options. Subject to the provisions of Sections 5 and 6, Options
may be granted to Participants at any time and from time to time as shall be
determined by the Committee, and the Committee shall have complete discretion in
determining the number of Options granted to each Participant and the number of
shares of Stock subject to each Option.
7.2 Option Agreement. Each Option shall be evidenced by an Option agreement
that shall specify the type of Option granted, the Option price, the duration of
the Option, the number of shares of Stock to which the Option pertains, and such
other provisions as the Committee shall determine.
7.3 Option Price. No Option granted pursuant to the Plan shall have an
Option price that is less than the Fair Market Value of the Stock on the date
the Option is granted.
7.4 Duration of Options. Each Option shall expire at such time as the
Committee shall determine at the time it is granted, provided, however, that no
Option shall be exercisable later than ten years and one day from the date of
its grant.
7.5 Exercise of Options. Options granted under the Plan shall be exercisable
at such times and be subject to such restrictions and conditions as the
Committee shall in each instance approve, which need not be the same for all
Participants.
7.6 Payment. The purchase price of Stock upon exercise of any Option shall
be paid in full either (i) in cash, or (ii) in Stock held for a minimum of 6
months valued at its Fair Market Value on the date of exercise, or (iii) by a
combination of (i) and (ii), in the manner provided in the Option agreement.
Shares of Stock owned through employee benefit plans of the Company may be used
if no adverse tax consequences to either the Participant or the Company would
result. The proceeds from payment of Option prices shall be added to the general
funds of the Company and shall be used for general corporate purposes.
7.7 Restrictions on Stock Transferability; Registration. The Committee shall
impose such restrictions on any shares of Stock 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 upon which such shares of Stock are then
listed and under any blue sky or state securities laws applicable to such
shares.
The Committee, in its sole discretion, shall have the right at any time, and
from time to time, if it deems such to be in the best interests of the Company
and its stockholders, to cause the Company to file and to thereafter process an
appropriate registration statement with the Securities and Exchange Commission
and with appropriate state securities laws regulators pertaining to the offer
and sale of Options issued or to be issued under this Plan and shares of Stock
issued or issuable upon exercise of such Options and to the public resale of
such shares.
7.8 Termination of Employment Due to Retirement. In the event that a
Participant has a termination of employment by reason of Normal Retirement, any
restriction on exercise applicable to any outstanding Options held by such
Participant pursuant to Subsection 7.5 hereof shall automatically terminate and,
except as otherwise provided in Subsection 7.7, such Options shall thereby be
free of restrictions and freely exercisable. In the event that a Participant has
a termination of employment by reason of Early Retirement, all Options that have
not yet become exercisable by their
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terms shall be forfeited and returned to the Company, provided, however, that
the Committee in its sole discretion may waive such forfeiture and any
restrictions remaining on any such Options or add such new restrictions to any
such Options as it deems appropriate. In the case of the Normal Retirement of a
Participant, any outstanding Options held by such Participant, and in the case
of the Early Retirement of a Participant, any outstanding Options held by the
Participant that are exercisable by their terms on or before the date of Early
Retirement, may be exercised at any time prior to the expiration date of the
Options or within a three (3) year period after the date of such Retirement,
whichever period is the shorter.
7.9 Termination of Employment Due to Death or Disability. In the event of a
Participant's termination of employment by reason of death or Disability, any
outstanding Option held by such Participant, or unexercised portion of such
Option, that was otherwise exercisable on the date of death or Disability may be
exercised at any time prior to the expiration date of the Option or within
twelve (12) months after such date of termination of employment, whichever
period is the shorter. Upon the expiration of such period, the Option shall then
terminate.
7.10 Termination of Employment for Reasons Other Than Death, Disability, or
Retirement. In the event of a Participant's termination of employment for any
reason other than death, Disability, Normal or Early Retirement, or
involuntarily for cause, any outstanding Option held by such Participant, or
unexercised portion of such Option, that was otherwise exercisable on the date
of such termination of employment may be exercised at any time prior to the
expiration date of the Option or within three (3) months after such date of
termination of employment, whichever period is the shorter. Upon the expiration
of such period, the Option shall then terminate. In the event that a
Participant's termination of employment is involuntary for cause, all Options
held by such Participant shall terminate upon termination of employment and
shall not thereafter be exercisable.
7.11 Nontransferability of Options. No Option granted under the Plan may be
sold, transferred, pledged, assigned, or otherwise alienated or hypothecated,
otherwise than by will or by the laws of descent and distribution. Further, all
Options granted to a Participant under the Plan shall be exercisable during his
lifetime only by such Participant.
7.12 No Rights as Stockholder. No Participant shall have any rights as a
stockholder with respect to shares of Stock covered by an Option until the date
of issuance of a stock certificate for such shares. Except as provided in
Section 5.3, no adjustment shall be made for dividends or other rights the
record date for which is prior to the date of issuance of such certificate.
7.13 Stock Depreciation Right. If, upon the exercise of an Option, a
Participant would be subject to suit under Section 16(b) of the Securities
Exchange Act of 1934 (the "Act") in the event that the Participant sold at a
profit the Stock acquired pursuant to such exercise, the Company shall pay to
such Participant, in cash, an amount, if any, equal to the excess of the Fair
Market Value of such stock on the date of such exercise over the Fair Market
Value of the Stock on such later date selected by the Participant that is during
the "window period" of Rule 16b-3(e) (3) (iii) next succeeding the later of (a)
6 months from the date of exercise of the Option, or (b) such time as the
Participant is not prohibited from publicly selling shares of the Common Stock
(the "Stock Depreciation Right"). A Participant shall not be entitled to a Stock
Depreciation Right if the Option to which such Stock Depreciation Right pertains
is exercised after the Participant ceases to be a person specified in Section 16
of the Act and is not otherwise prohibited from selling shares of Stock under
the federal securities laws,
Section 8. Restricted Stock
8.1 Grant of Restricted Stock. Subject to the provisions of Sections 5 and
6, the Committee, at any time and from time to time, may grant shares of
Restricted Stock under the Plan to such Participants and in such amounts as it
shall determine. Each grant of Restricted Stock shall be in writing.
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8.2 Transferability. Except as provided in Sections 8.8 and 8.9 hereof, the
shares of Restricted Stock granted hereunder may not be sold, transferred,
pledged, assigned, or otherwise alienated or hypothecated for such period of
time as shall be determined by the Committee and shall be specified in the
Restricted Stock grant, or upon earlier satisfaction of other conditions as
specified by the Committee in its sole discretion and set forth in the
Restricted Stock grant.
8.3 Other Restrictions; Registration. The Committee shall impose such other
restrictions on any shares of Restricted Stock granted pursuant to the Plan as
it may deem advisable including, without limitation, restrictions under
applicable federal or state securities laws, and may legend the certificates
representing Restricted Stock to give appropriate notice of such restrictions.
The Committee, in its sole discretion, shall have the right at any time, and
from time to time, if it deems such to be in the best interests of the Company
and its stockholders, to cause the Company to file and thereafter process an
appropriate registration statement with the Securities and Exchange Commission
and with appropriate state securities laws regulators pertaining to the offer
and sale of Restricted Stock issued or to be issued under this Plan and the
public resale of such Restricted Stock.
8.4 Voting Rights. Participants holding shares of Restricted Stock granted
hereunder may exercise full voting rights with respect to those shares during
the Period of Restriction.
8.5 Dividends and Other Distributions. During the Period of Restriction,
Participants holding shares of Restricted Stock granted hereunder shall be
entitled to receive all dividends and other distributions paid with respect to
those shares while they are so held. If any such dividends or distributions are
paid in shares of Stock, the shares shall be subject to the same restrictions on
transferability as the shares of Restricted Stock with respect to which they
were paid.
8.6 Termination of Employment Due to Retirement. In the event of the
termination of employment of a Participant by reason of Normal Retirement, the
Period of Restriction applicable to the Restricted Stock held by such
Participant pursuant to Subsection 8.2 hereof shall automatically terminate and,
except as otherwise provided in Subsection 8.3, the shares of Restricted Stock
shall thereby be free of restrictions and freely transferable. In the event of
the termination of employment of a Participant by reason of Early Retirement,
all shares of Restricted Stock as to which the Period of Restriction has not yet
expired shall be forfeited and returned to the Company; provided, however, that
the Committee in its sole discretion may waive any of the restrictions remaining
on any or all shares of Restricted Stock or add such new restrictions to such
shares of Restricted Stock as it deems appropriate.
8.7 Termination of Employment Due to Death or Disability. In the event of
the termination of employment of a Participant by reason of death or Disability
during the Period of Restriction, the restrictions applicable pursuant to
Section 8.2 hereof to the shares of Restricted Stock held by such Participant
shall terminate automatically with respect to that number of shares (rounded to
the nearest whole number) granted to the Participant in any Award equal to the
total number of shares of Restricted Stock granted to such Participant in such
Award multiplied by the number of full months which have elapsed since the date
of grant divided by the maximum number of full months of the Period of
Restriction for the shares granted in such Award. All remaining shares shall be
forfeited and returned to the Company, provided, however, that the Committee in
its sole discretion may waive such forfeiture and any of the restrictions
remaining on any or all such remaining shares or add such new restrictions to
such remaining shares of Restricted Stock as it deems appropriate.
8.8 Termination of Employment for Reasons Other Than Death, Disability, or
Retirement. In the event of the termination of employment of a Participant for
any reason other than those set forth in Sections 8.6 and 8.7 hereof during the
Period of Restriction, then any shares of Restricted Stock still subject to
restrictions at the date of such termination automatically shall be forfeited
and returned to the Company, provided, however, that, in the event of an
involuntary termination of the employment of a Participant, the Committee in its
sole discretion may waive the automatic forfeiture
A-6
<PAGE>
of any or all such shares and any of the restrictions remaining on any or all
such shares or may add such new restrictions to such shares of Restricted Stock
as it deems appropriate.
8.9 Nontransferability of Restricted Stock. No shares of Restricted Stock
granted under the Plan may be sold, transferred, pledged, assigned, or otherwise
alienated or hypothecated, otherwise than by will or by the laws of descent and
distribution, until the termination of the applicable Period of Restriction and
subject to Section 8.3. All rights with respect to Restricted Stock granted to a
Participant under the Plan shall be exercisable during his lifetime only by such
Participant.
Section 9. Beneficiary Designation
9.1 Beneficiary Designation. Each Participant under the Plan may name, from
time to time, any beneficiary or beneficiaries (who may be named contingently or
successively) to whom any benefit under the Plan is to be paid in case of his
death before he receives any or all of such benefit. Each designation will
revoke all prior designations by the same Participant, shall be in a form
prescribed by the Committee, and will be effective only when filed by the
Participant in writing with the Committee during his lifetime. In the absence of
any such designation, benefits remaining unpaid at the Participant's death shall
be paid to his estate.
Section 10. Rights of Employees
10. 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.
10.2 Participation. No employee shall have a right to be selected as a
Participant, or, having been so selected, to be selected again as a Participant.
Section 11. Amendments Modification, and Termination of Plan
11.1 Amendment, Modification, and Termination of Plan. The Board at any time
may terminate, and from time to time may amend or modify, the Plan, provided,
however, that no such action of the Board, without approval of the shareholders,
may:
(a) Increase the total number of shares of Stock which may be issued
under the Plan, except as provided in Section 5.3 of the Plan.
(b) Change the provisions of the Plan regarding the Option price,
except as permitted by Section 5.3.
(c) Materially increase the cost of the Plan or materially increase the
benefits to Participants.
(d) Extend the period during which Awards may be granted.
(e) Extend the maximum period after the date of grant during which
Options may be exercised.
(f) Materially modify the requirements as to eligibility for
participation.
No amendment, modification, or termination of the Plan shall in any manner
adversely affect any Award theretofore granted under the Plan, without the
consent of the Participant.
Section 12. Tax Withholding
12.1 Tax Withholding. The Company shall have the power to withhold an amount
of Stock, or require a Participant to remit the Company an amount in cash,
sufficient to satisfy federal, state, and local withholding tax requirements on
any Award under the Plan or any exercise of an Option or termination of Period
of Restriction on Restricted Stock.
Section 13. Indemnification
13.1 Indemnification. The Company shall enter into an Indemnification
Agreement with each member of the Committee and of the Board which shall, among
other things, indemnify each such
A-7
<PAGE>
member against certain expenses and liabilities that may be incurred by such
member as a result of actions, suits and proceedings relating to the Plan. Each
such Indemnification Agreement shall be in the form of the Indemnification
Agreement that is attached as Exhibit B to the Company's Proxy Statement dated
November 17, 1987, or in the form of any Indemnification Agreement that the
Company subsequently may adopt for the benefit of its directors and officers.
Section 14. Requirements of Law
14.1 Requirements of Law. The granting of Awards and the issuance of shares
of Stock upon the exercise of an Option 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.
14.2 Governing Law. The Plan, and all agreements hereunder, shall be
construed in accordance with and governed by the laws of the State of Delaware.
A-8
<PAGE>
AMENDMENT TO THE EARTH TECHNOLOGY CORPORATION (USA)
1987 STOCK PLAN
Section 5.1 of the Plan is hereby amended to read as follows:
5.1 Number. The total number of shares of Stock subject to Awards under
the Plan may not exceed 1,350,000, subject to adjustments upon occurrence
of any of the events indicated in Section 5.3. Of this total number, up to
450,000 shares of Stock may be issued in Restricted Stock. The shares to be
delivered under the Plan may consist, in whole or in part, of authorized
but unissued Stock, or treasury Stock not reserved for any other purpose.
The maximum limits specified in this Section 5.1 include all authorized
shares of Stock that remained available for use under the Plan pursuant to
the previous version of this Section 5.1. They are not in addition to such
previously authorized, remaining shares.
Exhibit 10.2
THE EARTH TECHNOLOGY CORPORATION (USA)
DIRECTOR OPTION PLAN
(as amended and restated as of March 24, 1994)
<PAGE>
THE EARTH TECHNOLOGY CORPORATION (USA)
DIRECTOR OPTION PLAN
PART 1. PLAN ADMINISTRATION AND ELIGIBILITY
------- -----------------------------------
SECTION I. PURPOSE
SECTION II. ADMINISTRATION
SECTION III. PARTICIPATION IN THE PLAN
SECTION IV. STOCK SUBJECT TO THE PLAN
A. Class
B. Aggregate Amount
PART 2. OPTIONS
---------------
SECTION V. NON-STATUTORY STOCK OPTIONS
SECTION VI. TERMS, CONDITIONS AND FORM OF OPTIONS
A. Option Grant Dates
B. Option Formula
C. Options Non-Transferable
D. Period of Option
E. Exercise of Options
F. Termination of Options
G. Death of Director
SECTION VII. OPTION PRICE
PART 3. GENERAL PROVISIONS
--------------------------
SECTION VIII. ASSIGNABILITY
SECTION IX. TIME FOR GRANTING OPTIONS
SECTION X. VALUATION OF COMMON STOCK
SECTION XI. LIMITATION OF RIGHTS
A. No Right to Continue as a Director
B. No Shareholders' Rights for Options
SECTION XII. ADJUSTMENTS TO STOCK
SECTION XIII. EFFECTIVE DATE OF THE PLAN
SECTION XIV. AMENDMENT OF THE PLAN
SECTION XV. GOVERNING LAW
SECTION XVI. COMPLIANCE WITH SECURITIES LAWS
2
<PAGE>
Part 1. Plan Administration and Eligibility
1. Purpose
The purpose of this Director Option Plan (the "Plan ") of The
Earth Technology Corporation (USA) (the "Company") is to make service on
the Board more attractive to present and prospective outside directors of
the Company, since the continued services of qualified outside directors
are considered essential to the Company's sustained progress.
II. Administration
The Plan shall be administered by a committee (the "Committee")
of three or more persons appointed by the Board of Directors of the
Company. Grants of stock options under the Plan and the amount and nature
of the awards to be granted shall be automatic as described in Section VI.
However, all questions of interpretation of the Plan or of any opinions
issued under it shall be determined by the Committee and such determination
shall be final and binding upon all persons having an interest in the Plan.
Any or all powers and discretion vested in the Committee under this Plan may
be exercised by a subcommittee of three or more persons so authorized by
the Committee.
III. Participation in the Plan
All directors of the Company shall be eligible to participate in
the Plan unless they are (1) employees of the Company, (2) employees of
andy subsidiary of the Company, (3) members of the Committee, (4) members
of the committee administering any other stock option, stock appreciation,
stock bonus or other stock plan of the Company or any of its subsidiaries,
(5) former (within one year) members of the Committee or any committee
administering any other such plan, or (6) designated future (within one
year) members of the Committee or any committee administering any other
such plan. However, committee membership, former committee membership, or
designated future committee membership shall not cause a director to be
ineligible to participate in the Plan if:
(1) The Company receives a letter from the staff of the
Securities and Exchange Commission or from the Company's counsel or counsel
for its consultants stating that participation in the Plan by such director
will not cause such director to cease to be a "disinterested person" with
respect to the Plan or any other stock option, stock appreciation, stock
bonus or other stock plan of the Company or any of its subsidiaries, so as
to disqualify such director as administrator under SEC Rule 16b-3, or
(2) The Securities and Exchange Commission revises SEC Rule
16b-3 to remove the requirement of administration by disinterested persons.
IV. Stock Subject to the Plan
A. Class. The stock which is to be made the subject of
-----
awards granted under the Plan shall be the Company's authorized but
unissued Common Stock, par value $.10 per share ("Common Stock"). In
connection with the issuance of shares of Common Stock under the Plan, the
Company may repurchase shares in the open market or otherwise.
B. Aggregate Amount.
----------------
(1) The total number of shares issuable under the Plan shall
not exceed 100,000 shares (subject to adjustment under Section XII).
3
<PAGE>
(2) If any outstanding option under the Plan expires or is
terminated for any reason, then the Common Stock allocable to the
unexercised portion of such option shall not be charged against the
limitation of Section IV (B)(1) and may again become the subject of a stock
option granted under the Plan.
Part 2. Options
V. Non-Statutory Stock Options
All options granted under the Plan shall be non-statutory options
not entitled to special tax treatment under Section 422 of the Internal
Revenue Code of 1986, as amended to date and as may be amended from time to
time (the "Code").
VI. Terms, Conditions and Form of Options
Each option granted under this Plan shall be evidenced by a
written agreement in such form as the Committee shall from time to time
approve, which agreements shall comply with and be subject to the following
terms and conditions:
A. Option Grant Dates. Option shall be granted automatically
------------------
and quarterly to any eligible director in lieu of one hundred percent (100%)
of the retainer fees to be earned in each calendar year for the duration of
his or her service as a director.
B. Option Formula. The number of option shares granted to
--------------
any eligible director shall be equal to the nearest number of whole shares
determined in accordance with the following formula:
Quarterly Retainer = Number
------------------
of
75% x Fair Market Value Shares
"Quarterly Retainer" shall mean the amount which the Board shall
establish which an eligible director shall be entitled to receive for
serving as a director in the relevant quarter. "Fair Market Value" shall
mean the fair market value of the Company's Common Stock on the last day of
the Company's fiscal quarter as determined in accordance with Section X of
the Plan.
C. Options Non-Transferable. Each option granted under the
-------------------------
Plan by its terms shall not be transferable by the director otherwise than
by will, or by the laws of descent and distribution, and shall be exercised
during the lifetime of the director only by him. No option or interest
therein may be transferred, assigned, pledged or hypothecated by the
director during his lifetime, whether by operation of law or otherwise, or
be made subject to execution, attachment or similar process.
D. Period of Option. Options become exercisable on the first
----------------
day of the calendar year following the date of grant; provided, however,
that any option granted pursuant to the Plan shall become exercisable in
full upon the termination of service as a director for any reason,
including retirement or disability. Options shall terminate upon the
expiration of ten (10) years from the date upon which such options were
granted.
E. Exercise of Options. Options may be exercised only by
-------------------
written notice to the Company at its head office accompanied by payment, in
cash, of the full option price.
F. Termination of Options. All rights of a director in an
----------------------
option, to the extent that it has not been exercised shall terminate upon
the expiration date of such option.
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<PAGE>
G. Death of Director. Any option granted the director under
-----------------
the Plan and outstanding on the date of his death may be exercised by the
personal representative of the director's estate or by the person or
persons to whom the option is transferred pursuant to the director's will
or in accordance with the laws of decent and distribution, at any time
prior to the specified expiration date of such option.
VII. Option Price
A. Option Price. The option price per share for the shares
------------
covered by each option shall be 25% of the Fair Market Value at the time of
the grant.
B. Amendment of Part 2. Notwithstanding any other provisions
-------------------
of the Plan, the provisions of Part 2 shall not be amended more than once
every six months, other than to comport with changes in the Code, the
Employee Retirement Income Security Act ("ERISA") or the rules thereunder.
Part 3. General Provisions
VIII. Assignability
The rights and benefits under this Plan shall not be assignable
or transferable except by will or the laws of descent and distribution, or
pursuant to a qualified domestic relations order as defined in the Code or
Title 1 of ERISA or the rules thereunder and shall be exercisable during
optionee's lifetime only by him or her, and after his or her death, by his
or her personal representative or the person entitled thereto under his or
her will or the laws of interstate succession.
IX. Time for Granting Options
No options maybe granted under this Plan after January 1, 1999.
X. Valuation of Common Stock
For all valuation purposes under the Plan, the "Fair Market
Value" as of any date means the average of the highest and lowest prices of
the Common Stock as reported by the consolidated tape of the NASDAQ or the
closing price as reported by the principal stock exchange on which the
Common Stock is then listed, as the case may be, on the particular date.
In the event that there are no Common Stock transactions on such date, the
Fair Market Value shall be determined as of the immediately preceding date
on which there were Common Stock transactions.
XI. Limitation of Rights
A. No Right to Continue as a Director. Neither the Plan, nor
----------------------------------
the granting of an option nor any other action taken pursuant to the Plan,
shall constitute or be evidence of any agreement or understanding,
expressed or implied, that the Company will retain a director for any
period of time, or at any particular rate of compensation.
B. No Shareholders' Rights for Options. A director shall
-----------------------------------
have no rights as a shareholder with respect to the shares covered by his
options until the date of the issuance to him of a stock certificate
therefor, and no adjustment will be made for dividends or other rights for
which the record date is prior to the date such certificate is issued.
5
<PAGE>
XII. Adjustments to Stock
In the event any change is made to the Common Stock subject to
the Plan or subject to any outstanding award granted under the Plan
(whether by reason of merger, consolidation, reorganization,
recapitalization, stock dividend, stock split, combination of shares,
exchange of shares, change in corporate structure or otherwise), then
appropriate adjustment shall be made to the maximum number of shares
subject to the Plan and the number of shares and price per share of stock
subject to outstanding Options.
XIII. Effective Date of the Plan
The Plan shall take effect upon the date of adoption by the Board
subject to approval by vote of the holders of a majority of the outstanding
shares of the Company's Common Stock present, in person or by proxy, and
entitled to vote at a duly held meeting of the stockholders.
XIV. Amendment of the Plan
The Board of Directors of the Company may suspend or discontinue
the Plan or revise or amend it in any respect whatsoever; provided,
however, that without approval of the shareholders no revision or amendment
shall change the number of shares subject to the Plan (except as provided
in Section XII), change the designation of the class of directors eligible
to receive options, or materially increase the benefits accruing to
participants under the Plan. No amendment may alter or impair any rights
or obligations of any Option previously granted without the consent of the
director.
XV. Governing Law
The Plan and all determinations made and actions taken pursuant
hereto shall be governed by the law of the State of Delaware and construed
accordingly.
XVI. Compliance With Securities Laws
With respect to persons subject to Section 16 of the Securities
Exchange Act of 1934 ("1934 Act"), transactions under this Plan are
intended to comply with all applicable conditions of Rule 16b-3 or its
successor provisions under the 1934 Act. To the extent any provision of
the Plan or action by the Plan administrator fails to so comply, it shall
be deemed null and void, to the extent permitted by law and deemed
advisable by the Plan administrator.
6
<PAGE>
AMENDMENT TO THE EARTH TECHNOLOGY CORPORATION (USA)
DIRECTOR OPTION PLAN
SECTION IV.B(1) of the Plan is amended to read as follows:
B. Aggregate Amount.
----------------
(1) The total number of shares issuable under the Plan shall
not exceed 200,000 shares (subject to adjustments under Section XII).
Exhibit 10.3
SUMMIT ENVIRONMENTAL GROUP, INC.
Stock Option Plan
1. Purpose. The purpose of this Stock Option Plan (the "Plan") is to provide
an incentive to selected key management employees of Summit Environmental
Group, Inc. (the "Company") and its subsidiaries to acquire or to increase
a proprietary interest in the Company, to continue as employees or for
others to become employees, and to increase their interest in and
contribution to the welfare of the Company and its subsidiaries.
2. Administration. The Plan shall be administered by a committee (the
"Committee") of not less than three directors of the Company elected or to
be elected from time to time by the Board of Directors of the Company, none
of whom shall be an employee of the Company or any subsidiary, or have been
such an employee for one year prior thereto. Subject to the provisions of
the Plan and the control of the Board of Directors of the Company, the
Committee is authorized to grant options hereunder and to interpret the
Plan and such options, to prescribe, amend and rescind rules and
regulations relating to the Plan and the options, and to make other
determinations necessary or advisable for the administration of the Plan,
all of which determinations shall be conclusive.
3. Eligibility. Options shall be granted under the Plan to such selected full
time salaried employees (including officers and directors if they are
employees) of the Company or any of its subsidiaries as the Committee shall
determine from time to time.
4. Stock Subject to Options. The aggregate number of shares of the Company's
common stock which may be issued or sold under options granted pursuant to
the Plan shall not exceed 500,000, which shares shall be authorized but
unissued shares of said common stock or issued shares of said common stock
which shall have been reacquired by the Company. Such aggregate number of
shares may be adjusted under Section 8 below. If any outstanding option
under the Plan expires or is terminated for any reason, the shares allo-
cated to the unexercised portion of such option may again be subjected to
an option or options under the Plan.
5. Types of Options. The Committee shall have full and complete authority,
subject to the limitations contained in the Plan, to grant options on such
terms and conditions as may be required to provide for the following types
of options under the Plan:
(a) "Incentive stock options" as defined in Section 422A of the Internal
Revenue Code (hereinafter referred to as "Statutory Options").
<PAGE>
(b) Options which do not qualify as Statutory Options
(hereinafter referred to as "Nonstatutory Options").
6. Allotment of Shares. The Committee shall determine the total number of
shares to be offered to each optionee under the Plan; provided, however,
that the aggregate fair market value (determined as of the time the option
is granted) of the shares with respect to which Statutory Options are
exercisable for the first time by an optionee during any calendar year
(under this Plan and any other plans of the Company and its subsidiaries)
shall not exceed $100,000.
7. Terms and Conditions of Sale. Each such option shall be evidenced by an
agreement or other written instrument, in such form as the Committee shall
from time to time determine, which shall prescribe the following terms and
conditions and such other terms and conditions as the Committee may deem
necessary or advisable:
(a) Number of Shares. The number of shares to which the option pertains
shall conform with the limitations of Section 6 above.
(b) Duration of Option. The term of each option shall be for such period
as the Committee shall determine, but not more than ten (10) years
from the date of granting thereof, nor more than five (5) years from
the date of granting thereof in the case of a Statutory Option granted
to an optionee who owns stock possessing more than ten percent (10%)
of the total combined voting power of all classes of stock of the
Company.
(c) Option Price.
(i) Statutory Options. The option price of shares under a Statutory
Option shall be as determined by the Committee but shall not be
less than one hundred percent (100%) of the per share fair market
value of the outstanding shares of common stock of the Company on
the date the option is granted, and, in the case of an optionee
who owns stock possessing more than ten percent (10%) of the
total combined voting power of all classes of stock of the
Company such option price shall not be less than one hundred ten
percent (110%) of the per share fair market value of the
outstanding common shares of the Company on the date the option
is granted.
(ii) Nonstatutory Options. The option price of shares under a
Nonstatutory Option shall be as determined by the Committee.
(d) Exercisability of Options. Each option granted under the Plan shall be
exercisable at such time or times
2.
<PAGE>
and at such rate as the Committee shall determine. During the lifetime
of an optionee, the option may be exercised only by him and, except to
the extent otherwise provided in subsection (g) below, only during the
continuance of the optionee's employment with the Company or one of
its subsidiaries.
(e) Nontransferability of Options. No option shall be transferable by the
optionee other than by will or the laws of descent and distribution.
(f) Termination of Employment. If an optionee's full time employment by
the Company or any of its subsidiaries shall terminate for any reason
other than death or disability, his options shall terminate
immediately upon the cessation of his employment, if not sooner
terminated pursuant to their terms, except that within the period of
three months following such cessation of employment, but not later
than the expiration date of such options, he may exercise such options
to the extent he was entitled to exercise the same on the date of such
cessation of employment.
(g) Death or Disability of Employee. If the optionee shall die or become
disabled (within the meaning of Section 422A(C)(7) of the Internal
Revenue Code) while in the employ of the Company or any of its
subsidiaries, his options shall thereupon terminate, if not sooner
terminated pursuant to their terms, except that within the twelve
month period next succeeding such death or disability, but not later
than the expiration date of such options, the options granted to the
optionee hereunder may be exercised to the extent such options were
exercisable on the date of such death or disability.
(h) Method of Exercise and Payment. An option may be exercised by
delivering to the Company at the office of its Treasurer a written
notice, signed by the person entitled to exercise the option, of the
election thereby made to exercise the option and stating the number of
shares in respect of which it is then being exercised. Such notice
shall, and as an essential part thereof, be accompanied by payment in
full of the option price of such shares by cash, money order,
cashier's check or certified check. The date of exercise shall be the
date such notice and payment are received by the Treasurer. Upon the
due exercise of the option, the Company shall issue in the name of the
person exercising the option, and deliver to him, a certificate or
certificates for the shares in respect of which the option shall have
been so exercised. Until the certificate or certificates for such
shares shall have been delivered to him, an optionee shall have none
of the rights of a stockholder.
3.
<PAGE>
8. Changes in Stock. In the event of a stock dividend, split-up or combination
of shares, recapitalization, reclassification or merger in which the
Company is the surviving corporation, or other similar capital or corporate
structure change, the number and kind of shares of stock or securities of
the Company at the time of such change remaining subject to the Plan and to
any option granted or to be granted pursuant to the Plan, the option price
and any other relevant provisions shall be appropriately adjusted by the
Board of Directors of the Company, whose determination shall be binding on
all persons. In the event of a consolidation, merger or other corporate
reorganization in which the Company is not the surviving corporation, each
option outstanding hereunder shall thereupon terminate, provided that at
least twenty (20) days prior to the effective date of any such
consolidation, merger or other corporate reorganization, the Board of
Directors of the Company shall do one of the following: (i) make such
options immediately exercisable, (ii) arrange to have the surviving or
consolidated corporation grant replacement options to the optionees
involved, or (iii) pay in cash the difference between the exercise price of
the option and the consideration receivable in the transaction by a holder
of the number of shares of common stock equal to the number subject to the
options. No adjustment provided for in this Section 8 shall require the
Company to issue or sell a fractional share under any option hereunder and
any fractional share resulting from any such adjustment shall be deleted
from the option involved.
9. Amendment or Discontinuance of the Plan. The Board of Directors of the
Company may, insofar as permitted by law, at any time or from time to time,
suspend or terminate the Plan or revise or amend it in any respect
whatsoever except that, without appropriate approval of the holders of the
common stock, no such revision or amendment shall increase the maximum
number of shares subject to the Plan, change the designation of the class
of employees eligible to receive options, or decrease the price at which
options may be granted.
10. Applicable Laws or Regulations and Notification of Disposition. The
Company's obligations to sell and deliver shares under an option is subject
to, and conditional upon, such compliance as the Company deems necessary or
advisable with federal and state laws, rules and regulations applying to
the authorization, issuance, listing or sale of securities. The Company may
also require in connection with any exercise of an option that the optionee
agree that he will notify the Company when he makes any disposition of the
shares whether by sale, gift, or otherwise.
11. No Employment Right; No Obligation to Exercise Option. Nothing contained in
the Plan, or in any option granted under it, shall confer upon any optionee
any right to
4.
<PAGE>
continued employment by the Company or any of its subsidiaries or limit in
any way the right of the Company or any subsidiary to terminate his
employment at any time. The granting of any option hereunder shall impose
no obligation upon the optionee to exercise such option.
12. Expiration of Plan. This Plan shall expire with respect to the granting of
further options on June 30, 1998. The expiration of the Plan as aforesaid
shall not affect the validity of any options theretofore granted hereunder
which have not expired by their terms.
13. Effective Date of Plan. This Plan shall be submitted to shareholders for
approval. If approved by shareholders, this Plan shall be effective as of
July 1, 1988. If not so approved by shareholders, this Plan shall be void
and of no effect.
5.
Exhibit 10.4
HAZWASTE INDUSTRIES INCORPORATED
1987 STOCK OPTION PLAN
ARTICLE I
DEFINITIONS
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1.01. Affiliate means any "subsidiary" or "parent" corporation (within
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the meaning of Section 422A of the Code) of the Company.
1.02. Agreement means a written agreement (including any amendment or
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supplement thereto) between the Company and a Participant specifying the terms
and conditions of an Option granted to such Participant.
1.03 Board means the Board of Directors of the Company.
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1.04 Code means the Internal Revenue Code of 1986,
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as amended.
1.05 Committee means a committee appointed by the Board to administer the
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Plan.
1.06 Common Stock means the common stock of the Company.
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1.07 Company means HazWaste Industries Incorporated.
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1.08 Fair Market Value means, on any given date, the value of the Common
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Stock as determined by the Board using any reasonable valuation method.
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1.09. Option means a stock option that entitles the holder to purchase
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from the Company a stated number of shares of Common Stock at the price set
forth in an Agreement.
1.10. Participant means an employee of the Company or an Affiliate who
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satisfies the requirements of Article IV and is selected by the Committee to
receive an Option.
1.11. Plan means the HazWaste Industries Incorporated 1987 Stock Option
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Plan.
1.12. Ten Percent Shareholder means any individual owning more than ten
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percent (10%) of the total combined voting power of all classes of stock of the
Company or of an Affiliate. An individual shall be considered to own any voting
stock owned (directly or indirectly) by or for his brothers, sisters, spouse,
ancestors or lineal descendants and shall be considered to own proportionately
any voting stock owned (directly or indirectly) by or for a corporation,
partnership, estate or trust of which such individual is a shareholder, partner
or beneficiary.
ARTICLE II
PURPOSES
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The Plan is intended to assist the Company and its Affiliates in recruiting
and retaining key employees with
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ability and initiative by enabling employees who contribute significantly to the
Company or an Affiliate to participate in its future success and to associate
their interests with those of the Company. The Plan authorizes the grant of both
"incentive stock options" within the meaning of Section 422A of the Code and
nonqualified stock options. It is intended that Options granted under the Plan
(unless otherwise designated by their terms) shall constitute incentive stock
options. No Option shall be invalid for failure to qualify as an incentive
stock option. The proceeds received by the Company from the sale of Common Stock
pursuant to the Plan shall be used for general corporate purposes.
ARTICLE III
ADMINISTRATION
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The Plan shall be administered by the Committee. The Committee shall have
authority to grant Options upon such terms (not inconsistent with the provisions
of the Plan) as it may consider appropriate. Such terms may include conditions
(in addition to those contained in the Plan) upon the exercisability of all or
any part of an Option. Notwithstanding any such conditions, the Committee,
in its discretion, may accelerate the time at which any Option may be exercised;
provided, however, that no
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acceleration shall affect the applicability of Section 4.02 (relating to the
limitation on the number of incentive stock options that may become exercisable
in a calendar year). In addition, the Committee shall have complete authority to
interpret all provisions of the Plan; to prescribe the form of Agreements; to
adopt, amend, and rescind rules and regulations pertaining to the administration
of the Plan; and to make all other determinations necessary or advisable for the
administration of the Plan. The express grant in the Plan of any specific power
to the Committee shall not be construed as limiting the power or authority of
the Committee. Any decision made, or action taken, by the Committee or in
connection with the administration of the Plan shall be final and conclusive. No
member of the Committee shall be liable for any act done in good faith with
respect to the Plan, any Agreement, or Option. All expenses of administering the
Plan shall be borne by the Company.
ARTICLE IV
ELIGIBILITY
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4.01. General. Any employee of the Company or of any Affiliate (including
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any corporation that becomes an Affiliate after the adoption of the Plan) who,
in the judgment of the Committee, has contributed or can be
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expected to contribute to the profits or growth of the Company or an Affiliate
may be granted one or more Options. Directors of the Company who are employees
are eligible to participate in the Plan. A person who is a member of the
Committee may not be granted Options under this Plan.
4.02. Grants. The Committee will designate employees to whom Options are
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to be granted and will specify the number of shares of Common Stock subject to
each grant. All Options granted under the Plan shall be evidenced by Agreements
that shall be subject to applicable provisions of the Plan and to such other
provisions as the Committee may adopt. No Participant may be granted incentive
stock options (under all incentive stock option plans of the Company and
Affiliates) which are first exercisable in any calendar year for stock having an
aggregate fair market value (determined as of the date an option is granted)
exceeding $100,000. The preceding annual limitation shall not apply with respect
to Options that are not incentive stock options.
ARTICLE V
STOCK SUBJECT TO OPTIONS
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Upon the exercise of any Option, the Company may deliver to the Participant
authorized but unissued stock,
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treasury stock, or any combination thereof. The maximum aggregate number of
shares of Common Stock that may be issued pursuant to Options granted under
the Plan is 200,000, subject to adjustment as provided in Article IX. If an
Option is terminated, in whole or in part, for any reason other than its
exercise, the number of shares of Common Stock allocated to the Option or
portion thereof may be reallocated to other Options to be granted under the
Plan.
ARTICLE VI
OPTION PRICE
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The price per share for Common Stock purchased by the exercise of any Option
granted under the Plan shall be determined by the Committee on the date of
grant. The price per share for Common Stock purchased by the exercise of an
incentive stock option shall not be less than the Fair Market Value per share on
the date such Option is granted; provided, however, that the price per share
will not be less than 110% of such Fair Market Value in the case of an incentive
stock option granted to a Participant who is a Ten Percent Shareholder on the
date such incentive stock option is granted.
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ARTICLE VII
EXERCISE OF OPTIONS
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7.01. Maximum Option Period. The maximum period in which an Option may be
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exercised shall be determined by the Committee on the date of grant. No Option
that is an incentive stock option shall be exercisable after the expiration of
ten years from the date the Option was granted or five years in the case of an
incentive stock option that was granted to a Ten Percent Shareholder. The terms
of any Option may provide that it is exercisable for a period less than such
maximum period.
7.02. Nontransferability. Any Option granted under the Plan shall be
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nontransferable except by will or by the laws of descent and distribution.
During the lifetime of the Participant to whom the Option is granted, the Option
may be exercised only by the Participant. No right or interest of a Participant
in any Option shall be liable for, or subject to, any lien, obligation, or
liability of such Participant. -
7.03. Employee Status. For purposes of determining the applicability of
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Section 422A of the Code (relating to incentive stock options), or in the event
that the terms of an Agreement provide that the Option may be exercised only
during employment or within a specified period of time after
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termination of employment, the Committee may decide in each case to what extent
leaves of absence for governmental or military service, illness, temporary
disability, or other reasons shall not be deemed interruptions of continuous
employment.
ARTICLE VIII
METHOD OF EXERCISE
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8.01.Exercise. Subject to the provisions of Articles VII and X, an Option
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may be exercised in whole at any time or in part from time to time at such times
and in compliance with such requirements as the Committee shall determine. An
OptiOn granted under this Plan may be exercised with respect to any number of
whole shares less than the full number for which Option could be exercised. A
partial exercise of an Option shall not affect the right to exercise the Option
from time to time in accordance with the Plan and the Agreement with respect to
remaining shares subject to the Option.
8.02. Payment. Unless otherwise provided by the Agreement, payment of the
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option price shall be made in cash or a cash equivalent acceptable to the
Committee.
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8.03. Shareholder Rights. No Participant shall, as a result of receiving
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any Option, have any rights as a shareholder until the date he exercises such
Option.
ARTICLE IX
ADJUSTMENT UPON CHANGE IN COMMON STOCK
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Should the Company effect one or more stock dividends, stock split-ups,
subdivisions or consolidations of shares, or other similar changes in
capitalization, the maximum number of shares as to which Options may be granted
under the Plan shall be proportionately adjusted and the terms of Options shall
be adjusted as the Committee shall determine to be equitably required. Any
determination made under this Article IX by the Committee shall be final and
conclusive.
The issuance by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, for cash or property or for labor
or services, either upon direct sale or upon the exercise of rights or
warrants to subscribe therefor, or upon conversion of shares or obligations of
the Company convertible into such shares or other securities, shall not affect,
and no adjustment by reason thereof shall be made with respect to, Options.
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ARTICLE X
COMPLIANCE WITH LAW AND APPROVAL OF REGULATORY BODIES
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No Option shall be exercisable, no Common Stock shall be issued, no
certificates for shares of Common Stock shall be delivered, and no payment shall
be made under the Plan except in compliance with all applicable federal and
state laws and regulations and rules of all domestic stock exchanges on which
the Company's shares may be listed. The Company shall have the right to rely on
the opinion of its counsel as to such compliance. Any share certificate issued
to evidence Common Stock for which an Option is exercised may bear such legends
and statements as the Committee may deem advisable or desirable. No Option shall
be exercisable, no Common Stock shall be issued, no certificate for shares shall
be delivered, and no payment shall be made under the Plan until the Company has
obtained such consent or approval as the Committee may deem advisable from
regulatory bodies having jurisdiction over such matters.
ARTICLE XI
GENERAL PROVISIONS
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11.01. Effect on Employment. Neither the adoption of the Plan,
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its operation, nor any documents describing or referring to the Plan (or any
part thereof) shall confer
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upon any employee any right to continue in the employ of the Company or an
Affiliate or in any way affect any right and power of the Company or an
Affiliate to terminate the employment of any employee at any time with or
without assigning a reason therefor.
11.02. Unfunded Plan. The Plan, insofar as it provides for grants, shall
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be unfunded, and the Company shall not be required to segregate any assets that
may at any time be represented by grants under the Plan. Any liability of the
Company to any person with respect to any grant under the Plan shall be based
solely upon any contractual obligations that may be created pursuant to the
Plan. No such obligation of the Company shall be deemed to be secured by any
pledge of, or other encumbrance on, any property of the Company.
11.03. Rules of Construction. Headings are given to the articles and
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sections of the Plan solely as a convenience to facilitate reference. The
reference to any statute, regulation, or other provision of law shall be
construed to refer to any amendment to or successor of such provision of law.
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ARTICLE XII
AMENDMENT
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The Committee may amend or terminate the Plan from time to time;
provided, however, that no amendment may become effective until shareholder
approval is obtained if the amendment (i) increases the aggregate number of
shares that may be issued under Options or (ii) changes the class of employees
eligible to become Participants. No amendment shall, without a Participant's
consent, adversely affect any rights of such Participant under any Option
outstanding at the time such amendment is made.
ARTICLE XIII
DURATION OF PLAN
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No Option may be granted under the Plan after August 30, 1997. Options granted
before the expiration of such ten-year period shall remain valid in accordance
with their terms.
ARTICLE XIV
EFFECTIVE DATE OF PLAN
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Options may be granted under the Plan upon its adoption by the Committee,
provided that no Option will be effective unless the Plan is approved (at a duly
held
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shareholders' meeting) by shareholders holding a majority of the Company's
outstanding voting stock within twelve months of such adoption.
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EXHIBIT 23.1(b)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement of Tyco International Ltd. on Form S-8 of our reports dated August 1,
1995 on our audit of the consolidated financial statements and financial
statement schedule of Tyco International Ltd. as of and for the years ended June
30, 1995 and 1994.
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
April 4, 1996
EXHIBIT 23.1(c)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our reports dated August 3, 1993 appearing on pages 20
and S-2 of Tyco International Ltd.'s Annual Report on Form 10-K for the year
ended June 30, 1995.
PRICE WATERHOUSE LLP
Boston, Massachusetts
April 4, 1996
