AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 7, 1997
REGISTRATION NO. 333 - ________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
THE YORK GROUP, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Delaware 76-0490631
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
9430 Old Katy Road, Suite 300, Houston, Texas 77055
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
1996 EMPLOYEE STOCK OPTION PLAN
1996 INDEPENDENT DIRECTOR STOCK OPTION PLAN
(FULL TITLE OF THE PLANS)
David F. Beck
The York Group, Inc.
9430 Old Katy Road, Suite 300
Houston, Texas 77055
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(713) 984-5500
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=====================================================================================================
Amount to Proposed maximum Proposed
Title of securities to be be registered offering price maximum aggregate Amount of
registered (1) per share (2) offering price (2) registration fee
<S> <C> <C> <C> <C>
Common Stock, $.01
per share par value 550,000
("Common Stock") shares $21.75 $9,714,375 $2,943.75
=====================================================================================================
</TABLE>
(1) Represents the maximum number of shares which could be purchased upon the
exercise of all stock options now outstanding or which may hereafter be
granted under the above plans.
(2) Estimated solely for purposes of calculating the registration fee, pursuant
to Rule 457(c) and (h), based on the option exercise prices of options to
acquire 250,000 shares of Common Stock which have been granted under the
1996 Employee Stock Option Plan and 10,000 shares of Common Stock which
have been granted under the 1996 Independent Director Stock Option Plan,
and the average of the bid and asked prices reported by the Nasdaq National
Market on February 4, 1997 with respect to 290,000 shares of Common Stock
as to which awards have not been granted under either plan as of the filing
of this Registration Statement.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed with the Securities and
Exchange Commission by The York Group, Inc. (the "Company"), are incorporated
herein by reference and made a part hereof: (a) Prospectus dated April 2, 1996,
containing the Company's audited financial statements for the year ended
December 31, 1995; (b) the Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1996, (c) the Company's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1996, (d) the Company's Quarterly Report on Form
10-Q for the quarter ended September 30, 1996, and (e) description of the
Company's Common Stock contained in the Form 8-A filed on March 29, 1996.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934, subsequent to the date hereof
and prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be part hereof from the date of the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Subsection (a) of Section 145 of the General Corporation Law of the State
of Delaware empowers a corporation to indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorney's
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interest of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, except that no indemnification may be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstance of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
Section 145 further provides that to the extent a director or officer of a
corporation has been successful on the merits or otherwise in the defense of any
action, suit or proceeding referred to in subsection (a) and (b) of Section
1
<PAGE>
145 in the defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith; that indemnification provided for by
Section 145 shall be deemed exclusive of any other rights to which the
indemnified party may be entitled; that indemnification provided for by Section
145 shall, unless otherwise provided when authorized or ratified, continue as to
a person who has ceased to be director, officer, employee or agent and shall
inure to the benefit of such person's heirs, executors and administrators; and
empowers the corporation to purchase and maintain insurance on behalf of a
director or officer of the corporation against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such whether or not the corporation would have the power to indemnify him
against such liabilities under Section 145.
Section 102(b)(7) of the General Corporation Law of the State of Delaware
provides that a certificate of incorporation may contain a provision eliminating
or limiting the personal liability of a director to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director
provided that such provision shall not eliminate or limit the liability of a
director (i) for any breach of the director's duty of loyalty to the corporation
or its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, or (iv) for any transaction
from which the director derived an improper personal benefit.
Article XI of the Registrant's Certificate of Incorporation states that:
No director shall personally be liable to the corporation or the
stockholders for monetary damages for any breach of his fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the corporation or the stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv)
for any transaction from which the director derived an improper personal
benefit. If the Delaware General Corporation Law or other applicable law is
amended to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director of the
corporation shall be eliminated or limited to the fullest extent permitted by
the Delaware General Corporation Law or such other applicable law, as so
amended. Any repeal or modification of this Article by the stockholders shall
not adversely affect any right or protection of a director existing at the time
of such repeal or modification.
The Registrant's Bylaws contain indemnification provisions which are
essentially the same as the indemnification provisions contained in the
Certificate of Incorporation.
Policies of insurance are maintained by the Registrant under which the
directors and officers of the Registrant are insured, within the limits and
subject to the limitations of the policies, against certain expenses in
connection with the defense of actions, suits or proceedings, and certain
liabilities which might be imposed as a result of such actions, suits or
proceedings, to which they are parties by reason of being or having been such
directors or officers.
Reference is made to the forms of the 1996 Employee Stock Option Plan and
1996 Independent Director Stock Option Plan filed as Exhibits 99.1 and 99.2,
respectively, which contain provisions for limitation on the liability of the
committee and the directors administering the respective plans for actions taken
in connection with the administration of the plans.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT NO. EXHIBIT
4.1 Certificate of Incorporation of the Company dated
January 22, 1996. Incorporated by reference to the
Company's Registration Statement on Form S-1 dated
February 2, 1996, Exhibit 3.1.
2
<PAGE>
4.2 Bylaws of the Company. Incorporated by reference to the
Company's Registration Statement on Form S-1 dated
February 2, 1996, Exhibit 3.2.
4.3 Specimen Common Stock certificate of the Company.
Incorporated by reference to Amendment No. 2 to the
Company's Registration Statement on Form S-1 dated March
8, 1996, Exhibit 4.1.
5 Opinion and Consent of Liddell, Sapp, Zivley, Hill &
LaBoon, L.L.P.
15 Not applicable.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P.
(included in Exhibit 5 to this Registration Statement).
24 Not applicable.
28 Not applicable.
99.1 1996 Employee Stock Option Plan.
99.2 1996 Independent Director Stock Option Plan.
ITEM 9. UNDERTAKINGS.
(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 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.
(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.
(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 Section 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.
3
<PAGE>
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 City of Houston, State of Texas, on this 7th day of February,
1997.
THE YORK GROUP, INC.
By: /S/ DAVID F. BECK
DAVID F. BECK, VICE PRESIDENT-
FINANCE, CHIEF FINANCIAL
OFFICER, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
<S> <C> <C>
/S/ ELDON P. NUSS Chairman of the Board February 7, 1997
(ELDON P. NUSS)
/S/ BILL W. WILCOCK President, Chief Executive February 7, 1997
(BILL W. WILCOCK) Officer, Chief Operating Officer
and Director
(Principal Executive Officer)
/S/ DAVID F. BECK Vice President-Finance, Chief February 7, 1997
(DAVID F. BECK) Financial Officer, Treasurer
and Secretary
(Principal Financial Officer)
/S/ KEITH E. PLOWMAN Controller, Assistant Secretary February 7, 1997
(KEITH E. PLOWMAN) and Assistant Treasurer
(Principal Accounting Officer)
/S/ GEORGE L. FOLEY, JR. Director February 7, 1997
(GEORGE L. FOLEY, JR.)
/S/ BRUCE E. ELDER Director February 7, 1997
(BRUCE E. ELDER)
/S/ KIRK P. PENDLETON Director February 7, 1997
(KIRK P. PENDLETON)
/S/ GERALD D. RUNNELS Director February 7, 1997
(GERALD D. RUNNELS)
/S/ ROBERT T. RAKICH Director February 7, 1997
(ROBERT T. RAKICH)
</TABLE>
4
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. EXHIBIT
4.1 Certificate of Incorporation of the Company dated
January 22, 1996. Incorporated by reference to the
Company's Registration Statement on Form S-1 dated
February 2, 1996, Exhibit 3.1.
4.2 Bylaws of the Company. Incorporated by reference to the
Company's Registration Statement on Form S-1 dated
February 2, 1996, Exhibit 3.2.
4.3 Specimen Common Stock certificate of the Company.
Incorporated by reference to Amendment No. 2 to the
Company's Registration Statement on Form S-1 dated March
8, 1996, Exhibit 4.1.
5 Opinion and Consent of Liddell, Sapp, Zivley, Hill &
LaBoon, L.L.P.
15 Not applicable.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P.
(included in Exhibit 5 to this Registration Statement).
24 Not applicable.
28 Not applicable.
99.1 1996 Employee Stock Option Plan.
99.2 1996 Independent Director Stock Option Plan.
5
EXHIBIT 5
February 7, 1997
The York Group, Inc.
9430 Old Katy Road
Houston, Texas 77055
Ladies and Gentlemen:
We have acted as counsel for The York Group, Inc., a Delaware
corporation (the "Company"), in connection with the registration, pursuant to a
Registration Statement on Form S-8 being filed with the Securities and Exchange
Commission (the "Registration Statement") under the Securities Act of 1933, as
amended, of the offering and sale to certain employees and directors of the
Company of up to 550,000 shares of the Company's common stock, par value $.01
per share (the "Common Stock"), which may be issued upon the exercise of certain
stock options (the "Options") which may be granted under the Company's 1996
Employee Stock Option Plan and 1996 Independent Director Stock Option Plan.
In such capacity we have examined the corporate documents of the
Company, including its Certificate of Incorporation, its Bylaws and resolutions
adopted by its board of directors and committees thereof. We have also examined
the Registration Statement, together with the exhibits thereto, and such other
documents which we have deemed necessary for the purposes of expressing the
opinion contained herein. We have relied upon representations made by and
certificates of officers of the Company and public officials with respect to
certain facts material to our opinion. We have made no independent investigation
regarding such representations and certificates.
Based upon the foregoing, we are of the opinion that when the Options
have been duly exercised in accordance with their respective terms, the Common
Stock issued thereupon will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
LIDDELL, SAPP, ZIVLEY, HILL & LABOON, L.L.P.
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 15, 1996,
included in The York Group, Inc.'s Prospectus dated April 2, 1996, for the year
ended December 31, 1995, and to all references to our Firm included in this
Registration Statement.
Arthur Andersen LLP
Lancaster, Pennsylvania
February 7, 1997
EXHIBIT 99.1
THE YORK GROUP, INC.
1996 EMPLOYEE STOCK OPTION PLAN
ARTICLE I
PURPOSE
The purpose of this 1996 Employee Stock Option Plan (the "Plan") of The
York Group, Inc., a Delaware corporation (the "Company"), is to secure for the
Company and its stockholders the benefits arising from stock ownership by
selected executive employees and other key employees of the Company or its
subsidiaries as the Stock Option Committee (the "Committee") of the Board of
Directors of the Company (the "Board") may from time to time determine. The Plan
will provide a means whereby (i) such employees may purchase shares of the
common stock, $0.01 par value per share (the "Common Stock"), of the Company
pursuant to stock options which will qualify as "incentive stock options" under
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"), and
(ii) such employees may purchase shares of the Common Stock of the Company
pursuant to "non-incentive" or "non-qualified" stock options.
ARTICLE II
ADMINISTRATION
The Plan shall be administered by the Committee which shall at all times
consist of not less than two members of the Board, and all members of the
Committee shall be "disinterested persons" within the meaning of Rule 16b-3 of
the General Rules and Regulations under the Securities Exchange Act of 1934, as
amended (the "1934 Act"). All members of the Committee shall be selected by (and
serve at the pleasure of) the Board. Subject to the express provisions of the
Plan and the policies of each stock exchange on which any of the Company's stock
may at any time be traded, the Committee shall have plenary authority, in its
discretion, to recommend to the Board the individuals within the class set forth
in ARTICLE IV to whom, and the time and price per share at which, stock options
shall be granted, the number of shares to be subject to each stock option and
the other terms and provisions of their respective Agreements (as defined
herein), which need not be identical. In making such recommendations and
determinations, the Committee may take into account the nature of the services
rendered by the respective employees, their present and potential contributions
to the Company's success and such other factors as the Committee in its
discretion shall deem relevant.
Subject to the express provisions of the Plan, the Committee shall have
authority (i) to construe and interpret the Plan, (ii) to define the terms used
therein, (iii) to prescribe, amend and rescind rules and regulations relating to
the Plan, (iv) to recommend to the Board the terms and provisions, not
inconsistent with any terms of the Plan, of the respective stock options
(including, without limitation, any exercisability provisions in the event of a
change in control or termination), (v) to approve and determine the duration of
leaves of absence which may be granted to participants without constituting a
termination of their employment for the purposes of the Plan, (vi) to waive the
vesting period established in any stock option, (vii) to establish different
terms and conditions pertaining to the effect of termination, and (viii) to make
all other determinations necessary or advisable for the administration of the
Plan. All determinations and interpretations made by the Committee shall be
binding and conclusive on all participants in the Plan and their legal
representatives and beneficiaries. The Committee shall hold meetings at such
times and places as it may determine. Acts by the majority of the Committee or
acts reduced to or approved in writing by a majority of the members of the
Committee shall be the valid acts of the Committee. From time to time, the Board
may increase the size of the Committee and appoint additional members thereof,
remove members (with or without cause), and appoint new members in substitution
therefore, or fill vacancies however caused, subject to the requirements that
the members of the Committee shall be "disinterested persons" as described above
and that there always be at least two members of the Committee. No member of the
Committee shall be liable for any action, failure to act,
<PAGE>
determination or interpretation made in good faith with respect to the Plan or
any transaction under the Plan.
ARTICLE III
SHARES SUBJECT TO PLAN AND DURATION OF PLAN
Under the Plan, the Board may, but only upon recommendation of the
Committee, grant to eligible persons incentive stock options (as defined in the
Code) and/or non-qualified stock options, to purchase up to but not exceeding an
aggregate amount of 500,000 shares of the Company's Common Stock (subject to
adjustment as provided in ARTICLE X). No individual may be granted options to
purchase more than 250,000 shares under the Plan. Shares subject to stock
options under the Plan may be either authorized and unissued shares or issued
shares that have been acquired by the Company and held in its treasury, in the
sole discretion of the Board. When stock options have been granted under the
Plan and have lapsed unexercised or partially unexercised or have been
surrendered for cancellation by the optionee thereof, the unexercised shares
which were subject thereto may be reoptioned under the Plan. No stock options
shall be granted more than 10 years after the effective date of the Plan.
ARTICLE IV
ELIGIBILITY AND PARTICIPATION
To the fullest extent permitted by applicable laws, all executive
employees and other key employees of the Company or of any subsidiary
corporation (as defined in Section 424(f) of the Code) shall be eligible for
selection to fully participate in the Plan; provided, however, that no member of
the Committee shall be entitled to receive a stock option under this Plan while
serving as a member of the Committee. Directors of the Company who are not
regular employees of the Company are not eligible to participate in the Plan. An
individual who has been granted an option may, if such individual is otherwise
eligible, be granted an additional option or options if the Board or the
Committee shall so determine, subject to the other provisions of the Plan.
ARTICLE V
TERMS AND CONDITIONS OF STOCK OPTIONS
Each stock option granted under the Plan shall be evidenced by a stock
option agreement (the "Agreement"), the form of which shall have been approved
by the Committee. The Agreement shall be executed by the Company and the
optionee and shall set forth the terms and conditions of the stock option, which
terms and conditions shall include, but not be limited to the following:
(a) OPTION PRICE. The option price shall be determined by the Committee,
but shall not in any event be less than the par value of the Common Stock.
(b) TERM OF STOCK OPTION. The term of the stock option shall be selected
by the Committee, but in no event shall such term exceed ten years from the date
such stock option is granted. Each stock option shall be subject to earlier
termination as hereinafter provided.
(c) TRANSFERABILITY. Except as set forth below, the stock options
granted hereunder shall not be transferable other than by will or operation of
the laws of descent and distribution or pursuant to a qualified domestic
relations order, as defined in the Code or Title I of the Employee Retirement
Income Security Act of 1974, as amended, or the rules thereunder. During the
lifetime of the optionee, stock options granted hereunder shall be exercisable
only by the optionee, the optionee's guardian or legal representative. In
addition to non-transferable stock options, the Committee may grant stock
options that are transferable, without payment of consideration, to immediate
family members of the optionee or to trusts or partnerships for such family
members; the Committee may also amend outstanding options to provide for such
transferability.
(d) VESTING. The Committee shall have complete discretion in determining
when stock options granted
<PAGE>
hereunder are to vest. Such determination for each stock option is to be made
prior to or at the time that stock option is granted and shall be set forth in
each Agreement. On a case-by-case basis, the Committee may, in its sole
discretion, accelerate the vesting of any stock option. The sale of shares of
Common Stock issued upon the exercise of a stock option by any person subject to
Section 16 of the 1934 Act shall not be allowed until at least six months after
the grant of the stock option.
(e) TERMINATION OF EMPLOYMENT. In the event of an optionee's termination
of employment with the Company for any reason other than death, all stock
options shall terminate to the extent they were not exercisable at the date of
the optionee's termination, but to the extent they were then exercisable by the
optionee, the optionee shall be entitled to exercise such options for a period
of 30 days from the date of the optionee's termination. Upon the termination of
an optionee's employment by reason of death, the optionee's stock options shall
terminate to the extent they were not exercisable at the date of the optionee's
death, but to the extent they were then exercisable by the optionee, the
optionee's estate or the beneficiaries thereof shall be entitled to exercise
such options for a period of one year from the date of the optionee's death but
not thereafter. Notwithstanding the foregoing termination provisions, the
Committee may, in its sole discretion, establish different terms and conditions
pertaining to the effect of termination, to the extent permitted by applicable
federal and state law. Notwithstanding any other provisions of this subparagraph
(e), no stock option shall be exercised after the expiration of ten years from
the date such stock option is granted.
(f) OTHER CONDITIONS. At its sole discretion, the Committee may impose
other conditions upon the stock options granted hereunder, so long as those
conditions do not conflict with any other provisions of the Plan. Such
conditions may include, by way of illustration, but not by way of limitation,
percentage limitations upon the exercisability of stock options granted
hereunder.
ARTICLE VI
INCENTIVE STOCK OPTIONS
The Committee, in recommending and granting stock options hereunder,
shall have the discretion to determine that certain stock options shall be
incentive stock options, as defined in Section 422 of the Code, while other
stock options shall be non-qualified stock options. Neither the members of the
Committee, the members of the Board nor the Company shall be under any
obligation or incur any liability to any person by reason of the determination
by the Committee or the Board whether a stock option granted under the Plan
shall be an incentive stock option or a non-qualified stock option. The
provisions of this ARTICLE VI shall be applicable to all incentive stock options
at any time granted or outstanding under the Plan.
All incentive stock options granted or outstanding under the Plan shall
be granted and held subject to and in compliance with terms and conditions
previously set forth in ARTICLES II, III, IV AND V hereof and, in addition,
subject to and in compliance with the following further terms and conditions:
(a) The per share option price of all incentive stock options shall not
be less than 100% of the Fair Market Value (as defined below) of one share of
the Company's Common Stock at the time the stock option is granted
(notwithstanding any provision of ARTICLE V hereof to the contrary);
(b) No incentive stock option shall be granted to any person who, at the
time of the grant, owns stock possessing more than 10% of the total combined
voting power of all classes of stock of the Company or any subsidiary
corporation of the Company; provided, however, that this ownership limitation
will be waived if at the time the option is granted the per share option price
is at least 110% of the Fair Market Value of one share of the Company's Common
Stock and such stock option by its terms is not exercisable after the expiration
of five years from the date such option is granted;
(c) An incentive stock option shall not be transferable other than by
will or the laws of descent and
<PAGE>
distribution, and shall be exercisable during the lifetime of the optionee, only
by the optionee; and
(d) The aggregate Fair Market Value of all shares of Common Stock
(determined at the time of the grant of the stock option) with respect to which
incentive stock options are exercisable for the first time by any optionee
during any one calendar year shall not exceed $100,000.
ARTICLE VII
EXERCISE OF STOCK OPTIONS
Each stock option granted hereunder may be exercised in such
installments during the period prior to its expiration date as the Committee
shall determine; provided that, unless otherwise determined by the Committee, if
the optionee shall not in any given installment period purchase all of the
shares which the optionee is entitled to purchase in such installment period,
then the optionee's right to purchase any shares not purchased in such
installment period shall continue until the expiration date or sooner
termination of the optionee's stock option.
The purchase price of the shares of Common Stock acquired upon exercise
of a stock option shall be paid in full at the time of exercise (a) in cash,
check or by certified or cashier's check payable to the order of the Company,
(b) upon receipt of all required regulatory approvals, if any, by delivery of
shares of Common Stock of the Company already owned by, and in the possession
of, the stock option holder having a Fair Market Value equal to such stock
option purchase price, or (c) in any other manner that the Committee may
approve, including, without limitation, any arrangement the Committee may
establish to enable individuals to simultaneously exercise stock options and
sell the shares of Common Stock acquired thereby and apply the proceeds to the
payment of the stock option purchase price therefor, or any combination thereof.
Shares of Common Stock used to satisfy the exercise price of a stock option
shall be valued at their Fair Market Value determined as of the close of
business on the date such stock option is exercised, or if such date is not a
business day, on the business day immediately preceding the date of exercise.
Deliveries of cash, shares and notices to the Company shall be directed to the
Secretary of the Company.
No stock option granted hereunder shall be exercisable unless the Plan
and all shares issuable on the exercise thereof have been registered under the
Securities Act of 1933, as amended (the "1933 Act"), and all other applicable
securities laws, and there is available for delivery a prospectus meeting the
requirements of Section 10 of the 1933 Act, or the Company shall have first
received assurance that registration under the 1933 Act and all other applicable
securities laws is not required in connection with such issuance. At the time of
exercise, if the shares with respect to which the stock option is being
exercised have not been registered under the 1933 Act and all other applicable
securities laws, the Company may require the optionee to provide the Company
whatever written assurance counsel for the Company may require that the shares
are being acquired for investment and not with a view to the distribution
thereof, and that the shares will not be disposed of without the written opinion
of counsel acceptable to the Company that registration under the 1933 Act and
all other applicable securities laws is not required. Share certificates issued
to the optionee upon exercise of the stock option shall bear a legend to the
foregoing effect to the extent counsel for the Company deems it advisable.
ARTICLE VIII
FAIR MARKET VALUE OF COMMON STOCK
For purposes of the Plan, the term "Fair Market Value" on any date shall
mean (i) if the Common Stock is not listed or admitted to trade on a national
securities exchange and if bid and asked prices for the Common Stock are not
furnished through NASDAQ or a similar organization as described below, the value
established by the Committee, in its sole discretion, for purposes of the Plan;
(ii) if the Common Stock is listed or admitted to trade on a national securities
exchange or national market system, the closing price of the Common Stock, as
published in THE WALL STREET JOURNAL, so listed or admitted to trade on such
date or, if there is no trading of the Common Stock on such date, then the
closing price of the Common Stock on the next preceding date on which there was
trading in such shares; or (iii) if the Common Stock is not listed or admitted
to trade on a national securities exchange or national market system,
<PAGE>
the mean between the bid and asked price for the Common Stock on such date, as
furnished by the National Association of Securities Dealers, Inc. through NASDAQ
or a similar organization if NASDAQ is no longer reporting such information. In
addition to the above rules, Fair Market Value shall be determined without
regard to any restriction other than a restriction which, by its terms, will
never lapse.
ARTICLE IX
WITHHOLDING TAX
Upon (i) the disposition by an employee or other person of shares of
Common Stock acquired pursuant to the exercise of an incentive stock option
granted pursuant to the Plan within two years of the granting of the incentive
stock option or within one year after exercise of the incentive stock option, or
(ii) the exercise of "non-incentive" or "non-qualified" options, the Company
shall have the right to require such employee or such other person to pay the
Company the amount of any taxes (including but not limited to any federal, state
and local income taxes, old-age, survivors, and disability insurance premiums
and taxes, medicare taxes, FICA taxes and any other withholding taxes) which the
Company may be required to withhold with respect to such shares.
ARTICLE X
ADJUSTMENTS
(a) ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. Subject to any required
action by the Company's directors and stockholders, the number of shares
provided for in each outstanding stock option and the price per share thereof,
and the number of shares provided for in the Plan, shall be proportionately
adjusted for any increase or decrease in the number of issued shares of the
Company's Common Stock resulting from a subdivision or consolidation of shares
or the payment of a stock dividend (but only on the Common Stock), a stock
split, a reverse stock split, or any other increase or decrease in the number of
such shares effected without receipt of consideration by the Company, and shall
also be proportionately adjusted in the event of a spin-off, spin-out, or other
distribution of assets to stockholders of the Company, to the extent necessary
to prevent dilution of the interests of grantees pursuant to the Plan or of the
other stockholders of the Company, as applicable. If the Company shall engage in
a merger, consolidation, reorganization or recapitalization, each outstanding
stock option (or if such transaction involves less than all of the shares of the
Company's Common Stock, then a number of stock options proportionate to the
number of such involved shares), shall become exercisable for the securities and
other consideration to which a holder of the number of shares of the Company's
Common Stock subject to each such stock option would have been entitled to
receive in any such merger, consolidation, reorganization or recapitalization.
(b) SIGNIFICANT EVENT. In the event of a potential merger or
consolidation involving the Company regardless of whether the Company is the
surviving entity of such merger or consolidation, a potential liquidation or
dissolution of the Company, a potential sale or other disposition by the Company
of all or substantially all of its assets, a potential sale or other disposition
by the stockholders of the Company of all or substantially all of the
outstanding Common Stock to one purchaser (any such merger, consolidation,
liquidation, dissolution or sale being referred to herein as a "Significant
Event"), then the Company, upon obtaining approval of the Board, may (but shall
not be required to) waive any and all restrictions on the vesting of optionees'
rights under stock options granted pursuant to the Plan by providing written
notice thereof to the optionees. If the Company, upon obtaining approval of the
Board, elects to waive any such vesting restrictions, the optionees' rights
under their respective stock options shall vest in accordance with the terms of
such waiver, subject to the actual occurrence of the Significant Event. In
consideration for any such waiver of vesting restrictions by the Company, the
Company shall have the option (the "Termination Option") to require all
optionees to exercise or have terminated their vested (determined after taking
into account any waiver of vesting restrictions) but unexercised stock options
upon the occurrence of the Significant Event, by providing written notice to all
optionees at least 15 days before the occurrence of the Significant Event. Any
exercise by an optionee in these circumstances may be conditioned upon the
occurrence of the Significant Event. If the Company exercises the Termination
Option under this paragraph (b), upon the actual occurrence of the Significant
Event, each stock option that is vested (determined after taking into account
any waiver of vesting restrictions) but unexercised
<PAGE>
as of such date shall terminate. If the potential Significant Event does not in
fact occur for any reason, then any waiver by the Company of the vesting
restrictions and any exercise by the Company of the Termination Option under
this paragraph (b) shall have no effect, and the optionee's rights will be
vested only to the extent that they would be vested if no restrictions on
vesting had been waived by the Company herein.
(c) CHANGE OF PAR VALUE. In the event of a change in the Company's
Common Stock which is limited to a change of all of its authorized shares with
par value into the same number of shares with a different par value or without
par value, the shares resulting from any such change shall be deemed to be
Common Stock within the meaning of the Plan.
(d) MISCELLANEOUS. The adjustments provided for in this Article shall be
made by the Committee whose determination in that respect shall be final,
binding and conclusive. Any issue by the Company of shares of stock of any
class, or securities convertible into shares of stock of any class, shall not
affect and no adjustment by reason thereof shall be made with respect to the
number or price of shares of the Company's Common Stock subject to any stock
option. The grant of a stock option pursuant to the Plan shall not affect in any
way the right or power of the Company to, among other things, make adjustments,
reclassifications, reorganizations or changes of its capital or business
structure or to merge or to consolidate or to dissolve or liquidate or sell or
transfer all or any part of its business or assets.
ARTICLE XI
PRIVILEGES OF STOCK OWNERSHIP
No person entitled to exercise any stock option granted under the Plan
shall have any of the rights or privileges of a stockholder of the Company in
respect of any shares of stock issuable upon exercise of such stock option until
certificates representing such shares shall have been issued and delivered. Upon
exercise of a stock option, the person exercising the stock option shall be
entitled to one or more stock certificates evidencing the shares acquired upon
such exercise.
ARTICLE XII
CONTINUATION OF EMPLOYMENT
Nothing contained in the Plan (or in any stock option granted pursuant
to the Plan) shall confer upon any employee any right to continue in the employ
of the Company or any subsidiary corporation or constitute any contract or
agreement of employment or interfere in any way with the right of the Company or
any subsidiary corporation to reduce any person's compensation from the rate in
existence at the time of the granting of a stock option or to terminate such
person's employment. Nothing contained herein or in any Agreement shall affect
any other contractual rights of an employee.
ARTICLE XIII
AMENDMENT OR DISCONTINUANCE
The Board or the Committee may at any time and from time to time amend,
rescind, suspend or terminate the Plan, as it shall deem advisable, provided
that the Plan may not be amended in any manner which would cause the Plan to no
longer comply with the provisions of the Code applicable to incentive stock
options, as such provisions shall read as of the time of amendment. In addition
to Board approval of any amendment to the Plan, if the provisions of the Code
applicable to incentive stock options, as such provisions shall read as of the
time of amendment, requires stockholder approval of such amendment, then such
amendment shall be approved (a) by the holders of a majority of the voting stock
of the Company (voting as a single class) present, or represented, and entitled
to vote at a meeting duly held in accordance with the applicable laws of the
state or other jurisdiction in which the Company is incorporated or (b) by
written consent of the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote
<PAGE>
thereon were present and voted.
No change may be made in, and no amendment, rescission, suspension or
termination of the Plan shall have an effect on, stock options previously
granted under the Plan which may impair or alter the rights or obligations of
the holders thereof, except that any change may be made in stock options
previously granted with the consent of the optionees.
ARTICLE XIV
EFFECTIVE DATE OF PLAN; STOCKHOLDER APPROVAL
The Plan shall be effective as of January 24, 1996, the date on which it
received the approval of a majority of the disinterested members of the Board.
However, the Plan and all stock options granted under the Plan shall be void if
the Plan is not approved by the stockholders within twelve (12) months from the
date the Plan is approved by the Board. The Plan shall be deemed approved by the
holders of the outstanding voting stock of the Company (a) by the affirmative
votes of the holders of a majority of the outstanding voting stock of the
Company present, or represented, and entitled to vote at a meeting duly held in
accordance with the applicable laws of the state or other jurisdiction in which
the Company is incorporated or (b) by the written consent of the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Any options granted under the
Plan prior to obtaining such stockholder approval shall be granted under the
conditions that the options so granted (1) shall not be exercisable prior to
such stockholder approval, and (2) shall become null and void if such
stockholder approval is not obtained.
EXHIBIT 99.2
THE YORK GROUP, INC.
1996 INDEPENDENT DIRECTOR STOCK OPTION PLAN
ARTICLE I
PURPOSE
The York Group, Inc., a Delaware corporation (the "Company"), is
dependent for the successful conduct of its business on the initiative, effort
and judgment of its directors. This 1996 Independent Director Stock Option Plan
(the "Plan") is intended to provide the independent directors of the Company
additional compensation for their service as directors and an incentive, through
options to acquire stock in the Company, to increase the value of the Company's
Common Stock, par value $0.01 per share ("Common Stock").
ARTICLE II
ADMINISTRATION
The Plan shall be administered by the Board of Directors of the Company
(the "Board"). Subject to the express provisions of the Plan and the policies of
each stock exchange on which any of the Company's stock at any time may be
traded, the Board shall have plenary authority (i) to construe and interpret the
Plan, (ii) to define the terms used therein, (iii) to prescribe, amend and
rescind rules and regulations relating to the Plan, and (iv) to make all other
determinations necessary or advisable for the administration of the Plan. All
determinations and interpretations made by the Board shall be binding and
conclusive on all participants in the Plan and their legal representatives and
beneficiaries. No member of the Board shall be liable for any action, failure to
act, determination or interpretation made in good faith with respect to the Plan
or any transaction under the Plan.
ARTICLE III
ELIGIBILITY AND PARTICIPATION
Under the Plan each Eligible Director (as defined below) shall,
effective as of the later of (a) the effectiveness of a registration statement
covering shares of Common Stock, and (b) the date of his initial election to the
Board, be granted a stock option to purchase from the Company 5,000 shares of
Common Stock, and effective as of the date of each reelection to the Board, be
granted a stock option to purchase from the Company 2,500 shares of Common
Stock, at a price determined as set forth in ARTICLE IV below. A person shall be
an "Eligible Director" if such person (a) is not, or has not been, an employee
of the Company and (b) does not receive remuneration, either directly or
indirectly, in any capacity other than as a director. For purposes of this
Article, remuneration includes any payment in exchange for goods or services and
is deemed to be paid to the director if paid to the director personally or to an
entity in which the director has a beneficial ownership interest of greater than
25%.
ARTICLE IV
TERMS AND CONDITIONS OF STOCK OPTIONS;
STOCK OPTION PRICE; TRANSFERABILITY
(a) Each stock option granted under the Plan shall be evidenced by a
Director Stock Option Agreement (the "Agreement") in such form as may be
hereafter approved by the Board on the advice of counsel to the Company. The
Agreement shall be executed by the Company and the optionee. The sale of the
shares issued on the exercise of a stock option by any person subject to Section
16 of the 1934 Act shall not be allowed until at least six months after the
later of (i) the approval of this Plan by the stockholders of the Company in
accordance with ARTICLE VIII hereof or (ii) the grant of the stock option. Such
determination for each stock option is to be made prior to or at the time that
stock option is granted.
<PAGE>
(b) The per share stock option price shall be an amount equal to the
Fair Market Value (as defined below) of the Common Stock on the date of grant of
the stock option. In no event shall the stock option price be less than the par
value of the Company's Common Stock.
(c) Except as set forth below, the stock options granted hereunder shall
not be transferable otherwise than by will or operation of the laws of descent
and distribution or pursuant to a qualified domestic relations order as defined
in the Internal Revenue Code of 1986, as amended (the "Code"), or Title I of the
Employee Retirement Income Security Act of 1974, as amended, or the rules
thereunder. During the lifetime of the optionee, stock options granted hereunder
shall be exercisable only by the optionee, the optionee's guardian or legal
representative. In addition to non-transferable stock options, the Board may
allow stock options to be granted that are transferable, without payment of
consideration, to immediate family members of the optionee or to trusts or
partnerships for such family members; the Board may also amend outstanding
options to provide for such transferability.
(d) No stock option granted hereunder shall be exercisable unless the
Plan and all shares issuable on the exercise thereof have been registered under
the Securities Act of 1933, as amended (the "1933 Act") and all other applicable
securities laws, and there is available for delivery a prospectus meeting the
requirements of Section 10 of the 1933 Act, or the Company shall have first
received the opinion of its counsel that registration under the 1933 Act and all
other applicable securities laws is not required in connection with such
issuance. At the time of exercise, if the shares with respect to which the stock
option is being exercised have not been registered under the 1933 Act and all
other applicable securities laws, the Company may require the optionee to
provide the Company whatever written assurance counsel for the Company may
require that the shares are being acquired for investment and not with a view to
the distribution thereof, and that the shares will not be disposed of without
the written opinion of such counsel that registration under the 1933 Act and all
other applicable securities laws is not required. Share certificates issued to
the optionee upon exercise of the stock option shall bear a legend to the
foregoing effect to the extent counsel for the Company deems it advisable.
(e) For purposes of the Plan, the term "Fair Market Value" on any date
shall mean (i) if the Common Stock is not listed or admitted to trade on a
national securities exchange and if bid and asked prices for the Common Stock
are not so furnished through NASDAQ or a similar organization, the value
established by the Board for purposes of the Plan; (ii) if the Common Stock is
listed or admitted to trade on a national securities exchange or national market
system, the closing price of the Common Stock, as published in the WALL STREET
JOURNAL, so listed or admitted to trade on such date or, if there is no trading
of the Common Stock on such date, then the closing price of the Common Stock on
the next preceding date on which there was trading in such shares; or (iii) if
the Common Stock is not listed or admitted to trade on a national securities
exchange or national market system, the mean between the bid and asked price for
the Common Stock on such date, as furnished by the National Association of
Securities Dealers, Inc. through NASDAQ or a similar organization if NASDAQ is
no longer reporting such information. In addition to the above rules, Fair
Market Value shall be determined without regard to any restriction other than a
restriction which, by its terms, will never lapse.
ARTICLE V
SHARES SUBJECT TO PLAN AND DURATION OF PLAN
The Plan shall expire and terminate on the earlier of (i) the date ten
years from the effective date of this Plan, or (ii) the date on which there have
been granted to Eligible Independent Directors pursuant to the Plan stock
options to purchase an aggregate of 50,000 shares of the Common Stock. No
individual may be granted options to purchase more than 15,000 shares under the
Plan. Shares subject to stock options under the Plan may be either authorized
and unissued shares or issued shares that have been acquired by the Company and
held in its treasury, in the sole discretion of the Board. When stock options
have been granted under the Plan and have lapsed unexercised or partially
unexercised or have been surrendered for cancellation by the optionee thereof,
the unexercised shares which were subject thereto may be reoptioned under the
Plan.
ARTICLE VI
<PAGE>
ADJUSTMENTS
(a) ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. Subject to any required
action by the Company's directors and stockholders, the number of shares
provided for in each outstanding stock option and the price per share thereof,
and the number of shares provided for in the Plan, shall be proportionately
adjusted for any increase or decrease in the number of issued shares of the
Company's Common Stock resulting from a subdivision or consolidation of shares
or the payment of a stock dividend (but only on the Common Stock), a stock
split, a reverse stock split, or any other increase or decrease in the number of
such shares effected without receipt of consideration by the Company, and shall
also be proportionately adjusted in the event of a spin-off, spin-out, or other
distribution of assets to stockholders of the Company, to the extent necessary
to prevent dilution of the interests of grantees pursuant to the Plan or of the
other stockholders of the Company, as applicable. If the Company shall engage in
a merger, consolidation, reorganization or recapitalization, each outstanding
stock option (or if such transaction involves less than all of the shares of the
Company's Common Stock, then a number of stock options proportionate to the
number of such involved shares), shall become exercisable for the securities and
other consideration to which a holder of the number of shares of the Company's
Common Stock subject to each such stock option would have been entitled to
receive in any such merger, consolidation, reorganization or recapitalization.
(b) SIGNIFICANT EVENT. In the event of a potential merger or
consolidation involving the Company regardless of whether the Company is the
surviving entity of such merger or consolidation, a potential liquidation or
dissolution of the Company, a potential sale or other disposition by the Company
of all or substantially all of its assets, or a potential sale or other
disposition by the stockholders of the Company of all or substantially all of
the outstanding Common Stock to one purchaser (any such merger, consolidation,
liquidation, dissolution, or sale being referred to herein as a "Significant
Event"), then the Company shall have the option of terminating all outstanding
stock options upon the actual occurrence of the Significant Event, by notice to
all optionees at least 15 days before the occurrence of the Significant Event.
Any exercise by an optionee in these circumstances may be conditioned upon the
occurrence of the Significant Event. Upon the actual occurrence of the
Significant Event, each outstanding stock option shall terminate if the Company
exercises its option under this paragraph (b). If the potential Significant
Event does not in fact occur for any reason, then the Company's exercise of its
option under this paragraph (b) shall have no effect and his or her rights will
be the same as if the Company had never exercised its option under this
paragraph (b).
(c) CHANGE OF PAR VALUE. In the event of a change in the Company's
Common Stock which is limited to a change of all of its authorized shares with
par value into the same number of shares with a different par value or without
par value, the shares resulting from any such change shall be deemed to be
Common Stock within the meaning of the Plan.
(d) MISCELLANEOUS. The adjustments provided for in this Article shall be
made by the Board whose determination in that respect shall be final, binding
and conclusive. Except as hereinbefore expressly provided in this Article, the
holder of a stock option shall not be entitled to the privilege of stock
ownership as to any shares of Common Stock or other stock not actually issued
and delivered to the holder. Any issue by the Company of shares of stock of any
class, or securities convertible into shares of stock of any class, shall not
affect and no adjustment by reason thereof shall be made with respect to the
number or price of shares of the Company's Common Stock subject to any stock
option. The grant of a stock option pursuant to the Plan shall not affect in any
way the right or power of the Company to, among other things, make adjustments,
reclassifications, reorganizations or changes of its capital or business
structure or to merge or to consolidate or to dissolve or liquidate or sell or
transfer all or any part of its business or assets.
ARTICLE VII
AMENDMENT OR DISCONTINUANCE
The Board may at any time and from time to time amend the Plan, as it
shall deem advisable, provided that the Plan may not be amended more than once
every six months, other than to comport with changes in the Code,
<PAGE>
ERISA, or the rules thereunder. In addition to Board approval of any amendment
to the Plan, if the Board further determines on advice of counsel that it is
necessary or desirable to obtain stockholder approval of any amendment to the
Plan in order to comply with Rule 16b-3 of the General Rules and Regulations
under the Securities Exchange Act of 1934, or any successor rule, as it shall
read as of the time of amendment, or for any other reason, then the
effectiveness of any such amendment may be conditioned upon its approval by the
holders of a majority of the outstanding voting stock of the Company (voting as
a single class), and entitled to vote on, and voted for or against approval of,
the amendment at a meeting of such stockholders duly held in accordance with the
applicable laws of the state or other jurisdiction in which the Company is
incorporated, or such other stockholder approval as may be specified by the
Board.
No change may be made in, and no amendment, rescission, suspension or
termination of the Plan shall have an effect on, stock options previously
granted under the Plan which may impair or alter the rights or obligations of
the holders thereof, except that any change may be made in stock options
previously granted with the consent of the optionees.
ARTICLE VIII
EFFECTIVE DATE; STOCKHOLDER APPROVAL
The Plan shall be effective as of January 24, 1996, the date on which it
received the approval of a majority of the disinterested members of the Board.
However, the Plan and all stock options granted under the Plan shall be void if
the Plan is not approved by the stockholders within 12 months from the date the
Plan is approved by the Board. The Plan shall be deemed approved by the holders
of the outstanding voting stock of the Company by the affirmative votes of the
holders of a majority of the outstanding voting stock of the Company present, or
represented, and entitled to vote at a meeting of such stockholders duly held in
accordance with the applicable laws of the state or other jurisdiction in which
the Company is incorporated. No stock option granted under the Plan shall be
exercisable in whole or in part unless and until such stockholder approval is
obtained.
