Exhibit 4.3
TUPPERWARE CORPORATION
2000 INCENTIVE PLAN
(As amended May 11, 2000 and August 10, 2000)
Article 1. Establishment, Purpose, and Duration
1.1 Establishment of the Plan. Tupperware Corporation, a
Delaware corporation (hereinafter referred to as the "Company"),
hereby establishes an incentive compensation plan to be known as
the "Tupperware Corporation 2000 Incentive Plan" (hereinafter
referred to as the "Plan"), as set forth in this document. The
Plan permits the grant of Non-Qualified Stock Options, Incentive
Stock Options, Stock Appreciation Rights, Restricted Stock, and
Performance Awards. The Plan shall become effective as of the
Effective Date, and shall remain in effect as provided in
Section 1.3 herein.
1.2 Purpose of the Plan. The purpose of the Plan is to
promote the success and enhance the value of the Company by
linking the personal interests of Participants to those of the
Company's stockholders and byproviding Participants with an
incentive for outstanding performance. The Plan is further
intended to provide flexibility to the Company in its ability
to motivate, attract, and retain the services of Participants
upon whose judgment, interest, and special efforts the
successful conduct of its operations largely is dependent.
1.3 Duration of the Plan. The Plan shall commence on
the Effective Date and shall remain in effect, subject to the
right of the Board of Directors to terminate, amend or modify
the Plan at any time pursuant to Article 14 herein, until all
Shares subject to it shall have been purchased or acquired
according to the Plan's provisions. However, in no event may
an Award be granted under the Plan on or after May 11, 2010.
Article 2. Definitions
Whenever used in the Plan, the following terms shall have
the meanings set forth below and, when the meaning is intended,
the initial letter of the word is capitalized:
(a) "Award" means, individually or collectively, a grant
under this Plan of Non-Qualified Stock Options, Incentive
Stock Options, SARs, Restricted Stock, or Performance
Awards.
(b) "Award Agreement" means an agreement entered into
by each Participant and the Company, setting forth the
terms and provisions applicable to Awards granted to
Participants under this Plan.
(c) "Beneficial Owner" shall have the meaning ascribed
to such term in Rule 13d-3 of the General Rules and
Regulations under the Exchange Act.
(d) "Beneficiary" means a person who may be designated
by a Participant pursuant to Article 10 and to whom any
benefit under the Plan is to be paid in case of the
Participant's death or physical or mental incapacity,
as determined by the Committee, before he or she receives
any or all of such benefit.
(e) "Board" or "Board of Directors" means the Board of
Directors of the Company.
(f) "Cause" means (i) conviction of a Participant for
committing a felony under federal law or the laws of the
state in which such action occurred, (ii) dishonesty in
the course of fulfilling a Participant's employment
duties or (iii) willful and deliberate failure on the
part of a Participant to perform his employment duties
in any material respect, or such other events as shall be
determined by the Committee. The Committee shall have the
sole discretion to determine whether "Cause" exists, and
its determination shall be final.
(g) "Change of Control" of the Company means:
i. An acquisition by any Person of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 20% or more of either (1) the then
outstanding Shares (the "Outstanding Company Common Stock")
or (2) the combined voting power of the then outstanding
Shares entitled to vote generally in the election of
directors (the "Outstanding Company Voting Securities");
excluding, however, the following: (1) any acquisition
directly from the Company, other than an acquisition by
virtue of the exercise of a conversion privilege unless the
security being so converted was itself acquired from the
Company, (2) any acquisition by the Company, (3) any
acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any corporation
controlled by the Company or (4) any acquisition by any
Person pursuant to a transaction which complies with clauses
(1), (2) and (3) of subsection (iii) of this definition; or
ii. A change in the composition of the Board such that the
individuals who, as of the effective date of the Plan,
constitute the Board (such Board shall be hereinafter
referred to as the "Incumbent Board") cease for any reason
to constitute at least a majority of the Board; provided,
however, for purposes of this definition, that any
individual who becomes a member of the Board subsequent to
such effective date, whose election, or nomination for
election by the Company's stockholders, was approved by a
vote of at least a majority of those individuals who are
members of the Board and who were also members of the
Incumbent Board (or deemed to be such pursuant to this
proviso) shall be considered as though such individual were
a member of the Incumbent Board; but, provided further,
that any such individual whose initial assumption of office
occurs as a result of either an actual or threatened
election contest (as such terms are used in Rule 14a-11 of
Regulation 14A promulgated under the Exchange Act) or other
actual or threatened solicitation of proxies or consents by
or on behalf of a person or legal entity other than the
Board shall not be so considered as a member of the
Incumbent Board; or
iii. The approval by the stockholders of the Company of a
reorganization, merger or consolidation or sale or other
disposition of all or substantially all of the assets of the
Company or the acquisition of assets of another corporation
("Corporate Transaction") or, if consummation of such
Corporate Transaction is subject, at the time of such
approval by stockholders, to the consent of any government
or governmental agency, the obtaining of such consent
(either explicitly or implicitly by consummation);
excluding, however, such a Corporate Transaction pursuant to
which (1) all or substantially all of the individuals and
entities who are the Beneficial Owners, respectively, of the
Outstanding Company Common Stock and Outstanding Company
Voting Securities immediately prior to such Corporate
Transaction will beneficially own, directly or indirectly,
more than 60% of, respectively, the outstanding Shares, and
the combined voting power of the then outstanding Shares
entitled to vote generally in the election of directors, as
the case may be, of the Company resulting from such
Corporate Transaction (including, without limitation, a
corporation which as a result of such transaction owns the
Company or all or substantially all of the Company's assets
either directly or through one or more subsidiaries) in
substantially the same proportions as their ownership,
immediately prior to such Corporate Transaction, of the
Outstanding Company Common Stock and Outstanding Company
Voting Securities, as the case may be, (2) no Person (other
than the Company, any employee benefit plan (or related
trust) sponsored or maintained by the Company or any
corporation controlled by the Company or such corporation
resulting from such Corporate Transaction) will beneficially
own, directly or indirectly, 20% or more of, respectively,
the outstanding shares of common stock of the corporation
resulting from such Corporate Transaction or the combined
voting power of the outstanding voting securities of such
corporation entitled to vote generally in the election of
directors except to the extent that such ownership existed
with respect to the Company prior to the Corporate
Transaction and (3) individuals who were members of the
Incumbent Board will constitute at least a majority of the
board of directors of the corporation resulting from such
Corporate Transaction; or
iv. The approval by the stockholders of the Company of a
complete liquidation or dissolution of the Company.
(h) "Change of Control Price" means the higher of (i) the
highest reported sales price, regular way, of a share of Common
Stock in any transaction reported on the New York Stock Exchange
Composite Tape or other national exchange on which such shares
are listed or on NASDAQ during the 60-day period prior to and
including the date of a Change of Control or (ii) if the Change
of Control is the result of a tender or exchange offer or a
Corporate Transaction, the highest price per share of Common
Stock paid in such tender or exchange offer or Corporate
Transaction; provided, however, that (x) in the case of a Stock
Option which (A) is held by an optionee who is an officer or
director of the Corporation and is subject to Section 16(b) of
the Exchange Act and (B) was granted within 240 days of the
Change of Control, then the Change of Control Price for such
Stock Option shall be the Fair Market Value of the Common Stock
on the date such Stock Option is exercised or deemed exercised
and (y) in the case of Incentive Stock Options and Stock
Appreciation Rights relating to Incentive Stock Options, the
Change of Control Price shall be in all cases the Fair Market
Value of the Common Stock on the date such Incentive Stock Option
or Stock Appreciation Right is exercised. To the extent that the
consideration paid in any such transaction described above
consists all or in part of securities or other noncash
consideration, the value of such securities or other noncash
consideration shall be determined in the sole discretion of the
Board.
(i) "Code" means the Internal Revenue Code of 1986, as amended
from time to time.
(j) "Commission" means the Securities and Exchange Commission or
any successor agency.
(k) "Committee" means the committee described in Article 3 or
(unless otherwise stated) its designee pursuant to a delegation
by the Committee as contemplated by Section 3.3.
(l) "Company" means Tupperware Corporation, a Delaware
corporation, or any successor thereto as provided in Article 16
herein.
(m) "Covered Employee" has the meaning ascribed thereto in
Section 162(m) of the Code and the regulations thereunder.
(n) "Director" means any individual who is a member of the
Board of Directors of the Company.
(o) "Disinterested Person" means a member of the Board who
qualifies as a disinterested person as defined in Rule 16b-
3(c)(2), as promulgated by the Commission under the Exchange Act,
or any successor definition adopted by the Commission.
(p) "Effective Date" means May 11, 2000.
(q) "Employee" means any nonunion employee of the Company or of
the Company's Subsidiaries. Directors who are not otherwise
employed by the Company shall not be considered Employees under
this Plan.
(r) "Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor Act thereto.
(s) "Fair Market Value" means, except as expressly provided
otherwise, as of any given date, the mean between the highest and
lowest reported sales prices of the Common Stock on the New York
Stock Exchange Composite Tape or, if not listed on such exchange,
on any other national securities exchange on which the Common
Stock is listed or on NASDAQ. If there is no regular public
trading market for such Common Stock, the Fair Market Value of
the Common Stock shall be determined by the Committee in good
faith.
(t) "Freestanding SAR" means an SAR that is granted
independently of any Options pursuant to Section 7.1 herein.
(u) "Incentive Stock Option" or "ISO" means an option to
purchase Shares, granted under Article 6 herein, which is
designated as an Incentive Stock Option and is intended to meet
the requirements of Section 422 of the Code.
(v) "Insider" shall mean an Employee who is, on the relevant
date, an officer, director, or ten percent (10%) beneficial owner
of the Company, as defined under Section 16 of the Exchange Act.
(w) "Non-Qualified Stock Option" or "NQSO" means an option to
purchase Shares, granted under Article 6 herein, which is not
intended to be an Incentive Stock Option.
(x) "Option" means an Incentive Stock Option or a Non-Qualified
Stock Option.
(y) "Option Price" means the price at which a Share may be
purchased by a Participant pursuant to an Option, as determined
by the Committee.
(z) "Participant" means an Employee of the Company who has been
granted an Award under the Plan.
(aa) "Performance Award" means an Award granted to an Employee,
as described in Article 9 herein, including Performance Units and
Performance Shares.
(ab) "Performance Goals" means the performance goals established
by the Committee prior to the grant of Performance Awards that
are based on the attainment of one or any combination of the
following: specified levels of net income or earnings per share
from continuing operations, operating income, revenues, return
on operating assets, return on equity, stockholder return
(measured in terms of stock price appreciation) and/or total
stockholder return (measured in terms of stock price
appreciation and/or dividend growth), achievement of cost
control, working capital turns, cash flow, net income, economic
value added, segment profit, sales force growth, or stock price
of the Company or such subsidiary, division or department of the
Company for or within which the Participant is primarily employed
and that are intended to qualify under Section 162(m) (4) (c) of
the Code. Such Performance Goals also may be based upon the
attaining of specified levels of Company performance under one
or more of the measures described above relative to the
performance of other corporations. Such Performance Goals shall
be set by the Committee within the time period prescribed by
Section 162(m) of the Code and related regulations.
(ac) "Performance Period" means a time period during which
Performance Goals established in connection with Performance
Awards must be met.
(ad) "Performance Unit" means an Award granted to an Employee,
as described in Article 9 herein.
(ae) "Performance Share" means an Award granted to an Employee,
as described in Article 9 herein.
(af) "Restriction Period" or "Period" means the period or
periods during which the transfer of Shares of Restricted Stock
is limited based on the passage of time and the continuation of
service with the Company and the Shares are subject to a
substantial risk of forfeiture, as provided in Article 8 herein.
(ag) "Person" shall have the meaning ascribed to such term in
Section 3(a) (9) of the Exchange Act and used in Sections 13(d)
and 14(d) thereof, including a "group" as defined in Section
13(d).
(ah) "Restricted Stock" means an Award granted to a Participant
pursuant to Article 8 herein.
(ai) "Share" means a share of common stock of the Company.
(aj) "Subsidiary" or "Subsidiaries" means any corporation or
corporations in which the Company owns directly, or indirectly
through subsidiaries, at least fifty percent (50%) of the total
combined voting power of all classes of stock, or any other
entity (including, but not limited to, partnerships and joint
ventures) in which the Company owns at least fifty percent
(50%) of the combined equity thereof.
(ak) "Stock Appreciation Right" or "SAR" means an Award,
granted alone (Freestanding SAR) or in connection with a related
Option (Tandem SAR), designated as an SAR, pursuant to the terms
of Article 7 herein.
(al) "Tandem SAR" means an SAR that is granted in connection
with a related Option pursuant to Section 7.1 herein, the
exercise of which shall require forfeiture of the right to
purchase a Share under the related Option (and when a Share is
purchased under the Option, the Tandem SAR shall similarly be
cancelled).
Article 3. Administration
3.1 The Committee. The Plan shall be administered by the
Compensation and Directors Committee or such other committee of the
Board as the Board may from time to time designate (the "Committee"),
which shall be composed of not less than two Disinterested Persons
each of whom shall be an "outside director" for purposes of
Section 162(m)(4) of the Code, and shall be appointed by and
serve at the pleasure of the Board.
3.2 Authority of the Committee. The Committee shall have
plenary authority to grant Awards pursuant to the terms of the
Plan to officers and employees of the Company and its subsidiaries
and Affiliates.
Among other things, the Committee shall have the authority,
subject to the terms of the Plan:
(a) To select the officers and employees to whom Awards may
from time to time be granted;
(b) To determine whether and to what extent Incentive Stock
Options, Non-Qualified Stock Options, SARs, Restricted Stock and
Performance Awards or any combination thereof are to be granted
hereunder;
(c) To determine the number of Shares to be covered by each
Award granted hereunder;
(d) To determine the terms and conditions of any Award granted
hereunder (including, but not limited to, the option price
(subject to Section 6.4 (a)), any vesting condition, restriction
or limitation (which may be related to the performance of the
Participant, the Company or any subsidiary or Affiliate) and any
vesting acceleration or forfeiture waiver regarding any Award and
the Shares relating thereto, based on such factors as the
Committee shall determine;
(e) To modify, amend or adjust the terms and conditions of any
Award, at any time or from time to time, including but not
limited to Performance Goals, unless at the time of establishment
of goals the Committee shall have precluded its authority to
make such adjustments; and
(f) To determine to what extent and under what circumstances
Shares and other amounts payable with respect to an Award shall
be deferred.
The Committee shall have the authority to adopt, alter and repeal
such administrative rules, guidelines and practices governing the Plan
as it shall from time to time deem advisable, to interpret the terms
and provisions of the Plan and any Award issued under the Plan (and
any agreement relating thereto) and to otherwise supervise the
administration of the Plan.
3.3 Action of the Committee. The Committee may act only by a
majority of its members then in office, except that the members thereof
may (i) delegate to an officer of the Company the authority to make
decisions pursuant to Section 6.4, provided that no such delegation may
be made that would cause Awards or other transactions under the Plan to
cease either to be exempt from Section 16(b) of the Exchange Act or to
qualify as "qualified performance-based compensation" as such term is
defined in the regulations promulgated under Section 162(m) of the Code,
and (ii) authorize any one or more of their number or any officer of
the Company to execute and deliver documents on behalf of the
Committee.
3.4 Decisions Binding. Any determination made by the Committee
orpursuant to delegated authority pursuant to the provisions of the
Plan with respect to any Award shall be made in the sole discretion
of the Committee or such delegate at the time of the grant of the
Award or, unless in contravention of any express term of the Plan,
at any time thereafter. All decisions made by the Committee or any
appropriately delegated officer pursuant to the provisions of the Plan
shall be final and binding on all persons, including the Company and
Plan Participants.
Article 4. Shares Subject to the Plan
4.1 Number of Shares. Subject to adjustment as provided in
Section 4.3 herein, the total number of Shares available for grant
under the Plan shall be four million (4,000,000); provided, however,
the total number of available Shares that may be used for Restricted
Stock Awards under the Plan shall be limited to two hundred thousand
(200,000) and the total amount of available Shares that may be used
for Performance Awards under the Plan shall be limited to four hundred
thousand (400,000) shares. No Participant may be granted (i) a Stock
Option in any one year covering in excess of 600,000 Shares, or (ii) a
Performance Share Award in any one year in excess of 100,000 Shares.
Shares subject to an Award under the Plan may be authorized and
unissued shares or may be treasury shares.
The following rules will apply for purposes of the determination
of the number of Shares available for grant under the Plan:
(a) While an Award is outstanding, it shall be counted against
the authorized pool of Shares, regardless of its vested status.
(b) The grant of an Option, or Restricted Stock or Performance
Award involving Shares shall reduce the Shares available for
grant under the Plan by the number of Shares subject to such
Award.
(c) The grant of a Tandem SAR shall not reduce the number of
Shares available for grant by the number of Shares subject to
the related Option (i.e., there is no double counting of Options
and their related Tandem SARs).
(d) The grant of a Freestanding SAR shall reduce the number of
Shares available for grant by the number of Freestanding SARs
granted.
(e) The Committee shall reduce the appropriate number of Shares
from the authorized pool where a Performance Award is payable in
Shares.
4.2 Lapsed Awards. If any Award granted under this Plan is
cancelled, forfeited, terminates, expires, or lapses for any reason
(with the exception of the termination of a Tandem SAR upon exercise
of the related Option or the termination of a related Option upon
exercise of the corresponding Tandem SAR), any Shares subject to such
Award again shall be available for the grant of an Award under the
Plan. However, in the event that prior to the Award's cancellation,
forfeiture, termination, expiration, or lapse, the holder of the Award
at any time received one or more "benefits of ownership" pursuant to
such Award (as defined by the Commission, pursuant to any rule or
interpretation promulgated under Section 16 or any successor rule of
the Exchange Act), the Shares subject to such Award shall not be made
available for regrant under the Plan to Insiders, but shall be
available for regrants under the Plan to Participants who are not
Insiders.
4.3 Adjustments in Authorized Shares and Prices. In the event
of any change in corporate capitalization, such as a stock split or a
corporate transaction, such as any merger, consolidation, separation,
including a spin-off, or other distribution of stock or property of the
Company, any reorganization (whether or not such reorganization comes
within the definition of such term in Section 368 of the Code) or any
partial or complete liquidation of the Company, the Committee or Board
may make such substitution or adjustments in the aggregate number and
class of shares reserved for issuance under the Plan, in the number,
kind and option price of shares subject to outstanding Stock Options or
SARs, in the number and kind of shares subject to other outstanding
Awards granted under the Plan or subject to limitations such as
Restricted Stock Awards or per- Participant maximum awards and/or
such other equitable substitution or adjustments as it may determine
to be appropriate in its sole discretion; provided, however, that the
number of shares subject to any Award shall always be a whole
number. Such adjusted option price shall also be used to determine
the amount payable by the Company upon the exercise of any Tandem SAR.
Article 5. Eligibility and Participation
5.1 Eligibility. Persons eligible to be granted Awards under
this Plan include all Employees of the Company and its Subsidiaries,
as determined by the Committee, including Employees who are members
of the Board, but excluding Directors who are not Employees.
5.2 Actual Participation. Subject to the provisions of the Plan,
the Committee may, from time to time, select from all eligible
Employees, those to whom Awards shall be granted and shall determine
the nature and amount of each Award.
Article 6. Stock Options
6.1 Grant of Options. Stock Options may be granted alone or in
addition to other Awards granted under the Plan and may be of two
types: Incentive Stock Options and Non-Qualified Stock Options. Any
Stock Option granted under the Plan shall be in such form as the Committee
may from time to time approve. The Committee shall have the authority to
grant any optionee Incentive Stock Options, Non-Qualified Stock
Options or both types of Stock Options (in each case with or without
Stock Appreciation Rights); provided, however, that grants hereunder
are subject to the aggregate limit on grants to individual Participants
set forth in Article 4. Incentive Stock Options may be granted only
to employees of the Company and any "subsidiary corporation" (as such
term is defined in Section 424(f) of the Code). To the extent that
any Stock Option is not designated as an Incentive Stock Option or
even if so designated does not qualify as an Incentive Stock Option,
it shall constitute a Non-Qualified Stock Option.
6.2 Award Agreement. Stock Options shall be evidenced by
option agreements, the terms and provisions of which may differ. An
option agreement shall indicate on its face whether it is intended to
be an agreement for an Incentive Stock Option or a Non-Qualified Stock
Option. The grant of a Stock Option shall occur on the date the
Committee by resolution selects an individual to be a Participant in
any grant of a Stock Option, determines the number of Shares to be
subject to such Stock Option to be granted to such individual and
specifies the terms and provisions of the Stock Option, or such later
date as the Committee designates. The Company shall notify a
Participant of any grant of a Stock Option, and a written option
agreement or agreements shall be duly executed and delivered by the
Company to the Participant. Such agreement or agreements shall become
effective upon execution by the Company and the Participant.
6.3 Incentive Stock Options. Anything in the Plan to the
contrary notwithstanding, no term of the Plan relating to Incentive
Stock Options shall be interpreted, amended or altered nor shall any
discretion or authority granted under the Plan be exercised so as to
disqualify the Plan under Section 422 of the Code or, without the
consent of the optionee affected, to disqualify any Incentive Stock
Option under such Section 422.
6.4 Terms and Conditions. Stock Options granted under the Plan
shall be subject to the following terms and conditions and shall
contain such additional terms and conditions as the Committee shall
deem desirable:
(a) Option Price. The option price per Share purchasable
under a Stock Option shall be determined by the Committee and
set forth in the option agreement, and shall not be less than
the Fair Market Value of the Common Stock subject to the Stock
Option on the date of grant. Options may not be repriced
without shareholder approval.
(b) Option Term. The term of each Stock Option shall be fixed
by the Committee, but no Incentive Stock Option shall be
exercisable more than 10 years after the date the Stock Option
is granted.
(c) Exercisability. Except as otherwise provided herein, Stock
Options shall be exercisable at such time or times and subject
to such terms and conditions as shall be determined by the
Committee. If the Committee provides that any Stock Option is
exercisable only in installments, the Committee may at any time
waive such installment exercise provisions, in whole or in part,
based on such factors as the Committee may determine. In
addition, the Committee may at any time accelerate the
exercisability of any Stock Option.
(d) Method of Exercise. Subject to the provisions of this
Article 6, Stock Options may be exercised, in whole or in part,
at any time during the option term by giving written notice of
exercise to the Company specifying the number of Shares subject
to the Stock Option to be purchased.
Such notice shall be accompanied by payment in full of the
purchase price by certified or bank check or such other
instrument as the Company may accept. If approved by the
Committee, payment, in full or in part, may also be made in the
form of delivery of unrestricted Shares already owned by the
optionee of the same class as the Shares subject to the Stock
Option (based on the Fair Market Value of the shares on the date
the Stock Option is exercised) and for a period of not less than
6 months prior to the Stock Option Exercise, or by certifying
ownership of such Shares by the Participant to the satisfaction
of the Company for later delivery to the Company as specified by
the Committee; provided, however, that, in the case of an
Incentive Stock Option the right to make a payment in the form
of already owned Shares of the same class as the Shares subject
to the Stock Option may be authorized only at the time the Stock
Option is granted.
In the discretion of the Committee, payment for any Shares
subject to a Stock Option may also be made pursuant to a
"cashless exercise" by delivering a properly executed exercise
notice to the Company, together with a copy of irrevocable
instructions to a broker to deliver promptly to the Company the
amount of sale or loan proceeds to pay the purchase price, and,
if requested, the amount of any federal, state, local or foreign
withholding taxes. To facilitate the foregoing, the Company may
enter into agreements for coordinated procedures with one or more
brokerage firms.
No shares shall be issued until full payment therefor has been
made. An optionee shall have all of the rights of a stockholder
of the Company holding the class or series of Shares that is
subject to such Stock Option (including, if applicable, the right
to vote the shares and the right to receive dividends), when the
optionee has given written notice of exercise and has paid in
full for such Shares.
(e) Restrictions on Share Transferability. The Committee may
impose such restrictions on any Shares 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 or market upon which such Shares are then listed and/or
traded, and under any blue sky or state securities laws
applicable to such Shares.
(f) Nontransferability of Stock Options. Unless otherwise
determined by the Committee, no Stock Option shall be
transferable by the optionee other than (i) by will or by
application of the laws of descent and distribution; or (ii) in
the case of a Non-Qualified Stock Option, pursuant to (a) a
domestic relations order issued by a tribunal of competent
jurisdiction or (b) a gift to members of such optionee's
immediate family, whether directly or indirectly or by means of
a trust or partnership or otherwise, if expressly permitted under
the applicable option agreement. All Stock Options shall be
exercisable, subject to the terms of this Plan, during the
optionee's lifetime, only by the optionee or by the guardian or
legal representative of the optionee or, in the case of a Non-
Qualified Stock Option, its alternative payee pursuant to such
domestic relations order, it being understood that the term
"holder" and "optionee" include the guardian and legal
representative of the optionee named in the option agreement and
any person to whom an option is transferred by will or the laws
of descent and distribution or, in the case of a Non-Qualified
Stock Option, pursuant to a domestic relations order or a gift
permitted under the applicable option agreement.
(g) Death. Unless otherwise determined by the Committee, if an
optionee's employment terminates by reason of death, any Stock
Option held by such optionee shall become immediately and fully
exercisable and (unless another period is specified by the
Committee in the option agreement) may thereafter be exercised
by the estate of the optionee for a period of three years from
the date of such death; provided, however, that if the optionee
is at least sixty years of age at the time of death and has
fifteen years service with the Company, such Stock Option may
thereafter be exercised by the estate of the optionee for a
period of six years from the date of such death. In no event,
however, may a Stock Option be exercisable beyond the stated
expiration date of such Stock Option. Notwithstanding any
provision herein to the contrary, unless otherwise determined by
the Committee, if an optionee dies after termination of the
optionee's employment, any Stock Option held by such optionee may
thereafter be exercised, to the extent such Stock Option was
exercisable as of the date of such death, for a period that
expires on the earliest of (i) the first anniversary of the date
of such death, (ii) the last date on which the optionee would
have been entitled to exercise such Stock Option had the optionee
not died or (iii) the date on which the stated term of such Stock
Option expires; provided, however, that if such optionee had
retired from the Company prior to the date of death, the estate
of the optionee shall continue to have the benefit of the vesting
and exercisability benefits specified by Section 6.4(i).
(h) Termination by Reason of Disability. Unless otherwise
determined by the Committee, if an optionee's employment
terminates by reason of Disability, any Stock Option held by such
optionee, if not fully vested and exercisable as of the date of
such termination, shall continue to vest according to such Stock
Option's stated vesting schedule and may thereafter be exercised
by the optionee, to the extent it was exercisable at the time of
termination or thereafter becomes exercisable, or on such
accelerated basis as the Committee may determine, for a period of
three years (or such shorter period as the Committee may specify
in the option agreement) from the date of such termination of
employment or until the expiration of the stated term of such
Stock Option, whichever period is the shorter; provided, however,
that if the optionee dies within such period, any unexercised
Stock Option held by such optionee shall continue to be
exercisable to the extent to which it was exercisable at the time
of death for the remainder of such period, or for a period of 12
months from the date of such death, or until the expiration of
the stated term of such Stock Option, whichever period is the
shortest. In the event of termination of employment by reason of
Disability, if an Incentive Stock Option is exercised after the
expiration of the exercise periods that apply for purposes of
Section 422 of the Code, such Stock Option will thereafter be
treated as a Non-Qualified Stock Option.
(i) Termination by Reason of Retirement. Unless otherwise
determined by the Committee, if an optionee's employment
terminates by reason of retirement, the following vesting and
exercisability terms will apply. For purposes of this Plan, an
optionee shall be deemed to have terminated employment by reason
of retirement if such optionee has attained age and years of
service requirements set forth below, has given due notice (as
determined by the Committee), and has entered into an agreement,
the form and content of which shall be specified by the
Committee, not to compete with the Company and its Affiliates for
a period of one year following such retirement. In no event,
however, may the option become exercisable beyond the option term
fixed by the Committee.
Age at Minimum Years Years of Continued Years of Continued
Retirement of Service Vesting Following Exercisability
with Company Retirement Following
Retirement
55 or more 10 1 2
60 or more 15 6 6
Notwithstanding the foregoing, if the optionee dies within
such period of continued exercisability, any unexercised
Stock Option held by such optionee shall continue to be
exercisable to the extent to which it was exercisable at
the time of death for the remainder of such period, or for a
period of 12 months from the date of such death, or until
the expiration of the stated term of such Stock Option,
whichever period is the shortest. In the event of termination
of employment by reason of retirement, if an Incentive Stock
Option is exercised after the expiration of the exercise
periods that apply for purposes of Section 422 of the Code,
such Stock Option will thereafter be treated as a Non-
Qualified Stock Option.
(j) Other Termination. Unless otherwise determined by the
Committee: (A) if an optionee incurs a voluntary termination
of Employment, any Stock Option held by such optionee, to
the extent then exercisable, or on such accelerated basis as
the Committee may determine, may be exercised for the lesser
of thirty days from the date of such termination of Employment
or the balance of such Stock Option's term; and (B) if an
optionee incurs a termination of Employment because such
optionee's Employment is terminated by the Company or an
Affiliate, other than by reason of retirement or Disability
or for Cause, any Stock Option held by such optionee, to the
extent then exercisable, or becomes exercisable during the
one-year period following termination ofemployment by the
Company or an Affiliate, or on such accelerated basis as the
Committee may determine, may be exercised for the lesser
of one year from the date of such termination of Employment
or the balance of such Stock Option's term; provided, however,
that if the optionee dies within such thirty-day or one-year
period, as the case may be, any unexercised Stock Option held
by such optionee shall continue to be exercisable to the extent
to which it was exercisable at the time of death for the
remainder of such period, or for a period of 12 months from
the date of such death, or until the expiration of the stated
term of such Stock Option, whichever period is the shortest
Notwithstanding the foregoing, if an optionee incurs a
Termination of Employment at or after a Change of Control,
other than by reason of death, Disability or Retirement, any
Stock Option held by such optionee shall be exercisable for the
lesser of (1) six months and one day from the date of such
termination of Employment, and (2) the balance of such Stock
Option's term. In the event of termination of Employment, if
an Incentive Stock Option is exercised after the
expiration of the exercise periods that apply for purposes of
Section 422 of the Code, such Stock Option will thereafter be
treated as a Non-Qualified Stock Option.
(k) Termination for Cause. Unless otherwise determined by the
Committee, if an optionee incurs a Termination of Employment for
Cause, all Stock Options held by such optionee shall thereupon
terminate.
(l) Change of Control Cash-Out. Notwithstanding any other
provision of the Plan, during the 60-day period from and
after a Change of Control (the "Exercise Period"), unless
the Committee shall determine otherwise at the time of
grant, an optionee shall have the right, whether or not
the Stock Option is fully exercisable and in lieu of the
payment of the exercise price for the Shares being purchased
under the Stock Option and by giving notice to the Company,
to elect (within the Exercise Period) to surrender all or
part of the Stock Option to the Company and to receive cash,
within 30 days of such notice, in an amount equal to the
amount by which the Change of Control Price per Share shall
exceed the exercise price per Share under the Stock Option
(the "Spread") multiplied by the number of Shares granted
under the Stock Option as to which the right granted under
this Section 6.4(l) shall have been exercised; provided,
however, that if the Change of Control is within six months
of the date of grant of a particular Stock Option held by
an optionee who is an officer or director of the Company
and is subject to Section 16(b) of the Exchange Act no such
election shall be made by such optionee with respect to such
Stock Option prior to six months from the date of grant.
However, if the end of such 60-day period from and after a
Change of Control is within six months of the date of grant
of a Stock Option held by an optionee who is an officer or
director of the Company and is subject to Section 16(b) of
the Exchange Act, such Stock Option shall be cancelled in
exchange for a cash payment to the optionee, effected on
the day which is six months and one day after the date of
grant of such Option, equal to the Spread multiplied by
the number of Shares granted under the Stock Option.
Article 7. Stock Appreciation Rights
7.1 Grant of SARs. Subject to the terms and conditions of
the Plan, an SAR may be granted to an Employee at any time and from
time to time as shall be determined by the Committee. The Committee
may grant Freestanding SARs, Tandem SARs, or any combination of
these forms of SAR. In the case of a Non-Qualified Stock Option,
Tandem SARs may be granted either at or after the time of grant
of such Stock Option. In the case of an Incentive Stock Option,
Tandem SARs may be granted only at the time of grant of such
Stock Option.
The Committee shall have complete discretion in determining the
number of SARs granted to each Participant (subject to Article 4
herein) and, consistent with the provisions of the Plan, in
determining the terms and conditions pertaining to such SARs. However,
the grant price of a Freestanding SAR shall be at least equal to the
Fair Market Value of a Share on the date of grant of the SAR. The
grant price of Tandem SARs shall equal the Option Price of the related
Option. In no event shall any SAR granted hereunder become exercisable
within the first six (6) months of its grant. SARs may not be repriced
without stockholder approval.
7.2 Exercise of Tandem SARs. Tandem SARs may be exercised for
all or part of the Shares subject to the related Option upon the
surrender of the right to exercise the equivalent portion of the
related Option. A Tandem SAR shall terminate and no longer be
exercisable upon the termination or exercise of the related Stock
Option. A Tandem SAR may be exercised only with respect to the Shares
for which its related Option is then exercisable.
Notwithstanding any other provision of this Plan to the contrary,
with respect to a Tandem SAR granted in connection with an ISO; (i)
the Tandem SAR will expire no later than the expiration of the
underlying ISO; (ii) the value of the payout with respect to the
Tandem SAR may be for no more than one hundred percent (100%) of the
difference between the Option Price of the underlying ISO and the
Fair Market Value of the Shares subject to the underlying ISO at the
time the Tandem SAR is exercised; and (iii) the Tandem SAR may be
exercised only when the Fair Market Value of the Shares subject to
the ISO exceeds the Option Price of the ISO.
7.3 Exercise of Freestanding SARs. Subject to the other
provisions of this Article 7, Freestanding SARs may be exercised
upon whatever terms and conditions the Committee, at its sole
discretion, imposes upon them.
7.4 SAR Agreement. Each SAR grant shall be evidenced by
an Award Agreement that shall specify the grant price, the term
of the SAR, and such other provisions as the Committee shall
determine.
7.5 Term of SARs. The term of an SAR granted under the
Plan shall be determined by the Committee, at its sole discretion;
provided, however, that such term shall not exceed ten (10) years.
7.6 Payment of SAR Amount. Upon exercise of an SAR, a
Participant shall be entitled to receive payment from the Company
in an amount determined by multiplying:
(a) The excess of the Fair Market Value of a Share on the
date of exercise over the grant price of the SAR; by
(b) The number of Shares with respect to which the SAR is
exercised.
At the discretion of the Committee, the payment upon SAR
exercise may be in cash, in Shares of equivalent value, or in some
combination thereof.
7.7 Rule 16-3 Requirements. Notwithstanding any other
provision of the Plan, the Committee may impose such conditions
on exercise of an SAR (including, without limitation, the right
of the Committee to limit the time of exercise to specified periods)
as may be required to satisfy the requirements of any rule or
interpretation promulgated under Section 16 (or any successor rule)
of the Act.
7.8 Nontransferability of SARs. No SAR granted under the
Plan may be sold, transferred, pledged, assigned, or otherwise
alienated or hypothecated, other than by will or by application of
the laws of descent and distribution. Further, all SARs granted to
a Participant under the Plan shall be exercisable during his or her
lifetime only by such Participant. Notwithstanding the foregoing,
at the discretion of the Committee, an Award Agreement may permit
the transferability of an SAR by a Participant solely to members
of the Participant's immediate family or trusts for the benefit of
such persons.
Article 8. Restricted Stock
8.1 Administration. Shares of Restricted Stock may be
awarded either alone or in addition to other Awards granted
under the Plan. The Committee shall determine the officers and
employees to whom and the time or times at which grants of
Restricted Stock will be awarded, the number of shares to be
awarded to any Participant (subject to the aggregate limit on
grants to individual Participants set forth in Article 4), the
conditions for vesting, the time or times within which such
Awards may be subject to forfeiture and any other terms and
conditions of the Awards, in addition to those contained in
Section 8.3.
The Committee may, prior to grant, condition the vesting of
Restricted Stock upon continued service of the Participant. The
provisions of Restricted Stock Awards need not be the same with
respect to each recipient.
8.2 Awards and Certificates. Shares of Restricted Stock
shall be evidenced in such manner as the Committee may deem
appropriate, including book-entry registration or issuance of
one or more stock certificates. Any certificate issued in respect
of shares of Restricted Stock shall be registered in the name of
such Participant and shall bear an appropriate legend referring
to the terms, conditions, and restrictions applicable to such
Award, substantially in the following form:
"The sale or other transfer of the Shares of stock represented
by this certificate, whether voluntary, involuntary, or by operation
of law, is subject to certain restrictions on transfer as set forth
in the Tupperware Corporation 2000 Incentive Plan, and in a Restricted
Stock Agreement. A copy of the Plan and such Restricted Stock
Agreement may be obtained from Tupperware Corporation."
The Committee may require that the certificates evidencing such
Shares be held in custody by the Company until the restrictions
thereon shall have lapsed and that, as a condition of any Award of
Restricted Stock, the Participant shall have delivered a stock power,
endorsed in blank, relating to the Common Stock covered by such Award.
8.3 Terms and Conditions. Shares of Restricted Stock shall
be subject to the following terms and conditions:
(a) Subject to the provisions of the Plan and the Restricted
Stock Agreement referred to in Section 8.3(f), during the Restricted
Period, the Participant shall not be permitted to sell, assign,
transfer, pledge or otherwise encumber shares of Restricted Stock,
except that, if expressly provided in the Restricted Stock Agreement,
a Participant may, during the Restriction Period, transfer shares of
Restricted Stock to members of the Participant's immediate family or
trusts or partnerships for the benefit of such persons. Within these
limits, the Committee may provide for the lapse of restrictions based
upon period of service in installments or otherwise and may accelerate
or waive, in whole or in part, restrictions based upon period of
service. Notwithstanding the foregoing, any Restricted Stock Award
granted hereunder shall have a Restriction Period of not less than
three years, except that an aggregate amount of Restricted Stock
Awards not exceeding one-third of the Shares available for use as
Restricted Stock Awards pursuant to Section 4.1 of the Plan may
be issued without a minimum Restriction Period.
(b) Except as provided in this paragraph (b) and paragraph (a),
above, and the Restricted Stock Agreement, the Participant shall have,
with respect to the shares of Restricted Stock, all of the rights of a
stockholder of the Company holding the class or series of Shares that
is the subject of the Restricted Stock, including, if applicable, the
right to vote the shares and the right to receive any cash dividends.
Unless otherwise determined by the Committee in the applicable
Restricted Stock Agreement, dividends payable in Shares shall be
paid in the form of Restricted Stock of the same class as the Shares
with which such dividend was paid, held subject to the vesting of
the underlying Restricted Stock. In the event that any dividend
constitutes a "derivative security" or an "equity security" pursuant
to Rule 16(a) under the Act, such dividend shall be subject to a
vesting period equal to the longer of: (i) the remaining vesting
period of the Shares of Restricted Stock with respect to which the
dividend is paid; or (ii) six months. The Committee shall establish
procedures for the application of this provision.
(c) Except to the extent otherwise provided in the applicable
Restricted Stock Agreement and paragraphs (a) and (d) of this Section
8.3 and Section 13.1(b), upon a Participant's Termination of Employment
for any reason during the Restriction Period, all Shares still subject
to restriction shall be forfeited by the Participant.
(d) Except to the extent otherwise provided in Section 13.1(b),
in the event that a Participant retires or such Participant's
employment is involuntarily terminated (other than for Cause), the
Committee shall have the discretion to waive, in whole or in part,
any or all remaining restrictions with respect to any or all of such
Participant's shares of Restricted Stock.
(e) If and when any applicable Restriction Period expires
without a prior forfeiture of the Restricted Stock, unlegended
certificates for such shares shall be delivered to the Participant
upon surrender of the legended certificates.
(f) Each Award shall be confirmed by, and be subject to, the
terms of a Restricted Stock Agreement.
Article 9. Performance Awards
9.1 Grant of Performance Awards. Subject to the terms of the
Plan, Performance Awards may be granted to eligible Employees at any
time and from time to time, as shall be determined by the Committee,
and may be granted either alone or in addition to other Awards granted
under the Plan. The Committee shall have complete discretion in
determining the number, amount and timing of Awards granted to each
Participant. Such Performance Awards may take the form determined by
the Committee, including without limitation, cash, Shares, Performance
Units and Performance Shares, or any combination thereof. Performance
Awards may be awarded as short-term or long-term incentives.
9.2 Performance Goals.
(a) The Committee shall set Performance Goals at its discretion
which, depending on the extent to which they are met, will determine
the number and/or value of Performance Awards that will be paid out to
the Participants, and may attach to such Performance Awards one or
more restrictions, including, without limitation, a requirement
that Participants pay a stipulated purchase price for each Performance
Share, or restrictions which are necessary or desirable as a result
of applicable laws or regulations. Each Performance Award may be
confirmed by, and be subject to, a Performance Award Agreement.
(b) The Committee shall have the authority at any time to make
adjustments to Performance Goals for any outstanding Performance Awards
which the Committee deems necessary or desirable unless at the time of
establishment of goals the Committee shall have precluded its authority
to make such adjustments.
(c) Performance Periods shall, in all cases, exceed six (6)
months in length.
9.3 Value of Performance Units/Shares.
(a) Each Performance Unit shall have an initial value that is
established by the Committee at the time of grant.
(b) Each Performance Share shall have an initial value equal to
the Fair Market Value of a Share on the date of grant.
9.4 Earning of Performance Awards. After the applicable
Performance Period has ended, the holder of any Performance Award
shall be entitled to receive the payout earned by the Participant
over the Performance Period, to be determined as a function of the
extent to which the corresponding Performance Goals have been achieved,
except as adjusted pursuant to Section 9.2(b) or as deferred pursuant
to Article 11.
9.5 Timing of Payment of Performance Awards. Payment of earned
Performance Awards shall be made in accordance with terms and
conditions prescribed or authorized by the Committee. The Committee
may permit the Participants to elect to defer or the Committee may
require the deferral of, the receipt of Performance Awards upon such
terms as the Committee deems appropriate.
9.6 Nontransferability. Performance Awards may not be sold,
transferred, pledged, assigned, or otherwise alienated or hypothecated,
other than by will or by application of the laws of descent and
distribution. Further, a Participant's rights under the Plan shall be
exercisable during the Participant's lifetime only by the Participant
or the Participant's Beneficiary. Notwithstanding the foregoing, at
the discretion of the Committee, an Award Agreement may permit the
transferability of a Performance Award by a Participant solely to
members of the Participant's immediate family or trusts or
partnerships for the benefit of such persons.
9.7 Termination. Performance Awards shall be subject to the
following terms and conditions:
(a) Except to the extent otherwise provided in the applicable
Performance Award Agreement, if any, and Sections 9.7(b) and 13.1(c),
upon a Participant's Termination of Employment for any reason during
the Performance Period or before any applicable Performance Goals are
satisfied, the rights to the shares still covered by the Performance
Award shall be forfeited by the Participant.
(b) Except to the extent otherwise provided in Section 13.1(c),
in the event that a Participant's employment is terminated (other than
for Cause), or in the event a Participant retires, the Committee shall
have the discretion to waive, in whole or in part, any or all remaining
payment limitations (other than, in the case of Performance Awards with
respect to which a Participant is a Covered Employee, satisfaction of
any applicable Performance Goals unless the Participant's employment
is terminated by reason of death or disability) with respect to any
or all of such Participant's Performance Awards.
Article 10. Beneficiary
10.1 Designation. Each Participant under the Plan may, from
time to time, name any Beneficiary or Beneficiaries (who may be named
contingently or successively). Each such designation shall revoke all
prior designations by the same Participant, shall be in a form
prescribed by the Company, and shall be effective only when filed by
the Participant in writing with the Company during the Participant's
lifetime. Any such designation shall control over any inconsistent
testamentary or inter vivos transfer by a Participant, and any benefit
of a Participant under the Plan shall pass automatically to a
Participant's Beneficiary pursuant to a proper designation pursuant
to this Section 10.1 without administration under any statute or
rule of law governing the transfer of property by will, trust,
gift or intestacy.
10.2 Absence of Designation. In the absence of any such
designation contemplated by Section 10.1, benefits remaining unpaid
at the Participant's death shall be paid pursuant to the Participant's
will or pursuant to the laws of descent and distribution.
Article 11. Deferrals
The Committee may permit a Participant to elect, or the Committee
may require at its sole discretion subject to the proviso set forth
below, any one or more of the following: (i) the deferral of the
Participant's receipt of cash, (ii) a delay in the exercise of an
Option or SAR, (iii) a delay in the lapse or waiver of restrictions
with respect to Restricted Stock, or (iv) a delay of the satisfaction
of any requirements or goals with respect to Performance Awards;
provided, however, the Committee's authority to take such actions
hereunder shall exist only to the extent necessary to reduce or
eliminate a limitation on the deductibility of compensation paid to
the Participant pursuant to (and so long as such action in and of
itself does not constitute the exercise of impermissible discretion
under) Section 162(m) of the Code, or any successor provision
thereunder. If any such deferral is required or permitted, the
Committee shall establish rules and procedures for such deferrals,
including provisions relating to periods of deferral, the terms of
payment following the expiration of the deferral periods, and the
rate of earnings, if any, to be credited to any amounts deferred
thereunder.
Article 12. Rights of Employees
12.1 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. For purposes of
the Plan, transfer of employment of a Participant between the Company
and any one of its Subsidiaries (or between Subsidiaries) shall not
be deemed a termination of employment.
12.2 Participation. No Employee shall have the right to be
selected to receive an Award under this Plan, or, having been so
selected, to be selected to receive a future Award.
Article 13. Change of Control
13.1 Impact of Event. Notwithstanding any other provision of
the Plan to the contrary, in the event of a Change of Control:
(a) Any Stock Options or SARs outstanding as of the date such
change of Control is determined to have occurred, and which are not
then exercisable and vested, shall become fully exercisable and vested
to the full extent of the original grant; provided, however, that in
the case of the holder of Stock Options or SARs who is subject to
Section 16(b) of the Exchange Act, such Stock Options or SARs shall
have been outstanding for at least six months at the date such Change
of Control is determined to have occurred.
(b) The restrictions and deferral limitations applicable to any
Restricted Stock shall lapse, and such Restricted Stock shall become
free of all restrictions and become fully vested and transferable to
the full extent of the original grant.
(c) All Performance Awards shall be considered to be earned and
payable in full, and any deferral or other restriction shall lapse and
such Performance Units shall be settled in cash as promptly as is
practicable.
Article 14. Amendment, Modification, and Termination
14.1 Amendment, Modification, and Termination. At any time and
from time to time, the Board may terminate, amend, or modify the Plan.
However, without the approval of the stockholders of the Company, no
such amendment or modification may:
(a) Increase the total number of Shares which may be issued
under this Plan, except as provided in Article 4 hereof; or
(b) Modify the eligibility requirements; or
(c) Materially increase the benefits accruing under the Plan.
14.2 Awards Previously Granted. No termination, amendment, or
modification of the Plan shall adversely affect in any material way
any Award previously granted under the Plan, without the written
consent of the Participant holding such Award except such an amendment
made to cause the Plan or Award to qualify for the exemption provided
by Rule 16b-3. The Committee shall have the right to replace any
previously granted Award under the Plan with an Award equal to the
value of the replaced Award at the time of replacement, without
obtaining the consent of the Participant holding such Award.
Subject to the above provisions, the Board shall have authority
to amend the Plan to take into account changes in law and tax and
accounting rules as well as other developments, and to grant Awards
which qualify for beneficial treatment under such rules without
stockholder approval.
Article 15. Withholding
15.1 Tax Withholding. The Company shall have the power and the
right to deduct or withhold, or require a Participant to remit to the
Company, an amount sufficient to satisfy federal, state, and local
taxes (including the Participant's FICA obligation) required by law
to be withheld with respect to any taxable event arising under or as
a result of this Plan.
15.2 Share Withholding. With respect to withholding required
and/or permitted upon the exercise of Options or SARs, upon the lapse
of restrictions on Restricted Stock, or upon any other taxable event
hereunder, Participants may elect, subject to the approval of the
Committee, to satisfy the withholding requirement, in whole or in
part, by having the Company withhold Shares (or by surrendering Shares
previously owned which have been held for longer than six months)
having a Fair Market Value on the date the tax is to be determined
equal to the minimum statutory total tax which could be imposed on
the transaction. All elections shall be irrevocable, made in writing,
signed by the Participant, and elections by Insiders shall
additionally comply with the requirements established by the
Committee.
Article 16. Successors
All obligations of the Company under the Plan, with respect to
Awards granted hereunder, shall be binding on any successor to the
Company, whether the existence of such successor is the result of a
direct or indirect purchase, merger, consolidation, spin-off, or
otherwise, of all or substantially all of the business and/or assets
of the Company.
Article 17. Legal Construction
17.1 Gender and Number. Except where otherwise indicated by
the context, any masculine term used herein also shall include the
feminine; the plural shall include the singular and the singular
shall include the plural.
17.2 Severability. In the event any provision of the Plan
shall be held illegal or invalid for any reason, the illegality or
invalidity shall not affect the remaining parts of the Plan, and
the Plan shall be construed and enforced as if the illegal or
invalid provision had not been included.
17.3 Requirements of Law. The granting of Awards and the
issuance of Shares under the Plan 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. With respect to Insiders, transactions under this Plan
are intended to comply with all applicable conditions of Rule 16b-3
or its successors under the Exchange Act. To the extent any provision
of the plan or action by the Committee fails to comply with
Section 17.3, it shall be deemed null and void, to the extent
permitted by law and deemed advisable by the Committee.
Notwithstanding any other provision set forth in the Plan, if
required by any rule or interpretation promulgated under Section 16
of the Exchange Act, any "derivative security" or "equity security"
offered pursuant to the Plan to any Insider may not be sold or
transferred for at least six (6) months after the date of grant
of such Award. The terms "equity security" and "derivative security"
shall have the meanings ascribed to them in the then-current
Rule 16(a) under the Exchange Act.
Notwithstanding any other provision of the Plan or agreements
made pursuant thereto, the Company shall not be required to issue
or deliver any certificate or certificates for Shares under the Plan
prior to fulfillment of all of the following conditions:
(a) Listing or approval for listing upon notice of issuance,
of such shares on the New York Stock Exchange, Inc., or such other
securities exchange as may at the time be the principal market for
the Shares;
(b) Any registration or other qualification of such Shares
under any state or federal law or regulation, or the maintaining
in effect of any such registration or other qualification which
the Committee shall, in its absolute discretion upon the advice
of counsel, deem necessary or advisable; and
(c) Obtaining any other consent, approval, or permit from
any state or federal governmental agency which the Committee shall,
in its absolute discretion after receiving the advice of counsel,
determine to be necessary or advisable.
17.4 Pooling. Notwithstanding anything in the Plan to the
contrary, if any right granted pursuant to this Plan would make a
Change of Control transaction ineligible for pooling-of-interests
accounting under APB No. 16 that but for the nature of such grant
would otherwise be eligible for such accounting treatment, the
Committee shall have the ability to substitute for the cash payable
pursuant to such grant Common Stock with a Fair Market Value equal
to the cash that would otherwise be payable hereunder.
17.5 Governing Law. To the extent not preempted by federal
law, the Plan, and all agreements hereunder, shall be construed
in accordance with and governed by the laws of the State of Delaware.
Exhibit 23.1
