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EXHIBIT 4.4
THE DIAL CORPORATION
EMPLOYEE STOCK PURCHASE PLAN
ARTICLE I
INTRODUCTION
1.01 Purpose. The Dial Corporation Employee Stock Purchase Plan is
intended to provide a method whereby Eligible Employees of The Dial Corporation
and its Participating Subsidiary Corporations will have an opportunity to
purchase shares of Common Stock through accumulated payroll deductions.
1.02 Rules of Interpretation. Subject to Article XII, it is the
intention of the Company that the Plan will qualify as an "employee stock
purchase plan" under Section 423 of the Code. The provisions of the Plan shall
be construed so as to extend or limit the operation of, and participation in,
the Plan as necessary to conform to the requirements of that Section of the
Code.
ARTICLE II
DEFINITIONS
Capitalized terms used in the Plan shall have the following meanings:
2.01 "Board" shall mean the Board of Directors of the Company.
2.02 "Code" shall mean the Internal Revenue Code of 1986, as amended.
2.03 "Change in Capitalization" shall mean any increase or reduction in
the number of shares of Common Stock, or any change (including, but not limited
to, in the case of a spin-off, dividend or other distribution in respect of
shares of Common Stock, a change in value) in the shares of Common Stock or
exchange of shares of Common Stock for a different number or kind of shares,
other securities or other property of the Company or another corporation, by
reason of a reclassification, recapitalization, merger, consolidation,
reorganization, spin-off, split-up, issuance of warrants or rights or
debentures, stock dividend, stock split or reverse stock split, cash dividend,
property dividend, combination or exchange of shares, repurchase of shares,
change in corporate structure or otherwise.
2.04 "Change in Control" shall have the meaning set forth on Appendix A
attached hereto.
2.05 "Committee" shall mean the Executive Compensation Committee of the
Board.
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2.06 "Common Stock" shall mean the common stock, par value $0.01 per
share, of the Company.
2.07 "Company" shall mean The Dial Corporation, a Delaware corporation.
2.08 "Compensation" shall mean the total of all amounts paid to a
Participant by the Company or an applicable Participating Subsidiary Corporation
for personal services (i) for Participants who receive a Federal Income Tax
Withholding Statement (Form W-2), as reported on such Statement, and (ii) for
Participants who do not receive a Federal Income Tax Withholding Statement (Form
W-2), as determined by the Committee (and, in the case of each of (i) and (ii),
excluding fringe benefits, overtime, bonuses and any amounts relating to
equity-based awards); provided, however, that the Committee may, in its
discretion, use any definition of "Compensation" so long as such definition and
its application satisfies Section 423 of the Code.
2.09 "Eligible Employee" shall mean, as of any date, any Employee of
the Company or a Participating Subsidiary Corporation as of such date, but
excluding (i) any Employee who has been employed by the Company or an applicable
Participating Subsidiary Corporation for less than six months as of such date
and (ii) any Employee whose customary employment is 20 hours or less per week as
of such date; provided, however, that, with respect to any Offering, the
Committee may, in its discretion, expand or limit the class of Eligible
Employees for purposes of that Offering so long as such action is consistent
with Section 423 of the Code and the regulations promulgated and proposed
thereunder.
2.10 "Employee" shall mean any individual who is a common law employee
of the Company or a Participating Subsidiary Corporation.
2.11 "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
2.12 "Fair Market Value" on any date shall mean 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 exchange on which the Common Stock is listed or on the NASDAQ National
Market System or on NASDAQ or, if there is no regular public trading market for
the Common Stock, as determined by the Committee in good faith.
2.13 "Holding Period" shall mean, with respect to any shares of Common
Stock purchased pursuant to the Plan, the period commencing on the Offering
Termination Date on which such shares are purchased and ending on the second
anniversary of such Offering Termination Date; provided, that the Committee may,
in its discretion, shorten or lengthen the Holding Period applicable to shares
of Common Stock purchased in an Offering; and provided, further, that any action
of the Committee to shorten or lengthen any Holding
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Period shall be done and communicated to Participants in advance of the Offering
to which such action applies.
2.14 "Offering Commencement Date" shall have the meaning set forth in
Section 4.02 hereof.
2.15 "Offering Price" shall have the meaning set forth in Section 6.02
hereof.
2.16 "Offering Termination Date" shall have the meaning set forth in
Section 4.02 hereof.
2.17 "Offerings" shall have the meaning set forth in Section 4.02
hereof.
2.18 "Participant" shall mean any Eligible Employee who elects to
participate in the Plan in accordance with the provisions of Section 3.03
hereof.
2.19 "Participating Subsidiary Corporation" shall mean each "subsidiary
corporation" (as that term is defined in Section 424 of the Code) of the
Company, the common law employees of which are designated by the Board or the
Committee as eligible to participate in the Plan. The Participating Subsidiary
Corporations shall be set forth on Appendix B attached hereto (as such Appendix
may be revised from time to time by the Committee).
2.20 "Plan" shall mean The Dial Corporation Employee Stock Purchase
Plan, as amended from time to time.
2.21 "Plan Representative" shall mean the persons designated from time
to time by the Committee to receive certain notices and take certain other
administrative actions relating to the operation of, and participation in, the
Plan.
2.22 "Securities Act" shall mean the Securities Act of 1933, as
amended.
ARTICLE III
ELIGIBILITY AND PARTICIPATION
3.01 Initial Eligibility. Each Employee who is an Eligible Employee on
an Offering Commencement Date shall be eligible to participate in the Offering
commencing on such Offering Commencement Date. Persons who are not Eligible
Employees on an Offering Commencement Date shall not be eligible to participate
in the Plan with respect to that Offering.
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3.02 Restrictions on Participation. Notwithstanding any provision of
the Plan to the contrary, no Eligible Employee shall be granted an option to
purchase shares of Common Stock under the Plan:
(a) if, immediately after the grant, such Eligible Employee
would own stock and/or hold outstanding options to purchase stock (whether
granted under the Plan, or otherwise) possessing 5% or more of the total
combined voting power or value of all classes of stock of the Company (and, for
purposes of this paragraph, the rules of Section 423(b)(3) and Section 424(d) of
the Code shall apply in determining stock ownership of any Eligible Employee);
or
(b) which permits such Eligible Employee's rights to purchase
stock under all employee stock purchase plans of the Company and all
Participating Subsidiary Corporations to accrue at a rate which exceeds $25,000
of Fair Market Value of the Common Stock (determined at the time such option is
granted) for each calendar year in which such option is outstanding at any time.
3.03 Commencement of Participation. An Eligible Employee may become a
Participant by completing an authorization for payroll deductions on the form
provided by the Company and filing the completed form with the Committee on or
before the filing date set therefor by the Committee, which date shall be prior
to the Offering Commencement Date for the next following Offering. Payroll
deductions for a Participant shall commence on the next following Offering
Commencement Date after the Employee's authorization for payroll deductions
becomes effective and shall continue until termination of the Plan or the
Participant's earlier termination of participation in the Plan. Each Participant
shall be deemed to continue participation in the Plan until the earlier of (i)
the termination of the Plan and (ii) such Eligible Employee's termination of
participation in the Plan pursuant to Article VIII hereof.
ARTICLE IV
STOCK SUBJECT TO THE PLAN AND OFFERINGS
4.01 Stock Subject to the Plan. Subject to the provisions of Sections
13.03 and 13.04 hereof, the Board shall reserve for issuance under the Plan an
aggregate of six hundred and fifty thousand (650,000) shares of Common Stock,
which shares may be authorized but unissued shares of Common Stock or treasury
shares.
4.02 Offerings. Subject to Section 4.03, the Plan will be implemented
by offerings ("Offerings") of Common Stock during consecutive, non-overlapping
periods of time selected by the Committee, the first of which shall commence on
August 14, 2000. The first day of an Offering shall be deemed the "Offering
Commencement Date" for such Offering, and the last day of an Offering shall be
deemed the "Offering Termination Date" for such
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Offering. The Offering Commencement Date and the Offering Termination Date shall
in all cases occur on a business day. It is intended that each Offering shall be
a period of approximately six months, but the Committee may, in its discretion,
set longer or shorter periods for any Offering, so long as the length of such
Offering is consistent with Section 423 of the Code.
4.03 Effect of a Change in Control. In the event of a Change in
Control, the Offering Termination Date with respect to the Offering in which the
Change in Control would otherwise occur shall be accelerated to the last payroll
date immediately preceding the Change in Control.
ARTICLE V
PAYROLL DEDUCTIONS
5.01 Amount of Deduction. The form described in Section 3.03 will
permit a Participant to elect payroll deductions in increments of one percent
(1%) of such Participant's Compensation of such Participant's Compensation for
each pay period ending during an Offering, up to fifteen percent (15%) (or, in
the discretion of the Committee, such other percent or fixed dollar amount which
the Board or Committee may from time to time otherwise determine); provided,
that a Participant's payroll deductions may be reduced in whole or in part by
the Board or the Committee, in its discretion, at any time during an Offering
which is scheduled to end during the then-current calendar year to the extent
necessary in order to comply with the provisions of Section 423(b)(8) of the
Code and Section 3.02(b) hereof.
5.02 Participant's Account. All payroll deductions made for a
Participant shall be credited to a book-entry account established for such
Participant under the Plan. A Participant may not make any separate cash
payments with respect to any Offering.
5.03 Changes in Payroll Deductions. A Participant may reduce or
increase future payroll deductions (within the limits described in Section 5.01
hereof) by filing with the Committee a form provided by the Company for such
purpose. The effective date of any increase or reduction in future payroll
deductions will be the first day of the next Offering following the Company's
receipt of the change form, if the Company shall have timely received such
change form prior to the Offering Commencement Date of such Offering or as of
such earlier date as the Committee may, in its discretion, determine or as shall
be applicable in connection with the cessation of the Participant's
participation in the Plan pursuant to Section 8.01 hereof.
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ARTICLE VI
GRANTING OF OPTION
6.01 Number of Option Shares. On each Offering Commencement Date, each
Participant shall be deemed to have been granted an option to purchase a maximum
number of shares of Common Stock the Fair Market Value of which is equal to (i)
that amount of the Participant's Compensation which the Participant has elected
to have withheld with respect to such Offering (but in any event not in excess
of the limitations set by Section 5.01 hereof) divided by (ii) the applicable
Offering Price determined as provided in Section 6.02 hereof. Notwithstanding
the foregoing sentence, the maximum number of shares of Common Stock that a
Participant may purchase in the initial Offering is three thousand (3,000). The
Committee may, prior to the commencement of subsequent Offerings, establish such
maximums for such Offerings as it deems appropriate.
6.02 Offering Price. The per share option price of shares of Common
Stock purchased with payroll deductions made during any Offering (the "Offering
Price") by a Participant shall be an option price determined by the Committee in
advance of such Offering, but not lower than the lower of:
(a) 85% of the Fair Market Value of the Common Stock on the
Offering Commencement Date for such Offering; and
(b) 85% of the Fair Market Value of the Common Stock on the
Offering Termination Date of such Offering.
ARTICLE VII
EXERCISE AND OTHER TERMS OF OPTIONS
7.01 Automatic Exercise. Subject to Section 6.01 hereof, each
Participant's option for the purchase of shares of Common Stock with payroll
deductions made during any Offering will be deemed to have been exercised
automatically on the applicable Offering Termination Date for the purchase of
the number of whole and deemed fractional shares of Common Stock which the
accumulated payroll deductions in the Participant's account at that time will
purchase at the applicable Offering Price.
7.02 Withdrawal of Account. No Participant in the Plan shall be
entitled to withdraw any amount from the accumulated payroll deductions in his
or her account; provided, however, that a Participant's accumulated payroll
deductions shall be refunded to the Participant as and to the extent specified
in Section 8.01 hereof upon termination of such Participant's participation in
the Plan.
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7.03 Fractional Shares. Fractional shares of Common Stock will not be
issued under the Plan. Any fractional share of Common Stock deemed purchased by
a Participant pursuant to Section 7.01 hereof will be combined with any
fractional shares deemed purchased by the Participant in subsequent Offerings
and whole shares of Common Stock then issued therefor.
7.04 Non-Transferability of Options. Neither payroll deductions
credited to any Participant's account nor any option or rights with regard to
the exercise of an option or the receipt of Common Stock under the Plan may be
assigned, transferred, pledged, or otherwise disposed of in any way by the
Participant other than by will or the laws of descent and distribution. Any such
attempted assignment, transfer, pledge or other disposition shall be without
effect, except that the Company may, in its discretion, treat such act as an
election to withdraw from participation in the Plan in accordance with Section
8.01 hereof. During a Participant's lifetime, options held by a Participant
shall be exercisable only by such Participant.
7.05 Delivery of Stock.
(a) As of each Offering Termination Date, the Company shall
cause all shares of Common Stock purchased by each Participant thereon to be
credited to a book-entry account maintained for the Participant. Subject to
Section 8.04, during the Holding Period applicable to such shares, the Company
shall deliver to the Participant, upon his or her request, any of such shares of
Common Stock so credited. As soon as practicable after expiration of the Holding
Period applicable to such shares (or pursuant to the last sentence of this
Section 7.05(a), if earlier), the Company shall deliver such shares to the
Participant. The Company may set limits as to the minimum number of shares that
a Participant may so request and may require the Participant to dispose of such
shares through one or more brokers designated by the Company. The Company shall
deliver all shares of Common Stock purchased by a Participant pursuant to the
Plan as soon as practicable after the Participant ceases to be an Eligible
Employee.
(b) The Company may deliver shares of Common Stock purchased
under the Plan in certificated or book entry form, in the Company's sole
discretion.
7.06 Stock Transfer Restrictions. The Plan is intended to satisfy the
requirements of Section 423 of the Code. Shares of Common Stock purchased upon
exercise of options granted under the Plan may contain such restrictions, terms
and conditions as the Board or Committee may, in its discretion, determine, and
the Board or Committee may, in its discretion, require that an appropriate
legend be placed on the certificates evidencing such shares of Common Stock.
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ARTICLE VIII
WITHDRAWAL
8.01 In General. A Participant may withdraw from an Offering at any
time prior to the Offering Termination Date of such Offering by giving written
notice to the Committee in accordance with any procedures the Committee may set.
Upon processing of any such notice of withdrawal, no further payroll deductions
will be made from the Participant's Compensation during such Offering, and such
Participant will not participate in such Offering or in any future Offering
unless and until (with respect to any future Offering) such Participant elects
to resume participation. Such Participant's payroll deductions accumulated prior
to processing of such notice of withdrawal, if any, together with an amount of
cash equal to the Fair Market Value of any deemed fractional shares then
credited in respect of the Participant, if any, shall be refunded (in each case
without interest) to him or her as soon as reasonably practicable. A Participant
may elect to resume participation in the Plan by providing written notice to the
Committee pursuant to Section 3.03 hereof in accordance with any procedures the
Committee may set.
8.02 Effect on Subsequent Participation. Subject to Section 8.04, a
Participant's withdrawal from any Offering will not have any effect upon such
Participant's eligibility to participate in any subsequent Offering or in any
similar plan which may hereafter be adopted by the Company and for which such
Participant is otherwise eligible.
8.03 Termination of Eligible Employee Status. Upon a Participant's
ceasing to be an Eligible Employee for any reason, including as a result of a
termination of the Participant's employment with the Company or any
Participating Subsidiary Corporation (as the case may be) for any reason
(including retirement or death), the Participant's participation in the Plan
shall automatically terminate and, in connection with such termination of
participation, his or her payroll deductions accumulated prior to such
termination, if any, together with an amount of cash equal to the Fair Market
Value of any deemed fractional shares then credited in respect of the
Participant, if any, shall be refunded (in each case without interest) to him or
her as soon as reasonably practicable, or, in the case of his or her death, to
the person or persons entitled thereto under Section 13.01 hereof.
8.04 Withdrawal upon Request for Delivery of Common Stock. Subject to
the last sentence of this Section 8.04, the request of a Participant pursuant to
Section 7.05(a) of the Plan to take delivery of shares of Common Stock purchased
pursuant to the Plan prior to the expiration of the Holding Period applicable to
such shares shall constitute an election by the Participant (i) to withdraw from
the then-current Offering (if he or she is a Participant therein) and (ii) not
to participate in the next following Offering; provided, that the Committee may,
in its discretion, increase the number of Offerings to which clause (ii) of this
Section 8.04 applies so long as any such increased number has been established
and communicated by the Committee to Participants in advance of any Offering to
which such
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increased number applies; and provided, further, that this Section 8.04 shall
not apply to any delivery of Common Stock required by legal process. The
Committee shall have the discretion to cause this Section 8.04 not to apply to
one or more Offerings under the Plan so long as such action has been done and
communicated by the Committee to Participants in advance of any Offering to
which such action applies.
ARTICLE IX
INTEREST
9.01 Payment of Interest. No interest will be paid or allowed on any
payroll deductions made pursuant to the Plan or credited to the account of or
distributed to any Participant.
ARTICLE X
STOCK
10.01 Participant's Interest in Option Stock. No Participant will have
any interest in shares of Common Stock covered by any option held by such
Participant unless and until (a) such option has been exercised as provided in
Section 7.01 hereof, (b) the Company shall have issued shares of Common Stock in
respect of the Participant and (c) the Participant's name shall have been
entered as a stockholder of record on the books of the Company. Thereupon, the
Participant shall have full voting, dividend and other ownership rights with
respect to such shares of Common Stock. No Participant will have any interest in
deemed fractional shares of Common Stock covered by any option held by such
Participant other than the right to receive an amount of cash equal to the Fair
Market Value thereof from the Company pursuant to Sections 8.01 and 8.03 hereof.
10.02 Registration of Stock. Shares of Common Stock purchased by a
Participant under the Plan will be recorded in the books and records of the
Company in the name of the Participant.
ARTICLE XI
ADMINISTRATION
11.01 Committee. The Plan shall be administered by the Committee. A
majority of the Committee shall constitute a quorum, and the action of a
majority of the members of the Committee present at any meeting at which a
quorum is present, or acts unanimously approved in writing, shall be the acts of
the Committee. The interpretation and construction by the Committee of any
provision of the Plan or any option granted hereunder shall be final. No member
of the Committee shall be liable for any action or determination made in good
faith with respect hereto or any option granted hereunder.
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11.02 Authority of Committee. The Committee may establish any policies
or procedures that in its discretion are necessary or appropriate for the
operation and administration of the Plan and may adopt rules for the
administration of the Plan. It is intended that the Committee will engage the
services of Plan Representatives and other plan administrators on such terms and
conditions as the Committee deems appropriate for the purposes of performing any
of its responsibilities and obligations hereunder (including, without
limitation, the distribution and collection of Participant notices and elections
under the Plan, the establishment of custodial accounts and the holding of
shares of Common Stock purchased by Participants upon the exercise of options
granted under the Plan), other than (i) the amendment and termination of the
Plan and (ii) any action required to by taken by it pursuant to Section 16 of
the Exchange Act.
ARTICLE XII
FOREIGN JURISDICTIONS
12.01 The Committee may adopt rules or procedures relating to the
operation and administration of the Plan to accommodate the specific
requirements of local laws and procedures. Without limiting the generality of
the foregoing sentence, the Committee is specifically authorized to adopt rules
and procedures regarding handling of payroll deductions, payment of interest,
conversion of local currency, payroll tax, withholding procedures and handling
of stock certificates which vary in accordance with the requirements of such
local law and procedures.
12.02 The Committee may also adopt Plan supplements applicable to
particular subsidiaries or locations, which supplements may (as determined by
the Committee) constitute provisions of this Plan applicable to such
subsidiaries or locations or one or more sub-plans not intended to comply with
Section 423 of the Code. The terms and conditions of any such sub-plan shall
supersede the provisions of this Plan to the extent determined by the Committee,
with the exception of Section 4.01, but unless otherwise so superseded, the
provisions of this Plan shall be deemed incorporated into any such sub-plan.
ARTICLE XIII
MISCELLANEOUS
13.01 Designation of Beneficiary. A Participant may file with the
Committee a written designation of a beneficiary who is to receive any shares of
Common Stock and/or cash under the Plan upon the Participant's death. Such
designation of beneficiary may be changed by the Participant at any time by
written notice to the Committee. Upon the death of a Participant and receipt by
the Company of proof of identity and existence at the Participant's death of a
beneficiary validly designated by the Participant under the Plan, and subject to
Article VIII hereof concerning withdrawal from the Plan, the Company shall
deliver such shares of Common Stock and/or cash to such beneficiary. In the
event of the
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death of a Participant lacking a beneficiary validly designated under the Plan
who is living at the time of such Participant's death, the Company shall deliver
such shares of Common Stock and/or cash to the executor or administrator of the
estate of the Participant, or if no such executor or administrator has been
appointed (to the knowledge of the Company), the Company may, in its discretion,
deliver such shares of Common Stock and/or cash to the spouse or to any one or
more dependents of the Participant, in each case without any further liability
of the Company whatsoever under or relating to the Plan. No beneficiary shall,
prior to the death of the Participant by whom he or she has been designated,
acquire any interest in the shares of Common Stock and/or cash credited to the
Participant under the Plan.
13.02 Use of Funds. All payroll deductions received or held by the
Company under the Plan may be used by the Company for any corporate purpose. The
Company shall not be obligated to segregate such payroll deductions.
13.03 Adjustment Upon Changes in Capitalization. In the event of a
Change in Capitalization, the maximum number and class of shares of Common Stock
or other stock or securities reserved for issuance under the Plan in the
aggregate and that a Participant may purchase pursuant to an Offering, the class
of shares of Common Stock or other stock or securities which the accumulated
payroll deductions in a Participant's account will purchase, and the Offering
Price therefor, shall be appropriately and equitably adjusted by the Committee.
13.04 Amendment and Termination. The Board shall have complete power
and authority to terminate or amend the Plan; provided, however, that the Board
shall not, without the approval of the stockholders of the Company, alter (i)
the aggregate number of shares of Common Stock which may be issued under the
Plan (except pursuant to Section 13.03 hereof), or (ii) the class of employees
eligible to receive options under the Plan; and provided, further, however, that
no termination, modification, or amendment of the Plan may, without the consent
of a Participant then having an option under the Plan to purchase shares of
Common Stock, adversely affect the rights of such Participant under such option,
except that the foregoing shall not prohibit the Company from terminating the
Plan at any time (including during an Offering) and applying the amounts
theretofore withheld from Participants to the purchase of shares of Common Stock
as if the termination date of the Plan were an Offering Termination Date. Any
cash balance remaining after the purchase of shares of Common Stock in such
final Offering shall be refunded (without interest) to such Participant as soon
as reasonably practicable.
13.05 Non-Exclusivity of the Plan. The adoption of the Plan by the
Board shall not be construed as amending, modifying or rescinding any previously
approved incentive arrangement or as creating any limitations on the power of
the Board to adopt such other incentive arrangements as it may deem desirable,
including, without limitation, the granting
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of stock options other than under the Plan, and such arrangements may be either
applicable generally or only in specific cases.
13.06 Limitation of Liability. As illustrative of the limitations of
liability of the Company, but not intended to be exhaustive thereof, nothing in
the Plan shall be construed to:
(a) give any person any right to be granted an option except
as specifically provided in the Plan;
(b) give any person any rights whatsoever with respect to
shares of Common Stock except as specifically provided in the Plan;
(c) limit in any way the right of the Company to terminate the
employment of any person at any time; or
(d) be evidence of any agreement or understanding, expressed
or implied, that the Company will employ any person at any particular rate of
compensation or for any particular period of time.
13.07 Regulations and Other Approvals; Governing Law.
(a) The Plan and the rights of all persons claiming hereunder
shall be construed and determined in accordance with the laws of the State of
Delaware.
(b) The obligation of the Company to sell or deliver shares of
Common Stock with respect to options granted under the Plan shall be subject to
all applicable laws, rules and regulations, including all applicable federal and
state securities laws, and the obtaining of all such approvals by governmental
agencies as may be deemed necessary or appropriate by the Committee.
(c) The Plan is intended to comply with Rule 16b-3 promulgated
under the Exchange Act, and the Committee shall interpret and administer the
provisions of the Plan in a manner consistent therewith. Any provisions
inconsistent with such Rule shall be inoperative and shall not affect the
validity of the Plan.
(d) The Board may make such changes to the Plan as may be
necessary or appropriate to comply with the rules and regulations of any
government authority.
(e) Each option is subject to the requirement that, if at any
time the Committee determines, in its discretion, that the listing, registration
or qualification of shares of Common Stock issuable pursuant to the Plan is
required by any securities exchange or under any state or federal law, or the
consent or approval of any governmental regulatory
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body is necessary or desirable as a condition of, or in connection with, the
grant of an option or the issuance of shares of Common Stock, no options shall
be granted or payment made or shares of Common Stock issued, in whole or in
part, unless listing, registration, qualification, consent or approval has been
effected or obtained free of any conditions not acceptable to the Committee.
(f) Notwithstanding anything contained in the Plan to the
contrary, in the event that the disposition of shares of Common Stock purchased
pursuant to the Plan is not covered by a then current registration statement
under the Securities Act, and is not otherwise exempt from such registration,
such shares shall be restricted against transfer to the extent required by the
Securities Act and Rule 144 or other regulations thereunder. The Committee may
require any individual receiving shares of Common Stock pursuant to the Plan, as
a condition precedent to receipt of such shares upon exercise of an Option, to
represent and warrant to the Company in writing that the shares of Common Stock
purchased by such individual are acquired without a view to any distribution
thereof and will not be sold or transferred other than pursuant to an effective
registration thereof under said Act or pursuant to an exemption applicable under
the Securities Act or the rules and regulations promulgated thereunder. The
certificates evidencing any of such shares shall be appropriately amended to
reflect their status as restricted securities as aforesaid.
(g) If a Participant makes a disposition, within the meaning
of Section 423(a) of the Code and regulations promulgated thereunder, of shares
of Common Stock issued to such Participant pursuant to the exercise of an option
within the two-year period commencing on the day after the date of the grant or
within the one-year period commencing on the day after the date of transfer of
shares of Common Stock to the Participant pursuant to such exercise, the
Participant shall, within ten (10) days of such disposition, notify the Company
thereof, by delivery of written notice to the Company at its principal executive
office.
13.08 Withholding. In connection with the exercise of an option (in
whole or in part) or at the time of disposition of some or all of the Common
Stock issued under the Plan, a Participant shall make adequate provision for any
federal, state or other tax withholding obligations, if any, which arise upon
such exercise or disposition. At any time, the Company may, but shall not be
obligated to, withhold from the Participant's Compensation an amount necessary
for the Company to satisfy any applicable withholding obligations, including any
withholding required to make available to the Company any tax deductions or
benefits attributable to the early disposition of the Common Stock.
13.09 Effective Date. The Plan shall become effective as of March 1,
2000, subject to approval by the holders of a majority of the shares of Common
Stock present and represented at any special or annual meeting of the
shareholders of the Company duly held
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within twelve (12) months after adoption of the Plan. If the Plan is not so
approved, the Plan shall not become effective.
13.10 Effect of Plan. The provisions of the Plan shall, in accordance
with its terms, be binding upon, and inure to the benefit of, all successors of
each Participant, including, without limitation, such Participant's estate and
the executors, administrators or trustees thereof, heirs and legatees, and any
receiver, trustee in bankruptcy or representative of creditors of such
Participant.
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APPENDIX A
DEFINITION OF "CHANGE IN CONTROL"
A "Change in Control" shall mean the occurrence, while the
Plan is in effect, of any of the following:
(a) The acquisition by any individual, entity or group (within
the meaning of Section 13(d) (3) or 14(d) (2) of the Exchange Act) (a "Person")
of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 20% or more of either (i) the then outstanding shares of common
stock of the Company (the "Outstanding Company Common Stock") or (ii) the
combined voting power of the then outstanding voting securities of the Company
entitled to vote generally in the election of directors (the "Outstanding
Company Voting Securities"); provided, however, that for purposes of this
subsection (a), the following acquisitions shall not constitute a Change in
Control: (i) any acquisition directly from the Company, (ii) any acquisition by
the Company, (iii) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Company or any corporation controlled by
the Company or (iv) any acquisition by any corporation pursuant to a transaction
which complies with clauses (i), (ii) and (iii) of subsection (c) below; or
(b) Individuals who, as of the date hereof, constitute the
Board (the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual becoming a
director subsequent to the date hereof whose election, or nomination for
election by the Company's stockholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board; or
(c) Consummation of a reorganization, merger or consolidation
or sale or other disposition of all or substantially all of the assets of the
Company (a "Business Combination"), in each case, unless, following such
Business Combination, (i) all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the Outstanding
Company Common Stock and Outstanding Company Voting Securities immediately prior
to such Business Combination beneficially own, directly or indirectly, more than
50% of, respectively, the then outstanding voting shares of common stock and the
combined voting power of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the corporation
resulting from such Business
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Combination (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 Business
Combination, of the Outstanding Company Common Stock and Outstanding Company
Voting Securities, as the case may be, (ii) no Person (excluding any corporation
resulting from such Business Combination or any employee benefit plan (or
related trust) of the Company or such corporation resulting from such Business
Combination) beneficially owns, directly or indirectly, 20% or more of,
respectively, the then outstanding shares of common stock of the corporation
resulting from such Business Combination or the combined voting power of the
then outstanding voting securities of such corporation except to the extent that
such ownership existed prior to the Business Combination and (iii) at least a
majority of the members of the board of directors of the corporation resulting
from such Business Combination were members of the Incumbent Board at the time
of the execution of the initial agreement, or of the action of the Board,
providing for such Business Combination; or
(d) Approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company.
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APPENDIX B
LIST OF PARTICIPATING SUBSIDIARY CORPORATIONS
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