<PAGE> 1
Registration No. 333-______
- -------------------------------------------------------------------------------
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 28, 1997.
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
ONEOK Inc. Key Employee Stock Plan
------------------
ONEOK, INC.
100 West Fifth Street, Tulsa, Oklahoma 74103
(Name of the issuer of the equity securities being offered pursuant
to the Plan and the address of its principal office)
OKLAHOMA 73-1520922
(State or other jurisdiction of (IRS Employer
Incorporation or organization) Identification No.)
J.D. NEAL DONALD A. KIHLE
Vice President, Chief Financial Gable Gotwals Mock Schwabe Kihle Gaberino
Officer and Treasurer 100 West Fifth Street
ONEOK, Inc. Suite 1000
100 West Fifth Street Tulsa, Oklahoma 74103
Tulsa, Oklahoma 74103 (918) 585-8141
(918) 588-7000
(Name, addresses, and telephone numbers of agents for service)
------------------
Appropriate date of commencement of proposed sale pursuant to the Plan: from
time to time after the effective date hereof
- -------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Proposed Proposed
Maximum Maximum
Offering Aggregate Amount of
Title of Securities Amount to be Price Offering Registration
to be Registered Registered(1) Per Unit (2) Price (3) Fee
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common stock,
$0.01 par value 970,671 $ 36.656 $ 35,580,916 $ 12,269
- -------------------------------------------------------------------------------------------------------------------
</TABLE>
Exhibits Index on Page 5.
<PAGE> 2
(1) Represents the estimated maximum amount of common stock of ONEOK, Inc.
(hereinafter referred to as "Common Stock") which could be acquired
under the ONEOK Inc. Key Employee Stock Plan (hereinafter referred to
as the "Plan") either directly from ONEOK, Inc. (hereinafter referred
to as the "Company"), or from purchases in the open market during the
years of operation of the Plan.
(2) Based on price of $36.656 per share of the Common Stock, the average
sales price of the Common Stock published in the Wall Street Journal
reports of the New York Stock Exchange Composite Transaction for
November 25, 1997.
(3) Estimated pursuant to Rule 457(c) solely for the purpose of calculating
the registration fee.
2
<PAGE> 3
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8 will
be sent or given to employees as specified in Rule 428(b)(1). These documents
(and the documents incorporated by reference pursuant to Item 3 of Part II of
this Registration Statement) taken together, constitute the prospectus for
purpose of Section 10(a) of the Securities Act of 1933, as amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3
INCORPORATION OF DOCUMENTS BY REFERENCE
The "Company", and the Plan hereby incorporate by reference in this Registration
Statement the following documents of the Company (SEC File No. 1-2572)
heretofore filed with the Securities and Exchange Commission:
(1) Annual Report on Form 10-K of ONEOK Inc. (Predecessor by
merger to the Company herein after referred to as "Old ONEOK"
for the year ended August 31, 1997.
(2) Form 8-K reporting the consummation of the merger of ONEOK
Inc. with and into WAI filed November 26, 1997.
(3) Old ONEOK's Proxy Statement dated August 6, 1997 in connection
with its Special Meeting of Shareholders held September 25,
1997.
(4) In addition, there is incorporated herein by reference all
documents filed subsequent to the date hereof, by the Company
and the Plan pursuant to Sections 13(a), 13(c), 14, or 15(d)
of the Securities Exchange Act of 1934, as amended, prior to
the filing of a post-effective amendment which indicates that
all securities have been sold or which deregisters all
securities then remaining unsold. Such documents are deemed to
be a part hereof from the date of filing of such documents.
ITEM 4
DESCRIPTION OF SECURITIES
The following is a description of the Company's Common Stock offered.
The holders of the Company's Common Stock are entitled to receive such dividends
as may be declared by the board of Directors out of funds legally available
therefor. Each outstanding share of Common Stock is entitled to full voting
rights for the election of directors and for all other purposes with one vote
for each share of Common Stock. In the event of any liquidation, dissolution, or
winding up of the Company, or any reduction of its capital resulting in any
distribution of its assets to its stockholders, The holders of Common Stock
shall be entitled to receive, pro rata, all the remaining assets of the Company
available for distribution to its stockholders. Each share of Common stock
includes an associated right, each right ("Right") entitling the holder to
purchase one one-hundreth of a share of Series C Participating Preferred Stock,
par value $0.01 per share of the Company pursuant to a Rights Agreement between
the Company and a designated rights agent (the "Rights Agreement"). The
designation of Rights (Exhibit 4(c) hereto) is incorporated herein by reference.
3
<PAGE> 4
ITEM 5
INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the securities which may be purchased under the Plan has been
passed upon by the firm of Gable Gotwals Mock Schwabe Kihle Gaberino, 100 West
Fifth Street, Suite 1000, Tulsa, Oklahoma 74103, counsel for the Company. The
firm of Gable Gotwals Mock Schwabe Kihle Gaberino, has reviewed the statements
made as to matters of law and legal conclusions under "Securities to be Offered"
and such statements are set forth in the documents which form a part of the
prospectus in reliance upon its authority as an expert.
ITEM 6
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Pursuant to Article VIII of the bylaws of ONEOK, Inc. upon authorization and
determination either (1) by the board of directors by a majority of a quorum is
not consisting of directors who were not parties to the action, suit, or
proceeding involved; (2) if such a quorum is not obtainable, or even if
obtainable and a quorum of disinterested directors so directs, by independent
counsel in a written opinion; or (3) by the stockholders, the Company is
obligated to indemnify any person who incurs liability by reason of the fact
that he is or was a director, officer, employee, or agent of the Company, or is
or was serving at its request as a director , officer, employee, or agent of
another corporation, partnership, joint venture, trust or other enterprise, or
as a member of any committee or similar body, if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interest of
the Company, and with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. However, in an action by
or in the right of the Company, no indemnification will be made if such person
shall be adjudged to be liable to the Company, unless such indemnification is
allowed by a court of competent jurisdiction.
Under insurance obtained by the Company, coverage of Company officers and
directors against liability for neglect, errors, omission, or breaches of duty
in their capacities as such is provided for both the Company, to the extent that
it is obligated to indemnify such officers and directors, and the officers and
directors themselves. Such coverage is provided in the amount of $75,000,000
with a retained limit by the Company of $250,000. The insurance companies are
obligated to pay covered losses in excess of the $250,000 retained limit, up to
the policies' limits of $75,000,000. Among the policies' exclusions are those
which exclude coverage for accounting for profits made within the meaning of
Section 16(b) of the Securities Act of 1934, claims based upon or attributable
to directors and officers gaining any personal profit or advantage to which such
individuals are not legally entitled, and for any claims brought about or
attributable to the dishonesty of an officer or director.
The registrant has been advised that, in the opinion of the Securities and
Exchange Commission, provisions providing for the indemnification by the
corporation of its officers, directors, and controlling persons against
liabilities imposed by the Securities Act of 1933 are against public policy as
expressed in said Act and are therefore unenforceable. It is recognized that the
above-summarized provisions of the registrant's bylaws and the applicable
Oklahoma General Corporation Law may be sufficiently broad to indemnify
officers, directors, and controlling persons of the registrant against
liabilities arising under said Act. Therefore, in the event that a claim of
indemnification against liability under said Act (other than the payment by the
registrant of expenses incurred or paid by a director, officer, or controlling
person of the registrant in the successful defense of any action, suit, or
proceeding) shall be asserted by an officer, director, or controlling person
under said provisions, the registrant will, unless in the opinion of its counsel
the question has already been settled by the controlling precedent, submit to a
court of appropriate jurisdiction the question of whether or not such
indemnification by it is against public policy as expressed in said Act and will
be governed by the final adjudication of such issue.
4
<PAGE> 5
ITEM 8
EXHIBITS
The following exhibits are attached hereto or incorporated by reference herein:
<TABLE>
<CAPTION>
Page Number or
Incorporation by
Reference to
----------------
<S> <C> <C>
(4)(a) Certificate of Incorporation
ONEOK, Inc. Exhibit (3.1) to Form
S-4 Registration
Statement No.
333-27467
(4)(b) Bylaws of ONEOK, Inc., as Amended Exhibit (3.2) to Form
S-4 Registration
Statement No.
333-27467
(4)(c) Certificate of Description, Exhibit A to Exhibit (3.4)
Preference of Rights of Series C To Form S-4 Registration
Participating Preferred Stock of Statement No. 333-27467
the Corporation
(5) Opinion of Gable Gotwals Mock Schwabe
Kihle Gaberino
(23)(a) Consent of Gable Gotwals Mock Schwabe
Kihle Gaberino (See Item 5)
(23)(b) Independent Auditors' Consent
(23)(c) Independent Auditors' Consent
(24) Powers of Attorney (Included on pages 8,
9, and 10)
(99) ONEOK, Inc. Key Employee Stock Plan 11 - 26
</TABLE>
5
<PAGE> 6
ITEM 9
UNDERTAKINGS
a. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration
statement:
(a) To include any prospectus required by Section 10
(a)(3) of the Securities Act of 1933;
(b) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the registration statement;
(c) To include any material information with respect to
the Plan of distribution not previously disclosed in
the registration statement or any material change to
such information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at the time of shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
b. The undersigned registrant hereby undertakes that, for purpose of
determining any liability under the Securities Act of 1933, each filing
of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed
to be a new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
c. The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus to each employee to whom the prospectus
is sent or given, the latest Annual Report to Shareholders unless such
employee otherwise has received a copy of such report, in which case
the registrant shall state in the prospectus that it will promptly
furnish, without charge, a copy of such report on written request of
the employee. If the last fiscal year of the registrant has ended
within 120 days prior to the use of the prospectus, the Annual Report
of the registrant of the preceding fiscal year may be delivered, but
within such 120-day period the Annual Report for the last fiscal year
will be furnished to each such employee.
The undersigned registrant hereby undertakes to transmit or cause to be
transmitted to all employees participating in the Plan who do not
otherwise receive such material as stockholders or the registrant, at
the time and in the manner such material is sent to its stockholders,
copies of all reports, proxy statements, and other communications
distributed to its stockholders generally.
d. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in the Act and is, therefore, unenforceable.
In
6
<PAGE> 7
the event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or paid
by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion
of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
7
<PAGE> 8
SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8, and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Tulsa and the State of Oklahoma, on the 26th day of
November, 1997.
ONEOK, Inc.
By: LARRY BRUMMETT
-----------------------------------
Larry Brummett, Chairman of the
Board and Chief Executive
Officer
8
<PAGE> 9
POWER OF ATTORNEY
Each person whose individual signature appears below hereby authorizes Larry
Brummett and J. D. Neal, or either of them, as attorney-in-fact with full power
of substitution, to execute in the name and on behalf of each person,
individually and in each capacity stated below, and to file any and all
amendments to this registration statement, including any and all post-effective
amendments and all instruments necessary or incidental in connection therewith.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the undersigned
certify that to the best of their knowledge and belief, the registrant meets all
the requirements for filing on Form S-8. This registration statement has been
signed below by the following persons in the capacities indicated in the City of
Tulsa and the State of Oklahoma, on this 26th day of November, 1997.
LARRY BRUMMETT J. D. NEAL
- ----------------------------------- -----------------------------------
Larry Brummett J. D. Neal
Chairman of the Board, Vice President,
Chief Executive Chief Financial Officer, and
Officer, and Director Treasurer
E. G. ANDERSON STEVEN L. KITCHEN
- ----------------------------------- -----------------------------------
E. G. Anderson Steven L. Kitchen
Director Director
W. M. BELL D. L. KYLE
- ----------------------------------- -----------------------------------
W. M. Bell D. L. Kyle
Director Director
D. R. CUMMINGS B. H. MACKIE
- ----------------------------------- -----------------------------------
D. R. Cummings B. H. Mackie
Director Director
W. L. FORD D. A. NEWSOM
- ----------------------------------- -----------------------------------
W. L. Ford D. A. Newsom
Director Director
HOWARD R. FRICKE G. D. PARKER
- ----------------------------------- -----------------------------------
Howard R. Fricke G. D. Parker
Director Director
J. M. GRAVES J. D. SCOTT
- ----------------------------------- -----------------------------------
J. M. Graves J. D. Scott
Director Director
S. J. JATRAS S. L. YOUNG
- ----------------------------------- -----------------------------------
S. J. Jatras S. L. Young
Director Director
9
<PAGE> 10
EXHIBIT INDEX
<TABLE>
<CAPTION>
PAGE NUMBER OR
EXHIBIT INCORPORATION BY
NUMBER DESCRIPTION REFERENCE TO
- ------ ----------- ----------------
<S> <C> <C>
(4)(a) Certificate of Incorporation
ONEOK, Inc. Exhibit (3.1) to Form
S-4 Registration
Statement No.
333-27467
(4)(b) Bylaws of ONEOK, Inc., as Amended Exhibit (3.2) to Form
S-4 Registration
Statement No.
333-27467
(4)(c) Certificate of Description, Exhibit A to Exhibit (3.4)
Preference of Rights of Series C To Form S-4 Registration
Participating Preferred Stock of Statement No. 333-27467
the Corporation
(5) Opinion of Gable Gotwals Mock Schwabe
Kihle Gaberino
(23)(a) Consent of Gable Gotwals Mock Schwabe
Kihle Gaberino (See Item 5)
(23)(b) Independent Auditors' Consent
(23)(c) Independent Auditors' Consent
(24) Powers of Attorney (Included on pages 8,
9, and 10)
(99) ONEOK, Inc. Key Employee Stock Plan 11 - 26
</TABLE>
<PAGE> 1
EXHIBIT 5
[GABLE GOTWALS MOCK SCHWABE KIHLE GABERINO LETTERHEAD]
November 26, 1997
ONEOK, Inc.
100 West Fifth Street
Tulsa, Oklahoma 74103
Re: S-8 Registration Statement Under the Securities
Act of 1933, Relating to the Shares of Common
Stock of ONEOK, Inc. in Relation to the
Key Employee Stock Plan.
Gentlemen:
We understand that ONEOK, Inc., an Oklahoma corporation (hereinafter
referred to as the "Company"), will file with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, a Form S-8
Registration Statement relating to the registration of shares of the Company's
Common Stock, $0.01 par value, (the "Shares") with respect to the ONEOK, Inc.
Key Employee Stock Plan (the "Plan").
We have examined (a) the above-mentioned Registration Statement which will
be filed with the Securities and Exchange Commission; (b) the Certificate of
Incorporation and Bylaws of the Company, as amended; (c) the ONEOK Inc. Key
Employee Stock Plan and the corporate actions taken by the Board of Directors
in connection with the Registration Statement and related matters; and (d) such
other corporate records, certificates of public officials and officers of the
Company and other documents as we have considered relevant to the matters
covered by this opinion.
In connection with the foregoing, as counsel for the Company, we wish to
advise you as follows:
1. The Company is a corporation validly organized and existing under the
laws of the State of Oklahoma and is duly qualified to do business in the State
of Oklahoma.
<PAGE> 2
ONEOK, Inc.
November 26, 1997
Page 2
2. The filing of the above-mentioned Registration Statement has been
duly authorized by the proper corporate action on the part of the Company.
3. Assuming the Shares are being issued in compliance with the terms and
conditions of the Plan, when the certificates for the Shares have been
executed by the proper officer of the Company, countersigned by the Transfer
Agent and registered by the Registrar thereof, the certificates for such Shares
will represent, and the Shares will constitute, duly authorized, legally
issued, fully paid, non-assessable, valid and legal shares of the Common Stock
of the Company.
We hereby consent to:
1. Being named in the Form S-8 Registration Statement and documents
constituting the prospectus which is being furnished, and in any amendments
thereto, as counsel for the Company, passing on legal matters in connection
with the issuance of the Common Stock under the Plan;
2. The making in the Form S-8 Registration Statement and documents
constituting the prospectus, and in any amendments thereto, of the statements
now appearing therein under the caption "interests of Named Experts and
Counsel," insofar as they are applicable to us; and
3. The filing of this opinion as an exhibit to the above-mentioned Form
S-8 Registration Statement.
Very truly yours,
GABLE GOTWALS MOCK SCHWABE KIHLE
GABERINO
By /s/ DONALD A. KIHLE
-----------------------------------
Donald A. Kihle
F:\SFM\LTRS\THRFTPLN.SLT
<PAGE> 1
EXHIBIT (23)(b)
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
ONEOK, Inc.
We consent to the incorporation by reference herein of our report on
the Consolidated Financial Statements of ONEOK, Inc. as of August 31, 1997 and
1996, and for each of the years in the three-year period ended August 31, 1997,
which report appears in the August 31, 1997, Annual Report on Form 10-K of
ONEOK, Inc. Our report refers to the adoption of Financial Accounting Standards
No. 121, Accounting for the Impairment of Long-lived Assets and Long-lived
Assets to be Disposed Of in 1996.
KPMG PEAT MARWICK LLP
Tulsa, Oklahoma
November 26, 1997
<PAGE> 1
EXHIBIT (23)(c)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement of our report for the Gas Business,
a business unit of Western Resources, Inc. dated February 4, 1997 included in
WAI, Inc.'s form S-4 Registration Statement as filed with the Securities and
Exchange Commission on August 6, 1997 and to all references to our Firm included
in this Registration Statement.
ARTHUR ANDERSEN LLP
Kansas City, Missouri
November 26, 1997
<PAGE> 1
EXHIBIT (99)
ONEOK INC.
KEY EMPLOYEE STOCK PLAN
1. PURPOSES.
The purposes of this Plan are (a) to provide competitive incentives that
will enable the Company to attract, retain, motivate, and reward Key
Employees, and (b) to give the Company's Key Employees an interest
parallel to the interests of the Company's shareholders generally.
2. DEFINITIONS.
Unless otherwise required by the context, the following terms, when used
in this Plan, shall have the meanings set forth in this Section 2.
(a) "Beneficiary" means a person or entity (including a trust or
estate), designated in writing by a Participant on such forms and in
accordance with such terms and conditions as the Committee may
prescribe, to whom the Participant's rights under the Plan shall
pass in the event of the death of the Participant.
(b) "Board" or "Board of Directors" means the Board of Directors of the
Company, as constituted from time to time.
(c) "Change in Control" means any of the following:
(i) any person (as such term is used in Sections 13(d) and
14(d)(2) of the Exchange Act), other than the Company, a
Subsidiary, an employee benefit plan of the Company or a
Subsidiary, or any person acting on behalf of the Company or a
Subsidiary in a distribution of stock to the public, becomes
the beneficial owner (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the
Company representing more than twenty percent of the combined
voting power of the Company's then outstanding securities;
(ii) shareholders of the Company approve (A) an agreement for the
sale or disposition of all or substantially all of the
Company's assets to an entity which is not a Subsidiary or
owned by shareholders of the Company in substantially the same
proportions as their ownership of Common Stock, (B) a plan of
complete liquidation, or (C) a consolidation or merger of the
Company in which the Company is not the continuing or
surviving corporation or pursuant to which shares of Common
Stock would be converted into cash, securities or other
property, other than a merger in which the holders of Common
Stock immediately prior to the merger will have substantially
the same proportionate
<PAGE> 2
ownership of common stock of the surviving corporation
immediately after the merger; or
(iii) the persons who were members of the Board of Directors
immediately before a tender or exchange offer by any person
other than the Company or a Subsidiary, or before a merger,
consolidation, or contested election, or before any
combination of such transactions, cease to constitute a
majority of the Board of Directors as a result of such
transaction or transactions.
(d) "Code" means the Internal Revenue Code of 1986, as amended and in
effect from time to time. References to a particular section of the
Code shall include references to any related Treasury Regulations
and to successor provisions.
(e) "Committee" means the Committee appointed by the Board of Directors
to administer the Plan pursuant to the provisions of section 10(a)
below.
(f) "Common Stock" means common stock, without par value, of the
Company.
(g) "Company" means ONEOK Inc., a Delaware corporation its successors
and assigns.
(h) "Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time.
(i) "Fair Market Value" on a particular date means the average of the
high and low sale prices of a share of Common Stock in consolidated
trading on the date in question as reported by The Wall Street
Journal or another reputable source designated by the Committee;
provided that if there were no sales on such date reported as
provided above, the respective prices on the most recent prior day
for which a sale was so reported. In the case of an Incentive Stock
Option, if the foregoing method of determining fair market value
should be inconsistent with section 422 of the Code, "Fair Market
Value" shall be determined by the Committee in a manner consistent
with such section of the Code and shall mean the value as so
determined.
(j) "General Counsel" means the General Counsel of the Company serving
from time to time.
(k) "Incentive Stock Option" means an option, including an Option as the
context may require, intended to qualify for the tax treatment
applicable to incentive stock options under section 422 of the Code.
(l) "Key Employee" means an employee of the Company or a Subsidiary,
including an officer or director who is such an employee, who the
Committee determines is in a position to contribute significantly to
the growth and profitability of, or to perform
<PAGE> 3
services of major importance to, the Company and its Subsidiaries.
(m) "Non-Statutory Stock Option" means an option, including an Option as
the context may require, which is not intended to qualify for the
tax treatment applicable to incentive stock options under section
422 of the Code.
(n) "Option" means an option granted under this Plan to purchase shares
of Common Stock. Options may be Incentive Stock Options or
Non-Statutory Stock Options.
(o) "Participant" means a Key Employee who has been granted a Stock
Incentive.
(p) "Performance Unit Award" means an amount of cash or shares of Common
Stock or a combination of each, that will be distributed in the
future if continued employment and/or other performance objectives
or contingencies specified by the Committee are attained. Such other
performance objectives may include, without limitation, corporate,
divisional or business unit financial or operating performance
measures and such other contingencies may include the Participant's
depositing with the Company, acquiring or retaining for stipulation
time periods specified amounts of Common Stock. The amount of the
award may but need not be determined by reference to the market
value of Common Stock.
(q) "Plan" means the ONEOK Inc. Key Employee Stock Plan set forth in
these pages, as amended from time to time.
(r) "Restricted Stock Award" means shares of Common Stock which are
issued or transferred to a Participant under Section 5 below and
which will become free of restrictions specified by the Committee if
continued employment and/or other performance objectives or
contingencies specified by the Committee are attained. Such other
performance objectives may include, without limitation, corporate,
divisional or business unit financial or operating performance
measures and such other contingencies may include the Participant's
depositing with the Company, acquiring or retaining for stipulated
time periods specified amounts of Common Stock.
(s) "SEC Rule 16b-3" means Rule 16b-3 of the Securities and Exchange
Commission promulgated under the Exchange Act, as such rule or any
successor rule may be in effect from time to time.
(t) "Section 16 Person" means a person subject to Section 16(b) of the
Exchange Act with respect to transactions involving equity
securities of the Company.
(u) "Stock Bonus Award" means an amount of cash or shares of Common
Stock which is distributed to a Participant or which the Committee
agrees to distribute in the future
<PAGE> 4
to a Participant in lieu of, or as a supplement to, any other
compensation that may have been earned by services rendered prior to
the date the distribution is made. The amount of the award may but
need not be determined by reference to the market value of Common
Stock. Performance Unit Awards and Restricted Stock Awards are
specific types of Stock Bonus Awards.
(v) "Stock Incentive" means an award granted under this Plan in one of
the forms provided for in Section 3.
(w) "Subsidiary" means a corporation or other form of business
association of which shares (or other ownership interest) having
more than 50 percent of the voting power are or in the future become
owned or controlled, directly or indirectly, by the Company;
provided, however, that in the case of an Incentive Stock Option,
the term "Subsidiary" shall mean a Subsidiary (as defined by the
preceding clause) which is also a "subsidiary corporation" as
defined in Section 424(f) of the Code.
3. GRANTS OF STOCK INCENTIVES
(a) Subject to the provisions of the Plan, the Committee may at any
time, or from time to time, grant Key Employees Stock Bonus Awards,
which may but need not be Performance Unit Awards or Restricted
Stock Awards, and/or Options, which may be Incentive Stock Options
or Non-Statutory Stock Options.
(b) After a Stock Incentive has been granted,
(i) the Committee may waive any term or condition thereof that
could have been excluded from such Stock Incentive when it was
granted, and
(ii) with the written consent of the affected Participant, may
amend any Stock Incentive after it has been granted to include
(or exclude) any provision which could have been included in
(or excluded from) such Stock Incentive when it was granted,
and no additional consideration need be received by the Company in
exchange for such waiver or amendment.
4. STOCK SUBJECT TO THE PLAN
(a) Subject to the provisions below of paragraph 4(c) and of Section 8,
the maximum number of shares of Common Stock which may be issued or
transferred pursuant to Stock Incentives is 1,000,000 shares of
Common Stock and the maximum number of shares of Common Stock with
respect to which Options or other Stock Incentives may be granted to
any employee during the period (specified in Section 9 below) in
<PAGE> 5
which Stock Incentives may be granted under the Plan is 250,000
shares of Common Stock.
(b) Such shares may be authorized but unissued shares of Common Stock,
shares of Common Stock held in treasury, whether acquired by the
Company specifically for use under this Plan or otherwise, or shares
issued or transferred to, or otherwise acquired by, a trust pursuant
to paragraph 11(d) below, as the Committee may from time to time
determine, provided, however, that any shares acquired or held by
the Company for the purposes of this Plan shall, unless and until
issued or transferred to a trust pursuant to paragraph 11(d) below
or to a Participant in accordance with the terms and conditions of a
Stock Incentive, be and at all times remain authorized but unissued
shares or treasury shares (as the case may be), irrespective of
whether such shares are entered in a special account for purposes of
this Plan, and shall be available for any corporate purpose.
(c) If any shares of Common Stock subject to a Stock Incentive shall not
be issued or transferred to a Participant and shall cease to be
issuable or transferable to a Participant because of the
termination, expiration or cancellation, in whole or in part, of
such Stock Incentive or for any other reason, or if any such shares
shall, after issuance or transfer, be reacquired by the Company
because of the Participant's failure to comply with the terms and
conditions of a Stock Incentive or for any other reason, the shares
not so issued or transferred, or the shares so reacquired by the
Company, as the case may be, shall no longer be charged against the
limitations provided for in paragraph (a) above of this Section 4
and may again be made subject to Stock Incentives; provided that the
number of shares not so issued or transferred and any such
reacquired shares may again be made subject to Stock Incentives for
Section 16 Persons only if the General Counsel determines that doing
so would not jeopardize any exemption from Section 16 of the
Exchange Act (including without limitation SEC Rule 16b-3) for which
the Company intends Section 16 Persons to qualify. If a Participant
pays the purchase price of shares subject to an Option by
surrendering shares of Common Stock in accordance with the
provisions of paragraph 6(b)(iv) below, the number of shares
surrendered shall be added back to the number of shares available
for issuance or transfer under the Plan so that the maximum number
of shares that may be issued or transferred under the Plan pursuant
to paragraph 4(a) above shall have been charged only for the net
number of shares issued or transferred pursuant to the Option
exercise.
5. STOCK BONUS AWARDS, PERFORMANCE UNIT AWARDS AND RESTRICTED STOCK AWARDS
Stock Bonus Awards, Performance Unit Awards and Restricted Stock Awards
shall be subject to the following provisions:
(a) A Key Employee may be granted a Stock Bonus Awards, Performance Unit
Award
<PAGE> 6
or Restricted Stock Award whether or not he or she is eligible to
receive similar or dissimilar incentive compensation under any other
plan or arrangement of the Company.
(b) Shares of Common Stock subject to a Stock Bonus Award may be issued
or transferred to a Participant at the time such Award is granted,
or at any time subsequent thereto, or in installments from time to
time, and subject to such terms and conditions, as the Committee
shall determine. In the event that any such issuance or transfer
shall not be made to the Participant at the time such Award is
granted, the Committee may but need not provide for payment to such
Participant, either in cash or shares of Common Stock, from time to
time or at the time or times such shares shall be issued or
transferred to such Participant, of amounts not exceeding the
dividends which would have been payable to such Participant in
respect of such shares (as adjusted under Section 8) if such shares
had been issued or transferred to such Participant at the time such
Award was granted.
(c) Any Stock Bonus Award, Performance Unit Award or Restricted Stock
Award may, in the discretion of the Committee, be settled in cash,
on each date on which shares would otherwise have been delivered or
become unrestricted, in an amount equal to the Fair Market Value on
such date of the shares which would otherwise have been delivered or
become unrestricted; and the number of shares for which such cash
payment is made shall be added back to the maximum number of shares
available for use under the Plan, provided that the number of shares
for which such cash payment is made may be made subject to Stock
Incentives for Section 16 Persons only if the General Counsel
determines that doing so would not jeopardize any exemption from
Section 16 of the Exchange Act (including without limitation SEC
Rule 16b-3) for which the Company intends Section 16 Persons to
qualify.
(d) Stock Bonus Awards, Performance Unit Awards and Restricted Stock
Awards shall be subject to such terms and conditions, including,
without limitation, restrictions on the sale or other disposition of
the shares issued or transferred pursuant to such Award, and
conditions calling for forfeiture of the Award or the shares issued
or transferred pursuant thereto in designated circumstances, as the
Committee shall determine; provided however, that upon the issuance
or transfer of shares to a Participant pursuant to any such Award,
the recipient shall, with respect to such shares, be and become a
shareholder of the Company fully entitled to receive dividends, to
vote and to exercise all other rights of a shareholder except to the
extent otherwise provided in the Award. All or any portion of a
Stock Bonus Award may but need not be made in the form of a
Performance Unit Award or a Restricted Stock Award.
(e) Each Stock Bonus Award, Performance unit Award and Restricted Stock
Award shall be evidenced by a written instrument in such form as the
Committee shall determine,
<PAGE> 7
signed by an officer of the Company duly authorized to do so,
provided that such instrument is consistent with this Plan and
incorporates it by reference.
6. OPTIONS.
Options shall be subject to the following provisions:
(a) Subject to the provisions of Section 8, the purchase price per share
shall be, in the case of an Incentive Stock Option, not less than
100 percent of the Fair Market Value of a share of Common Stock on
the date the Incentive Stock Option is granted (or in the case of
any optionee who, at the time such Incentive Stock Option is
granted, owns stock possessing more than 10 percent of the total
combined voting power of all classes of stock of his or her employer
corporation or of its parent or subsidiary corporation, not less
than 110 percent of the Fair Market Value of a share of Common Stock
on the date the Incentive Stock Option is granted) and, in the case
of a Non-Statutory Stock Option, not less than the par value (if
any) of a share of Common Stock on the date the Non-Statutory Stock
Option is granted. A Non- Statutory Stock Option may (but need not)
entitle the Participant to purchase shares of Common Stock at any
fixed discount specified by the Committee from Fair Market Value on
the date of purchase. Subject to the foregoing limitations, the
purchase price per share may, if the Committee so provides at the
time of grant of an Option, be indexed to the increase or decrease
in an index specified by the Committee.
(b) The purchase price of shares subject to an Option may be paid in
whole or in part (i) in cash, (ii) by bank-certified, cashier's or
personal check subject to collection, (iii) if so provided in the
Option and subject to such terms and conditions as the Committee may
impose, by delivering to the Company a properly executed exercise
notice together with a copy of irrevocable instructions to a
stockbroker to sell immediately some or all of the shares acquired
by exercise of the Option and to deliver promptly to the Company an
amount of sale proceeds (or, in lieu of or pending a sale, loan
proceeds) sufficient to pay the purchase price, or (iv) if so
provided in the Option and subject to such terms and conditions as
are specified in the Option, in shares of Common Stock or other
property surrendered to the Company. Property for purposes of this
paragraph shall include an obligation of the Company unless
prohibited by applicable law. Shares of Common Stock thus
surrendered shall be valued at their Fair Market Value on the date
of exercise. Any such other property thus surrendered shall be
valued at its fair market value on any reasonable basis established
or approved by the Committee. If so provided in the Option and
subject to such terms and conditions as are specified in the Option,
in lieu of the foregoing methods of payment, any portion of the
purchase price of the shares to be issued or transferred may be paid
by a promissory note secured by pledge of the purchased shares in
such form and containing such provisions (which may but need not
provide for interest and for payment of the note at the election of
the Participant in cash or in
<PAGE> 8
shares of Common Stock or other property surrendered to the Company)
as the Committee may approve; provided that (A) if the Committee
permits any such note to be paid by surrender of shares of Common
Stock, such shares shall be valued at their Fair Market Value on the
date of such surrender, and (B) if the Committee permits any such
note to be paid by surrender of other property, such other property
shall be valued at its fair market value on any reasonable basis
established or approved by the Committee, and (C) in the case of an
Incentive Stock Option, any such note shall bear interest at the
minimum rate required to avoid imputation of interest under federal
income tax laws applicable at the time of exercise and (D) any such
note shall mature in ten years or such lesser period as may be
specified by the Committee.
(c) Options may be granted for such lawful consideration, including
money or other property, tangible or intangible, or labor or
services received or to be received by the Company, as the Committee
may determine when the Option is granted. Property for purposes of
the preceding sentence shall include an obligation of the Company
unless prohibited by applicable law. Subject to the foregoing and
the other provisions of this Section 6, each Option may be
exercisable in full at the time of grant or may become exercisable
in one or more installments, at such time or times and subject to
satisfaction of such terms and conditions as the Committee may
determine. The Committee may at any time accelerate the date on
which an Option becomes exercisable, and no additional consideration
need be received by the Company in exchange for such acceleration.
Unless otherwise provided in the Option, an Option, to the extent it
becomes exercisable, may be exercised at any time in whole or in
part until the expiration or termination of the Option.
(d) Each Option shall be exercisable during the life of the optionee
only by him or her or his or her guardian or legal representative,
and after the death only by his or her Beneficiary or, absent a
Beneficiary, by his or her estate or by a person who acquired the
right to exercise the Option by will or the laws of decent and
distribution; provided that an Option of a Section 16 Person and any
Incentive Stock Option may be exercisable after death by a
Beneficiary only if such exercise would be, in the opinion of the
General Counsel, permissible under and consistent with SEC Rule
16b-3 or Section 422 of the Code, as the case may be. Each Option
shall expire at such time or times as the Committee may determine,
provided that notwithstanding any other provision of this Plan, (i)
no Option shall be exercisable after the tenth anniversary of the
date the Option was granted, and (ii) no Incentive Stock Option
which is granted to any optionee who, at the time such Option is
granted, owns stock possessing more than 10 percent of the total
combined voting power of all classes of stock of his or her employer
corporation or of its parent or subsidiary corporation, shall be
exercisable after the expiration of five (5) years from the date
such Option is granted. If an Option is granted for a term of less
than ten years, the Committee may, at any time prior to the
expiration of the Option, extend its term for a period ending not
later than on the tenth anniversary of the date the Option was
granted, and
<PAGE> 9
no additional consideration need be received by the Company in
exchange for such extension. The Committee may but need not provide
for an Option to be exercisable after termination of employment
until its fixed expiration date (or until an earlier date or
specified event occurs).
(e) An Option may, but need not, be an Incentive Stock Option. All
shares of Common Stock which may be made subject to Stock Incentives
under this Plan may be made subject to Incentive Stock Options;
provided that the aggregate Fair Market Value (determined as of the
time the Option is granted) of the stock with respect to which
Incentive Stock Options may be exercisable for the first time by any
Key Employee during any calendar year (under all plans, including
this Plan, of his or her employer corporation and its parent and
subsidiary corporations) shall not exceed $100,000 or such other
amount as may apply under the Code.
(f) Each Option shall be evidenced by a written instrument, signed by an
officer of the Company duly authorized to do so, which shall contain
such terms and conditions, and shall be in such form, as the
Committee shall determine, provided the instrument is consistent
with this Plan and incorporates it by reference. An Option, if so
approved by the Committee, may include terms, conditions,
restrictions and limitations in addition to those provided for in
this Plan including, without limitation, terms and conditions
providing for the transfer or issuance of shares, on exercise of an
Option, which may be non-transferable and forfeitable to the Company
in designated circumstances.
(g) The Committee may specify, at the time of grant of an Incentive
Stock Option or, with respect to a No-Statutory Stock Option, at or
after the time of grant, that a Participant shall be granted a
Non-Statutory Stock Option (a "Restored Option") if and when (i)
such Participant exercise all or part of an Option, including a
previously granted Restored Option, (an "Original Option") by
surrendering shares of Common Stock already owned by him or her in
full or partial payment of the Option price under such Original
Option and/or (ii) shares of Common Stock are surrendered or
withheld to satisfy tax obligations incident to the exercise of such
Original Option. All Restored Options shall be subject to the
availability of shares of Common Stock under the Plan at the time of
such exercise. A Restored Option shall cover a number of shares of
Common Stock not greater than the number of shares of Common Stock
surrendered in payment of the option price under such Original
Option and/or used to satisfy any tax obligation incident to the
exercise of such Original Option. Each Restored Option shall have an
option price equal to the Fair Market Value of the Common Stock on
the date of grant of the Restored Option and shall expire on the
stated expiration date of the Original Option. The date of grant of
a Restored Option shall be the date on which the exercise of the
Original Option or a previously granted Restored Option resulted in
the grant of such Restored Option. A Restored Option shall be
exercisable at any time and from time to time from or after the date
of grant
<PAGE> 10
of the Restored Option (or as the Committee in its sole discretion
shall otherwise specify in the written instrument evidencing the
Restored Option). The written instrument evidencing a Restored
Option shall contain such other terms and conditions, which may
include a restriction on the transferability of the Common Stock
received upon the exercise of the Original Option or Restored
Option, as the Committee in its sole discretion may deem desirable.
(h) No Participant shall make any elective contribution or employee
contribution to the Plan (within the meaning of Treasury Regulation
Section 1.401(k)-1(d)(2)(iv)(B)(4) during the balance of the
calendar year after the Participant's receipt of a hardship
distribution from a plan of the Company or a related party within
the provisions of Code Sections 414(b), (c), (m) or (o) containing a
cash or deferred arrangement under Section 401(k) of the Code, or
during the following calendar year. The preceding sentence shall not
apply if and to the extend that the General Counsel determines it is
not necessary to qualify any such plan as a cash or deferred
arrangement under Section 401(k) of the Code.
(i) No Option shall be exercisable unless and until the Company (i)
obtains the approval of all regulatory bodies whose approval the
General Counsel may deem necessary or desirable, and (ii) complies
with all legal requirements deemed applicable by the General
Counsel.
(j) An Option shall be considered exercised if and when written notice,
signed by the person exercising the Option and stating the number of
shares with respect to which the Option is being exercised, is
received by the Secretary on a properly completed form approved for
this purpose by the Committee, accompanied by full payment of the
Option exercise price in one or more of the forms authorized by the
Committee and described in Section 6(b) above for the number of
shares to be purchased. No Option may at any time be exercised with
respect to a fractional share.
7. CERTAIN CHANGE IN CONTROL, TERMINATION OF EMPLOYMENT AND DISABILITY
PROVISIONS.
Notwithstanding any provision of the Plan to the contrary, any Stock
Incentive which is outstanding but not yet exercisable, vested or payable
at the time of a Change in Control shall become exercisable, vested and
payable at that time; provided that if such Change in Control occurs less
than six months after the date on which such Stock Incentive was granted
and if the consideration for which such Stock Incentive was granted
consisted in whole or in part of future services, then such Stock
Incentive shall become exercisable, vested and payable at the time of such
Change in Control only if the Participant agrees in writing (if requested
to do so by the Committee in writing) to remain in the employe of the
Company or a Subsidiary at least through the date which is six months
after the date such Stock Incentive was granted with substantially the
same title, duties, authority, reporting relationships and compensation as
on the day immediately preceding the Change
<PAGE> 11
in Control. Any Option affected by the preceding sentence shall remain
exercisable until it expires or terminates pursuant to its terms and
conditions. Subject to the foregoing provisions of this Section 7, the
Committee may at any time, and subject to such terms and conditions as it
may impose:
(a) authorize the holder of an Option to exercise the Option following
the termination of the Participant's employment with the Company and
its Subsidiaries, or following the Participant disability, whether
or not the Option would otherwise be exercisable following such
event, provided that in no event may an Option be exercised after
the expiration of its term;
(b) grant Options which become exercisable only in the event of a Change
in Control;
(c) authorize a Stock Bonus Award, Performance Unit Award or Restricted
Stock Award to become non-forfeitable, fully earned and payable upon
or following (i) the termination of the Participant's employment
with the Company and its Subsidiaries, or (ii) the Participant's
disability, whether or not the Award would otherwise become
non-forfeitable, fully earned and payable upon or following such
event;
(d) grant Stock Bonus Awards, Performance Unit Awards and Restricted
Stock Awards which become non-forfeitable, fully earned and payable
only in the event of a Change in Control; and
(e) provide in advance or at the time of Change in Control for cash to
be paid in settlement of any Option, Stock Bonus Award, Performance
Unit Award or Restricted Stock Award in the event of a Change in
Control, either at the election of the Participant or at the
election of the Committee.
8. ADJUSTMENT PROVISIONS.
In the event that any recapitalization, or reclassification, split-up or
consolidation of shares of Common Stock shall be effected, or the
outstanding shares of Common Stock shall be, in connection with a merger
or consolidation of the Company or a sale by the Company of all or a part
of its assets, exchanged for a different number or class of shares of
stock or other securities or property of the Company or any other entity
or person, or a record date for determination of holders of Common Stock
entitled to receive a dividend or other distribution payable in Common
Stock or other property (other than normal cash dividends) shall occur,
(a) the number and class of shares or other securities or property that
may be issued or transferred pursuant to Stock Incentives thereafter
granted or that may be optioned or awarded under the Plan to any
Participant, (b) the number and class of shares or other securities or
property that may be issued or transferred under outstanding Stock
Incentives, (c) the purchase price to be paid per share under outstanding
and future Stock Incentives, and (d) the price to be paid per share by the
Company or a
<PAGE> 12
Subsidiary for shares or other securities or property issued or
transferred pursuant to Stock Incentives which are subject to a right of
the Company or a Subsidiary to reacquire such shares or other securities
or property, shall in each case be equitably adjusted; provided that with
respect to Incentive Stock Options any such adjustments shall comply with
Sections 422 and 424 of the Code.
9. EFFECTIVE DATE AND DURATION OF PLAN.
The Plan shall be effective when it is approved by the Board of Directors,
provided that the shareholders of the Company thereafter approve it within
one year of that date. If the Plan is not so approved by shareholders, the
Plan (and any Stock Incentive granted thereunder) shall be null, void and
of no force or effect. If so approved, the Plan shall remain in effect,
and Stock Incentives may be granted, until Stock Incentives have been
granted with respect to all shares authorized to be issued or transferred
hereunder or until the Plan is sooner terminated by the Board of
Directors, and shall continue in effect thereafter with respect to any
Stock Incentives outstanding at that time. In no event shall an Incentive
Stock Option be granted under the Plan more than ten (10) years from the
date the Plan is adopted by the Board, or the date the Plan is approved by
the shareholders of the Company, whichever is earlier.
10. ADMINISTRATION.
(a) The Plan shall be administered by a committee of the Board
consisting of two or more directors appointed from time to time by
the Board. No person shall be appointed to or shall serve as a
member of such committee unless at the time of such appointment and
service he or she shall be a "Non-Employee Director," as defined in
SEC Rule 16b-3. Unless the Board determines otherwise, the Committee
shall be comprised solely of "outside directors" within the meaning
of Section 162(m)(4)(C)(i) of the Code.
(b) The Committee may establish such rules and regulations, not
inconsistent with the provisions of the Plan, as it may deem
necessary for the proper administration of the Plan, and may amend
or revoke any rule or regulation so established. The Committee
shall, subject to the provisions of the Plan, have full power to
interpret, administer and construe the Plan and any instruments
issued under the Plan and full authority to make all determinations
and decisions thereunder including without limitation the authority
to (i) select the Participants in the Plan, (ii) determine when
Stock Incentives shall be granted, (iii) determine the number of
shares to be made subject to each Stock Incentive, (iv) determine
the type of Stock Incentive to grant, and (v) determine the terms
and conditions of each Stock Incentive, including the exercise
price, in the case of an Option, and (vi) approve any transaction
involving a Stock Incentive for a Section 16 Person (other than a
"Discretionary Transaction" as defined in SEC Rule 16b-3) so as to
exempt such transaction under SEC Rule 16b-3;
<PAGE> 13
provided, that any transaction under the Plan involving a Section 16
Person also may be approved by the Board of Directors, or may be
approved or ratified by the stockholders of the Company, in the
manner that exempts such transaction under SEC Rule 16b-3. The
interpretation by the Committee of the terms and provisions of the
Plan and any instrument issued thereunder, and its administration
thereof, and all action taken by the Committee, shall be final,
binding, and conclusive on the Company, its stockholders,
Subsidiaries, all Participants and employees, and upon their
respective Beneficiaries, successors and assigns, and upon all other
persons claiming under or through any of them.
(c) Members of the Board of Directors and members of the Committee
acting under this Plan shall be fully protected in relying in good
faith upon the advice of counsel and shall incur no liability except
for gross or willful misconduct in the performance of their duties.
11. GENERAL PROVISIONS.
(a) Any provision of the Plan to the contrary notwithstanding, any Stock
Incentive issued under the Plan, including without limitation any
Option, shall not be transferable by the Participant other than by
will or the laws of descent and distribution or to a Beneficiary
designated by the Participant, unless the instrument evidencing the
Stock Incentive expressly so provides (or is amended to so provide);
and any purported transfer of an Incentive Stock Option to a
Beneficiary, shall be effective only if such transfer is, in the
opinion of the General Counsel, permissible under and consistent
with SEC Rule 16b-3 or Section 422 of the Code, as the case may be.
Notwithstanding the foregoing, a Participant may transfer any Stock
Incentive granted under this Plan, other than an Incentive Stock
Option, to members of his or her immediate family (defined as his or
her children, grandchildren and spouse) or to one or more trusts for
the benefit of such family members or partnerships in which such
family members are the only partners if (and only if) the instrument
evidencing such Stock Incentive expressly so provides (or is amended
to so provide) and the Participant does not receive any
consideration for the transfer; provided that any such transferred
Stock Incentive shall continue to be subject to the same terms and
conditions that were applicable to such Stock Incentive immediately
prior to its transfer (except that such transferred Stock Incentive
shall not be further transferable by the transferee inter vivos) and
provided, further, that the foregoing provisions of this sentence
shall apply to Section 16 Persons only if the General Counsel
determines that doing so would not jeopardize any exemption from
Section 16 of the Exchange Act (including without limitation
SEC Rule 16b-3) for which the Company intends Section 16 Persons to
qualify.
(b) Nothing in this Plan or in any instrument executed pursuant hereto
shall confer upon any person any right to continue in the employment
of the Company or a Subsidiary,
<PAGE> 14
or shall affect the right of the Company or a Subsidiary to
terminate the employment of any person at any time with or without
cause.
(c) No shares of Common Stock shall be issued or transferred pursuant to
a Stock Incentive unless and until all legal requirements applicable
to the issuance or transfer of such shares have, in the opinion of
the General Counsel, been satisfied. Any such issuance or transfer
shall be contingent upon the person acquiring the shares giving the
Company any assurances the General Counsel may deem necessary or
desirable to assure compliance with all applicable legal
requirements.
(d) No person (individually or as a member of a group) and no
Beneficiary or other person claiming under or through him, shall
have any right, title or interest in or to any shares of Common
Stock (i) issued or transferred to, or acquired by, a trust, (ii)
allocated, or (iii) reserved for the purposes of this Plan, or
subject to any Stock Incentive except as to such shares of Common
Stock, if any, as shall have been issued or transferred to him. The
Committee may (but need not) provide at any time or from time to
time (including without limitation upon or in contemplation of a
Change in Control) for a number of shares of Common Stock, equal to
the number of such shares subject to Stock Incentives then
outstanding, to be issued or transferred to, or acquired by, a trust
(including but not limited to a grantor trust) for the purpose of
satisfying the Company's obligations under such Stock Incentives,
and, unless prohibited by applicable law, such shares held in trust
shall be considered authorized and issued shares with full dividend
and voting rights, notwithstanding that the Stock Incentives to
which such shares relate shall not have been exercised or may not be
exercisable or vested at that time.
(e) The Company and its Subsidiaries may make such provisions as they
may deem appropriate for the withholding of any taxes which they
determine they are required to withhold in connection with any Stock
Incentive. Without limiting the foregoing, the Committee may,
subject to such terms and conditions as it may impose, permit or
require any withholding tax obligation arising in connection with
the grant, exercise, vesting, distribution or payment of any Stock
Incentive to be satisfied in whole or in part, with or without the
consent of the Participant, by having the Company withhold all or
any part of the shares of Common Stock that vest or would otherwise
be distributed at such time. Any shares so withheld shall be valued
at their Fair Market Value on the date of such withholding.
(f) Nothing in this Plan is intended to be a substitute for, or shall
preclude or limit the establishment or continuation of, any other
plan, practice or arrangement for the payment of compensation or
fringe benefits to directors, officers or employees generally, or to
any class or group of such persons, which the Company or any
Subsidiary now has or may hereafter lawfully put into effect,
including, without limitation, any incentive compensation,
retirement, pension, group insurance, stock
<PAGE> 15
purchase, stock bonus or stock option plan.
(g) Any provision of the Plan to the contrary notwithstanding, except to
the extent that the Committee determines otherwise, (i) transactions
by and with respect to Section 16 Persons under the Plan are
intended to qualify for any applicable exemptions provided by SEC
Rule 16b-3, and (ii) transactions with respect to persons whose
remuneration would not be deductible by the Company but for
compliance with the provisions of Code Section 162(m)(4)(C) are
intended to comply with the provisions of Code Section 162(m)(4)(C).
The Plan is also intended to give the Committee the authority to
award Stock Incentives that qualify as performance-based
compensation under Code Section 162(m)(4)(C) as well as Stock
Incentives that do not so qualify. Every provision of the Plan shall
be administered, interpreted and constructed to carry out the
foregoing intentions and any provision that cannot be so
administered, interpreted and construed shall to that extent be
disregarded.
(h) By accepting any benefits under the Plan, each Participant, and each
person claiming under or through him, shall be conclusively deemed
to have indicated his or her acceptance and ratification of, and
consent to, all provisions of the Plan and any action or decision
under the Plan by the Company, its agents and employees, and the
Board of Directors and the Committee.
(i) The validity, construction, interpretation and administration of the
Plan and of any determinations or decisions made thereunder, and the
rights of all persons having or claiming to have any interest
therein or thereunder, shall be governed by, and determined
exclusively in accordance with, the laws of the State of Delaware,
but without giving effect to the principles of conflicts of laws
thereof. Without limiting the generality of the foregoing, the
period within which any action arising under or in connection with
the Plan must be commenced, shall be governed by the laws of the
State of Delaware, without giving effect to the principles of
conflicts of laws thereof, irrespective of the place where the act
or omission complained of took place and of the residence of any
party to such action and irrespective of the place where the action
may be brought.
(j) The use of the masculine gender shall also include within its
meaning the feminine. The use of the singular shall include within
its meaning the plural and vice versa.
12. AMENDMENT AND TERMINATION.
The Plan may be amended by the Board of Directors, without shareholder
approval, at any time and in any respect, unless shareholder approval of
the amendment in question is required under Delaware law, the Code
(including without limitation Code Section 422 and Proposed Treasury
Regulation Section 1.422A9(b)(iv) thereunder), any applicable
<PAGE> 16
exemption from Section 16 of the Exchange Act (including without
limitation SEC Rule 16b-3) for which the Company intends Section 16
Persons to qualify, any national securities exchange or system on which
the Stock is then listed or reported, by any regulatory body having
jurisdiction with respect to the Plan, or under any other applicable laws,
rules or regulations. The Plan may also be terminated at any time by the
Board of Directors. No amendment or termination of this Plan shall
adversely affect any Stock Incentive granted prior to the date of such
amendment or termination without written consent of the Participant.
