As filed with the Securities and Exchange Commission on January 11, 1996.
Registration No. 33-____________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________________
Wyle Electronics
(Exact name of registrant as specified in its charter)
___________________
California 95-1779998
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
15370 Barranca Parkway, Irvine, California 92718
(Address of principal executive offices)
Wyle Electronics 1995 Stock Incentive Plan
(Full title of the plan)
Stephen D. Natcher, Esq.
Senior Vice President - Administration, General Counsel and Secretary
15370 Barranca Parkway, Irvine, California 92718
(Name and address of agent for service)
___________________
Telephone number, including area code, of agent for service: (714) 753-9953
___________________
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Proposed Proposed
maximum maximum
Title of Amount offering aggregate Amount of
securities to be price offering registration
to be registered registered per unit price fee
- -----------------------------------------------------------------------------
Common Stock, 500,000<F1>,<F2> $33.5625<F3> $16,781,250.00<F3> $5,787.00<F3>
without par shares
value
- -----------------------------------------------------------------------------
<FN>
<F1> This Registration Statement covers, in addition to the number
of shares of Common Stock stated above, options to purchase
the shares of Common Stock covered by the Prospectus and,
pursuant to Rule 416, an additional indeterminate number of
shares which by reason of certain events specified in the Plan
may become subject to the Plan.
<F2> Each share is accompanied by a common share purchase right
pursuant to the Registrant's Amended and Restated Rights
Agreement, dated February 23, 1995, with Chemical Bank, as
Rights Agent.
<F3> Pursuant to Rule 457(h), the maximum offering price, per
share and in the aggregate, and the registration fee were
calculated based upon the average of the high and low prices
of the Common Stock on January 5, 1996, as reported on the
New York Stock Exchange and published in The Western Edition
of The Wall Street Journal.
</FN>
=============================================================================
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in
Part I of Form S-8 (plan information and registrant information)
will be sent or given to optionees as specified by Rule 428(b)(1)
of the Securities Act of 1933, as amended (the "Act"). Such
documents need not be filed with the Securities and Exchange
Commission either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424 of
the Act. These documents, which include the statement of
availability required by Item 2 of Form S-8, and the documents
incorporated by reference in this Registration Statement pursuant
to Item 3 of Form S-8 (Part II hereof), taken together,
constitute a prospectus that meets the requirements of
Section 10(a) of the Act.
<PAGE>
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents of Wyle Electronics (the
"Company") filed with the Securities and Exchange Commission are
incorporated herein by reference:
(a) Annual Report on Form 10-K for the Company's fiscal
year ended December 31, 1994;
(b) Quarterly Reports on Form 10-Q for the Company's
quarterly periods ended March 31, 1995, June 30,
1995, and September 30, 1995; and
(c) The description of the Company's Common Stock
contained in its Registration Statement on
Form 8-A filed on October 27, 1989, and any
amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities
and Exchange Act of 1934, as amended (the "Exchange Act"), prior
to the filing of a post-effective amendment which indicates that
all securities offered hereby have been sold or which deregisters
all securities then remaining unsold shall be deemed to be
incorporated by reference into the prospectus and to be a part
hereof from the date of filing of such documents. Any statement
contained herein or in a document, all or a portion of which is
incorporated or deemed to be incorporated by reference herein,
shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained
herein or in any other subsequently filed document which also is
or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or amended,
to constitute a part of this Registration Statement.
Item 4. Description of Securities
The Company's Common Stock, without par value, (the
"Common Stock") is registered pursuant to Section 12 of the
Exchange Act, and, therefore, the description of securities is
omitted.
Item 5. Interests of Named Experts and Counsel
The validity of the original issuance of the Common
Stock registered hereby is passed on for the Company by Stephen
D. Natcher, Senior Vice President - Administration, General
Counsel and Secretary of the Company. Mr. Natcher is compensated
by the Company and is the holder of options to acquire shares of
Common Stock.
Item 6. Indemnification of Directors and Officers
The Company's Articles of Incorporation contain a
provision which eliminates the liability of directors for
monetary damages to the fullest extent permissible under
California law. The General Corporation Law of California (the
"Law") (i) authorizes the elimination of liability of directors
for monetary damages in an action brought by a shareholder in the
right of the Company (referred to herein as a "derivative
action") or by the Company for breach of a director's duties to
the Company and its shareholders and (ii) authorizes the Company
to indemnify directors and officers for monetary damages for all
acts or omissions committed by them in their respective
capacities; provided, however, that liability is not limited nor
may indemnification be provided for (a) acts or omissions that
involve intentional misconduct or knowing and culpable violation
of law, (b) for acts or omissions that a director or officer
believes to be contrary to the best interests of the Company or
its shareholders or that involve the absence of good faith on the
part of a director or officer seeking indemnification, (c) for
any transaction from which a director or officer derives an
improper personal benefit, (d) for acts or omissions that show a
reckless disregard for the director's or officer's duty to the
Company or its shareholders in circumstances in which such person
was aware, or should have been aware, in the ordinary course of
performing his duties, of a risk of serious injury to the Company
or its shareholders, (e) for acts or omissions that constitute an
unexcused pattern of inattention that amounts to an abdication of
the director's or officer's duty to the Company or its share-
holders, and (f) for liabilities arising under Section 310
(contracts in which a director has a material financial interest)
and 316 (certain unlawful dividends, distributions, loans and
guarantees) of the Law. In addition, the Company may not indem-
nify directors and officers in circumstances in which indemnifi-
cation is expressly prohibited by Section 317 of the Law.
The bylaws of the Company provide that the Company has
the power to indemnify directors and officers to the fullest
extent permitted under California law and the Company's Articles
of Incorporation. The Company has entered into indemnification
agreements with its directors and officers which require that the
Company indemnify such directors and officers in all cases to the
fullest extent permitted by applicable provisions of the Law. The
Company also maintains a directors' and officers' liability
insurance policy insuring directors and officers of the Company
for covered losses as defined in the policy.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
See the attached Exhibit Index.
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:
(i) To include any prospectus
required by Section 10(a)(3) of the Securities
Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus
any facts or events arising after the effective
date of the Registration Statement (or the most
recent post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth
in the Registration Statement; and
(iii) To include any material
information with respect to the plan of
distribution not previously disclosed in the
Registration Statement or any material change to
such information in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs
is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") that
are incorporated by reference in the Registration Statement;
(2) That, for the purpose of determining any
liability under the Act, each such post-effective amendment
shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof; and
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that,
for purposes of determining any liability under the Act, each
filing of the registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(h) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
provisions described in Item 6 above, 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 Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of
any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-8 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in
the City of Irvine, State of California, on November 8, 1995.
By: ___/s/ Ralph L. Ozorkiewicz___
Ralph L. Ozorkiewicz
Its: President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes
and appoints Stephen D. Natcher, his true and lawful attorney-in-
fact and agent, with full powers of substitution and
resubstitution, for him and in his name, place and stead, in any
and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent, each
acting alone, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and
about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent, or his substitute or
substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been signed below by the
following persons in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
__/s/ Charles M. Clough__ Chairman of the November 8, 1995
Charles M. Clough Board of Directors
__/s/ Ralph L. Ozorkiewicz__ President, Chief November 8, 1995
Ralph L. Ozorkiewicz Executive Officer
and Director
(Principal Executive
Officer)
_/s/ R. Van Ness Holland, Jr._ Executive Vice-President November 8, 1995
R. Van Ness Holland, Jr. - Finance, Treasurer and
Chief Financial Officer
(Principal Financial and
Accounting Officer)
__/s/ Michael R. Corboy__ Director* November 8, 1995
Michael R. Corboy
__/s/ Theodore M. Freedman__ Director November 8, 1995
Theodore M. Freedman
__/s/ Jack S. Kilby__ Director November 8, 1995
Jack S. Kilby
__/s/ Edward Sanders__ Director* November 8, 1995
Edward Sanders
__/s/ Stanley A. Wainer__ Director* November 8, 1995
Stanley A. Wainer
__/s/ Kirk West__ Director November 8, 1995
Kirk West
__/s/ Frank S. Wyle__ Director* November 8, 1995
Frank S. Wyle
___________________________________________
*Member of Executive Compensation Committee
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
- ------- -----------
4.1 Wyle Electronics 1995 Stock Incentive Plan
(Composite Plan document incorporating amendments
adopted by the Board of the Company on May 9, 1995).
4.2 Form of Employee Nonqualified Stock Option Agreement.
4.3 Form of Employee Incentive Stock Option Agreement.
4.4 Form of Employee Restricted Stock Award Agreement to
be used in connection with 1996 incentive compensation
awards.
5. Opinion of Company Counsel (opinion re legality).
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Company Counsel (included in Exhibit 5).
24. Power of Attorney (included in this
Registration Statement under "Signatures").
<PAGE>
COMPOSITE PLAN DOCUMENT
FOR
WYLE ELECTRONICS
1995 STOCK INCENTIVE PLAN
This Composite Plan Document incorporates amendments adopted by
the Board of Directors on May 9, 1995.
<PAGE>
TABLE OF CONTENTS
Page
1. THE PLAN.......................................... 1
1.1 Purpose................................... 1
1.2 Administration and Authorization; Power
and Procedure............................. 1
1.3 Participation............................. 3
1.4 Shares Available for Awards; Share Limits. 3
1.5 Grant of Awards........................... 4
1.6 Award Period.............................. 4
1.7 Limitations on Exercise and Vesting of
Awards.................................... 4
1.8 No Transferability........................ 5
2. OPTIONS........................................... 6
2.1 Grants..................................... 6
2.2 Option Price............................... 6
2.3 Limitations on Grant and Terms of
Incentive Stock Options................... 7
3. STOCK APPRECIATION RIGHTS......................... 8
3.1 Grants.................................... 8
3.2 Exercise of Stock Appreciation Rights..... 8
3.3 Payment................................... 9
4. RESTRICTED STOCK AWARDS........................... 10
4.1 Grants.................................... 10
4.2 Restrictions.............................. 10
5. PERFORMANCE SHARE AWARDS.......................... 11
5.1 Grants of Performance Share Awards........ 11
5.2 Special Performance-Based Awards.......... 11
5.3 Deferred Payments......................... 13
6. OTHER PROVISIONS.................................. 14
6.1 Rights of Eligible Employees, Participants
and Beneficiaries......................... 14
6.2 Adjustments; Acceleration; Possible Early
Termination of Awards..................... 14
6.3 Effect of Termination of Employment....... 16
6.4 Compliance with Laws...................... 18
6.5 Tax Withholding........................... 18
6.6 Plan Amendment, Termination and
Suspension................................ 19
6.7 Privileges of Stock Ownership;
Nondistributive Intent.................... 20
6.8 Effective Date of the Plan................ 21
6.9 Term of the Plan.......................... 21
6.10 Governing Law/Construction/Severability... 21
6.11 Captions.................................. 22
6.12 Non-Exclusivity of Plan................... 22
7. DEFINITIONS....................................... 23
7.1 Definitions............................... 23
<PAGE>
WYLE ELECTRONICS
1995 STOCK INCENTIVE PLAN
1. THE PLAN.
1.1 Purpose.
The purpose of this Plan is to promote the success of
the Company by providing an additional means to attract,
motivate, retain and reward key employees, including officers,
whether or not directors, of the Company through incentives for
high levels of individual performance and improved financial
performance of the Company by granting Awards. "Corporation"
means Wyle Electronics and "Company" means the Corporation and
its Subsidiaries, collectively. These terms and other
capitalized terms are defined in Article 7.
1.2 Administration and Authorization; Power and Procedure.
a. Committee. This Plan shall be administered by
and all Awards to Eligible Employees shall be authorized by the
Committee. Action of the Committee with respect to the
administration of this Plan shall be taken pursuant to a majority
vote or by written consent of a majority of its members. In the
event action by the Committee is taken by written consent, the
action shall be deemed to have been taken at the time specified
in the consent or, if none is specified, at the time of the last
signature.
b. Plan Awards; Interpretation; Powers of
Committee. Subject to the express provisions of this Plan, the
Committee shall have the authority:
(i) to determine from among the class of Eligible
Employees those individuals who will receive any awards;
(ii) to grant Awards to Eligible Employees,
determine the price at which securities will be offered
or awarded and the amount of securities to be offered or
awarded to any of such persons, and determine the other
specific terms and conditions of such Awards consistent
with the express limits of this Plan, and establish the
installments (if any) in which such Awards shall become
exercisable or shall vest, or determine that no delayed
exercisability or vesting is required, and establish
the events of termination or reversion of such Awards;
(iii) to approve the forms of Award Agreements (which
need not be identical either as to type of Award or among
Participants);
(iv) to construe and interpret this Plan and any
agreements defining the rights and obligations of the
Company and Participants under this Plan, further define
the terms used in this Plan, and prescribe, amend and
rescind rules and regulations relating to the administration
of this Plan;
(v) to cancel, modify, or waive the Corporation's
rights with respect to, or modify, discontinue, suspend, or
terminate any or all outstanding Awards held by Participants,
subject to any required consent under Section 6.6;
(vi) to accelerate or extend the exercisability or
extend the term of any or all such outstanding Awards within
the maximum ten-year term of Awards under Section 1.6; and
(vii) to make all other determinations and take such
other action as contemplated by this Plan or as may be
necessary or advisable for the administration of this Plan
and the effectuation of its purposes.
(c) Binding Determinations. Any action taken by,
or inaction of, the Corporation, any Subsidiary, the Board or the
Committee relating or pursuant to this Plan shall be within the
absolute discretion of that entity or body and shall be
conclusive and binding upon all persons. No member of the Board
or Committee, or officer of the Corporation or any Subsidiary,
shall be liable for any such action or inaction of the entity or
body, of another person or, except in circumstances involving bad
faith, of himself or herself. Subject only to compliance with
the express provisions hereof, the Board and Committee may act in
their absolute discretion in matters within their authority
related to this Plan.
(d) Reliance on Experts. In making any
determination or in taking or not taking any action under this
Plan, the Committee or the Board, as the case may be, may obtain
and may rely upon the advice of experts, including professional
advisors to the Corporation. No director, officer or agent of
the Company shall be liable for any such action or determination
taken or made or omitted in good faith.
(e) Delegation. The Committee may delegate
ministerial, non-discretionary functions to individuals who are
officers or employees of the Company.
1.3 Participation.
Awards may be granted by the Committee only to those
persons that the Committee determines to be Eligible Employees.
An Eligible Employee who has been granted an Award may, if
otherwise eligible, be granted additional Awards if the Committee
shall so determine. Each Non-Employee Director shall not be
eligible to receive any Awards.
1.4 Shares Available for Awards; Share Limits.
(a) Shares Available. Subject to the provisions of
Section 6.2, the capital stock that may be delivered under this
Plan shall be shares of the Corporation's authorized but unissued
Common Stock. The shares may be delivered for any lawful
consideration.
(b) Share Limits. The maximum number of shares of
Common Stock that may be delivered pursuant to Awards granted to
Eligible Employees under this Plan shall not exceed 500,000
shares (the "Share Limit"). The maximum number of shares of
Common Stock that may be delivered pursuant to options qualified
as Incentive Stock Options granted to Eligible Employees under
this Plan is 500,000 shares. The maximum number of shares
subject to Options and Stock Appreciation Rights which may be
granted during any calendar year to any individual shall not
exceed 75,000 shares. Each of the three foregoing numerical
limits shall be subject to adjustment as contemplated by this
Section 1.4 and Section 6.2.
(c) Share Reservation; Replenishment and Reissue of
Unvested Awards. No Award may be granted under this Plan unless,
on the date of grant, the sum of (i) the maximum number of shares
issuable at any time pursuant to such Award, plus (ii) the number
of shares that have previously been issued pursuant to Awards
granted under this Plan, other than reacquired shares available
for reissue consistent with any applicable limitations under Rule
16b-3, plus (iii) the maximum number of shares that may be issued
at any time after such date of grant pursuant to Awards that are
outstanding on such date, does not exceed the Share Limit.
Shares that are subject to or underlie Awards which expire or for
any reason are cancelled or terminated, are forfeited, fail to
vest, or for any other reason are not paid or delivered under
this Plan, as well as reacquired shares, shall again, except to
the extent prohibited by Rule 16b-3 or other applicable law, be
available for subsequent Awards under the Plan. Except as
limited by Rule 16b-3, if an Award is or may be settled only in
cash and satisfies the requirements for exemption under Rule 16b-
3 or for exclusion from the definition of derivative security
under Rule 16a-1(c)(3)(ii), such Award need not be counted
against any of the limits under this Section 1.4.
(d) Cash Only Award Limit. Awards payable solely
in cash under the Plan that would constitute derivative
securities but for the exclusion in Rule 16a-1(c)(3)(i) under the
Exchange Act shall constitute and be referred to as "Cash Only
Awards". The number of Cash Only Awards shall be determined by
reference to the number of shares or share equivalents referenced
in or otherwise linked to such Awards for purposes of determining
the amount, value or price of the Cash Only Awards. The maximum
number of Cash Only Awards shall not, together with the aggregate
number of shares previously issued and subject to then
outstanding Awards payable (or deemed payable) in Common Shares
under this Plan, exceed the Share Limit, plus the number of
reacquired shares available for reissue consistent with the
provisions of subsection (c) above, in each case, subject to
adjustments under Section 6.2.
1.5 Grant of Awards.
Subject to the express provisions of this Plan, the
Committee shall determine the number of shares of Common Stock
subject to each Award, the price (if any) to be paid for the
shares or the Award and, in the case of performance share awards,
in addition to matters addressed in Section 1.2(b), the specific
objectives, goals and performance criteria (such as an increase
in sales, market value, earnings or book value over a base
period, the years of service before vesting, the relevant job
classification or level of responsibility or other factors) that
further define the terms of the performance share award. Each
Award shall be evidenced by an Award Agreement signed by the
Corporation and, if required by the Committee, by the
Participant.
1.6 Award Period.
Each Award and all executory rights or obligations
under the related Award Agreement shall expire on such date (if
any) as shall be determined by the Committee, but in the case of
Options or other rights to acquire Common Stock not later than
ten (10) years after the Award Date.
1.7 Limitations on Exercise and Vesting of Awards.
(a) Provisions for Exercise. Unless the Committee
otherwise expressly provides, no Award shall be exercisable or
shall vest until at least six months after the initial Award
Date, and once exercisable an Award shall remain exercisable
until the expiration or earlier termination of the Award.
(b) Procedure. Any exercisable Award shall be
deemed to be exercised when the Secretary of the Corporation
receives written notice of such exercise from the Participant,
together with any required payment made in accordance with
Section 2.2(a).
(c) Fractional Shares/Minimum Issue. Fractional
share interests shall be disregarded, but may be accumulated. The
Committee, however, may determine that cash, other securities, or
other property will be paid or transferred in lieu of any
fractional share interests. No fewer than 100 shares may be
purchased on exercise of any Award at one time unless the number
purchased is the total number at the time available for purchase
under the Award.
1.8 No Transferability.
(a) Limit On Exercise. Prior to the expiration of
any applicable transition period in respect of Rule 16b-3
described in Section 6.10(d), and thereafter, unless otherwise
expressly permitted by the Committee and by applicable law and
the express terms of an Award Agreement, Awards may be exercised
only by, and amounts payable or shares issuable pursuant to an
Award shall be paid only to (or for the account of), the
Participant or, if the Participant has died, the Participant's
Beneficiary or, if the Participant has suffered a Disability, the
Participant's Personal Representative, if any, or if there is
none, the Participant. The Committee may permit Awards to be
exercised by and paid to certain persons or entities related to
the Participant who are transferees of the Participant without
consideration pursuant to such conditions and procedures as the
Committee may establish and (for Awards intended to satisfy the
conditions of Rule 16b-3) as may be permitted under Rule 16b-3.
(b) Limit On Transfer. No right or similar
benefit/derivative security granted under this Plan or any Award,
including, without limitation, any Option, undistributed
performance share, or share of Restricted Stock that has not
vested, shall be transferrable by the Participant or shall be
subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance or charge (other than
to the Corporation), except (i) by will or the laws of descent
and distribution, (ii) pursuant to a QDRO or pursuant to any
other exception to transfer restrictions expressly permitted by
the Committee and set forth in the Award Agreement (or an
amendment thereto) and, in the case of Awards intended to satisfy
the conditions of Rule 16b-3, to the extent permitted by Rule
16b-3 (or, in the case of Awards not intended to satisfy Rule
16b-3, as may be not inconsistent with the issue of Awards under
this Plan that do satisfy the Rule), or (iii) in the case of
Awards comprising Incentive Stock Options, as permitted by the
Code. Any attempted transfer in violation of these provisions
shall be void and the Corporation shall disregard any attempt at
transfer, assignment or other alienation prohibited hereby.
During the transition period described in Section 6.10(d), any
derivative securities granted under this Plan whose grant is
intended to be exempt from Rule 16b-3 shall be not transferable
other than as permitted by former Rule 16b-3(d)(1)(ii).
(c) Designation of Beneficiary. The designation of
a Beneficiary hereunder shall not constitute a transfer
prohibited by the foregoing provisions.
(d) Exceptions. The restrictions on exercise and
transfer above shall not be deemed to prohibit the authorization
by the Committee of "cashless exercise" procedures with
unaffiliated third parties who provide financing for the purpose
of (or who otherwise facilitate) the exercise of Awards
consistent with applicable legal restrictions and Rule 16b-3,
nor, to the extent permitted by the Committee, transfers for
estate and financial planning purposes, notwithstanding that the
inclusion of such features may render the particular Awards
ineligible for the benefits of Rule 16b-3, nor, in the case of
Participants who are not Section 16 Persons, transfers to such
other persons or in such other circumstances as the Committee may
in the Award Agreement or other writing expressly permit.
2. OPTIONS.
2.1 Grants.
One or more Options may be granted under this Article
to any Eligible Employee. Each Option granted may be either an
Option intended to be an Incentive Stock Option, or not so
intended, and such intent shall be indicated in the applicable
Award Agreement. Notwithstanding any other provision of the Plan
to the contrary, it is intended that Options which are granted to
Eligible Employees with a purchase price per share that is not
less than 100% of the Fair Market Value of the Common Stock on
the date of grant shall satisfy the requirement for "performance-
based compensation" under Section 162(m) of the Code.
2.2 Option Price.
(a) Pricing Limits. The purchase price per share of
the Common Stock covered by each Option shall be determined by
the Committee at the time of the award, but shall not be less
than 100% (110% in the case of Incentive Stock Options granted to
a Participant who owns or is deemed to own under Section 424(d)
of the Code more than 10% of the total combined voting power of
all classes of stock of the Corporation) of the Fair Market Value
of the Common Stock on the date of grant.
(b) Payment Provisions. The purchase price of any
shares purchased on exercise of an Option granted under this
Article shall be paid in full at the time of each purchase in one
or a combination of the following methods: (i) in cash or by
electronic funds transfer; (ii) by check payable to the order of
the Corporation; (iii) by notice and third party payment in such
manner as may be authorized by the Committee; or (iv) by the
delivery of shares of Common Stock of the Corporation already
owned by the Participant, provided, however, that the Committee
may in its absolute discretion limit the Participant's ability to
exercise an Award by delivering such shares. Shares of Common
Stock used to satisfy the exercise price of an Option shall be
valued at their Fair Market Value on the date of exercise.
2.3 Limitations on Grant and Terms of Incentive Stock
Options.
(a) $100,000 Limit. To the extent that the aggregate
"fair market value" of stock with respect to which incentive
stock options first become exercisable by an Eligible Employee in
any calendar year exceeds $100,000, taking into account both
Common Stock subject to Incentive Stock Options under this Plan
and stock subject to incentive stock options under all other
plans of the Company, such options shall be treated as
nonqualified stock options. For this purpose, the "fair market
value" of the stock subject to options shall be determined as of
the date the options were awarded. In reducing the number of
options treated as incentive stock options to meet the $100,000
limit, the most recently granted options shall be reduced first.
To the extent a reduction of simultaneously granted options is
necessary to meet the $100,000 limit, the Committee may, in the
manner and to the extent permitted by law, designate which shares
of Common Stock are to be treated as shares acquired pursuant to
the exercise of an Incentive Stock Option.
(b) Option Period. Each Option and all rights
thereunder shall expire no later than ten years after the Award
Date.
(c) Other Code Limits. There shall be imposed in any
Award Agreement relating to Incentive Stock Options such terms
and conditions as from time to time are required in order that
the Option be an "incentive stock option" as that term is defined
in Section 422 of the Code.
(d) Limits on 10% Holders. No Incentive Stock Option
may be granted to any person who, at the time the Option is
granted, owns (or is deemed to own under Section 424(d) of the
Code) shares of outstanding Common Stock possessing more than 10%
of the total combined voting power of all classes of stock of the
Corporation, unless the exercise price of such Option is at least
110% of the Fair Market Value of the stock subject to the Option
and such Option by its terms is not exercisable after the
expiration of five years from the date such Option is granted.
3. STOCK APPRECIATION RIGHTS.
3.1 Grants.
In its discretion, the Committee may grant to any
Eligible Employee Stock Appreciation Rights concurrently with the
grant of an Option. A Stock Appreciation Right shall extend to
all or a portion of the shares covered by the related Option.
Any Stock Appreciation Right granted in connection with an
Incentive Stock Option shall contain such terms as may be
required to comply with the provisions of Section 422 of the Code
and the regulations promulgated thereunder, unless the holder
otherwise agrees. Notwithstanding any other provision of the
Plan to the contrary, it is intended that Stock Appreciation
Rights with a base price per share of Common Stock not less than
Fair Market Value on the date of grant shall satisfy the
requirements for "performance-based compensation" under Section
162(m) of the Code.
3.2 Exercise of Stock Appreciation Rights.
(a) Exercisability. Unless the Award Agreement or
the Committee otherwise provides, a Stock Appreciation Right
related to another Award shall be exercisable at such time or
times, and to the extent, that the related Option shall be
exercisable.
(b) Effect on Available Shares. To the extent that a
Stock Appreciation Right is exercised, the number of underlying
shares of Common Stock theretofore subject to a related Option
shall be charged against the maximum limit of Common Stock that
may be delivered pursuant to Awards under this Plan. The number
of shares subject to the Stock Appreciation Right and the related
Option of the Participant shall be reduced by the number of
underlying shares as to which the exercise related, unless the
Award Agreement otherwise provides.
(c) If a Stock Appreciation Right extends to less
than all the shares covered by the related Option and if a
portion of the related Option is thereafter exercised, the number
of shares subject to the unexercised Stock Appreciation Right
shall be reduced only if and to the extent that the remaining
number of shares covered by such related Option is less than the
remaining number of shares subject to such Stock Appreciation
Right.
(d) In order to achieve this Plan's objective of
encouraging ownership of Common Stock, the Committee may require
that Stock Appreciation Rights can only be exercised if the
Participant uses all or a portion of any cash received upon
exercise of the Stock Appreciation Right to concurrently exercise
all or a portion of the Option.
3.3 Payment.
(a) Amount. Unless the Committee otherwise provides,
upon exercise of a Stock Appreciation Right and the attendant
surrender of an exercisable portion of any related Option, the
Participant shall be entitled to receive payment of an amount
determined by multiplying
(i) the difference obtained by subtracting the
exercise price per share of Common Stock under the related
Option from the Fair Market Value of a share of Common Stock
on the date of exercise of the Stock Appreciation Right, by
(ii) the number of shares with respect to which
the Stock Appreciation Right shall have been exercised.
(b) Form of Payment. The Committee, in its sole
discretion, shall determine the form in which payment shall be
made of the amount determined under paragraph (a) above, either
solely in cash, solely in shares of Common Stock (valued at Fair
Market Value on the date of exercise of the Stock Appreciation
Right), or partly in such shares and partly in cash, provided
that the Committee shall have determined that such exercise and
payment are consistent with applicable law. If the Committee
permits the Participant to elect to receive cash or shares (or a
combination thereof) on such exercise, any such election shall be
subject to such conditions as the Committee may impose and, in
the case of any Section 16 Person, any election to receive cash
shall be subject to any applicable limitations under Rule 16b-3
unless the Committee otherwise provides.
4. RESTRICTED STOCK AWARDS.
4.1 Grants.
The Committee may, in its discretion, grant one or
more Restricted Stock Awards to any Eligible Employee. Each
Restricted Stock Award Agreement shall specify the number of
shares of Common Stock to be issued to the Participant, the date
of such issuance, the consideration for such shares (but not less
than the minimum lawful consideration under applicable state law)
by the Participant, the extent to which the Participant shall be
entitled to dividends, voting and other rights in respect of the
shares and the restrictions imposed on such shares and the
conditions of release or lapse of such restrictions; provided,
however, that each Award granted under this Section 4.1 shall
specify that such restrictions shall not lapse earlier than three
years after the Award Date, except to the extent the Committee
may otherwise provide pursuant to Sections 6.2 and 6.3. Stock
certificates evidencing shares of Restricted Stock pending the
lapse of the restrictions ("restricted shares") shall bear a
legend making appropriate reference to the restrictions imposed
hereunder and shall be held by the Corporation or by a third
party designated by the Committee until the restrictions on such
shares shall have lapsed and the shares shall have vested in
accordance with the provisions of the Award and Section 1.7.
Upon issuance of the Restricted Stock Award, the Participant may
be required to provide such further assurance and documents as
the Committee may require to enforce the restrictions.
4.2 Restrictions.
(a) Pre-Vesting Restraints. Except as provided in
Section 4.1 and 1.8, restricted shares comprising any Restricted
Stock Award may not be sold, assigned, transferred, pledged or
otherwise disposed of or encumbered, either voluntarily or
involuntarily, until the restrictions have lapsed.
(b) Dividend and Voting Rights. Unless otherwise
provided in the applicable Award Agreement, a Participant
receiving a Restricted Stock Award shall be entitled to cash
dividend and voting rights for all shares issued even though they
are not vested, provided that such rights shall terminate
immediately as to any restricted shares which cease to be
eligible for vesting.
(c) Cash Payments. If the Participant shall have
paid or received cash (including any dividends) in connection
with the Restricted Stock Award, the Award Agreement shall
specify whether and to what extent such cash shall be returned
(with or without an earnings factor) as to any restricted shares
which cease to be eligible for vesting.
5. PERFORMANCE SHARE AWARDS.
5.1 Grants of Performance Share Awards.
The Committee may, in its discretion, grant Performance
Share Awards to Eligible Employees based upon such factors, which
in the case of any Award to a Section 16 Person shall include but
not be limited to the contributions, responsibilities and other
compensation of the person as the Committee shall deem relevant
in light of the specific type and terms of the award. An Award
Agreement shall specify the maximum number of shares of Common
Stock (if any) subject to the Performance Share Award, the
consideration (but not less than the minimum lawful
consideration) to be paid for any such shares as may be issuable
to the Participant, the duration of the Award and the conditions
upon which delivery of any shares or cash to the Participant
shall be based. The amount of cash or shares or other property
that may be deliverable pursuant to such Award shall be based
upon the degree of attainment over a specified period (a
"performance cycle") as may be established by the Committee of
such measure(s) of the performance of the Company (or any part
thereof) or the Participant as may be established by the
Committee. The Committee may provide for full or partial credit,
prior to completion of such performance cycle or the attainment
of the performance achievement specified in the Award, in the
event of the Participant's death, Retirement, or Total
Disability, a Change in Control Event or in such other
circumstances as the Committee may determine.
5.2 Special Performance-Based Awards.
Without limiting the generality of the foregoing, and
in addition to Options and Stock Appreciation Rights granted
under other provisions of this Plan which are intended to satisfy
the exception for "performance-based compensation" under Section
162(m) of the Code (with such Awards hereinafter referred to as a
"Qualifying Option" or a "Qualifying Stock Appreciation Right,"
respectively), other performance-based awards within the meaning
of Section 162(m) of the Code ("Performance-Based Awards"),
whether in the form of restricted stock, performance stock,
phantom stock, Cash-Based Awards, or other rights, the grant,
vesting, exercisability or payment of which depends on the degree
of achievement of the Performance Goals relative to
preestablished targeted levels for the Corporation or the
Corporation and one or more of its Subsidiaries, may be granted
under this Plan. Any Qualifying Option or Qualifying Stock
Appreciation Right shall be subject only to the requirements of
subsections (a) and (c) below in order for such Awards to satisfy
the requirements for Performance-Based Awards under this Section
5.2. With the exception of any Qualifying Option or Qualifying
Stock Appreciation Right, an Award that is intended to satisfy
the requirements of this Section 5.2 shall be designated as a
Performance-Based Award at the time of grant.
(a) Eligible Class. The eligible class of persons
for Performance-Based Awards under this Section shall be
all Eligible Employees.
(b) Performance Goal Alternatives. The specific
performance goals for Performance-Based Awards granted under
this Section (other than Qualifying Options and Qualifying
Stock Appreciation Rights) shall be, on an absolute or
relative basis, one or more of the Performance Goals, as
selected by the Committee in its sole discretion. The
Committee shall establish in the applicable Award Agreement
the specific performance target(s) relative to the
Performance Goal(s) which must be attained before the
compensation under the Performance-Based Award becomes
payable. The specific targets shall be determined within
the time period permitted under Section 162(m) of the Code
(and any regulations issued thereunder) so that such targets
are considered to be preestablished and so that the attainment
of such targets is substantially uncertain at the time of their
establishment.
(c) Maximum Performance-Based Award. Notwithstanding
any other provision of the Plan to the contrary, the maximum
number of shares of Common Stock which may be delivered
pursuant to options, stock appreciation rights, restricted
stock or other share-based awards that are granted as
Performance-Based Awards to any Participant in any calendar
year shall not exceed 75,000 shares, either individually or
in the aggregate, subject to adjustment as provided in
Section 6.2. Awards that are cancelled during the year
shall be counted against this limit to the extent required by
Section 162(m) of the Code. In addition, the aggregate amount
of compensation to be paid to any Participant in respect of any
Cash-Based Awards that are granted during any calendar year as
Performance-Based Awards shall not exceed $1,000,000.
(d) Committee Certification. Before any Performance-
Based Award under this Section 5.2 (other than Qualifying
Options or Qualifying Stock Appreciation Rights) is paid,
the Committee must certify in writing that the Performance
Goal(s) and any other material terms of the Performance-Based
Award were satisfied; provided, however, that a
Performance-Based Award may be paid without regard to
the satisfaction of the applicable Performance Goal in
the event of a Change in Control Event in accordance with
Section 6.2(d).
(e) Terms and Conditions of Awards. The Committee
will have the discretion to determine the restrictions or
other limitations of the individual Awards granted under
this Section 5.2. Consistent with the preceding sentence,
to the extent set forth in an Award Agreement, the
Committee may reserve the right to reduce the amount
payable in accordance with any standards or on any
other basis (including the Committee's discretion), as the
Committee may impose.
(f) Adjustments for Changes in Capitalization and other
Material Changes. In the event of a change in corporate
capitalization, such as a stock split or stock dividend, or
a corporate transaction, such as a merger, consolidation,
spinoff, reorganization or similar event, or any partial or
complete liquidation of the Corporation, or any similar event
consistent with regulations issued under Section 162(m) of the
Code including, without limitation, any material change in
accounting policies or practices affecting the Corporation
and/or the Performance Goals or targets, then the Committee
may make adjustments to the Performance Goals and targets
relating to outstanding Performance-Based Awards to the extent
such adjustments are made to reflect the occurrence of such an
event; provided, however, that adjustments described in this
subsection may be made only to the extent that the occurrence
of an event described herein was unforeseen at the time the
targets for a Performance-Based Award were established by
the Committee.
5.3 Deferred Payments.
The Committee may authorize for the benefit of any
Eligible Employee the deferral of any payment of cash or shares
that may become due or of cash otherwise payable under this Plan,
and provide for accreted benefits thereon based upon such
deferment, at the election or at the request of such Participant,
subject to the other terms of this Plan. Such deferral shall be
subject to such further conditions, restrictions or requirements
as the Committee may impose, subject to any then vested rights of
Participants.
6. OTHER PROVISIONS.
6.1 Rights of Eligible Employees, Participants and
Beneficiaries.
(a) Employment Status. Status as an Eligible Employee
shall not be construed as a commitment that any Award will be
made under this Plan to an Eligible Employee or to Eligible
Employees generally.
(b) No Employment Contract. Nothing contained in
this Plan (or in any other documents related to this Plan or to
any Award) shall confer upon any Eligible Employee or other
Participant any right to continue in the employ or other service
of the Company or constitute any contract or agreement of
employment or other service, nor shall interfere in any way with
the right of the Company to change such person's compensation or
other benefits or to terminate the employment of such person,
with or without cause, but nothing contained in this Plan or any
document related hereto shall adversely affect any independent
contractual right of such person without his or her consent
thereto.
(c) Plan Not Funded. Awards payable under this Plan
shall be payable in shares of Common Stock or from the general
assets of the Corporation, and (except as provided in Section
1.4(c)) no special or separate reserve, fund or deposit shall be
made to assure payment of such Awards. No Participant,
Beneficiary or other person shall have any right, title or
interest in any fund or in any specific asset (including shares
of Common Stock, except as expressly otherwise provided) of the
Company by reason of any Award hereunder. Neither the provisions
of this Plan (or of any related documents), nor the creation or
adoption of this Plan, nor any action taken pursuant to the
provisions of this Plan shall create, or be construed to create,
a trust of any kind or a fiduciary relationship between the
Company and any Participant, Beneficiary or other person. To the
extent that a Participant, Beneficiary or other person acquires a
right to receive payment pursuant to any Award hereunder, such
right shall be no greater than the right of any unsecured general
creditor of the Company.
6.2 Adjustments; Acceleration; Possible Early Termination
of Awards.
(a) If the outstanding shares of Common Stock are
increased, decreased or changed into, or exchanged for, a
different number of kind of shares or securities of the
Corporation through a reorganization or merger in which the
Corporation is the surviving entity, or through a combination,
recapitalization, reclassification, stock split, stock dividend,
stock consolidation or otherwise, an appropriate adjustment shall
be made in the number and kind of shares that may be issued
pursuant to Awards. A corresponding adjustment to the
consideration payable with respect to Awards granted prior to any
such change shall also be made. Any such adjustment, however,
shall be made without change in the total payment, if any,
applicable to the portion of the Award not exercised but with a
corresponding adjustment in the price for each share.
Corresponding adjustments shall be made with respect to Stock
Appreciation Rights based upon the adjustments made to the
Options to which they are related.
(b) Upon the dissolution or liquidation of the
Corporation, or upon a reorganization, merger or consolidation of
the Corporation with one or more corporations as a result of
which the Corporation is not the surviving corporation, the Plan
shall terminate, and any Award theretofore granted hereunder
shall terminate. Notwithstanding the foregoing, the Committee
may provide in writing in connection with, or in contemplation
of, any such transaction for any or all of the following
alternatives (separately or in combinations): (i) for the
assumption by the successor corporation of the Awards theretofore
granted or the substitution by such corporation for such Awards
of new options and stock appreciation rights covering the stock
of the successor corporation, or a parent or subsidiary thereof,
with appropriate adjustments as to the number and kind of shares
and prices; (ii) for the continuance of the Plan by such
successor corporation in which event the Plan and the Awards
shall continue in the manner and under the terms so provided; or
(iii) for the payment in cash or shares of Common Stock in lieu
of and in complete satisfaction of such Awards.
(c) In adjusting Awards to reflect the changes
described in this Section 6.2, or in determining that no such
adjustment is necessary, the Committee may rely upon the advice
of independent counsel and accountants of the Corporation, and
the determination of the Committee shall be conclusive. No
fractional shares of stock shall be issued under this Plan on
account of any such adjustment.
(d) Unless prior to a Change in Control Event the
Committee determines that, upon its occurrence, there shall be no
acceleration of Awards or determines those Awards which shall be
accelerated and the extent to which they shall be accelerated,
upon the occurrence of a Change in Control Event (i) each Option
and each related Stock Appreciation Right shall become
immediately exercisable to the full extent theretofore not
exercisable, (ii) Restricted Stock shall immediately vest free of
restrictions and (iii) the number of shares covered by each
Performance Share Award or Performance-Based Award shall be
issued to the Participant and the compensation payable under a
Cash-Based Award that is granted as a Performance-Based Award
shall be paid to the Participant; provided, however, that Awards
shall not in any event be so accelerated to a date less than six
months after the Award Date. Acceleration of Awards shall comply
with applicable regulatory requirements, including without
limitation Rule 16b-3 and Section 422 of the Code. For purposes
of this section only, the Board shall mean the Board as
constituted immediately prior to the Change in Control Event.
6.3 Effect of Termination of Employment.
(a) Unless the Committee provides otherwise in an
applicable Award Agreement or by resolution, if a Participant
ceases to be employed by the Company for any reason other than
the Participant's death or Total Disability, the Participant's
Option shall immediately become void and of no further force or
effect. Notwithstanding the preceding sentence, if such
cessation of employment is due to Participant's retirement under
the provisions of any retirement plan of the Company then in
effect, any outstanding Options granted to the Participant shall
expire three months after the date the Participant ceases to be
an employee of the Company (unless by its terms it sooner
expires) to the extent exercisable on the date of such cessation
of employment. In addition to the three month extension upon
retirement provided for in the preceding sentence, the Committee
shall have the authority to provide (either at the time of
termination or in the Award Agreement) in the event of any
cessation of employment, voluntary or involuntary and with or
without cause, that the exercise of the Option may be permitted
up to any later date (but not beyond the expiration date of the
Option) to the extent the Option is exercisable on the date of
such cessation of employment. A leave of absence approved in
writing by the Committee shall not be deemed a termination of
employment for the purposes of this subsection, but no Option may
be exercised during any such leave of absence, except during the
first three months thereof.
(b) Unless the Committee provides otherwise in an
applicable Award Agreement or by resolution, if a Participant
dies or becomes subject to a Total Disability while the
Participant is employed by the Company, his or her Option shall
expire one year after the date of such death or Total Disability
unless by its terms it sooner expires. During such period of
Total Disability said Option may be exercised by the
Participant's Personal Representative, if any, and during such
period after death, such Option may be exercised by the person or
persons to whom the Participant's rights under the Option shall
pass by the Participant's will or by the laws of descent and
distribution; but in either case only to the extent that the
Option remained unexercised (but exercisable by the Participant
according to such Option's terms) on the date of such event.
(c) Unless the Committee provides otherwise in an
applicable Award Agreement or by resolution, each Stock
Appreciation Right shall have the same termination provisions and
exercisability periods as the Option to which it relates.
(d) Unless the Committee provides otherwise in an
applicable Award Agreement or by resolution, in the event of
termination of employment with the Company for any reason, (i)
shares of Common Stock subject to the Participant's Restricted
Stock Award shall be forfeited in accordance with the provisions
of the related Award Agreement to the extent such shares have not
become vested on that date; and (ii) shares of Common Stock
subject to the Participant's Performance Share Award shall be
forfeited in accordance with the provisions of the related Award
Agreement to the extent such shares have not been issued or
become issuable on that date.
(e) Notwithstanding the preceding subsection, in the
event of termination of employment with the Company for any
reason the Committee may, in its discretion, increase the portion
of the Participant's Restricted Stock Award or Performance Share
Award available to the Participant, or Participant's Beneficiary
or Personal Representative, as the case may be, upon such terms
as the Committee shall determine. The original Award Agreement
may specify such additional terms.
(f) For purposes of this Plan and any Award hereunder,
if an entity ceases to be a Subsidiary, such action shall be
deemed to be a termination of employment of each employee of that
entity who does not continue as an employee of another entity
within the Company.
(g) Upon forfeiture of a Restricted Stock Award
pursuant to this Section 6.3, the Participant, or his or her
Beneficiary or Personal Representative, as the case may be, shall
transfer to the Corporation the portion of the Restricted Stock
Award not vested at the date of termination of employment,
without payment of any consideration by the Company for such
transfer unless the Participant paid a purchase price in which
case repayment, if any, of that price shall be governed by the
Award Agreement. Notwithstanding any such transfer to the
Corporation, or failure, refusal or neglect to transfer, by the
Participant, or his or her Beneficiary or Personal
Representative, as the case may be, such nonvested portion of any
Restricted Stock Award shall be deemed transferred automatically
to the Corporation on the date of termination of employment. The
Participant's original acceptance of the Restricted Stock Award
shall constitute his or her appointment of the Corporation and
each of its authorized representatives as attorney(s)-in-fact to
effect such transfer and to execute such documents as the
Corporation or such representatives deem necessary or advisable
in connection with such transfer.
6.4 Compliance with Laws.
This Plan, the granting and vesting of Awards under
this Plan and the issuance and delivery of shares of Common Stock
and/or the payment of money under this Plan or under Awards
granted hereunder are subject to compliance with all applicable
federal and state laws, rules and regulations (including but not
limited to state and federal securities law and federal margin
requirements) and to such approvals by any listing, regulatory or
governmental authority as may, in the opinion of counsel for the
Corporation, be necessary or advisable in connection therewith.
Any securities delivered under this Plan shall be subject to such
restrictions, and the person acquiring such securities shall, if
requested by the Corporation, provide such assurances and
representations to the Corporation as the Corporation may deem
necessary or desirable to assure compliance with all applicable
legal requirements.
6.5 Tax Withholding.
Upon any exercise, vesting, or payment of any Award
or, if required under the Code, upon the disposition of shares of
Common Stock acquired pursuant to the exercise of an Incentive
Stock Option prior to satisfaction of the holding period
requirements of Section 422 of the Code, the Company shall have
the right at its option to (i) require the Participant (or
Personal Representative or Beneficiary, as the case may be) to
pay or provide for payment of the amount of any taxes which the
Company may be required to withhold with respect to such Award
event or payment or (ii) deduct from any amount payable in cash
the amount of any taxes which the Company may be required to
withhold with respect to such cash payment. There is no
obligation under this Plan that any Participant be advised of the
existence of the tax on the amount required to be withheld.
Without limiting the generality of the foregoing, in any case
where a tax is required to be withheld in connection with the
delivery of shares of Common Stock under this Plan, the Committee
may in its sole discretion grant (either at the time of the Award
or thereafter) to the Participant the right to elect, pursuant to
such rules and subject to such conditions as the Committee may
establish, to have the Corporation reduce the number of shares to
be delivered by (or otherwise reacquire) the appropriate number
of shares valued at their then Fair Market Value, to satisfy such
withholding obligation.
6.6 Plan Amendment, Termination and Suspension.
(a) Board Authorization. The Board may, at any time,
terminate or, from time to time, amend, modify or suspend this
Plan, in whole or in part. In addition, the Committee may, from
time to time, amend or modify any provision of this Plan except
Sections 6.2(b) and 6.6(b). No Awards may be granted during any
suspension of this Plan or after termination of this Plan, but
the Committee shall retain jurisdiction as to Awards then
outstanding in accordance with the terms of this Plan.
(b) Shareholder Approval. If any amendment would (i)
materially increase the benefits accruing to Participants under
this Plan, (ii) materially increase the aggregate number of
securities that may be issued under this Plan, or (iii)
materially modify the requirements as to eligibility for
participation in this Plan, then to the extent then required by
Rule 16b-3 to secure benefits thereunder or to avoid liability
under Section 16 of the Exchange Act (and Rules thereunder) or
required under the Code or any other applicable law, or deemed
necessary or advisable by the Board, such amendment shall be
subject to shareholder approval.
(c) Amendments to Awards. Without limiting any other
express authority of the Committee under but subject to the
express limits of this Plan, the Committee by agreement or
resolution may waive conditions of or limitations on Awards to
Participants that the Committee in the prior exercise of its
discretion has imposed, without the consent of a Participant, and
may make other changes to the terms and conditions of Awards that
do not affect in any manner materially adverse to the
Participant, his or her rights and benefits under an Award.
Notwithstanding anything else contained herein to the contrary,
the Committee shall not, without prior shareholder approval (i)
authorize the amendment of outstanding Options or Stock
Appreciation Rights to reduce the exercise or base price, as
applicable, except as contemplated by Section 6.2, or (ii) cancel
and replace outstanding Options or Stock Appreciation Rights with
similar Awards having an exercise or base price which is lower,
except as contemplated by Section 6.2.
(d) Cancellation and Regrant/Waiver of Restrictions.
Subject to Section 1.4 and this Section 6.6 and the specific
limitations on Awards contained in this Plan, the Committee from
time to time may authorize, generally or in specific cases only,
for the benefit of any Participant any adjustment in the number
of shares subject to, the restrictions upon or the term of, an
Award granted under the Plan by cancellation of an outstanding
Award and a subsequent regranting of an Award, by amendment, by
substitution of an outstanding Award, by waiver or by other
legally valid means. Such amendment or other action may provide
for a greater or lesser number of shares subject to the Award, or
provide for a longer or shorter vesting or exercise period than
the prior Award.
(e) Limitations on Amendments to Plan and Awards. No
amendment, suspension or termination of the Plan or change of or
affecting any outstanding Award shall, without written consent of
the Participant, affect in any manner materially adverse to the
Participant any rights or benefits of the Participant or
obligations of the Corporation under any Award granted under this
Plan prior to the effective date of such change. Changes
contemplated by Section 6.2 shall not be deemed to constitute
changes or amendments for purposes of this Section 6.6.
6.7 Privileges of Stock Ownership; Nondistributive Intent.
Except as otherwise expressly authorized by the
Committee or this Plan, a Participant shall not be entitled to
any privilege of stock ownership as to any shares of Common Stock
not actually delivered to and held of record by him or her. No
adjustment will be made for dividends or other rights as a
shareholders for which a record date is prior to such date of
delivery. Consistent with the preceding sentences, upon the
issuance and transfer of shares to the Participant, unless a
registration statement is in effect under the Securities Act of
1933, as amended ("1993 Act"), relating to such issued and
transferred Common Stock and there is available for delivery a
prospectus meeting the requirements of Section 10 of the 1933
Act, the Common Stock may be issued and transferred to the
Participant only if he represents and warrants in writing to the
Corporation that the shares are being acquired for investment and
not with a view to the resale or distribution thereof. No shares
shall be issued and transferred unless and until there shall have
been full compliance with any then applicable regulatory
requirements (including those of exchanges upon which any Common
Stock of the Corporation may be listed).
6.8 Effective Date of the Plan.
This Plan shall be effective as of the date of Board
approval, subject to shareholder approval within 12 months
thereafter.
6.9 Term of the Plan.
No Award shall be granted more than ten years after the
effective date of this Plan (the "termination date"). Unless
otherwise expressly provided in this Plan or in an applicable
Award Agreement, any Award theretofore granted may extend beyond
such date, and all authority of the Committee with respect to
Awards hereunder shall continue during any suspension of this
Plan and in respect of outstanding Awards on such termination
date.
6.10 Governing Law/Construction/Severability.
(a) Choice of Law. This Plan, the Awards, all
documents evidencing Awards and all other related documents shall
be governed by, and construed in accordance with the laws of the
state of California.
(b) Severability. If any provision shall be held by a
court of competent jurisdiction to be invalid and unenforceable,
the remaining provisions of this Plan shall continue in effect.
(c) Plan Construction.
(1) Rule 16b-3. It is the intent of the
Corporation that this Plan and Awards hereunder satisfy and
be interpreted in a manner that in the case of Participants
who are or may be subject to Section 16 of the Exchange Act
satisfies the applicable requirements of Rule 16b-3 so that
such persons (unless they otherwise agree) will be entitled
to the benefits of Rule 16b-3 or other exemptive rules under
Section 16 of the Exchange Act and will not be subjected to
avoidable liability thereunder. If any provision of this
Plan or of any Award would otherwise frustrate or conflict
with the intent expressed above, that provision to the
extent possible shall be interpreted and deemed amended so
as to avoid such conflict, but to the extent of any remaining
irreconcilable conflict with such intent as to such persons
in the circumstances, such provision shall be disregarded.
(2) Section 162(m). It is the further intent of
the Company that Qualifying Options or Qualifying Stock
Appreciation Rights (as such terms are defined in Section
5.2) and other Performance-Based Awards under Section 5.2
of this Plan that are granted to or held by a Section 16
Person shall qualify as performance-based compensation
under Section 162(m) of the Code, and this Plan shall be
interpreted consistent with such intent.
(d) Limitations Prior to Expiration of Rule 16b-3
Transition Period. Notwithstanding any other provision of this
Plan, any Award granted to a Section 16 Person prior to September
1, 1995 (or any other date at which the transition period for
purposes of new Rule 16b-3, as to this Plan, expires) is subject
to the following additional limitations:
(1) the Award may provide for the issuance of
shares of Common Stock as a stock bonus for no consideration
other than services rendered; and
(2) in the event of an Award under which shares
of Common Stock are or in the future may be issued for any
other type of consideration, the amount of such consideration
either (a) shall be equal to the minimum amount (such as the
par value of such shares) required to be received by the
Corporation to comply with applicable state law, or (b)
shall be equal to or greater than 50% of the Fair Market
Value of the shares of Common Stock on the date of the Award;
provided that in the case of Restricted Stock Awards, the
amount shall equal the minimum lawful amount (but not more
than 10% of the market value of the stock subject to
the Award on the Award Date) and any right to purchase the
Restricted Stock must be exercised within 60 days of the
Award Date.
6.11 Captions.
Captions and headings are given to the sections and
subsections of this Plan solely as a convenience to facilitate
reference. Such headings shall not be deemed in any way material
or relevant to the construction or interpretation of the Plan or
any provision thereof.
6.12 Non-Exclusivity of Plan.
Nothing in this Plan shall limit or be deemed to limit
the authority of the Board or the Committee to grant awards or
authorize any other compensation, with or without reference to
the Common Stock, under any other plan or authority.
7. DEFINITIONS.
7.1 Definitions.
(a) "Award" shall mean an award of any Option, Stock
Appreciation Right, Restricted Stock Award, Performance-Based
Award, performance share award, dividend equivalent or deferred
payment right or other right or security that would constitute a
"derivative security" under Rule 16a-1(c) of the Exchange Act, or
any combination thereof, whether alternative or cumulative,
authorized by and granted under this Plan.
(b) "Award Agreement" shall mean any writing setting
forth the terms of an Award that has been authorized by the
Committee.
(c) "Award Date" shall mean the date upon which the
Committee took the action granting an Award or such later date as
the Committee designates as the Award Date at the time of the
Award.
(d) "Award Period" shall mean the period beginning on
an Award Date and ending on the expiration date of such Award.
(e) "Beneficiary" shall mean the person, persons,
trust or trusts designated by a Participant or, in the absence of
a designation, entitled by will or the laws of descent and
distribution, to receive the benefits specified in the Award
Agreement and under this Plan in the event of a Participant's
death, and shall mean the Participant's executor or administrator
if no other Beneficiary is designated and able to act under the
circumstances.
(f) "Board" shall mean the Board of Directors of the
Corporation.
(g) "Cash-Based Awards" shall mean Awards that, if
paid, must be paid in cash and that are neither denominated in
nor have a value derived from the value of, nor an exercise or
conversion privilege at a price related to, shares of Common
Stock.
(h) "Cash Flow" shall mean cash and cash equivalents
derived from either (i) net cash flow from operations or (ii) net
cash flow from operations, financings and investing activities,
as determined by the Committee at the time an Award is granted.
(i) "Change in Control Event" shall mean any of the
following:
(1) Approval by the shareholders of the
Corporation of the dissolution or liquidation of the
Corporation;
(2) Approval by the shareholders of the
Corporation of an agreement to merge or consolidate, or
otherwise reorganize, with or into one or more entities
that are not Subsidiaries, as a result of which less than
50% of the outstanding voting securities of the surviving
or resulting entity immediately after the reorganization
are, or will be, owned by shareholders of the Corporation
immediately before such reorganization (assuming for
purposes of such determination that there is no change in
the record ownership of the Corporation's securities from the
record date for such approval until such reorganization and that
such record owners hold no securities of the other parties to
such reorganization);
(3) Approval by the shareholders of the Corporation of
the sale of substantially all of the Corporation's business and/or
assets to a person or entity which is not a Subsidiary;
(4)(i) Any "person" (as such term is used in Sections
13(d) and 14(d) of the Exchange Act but excluding any person
described in and satisfying the conditions of Rule 13d-1(b)(1)
thereunder) is or becomes the beneficial owner (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Corporation representing 15% or more of the
combined voting power of the Corporation's then outstanding
securities; or
(5) During any period of two consecutive years,
individuals who at the beginning of such period constituted the
Board cease for any reason to constitute at least a majority
thereof, unless the election, or the nomination for election by
the Corporation's shareholders, of each new Board member was
approved by a vote of at least three-fourths of the Board members
then still in office who were Board members at the beginning of
such period (including for these purposes, new members whose
election or nomination was so approved).
(j) "Code" shall mean the Internal Revenue Code of
1986, as amended from time to time.
(k) "Commission" shall mean the Securities and
Exchange Commission.
(l) "Committee" shall mean the Executive Compensation
Committee appointed by the Board to administer this Plan, which
committee shall be comprised only of two or more directors or
such greater number of directors as may be required under
applicable law, each of whom, during such time as one or more
Participants may be subject to Section 16 of the Exchange Act
and/or Section 162(m) of the Code, shall be Disinterested and/or
an "outside director" (as such term is defined under Section
162(m) of the Code and regulations issued thereunder).
(m) "Common Stock" shall mean the Common Stock of the
Corporation and such other securities or property as may become
the subject of Awards, or become subject to Awards, pursuant to
an adjustment made under Section 6.2 of this Plan.
(n) "Company" shall mean, collectively, the
Corporation and its Subsidiaries.
(o) "Corporation" shall mean Wyle Electronics, a
California corporation, and its successors.
(p) "Disinterested" shall mean disinterested within
the meaning of any applicable regulatory requirements, including
Rule 16b-3.
(q) "Eligible Employee" shall mean an officer (whether
or not a director) or key employee of the Company.
(r) "EPS" shall mean earnings per common share on a
fully diluted basis determined by dividing (i) net earnings, less
dividends on preferred stock of the Corporation by (ii) the
weighted average number of common shares and common shares
equivalents outstanding.
(s) "ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended.
(t) "Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended from time to time.
(u) "Fair Market Value" shall mean the closing price
of the Common Stock on the New York Stock Exchange as reported on
the Composite Tape and published in the Western Edition of The
Wall Street Journal, or, if there is no trading of the Common
Stock on the date in question, then the closing price of the
Common Stock, as so reported and published, on the next preceding
date on which there was trading in the Common Stock.
(v) "Incentive Stock Option" shall mean an Option
which is designated as an incentive stock option within the
meaning of Section 422 of the Code, the award of which contains
such provisions (including but not limited to the receipt of
shareholder approval of this Plan, if the award is made prior to
such approval) and is made under such circumstances and to such
persons as may be necessary to comply with that section.
(w) "Nonqualified Stock Option" shall mean an Option
that is designated as a Nonqualified Stock Option and shall
include any Option intended as an Incentive Stock Option that
fails to meet the applicable legal requirements thereof. Any
Option granted hereunder that is not designated as an Incentive
Stock Option shall be deemed to be designated a Nonqualified
Stock Option under this Plan and not an incentive stock option
under the Code.
(x) "Non-Employee Director" shall mean a member of the
Board of Directors of the Corporation who is not an officer or
employee of the Company.
(y) "Option" shall mean an option to purchase Common
Stock granted under this Plan. The Committee shall designate any
Option granted to an Eligible Employee as a Nonqualified Stock
Option or an Incentive Stock Option.
(z) "Participant" shall mean an Eligible Employee who
has been granted an Award under this Plan.
(aa) "Performance Goal" shall mean EPS or ROE or Cash
Flow or Total Stockholder Return, and "Performance Goals" means
any combination thereof.
(ab) "Performance Share Award" shall mean an award of
shares of Common Stock made in accordance with Section 5.1.
(ac) "Personal Representative" shall mean the person or
persons who, upon the disability or incompetence of a
Participant, shall have acquired on behalf of the Participant, by
legal proceeding or otherwise, the power to exercise the rights
or receive benefits under this Plan and who shall have become the
legal representative of the Participant.
(ad) "Plan" shall mean this 1995 Stock Incentive Plan.
(ae) "QDRO" shall mean a qualified domestic relations
order as defined in Section 414(p) of the Code or Title I,
Section 206(d)(3) of ERISA (to the same extent as if this Plan
were subject thereto), or the applicable rules thereunder.
(af) "Restricted Stock Award" shall mean an award of a
fixed number of shares of Common Stock to the Participant
subject, however, to payment of such consideration, if any, and
such forfeiture provisions, as are set forth in the Award
Agreement.
(ag) "Restricted Stock" shall mean those shares of
Common Stock issued pursuant to a Restricted Stock Award which
are subject to the restrictions set forth in the applicable Award
Agreement.
(ah) "ROE" shall mean consolidated net income of the
Corporation (less preferred dividends), divided by the average
consolidated common shareholders equity.
(ai) "Rule 16b-3" shall mean Rule 16b-3 as
promulgated by the Commission pursuant to the Exchange Act, as
amended from time to time.
(aj) "Section 16 Person" shall mean a person subject
to Section 16(a) of the Exchange Act.
(ak) "Securities Act" shall mean the Securities Act of
1933, as amended from time to time.
(al) "Stock Appreciation Right" shall mean a right to
receive a number of shares of Common Stock or an amount of cash,
or a combination of shares and cash, the aggregate amount or
value of which is determined by reference to a change in the Fair
Market Value of the Common Stock that is authorized under this
Plan.
(am) "Subsidiary" shall mean any corporation or other
entity a majority of whose outstanding voting stock or voting
power is beneficially owned directly or indirectly by the
Corporation.
(an) "Total Disability" shall mean a "permanent and
total disability" within the meaning of Section 22(e)(3) of the
Code and such other disabilities, infirmities, afflictions or
conditions as the Committee by rule may include.
(ao) "Total Stockholder Return" shall mean with
respect to the Corporation or other entitles (if measured on a
relative basis), the (i) change in the market price of its common
stock (as quoted in the principal market on which it is traded as
of the beginning and ending of the period) plus dividends and
other distributions paid, divided by (ii) the beginning quoted
market price, all of which is adjusted for any changes in equity
structure, including but not limited to stock splits and stock
dividends.
<PAGE>
WYLE ELECTRONICS
NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT is dated as of the __ day of __________
19__, between Wyle Electronics, a California corporation (the
"Corporation"), and _______________ (the "Employee").
W I T N E S S E T H
WHEREAS, the Corporation has adopted and the share-
holders of the Corporation have approved the Wyle Electronics
1995 Stock Incentive Plan (the "Plan").
WHEREAS, pursuant to Article 2 of the Plan, the
Committee has granted an option to the Employee upon the terms
and conditions evidenced hereby, as required by the Plan, which
option is not intended as and shall not be deemed to be an
incentive stock option within the meaning of Section 422 of the
Code.
NOW THEREFORE, in consideration of the services
rendered and to be rendered by the Employee, the Corporation and
the Employee agree to the terms and conditions set forth herein
(including the terms and conditions incorporated by reference
from the Plan).
1. Defined Terms. Capitalized terms not otherwise
defined herein shall have the meaning assigned to such terms in
the Plan.
2. Option Grant. This Agreement evidences the grant
to the Employee, as of _______________, 19__ (the "Award Date"),
of a nonqualified stock option (the "Option") to purchase an
aggregate of _________ shares of Common Stock under Article 2 of
the Plan, subject to adjustment as provided in or pursuant to the
Plan.
3. Exercise Price. The Option entitles the Employee
to purchase on the terms and conditions set forth herein all or
any part of the Option shares at a price per share of $_________,
which represents the Fair Market Value of a share of Common Stock
on the Award Date.
4. Vesting. Except as provided in the Plan or in any
resolution of the Committee adopted after the date hereof, no
portion of the Option may be exercised until six months after the
Award Date. [ALTERNATIVE: After such date, the Option may be
exercised from time to time up to the total number of shares
subject to the Option.] [ALTERNATIVE: After such date, the
Option may be exercised in installments as to 20% of the
aggregate number of shares set forth in Section 2 hereof (subject
to adjustment) on or after the first anniversary of the Award
Date and as to an additional 20% of the aggregate number of such
shares (subject to adjustment) on or after each of the second,
third, fourth and fifth anniversaries of the Award Date.] If the
Employee does not, in any given year, purchase all of the shares
which he or she is entitled to purchase, the Employee's right to
purchase any shares not so purchased shall continue until
expiration or termination of the Option. Fractional share
interests shall be disregarded, but may be cumulated.
5. Option Term. The Option shall terminate on
_________________ (the day after the tenth anniversary of the
Award Date) (the "Expiration Date") unless earlier terminated in
accordance with the Plan.
6. Termination of Employment. The Option and all
other rights hereunder, to the extent not exercised prior to the
date the Employee ceases to be employed by the Corporation or any
Subsidiary, shall terminate on such date; provided, however, that
the Employee may, to the extent the Option shall have become
exercisable prior to such time as the Employee ceased to be
employed by the Corporation or any Subsidiary, exercise the
Option at any time within (i) up to three months after
termination of employment by reason of retirement under the
provisions of any retirement plan of the Corporation then in
effect, unless such period is extended by the Committee pursuant
to Section 6.3 of the Plan; or (ii) up to 12 months after the
Employee's death or Total Disability, if the Employee dies or
becomes Totally Disabled while in the employ of the Corporation.
The Committee shall have the authority to provide (at the time of
termination) in the event of any cessation of employment,
voluntary or involuntary and with or without cause, that the
exercise of the Option may be permitted up to any later date (but
not beyond the Expiration Date) to the extent the Option is
exercisable on the date of cessation of employment. A leave of
absence approved in writing by the Committee shall not be deemed
a termination of employment for purposes of this section, but no
Option may be exercised during any such leave of absence, except
during the first three months thereof. Unless sooner terminated
pursuant to the Plan or extended by the Committee pursuant to
Section 6.3 of the Plan, the Option shall expire at the end of
the applicable period specified in clauses (i) or (ii) above, to
the extent not exercised within that period. In no event may the
Option be exercised by any person after the Expiration Date.
7. Method of Exercise. The Option shall be exercised
by the Employee's delivery to the Corporation of a written notice
stating the number of shares to be purchased pursuant to the
Option and accompanied by payment made in accordance with and in
the forms described in Section 2.2 of the Plan for the full
purchase price of the shares to be purchased, subject to such
limitations and rules or procedures as the Committee may from
time to time establish as to non-cash payment and to the tax
withholding requirements of Section 6.5 of the Plan. To the
extent the Committee has not established rules and procedures
with respect to non-cash payments for shares, the Employee may
only deliver shares of Common Stock or pay with notes pursuant
to Section 2.2 of the Plan, with the prior approval of the
Committee.
8. Non-Transferability of Option. The Option and any
other rights of the Employee under this Agreement and the Plan
are nontransferable as provided in Section 1.8 of the Plan.
9. Adjustments upon Specified Changes. As set forth
in Section 6.2 of the Plan, upon the occurrence of certain
events relating to the Corporation's stock, including, without
limitation, mergers, reorganizations and recapitalizations, the
Committee has the discretion to make adjustments in the number
and kind of shares that may be issuable under, or in the
consideration payable with respect to, the Option.
10. Notices. Any notice to be given to the
Corporation under the terms of this Agreement shall be in writing
and addressed to the Corporation at its principal office located
at 15370 Barranca Parkway, Irvine, California 92718, to the
attention of the Corporate Secretary, and any notice to be given
to the Employee shall be addressed to him or her at the address
given beneath the Employee's signature hereto or at such other
address as either party may hereafter designate in writing to the
other party.
11. Tax Withholding. The provisions of Section 6.5 of
the Plan shall govern any withholding of taxes that the Company
employing the Employee is required to make with respect to the
exercise of the Option.
12. Amendment, Termination and Suspension. The
amendment, termination and suspension of the Plan shall be
governed by Section 6.6 of the Plan. The Committee with the
consent of the Employee may make such modifications of the terms
and conditions of the Option as the Committee shall deem
advisable, including, without limitation, those adjustments
described in Section 6.6(d) of the Plan.
13. General Terms. The Option and this Agreement are
subject to, and the Corporation and the Employee agree to be
bound by, the provisions of the Plan that apply to the Option,
including but not limited to Articles I, II, VI and VII. Such
provisions are incorporated herein by this reference. The
Employee acknowledges receiving a copy of the Plan and reading
its applicable provisions. Provisions of the Plan that grant
discretionary authority to the Committee shall not create any
rights in the Employee, unless such rights are expressly set
forth herein.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
WYLE ELECTRONICS
By: _________________________
Title: ______________________
EMPLOYEE
_____________________________
(Signature)
_____________________________
(Print Name)
_____________________________
(Address)
_____________________________
(City, State, Zip Code)
_____________________________
(Social Security Number)
<PAGE>
CONSENT OF SPOUSE
In consideration of the execution of the foregoing
Nonqualified Stock Option Agreement by Wyle Electronics, I,
____________________________, the spouse of the Employee herein
named, do hereby join with my spouse in executing the foregoing
Nonqualified Stock Option Agreement and do hereby agree to be
bound by all of the terms and provisions thereof and of the Plan.
DATED: ______________, 19__. _____________________________
Signature of Spouse
<PAGE>
WYLE ELECTRONICS
INCENTIVE STOCK OPTION AGREEMENT
THIS AGREEMENT is dated as of the __ day of __________
19__, between Wyle Electronics, a California corporation (the
"Corporation"), and _______________ (the "Employee").
W I T N E S S E T H
WHEREAS, the Corporation has adopted and the share-
holders of the Corporation have approved the Wyle Electronics
1995 Stock Incentive Plan (the "Plan").
WHEREAS, pursuant to Article 2 of the Plan, the
Committee has granted an option to the Employee upon the terms
and conditions evidenced hereby, as required by the Plan, which
option is intended as and shall be deemed to be an incentive
stock option within the meaning of Section 422 of the Code.
NOW, THEREFORE, in consideration of the services
rendered and to be rendered by the Employee, the Corporation and
the Employee agree to the terms and conditions set forth herein
(including the terms and conditions incorporated by reference
from the Plan).
1. Defined Terms. Capitalized terms not otherwise
defined herein shall have the meaning assigned to such terms in
the Plan.
2. Option Grant. This Agreement evidences the grant
to the Employee, as of _______________, 19__ (the "Award Date"),
of an incentive stock option (the "Option") to purchase an
aggregate of _________ shares of Common Stock under Article 2 of
the Plan, subject to adjustment as provided in or pursuant to the
Plan.
3. Exercise Price. The Option entitles the Employee
to purchase on the terms and conditions set forth herein all or
any part of the Option shares at a price per share of $_________,
which represents the Fair Market Value of a share of Common Stock
on the Award Date.
4. Vesting. Except as provided in the Plan or in any
resolution of the Committee adopted after the date hereof, no
portion of the Option may be exercised until one year after the
Award Date. [ALTERNATIVE: After such date, the Option may be
exercised from time to time up to the total number of shares
subject to the Option (subject to adjustment).] [ALTERATIVE:
After such date, the Option may be exercised in installments as
to 20% of the aggregate number of shares set forth in Section 2
hereof (subject to adjustment) on or after the first anniversary
of the Award Date and as to an additional 20% of the aggregate
number of such shares (subject to adjustment) on or after each of
the second, third, fourth and fifth anniversaries of the Award
Date.] If the Employee does not, in any given year, purchase all
of the shares which he or she is entitled to purchase, the
Employee's right to purchase any shares not so purchased shall
continue until expiration or termination of the Option.
Fractional share interests shall be disregarded, but may be
cumulated.
5. Option Term. The Option shall terminate on
_________________ (the day before the tenth anniversary of the
Award Date) (the "Expiration Date") unless earlier terminated in
accordance with the Plan.
6. Termination of Employment.
(a) The Option and all other rights hereunder, to the
extent not exercised prior to the date the Employee ceases to be
employed by the Corporation or any Subsidiary, shall terminate on
such date; provided, however, that the Employee may, to the
extent the Option shall have become exercisable prior to such
time as the Employee ceased to be employed by the Corporation or
any Subsidiary, exercise the Option at any time within (i) up to
three months after termination of employment by reason of
retirement under the provisions of any retirement plan of the
Corporation then in effect, unless such period is extended by the
Committee pursuant to Section 6.3 of the Plan; or (ii) up to 12
months after the Employee's death or Total Disability, if the
Employee dies or becomes Totally Disabled while in the employ of
the Corporation. The Committee shall have the authority to
provide (at the time of termination) in the event of cessation of
employment, voluntary or involuntary and with or without cause,
that the exercise of the Option may be permitted up to any later
date (but not beyond the Expiration Date) to the extent the
Option is exercisable on the date of cessation of employment.
A leave of absence approved in writing by the Committee shall
not be deemed a termination of employment for purposes of this
section, but no Option may be exercised during any such leave of
absence, except during the first three months thereof. Unless
sooner terminated pursuant to the Plan or extended by the
Committee pursuant to Section 6.3 of the Plan, the Option shall
expire at the end of the applicable period specified in clauses
(i) or (ii) above, to the extent not exercised within that
period.
(b) Notwithstanding the foregoing, the Option will
cease to be an incentive stock option and will be treated for tax
purposes as a nonqualified stock option unless the Option is
exercised prior to (i) three months after the Employee's
termination of employment for any reason other than death or
Total Disability, (ii) one year after the Employee's termination
of employment, if such termination is by reason of Total
Disability or if the Employee's Total Disability occurs within
the three-month period following termination of employment, or
(3) the Expiration Date, if the Employee's termination of
employment is by reason of death or if the Employee dies within
the three-month period following termination of employment. In
no event may the Option be exercised by any person after the
Expiration Date.
7. Method of Exercise. The Option shall be exercised
by the Employee's delivery to the Corporation of a written notice
stating the number of shares to be purchased pursuant to the
Option and accompanied by payment made in accordance with and in
the forms described in Section 2.2 of the Plan for the full
purchase price of the shares to be purchased, subject to such
limitations and rules or procedures as the Committee may from
time to time establish as to non-cash payment and, if then
applicable, to the tax withholding requirements of Section 6.5 of
the Plan. To the extent the Committee has not established rules
and procedures with respect to non-cash payments for shares, the
Employee may only deliver shares of Common Stock or pay with
notes pursuant to Section 2.2 of the Plan, with the prior
approval of the Committee.
8. Limitations on Incentive Stock Options. In the
event that the Employee is granted incentive stock options
(whether under this Agreement or any other incentive stock option
agreement) and the aggregate fair market value (determined as of
the date of grant of each option) of the Common Stock with
respect to which such options are first exercisable in any
calendar year exceeds $100,000, the most recently granted options
shall be treated as nonqualified stock options to the extent of
the excess. In addition, in the case of simultaneously granted
options, the Corporation may, in the manner and to the extent
permitted by law, designate which shares are to be treated as
stock acquired pursuant to the exercise of an incentive stock
option.
9. Non-Transferability of Option. The Option and any
other rights of the Employee under this Agreement and the Plan
are nontransferable as provided in Section 1.8 of the Plan.
10. Adjustments upon Specified Changes. As set forth
in Section 6.2 of the Plan, upon the occurrence of certain events
relating to the Corporation's stock, including, without
limitation, merger, reorganizations and recapitalizations, the
Committee has the discretion to make adjustments in the number
and kind of shares that may be issuable under, or in the
consideration payable with respect to, the Option.
11. Notices. Any notice to be given to the
Corporation under the terms of this Agreement shall be in writing
and addressed to the Corporation at its principal office located
at 15370 Barranca Parkway, Irvine, California 92718, to the
attention of the Corporate Secretary, and any notice to be given
to the Employee shall be addressed to him or her at the address
given beneath the Employee's signature hereto or at such other
address as either party may hereafter designate in writing to the
other party.
12. Tax Withholding. The provisions of Section 6.5 of
the Plan shall govern any withholding of taxes that the Company
is required to make with respect to the exercise of the Option.
13. Notice of Disposition. The Employee agrees to
notify the Corporation of any sale or other disposition of any
shares of Common Stock received upon exercise of the Option if
such sale or disposition occurs within two years after the Award
Date or within one year after the date of exercise of the Option.
14. Amendment, Termination and Suspension. The
amendment, termination and suspension of the Plan shall be
governed by Section 6.6 of the Plan. The Committee with the
consent of the Employee may make such modifications of the terms
and conditions of the Option as the Committee shall deem
advisable, including, without limitation, those adjustments
described in Section 6.6(d) of the Plan.
15. General Terms. The Option and this Agreement are
subject to, and the Corporation and the Employee agree to be
bound by, the provisions of the Plan that apply to the Option,
including but not limited to Articles I, II, VI and VII. Such
provisions are incorporated herein by this reference. The
Employee acknowledges receiving a copy of the Plan and reading
its applicable provisions. Provisions of the Plan that grant
discretionary authority to the Committee shall not create any
rights in the Employee, unless such rights are expressly set
forth herein.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
WYLE ELECTRONICS
By: _________________________
Title: ______________________
EMPLOYEE
_____________________________
(Signature)
_____________________________
(Print Name)
_____________________________
(Address)
_____________________________
(City, State, Zip Code)
_____________________________
(Social Security Number)
<PAGE>
CONSENT OF SPOUSE
In consideration of the execution of the foregoing
Incentive Stock Option Agreement by Wyle Electronics, I,
________________________________, the spouse of the Employee
herein named, do hereby join with my spouse in executing the
foregoing Incentive Stock Option Agreement and do hereby agree
to be bound by all of the terms and provisions thereof and of
the Plan.
DATED: ______________, 19__. _____________________________
Signature of Spouse
<PAGE>
WYLE ELECTRONICS
RESTRICTED STOCK AWARD AGREEMENT
(RELATING TO DEFERRAL OF 1996 INCENTIVE COMPENSATION AWARD)
THIS RESTRICTED STOCK AWARD AGREEMENT ("AGREEMENT")
is dated as of the ____ day of _______, 199_, between WYLE
ELECTRONICS, a California corporation (the "Corporation"), and
_________________________ (the "Employee").
W I T N E S S E T H
WHEREAS, the Corporation has adopted and the
shareholders of the Corporation have approved the Wyle
Electronics 1995 Stock Incentive Plan (the "Plan");
WHEREAS, the Executive Compensation Committee of the
Board has approved the Wyle Electronics 1996 Incentive
Compensation Award Program ("1996 Incentive Program") to provide
for the payment of cash incentive awards to a select group of key
employees (including executive officers) in accordance with the
terms of the 1996 Incentive Program;
WHEREAS, Employee has elected to defer a portion of any
award otherwise payable to Employee under the 1996 Program in the
form of the Corporation's Common Stock issued under the Plan
subject to certain restrictions;
WHEREAS, pursuant to the Employee's election and
Article IV of the Plan, the Committee has granted to the Employee
a restricted stock award upon the terms and conditions evidenced
hereby, as required by the Plan;
NOW, THEREFORE, in consideration of the services
rendered and to be rendered by the Employee, the Corporation and
the Employee agree to the terms and conditions set forth herein
(including the terms and conditions incorporated by reference
from the Plan).
1. Defined Terms. Capitalized terms not otherwise
defined herein shall have the meaning assigned to such terms in
the Plan.
2. Election and Determination of Number of Shares of
Restricted Stock. Employee has elected to defer a portion of his
1996 Incentive Program award in the form of restricted shares of
the Corporation's Common Stock as set forth in the attached
Election Form, the terms of which are hereby incorporated by
reference and made a part of this Agreement. The portion of
Employee's 1996 Incentive Program award which Employee has
elected to defer in restricted shares of the Corporation's Common
Stock shall be increased by a 25% premium. Such sum shall then
be converted into whole shares of Restricted Stock based upon the
closing price of the Corporation's Common Stock on the last
trading day of the performance period under the 1996 Incentive
Program ending December 31, 1996. Amounts which would otherwise
result in fractional shares will be paid in cash on the regular
payment date for awards under the 1996 Incentive Program.
3. Award and Purchase of Restricted Stock. The
Corporation hereby awards to the Employee, effective as of
___________, 19__ (the "Award Date"), the right to purchase from
the Corporation and the Employee hereby agrees to purchase
__________ shares of Common Stock of the Corporation, determined
pursuant to Section 2 above. The purchase price for the shares
of Common Stock being purchased shall be $1.00 per share.
4. Consideration to Corporation. As partial
consideration for the issuance of Restricted Stock by the
Corporation, Employee agrees to render faithful and efficient
services to the Corporation or a Subsidiary with such duties and
responsibilities as the Corporation shall from time to time
prescribe. Nothing in this Agreement or in the Plan shall confer
upon Employee any right to continue in the employ of the
Corporation or any Subsidiary or shall interfere with or restrict
in any way the rights of the Corporation and its Subsidiaries,
which are hereby expressly reserved, to terminate employment of
Employee at any time for any reason, with or without cause.
5. Restrictions on Transfer. The shares of Common
Stock awarded to the Employee pursuant to Section 3 hereof and
any additional shares attributable thereto received by the
Employee as a result of any stock dividend, recapitalization,
merger, reorganization or similar event described in Section 6.2
of the Plan (collectively, the "Restricted Stock") shall be
subject to the restrictions set forth herein and may not be sold,
assigned, transferred, pledged or otherwise disposed of, or
encumbered, during the applicable Restricted Period (as defined
below), except as permitted hereby. The Restricted Period shall
commence as the Award Date and shall terminate as follows:
(a) With respect to the number of shares of
Restricted Stock attributable to the Employee's 1996
Incentive Program award as described in Section 3, exclusive
of the number of shares attributable to the 25% premium
described in Section 2, (i.e., _______ shares), as follows:
Date Shares Become Percentage of Shares
Free From Restrictions Free From Restrictions
[Insert first anniversary 33-1/3%
of Award Date]
[Insert second anniversary 33-1/3%
of Award Date]
[Insert third anniversary 33-1/3%
of Award Date]
(b) With respect to the number of shares of
Restricted Stock attributable to the 25% premium described
in Section 2 (i.e., _________ shares), as follows:
Date Shares Become Percentage of Shares
Free From Restrictions Free From Restrictions
[insert third anniversary 100%
of Award Date]
6. Termination of Employment. If the Employee ceases
to be employed by the Corporation for any reason other than
death, Total Disability or Retirement (as defined below), all
shares of Restricted Stock which are then subject to any
restrictions set forth above, shall upon such termination of
employment be forfeited and returned to the Corporation. If the
employment of the Employee terminates by reason of death, Total
Disability or Retirement (as defined below), all shares of
Restricted Stock which are then subject to any restrictions set
forth above shall automatically be made free from such
restrictions. A leave of absence approved in writing by the
Committee shall not be deemed a termination of employment for
purposes of this section. For purposes of this Agreement,
Employee will be considered to have terminated by reason of
Retirement if the Employee retires under the provisions of any
retirement plan of the Corporation then in effect and immediately
commences to receive benefits thereunder.
7. Stock Certificate. A stock certificate issued in
respect of the shares of Restricted Stock issued pursuant to this
Agreement shall be registered in the name of the Employee and
shall be deposited by the Employee with the Corporation together
with a stock power endorsed in blank. The Corporation shall
provide the Employee with a receipt for such stock certificate
acknowledging that the Corporation is holding such certificate
pursuant to the terms of this Agreement.
All stock certificates for shares of Restricted Stock
during the Restricted Period shall bear the following legend:
"The transferability of this certificate and the shares
of stock represented hereby are subject to the terms
and conditions contained in an Agreement entered into
between the registered owner and Wyle Electronics. A
copy of such Agreement is on file in the office of the
Secretary of Wyle Electronics, 15370 Barranca Parkway,
Irvine, California 92718."
With regard to any shares of Restricted Stock which
cease to be subject to restrictions pursuant to Section 5, the
Corporation shall, within 60 days of the date such shares cease
to be subject to restrictions, transfer such shares free of all
restrictions set forth in the Plan and this Agreement to the
Employee or, in the event of such the Employee's death, to the
Employee's legal representative, heir or legatee.
8. Shareholder's Rights. Subject to the terms of
this Agreement, during the Restricted Period, the Employee shall
have, with respect to the Restricted Stock, all rights of a
shareholder of the Corporation, including the right to vote such
shares and the right to receive all regular cash dividends paid
with respect to the shares of Restricted Stock; provided, that
the right to receive regular cash dividends shall terminate
immediately with respect to any shares of Restricted Stock upon
forfeiture of those shares pursuant to Section 6 of this
Agreement.
9. Regulatory Compliance. The issue and sale of
shares of Restricted Stock shall be subject to full compliance
with all then applicable requirements of law and the requirements
of any stock exchange upon which the Common Stock of the
Corporation may be listed.
10. Withholding Tax. The Employee agrees that, in the
event the purchase of the Restricted Stock or the expiration of
restrictions thereon results in the Employee's realization of
income which for federal, state or local income tax purposes is,
in the opinion of counsel for the Corporation, subject to
withholding of tax at source by the Corporation, the Employee
will pay to the Corporation an amount equal to such withholding
tax (or the Corporation may withhold such amount from the
Employee's salary or from dividends deposited with the
Corporation with respect to the Restricted Stock).
11. Investment Representation. The Employee
represents and agrees that if the Employee purchases the
Restricted Stock at a time when there is not in effect under the
Securities Act of 1933 (the "Securities Act") a registration
statement relating to the shares and there is not available for
delivery a prospectus meeting the requirements of Section
10(a)(3) of the Securities Act, (i) the Employee will acquire the
shares upon such purchase for the purpose of investment and not
with a view to their resale or distribution, (ii) that upon such
purchase, the Employee will furnish to the Corporation an
investment letter in form and substance satisfactory to the
Corporation, (iii) prior to selling or offering for sale any such
shares, the Employee will furnish the Corporation with an opinion
of counsel satisfactory to it to the effect that such sale may
lawfully be made and will furnish it with such certificates as to
factual matters as it may reasonably request, and (iv) that
certificates representing such shares may be marked with an
appropriate legend describing such conditions precedent to sale
or transfer.
12. Federal Income Tax Election. The Employee hereby
acknowledges receipt of advice that pursuant to current federal
income tax laws, (i) the Employee has 30 days in which to elect
to be taxed in the current taxable year on the difference between
the amount paid, if any, for the Restricted Stock and the Fair
Market Value thereof in accordance with the provisions of
Internal Revenue Code Section 83(b) and, (ii) if no such election
is made, the taxable event will occur when the shares of
Restricted Stock cease to be subject to restriction, and the tax
will be measured by the difference between the amount paid, if
any, for the Restricted Stock and the Fair Market Value of the
Restricted Stock on the date of the taxable event.
13. Notices. Any notice to be given to the
Corporation under the terms of this Agreement shall be in writing
and addressed to the Corporation at its principal office located
at 15370 Barranca Parkway, Irvine, California 92718, Attention:
Corporation Secretary, and any notice to be given to the Employee
shall be addressed to him or her at the address given beneath the
Employee's signature hereto, or at such other address as either
party may hereafter designate in writing to the other party.
14. Amendment, Termination and Suspension. The
amendment, termination and suspension of the Plan shall be
governed by Section 6.6 of the Plan. The Committee with the
consent of the Employee may make such modifications of the terms
and conditions of the award under this Agreement as the Committee
shall deem advisable, including, without limitation, those
adjustments described in Section 6.6(d) of the Plan.
15. General Terms. The award of Restricted Stock and
this Agreement are subject to, and the Corporation and the
Employee agree to be bound by, the provisions of the Plan that
apply to the Restricted Stock, including but not limited to
Articles I, IV, VI and VII. Such provisions are incorporated
herein by this reference. The Employee acknowledges receiving a
copy of the Plan and reading its applicable provisions.
Provisions of the Plan that grant discretionary authority to the
Committee shall not create any rights in the Employee, unless
such rights are expressly set forth herein.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date and year first written above.
WYLE ELECTRONICS
By: __________________________
Title: _______________________
EMPLOYEE
______________________________
(Signature)
______________________________
(Print Name)
______________________________
(Address)
______________________________
(City, State, Zip Code)
______________________________
(Social Security Number)
<PAGE>
CONSENT OF SPOUSE
In consideration of the execution of the foregoing
Restricted Stock Award Agreement by the Corporation, I,
_________________, the spouse of the Employee herein named, do
hereby join with my spouse in executing the foregoing Restricted
Stock Award Agreement and do hereby agree to be bound by all of
the terms and provisions thereof and of the Plan.
DATED: _______________, 19__. ____________________________
Signature of Spouse
<PAGE>
Stephen D. Natcher
Senior Vice President - Administration
General Counsel and Secretary
Wyle Electronics
15370 Barranca Parkway
Irvine, California 92718
January 10, 1996
Wyle Electronics
15370 Barranca Parkway
Irvine, California 92718
Re: Registration on Form S-8 of Wyle Electronics (the "Company")
Gentlemen:
At your request, I have examined the Registration
Statement on Form S-8 to be filed with the Securities and
Exchange Commission in connection with the registration under the
Securities Act of 1933, as amended, of 500,000 shares of Common
Stock, without par value, of the Company (the "Common Stock"),
and related rights (together with the Common Stock, the "Shares"),
to be issued pursuant to the Company's 1995 Stock Incentive Plan
(the "Plan"). I have examined the proceedings heretofore taken
and to be taken in connection with the authorization of the Plan
and the Shares to be issued pursuant to and in accordance with
the Plan.
Based upon such examination and upon such matters of
fact and law as I have deemed relevant, I am of the opinion that
the Shares have been duly authorized by all necessary corporate
action on the part of the Company and, when issued in accordance
with such authorization, the provisions of the Plan and relevant
agreements duly authorized by and in accordance with the terms of
the Plan, will be validly issued, fully paid and nonassessable.
I consent to the use of this opinion as an exhibit to
the Registration Statement.
Respectfully submitted,
__/s/ Stephen D. Natcher__
Stephen D. Natcher
Senior Vice President -
Administration,
General Counsel and Secretary
<PAGE>
ARTHUR
ANDERSEN
ARTHUR ANDERSEN & CO, SC
CONSENT OF ARTHUR ANDERSEN LLP
As independent public accountants, we hereby consent to
the incorporation by reference in this Form S-8 registration
statement of our reports dated March 14, 1995, incorporated
by reference in Wyle Electronics Form 10-K for the year
ended December 31, 1994 and to all references to our Firm
included in this registration statement.
__/s/ Arthur Andersen LLP__
ARTHUR ANDERSEN LLP
Los Angeles, California
January 10, 1996
