<PAGE>
As filed with the Securities and Exchange Commission on June 27, 1997
Registration No. 333-_____
===========================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________
BINKS SAMES CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Delaware 36-0808480
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
9201 West Belmont Avenue, Franklin Park, Illinois 60131
(Address, Including Zip Code of Registrant's Principal Executive Offices)
AMENDED AND RESTATED 1996 STOCK OPTION PLAN
(Full Title of the Plan)
BINKS SAMES CORPORATION
9201 West Belmont Avenue
Franklin Park, Illinois 60131
(847) 671-3000
(Name, Address and Telephone Number, Including Area Code, of Agent For
Service)
Copies To:
Guy E. Snyder, Esq.
Steven J. Gray, Esq.
VEDDER, PRICE, KAUFMAN & KAMMHOLZ
222 N. LaSalle Street
Chicago, Illinois 60601
(312) 609-7500
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================
Proposed Maximum Proposed Maximum
Title Of Securities Amount to Offering Aggregate Offering Amount of
To Be Registered Be Registered Price Per Share(1) Price(1) Registration Fee
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Capital Stock, par 300,000 $45.00 $13,500,000 $4,091
value $1.00 per share,
including related Capital
Stock Purchase Rights
====================================================================================================
</TABLE>
(1) Pursuant to Rule 457(h)(1) under the Securities Act of 1933, the
proposed maximum offering price per share and the registration fee
have been based upon the average of the high and low prices for
the Capital Stock as reported on the American Stock Exchange on
June 24, 1997.
<PAGE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Note: The document(s) containing the information required by this
section will be given to the participants in the Binks Sames
Corporation Amended and Restated 1996 Stock Option Plan (the
"Plan"), and are not required to be filed with the Securities and
Exchange Commission (the "Commission") as a part of the
Registration Statement.
2
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission by Binks Sames
Corporation, a Delaware corporation formerly known as Binks Manufacturing
Company ("Binks" or the "Corporation"), are incorporated as of their
respective dates in this Registration Statement by reference:
A. Binks' Annual Report on Form 10-K for the fiscal year ended
November 30, 1996.
B. All other reports filed by Binks pursuant to Sections 13(a) or
15(d) of the Securities Exchange Act of 1934 ("Exchange Act")
since November 30, 1996.
C. The description of Binks' Securities contained in Bink's
Registration Statement on Form 8-A, dated February 13, 1990, as
amended by Form 8 dated January 21, 1991.
All documents filed by Binks pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or
which deregisters all securities then remaining unsold are incorporated by
reference in this Registration Statement and are a part hereof from the
date of filing such documents. Any statement contained in a document
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 superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Article III, Section 6 of Bink's By-Laws provides as follows:
Article III. Section 6. Indemnification of Directors and Officers.
(a) The Corporation shall, to the fullest extent to which it
is empowered to do by the General Corporation Law of Delaware or any other
applicable laws, as may from time to time be in effect, indemnify any
person who was or is, or is threatened to be made, a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in
the right of the Corporation), by reason of the fact that he is or was a
director or officer of the Corporation, or is or was serving at the request
of the Corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise, against all expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction,
or upon a plea of nolo contendere or its equivalent, shall not, of itself,
3
<PAGE>
<PAGE>
create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
The Corporation may make advances against any such expenses upon terms
determined by the Board of Directors.
(b) The Corporation shall have power to indemnify any person
who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that
he is or was a director, officer, employee or agent of the Corporation, or
is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust
or other enterprise against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection with the defense or settlement
of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation and except that no indemnification shall be made in respect of
any claim, issue or matter as to which such person shall have been adjudged
to be liable for negligence or misconduct in the performance of his duty to
the Corporation unless and only to the extent that the Court of Chancery or
the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably
entitled to indemnify for such expenses which the Court of Chancery or such
other court shall deem proper.
(c) To the extent that a director, officer, employee or
agent of the Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in subsections (a)
and (b) of this Section 6, or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of
this Section 6 (unless ordered by a court) shall be made by the Corporation
only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in
the circumstances because he has met the applicable standard of conduct set
forth in subsections (a) and (b) of this Section 6. Such determination
shall be made (1) by the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to such action, suit or
proceeding, or (2) if such a quorum is not obtainable, or, even if
obtainable a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (3) by the stockholders.
(e) Expenses incurred in defending a civil or criminal
action, suit or proceeding may be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding as authorized by the
Board of Directors in the specific case upon receipt of an undertaking by
or on behalf of the director, officer, employee or agent to repay such
amount unless it shall ultimately be determined that he is entitled to be
indemnified by the Corporation as authorized in this section.
(f) Persons who are not covered by the foregoing provisions
of this Section 6 and who are or were employees or agents of the
Corporation, or are or were serving at the request of the Corporation as
employees or agents of another corporation, partnership, joint
venture,trust or other enterprise, may be indemnified to the extent
authorized at any time or from time to time by the Board of Directors.
(g) The indemnification provided by this Section 6 shall not
be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any By-Law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in
his official capacity and as to action in another capacity while holding
such office, and shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
4
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<PAGE>
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Amendment of Restated Certificate of Incorporation (filed
herewith)
4.2 Restated Certificate of Incorporation<FN1>
4.3 Amended and Restated By-Laws, as of December 11,
1996<FN2>
4.4 Amended and Restated Rights Agreement, dated as of
February 2, 1990, as amended and restated as of
January 21, 1991, between Binks Manufacturing Company and
Harris Trust and Savings Bank, as successor rights
agent<FN3>
5.1 Opinion of Vedder, Price, Kaufman & Kammholz as to the
legality of the Securities being registered (filed
herewith)
23.1 Consent of KPMG Peat Marwick LLP (filed herewith)
23.2 Consent of Crowe, Chizek and Company LLP (filed herewith)
23.3 Consent of Vedder, Price, Kaufman & Kammholz (included in
Exhibit 5.1)
24.1 Power of Attorney (included on the signature pages of the
Registration Statement)
99.1 Binks Sames Corporation Amended and Restated 1996 Stock
Option Plan (filed herewith)
______________
<FN1> Filed as Exhibit 3.1 to the Corporation's Form 10-K for its
fiscal year ended November 30, 1993 and incorporated herein
by reference.
<FN2> Filed as Exhibit 3.2 to the Corporation's Form 10-K for its
fiscal year ended November 30, 1996 and incorporated herein
by reference.
<FN3> Filed as Exhibit 4.3 to the Corporation's Form 10-K for its
fiscal year ended November 30, 1993 and incorporated herein
by reference.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this
Registration Statement to include any material
information with respect to the plan of distribution not
previously disclosed in the Registration Statement or
any material change to such information set forth in the
Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered therein,
5
<PAGE>
<PAGE>
and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933,
each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in this Registration Statement shall
be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide
offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the
Securities Act of 1933 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 of 1933 and will be
governed by the final adjudication of such issue.
6
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the registrant certifies that it has reasonable grounds to believe
that it meets all 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 Village of Franklin Park,
State of Illinois, on this 24 day of June, 1997.
BINKS SAMES CORPORATION
By: /s/ Doran J. Unschuld
---------------------
Doran J. Unschuld
President and
Chief Executive Officer
We, the undersigned officers and directors of Binks Sames
Corporation, and each of us, do hereby constitute and appoint each and any
of John J. Schornack and Doran J. Unschuld, our true and lawful attorney
and agent, with full power of substitution and resubstitution, to do any
and all acts and things in our name and behalf in any and all capacities
and to execute any and all instruments for us in our names in any and all
capacities, which attorney and agent may deem necessary or advisable to
enable said corporation to comply with the Securities Act of 1933, as
amended, and any rules, regulations, and requirements of the Securities and
Exchange Commission, in connection with this Registration Statement,
including specifically, but without limitation, power and authority to sign
for us or any of us in our names in the capacities indicated below, any and
all amendments (including post-effective amendments) hereto; and we do
hereby ratify and confirm all that said attorney and agent, or his
substitute, shall do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ John J. Schornack Chairman of the Board June 26, 1997
- --------------------------- and Director
John J. Schornack
/s/ Doran J. Unschuld President, Chief Executive June 24, 1997
- --------------------------- Officer, and Director
(Principal Executive Officer)
/s/ Jeffrey W. Lemajeur Vice President of Finance, June 24, 1997
- --------------------------- Chief Financial Officer, and
Jeffrey W. Lemajeur Treasurer
(Principal Financial and
Accounting Officer)
/s/ William W. Roche Director June 26, 1997
- ---------------------------
William W. Roche
7
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<PAGE>
/s/ Dr. Donald G. Meyer Director June 26, 1997
- ---------------------------
Dr. Donald G. Meyer
/s/ Clifford J. Vaughan Director June 26, 1997
- ---------------------------
Clifford J. Vaughan
/s/ Dr. Wayne F. Edwards Director June 26, 1997
- ---------------------------
Dr. Wayne F. Edwards
/s/ Terrence P. Roche Director June 26, 1997
- ---------------------------
Terrence P. Roche
8
<PAGE>
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Description of Exhibit
- ------- ----------------------
4.1 Amendment to Restated Certificate of Incorporation (filed
herewith)
4.2 Restated Certificate of Incorporation<FN1>
4.3 Amended and Restated By-Laws, as of December 11, 1996<FN2>
4.4 Amended and Restated Rights Agreement, dated as of February
2, 1990, as amended and restated as of January 21, 1991,
between Binks Manufacturing Company and Harris Trust and
Savings Bank, as successor rights agent<FN3>
5.1 Opinion of Vedder, Price, Kaufman & Kammholz as to the
legality of the Securities being registered (filed herewith)
23.1 Consent of KPMG Peat Marwick LLP (filed herewith)
23.2 Consent of Crowe, Chizek and Company LLP (filed herewith)
23.3 Consent of Vedder, Price, Kaufman & Kammholz (included in
Exhibit 5.1)
24.1 Power of Attorney (included on the signature pages of the
Registration Statement)
99.1 Binks Sames Corporation Amended and Restated 1996 Stock
Option Plan (filed herewith)
______________
<FN1> Filed as Exhibit 3.1 to the Corporation's Form 10-K for its
fiscal year ended November 30, 1993 and incorporated herein
by reference.
<FN2> Filed as Exhibit 3.2 to the Corporation's Form 10-K for its
fiscal year ended November 30, 1996 and incorporated herein
by reference.
<FN3> Filed as Exhibit 4.3 to the Corporation's Form 10-K for its
fiscal year ended November 30, 1993 and incorporated herein
by reference.
<PAGE>
Exhibit 4.1
BINKS MANUFACTURING COMPANY
(a Delaware corporation)
CERTIFICATE OF AMENDMENT
OF THE RESTATED
CERTIFICATE OF INCORPORATION
BINKS MANUFACTURING COMPANY, a corporation organized and existing
under the laws of the State of Delaware (the "Corporation"), pursuant to
Section 242 of The General Corporation Law of the State of Delaware (the
"Corporation Law"),
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of the Corporation, at a meeting
duly held, adopted resolutions proposing and declaring advisable the
following amendments to the Restated Certificate of Incorporation of the
Corporation:
RESOLVED, that Article FIRST of the Certificate of
Incorporation be amended to read in its entirety as follows:
FIRST: The name of this Corporation is
BINKS SAMES CORPORATION
FURTHER RESOLVED, that the second paragraph of Article FOURTH
of the Certificate of Incorporation be amended to read in its entirety as
follows:
In addition to any other vote otherwise required by law or
this restated certificate of incorporation, (a) the merger or
consolidation of the Corporation with, or the sale, lease or
exchange of all or substantially all of the property and assets
of the Corporation to, any person, firm, corporation or other
entity, or (b) the issuance or creation of any shares of stock
of any class (other than the issuance of shares by means of a
stock dividend payable solely to the holders of the then
outstanding shares) having voting power in excess of 25% of the
total number of shares of stock of all classes having voting
power then outstanding, excluding treasury shares, or (c) the
amendment or repeal of any provisions of this second paragraph
of Article FOURTH, shall be authorized, approved or become
effective only upon receiving the favorable vote of not less
than 75% of the total number of shares of stock of all classes
having voting power of the Corporation then outstanding, voting
together as a single class, at the annual or a special meeting
of stockholders held for the purpose of acting thereon. Except
as hereinabove provided, shares of capital stock of the
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Corporation may be issued by the Corporation from time to time
in such amounts and proportions and for such consideration as
may be fixed and determined from time to time by the Board of
Directors and as shall be permitted by law.
SECOND: That the foregoing amendments to the Restated Certificate of
Incorporation of the Corporation were duly approved and adopted by the
Stockholders of the Corporation on April 29, 1997, in accordance with the
provisions of Section 242 of the Corporation Law.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
executed by Doran J. Unschuld, its President, and attested by Guy E.
Snyder, its Secretary, the 9th day of May, 1997.
BINKS MANUFACTURING COMPANY
/s/ Doran J. Unschuld
---------------------------------
Doran J. Unschuld
President
ATTEST:
/s/ Guy E. Snyder
- ----------------------------------
Guy E. Snyder
Secretary
<PAGE>
Exhibit 5.1
June 27, 1997
Binks Sames Corporation
9201 West Belmont Avenue
Franklin Park, Illinois 60131
Re: Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed
by Binks Sames Corporation (the "Corporation") with the Securities and
Exchange Commission on or about June 27, 1997 (the "Registration
Statement") in connection with the registration under the Securities Act of
1933, as amended (the "Act"), of 300,000 shares of Capital Stock, par value
$1.00 per share (the "Shares"), issuable under the Corporation's Amended
and Restated 1996 Stock Option Plan (the "Plan").
Based upon the foregoing, and assuming the Shares are issued in
accordance with the Plan, it is our opinion that, after the effectiveness
of the Registration Statement under the Act, the Shares, when issued, will
be validly issued, fully-paid and non-assessable.
The law covered by the opinions expressed herein is limited to the
Federal securities laws of the United States of America and the laws of the
State of Delaware.
We consent to the use of this opinion as an exhibit to the
Registration Statement, and further consent to the use of our name wherever
appearing in the Registration Statement and any amendments thereto.
Very truly yours,
VEDDER, PRICE, KAUFMAN
& KAMMHOLZ
<PAGE>
Exhibit 23.1
CONSENT OF KPMG PEAT MARWICK LLP
To Binks Sames Corporation (formerly known as Binks Manufacturing Company):
We consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 21, 1997 relating to the
consolidated financial statements of Binks Manufacturing Company and
Consolidated Subsidiaries as of November 30, 1996, and the related
consolidated statements of operations, stockholders' equity, and cash flows
for the years ended November 30, 1996 and 1994, appearing on page F-2 of
the Binks Manufacturing Company Annual Report on Form 10-K for the year
ended November 30, 1996.
KPMG PEAT MARWICK LLP
Chicago, Illinois
June 25, 1997
<PAGE>
Exhibit 23.2
CONSENT OF CROWE, CHIZEK AND COMPANY LLP
To Binks Sames Corporation:
We consent to the inclusion in this Registration Statement on Form S-8
of our report dated February 9, 1996, of our audit of the consolidated
financial statements of Binks Sames Corporation and Consolidated
Subsidiaries as of November 30, 1995, and the related consolidated
statements of income, stockholders' equity, and cash flows for the year
ended November 30, 1995, appearing on page F-3 of the Binks Sames
Corporation Annual Report on Form 10-K for the year ended November 30,
1996.
Crowe, Chizek and Company LLP
Oak Brook, Illinois
June 20, 1997
<PAGE>
Exhibit 99.1
BINKS SAMES CORPORATION AMENDED AND RESTATED
1996 STOCK OPTION PLAN
Article 1.
Establishment, Objectives, and Duration
1.1 Establishment of the Plan. BINKS MANUFACTURING COMPANY, a
Delaware corporation (hereinafter referred to as the "Company"), hereby
establishes an incentive compensation plan to be known as the Binks
Manufacturing Company 1996 Stock Option Plan (hereinafter referred to as
the "Plan"), as set forth in this document.
Subject to approval by the Company's stockholders, the Plan shall
become effective as of October 24, 1996 (the "Effective Date") and shall
remain in effect as provided in Section 1.3 hereof.
1.2 Purpose of the Plan. The purpose of this Plan is to benefit
the Company and its subsidiaries and affiliated companies by enabling the
Company to offer to certain present and future executives, key personnel,
consultants and non-employee directors stock based incentives in the
Company, thereby giving them a stake in the growth and prosperity of the
Company and encouraging the continuance of their services with the Company
or subsidiaries or affiliated companies.
1.3 Duration of the Plan. The Plan shall commence on the Effective
Date and shall remain in effect, subject to the right of the Board of
Directors to amend or terminate the Plan at any time pursuant to Article 16
hereof, until all Shares subject to it shall have been purchased or
acquired according to the Plan's provisions. However, in no event may an
Award be granted under the Plan on or after October 24, 2006.
Article 2.
Definitions
Whenever used in the Plan, the following terms shall have the
meanings set forth below, and when the meaning is intended, the initial
letter of the word shall be capitalized:
"Award" means, individually or collectively, a grant under this Plan
of Nonqualified Stock Options or Incentive Stock Options.
"Award Agreement" means a writing provided by the Company to each
Participant setting forth the terms and provisions applicable to Awards
granted under this Plan. The Participant's acceptance of the terms of the
Award Agreement shall be evidenced by his or her continued employment
without written objection before any exercise or payment of the Award. If
the Participant objects in writing, the grant of the Award shall be
revoked.
"Beneficial Owner" or "Beneficial Ownership" shall have the meaning
ascribed to such term in Rule 13d-3 of the General Rules and Regulations
under the Exchange Act.
"Board" or "Board of Directors" means the Board of Directors of the
Company.
"Cause" shall mean, with respect to termination of a Participant's
employment or directorship, the occurrence of any one or more of the
following, as determined by the Committee, in the exercise of good faith
and reasonable judgment:
<PAGE>
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(i) In the case where there is no employment, change in control or
similar agreement in effect between the Participant and the
Company or a Subsidiary at the time of the grant of the Award,
or where there is such an agreement but the agreement does not
define "cause" (or similar words) or a "cause" termination
would not be permitted under such agreement at that time
because other conditions were not satisfied, the termination of
an employment or consulting arrangement due to the willful and
continued failure or refusal by the Participant to
substantially perform assigned duties (other than any such
failure resulting from the Participant's Disability), the
Participant's dishonesty or theft, the Participant's violation
of any obligations or duties under any employee agreement, or
the Participant's gross negligence or willful misconduct; or
(ii) In the case where there is an employment, change in control or
similar agreement in effect between the Participant and the
Company or a Subsidiary at the time of the grant of the Award
that defines "cause" (or similar words) and a "cause"
termination would be permitted under such agreement at that
time, the termination of an employment or consulting
arrangement that is or would be deemed to be for "cause" (or
similar words) as defined in such agreement.
No act or failure to act on a Participant's part shall be considered
willful unless done, or omitted to be done, by the Participant not in good
faith and without reasonable belief that his action or omission was in the
best interest of the Company.
"Change of Control" of the Company shall mean:
(a) The Company is merged or consolidated or reorganized into or
with another corporation or other legal person (an "Acquiror")
and as a result of such merger, consolidation or reorganization
less than 50% of the outstanding voting securities or other
capital interests of the surviving, resulting or acquiring
corporation or other legal person are owned in the aggregate by
the stockholders of the Company, directly or indirectly,
immediately prior to such merger, consolidation or
reorganization, other than by the Acquiror or any corporation
or other legal person controlling, controlled by or under
common control with the Acquiror;
(b) The Company sells all or substantially all of its business
and/or assets to an Acquiror, of which less than 50% of the
outstanding voting securities or other capital interests are
owned in the aggregate by the stockholders of the Company,
directly or indirectly, immediately prior to such sale, other
than by any corporation or other legal person controlling,
controlled by or under common control with the Acquiror;
(c) There is a report filed on Schedule 13D or Schedule 14D-1 (or
any successor schedule, form or report), each as promulgated
pursuant to the Exchange Act, or other public announcement
disclosing that any person or group (as the terms "person" and
"group" are used in Section 13(d)(3) or Section 14(d)(2) of the
Exchange Act and the rules and regulations promulgated
thereunder) has become the beneficial owner (as the term
"beneficial owner" is defined under Rule 13d-3 or any successor
rule or regulation promulgated under the Exchange Act) of 15%
or more of the issued and outstanding shares of voting
securities of Company, other than (i) a trustee or other
fiduciary holding securities under any employee benefit plan of
the Company or any Subsidiary, (ii) a corporation owned
directly or indirectly by the stockholders of the Company in
substantially the same proportion as their ownership of stock
in the Company, (iii) Burke B. Roche, his spouse or any of
their descendants or any spouse of their descendants, William
B. Roche, his spouse or any of their descendants or any spouse
of their descendants, any trust or other arrangement for the
benefit of Burke B. Roche, William B. Roche, the spouse of
either of them, or any of their descendants or the spouse of
any such descendants (Burke B. Roche, William B. Roche and such
other individuals, trusts or other arrangements, collectively,
the "Roche Family"), or (iv) any group which includes the Roche
Family if a majority of the voting securities of the Company
beneficially owned by such group are beneficially owned by the
Roche Family; or
2
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(d) Individuals who are members of the Incumbent Board cease to
constitute a majority of the Board of Directors of the Company.
For this purpose, "Incumbent Board" means (i) the members of
the Board of Directors of the Company on the Effective Date and
(ii) any individual who becomes a member of the Board of
Directors of the Company after the Effective Date, if such
individual's election or nomination for election as a Director
was approved by the affirmative vote of the then Incumbent
Board.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, or any successor legislation thereto.
"Committee" means the Committee as specified in Article 3 herein
appointed by the Board to administer the Plan with respect to grants of
Awards.
"Common Stock" means the common stock, $1.00 par value per share, of
the Company.
"Company" means Binks Manufacturing Company, a Delaware corporation,
as well as any successor to such entity as provided in Article 13 herein.
"Director" means any individual who is a member of the Board of
Directors of the Company.
"Disability" shall have the meaning ascribed to such term in the
Participant's governing long-term disability plan. If no long term
disability plan is in place with respect to a Participant, then with
respect to that Participant, Disability shall have the same meaning
ascribed to such term under Section 22(e)(3) of the Code.
"Early Retirement" means the Participant's termination of employment
with the Company and all Subsidiaries (for reasons other than Cause) on or
after attaining age 55 having completed five or more years of employment
with the Company or Subsidiaries.
"Effective Date" shall have the meaning ascribed to such term in
Section 1.1 hereof.
"Employee" means any employee of the Company or any Subsidiary, or
any consultant who provides services to the Company or any Subsidiary;
provided, that for purposes hereof, references to periods of employment or
termination of employment shall be deemed, in the case of a consultant, to
be references to his or her consulting arrangement with the Company or any
Subsidiary. Non-Employee Directors shall not be considered Employees under
this Plan unless specifically designated otherwise.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor act thereto.
"Fair Market Value" shall mean, as of any date, the closing sales
price of the Common Stock on the American Stock Exchange Composite Tape (as
reported in The Wall Street Journal, Midwest Edition) on such date (or if
the date is not a trading day, on the trading day next preceding the date
of exercise).
"Incentive Stock Option" or "ISO" means an option to purchase Shares
granted under Article 6 herein and which is designated as an Incentive
Stock Option and which is intended to meet the requirements of Code Section
422.
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"Non-Employee Director" means, as of a given date, an individual who
is a Director but who is not an Employee of the Company or any Subsidiary,
and since the date of the most recent annual meeting of stockholders at
which he or she was elected a Director (or, if he or she was not elected at
an annual meeting, the date the individual was first elected to the Board
of Directors) has not been an Employee.
"Nonqualified Stock Option" or "NQSO" means an option to purchase
Shares granted under Article 6 herein and which is not intended to meet the
requirements of Code Section 422.
"Option" means an Incentive Stock Option or a Nonqualified Stock
Option, as described in Article 6 herein.
"Option Price" means the price at which a Share may be purchased by a
Participant pursuant to an Option.
"Participant" means an individual who has outstanding an Award
granted under the Plan.
"Person" shall have the meaning ascribed to such term in Section
3(a)(9) of the Exchange Act and used in Sections 13(d) and 14(d) thereof,
including a group as defined in Section 13(d) thereof.
"Retirement" means the Participant's termination of employment with
the Company or its Subsidiaries (for reasons other than Cause) on or after
the date the Participant attains age 65, or, in the case of Non-Employee
Directors, shall mean the termination of his or her directorship (for
reasons other than Cause) on or after attaining age 55.
"Shares" means shares of Common Stock, $1 par value per share, of the
Company.
"Subsidiary" means any corporation, partnership, joint venture,
affiliate, or other entity in which the Company is the direct or indirect
beneficial owner of not less than 20% of all issued and outstanding equity
interests.
Article 3.
Administration
3.1 The Committee. The Plan shall be administered by the Board, or
by the Compensation Committee of the Board, or by any other Committee
appointed by the Board. The functions of the Committee may be exercised by
the full Board.
3.2 Authority of the Committee. Except as limited by law or by the
Certificate of Incorporation or Bylaws of the Company, and subject to the
provisions herein, the Committee shall have full power to select Employees
and consultants who shall participate in the Plan; determine the sizes and
types of Awards; determine the terms and conditions of Awards in a manner
consistent with the Plan; construe and interpret the Plan and any agreement
or instrument entered into under the Plan; establish, amend, or waive rules
and regulations for the Plan's administration; and (subject to the
provisions of Article 11 herein) amend the terms and conditions of any
outstanding Award to the extent such terms and conditions are within the
discretion of the Committee as provided in the Plan. Further, the
Committee shall make all other determinations which may be necessary or
advisable for the administration of the Plan. As permitted by law, the
Committee may delegate the authority granted to it herein.
3.3 Decisions Binding. All determinations and decisions made by
the Committee pursuant to the provisions of the Plan and all related orders
and resolutions of the Board shall be final, conclusive and binding on all
persons, including the Company, its stockholders, Employees, Participants,
and their estates and beneficiaries.
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Article 4.
Shares Subject to the Plan and Maximum Awards
4.1 Shares Available for Awards. The aggregate number of Shares
which may be issued or used for reference purposes under this Plan or with
respect to which Awards may be granted shall not exceed 300,000 Shares
(subject to adjustment as provided in Section 4.3), which may be either
authorized and unissued Shares or Shares held in or acquired for the
treasury of the Company. Of the aggregate number of Shares, up to all of
such Shares may be issued with respect to Incentive Stock Option Awards.
Upon:
(a) a cancellation, termination, expiration, forfeiture, or
lapse for any reason of any Award; or
(b) payment of an Option Price and/or payment of any taxes
arising upon exercise of an Option with previously
acquired Shares or by withholding Shares which otherwise
would be acquired on exercise or issued upon such payout,
then the number of Shares underlying any such Award which were not issued
as a result of any of the foregoing actions shall again be available for
the purposes of Awards under the Plan.
4.2 Individual Participant Limitations. Subject to adjustment as
provided in Section 4.3 herein, the maximum aggregate number of Shares with
respect to which Options may be granted in any one fiscal year to a
Participant shall be 50,000.
4.3 Adjustments in Authorized Shares. In the event of any change
in corporate capitalization, such as a stock split, or a corporate
transaction, such as any merger, consolidation, separation, including a
spin-off, or other distribution of stock or property of the Company, any
reorganization (whether or not such reorganization comes within the
definition of such term in Code Section 368) or any partial or complete
liquidation of the Company, such adjustment shall be made in the number and
class of Shares available for Awards, the number and class of and/or price
of Shares subject to outstanding Awards granted under the Plan and the
number of Shares set forth in Sections 4.1 and 4.2, as may be determined to
be appropriate and equitable by the Committee, in its sole discretion, to
prevent dilution or enlargement of rights; provided, however, that the
number of Shares subject to any Award shall always be a whole number.
Article 5.
Eligibility and Participation
5.1 Eligibility. Persons eligible to participate in this Plan
include all Employees of the Company and its Subsidiaries, as determined by
the Committee, including Employees who are Directors and Employees who
reside in countries other than the United States of America. Non-Employee
Directors shall also be eligible to receive Awards of Nonqualified Stock
Options under the Plan.
5.2 Actual Participation. Subject to the provisions of the Plan,
the Committee may, from time to time, select from all eligible Employees,
those to whom Awards shall be granted and shall determine the nature and
amount of each Award.
Article 6.
Stock Options
6.1 Grant of Options. Subject to the terms and provisions of the
Plan, Options may be granted to Employees at any time and from time to time
as determined by the Committee in its sole discretion. The Committee, in
its sole discretion, shall determine the number of Shares subject to each
Option, provided that during any Fiscal Year, no Participant shall be
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granted Options covering more than 50,000 Shares. The Committee may grant
Incentive Stock Options, Nonqualified Stock Options, or a combination
thereof.
6.2 Award Agreement. Each Option shall be evidenced by an Award
Agreement that shall specify the Exercise Price, the expiration date of the
Option, the number of Shares to which the Option pertains, any conditions
to exercise of the Option, and such other terms and conditions as the
Committee, in its discretion, shall determine. The Award Agreement shall
specify whether the Option is intended to be an Incentive Stock Option or
Nonqualified Stock Option.
6.3 Exercise Price. Subject to the provisions of this Section 6.3,
the Exercise Price for each Option shall be determined by the Committee in
its sole discretion.
(a) Nonqualified Stock Options. In the case of a
Nonqualified Stock Option, the Exercise Price shall be
not less than the Fair Market Value of a Share on the
Grant Date.
(b) Incentive Stock Options. In the case of an Incentive
Stock Option, the Exercise Price shall be not less than
one hundred percent (100%) of the Fair Market Value of a
Share on the Grant Date; provided, however, that if on
the Grant Date, the Employee (together with persons whose
stock ownership is attributed to the Employee pursuant to
Section 424(d) of the Code) owns stock possessing more
than 10% of the total combined voting power of all
classes of stock of the Company or any of its
Subsidiaries, the Exercise Price shall be not less than
one hundred and ten percent (110%) of the Fair Market
Value of a Share on the Grant Date.
(c) Substitute Options. Notwithstanding the provisions of
Sections 6.3(a) and 6.3(b), in the event that the Company
or a Subsidiary consummates a transaction described in
Section 424(a) of the Code (e.g., the acquisition of
property or stock from an unrelated corporation), persons
who become Employees on account of such transaction may
be granted Options in substitution for options granted by
their former employer. If such substitute Options are
granted, the Committee, in its sole discretion and
consistent with Section 424(a) of the Code, shall
determine the Exercise Price of such substitute Options.
6.4 Expiration of Options. Subject to the provisions of Section
6.8, Options granted pursuant to this Article 6 shall expire in accordance
with this Section 6.4.
(a) Expiration Dates. Each Option granted pursuant to this
Article 6 shall terminate no later than the first to
occur of the following events:
(i) The date for termination of the Option set forth in
the written Award Agreement; or
(ii) The expiration of ten (10) years from the Grant
Date; or
(iii) The expiration of one (1) month from the date of
the Participant's termination of employment for a
reason other than the Participant's death,
Disability, Retirement, Early Retirement (under
circumstances described in Section 6.4(b) below
relating to retirement from the industry) or for
Cause; or
(iv) The expiration of three (3) years from the date of
the Participant's termination of employment by
reason of death or Disability; or
(v) The date of termination of employment in the event
of a termination for Cause.
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(b) Effect of Death, Disability, Retirement and Early
Retirement. Notwithstanding Section 6.4(a):
(i) Upon the death or Disability of the Participant,
each Option held by the Participant shall become
exercisable in full (without regard to any
installment or other vesting provisions thereof)
and shall be exercisable thereafter until the first
to occur of the dates set forth in Section
6.4(a)(i), (ii) or (iv).
(ii) Upon Retirement, each Option held by the
Participant shall become exercisable in full
(without regard to any installment or other vesting
provisions thereof) and shall be exercisable by the
Participant until the earlier of the date of
termination of the Option set forth in the Award
Agreement or the expiration of ten (10) years from
the Grant Date of the Option.
(iii) Upon Early Retirement, each Option held by a
Participant who from such Early Retirement retires
and remains retired from the industry (a "sunset
arrangement") shall remain outstanding and, to the
extent not then exercisable, shall become
exercisable in accordance with the installment or
other vesting provisions thereof as if the
Participant continued as an Employee of the Company
or a Subsidiary during such sunset arrangement. The
Options, to the extent exercisable at Early
Retirement or which become exercisable during the
sunset arrangement shall remain exercisable by the
Participant until the earlier of the date of
termination of the Option set forth in the Award
Agreement or the expiration of ten (10) years from
the Grant Date. In the event the Participant does
not remain so retired in accordance with the sunset
arrangement, then the Participant shall be deemed
to have terminated employment under circumstances
described in Section 6.4(a)(iii) above as of such
date he or she fails to be so retired and his or
her Options shall terminate on the first to occur
of the dates set forth in Section 6.4(a)(i), (ii)
or (iii).
(iv) In the event of the death of the Participant after
his Retirement or Early Retirement, but prior to
the expiration of his or her Options, then his or
her Options shall be exercisable in full by his or
her beneficiaries until the earlier of the date
such Options would have expired had the Participant
survived until such date or the expiration of three
(3) years for the date of the Participant's death.
(c) Committee Discretion. Subject to the limits of Section
6.4(a) and (b) above, the Committee, in its sole
discretion shall provide in each Award Agreement when
each Option expires and becomes unexercisable. In the
event the Award Agreement does not set forth such
provisions, then the Option evidenced thereby shall
expire and become unexercisable in accordance with the
provisions of Section 6.4(a) and (b) above.
6.5 Exercisability of Options. Options granted under the Plan
shall be exercisable at such times and be subject to such restrictions and
conditions as the Committee shall determine in its sole discretion and
prescribe in the Award Agreement. In the event that the Award Agreement
does not set forth times with respect to the exercisability of Options,
then each such Option granted to an Employee shall become exercisable on
the first anniversary of the Grant Date to the extent of one-fourth (25%)
of the Shares which may be purchased under the Option (rounded down to the
nearest whole number), and on each of the second, third and fourth
anniversary of the Grant Date to the extent of an additional one-fourth
(25%) of such Shares. After an Option is granted, the Committee, in its
sole discretion, may accelerate the exercisability of the Option.
Notwithstanding the foregoing, upon a Change in Control, any and all
Options granted under this Article 6 shall become immediately exercisable
in full.
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6.6 Payment. Options shall be exercised by the Participant's
delivery of a written notice of exercise to the Secretary of the Company
(or its designee), setting forth the number of Shares with respect to which
the Option is to be exercised, accompanied by full payment for the Shares.
Upon the exercise of any Option, the Exercise Price shall be payable
to the Company in full in cash or its equivalent. The Committee, in its
sole discretion, also may permit exercise (a) by tendering previously
acquired Shares having an aggregate Fair Market Value at the time of
exercise equal to the total Exercise Price, or (b) by any other means which
the Committee, in its sole discretion, determines to both provide legal
consideration for the Shares, and to be consistent with the purposes of the
Plan.
As soon as practicable after receipt of a written notification of
exercise and full payment for the Shares purchased, the Company shall
deliver to the Participant (or the Participant's designated broker), Share
certificates (which may be in book entry form) representing such Shares.
6.7 Restrictions on Share Transferability. The Committee may
impose such restrictions on any Shares acquired pursuant to the exercise of
an Option as it may deem advisable, including, but not limited to,
restrictions related to applicable Federal securities laws, the
requirements of any national securities exchange or system upon which
Shares are then listed or traded, or any blue sky or state securities laws.
6.8 Certain Additional Provisions for Incentive Stock Options.
(a) Exercisability. The aggregate Fair Market Value
(determined on the Grant Date(s)) of the Shares with
respect to which Incentive Stock Options are exercisable
for the first time by any Employee during any calendar
year (under all plans of the Company and its
Subsidiaries) shall not exceed $100,000, provided,
however, that in the event that acceleration of the
exercisability of an Incentive Stock Option would cause
such $100,000 limitation to be exceeded, then those
Incentive Stock Options up to such $100,000 limitation
(determined in the order such Options were granted) shall
continue to be Incentive Stock Options and the remainder
shall be Nonqualified Stock Options.
(b) Termination of Employment. No Incentive Stock Option may
be exercised more than three (3) months after the
Participant's termination of employment with the Company
and all Subsidiaries for any reason other than Disability
or death (in which case the Incentive Stock Option may be
exercised until the expiration of one (1) year from the
date of death or disability), unless (i) the Participant
dies during such three-month period, in which case the
Incentive Stock Option may be exercised by his or her
beneficiaries until the expiration of one (1) year from
the date of death, or (ii) the Award Agreement or the
Committee permits later exercise, provided that if the
Incentive Stock Option is not exercised within such three
(3) month or one (1) year periods, whichever is
applicable, then such Incentive Stock Option shall become
a Nonqualified Stock Option.
(c) Employees Only. Incentive Stock Options may be granted
only to individuals who are Employees (other than
consultants) on the Grant Date.
(d) Expiration. No Incentive Stock Option may be exercised
after the expiration of ten (10) years from the Grant
Date; provided, however, that if the Option is granted to
an Employee who, together with persons whose stock
ownership is attributed to the Employee pursuant to
section 424(d) of the Code, owns stock possessing more
than 10% of the total combined voting power of all
classes of the stock of the Company or any of its
Subsidiaries, the Option may not be exercised after the
expiration of five (5) years from the Grant Date.
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Article 7.
Non-Employee Directors
7.1 Granting of Options.
(a) Initial Awards. Each Non-Employee Director who (i) is a
Non-Employee Director on the Effective Date of the Plan
or (b) first becomes a Non-Employee Director after the
Effective Date of the Plan shall be granted a
Nonqualified Stock Option to purchase 3,000 Shares. Such
Option shall be granted on either the Effective Date of
the Plan, or the date such person first becomes a Non-
Employee Director, as the case may be.
(b) Annual Awards. Thereafter, for so long as the Non-
Employee Director remains such, he or she annually shall
be granted an Option for an additional 1,000 Shares,
2,000 Shares, if such Non-Employee Director shall also be
serving as Chairman of the Board. Each such Option shall
be granted on the date of each Annual Meeting of
Stockholders, commencing with the 1997 Annual Meeting of
Stockholders, but only if the Non-Employee Director will
continue to serve as a Director after such Annual
Meeting.
(c) Other Awards. The Board of Directors may in its
discretion increase the number of Shares subject to an
initial Award or annual Award in recognition of
significant additional duties and responsibilities
assumed by a Non-Employee Director in connection with his
or her service as chairman of the Board of Directors or
other positions on the Board of Directors.
7.2 Terms of Options.
(a) Option Agreement. Each Option granted pursuant to this
Article 7 shall be evidenced by an Award Agreement which
shall be executed by the Participant and the Company.
(b) Exercise Price. The Exercise Price for the Shares
subject to each Option granted pursuant to this Article 7
shall be 100% of the Fair Market Value of such Shares on
the Grant Date.
(c) Exercisability. Each initial Award granted pursuant to
Section 7.1(a) shall become exercisable on the first
anniversary of the Grant Date to the extent of one-fourth
(25%) of the Shares which may be purchased under the
Option (rounded down to the nearest whole number), and on
each of the second, third and fourth anniversary of the
Grant Date to the extent of an additional one-fourth
(25%) of such Shares. After an Option is granted, the
Committee, in its sole discretion, may accelerate the
exercisability of the Option. Notwithstanding the
foregoing, upon a Change in Control, any and all Options
granted under this Article 7 shall become immediately
exercisable in full. Each annual Award granted pursuant
to Section 7.1(b) shall become exercisable in full on the
first anniversary of the Grant Date.
(d) Expiration of Options. Each Option granted under this
Article 7 shall terminate upon the first to occur of the
following events:
(i) The expiration of ten (10) years from the Grant
Date; or
(ii) The expiration of one (1) month from the date of
the termination of the Participant's service as a
Director for a reason other than death, Disability,
Retirement or Cause; or
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(iii) The expiration of three (3) years from the date of
the termination of the Participant's service as a
Director by reason of death or Disability; or
(iv) The date of termination of the Participant's
service as a Director for Cause.
(e) Effect of Death, Disability or Retirement.
(i) Upon the death or Disability of the Participant,
each Option granted under this Article 7 held by
the Participant shall become exercisable in full
(without regard to any installment or other vesting
provisions thereof) and shall be exercisable
thereafter until the first to occur of the dates
set forth in Section 7.2(d)(i) or (iii).
(ii) Upon Retirement, each Option granted under this
Article 7 held by the Participant shall become
exercisable in full (without regard to any
installment or other vesting provisions thereof)
and shall be exercisable by the Participant until
the expiration of ten (10) years from the Grant
Date of the Option.
(iii) In the event of the death of the Participant after
his or her Retirement, but prior to the expiration
of his or her Options granted under this Article 7,
such Options shall be exercisable in full by his or
her beneficiaries until the earlier of the date
such Options would have expired had the Participant
survived until such date or the expiration of three
(3) years from the date of the Participant's death.
(f) Other Terms. All provisions of the Plan not inconsistent
with this Article 7 shall apply to Options granted to
Non-Employee Directors.
Article 8.
Beneficiary Designation
Each Participant under the Plan may, from time to time, name any
beneficiary or beneficiaries (who may be named contingently or
successively) to whom any benefit under the Plan is to be paid in case of
his or her death before he or she receives any or all of such benefit.
Each such designation shall revoke all prior designations by the same
Participant, shall be in a form prescribed by the Company, and will be
effective only when filed by the Participant in writing with the Secretary
of the Company during the Participant's lifetime. In the absence of any
such designation, benefits remaining unpaid at the Participant's death
shall be paid to the Participant's estate.
Article 9.
Deferrals
The Committee may permit a Participant to defer such Participant's
receipt of the delivery of Shares that would otherwise be due to such
Participant upon the exercise of any Option.
Article 10.
Limited Transferability
The Committee may, in its discretion, authorize all or a portion of
the Options (other than Incentive Stock Options) granted to a Participant
to be on terms which permit transfer by such Participant to (a) the spouse,
children or grandchildren of the Participant ("Immediate Family Members"),
(b) a trust or trusts for the exclusive benefit of such Immediate Family
Members, or (c) a partnership in which such Immediate Family Members are
the only partners, provided that (i) there may be no consideration for any
such transfer, (ii) the Award Agreement pursuant to which such Options are
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granted expressly provides for transferability in a manner consistent with
this Article 10, and (iii) subsequent transfers of transferred Options
shall be prohibited except those in accordance with Article 8. Following
transfer, any such Options shall continue to be subject to the same terms
and conditions as were applicable immediately prior to transfer, provided
that for purposes of Article 8 hereof the term "Participant" shall be
deemed to refer to the transferee. The provisions of Articles 6 and 7
relating to the period of exercisability and expiration of the Option shall
continue to be applied with respect to the original Participant, and the
Options shall be exercisable by the transferee only to the extent, and for
the periods, set forth in said Articles 6 and 7.
Article 11.
Amendment, Modification, and Termination
11.1 Amendment, Modification, and Termination. The Board may at any
time and from time to time, alter, amend, suspend or terminate the Plan in
whole or in part; subject to any requirement of stockholder approval
imposed by applicable law, rule or regulation.
11.2 Awards Previously Granted. No termination, amendment, or
modification of the Plan shall adversely affect in any material way any
Award previously granted under the Plan, without the written consent of the
Participant holding such Award.
Article 12.
Withholding
12.1 Tax Withholding. The Company shall have the power and the
right to deduct or withhold, or require a Participant to remit to the
Company, an amount sufficient to satisfy Federal, state, and local taxes,
domestic or foreign, required by law or regulation to be withheld with
respect to any taxable event arising as a result of the Plan.
12.2 Share Withholding. With respect to withholding required upon
the exercise of Options, or upon any other taxable event arising as a
result of Awards granted hereunder, Participants may elect to satisfy the
withholding requirement, in whole or in part, by having the Company
withhold Shares having a Fair Market Value on the date the tax is to be
determined equal to the minimum statutory total tax which would be imposed
on the transaction. All such elections shall be irrevocable, made in
writing, signed by the Participant, and shall be subject to any
restrictions or limitations that the Committee, in its sole discretion,
deems appropriate.
Article 13.
Successors
All obligations of the Company under the Plan with respect to Awards
granted hereunder shall be binding on any successor to the Company, whether
the existence of such successor is the result of a direct or indirect
merger, consolidation, purchase of all or substantially all of the business
and/or assets of the Company or otherwise.
Article 14.
Legal Construction
14.1 Gender and Number. Except where otherwise indicated by the
context, any masculine term used herein also shall include the feminine;
the plural shall include the singular and the singular shall include the
plural.
14.2 Severability. In the event any provision of the Plan shall be
held illegal or invalid for any reason, the illegality or invalidity shall
not affect the remaining parts of the Plan, and the Plan shall be construed
and enforced as if the illegal or invalid provision had not been included.
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14.3 Requirements of Law. The granting of Awards and the issuance
of Shares under the Plan shall be subject to all applicable laws, rules,
and regulations, and to such approvals by any governmental agencies or
national securities exchanges as may be required.
14.4 Governing Law. To the extent not preempted by Federal law, the
Plan, and all agreements hereunder, shall be construed in accordance with
and governed by the laws of the State of Delaware.
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