SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1 )*
Allegheny & Western Energy Corporation
(Name of Issuer)
Common Stock, par value $.01
(Title of Class of Securities)
01722710
(CUSIP Number)
W. Merwyn Pittman
300 Capitol Street, Suite 1600
Charleston, WV 25301
(304) 343-4567
___________________________
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
February 13, 1994
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition which is the subject of this
Schedule 13D, and is filing this schedule because of Rule
13d-1(b)(3) or (4), check the following box [ ].
Check the following box if a fee is being paid with the statement
[ ]. (A fee is not required only if the reporting person: (1) has
a previous statement on file reporting beneficial ownership of
more than five percent of the class of securities described in
Item 1; and (2) has filed no amendment subsequent thereto
reporting beneficial ownership of five percent
or less of such class.) (See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits,
should be filed with the Commission. See Rule 13d-1(a) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to
the subject class of securities, and for any subsequent amendment
containing information which would alter disclosures provided in
a prior cover page.
The information required on the remainder of this cover page
shall not be deemed to be "filed" for the purpose of Section 18
of the Securities Exchange Act of 1934 ("Act") or otherwise
subject to the liabilities of that
section of the Act but shall be subject to all other provisions
of the Act (however, see the Notes).
<PAGE>
SCHEDULE 13D
CUSIP No. 01722710 Page 2 of 25 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
John G. McMillian
###-##-####
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
2 (a)___
(b)___
3 SEC USE ONLY
4 SOURCE OF FUNDS*
SC
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
5 PURSUANT TO ITEMS 2(d) OR 2(e) ___
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
NUMBER OF 7 SOLE VOTING POWER 1,026,000
SHARES
BENEFICIALLY 8 SHARED VOTING POWER 0
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER 1,026,000
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER 0
WITH
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,026,000
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
12 CERTAIN SHARES* ___
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13.3%
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE
ATTESTATION
<PAGE>
Item 1. Security and Issuer.
The class of equity securities to which this Statement
on Schedule 13D (this "Statement") relates is the common stock,
par value $.01 per share (the "Common Stock"), of Allegheny &
Western Energy Corporation, a West Virginia corporation
("Allegheny"). The address of the principal
executive offices of Allegheny is 300 Capitol Street, Suite 1600,
Charleston, WV 25301.
Item 2. Identity and Background.
This Statement is being filed by John G. McMillian (the
"Reporting Person"). The Reporting Person's business addresses
are 501 Brickell Key Drive, Suite 201, Miami, FL 33131 and 300
Capitol Street, Suite 1600, Charleston, WV 25301. The Reporting
Person's present principal occupation is
as Chairman, President and Chief Executive Officer of Allegheny.
During the last five years, the Reporting Person has not been
convicted in any criminal proceeding (excluding traffic
violations or similar misdemeanors). During the
last five years, the Reporting Person has not been a party to a
civil proceeding of a judicial or administrative body of
competent jurisdiction as a result of which he was or is subject
to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating
activities subject
to, Federal or State securities laws or finding any violation
with respect to such laws. The Reporting Person is a citizen of
the United States.
Item 3. Source and Amount of Funds or Other Consideration.
On September 15, 1989, Allegheny granted to the
Reporting Person
options (the "Expired Options") to purchase 500,000 shares of
Common Stock.
The Expired Options became fully exercisable on November 16, 1991
and expired on February 15, 1994. On February 21, 1990,
Allegheny granted to the Reporting Person options to purchase
500,000 additional shares of Common Stock
(the "1990 Options") and, on February 13, 1994, Allegheny granted
to the Reporting Person options to purchase 500,000 additional
shares of Common Stock
to replace the Expired Options (the "Replacement Options"). The
1990 Options
and the Replacement Options are currently exercisable in their
entirety at exercise prices of $8.25 and $8.07, respectively.
The 1990 Options and the
Replacement Options are hereinafter collectively referred to as
the "Options".
Item 4. Purpose of Transaction.
The Reporting Person acquired the Options for
investment purposes.
The Reporting Person may seek to acquire additional
shares of
Common Stock through open market or privately negotiated
transactions from
time to time in his discretion. Any such purchases will depend
upon the market prices for the Common Stock, the number of shares
which may become available for purchase at prices which the
Reporting Person regards as attractive and various other factors
which the Reporting Person may determine
to be relevant. Alternatively, the Reporting Person may in the
future determine to dispose of all or a portion of the shares of
Common Stock held by him, depending, among other things, on the
then market price for the shares of Common Stock. Such sales may
be in transactions in the open market or in privately negotiated
transactions.
Except as set forth in this Item 4, the Reporting
Person does not
have any present plans or proposals which relate to or would
result in any of the actions enumerated under Item 4 of Schedule
13D.
Item 5. Interest in Securities of the Issuer.
As of the close of business on February 13, 1994, the
Reporting Person owned directly 1,026,000 shares of Common Stock
and Options which constituted approximately 13.3% of the
7,697,460 shares of Common Stock
outstanding on February 10, 1994. The Reporting Person has sole
power to vote or to direct the vote, dispose or to direct the
disposition of such 1,026,000 shares of Common Stock and Options.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the Issuer.
The Options were granted under Allegheny's 1987 Stock
Option Plan (the "1987 Stock Option Plan").
Item 7. Material to be Filed as Exhibits.
The following exhibit is filed herewith:
1. 1987 Stock Option Plan.
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my
knowledge and belief, I certify that the information set forth in
this statement is true, complete and correct.
March 9, 1994
/s/ John G. McMillian
John G. McMillian
Chairman, President and
Chief Executive Officer
<PAGE>
ALLEGHENY & WESTERN ENERGY CORPORATION
Stock Option Plan (1987), as amended
1. Purpose of the Plan. The purpose of the Allegheny & Western
Energy Corporation Stock Option Plan, as amended, (the "Plan") is
to authorize the grant to key directors and employees of
Allegheny & Western Corporation (the "Corporation") or any
present or future subsidiary or parent thereof (as such terms are
hereinafter defined) of options ("options") to purchase shares of
common stock of the Corporation, par value $.01 (the "Common
Stock"), and thus benefit the Corporation by giving such
employees a greater personal interest in the success of the
enterprise and an added incentive to continue and advance in
their employment. Options granted may be accompanied by stock
appreciation rights, as hereinafter set forth. The terms
"subsidiary" and "parent" as used in the Plan shall mean any
corporation which, as to the Corporation, is a "subsidiary
corporation" or "parent corporation", as the case may be, within
the meaning of section 425 of the Internal Revenue Code of 1986,
as amended (the "Code").
2. Administration. The Plan shall be administered by the
Board of Directors of the corporation (the "Board"), upon
recommendations made by a committee to be appointed from time to
time by the Board (the "Committee"), which Committee shall
consist of not less than three persons, who may be members of the
Board. The Board shall fill all vacancies, however caused, in
the Committee. The Board may from time to time appoint
additional members to the Committee, and may at any time remove
one or more committee members and substitute others. The
Committee shall select one of its members as its chairman and
shall hold its meetings at such times and places as it shall deem
advisable. A majority of the Board and the Committee shall
constitute a quorum of each, respectively, and all determinations
of the Board and of the Committee shall be made by majority vote
of members either present in person or participating by
conference telephone, at a meeting which is duly held, upon
notice, and at which a quorum is present or by written consent.
The Board, upon recommendation of the Committee, shall
have authority, subject to the terms of the Plan: to determine
the individuals to whom options shall be granted, the number of
shares of Common Stock to be covered by each option, the purchase
price per share of Common Stock covered by each option, whether
an option shall be a non-qualified option or an incentive stock
option (as such terms are hereinafter defined), the time or times
at which options may be granted, and the terms and provisions of
the agreements by which options shall be evidenced; with the
consent of individuals to whom options have been granted, to
grant in substitution for outstanding options replacement
options, which may be at a lower purchase price (but, in the case
of incentive stock options, at a purchase price not less than the
fair market value of the Common Stock subject to the replacement
option at the time of substitution), and to cancel such
outstanding options; to grant stock appreciation rights to the
holder of any option granted under the Plan with respect to all
or some of the shares of Common Stock covered by such an option;
to interpret the Plan; to establish, amend and rescind rules and
guidelines for administering the Plan; and to make all
determinations necessary or advisable, in its sole discretion,
for the administration of the Plan.
The Board upon recommendation of the Committee, may
designate any officer of the Corporation to assist it in the
administration of the Plan and may grant authority to any such
officer to execute agreements or other documents and otherwise
take action on behalf of the Board. The Board and the Committee
may each employ legal counsel and such other professional
advisors as each may deem desirable for the administration of the
Plan and may rely on any opinion received from such counsel or
advisor.
Notwithstanding the foregoing, the Board may delegate
to the Committee full authority to administer the Plan, provided
that the Committee must at that time and thereafter consist of
not less than three persons, none of whom is or shall have been
for at least one year prior to exercising discretion in
administering the Plan eligible to participate in the Plan or any
other plan of the Corporation or any of its affiliates entitling
the participants therein to acquire stock or restricted stock,
stock options or stock appreciation rights.
3. Shares Subject to Options. Subject to adjustment under
the provisions of section 12, the maximum number of shares of
Common Stock that may be issued upon the exercise of all options
granted under the Plan shall be 750,000 shares. Such shares may
be either authorized and unissued shares or shares issued and
thereafter acquired by the Corporation. If options granted under
the Plan shall terminate, be cancelled, or expire without being
wholly exercised, the number of shares to which such termination,
cancellation or expiration relates shall be available for future
option grants under the Plan. The Corporation shall not, upon
the exercise of any option, be required to issue or deliver any
shares of Common Stock prior to the completion of such
registration or other qualification of such shares under any
state or federal law, rule or regulation as the Corporation shall
determine to be necessary or advisable.
4. Grants of Options. The date of grant of an option
under the Plan will be the date on which the option is awarded by
the Board or the Committee, as the case may be (the body
responsible for administering the Plan shall hereinafter be the
"Administrating Body"), unless a later date is specified by the
Administrating Body at the time of the award. The Corporation
shall evidence the options so awarded by executing written
agreements, within a reasonable time following the date of grant,
in a form approved by the Administrating Body. An option granted
under this Plan shall be either an incentive stock option (an
"incentive stock option") conforming to the provisions of section
422A of the Code or an option that is not an incentive stock
option (a "non-qualified stock option").
5. Eligibility. Non-qualified stock options and incentive
stock options may be granted to employees (including directors
who are also employees) of the Corporation or any subsidiary or
parent. In the event that the Plan is administered by the Board,
non-employee directors shall not be eligible to be granted
options under the Plan, except that the Chairman of the Executive
Committee of the Board of Directors of the Corporation (whether
or not he is employed by the Corporation) shall be eligible to be
granted non-qualified stock options. In the event that the Plan
is administered by the Committee delegated such responsibility by
the Board pursuant to Section 2 hereof, non-employee directors
who are not members of the Committee shall be eligible to be
granted non-qualified stock options under the Plan.
Notwithstanding the foregoing, no employee of the
Corporation or any subsidiary or parent shall be granted an
incentive stock option under this Plan (a) if such employee at
the time the option is proposed to be granted owns stock
possessing more than ten percent (10%) of the total combined
voting power of all classes of stock of the Corporation or any
subsidiary or parent, unless the option price is at least one
hundred ten percent (110%) of the fair market value of the stock
subject to the option and the option is not exercisable more than
five years from the date it is granted, and (b) to the extent
that the aggregate fair market value (determined at the time the
option is granted) of the Common Stock with respect to which
incentive stock options granted under the Plan (and all other
plans of the Corporation or any subsidiary or parent) are
exercisable for the first time by such employee during any
calendar year exceeds $100,000.
6. Purchase Price. The purchase price per share of Common
Stock under each option will be determined by the Administrating
Body, but in the case of an incentive stock option the purchase
price per share will not be less than one hundred percent (100%)
of the fair market value of a share of Common Stock at the time
of the grant of the option, as determined by the Administrating
Body in accordance with applicable Treasury Regulations. In no
event shall the purchase price per share of Common Stock under
any option be less than the par value of a share of Common Stock.
7. Period of Option and Rights to Exercise. Subject to
the provisions of this section and sections 10 and 11, an option
shall be exercisable as follows:
(a) An option shall become exercisable in whole or in
installments as set forth in the agreement evidencing the option,
and, in the event of installments, may be accelerated by the
Administrating Body upon the happening of an event which the
Administrating Body determines in its discretion makes such
acceleration appropriate;
(b) The right to purchase the shares included in each
installment shall be cumulative; i.e., once such right has become
exercisable it may be exercised in whole at any time or in part
from time to time until the expiration of the option;
(c) If the optionee holds more than one option that
has become exercisable, the options may be exercised in any order
and need not be exercised in the order they were granted;
(d) The right to exercise an option shall expire on
the expiration date specified in the agreement evidencing the
option, which in no event shall be later than five (5) years from
the date the option was granted;
(e) The shares to be purchased upon each exercise of
any option shall be paid for in full at the time of such
exercise. Such payment shall be made in cash, in Common Stock
owned by the optionee and having a fair market value on the date
of exercise equal to the aggregate purchase price of the shares
of Common Stock to be purchased upon such exercise, or in a
combination of Common Stock owned by the optionee and cash with
an aggregate value equal to such aggregate purchase price.
(f) If while unexercised options remain outstanding
under the Plan --
(i) any corporation, person or other entity
(other than the Corporation) makes a tender or exchange
offer for shares of the Corporation's Common Stock pursuant
to which purchases are made ("Offer"), or
(ii) the stockholders of the Corporation approve
a definitive agreement to merge or consolidate the
Corporation with or into another corporation or to sell or
otherwise dispose of all or substantially all of its assets,
or adopt a plan of liquidation, or
(iii) Common Stock representing more than 30% of
the voting power of this Corporation is acquired other than
pursuant to a public offering of the Common Stock by any
person or group, or
(iv) during any period of two consecutive years,
individuals who at the beginning of such period were members
of 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 stockholders, of each new
director was approved by a vote of at least two-thirds of
the directors then still in office who were directors at the
beginning of such period),
then from and after the date of the first purchase of Common
Stock pursuant to such Offer, or the date of any such stockholder
approval or adoption, or the date on which public announcement of
the acquisition of such percentage shall have been made, or the
date on which the change in the composition of the Board set
forth above shall have occurred, whichever is applicable (such
date being referred to herein as the "Acceleration Date"), all
options shall be exercisable in full, whether or not otherwise
exercisable. Following the Acceleration Date, the Administrating
Body shall, in the case of a merger, consolidation or sale or
disposition of assets, promptly make an appropriate adjustment to
the number and class of shares of Common Stock available for
options, and to the amount and kind of shares or other securities
or property receivable upon exercise of any outstanding options
after the effective date of such transaction, and the price
thereof.
This section 7(f) shall not apply to a merger or
consolidation in which the Corporation is the surviving
corporation and shares of Common Stock are not converted into or
exchanged for stock, securities of any other corporation, Except
as provided in sections 10 and 11, no incentive stock option may
be exercised unless the optionee is then an employee of the
Corporation or any subsidiary or parent and shall have been
continuously in the service of one or more of the Corporation or
any subsidiary or parent since the grant of the option. The
absence of an employee on leave approved by an officer of the
Corporation or a subsidiary or parent authorized to give such
approval shall not be considered an interruption of service for
any purpose of the Plan.
Unless waived by the Corporation, each optionee agrees
to hold the shares purchased pursuant to the exercise of an
option granted under the Plan for investment and consents to the
placing of investment legends on the stock certificates.
If the exercise results in income to the optionee, the
optionee shall pay to the Corporation the amount of tax required
to be withheld under applicable rules of the Internal Revenue
Service.
8. Non-Transferability of Option. Stock options granted
under the Plan shall be transferable or otherwise assignable only
upon the death of an optionee and then only to his executor or
personal representative, who shall, in the event of the
optionee's death, have the right to exercise the option within a
period of one (1) year to the same extent the optionee could have
exercised the option on the date of exercise. Other than as
stated above, an option shall be exercisable, during the lifetime
of the optionee, only by the optionee, or in the event of the
optionee's mental or physical incapacity by his legal
representative.
9. Registration Under the Securities Act of 1933. The
Corporation may choose to file a registration statement under the
Securities Act of 1933 (the "Registration Statement") for those
options granted by the Corporation. However, the filing of such
a Registration Statement or the continuance of its effectiveness
is entirely within the discretion of the Corporation and each
optionee or legal representative, distributee or legatee thereof,
as the case may be, if requested, shall furnish the Corporation
with a representation or warranty in writing as to compliance
with the Securities Act of 1933 in form satisfactory to the
Administrating Body, upon the exercise of such option or any part
thereof.
10. Termination of Services. If an optionee holding any
option ceases to be an employee of the Corporation, voluntarily
retires from service prior to exercise of the option, or is
terminated by the Corporation for statutory cause (e.g., unlawful
conduct), the optionee shall lose the right to exercise any
option granted under this Plan as of the date of retirement or
termination, as the case may be; provided that the Corporation or
its subsidiary or parent may extend the period within which an
option may be exercised for an additional ninety (90) days after
termination of employment; and provided further that in the case
of the optionee's disability, as that term is defined in section
22(e) (3) of the Code, the option may be exercised by the
optionee's legal representative for an additional twelve (12)
months after the optionee becomes disabled, but in no event after
the expiration date provided in the agreement evidencing the
option, if and to the extent that the optionee was entitled to
exercise the option at the time of cessation of service.
11. Death of Optionee. In the event of the death of an
optionee while in the service of the Corporation or any
subsidiary or parent, any option theretofore granted to the
optionee shall be exercisable only within the period of one year
next succeeding the optionee's death, but in no event after the
expiration date provided in the agreement evidencing the option,
if and to the extent that the optionee was entitled to exercise
the option at the time of exercise.
12. Adjustment in Shares Subject to Plan. The options
granted under the Plan shall contain such provisions as the
Administrating Body may determine with respect to adjustments to
be made in the number and kind of shares covered by such options
and in the option price in the event of a reorganization,
recapitalization, stock split, stock dividend, combination of
shares, merger, consolidation, rights offering or any other
change in the corporate structure or shares of stock of the
Corporation; and in the event of any such change, the maximum
number and kind of shares available under the Plan shall be
appropriately adjusted.
13. Substitution or Assumption of Options. Notwithstanding
any provision of the Plan to the contrary (but subject to the
provisions of section 3), by action of the Administrating Body,
the Corporation or any of its subsidiaries or parent may as an
incident to or by reason of any corporate merger, consolidation,
acquisition of property or stock, separation, reorganization or
liquidation, substitute new options on Common Stock of the
Corporation for options granted by another employer to its
employee on stock of such employer or may assume options granted
by another employer to its employees, at such purchase prices and
under such conditions, in the case of non-qualified options, as
the Administrating Body may approve and, in the case of incentive
stock options, as may be permitted by section 425(a) of the Code,
and the Administrating Body is hereby expressly authorized to
take such action as may be required to effectuate any such
issuance or assumption. Shares of Common Stock of the
Corporation, subject to any option so issued or assumed, shall be
charged against the total number of shares available for issuance
under the Plan.
14. Stock Appreciation Rights.
(a) The Administrating Body shall have authority to
grant stock appreciation rights ("SAR's") to the holder of any
option granted under the Plan with respect to all or some of the
shares of Common Stock covered by such an option. A right may be
granted either at the time of grant of the option or any time
thereafter during its term. Each SAR shall be exercisable only
if, and to the extent that, the option is exercisable. Upon the
exercise of an SAR, the option shall cease to be exercisable to
the extent of the shares of Common Stock with respect to which
such SAR is exercised, and shall be considered to have been
exercised to that extent for purposes of determining the number
of shares available for the grant of further options pursuant to
the Plan. Upon the exercise or termination of an SAR, such SAR
shall terminate to the extent of the shares of Common Stock with
respect to which the SAR was exercised or terminated.
(b) Upon the exercise of an SAR, the holder thereof,
subject to paragraph (e) of this Section 14, shall be entitled at
the holder's election to receive either:
(i) that number of shares of Common Stock equal
to the quotient computed by dividing the Spread (as
defined in paragraph (c) hereof) by the fair market
value per share of Common Stock on the date of exercise
of the SAR; provided, however, that in lieu of
fractional shares, the Corporation shall pay cash equal
to the same fraction of the fair market value per share
of Common Stock on the date of exercise of the SAR, or
(ii) an amount in cash equal to the Spread, or
(iii) a combination of cash and a number of
shares calculated as provided in clause (i) of this
paragraph (b) (after reducing the Spread by such cash
amount), plus cash in lieu of any fractional shares as
provided therein.
(c) The term "Spread" with respect to any option as
used in this section 14 shall mean an amount equal to the product
computed by multiplying (i) the excess of the fair market value
per share of Common Stock on the date the SAR is exercised, over
the purchase price per share under such option by (ii) the number
of shares with respect to which such SAR is being exercised.
(d) Notwithstanding the provisions of this section 14,
an SAR may not be exercised until the expiration of six (6)
months from the date of grant of such SAR unless, prior to the
expiration of such six (6) month period the holder of such SAR
ceases to be an employee of the Corporation or a division or
subsidiary thereof by reason of such holder's death or
disability.
(e) Notwithstanding the provisions of paragraph (b) of
this Section 14, the Administrating Body shall have sole
discretion to consent to or disapprove an election to receive
cash in whole or in part ("Cash Election") prior to the exercise
of an SAR. Such consent or disapproval may be given at any time
after the election to which it relates. A Cash Election and
related exercise may be made only during the period beginning on
the third business day following the date of release for
publication of the quarterly and annual summary statements of
sales and earnings of the Corporation and ending on the twelfth
business day following such date.
(f) An SAR shall not be transferable except to the
extent that the option which the SAR accompanies is transferable.
(g) Each SAR shall be granted on such terms and
conditions not inconsistent with the Plan as the Board may
determine.
(h) To exercise an SAR, the optionee shall (i) give
written notice thereof to the Administrating Body in form
satisfactory to the Administrating Body specifying (A) the number
of shares of Common Stock with respect to which the SAR is being
exercised, and (B) the amount the optionee elects to receive in
cash and shares of Common Stock with respect to the exercise of
the SAR and (ii) if requested by the Administrating Body, deliver
the option agreement to the Secretary* of the Corporation, who
shall endorse thereon a notation of such exercise and return the
agreement to the optionee. The date of exercise of an option
which is validly exercised shall be deemed to be the date on
which there shall have been delivered the instruments referred to
in the first sentence of this paragraph (h).
(i) The Corporation intends that this section 14 shall
comply with the requirements of Rule 16b-3 and any future rules
promulgated in substitution therefor (the "Rule") under the
Securities Exchange Act of 1934, as amended, during the term of
the Plan. Should any provision of this section not be necessary
to comply with the requirements of the Rule or should any
additional provisions be necessary for this Section 14 to comply
with the requirements of the Rule, the Board may amend the Plan
to add to or modify the provisions of the Plan accordingly.
15. Withholding and Reporting. The Corporation's
obligation to deliver shares of Common Stock or make any payment
upon the exercise of any option or SAR shall be subject to
applicable federal, state and local tax withholding and reporting
requirements.
16. Period, Expiration and Termination of the Plan. Options
may be granted under the Plan at any time prior to the tenth
anniversary of the effective date of the Plan, on which
anniversary the Plan will expire except as to options then
outstanding thereunder, which options shall remain in effect
until they have been exercised or have expired or otherwise
terminated pursuant to the terms of the Plan. The Plan may be
abandoned or terminated at any time by the Board except with
respect to any options then outstanding under the Plan.
17. Amendment of the Plan. The Administrating Body may
from time to time make such changes in and additions to the Plan
as it may deem proper and in the best interests of the
Corporation or any subsidiary or parent without the approval of
shareholders holding a majority of the shares of stock of the
Corporation outstanding and entitled to vote thereon; provided
that no such change or addition by the Administrating Body
without such approval shall (a) impair without the consent of the
optionee any option theretofore granted under the Plan or deprive
any optionee of any shares of stock of the Corporation that the
optionee may have acquired through or as a result of the Plan,
(b) increase the maximum number of shares that may be issued
under the Plan (except to the extent such increase is permitted
to be made without shareholder approval by Treasury Regulations
prescribed pursuant to section 422A of the Code), (c) change the
minimum purchase price under the Plan, (d) extend the period
during which any option may be granted or exercised, or (e)
change the provisions of the Plan relating to eligibility.
18. Indemnification of Board and Committee. No member of
the Board or the Committee shall be liable for any action or
determination made in good faith with respect to the Plan or any
option granted under the Plan. In addition to such other rights
of indemnification as they may have as members of the Board or as
members of the Committee, the members of the Board and the
Committee shall be indemnified by the Corporation against all
costs and expenses reasonably incurred by them in connection with
any action, suit or proceeding to which they or any of them may
be a party by reason of any action taken or failure to act under
or in connection with the Plan, or any option granted thereunder,
and against all amounts paid by them in settlement thereof
(provided such settlement is approved by legal counsel selected
by the Corporation) or paid by them in satisfaction of a judgment
in any such action, suit or proceeding, except a judgment based
upon a finding of bad faith. Upon the institution of any such
action, suit or proceeding, a Board or Committee member shall
notify the Corporation in writing, giving the Corporation an
opportunity, at its own expense, to handle and defend the same
before such Board or Committee member undertakes to handle or
defend it on such member's own behalf.
19. Effective Date of the Plan. The Plan shall become
effective if and when the Board adopts the Plan and fixes an
effective date therefor; provided that no option granted under
the Plan may be exercised unless and until the Plan has been
approved by the holders of a majority of the shares of stock of
the Corporation outstanding and entitled to vote thereon.
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