<PAGE> 1
As Filed With the Securities and Exchange Commission on April 1, 1996
Registration No. 33-__________
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
MAGNA GROUP, INC.
(Exact name of issuer as specified in its charter)
DELAWARE 37-0996453
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One Magna Place
1401 South Brentwood Boulevard
St. Louis, Missouri 63144-1401
(Address of Principal Executive Offices)
MAGNA GROUP, INC.
1996 LONG TERM PERFORMANCE PLAN
(Full title of the plan)
---------------
G. THOMAS ANDES
Chairman and Chief Executive Officer
Magna Group, Inc.
1401 South Brentwood Boulevard
St. Louis, Missouri 63144-1401
(Name and address of agent for service)
Telephone: (314) 963-2500
------------------------
Copy to:
Gerard K. Sandweg, Jr., Esq.
Thompson Coburn
One Mercantile Center
St. Louis, Missouri 63101
Telephone: (314) 231-7676
--------------------------
<TABLE>
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
<CAPTION>
Title of each class of Amount to be Proposed Proposed maximum Amount of
securities to be registered registered maximum offering aggregate offering registration fee
price per unit <F2> price <F2>
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $2.00 par value <F1> 1,000,000 $22.375 $22,375,000 $7,715.60
shares
====================================================================================================================================
<FN>
<F1> Includes one attached Preferred Share Purchase Right per share.
<F2> Estimated solely for the purposes of computing the Registration Fee
pursuant to the provisions of Rule 457(c), and based upon the average of
the high and low sales prices of Magna Group, Inc. Common Stock, $2.00
par value, as reported by The Nasdaq Stock Market, Inc. on March 25,
1996.
</TABLE>
-------------------------
This Registration Statement shall become effective in accordance with the
provisions of Rule 462 promulgated under the Securities Act of 1933.
<PAGE> 2
The undersigned registrant hereby files this Registration
Statement on Form S-8 (the "Registration Statement") to register
shares of Magna Group, Inc. ("Magna") Common Stock, $2.00 par
value, and attached Preferred Share Purchase Rights of Magna, for
issuance to optionees under the Magna Group, Inc. 1996 Long Term
Performance Plan (the "Plan").
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The following documents filed by Magna with the Securities
and Exchange Commission pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act"), are incorporated herein by
reference:
(a) Magna's Annual Report on Form 10-K for the fiscal
year ended December 31, 1995;
(b) Magna's Current Report on Form 8-K dated
January 24, 1996;
(c) The description of Magna Common Stock set forth in
Magna's Registration Statement on Form S-1 (File No.
2-96545) filed on March 20, 1985, including any amendment or
report filed for the purpose of updating such description; and
(d) The description of Magna's Preferred Stock Purchase Rights set
forth in Item 1 of Magna's Registration Statement on Form 8-A,
filed November 11, 1988 (File No. 0-8234), including any
amendment or report filed for the purpose of updating such
description.
All documents filed by Magna pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date hereof and prior to the filing
of a post-effective amendment which indicates that all securities offered
hereby have been sold or which deregisters all securities remaining unsold, and
all amendments or supplements filed with respect to the documents listed in
(a), (b) or (c) above, shall be deemed to be incorporated by reference into
this Registration Statement and to be a part hereof from the date of filing of
such document. Any statement contained in a document incorporated or deemed to
be incorporated herein by reference 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 subsequently filed document which also is
or is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement.
Copies of all documents incorporated by reference into this
Registration Statement, other than exhibits to such documents (unless the
exhibits are specifically incorporated by reference into such documents), will
be provided without charge to each person to whom a Prospectus with respect to
the Plan is delivered, upon oral or written request by such person to Gary D.
Hemmer, Executive Vice President, Administration, Magna Group, Inc., One Magna
Place, 1401 South Brentwood Boulevard, St. Louis, Missouri 63144-1401,
telephone: (314) 963-2500.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Thompson Coburn, legal counsel to Magna, has rendered a legal opinion
with respect to the validity of the securities being registered hereby and
certain other legal matters. As of February 29, 1996, certain lawyers of the
firm beneficially owned an aggregate of 44,681 shares of Magna Common Stock.
- 2 -
<PAGE> 3
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Section 102(b)(7) of the Delaware General Corporation Law
("DGCL") permits a corporation to provide in its certificate of
incorporation that a director of the corporation shall not be
personally liable to the corporation or its stockowners for
monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of
loyalty to the corporation or its stockowners, (ii) for acts or
omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) for payments of
unlawful dividends or unlawful stock repurchases or redemptions or
(iv) for any transaction from which the director derived an
improper personal benefit. Magna's Certificate of Incorporation,
as amended, contains such a provision.
Section 145 of the DGCL provides that a corporation may
indemnify directors and officers as well as other employees and
individuals against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement in connection with
specified actions, suits or proceedings, whether civil, criminal,
administrative or investigative (other than an action by or in the
right of the corporation -- a "derivative action"), if they acted
in good faith and in a manner they 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 their conduct was unlawful. A similar standard
is applicable in the case of derivative actions, except that
indemnification only extends to expenses (including attorneys'
fees) incurred in connection with defense or settlement of such
action, and the statute requires court approval before there can
be any indemnification where the person seeking indemnification
has been found liable to the corporation. The statute provides
that it is not exclusive of other indemnification that may be
granted by a corporation's charter, bylaws, disinterested director
vote, shareowner vote, agreement or otherwise.
Article 12 of Magna's Certificate of Incorporation, as
amended, provides for the elimination of personal liability of
directors of Magna to Magna and its stockholders for monetary
damages arising from certain breaches of directors' duty of care.
In addition, Article 12 provides for the indemnification of
persons who are or were directors, officers, employees and agents
of Magna or who are or were serving at the request of Magna in a
similar capacity with another enterprise or entity to the fullest
extent authorized by the DGCL. Article 12 also authorizes Magna
to purchase insurance for itself and indemnify persons against any
expense, liability or loss whether or not Magna would have the
power to indemnify such expense, liability or loss under the DGCL.
Magna maintains a liability insurance policy which indemnifies
directors, officers, employees and agents of Magna.
As part of the acquisition of Landmark, Magna assumed
Landmark's obligations under indemnification agreements with
Landmark's directors (including certain directors who are
currently directors of Magna) and obligations under an employment
agreement between Landmark and S. Lee Kling (also a current
director of Magna).
Item 8. Exhibits.
--------
See Exhibit Index located at page 8 hereof.
- 3-
<PAGE> 4
Item 9. Undertakings.
------------
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of this registration
statement (or the most recent post-effective amendment hereof)
which, individually or in the aggregate, represent a fundamental
change in the information set forth in this registration
statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in
this registration statement or any material change to such
information in this registration statement;
provided, however, that paragraphs (i) and (ii) do not apply if
the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed by the registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by
reference 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, 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 Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in this
registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) The undersigned registrant hereby undertakes to
deliver or cause to be delivered with the prospectus, to each
person to whom the prospectus is sent or given, the latest annual
report to security holders that is incorporated by reference in
the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities
Exchange Act of 1934; and, where interim financial information
required to be presented by Article 3 of Regulation S-X are not
set forth in the prospectus, to deliver, or cause to be delivered
to each person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
- 4 -
<PAGE> 5
(d) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
- 5 -
<PAGE> 6
SIGNATURES
----------
The Registrant. Pursuant to the requirements of the
Securities Act of 1933, the registrant certifies that it has
reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Brentwood,
State of Missouri, on the 1st day of April, 1996.
MAGNA GROUP, INC.
By /s/ G. Thomas Andes
--------------------------------------
G. Thomas Andes, Chairman of the
Board and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Magna Group,
Inc., hereby severally and individually constitute and appoint G.
Thomas Andes and Carolyn B. Ryseff, and each of them, the true and
lawful attorneys and agents of each of us to execute in the name,
place and stead of each of us (individually and in any capacity
stated below) any and all amendments to this Registration
Statement on Form S-8 and all instruments necessary or advisable
in connection therewith and to file the same with the Securities
and Exchange Commission, each of said attorneys and agents to have
the power to act with or without the others and to have full power
and authority to do and perform in the name and on behalf of each
of the undersigned every act whatsoever necessary or advisable to
be done in the premises as fully and to all intents and purposes
as any of the undersigned might or could do in person, and we
hereby ratify and confirm our signatures as they may be signed by
our said attorneys and agents or each of them to any and all such
amendments and instruments.
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 date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<C> <S> <C>
/s/ G. Thomas Andes Chairman of the Board, April 1, 1996
- ------------------------------ Chief Executive
G. Thomas Andes Officer and Director
Principal Executive Officer
/s/ Ronald A. Buerges Senior Vice President, April 1, 1996
- ------------------------------ Corporate Finance and
Ronald A. Buerges Acting Chief Financial Officer
Principal Financial Officer--
Principal Accounting Officer
Director April -----, 1996
- ------------------------------
James A. Auffenburg, Jr.
- 6 -
<PAGE> 7
<CAPTION>
Signature Title Date
--------- ----- ----
<C> <S> <C>
/s/ William E. Cribbin Director April 1, 1996
- ------------------------------
William E. Cribbin
/s/ Wayne T. Ewing Director April 1, 1996
- ------------------------------
Wayne T. Ewing
/s/ Donald P. Gallop Director April 1, 1996
- ------------------------------
Donald P. Gallop
/s/ C.E. Heilingenstein Director April 1, 1996
- ------------------------------
C.E. Heilingenstein
/s/ John G. Helmkamp, Jr. Director April 1, 1996
- ------------------------------
John G. Helmkamp, Jr.
/s/ Carl G. Hogan, Jr. Director April 1, 1996
- ------------------------------
Carl G. Hogan, Sr.
/s/ Franklin A. Jacobs Director April 1, 1996
- ------------------------------
Franklin A. Jacobs
Director April -----, 1996
- ------------------------------
Wendell J. Kelley
/s/ S. Lee Kling Director April 1, 1996
- ------------------------------
S. Lee Kling
/s/ Ralph F. Korte Director April 1, 1996
- ------------------------------
Ralph F. Korte
/s/ Robert E. McGlynn Director April 1, 1996
- ------------------------------
Robert E. McGlynn
Director April -----, 1996
- ------------------------------
Frank R. Trulaske, III
/s/ Dr. George T. Wilkins, Jr. Director April 1, 1996
- ------------------------------
Dr. George T. Wilkins, Jr.
</TABLE>
- 7 -
<PAGE> 8
<TABLE>
EXHIBIT INDEX
-------------
<CAPTION>
Exhibit No. Page
----------- ----
<C> <S> <C>
4.1 Form of Indenture, including form of Note, between Magna
and Mark Twain Bank, as trustee, dated August 1, 1987 for
the 7% Convertible Subordinated Capital Notes Due 1999
(filed as Exhibit 1 to Magna's Registration Statement on
Form 8-A dated June 15, 1988 (File No. 0-8234) and
incorporated herein by reference)
4.2 Indenture dated as of November 1, 1986 between Landmark
Bancshares Corporation (hereinafter "Landmark") and Centerre
Trust Company of St. Louis, regarding the issuance of
$17,250,000 principal amount of Landmark's 8-3/4%
Convertible Subordinated Debentures due November 1, 1998
(filed as Exhibit 4(c) to Landmark's Annual Report on Form
10-K for the year ended December 31, 1986 (File No. 1-8810)
and incorporated herein by reference)
4.3 First Supplemental Indenture dated December 20, 1991 among
Magna, Magna Acquisition Corporation and Boatmen's National
Bank of St. Louis as successor to Centerre Trust Company of
St. Louis, Trustee, assuming the obligations of Landmark
under the Indenture dated November 1, 1986 (filed as Exhibit
4.2 to Magna's Current Report on Form 8-K dated December 20,
1991 (File No. 0-8234) and incorporated herein by reference)
4.4 Rights Agreement, including form of Right Certificate dated
as of November 11, 1988 between Magna and Magna Trust
Company, Trustee (filed as Exhibits 1 and 2 to Magna's
Registration Statement on Form 8-A dated November 11, 1988
(File No. 0-8234) and incorporated herein by reference)
5 Opinion of Thompson Coburn as to the legality of the
securities to be registered
23.1 Consent of Ernst & Young LLP
23.2 Consent of Thompson Coburn (contained in Exhibit 5)
24 Power of Attorney (contained on signature page)
99 Magna Group, Inc. 1996 Long Term Performance Plan
</TABLE>
- 8 -
<PAGE> 1
Exhibit 5
[letterhead of Thompson Coburn]
April 1, 1996
Magna Group, Inc.
One Magna Place
1401 South Brentwood Boulevard
St. Louis, Missouri 63144-1401
Re: Registration Statement on Form S-8
Gentlemen:
We refer you to the Registration Statement on Form S-8 to
be filed by Magna Group, Inc. (the "Company"), on April 1, 1996 (the
"Registration Statement") with the Securities and Exchange Commission
(the "SEC") under the Securities Act of 1933, as amended, pertaining
to the proposed issuance by the Company of up to 1,000,000 shares of
the Company's common stock, $2.00 par value (the "Shares"), in
connection with the Magna Group, Inc. 1996 Long Term Performance Plan
(the "Plan"). In rendering the opinions set forth herein, we have
examined such corporate records of the Company, such laws and such
other information as we have deemed relevant, including the Company's
Certificate of Incorporation, as amended and currently in effect, and
Bylaws, the resolutions adopted by the Company's Board of Directors relating to
the Plan, certificates received from state officials and statements we have
received from officers and representatives of the Company. In delivering this
opinion, the undersigned assume the genuineness of all signatures; the
authenticity of all documents submitted to us as originals; the conformity to
the originals of all documents submitted to us as certified, photostatic or
conformed copies; the authenticity of the originals of all such latter
documents; and the correctness of statements submitted to us by officers and
representatives of the Company.
Based solely on the foregoing, the undersigned is of the
opinion that:
1. The Company has been duly incorporated and is validly
existing under the laws of the State of Delaware; and
2. The Shares, when issued pursuant to the Plan, will be
duly authorized, validly issued and fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to
the Registration Statement.
Very truly yours,
/s/ Thompson Coburn
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) and related Prospectus pertaining to the
Magna Group, Inc. 1996 Long Term Performance Plan for the
registration of 1,000,000 shares of its common stock, of our
report dated January 17, 1996, with respect to the consolidated
financial statements of Magna Group, Inc. incorporated by
reference in its Annual Report (Form 10-K) for the year ended
December 31, 1995, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
St. Louis, Missouri
March 28, 1996
<PAGE> 1
Exhibit 99
MAGNA GROUP, INC.
1996 LONG TERM PERFORMANCE PLAN
SECTION 1. ESTABLISHMENT AND PURPOSE.
Magna Group, Inc. hereby establishes a long term incentive plan to be named
the Magna Group, Inc. 1996 Long Term Performance Plan, for certain employees of
the Company and its Subsidiaries. The purpose of this Plan is to encourage
certain employees of the Company, and of such Subsidiaries of the Company as
the Committee administering the Plan designates, to acquire Stock or to receive
monetary payments based on the value of such Stock or based upon achieving
certain goals on a basis mutually advantageous to such employees and the
Company and thus provide an incentive for continuation of the efforts of
employees for the success of the Company and for continuity of employment.
Compensation relating to Awards under the Plan is generally intended to qualify
as ``performance-based compensation'' under Section 162(m) of the Code.
SECTION 2. DEFINITIONS.
Whenever used herein, the following terms shall have the respective
meanings set forth below:
(a) ACT means the Securities Exchange Act of 1934, as amended from time to
time.
(b) AWARD means any Option, Stock Appreciation Right, Restricted Stock or
Performance Award granted under the Plan.
(c) BASE PRICE means, in the case of an Option or a Stock Appreciation
Right, a price fixed by the Committee at which the Option or the Stock
Appreciation Right may be exercised, which in the case of an Incentive
Stock Option or a Stock Appreciation Right shall not be less than 100%
of the Fair Market Value of a share of Common Stock on the date of
grant of such Incentive Stock Option or Stock Appreciation Right.
(d) BOARD means the Board of Directors of the Company.
(e) CHANGE OF CONTROL is defined in Section 14.
(f) CODE means the Internal Revenue Code of 1986, as amended and in effect
from time to time.
(g) COMMITTEE means those members of the Compensation Committee of the
Board each of whom is both (1) qualified to administer this Plan as
contemplated by Rule 16b-3 and (2) considered to be an ``outside
director'' as contemplated by Section 162(m) of the Code.
(h) COMMON STOCK means the common stock, $2.00 par value, of the Company.
(i) COMPANY means Magna Group, Inc., a Delaware corporation.
(j) COVERED EMPLOYEE means a covered employee as that term is defined in
Section 162(m) of the Code.
(k) DISABILITY means a physical and/or mental condition that renders a
Participant unable to perform the duties of the Participant's position
on a full-time basis for a period of one hundred eighty (180)
consecutive business days. Disability shall be deemed to exist when
certified by a physician selected by the Company or its insurers and
acceptable to the Participant or the Participant's legal representa-
tive (such agreement as to acceptability not to be withheld
unreasonably). The Participant will submit to such medical or
psychiatric examinations and tests as such physician deems necessary
to make any such Disability determination.
(l) EMPLOYEE means a salaried employee (including officers and directors
who are also employees) of any member of the Group.
1
<PAGE> 2
(m) FAIR MARKET VALUE means, for any particular date, (i) for any period
during which Common Stock shall not be listed for trading on a
national securities exchange, but when Common Stock is authorized as a
Nasdaq National Market security, the last transaction price per share
as quoted by The Nasdaq Stock Market (the ``Nasdaq''), (ii) for any
period during which Common Stock shall not be listed for trading on a
national securities exchange or authorized as a Nasdaq National Market
security, but when Common Stock shall be authorized as a Nasdaq
SmallCap Market security, the closing bid price as reported by the
Nasdaq, (iii) for any period during which Common Stock shall be listed
for trading on a national securities exchange, the closing price per
share of Common Stock on such exchange as of the close of such trading
day or (iv) the market price per share of Common Stock as determined
by a nationally recognized investment banking firm selected by the
Committee in the event neither (i), (ii) nor (iii) above shall be
applicable. If Fair Market Value is to be determined as of a day when
the securities markets are not open, the Fair Market Value on that day
shall be the Fair Market Value on the preceding day when the markets
were open.
(n) FINAL AWARD means the Award earned by each Participant at the end of
the Performance Period.
(o) GROUP means the Company and every Subsidiary of the Company.
(p) OPTION means the right to purchase Stock at the Base Price for a
specified period of time. For purposes of the Plan, an Option may be
an incentive stock option (``INCENTIVE STOCK OPTION'') within the
meaning of Section 422 of the Code, a nonqualified stock option
(``NONQUALIFIED STOCK OPTION'') or any other type of option.
(q) PARTICIPANT means any Employee designated by the Committee to
participate in the Plan.
(r) PERFORMANCE AWARD means a right to receive a payment equal to the
value of a unit or other measure, and includes shares of Stock which
may be granted pursuant to an Option or as Restricted Stock, as
determined by the Committee based on performance during a Performance
Period.
(s) PERFORMANCE PERIOD means a period of not more than ten years
established by the Committee during which certain performance goals
set by the Committee are to be met.
(t) PERIOD OF RESTRICTION means the period during which a grant of shares
of Restricted Stock is restricted pursuant to Section 11 of the Plan.
(u) PERMITTED TRANSFEREE means either (i) an immediate family member of
the Participant, (ii) a trust for the benefit of the immediate family
members of the Participant or (iii) a partnership whose only partners
are immediate family members of the Participant.
(v) PLAN means the Magna Group, Inc. 1996 Long Term Performance Plan.
(w) PLAN YEAR means the Company's fiscal year commencing January 1 and
ending December 31.
(x) PROGRAM means an Award program established by the Committee which
designates the Participants, the Covered Employees, a Performance
Period, performance goals and formulas or standards for determining
the amounts of Awards payable under the Plan.
(y) REPORTING PERSON means a person subject to Section 16 of the Act.
(z) RESTRICTED STOCK means Stock granted pursuant to Section 11 or 12 of
the Plan, but a share of such Stock shall cease to be Restricted Stock
when the conditions to and limitations on transferability under
Section 11 have been satisfied or have expired, respectively.
(aa) RETIREMENT (including NORMAL, EARLY and DISABILITY Retirement) means
termination of employment with eligibility for normal, early or
disability retirement benefits under the terms of the Company's
Pension Plan, as amended and in effect at the time of such termination
of employment.
(bb) RULE 16B-3 means Rule 16b-3 under the Act.
(cc) STOCK means the authorized and unissued shares of Common Stock or
reacquired shares of Common Stock held in treasury.
2
<PAGE> 3
(dd) STOCK APPRECIATION RIGHT or SAR means the right to receive a payment
from the Company equal to the excess of the Fair Market Value of a
share of Stock at the date of exercise over the Base Price. In the
case of a Stock Appreciation Right which is granted in conjunction
with an Option, the Base Price shall be the Option exercise price.
(ee) SUBSIDIARY means a subsidiary corporation as defined in Section 424
of the Code.
(ff) WINDOW PERIOD means the third to the twelfth business day following
the release for publication of the Company's quarterly or annual
earnings report.
SECTION 3. ADMINISTRATION.
The Plan will be administered by the Committee. The determinations of the
Committee shall be made in accordance with its judgment as to the best
interests of the Company and its stockholders and in accordance with the
purpose of the Plan. A majority of members of the Committee shall constitute a
quorum, and all determinations of the Committee shall be made by a majority of
its members. Any determination of the Committee under the Plan may be made
without notice or meeting of the Committee, by a writing signed by a majority
of the Committee members. Determinations, interpretations or other actions made
or taken by the Committee pursuant to the provisions of the Plan shall be final
and binding and conclusive for all purposes and upon all persons whomsoever.
Subject to the express provisions of the Plan, the Committee shall have plenary
authority, to construe and interpret the Plan, to make, amend and rescind rules
and regulations regarding the Plan and its administration, to determine the
terms and provisions of the respective Stock Option, Restricted Stock and
Performance Award agreements (which need not be identical), and to take
whatever action is necessary to carry out the purposes of the Plan; provided,
however, the Committee shall take no action which will impair any Option,
Restricted Stock award or Performance Award previously granted under the Plan
or cause the Plan not to meet the requirements of Rule 16b-3.
SECTION 4. SHARES RESERVED UNDER THE PLAN.
Subject to Sections 10, 12 and 13 hereof, there is hereby reserved for
issuance under the Plan an aggregate of 1,000,000 shares of Stock, which may be
authorized but unissued shares or treasury shares. Of these shares of Stock, no
more than 1,000,000 shares may be issued to Participants pursuant to Incentive
Stock Options, subject to adjustment as set forth in the Plan. In addition, the
amount of shares representing forfeited or tendered shares shall be available
for Award only to persons not subject to Section 16 of the Act.
Except as provided in Section 13, in no event may more than 300,000 shares
of Stock be issued in connection with the award of Restricted Stock pursuant to
Section 11 or 12, unless such Stock was awarded as the payment for grants or
rights under any other employee or compensation plan of the Company.
Additionally, the maximum number of shares of Stock, which may be awarded in
the form of Options or SARs to any one individual under the Plan shall be
limited to 400,000 Shares.
Stock underlying outstanding Options or Performance Awards will be counted
against the Plan maximum while such Options or Awards are outstanding. Shares
of Stock underlying expired, canceled or forfeited Options or Awards (except
Restricted Stock) may be added back to the Plan maximum. When the exercise
price of Options is paid by delivery of shares of Stock, the number of shares
available for issuance under the Plan shall continue to be reduced by the gross
(rather than the net) number of shares issued pursuant to such exercise,
regardless of the number of shares surrendered in payment. Restricted Stock
issued pursuant to the Plan will be counted against the Plan maximum while
outstanding even while subject to restrictions. Shares of Restricted Stock may
not be added back to the Plan maximum if such Restricted Stock is forfeited.
SECTION 5. PARTICIPANTS.
Participants will consist of such officers and key employees of the Company
or any designated Subsidiary as the Committee in its sole discretion determines
have a major impact on the success and future growth and profitability of the
Company. Designation of a Participant in any Plan Year shall not require the
Committee to designate such person to receive an Award in any other Plan Year
or to receive the same type or amount of Award as granted to the Participant in
any other Plan Year or as granted to any other Participant in any Plan Year.
The Committee shall
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consider such factors as it deems pertinent in selecting Participants and in
determining the type and amount of their respective Awards.
SECTION 6. TYPES OF AWARDS.
The following Awards may be granted under the Plan: (a) Incentive Stock
Options; (b) Nonqualified Stock Options; (c) Stock Appreciation Rights; (d)
Restricted Stock; and (e) Performance Awards; all as described below. Except as
specifically limited herein, the Committee shall have complete discretion in
determining the type and number of Awards to be granted to any Participant, and
the terms and conditions which attach to each Award, which terms and conditions
need not be uniform as between different Participants. All Awards shall be in
writing.
SECTION 7. DATE OF GRANTING AWARDS.
All Awards granted under the Plan shall be granted as of an award date.
Promptly after each award date, the Company shall notify the Participant of the
grant of the Award, and shall hand deliver or mail to the Participant an Award
Agreement, duly executed by and on behalf of the Company, with the request that
the Participant execute and return such agreement within thirty days after the
date of mailing or delivery by the Company of the agreement to the Participant.
If the Participant shall fail to execute and return the written Award Agreement
within the thirty-day period, the Participant's Award shall be automatically
terminated, except that if the Participant dies within the thirty-day period
such agreement shall be effective notwithstanding the fact that it has not been
signed prior to death.
SECTION 8. INCENTIVE STOCK OPTIONS.
Incentive Stock Options shall consist of Options to purchase shares of
Stock at purchase prices not less than 100% of the Fair Market Value of the
shares on the date the Option is granted. The purchase price may be paid by
check or, in the discretion of the Committee, by the delivery of shares of
Common Stock then owned by the Participant. Incentive Stock Options will be
exercisable not earlier than six months and not later than ten years after the
date they are granted and, except as provided below, will terminate not later
than three months after termination of employment for any reason other than
death or Disability. In the event termination of employment occurs as a result
of death or Disability, such an Option will be exercisable for 12 months after
such termination. If the optionee dies within 12 months after termination of
employment by reason of Disability, then the period of exercise following death
shall be the remainder of the 12 month period, or three months, whichever is
longer. If the optionee dies within three months after termination of
employment for any other reason, then the period of exercise following death
shall be three months. In no event shall any Incentive Stock Option be
exercised more than ten years after its grant. Leaves of absence granted by the
Company for military service, illness and transfers of employment between the
Company and any Subsidiary shall not constitute termination of employment. The
aggregate Fair Market Value (determined as of the time an Option is granted) of
the stock with respect to which an Incentive Stock Option is exercisable for
the first time during any calendar year (under all option plans of the Company
and its Subsidiaries) shall not exceed $100,000, or such other amounts and
limitations as may be provided from time to time by the Code and any
regulations promulgated thereunder. The Fair Market Value of Stock shall be
determined without regard to any restriction, other than a restriction which,
by its terms, will never lapse.
SECTION 9. NONQUALIFIED STOCK OPTIONS.
Nonqualified Stock Options shall consist of nonqualified Options to
purchase shares of Stock at purchase prices determined by the Committee. The
purchase price may be paid by check or, in the discretion of the Committee, by
the delivery of shares of Common Stock then owned by the Participant.
Nonqualified Stock Options will be exercisable not earlier than six months and
not later than ten years after the date they are granted, and will terminate
not later than three months after termination of employment for any reason
other than death, Retirement or Disability. In no event shall any Option be
exercised more than ten years after its grant. Leaves of absence granted by the
Company for military service, illness and transfers of employment between the
Company and any Subsidiary shall not constitute termination of employment. The
Committee shall have the right to determine at the time the Option is granted
whether Shares issued upon exercise of a Nonqualified Stock Option shall be
subject to restrictions and, if so, the nature of the restrictions.
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SECTION 10. STOCK APPRECIATION RIGHTS.
Stock Appreciation Rights may be granted which, at the discretion of the
Committee, may be exercised (1) in lieu of exercise of an Option, (2) in
conjunction with the exercise of an Option, (3) upon lapse of an Option, (4)
independent of an Option or (5) each of the above in connection with a
previously awarded Option under the Plan. SARs issued to Reporting Persons
shall be held for at least six months prior to exercise. If the Option referred
to in (1), (2) or (3) above qualified as an Incentive Stock Option pursuant to
Section 422 of the Code, the related SAR shall comply with the applicable
provisions of the Code and the regulations issued thereunder. At the time of
grant, the Committee may establish, in its sole discretion, a maximum amount
per share which will be payable upon exercise of a SAR, and may impose such
conditions on exercise of a SAR (including, without limitation, the right of
the Committee to limit the time of exercise to specified periods) as may be
required to satisfy the requirements of Rule 16b-3 (or any successor rule)
under the Act. At the discretion of the Committee, payment for SARs may be made
in cash or Stock, or in a combination thereof; provided, however, that payment
may be made in cash for SARs exercised by Reporting Persons only upon the
condition that such exercise is made during the Window Period. The following
will apply upon exercise of a SAR:
(a) Exercise of SARs in Lieu of Exercise of Options. SARs exercisable
------------------------------------------------
in lieu of Options may be exercised for all or part of the shares of Stock
subject to the related Option upon the exercise of the right to exercise an
equivalent number of Options. A SAR may be exercised only with respect to
the shares of Stock for which its related Option is then exercisable. Upon
exercise of a SAR in lieu of exercise of an Option, shares of Stock equal
to the number of SARs exercised shall no longer be available for Awards
under the Plan, provided that if SARs are exercised for cash, shares of
stock equal to the number of SARs exercised shall be restored to the number
of shares available for issuance under the Plan.
(b) Exercise of SARs in Conjunction with Exercise of Options. SARs
---------------------------------------------------------
exercisable in conjunction with the exercise of Options shall be deemed to
be exercised upon the exercise of the related Options, and shares of Stock
equal to the sum of the number of shares acquired by exercise of the Option
plus the number of SARs exercised shall no longer be available for Awards
under the Plan, provided that if SARs are exercised for cash, shares of
stock equal to the number of SARs exercised shall be restored to the number
of shares available for issuance under the Plan.
(c) Exercise of SARs Upon Lapse of Options. SARs exercisable upon lapse
---------------------------------------
of Options shall be deemed to have been exercised upon the lapse of the
related Options as to the number of shares of Stock subject to the Options.
Shares of Stock equal to the number of SARs deemed to have been exercised
shall not be available again for Awards under the Plan, provided that if
SARs are exercised for cash, shares of stock equal to the number of SARs
exercised shall be restored to the number of shares available for issuance
under the Plan.
(d) Exercise of SARs Independent of Options. SARs exercisable
----------------------------------------
independent of Options may be exercised upon whatever terms and conditions
the Committee, in its sole discretion, imposes upon the SARs, and shares of
Stock equal to the number of SARs exercised shall no longer be available
for Awards under the Plan, provided that if SARs are exercised for cash,
shares of stock equal to the number of SARs exercised shall be restored to
the number of shares available for issuance under the Plan.
SECTION 11. RESTRICTED STOCK.
Restricted Stock shall consist of Stock issued under the Plan at any
purchase price less than the Fair Market Value thereof on the date of issuance,
or as a bonus. In the case of any Restricted Stock:
(a) The purchase price, if any, will be determined by the Committee.
(b) Restricted Stock may be subject to: (i) restrictions on the sale or
other disposition thereof; provided, however, that Restricted Stock granted
to a Reporting Person shall, in addition to any other restrictions thereon,
not be sold or disposed of for six (6) months following the date of grant;
(ii) rights of the Company to reacquire such Restricted Stock at the
purchase price, if any, originally paid therefor upon termination of the
employee's employment within specified periods; (iii) representation by the
Participant that they intend to acquire Restricted Stock for investment and
not for resale; and (iv) such other restrictions, conditions and terms as
the Committee deems appropriate.
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(c) The Participant shall be entitled to all dividends paid with
respect to Restricted Stock during the Period of Restriction and shall not
be required to return any such dividends to the Company in the event of the
forfeiture of the Restricted Stock.
(d) The Participant shall be entitled to vote the Restricted Stock
during the Period of Restriction.
(e) The Committee shall determine whether Restricted Stock is to be
delivered to the Participant with an appropriate legend imprinted on the
certificate or if the shares are to be deposited in escrow pending removal
of the restrictions.
SECTION 12. PERFORMANCE AWARDS.
(a) Performance Period. For each Program, the Committee shall set forth
-------------------
a Performance Period over which performance will be measured to determine
whether and in what amounts to pay Awards to Participants. Each Program must
be established in writing prior to the expiration of any prescribed time
period for the pre-establishment of performance goals under Section 162(m)
of the Code. Each Program shall also set forth those individuals the
Committee believes may be or may become Covered Employees for the applicable
Performance Period.
(b) Performance Criteria and Goals. All Awards shall be based upon any
-------------------------------
one or more of the following financial measures of the Company: (i) return
on average assets; (ii) earnings per share; (iii) return on stockholders'
equity; (iv) net interest rate margin; and/or (v) overhead ratio. The
Committee may also provide for additional opportunities based upon the
attainment of specific business objectives and other measures of
individual, business unit or Company performance, and such other goals or a
combination thereof as may be established by the Committee. For each
Program and for each Participant, the Committee shall designate one or more
objective performance goals based upon one or more of the criteria listed
above. No Award shall be paid if the applicable performance goals are not
satisfied; provided, however, performance goals may include standards for
partial achievement and provide for a partial award for partial
achievement.
(c) Performance Awards. Performance Awards may consist of Options,
-------------------
Stock, Restricted Stock or a combination thereof, to be issued with or
without any payment therefor, in the event the performance goals
established by the Committee are achieved during the Performance Period.
For each Program, the Committee shall designate an objective formula or
standard for determining each Participant's Award. Except with respect to
Awards payable to Covered Employees, and notwithstanding the failure to
satisfy the applicable performance goal(s), the Committee shall have the
discretion to increase or reduce the amount of any Participant's Award
above or below the standard or formula amount to reflect individual
performance and/or unanticipated factors; the Committee may only reduce the
amount of an Award payable to Covered Employees below the standard or
formula amount to reflect individual performance and/or unanticipated
factors. Actual payment of the Award earned shall be in Restricted Stock,
Stock or in a combination thereof, in a single sum or in periodic
installments, all as the Committee in its sole discretion determines. If
Stock or Restricted Stock is used, the Participant shall not have the right
to vote and receive dividends until the goals are achieved and the actual
shares are issued. In the event a Reporting Person receives a Performance
Award which includes Stock or Restricted Stock, such Stock shall not be
sold or disposed of for at least six (6) months following the date of
issuance pursuant to such Award. No Performance Award shall entitle any
individual to receive more than 300,000 shares of Stock.
(d) Payment of Awards. After the close of each Performance Period, the
------------------
Committee shall certify in writing the achievement of the applicable
performance goal(s) and the amounts of any Awards payable to the
Participants under the applicable formula(s) or standard(s). All or part of
the Awards payable to Participants who are not Covered Employees may be
paid prior to the end of a Performance Period on an estimated basis,
subject to adjustment in the discretion of the Committee. All or part of
the Awards payable to Covered Employees may be paid prior to the end of a
Performance Period only if such earlier payment does not result in such
Award failing to constitute qualified performance-based compensation under
Section 162(m) of the Code (e.g., if achievement of the applicable
performance goal(s) can be certified prior to the end of the Performance
Period). Subject to the foregoing, the timing of payment of all Awards to
both Covered Employees and Participants who are not Covered Employees shall
be within the discretion of the Committee.
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SECTION 13. ADJUSTMENT PROVISIONS.
(a) If the Company shall at any time change the number of issued shares
of Common Stock without new consideration to the Company (such as by stock
dividends or stock splits), the total number of shares reserved for issuance
under this Plan, the number of shares which may be granted in the form of
Options, SARs, Restricted Stock or Performance Awards, the maximum number of
shares available to a particular Participant, and the number of shares
covered by each outstanding Award, shall be adjusted so that the aggregate
consideration payable to the Company, if any, and the value of each such
Award shall not be changed. Awards shall be deemed to contain provisions for
their continuation or for other equitable adjustments after changes in
Common Stock resulting from reorganization, sale, merger, consolidation,
issuance of stock rights or warrants, or similar occurrence.
(b) Notwithstanding any other provision of this Plan or in any Award,
and without affecting the number of shares reserved or available hereunder,
the Board of Directors may authorize the equitable adjustment of benefits
in connection with any merger, consolidation, acquisition of property or
stock, or reorganization upon such terms and conditions as it may deem
appropriate.
SECTION 14. CHANGE OF CONTROL.
Notwithstanding any other provision of this Plan, upon a Change of Control
outstanding Awards shall become immediately and fully exercisable or payable
according to the following terms:
(a) Any outstanding and unexercised Option shall become immediately and
fully exercisable, and shall remain exercisable until it would otherwise
expire by reason of lapse of time.
(b) During the six month and seven day period from and after a Change
of Control (the ``Exercise Period''), unless the Committee shall determine
otherwise at the time of grant, a Participant shall have the right, in lieu
of the payment of the Base Price of the shares of Stock being purchased
under an Option and by giving notice to the Committee, to elect (within the
Exercise Period and, in the case of Reporting Persons, only within a Window
Period within such Exercise Period) in lieu of exercise thereof, provided
that if such Option is held by a Reporting Person more than six (6) months
have elapsed from the grant thereof, to surrender all or part of the Option
to the Company and to receive in cash, within 30 days of such notice, an
amount equal to the amount by which the Change in Control Price per share
of Common Stock on the date of such election shall exceed the Base Price
per share of Stock under the Option multiplied by the number of shares of
Stock granted under the Option as to which the right granted under this
subsection 14(b) shall have been exercised. Change in Control Price shall
mean the higher of (i) (A) for any period during which Common Stock shall
not be listed for trading on a national securities exchange, but when
Common Stock shall be authorized as a Nasdaq National Market security, the
highest last transaction price per share as quoted by the Nasdaq, (B) for
any period during which Common Stock shall not be listed for trading on a
national securities exchange or authorized as a Nasdaq National Market
security, but when Common Stock shall be authorized as a Nasdaq SmallCap
Market security, the highest average of the high bid and low asked prices
as reported by the Nasdaq, (C) for any period during which Common Stock
shall be listed for trading on a national securities exchange, the highest
closing price per share of Common Stock on such exchange as of the close of
such trading day or (D) the highest market price per share of Common Stock
as determined by a nationally recognized investment banking firm selected
by the Committee in the event neither (A), (B) nor (C) above shall be
applicable, in each case during the 60-day period prior to and ending on
the date of the Change of Control, and (ii) if the Change of Control is the
result of a transaction or series of transactions described in subsections
14(e)(i), (iii), (iv) or (v) hereof, the highest price per share of Common
Stock paid in such transaction or series of transactions (which in the case
of paragraph (i) shall be the highest price per share of Common Stock as
reflected in a Schedule 13D by the person having made the acquisition);
provided, however, that with respect to any Incentive Stock Option, the
Change of Control Price shall not exceed the market price of a share of
Common Stock (to the extent required pursuant to Section 422 of the Code)
on the date of surrender thereof.
(c) Any outstanding and unexercised Stock Appreciation Rights (other
than such rights which arise pursuant to subsection 14(b) hereof) shall
become exercisable as follows:
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(i) Any SAR described in subsections 10(a) or (b) shall continue to
be treated as provided in those subsections, except that SARs exercised
by Reporting Persons for cash shall be exercised only during a Window
Period, and shall have been held for six months prior to exercise.
(ii) Any SAR described in subsection 10(c) shall be deemed to have
been exercised if and when the Participant advises the Committee in
writing that the Participant elects to have Options with respect to
which the SAR was granted treated as having lapsed, except that SARs
exercised by Reporting Persons for cash shall be exercised only during
a Window Period, and shall have been held for six months prior to
exercise.
(iii) Any SAR described in subsection 10(d) shall be exercisable
immediately, without regard to limitations imposed upon such exercise
which are related to the passage of time, except that SARs exercised by
Reporting Persons for cash shall be exercised only during a Window
Period, and shall have been held for six months prior to exercise.
(d) Any Restricted Stock granted pursuant to Section 11 shall become
immediately and fully transferable, and the Committee shall be deemed to
have exercised its discretion to waive any automatic forfeitures provided
with respect to such Restricted Stock. Any shares held in escrow shall be
delivered to the Participant, and the share certificates shall not contain
the legend specified by subsection 11(e). Reporting Persons shall not
dispose of any Restricted Stock until six (6) months following the date of
award of such Restricted Stock.
(e) For purposes of this Plan, Change of Control shall mean a change in
control of the Company of a nature that would be required to be reported in
response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under
the Act; provided that, for purposes of this Plan, a Change in Control
shall be deemed to have occurred if: (i) any Person (other than the
Company) is or becomes the ``beneficial owner'' (as defined in Rule 13d-3
under the Act), directly or indirectly, of securities of the Company which
represent 20% or more of the combined voting power of the Company's then
outstanding securities; (ii) during any period of two (2) consecutive
years, individuals who at the beginning of such period constitute the Board
cease for any reason to constitute at least a majority thereof, unless the
election, or the nomination for election, by the Company's stockholders, of
each new director is approved by a vote of at least two-thirds (2/3) of the
directors then still in office who were directors at the beginning of the
period but excluding any individual whose initial assumption of office
occurs as a result of either an actual or threatened election contest (as
such term is used in Rule 14a-11 of Regulation 14A promulgated under the
Act) or other actual or threatened solicitation of proxies or consents by
or on behalf of a person other than the Board; (iii) there is consummated
any consolidation or merger of the Company in which the Company is not the
continuing or surviving corporation or pursuant to which shares of Common
Stock are converted into cash, securities or other property, other than a
merger of the Company in which the holders of Common Stock immediately
prior to the merger have the same proportionate ownership of common stock
of the surviving corporation immediately after the merger; (iv) there is
consummated any consolidation or merger of the Company in which the Company
is the continuing or surviving corporation in which the holders of Common
Stock immediately prior to the merger do not own at least fifty percent
(50%), or such greater percentage as shall be set in any agreement with any
Participant, or more of the stock of the surviving corporation immediately
after the merger; (v) there is consummated any sale, lease, exchange or
other transfer (in one transaction or a series of related transactions) of
all, or substantially all, of the assets of the Company; or (vi) the
stockholders of the Company approve any plan or proposal for the
liquidation or dissolution of the Company.
SECTION 15. NONTRANSFERABILITY.
Each Award granted under the Plan to a Participant shall not be
transferable otherwise than by will or the laws of descent and distribution;
provided, however, a Nonqualified Stock Option may be transferred, without
consideration, to a Permitted Transferee. Awards granted under the Plan to a
Participant shall be exercisable, during the Participant's lifetime, only by
the Participant or a Permitted Transferee, as the case may be. In the event of
the death of a Participant, exercise or payment shall be made only:
(a) By or to the Permitted Transferee, the executor or administrator of
the estate of the deceased Participant or the person or persons to whom the
deceased Participant's rights under the Award shall pass by will or the
laws of descent and distribution; and
(b) To the extent that the deceased Participant or the Permitted
Transferee, as the case may be, was entitled thereto at the date of the
Participant's death; provided, however, that any otherwise applicable
six-month holding
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period shall not be required for exercise by or payment to an executor or
administrator of the estate of a deceased Reporting Person.
SECTION 16. TAXES.
The Company shall be entitled to withhold the amount of any tax
attributable to any amounts payable or shares deliverable under the Plan after
giving the person entitled to receive such payment or delivery notice as far in
advance as practicable, and the Company may defer making payment or delivery as
to any Award if any such tax is payable until indemnified to its satisfaction.
The person entitled to any such delivery may, by notice to the Company at the
time the requirement for such delivery is first established, elect to have such
withholding satisfied by a reduction of the number of shares otherwise so
deliverable, such reduction to be calculated based on the Fair Market Value on
the date of such notice; provided, however, with respect to Reporting Persons,
such withholding shall be satisfied by a reduction of the number of shares
otherwise so deliverable.
SECTION 17. NO RIGHT TO EMPLOYMENT.
A Participant's right, if any, to continue to serve the Company and its
Subsidiaries as an officer, employee or otherwise, shall not be enlarged or
otherwise affected by such individual's designation as a Participant under the
Plan.
SECTION 18. DURATION, AMENDMENT AND TERMINATION.
No Award shall be granted more than ten years after the effective date of
this Plan; provided, however, that the terms and conditions applicable to any
Award granted within such period may thereafter be amended or modified by
mutual agreement between the Company and the Participant or such other person
as may then have an interest therein (notwithstanding the fact that an
amendment or modification may cause an Option to no longer qualify as an
Incentive Stock Option). Also, by mutual agreement between the Company and a
Participant hereunder, Stock Options or other Awards may be granted to such
Participant in substitution and exchange for, and in cancellation of, any
Awards previously granted such Participant under this Plan. To the extent that
any Stock Options or other Awards which may be granted within the terms of the
Plan would qualify under present or future laws for tax treatment that is
beneficial to a recipient, then any such beneficial treatment shall be
considered within the intent, purpose and operational purview of the Plan and
the discretion of the Committee, and to the extent that any such Stock Options
or other Awards would so qualify within the terms of the Plan, the Committee
shall have full and complete authority to grant Stock Options or other Awards
that so qualify (including the authority to grant, simultaneously or otherwise,
Stock Options or other Awards which do not so qualify) and to prescribe the
terms and conditions (which need not be identical as among recipients) in
respect to the grant or exercise of any such Stock Option or other Awards under
the Plan. The Board of Directors may amend the Plan from time to time or
terminate the Plan at any time. However, no action authorized by this paragraph
shall reduce the amount of any existing Award or change the terms and
conditions thereof without the Participant's consent. No amendment of the Plan
shall, without approval of the stockholders of the Company: (a) increase the
total number of shares which may be issued under the Plan or increase the
amount or type of Awards that may be granted under the Plan; (b) change the
minimum purchase price, if any, of shares of Stock which may be made subject to
Awards under the Plan; (c) modify the requirements as to eligibility for Awards
under the Plan; or (d) cause the Plan not to comply with either Rule 16b-3,
or any successor rule, under the Act or Section 162(m) of the Code.
SECTION 19. STOCKHOLDER APPROVAL.
The Plan shall be effective on May 1, 1996, and shall be submitted for
approval by the stockholders of the Company at the Annual Meeting of
Stockholders in 1996. If the stockholders do not approve the Plan, it, and any
action taken hereunder, shall be void and of no effect.
SECTION 20. MISCELLANEOUS.
(a) Governing Law. Subject to the provisions of applicable federal law, the
--------------
Plan shall be administered, construed and enforced according to the internal
laws of the State of Missouri, excluding its conflict of law rules, and
applicable federal law and in courts situated in the State of Missouri.
(b) Severability. The invalidity of any particular clause, provision or
-------------
covenant herein shall not invalidate all or any part of the remainder of the
Plan, but such remainder shall be and remain valid in all respects as fully as
the law will permit.
9
