As filed with the Securities and Exchange Commission on February 16, 2000
REGISTRATION NO. 333-
================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
TRISTAR CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 13-3129318
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
105 S. ST. MARY'S STREET, SUITE 1800 78205
SAN ANTONIO, TEXAS (Zip Code)
(Address of Principal Executive Offices)
1997 LONG-TERM INCENTIVE PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT BETWEEN
TRISTAR CORPORATION AND RICHARD P. RIFENBURGH
NON-QUALIFIED STOCK OPTION AGREEMENT BETWEEN
TRISTAR CORPORATION AND AARON ZUTLER
NON-QUALIFIED STOCK OPTION AGREEMENT BETWEEN
TRISTAR CORPORATION AND ROBERT SPARACINO
(Full title of the Plan)
ROBERT M. VIOLA
SENIOR EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
TRISTAR CORPORATION
105 S. ST. MARY'S STREET, SUITE 1800
SAN ANTONIO, TEXAS 78205
(Name and address of agent for service)
(210) 402-2200
(Telephone number, including area code, of agent for service)
With Copy to:
FULBRIGHT & JAWORSKI L.L.P.
300 CONVENT, SUITE 2200
SAN ANTONIO, TEXAS 78205
(210) 224-5575
ATTENTION: PHILLIP M. RENFRO
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=============================================================================================
PROPOSED PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO MAXIMUM OFFERING AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED BE REGISTERED PRICE PER UNIT(1) PRICE(1) REGISTRATION FEE
- ---------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value 1,578,400 shares $5.96875 $9,421,075 $2,487.17
=============================================================================================
</TABLE>
(1) Estimated in accordance with Rule 457(c) and (h) solely for the purpose of
calculating the registration fee on the basis of the high and low prices
of the common stock as reported in the NASDAQ Small Cap Market System on
February 15, 2000.
================================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are hereby incorporated by reference in this
Registration Statement:
1. The Annual Report on Form 10-K of Tristar Corporation, a Delaware
corporation (the "Registrant"), for the year ended August 28, 1999;
2. The Registrant's Quarterly Report on Form 10-Q for the quarter
ended November 27, 1999;
3. The Registrant's Current Report on Form 8-K filed November 30,
1999;
4. The description of the Registrant's Common Stock, $.01 par value,
set forth under the caption "Description of Capital Stock" contained in the
Registrant's Form 8-A, filed by the Registrant with the Securities and Exchange
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), on January 15, 1985.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act subsequent to the date of the filing
hereof and prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing such
documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law empowers the
Registrant to, and the Bylaws of the Registrant provide that it shall, indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding by reason of the
fact that he is or was a director, officer, employee or agent of the Registrant,
or is or was serving at the request of the Registrant as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses, judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to be the best interest of the
Registrant, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful; except that, in the case
of an action or suit by or in the right of the Registrant, no indemnification
may be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable
-2-
<PAGE>
for negligence or misconduct in the performance of his duty to the Registrant
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine that such person is fairly and
reasonably entitled to indemnity for proper expenses.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
3.1 Certificate of Incorporation of the Registrant, as amended
(incorporated by reference from Exhibit 3.1 to the Report on Form
8-K dated August 31, 1995).
3.2 Bylaws of the Registrant (amended as of August 14, 1992)
(incorporated by reference from Exhibit 3.2 to the Annual Report on
Form 10-K for the year ended August 31, 1992).
4.1 Form of Common Stock certificate (incorporated by reference from
Exhibit 4.2 to the Quarterly Report on Form 10-Q for the quarterly
period ended February 28, 1993).
*4.2 Tristar Corporation 1997 Long-Term Incentive Plan.
*4.3 Form of Option Agreement under the Tristar Corporation 1997
Long-Term Incentive Plan.
*5.1 Opinion of Fulbright & Jaworski L.L.P. as to the legality of the
securities being registered.
*10.1 Non-Qualified Stock Option Agreement between Tristar Corporation
and Richard P. Rifenburgh, as amended.
*10.2 Non-Qualified Stock Option Agreement between Tristar Corporation
and Aaron Zutler.
*10.3 Non-Qualified Stock Option Agreement between Tristar Corporation
and Robert Sparacino, as amended.
*23.1 Consent of Fulbright & Jaworski L.L.P. (included in Exhibit 5.1).
*23.2 Consent of PricewaterhouseCoopers LLP.
*24.1 Powers of Attorney from the members of the Board of Directors of
the Registrant (contained on signature page).
- ----------------
* filed herewith
-3-
<PAGE>
ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of 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; and
(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 Exchange Act, that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the 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
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate
-4-
<PAGE>
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
-5-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all 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 San Antonio, State of Texas, on February ___,
2000.
TRISTAR CORPORATION
By: /s/ ROBERT M. VIOLA
Robert M. Viola
Senior Executive Vice President and
Chief Financial Officer
-6-
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints Richard R. Howard and Robert M. Viola, or
either of them, his true and lawful attorney-in-fact and agent, with full power
of substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same and all
exhibits thereto, and all documents in connection therewith, with the Securities
and Exchange Commission, granting said attorney-in-fact and agent, and each of
them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or either of them, or their
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
________________________ President, Chief Executive February _____, 2000
Richard R. Howard Officer and a Director
(Principal Executive Officer)
Senior Executive Vice-President February _____, 2000
________________________ and Chief Financial Officer
Robert M. Viola (Principal Financial and
Accounting Officer)
Director February _____, 2000
________________________
Richard P. Rifenburgh
Director February _____, 2000
________________________
Viren S. Sheth
Director February _____, 2000
________________________
Robert A. Lerman
Director February _____, 2000
________________________
Jay J. Sheth
-7-
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints Richard R. Howard and Robert M. Viola, or
either of them, his true and lawful attorney-in-fact and agent, with full power
of substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same and all
exhibits thereto, and all documents in connection therewith, with the Securities
and Exchange Commission, granting said attorney-in-fact and agent, and each of
them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or either of them, or their
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
/s/ RICHARD R. HOWARD President, Chief Executive February _____, 2000
Richard R. Howard Officer and a Director
(Principal Executive Officer)
/s/ ROBERT M. VIOLA Senior Executive Vice-President February _____, 2000
Robert M. Viola and Chief Financial Officer
(Principal Financial and
Accounting Officer)
/s/ RICHARD P. RIFENBURGH Director February _____, 2000
Richard P. Rifenburgh
/s/ VIREN S. SHETH Director February _____, 2000
Viren S. Sheth
/s/ ROBERT A. LERMAN Director February _____, 2000
Robert A. Lerman
/s/ JAY J. SHETH Director February _____, 2000
Jay J. Sheth
-8-
<PAGE>
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
3.1 Certificate of Incorporation of the Registrant, as amended
(incorporated by reference from Exhibit 3.1 to the Report on Form
8-K dated August 31, 1995).
3.2 Bylaws of the Registrant (amended as of August 14, 1992)
(incorporated by reference from Exhibit 3.2 to the Annual Report on
Form 10-K for the year ended August 31, 1992).
4.1 Form of Common Stock certificate (incorporated by reference from
Exhibit 4.2 to the Quarterly Report on Form 10-Q for the quarterly
period ended February 28, 1993).
*4.2 Tristar Corporation 1997 Long-Term Incentive Plan.
*4.3 Form of Option Agreement under the Tristar Corporation 1997
Long-Term Incentive Plan.
*5.1 Opinion of Fulbright & Jaworski L.L.P. as to the legality of the
securities being registered.
*10.1 Non-Qualified Stock Option Agreement between Tristar Corporation and
Richard P. Rifenburgh, as amended.
*10.2 Non-Qualified Stock Option Agreement between Tristar Corporation and
Aaron Zutler.
*10.3 Non-Qualified Stock Option Agreement between Tristar Corporation and
Robert Sparacino, as amended.
*23.1 Consent of Fulbright & Jaworski L.L.P. (included in Exhibit 5.1).
*23.2 Consent of PricewaterhouseCoopers LLP.
*24.1 Powers of Attorney from the members of the Board of Directors of the
Registrant (contained on signature page).
- ----------------
* filed herewith
-9-
EXHIBIT 4.2
TRISTAR CORPORATION
LONG-TERM INCENTIVE PLAN, AS AMENDED
ARTICLE I: GENERAL
SECTION 1.1 PURPOSE OF THE PLAN. The Long-Term Incentive Plan (the "Plan")
of Tristar Corporation (the "Company") is intended to advance the best interests
of the Company, its subsidiaries and its shareholders in order to attract,
retain and motivate employees by providing them with additional incentives
through (i) the grant of options ("Options") to purchase shares of Common Stock,
par value $.01 per share, of the Company ("Common Stock"), (ii) the grant of
stock appreciation rights ("Stock Appreciation Rights"), (iii) the award of
shares of restricted Common Stock ("Restricted Stock") and (iv) the award of
units payable in cash or shares of Common Stock based on performance
("Performance Awards"), thereby increasing the personal stake of such employees
in the continued success and growth of the Company.
SECTION 1.2 ADMINISTRATION OF THE PLAN. (a) The Plan shall be administered
by the Compensation Committee or other designated committee (the "Committee") of
the Board of Directors of the Company (the "Board of Directors") which shall
consist of at least two Outside Directors. The Committee shall have authority to
interpret conclusively the provisions of the Plan, to adopt such rules and
regulations for carrying out the Plan as it may deem advisable, to decide
conclusively all questions of fact arising in the application of the Plan, to
establish performance criteria in respect of Awards (as defined herein) under
the Plan, to certify that Plan requirements have been met for any participant in
the Plan, to submit such matters as it may deem advisable to the Company's
shareholders for their approval, and to make all other determinations and take
all other actions necessary or desirable for the administration of the Plan. The
Committee is expressly authorized to adopt rules and regulations limiting or
eliminating its discretion in respect of certain matters as it may deem
advisable to comply with or obtain preferential treatment under any applicable
tax or other law rule, or regulation. All decisions and acts of the Committee
shall be final and binding upon all affected Plan participants.
For purposes of this Plan, "Outside Director" shall mean a non-employee
director of the Company who is "disinterested" within the meaning of Rule 16b-3
under the Securities Exchange Act of 1934, as amended (the "Exchange Act").
(b) The Committee shall designate the eligible employees, if any, to be
granted Awards and the type and amount of such Awards and the time when Awards
will be granted. All Awards granted under the Plan shall be on the terms and
subject to the conditions determined by the Committee consistent with the Plan.
SECTION 1.3 ELIGIBLE PARTICIPANTS. Employees, including officers, of the
Company and its subsidiaries (all such subsidiaries being referred to as
"Subsidiaries") shall be eligible for Awards under the Plan.
SECTION 1.4 AWARDS UNDER THE PLAN. Awards to employees may be in the form
of (i) Options, (ii) Stock Appreciation Rights, which may be issued independent
of or in tandem with Options, (iii) shares of Restricted Stock, (iv) Performance
Awards, or (v) any combination of the foregoing (collectively, "Awards").
-1-
<PAGE>
SECTION 1.5 SHARES SUBJECT TO THE PLAN. Initially, the aggregate number of
shares of Common Stock that may be issued under the Plan shall be 1,423,400
subject to adjustments as provided in Section 5.2 of the Plan. Shares
distributed pursuant to the Plan may consist of authorized but unissued shares
or treasury shares of the Company, as shall be determined from time to time by
the Board of Directors.
If any Award under the Plan shall expire, terminate or be cancelled
(including cancellation upon an Option holder's exercise of a related Stock
Appreciation Right) for any reason without having been exercised in full, or if
any Award shall be forfeited to the Company, the unexercised or forfeited Award
shall not count against the above limits and shall again become available for
Awards under the Plan (unless the holder of such Award received dividends or
other economic benefits with respect to such Award, which dividends or other
economic benefits are not forfeited, in which case the Award shall count against
the above limits). Shares of Common Stock equal in number to the shares
surrendered in payment of the option price, and shares of Common Stock which are
withheld in order to satisfy Federal, state or local tax liability, shall count
against the above limits. Only the number of shares of Common Stock actually
issued upon exercise of a Stock Appreciation Right shall count against the above
limits, and any shares which were estimated to be used for such purposes and
were not in fact so used shall again become available for Awards under the Plan.
Cash exercises of Stock Appreciation Rights and cash settlement of other Awards
will not count against the above limits.
The aggregate number of shares of Common Stock subject to Options or Stock
Appreciation Rights that may be granted to any one participant in any one year
under the Plan shall be 200,000. The aggregate number of shares of Common Stock
that may be granted to any one participant in any one year in respect of
Restricted Stock shall be 200,000. The aggregate number of shares of Common
Stock that may be received by any one participant in any one year in respect of
a Performance Award shall be 200,000 and the aggregate amount of cash that may
be received by any one participant in any one year in respect to a Performance
Award shall be $500,000.
The total number of Awards (or portions thereof) settled in cash under the
Plan, based on the number of shares covered by such Awards (e.g., 100 shares for
a Stock Appreciation Right with respect to 100 shares), shall not exceed a
number equal to (i) the number of shares initially available for issuance under
the Plan plus (ii) the number of shares that have become available for issuance
under the Plan pursuant to the first paragraph of this Section 1.5.
The aggregate number of shares of Common Stock that are available under
the Plan for Options granted in accordance with Section 2.4(i) ("ISOs") is
1,423,400, subject to adjustments as provided in Section 5.2 of the Plan.
SECTION 1.6 OTHER COMPENSATION PROGRAMS. Nothing contained in the Plan
shall be construed to preempt or limit the authority of the Board of Directors
to exercise its corporate rights and powers, including, but not by way of
limitation, the right of the Board of Directors (i) to grant incentive awards
for proper corporate purposes otherwise than under the Plan to any employee,
officer, director or other person or entity or (ii) to grant incentive awards
to, or assume incentive awards of, any person or entity in connection with the
acquisition (whether by purchase, lease, merger, consolidation or otherwise) of
the business or assets (in whole or in part) of any person or entity.
ARTICLE II: STOCK OPTIONS AND STOCK APPRECIATION RIGHTS
-2-
<PAGE>
SECTION 2.1 TERMS AND CONDITIONS OF OPTIONS. Subject to the following
provisions, all Options granted under the Plan to employees of the Company and
its Subsidiaries shall be in such form and shall have such terms and conditions
as the Committee, in its discretion, may from time to time determine consistent
with the Plan.
(a) OPTION PRICE. The option price per share shall be determined by the
Committee, except that in the case of an Option granted in accordance with
Section 2.4(i) the option price per share shall not be less than the fair market
value of a share of Common Stock (as determined by the Committee) on the date
the Option is granted (other than in the case of substitute or assumed Options
to the extent required to qualify such Options for preferential tax treatment
under the Code as in effect at the time of such grant).
(b) TERM OF OPTION. The term of an Option shall be determined by the
Committee, except that in the case of an ISO the term of the Option shall not
exceed ten years from the date of grant, and, notwithstanding any other
provision of this Plan, no Option shall be exercised after the expiration of its
term.
(c) EXERCISE OF OPTIONS. Options shall be exercisable at such time or
times and subject to such terms and conditions as the Committee shall specify in
the Option grant. Unless the Option grant specifies otherwise, the Committee
shall have discretion at any time to accelerate such time or times and otherwise
waive or amend any conditions in respect of all or any portion of the Options
held by any optionee. An Option may be exercised in accordance with its terms as
to any or all shares purchasable thereunder.
(d) PAYMENT FOR SHARES. The Committee may authorize payment for shares as
to which an Option is exercised to be made in cash, shares of Common Stock, a
combination thereof, by "cashless exercise" or in such other manner as the
Committee in its discretion may provide.
(e) SHAREHOLDER RIGHTS. The holder of an Option shall, as such, have none
of the rights of a shareholder.
(f) TERMINATION OF EMPLOYMENT. The Committee shall have discretion to
specify in the Option grant, or, with the consent of the optionee, an amendment
thereof, provisions with respect to the period, not extending beyond the term of
the Option, during which the Option may be exercised following the optionee's
termination of employment.
SECTION 2.2 STOCK APPRECIATION RIGHTS IN TANDEM WITH OPTIONS.
(a) The Committee may, either at the time of grant of an Option or at any
time during the term of the Option, grant Stock Appreciation Rights ("Tandem
SARs") with respect to all or any portion of the shares of Common Stock covered
by such Option. A Tandem SAR may be exercised at any time the Option to which it
relates is then exercisable, but only to the extent the Option to which it
relates is exercisable, and shall be subject to the conditions applicable to
such Option. When a Tandem SAR is exercised, the Option to which it relates
shall cease to be exercisable to the extent of the number of shares with respect
to which the Tandem SAR is exercised. Similarly, when an Option is exercised,
the Tandem SARs relating to the shares covered by such Option exercise shall
terminate. Any Tandem SAR which is outstanding on the last day of the term of
the related Option (as determined pursuant to Section 2.1(b)) shall be
automatically exercised on such date for cash without any action by the
optionee.
-3-
<PAGE>
(b) Upon exercise of a Tandem SAR, the holder shall receive, for each
share with respect to which the Tandem SAR is exercised, an amount (the
"Appreciation") equal to the difference between the option price per share of
the Option to which the Tandem SAR relates and the fair market value (as
determined by the Committee) of a share of Common Stock on the date of exercise
of the Tandem SAR. The Appreciation shall be payable in cash, Common Stock, or a
combination of both, at the option of the Committee, and shall be paid within 30
days of the exercise of the Tandem SAR.
SECTION 2.3 STOCK APPRECIATION RIGHTS INDEPENDENT OF OPTIONS. Subject to
the following provisions, all Stock Appreciation Rights granted independent of
Options ("Independent SARs") under the Plan to employees of the Company and its
Subsidiaries shall be in such form and shall have such terms and conditions as
the Committee, in its discretion, may from time to time determine consistent
with the Plan.
(a) EXERCISE PRICE. The exercise price per share shall be determined by
the Committee on the date the Independent SAR is granted.
(b) TERM OF INDEPENDENT SAR. The term of an Independent SAR shall be
determined by the Committee, and, notwithstanding any other provision of this
Plan, no Independent SAR shall be exercised after the expiration of its term.
(c) EXERCISE OF INDEPENDENT SARS. Independent SARs shall be exercisable at
such time or times and subject to such terms and conditions as the Committee
shall specify in the Independent SAR grant. Unless the Independent SAR grant
specifies otherwise, the Committee shall have discretion at any time to
accelerate such time or times and otherwise waive or amend any conditions in
respect of all or any portion of the Independent SARs held by any participant.
Upon exercise of an Independent SAR, the holder shall receive, for each share
specified in the Independent SAR grant, an amount (the "Appreciation") equal to
the difference between the exercise price per share specified in the Independent
SAR grant and the fair market value (as determined by the Committee) of a share
of Common Stock on the date of exercise of the Independent SAR. The Appreciation
shall be payable in cash, Common Stock, or a combination of both, at the option
of the Committee, and shall be paid within 30 days of the exercise of the
Independent SAR.
(d) SHAREHOLDER RIGHTS. The holder of an Independent SAR shall, as such,
have none of the rights of a shareholder.
(e) TERMINATION OF EMPLOYMENT. The Committee shall have discretion to
specify in the Independent SAR grant, or, with the consent of the holder, an
amendment thereof, provisions with respect to the period, not extending beyond
the term of the Independent SAR, during which the Independent SAR may be
exercised following the holder's termination of employment.
SECTION 2.4 STATUTORY OPTIONS. Subject to the limitations on Option terms
set forth in Section 2.1, the Committee shall have the authority to grant (i)
ISOs within the meaning of Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code"), and (ii) Options containing such terms and conditions as
shall be required to qualify such Options for preferential tax treatment under
the Code as in effect at the time of such grant, including, if then applicable,
limits with respect to minimum exercise price, duration and amounts and special
limitations applicable to any individual who, at the time the Option is granted,
owns stock possessing more than 10% of the total combined voting power of all
classes of stock of the Company or any affiliate. Options granted pursuant to
this Section 2.4 may contain such other terms and conditions
-4-
<PAGE>
permitted by Article II of this Plan as the Committee, in its discretion, may
from time to time determine (including, without limitation, provision for Stock
Appreciation Rights), to the extent that such terms and conditions do not cause
the Options to lose their preferential tax treatment. If an Option intended to
be an ISO ceases or is otherwise not eligible to be an ISO, such Option (or
portion thereof necessary to maintain the status of the remaining portion of the
Option as an ISO) shall remain valid but be treated as an Option other than an
ISO.
ARTICLE III: RESTRICTED STOCK
SECTION 3.1 TERMS AND CONDITIONS OF RESTRICTED STOCK AWARDS. Subject to
the following provisions, all Awards of Restricted Stock under the Plan to
employees of the Company and its Subsidiaries shall be in such form and shall
have such terms and conditions as the Committee, in its discretion, may from
time to time determine consistent with the Plan.
(a) RESTRICTED STOCK AWARD. The Restricted Stock Award shall specify the
number of shares of Restricted Stock to be awarded, the price, if any, to be
paid by the recipient of the Restricted Stock, and the date or dates on which
the Restricted Stock will vest. The vesting and number of shares of Restricted
Stock may be conditioned upon the completion of a specified period of service
with the Company or its Subsidiaries, upon the attainment of specified
performance objectives, or upon such other criteria as the Committee may
determine in accordance with the provisions hereof. Performance objectives will
be based on increases in share prices, operating income, net income or cash flow
thresholds, sales results, return on common equity or any combination of the
foregoing.
(b) RESTRICTIONS ON TRANSFER. Stock certificates representing the
Restricted Stock granted to an employee shall be registered in the employee's
name. Such certificates shall either be held by the Company on behalf of the
employee, or delivered to the employee bearing a legend to restrict transfer of
the certificate until the Restricted Stock has vested, as determined by the
Committee. The Committee shall determine whether the employee shall have the
right to vote and/or receive dividends on the Restricted Stock before it has
vested. No share of Restricted Stock may be sold, transferred, assigned, or
pledged by the employee until such share has vested in accordance with the terms
of the Restricted Stock Award. Unless the grant of a Restricted Stock Award
specifies otherwise, in the event of an employee's termination of employment
before all the employee's Restricted Stock has vested, or in the event other
conditions to the vesting of Restricted Stock have not been satisfied prior to
any deadline for the satisfaction of such conditions set forth in the Award, the
shares of Restricted Stock that have not vested shall be forfeited and any
purchase price paid by the employee shall be returned to the employee. At the
time Restricted Stock vests (and, if the employee has been issued legended
certificates of Restricted Stock, upon the return of such certificates to the
Company), a certificate for such vested shares shall be delivered to the
employee or the employee's estate, free of all restrictions.
(c) ACCELERATED VESTING. Notwithstanding the vesting conditions set forth
in the Restricted Stock Award, unless the Restricted Stock grant specifies
otherwise, the Committee may in its discretion at any time accelerate the
vesting of Restricted Stock or otherwise waive or amend any conditions of a
grant of Restricted Stock.
-5-
<PAGE>
ARTICLE IV: PERFORMANCE AWARDS
SECTION 4.1 TERMS AND CONDITIONS OF PERFORMANCE AWARDS. The Committee
shall be authorized to grant Performance Awards, which are payable in stock,
cash or a combination thereof, at the discretion of the Committee.
(a) PERFORMANCE PERIOD. The Committee shall establish with respect to each
Performance Award a performance period over which the performance goal of such
Performance Award shall be measured. The performance period for a Performance
Award shall be established prior to the time such Performance Award is granted
and may overlap with performance periods relating to other Performance Awards
granted hereunder to the same employee.
(b) PERFORMANCE OBJECTIVES. The Committee shall establish a minimum level
of acceptable achievement for the holder at the time of each Award. Each
Performance Award shall be contingent upon future performances and achievement
of objectives described either in terms of Company-wide performance or in terms
that are related to performance of the employee or of the division, subsidiary,
department or function within the Company in which the employee is employed. The
Committee shall have the authority to establish the specific performance
objectives and measures applicable to such objectives. Such objectives, however,
shall be based on increases in share prices, operating income, net income or
cash flow thresholds, sales results, return on common equity or any combination
of the foregoing.
(c) SIZE, FREQUENCY AND VESTING. The Committee shall have the authority to
determine at the time of the Award the maximum value of a Performance Award, the
frequency of Awards and the date or dates when Awards vest.
(d) PAYMENT. Following the end of each performance period, the holder of
each Performance Award will be entitled to receive payment of an amount, not
exceeding the maximum value of the Performance Award, based on the achievement
of the performance measures for such performance period, as determined by the
Committee. If at the end of the performance period the specified objectives have
been attained, the employee shall be deemed to have fully earned the Performance
Award. If the employee exceeds the specified minimum level of acceptable
achievement but does not fully attain such objectives, the employee shall be
deemed to have partly earned the Performance Award, and shall become entitled to
receive a portion of the total Award, as determined by the Committee. If a
Performance Award is granted after the start of a performance period, the Award
shall be reduced to reflect the portion of the performance period during which
the Award was in effect. Unless the Award specifies otherwise, including
restrictions in order to satisfy the conditions under Section 162(m) of the
Code, the Committee may adjust the payment of Awards or the performance
objectives if events occur or circumstances arise which would cause a particular
payment or set of performance objectives to be inappropriate, as determined by
the Committee.
(e) TERMINATION OF EMPLOYMENT. A recipient of a Performance Award who, by
reason of death, disability or retirement, terminates employment before the end
of the applicable performance period shall be entitled to receive, to the extent
earned, a portion of the Award which is proportional to the portion of the
performance period during which the employee was employed. A recipient of a
Performance Award who terminates employment for any other reason shall not be
entitled to any part of the Award unless the Committee determines otherwise;
however, the Committee may in no event pay the employee more than that portion
of the Award which is proportional to his or her period of actual service.
-6-
<PAGE>
(f) ACCELERATED VESTING. Notwithstanding the vesting conditions set forth
in a Performance Award, unless the Award specifies otherwise, the Committee may
in its discretion at any time accelerate vesting of the Award or otherwise waive
or amend any conditions (including but not limited to performance objectives) in
respect of a Performance Award.
(g) SHAREHOLDER RIGHTS. The holder of a Performance Award shall, as such,
have none of the rights of a shareholder.
ARTICLE V: ADDITIONAL PROVISIONS
SECTION 5.1 GENERAL RESTRICTIONS. Each Award under the Plan shall be
subject to the requirement that, if at any time the Committee shall determine
that (i) the listing, registration or qualification of the shares of Common
Stock subject or related thereto upon any securities exchange or under any state
or Federal law, or (ii) the consent or approval of any government regulatory
body, or (iii) an agreement by the recipient of an Award with respect to the
disposition of shares of Common Stock, is necessary or desirable (in connection
with any requirement or interpretation of any Federal or state securities law,
rule or regulation) as a condition of, or in connection with, the granting of
such Award or the issuance, purchase or delivery of shares of Common Stock
thereunder, such Award may not be consummated in whole or in part unless such
listing, registration, qualification, consent, approval or agreement shall have
been effected or obtained free of any conditions not acceptable to the
Committee.
SECTION 5.2 ADJUSTMENTS FOR CHANGES IN CAPITALIZATION. In the event of any
stock dividends, stock splits, recapitalizations, combinations, exchanges of
shares, mergers, consolidation, liquidations, split-ups, split-offs, spin-offs,
or other similar changes in capitalization, or any distribution to shareholders,
including a rights offering, other than regular cash dividends, changes in the
outstanding stock of the Company by reason of any increase or decrease in the
number of issued shares of Common Stock resulting from a split-up or
consolidation of shares or any similar capital adjustment or the payment of any
stock dividend, any share repurchase at a price in excess of the market price of
the Common Stock at the time such repurchase is announced or other increase or
decrease in the number of such shares, the Committee shall make appropriate
adjustment in the number and kind of shares authorized by the Plan (including
shares available for ISOs), in the number, price or kind of shares covered by
the Awards and in any outstanding Awards under the Plan; provided, however, that
no such adjustment shall increase the aggregate value of any outstanding Award.
In the event of any adjustment in the number of shares covered by any
Award, any fractional shares resulting from such adjustment shall be disregarded
and each such Award shall cover only the number of full shares resulting from
such adjustment.
SECTION 5.3 AMENDMENTS.
(a) The Board of Directors may at any time and from time to time and in
any respect amend or modify the Plan.
(b) The Committee shall have the authority to amend any Award to include
any provision which, at the time of such amendment, is authorized under the
terms of the Plan; however, no outstanding Award may be revoked or altered in a
manner unfavorable to the holder without the written consent of the holder.
SECTION 5.4 CANCELLATION OF AWARDS. Any Award granted under the Plan may
be cancelled at any time with the consent of the holder and a new Award may be
granted to such holder in lieu thereof, which
-7-
<PAGE>
Award may, in the discretion of the Committee, be on more favorable terms and
conditions than the cancelled Award.
SECTION 5.5 WITHHOLDING. Whenever the Company proposes or is required to
issue or transfer shares of Common Stock under the Plan, the Company shall have
the right to require the holder to pay an amount in cash or to retain or sell
without notice, or demand surrender of, shares of Common Stock in value
sufficient to satisfy any Federal, state or local withholding tax liability
("Withholding Tax") prior to the delivery of any certificate for such shares (or
remainder of shares if Common Stock is retained to satisfy such tax liability).
Whenever under the Plan payments are to be made in cash, such payments shall be
net of an amount sufficient to satisfy any federal, state or local withholding
tax liability.
Whenever Common Stock is so retained or surrendered to satisfy Withholding
Tax, the value of shares of Common Stock so retained or surrendered shall be
determined by the Committee, and the value of shares of Common Stock so sold
shall be the net proceeds (after deduction of commissions) received by the
Company from such sale, as determined by the Committee.
SECTION 5.6 NON-ASSIGNABILITY. Except as expressly provided in the Plan,
no Award under the Plan shall be assignable or transferable by the holder
thereof except by will or by the laws of descent and distribution. During the
life of the holder, Awards under the Plan shall be exercisable only by such
holder or by the guardian or legal representative of such holder.
SECTION 5.7 NON-UNIFORM DETERMINATIONS. Determinations by the Committee
under the Plan (including, without limitation, determinations of the persons to
receive Awards; the form, amount and timing of such Awards; the terms and
provisions of such Awards and the agreements evidencing same; and provisions
with respect to termination of employment) need not be uniform and may be made
by it selectively among persons who receive, or are eligible to receive, Awards
under the Plan, whether or not such persons are similarly situated.
SECTION 5.8 NO GUARANTEE OF EMPLOYMENT. The grant of an Award under the
Plan shall not constitute an assurance of continued employment for any period or
any obligation of the Board of Directors to nominate any director for reelection
by the Company's shareholders.
SECTION 5.9 DURATION AND TERMINATION.
(a) The Plan shall be of unlimited duration. Notwithstanding the
foregoing, no ISO (within the meaning of Section 422 of the Code) shall be
granted under the Plan ten (10) years after the effective date of the Plan, but
Awards granted prior to such date may extend beyond such date, and the terms of
this Plan shall continue to apply to all Awards granted hereunder.
(b) The Board of Directors may suspend, discontinue or terminate the Plan
at any time. Such action shall not impair any of the rights of any holder of any
Award outstanding on the date of the Plan's suspension, discontinuance or
termination without the holder's written consent.
SECTION 5.10 EFFECTIVE DATE. The Plan shall be effective as of April 25,
1997, subject to approval of the Company's stockholders. This Plan and all
Awards granted under this Plan prior to shareholder approval, shall be void and
of no further force and effect unless this Plan shall have been approved by the
requisite vote of the shareholders entitled to vote at a meeting of the
shareholders held prior to April 24, 1998.
-8-
EXHIBIT 4.3
LONG TERM INCENTIVE PLAN
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT dated as of the Grant Date (the "Grant Date") set
forth on Schedule I hereto, between TRISTAR CORPORATION, a Delaware corporation
(the "Company"), and the employee of the Company or of a subsidiary of the
Company identified on Schedule I hereto (the "Employee").
On the Grant Date the Company granted to the Employee the option or
options hereinafter described pursuant to, and subject to and upon the terms and
conditions set forth in, the Tristar Corporation Long-Term Incentive Plan, as
amended from time to time (the "Plan"), and promptly thereafter notified the
Employee of the grant of such option or options.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth and for other good and valuable consideration, the parties hereto hereby
agree as follows:
1. GRANT OF OPTION.
(a) On the Grant Date, the Company irrevocably granted to the
Employee, as a matter of separate agreement and not in lieu of salary or
any other compensation for services, the right and option to purchase all
or any part of the aggregate number of shares of its Common Stock, par
value $.01 per share (the "Common Stock"), set forth on Schedule I hereto,
on the terms and conditions herein set forth.
(b) To the extent set forth in Schedule I hereto, the right and
option to purchase shares of Common Stock are intended to be an incentive
stock option (an "ISO") within the meaning of Section 422(b) of the
Internal Revenue Code of 1986, as amended (the "Code"). To the extent such
right and option to purchase shares of Common Stock as set forth on
Schedule I hereto is not identified as being intended to be an ISO, such
right and option will be considered a non-statutory option. In addition,
to the extent that a right and option to purchase shares of Common Stock
intended to be an ISO does not qualify as an ISO, such right and option,
to the extent that it does not so qualify, shall be converted to a
non-statutory option.
(c) The ISOs and non-statutory stock options granted to the Employee
hereunder are each referred to as an "Option" and collectively referred to
as the "Options".
-1-
<PAGE>
2. TERMS.
(a) EXERCISE PRICE. The exercise price per share for the shares of
Common Stock subject to an Option granted hereunder shall be the per share
amount set forth in Schedule I hereto for such Option (the "Exercise
Price"). With respect to any Option that is intended to be an ISO, the
Exercise Price shall not be less than the fair market value per share
(determined as of the date the Option is granted) of the Common Stock on
such date.
(b) VESTING. Subject to the provisions of Section 4 of this
Agreement and the Plan, the Option or Options granted hereunder shall
become exercisable as to the portions of the aggregate number of shares
covered by such Option as set forth on Schedule I hereto on and after each
of the related dates during the term of such Option set forth on Schedule
I hereto.
(c) TERM AND CONDITIONS OF EXERCISE. An Option granted hereunder
shall be exercisable in whole at any time or in part from time to time
during the term of such Option as to all or any of the shares then
purchasable under such Option, but not as to less than the minimum number
of shares stated on Schedule I hereto with respect to such Option (or the
shares then purchasable under the Option if less than such minimum) at any
one time; provided that if there is a Tandem SAR (as defined in the Plan)
outstanding which relates to any of the shares purchasable under such
Option, then the number of shares so purchasable shall be reduced by the
number of shares in respect of which the Tandem SAR has been exercised.
The term of the Option or Options subject hereto shall be for the
number of years from the Grant Date set forth on Schedule I hereto with
respect to such Option or such shorter period of time as is described in
Section 4. In no event shall the term of the Option exceed ten years from
the Grant Date.
Except as provided in Section 4, an Option granted hereunder shall
not be exercisable unless the Employee shall, at the time of exercise, be
an employee of the Company or of a subsidiary of the Company. The holder
of such Option shall have none of the rights of a shareholder with respect
to the shares subject to such Option until such shares are transferred to
the holder upon the exercise of such Option.
3. RESTRICTIONS ON TRANSFER. An Option granted hereunder shall not be
assignable or transferrable by the Employee except by will or by the laws of
descent and distribution, and subject to Section 4(a), such Option is
exercisable, during the Employee's lifetime, only by the Employee. The
designation of a beneficiary by the Employee shall not
-2-
<PAGE>
constitute a transfer. More particularly (but without limiting the generality of
the foregoing), such Option may not be assigned, transferred (except as
aforesaid), pledged or encumbered in any way (whether by operation of law or
otherwise) and shall not be subject to execution, attachment or similar process.
In the event of any attempted assignment, transfer, pledge, encumbrance or other
disposition of such Option contrary to the provisions hereof, or the levy of any
attachment or similar process upon such Option, such Option shall be null and
void and of no further effect.
4. STATUS OF OPTION UPON CERTAIN EVENTS. If the Employee's employment
shall terminate prior to the complete exercise of an Option granted hereunder,
then such Option shall thereafter be exercisable solely to the extent provided
in paragraphs (a) through (d) of this Section 4; provided, however, that (i)
such Option may not be exercised after the scheduled expiration date and (ii) if
the Employee's employment terminates for any reason other than as contemplated
by paragraphs (a) through (d) of this Section 4, the Compensation Committee (the
"Committee"), in its sole discretion, may designate a period following such
termination during which such Option shall remain exercisable (but in no event
shall such period extend beyond the scheduled expiration of such Option).
(a) DEATH OR DISABILITY OR RETIREMENT. If the Employee shall die, be
subject to Disability (as defined in Section 22(e)(3) of the Code) while
employed by the Company or a subsidiary or retire (as such term is used in
any of the Company's pension plans), an Option granted hereunder (unless
previously terminated pursuant to paragraphs (b), (c) or (d) below) may be
exercised as follows: (i) in the case of death, in full for the aggregate
number of shares covered thereby by the legatee or legatees of such Option
under the Employee's last will, or by the personal representatives or
distributes of the Employee, at any time within a period of one year after
the Employee's death, but in no event after the expiration of such Option
set forth in Section 2(c); (ii) in the case of Disability while employed
by the Company or a subsidiary, in full for the aggregate number of shares
covered thereby by the Employee or by the personal representatives of the
Employee if the Employee is unable to act for himself or herself, at any
time within a period of one year after the Employee ceases to be an
employee of the Company or one of its subsidiaries, but in no event after
the expiration of such Option set forth in Section 2(c) herein; and (iii)
in the case of retirement, for the number of shares for which such Option
shall have vested as provided on Schedule I hereto as of the date of such
retirement, by the Employee or by the personal representatives of the
Employee if the Employee is unable to act for himself or herself, at any
time within a period of three years after the date of such retirement, but
in no event after the expiration of the Option set forth in Section 2(c)
herein. If an ISO is exercised more than three months after the Employee's
retirement and the Employee has not died or incurred a Disability, such
Option will be converted to a non-statutory option.
-3-
<PAGE>
(b) TERMINATION WITH CAUSE. If the Employee's employment with the
Company or a subsidiary shall be terminated by the Company or such
subsidiary for "cause" (as defined below) prior to the exercise of any
part of the Option or Options granted hereunder, then such Option or
Options held by the Employee shall immediately terminate and be forfeited
unless the Committee, in its sole discretion, shall otherwise determine.
For this purpose, termination for "cause" shall have the meaning
established by the Committee or, in the absence thereof, shall include but
not be limited to, termination for insubordination, dishonesty,
incompetence, poor performance, moral turpitude, unauthorized disclosure
of confidential information of the Company, other misconduct of any kind
or Employee's refusal to perform the duties and responsibilities of his or
her position for any reason other than illness or incapacity.
(c) CHANGE IN EMPLOYMENT. The Option or Options granted hereunder
shall not be affected by any change of employment (or by any temporary
leave of absence approved by the Committee or by the Board itself), so
long as the Employee continues to be in the employ of the Company or of a
subsidiary of the Company.
5. ADJUSTMENTS. If all or any portion of an Option granted hereunder is
exercised subsequent to any stock dividend, stock split, recapitalization,
combination, exchange of shares, merger, consolidation, liquidation, split-up,
split-off, spin-off or other similar change in capitalization, any distribution
to stockholders, including a rights offering, other than regular cash dividends,
changes in the outstanding stock of the Company by reason of any increase or
decrease in the number of issued shares of Common Stock resulting from a
split-up or consolidation of shares or any similar capital adjustment or the
payment of any stock dividend, any share repurchase at a price in excess of the
closing market price (as determined by the Committee) of the Common Stock at the
time such repurchase is announced or other increase or decrease in the number of
such shares, the Committee may make such appropriate adjustments in the purchase
price paid upon exercise of such Option and the aggregate number and class of
shares or other securities or property issuable upon any such exercise as the
Committee shall, in its sole discretion, determine. In any such event, no
fractional share shall be issued upon any such exercise, and the aggregate price
paid shall be appropriately reduced on account of any fractional share not
issued; further, the minimum number of full shares which may be purchased upon
any such exercise shall be the minimum number specified on Schedule I hereto
adjusted proportionately.
6. PAYMENT; METHOD OF EXERCISE. Payment of the purchase price of the
shares of Common Stock subject to an Option granted hereunder may be made (i) in
any combination of cash or whole shares of Common Stock already owned by the
Employee or (ii) in shares of Common Stock withheld by the Company from the
shares of Common Stock otherwise issuable to the Employee as a result of the
exercise of such Option ("cashless
-4-
<PAGE>
exercise"). Subject to the terms and conditions of this Agreement, such Option
may be exercised by written notice to the Company at its principal office,
attention of the Secretary. Such notice shall (a) state the election to exercise
such Option, the number of shares in respect of which it is being exercised and
the manner of payment for such shares and (b) be signed by the person or persons
so exercising such Option and, in the event such Option is being exercised
pursuant to Section 4 by any person or persons other than the Employee,
accompanied by appropriate proof of the right of such person or persons to
exercise such Option. If the Option being exercised is an ISO and non-statutory
options have also been granted to the Employee hereunder, such notice shall also
identify whether the Option being exercised is an ISO and, if so, the number of
shares of Common Stock to be purchased pursuant to such exercise. Such notice
shall either (i) elect cashless exercise or be accompanied by payment of the
full purchase price of such shares, in which event the Company shall issue and
deliver a certificate or certificates representing such shares as soon as
practicable after the notice is received, or (ii) fix a date (not more than 10
business days from the date of such notice) for the payment of the full purchase
price of such shares at the Company's principal office, against delivery of a
certificate or certificates representing such shares. Cash payments of such
purchase price shall, in case of clause (i) or (ii) above, be made by cash or
check payable to the order of the Company. Common Stock payments (valued at the
closing market price on the date of exercise, as determined by the Committee),
shall be made by delivery of stock certificates in negotiable form. All cash and
Common Stock payments shall, in either case, be delivered to the Company at its
principal office, attention of the Secretary. Shares of Common Stock withheld
pursuant to a cashless exercise election shall be valued at the closing market
price on the date of exercise, as determined by the Committee. If certificates
representing Common Stock are used to pay all or part of the purchase price of
an Option granted hereunder, a replacement certificate shall be delivered by the
Company representing the number of shares delivered but not so used, and an
additional certificate shall be delivered representing the additional shares to
which the holder of such Option is entitled as a result of the exercise of such
Option. The certificate or certificates for the shares as to which such Option
shall have been so exercised shall be registered in the name of the person or
persons so exercising the Option and shall be delivered as aforesaid to or upon
the written order of the person or persons exercising such Option. All shares
issued as provided herein will be fully paid and nonassessable.
7. ADMINISTRATION. The Committee shall have the power to interpret the
Plan and this Agreement, and to adopt such rules for the administration,
interpretation and application of the Plan as are consistent therewith and to
interpret or revoke any such rules. All actions taken and all interpretations
and determinations made by the Committee shall be final and binding upon the
Employee, the Company and all other interested persons.
8. TAXES. The Company shall have the right to require the person
exercising an Option granted hereunder to pay an amount in cash or to retain or
sell without notice, or to demand surrender of, shares of Common Stock in value
sufficient to cover Federal, state or local income taxes, if any, required by
any governmental entity to be withheld or otherwise
-5-
<PAGE>
deducted and paid with respect to such transfer ("Withholding Tax"), and to make
payment (or to reimburse itself for payment made) to the appropriate taxing
authority of an amount in cash equal to the amount of such Withholding Tax,
remitting any balance to the person exercising such Option. For purposes of this
paragraph, the value of shares of Common Stock so retained or surrendered shall
be the closing market price of the Common Stock on the date that the amount of
the Withholding Tax is to be determined (the "Tax Date"), and the value of
shares of Common Stock so sold shall be the actual net proceeds (after deduction
of commissions) received by the Company from such sale. In order for any ISO
granted hereunder to be taxed as an incentive stock option within the meaning of
Section 422(b) of the Code, no disposition of the shares of Common Stock
acquired upon exercise of such Option may be made within the period or periods
specified in Section 422(a)(1) of the Code.
Notwithstanding the foregoing, the person exercising an Option granted
hereunder shall be entitled to satisfy the obligation to pay Withholding Taxes,
if any, in whole or in part, by providing the Company with funds sufficient to
enable the Company to pay such Withholding Tax or by requiring the Company to
retain or to accept upon delivery thereof by the person exercising such Option
shares of Common Stock sufficient in value (determined in accordance with the
last sentence of the preceding paragraph) to cover the amount of such
Withholding Tax. Except as may otherwise be permitted by the Committee, each
such election to have shares retained or to deliver shares for this purpose
shall be subject to the following restrictions: (i) the election must be in
writing and made on or prior to the Tax Date; (ii) the election shall be subject
to the disapproval of the Committee; and (iii) if the person exercising such
Option is subject to Section 16 of the Securities Exchange Act of 1934 (the
"Exchange Act"), an election to have shares retained to satisfy the Withholding
Tax must either (a) be an irrevocable election made after shareholder approval
of the Plan is received and at least six months prior to the Tax Date or (b)
take effect during the ten-business-day "window period" beginning on the third
business day following the date on which the Company releases for publication
its annual or quarterly financial statements and ending on the twelfth business
day following the date of release thereof.
9. RESERVES, ETC. Shares of Common Stock delivered upon the exercise of an
Option granted hereunder shall, in the discretion of the Board or the Committee,
be either shares of Common Stock heretofore or hereafter authorized and then
unissued, or previously issued shares of Common Stock heretofore or hereafter
acquired through purchase in the open market or otherwise, or some of each. The
Company shall be under no obligation to reserve or to retain in its treasury any
particular number of shares of Common Stock at any time, and no particular
shares, whether unissued or held as treasury shares, shall be identified as
those covered by an Option granted hereunder.
10. NO RIGHT TO CONTINUED EMPLOYMENT. Nothing in this Agreement or in the
Plan shall confer upon the Employee any right to continue in the employ of the
Company or shall interfere with or restrict in any way the rights of the
Company, which are hereby
-6-
<PAGE>
expressly reserved, to discharge the Employee at any time for any reason
whatsoever, with or without cause.
11. GENERAL RESTRICTIONS.
(a) An Option granted hereunder shall be subject to the requirement
that, if at any time the Committee shall determine that (i) the listing,
registration or qualification of the shares of Common Stock subject or
related thereto upon any securities exchange or under any state or Federal
law, or (ii) the consent or approval of any governmental regulatory body,
or (iii) an agreement by the recipient of such Option granted pursuant to
this Agreement with respect to the disposition of shares of Common Stock
is necessary or desirable (in connection with any requirement or
interpretation of any Federal or state securities law, rule or regulation)
as a condition of, or in connection with, the granting of such Option or
the issuance, purchase or delivery of shares of Common Stock thereunder,
such Option may not be exercised in whole or in part unless such listing,
registration, qualification, consent, approval or agreement shall have
been effected or obtained free of any conditions not acceptable to the
Committee.
(b) The Employee hereby (i) represents and warrants that any shares
of Common Stock issued, transferred or delivered to, or acquired by, the
Employee pursuant to this Agreement shall be acquired solely for the
Employee's own account for investment, and not with a view to any
distribution thereof that would violate the Securities Act of 1933 (the
"Securities Act") or the applicable securities laws of any state, (ii)
agrees that he or she will not distribute any such shares of Common Stock
in violation of the Securities Act or the applicable securities laws of
any state, and (iii) acknowledges that, unless notified to the contrary by
the Company, such shares of Common Stock will not have been registered
under the Securities Act or the securities laws of any state and must be
held indefinitely unless subsequently registered under the Securities Act
and any applicable state securities laws or unless an exemption from such
registration becomes or is available.
12. ENTIRE AGREEMENT; AMENDMENT. This Agreement together with the Plan
constitutes the entire agreement between the parties with respect to the subject
matter hereof. Any term or provision of this Agreement may be waived at any time
by the party which is entitled to the benefits thereof, except that any waiver
of any term or condition of this Agreement must be in writing.
The Committee shall have the authority to amend this Agreement to include
any provision which, at the time of such amendment, is authorized under the
terms of the Plan;
-7-
<PAGE>
however, an Option granted hereunder may not be revoked or altered in a manner
unfavorable to the holder without the written consent of the holder.
13. GOVERNING LAW. The laws of the State of Delaware shall govern the
interpretation, validity and performance of the terms of this Agreement
regardless of the law that might be applied under principles of conflict of
laws.
14. SUCCESSORS. This Agreement shall be binding upon and inure to the
benefit of the successors, assigns and heirs of the respective parties.
15. NOTICES. All notices or other communications made or given in
connection with this Agreement shall be in writing and shall be deemed to have
been duly given when delivered or mailed by registered or certified mail, return
receipt requested, to those listed below at their following respective addresses
or at such other address as each may specify by notice to the others:
TO THE EMPLOYEE:
As set forth in Schedule I
TO THE COMPANY:
Tristar Corporation
12500 San Pedro, Suite 500
San Antonio, Texas 78216
Attn: Compensation Committee
16. WAIVER. The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver thereof
or deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement.
17. CONSTRUCTION. Titles are provided herein for convenience only and are
not to serve as a basis for interpretation on construction of the Agreement. The
singular form shall include the plural, when the context so indicates. In the
event of an inconsistence between the terms of this Agreement and the terms of
Schedule I hereto, the terms of Schedule I shall prevail. In the event of an
inconsistency between the terms of this Agreement (including Schedule I) and the
terms of the Plan, the terms of the Plan shall prevail.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by its officer thereunto duly authorized, and the Employee has hereunto
set his or her signature, all as of the Grant Date.
-8-
<PAGE>
TRISTAR CORPORATION
By: __________________________________
Robert M. Viola
Executive Vice President and
Chief Financial Officer
__________________________________
Employee
-9-
<PAGE>
SCHEDULE I
Employee Name:
Employee Address:
Grant Date:
Shares of Common Stock underlying Option:
Option Term:
Options Considered to be ISO's within
the meaning of Section 422(b) of the
Code: Yes [ ] No[ ]
Exercise Price Per Share:
Vesting Schedule:
SHARES DATE EXERCISABLE
ADDITIONAL ITEMS:
-10-
EXHIBIT 5.1
[FULBRIGHT & JAWORSKI L.L.P. LETTERHEAD]
February 16, 2000
Tristar Corporation
105 S. St. Mary's Street, Suite 1800
San Antonio, Texas 78205
Gentlemen:
We have acted as counsel for Tristar Corporation, a Delaware
corporation (the "Company"), in connection with the authorization of 1,578,400
shares (the "Shares") of Common Stock, $.01 par value ("Common Stock"), of the
Company, issued or to be issued pursuant to the Non-Qualified Stock Option
Agreement between the Company and Richard P. Rifenburgh, the Non- Qualified
Stock Option Agreement between the Company and Aaron Zutler, the Non-Qualified
Stock Option Agreement between the Company and Robert Sparacino and the
Company's 1997 Long-Term Incentive Plan (collectively, the "Plans").
In connection therewith, we have examined, among other things, the
Plans, the corporate proceedings with respect to the issuance of the Shares and
such other corporate documents as we have deemed appropriate.
Based on the foregoing, and having due regard for such legal
considerations as we have deemed relevant, we are of the opinion that the Shares
to be issued by the Company pursuant to the terms of the Plans have been duly
authorized by all requisite corporate action and, when issued in accordance with
the respective terms thereof, will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our names in the Registration
Statement.
The opinions expressed herein are limited exclusively to the General
Corporation Law of the State of Delaware and the federal securities law of the
United States of America.
<PAGE>
February 16, 2000
Page 2
The opinions expressed herein are for your sole benefit and may be
relied upon only by you.
Very truly yours,
/s/ Fulbright & Jaworski L.L.P.
EXHIBIT 10.1
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, effective November 24, 1997, is entered into between
Tristar Corporation, a Delaware corporation, (the "COMPANY") and Richard P.
Rifenburgh (the "OPTIONEE").
RECITALS
A. The Optionee is a director of the Company and the Company desires to
have Optionee remain in such capacity, encourage the stock ownership of Optionee
and increase the Optionee's proprietary interest in the Company.
B. The Company desires to grant to Optionee an option to purchase up to
75,000 shares of Common Stock, $.01 par value ("COMMON STOCK") of the Company.
AGREEMENTS
In consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. GRANT OF OPTION. Subject to the terms and conditions set forth in this
Agreement, the Company hereby grants to Optionee the option to purchase, during
the period commencing on the date of this Agreement and ending November 24,
2007, at an exercise price equal to the closing per share price on the NASDAQ
SmallCap Market on the date of this Agreement, $6.313 per share (the "OPTION
PRICE"), up to, but not exceeding the aggregate of 75,000 shares of Common Stock
of the Company (such option being hereinafter referred to as the "OPTION"). The
Option evidenced hereby may be exercised from time to time, on a cumulative
basis (as to options to purchase shares not previously exercised).
2. NON-QUALIFIED STATUS. The Option is intended to be a non-qualified
stock option which does not satisfy the requirements of Section 422A of the
Internal Revenue Code of 1986, as amended (the "CODE"). The Option is granted
outside of and therefore shall not be subject to the terms and provisions of the
Company's 1997 Long Term Incentive Plan, as amended.
3. EXERCISE OF OPTION. The Option shall be deemed exercised when the
Optionee (a) shall indicate the decision to do so in writing delivered to the
Company and (b) shall at the same time tender to the Company payment in full of
the Option Price for the shares for which the Option is exercised. The Option
may be exercised for any lesser number of shares than the full amount for which
it could be exercised. Such a partial exercise of an Option shall not affect the
right to exercise the Option from time to time in accordance with the provisions
contained herein
<PAGE>
for the remaining shares subject to the Option. Upon compliance with the
foregoing, the Company shall cause certificates for the shares so purchased to
be delivered to Optionee, his legal representative or such other person who is
entitled to exercise his Option (in accordance with the provisions of paragraph
6 hereof) at its principal business office.
In no event may the Option be exercised after November 24, 2007.
4. NON-TRANSFERABILITY OF OPTIONS. The Option granted to Optionee shall
not be transferable by Optionee except by will or under the laws of descent and
distribution, and shall be exercisable, during his lifetime, only by him. Any
assignment or transfer of the Option except by will or under the laws of descent
and distribution, whether voluntarily or involuntarily, by operation of law or
otherwise, shall not vest in the assignee or transferee any interest or rights
whatsoever, but immediately upon such assignment or transfer the Option shall
terminate and become of no further effect.
5. EARLY FORFEITURE OF OPTION. The Option shall terminate on the date
Optionee ceases to be a director of the Company, unless the Optionee shall (a)
die while a director of the Company, (b) be permanently or totally disabled
within the meaning of Section 22(e)(3) of the Code, or (c) resign or retire as a
director with the consent of the Company. In the event either (a), (b), or (c)
shall occur, the Optionee, or his legatees under his will or his personal
representatives, may exercise the previously unexercised portion of the Option
at any time prior to November 24, 2007.
In the event an Option granted under this Agreement shall be
exercised by the legal representative of the deceased Optionee, or by a person
who acquired an Option granted hereunder by bequest or inheritance or by reason
of the death of the deceased Optionee, written notice of such exercise shall be
accompanied by certified copy of letters testamentary or equivalent proof of the
right of such legal representative or other person to exercise such option.
6. ADJUSTMENT OF SHARES. Notwithstanding any other provision contained
herein, in the event of any change in the outstanding Common Stock by reason of
a stock dividend, stock split, reorganization, recapitalization, merger,
split-up or other change in capital structure, an adjustment may be made by the
Company, in its sole and absolute discretion, to prevent dilution or enlargement
of Optionee's rights hereunder, and the determination of the Company as to these
matters shall be conclusive.
7. ISSUANCE OF STOCK CERTIFICATES; LEGENDS AND PAYMENT OF EXPENSES. Upon
any exercise of an Option which may be granted hereunder and the payment of the
exercise price, a certificate or certificates representing the shares as to
which the Option has been exercised shall be issued by the Company in the name
of the Optionee and shall be delivered to or upon the order of Optionee.
<PAGE>
The Company may, in its discretion, endorse an appropriate legend
upon the certificate or certificates representing any shares issued or
transferred pursuant to the exercise of any Option granted hereunder and may
issue "stop transfer" instructions to its transfer agent in respect of such
shares to (a) prevent a violation of, or to perfect an exemption from, the
registration requirements of the Securities Act of 1933, as amended (the
"SECURITIES ACT") or (b) implement the provisions of any agreement between the
Company and the Optionee with respect to such shares.
The Company shall pay all issue or transfer taxes with respect to
the issuance or transfer of shares, as well as all fees and expenses necessarily
incurred by the Company in connection with such issuance or transfer, except
fees and expenses which may be necessitated by the filing or amending of a
Registration Statement under the Securities Act, which fees and expenses shall
be borne by Optionee unless such Registration Statement has been filed by the
Company for its own corporate purposes (and the Company so states) in which
event the recipient of the shares shall bear only such fees and expenses as are
attributable solely to the inclusion of such shares in the Registration
Statement. All the shares issued as provided herein shall be fully paid and
nonassessable to the extent permitted by law.
8. NO RIGHTS AS STOCKHOLDER. Optionee shall not have rights as a
stockholder with respect to shares covered by the Option until the date of
issuance of a stock certificate for such shares; and, except as otherwise
provided in paragraph 7 hereof, no adjustment for dividends or otherwise shall
be made if the record date therefor is prior to the date of issuance of such
certificate.
9. REQUIREMENTS OF LAW. The Company shall not be required to issue any
shares under the Option if the issuance of such shares shall constitute or
result in a violation by Optionee or the Company of any provision of any law,
statute or regulation of any governmental authority. Specifically, in connection
with any applicable statute or regulation relating to the registration of
securities, upon exercise of the Option, the Company shall not be required to
issue such shares unless the Company has received evidence satisfactory to it to
the effect that Optionee will not transfer such shares except in accordance with
applicable law, including the receipt of an opinion of counsel satisfactory to
the Company to the effect that any proposed transfer complies with applicable
law. The Company may, but shall in no event be obligated to, register any shares
covered hereby pursuant to applicable securities laws of any country or
political subdivision thereof. In the event the shares issuable on exercise of
the Option are not so registered, the Company may imprint on the certificate
evidencing such shares any legend counsel for the Company considers necessary or
advisable to comply with applicable law. The Company shall not be obligated to
take any other affirmative action in order to cause the exercise of the Option
or the issuance of shares pursuant to the Option to comply with any law or
regulation of any governmental authority.
<PAGE>
10. NOTICES. Every notice or other communication relating to this
Agreement shall be in writing, and shall be mailed or delivered to the party for
whom it is intended at such address as may from time to time be designated by
such party in a notice mailed or delivered to the other party as provided
herein, provided that, unless and until some other address be so designated, all
notices or communications by Optionee to the Company shall be mailed or
delivered to the Company at:
Tristar Corporation
12500 San Pedro, Suite 500
San Antonio, Texas 78216
Attention: Robert Viola
and all notices or communications by the Company to Optionee be given to
Optionee personally or may be mailed to him at:
Richard P. Rifenburgh
____________________________________
____________________________________
This Agreement is effective as of the date first written above.
COMPANY: TRISTAR CORPORATION
By: ___________________________
Name: _________________________
Title: ________________________
OPTIONEE: _______________________________
RICHARD P. RIFENBURGH
EXHIBIT 10.2
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, effective December 9, 1998, is entered into between
Tristar Corporation, a Delaware corporation, (the "COMPANY") and Aaron Zutler
(the "OPTIONEE").
RECITALS
A. The Optionee is a director of the Company and the Company desires to
have Optionee remain in such capacity, encourage the stock ownership of Optionee
and increase the Optionee's proprietary interest in the Company.
B. The Company desires to grant to Optionee an option to purchase up to
30,000 shares of Common Stock, $.01 par value ("COMMON STOCK") of the Company.
AGREEMENTS
In consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. GRANT OF OPTION. Subject to the terms and conditions set forth in
this Agreement, the Company hereby grants to Optionee the option to purchase,
during the period commencing on the date of this Agreement and ending December
9, 2008, at an exercise price equal to the closing per share price on the NASDAQ
SmallCap Market on the date of this Agreement, $6.313 per share (the "OPTION
PRICE"), up to, but not exceeding the aggregate of 30,000 shares of Common Stock
of the Company (such option being hereinafter referred to as the "OPTION"). The
Option evidenced hereby may be exercised from time to time, on a cumulative
basis (as to options to purchase shares not previously exercised).
2. NON-QUALIFIED STATUS. The Option is intended to be a non-qualified
stock option which does not satisfy the requirements of Section 422A of the
Internal Revenue Code of 1986, as amended (the "CODE"). The Option is granted
outside of and therefore shall not be subject to the terms and provisions of the
Company's 1997 Long Term Incentive Plan, as amended.
3. EXERCISE OF OPTION. The Option shall be deemed exercised when the
Optionee (a) shall indicate the decision to do so in writing delivered to the
Company and (b) shall at the same time tender to the Company payment in full of
the Option Price for the shares for which the Option is exercised. The Option
may be exercised for any lesser number of shares than the full amount for which
it could be exercised. Such a partial exercise of an Option shall not affect the
right to exercise the Option from time to time in accordance with the provisions
contained herein for the remaining shares subject to the Option. Upon compliance
with the foregoing, the Company shall cause certificates for the shares so
purchased to be delivered to Optionee, his legal representative or such other
person who is entitled to exercise his Option (in accordance with the provisions
of paragraph 6 hereof) at its principal business office.
<PAGE>
In no event may the Option be exercised after November 18, 2008.
4. NON-TRANSFERABILITY OF OPTIONS. The Option granted to Optionee shall
not be transferable by Optionee except by will or under the laws of descent and
distribution, and shall be exercisable, during his lifetime, only by him. Any
assignment or transfer of the Option except by will or under the laws of descent
and distribution, whether voluntarily or involuntarily, by operation of law or
otherwise, shall not vest in the assignee or transferee any interest or rights
whatsoever, but immediately upon such assignment or transfer the Option shall
terminate and become of no further effect.
5. EARLY FORFEITURE OF OPTION. The Option shall terminate on the date
Optionee ceases to be a director of the Company, unless the Optionee shall (a)
die while a director of the Company, (b) be permanently or totally disabled
within the meaning of Section 22(e)(3) of the Code, or (c) resign or retire as a
director with the consent of the Company. In the event either (a), (b), or (c)
shall occur, the Optionee, or his legatees under his will or his personal
representatives, may exercise the previously unexercised portion of the Option
at any time prior to November 18, 2008.
In the event an Option granted under this Agreement shall be
exercised by the legal representative of the deceased Optionee, or by a person
who acquired an Option granted hereunder by bequest or inheritance or by reason
of the death of the deceased Optionee, written notice of such exercise shall be
accompanied by certified copy of letters testamentary or equivalent proof of the
right of such legal representative or other person to exercise such option.
6. ADJUSTMENT OF SHARES. Notwithstanding any other provision contained
herein, in the event of any change in the outstanding Common Stock by reason of
a stock dividend, stock split, reorganization, recapitalization, merger,
split-up or other change in capital structure, an adjustment may be made by the
Company, in its sole and absolute discretion, to prevent dilution or enlargement
of Optionee's rights hereunder, and the determination of the Company as to these
matters shall be conclusive.
7. ISSUANCE OF STOCK CERTIFICATES; LEGENDS AND PAYMENT OF EXPENSES. Upon
any exercise of an Option which may be granted hereunder and the payment of the
exercise price, a certificate or certificates representing the shares as to
which the Option has been exercised shall be issued by the Company in the name
of the Optionee and shall be delivered to or upon the order of Optionee.
The Company may, in its discretion, endorse an appropriate legend
upon the certificate or certificates representing any shares issued or
transferred pursuant to the exercise of any Option granted hereunder and may
issue "stop transfer" instructions to its transfer agent in respect of such
shares to (a) prevent a violation of, or to perfect an exemption from, the
registration requirements of the Securities Act of 1933, as amended (the
"SECURITIES ACT") or (b) implement the provisions of any agreement between the
Company and the Optionee with respect to such shares.
-2-
<PAGE>
The Company shall pay all issue or transfer taxes with respect to the
issuance or transfer of shares, as well as all fees and expenses necessarily
incurred by the Company in connection with such issuance or transfer, except
fees and expenses which may be necessitated by the filing or amending of a
Registration Statement under the Securities Act, which fees and expenses shall
be borne by Optionee unless such Registration Statement has been filed by the
Company for its own corporate purposes (and the Company so states) in which
event the recipient of the shares shall bear only such fees and expenses as are
attributable solely to the inclusion of such shares in the Registration
Statement. All the shares issued as provided herein shall be fully paid and
nonassessable to the extent permitted by law.
8. NO RIGHTS AS STOCKHOLDER. Optionee shall not have rights as a
stockholder with respect to shares covered by the Option until the date of
issuance of a stock certificate for such shares; and, except as otherwise
provided in paragraph 7 hereof, no adjustment for dividends or otherwise shall
be made if the record date therefor is prior to the date of issuance of such
certificate.
9. REQUIREMENTS OF LAW. The Company shall not be required to issue any
shares under the Option if the issuance of such shares shall constitute or
result in a violation by Optionee or the Company of any provision of any law,
statute or regulation of any governmental authority. Specifically, in connection
with any applicable statute or regulation relating to the registration of
securities, upon exercise of the Option, the Company shall not be required to
issue such shares unless the Company has received evidence satisfactory to it to
the effect that Optionee will not transfer such shares except in accordance with
applicable law, including the receipt of an opinion of counsel satisfactory to
the Company to the effect that any proposed transfer complies with applicable
law. The Company may, but shall in no event be obligated to, register any shares
covered hereby pursuant to applicable securities laws of any country or
political subdivision thereof. In the event the shares issuable on exercise of
the Option are not so registered, the Company may imprint on the certificate
evidencing such shares any legend counsel for the Company considers necessary or
advisable to comply with applicable law. The Company shall not be obligated to
take any other affirmative action in order to cause the exercise of the Option
or the issuance of shares pursuant to the Option to comply with any law or
regulation of any governmental authority.
10. NOTICES. Every notice or other communication relating to this
Agreement shall be in writing, and shall be mailed or delivered to the party for
whom it is intended at such address as may from time to time be designated by
such party in a notice mailed or delivered to the other party as provided
herein, provided that, unless and until some other address be so designated, all
notices or communications by Optionee to the Company shall be mailed or
delivered to the Company at:
Tristar Corporation
12500 San Pedro, Suite 500
San Antonio, Texas 78216
Attention: Robert Viola
-3-
<PAGE>
and all notices or communications by the Company to Optionee be given to
Optionee personally or may be mailed to him at:
Aaron Zutler
____________________________________
____________________________________
This Agreement is effective as of the date first written above.
COMPANY:
TRISTAR CORPORATION
By:/s/ ____________________________
Robert M. Viola
Executive Vice President and
Chief Financial Officer
OPTIONEE:
____________________________
Aaron Zutler
-4-
EXHIBIT 10.3
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, effective November 24, 1997, is entered into between
Tristar Corporation, a Delaware corporation, (the "COMPANY") and Robert
Sparacino (the "OPTIONEE").
RECITALS
A. The Optionee is a director of the Company and the Company desires to
have Optionee remain in such capacity, encourage the stock ownership of Optionee
and increase the Optionee's proprietary interest in the Company.
B. The Company desires to grant to Optionee an option to purchase up to
50,000 shares of Common Stock, $.01 par value ("COMMON STOCK") of the Company.
AGREEMENTS
In consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. GRANT OF OPTION. Subject to the terms and conditions set forth in this
Agreement, the Company hereby grants to Optionee the option to purchase, during
the period commencing on the date of this Agreement and ending November 24,
2007, at an exercise price equal to the closing per share price on the NASDAQ
SmallCap Market on the date of this Agreement, $6.313 per share (the "OPTION
PRICE"), up to, but not exceeding the aggregate of 50,000 shares of Common Stock
of the Company (such option being hereinafter referred to as the "OPTION"). The
Option evidenced hereby may be exercised from time to time, on a cumulative
basis (as to options to purchase shares not previously exercised).
2. NON-QUALIFIED STATUS. The Option is intended to be a non-qualified
stock option which does not satisfy the requirements of Section 422A of the
Internal Revenue Code of 1986, as amended (the "CODE"). The Option is granted
outside of and therefore shall not be subject to the terms and provisions of the
Company's 1997 Long Term Incentive Plan, as amended.
3. EXERCISE OF OPTION. The Option shall be deemed exercised when the
Optionee (a) shall indicate the decision to do so in writing delivered to the
Company and (b) shall at the same time tender to the Company payment in full of
the Option Price for the shares for which the Option is exercised. The Option
may be exercised for any lesser number of shares than the full amount for which
it could be exercised. Such a partial exercise of an Option shall not affect the
right to exercise the Option from time to time in accordance with the provisions
contained herein for the remaining shares subject to the Option. Upon compliance
with the foregoing, the
<PAGE>
Company shall cause certificates for the shares so purchased to be delivered to
Optionee, his legal representative or such other person who is entitled to
exercise his Option (in accordance with the provisions of paragraph 6 hereof) at
its principal business office.
In no event may the Option be exercised after November 24, 2007.
4. NON-TRANSFERABILITY OF OPTIONS. The Option granted to Optionee shall
not be transferable by Optionee except by will or under the laws of descent and
distribution, and shall be exercisable, during his lifetime, only by him. Any
assignment or transfer of the Option except by will or under the laws of descent
and distribution, whether voluntarily or involuntarily, by operation of law or
otherwise, shall not vest in the assignee or transferee any interest or rights
whatsoever, but immediately upon such assignment or transfer the Option shall
terminate and become of no further effect.
5. EARLY FORFEITURE OF OPTION. The Option shall terminate on the date
Optionee ceases to be a director of the Company, unless the Optionee shall (a)
die while a director of the Company, (b) be permanently or totally disabled
within the meaning of Section 22(e)(3) of the Code, or (c) resign or retire as a
director with the consent of the Company. In the event either (a), (b), or (c)
shall occur, the Optionee, or his legatees under his will or his personal
representatives, may exercise the previously unexercised portion of the Option
at any time prior to November 24, 2007.
In the event an Option granted under this Agreement shall be
exercised by the legal representative of the deceased Optionee, or by a person
who acquired an Option granted hereunder by bequest or inheritance or by reason
of the death of the deceased Optionee, written notice of such exercise shall be
accompanied by certified copy of letters testamentary or equivalent proof of the
right of such legal representative or other person to exercise such option.
6. ADJUSTMENT OF SHARES. Notwithstanding any other provision contained
herein, in the event of any change in the outstanding Common Stock by reason of
a stock dividend, stock split, reorganization, recapitalization, merger,
split-up or other change in capital structure, an adjustment may be made by the
Company, in its sole and absolute discretion, to prevent dilution or enlargement
of Optionee's rights hereunder, and the determination of the Company as to these
matters shall be conclusive.
7. ISSUANCE OF STOCK CERTIFICATES; LEGENDS AND PAYMENT OF EXPENSES. Upon
any exercise of an Option which may be granted hereunder and the payment of the
exercise price, a certificate or certificates representing the shares as to
which the Option has been exercised shall be issued by the Company in the name
of the Optionee and shall be delivered to or upon the order of Optionee.
-2-
<PAGE>
The Company may, in its discretion, endorse an appropriate legend
upon the certificate or certificates representing any shares issued or
transferred pursuant to the exercise of any Option granted hereunder and may
issue "stop transfer" instructions to its transfer agent in respect of such
shares to (a) prevent a violation of, or to perfect an exemption from, the
registration requirements of the Securities Act of 1933, as amended (the
"SECURITIES ACT") or (b) implement the provisions of any agreement between the
Company and the Optionee with respect to such shares.
The Company shall pay all issue or transfer taxes with respect to
the issuance or transfer of shares, as well as all fees and expenses necessarily
incurred by the Company in connection with such issuance or transfer, except
fees and expenses which may be necessitated by the filing or amending of a
Registration Statement under the Securities Act, which fees and expenses shall
be borne by Optionee unless such Registration Statement has been filed by the
Company for its own corporate purposes (and the Company so states) in which
event the recipient of the shares shall bear only such fees and expenses as are
attributable solely to the inclusion of such shares in the Registration
Statement. All the shares issued as provided herein shall be fully paid and
nonassessable to the extent permitted by law.
8. NO RIGHTS AS STOCKHOLDER. Optionee shall not have rights as a
stockholder with respect to shares covered by the Option until the date of
issuance of a stock certificate for such shares; and, except as otherwise
provided in paragraph 7 hereof, no adjustment for dividends or otherwise shall
be made if the record date therefor is prior to the date of issuance of such
certificate.
9. REQUIREMENTS OF LAW. The Company shall not be required to issue any
shares under the Option if the issuance of such shares shall constitute or
result in a violation by Optionee or the Company of any provision of any law,
statute or regulation of any governmental authority. Specifically, in connection
with any applicable statute or regulation relating to the registration of
securities, upon exercise of the Option, the Company shall not be required to
issue such shares unless the Company has received evidence satisfactory to it to
the effect that Optionee will not transfer such shares except in accordance with
applicable law, including the receipt of an opinion of counsel satisfactory to
the Company to the effect that any proposed transfer complies with applicable
law. The Company may, but shall in no event be obligated to, register any shares
covered hereby pursuant to applicable securities laws of any country or
political subdivision thereof. In the event the shares issuable on exercise of
the Option are not so registered, the Company may imprint on the certificate
evidencing such shares any legend counsel for the Company considers necessary or
advisable to comply with applicable law. The Company shall not be obligated to
take any other affirmative action in order to cause the exercise of the Option
or the issuance of shares pursuant to the Option to comply with any law or
regulation of any governmental authority.
-3-
<PAGE>
10. NOTICES. Every notice or other communication relating to this
Agreement shall be in writing, and shall be mailed or delivered to the party for
whom it is intended at such address as may from time to time be designated by
such party in a notice mailed or delivered to the other party as provided
herein, provided that, unless and until some other address be so designated, all
notices or communications by Optionee to the Company shall be mailed or
delivered to the Company at:
Tristar Corporation
12500 San Pedro, Suite 500
San Antonio, Texas 78216
Attention: Robert Viola
and all notices or communications by the Company to Optionee be given to
Optionee personally or may be mailed to him at:
Robert Sparacino
____________________________________
____________________________________
This Agreement is effective as of the date first written above.
COMPANY: TRISTAR CORPORATION
By: ________________________
Name: ______________________
Title: _____________________
OPTIONEE: ____________________________
Robert Sparacino
-4-
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated November 24, 1999 relating to the
financial statements and financial statement schedule, which appears in Tristar
Corporation's Annual Report on Form 10-K for the year ended August 28, 1999.
PRICEWATERHOUSECOOPERS LLP
Dallas, Texas
February 15, 2000
