<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 29, 1998.
REGISTRATION NO. __________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Registration Statement Under the Securities Act of 1933
MASCOTECH, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 38-2513975
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation)
21001 Van Born Road, Taylor, Michigan 48180
(Address of Principal Executive Offices) (Zip Code)
MASCOTECH, INC. 1991 LONG TERM STOCK INCENTIVE PLAN
(Full Title of the Plan)
DAVID B. LINER
VICE PRESIDENT AND GENERAL COUNSEL
MASCOTECH, INC.
21001 VAN BORN ROAD
TAYLOR, MICHIGAN 48180
(Name and Address of Agent for Service)
(313) 274-7405
(Telephone no., including area code, of agent for service)
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, check the following box. [X]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ----------------------- ---------------------- -------------------------- ------------------------- -------------------------
Title of Proposed Maximum Proposed Maximum
Securities to be Amount to Offering Price Aggregate of Amount of
Registered be Registered Per Share(3) Offering Price(3) Registration Fee(3)
- ----------------------- ---------------------- -------------------------- ------------------------- -------------------------
- ----------------------- ---------------------- -------------------------- ------------------------- -------------------------
<S> <C> <C> <C> <C>
Common Stock (Par 6,000,000(1)(2) $16 19/32 $99,562,500 $30,167.00
Value $1.00 Per Share)
- ----------------------- ---------------------- -------------------------- ------------------------- -------------------------
</TABLE>
(1) This Registration Statement registers additional shares of the Registrant's
common stock issuable pursuant to the same plan for which Registration
Statement No. 33-42230 is currently effective. A registration fee of $9,375
was paid on August 12, 1991 with the original filing to register 6,000,000
shares of Common Stock. Accordingly, pursuant to Instruction E of Form S-8,
the registration fee is being paid with respect to the additional
securities only.
(2) Pursuant to Rule 416(a), this Registration Statement also covers such
indeterminate number of additional shares of Common Stock as may be
issuable by reason of the antidilution provisions of the Incentive Plan in
the event of stock splits, stock dividends or similar transactions.
(3) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(h) and based on the average of the high and low prices
of the Common Stock on the New York Stock Exchange - Composite Tape on
September 25, 1998 as reported in The Wall Street Journal.
<PAGE> 2
INTRODUCTION
On August 12, 1991, MascoTech, Inc. (the "Company" or "Registrant") filed
Registration Statement No. 33-42230 on Form S-8 (the "Registration Statement"),
registering 6,000,000 shares of the common stock, par value $1.00, (the "Common
Stock") of the Registrant for issuance under the MascoTech, Inc. 1991 Long Term
Stock Incentive Plan (the "Plan"). The contents of Registration Statement No.
33-42230 are incorporated herein by reference. Effective April 23, 1997, the
Company's shareholders approved certain changes in the plan. By this
Registration Statement, the Registrant increases the number of shares registered
under the Plan to 12,000,000.
ITEM 8. EXHIBITS.
EXHIBIT NO. DESCRIPTION
*4.a Restated Certificate of Incorporation of the Company and
amendments thereto.
4.b Bylaws of the Company, as amended. Incorporated by
reference to the Exhibits filed with the Company's Annual
Report on Form 10-K for the year ended December 31, 1997.
*5 Opinion of David B. Liner.
*23.a Consent of PricewaterhouseCoopers LLP relating to the
financial statements and financial statement schedules of
the Company.
*23.b Consent of PricewaterhouseCoopers LLP relating to the
financial statements of TriMas Corporation.
*23.c Consent of David B. Liner, which is included as part of
Exhibit 5.
*24 Power of Attorney, included on the Signatures page of this
Registration Statement on Form S-8.
*99 MascoTech, Inc.1991 Long Term Stock Incentive Plan
(restated July 15, 1998).
- -----------------
*Filed herewith.
<PAGE> 3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 Taylor and the State of Michigan on this 25 day of
September, 1998.
MASCOTECH, INC.
By /s/FRANK M. HENNESSEY
--------------------------------------
Frank M. Hennessey
Vice Chairman of the Board
And Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Richard A. Manoogian and Eugene A. Gargaro, Jr.,
and each of them, his true and lawful attorneys-in-fact and agents, each 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,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he might or would do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents or any of them or his or their
substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
PRINCIPAL EXECUTIVE OFFICER:
<S> <C> <C>
/s/ FRANK M. HENNESSEY Vice Chairman of the Board September 25, 1998
- --------------------------------- and Chief Executive Officer
Frank M. Hennessey
PRINCIPAL FINANCIAL OFFICER:
/s/ TIMOTHY WADHAMS Executive Vice President- September 25, 1998
- ---------------------------------- Finance and Administration
Timothy Wadhams
</TABLE>
<PAGE> 4
<TABLE>
<S> <C> <C>
PRINCIPAL ACCOUNTING OFFICER:
/s/ WILLIAM T. ANDERSON Vice President and Controller September 25, 1998
- ------------------------------------
William T. Anderson
/s/ RICHARD A. MANOOGIAN Chairman of the Board September 25, 1998
- ------------------------------------ and Director
Richard A. Manoogian
/s/ ROGER T. FRIDHOLM Director September 25, 1998
- ------------------------------------
Roger T. Fridholm
/s/ HELMUT F. STERN Director September 25, 1998
- ------------------------------------
Helmut F. Stern
/s/ WILLIAM K. HOWENSTEIN Director September 25, 1998
- ------------------------------------
William K. Howenstein
/s/ JOHN A. MORGAN Director September 25, 1998
- ------------------------------------
John A. Morgan
/s/ PETER A. DOW Director September 25, 1998
- ------------------------------------
Peter A. Dow
</TABLE>
<PAGE> 5
<TABLE>
<CAPTION>
INDEX TO EXHIBITS
SEQUENTIALLY
EXHIBIT NUMBERED
NO. DESCRIPTION PAGE
<S> <C> <C>
*4.a Restated Certificate of Incorporation of the Company and amendments thereto.
4.b Bylaws of the Company, as amended. Incorporated by reference to the Exhibits
filed with the Company's Annual Report on Form 10-K for the year ended
December 31, 1997.
*5 Opinion of David B. Liner.
*23.a Consent of PricewaterhouseCoopers LLP relating to the financial statements and
financial statement schedules of the Company.
*23.b Consent of PricewaterhouseCoopers LLP relating to the financial statements of
TriMas Corporation.
*23.c Consent of David B. Liner, which is included as part of Exhibit 5.
*24 Power of Attorney, included on the Signatures page of this Registration
Statement on Form S-8.
*99 MascoTech, Inc. 1991 Long Term Stock Incentive Plan (restated July 15, 1998).
</TABLE>
- ----------------
*Filed herewith.
<PAGE> 1
EXHIBIT 4.a
RESTATED CERTIFICATE OF INCORPORATION
OF
MASCOTECH, INC.
* * * * *
MASCOTECH, INC., a corporation organized and existing under the Laws of
the State of Delaware (the "Company"), hereby certifies as follows:
FIRST: The name of the Company is MascoTech, Inc. The name under which
the Company was originally incorporated is "Masco Industries, Inc." and the date
of filing its original Certificate of Incorporation with the Secretary of State
was March 15, 1984.
SECOND: This Restated Certificate of Incorporation only restates and
integrates and does not further amend the provisions of the Certificate of
Incorporation of this corporation as heretofore amended or supplemented and
there is no discrepancy between those provisions and the provisions of this
Restated Certificate of Incorporation.
THIRD: The text of the Certificate of Incorporation as amended or
supplemented heretofore is hereby restated without further amendments or changes
to read as herein set forth in full:
1. The name of the corporation is:
MascoTech, Inc.
2. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle 19801. The name of its registered agent at such address is The
Corporation Trust Company.
3. The nature of the business or purpose to be conducted or promoted
is to engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
4. The total number of shares of stock the corporation shall have
authority to issue is two hundred seventy-five million (275,000,000) shares.
<PAGE> 2
Two hundred fifty million (250,000,000) of such shares shall consist of
common shares, par value one dollar ($1.00) per share, and twenty-five million
(25,000,000) of such shares shall consist of preferred shares, par value one
dollar ($1.00) per share.
The designations and the powers, preferences and rights, and the
qualifications, limitations or restrictions thereof are as follows:
A. Each share of common stock shall be equal in all respects
to all other shares of such stock, and each share of outstanding common
stock is entitled to one vote.
B. Each share of preferred stock shall have or not have voting
rights as determined by the Board of Directors prior to issuance.
Dividends on all outstanding shares of preferred stock must be declared
and paid, or set aside for payment, before any dividends can be declared and
paid, or set aside for payment, on the shares of common stock with respect to
the same dividend period.
In the event of any liquidation, dissolution or winding up of the
affairs of the Company, whether voluntary or involuntary, the holders of the
preferred stock shall be entitled, before any assets of the Company shall be
distributed among or paid over to the holders of the common stock, to an amount
per share to be determined before issuance by the Board of Directors, together
with a sum of money equivalent to the amount of any dividends declared thereon
and remaining unpaid at the date of such liquidation, dissolution or winding up
of the Company. After the making of such payments to the holders of the
preferred stock, the remaining assets of the Company shall be distributed among
the holders of the common stock alone, according to the number of shares held by
each. If, upon such liquidation, dissolution or winding up, the assets of the
Company distributable as aforesaid among the holders of the preferred stock
shall be insufficient to permit the payment to them of said amount, the entire
assets shall be distributed ratably among the holders of the preferred stock.
The Board of Directors shall have authority to divide the shares of
preferred stock into series and fix, from time to time before issuance, the
number of shares to be included in any series and the designation, relative
rights, preferences and limitations of all shares of such series. The authority
of the Board of Directors with respect to each series shall include the
determination of any or all of the following, and the shares of each series may
<PAGE> 3
vary from the shares of any other in the following respects: (a) the number of
shares constituting such series and the designation thereof to distinguish the
shares of such series from the shares of all other series; (b) the rate of
dividend, cumulative or noncumulative, and the extent of further participation
in dividend distribution, if any; (c) the prices at which issued (at not less
than par) and the terms and conditions upon which the shares may be redeemable
by the Company; (d) sinking fund provisions for the redemption or purchase of
shares; (e) the voting rights; and (f) the terms and conditions upon which the
shares are convertible into other classes of stock of the Company, if such
shares are to be convertible.
C. No holder of any class of stock issued by this Company
shall be entitled to pre-emptive rights.
D. The number of authorized shares of each class of stock may
be increased or decreased (but not below the number of shares thereof
then outstanding) by the affirmative vote of the holders of a majority
of the stock of the Company entitled to vote, voting together as a
single class.
5. (a) The business and affairs of the Company shall be managed by or
under the direction of a Board of Directors consisting of not less than five nor
more than twelve directors, the exact number of directors to be determined from
time to time by resolution adopted by affirmative vote of a majority of the
entire Board of Directors. The directors shall be divided into three classes,
designated Class I, Class II and Class III. Each class shall consist, as nearly
as may be possible, of one-third of the total number of directors constituting
the entire Board of Directors. At the 1988 Annual Meeting of stockholders, Class
I directors shall be elected for a one-year term, Class II directors for a
two-year term and Class III directors for a three-year term. At each succeeding
Annual Meeting of stockholders beginning in 1989, successors to the class of
directors whose term expires at that annual meeting shall be elected for a
three-year term. If the number of directors is changed, any increase or decrease
shall be apportioned among the classes so as to maintain the number of directors
in each class as nearly equal as possible, and any additional director of any
class elected to fill a vacancy resulting from an increase in such class shall
hold office for a term that shall coincide with the remaining term of that
class, but in no case will a decrease in the number of directors shorten the
term of any
<PAGE> 4
incumbent director. A director shall hold office until the annual meeting for
the year in which his term expires and until his successor shall be elected and
shall qualify, subject, however, to prior death, resignation, retirement or
removal from office. Except as otherwise required by law, any vacancy on the
Board of Directors that results from an increase in the number of directors
shall be filled only by a majority of the Board of Directors then in office,
provided that a quorum is present, and any other vacancy occurring in the Board
of Directors shall be filled only by a majority of the directors then in office,
even if less than a quorum, or by a sole remaining director. Any director
elected to fill a vacancy not resulting from an increase in the number of
directors shall serve for the remaining term of his predecessor.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of preferred stock or any other class of stock issued by the
Company shall have the right, voting separately by class or series, to elect
directors at an annual or special meeting of stockholders, the election, term of
office, filling of vacancies and other features of such directorships shall be
governed by the terms of the Certificate of Designation with respect to such
stock, such directors so elected shall not be divided into classes pursuant to
this Article 5, and the number of such directors shall not be counted in
determining the maximum number of directors permitted under the foregoing
provisions of this Article 5, in each case unless expressly provided by such
terms.
(b) Nominations for the election of directors may be made by the Board
of Directors or by any stockholder entitled to vote in the election of
directors. Any stockholder entitled to vote in the election of directors,
however, may nominate one or more persons for election as director only if
written notice of such stockholder's intent to make such nomination or
nominations has been given either by personal delivery or by United States mail,
postage prepaid, to the Secretary of the Company not later than (i) with respect
to an election to be held at an Annual Meeting of stockholders, 45 days in
advance of the date on which the Company's proxy statement was released to
stockholders in connection with the previous year's Annual Meeting of
stockholders and (ii) with respect to an election to be held at a special
meeting of stockholders for the election of directors, the close of business on
the seventh day following the day on which notice of such meeting is first given
to stockholders. Each such notice shall include:
<PAGE> 5
(A) the name and address of the stockholder who intends to make the nomination
or nominations and of the person or persons to be nominated; (B) a
representation that the stockholder is a holder of record of stock of the
Company entitled to vote at such meeting and intends to appear in person or by
proxy at the meeting to nominate the person or persons specified in the notice;
(C) a description of all arrangements or understandings between such stockholder
and each nominee and any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations is or are to be made by the
stockholder; (D) such other information regarding each nominee proposed by such
stockholder as would have been required to be included in a proxy statement
filed pursuant to the proxy rules of the Securities and Exchange Commission if
the nominee had been nominated by the Board of Directors; and (E) the written
consent of each nominee to serve as a director of the Company if elected. The
chairman of any meeting of stockholders may refuse to acknowledge the nomination
of any person if not made in compliance with the foregoing procedure.
(c) Notwithstanding any other provision of this Certificate of
Incorporation or the by-laws (and notwithstanding the fact that a lesser
percentage may be specified by law, this Certificate of Incorporation or the
by-laws), and in addition to any affirmative vote required by law, the
affirmative vote of the holders of at least 80% of the voting power of the
outstanding capital stock of the Company entitled to vote, voting together as a
single class, shall be required to amend, adopt in this Certificate of
Incorporation or in the by-laws any provision inconsistent with, or repeal this
Article 5.
6. Any action required or permitted to be taken by the stockholders of
the Company must be effected at a duly called annual or special meeting of such
holders and may not be effected by any consent in writing by any such holders.
Except as otherwise required by law, special meetings of stockholders of the
Company may be called only by the Chairman of the Board, the President or a
majority of the Board of Directors, subject to the rights of holders of any one
or more classes or series of preferred stock or any other class of stock issued
by the Company which shall have the right, voting separately by class or series,
to elect directors. Notwithstanding any other provision of this Certificate of
Incorporation or the by-laws (and notwithstanding that a lesser percentage may
be specified by law, this Certificate of Incorporation or the by-laws), and in
addition to any
<PAGE> 6
affirmative vote required by law, the affirmative vote of the holders of at
least 80% of the voting power of the outstanding capital stock of the Company
entitled to vote, voting together as single class, shall be required to amend,
adopt in this Certificate of Incorporation or in the by-laws any provision
inconsistent with, or repeal this Article 6.
7. In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized:
To make, alter or repeal the by-laws of the Company.
To authorize and cause to be executed mortgages and liens upon the real
and personal property of the Company.
To set apart out of any of the funds of the Company available for
dividends a reserve or reserves for any proper purpose and to abolish any such
reserve in the manner in which it was created.
When and as authorized by the affirmative vote of the holders of a
majority of the stock issued and outstanding having voting power given at a
stockholders' meeting duly called for that purpose, to sell, lease or exchange
all of the property and assets of the Company, including its good will and its
corporate franchises, upon such terms and conditions and for such consideration,
which may be in whole or in part shares of stock in, and/or other securities of,
any other corporation or corporations, as its Board of Directors shall deem
expedient and for the best interests of the Company.
8. The private property of the stockholders shall not be subject to the
payment of corporate debts to any extent whatever.
9. Whenever a compromise or arrangement is proposed between the Company
and its creditors or any class of them and/or between the Company and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of the Company or
of any creditor or stockholder thereof, or on the application of any receiver or
receivers appointed for the Company under the provisions of Section 279 of Title
8 of the Delaware Code, order a meeting of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of the Company, as
<PAGE> 7
the case may be, to be summoned in such manner as the said court directs. If a
majority in number representing three-fourths in value of the creditors or class
of creditors, and/or of the stockholders or class of stockholders of the
Company, as the case may be, agree to any compromise or arrangement and to any
reorganization of the Company as consequence of such compromise or arrangement,
the said compromise or arrangement and the said reorganization shall, if
sanctioned by the court to which the said application has been made, be binding
on all the creditors or class of creditors, and/or on all the stockholders or
class of stockholders, of the Company, as the case may be, and also on the
Company.
10. Meetings of stockholders may be held outside the State of Delaware,
if the bylaws so provide. The books of the Company may be kept (subject to any
provision contained in the statutes) outside the State of Delaware at such place
or places as may be designated from time to time by the Board of Directors or in
the bylaws of the Company. Elections of Directors need not be by ballot unless
the bylaws of the Company shall so provide.
11. The Company reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
12. A. The affirmative vote of the holders of 95% of all shares of
stock of the Company entitled to vote in elections of directors, considered for
the purposes of this Article 12 as one class, shall be required for the adoption
or authorization of a business combination (as hereinafter defined) with any
other entity (as hereinafter defined) if, as of the record date for the
determination of stockholders entitled to notice thereof and to vote thereon,
such other entity is the beneficial owner, directly or indirectly, of 30% or
more of the outstanding shares of stock of the Company entitled to vote in
elections of directors considered for the purposes of this Article 12 as one
class; provided that such 95% voting requirement shall not be applicable if:
(a) The cash, or fair market value of other consideration, to
be received per share by common stockholders of the Company in such
business combination bears the same or a greater percentage
relationship to the market price of the Company's common stock
immediately prior to the announcement of such business combination as
the highest per share price (including brokerage commissions and
soliciting dealers' fees) which such other entity has theretofore
<PAGE> 8
paid for any of the shares of the Company's common stock already owned
by it bears to the market price of the common stock of the Company
immediately prior to the commencement of acquisition of the Company's
common stock by such other entity;
(b) The cash, or fair market value of other consideration, to
be received per share by common stockholders of the Company in such
business combination: (i) is not less than the highest per share price
(including brokerage commissions and soliciting dealers' fees) paid by
such other entity in acquiring any of its holdings of the Company's
common stock, and (ii) is not less than the earnings per share of
common stock of the Company for the four full consecutive fiscal
quarters immediately preceding the record date for solicitation of
votes on such business combination, multiplied by the then
price/earnings multiple (if any) of such other entity as customarily
computed and reported in the financial community;
(c) After such other entity has acquired a 30% interest and
prior to the consummation of such business combination: (i) such other
entity shall have taken steps to ensure that the Company's Board of
Directors included at all times representation by continuing
director(s) (as hereinafter defined) proportionate to the stockholdings
of the Company's public common stockholders not affiliated with such
other entity (with a continuing director to occupy any resulting
fractional board position); (ii) there shall have been no reduction in
the rate of dividends payable on the Company's common stock except as
necessary to insure that a quarterly dividend payment does not exceed
5% of the net income of the Company for the four full consecutive
fiscal quarters immediately preceding the declaration date of such
dividend, or except as may have been approved by a unanimous vote of
the directors; (iii) such other entity shall not have acquired any
newly issued shares of stock, directly or indirectly, from the Company
(except upon conversion of convertible securities acquired by it prior
to obtaining a 30% interest or as a result of a pro rata stock dividend
or stock split); and (iv) such other entity shall not have acquired any
additional shares of the Company's outstanding common stock or
securities convertible into common stock except as
<PAGE> 9
a part of the transaction which results in such other entity acquiring
its 30% interest;
(d) Such other entity shall not have (i) received the benefit,
directly or indirectly (except proportionately as a stockholder) of any
loans, advances, guarantees, pledges or other financial assistance or
tax credits of or provided by the Company, or (ii) made any major
change in the Company's business or equity capital structure without
the unanimous approval of the directors, in either case prior to the
consummation of such business combination
(e) A proxy statement responsive to the requirements of the
United States securities laws shall be mailed to all common
stockholders of the Company for the purpose of soliciting stockholder
approval of such business combination and shall contain on its first
page thereof, in a prominent place, any recommendations as to the
advisability (or inadvisability) of the business combination which the
continuing directors, or any of them, may choose to state and, if
deemed advisable by a majority of the continuing directors, an opinion
of a reputable investment banking firm as to the fairness (or not) of
the terms of such business combination, from the point of view of the
remaining public stockholders of the Company (such investment banking
firm to be selected by a majority of the continuing directors and to be
paid a reasonable fee for their services by the Company upon receipt of
such opinion).
The provisions of this Article 12 shall also apply to a business
combination with any other entity which at any time has been the beneficial
owner, directly or indirectly, of 30% or more the outstanding shares of stock of
the Company entitled to vote in elections of directors considered for the
purposes of this Article 12 as one class, notwithstanding the fact that such
other entity has reduced its shareholdings below 30% if, as of the record date
for the determination of stockholders entitled to notice of and to vote on the
business combination, such other entity is an "affiliate" of the Company (as
hereinafter defined).
B. As used in this Article 12, (a) the term "other entity" shall
include any corporation, person or other entity and any other entity with which
it or its "affiliate" or "associate" (as defined below) has any agreement,
arrangement or understanding, directly or indirectly, for the purpose of
acquiring, holding, voting or disposing of stock of the
<PAGE> 10
Company, or which is its "affiliate" or "associate" as those terms are defined
in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange
Act of 1934 as in effect on March 31, 1984, together with the successors and
assigns of such persons in any transaction or series of transactions not
involving a public offering of the Company's stock within the meaning of the
Securities Act of 1933; provided, however, that an "other entity" shall not in
any event include any entity owning 30% or more of the outstanding shares of
stock of the Company entitled to vote in the elections of directors considered
for purposes of this Article 12 as one class at the time of the adoption of this
Article 12, any subsidiary of such entity, or any corporation succeeding to the
business of such entity if (i) such business as conducted immediately prior to
such succession is, immediately after such succession, the sole business of such
successor, and (ii) the stockholders of the corporation conducting such business
immediately prior to such succession are, immediately after such succession, the
sole stockholders of the successor corporation or of a corporation owning all of
the capital stock of such successor corporation; (b) an other entity shall be
deemed to be the beneficial owner of any shares of stock of the Company which
the other entity (as defined above) has the right to acquire pursuant to any
agreement, arrangement or understanding or upon exercise of conversion rights,
warrants or options, or otherwise; (c) the outstanding shares of any class of
stock of the Company shall include shares deemed owned through application of
clause; (b) above but shall not include any other shares which may be issuable
pursuant to any agreement, or upon exercise of conversion rights, warrants or
options, or otherwise; (d) the term "business combination" shall include any
merger or consolidation of the Company with or into any other entity, or the
sale or lease of all or any substantial part of the assets of the Company to, or
any sale or lease to the Company or any subsidiary thereof in exchange for
securities of the Company of any assets (except assets having an aggregate fair
market value of less than $5,000,000) of, any other entity; (e) the term
"continuing director" shall mean a person who was a member of the Board of
Directors of the Company elected by stockholders prior to the time that such
other entity acquired in excess of 10% of the stock of the Company entitled to
vote in the election of directors, or a person recommended to succeed a
continuing director by a majority of continuing directors; and (f) for the
purposes of subparagraphs A(a) and (b) of this Article 12 the
<PAGE> 11
term "other consideration to be received" shall mean, in addition to other
consideration received, if any, capital stock of the Company retained by its
existing public stockholders in the event of a business combination with such
other entity in which the Company is the surviving corporation; and (g) the
exclusion of an entity from constituting an "other entity" under subparagraph
B(a) of this Article 12 shall only continue to be effective if such entity does
not thereafter decrease such ownership percentage to less than 30% (other than
through the Company's issuance of its capital stock) and subsequently reacquire
such a 30% interest and provided that, upon any such decrease and subsequent
reacquisition, such entity shall be deemed for purposes of this Article 12 to
have first become an "other entity" and to first have acquired capital stock of
the Company on the date of such reacquisition.
C. A majority of the continuing directors shall have the power and duty
to determine for the purposes of this Article 12 on the basis of information
known to them whether (a) such other entity beneficially owns 30% or more of the
outstanding shares of stock of the Company entitled to vote in elections of
directors; (b) an other entity is an "affiliate" or "associate" (as defined
above) of another; (c) an other entity has an agreement, arrangement or
understanding with another; or (d) the assets being acquired by the Company, or
any subsidiary thereof, have an aggregate fair market value of less than
$5,000,000.
D. No amendment to the Certificate of Incorporation of the Company
shall amend or repeal any of the provisions of this Article 12, unless the
amendment effecting such amendment or repeal shall receive the affirmative vote
of the holders of 95% of all shares of stock of the corporation entitled to vote
in elections of directors, considered for the purposes of this Article 12 as one
class; provided that this paragraph D shall not apply to, and such 95% vote
shall not be required for, any amendment or repeal unanimously recommended to
the stockholders by the Board of Directors of the Company if all of such
directors are persons who would be eligible to serve as "continuing directors"
within the meaning of paragraph B of this Article 12.
E. Nothing contained in this Article 12 shall be construed to relieve
any other entity from any fiduciary obligation imposed by law.
<PAGE> 12
13. A director of the Company shall not be personally liable to the
Company or its stockholders for monetary damages for breach of fiduciary duty as
a director, except for liability (a) for any breach of the director's duty of
loyalty to the Company or its stockholders, (b) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (c) under Section 174 of the Delaware General Corporation Law, or (d) for
any transaction from which the director derived an improper personal benefit. If
the Delaware General Corporation Law hereafter is amended to authorize the
further limitation or elimination of the liability of directors, then the
liability of a director of the Company, in addition to the limitation on
liability provided herein, shall be limited to the fullest extent permitted by
the Delaware General Corporation Law, as amended. Any repeal or modification of
this Article 13 shall not increase the liability of any director of the Company
for any act or occurrence taking place prior to such repeal or modification, or
otherwise adversely affect any right or protection of a director of the Company
existing at the time of such repeal or modification.
14. A. Each person who was or is made a party or is threatened to be
made a party to or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that such person is or was a director, officer or employee of the Company,
whether the basis of such proceeding is alleged action in an official capacity
as a director, officer or employee or in any other capacity while serving as a
director, officer, or employee, shall be indemnified and held harmless by the
Company to the fullest extent permitted by the Delaware General Corporation Law,
as the same exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Company to provide
broader indemnification rights than such law permitted the company to provide
prior to such amendment), against all expense, liability and loss (including,
without limitation, attorneys' fees, judgments, fines and amounts paid in
settlement) reasonably incurred or suffered by such person in connection
therewith, and such indemnification shall continue as to a person who has ceased
to be a director, officer or employee and shall inure to the benefit of such
person's heirs, executors and administrators. The Company shall indemnify a
director, officer or employee in connection with an action, suit or proceeding
(other than an action, suit or proceeding to enforce indemnification rights
provided for
<PAGE> 13
herein or elsewhere) initiated by such Director, officer or employee only if
such action, suit or proceeding was authorized by the Board of Directors. The
right to indemnification conferred in this Paragraph A shall be a contract right
and shall include the right to be paid by the Company the expenses incurred in
defending any action, suit or proceeding in advance of its final disposition;
provided, however, that, if the Delaware General Corporation Law requires, the
payment of such expenses incurred by a director or officer in such person's
capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such person) in advance of the final disposition
of an action, suit or proceeding shall be made only upon delivery to the Company
of an undertaking, by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined by final judicial
decision from which there is no further right to appeal that such director or
officer is not entitled to be indemnified for such expenses under this Article
14 or otherwise.
B. The Company may, to the extent authorized from time to time by the
Board of Directors, provide indemnification and the advancement of expenses, to
any agent of the Company and to any person who is or was serving at the request
of the Company as a director, officer, employee or agent of another corporation
or of a partnership, joint venture, trust or other enterprise, to such extent
and to such effect as the Board of Directors shall determine to be appropriate
and permitted by applicable law, as the same exists or may hereafter be amended.
C. The rights to indemnification and to the advancement of expenses
conferred in this Article 14 shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation or bylaws of the Company, agreement, vote of
stockholders or disinterested directors or otherwise.
FOURTH: This Restated Certificate of Incorporation was duly adopted
by the Board of Directors in accordance with Section 245 of the General
Corporation Law of Delaware.
<PAGE> 14
IN WITNESS WHEREOF, said MASCOTECH, INC. has caused this Certificate to
be signed by Richard A. Manoogian, its Chairman of the Board, this 22nd day of
September, 1998.
MASCOTECH, INC.
By /s/Richard A. Manoogian
--------------------------
Richard A. Manoogian
Chairman of the Board
STATE OF MICHIGAN )
) ss
COUNTY OF WAYNE )
I, Maxine Crandall, a notary public, do hereby certify that on this
22nd day of September, 1998, personally appeared before me Richard A. Manoogian,
who, being by me first duly sworn, declared that he is the Chairman of the Board
that he signed the foregoing document as the act and deed of said corporation,
and that the statements therein contained are true.
/s/Maxine E. Crandall
----------------------------------
Wayne County, Michigan
My commission expires October 19, 2000
<PAGE> 1
EXHIBIT 5
September 25, 1998
MascoTech, Inc.
21001 Van Born Road
Taylor, Michigan 48180
RE: MASCOTECH, INC.
REGISTRATION STATEMENT ON FORM S-8
1991 LONG TERM STOCK INCENTIVE PLAN
Dear Sirs:
I am acting as your counsel in connection with the Registration
Statement on Form S-8 under the Securities Act of 1933, as amended, registering
an aggregate of 6,000,000 shares of Common Stock, $1.00 par value (the
"Shares"), of MascoTech, Inc., a Delaware corporation (the "Company"), which may
be issued pursuant to the terms of the Company's 1991 Long Term Stock Incentive
Plan (the "Plan").
I, or attorneys on my staff who report to me, have examined and am
familiar with originals or copies, certified or otherwise identified to my
satisfaction, of such documents and corporate records as I have deemed necessary
or advisable for the purpose of this opinion. Based upon the foregoing, I am of
the opinion that:
(1) The Company has been duly incorporated and is a validly existing
corporation in good standing under the laws of the State of Delaware, with
corporate power under such laws to issue the Shares; and
(2) The issuance of the Shares under the Plan has been duly authorized
by appropriate corporate action and the Shares, when issued pursuant to the
provisions of the Plan, will be validly issued, fully paid and nonassessable
assuming that the exercise price of stock options is not less than par value and
that prior to awarding shares of restricted stock there is a determination by
the Company's Board of Directors that the Company has received consideration
having a value not less than the par value of the shares awarded.
I hereby consent to the filing of this opinion as Exhibit 5 to the
Company's Registration Statement on Form S-8.
Very truly yours,
/s/David B. Liner
David B. Liner
Vice President and
General Counsel
<PAGE> 1
EXHIBIT 23.a
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
MascoTech, Inc. on Form S-8 of our report dated February 17, 1998, on our audits
of the consolidated financial statements and financial statement schedule of
MascoTech, Inc. and subsidiaries as of December 31, 1997 and 1996, and for each
of the three years in the period ended December 31, 1997, which report is
incorporated by reference from the MascoTech, Inc. Annual Report on Form 10-K
for the year ended December 31, 1997.
PRICEWATERHOUSECOOOPERS LLP
Detroit, Michigan
September 25, 1998
<PAGE> 1
EXHIBIT 23.b
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
MascoTech, Inc. on Form S-8 of our report dated February 17, 1998, on our audits
of the consolidated financial statements of TriMas Corporation and subsidiaries
as of December 31, 1997 and 1996, and for each of the three years in the period
ended December 31, 1997, which report is incorporated by reference from the
MascoTech, Inc. Annual Report on Form 10-K for the year ended December 31, 1997.
PricewaterhouseCoopers LLP
Detroit, Michigan
September 25, 1998
<PAGE> 1
EXHIBIT 99
MASCOTECH, INC.
1991 LONG TERM STOCK INCENTIVE PLAN
(Restated July 15, 1998)
SECTION 1. PURPOSES
The purposes of the 1991 Long Term Stock Incentive Plan (the "Plan") are to
encourage selected employees of and consultants to MascoTech, Inc. (the
"Company") and its Affiliates to acquire a proprietary interest in the Company
in order to create an increased incentive to contribute to the Company's future
success and prosperity, and enhance the ability of the Company and its
Affiliates to attract and retain exceptionally qualified individuals upon whom
the sustained progress, growth and profitability of the Company depend, thus
enhancing the value of the Company for the benefit of its stockholders.
SECTION 2. DEFINITIONS
As used in the Plan, the following terms shall have the meanings set forth
below:
(a) "Affiliate" shall mean any entity in which the Company's direct or
indirect equity interest is at least twenty percent, and any other entity in
which the Company has a significant direct or indirect equity interest, whether
more or less than twenty percent, as determined by the Committee.
(b) "Award" shall mean any Option, Stock Appreciation Right, Restricted
Stock, Restricted Stock Unit, Performance Award, Dividend Equivalent or Other
Stock-Based Award granted under the Plan.
(c) "Award Agreement" shall mean any written agreement, contract or other
instrument or document evidencing any Award granted under the Plan.
(d) "Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
(e) "Committee" shall mean a committee of the Company's directors
designated by the Board of Directors to administer the Plan and composed of not
less than two directors, each of whom is a "non-employee director" within the
meaning of Rule 16b-3.
(f) "Dividend Equivalent" shall mean any right granted under Section 6(e)
of the Plan.
(g) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(h) "Incentive Stock Option" shall mean an Option granted under Section
6(a) of the Plan that is intended to meet the requirements of Section 422 of the
Code, or any successor provision thereto.
(i) "Non-Qualified Stock Option" shall mean an Option granted under Section
6(a) of the Plan that is not intended to be an Incentive Stock Option.
(j) "Option" shall mean an Incentive Stock Option or a Non-Qualified Stock
Option.
(k) "Other Stock-Based Award" shall mean any right granted under Section
6(f) of the Plan.
(l) "Participant" shall mean an employee of or consultant to the Company or
any Affiliate designated to be granted an Award under the Plan.
(m) "Performance Award" shall mean any right granted under Section 6(d) of
the Plan.
(n) "Restricted Period" shall mean the period of time during which Awards
of Restricted Stock or Restricted Stock
<PAGE> 2
Units are subject to restrictions.
(o) "Restricted Stock" shall mean any Share granted under Section 6(c) of
the Plan.
(p) "Restricted Stock Unit" shall mean any right granted under Section 6(c)
of the Plan that is denominated in Shares.
(q) "Rule 16b-3" shall mean Rule 16b-3 promulgated by the Securities and
Exchange Commission under the Exchange Act, or any successor rule or regulation.
(r) "Section 16" shall mean Section 16 of the Exchange Act, the rules and
regulations promulgated by the Securities and Exchange Commission thereunder, or
any successor provision, rule or regulation.
(s) "Shares" shall mean the Company's common stock, par value $1.00 per
share, and such other securities or property as may become the subject of
Awards, or become subject to Awards, pursuant to an adjustment made under
Section 4(c) of the Plan.
(t) "Stock Appreciation Right" shall mean any right granted under Section
6(b) of the Plan.
SECTION 3. ADMINISTRATION
The Committee shall administer the Plan, and subject to the terms of the
Plan and applicable law, the Committee's authority shall include without
limitation the power to:
(i) designate Participants;
(ii) determine the types of Awards to be granted;
(iii) determine the number of Shares to be covered by Awards and
any payments, rights or other matters to be calculated in connection
therewith;
(iv) determine the terms and conditions of Awards and amend the
terms and conditions of outstanding Awards;
(v) determine how, whether, to what extent, and under what
circumstances Awards may be settled or exercised in cash, Shares, other
securities, other Awards or other property, or canceled, forfeited or
suspended;
(vi) determine how, whether, to what extent, and under what
circumstances cash, Shares, other securities, other Awards, other
property and other amounts payable with respect to an Award shall be
deferred either automatically or at the election of the holder thereof
or of the Committee;
(vii) determine the methods or procedures for establishing the
fair market value of any property (including, without limitation, any
Shares or other securities) transferred, exchanged, given or received
with respect to the Plan or any Award;
(viii) prescribe and amend the forms of Award Agreements and other
instruments required under or advisable with respect to the Plan;
(ix) designate Options granted to key employees of the Company or
its subsidiaries as Incentive Stock Options;
(x) interpret and administer the Plan, Award Agreements, Awards
and any contract, document, instrument or agreement relating thereto;
2
<PAGE> 3
(xi) establish, amend, suspend or waive such rules and
regulations and appoint such agents as it shall deem appropriate for
the administration of the Plan;
(xii) decide all questions and settle all controversies and
disputes which may arise in connection with the Plan, Award Agreements
and Awards;
(xiii) delegate to directors of the Company the authority to
designate Participants and grant Awards, and to amend Awards granted to
Participants;
(xiv) make any other determination and take any other action that
the Committee deems necessary or desirable for the interpretation,
application and administration of the Plan, Award Agreements and Awards.
All designations, determinations, interpretations and other decisions under
or with respect to the Plan, Award Agreements or any Award shall be within the
sole discretion of the Committee, may be made at any time and shall be final,
conclusive and binding upon all persons, including the Company, Affiliates,
Participants, beneficiaries of Awards and stockholders of the Company.
SECTION 4. SHARES AVAILABLE FOR AWARDS
(a) Shares Available. Subject to adjustment as provided in Section 4(c):
(i) Initial Authorization. There shall be 6,000,000 Shares initially
available for issuance under the Plan.
(ii) Acquired Shares. In addition to the amount set forth above, up to
6,000,000 Shares acquired by the Company subsequent to the 1997 Annual
Meeting of Stockholders as full or partial payment for the exercise price
for an Option or any other stock option granted by the Company, or acquired
by the Company, in open market transactions or otherwise, in connection with
the Plan or any Award hereunder or any other employee stock option or
restricted stock issued by the Company may thereafter be included in the
Shares available for Awards. If any Shares covered by an Award or to which
an Award relates are forfeited, or if an Award expires, terminates or is
cancelled, then the Shares covered by such Award, or to which such Award
relates, or the number of Shares otherwise counted against the aggregate
number of Shares available under the Plan by reason of such Award, to the
extent of any such forfeiture, expiration, termination or cancellation, may
thereafter be available for further granting of Awards and included as
acquired Shares for purposes of the preceding sentence.
(iii) Shares Under Prior Plans. In addition to the amounts set forth
above, shares remaining available for issuance upon any termination of
authority to make further awards under both the Company's 1984 Restricted
Stock Incentive Plan and its 1984 Stock Option Plan shall thereafter be
available for issuance hereunder.
(iv) Accounting for Awards. For purposes of this Section 4,
(A) if an Award (other than a Dividend Equivalent) is denominated
in Shares, the number of Shares covered by such Award, or to which such
Award relates, shall be counted on the date of grant of such Award
against the aggregate number of Shares available for granting Awards
under the Plan to the extent determinable on such date and insofar as
the number of Shares is not then determinable under procedures adopted
by the Committee consistent with the purposes of the Plan; and
(B) Dividend Equivalents and Awards not denominated in Shares
shall be counted against the aggregate number of Shares available for
granting Awards under the Plan in such amount and at such time as the
Committee shall determine under procedures adopted by the Committee
consistent with the purposes of the Plan; provided, however, that Awards
that operate in tandem with (whether granted simultaneously with or at a
different time from), or that are substituted for, other Awards or
restricted stock awards or stock options granted under any other plan of
the Company may be counted or not counted under procedures adopted by
the Committee in order to avoid double counting. Any Shares that are
delivered by the Company or its Affiliates, and any Awards that are
3
<PAGE> 4
granted by, or become obligations of, the Company, through the assumption by
the Company of, or in substitution for, outstanding restricted stock awards
or stock options previously granted by an acquired company shall not, except
in the case of Awards granted to Participants who are directors or officers
of the Company for purposes of Section 16, be counted against the Shares
available for Granting Awards under the Plan.
(v) Sources of Shares Deliverable Under Awards. Any Shares delivered
pursuant to an Award may consist, in whole or in part, of authorized but
unissued Shares or of Shares reacquired by the Company, including but not
limited to Shares purchased on the open market.
(b) Individual Stock-Based Awards. Subject to adjustment as provided in
Section 4(c), no Participant may receive Options or Stock Appreciation Rights
under the Plan in any calendar year that relate to more than 1,000,000 Shares in
the aggregate; provided, however, that such number may be increased with respect
to any Participant by any Shares available for grant to such Participant in
accordance with this Paragraph 4(b) in any prior years that were not granted in
such prior year beginning on or after January 1, 1997. No provision of this
Paragraph 4(b) shall be construed as limiting the amount of any other
stock-based or cash-based Award which may be granted to any Participant.
(c) Adjustments. Upon the occurrence of any dividend or other distribution
(whether in the form of cash, Shares, other securities or other property),
change in the capital or shares of capital stock, recapitalization, stock split,
reverse stock split, reorganization, merger, consolidation, split-up, spin-off,
combination, repurchase, or exchange of Shares or other securities of the
Company, issuance of warrants or other rights to purchase Shares or other
securities of the Company or extraordinary transaction or event which affects
the Shares, then the Committee shall have the authority to make such adjustment,
if any, in such manner as it deems appropriate, in (i) the number and type of
Shares (or other securities or property) which thereafter may be made the
subject of Awards, (ii) outstanding Awards including without limitation the
number and type of Shares (or other securities or property) subject thereto, and
(iii) the grant, purchase or exercise price with respect to outstanding Awards
and, if deemed appropriate, make provision for cash payments to the holders of
outstanding Awards; provided, however, that the number of Shares subject to any
Award denominated in Shares shall always be a whole number.
SECTION 5. ELIGIBILITY
Any employee of or consultant to the Company or any Affiliate, including any
officer of the Company (who may also be a director, any person who serves only
as a director of the Company and any consultant to the Company or an Affiliate
who is also a director of the Company and who is not rendering services pursuant
to a written agreement with the entity in question), as may be selected from
time to time by the Committee or by the directors to whom authority may be
delegated pursuant to Section 3 hereof in its or their discretion, is eligible
to be designated a Participant.
SECTION 6. AWARDS
(a) Options. The Committee is authorized to grant Options to Participants.
(i) Committee Determinations. Subject to the terms of the Plan, the
Committee shall determine:
(A) the purchase price per Share under each Option, provided,
however, that such price shall not be less than 100% of the fair market
value of the Shares underlying such Option on the date of grant;
(B) the term of each Option; and
(C) the time or times at which an Option may be exercised, in whole
or in part, the method or methods by which and the form or forms
(including, without limitation, cash, Shares, other Awards or other
property, or any combination thereof, having a fair market value on the
exercise date equal to the relevant exercise price) in which payment of
the exercise price with respect thereto may be made or deemed to have
been made. The terms of any Incentive Stock Option granted under the
Plan shall comply in all respects with the provisions of Section 422 of
the Code, or any successor provision thereto, and any regulations
promulgated thereunder.
4
<PAGE> 5
Subject to the terms of the Plan, the Committee may impose such conditions
or restrictions on any Option as it deems appropriate.
(ii) Other Terms. Unless otherwise determined by the Committee:
(A) A Participant electing to exercise an Option shall give
written notice to the Company, as may be specified by the Committee, of
exercise of the Option and the number of Shares elected for exercise,
such notice to be accompanied by such instruments or documents as may
be required by the Committee, and shall tender the purchase price of
the Shares elected for exercise.
(B) At the time of exercise of an Option payment in full in cash
or in Shares (that have been held by the Participant for at least six
months) or any combination thereof, at the option of the Participant,
shall be made for all Shares then being purchased.
(C) The Company shall not be obligated to issue any Shares unless
and until:
(I) if the class of Shares at the time is listed upon any
stock exchange, the Shares to be issued have been listed, or
authorized to be added to the list upon official notice of
issuance, upon such exchange, and
(II)in the opinion of the Company's counsel there has been
compliance with applicable law in connection with the issuance and
delivery of Shares and such issuance shall have been approved by
the Company's counsel.
Without limiting the generality of the foregoing, the Company may
require from the Participant such investment representation or such
agreement, if any, as the Company's counsel may consider necessary in
order to comply with the Securities Act of 1933 as then in effect, and
may require that the Participant agree that any sale of the Shares will
be made only in such manner as shall be in accordance with law and that
the Participant will notify the Company of any intent to make any
disposition of the Shares whether by sale, gift or otherwise. The
Participant shall take any action reasonably requested by the Company
in such connection. A Participant shall have the rights of a
stockholder only as and when Shares have been actually issued to the
Participant pursuant to the Plan.
(D) If the employment of or consulting arrangement with a
Participant terminates for any reason (including termination by reason
of the fact that an entity is no longer an Affiliate) other than the
Participant's death, the Participant may thereafter exercise the Option
as provided below, except that the Committee may terminate the
unexercised portion of the Option concurrently with or at any time
following termination of the employment or consulting arrangement
(including termination of employment upon a change of status from
employee to consultant) if it shall determine that the Participant has
engaged in any activity detrimental to the interests of the Company or
an Affiliate. If such termination is voluntary on the part of the
Participant, the option may be exercised only within ten days after the
date of termination. If such termination is involuntary on the part of
the Participant, if an employee retires on or after normal retirement
date or if the employment or consulting relationship is terminated by
reason of permanent and total disability, the Option may be exercised
within three months after the date of termination or retirement. For
purposes of this Paragraph (D), a Participant's employment or
consulting arrangement shall not be considered terminated (i) in the
case of approved sick leave or other bona fide leave of absence (not to
exceed one year), (ii) in the case of a transfer of employment or the
consulting arrangement among the Company and Affiliates, or (iii) by
virtue of a change of status from employee to consultant or from
consultant to employee, except as provided above.
(E) If a Participant dies at a time when entitled to exercise an
Option, then at any time or times within one year after death such
Option may be exercised, as to all or any of the Shares which the
Participant was entitled to purchase immediately prior to death. The
Company may decline to deliver Shares to a designated beneficiary until
it receives indemnity against claims of third parties satisfactory to
the Company. Except as so exercised such Option shall expire at the end
of such period.
(F) An Option may be exercised only if and to the extent such
Option was exercisable at the date of
5
<PAGE> 6
termination of employment or the consulting arrangement, and an Option
may not be exercised at a time when the Option would not have been
exercisable had the employment or consulting arrangement continued.
(iii) Restoration Options. The Committee may grant a Participant the
right to receive a restoration Option with respect to an Option or any
other option granted by the Company. Unless the Committee shall otherwise
determine, a restoration Option shall provide that the underlying option
must be exercised while the Participant is an employee of or consultant to
the Company or an Affiliate and the number of Shares which are subject to a
restoration Option shall not exceed the number of whole Shares exchanged in
payment of the original option.
(b) Stock Appreciation Rights. The Committee is authorized to grant Stock
Appreciation Rights to Participants. Subject to the terms of the Plan, a Stock
Appreciation Right granted under the Plan shall confer on the holder thereof a
right to receive, upon exercise thereof, the excess of (i) the fair market value
of one Share on the date of exercise or, if the Committee shall so determine in
the case of any such right other than one related to any Incentive Stock Option,
at any time during a specified period before or after the date of exercise over
(ii) the grant price of the right as specified by the Committee. Subject to the
terms of the Plan, the Committee shall determine the grant price, term, methods
of exercise and settlement and any other terms and conditions of any Stock
Appreciation Right and may impose such conditions or restrictions on the
exercise of any Stock Appreciation Right as it may deem appropriate.
(c) Restricted Stock and Restricted Stock Units.
(i) Issuance. The Committee is authorized to grant to Participants
Awards of Restricted Stock, which shall consist of Shares, and Restricted
Stock Units which shall give the Participant the right to receive cash,
other securities, other Awards or other property, in each case subject to
the termination of the Restricted Period determined by the Committee.
(ii) Restrictions. The Restricted Period may differ among Participants
and may have different expiration dates with respect to portions of Shares
covered by the same Award. Subject to the terms of the Plan, Awards of
Restricted Stock and Restricted Stock Units shall have such restrictions as
the Committee may impose (including, without limitation, limitations on the
right to vote Restricted Stock or the right to receive any dividend or
other right or property), which restrictions may lapse separately or in
combination at such time or times, in installments or otherwise. Unless the
Committee shall otherwise determine, any Shares or other securities
distributed with respect to Restricted Stock or which a Participant is
otherwise entitled to receive by reason of such Shares shall be subject to
the restrictions contained in the applicable Award Agreement. Subject to
the aforementioned restrictions and the provisions of the Plan,
Participants shall have all of the rights of a stockholder with respect to
Shares of Restricted Stock.
(iii) Registration. Restricted Stock granted under the Plan may be
evidenced in such manner as the Committee may deem appropriate, including,
without limitation, book-entry registration or issuance of stock
certificates.
(iv) Forfeiture. Except as otherwise determined by the Committee:
(A) If the employment of or consulting arrangement with a
Participant terminates for any reason (including termination by reason
of the fact that any entity is no longer an Affiliate), other than the
Participant's death or permanent and total disability or, in the case
of an employee, retirement on or after normal retirement date, all
Shares of Restricted Stock theretofore awarded to the Participant which
are still subject to restrictions shall upon such termination of
employment or the consulting relationship be forfeited and transferred
back to the Company. Notwithstanding the foregoing or Paragraph (C)
below, if a Participant continues to hold an Award of Restricted Stock
following termination of the employment or consulting arrangement
(including retirement and termination of employment upon a change of
status from employee to consultant), the Shares of Restricted Stock
which remain subject to restrictions shall nonetheless be forfeited and
transferred back to the Company if the Committee at any time thereafter
determines that the Participant has engaged in any activity detrimental
to the interests of the Company or an Affiliate. For purposes of this
Paragraph (A), a Participant's employment or consulting arrangement
shall not be considered terminated (i) in the case of approved sick
leave or other bona fide leave of absence (not to exceed one year),
(ii) in the case of a transfer of employment or the
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consulting arrangement among the Company and Affiliates, or (iii) by
virtue of a change of status from employee to consultant or from
consultant to employee, except as provided above.
(B) If a Participant ceases to be employed or retained by the
Company or an Affiliate by reason of death or permanent and total
disability or if following retirement a Participant continues to have
rights under an Award of Restricted Stock and thereafter dies, the
restrictions contained in the Award shall lapse with respect to such
Restricted Stock.
(C) If an employee ceases to be employed by the Company or an
Affiliate by reason of retirement on or after normal retirement date,
the restrictions contained in the Award of Restricted Stock shall
continue to lapse in the same manner as though employment had not
terminated.
(D) At the expiration of the Restricted Period as to Shares
covered by an Award of Restricted Stock, the Company shall deliver the
Shares as to which the Restricted Period has expired, as follows:
(1) if an assignment to a trust has been made in accordance
with Section 6(g)(iv)(B)(2)(c), to such trust; or
(2) if the Restricted Period has expired by reason of death
and a beneficiary has been designated in form approved by the
Company, to the beneficiary so designated; or
(3) in all other cases, to the Participant or the legal
representative of the Participant's estate.
(d) Performance Awards. The Committee is authorized to grant Performance
Awards to Participants. Subject to the terms of the Plan, a Performance Award
granted under the Plan (i) may be denominated or payable in cash, Shares
(including, without limitation, Restricted Stock), other securities, other
Awards, or other property and (ii) shall confer on the holder thereof rights
valued as determined by the Committee and payable to, or exercisable by, the
holder of the Performance Award, in whole or in part, upon the achievement of
such performance goals during such performance periods as the Committee shall
establish. Subject to the terms of the Plan, the performance goals to be
achieved during any performance period, the length of any performance period,
the amount of any Performance Award granted, the amount of any payment or
transfer to be made pursuant to any Performance Award and other terms and
conditions shall be determined by the Committee.
(e) Dividend Equivalents. The Committee is authorized to grant to
Participants Awards under which the holders thereof shall be entitled to receive
payments equivalent to dividends or interest with respect to a number of Shares
determined by the Committee, and the Committee may provide that such amounts (if
any) shall be deemed to have been reinvested in additional Shares or otherwise
reinvested. Subject to the terms of the Plan, such Awards may have such terms
and conditions as the Committee shall determine.
(f) Other Stock-Based Awards. The Committee is authorized to grant to
Participants such other Awards that are denominated or payable in, valued in
whole or in part by reference to or otherwise based on or related to Shares
(including, without limitation, securities convertible into Shares), as are
deemed by the Committee to be consistent with the purposes of the Plan,
provided, however, that such grants to persons who are subject to Section 16
must comply with the provisions of Rule 16b-3. Subject to the terms of the Plan,
the Committee shall determine the terms and conditions of such Awards. Shares or
other securities delivered pursuant to a purchase right granted under this
Section 6(f) shall be purchased for such consideration, which may be paid by
such method or methods and in such form or forms, including, without limitation,
cash, Shares, other securities, other Awards or other property or any
combination thereof, as the Committee shall determine.
(g) General.
(i) No Cash Consideration for Awards. Awards may be granted for no cash
consideration or for such minimal cash consideration as may be required by
applicable law.
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(ii) Awards May Be Granted Separately or Together. Awards may, in the
discretion of the Committee, be granted either alone or in addition to, in
tandem with or in substitution for any other Award or any award granted
under any other plan of the Company or any Affiliate. Awards granted in
addition to or in tandem with other Awards or in addition to or in tandem
with awards granted under another plan of the Company or any Affiliate, may
be granted either at the same time as or at a different time from the grant
of such other Awards or awards.
(iii) Forms of Payment Under Awards. Subject to the terms of the Plan
and of any applicable Award Agreement, payments or transfers to be made by
the Company or an Affiliate upon the grant, exercise, or payment of an
Award may be made in such form or forms as the Committee shall determine,
including, without limitation, cash, Shares, other securities, other
Awards, or other property, or any combination thereof, and may be made in a
single payment or transfer, in installments, or on a deferred basis, in
each case in accordance with rules and procedures established by the
Committee. Such rules and procedures may include, without limitation,
provisions for the payment or crediting of reasonable interest on
installment or deferred payments or the grant or crediting of Dividend
Equivalents in respect of installment or deferred payments.
(iv) Limits on Transfer of Awards.
(A) Except as the Committee may otherwise determine, no Award or
right under any Award may be sold, encumbered, pledged, alienated,
attached, assigned or transferred in any manner and any attempt to do
any of the foregoing shall be void and unenforceable against the
Company.
(B) Notwithstanding the provisions of Paragraph (A) above:
(1) An Option may be transferred:
(a) to a beneficiary designated by the Participant in
writing on a form approved by the Committee;
(b) by will or the applicable laws of descent and
distribution to the personal representative, executor or
administrator of the Participant's estate; or
(c) to a revocable grantor trust established by the
Participant for the sole benefit of the Participant during
the Participant's life, and under the terms of which the
Participant is and remains the sole trustee until death or
physical or mental incapacity. Such assignment shall be
effected by a written instrument in form and content
satisfactory to the Committee, and the Participant shall
deliver to the Committee a true copy of the agreement or
other document evidencing such trust. If in the judgment of
the Committee the trust to which a Participant may attempt to
assign rights under such an Award does not meet the criteria
of a trust to which an assignment is permitted by the terms
hereof, or if after assignment, because of amendment, by
force of law or any other reason such trust no longer meets
such criteria, such attempted assignment shall be void and
may be disregarded by the Committee and the Company and all
rights to any such Options shall revert to and remain solely
in the Participant. Notwithstanding a qualified assignment,
the Participant, and not the trust to which rights under such
an Option may be assigned, for the purpose of determining
compensation arising by reason of the Option shall continue
to be considered an employee or consultant, as the case may
be, of the Company or an Affiliate, but such trust and the
Participant shall be bound by all of the terms and conditions
of the Award Agreement and this Plan. Shares issued in the
name of and delivered to such trust shall be conclusively
considered issuance and delivery to the Participant.
(2) A Participant may assign or transfer rights under an
Award of Restricted Stock or Restricted Stock Units:
(a) to a beneficiary designated by the Participant in
writing on a form approved by the Committee;
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(b) by will or the applicable laws of descent and
distribution to the personal representative, executor or
administrator of the Participant's estate; or
(c) to a revocable grantor trust established by the
Participant for the sole benefit of the Participant during the
Participant's life, and under the terms of which the
Participant is and remains the sole trustee until death or
physical or mental incapacity. Such assignment shall be
effected by a written instrument in form and content
satisfactory to the Committee, and the Participant shall
deliver to the Committee a true copy of the agreement or other
document evidencing such trust. If in the judgment of the
Committee the trust to which a Participant may attempt to
assign rights under such an Award does not meet the criteria
of a trust to which an assignment is permitted by the terms
hereof, or if after assignment, because of amendment, by force
of law or any other reason such trust no longer meets such
criteria, such attempted assignment shall be void and may be
disregarded by the Committee and the Company and all rights to
any such Awards shall revert to and remain solely in the
Participant. Notwithstanding a qualified assignment, the
Participant, and not the trust to which rights under such an
Award may be assigned, for the purpose of determining
compensation arising by reason of the Award shall continue to
be considered an employee or consultant, as the case may be,
of the Company or an Affiliate, but such trust and the
Participant shall be bound by all of the terms and conditions
of the Award Agreement and this Plan. Shares issued in the
name of and delivered to such trust shall be conclusively
considered issuance and delivery to the Participant.
(3) The Committee shall not permit directors or officers of
the Company for purposes of Section 16 to transfer or assign
Awards except as permitted under Rule 16b-3.
(C) The Committee, the Company and its officers, agents and
employees may rely upon any beneficiary designation, assignment or
other instrument of transfer, copies of trust agreements and any other
documents delivered to them by or on behalf of the Participant which
they believe genuine and any action taken by them in reliance thereon
shall be conclusive and binding upon the Participant, the personal
representatives of the Participant's estate and all persons asserting a
claim based on an Award. The delivery by a Participant of a beneficiary
designation, or an assignment of rights under an Award as permitted
hereunder, shall constitute the Participant's irrevocable undertaking
to hold the Committee, the Company and its officers, agents and
employees harmless against claims, including any cost or expense
incurred in defending against claims, of any person (including the
Participant) which may be asserted or alleged to be based on an Award
subject to a beneficiary designation or an assignment. In addition, the
Company may decline to deliver Shares to a beneficiary until it
receives indemnity against claims of third parties satisfactory to the
Company.
(v) Share Certificates. All certificates for Shares or other securities
delivered under the Plan pursuant to any Award or the exercise thereof
shall be subject to such stop transfer orders and other restrictions as the
Committee may deem advisable under the Plan or the rules, regulations and
other requirements of the Securities and Exchange Commission, any stock
exchange upon which such Shares or other securities are then listed and any
applicable Federal or state securities laws, and the Committee may cause a
legend or legends to be put on any such certificates to make appropriate
reference to such restrictions.
(vi) Change in Control. (A) Notwithstanding any of the provisions of
this Plan or instruments evidencing Awards granted hereunder, upon a Change
in Control of the Company (as hereinafter defined) the vesting of all
rights of Participants under outstanding Awards shall be accelerated and
all restrictions thereon shall terminate in order that Participants may
fully realize the benefits thereunder. Such acceleration shall include,
without limitation, the immediate exercisability in full of all Options and
the termination of restrictions on Restricted Stock and Restricted Stock
Units. Further, in addition to the Committee's authority set forth in
Section 4(c), the Committee, as constituted before such Change in Control,
is authorized, and has sole discretion, as to any Award, either at the time
such Award is made hereunder or any time thereafter, to take any one or
more of the following actions: (i) provide for the purchase of any such
Award, upon the Participant's request, for an amount of cash equal to the
amount that could have been attained upon the exercise of such Award or
realization of the Participant's rights had such Award been currently
exercisable or payable; (ii) make such adjustment to any such Award then
outstanding as the Committee deems appropriate to reflect such Change in
Control; and (iii) cause any such Award then
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outstanding to be assumed, or new rights substituted therefore, by the
acquiring or surviving after such Change in Control.
(B) With respect to any Award granted hereunder prior to December
6, 1995, a Change in Control shall occur if:
(1) any "person" or "group of persons" as such terms are used
in Sections 13(d) and 14(d) of the Exchange Act, other than
pursuant to a transaction or agreement previously approved by the
Board of Directors of the Company, directly or indirectly
purchases or otherwise becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act) or has the right to acquire
such beneficial ownership (whether or not such right is
exercisable immediately, with the passage of time, or subject to
any condition) of voting securities representing 25 percent or
more of the combined voting power of all outstanding voting
securities of (A) the Company or (B) Masco Corporation, a Delaware
corporation ("Masco"); or
(2) during any period of twenty-four consecutive calendar
months, the individuals who at the beginning of such period
constitute the Company's or Masco's Board of Directors, and any
new directors whose election by such Board or nomination for
election by stockholders was approved by a vote of at least
two-thirds of the members of such Board who were either directors
on such Board at the beginning of the period or whose election or
nomination for election as directors was previously so approved,
for any reason cease to constitute at least a majority of the
members thereof.
(C) Notwithstanding the provisions of subparagraph (B), with
respect to Awards granted hereunder on or after December 6, 1995, a
Change in Control shall occur only if the event described in this
subparagraph (C) shall have occurred. With respect to any other Award
granted prior thereto, a Change in Control shall occur if any of the
events described in subparagraphs (B) or (C) shall have occurred,
unless the holder of any such Award shall have consented to the
application of this subparagraph (C) in lieu of the foregoing
subparagraph (B). A Change in Control for purposes of this subparagraph
(C) shall occur if, during any period of twenty-four consecutive
calendar months, the individuals who at the beginning of such period
constitute the Company's Board of Directors, and any new directors
(other than Excluded Directors, as hereinafter defined), whose election
by such Board or nomination for election by stockholders was approved
by a vote of at least two-thirds of the members of such Board who were
either directors on such Board at the beginning of the period or whose
election or nomination for election as directors was previously so
approved, for any reason cease to constitute at least a majority of the
members thereof. For purposes hereof, "Excluded Directors" are
directors whose election by the Board or approval by the Board for
stockholder election occurred within one year of any "person" or "group
of persons", as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act, commencing a tender offer for, or becoming the beneficial
owner of, voting securities representing 25 percent or more of the
combined voting power of all outstanding voting securities of the
Company, other than pursuant to a tender offer approved by the Board
prior to its commencement or pursuant to stock acquisitions approved by
the Board prior to their representing 25 percent or more of such
combined voting power.
(D) (1) In the event that subsequent to a Change in Control it is
determined that any payment or distribution by the Company to or for
the benefit of a Participant, whether paid or payable or distributed or
distributable pursuant to the terms of this Plan or otherwise, other
than any payment pursuant to this subparagraph (D) (a "Payment"), would
be subject to the excise tax imposed by Section 4999 of the Code or any
interest or penalties with respect to such excise tax (such excise tax,
together with any such interest and penalties, are hereinafter
collectively referred to as the "Excise Tax"), then such Participant
shall be entitled to receive from the Company, within 15 days following
the determination described in (2) below, an additional payment
("Excise Tax Adjustment Payment") in an amount such that after payment
by such Participant of all applicable Federal, state and local taxes
(computed at the maximum marginal rates and including any interest or
penalties imposed with respect to such taxes), including any Excise
Tax, imposed upon the Excise Tax Adjustment Payment, such Participant
retains an amount of the Excise Tax Adjustment Payment equal to the
Excise Tax imposed upon the Payments.
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(2) All determinations required to be made under this Section
6(g)(vi)(D), including whether an Excise Tax Adjustment Payment is
required and the amount of such Excise Tax Adjustment Payment, shall be
made by PricewaterhouseCoopers LLP, or such other national accounting
firm as the Company, or, subsequent to a Change in Control, the Company
and the Participant jointly, may designate, for purposes of the Excise
Tax, which shall provide detailed supporting calculations to the
Company and the affected Participant within 15 business days of the
date of the applicable Payment. Except as hereinafter provided, any
determination by PricewaterhouseCoopers LLP, or such other national
accounting firm, shall be binding upon the Company and the Participant.
As a result of the uncertainty in the application of Section 4999 of
the Code that may exist at the time of the initial determination
hereunder, it is possible that (x) certain Excise Tax Adjustment
Payments will not have been made by the Company which should have been
made (an "Underpayment"), or (y) certain Excise Tax Adjustment Payments
will have been made which should not have been made (an "Overpayment"),
consistent with the calculations required to be made hereunder. In the
event of an Underpayment, such Underpayment shall be promptly paid by
the Company to or for the benefit of the affected Participant. In the
event that the Participant discovers that an Overpayment shall have
occurred, the amount thereof shall be promptly repaid to the Company.
(3) This Section 6(g)(vi)(D) shall not apply to any Award (x) that
was granted prior to February 17, 1993 and (y) the holder of which is
an executive officer of the Company, as determined under the Exchange
Act.
(vii) Cash Settlement. Notwithstanding any provision of this Plan or of
any Award Agreement to the contrary, any Award outstanding hereunder may at
any time be cancelled in the Committee's sole discretion upon payment of
the value of such Award to the holder thereof in cash or in another Award
hereunder, such value to be determined by the Committee in its sole
discretion.
SECTION 7. AMENDMENT AND TERMINATION
Except to the extent prohibited by applicable law and unless otherwise
expressly provided in an Award Agreement or in the Plan:
(a) Amendments to the Plan. The Board of Directors of the Company may amend
the Plan and the Board of Directors or the Committee may amend any outstanding
Award; provided, however, that (i) no Plan amendment shall be effective until
approved by stockholders of the Company insofar as stockholder approval thereof
is required in order for the Plan to continue to satisfy the conditions of Rule
16b-3, and (ii) without the consent of affected Participants no amendment of the
Plan or of any Award may impair the rights of Participants under outstanding
Awards, and (iii) no Option may be amended to reduce its initial exercise price
other than in connection with an event described in Section 4(c) hereof.
(b) Waivers. The Committee may waive any conditions or rights under any
Award theretofore granted, prospectively or retroactively, without the consent
of any Participant.
(c) Adjustments of Awards Upon the Occurrence of Certain Unusual or
Nonrecurring Events. The Committee shall be authorized to make adjustments in
the terms and conditions of, and the criteria included in, Awards in recognition
of unusual or nonrecurring events (including, without limitation, the events
described in Section 4(b) hereof) affecting the Company, any Affiliate, or the
financial statements of the Company or any Affiliate, or of changes in
applicable laws, regulations, or accounting principles, whenever the Committee
determines that such adjustments are appropriate in order to prevent dilution or
enlargement of the benefits or potential benefits to be made available under the
Plan.
(d) Correction of Defects, Omissions, and Inconsistencies. The Committee
may correct any defect, supply any omission or reconcile any inconsistency in
the Plan or any Award in the manner and to the extent it shall deem desirable to
effectuate the Plan.
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SECTION 8. GENERAL PROVISIONS
(a) No Rights to Awards. No Participant or other person shall have any
claim to be granted any Award under the Plan, and there is no obligation for
uniformity of treatment of Participants or holders or beneficiaries of Awards
under the Plan. The terms and conditions of Awards of the same type and the
determination of the Committee to grant a waiver or modification of any Award
and the terms and conditions thereof need not be the same with respect to each
Participant.
(b) Withholding. The Company or any Affiliate shall be authorized to
withhold from any Award granted or any payment due or transfer made under any
Award or under the Plan the amount (in cash, Shares, other securities, other
Awards or other property) of withholding taxes due in respect of an Award, its
exercise or any payment or transfer under such Award or under the Plan and to
take such other action as may be necessary in the opinion of the Company or
Affiliate to satisfy all obligations for the payment of such taxes.
(c) No Limit on Other Compensation Arrangements. Nothing contained in the
Plan shall prevent the Company or any Affiliate from adopting or continuing in
effect other or additional compensation arrangements, including the grant of
options and other stock-based awards, and such arrangements may be either
generally applicable or applicable only in specific cases.
(d) No Right to Employment. The grant of an Award shall not be construed as
giving a Participant the right to be retained in the employ of the Company or
any Affiliate. Further, the Company or an Affiliate may at any time dismiss a
Participant from employment, free from any liability, or any claim under the
Plan, unless otherwise expressly provided in the Plan or in any Award Agreement
or other written agreement with the Participant.
(e) Governing Law. The validity, construction and effect of the Plan and
any rules and regulations relating to the Plan shall be determined in accordance
with the laws of the State of Michigan and applicable Federal law.
(f) Severability. If any provision of the Plan or any Award is or becomes
or is deemed to be invalid, illegal or unenforceable in any jurisdiction or as
to any person or Award, or would disqualify the Plan or any Award under any law
deemed applicable by the Committee, such provision shall be construed or deemed
amended to conform to applicable laws, or if it cannot be so construed or deemed
amended without, in the determination of the Committee, materially altering the
intent of the Plan or the Award, such provision shall be stricken as to such
jurisdiction, person or Award, and the remainder of the Plan and any such Award
shall remain in full force and effect.
(g) No Trust or Fund Created. Neither the Plan nor any Award shall create
or be construed to create a trust or separate fund of any kind or a fiduciary
relationship between the Company or any Affiliate and a Participant or any other
person. To the extent that any person acquires a right to receive payments from
the Company or any Affiliate pursuant to an Award, such right shall be no
greater than the right of any unsecured general creditor of the Company or any
Affiliate.
(h) No Fractional Shares. No fractional Shares shall be issued or delivered
pursuant to the Plan or any Award, and the Committee shall determine whether
cash, other securities, or other property shall be paid or transferred in lieu
of any fractional Shares, or whether such fractional Shares or any rights
thereto shall be cancelled, terminated or otherwise eliminated.
(i) Headings. Headings are given to the Sections and subsections of the
Plan solely as a convenience to facilitate reference. Such headings shall not be
deemed in any way material or relevant to the construction or interpretation of
the Plan or any provision thereof.
SECTION 9. EFFECTIVE DATE OF THE PLAN
The Plan shall be effective as of the date of its approval by the Company's
stockholders.
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