SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
|X| ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 1994
or
| | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
Commission File Number: 0-13698
NUVISION, INC.
(Exact name of registrant as specified in its charter)
Michigan 38-1412890
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization Identification No.)
2284 South Ballenger, Flint, MI 48501
(Address of principal executive offices with Zip Code)
Registrant's telephone number, including area code: (810) 767-0900
Securities registered pursuant to
Section 12(b) of the Act: NONE
Securities registered pursuant to
Section 12(g) of the Act: Common stock,
par value $0.50 per share.
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days: Yes |X| No | |
Indicate by check mark whether the disclosure of delinquent filers pursuant
to Item 405 of Regulation S-K is not contained herein, and will not be
contained, to the best of the registrant's knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this Form
10-K or any amendment to this Form 10-K: |X|
<PAGE>
NUVISION, INC.
ANNUAL REPORT ON FORM 10-K/A
for the Year Ended December 31, 1994
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Directors and Executive Officers
The directors and executive officers of the Company are as follows:
Name Age Position(s) with the Company
Eli Shapiro, O.D. 72 Chairman of the Board and Chief
Executive Officer
Jonathan E. Raven 44 President, Chief Operating Officer,
Director and Secretary
Eric D. Albert 35 Director
David T. Kollat 56 Director
Milton J. Rosenbaum, D.O. 65 Director
Joseph T. Dono 51 Executive Vice President-Marketing
Stephen L. Hirsch 42 Executive Vice President and
Treasurer
William F. Miller 49 Vice President-Retail Operations
George M. Ramos 61 Vice President-Business Development
All officers except Mr. Dono, Mr. Miller and Mr. Ramos have written
employment contracts (see Item 11, "Employment, Termination, and Change in
Control Arrangements"). All officers of the Company serve at the pleasure of
the Board of Directors.
Eli Shapiro has been Chairman of the Board and President of the Company since
1970 when he acquired the interest of his brother with whom he had purchased
the Company some years after it was founded in the 1950's. Dr. Shapiro
served as Treasurer of the Company from 1970 until January 1985. Effective
December 1990, Dr. Shapiro was made Chairman and Chief Executive Officer.
Jonathan E. Raven was named President and Chief Operating Officer in December
of 1990. Previously, he was Executive Vice President Chief Operating Officer
(1988-1990), Senior Vice President (1985-1988), Vice President (1982-1985),
and a director of the Company since 1980. From 1981 through 1988 he served
as the Company's General Counsel. From 1983 through 1990 he served as
Secretary of the Company. Effective May 1992, Mr. Raven was named Secretary.
Mr. Raven is a son-in-law of Dr. Shapiro.
Eric D. Albert is an owner and manager of Albert Bros., Inc., a scrap metal
processor/recycler in Waterbury, Connecticut. He has been affiliated with
Albert Bros. since 1986. From 1985-1988, he served as Vice President
Sales/Marketing with Metal-Tech Alloys, Inc., a metals manufacturer in
Waterbury, Connecticut. Mr. Albert holds an M.B.A. from Duke University.
Mr. Albert is a son-in-law of Dr. Shapiro.
David T. Kollat is President of 22 Inc., a research and consulting firm for
retailers and consumer goods manufacturers, which he founded in 1987. He is
a director of The Limited, Inc., Cooker Restaurant Corporation, Consolidated
Stores and Wolverine Worldwide, as well as other private boards.
Milton J. Rosenbaum has been a practicing physician in Flint, Michigan for
over 39 years. He is a director of Republic Bank. He also serves as an
officer or director of various privately held companies, most of which are
engaged in the business of real estate investment.
Stephen L. Hirsch was named Executive Vice President in June 1993, and
Treasurer in February 1991. Previously, he was Senior Vice President Finance
and Administration and Treasurer (1991-1993). From 1988 through 1990, Mr.
Hirsch was Vice President of Finance, Chief Financial Officer of Webster
Clothes, a publicly held national menswear chain of approximately 130 stores.
Joseph T. Dono was named Executive Vice President Marketing in 1993. From
1991 through 1993 he was Senior Vice President Marketing at Nutri System,
Inc., a national private weight-loss company. He served as Senior Vice
President Marketing for Pearle, Inc., an international optical company owned
by Grand Met, from 1986-1991.
George M. Ramos has been a Vice President of the Company since 1986. Mr.
Ramos previously served the Company in various advertising and sales related
capacities as an employee since 1980 and independently since approximately
1970.
William F. Miller has been Vice President Retail Operations since 1992. Mr.
Miller previously served as the Company's Regional Vice President
(1987-1992). Prior to 1987, Mr. Miller served the Company in other retail
management capacities as an employee since 1979.
Compliance with Section 16(a) of the Exchange Act
Section 16(a) of the Securities Exchange Act of 1934 requires the
Company's officers and directors, and persons who own more than ten percent
of a registered class of the Company's equity securities, to file reports of
ownership and changes in ownership with the Securities and Exchange
Commission and the Nasdaq Stock Market. Officers, directors and greater than
ten-percent shareholders are required to furnish the Company with copies of
all Section 16(a) forms they file. On the sole basis of its review of the
copies of such forms received by it, or written representations from certain
reporting persons that no Forms 5 were required for those persons, the
Company believes that during 1994 all filing requirements applicable to its
officers, directors, and greater than ten-percent beneficial owners were
complied with.
ITEM 11. EXECUTIVE COMPENSATION
The following table and notes present, for each of the last three
fiscal years, the compensation provided by the Company to its Chief Executive
Officer and each of the four executive officers whose annual compensation
exceeded $100,000 for the year ended December 31, 1994 (the "Named
Officers").
<PAGE>
SUMMARY COMPENSATION TABLE
Long-Term Compensation
Awards Payouts
Securities All Other
Name and Securities Compen-
Principal Annual Compensation Underlying sation
Position Year Salary($) Bonus($)(1) Options(#) ($)(2)
Eli Shapiro, 1994 $398,000 -- -- --
Chairman and CEO 1993 392,500 -- -- --
1992 398,000 -- -- --
Jonathan E. Raven 1994 195,000 $25,000 30,000 shs --
President and 1993 192,100 6,000 15,000 shs --
Chief Operating 1992 187,500 10,000 -- --
Officer
Larry A. Warshaw, 1994 141,000 -- -- --
Executive Vice 1993 138,900 -- -- --
President 1992 135,000 3,500 -- --
Stephen L. Hirsch 1994 141,000 25,000 20,000 shs --
Executive Vice 1993 138,900 9,000 10,000 shs --
President 1992 132,500 10,000 7,000 shs --
Joseph T. Dono 1994 141,000 5,600 -- --
Executive Vice 1993 41,000 -- 10,000 shs --
President (4) 1992 -- -- -- --
(1) Bonuses are earned in the year specified and paid in the following year.
(2) See "Compensation Committee Interlocks and Insider Participation" for a
description of certain insurance arrangements involving Dr. Shapiro.
(3) Mr. Warshaw's employment was terminated January 1995 as a result of the
notice of cancellation of his employment agreement given by the Company in
January 1994.
(4) Mr. Dono's employment commenced in September 1993.
<PAGE>
OPTION/SAR GRANTED IN LAST FISCAL YEAR
The following table shows, for the Named Officers, additional information
about option grants for the fiscal year ended December 31, 1994. No stock
appreciation rights were granted in 1994.
Individual Grants(1) Potential Realization
% of Total Value at Assumed
Options Annual Rates of Stock
Number of Granted Exercise Price Appreciation
Options in fiscal Price Expira- for Option Term (2)
Name Granted(#) Year ($/Sh) tion Date 5% ($) 10% ($)
Jonathan E.
Raven 30,000 55% $4.00 12/09/04 $75,500 $191,200
Stephen L.
Hirsch 20,000 36% $4.00 12/09/04 $50,300 $127,500
(1) The options were granted pursuant to the Company's Stock Option and
Stock Appreciation Rights Plan at an exercise price equal to the fair market
value of the Company's Common Stock on the date of grant. The options are
exercisable over a period of not more than ten years from the date of grant.
Rights or Limited Rights (rights exercisable only in the event of a change in
control) may be granted in connection with the grant of options. The options
become exercisable at the rate of 25% on January 1, 1995, and 25% each
following January 1. Messrs. Warshaw and Dono did not receive stock options
during the year ended December 31, 1994, and Dr. Shapiro does not participate
in the Company's Stock Option and Stock Appreciation Rights Plan.
(2) Disclosure of the amounts calculated under the 5% and 10% assumed annual
growth rates are mandated by the Securities and Exchange Commission and,
therefore, are not intended to forecast possible future appreciation, if any,
in the Company's stock price. At an assumed 5% annual growth rate over a
ten-year period, the stock price would increase from $4.00 per share to
$6.5156. At an assumed 10% annual growth rate over a ten-year period, the
stock price would increase from $4.00 per share to $10.375.
<PAGE>
AGGREGATED OPTION/SAR EXERCISES IN LAST FISCAL YEAR
AND FISCAL YEAR-END OPTIONS/SAR VALUES
The following table set forth information about stock option exercises during
1994 and unexercised stock options at year end 1994 for the Named Officers.
No stock appreciation rights are issued, exercised, or exercisable.
Securities Value of
Underlying Unexercised
Unexercised In-the-Money
Options at Options at
Year End-- Year End--
Shares Acquired Value Exercisable/ Exercisable/
Name on Exercise (#) Realized ($) Unexercisable Unexercisable
Jonathan E. -- -- 28,750/41,250 -- (1)
Raven
Larry A. -- -- 37,750/ 2,250 -- (1)
Warshaw
Stephen L. -- -- 10,750/29,250 1,900/1,900
(2)
Hirsch
Joseph T. Dono -- -- 5,000/5,000 -- (1)
(1) All exercisable as well as unexercisably options for Mr. Raven, Mr.
Warshaw, and Mr. Dono had an exercise price above the December 31, 1994, fair
market value share price. Accordingly, none of these options were, as of
that date, "In-the-Money."
(2) Mr. Hirsch had a total of 10,000 options with an exercise price of
$3.50, of which only 5,000 are exercisable. The closing price of the
Company's Common Stock on December 31, 1994, was $3.875. The balance of Mr.
Hirsch's options have an exercise price of $4.00 and were, as of December 31,
1994, not "In-the-Money."
Employment, Termination, and Change in Control Arrangements
Each of Dr. Shapiro and Messrs. Raven and Hirsch have employment
contracts. Dr. Shapiro's contract provides for a two-year term expiring
February 29, 1992, and renews annually thereafter unless either party elects
not to renew by notice given at least 90 days prior to the annual expiration
date (neither party so elected in 1994). The contract further provides
severance benefits in the event of termination of employment under certain
circumstances following a "change in control" (as defined) of the Company.
The circumstances precipitating the payment of severance benefits are
termination by the Company other than for (i) death, (ii) disability
commencing prior to a "potential change in control" (as defined), or (iii)
"cause" (as defined); or resignation by Dr. Shapiro for "good reason" (as
defined). Following any such termination, in addition to compensation and
benefits already earned, Dr. Shapiro will be entitled to receive a lump sum
severance payment equal to 2.99 times the average annual compensation paid to
Dr. Shapiro by the Company for the five previous calender years. "Cause" for
termination by the Company is the (i) willful and continued failure of Dr.
Shapiro to substantially perform his duties, (ii) willful, intentional, or
grossly negligent act of Dr. Shapiro which has the demonstrable effect of
substantially injuring the reputation or business of the Company, or (iii)
conviction of any crime which constitutes a felony. "Good reason" for
termination by Dr. Shapiro includes, among other things: (i) the assignment
of duties inconsistent with his status as an officer or a substantial
alteration in responsibilities, (ii) a reduction in base salary and/or annual
bonus, (iii) the relocation of his principal place of business, (iv) the
failure of the Company to maintain compensation plans in which he
participates or to continue providing certain other existing employment
benefits, or (v) disability commencing after a "potential change in control."
The agreement also provides that in the event of a "potential change in
control," Dr. Shapiro, subject to the terms of the agreement, will not resign
from the Company for six months following the occurrence of any such
potential change in control.
Messrs. Raven and Hirsch each executed employment contracts in 1991.
Each contract expired June 30, 1993, was automatically renewed for one year,
and will continue to be automatically renewed for consecutive one-year terms.
Messrs. Raven and Hirsch executed amendments to their employment contracts in
1994. The contracts are otherwise substantially similar to Dr. Shapiro's
except that, in the case of Mr. Raven, the lump sum payment following a
change of control is $250,000, and, in the case of Mr. Hirsch, the lump sum
payment is $175,000 effective January 12, 1995. (This amount increases by
$25,000, up to a maximum of $250,000, as of January 12 each year.) In
connection with each such payment, the Company has the option to pay the
amount over 24 months at 10% interest.
In addition, the employment agreements of Messrs. Raven and Hirsch
provide that except for termination for "cause" (defined as in Dr. Shapiro's
contract), the Company may cancel the agreement at any time without notice
and then provide severance payments to the executive for a period of 12
months. The executive has the right to cancel the agreement without notice
to the Company. The contract of Mr. Raven further provides that unless the
agreement is terminated by the Company for "cause," the Company is obligated
to pay the executive $50,000 upon separation of the executive from the
Company. All the employment contracts provide that following separation from
the Company, the executive will not, for a one-year period (or six-month
period in case of termination for cause) following separation, engage in a
competitive business of optical retailing.
Mr. Warshaw was given 12 months' notice of cancellation of his
employment agreement by the Company in January 1994, in accordance with his
employment agreement. Mr. Warshaw's employment terminated in January 1995.
The Company must provide severance payments for a period of 12 months not to
exceed 100 percent of current regular earnings to Mr. Warshaw commencing
January 1995. The Company paid Mr. Warshaw $50,000 upon separation, as
required by his employment agreement. Mr. Warshaw is also required to not
engage in a competitive business of optical retailing for 12 months following
separation.
<PAGE>
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth, as of April 20, 1995, the names of
and certain information with respect to the beneficial ownership of the
Company's Common Stock for each person who is known by management of the
Company to have been the beneficial owner of more than 5% of the outstanding
Common Stock of the Company, each of the Named Officers and the directors and
officers of the Company as a group. Unless otherwise indicated, each
director and Named Officer has sole voting and investment power with respect
to all shares owned by such person.
Name and Address Amount of Beneficial Ownership
of Beneficial Owners(1) Number Percent of Class
Eli Shapiro ............... 1,137,785(2) 42.2%
Jonathan E. Raven ......... 106,847(3) 3.8%
Larry A. Warshaw .......... 1,300(4) 0.1%
13443 Lakeshore Drive
Fenton, MI 48430
Stephen L. Hirsch ......... 20,750(5) 0.7%
Joseph T. Dono ............ 7,500(5) 0.3%
George M. Ramos ........... 7,500(5) 0.3%
All directors and officers
as a group (9 persons) .... 1,297,162(6) 46.2%
(1) The address for each beneficial owner, except Mr. Warshaw, is 2284
Ballenger Hwy., Flint, MI 48503.
(2) Includes 61,581 shares of Common Stock beneficially owned by his wife,
as to which Dr. Shapiro disclaims beneficial ownership.
(3) Includes 25,581 shares of Common Stock held by his wife and children, as
to which Mr. Raven disclaims beneficial ownership. Also, see "Election of
Class III Directors - Information Concerning Directors".
(4) All issued and unexercised stock options terminated in January 1995 due
to the termination of Mr. Warshaw's employment.
(5) All shares included may be acquired within 60 days pursuant to the
exercise of stock options.
(6) Includes 199,500 shares of Common Stock which members of the group may
acquire within 60 days, pursuant to the exercise of stock options. Also, see
"Election of Class III Directors - Information Concerning Directors".
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
In 1987, Insight Management Corporation, an Indiana corporation
("Insight") franchised the Plymouth, Indiana office of the Company. Joel F.
Raven, a brother of Jonathan E. Raven, is an officer, directors, and 50%
shareholder of Insight. In connection with this transaction, Insight also
executed a promissory note in favor of the Company. The note provides for
interest at 10% and was payable in full on September 1, 1992. The Company
refinanced the note in the amount of $73,439 in September 1992 with a term of
4 years. The note requires equal monthly principal payments plus accrued
interest at the prime rate of interest plus 2-1/2%. In addition to the
promissory note, Insight is also obligated to make monthly sublease payments
of approximately $1,400 to the Company as well as payments pursuant to its
franchise agreement with the Company. Effective December 31, 1991, the
Company agreed to convert certain payables and remodeling costs owed by
Insight into a promissory note requiring equal monthly principal payments
which bears interest at 10% and is payable in full on December 31, 1996. In
1994, the largest aggregate amount of indebtedness outstanding under both
notes was $96,500. As of March 30, 1995, the amount due under the notes was
$35,474. Insight was required to pay an additional amount of $7,800 and
$15,000 in 1994 and 1995, respectively, toward the long-term principal of the
notes pursuant to the terms of the notes.
PART IV
Item 14. EXHIBITS, FINANCIAL STATEMENTS, SCHEDULES AND REPORTS ON FORM 8-K.
3. Exhibits. The following exhibits are included in this amendment:
Exhibit No. Description
10.63 NuVision, Inc. 1994 Stock Option and Stock Appreciation Rights
Plan.
10.64* Third Amendment to Employment Agreement dated January 1, 1995,
between the Company and Jonathan E. Raven.
10.65* Amendment to Employment Agreement dated January 1, 1995,
between the Company and Stephen L. Hirsch.
*Management contracts or compensatory plans required to be filed as an
exhibit.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the registrant has duly caused this report
or amendment to be signed on its behalf by the undersigned, thereunto duly
authorized.
NUVISION, INC.
By: /S/ JONATHAN E. RAVEN
Jonathan E. Raven
President
Dated: April 28, 1995
NUVISION, INC.
1994 STOCK OPTION AND STOCK APPRECIATION RIGHTS PLAN
1. Purpose. This 1994 Stock Option and Stock Appreciation Rights
Plan (the "Plan") is intended to encourage stock ownership by certain key
employees and directors of NUVISION, INC. (the "Corporation"), its divisions
and Subsidiary Corporations, so that they may acquire or increase their
proprietary interest in the Corporation, and to encourage such employees and
directors to remain in the service of the Corporation and to put forth
maximum efforts for the success of its business. It is further intended that
options granted by the Corporation's Executive Compensation Committee (the
"Committee") pursuant to this Plan ("Options") may constitute incentive stock
options ("Incentive Stock Options") within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended, and the regulations issued
thereunder (collectively, the "Code") or options which do not qualify as
Incentive Stock Options ("Nonqualified Stock Options"), as specified by the
Committee. Options granted under the Plan may be accompanied by stock
appreciation rights ("Rights") as hereinafter set forth.
2. Definitions. As used in this Plan, the following words and
phrases shall have the meanings indicated:
(a) "COMMON STOCK" shall mean the Corporation's Class A Common
Stock, par value $0.50 per share.
(b) "DISABILITY" shall mean an Optionee's inability to engage in
any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a
continuous period of not less than twelve (12) months.
(c) "DISINTERESTED PERSON" shall mean any member of the
Corporation's Board of Directors who, at the time discretion under
the Plan is exercised, is a "disinterested person" within the
meaning of Rule of 16b-3 of the General Rules and Regulations under
the Securities Exchange Act of 1934, as amended.
(d) "FAIR MARKET VALUE" per share as of a particular date shall
mean (i) the average of the closing bid and asked prices for the
shares of Common Stock in the over-the-counter market for the last
preceding date on which there was a sale of such Common Stock in
such market, or (ii) if the shares of Common Stock are then listed
on a national securities exchange, the closing sales price per share
of Common Stock on such national securities exchange for the last
preceding date on which there was a sale of such Common Stock on
such exchange, or (iii) if the shares of Common Stock are not then
traded in the over-the-counter market or listed on a national
securities exchange, such value as the Committee in its discretion
may determine.
(e) "PARENT CORPORATION" shall mean any corporation (other than the
grantor corporation) in an unbroken chain of corporations ending
with the grantor corporation if, at the time of granting an Option,
each of the corporations other than the grantor corporation owns
stock possessing fifty percent (50 %) or more of the total combined
voting power of all classes of stock in one of the other
corporations in such chain.
(f) "SUBSIDIARY CORPORATION" shall mean any corporation (other than
the grantor corporation) in an unbroken chain of corporations
beginning with the grantor corporation if, at the time of granting
an Option, each of the corporations other than the last corporation
in the unbroken chain owns stock possessing fifty percent (50 %) or
more of the total combined voting power of all classes of stock in
one of the other corporations in such chain.
(g) "TEN PERCENT SHAREHOLDER" shall mean an Optionee who, at the
time an Incentive Stock Option is granted, owns stock possessing
more than ten percent (10%) of the total combined voting power of
all classes of stock of the Corporation or of its Parent or
Subsidiary Corporation.
3. Administration. The Plan shall be administered by the
Committee, which shall consist of not less than three members of the Board of
Directors of the Corporation (the "Board"), who are Disinterested Persons.
In the absence at any time of a duly appointed Committee, the Plan shall be
administered by those members of the Corporation's Board of Directors who are
Disinterested Persons.
The Committee shall have the authority in its discretion, subject to
and not inconsistent with the express provisions of the Plan, to administer
the Plan and to exercise all the powers and authorities either specifically
granted to it under the Plan or necessary or advisable in the administration
of the Plan, including, without limitation, the authority to grant Options;
to determine which Options shall constitute Nonqualified Stock Options; to
determine which Options (if any) shall be accompanied by Rights; to determine
the purchase price of the shares of Common Stock covered by each Option (the
"Option Price"); to determine the employees and directors to whom, and the
time and times at which, Options shall be granted; to determine the number of
shares to be covered by each Option; to interpret the Plan; to prescribe,
amend and rescind rules and regulations relating to the Plan; to determine
the terms and provisions of the Option Agreements (which need not be
identical) entered into in connection with Options granted under the Plan;
and to make all other determinations deemed necessary or advisable for the
administration of the Plan. The Committee may delegate to one or more of its
members or to one or more agents such administrative duties as it may deem
advisable, and the Committee or any person to whom it has delegated duties as
aforesaid may employ one or more persons to render advice with respect to any
responsibility the Committee or such person may have under the Plan.
The Board shall fill all vacancies, however caused, in the
Committee. The Board may from time to time appoint additional members to the
Committee, and may at any time remove one or more Committee members and
substitute others. One member of the Committee shall be selected by the
Board as chairman. The Committee shall hold its meetings at such times and
places as it shall deem advisable. All determinations of the Committee shall
be made by a majority of its members either present in person or
participating by conference telephone at a meeting or by written consent.
All decisions, determinations and interpretations of the Committee are final
and conclusive on all persons affected thereby. The Committee may appoint a
secretary and make such rules and regulations for the conduct of its business
as it shall deem advisable, and shall keep minutes of its meetings.
No member of the Board or Committee shall be liable for any action
taken or determination made in good faith with respect to the Plan or any
Option or Right granted hereunder.
4. Eligibility. Options may be granted to key employees and
directors (including officers, whether or not they are directors) of the
Corporation or its present or future divisions and Subsidiary Corporations.
In determining the employees and directors to whom Options shall be granted
and the number of shares to be covered by each Option and any accompanying
Rights, the Committee shall take into account the duties of the respective
person, his or her present and potential contributions to the success of the
Corporation and such other factors as the Committee shall deem relevant in
connection with accomplishing the purposes of the Plan. An employee and/or
director to whom an Option has been granted hereunder is sometimes referred
to herein as an "Optionee."
An Optionee shall be eligible to receive more than one grant of an
Option during the term of the Plan, but only on the terms and subject to the
restrictions hereinafter set forth.
5. Stock. The stock subject to the Options and Rights shall be
the Common Stock. Such shares may, in whole or in part, be authorized but
unissued shares or shares which have been or which may be reacquired by the
Corporation. The aggregate number of shares of Common Stock as to which
Options and Rights may be granted from time to time under the Plan shall not
exceed 250,000. The limitation established by the preceding sentence shall
be subject to adjustment as provided in Section 6(j) hereof.
In the event that any outstanding Option under the Plan for any
reason expires or is terminated without having been exercised in full or
surrendered in full in connection with the exercise of a Right, the shares of
Common Stock allocable to the unexercised portion of such Option shall
(unless the Plan shall have been terminated) become available for subsequent
grants of Options and Rights under the Plan.
6. Terms and Conditions of Options. Each Option granted pursuant
to the Plan shall be evidenced by a written Option Agreement between the
Corporation and the Optionee which agreement shall comply with and be subject
to the following terms and conditions:
(a) NUMBER OF SHARES. Each Option Agreement shall state the
number of shares of Common Stock to which the Option relates.
(b) TYPE OF ACTION. Each Option Agreement shall specifically
identify the portion (if any) of the Option which constitutes an Incentive
Stock Option.
(c) OPTION PRICE. Each Option Agreement shall state the
Option Price, which shall be not less than the greater of one hundred percent
(100%) of the Fair Market Value of the shares of Common Stock on the date of
grant of the Option or the per share par value of the Common Stock; provided,
however, that in the case of an Incentive Stock Option granted to a Ten
Percent Shareholder, the Option Price shall not be less than the greater of
one hundred and ten percent (110%) of such Fair Market Value or the per share
par value of the Common Stock. The Option Price shall be subject to
adjustment as provided in Section 6(j) hereof. The date on which the
Committee adopts a resolution expressly granting an Option shall be
considered the day on which such Option is granted.
(d) VALUE OF SHARES. The aggregate Fair Market Value
(determined with respect to each Incentive Stock Option as of the time such
Incentive Stock Option is granted) of the shares of Common Stock with respect
to which Incentive Stock Options are exercisable for the first time by an
Optionee during any calendar year (under all incentive stock option plans, as
defined in Section 422 of the Code, of the Corporation and its Parent and
Subsidiary Corporation) shall not exceed $100,000.
(e) MEDIUM AND TIME OF PAYMENT. The Option Price shall be
paid in full, at the time of exercise, in cash or, with the approval of the
Committee, in shares of Common Stock having a Fair Market Value on the date
of exercise equal to such Option Price or in a combination of cash and such
shares, and may be effected in whole or in part (i) in the case of an
Incentive Stock Option, with monies received from the Corporation at the time
of exercise as a compensatory cash payment, or (ii) with monies borrowed from
the Corporation pursuant to repayment terms and conditions as shall be
determined from time to time by the Committee, in its discretion, separately
with respect to each exercise of Options and each Optionee, provided, that
each such method and time for payment and each such borrowing and terms and
conditions of repayment shall be permitted by and be in compliance with
applicable law.
(f) AND EXERCISE OF OPTIONS. Options shall be exercisable
over the exercise period as and at the times the Committee may determine, as
reflected in the Option Agreement. The exercise period shall be determined
by the Committee, but shall not exceed ten (10) years from the date of grant
in the case of an Incentive Stock Option or ten (10) years and one month from
the date of grant in the case of a nonqualified Stock Option; provided,
however, that in the case of an Incentive Stock Option granted to a Ten
Percent Shareholder, the exercise period shall not exceed five (5) years from
the date of grant of such Incentive Stock Option. The exercise period shall
be subject to earlier termination as provided in Sections 6(g) and 6(h)
hereof. An Option may be exercised, as to any or all full shares of Common
Stock as to which the Option has become exercisable, by giving written notice
of such exercise to the Committee provided that an Option may not be
exercised at any one time as to less than 100 shares (or such number of
shares as to which the Option is then exercisable if such number of shares is
less than 100).
(g) TERMINATION OF SERVICE. Except as provided in this
Section 6(g) and in Section 6(h) hereof, an Option may not be exercised
unless the Optionee is then in the service of the Corporation or a division
or Subsidiary Corporation thereof (or a corporation or a Parent or Subsidiary
Corporation of such corporation issuing or assuming the Option in a
transaction to which Section 424(a) of the Code applies), and unless the
Optionee has remained in continuous service since the date of grant of the
Option. In the event that the service of an Optionee shall terminate (other
than by reason of death, Disability or retirement on or after age 65), all
Options of such Optionee which are exercisable at the time of such
termination shall terminate, unless otherwise expressly provided in the grant
and not earlier terminated in accordance with their terms. Nothing in the
Plan or in any Option granted pursuant hereto shall confer upon an employee
any right to continue in the employ of the Corporation or any of its
divisions or Subsidiary Corporations or interfere in any way with the right
of the Corporation or any such division or Subsidiary Corporation to
terminate such employment at any time.
(h) DEATH, DISABILITY OR RETIREMENT OF OPTIONEE. If an
Optionee shall die while in the service of the Corporation or a Subsidiary
Corporation thereof, or if the Optionee's service shall terminate by reason
of Disability or retirement on or after age 65, all Options theretofore
granted to such Optionee shall, unless earlier terminated in accordance with
their terms, terminate unless exercised by the Optionee or by the Optionee's
estate or by a person who acquired the right to exercise such Option by
bequest or inheritance or otherwise by reason of the death or Disability of
the Optionee, within one year after the date of death or Disability or within
three months after the retirement of the Optionee.
(i) NONTRANSFERABILITY OF OPTIONS. No Options granted under
the Plan may be sold, transferred, assigned, pledged or hypothecated (whether
by operation of law or otherwise), except as provided by will or the
applicable laws of descent or distribution, and no Options shall be subject
to execution, attachment or similar process. Any attempted assignment,
transfer, pledge, hypothecation or other disposition of an Option or levy of
attachment or similar process upon the Option not specifically permitted
herein shall be null and void and without effect. Options may be exercised
only by the Optionee or by his or her guardian or legal representative during
his or her lifetime, or pursuant to Section 6(h), by his or her estate or the
person who acquires the right to exercise such Options upon his or her death
by bequest or inheritance.
(j) EFFECT OF CERTAIN CHANGES.
(1) If there is any change in the number of shares of
Common Stock through the declaration of stock dividends, or through
a recapitalization resulting in stock splits, or combinations or
exchanges of such shares, the number of shares of Common Stock
available for Options or Rights and the number of such shares
covered by outstanding Options or Rights, and the price per share of
such Options or the applicable market value of Rights, shall be
proportionately adjusted by the Committee to reflect any increase or
decrease in the number of issued shares of Common Stock; provided,
however, that any fractional shares resulting from such adjustment
shall be eliminated.
(2) In the event of the proposed dissolution or
liquidation of the Corporation, or in the event of any corporate
separation or division, including, but not limited to, split-up,
split-off or spin-off, the Committee may provide that the holder of
each Option then exercisable shall have the right to exercise such
Option (at its then Option Price) solely for the kind and amount of
shares of stock and other securities, property, cash or any
combination thereof receivable upon such dissolution, liquidation,
or corporate separation or division by a holder of the number of
shares of Common Stock for which such Option might have been
exercised immediately prior to such dissolution, liquidation, or
corporate separation or division; or the Committee may provide, in
the alternative, that each Option granted under the Plan shall
terminate as of a date to be fixed by the Board, provided, however,
that not less than thirty (30) days written notice of the date so
fixed shall be given to each Optionee, who shall have the right,
during the period of thirty (30) days preceding such termination, to
exercise the Options as to all or any part of the shares of Common
Stock covered thereby, including shares as to which such Options
would not otherwise be exercisable.
(3) If while unexercised Options remain outstanding under
the Plan (i) any corporation, person or other entity (other than the
Corporation) makes a tender or exchange offer for the Common Stock
pursuant to which purchases are made ("Offer"), (ii) the
shareholders of the Corporation approve a definitive agreement to
merge or consolidate the Corporation with or into another
corporation or to sell or otherwise dispose of all or substantially
all its assets, or (iii) more than 20% of the Corporation's then
outstanding Common Stock is acquired by any person or group, or (iv)
during any period of two consecutive years, individuals who at the
beginning of such period were members of the Board cease for any
reason to constitute at least a majority thereof (unless the
election, or the nomination for election by the Corporation's
shareholders, of each new director was approved by a vote of at
least two-thirds of the directors then still in office who were
directors at the beginning of the period), then from and after the
date of the first purchase of Common Stock pursuant to such Offer,
or the date of any such shareholder approval, or the date on which
public announcement of the acquisition of such percentage shall have
been made, or the date on which the change in the composition of the
Board set forth above shall have occurred (any such date being
referred to herein as the "Acceleration Date"), all Options shall be
exercisable in full, whether or not otherwise exercisable.
Following the Acceleration Date, (a) the Committee shall, in the
case of a merger, consolidation or sale or disposition of assets,
promptly make an appropriate adjustment to the number and class of
shares of Common Stock available for Options, and to the amount and
kind of shares or other securities or property receivable upon
exercise of any outstanding Options after the effective date of such
transaction, and the price thereof, and (b) the Committee may, in
its discretion, permit the cancellation of outstanding Options in
exchange for a cash payment in an amount per share subject to any
such Option equal to the amount that would be payable pursuant to
Section 8(b) hereof upon exercise of a Limited Right (as defined in
Section 8(a) hereof) under those circumstances.
(4) Paragraphs (2) and (3) of this Section 6(j) shall not
apply to a merger or consolidation in which the Corporation is the
surviving corporation and shares of Common Stock are not converted
into or exchanged for stock, securities of any other corporation,
cash or any other thing of value. Notwithstanding the preceding
sentence, in case of any consolidation or merger of another
corporation into the Corporation in which the Corporation is the
surviving corporation and in which there is a reclassification or
change (including a change in the right to receive cash or other
property) of the shares of Common Stock (other than a change in par
value, or from par value to no par value, or as a result of a
subdivision or combination, but including any change in such shares
into two or more classes or series of shares), the Committee may
provide that the holder of each Option then exercisable shall have
the right to exercise such Option solely for the kind and amount of
shares of stock and other securities (including those of any new
direct or indirect parent of the Corporation), property, cash or any
combination thereof receivable upon such reclassification, change,
consolidation or merger by the holder of the number of shares of
Common Stock for which such Option might have been exercised.
(5) In the event of a change in the Common Stock of the
Corporation as presently constituted, which is limited to a change
of all of its authorized shares with par value into the same number
of shares with a different par value or without par value, the
shares resulting from any such change shall be deemed to be the
Common Stock within the meaning of the Plan.
(6) To the extent that the foregoing adjustments relate
to stock or securities of the Corporation, such adjustments shall be
made by the Committee, whose determination in that respect shall be
final, binding and conclusive, provided that each Incentive Stock
Option granted pursuant to this Plan shall not be adjusted in a
manner that causes such option to fail to continue to qualify as an
Incentive Stock Option within the meaning of Section 422 of the
Code.
(7) Except as hereinbefore expressly provided in this
Section 6(j), the Optionee shall have no rights by reason of any
subdivision or consolidation of shares of stock of any class or the
payment of any stock dividend or any other increase or decrease in
the number of shares of stock of any class or by reason of any
dissolution, liquidation, merger, or consolidation or spin-off of
assets or stock of another corporation, and any issuance by the
Corporation of shares of stock of any class, or securities
convertible into shares of stock of any class, shall not affect, and
no adjustment by reason thereof shall be made with respect to, the
number or price of shares of Common Stock subject to the Option.
The grant of an Option pursuant to the Plan shall not affect in any
way the right or power of the Corporation to make adjustments,
reclassifications, reorganizations or changes of its capital or business
structures or to merge or to consolidate or to dissolve, liquidate, sell or
transfer all or part of its business or assets.
(k) RIGHTS AS A SHAREHOLDER. An Optionee or a transferee of
an Option shall have no rights as a shareholder with respect to any shares
covered by the Option until the date of the issuance of a stock certificate
to him or her for such shares. No adjustment shall be made for dividends
(ordinary or extraordinary, whether in cash, securities or other property) or
distributions or other rights for which the record date is prior to the date
such stock certificate is issued, except as provided in Section 6(j) hereof.
(l) OTHER PROVISIONS. The Option Agreements authorized under
the Plan shall contain such other provisions, including, without limitation,
(i) the granting of Rights, (ii) the imposition of restrictions upon the
exercise of an Option and (iii) in the case of an Incentive Stock Option, the
inclusion of any condition not inconsistent with such Option qualifying as an
Incentive Stock Option, as the Committee shall deem advisable.
7. Stock Appreciation Rights.
(a) The Committee shall have authority to grant Rights to the
holder of any Option granted under the Plan (the "Related SAR Option") with
respect to all or some of the shares of Common Stock covered by such Related
SAR Option. A Right may be granted either at the time of grant of the
Related SAR Option or any time thereafter during its term (except as
otherwise provided in Section 10 hereof). Each Right shall be exercisable
only if, and to the extent that, the Related SAR Option is exercisable and,
in the case of Rights granted in respect of Incentive Stock Options, only
when the Fair Market Value per share of Common Stock exceeds the Option Price
per share. Upon the exercise of a Right, the Related SAR Option shall cease
to be exercisable to the extent of the shares of Common Stock with respect to
which such Right is exercised, but shall be considered to have been exercised
to that extent for purposes of determining the number of shares available for
the grant of further Options and Rights pursuant to the Plan. Upon the
exercise or termination of a Related SAR Option, the Right with respect to
such Related SAR Option shall terminate to the extent of the shares of Common
Stock with respect to which the Related SAR Option was exercised or
terminated.
(b) Upon the exercise of a Right, the holder thereof, subject to
paragraph (e) of this Section 7, shall be entitled at the holder's election
to receive either:
(1) that number of shares of Common Stock equal to the
quotient computed by dividing the Spread (as defined in Paragraph
(c) hereof) by the Fair Market Value per share of Common Stock on
the date of exercise of the Right; provided, however, that in lieu
of fractional shares, the Corporation shall pay cash equal to the
same fraction of the Fair Market share of Common Stock on the date
of exercise of the Right, or
(2) an amount in cash equal to the Spread, or
(3) a combination of cash and a number of shares calculated as
provided in clause (1) of this paragraph (b) (after reducing the
Spread by such cash amount), plus cash in lieu of any fractional
shares as above provided.
(c) The term "Spread" as used in this Section 7 shall mean an
amount equal to the product computed by multiplying (i) the excess of (A) the
Fair Market Value per share of Common Stock on the date the Right is
exercised, over (B) the Option Price per share at which the Related SAR
Option is exercisable, by (ii) the number of shares with respect to which
such Right is being exercised.
(d) Notwithstanding the provisions of this Section 7, a Right may
not be exercised until the expiration of six (6) months from the date of
grant of such Right.
(e) Notwithstanding the provisions of paragraph (b) of this Section
7, the Committee shall have sole discretion to consent to or disapprove an
election to receive cash in whole or in part ("Cash Election") upon the
exercise of a Right. Such consent or disapproval may be given at any time
after the election to which it relates. A Cash Election and related exercise
may be made only during the period beginning on the 3rd business day
following the date of release for publication of the quarterly or annual
summary statements of sales and earnings of the Corporation and ending on the
12th business day following such date. This condition shall be deemed to be
satisfied when the specified financial data is first made publicly available.
If the Committee shall disapprove a Cash Election, the exercise of the Right
with respect to which the Cash Election was made shall be of no effect, but
without prejudice to the right of the holder to exercise such Right in the
future in accordance with its terms.
(f) A Right may be granted to an Optionee irrespective of whether
such Optionee is being granted or has been granted a Limited Right (as
defined in Section 8 hereof).
(g) No Right granted under the Plan may be sold, transferred,
assigned, pledged or hypothecated (whether by operation of law or otherwise),
except as provided by will or the applicable laws of descent or distribution,
and no Right shall be subject to execution, attachment or similar process.
Any attempted assignment, transfer, pledge, hypothecation or other
disposition of a Right or levy of attachment or similar process upon the
Right not specifically permitted herein shall be null and void and without
effect. Rights may be exercised only by the Optionee or by his or her
guardian or legal representative during his or her lifetime, or by his or her
estate or the person who acquires the right to exercise such Rights upon his
or her death by bequest or inheritance.
(h) Each Right shall be granted on such terms and conditions not
inconsistent with the Plan as the Committee may determine.
(i) To exercise a Right, the Optionee shall (i) give written notice
thereof to the Committee in form satisfactory to the Committee specifying (A)
the number of shares of Common Stock with respect to which the Right is being
exercised, and (B) the amount the Optionee elects to receive in cash and
shares of Common Stock with respect to the exercise of the Right, and (ii) if
requested by the Committee, deliver the Option Agreement to the Secretary of
the Corporation, who shall endorse thereon a notation of such exercise and
return the Option Agreement to the Optionee. The date of exercise of a Right
which is validly exercised shall be deemed to be the date on which there
shall have been delivered the instruments referred to in the first sentence
of this paragraph (i).
(j) The Corporation intends that this Section 7 shall comply with
the requirements of Rule 16b-3 and any future rules promulgated in
substitution therefor (the "Rule") under the Securities Exchange Act of 1934,
as amended, during the term of the Plan. Should any provision of this
Section 7 not be necessary to comply with the requirements of the Rule, the
Board may amend the Plan to add to or modify the provisions of the Plan
accordingly
8. Stock Appreciation Rights - Limited Rights.
(a) The Committee shall have authority to grant a stock
appreciation right (referred to in this Section 8 as a "Limited Right') to
the holder of any Option granted under the Plan (the "Related LSAR Option")
with respect to all or some of the shares of Common Stock covered by such
Related LSAR Option A Limited Right may be granted either of the time of
tyrant of the Related LSAR Option or any time thereafter during its term
(except as otherwise provided in Section 10 hereof). A Limited Right may be
granted to an Optionee irrespective of whether such Optionee is being granted
or has been granted a Right under Section 7 hereof. A Limited Right may be
exercised only during the sixty-day period beginning on an "Acceleration
Date" (as defined in Section 60)(3) hereof). Each Limited Right shall be
exercisable only if, and to the extent that, the Related LSAR Option is
exercisable and, in the case of a Limited Right granted in respect of an
Incentive Stock Option, only when the Fair Market Value per share of Common
Stock exceeds the Option Price per share. Notwithstanding the provisions of
the two immediately preceding sentences, no Limited Right may be exercised
until the expiration of six (6) months from the date of the Limited Right.
Upon the exercise of a Limited Right, such Related LSAR Option shall cease to
be exercisable to the extent of the shares of Common Stock with respect to
which such Limited Right is exercised, but shall be considered to have been
exercised to that extent for purposes of determining the number of shares of
Common Stock available for the grant of further Options and Rights pursuant
to this Plan. Upon the exercise or termination of a Related LSAR Option, the
Limited Right with respect to such Related LSAR Option shall terminate to the
extent of the shares of Common Stock with respect to which the Related LSAR
Option was exercised or terminated.
(b) Upon the exercise of a Limited Right, the holder thereof shall
receive in cash whichever of the following amounts is applicable:
(1) in the case of an exercise of Limited Rights by reason of
the occurrence of an Offer (as defined in Section 6(j)(3)(i)
hereof), an amount equal to the Offer Spread (as defined in Section
8(d) hereof);
(2) in the case of an exercise of Limited Rights by reason of
shareholder approval of an agreement described Section 6(j)(3)(ii),
an amount equal to the Merger Spread (as defined in Section 8(f)
hereof);
(3) in the case of an exercise of Limited Rights by reason of
an acquisition of Common Stock described in Section 6(j)(3)(iii), an
amount equal to the Acquisition Spread (as defined in Section 8(h)
hereof); or
(4) in the case of an exercise of Limited Rights by reason of
the change in composition of the Board of Directors described in
Section 6(j)(3)(iv), an amount equal to the Spread (as defined in
Section 8(i) hereof).
Notwithstanding the foregoing, in the case of a Limited Right
granted in respect of an Incentive Stock Option, the holder may not receive
an amount in excess of such amount as will enable such option to qualify as
an Incentive Stock Option.
(c) The term "Offer Price per Share" as used in this Section 8
shall mean, with respect to the exercise of any Limited Right by reason of
the occurrence of an Offer, the greater of (i) the highest price per share of
Common Stock paid in any Offer, which Offer is in effect at any time during
the sixty-day period ending on the date on which such Limited Right is
exercised, or (ii) the highest Fair Market Value per share of the Common
Stock during such sixty-day period. Any securities or property which are
part or all of the consideration paid for shares of Common Stock in the Offer
shall be valued in determining the Offer Price per Share at the higher of (A)
the valuation placed on such securities or property by the corporation,
person or other entity making such Offer or (B) the valuation placed on such
securities or property by the Committee.
(d) The term "Offer Spread" as used in this Section 8 shall mean an
amount equal to the product computed by multiplying (i) the excess of (A) the
Offer Price per Share over (B) the Option Price per share of Common Stock at
which the Related LSAR Option is exercisable, by (ii) the number of shares of
Common Stock with respect to which such Limited Right is being exercised.
(e) The term "Merger Price per Share" as used in this Section 8
shall mean, with respect to the exercise of any Limited Right by reason of
shareholder approval of an agreement described in Section 6(j)(3)(ii), the
greater of (i) the fixed or formula price for the acquisition of shares of
Common Stock specified in such agreement if such fixed or formula price is
determinable on the date on which such Limited Right is exercised, and (ii)
the highest Fair Market Value per share of Common Stock during the sixty-day
period ending on the date on which such Limited Right is exercised. Any
securities or property which are part or all of the consideration paid for
shares of Common Stock pursuant to such agreement shall be valued in
determining the Merger Price per Share at the higher of (A) the valuation
placed on such securities or property by the corporation, person or other
entity which is a party with the Corporation to such agreement or (B) the
valuation placed on such securities or property by the Committee.
(f) The term "Merger Spread" as used in this Section 8 shall mean
an amount equal to the product computed by multiplying (i) the excess of (A)
the Merger Price per Share over (B) the Option Price per share of Common
Stock at which the Related LSAR Option is exercisable, by (ii) the number of
shares of Common Stock with respect to which such Limited Right is being
exercised.
(g) The term "Acquisition Price per Share" as used in this Section
8 shall mean, with respect to the exercise of any Limited Right by reason of
an acquisition of Common Stock described in Section 6(j)(3)(iii), the greater
of (i) the highest price per share stated on the Schedule 13D or amendment
thereto filed by the holder of 20% or more of the Corporation's Common Stock
which gives rise to the exercise of such Limited Right, and (ii) the highest
Fair Market Value per share of Common Stock during the sixty-day period
ending on the date the Limited Right is exercised.
(h) The term "Acquisition Spread" as used in this Section 8 shall
mean an amount equal to the product computed by multiplying (i) the excess of
(A) the Acquisition Price per Share over (B) the Option Price per share of
Common Stock at which the Related LSAR Option is exercisable, by (ii) the
number of shares of Common Stock with respect to which such Limited Right is
being exercised.
(i) The term "Spread" as used in this Section 8 shall mean, with
respect to the exercise of any Limited Right by reason of a change in the
composition of the Board described in Section 6(j)(3)(iv), an amount equal to
the product computed by multiplying (i) the excess of (A) the highest Fair
Market Value per share of Common Stock during the sixty-day period ending on
the date the Limited Right is exercised over (B) the Option Price per share
of Common Stock at which the Related LSAR Option is exercisable, by (ii) the
number of shares of Common Stock with respect to which the Limited Right is
being exercised.
(j) Notwithstanding any other provision of the Plan, no Right
granted pursuant to Section 7 hereof may be exercised at a time when any
Limited Rights held by the holder of such Right may be exercised.
(k) Paragraphs (g) through (j) of Section 7 hereof, with respect to
the transfer and exercise of a Right and compliance of the Plan with the
requirements of the Rule, shall apply to Limited Rights with the same effect
as if set forth in this Section 8.
9. Agreement by Optionee Regarding Withholding Taxes. If the
Committee shall so require, as a condition of exercise, each Optionee shall
agree that:
(a) no later than the date of exercise of any Option or Right
(including a Limited Right) granted hereunder, the Optionee will pay to the
Corporation or make arrangements satisfactory to the Committee regarding
payment of any Federal, state or local taxes of any kind required by law
withheld upon the exercise of such Option or Right, and;
(b) the Corporation shall, to the extent permitted or required by
law, have the right to deduct from any kind otherwise due to the Optionee,
Federal, state or local taxes of any kind required by law to be withheld upon
the exercise of such Option or Right.
10. Term of Plan. Options and Rights (including Limited Rights)
may be granted pursuant to the Plan from time to time within a period of ten
(10) years from the date the Plan is adopted by the Board, or the date the
Plan is approved by the shareholders of the Corporation, whichever is
earlier.
11. Amendment and Termination Of The Plan. The Board may at any
time and from time to time, suspend, terminate, modify or amend the Plan,
provided that any amendment that would materially increase the aggregate
number of shares of Common Stock as to which Options, Rights, and Limited
Rights may be granted under the Plan; materially increase the benefits
accruing to participants under the Plan; or materially modify the
requirements as to eligibility for participation in the Plan, shall be
subject to the approval of the holders of a majority of the Common Stock
issued and outstanding, except that any such increase or modification that
may result from adjustments authorized by Section 6(j) hereof shall not
require such approval. Except as provided in Section 6 hereof, no
suspension, termination, modification or amendment of the Plan may adversely
affect any Option or Right previously granted, unless the written consent of
the Optionee is obtained.
12. Approval of Shareholders. The Plan shall not take effect until
approved by the holders of a majority of the issued and outstanding shares of
Common Stock of the Corporation, which approval must occur within the period
beginning twelve months before and ending twelve months after the date the
Plan is adopted by the Board.
13. Miscellaneous.
(a) Legal and Other Requirements. Shares of Common Stock shall not
be issued with respect to any Options or Rights unless the issuance and
delivery of such shares shall comply with all relevant provisions of law,
including, without limitation, the Securities Act of 1933, as amended, the
rules and regulations promulgated thereunder, any applicable state securities
law, and the requirements of any stock exchange upon which the Common Stock
may then be listed. The Plan is intended to comply with Rule 16b-3, and any
provision of the Plan which the Committee determines in its sole and absolute
discretion to be inconsistent with said Rule shall, to the extent of such
inconsistency, be inoperative and null and void, and shall not affect the
validity of the remaining provisions of the Plan.
(b) Special Circumstances. The inability of the Corporation to
obtain approval from any regulatory body or authority deemed by the
Corporation's counsel to be necessary to the lawful issuance and sale of any
Common Stock hereunder shall relieve the Corporation of any liability in
respect of the non-issuance or sale of such Common Stock. As a condition to
the exercise of an Option or Right, the Corporation may require the person
exercising the Option or Right to make such representations and warranties as
may be necessary to assure the availability of an exemption from the
registration requirements of federal or state securities law. Certificates
for shares of Common Stock issued hereunder may be legended as the Committee
shall deem appropriate.
(c) No Obligation to Exercise Options or Rights. The granting of
an Option or Right shall impose no obligation upon an Optionee to exercise
such Option or Right.
(d) Application of Funds. The proceeds received by the Corporation
from the sale of Common Stock pursuant to Options will be used for general
corporate purposes.
(e) Notices. Every direction, revocation or notice authorized or
required by the Plan shall be deemed delivered to the Corporation (1) on the
date it is personally delivered to the Secretary of the Corporation at its
principal executive offices or (2) when deposited in a United States Post
Office, postage prepaid, addressed to the Secretary at such offices, and
shall be deemed delivered to an Optionee (1) on the date it is personally
delivered to him or her or (2) when deposited in a United States Post Office,
postage prepaid, addressed to him or her at the address shown for him or her
on the records of the Corporation.
(f) Applicable, Law. All questions pertaining to the validity,
construction and administration of the Plan and Options and Rights granted
hereunder shall be determined in conformity with the laws of the state of
Michigan, except to the extent that federal law shall be deemed to apply.
Third Amendment to Employment Agreement
Third Amendment (the "Amendment") made as of January 1, 1995, by and
between NuVision, Inc., a Michigan corporation ("Company"), and Jonathan E.
Raven ("Employee").
Recitals
A. Pursuant to an employment agreement (the "Employment
Agreement") dated as of June 12, 1991, Company continued to employ Employee
as President Chief Operating Officer.
B. The parties wish to amend the Employment Agreement to take into
account a new base salary of Employee.
Agreement
1. Salary. Effective January 1, 1995, the base salary of Employee
shall be $208,650.
2. Life Insurance. Employee shall receive life insurance in the
total amount of $350,000.
3. Disability Insurance. Employee shall receive a long-term
disability insurance providing 70% of regular earnings to a maximum of
$10,000 per month.
4. Ratification. In all other respects, the parties affirm and
ratify the Employment Agreement.
EMPLOYEE: NUVISION, INC.
/s/ Jonathan E. Raven By: /s/ Eli Shapiro
Jonathan E. Raven Eli Shapiro, Chairman
Amendment to Employment Agreement
Amendment (the "Amendment") made as of January 1, 1995, by and
between NuVision, Inc., a Michigan corporation ("Company"), and Stephen L.
Hirsch ("Employee").
Recitals
A. Pursuant to an employment agreement (the "Employment
Agreement") dated as of June 12, 1991, Company continued to employ Employee
as Executive Vice President Chief Financial Officer.
B. The parties wish to amend the Employment Agreement to take into
account a new base salary of Employee.
Agreement
1. Salary. Effective January 1, 1995, the base salary of Employee
shall be $150,870.
2. Life Insurance. Employee shall receive life insurance in the
total amount of $350,000.
3. Disability Insurance. Employee shall receive a long-term
disability insurance providing 70% of regular earnings to a maximum of
$10,000 per month.
4. Ratification. In all other respects, the parties affirm and
ratify the Employment Agreement.
EMPLOYEE: NUVISION, INC.
/s/ Stephen L. Hirsch By: /s/ Jonathan E. Raven
Stephen L. Hirsch Jonathan E. Raven, President
