<PAGE>
As filed with the Securities and Exchange Commission on June 23, 1995
Registration Statement No. 33-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
REXENE CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 75-2104131
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
5005 LBJ FREEWAY
OCCIDENTAL TOWER, SUITE 500 75244
DALLAS, TEXAS (Zip Code)
(Address of Principal Executive Offices)
-----------------------
REXENE CORPORATION 1994 LONG-TERM INCENTIVE PLAN
(Full title of the Plan)
------------------------
BERNARD J. MCNAMEE Copy to:
VICE PRESIDENT, SECRETARY PETER A. LODWICK
AND GENERAL COUNSEL THOMPSON & KNIGHT,
REXENE CORPORATION A PROFESSIONAL CORPORATION
5005 LBJ FREEWAY 1700 PACIFIC AVENUE
OCCIDENTAL TOWER, SUITE 500 SUITE 3300
DALLAS, TEXAS 75244 DALLAS, TEXAS 75201
(Name and address of agent for service) (214) 969-1700
(214) 450-9000
(Telephone number, including
area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Proposed Proposed Maximum Amount
Securities Amount Maximum Aggregate of
to be to be Offering Price Offering Registration
Registered Registered(1) per Share(2) Price Fee
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
par value $.01
per share 882,000 shares $11.625 $10,253,250 $3,538
- ------------------------------------------------------------------------------------------------------------
<FN>
(1) Pursuant to Rule 416 under the Securities Act of 1933, shares issuable upon
any stock split, stock dividend or similar transaction with respect to
these shares are also being registered hereunder.
(2) Computed in accordance with Rule 457(h) under the Securities Act of 1933 on
the basis of the average of the high and low sales prices of the Common
Shares on the New York Stock Exchange on June 16, 1995.
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. PLAN INFORMATION.*
Item 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
_____________
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act of 1933 and the Note to Part I of Form
S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the Securities and
Exchange Commission are incorporated by reference in this Registration
Statement:
(1) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1994;
(2) All other reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 since December 31, 1994;
and
(3) The description of the Common Stock of the Registrant contained in the
Registration Statement filed under Section 12 of the Securities
Exchange Act of 1934 (Registration No. 1-9988), as filed with the
Securities and Exchange Commission on August 14, 1992, including any
amendment or report filed for the purpose of updating such
description.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-
effective amendment which indicates that all securities offered have been sold
or which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing of such documents.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
STATUTORY PROVISIONS
Section 102(b)(7) of the Delaware General Corporation Law enables a
corporation to include in its certification of incorporation a provision
eliminating or limiting the personal liability of members of its board of
directors to the corporation or its stockholders for monetary
<PAGE>
damages for violations of a director's fiduciary duty as a director. Such a
provision does not have any effect on the availability of equitable remedies,
such as an injunction or rescission, for breach of fiduciary duty. In addition,
such a provision may not eliminate or limit the liability of a director for
breaching his duty of loyalty to the corporation or its stockholders, failing to
act in good faith, engaging in intentional misconduct or knowingly violating a
law, paying an unlawful dividend or approving an illegal stock repurchase, or
executing any transaction from which the director obtained an improper personal
benefit.
Section 145 of the Delaware General Corporation Law empowers a corporation
to indemnify any person who was or is a party to or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation), by reason of the fact that he is or was
a director, officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorney's fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful and except that no
indemnification may be made in respect of any claim, issue or matter as to which
such person has been adjudged to be liable to the corporation unless and only to
the extent that the Delaware Court of Chancery or the court in which such action
or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses as the
court deems proper. With respect to actions or suits by or in the right of the
corporation, such indemnification is limited to expenses (including attorney's
fees) actually and reasonably incurred by such person in connection with the
defense or settlement of such action or suit. To the extent that such directors
or officers have been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to above or in defense of any claim, issue
or matter therein a corporation is required to indemnify its directors and
officers against expenses (including attorney's fees) actually and reasonably
incurred by such officers and directors in connection therewith.
Indemnification can be made by the corporation only upon a determination
made in the manner prescribed by the statute that indemnification is proper in
the circumstances because the party seeking indemnification has met the
applicable standard of conduct as set forth in the Delaware General Corporation
Law. The indemnification provided by the Delaware General Corporation Law is
not exclusive of any other rights to which those seeking indemnification may be
entitled under any bylaw, agreement, vote of stockholders or disinterested
directors, or otherwise. Unless otherwise provided when authorized or ratified,
the indemnification provided by the Delaware General Corporation Law continues
as to a person who has ceased to be a director, officer, employee or agent and
insures to the benefit of the heirs, executors and administrators of such a
person.
A corporation also has the power to purchase and maintain insurance on
behalf of any person covering any liability incurred by such person in his
capacity as a director, officer,
-2-
<PAGE>
employee or agent of the corporation, or arising out of his status as such,
whether or not the corporation has the power to indemnify him against such
liability.
THE REGISTRANT'S CHARTER AND BYLAW PROVISIONS
Article VI, Section 6.1 of the Registrant's Amended and Restated Bylaws
provides that the Registrant shall indemnify all directors and officers of the
Company to the fullest extent now or hereafter permitted by the Delaware General
Corporation Law. Under such provisions, any director or officer, who in his
capacity as such, is made or threatened to be made a party to any suit or
proceeding, shall be indemnified if such director or officer acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the Registrant and, with respect to any criminal proceeding, had no
reasonable cause to believe his conduct was unlawful. The Amended and Restated
Bylaws and the Delaware General Corporation Law further provide that such
indemnification is not exclusive of any other rights to which such individuals
may be entitled under any bylaws, agreement, vote of stockholders or
disinterested directors or otherwise.
In addition, Article VII of the Registrant's Restated Certificate of
Incorporation provides that to the fullest extent now or hereafter permitted by
Delaware law, the Registrant's directors will not be liable to the Registrant
and its stockholders for monetary damages for breach of fiduciary duty as a
director.
Item 8. EXHIBITS.
The following documents are filed as exhibits to this Registration
Statement:
EXHIBIT NO. DESCRIPTION
4.1 Rexene Corporation 1994 Long-Term Incentive Plan.
5.1 Opinion of Thompson & Knight, A Professional Corporation.
23.1 Consent of Thompson & Knight, A Professional Corporation
(included in the opinion of Thompson & Knight, P.C. filed
herewith as Exhibit 5.1).
23.2 Consent of Price Waterhouse LLP, independent accountants, to
incorporation of reports by reference.
24.1 Power of Attorney (included on signature page of this
Registration Statement).
-3-
<PAGE>
Item 9. UNDERTAKINGS.
(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section
do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with
or furnished to the Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The Registrant hereby further undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 and each filing of the Plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against
-4-
<PAGE>
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
-5-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Dallas, State of Texas on the 5th day of June, 1995.
REXENE CORPORATION
By /S/ KEVIN W. MCALEER
-------------------------------
Kevin W. McAleer,
Executive Vice President and
Chief Financial Officer
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 dates indicated. Each person whose signature appears
below hereby constitutes and appoints Andrew J. Smith, Lavon N. Anderson and
Kevin W. McAleer, and each of them (with full power to act alone), his true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign on his behalf individually and in each capacity stated below
any and all 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 in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them or their substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
SIGNATURE TITLE DATE
- --------- ----- ----
/S/ ARTHUR L. GOESCHEL Chairman of the Board June 5, 1995
- -------------------------
Arthur L. Goeschel
/S/ ANDREW J. SMITH Chief Executive Officer June 5, 1995
- ------------------------- and Director
Andrew J. Smith (principal executive officer)
-6-
<PAGE>
SIGNATURE TITLE DATE
- --------- ----- ----
/S/ LAVON N. ANDERSON President, Chief Operating Officer June 5, 1995
- ------------------------- and Director
Lavon N. Anderson
/S/ KEVIN W. MCALEER Executive Vice President and June 5, 1995
- ------------------------- Chief Financial Officer
Kevin W. McAleer (principal accounting officer)
/S/ GEFF PERERA Vice President and Controller June 5, 1995
- ------------------------- (principal accounting officer)
Geff Perera
/S/ HARRY B. BARTLEY, JR. Director June 5, 1995
- -------------------------
Harry B. Bartley, Jr.
/S/ R. JAMES COMEAUX Director June 5, 1995
- -------------------------
R. James Comeaux
/S/ WILLIAM B. HEWITT Director June 5, 1995
- -------------------------
William B. Hewitt
/S/ ILAN KAUFTHAL Director June 5, 1995
- -------------------------
Ilan Kaufthal
/S/ CHARLES E. O'CONNELL Director June 5, 1995
- -------------------------
Charles E. O'Connell
/S/ HEINN F. TOMFOHRDE, III Director June 5, 1995
- ---------------------------
Heinn F. Tomfohrde, III
-7-
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER EXHIBIT PAGE
------ ------- ----
<S> <C> <C>
4.1 Rexene Corporation 1994 Long-Term Incentive Plan
5.1 Opinion of Thompson & Knight, A Professional Corporation.
23.1 Consent of Thompson & Knight, A Professional Corporation (included
in the opinion of Thompson & Knight, P.C. filed herewith
as Exhibit 5.1).
23.2 Consent of Price Waterhouse LLP, independent accountants, to
incorporation of reports by reference.
24.1 Power of Attorney (included on signature page of this
Registration Statement.
</TABLE>
-8-
<PAGE>
REXENE CORPORATION
1994 LONG-TERM INCENTIVE PLAN
ARTICLE 1
ESTABLISHMENT AND PURPOSE
1.1 ESTABLISHMENT AND EFFECTIVE DATE. Rexene Corporation, a Delaware
corporation (the "Corporation"), hereby establishes a stock incentive plan to be
known as the "Rexene Corporation 1994 Long-Term Incentive Plan" (the "Plan").
The Plan shall become effective as of October 1, 1994, subject to the approval
of the Corporation's stockholders at the 1995 Annual Meeting of Stockholders. In
the event that such stockholder approval is not obtained, any awards made
hereunder shall be cancelled and all rights of employees with respect to such
awards shall thereupon cease. Upon adoption of the Plan by the Management
Development and Compensation Committee of the Board of Directors of the
Corporation (the "Committee"), awards may be made by the Committee as provided
herein.
1.2 PURPOSE. The purpose of the Plan is to encourage and enable key
salaried employees of the Corporation and its subsidiaries to acquire a
proprietary interest in the Corporation through the ownership of the
Corporation's common stock, par value $.01 per share ("Common Stock"), and other
rights with respect to the Common Stock. Such ownership will provide such
employees with a more direct stake in the future welfare of the Corporation and
encourage them to remain with the Corporation and its subsidiaries. It is also
expected that the Plan will encourage qualified persons to seek and accept
employment with the Corporation and its subsidiaries.
ARTICLE 2
AWARDS
2.1 FORM OF AWARDS. Awards under the Plan may be granted in any one or all
of the following forms: (i) nonqualified stock options ("Options"), as described
in Article 5 hereof; (ii) stock appreciation rights ("Stock Appreciation
Rights"), as described in Article 6 hereof, which may be awarded either in
tandem with Options ("Tandem Stock Appreciation Rights") or on a stand-alone
basis ("Nontandem Stock Appreciation Rights"); (iii) shares of Common Stock
which are restricted as provided in Article 9 hereof ("Restricted Shares"); (iv)
units representing shares of Common Stock, as described in Article 10 hereof
("Performance Shares"); and (v) units which do not represent shares of Common
Stock but which may be paid in the form of Common Stock, as described in Article
11 hereof ("Performance Units").
2.2 MAXIMUM SHARES AVAILABLE. The aggregate number of shares of Common
Stock that may be issued under the Plan shall not exceed 882,000 shares. Shares
of Common Stock issued pursuant to the Plan may be either authorized but
unissued shares or issued shares reacquired by the Corporation. Shares shall be
deemed to have been issued under the Plan only to the extent actually issued and
delivered pursuant to an award. In the event that any Options or Nontandem Stock
Appreciation Rights under the Plan expire unexercised or are terminated,
surrendered or cancelled without being exercised in whole or in part for any
reason, or any Restricted Shares, Performance Shares or Performance Units are
forfeited, or if such awards are settled in cash in lieu of shares of Common
Stock, then the shares subject to such awards shall, to the extent permitted
under Rule 16b-3 (as defined in Section 3.1 hereof), be available for subsequent
awards under the Plan, upon such terms as the Committee may determine; provided,
however, that shares subject to an Option that is cancelled in connection with
the exercise of related Tandem Stock Appreciation Rights shall not be available
for subsequent awards under the Plan to the extent of the shares actually issued
upon exercise of such rights. Upon the exercise of any Stock Appreciation Rights
granted hereunder, the number of shares
1
<PAGE>
reserved for issuance under the Plan shall be reduced only to the extent that
shares of Common Stock are actually issued in connection with the exercise of
such rights. The aggregate number of shares of Common Stock that may be issued
under the Plan shall be subject to adjustment in the same manner as is provided
in Article 12 hereof with respect to shares of Common Stock subject to
outstanding Options.
2.3 RETURN OF PRIOR AWARDS. As a condition to any subsequent award under
the Plan, the Committee shall have the right, at its discretion, to require
employees to return to the Corporation awards previously granted under the Plan.
Subject to the provisions of the Plan, such new award shall be upon such terms
and conditions as are specified by the Committee at the time the new award is
granted.
ARTICLE 3
ADMINISTRATION
3.1 COMMITTEE. Awards under the Plan shall be determined, and the Plan
shall be administered, by the Committee as appointed from time to time by the
Board of Directors of the Corporation (the "Board"), which Committee shall be
(a) comprised solely of two or more members of the Board and (b) constituted so
as to permit the Plan to comply with Rule 16b-3 under the Securities Exchange
Act of 1934, as amended ("Rule 16b-3"); provided, however, that with respect to
the grant of Options or Stock Appreciation Rights under the Plan to an employee
who is a "covered employee" under Section 162(m) of the Internal Revenue Code of
1986, as amended (the "Code"), and other actions to be taken by the Committee
with respect to such Options or Stock Appreciation Rights, the Committee shall
consist solely of those persons otherwise constituting the Committee who meet
the requirements of clauses (a) and (b) above and are also at the time of such
grant or other action "outside directors" for purposes of Section 162(m) of the
Code.
3.2 POWERS OF COMMITTEE. Subject to the express provisions of the Plan,
the Committee shall have the power and authority: (i) to grant Options and to
determine the purchase price of the Common Stock covered by each Option, the
term of each Option, the number of shares of Common Stock to be covered by each
Option and any performance objectives or vesting standards applicable to each
Option; (ii) to determine which Options, if any, shall be accompanied by Tandem
Stock Appreciation Rights; (iii) to grant Tandem Stock Appreciation Rights and
Nontandem Stock Appreciation Rights and to determine the terms and conditions of
such rights; (iv) to grant Restricted Shares and to determine the terms of the
restricted period and other conditions and restrictions applicable to such
shares; (v) to grant Performance Shares and Performance Units and to determine
the performance objectives, performance periods and other conditions applicable
to such shares or units; and (vi) to determine the employees to whom, and the
time or times at which, Options, Stock Appreciation Rights, Restricted Shares,
Performance Shares and Performance Units shall be granted. The Committee shall
have such additional powers as are delegated to it by the other provisions of
the Plan.
3.3 DELEGATION. The Committee may delegate to one or more of its members
or to any other person or persons such ministerial duties with respect to the
Plan as it may deem advisable; provided, however, that the Committee may not
delegate any of its responsibilities hereunder if such delegation would cause
the Plan to fail to comply with the "disinterested administration" requirement
of Rule 16b-3 or if such duties are required to be performed by the Committee to
satisfy an exemption from the deduction limits of Section 162(m) of the Code.
The Committee may also employ attorneys, consultants, accountants or other
professional advisors and shall be entitled to rely upon the advice, opinions or
valuations of any such advisors.
3.4 INTERPRETATIONS. The Committee shall have sole discretionary authority
to interpret the terms of the Plan and the respective agreements executed
hereunder, to adopt and revise rules, regulations and policies to administer the
Plan and to make any other determinations and perform such other actions that it
believes to be necessary or advisable for the administration of the Plan. The
2
<PAGE>
Committee may correct any defect or supply any omission or reconcile any
inconsistency in any agreement executed under the Plan in the manner and to the
extent the Committee shall deem expedient to carry such agreement into effect.
All actions taken and interpretations and determinations made by the Committee
in good faith shall be final and binding upon the Corporation, all employees who
have received awards under the Plan and all other interested persons.
3.5 LIABILITY; INDEMNIFICATION. No member of the Committee, nor any person
to whom ministerial duties have been delegated, shall be personally liable for
any action, interpretation or determination made with respect to the Plan or
awards made hereunder, and each member of the Committee shall be fully
indemnified and protected by the Corporation with respect to any liability he or
she may incur with respect to any such action, interpretation or determination,
to the extent permitted by applicable law and to the extent provided in the
Corporation's Certificate of Incorporation and Bylaws as amended from time to
time, or under any agreement between any such member and the Corporation.
ARTICLE 4
ELIGIBILITY
Awards under the Plan may be made to all salaried key employees of the
Corporation or any of its subsidiaries (subject to such requirements as may be
prescribed by the Committee); provided, however, that no employee may receive
Options or Stock Appreciation Rights under the Plan relating to more than
100,000 shares of Common Stock in the aggregate in any fiscal year of the
Corporation (subject to adjustment in the same manner as is provided in Article
12 hereof with respect to shares of Common Stock subject to outstanding
Options). The limitation set forth in the proviso of the immediately preceding
sentence shall be applied in a manner that will permit compensation generated
under the Plan to constitute "performance-based" compensation for purposes of
Section 162(m) of the Code, including, without limitation, counting against such
maximum number of shares, to the extent required under Section 162(m) of the
Code, any shares subject to Options or Stock Appreciation Rights that are
cancelled or repriced. Awards may be made to a director of the Corporation who
is not also a member of the Committee, provided that the director is also a
salaried key employee. In determining the employees to whom awards shall be
granted and the number of shares, rights or units to be covered by each award,
the Committee shall take into account the nature of the services rendered by
such employees, their present and potential contributions to the success of the
Corporation and its subsidiaries and such other factors as the Committee in its
sole discretion shall deem relevant. Awards may be granted under the Plan to the
same individual on more than one occasion. As used in the Plan, the term
"subsidiary" shall mean any present or future company (whether a corporation,
partnership, joint venture or other form of entity) in which the Corporation
owns, directly or indirectly, more than 50% of the economic interests.
ARTICLE 5
OPTIONS
5.1 GRANT OF OPTIONS. Options may be granted under the Plan for the
purchase of shares of Common Stock. Options shall be granted in such form and
upon such terms and conditions, including the satisfaction of corporate or
individual performance objectives and other vesting standards, not inconsistent
with the Plan as the Committee shall from time to time determine. Options
granted under the Plan shall be nonqualified stock options which shall not be
treated as incentive stock options under Section 422 of the Code.
5.2 OPTION PRICE. The purchase price per share of Common Stock under each
Option shall be specified by the Committee, but in no event shall it be less
than the per share par value of the Common Stock. The purchase price so
determined shall also be applicable in connection with the exercise of any
Tandem Stock Appreciation Rights granted with respect to such Option.
3
<PAGE>
5.3 TERM AND EXERCISE. The term of each Option granted hereunder shall be
determined by the Committee. Options shall be exercisable in whole or in
installments, and at such times, as shall be determined by the Committee. The
Committee, in its discretion, may accelerate the exercise date of any Option to
any date following the date of grant.
5.4 PAYMENT. Common Stock purchased upon the exercise of Options shall be
paid for in full at the time of purchase. Such payment shall be made in cash or,
in the discretion of the Committee, through delivery of already owned shares of
Common Stock or a combination of cash and such shares (including an actual or
deemed multiple series of exchanges of such shares), in accordance with
procedures to be established by the Committee. Any shares so delivered shall be
valued at their Market Price (as defined in Section 15.3 hereof) on the date of
exercise. As soon as practicable after receipt of notice of exercise and payment
in accordance with procedures to be established by the Committee, the
Corporation or its agent shall deliver to the person exercising the Option (or
his or her designee) a certificate for the number of whole shares of Common
Stock purchased upon such exercise. Cash shall be delivered in lieu of any
fractional shares.
5.5 RIGHTS AS A STOCKHOLDER. A recipient of Options shall have no rights
as a stockholder with respect to any shares issuable or transferable upon
exercise thereof until the date a stock certificate is issued to such recipient
representing such shares. Except as otherwise expressly provided in the Plan, no
adjustment shall be made for dividends or other distributions on or with respect
to the Common Stock for which the record date is prior to the date such stock
certificate is issued.
5.6 GENERAL RESTRICTIONS.
(a) Each Option granted under the Plan shall be subject to the requirement
that, if at any time the Board shall determine, in its discretion, that the
listing, registration or qualification of the shares issuable or transferable
upon exercise thereof upon any securities exchange or under any federal or state
law, or the consent or approval of any governmental regulatory body, is
necessary or desirable as a condition of, or in connection with, the granting of
such Option or the issue, transfer or purchase of shares thereunder, such Option
may not be exercised in whole or in part unless such listing, registration,
qualification, consent or approval shall have been effected or obtained free of
any conditions not acceptable to the Board.
(b) The Board or the Committee may, in connection with the granting of any
Option, require the individual to whom the Option is to be granted to enter into
an agreement with the Corporation stating that as a condition precedent to each
exercise of the Option, in whole or in part, such individual shall if then
required by the Corporation represent to the Corporation in writing that such
exercise is for investment only and not with a view to distribution, and also
setting forth such other terms and conditions as the Board or the Committee may
prescribe.
5.7 CANCELLATION OF STOCK APPRECIATION RIGHTS. Upon the exercise of all or
a portion of an Option, any related Tandem Stock Appreciation Rights shall be
cancelled with respect to a number of shares of Common Stock equal to the number
of shares purchased pursuant to such exercise.
ARTICLE 6
STOCK APPRECIATION RIGHTS
6.1 GRANT OF STOCK APPRECIATION RIGHTS. Tandem Stock Appreciation Rights
may be awarded by the Committee in connection with all or any portion of any
Option granted under the Plan, either at the time the Option is granted or
thereafter at any time prior to the exercise, termination or expiration of the
Option. Nontandem Stock Appreciation Rights may also be granted by the Committee
at any time. At the time of grant of Nontandem Stock Appreciation Rights, the
Committee shall specify the number of shares of Common Stock covered by such
rights and the base price of shares of Common Stock to be used in connection
with the calculation described in Section 6.4 hereof. The base price of
Nontandem Stock Appreciation Rights shall be determined by the Committee in its
sole discretion and
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may be equal to, or greater or less than, the Market Price of a share of Common
Stock on the date of grant. Stock Appreciation Rights shall be subject to such
terms and conditions not inconsistent with the other provisions of the Plan as
the Committee shall determine.
6.2 LIMITATIONS ON EXERCISE. Tandem Stock Appreciation Rights shall be
exercisable only to the extent that the related Option is exercisable and shall
be exercisable only for such period as the Committee may determine (which period
may expire prior to the expiration date of the related Option). Upon the
exercise of all or a portion of Tandem Stock Appreciation Rights, the related
Option shall be cancelled with respect to an equal number of shares of Common
Stock. Nontandem Stock Appreciation Rights shall be exercisable during such
period as the Committee shall determine. Subject to the provisions of the first
sentence of this Section 6.2, the Committee, in its discretion, may accelerate
the exercise date of any Stock Appreciation Rights to any date following the
date of grant.
6.3 SURRENDER AND EXCHANGE OF TANDEM STOCK APPRECIATION RIGHTS. Subject to
the provisions of Section 6.6 hereof, Tandem Stock Appreciation Rights shall
entitle the recipient to surrender to the Corporation unexercised the related
Option, or portion thereof, and to receive from the Corporation in exchange
therefor that number of shares of Common Stock having an aggregate Market Price
as of the date of exercise of such Tandem Stock Appreciation Rights equal to (A)
the excess of (i) the Market Price of one share of Common Stock as of the date
the Tandem Stock Appreciation Rights are exercised over (ii) the purchase price
per share specified in such Option, multiplied by (B) the number of shares of
Common Stock subject to the Option, or portion thereof, which is surrendered.
Cash shall be delivered in lieu of any fractional shares.
6.4 EXERCISE OF NONTANDEM STOCK APPRECIATION RIGHTS. Subject to the
provisions of Section 6.6 hereof, the exercise of Nontandem Stock Appreciation
Rights shall entitle the recipient to receive from the Corporation that number
of shares of Common Stock having an aggregate Market Price as of the date of
exercise of such Nontandem Stock Appreciation Rights equal to (A) the excess of
(i) the Market Price of one share of Common Stock as of the date the Nontandem
Stock Appreciation Rights are exercised over (ii) the base price of the shares
covered by the Nontandem Stock Appreciation Rights, multiplied by (B) the number
of shares of Common Stock covered by the Nontandem Stock Appreciation Rights, or
the portion thereof being exercised. Cash shall be delivered in lieu of any
fractional shares.
6.5 SETTLEMENT OF STOCK APPRECIATION RIGHTS. As soon as is reasonably
practicable after the exercise of any Stock Appreciation Rights, the Corporation
shall (i) issue, in the name of the recipient, stock certificates representing
the total number of full shares of Common Stock to which the recipient is
entitled pursuant to Section 6.3 or 6.4 hereof and deliver to the recipient an
amount in cash equal to the Market Price, as of the date of exercise, of any
resulting fractional share, and (ii) if the Committee causes the Corporation to
elect to settle all or part of its obligations arising out of the exercise of
such Stock Appreciation Rights in cash pursuant to Section 6.6 hereof, deliver
to the recipient an amount in cash equal to the Market Price, as of the date of
exercise, of the shares of Common Stock it would otherwise be obligated to
deliver.
6.6 CASH SETTLEMENT. The Committee, in its discretion, may cause the
Corporation to settle all or any part of its obligations arising out of the
exercise of Stock Appreciation Rights by the payment of cash in lieu of all or
part of the shares of Common Stock it would otherwise be obligated to deliver in
an amount equal to the Market Price of such shares on the date of exercise.
ARTICLE 7
NONTRANSFERABILITY OF OPTIONS AND STOCK APPRECIATION RIGHTS
No Option or Stock Appreciation Rights may be transferred, assigned, pledged
or hypothecated (whether by operation of law or otherwise), except as provided
by will or pursuant to the applicable laws of descent and distribution, and no
Option or Stock Appreciation Rights shall be subject to execution, attachment or
similar process. Any attempted transfer, assignment, pledge, hypothecation
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or other disposition of an Option or Stock Appreciation Rights not specifically
permitted by the Plan shall be null and void and without effect. Options and
Stock Appreciation Rights may be exercised during the recipient's lifetime only
by the recipient or his or her guardian or legal representative, or following
his or her death pursuant to Section 8.3 hereof.
Notwithstanding anything to the contrary in the preceding paragraph, the
Committee may, in its sole discretion, cause the written agreement relating to
any Options or Stock Appreciation Rights granted hereunder to provide that the
recipient of such Options or Stock Appreciation Rights may transfer any of such
Options or Stock Appreciation Rights other than by will or pursuant to the
applicable laws of descent and distribution in any manner authorized under
applicable law; provided, however, that in no event may the Committee permit any
transfers which would cause the Plan to fail to satisfy the applicable
requirements of Rule 16b-3.
ARTICLE 8
EFFECT OF TERMINATION OF EMPLOYMENT,
DISABILITY, RETIREMENT OR DEATH
8.1 GENERAL RULE.
(a) Except as expressly determined by the Committee in its sole discretion,
no Option or Stock Appreciation Rights shall be exercisable after three months
following the recipient's termination of employment with the Corporation or a
subsidiary, unless such termination of employment occurs by reason of Disability
(as defined in Section 8.2 hereof), Retirement (as defined in Section 8.2
hereof) or death.
(b) Options and Stock Appreciation Rights shall not be affected by any
change of employment of the recipient so long as the recipient continues to be
employed by either the Corporation or a subsidiary. The Committee may, in its
sole discretion, cause any Option or Stock Appreciation Rights to be forfeited
immediately upon an employee's termination of employment if the employee was
terminated for one (or more) of the following reasons: (i) conduct involving
moral turpitude or fraud, regardless of the context, which conduct shall be
conclusively presumed if the employee is convicted of, or enters a plea of NOLO
CONTENDERE or similar plea to, a crime involving moral turpitude or fraud; (ii)
repeated intoxication by alcohol or drugs during the performance of the
employee's duties; (iii) malfeasance in the conduct of the employee's duties,
including misuse or diversion of funds of the Corporation or a subsidiary,
embezzlement or willful and material misrepresentations or concealments on any
reports submitted to the Corporation or a subsidiary; (iv) repeated material
failure by the employee to perform his or her duties as an officer; or (v)
material failure to follow or comply with the reasonable and lawful directives
of the Board or the written policies of the Corporation or a subsidiary. It
shall be within the sole discretion of the Committee to determine whether the
employee's termination was for one of the foregoing reasons, and the decision of
the Committee shall be final and conclusive.
8.2 DISABILITY OR RETIREMENT. Except as expressly provided otherwise in
the written agreement relating to any Option or Stock Appreciation Rights
granted under the Plan, in the event of the Disability or Retirement of a
recipient of Options or Stock Appreciation Rights, the Options or Stock
Appreciation Rights that are held by such recipient on the date of such
Disability or Retirement, whether or not otherwise exercisable on such date,
shall be exercisable at any time until the earlier of (i) the expiration date of
the Options or Stock Appreciation Rights or (ii) two years following the date of
such Disability or Retirement, at which time such Options or Stock Appreciation
Rights shall terminate. "Disability" shall mean a termination of employment with
the Corporation or a subsidiary because of a disability, within the meaning of
the disability plans or policies of the Corporation or its subsidiaries
applicable to the employee, as determined by the Committee in its sole
discretion. "Retirement" shall mean a termination of employment with the
Corporation or a subsidiary either
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(i) on a voluntary basis by a recipient who is at least 60 years of age or (ii)
otherwise with the written consent of the Committee in its sole discretion. The
decision of the Committee shall be final and conclusive.
8.3 DEATH.
(a) Except as expressly provided otherwise in the written agreement relating
to any Option or Stock Appreciation Rights granted under the Plan, in the event
of the death of a recipient of Options or Stock Appreciation Rights while an
employee of the Corporation or a subsidiary, the Options or Stock Appreciation
Rights that are held by such employee at the date of death, whether or not
otherwise exercisable on the date of death, shall be exercisable by the
beneficiary designated by the employee for such purpose (the "Designated
Beneficiary"), or if no Designated Beneficiary shall be appointed or if the
Designated Beneficiary shall predecease the employee, by the employee's personal
representatives, heirs or legatees, at any time until the earlier of (i) the
expiration date of the Options or Stock Appreciation Rights or (ii) two years
following the date of death, at which time such Options or Stock Appreciation
Rights shall terminate.
(b) In the event of the death of a recipient of Options or Stock
Appreciation Rights following a termination of employment with the Corporation
or a subsidiary, if such death occurs before the Options or Stock Appreciation
Rights expire or otherwise terminate, the Options or Stock Appreciation Rights
that are held by such recipient at the date of death shall be exercisable by
such recipient's Designated Beneficiary, or if no Designated Beneficiary shall
be appointed or if the Designated Beneficiary shall predecease such recipient,
by such recipient's personal representatives, heirs or legatees, to the same
extent such Options or Stock Appreciation Rights were exercisable by the
recipient at the date of death.
ARTICLE 9
RESTRICTED SHARES
9.1 GRANT OF RESTRICTED SHARES. The Committee may from time to time cause
the Corporation to grant Restricted Shares under the Plan to eligible employees,
subject to such restrictions, conditions and other terms not inconsistent with
the Plan as the Committee may determine.
9.2 RESTRICTIONS. At the time a grant of Restricted Shares is made, the
Committee shall establish a period of time (the "Restricted Period") applicable
to such Restricted Shares. Each grant of Restricted Shares may be subject to a
different Restricted Period. The Committee may, in its sole discretion, at the
time a grant is made, prescribe restrictions in addition to or other than the
expiration of the Restricted Period, including the satisfaction of corporate or
individual performance objectives, which shall be applicable to all or any
portion of the Restricted Shares. The Committee may also, in its sole
discretion, shorten or terminate the Restricted Period or waive all or any
portion of any other restrictions applicable to all or any portion of the
Restricted Shares. None of the Restricted Shares may be sold, transferred,
assigned, pledged or otherwise encumbered or disposed of during the Restricted
Period or prior to the satisfaction of any other restrictions prescribed by the
Committee with respect to such Restricted Shares.
9.3 RESTRICTED SHARE CERTIFICATES. The Corporation shall issue, in the
name of each employee to whom Restricted Shares have been granted (or, at the
option of the Corporation, in the name of a nominee of the Corporation), stock
certificates representing the total number of Restricted Shares granted to the
employee, as soon as reasonably practicable after the grant. The Corporation or
its agent, at the direction of the Committee, shall hold such certificates,
properly endorsed for transfer, for the employee's benefit until such time as
the Restricted Shares are forfeited to the Corporation or the restrictions lapse
or are waived or removed.
9.4 RIGHTS OF HOLDERS OF RESTRICTED SHARES. Holders of Restricted Shares
shall have the right to vote such shares, to receive any cash dividends with
respect to such shares and, except as otherwise
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expressly provided in the Plan or the award agreement relating to such shares,
to enjoy all other stockholder rights. All distributions, if any, received by an
employee with respect to Restricted Shares as a result of any stock split, stock
distribution, a combination of shares or other similar transaction shall be
subject to the restrictions of this Article 9.
9.5 FORFEITURE. Except as expressly provided otherwise in the written
agreement relating to such Restricted Shares, any Restricted Shares granted to
an employee pursuant to the Plan shall be forfeited to the Corporation at no
cost to the Corporation if the employee's employment with the Corporation or its
subsidiaries terminates prior to the expiration or termination of the Restricted
Period and the satisfaction of any other conditions applicable to such
Restricted Shares; provided, however, that, unless the Committee, in its sole
discretion, determines otherwise, Restricted Shares shall become fully vested
upon the employee's termination of employment during the Restricted Period due
to Disability, Retirement or death.
9.6 DELIVERY OF RESTRICTED SHARES. Upon the expiration or termination of
the Restricted Period and the satisfaction of any other conditions prescribed by
the Committee, the restrictions applicable to the Restricted Shares shall lapse
and, as soon as practicable thereafter, a stock certificate for the number of
Restricted Shares with respect to which the restrictions have lapsed shall be
delivered, free of all such restrictions, to the employee or the employee's
beneficiary or estate, as the case may be.
9.7 PAYMENT FOR RESTRICTED SHARES. An employee shall not be required to
make any payment for Restricted Shares granted to such employee under the Plan,
except to the extent otherwise required by law and except that the Committee
may, in its discretion, charge the employee an amount in cash not in excess of
the par value of the Restricted Shares so granted.
ARTICLE 10
PERFORMANCE SHARES
10.1 AWARD OF PERFORMANCE SHARES. For each Performance Period (as defined
in Section 10.2 hereof), Performance Shares may be granted under the Plan to
such eligible employees of the Corporation and its subsidiaries as the Committee
shall determine in its sole discretion. Each Performance Share shall be deemed
to be equivalent to one share of Common Stock. Performance Shares granted to an
employee shall be credited to an account (a "Performance Share Account")
established and maintained for such employee.
10.2 PERFORMANCE PERIOD. For purposes of this Article 10, "Performance
Period" shall mean such period of time as shall be determined by the Committee
in its sole discretion over which the performance applicable to the Performance
Share award shall be measured. Different Performance Periods may be established
for different employees receiving Performance Shares and for different grants of
Performance Shares. Performance Periods may run consecutively or concurrently.
10.3 RIGHT TO PAYMENT OF PERFORMANCE SHARES. With respect to each award of
Performance Shares under the Plan, the Committee shall specify at the time of
the award the performance objectives (the "Performance Objectives") that must be
satisfied in order for the employee to vest in the Performance Shares that have
been awarded to him or her for the Performance Period. The Performance
Objectives may relate to the future performance of the employee or of the
Corporation or any subsidiary, division or department thereof by or in which the
employee is employed during the Performance Period, the Market Price of the
Common Stock or the increase thereof during the Performance Period, combinations
thereof, or such other performance measures as the Committee determines to be
appropriate. If the Performance Objectives established for an employee for the
Performance Period are not met, the Committee may, nonetheless, in its sole
discretion, determine that all or a portion of the Performance Shares have
vested. If the Performance Objectives for a Performance Period are exceeded, the
Committee may, in its sole discretion, grant additional, fully vested
Performance Shares to the employee. At the time of an award of Performance
Shares, the Committee may, in its sole discretion, prescribe additional terms,
conditions or restrictions relating to
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the award, including, but not limited to, rules pertaining to the termination of
employment of the employee prior to expiration of the Performance Period;
provided, however, that, unless otherwise determined by the Committee,
Performance Shares awarded to an employee shall become fully vested upon the
employee's termination of employment during the Performance Period due to
Disability, Retirement or death. The Committee may, in its sole discretion,
adjust the Performance Objectives, the Performance Period and the base price of
any Performance Shares to reflect significant, unforeseen events or changes.
10.4 PAYMENT FOR PERFORMANCE SHARES. As soon as practicable following the
end of a Performance Period, the Committee shall determine whether the
Performance Objectives for the Performance Period have been achieved (and, if
not achieved, whether to permit partial or full vesting pursuant to Section 10.3
hereof). If the Performance Objectives for the Performance Period have been
exceeded, the Committee shall determine whether additional, fully vested
Performance Shares shall be granted to the employee pursuant to Section 10.3
hereof. As soon as reasonably practicable after such determinations, or at such
later date as the Committee shall determine at the time of grant, the
Corporation shall pay to the employee an amount with respect to each vested
Performance Share equal to the Market Price of a share of Common Stock on such
payment date, or if the Committee shall so specify at the time of grant, an
amount equal to (i) the Market Price of a share of Common Stock on such payment
date less (ii) the base price of the Performance Share established by the
Committee at the time of grant. Such base price shall be determined by the
Committee in its sole discretion and may be equal to, or greater or less than,
the Market Price of a share of Common Stock on the date of grant. Payment with
respect to vested Performance Shares shall be made entirely in cash, entirely in
Common Stock (which may include Restricted Shares) or in a combination of cash
and Common Stock, as the Committee shall determine in its sole discretion.
10.5 VOTING AND DIVIDEND RIGHTS. Except as provided in Article 12 hereof,
no employee shall be entitled to any voting rights or to receive any dividends
or other distributions with respect to Performance Shares, or to have his or her
Performance Share Account credited or increased as a result of any dividends or
other distributions with respect to the Common Stock. Notwithstanding the
foregoing, within sixty days from the date of payment of a cash dividend by the
Corporation on the Common Stock, the Committee, in its sole discretion, may
credit an employee's Performance Share Account with additional Performance
Shares having an aggregate Market Price equal to the cash dividend per share
paid on the Common Stock multiplied by the number of Performance Shares credited
to his or her account at the time the cash dividend was declared.
ARTICLE 11
PERFORMANCE UNITS
11.1 AWARD OF PERFORMANCE UNITS. For each Performance Period (as defined
in Section 11.2 hereof), Performance Units may be granted under the Plan to such
eligible employees of the Corporation and its subsidiaries as the Committee
shall determine in its sole discretion. The award agreement relating to such
Performance Units shall specify a value for each Performance Unit or shall set
forth a formula for determining the value of each Performance Unit at the time
of payment (the "Ending Value"). If necessary to make the calculation of the
amount to be paid to the employee pursuant to Section 11.4 hereof, the Committee
shall also state in the award agreement the initial value of each Performance
Unit (the "Initial Value"). Performance Units granted to an employee shall be
credited to an account established and maintained for such employee.
11.2 PERFORMANCE PERIOD. For purposes of this Article 11, "Performance
Period" shall mean such period of time as shall be determined by the Committee
in its sole discretion over which the performance applicable to the Performance
Unit award shall be measured. Different Performance Periods may be established
for different employees receiving Performance Units and for different grants of
Performance Units. Performance Periods may run consecutively or concurrently.
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11.3 RIGHT TO PAYMENT OF PERFORMANCE UNITS. With respect to each award of
Performance Units under the Plan, the Committee shall specify at the time of the
award the Performance Objectives that must be satisfied in order for the
employee to vest in the Performance Units that have been awarded to him or her
for the Performance Period. The Performance Objectives may relate to such
performance measures as the Committee determines to be appropriate, including
those described in Section 10.3 hereof with respect to Performance Shares. If
the Performance Objectives established for an employee for the Performance
Period are not met, the Committee may, nonetheless, in its sole discretion,
determine that all or a portion of the Performance Units have vested. If the
Performance Objectives for a Performance Period are exceeded, the Committee may,
in its sole discretion, grant additional, fully vested Performance Units to the
employee. At the time of an award of Performance Units, the Committee may, in
its sole discretion, prescribe additional terms, conditions or restrictions
relating to the award, including, but not limited to, rules pertaining to the
termination of employment of the employee prior to expiration of the Performance
Period; provided, however, that, unless otherwise determined by the Committee,
Performance Units awarded to an employee shall become fully vested upon the
employee's termination of employment during the Performance Period due to
Disability, Retirement or death. The Committee may, in its sole discretion,
adjust the Performance Objectives, the Performance Period and the Initial Value
or Ending Value of any Performance Units to reflect significant, unforeseen
events or changes.
11.4 PAYMENT FOR PERFORMANCE UNITS. As soon as practicable following the
end of a Performance Period, the Committee shall determine whether the
Performance Objectives for the Performance Period have been achieved (and, if
not achieved, whether to permit partial or full vesting pursuant to Section 11.3
hereof). If the Performance Objectives for the Performance Period have been
exceeded, the Committee shall determine whether additional, fully vested
Performance Units shall be granted to the employee pursuant to Section 11.2
hereof. As soon as reasonably practicable after such determinations, or at such
later date as the Committee shall determine at the time of grant, the
Corporation shall pay to the employee an amount with respect to each vested
Performance Unit equal to the Ending Value of the Performance Unit or, if the
Committee shall so specify at the time of grant, an amount equal to (i) the
Ending Value of the Performance Unit less (ii) the Initial Value of the
Performance Unit. Payment with respect to vested Performance Units shall be made
entirely in cash, entirely in Common Stock (which may include Restricted Shares)
or in a combination of cash and Common Stock, as the Committee shall determine
in its sole discretion.
ARTICLE 12
RECAPITALIZATION OR REORGANIZATION
12.1 GENERAL. The existence of the Plan and awards granted hereunder shall
not affect in any way the right or power of the Board or the stockholders of the
Corporation to make or authorize any adjustment, recapitalization,
reorganization or other change in the Corporation's capital structure or its
business, any merger or consolidation of the Corporation, any issue of debt or
equity securities of the Corporation having any priority or preference with
respect to or affecting the Common Stock or the rights thereof, the dissolution
or liquidation of the Corporation, any sale, lease, exchange or other
disposition of all or any part of the Corporation's assets or business or any
other corporate act or proceeding.
12.2 CHANGES IN CAPITALIZATION. Except as otherwise provided in this
Article 12, Options, Stock Appreciation Rights, Restricted Shares, Performance
Shares, Performance Units and the agreements evidencing such awards shall be
subject to adjustment by the Committee at its discretion as to the number, price
and value of the shares, units or other consideration subject to such awards, or
in such other respects as the Committee deems appropriate, in the event of
changes in the outstanding Common Stock by reason of stock dividends, stock
splits, recapitalizations, reorganizations, mergers, consolidations,
combinations, spin offs, exchanges or other relevant changes in capitalization
occurring after the date of grant of any such awards; provided, however, that,
except as otherwise provided
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in Section 12.3 hereof, in the case of awards whose price or value is based on
the Market Price of the Common Stock, appropriate adjustments shall be made to
the price or value of such awards to prevent dilution or enlargement of rights
in the event of stock dividends and stock splits with respect to the Common
Stock.
12.3 STOCK SPLITS AND STOCK DIVIDENDS; RECAPITALIZATIONS.
(a) The shares with respect to which Options may be granted under the Plan
are shares of Common Stock as presently constituted but if, and whenever, prior
to the expiration of an Option theretofore granted, the Corporation shall effect
a subdivision or consolidation of shares of Common Stock or the payment of a
stock dividend on Common Stock without receipt of consideration by the
Corporation, the number of shares of Common Stock with respect to which such
Option may thereafter be exercised (i) in the event of an increase in the number
of outstanding shares shall be proportionately increased, and the purchase price
per share shall be proportionately reduced, and (ii) in the event of a reduction
in the number of outstanding shares shall be proportionately reduced, and the
purchase price per share shall be proportionately increased.
(b) If the Corporation recapitalizes or otherwise changes its capital
structure, thereafter upon any exercise of an Option theretofore granted the
optionee shall be entitled to purchase under such Option, in lieu of the number
of shares of Common Stock as to which such Option shall then be exercisable, the
number and class of shares of stock or other securities or property (including,
without limitation, cash) to which the optionee would have been entitled
pursuant to the terms of the recapitalization or change in capital structure if,
immediately prior to such recapitalization or change, the optionee had been the
holder of record of the number of shares of Common Stock then covered by such
Option.
12.4 CHANGE OF CONTROL.
(a) In the event of a Change of Control of the Corporation (as defined in
Section 12.6 hereof), then no later than (i) two business days prior to any
Change of Control referenced in clause (i), (iii) or (iv) of the definition
thereof or (ii) ten business days after any Change of Control referenced in
clause (ii) of the definition thereof, the Committee, acting in its sole
discretion without the consent or approval of any optionee, shall act to effect
one or more of the following alternatives with respect to outstanding Options
under the Plan, which acts may vary among individual optionees and, with respect
to acts taken pursuant to clause (i) above, may be contingent upon effectuation
of the Change of Control: (A) accelerate the time at which Options then
outstanding may be exercised so that such Options may be exercised in full for a
limited period of time on or before a specified date (before or after such
Change of Control) fixed by the Committee, after which specified date all
unexercised Options and all rights of optionees thereunder shall terminate; (B)
require the mandatory surrender to the Corporation by selected optionees of some
or all of the outstanding Options held by such optionees (irrespective of
whether such Options are then exercisable under the provisions of the Plan) as
of a date (before or after such Change of Control) specified by the Committee,
in which event the Corporation shall thereupon cancel such Options and pay to
each optionee an amount of cash per share of Common Stock subject to such
Options equal to the excess, if any, of the Change of Control Value (as defined
in Section 12.6 hereof) of the Common Stock over the per share exercise price(s)
under such Options for such shares; (C) make such adjustments to Options then
outstanding as the Committee deems appropriate to reflect such Change of Control
(provided, however, that the Committee may determine in its sole discretion that
no adjustment is necessary to Options then outstanding); or (D) provide that
thereafter upon any exercise of an Option theretofore granted the optionee shall
be entitled to purchase under such Option, in lieu of the number of shares of
Common Stock as to which such Option shall then be exercisable, the number and
class of shares of stock or other securities or property (including, without
limitation, cash) to which the optionee would have been entitled pursuant to the
terms of the transaction constituting the Change of Control if, immediately
prior to such transaction, the optionee had been the holder of record of the
number of shares of Common Stock then covered by such Option.
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(b) In the event of a Change of Control of the Corporation, then no later
than (i) two business days prior to any Change of Control referenced in clause
(i), (iii) or (iv) of the definition thereof or (ii) ten business days after any
Change of Control referenced in clause (ii) of the definition thereof, the
Committee, acting in its sole discretion without the consent or approval of any
holder of a Stock Appreciation Right, shall act to effect one or more of the
following alternatives with respect to outstanding Stock Appreciation Rights
under the Plan, which acts may vary among individual holders, may vary among
Stock Appreciation Rights held by individual holders and, with respect to acts
taken pursuant to clause (i) above, may be contingent upon effectuation of the
Change of Control: (A) accelerate the time at which Stock Appreciation Rights
then outstanding may be exercised so that such Stock Appreciation Rights may be
exercised in full for a limited period of time on or before a specified date
(before or after such Change of Control) fixed by the Committee, after which
specified date all unexercised Stock Appreciation Rights and all rights of
holders thereunder shall terminate; (B) require the mandatory surrender to the
Corporation by selected holders of Stock Appreciation Rights of some or all of
the outstanding Stock Appreciation Rights held by such holders (irrespective of
whether such Stock Appreciation Rights are then exercisable under the provisions
of the Plan) as of a date (before or after such Change of Control) specified by
the Committee, in which event the Corporation shall thereupon cancel such Stock
Appreciation Rights and pay to each holder an amount of cash per share of Common
Stock subject to such Stock Appreciation Rights equal to the excess, if any, of
the Change of Control Value of the Common Stock over the per share exercise
price(s) of such Stock Appreciation Rights; or (C) make such adjustments to
Stock Appreciation Rights then outstanding as the Committee deems appropriate to
reflect such Change of Control (provided, however, that the Committee may
determine in its sole discretion that no adjustment is necessary to Stock
Appreciation Rights then outstanding).
(c) Notwithstanding any contrary provisions of the Plan, with respect to any
Restricted Shares outstanding at the time a Change of Control of the Corporation
occurs, the Committee may, in its sole discretion, provide (i) for full vesting
of all such Restricted Shares as of the date of such Change of Control and (ii)
that all restrictions applicable to such Restricted Shares shall terminate as of
such date.
(d) Notwithstanding any contrary provisions of the Plan, with respect to any
Performance Shares or Performance Units which have been granted but which are
unpaid at the time a Change of Control of the Corporation occurs, the Committee
may, in its sole discretion, provide (i) for full vesting of such awards as of
the date of such Change of Control, (ii) for payment of the then value of such
awards as soon as administratively feasible following the Change of Control,
with the value of such awards to be based, to the extent applicable, on the
Change of Control Value of the Common Stock, (iii) that any provisions in such
awards regarding forfeiture of unpaid awards shall not be applicable from and
after a Change of Control with respect to awards made prior to such Change of
Control and (iv) that all performance measures applicable to unpaid awards at
the time of a Change of Control shall be deemed to have been satisfied in full
during the performance period upon the occurrence of such Change of Control.
12.5 ISSUANCE OF SECURITIES. Except as hereinbefore expressly provided,
the issuance by the Corporation of shares of stock of any class or securities
convertible into shares of stock of any class, for cash, property, labor or
services, upon direct sale, upon the exercise of rights or warrants to subscribe
therefor, or upon conversion of shares or obligations of the Corporation
convertible into such shares or other securities, and in any case whether or not
for fair value, shall not affect, and no adjustment by reason thereof shall be
made with respect to, the number of shares of Common Stock subject to Options or
Stock Appreciation Rights theretofore granted, the purchase price per share of
Common Stock subject to Options or the calculation of amounts payable with
respect to Stock Appreciation Rights.
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12.6 CERTAIN DEFINITIONS.
(a) A "Change of Control" of the Corporation shall mean any one of the
following: (i) Continuing Directors (as hereinafter defined) no longer
constitute at least two-thirds of the directors constituting the Board; (ii) any
person or group of persons (as defined in Rule 13d-5 under the Securities
Exchange Act of 1934), together with its affiliates, becomes the beneficial
owner, directly or indirectly, of 20% or more of the Corporation's then
outstanding common stock or 20% or more of the voting power of the Corporation's
then outstanding securities entitled generally to vote for the election of
directors of the Corporation; (iii) the occurrence of or the approval by the
Corporation's stockholders of the merger or consolidation of the Corporation
with any other corporation, the sale of any substantial portion of the assets of
the Corporation or the liquidation or dissolution of the Corporation unless, in
the case of a merger or consolidation, the Continuing Directors in office
immediately prior to such merger or consolidation will constitute at least
two-thirds of the directors constituting the board of directors of the surviving
corporation of such merger or consolidation and any parent (as defined in Rule
12b-2 under the Securities Exchange Act of 1934) of such corporation; or (iv) at
least a majority of the Continuing Directors in office immediately prior to any
other action taken or proposed to be taken by the Corporation's stockholders or
by the Board determines that such action constitutes, or that such proposed
action, if taken, would constitute, a Change of Control of the Corporation and
such action is taken. For purposes of this paragraph (a), "Continuing Director"
means any person who either (i) is a director of the Corporation on the date of
adoption of the Plan by the Committee or (ii) was designated as a Continuing
Director by a majority of the Continuing Directors.
(b) "Change of Control Value" means the amount determined in clause (i),
(ii) or (iii), whichever is applicable, as follows: (i) the per share price
offered to stockholders of the Corporation in any merger, consolidation, sale of
assets or dissolution transaction; (ii) the price per share offered to
stockholders of the Corporation in any tender offer or exchange offer whereby a
Change of Control takes place; or (iii) if a Change of Control occurs other than
as described in clause (i) or clause (ii), the fair market value per share
determined by the Committee as of the date of the Change of Control or such
other relevant date as may be determined by the Committee. If the consideration
offered to stockholders of the Corporation in any transaction described in this
Section 12.6 consists of anything other than cash, the Committee shall determine
the fair cash equivalent of the portion of the consideration offered which is
other than cash.
ARTICLE 13
TERMINATION AND AMENDMENT
13.1 TERM. Subject to the right of the Committee to terminate the Plan
prior thereto, the Plan shall terminate at the expiration of ten years from the
date of approval of the Plan by the stockholders of the Corporation.
13.2 TERMINATION AND AMENDMENT. The Committee may at any time suspend,
terminate, modify or amend the Plan, provided that any amendment that would (i)
extend the term of the Plan, (ii) materially increase the aggregate number of
shares that may be issued under the Plan (other than as provided in Article 12
hereof), (iii) materially increase the benefits accruing to employees under the
Plan or (iv) materially modify the requirements as to eligibility for
participation in the Plan, shall be subject to the approval of the Corporation's
stockholders. Upon termination of the Plan, the terms of the Plan shall,
notwithstanding such termination, continue to apply to awards granted prior to
such termination. No suspension, termination, modification or amendment of the
Plan may, without the consent of the employee to whom an award shall theretofore
have been granted, adversely affect the rights of such employee under such
award.
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ARTICLE 14
AWARD AGREEMENTS
Each award of Options, Stock Appreciation Rights, Restricted Shares,
Performance Shares and Performance Units under the Plan shall be evidenced by a
written agreement containing such restrictions, terms and conditions, if any, as
the Committee may require. In the event of any conflict between a written
agreement and the Plan, the terms of the Plan shall govern.
ARTICLE 15
MISCELLANEOUS PROVISIONS
15.1 TAX WITHHOLDING; TAX PAYMENTS.
(a) The Corporation shall have the right in connection with awards under the
Plan to (i) require employees or their beneficiaries or legal representatives to
remit to the Corporation or a subsidiary an amount sufficient to satisfy all
federal, state and local withholding tax requirements and (ii) deduct from all
payments under the Plan amounts sufficient to satisfy such withholding tax
requirements. Whenever payments under the Plan are to be made to an employee in
cash, such payments shall be net of any amounts sufficient to satisfy all
federal, state and local withholding tax requirements. The Committee may, in its
sole discretion, permit an employee to satisfy his or her tax withholding
obligation in connection with an award under the Plan either by (i) surrendering
to the Corporation or a subsidiary shares of Common Stock owned by the employee
or (ii) having the Corporation withhold from shares otherwise deliverable to the
employee. Shares surrendered or withheld shall be valued at their Market Price
as of the date of surrender or withholding of such shares.
(b) The Committee shall have the authority at the time of any award under
the Plan or anytime thereafter to grant to employees who have received awards
under the Plan the right to receive from the Corporation or a subsidiary tax
offset payments ("Tax Offset Payments") to assist such employees in paying
income taxes incurred as a result of their participation in the Plan. The Tax
Offset Payments shall be determined by multiplying a percentage established by
the Committee times all or a portion (as the Committee shall determine) of the
taxable income recognized by an employee upon (i) the exercise of Options or
Stock Appreciation Rights for Common Stock, (ii) the termination of restrictions
on Restricted Shares or (iii) payment for Performance Shares or Performance
Units in Common Stock. The percentage shall be established, from time to time,
by the Committee at that rate which the Committee, in its sole discretion,
determines to be appropriate and in the best interests of the Corporation to
assist employees in paying income taxes incurred as a result of the events
described in the preceding sentence. Tax Offset Payment rights shall be subject
to the restrictions on transferability applicable to Options and Stock
Appreciation Rights under Article 7 hereof. Tax Offset Payment rights shall be
evidenced by a written agreement containing such terms and conditions, if any,
not inconsistent with the Plan as the Committee may require. Tax Offset Payments
under the Plan will not be made with respect to more than the maximum number of
shares of Common Stock available for issuance under the Plan.
15.2 COMPLIANCE WITH SECTION 16(b). In the case of employees who are or
may be subject to Section 16 of the Securities Exchange Act of 1934, as amended
(the "Act"), it is the intent of the Corporation that the Plan and any award
granted hereunder satisfy and be interpreted in a manner that satisfies the
applicable requirements of Rule 16b-3, so that such persons will be entitled to
the benefits of Rule 16b-3 or other exemptive rules under Section 16 of the Act
and will not be subjected to liability thereunder. If any provision of the Plan
or any award hereunder would otherwise conflict with the intent expressed
herein, that provision, to the extent possible, shall be interpreted and deemed
amended so as to avoid such conflict. To the extent of any remaining
irreconcilable conflict with such intent, such provision shall be deemed void as
applicable to employees who are or may be subject to Section 16 of the Act.
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15.3 MARKET PRICE OF COMMON STOCK. For purposes of the Plan, the "Market
Price" of the Common Stock on any day shall be determined as follows: (i) if the
Common Stock is listed on a national securities exchange or quoted through the
NASDAQ National Market System, the Market Price on any day shall be the average
of the high and low reported Consolidated Trading sales prices of the Common
Stock for such day, or if no such sale is made on such day, the average of the
closing bid and asked prices of the Common Stock reported on the Consolidated
Trading listing for such day; (ii) if the Common Stock is quoted on the NASDAQ
inter-dealer quotation system, the Market Price on any day shall be the average
of the representative bid and asked prices of the Common Stock at the close of
business for such day; or (iii) if the Common Stock is not listed on a national
securities exchange or quoted on the NASDAQ National Market System or
inter-dealer quotation system, the Market Price on any day shall be the average
of the high bid and low asked prices of the Common Stock reported by the
National Quotation Bureau, Inc. for such day. If the Common Stock is not
publicly traded at the time a determination of its value is required to be made
under the Plan, the determination of the Market Price of the Common Stock shall
be made by the Committee in such manner as it deems appropriate.
15.4 SUCCESSORS. The obligations of the Corporation under the Plan shall
be binding upon any successor corporation or organization resulting from the
merger, consolidation or other reorganization of the Corporation, or upon any
successor corporation or organization succeeding to all or substantially all of
the assets and business of the Corporation.
15.5 GENERAL CREDITOR STATUS. Employees shall have no right, title or
interest whatsoever in or to any investments that the Corporation may make to
aid it in meeting its obligations under the Plan. Nothing contained in the Plan,
and no action taken pursuant to its provisions, shall create or be construed to
create a trust of any kind, or a fiduciary relationship between the Corporation
or a subsidiary, on the one hand, and any employee or beneficiary or legal
representative of such employee, on the other. To the extent that any person
acquires a right to receive payments from the Corporation under the Plan, such
right shall be no greater than the right of an unsecured general creditor of the
Corporation. All payments to be made hereunder shall be paid from the general
funds of the Corporation and no special or separate fund shall be established
and no segregation of assets shall be made to assure payment of such amounts
except as expressly set forth in the Plan.
15.6 NO RIGHT TO EMPLOYMENT. Nothing in the Plan or in any written
agreement entered into pursuant to Article 14 hereof, nor the grant of any
award, shall confer upon any employee any right to continue in the employ of the
Corporation or a subsidiary or to be entitled to any remuneration or benefits
not set forth in the Plan or such written agreement or interfere with or limit
the right of the Corporation or a subsidiary to modify the terms of or terminate
such employee's employment at any time.
15.7 OTHER PLANS. Effective upon the approval of the Plan by the
stockholders of the Corporation, no further awards shall be made under the
Corporation's 1988 Incentive Stock Plan and 1993 Non-Qualified Stock Option Plan
(the "Prior Plans"). Thereafter, all awards made under the Prior Plans prior to
approval of the Plan by the stockholders shall continue in accordance with the
terms of the Prior Plans.
15.8 NOTICES. Notices required or permitted to be made under the Plan
shall be sufficiently made if personally delivered to the employee or sent by
regular mail addressed (a) to the employee at the employee's address as set
forth in the records of the Corporation or its subsidiaries or (b) to the
Corporation or the Committee at the principal executive offices of the
Corporation clearly marked "Attention: Corporate Secretary".
15.9 SEVERABILITY. In the event that any provision of the Plan shall be
held illegal or invalid for any reason, such illegality or invalidity shall not
affect the remaining parts of the Plan, and the Plan shall be construed and
enforced as if the illegal or invalid provision had not been included.
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15.10 NO RESTRICTION OF CORPORATE ACTION. Nothing contained in the Plan
shall be construed to prevent the Corporation or any subsidiary from taking any
corporate action which is deemed by the Corporation or such subsidiary to be
appropriate or in its best interest, whether or not such action would have an
adverse effect on the Plan or any award made under the Plan. No employee,
beneficiary or other person shall have any claim against the Corporation or any
subsidiary as a result of such action.
15.11 GOVERNING LAW. To the extent not preempted by federal law, the Plan,
and all agreements hereunder, shall be construed in accordance with and governed
by the laws of the State of Texas.
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June 22, 1995
Rexene Corporation
5005 LBJ Freeway
Occidental Tower, Suite 500
Dallas, Texas 75244
Ladies and Gentlemen:
We have acted as counsel for Rexene Corporation, a Delaware corporation
(the "Company"), in connection with the registration under the Securities Act of
1933, as amended (the "Securities Act"), of 882,000 shares (the "Shares") of
Common Stock, par value $0.01 per share, of the Company for issuance pursuant to
the Rexene Corporation 1994 Long-Term Incentive Plan (the "Plan").
In connection with the foregoing, we have examined the originals or copies,
certified or otherwise authenticated to our satisfaction, of such corporate
records of the Company, agreements and other instruments, certificates of public
officials and of officers of the Company, and other instruments and documents as
we have deemed necessary to require as a basis for the opinion hereinafter
expressed. We have also participated in the preparation of the Company's
Registration Statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange Commission relating to registration of the
Shares under the Securities Act.
On the basis of the foregoing, we advise you that in our opinion the Shares
have been duly authorized by the Company and, when issued upon the due exercise
of options duly granted under the Plan, will be legally issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to all references to us in the Registration
Statement. In giving this consent, we do not thereby admit that we come within
the category of persons whose consent is required under Section 7 of the
Securities Act or the rules and regulations of the Securities and Exchange
Commission thereunder.
Respectfully submitted,
THOMPSON & KNIGHT,
A Professional Corporation
By: /s/ Peter A. Lodwick
-----------------------------------------
Peter A. Lodwick, Attorney
<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our reports dated February 7, 1995 and April 12, 1993
appearing on pages F-2 and F-3 of Rexene Corporation's Annual Report on
Form 10-K for the year ended December 31, 1994.
PRICE WATERHOUSE LLP
Dallas, Texas
June 22, 1995
