SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________
FORM 10-K / A2
AMENDMENT TO APPLICATION OR REPORT
FILED PURSUANT TO SECTION 12, 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
CATELLUS DEVELOPMENT CORPORATION
(Exact name of registrant as specified in charter)
The undersigned registrant hereby amends the following items,
financial statements, exhibits or other portions of the Annual Report on
Form 10-K for the fiscal year ended December 31, 1993 to add exhibit
10.21A as set forth in the pages attached hereto:
Item 14. Exhibits, Financial Statements and Schedules and
Reports on Form 8-K
(a)(3) Exhibits
10.21A Amended and Restated Executive
Stock Option Plan
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this amendment to be signed on its behalf
by the undersigned, thereunto duly authorized.
CATELLUS DEVELOPMENT CORPORATION
(Registrant)
By: /s/ David M. Perna
Date: July 25, 1994 David M. Perna
Controller
<PAGE>
PART IV
Item 14. Exhibits, Financial Statement Schedules, and Reports on Form 8-K
(a)(1) and (a)(2) Financial Statements and Financial Statement
Schedules
See Index to Financial Statements and Financial Statement Schedules
at F-1 herein.
All other Schedules are omitted because they are not applicable or
the required information is shown in the financial statements or notes
thereto.
(a)(3) Exhibits
Exhibit
No.
- - ---------
3.1 Form of Restated Certificate of Incorporation of the Registrant (1)
3.1A Amendment to Restated Certificate of Incorporation of the
Registrant (10)
3.3 Form of Certificate of Designations, Preferences and Rights of
$3.25 Series A Cumulative Convertible Preferred Stock (2)
3.4 Form of Restated By-Laws (3)
3.5 Form of Certificate of Designations, Preferences and Rights of
$3.625 Series B Cumulative Convertible Exchangeable Preferred
Stock (9)
4.1 Form of stock certificate representing Common Stock (1)
4.2 13 1/2% Convertible Debenture of the Registrant due December 28,
1994 (4)
4.3 Credit Agreement dated December 17, 1988, as amended December 28,
1989, between the Registrant and The Prudential Insurance Company
of America ("Prudential") (1)
4.4 Term Loan Agreement dated December 6, 1988 between Security
Pacific National Bank ("Security Pacific") and the Registrant (1)
4.5 Revolving Credit Agreement dated as of December 6, 1988 between
Security Pacific and the Registrant (1)
4.6 Loan Agreement dated as of December 29, 1989 between the
Registrant and The Chase Manhattan Bank, N.A. ("Chase") (1)
4.7 Amended and Restated Loan Agreement dated December 31, 1990
between Chase and the Registrant (5)
4.8 Extension and Modification Agreement dated November 6, 1991
between Chase and the Registrant (6)
4.9 Form of stock certificate representing $3.75 Series A Cumulative
Convertible Preferred Stock (2)
4.10 Form of stock certificate representing $3.625 Series B Cumulative
Convertible Exchangeable Preferred Stock (10)
4.11 Loan Agreement dated as of February 16, 1994 between the
Registrant and Prudential (11)
10.1 Exploration Agreement and Option to Lease dated December 28,
1989 between the Registrant and Santa Fe Pacific Minerals
Corporation (1)
10.2 Agreement to Exchange Real Property dated as of December 29,
1989 ("Exchange Agreement") between the Registrant and
The Atchison, Topeka and Santa Fe Railway Company ("ATSF") (1)
10.2A First Amendment to Exchange Agreement dated December 4, 1990
between the Registrant and ATSF (5)
10.3 Long-Term Stockholders Agreement dated as of December 29,
1989 among the Registrant, Bay Area Real Estate Investment
Associates L.P. ("BAREIA"), Olympia & York SF Holdings Corporation
("O&Y") and Itel Corporation ("Itel") (1)
10.4 Registration Rights Agreement dated as of December 29, 1989
among the Registrant, BAREIA, O&Y and Itel (1)
10.6 Restated Tax Allocation and Indemnity Agreement dated December 29,
1989 among the Registrant and certain of its subsidiaries and
Santa Fe Pacific Corporation ("SFP") (1)
<PAGE>
Exhibit
No. Exhibits
- - ---------
10.7 State Tax Allocation and Indemnity Agreement dated December 29,
1989 among the Registrant and certain of its subsidiaries and
SFP (1)
10.8 Executive Employment Agreement dated April 1, 1989 between
Vernon B. Schwartz and the Registrant (4)
10.9 Registrant's Annual Performance Bonus Program (4)
10.10 Registrant's Stock Purchase Program (4)
10.11 Registrant's Profit Sharing & Savings Plan and Trust (4)
10.12 Registrant's Long-Term Incentive Compensation Program (4)
10.12A Registrant's Long-Term Incentive Compensation Program, as amended
and restated effective February 27, 1992 (3)
10.13 Registrant's Incentive Stock Compensation Plan (4)
10.14 Management Agreement between ATSF and Catellus Management
Corporation dated December 1, 1990 (5)
10.15 Termination, Substitution and Guarantee Agreement between
ATSF and the Registrant dated December 21, 1990 (5)
10.16 Registrant's Stock Option Plan (5)
10.17 Development Agreement dated April 1, 1991 between the
Registrant and the San Francisco Board of Supervisors (7)
10.18 Development Agreement dated May 9, 1983, by and between the
City of San Diego and the Registrant (5)
10.19 Owner Participation Agreement dated June 16, 1983, by and
between Redevelopment Agency of The City of San Diego and the
Registrant (5)
10.20 Development Agreement dated October 30, 1991, by and between
The Southern California Rapid Transit District and
the Registrant (6)
10.21 Executive Stock Option Plan (3)
10.21A Amended and Restated Executive Stock Option Plan *
10.22 Amended and Restated Development Agreement between the City
of Fremont and the Registrant effective March 19, 1992 (3)
10.22A First Amendment to Amended and Restated Development Agreement
between the City of Fremont and the Registrant effective
July 1, 1993 (10)
10.23 First Amendment to Development Agreement between the Southern
California Rapid Transit District ("RTD") and the Registrant (3)
10.24 Letter Agreement dated June 30, 1992 between RTD and the
Registrant (3)
10.25 Agreement dated as of January 14, 1993 between the Registrant
and BAREIA (8)
10.26 Form of First Amendment to Registration Rights Agreement
among the Registrant, BAREIA, O&Y and Itel(8)
10.27 Form of Stockholders Agreement among the Registrant, BAREIA,
O&Y and Itel (8)
10.28 Agreement dated February 22, 1994 between Registrant and
Vernon B. Schwartz (10)
21.1 Subsidiaries of Registrant (3)
23.1 Consent of Independent Accountants (10)
23.2 Consent of Independent Real Estate Appraisers (10)
24.1 Powers of Attorney from directors with respect to the filing
of the Form 10-K (10)
The Registrant has omitted instruments with respect to long-term
debt where the total amount of the securities authorized thereunder does
not exceed 10 percent of the assets of the Registrant and its subsidiar-
ies on a consolidated basis. The Registrant agrees to furnish a copy of
such instrument to the Commission upon request.
Management's contracts and compensatory plans - Exhibits 10.9,
10.11, 10.12A, 10.13, 10.16, 10.21A and 10.28 are current management
contracts or compensatory plans.
<PAGE>
(b) Reports on Form 8-K
During the quarter ended December 31, 1993, the Registrant filed a
Current Report on Form 8-K dated October 19, 1993 to file, under Item 5,
the Company's earnings release for the quarter and nine months ended
September 30, 1993.
- - ---------------------------------
* Filed with this Form 10-K/A2.
(1) Incorporated by reference to Exhibit of the same number of the
Registration Statement on Form 10 (Commission File No. 0-18694) as
filed with the Commission on July 18, 1990 ("Form 10").
(2) Incorporated by reference to Exhibit of the same number on the
Form 8 constituting a Post-Effective Amendment No. 1 to the Form
8-A as filed with the Commission on February 19, 1993.
(3) Incorporated by reference to Exhibit of the same number of
Registration Statement on Form S-3 (Commission File No. 33-56082)
as filed with the Commission on December 21, 1992 ("Form S-3").
(4) Incorporated by reference to Exhibit of the same number of the
Form 8 constituting Post-Effective Amendment No. 1 to the Form 10
as filed with the Commission on November 20, 1990.
(5) Incorporated by reference to Exhibit of the same number on the
Form 10-K for the year ended December 31, 1990.
(6) Incorporated by reference to Exhibit of the same number on the
Form 10-K for the year ended December 31, 1991.
(7) Incorporated by reference to Exhibit of the same number on the
Form 10-K for the year ended December 31, 1990, referred to
therein as "Development Agreement dated February 19, 1991 between
the Registrant and the San Francisco Board of Supervisors".
(8) Incorporated by reference to Exhibit of the same number of
Amendment No. 2 to Form S-3 as filed with the Commission on
February 4, 1993.
(9) Incorporated by reference to Exhibit of the same number on the
Form 10-Q for the quarter ended September 30, 1993.
(10)Incorporated by reference to Exhibit of the same number on the
Form 10-K for the year ended December 31, 1993.
(11)Incorporated by reference to Exhibit of the same number on the Form
10-K/A1 for the year ended December 31, 1993.
<PAGE>
INDEX TO EXHIBITS
Exhibit
No. Description
- - -------
3.1 Form of Restated Certificate of Incorporation of the Registrant (1)
3.1A Amendment to Restated Certificate of Incorporation of the
Registrant (10)
3.3 Form of Certificate of Designations, Preferences and Rights of
$3.25 Series A Cumulative Convertible Preferred Stock (2)
3.4 Form of Restated By-Laws (3)
3.5 Form of Certificate of Designations, Preferences and Rights of $3.625
Series B Cumulative Convertible Exchangeable Preferred Stock (9)
4.1 Form of stock certificate representing Common Stock (1)
4.2 13 1/2% Convertible Debenture of the Registrant due
December 28, 1994 (4)
4.3 Credit Agreement dated December 17, 1988, as amended December 28,
1989, between the Registrant and The Prudential Insurance Company
of America ("Prudential") (1)
4.4 Term Loan Agreement dated December 6, 1988 between Security
Pacific National Bank ("Security Pacific") and the Registrant (1)
4.5 Revolving Credit Agreement dated as of December 6, 1988 between
Security Pacific and the Registrant (1)
4.6 Loan Agreement dated as of December 29, 1989 between the Registrant
and The Chase Manhattan Bank, N.A. ("Chase") (1)
4.7 Amended and Restated Loan Agreement dated December 31, 1990 between
Chase and the Registrant (5)
4.8 Extension and Modification Agreement dated November 6, 1991 between
Chase and the Registrant (6)
4.9 Form of stock certificate representing $3.75 Series A Cumulative
Convertible Preferred Stock (2)
4.10 Form of stock certificate representing $3.625 Series B
Cumulative Convertible Exchangeable Preferred Stock (10)
4.11 Loan Agreement dated as of February 16, 1994 between the
Registrant and Prudential (11)
10.1 Exploration Agreement and Option to Lease dated December 28, 1989
between the Registrant and Santa Fe Pacific Minerals Corporation (1)
10.2 Agreement to Exchange Real Property dated as of December 29, 1989
("Exchange Agreement") between the Registrant and The Atchison,
Topeka and Santa Fe Railway Company ("ATSF") (1)
10.2A First Amendment to Exchange Agreement dated December 4, 1990
between the Registrant and ATSF (5)
10.3 Long-Term Stockholders Agreement dated as of December 29, 1989
among the Registrant, Bay Area Real Estate Investment Associates
L.P. ("BAREIA"), Olympia & York SF Holdings Corporation ("O&Y") and
Itel Corporation ("Itel") (1)
10.4 Registration Rights Agreement dated as of December 29, 1989 among
the Registrant, BAREIA, O&Y and Itel (1)
10.6 Restated Tax Allocation and Indemnity Agreement dated December 29,
1989 among the Registrant and certain of its subsidiaries and
Santa Fe Pacific Corporation ("SFP") (1)
10.7 State Tax Allocation and Indemnity Agreement dated December 29, 1989
among the Registrant and certain of its subsidiaries and SFP (1)
10.8 Executive Employment Agreement dated April 1, 1989 between
Vernon B. Schwartz and the Registrant(4)
10.9 Registrant's Annual Performance Bonus Program (4)
<PAGE>
Exhibit
No. Description
- - --------
10.10 Registrant's Stock Purchase Program (4)
10.11 Registrant's Profit Sharing & Savings Plan and Trust (4)
10.12 Registrant's Long-Term Incentive Compensation Program (4)
10.12A Registrant's Long-Term Incentive Compensation Program, as
amended and restated effective February 27, 1992 (3)
10.13 Registrant's Incentive Stock Compensation Plan (4)
10.14 Management Agreement between ATSF and Catellus Management
Corporation dated December 1, 1990 (5)
10.15 Termination, Substitution and Guarantee Agreement between ATSF
and the Registrant dated December 21, 1990 (5)
10.16 Registrant's Stock Option Plan (5)
10.17 Development Agreement dated April 1, 1991 between the Registrant
and the San Francisco Board of Supervisors (7)
10.18 Development Agreement dated May 9, 1983, by and between the
City of San Diego and the Registrant (5)
10.19 Owner Participation Agreement dated June 16, 1983, by and
between Redevelopment Agency of The City of San Diego and the
Registrant (5)
10.20 Development Agreement dated October 30, 1991, by and between The
Southern California Rapid Transit District and the Registrant (6)
10.21 Executive Stock Option Plan (3)
10.21A Amended and Restated Executive Stock Option Plan *
10.22 Amended and Restated Development Agreement between the City of
Fremont and the Registrant effective March 19, 1992 (3)
10.22A First Amendment to Amended and Restated Development Agreement
between the City of Fremont and the Registrant effective
July 1, 1993 (10)
10.23 First Amendment to Development Agreement between the Southern
California Rapid Transit District ("RTD") and the Registrant (3)
10.24 Letter Agreement dated June 30, 1992 between RTD and the
Registrant (3)
10.25 Agreement dated as of January 14, 1993 between the Registrant
and BAREIA (8)
10.26 Form of First Amendment to Registration Rights Agreement among
the Registrant, BAREIA, O&Y and Itel (8)
10.27 Form of Stockholders Agreement among the Registrant, BAREIA,
O&Y and Itel (8)
10.28 Agreement dated February 22, 1994 between Registrant and
Vernon B. Schwartz (10)
21.1 Subsidiaries of Registrant (3)
23.1 Consent of Independent Accountants (10)
23.2 Consent of Independent Real Estate Appraisers (10)
24.1 Powers of Attorney from directors with respect to the filing of
the Form 10-K (10)
The Registrant has omitted instruments with respect to long-term
debt where the total amount of the securities authorized thereunder does
not exceed 10 percent of the assets of the Registrant and its subsidiar-
ies on a consolidated basis. The Registrant agrees to furnish a copy of
such instrument to the Commission upon request.
Management's contracts and compensatory plans - Exhibits 10.9,
10.11, 10.12A, 10.13, 10.16, 10.21A and 10.28 are current management
contracts or compensatory plans.
<PAGE>
- - -----------------------------------
* Filed with this Form 10-K/A2.
(1) Incorporated by reference to Exhibit of the same number of the
Registration Statement on Form 10 (Commission File No. 0-18694) as
filed with the Commission on July 18, 1990 ("Form 10").
(2) Incorporated by reference to Exhibit of the same number on the
Form 8 constituting a Post-Effective Amendment No. 1 to the Form
8-A as filed with the Commission on February 19, 1993.
(3) Incorporated by reference to Exhibit of the same number of
Registration Statement on Form S-3 (Commission File No. 33-56082)
as filed with the Commission on December 21, 1992 ("Form S-3").
(4) Incorporated by reference to Exhibit of the same number of the
Form 8 constituting Post-Effective Amendment No. 1 to the Form 10
as filed with the Commission on November 20, 1990.
(5) Incorporated by reference to Exhibit of the same number on the
Form 10-K for the year ended December 31, 1990.
(6) Incorporated by reference to Exhibit of the same number on the
Form 10-K for the year ended December 31, 1991.
(7) Incorporated by reference to Exhibit of the same number on the
Form 10-K for the year ended December 31, 1990, referred to
therein as "Development Agreement dated February 19, 1991 between
the Registrant and the San Francisco Board of Supervisors".
(8) Incorporated by reference to Exhibit of the same number of
Amendment No. 2 to Form S-3 as filed with the Commission on
February 4, 1993.
(9) Incorporated by reference to Exhibit of the same number on the
Form 10-Q for the quarter ended September 30, 1993.
(10)Incorporated by reference to Exhibit of the same number on the
Form 10-K for the year ended December 31, 1993.
(11)Incorporated by reference to Exhibit of the same number on the
Form 10-K/A1 for the year ended December 31, 1993.
CATELLUS DEVELOPMENT CORPORATION
AMENDED AND RESTATED EXECUTIVE STOCK OPTION PLAN (1)
1. Purposes
The purposes of the Catellus Development Corporation
Amended and Restated Executive Stock Option Plan (the "Plan") are
to provide an incentive program competitive in the real estate
industry which will reward and retain senior management whose
performance will contribute to the long-term success and growth of
Catellus Development Corporation (the "Company") and to further the
identity of interests of senior management and the stockholders of
the Company. The Plan is also intended to further the identity of
interests of the directors of the Company with senior management and
the stockholders.
2. Elements of the Plan
The Plan provides the Committee (described below)
designated by the Company's Board of Directors (the "Board"), with
the discretion to grant Participants, as defined below, other than
non-employee directors, incentives relating to the Company's common
stock utilizing non-qualified stock options. The Plan provides for
certain automatic grants of non-qualified stock options (pursuant
to Section 18) to non-employee directors.
3. Shares Subject to the Plan
The maximum aggregate number of shares as to which Options
(as defined in Section 6) may at any time be granted under the Plan
shall be 4,250,000 shares of common stock, par value $.01 per share
(the "Common Shares"), subject to adjustment in accordance with
Section 12. Such Common Shares may be either authorized but
unissued shares or shares previously issued and reacquired by the
Company. If and to the extent Options granted under the Plan
terminate, expire or are cancelled without having been exercised,
the shares subject to such Options shall again be available for
purposes of the Plan, provided, however, that any terminated,
expired or cancelled Option (i) shall continue to count against the
Individual Limit (described at Section 6(c)) of the Participant to
whom such Option was originally granted and (ii) shall also count
against the Individual Limit of any Participant subsequently awarded
such Option.
4. Plan Administration
The Plan shall be administered by the Compensation and
Benefits Committee of the Board, or any other committee designated
by the Board (the "Committee"). The members of the Committee shall
each be a "disinterested person" within the meaning of Regulation
16b-3 ("Regulation 16b-3") promulgated under the Securities Exchange
Act of 1934, as amended, and an "outside director" within the
meaning of Section 162(m) of the Internal Revenue Code (the "Code"),
and regulations issued thereunder. Except with respect to Options
granted to non-employee directors pursuant to Section 18, the
Committee shall have the sole authority to determine (a) to whom
Options shall be granted under the Plan; (b) the type, amount and
terms of the Options to be granted; (c) the time when Options will
be granted and the duration of the exercise period; and (d) any
other matters arising under the Plan. The Committee shall have full
power and authority to administer and interpret the Plan and to
adopt or amend such rules, regulations, agreements and instruments
for implementing the Plan and for conduct of its business as it
deems necessary or advisable. The Committee's interpretations of
the Plan and all determinations made by the Committee pursuant to
the powers vested in it hereunder shall be conclusive and binding
on all persons having any interest in the Plan or in any Options
granted hereunder.
A majority of the Committee shall constitute a quorum for
purposes of meetings which may be held at such times and places and
on such notice as the Committee deems appropriate. All actions and
determinations of the Committee shall be made by not less than a
majority of its members and may be made at a meeting or by written
consent in lieu of a meeting.
5. Eligibility for Participation
Certain senior managers of the Company approved by the
Committee and, subject to the provisions of Section 18 of the Plan,
the non-employee directors of the Company as of the Effective Date
of the Plan and each non-employee director of the Company elected
or appointed after the Effective Date and during the term of the
Plan, shall be eligible to participate in the Plan (the
"Participants"). Nothing contained in the Plan shall be construed
to limit the right of the Company to grant options otherwise than
under the Plan.
6. Granting of Options
(a) As of the Effective Date set forth in Section 19, and
subject to Section 18, the Committee shall have the right to grant
Participants non-qualified stock options ("Options") until the tenth
anniversary of the date on which the Board approved the Plan on the
terms and conditions set forth herein. Any Option shall be
evidenced by a written agreement, as provided in Section 16 ("the
Option Agreement").
(b) Unless the Committee provides otherwise, and such
provision is reflected in the Option Agreement, the exercise price
for an Option granted to an employee shall be the Fair Market Value
(as hereinafter defined) of a share of such stock on the date the
Option is granted, which shall increase by 5%, compounded annually,
on each anniversary of the date of grant that occurs prior to the
date of exercise. The exercise price for an Option granted to a
non-employee director as of the Effective Date shall be $13.78,
increasing 5%, compounded annually, on each anniversary of the grant
date, commencing February 1998. The exercise price for an Option
granted to a non-employee director thereafter shall be 127.63% of
the Fair Market Value of a share of such stock on the date the
Option is granted (which shall be deemed to be the date of such
person's initial election or appointment to the Board), increasing
5%, compounded annually, on each anniversary of the grant date,
commencing on the sixth anniversary of the date of grant.
Notwithstanding anything else in this Plan, the exercise price of
an option may not be less than the Fair Market Value of the Common
Stock on the date of grant.
For purposes of Section 6 of this Plan, Fair Market Value
shall be deemed to be the average of the closing prices of a Common
Share for the five trading days immediately preceding the applicable
date on (i) the New York Stock Exchange ("NYSE"), if the Common
Shares are then listed on such exchange, (ii) if the Common Shares
are not listed on the NYSE, on the principal national stock exchange
on which the Common Shares are then listed, or (iii) if not listed
on any national stock exchange, as reported by NASDAQ. If the
Common Shares are not then listed on any national stock exchange or
reported by NASDAQ, then the Fair Market Value shall be determined
in any reasonable manner approved by the Committee.
(c) Notwithstanding any other provision of the Plan or
Option Agreement to the contrary, no Participant shall receive any
grant of an Option under the Plan to the extent that the sum of (i)
the number of Common Shares subject to such grant, and (ii) the
number of Common Shares subject to all other prior grants to the
Participant of Options under the Plan during the three-year period
ending on the date of grant, would exceed the Participant's
Individual Limit under the Plan. The determination made under the
foregoing provisions of this paragraph (c) of Section 6 shall be
based on the shares subject to grant at the time of the grant,
regardless of when the Options became exercisable (or were
exercised). A Participant's Individual Limit shall be 1,000,000
Common Shares. Awards to a Participant may be less than the
Participant's Individual Limit, but may never exceed such amount.
7. Terms of Options
Unless the Option Agreement provides otherwise, Options
granted to employees hereunder shall be exercisable for a term of
ten years from the date of grant (the date as of which Options expire
is referred to as the "Expiration Date"). The Expiration Date of
Options granted to non-employee directors shall be the tenth
anniversary of the date of grant.
8. Exercise of Options
(a) Unless the Committee provides otherwise and such
provision is reflected in the Option Agreement, Options granted to
employees will become fully exercisable on the fifth anniversary of
the date of grant. The date that all or any portion of an Option
becomes exercisable is referred to as the "Vesting Date" for such
Option or portion thereof. Options granted pursuant to Section 18
to non-employee directors will become exercisable in installments
on a cumulative basis at a rate of 20% each year beginning on the
first anniversary of the date of grant. No Option shall be
exercisable for a period of six months from the date of grant.
(b) Unless the Committee provides otherwise and such
provision is reflected in the Option Agreement, Options granted
hereunder shall be exercisable for cash or any other property
(including Common Shares valued at the Fair Market Value on the date
of exercise of the Option or promissory notes) deemed acceptable by
the Committee; provided that, in the case of payment by a promissory
note, the Participant shall pay in cash or other property an amount
equal to at least the par value of the Common Shares being
purchased.
(c) Except as otherwise provided herein, no Option granted
to an employee may be exercised at any time unless the holder is
then a full-time employee of the Company and has continuously
remained an employee at all times (other than on an absence for an
approved leave of absence or service in the Armed Forces) since the
date of grant of such Option.
(d) Options shall be exercised by a Participant giving
written notice of such exercise to the Company. No fractional
shares, or cash in lieu thereof, shall be issued under this Plan or
under any Option granted hereunder.
(e) An Option shall be exercisable during a Participant's
lifetime only by the Participant, or, if the Participant has become
disabled, by his legal representative.
9. Exercise on Termination of Employment
(a) Unless the Committee provides otherwise and such
provision is reflected in the Option Agreement, if a Participant
(other than a director) ceases to be an employee by reason of his
retirement at or after age 65, disability (the inability of the
Participant to continue to perform his duties of employment as
determined by the Committee) or death prior to the initial Vesting
Date, a fraction of the Option will vest, equal to the number of
months elapsed from the date of grant divided by the number of
months from the date of grant to the final Vesting Date.
If a Participant ceases to be an employee or director by
reason of death, any unexercised portion of his Options that is or
becomes vested upon his death will be exercisable for one year after
such death. During such one year period, the Participant's personal
representative, or the person or persons to whom the Option shall
have been transferred by will or by the laws of descent and
distribution, shall have the same rights to exercise the unexercised
portion of the Option to the extent so vested as the Participant
would have had if he were still an employee or director of the
Company.
If an employee resigns or is terminated for any reason
other than death or "for cause," or if a non-employee director
resigns or is not re-elected, any unexercised portion of his or her
Options that is or becomes vested upon such termination of
employment, resignation or failure to be re-elected will be
exercisable for the three months following such termination to the
extent so vested.
Notwithstanding the foregoing, in no event shall any
Option be exercisable after the stated Expiration Date. Any portion
of an Option that is not vested upon termination of employment, or
is vested and is not exercised as provided in this Section 9, shall
be forfeited.
(b) Termination "for cause" prior to or after a Vesting
Date shall result in forfeiture of all outstanding Options, whether
or not vested. For purposes of the Plan, "for cause" means (i) the
continued failure by the Participant to substantially perform his
duties with the Company (other than any such failure resulting from
his incapacity due to physical or mental illness) or (ii) the engaging
by the Participant in conduct which is materially injurious to the
Company, monetarily or otherwise, in either case as determined by the
Company.
10. Forfeiture of Benefits
Notwithstanding any other provision of this Plan or any
provision of an Option Agreement, including, but not limited to
Section 9 of this Plan, any and all unexercised Options and all
rights under the Plan of a Participant who received such Option
grant (or his designated beneficiary or legal representatives) and
the exercise thereof, shall be forfeited if, prior to the time of
such exercise, the Participant shall (a) be employed by a competitor
of, or shall be engaged in any activity in competition with, the
Company without the Company's consent, (b) divulge without the
Company's consent any secret or confidential information belonging
to the Company or (c) engage in any other activities which would
constitute grounds for termination "for cause", as defined in
Section 9.
11. Non-Transferability of Options
A Participant's rights and interests under this Plan
(including the right to exercise unexercised Options) may not be
assigned or transferred except, in the case of a Participant's
death, to the person or persons to whom the option shall have been
transferred by will or by the laws of descent and distribution, or
pursuant to a qualified domestic relations order as defined by the
Internal Revenue Code of 1986, as amended (the "Code"), or Title I
of the Employee Retirement Income Security Act of 1974 ("ERISA"),
or the rules thereunder.
12. Adjustments for Certain Events
The total number of Common Shares available for Options
under the Plan and the terms of any existing Options (both as to the
number of Common Shares and the per share Option price) shall be
appropriately adjusted to reflect any change in the capitalization
of the Company due to a stock split, stock dividend,
recapitalization, merger, consolidation, combination or similar
event.
Any adjustments pursuant to this Section shall be
determined by the Committee in its sole discretion. Any such
adjustment may provide for the elimination of any fractional share
which might otherwise become subject to an Option.
13. Amendment and Termination
The Committee may from time to time terminate, modify or
amend the Plan in any respect; provided, however, that the
provisions of the Plan shall not be modified or amended more than
once every six months, other than to comply with changes in the
Code, ERISA or the rules thereunder, and provided, further that,
unless also approved or ratified by a vote of the holders of the
outstanding shares of the capital stock of the Company entitled to
a majority of the voting power of the Company, any such modification
or amendment shall not (subject, however, to the provisions of
Section 12): (a) increase the maximum number of Common Shares for
which Options may be granted under the Plan; (b) reduce the Option
price at which Options may be granted; (c) extend the period during
which Options may be granted or exercised beyond the times
originally prescribed; (d) materially modify the requirements as to
eligibility for participation in the Plan; or (e) materially
increase the benefits accruing to Participants under the Plan. No
such termination, modification or amendment may adversely affect the
rights of a Participant under an outstanding Option. Nevertheless,
with the consent of the Participant affected, the Committee may
amend outstanding Options in a manner not inconsistent with the
terms of the Plan.
14. Rights of a Participant
No Participant or other person shall have any claim or
right to be granted an Option under the Plan. Neither the Plan nor
any action taken hereunder shall be construed as giving any
Participant any right to be retained in the employ of the Company.
15. Rights as a Stockholder
A Participant or a transferee of an Option shall have no
rights as a stockholder with respect to any Common Share covered by
his Option until he shall have become the holder of record of such
share, and, except for stock dividends as provided in Section 12
hereof, no adjustment shall be made for dividends (ordinary or
extraordinary, whether in cash, securities or other property) or
distributions or other rights in respect of such share for which the
record date is prior to the date on which he shall become the holder
of record thereof.
16. Agreements with Participants
Each award made under the Plan shall be evidenced by a
written agreement containing such terms and conditions as the
Committee shall approve. Each such agreement shall provide that,
as a condition to the grant evidenced thereby, the Participant
agrees that the Company shall arrange to deduct from any payments
of any kind otherwise due to the Participant from the Company, the
aggregate amount of federal, state or local taxes of any kind
required by law to be withheld with respect thereto, or if no such
payments are due or become due to the Participant, that the
Participant shall pay to the Company, or make arrangements
satisfactory to the Company regarding the payment to it of, the
aggregate amount of such taxes. Subject to Committee discretion and
upon any conditions the Committee may prescribe, Participants may
elect to pay their withholding taxes by directing the Company to
withhold from the Common Shares to be issued upon exercise that
number of Common Shares equivalent (at a current market value) to
the withholding taxes due.
17. Requirements for Issuance of Shares
No Common Shares shall be issued or transferred hereunder
unless and until all legal requirements applicable to the issuance
or transfer of such shares have been complied with to the
satisfaction of the Committee. The Committee shall have the right
to condition any award or the issuance of Common Shares made to any
Participant hereunder on such Participant's undertaking in writing
to comply with such restrictions on his subsequent disposition of
such shares as the Committee shall deem necessary or advisable as
a result of any applicable law, regulation or official
interpretation thereof, and certificates representing such shares
may be legended to reflect any such restrictions.
18. Grants to Directors
A single grant will be made automatically to each director
(excluding directors who are employees) of the Company as of the
Effective Date of the Plan and each non-employee director elected
or appointed after the Effective Date and during the term of the
Plan. Each such non-employee director shall receive an Option to
purchase 5,000 Common Shares and will not be eligible to receive any
future grant of Options as a non-employee director.
19. Effective Date
The Plan shall be effective as of February 27, 1992
("Effective Date") and shall continue in effect thereafter until
terminated or suspended by the Committee.
(1) Gives effect to amendments approved by the Company's stockholders on
May 18, 1993 and June 23, 1994, and amendments made by the Committee from
time to time pursuant to its authority provided in Section 13.
