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Exhibit 10.24
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT is made to be effective as of August 1, 1997 by and
between Dominion Homes, Inc., an Ohio corporation (the "COMPANY"), and Xxx X.
Xxxxxxx (the "EMPLOYEE").
WITNESSETH:
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WHEREAS, the Board of Directors of the COMPANY adopted its Incentive
Stock Plan (the "PLAN") on February 28, 1994; and
WHEREAS, the shareholders of the COMPANY, upon the recommendation of
the COMPANY'S Board of Directors, approved the PLAN on March 3, 1994; and
WHEREAS, pursuant to the provisions of the PLAN, the Board of Directors
of the COMPANY has appointed a committee (the "COMMITTEE") to administer the
PLAN, and the COMMITTEE has determined that an award of 23,000 common shares,
without par value, of the COMPANY (the "SHARES") should be granted to the
EMPLOYEE upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises, the parties hereto
make the following agreement, intending to be legally bound thereby:
1. PLAN AS CONTROLLING. All terms and conditions of the PLAN, as it may
be amended from time to time, applicable to Restricted Stock granted thereunder
shall be deemed incorporated herein by reference. A copy of the PLAN as in
effect on the date of this Agreement is attached hereto as Annex A. In the event
that any provision in this Agreement conflicts with any term in the PLAN, the
term in the PLAN shall be deemed controlling.
2. GRANT OF SHARES OF RESTRICTED STOCK. The COMPANY hereby grants to
the EMPLOYEE 23,000 SHARES. Such SHARES shall initially be unvested and, unless
and until they vest as provided in Section 3, they shall be subject to
forfeiture.
3. VESTING OF SHARES. The shares shall vest in accordance with the
following vesting schedule:
VESTING DATE SHARES THAT WILL VEST
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August 1, 1998 4,000
August 1, 1999 4,000
August 1, 2000 4,000
August 1, 2001 11,000
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provided, however, that upon the occurrence of a "Change in Control," any shares
which have not vested on or before the date of the "Change in Control" shall
fully vest; and, provided further that if the employment of EMPLOYEE with the
COMPANY is terminated for any reason, any SHARES which have not vested on or
before the date of termination of employment shall be forfeited. The grant of
the SHARES shall not confer upon EMPLOYEE any right to continue in the
employment of the COMPANY nor limit in any way the right of the COMPANY to
terminate the employment of EMPLOYEE at any time.
4. TRANSFER RESTRICTIONS. Until the SHARES are vested, the SHARES may
not be sold, assigned, transferred, pledged or otherwise encumbered.
Certificates issued in respect of SHARES which are unvested shall be registered
in the name of the EMPLOYEE and deposited by the EMPLOYEE, together with a stock
power endorsed in blank, with the COMPANY. Upon the vesting of SHARES, such
restrictions on transfer shall terminate with respect to such vested SHARES and
the COMPANY shall deliver to the EMPLOYEE the certificates issued in respect of
such vested SHARES.
5. VOTING AND DIVIDEND RIGHTS. Unless and until any unvested SHARES are
forfeited pursuant to Section 3, the EMPLOYEE shall have all voting rights and,
subject to Section 6, all dividend rights with respect to the SHARES.
6. ADJUSTMENTS. In the event that any dividend or other distribution
(whether in the form of SHARES, other securities or other property),
recapitalization, stock split, reverse stock split, reorganization, merger,
consolidation, split-up, spin-off, combination, repurchase, or exchange of
SHARES or other securities of the COMPANY, issuance of warrants or other rights
to purchase SHARES or other securities of the COMPANY, or other similar
corporate transaction or event affects the SHARES such that an adjustment is
necessary in order to prevent dilution or enlargement of the benefits or
potential benefits intended to be made available under the PLAN to the EMPLOYEE,
then the COMMITTEE shall make such adjustment (as necessary). Any property
(other than cash) that is distributed with respect to any unvested SHARES as a
result of any such adjustment shall be deposited by the EMPLOYEE, together with
a stock power endorsed in blank, with the COMPANY and shall be subject to the
same conditions and restrictions (including vesting and forfeiture) imposed by
this Agreement on the unvested SHARES to which the same relate.
7. INCOME TAX ELECTION. If the EMPLOYEE makes an election under Section
83(b) of the Internal Revenue Code of 1986, as amended, the EMPLOYEE shall
provide to the COMPANY a copy of such election within thirty (30) days of the
filing of such election with the Internal Revenue Service.
8. SATISFACTION OF TAXES AND TAX WITHHOLDING REQUIREMENTS. The COMPANY
shall be entitled and is authorized, if the COMMITTEE deems it necessary or
desirable,
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to withhold (or secure payment from the EMPLOYEE in lieu of withholding) as
provided in Section 10(e) of the PLAN.
9. GOVERNING LAW. The rights and obligations of the EMPLOYEE and the
COMPANY under this Agreement shall be governed by and construed in accordance
with the laws of the State of Ohio (without giving effect to the conflict of
laws principles thereof) in all respects, including, without limitation, matters
relating to the validity, construction, interpretation, administration, effect,
enforcement, and remedies provisions of the PLAN and its rules and regulations,
except to the extent preempted by applicable federal law.
10. RIGHTS AND REMEDIES CUMULATIVE. All rights and remedies of the
COMPANY and of the EMPLOYEE enumerated in this Agreement shall be cumulative
and, except as expressly provided otherwise in this Agreement, none shall
exclude any other rights or remedies allowed by law or in equity, and each of
said rights or remedies may be exercised and enforced concurrently.
11. CAPTIONS. The captions contained in this Agreement are included
only for convenience of reference and do not define, explain or modify this
Agreement or its interpretation, construction or meaning and are in no way to be
construed as a part of this Agreement.
12. SEVERABILITY. If any provision of this Agreement or the application
of any provision hereof to any person or any circumstance shall be determined to
be invalid or unenforceable, then such determination shall not affect any other
provision of this Agreement or the application of said provision to any other
person or circumstance, all of which other provisions shall remain in full force
and effect, and it is the intention of each party to this Agreement that if any
provision of this Agreement is susceptible of two or more constructions, one of
which would render the provision enforceable and other or others of which would
render the provision unenforceable, then the provision shall have the meaning
which renders it enforceable.
13. NUMBER AND GENDER. When used in this Agreement, the number and
gender of each pronoun shall be construed to be such number and gender as the
context, circumstances or its antecedent may require.
14. AMENDMENT, ETC. The COMMITTEE may waive any conditions or rights
under, amend any terms of, or alter, suspend, discontinue, cancel or terminate,
the provisions of this Agreement, prospectively or retroactively; provided that
any such waiver, amendment, alteration, suspension, discontinuance, cancellation
or termination that would impair the rights of the EMPLOYEE shall not to that
extent be effective without the consent of the EMPLOYEE.
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15. ENTIRE AGREEMENT. This Agreement, including the PLAN as amended
from time to time and incorporated by referenced herein, constitutes the entire
agreement between the COMPANY and the EMPLOYEE in respect of the subject matter
of this Agreement, and this Agreement supersedes all prior and contemporaneous
agreements between the parties hereto in connection with the subject matter of
this Agreement. No change, termination or attempted waiver of any of the
provisions of this Agreement shall be binding upon any party hereto unless
contained in a writing signed by the party to be charged.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed to be effective as of the date first above written.
COMPANY:
DOMINION HOMES, INC.
BY:___________________________________
ITS:___________________________________
EMPLOYEE:
___________________________________
Xxx X. Xxxxxxx
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ANNEX A
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DOMINION HOMES, INC.
INCENTIVE STOCK PLAN
SECTION 1. PURPOSE. The purposes of the Dominion Homes, Inc. Incentive
Stock Plan are to promote the interests of Dominion Homes, Inc. and its
stockholders by: (i) attracting and retaining Employees and Eligible Directors;
(ii) motivating Employees and Eligible Directors by means of performance-related
incentives to achieve longer-range performance goals; and (iii) enabling
Employees and Eligible Directors to participate in the long-term growth and
financial success of the Company.
SECTION 2. DEFINITIONS. As used in the Plan, the following terms shall
have the meanings set forth below:
"Award" shall mean any Option, Restricted Stock Award or Performance
Award but shall not include any Director Option.
"Award Agreement" shall mean any written agreement, contract, or other
instrument or document evidencing any Award, which may, but need not, be
executed or acknowledged by a Participant.
"Board" shall mean the Board of Directors of the Company.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Committee" shall mean a committee of the Board designated by the Board
to Administer the Plan and composed of not less than the minimum number of
persons from time to time required by Rule 16b-3, each of whom, to the extent
necessary to comply with Rule 16b-3 only, is a "disinterested person" within the
meaning of Rule 16b-3.
"Company" shall mean Dominion Homes, Inc., together with any successor
thereto.
"Director Option" shall mean a "Non-Qualified Stock Option" granted to
each Eligible Director pursuant to Section 6(e) without any action by the Board
or the Committee.
"Eligible Director" shall mean, on any date, a person who is serving as
a member of the Board but shall not include a person who is or was an Employee
of the Company or a subsidiary.
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"Employee" shall mean an employee of the Company.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Fair Market Value" shall mean the fair market value of the property or
other item being valued, as determined by the Committee in its sole discretion,
provided that the fair market value of Shares of Common Stock shall be
determined by reference to the most recent closing price quotation, or, if none,
the average of the bid and asked prices, as reported as of the most recent
available date with respect to the sale of Common Stock on any quotation system
approved by the National Association of Securities Dealers then reporting sales
of Common Stock or on any national securities exchange on which the Common Stock
is then listed.
"Incentive Stock Option" shall mean a right to purchase Shares from the
Company that is granted under Section 6 of the Plan and that is intended to meet
the requirements of Section 422 of the Code or any successor provision thereto.
"Non-Qualified Stock Option" shall mean a right to purchase Shares from
the Company that is granted under Section 6 of the Plan and that is not intended
to be an Incentive Stock Option.
"Option" shall mean an Incentive Stock Option or a Non-Qualified Stock
Option but shall not include a Director Option.
"Participant" shall mean any Employee selected by the Committee to
receive an Award under the Plan.
"Performance Award" shall mean any right granted under Section 8 of the
Plan.
"Person" shall mean any individual, corporation, partnership,
association, joint-stock company, trust, unincorporated organization, government
or political subdivision thereof or other entity.
"Plan" shall mean the Dominion Homes, Inc. Incentive Stock Plan.
"Restricted Stock" shall mean any Share granted under Section 7 of the
Plan.
"Rule 16b-3" shall mean Rule 16b-3 as promulgated and interpreted by
the SEC under the Exchange Act, or any successor rule or regulation thereto as
in effect from time to time.
"SEC" shall mean the Securities and Exchange Commission or any
successor thereto and shall include the staff thereof.
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"Shares" shall mean common shares, without par value, of the Company,
or such other securities of the Company as may be designated by the Committee
from time to time.
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"Subsidiary" shall mean any corporation which, on the date of
determination, qualifies as a subsidiary corporation of the Corporation under
Section 425(f) of the Code.
"Substitute Awards" shall mean Awards granted in assumption of, or in
substitution for, outstanding awards previously granted by a company acquired by
the Company or with which the Company combines.
"Ten Percent Shareholder" shall mean any shareholder who, at the time
an Incentive Stock Option is granted to such shareholder, owns (within the
meaning of Section 425(d) of the Code) more than ten percent of the voting power
of all classes of shares of the Company or a subsidiary.
SECTION 3. ADMINISTRATION.
(a) The Plan shall be administered by the Committee. Subject to the
terms of the Plan and applicable law, and in addition to other express powers
and authorizations conferred on the Committee by the Plan, the Committee shall
have full power and authority to: (i) designate Participants; (ii) determine the
type or types of Awards to be granted to an eligible Employee; (iii) determine
the number of shares to be covered by, or with respect to which payments,
rights, or other matters are to be calculated in connection with, Awards; (iv)
determine the terms and conditions of any Award; (v) determine whether, to what
extent, and under what circumstances Awards may be settled or exercised in cash,
Shares, other securities, other Awards or other property, or cancelled,
forfeited, or suspended; (vi) determine whether, to what extent, and under what
circumstances cash, Shares, other securities, other Awards, other property, and
other amounts payable with respect to an Award shall be deferred either
automatically or at the election of the holder thereof or of the Committee;
(vii) interpret and administer the Plan and any instrument or agreement relating
to, or Award made under, the Plan; (viii) establish, amend, suspend, or waive
such rules and regulations and appoint such agents as it shall deem appropriate
for the proper administration of the Plan; and (ix) make any other determination
and take any other action that the Committee deems necessary or desirable for
the administration of the Plan. Notwithstanding anything else contained in the
Plan to the contrary, neither the Committee nor the Board shall have any
discretion regarding whether an Eligible Director shall receive a Director
Option pursuant to Section 6(e) or regarding the terms of any Director Option,
including without limitation, the number of Shares subject to such Director
Option or the exercise price per Share of such Director Option.
(b) Unless otherwise expressly provided in the Plan, all designations,
determinations, interpretations, and other decisions under or with respect to
the Plan or any Award shall be within the sole discretion of the Committee, may
be made at any time and shall be final, conclusive, and binding upon all
Persons, including the Company, any Subsidiary, any Participant, any holder or
beneficiary of any Award, any shareholder and any Employee.
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SECTION 4. SHARES AVAILABLE FOR AWARDS.
(a) SHARES AVAILABLE. Subject to adjustment as provided in Section
4(b), the number of Shares with respect to which Awards and Director Options may
be granted under the Plan shall be 850,000. If, after the effective date of the
Plan, any Shares covered by an Award or Director Option granted under the Plan,
or to which such an Award or Director Option relates, are forfeited, or if an
Award or Director Option otherwise terminates or is cancelled without the
delivery of Shares, then the Shares covered by such Award or Director Option, or
to which such Award or Director Option relates, or the number of Shares
otherwise counted against the aggregate number of Shares with respect to which
Awards and Director Options may be granted, to the extent of any such
settlement, forfeiture, termination or cancellation, shall again be, or shall
become, Shares with respect to which Awards and Director Options may be granted,
to the extent permissible under Rule 16b-3. In the event that any Option,
Director Option or other Award granted hereunder is exercised through the
delivery of Shares, the number of Shares available for Awards under the Plan
shall be increased by the number of Shares surrendered, to the extent
permissible under Rule 16b-3.
(b) ADJUSTMENTS. In the event that any dividend or other distribution
(whether in the form of cash, Shares, other securities, or other property),
recapitalization, stock split, reverse stock split, reorganization, merger,
consolidation, split-up, spin-off, combination, repurchase, or exchange of
Shares or other securities of the Company, issuance of warrants or other rights
to purchase Shares or other securities of the Company, or other similar
corporate transaction or event affects the Shares such that an adjustment is
necessary in order to prevent dilution or enlargement of the benefits or
potential benefits intended to be made available under the Plan, then the
Committee shall proportionately adjust any or all (as necessary) of: (i) the
number of Shares or other securities of the Company (or number and kind of other
securities or property) with respect to which Awards may be granted; (ii) the
number of Shares or other securities of the Company (or number and kind of other
securities or property) subject to outstanding Awards; and (iii) the grant or
exercise price with respect to any Award, provided, in each case, that with
respect to Awards of Incentive Stock Options no such adjustment shall be
authorized to the extent that such authority would cause the Plan to violate
Section 422(b)(1) of the Code, as from time to time amended. If, pursuant to the
preceding sentence, an adjustment is made to outstanding Options held by
Participants, a corresponding adjustment shall be made to outstanding Director
Options and if, pursuant to the preceding sentence, an adjustment is made to the
number of Shares authorized for issuance under the Plan, a corresponding
adjustment shall be made to the number of Shares subject to each Director Option
thereafter granted pursuant to Section 6(e).
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(c) SOURCES OF SHARES. Any Shares delivered pursuant to an Award or
Director Option may consist, in whole or in part, of authorized and unissued
Shares or of treasury Shares.
SECTION 5. ELIGIBILITY. Any Employee, including any officer or
employee-director of the Company or any Subsidiary, who is not a member of the
Committee shall be eligible to be designated a Participant, except that only
Employees who are employees of the Company or a Subsidiary shall be eligible for
the grant of nondiscretionary Director Options in accordance with, and only in
accordance with, Section 6(e) hereof.
SECTION 6. OPTIONS AND DIRECTOR OPTIONS.
(a) GRANT. Subject to the provisions of the Plan, the Committee shall
have sole and complete authority to determine the Employees to whom Options
shall be granted, the number of Shares to be covered by each Option, the
exercise price therefor and the conditions and limitations applicable to the
exercise of the Option. The Committee shall have the authority to grant
Incentive Stock Options, or to grant Non-Qualified Stock Options, or to grant
both types of options. In the case of Incentive Stock Options, the terms and
conditions of such grants shall be subject to and comply with such rules as may
be prescribed by Section 422 of the Code, as from time to time amended, and any
regulations implementing such statute, including, without limitation, the
requirements of Code Section 422(d) which limit the aggregate fair market value
of Shares for which Incentive Stock Options are exercisable for the first time
to $100,000.00 per calendar year. Each provision of the Plan and of each written
option agreement relating to an Option designated as an Incentive Stock Option
shall be construed so that such Option qualifies as an Incentive Stock Option,
and any provision that cannot be construed shall be disregarded.
(b) EXERCISE PRICE. The Committee shall, in its sole discretion,
establish the exercise price of an Option at the time the Option is granted.
Notwithstanding the forgoing sentence and any other provision contained herein
to the contrary, in the case of an Incentive Stock Option, the exercise price at
the time such Incentive Stock Option is granted to any Employee who, at the time
of such grant, is not a Ten Percent Shareholder, shall be not less than 100% of
the per Share Fair Market Value on the date of grant and the exercise price at
the time such Incentive Stock Option is granted to any Employee who, at the time
of such grant, is a Ten Percent Shareholder, shall be not less than 110% of the
per Share Fair market Value on the date of grant.
(c) EXERCISE. Each Option shall be exercisable at such times and
subject to such terms and conditions as the Committee may, in its sole
discretion, specify in the applicable Award Agreement or thereafter; provided,
in the case of an Incentive Stock Option, a Participant may not exercise such
Incentive Stock Option after: (i) the date which is ten years (five years in the
case of a Participant who is a Ten Percent
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Shareholder) after the date on which such Incentive Stock Option is granted; or
(ii) the date which is three months (twelve months in the case of a Participant
who becomes disabled, as defined in Section 22(e)(3) of the Code, or who dies)
after the date on which he ceases to be an Employee of the Company or a
Subsidiary. The Committee may impose such conditions with respect to the
exercise of Options, including without limitation, any relating to the
application of federal or state securities laws, as it may deem necessary or
advisable. The Committee shall have the right to accelerate the exercisability
of any Option or outstanding Option in its discretion.
(d) PAYMENT. No Shares shall be delivered pursuant to any exercise of
an Option until payment in full of the exercise price therefor is received by
the Company. Such payment may be made in cash, or its equivalent, or, if and to
the extent permitted by the Committee, by exchanging Shares owned by the
optionee (which are not the subject of any pledge or other security interest),
or by a combination of the foregoing, provided that the combined value of all
cash and cash equivalents and the Fair Market Value of any such Shares so
tendered to the Company as of the date of such tender is at least equal to such
exercise price.
(e) DIRECTOR OPTIONS. Notwithstanding anything else contained herein to
the contrary, each Eligible Director shall receive, on the first business day
after each annual meeting of stockholders of the Company, provided that the
Eligible Director is serving as a member of the Board on such date, a grant of a
Director Option to purchase 2,500 Shares at an exercise price per Share equal to
the Fair Market Value on the date of grant. A Director Option shall be
exercisable until the earlier to occur of the following two dates: (i) the tenth
anniversary of the date of grant of such Director Option; or (ii) three months
(twelve months in the case of an Eligible Director who becomes disabled, as
defined in Section 22(e)(3) of the Code, or who dies) after the date the
Eligible Director ceases to be a member of the Board, except that if the
Eligible Director ceases to be a member of the Board after having been convicted
of, or pled guilty or nolo contendere to, a felony, his Director Option shall be
cancelled on the date he ceases to be a member of the Board. An Eligible
Director may pay the exercise price of a Director Option in the manner described
in Section 6(d).
SECTION 7. RESTRICTED STOCK.
(a) GRANT. Subject to the provisions of the Plan, the Committee shall
have sole and complete authority to determine the Employees to whom Shares of
Restricted Stock shall be granted, the number of Shares of Restricted Stock to
be granted to each Participant, the duration of the period during which, and the
conditions under which, the Restricted Stock will vest and no longer be subject
to forfeiture to the Company, and the other terms and conditions of such Awards.
The Committee shall have the right to accelerate the vesting of any Restricted
Stock or outstanding Restricted Stock in its discretion.
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(b) TRANSFER RESTRICTIONS. Until the lapse of applicable restrictions,
Shares of Restricted Stock may not be sold, assigned, transferred, pledged or
otherwise encumbered except as provided in the Plan or the applicable Award
Agreements. Certificates issued in respect of Shares of Restricted Stock shall
be registered in the name of the Participant and deposited by such Participant,
together with a stock power endorsed in blank, with the Company. Upon the lapse
of the restrictions applicable to such Shares of Restricted Stock, the Company
shall deliver such certificates to the Participant or the Participant's legal
representative.
(c) PAYMENT OF DIVIDENDS. Dividends paid on any Shares of Restricted
Stock may be paid directly to the Participant, or may be reinvested in
additional Shares of Restricted Stock, as determined by the Committee in its
sole discretion.
SECTION 8. PERFORMANCE AWARDS.
(a) GRANT. The Committee shall have sole and complete authority to
determine the Employees who shall receive a Performance Award denominated in
cash or Shares: (i) valued, as determined by the Committee, in accordance with
the achievement of such performance goals during such performance periods as the
Committee shall establish; and (ii) payable at such time and in such form as the
Committee shall determine.
(b) TERMS AND CONDITIONS. Subject to the terms of the Plan and any
applicable Award Agreement, the Committee shall determine the performance goals
to be achieved during any performance period, the length of any performance
period, the amount of any Performance Award and the amount and kind of any
payment or transfer to be made pursuant to any Performance Award.
(c) PAYMENT OF PERFORMANCE AWARDS. Performance Awards may be paid in a
lump sum or in installments following the close of the performance period or, in
accordance with procedures established by the Committee, on a deferred basis.
SECTION 9. AMENDMENT AND TERMINATION.
(a) AMENDMENTS TO THE PLAN. The Board may amend, alter, suspend,
discontinue, or terminate the Plan or any portion thereof at any time; provided
that no such amendment, alteration, suspension, discontinuation or termination
shall be made without stockholder approval if such approval is necessary to
comply with any tax or regulatory requirement, including for these purposes any
approval requirement which is a prerequisite for exemptive relief from Section
16(b) of the Exchange Act for which or with which the Board deems it necessary
or desirable to qualify or comply; and, provided further that no amendment may
be made to Section 6(e) or any other provision of the Plan relating to Director
Options within six months of the last date on which any such provision
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was amended, other than to comport with changes to the Code, the Employee
Retirement Income Security Act, or the rules thereunder. Notwithstanding
anything to the contrary herein, the Committee may amend the Plan, subject to
any shareholder approval required under Rule 16b-3, in such manner as may be
necessary so as to have the Plan conform with local rules and regulations in any
jurisdiction outside the United States.
(b) AMENDMENTS TO AWARDS. The Committee may waive any conditions or
rights under, amend any terms of, or alter, suspend, discontinue, cancel or
terminate, any Award theretofore granted, prospectively or retroactively;
provided that any such waiver, amendment, alteration, suspension,
discontinuance, cancellation or termination that would impair the rights of any
Participant or any holder or beneficiary of any Award theretofore granted shall
not to that extent be effective without the consent of the affected Participant,
holder or beneficiary.
(c) CANCELLATION. Any provision of this Plan or any Award Agreement to
the contrary notwithstanding, the Committee may cause any Award granted
hereunder to be cancelled in consideration of the granting to the holder of an
alternative Award having a Fair market Value equal to the Fair Market Value of
such cancelled Award.
SECTION 10. GENERAL PROVISIONS.
(a) NONTRANSFERABILITY.
(i) Each Award and each Director Option, and each right under
any Award or any Director Option, shall be exercisable during the
Participant's or the Eligible Director's lifetime only by the
Participant or the Eligible Director or, if permissible under
applicable law, by the Participant's or the Eligible Director's
guardian or legal representative or a transferee receiving such Award
pursuant to a qualified domestic relations order ("QDRO"), as
determined by the Committee.
(ii) No Award or Director Option that constitutes a
"derivative security," for purposes of Section 16 of the Exchange Act,
may be assigned, alienated, pledged, attached, sold or otherwise
transferred or encumbered by a Participant or Eligible Director
otherwise than by will or by the laws of descent and distribution or
pursuant to a QDRO, and any such purported assignment, alienation,
pledge, attachment, sale, transfer or encumbrance shall be void and
unenforceable against the Company or any Subsidiary; provided that the
designation of a beneficiary shall not constitute an assignment,
alienation, pledge, attachment, sale, transfer or encumbrance.
(b) NO RIGHTS TO AWARDS. No Employee, Participant or other Person shall
have any claim to be granted any Award, and there is no obligation for
uniformity of treatment
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of Employees, Participants, or holders or beneficiaries of Awards. The terms and
conditions of Awards need not be the same with respect to each recipient.
(c) SHARE CERTIFICATES. All certificates for Shares or other securities
of the Company or any Subsidiary delivered under the Plan pursuant to any Award
or the exercise thereof shall be subject to such stop transfer orders and other
restrictions as the Committee may deem advisable under the Plan or the rules,
regulations, and other requirements of the SEC, any stock exchange or national
securities association upon which such Shares or other securities are then
listed, and any applicable federal or state laws, and the Committee may cause a
legend or legends to be put on any such certificates to make appropriate
reference to such restrictions.
(d) DELEGATION. Subject to the terms of the Plan and applicable law,
the Committee may delegate to one or more officers or managers of the Company or
any Subsidiary, or to a committee of such officers or managers, the authority,
subject to such terms and limitations as the Committee shall determine, to grant
Awards to, or to cancel, modify or waive rights with respect to, or to alter,
discontinue, suspend, or terminate Awards held by, Employees who are not
officers or directors of the Company for purposes of Section 16 of the Exchange
Act, or any successor section thereto, or who are otherwise not subject to such
Section.
(e) WITHHOLDING. A Participant or Eligible Director may be required to
pay to the Company or any Subsidiary and the Company or any Subsidiary shall
have the right and is hereby authorized to withhold from any Award or Director
Option, from any payment due or transfer made under any Award or any Director
Option or under the Plan or from any compensation or other amount owing to a
Participant or Eligible Director the amount of any applicable withholding taxes
in respect of an Award or a Director Option, its exercise, or any payment or
transfer under an Award, under a Director Option or under the Plan and to take
such other action as may be necessary in the opinion of the Company to satisfy
all obligations for the payment of such taxes. With respect to participants who
are not subject to Section 16 of the Exchange Act, the withholding may be in the
form of cash, Shares, other securities, other Awards or other property as the
Committee may allow. With respect to Participants and Eligible Directors who are
subject to Section 16 of the Exchange Act, the withholding shall be in cash or
in any other property permitted by Rule 16b-3 as the Committee may allow. The
Committee may provide for additional cash payments to holders of Awards to
defray or offset any tax arising from the grant, vesting, exercise or payments
of any Award.
(f) AWARD AGREEMENTS. Each Award hereunder shall be evidenced by an
Award Agreement which shall be delivered to the Participant and shall specify
the terms and conditions of the Award and any rules applicable thereto,
including but not limited to the effect on such Award of the death, retirement
or other termination of employment of a Participant and the effect, if any, of a
change in control of the Company.
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(g) NO LIMIT ON OTHER COMPENSATION ARRANGEMENTS. Nothing contained in
the Plan shall prevent the Company or any Subsidiary from adopting or continuing
in effect other compensation arrangements, which may, but need not, provide for
the grant of Options, Restricted Stock, Shares and other types of Awards
provided for hereunder (subject to stockholder approval if such approval is
required), and such arrangements may be either generally applicable or
applicable only in specific cases.
(h) NO RIGHT TO EMPLOYMENT. The grant of an Award shall not be
construed as giving a Participant the right to be retained in the employ of the
Company or any Subsidiary. Further, the Company or a Subsidiary may at any time
dismiss a Participant from employment, free from any liability or any claim
under the Plan, unless otherwise expressly provided in the Plan or any Award
Agreement.
(i) NO RIGHTS AS SHAREHOLDER. Subject to the provisions of the
applicable Award, no Participant or holder or beneficiary of any Award shall
have any rights as a shareholder with respect to any Shares to be distributed
under the Plan until he or she has become the holder of such Shares.
Notwithstanding the foregoing, in connection with each grant of Restricted Stock
hereunder, the applicable Award shall specify if and to what extent the
Participant shall not be entitled to the rights of a shareholder in respect of
such Restricted Stock.
(j) GOVERNING LAW. The validity, construction, and effect of the Plan
and any rules and regulations relating to the Plan and any Award Agreement shall
be determined in accordance with the laws of the State of Ohio.
(k) SEVERABILITY. If any provision of the Plan or any Award is or
becomes or is deemed to be invalid, illegal, or unenforceable in any
jurisdiction or as to any Person or Award, or would disqualify the Plan or any
Award under any law deemed applicable by the Committee, such provision shall be
construed or deemed amended to conform to the applicable laws, or if it cannot
be construed or deemed amended without, in the determination of the Committee,
materially altering the intent of the Plan or the Award, such provision shall be
stricken as to such jurisdiction, Person or Award and the remainder of the Plan
and any such Award shall remain in full force and effect.
(l) OTHER LAWS. The Committee may refuse to issue or transfer any
Shares or other consideration under an Award if, acting in its sole discretion,
it determines that the issuance or transfer of such Shares or such other
consideration might violate any applicable law or regulation or entitle the
Company to recover the same under Section 16(b) of the Exchange Act, and any
payment tendered to the Company by a Participant, other holder or beneficiary in
connection with the exercise of such Award shall be promptly refunded to the
relevant Participant, holder or beneficiary. Without limiting the generality of
the foregoing, no Award granted hereunder shall be construed as an offer to sell
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securities of the Company, and no such offer shall be outstanding, unless and
until the Committee in its sole discretion has determined that any such offer,
if made, would be in compliance with all applicable requirements of the U.S.
federal securities laws.
(m) NO TRUST OR FUND CREATED. Neither the Plan nor any Award shall
create or be construed to create a trust or separate fund of any kind or a
fiduciary relationship between the Company or any Subsidiary and a Participant
or any other Person. To the extent that any Person acquires a right to receive
payments from the Company or any Subsidiary pursuant to an Award, such rights
shall be no greater than the right of any unsecured general creditor of the
Company or any Subsidiary.
(n) RULE 16b-3 COMPLIANCE. With respect to Persons subject to Section
16 of the Exchange Act, transactions under this Plan are intended to comply with
all applicable terms and conditions of Rule 16b-3 and any successor provisions.
To the extent that any provision of the Plan or action by the Committee fails to
so comply, it shall be deemed null and void, to the extent permitted by law and
deemed advisable by the Committee.
(o) HEADINGS. Headings are given to the Sections and subsections of the
Plan solely as a convenience to facilitate reference. Such headings shall not be
deemed in any way material or relevant to the construction or interpretation of
the Plan or any provision thereof.
(p) NO IMPACT ON BENEFITS. Plan Awards shall not be treated as
compensation for purposes of calculating an Employee's rights under any employee
benefit plan.
(q) INDEMNIFICATION. Each person who is or shall have been a member of
the Committee or of the Board shall be indemnified and held harmless by the
Company against and from any loss, cost, liability, or expense that may be
imposed upon or reasonably incurred by him in connection with or resulting from
any claim, action, suit, or proceeding to which he may be made a party or in
which he may be involved by reason of any action taken or failure to act under
the Plan and against and from any and all amounts paid by him in settlement
thereof, with the Company's approval, or paid by him in satisfaction of any
judgment in any such action, suit, or proceeding against him, provided he shall
give the Company an opportunity, at its own expense, to handle and defend the
same before he undertakes to handle and defend it on his own behalf. The
foregoing right of indemnification shall not be exclusive and shall be
independent of any other rights of indemnification to which such persons may be
entitled under the Company's Articles of Incorporation or Regulations, by
contract, as a matter of law, or otherwise.
(r) Notwithstanding anything to the contrary contained in the Plan, no
Participant shall, during any calendar year, receive Awards covering more than
50,000 Shares in the aggregate pursuant to such Awards.
SECTION 11. TERM OF THE PLAN.
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(a) EFFECTIVE DATE. The Plan shall be effective as of the date of
shareholder approval of the Plan.
(b) EXPIRATION DATE. No Award shall be granted under the Plan after
December 31, 2003. Unless otherwise expressly provided in the Plan or in an
applicable Award Agreement, any Award granted hereunder may, and the authority
of the Board or the Committee to amend, alter, adjust, suspend, discontinue, or
terminate any such Award or to waive any conditions or rights under any such
Award shall, continue after December 31, 2003.
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