Exhibit 10.2
FIRST EMPIRE STATE CORPORATION
1983 STOCK OPTION PLAN
(COMPOSITE COPY AS OF FEBRUARY 17, 1998)
1. Definitions
In this Plan, except where the context otherwise indicates, the
following definitions apply:
(a) "Agreement" means the written agreement implementing a grant of
an Option and/or Right.
(b) "Board" means the Board of Directors of the Company.
(c) "Code" means the Internal Revenue Code of 1986, as amended.
(d) "Committee" means the committee of the Board meeting the
standards of Rule 16b-3(d)(1) and Treasury Regulations Section 1.162-27(c)(4),
or any similar successor rules or regulations, appointed by the Board to
administer this Plan. Unless otherwise determined by the Board, the
Compensation Committee of the Board shall be the Committee.
(e) "Common Stock" means the authorized but unissued or reacquired
Common Stock, par value $5.00 per share, of the Company.
(f) "Company" means First Empire State Corporation.
(g) "Date of Exercise" means the date on which the Company receives
notice pursuant to Article 8 of the exercise of an Option or Right.
(h) "Date of Grant" means the date on which an Option or Right is
granted by the action of the Committee or such later date as may be specified by
the Committee in taking such action.
(i) "Director" means any person who is a director of the Company or
any Subsidiary.
(j) "Employee" means any person determined by the Committee to be an
employee of the Company or any Subsidiary.
(k) "Exchange Act" means the Securities and Exchange Act of 1934, as
amended.
(l) "Fair Market Value" of a share of Common Stock means the amount
equal to the closing price for a share of Common Stock on the American Stock
Exchange as reported by
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such source as the Committee may select, or, if such price quotation for a share
of Common Stock is not so reported, then the fair market value of such stock as
determined by the Committee pursuant to a reasonable method adopted in good
faith for such purpose, in each case subject to adjustment under Article 10.
(m) "▇▇▇▇▇ ▇▇▇▇▇" means (i) in the case of a Right that is not a
Related Right, the Fair Market Value per share on the Date of Grant of the
Right, (ii) in the case of a Right that is a Related Right to a Nonstatutory
Stock Option and not to another Right, either (A) the Option Price per share as
provided in the Related Option or (B) the Fair Market Value per share on the
Date of Grant of the Right, as designated by the Committee in the Agreement
granting the Right, (iii) in the case of a Right that is a Related Right to an
Incentive Stock Option, the Option Price per share as provided in the Related
Option, (iv) in the case of a Right that is a Related Right to another Right and
not to an Option, either (A) the Fair Market Value per share on the Date of
Grant of the Right or (B) the Fair Market Value per share on the Date of Grant
of its Related Right, as designated by the Committee in the Agreement granting
the Right, or (v) in the case of a Right that is a Related Right both to a
Nonstatutory Stock Option and to another Right, (A) the Option Price per share
as provided in the Related Option, (B) the Fair Market Value per share on the
Date of Grant of the Right, or (C) the Fair Market Value per share on the Date
of Grant of its Related Right, as designated by the Committee in the Agreement
granting the Right.
(n) "Incentive Stock Option" means an Option granted under the Plan
that qualifies as an incentive stock option under section 422 of the Code and
that the Company designates as such in the Agreement granting the Option.
(o) "Key Employee" means (i) an Employee who is an officer of the
Company or a Subsidiary, or who is determined by the Committee to be in a
managerial, professional, or other key position of the Company or a Subsidiary,
or (ii) a former trustee or officer of The East New York Savings Bank who, upon
closing of the acquisition by the Company of The East New York Savings Bank, was
granted nonstatutory stock options under the Plan pursuant to the terms of
Section 5(i) of the Merger Agreement by and between First Empire State
Corporation, The East New York Savings Bank and the incorporators of West
Interim Savings Bank.
(p) "Limited Right" means a limited stock appreciation right granted
under the Plan.
(q) "Limited Right Period" means the period during which a Limited
Right may be exercised as provided in Paragraph 7(h) hereof.
(r) "Nonlimited Right" means a nonlimited stock appreciation right
granted under the Plan.
(s) "Nonlimited Right Period" means the period during which a
Nonlimited Right may be exercised as provided in Paragraph 7(g) hereof.
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(t) "Nonstatutory Stock Option" means an Option granted under the
Plan which is not an Incentive Stock Option.
(u) "Offer" means any tender offer or exchange offer for the
Company's Common Stock made by an Offeror which might, if consummated pursuant
to its terms or pursuant to any power reserved in its terms, cause the Offeror
to become the beneficial owner of twenty percent or more of the outstanding
Common Stock. As used in this definition, "beneficial owner" shall have the
meaning ascribed to it from time to time under the rules and regulations
promulgated by the SEC under Section 13(d) of the Exchange Act, or in the event
of the repeal or alteration of such section, such meaning as may from time to
time be ascribed to "beneficial owner" under the rules and regulations
promulgated by the SEC under any similar federal law.
(v) "Offer Price per Share" with respect to the exercise of a Limited
Right means the greater of (i) the highest price per share of Common Stock paid
in any Offer which Offer is in effect at any time during the period beginning on
the ninetieth day prior to the Date of Exercise of such Limited Right and ending
on the Date of Exercise of such Limited Right or (ii) the highest Fair Market
Value per share of Common Stock during such period. Any securities or property
that is part or all of the consideration paid for shares in the Offer shall be
valued in determining the Offer Price per Share at the higher of (A) the
valuation placed on such securities or property by the corporation, person or
other entity making such Offer or (B) the valuation placed on such securities or
property by the Committee.
(w) "Offeror" means any person, other than the Company or any of its
Subsidiaries, who makes an Offer. As used in this definition, "person" shall
include any natural person, corporation, partnership, trust, association,
business entity, or any group of persons, whose ownership of Common Stock would
be required to be reported collectively pursuant to Section 13(d) of the
Exchange Act and the rules and regulations promulgated by the SEC thereunder, as
from time to time in effect, or in the event of the repeal or alteration of such
section, such reporting requirements as may from time to time be prescribed by
any similar federal law.
(x) "Option" means an Incentive Stock Option or Nonstatutory Stock
Option granted under the Plan.
(y) "Option Period" means the period during which an Option may be
exercised.
(z) "Option Price" means the price per share at which an Option may
be exercised. The Option Price shall be determined by the Committee, but in no
event shall the Option Price be less than the greater of the Fair Market Value
of the Common Stock determined as of the Date of Grant or the par value of the
Common Stock, except that in connection with grants of Options to those Key
Employees who were granted Options upon the closing of the Company's acquisition
of The East New York Savings Bank as described in Section 1(o)(ii) hereof, the
Option Price of Options granted upon closing of the acquisition may not be less
than the price at which Common Stock was sold to the public pursuant to the
underwritten offering in connection with the
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Company's acquisition of The East New York Savings Bank.
(aa) "Optionee" means a Key Employee to whom an Option or Right has
been granted.
(bb) "Plan" means the First Empire State Corporation 1983 Stock Option
Plan, as amended.
(cc) "Related Option" means an Option in connection with which, or by
amendment to which, a specified Right is granted.
(dd) "Related Right" means a Right granted in connection with, or by
amendment to, a specified Option or other Right.
(ee) "Right" means a Limited Right or Nonlimited Right granted under
the Plan.
(ff) "Rule 16b-3" means Rule 16b-3 of the rules and regulations as
promulgated and amended from time to time by the SEC under Section 16(b) of the
Exchange Act.
(gg) "SEC" means the Securities and Exchange Commission.
(hh) "Subsidiary" means a corporation at least fifty percent of the
total combined voting power of all classes of stock of which is owned by the
Company, either directly or through one or more other Subsidiaries.
2. Purpose
This Plan is intended to aid in maintaining and developing strong
management through encouraging the ownership of Common Stock by Key Employees
and through stimulating their efforts by giving suitable recognition, in
addition to their other remuneration, to the ability and industry which
contribute materially to the success of the Company's business interests, and to
provide an incentive to the continued service of such Key Employees.
3. Administration
This Plan shall be administered by the Committee. In addition to any
other powers granted to the Committee, it shall have the following powers,
subject to the express provisions of the Plan:
(a) subject to the provisions of Articles 4, 6 and 7, to determine in
its discretion the Key Employees to whom Options or Rights shall be granted
under the Plan, the number of shares to be subject to each Option or Right, and
the terms upon which, the times at which, and the periods within which such
Options or Rights may be acquired and exercised;
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(b) to determine all other terms and provisions of each Agreement,
which need not be identical;
(c) without limiting the foregoing, to provide in its discretion in
an Agreement:
(i) for an agreement by the Optionee to render services to the
Company or a Subsidiary upon such terms and conditions as may be
specified in the Agreement, provided that the Committee shall not have
the power to commit the Company or any Subsidiary to employ or
otherwise retain any Optionee;
(ii) for restrictions on the transfer, sale or other disposition
of the Common Stock issued to the Optionee upon the exercise of an
Option or Right;
(iii) for an agreement by the Optionee to resell to the Company,
under specified conditions, stock issued upon the exercise of an
Option or Right; and
(iv) for the form of payment of the Option Price upon the
exercise of an Option, including without limitation in cash, by
delivery (including constructive delivery) of shares of Common Stock
valued at Fair Market Value on the Date of Exercise of the Option, or
by a combination of cash and Common Stock;
(d) to construe and interpret the Agreements and the Plan;
(e) to require, whether or not provided for in the pertinent
Agreement, of any person exercising an Option or Right granted under the Plan,
at the time of such exercise, the making of any representations or agreements
which the Committee may deem necessary or advisable in order to comply with the
securities laws of the United States or of any state;
(f) to provide for satisfaction of an Optionee's tax liabilities
arising in connection with the Plan through, without limitation, retention by
the Company of shares of Common Stock otherwise issuable on the exercise of a
Nonstatutory Stock Option or Nonlimited Right or through delivery of shares of
Common Stock to the Company by the Optionee under such terms and conditions as
the Committee deems appropriate; and
(g) to make all other determinations and take all other actions
necessary or advisable for the administration of the Plan.
Any determinations or actions made or taken by the Committee pursuant
to this Article shall be binding and final.
4. Eligibility
Options and Rights may be granted only to Key Employees, provided,
however, that
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the members of the Committee are not eligible to receive Options or Rights under
the Plan. A Key Employee who has been granted an Option or Right may be granted
additional Options and Rights.
5. Stock Subject to the Plan
(a) There is hereby reserved for issuance upon the exercise of
Options and Rights granted under this Plan an aggregate of 2,500,000 shares of
Common Stock, subject to the provisions of Article 10; provided, however, that
no Key Employee shall be granted in any fiscal year of the Company Options and
Rights (including Rights that may be exercised only for cash) for more than
50,000 shares, provided that a newly-hired Key Employee who will serve as an
executive officer of the Company may receive an additional one-time grant of
Options and/or Rights covering up to 50,000 shares of the Common Stock upon
commencement of employment with the Company, and provided further that such
limits shall be subject to such adjustment, if any, as the Committee deems
appropriate to reflect such events as stock dividends, stock splits,
recapitalizations, mergers, consolidations or reorganizations of or by the
Company; and
(b) Shares of Common Stock available under this Plan shall be reduced
by the sum of the aggregate number of shares of Common Stock which become
subject to outstanding Options and Rights. To the extent that shares of Common
Stock are not issued or delivered by reason of the settlement in cash (if
permitted in the applicable Agreement, expiration, termination, cancellation or
forfeiture of such Options or Rights, or by reason of the delivery or
withholding of shares of Common Stock to pay all or a portion of the exercise
price of an award, if any, or to satisfy all or a portion of the tax withholding
obligations relating to an award, then such shares of Common Stock shall again
be available under the Plan. The Committee is authorized to modify or amend
this Section 5(b) in such manner as the Committee deems appropriate for the
administration of the Plan.
6. Options
(a) Pursuant to the terms of the Plan, the Committee is hereby
authorized to grant Nonstatutory Stock Options and Incentive Stock Options to
Key Employees.
(b) All Agreements granting Options shall contain a statement that
the Option is intended to be either (i) a Nonstatutory Stock Option or (ii) an
Incentive Stock Option.
(c) The Option Period shall be determined by the Committee and
specifically set forth in the Agreement, provided, however, that an Option shall
not be exercisable after ten years from the Date of Grant in the case of an
Incentive Stock Option and after ten years and one day from the Date of ▇▇▇▇▇ in
the case of a Nonstatutory Stock Option.
(d) The aggregate Fair Market Value (determined as of the date an
Incentive Stock Option is granted) of the Common Stock with respect to which all
Incentive Stock Options granted to any one person at any time (under all stock
option plans of the person's employer corporation and its "parent" and
"subsidiary" corporations) may first become exercisable in any
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calendar year shall not exceed $100,000. For purposes of this Paragraph (d),
the terms "parent" and "subsidiary" corporations shall have the respective
meanings given to them in section 424 of the Code.
(e) All Incentive Stock Options granted under the Plan shall comply
with the provisions of the Code governing incentive stock options and with all
other applicable rules and regulations.
(f) All other terms of Options granted under this Plan shall be
determined by the Committee in its sole discretion.
7. Rights
(a) Pursuant to the terms of the Plan, the Committee is hereby
authorized to grant Rights.
(b) A Nonlimited Right may be granted under the Plan as follows:
(i) in connection with, and at the same time as, the grant of an
Option or a Limited Right under the Plan;
(ii) by amendment of an outstanding Nonstatutory Stock Option or
Limited Right granted under the Plan; or
(iii) independently of any Option or Limited Right granted under
the Plan.
(c) A Limited Right may be granted under the Plan as follows:
(i) in connection with, and at the same time as, the grant of an
Option or a Nonlimited Right under the Plan;
(ii) by amendment of an outstanding Nonstatutory Stock Option or
nonlimited Right granted under the Plan; or
(iii) independently of any Option or Nonlimited Right granted
under the Plan.
(d) A Related Right may apply, in the Committee's discretion, to all
or a portion of the Common Stock subject to its Related Right or Related Option.
(e) A Nonlimited Right granted under the Plan may be exercised in
whole or in part as provided in the Agreement and, subject to the provisions of
the Agreement and Paragraph (l) of this Article, entitles its Optionee to
receive, without any payment to the Company, either cash
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or that number of shares of Common Stock (up to the highest whole number of
shares), or a combination thereof, in the amount of or having a Fair Market
Value determined as of the Date of Exercise equal to the number of shares of
Common Stock subject to the portion of the Nonlimited Right exercised multiplied
by an amount equal to the excess of (i) the Fair Market Value per share on the
Date of Exercise of the Nonlimited Right over (ii) the ▇▇▇▇▇ ▇▇▇▇▇ of the
Nonlimited Right.
(f) A Limited Right granted under the Plan may be exercised in whole
or in part as provided in the Agreement and entitles its Optionee to receive,
without any payment to the Company, cash in an amount equal to the number of
shares of Common Stock subject to the portion of the Limited Right exercised
multiplied by an amount equal to the excess of (i) in the case of a Limited
Right that is not a Related Right to an Incentive Stock Option, (A) the Offer
Price per Share over (B) the ▇▇▇▇▇ ▇▇▇▇▇ of the Limited Right or (ii) in the
case of a Limited Right that is a Related Right to an Incentive Stock Option,
(A) the Fair Market Value per share on the Date of Exercise of such Limited
Right over (B) the ▇▇▇▇▇ ▇▇▇▇▇ of the Limited Right.
(g) Subject to the provisions of Paragraph (i) of this Article, the
Nonlimited Right Period shall be determined by the Committee and set forth in
the Agreement.
(h) Subject to the provisions of Paragraph (i) of this Article, the
Limited Right Period shall be the period beginning on the first day following
the date of the first purchase of shares of Common Stock pursuant to any Offer
and ending on the date ninety days thereafter.
(i) Notwithstanding any other provision of this Plan or any provision
of any Agreement, the following rules shall apply:
(i) a Right will expire no later than the earlier of (A) ten
years from the Date of Grant or (B) in the case of a Related Right,
the expiration of its Related Right or Related Option;
(ii) a Right may be exercised only when the Fair Market Value of
a share of Common Stock on the Date of Exercise exceeds the ▇▇▇▇▇
▇▇▇▇▇ of the Right;
(iii) a Right that is a Related Right to an Incentive Stock
Option may be exercised only when and to the extent the Related Option
is exercisable; and
(iv) a Limited Right that is a Related Right to a Nonstatutory
Stock Option or to a Nonlimited Right may be exercised with respect to
all or any portion of the shares subject to the Limited Right whether
or not its Related Right or Related Option is then exercisable to that
extent.
(j) The Company intends that this Article shall comply with the
requirements of Rule 16b-3 during the term of this Plan. Should any provision
of this Article not be necessary to
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comply with the requirements of Rule 16b-3 or should any additional provisions
be necessary for this Article to comply with the requirements of Rule 16b-3, the
Board or the Committee may amend this Plan to delete, add to or modify the
provisions of the Plan accordingly. The Company's failure for any reason
whatsoever to comply with any requirements of Rule 16b-3, and any resultant
unavailability of Rule 16b-3 to Optionees shall not impose any liability on the
Company to any Optionee or to any other party.
(k) The exercise, in whole or in part, of a Related Right shall cause
a reduction in the number of shares of Common Stock subject to its Related Right
or Related Option equal to the number of shares of Common Stock with respect to
which the Right being exercised is exercised. Similarly, the exercise, in whole
or in part, of a Related Option shall cause a reduction in the number of shares
subject to the Related Right equal to the number of shares with respect to which
the Related Option is exercised.
(l) Subject to the limitations of the Agreement and this Paragraph
(l), an Optionee may (A) elect to receive cash upon exercise of a Right and
exercise such Right or (B) exercise a Right exercisable only for cash, and upon
such election and exercise or such exercise, the Company shall settle its
obligations arising out of the exercise of the Right by the payment of cash in
the amount set forth in Paragraph (e) of this Article if the Right is a
Nonlimited Right, or in the amount set forth in Paragraph (f) of this Article if
the Right is a Limited Right; provided, however, that the Committee shall have
the sole discretion to consent to or to disapprove the election of any Optionee
to receive cash in full or partial settlement of a Right.
Any election by an Optionee for settlement in cash must be made in the
notice of exercise of the Right. In cases where an election of settlement in
cash must be consented to by the Committee, the Committee may consent to, or
disapprove, such election at any time after such election, or within such period
for taking such action as is specified in the notice of exercise and election,
and failure to give such consent shall be disapproval. Such consent may be
given in whole or as to a portion of the Right surrendered by the Optionee. If
such election to receive cash is disapproved in whole or in part, the Right
shall be deemed to have been exercised for stock, or, if so specified in the
notice of exercise and election, not to have been exercised, to the extent such
election to receive cash is disapproved.
8. Exercise
An Option or Right may be exercised, subject to the provisions of the
Agreement under which it was granted, in whole or in part by the delivery to the
Company of written notice of the exercise, in such form as the Committee may
prescribe, accompanied, in the case of an Option, by either (a) full payment for
the Common Stock with respect to which the Option is exercised; (b) delivery of
shares of Common Stock (including constructive delivery) having a Fair Market
Value on the date of surrender equal to the aggregate exercise price of the
Shares as to which said option shall be exercised; or (c) a properly executed
exercise notice and irrevocable instructions to a broker promptly to deliver to
the Company cash equal to the exercise price.
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9. Nontransferability
Except as otherwise provided in an Agreement, Options and Rights
granted under the Plan shall not be transferable otherwise than by will or the
laws of descent and distribution, and an Option or Right may be exercised,
during the Optionee's lifetime, only by the Optionee or, in the event of the
Optionee's legal disability, by the Optionee's legal representative. A Related
Right is transferable only when its Related Right or Related Option is
transferable and only with its Related Right or Related Option and under the
same conditions.
10. Capital Adjustments
The number, class and Fair Market Value of shares subject to each
outstanding Option or Right, the Option Price and the aggregate number and class
of shares for which grants thereafter may be made shall be subject to such
adjustment, if any, as the Committee in its sole discretion deems appropriate to
reflect such events as stock dividends, stock splits, recapitalizations,
mergers, consolidations or reorganizations of or by the Company.
11. Termination or Amendment
The Board shall have the power to terminate the Plan and to amend it
in any respect, provided that after the Plan has been approved by the
stockholders of the Company, the Board may not amend the Plan, without the
approval of the stockholders of the Company, if such amendment would be required
to be approved by the stockholders of the Company under the laws of the State of
New York, in order for the Plan to continue to satisfy the conditions of Rule
16b-3, in order for Incentive Stock Options to qualify as such under section 422
of the Code, or under the rules of any securities exchange on which shares of
Common Stock are listed. No termination or amendment of the Plan shall affect
adversely the rights or obligations of the holder of any Option or Right granted
under the Plan without the holder's consent.
12. Modification, Extension and Renewal of Options and Rights
Subject to the terms and conditions and within the limitations of the
Plan, the Committee may modify, extend or renew outstanding Options and Rights
granted under the Plan; or may accept the surrender of outstanding Options and
Rights (to the extent not exercised theretofore) granted under the Plan, or
outstanding options and rights (to the extent not exercised theretofore) granted
under any other stock option, stock purchase, stock appreciation rights, or
other stock-related plan of the Company or of a company which has been merged or
consolidated with the Company or a Subsidiary or which has become a Subsidiary
through the acquisition by the Company or by a Subsidiary of stock or assets of
the company, and authorize the granting of new Options and Rights pursuant to
the Plan in substitution therefor (to the extent not exercised theretofore), and
the substituted Options and Rights may specify terms different than the
surrendered options and rights or have any other provisions which are authorized
by the Plan; or may assume options and rights granted by such other company, and
such options and rights shall not reduce the number of shares
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of Common Stock available for the grant of Options and Rights under this Plan,
except to the extent that such options and rights are granted under this Plan
pursuant to a provision of a plan or agreement of merger of such other company
with the Company, and to the extent that such options and rights, if granted
under this Plan, would reduce the number of shares of Common Stock available
pursuant to the provisions of Article 5. The Company may grant options and
rights otherwise than under the provisions of this Plan and may adopt other
stock option plans or stock purchase, stock appreciation rights, or other
stock-related plans, and such options and rights and the options, rights, and
stock granted or issued under such plans shall not reduce the number of shares
of Common Stock available for the grant of Options and Rights under this Plan.
Neither the adoption or amendment of this Plan nor the submission of the Plan or
amendments for stockholder approval shall be deemed to impose any limitation on
the powers of the Company to grant or assume options or rights otherwise than
under this Plan or to adopt other stock option plans or stock purchase, stock
appreciation rights, or other stock-related plans, nor shall they be deemed to
impose any requirement of stockholder approval upon the same. Notwithstanding
the foregoing, however, no modification of an Option or Right granted under the
Plan shall alter or impair the rights or obligations of the holder of such
Option or Right without the consent of the holder.
13. Effectiveness of the Plan
The Plan and any amendments which require stockholder approval
pursuant to Article 11 are subject to approval by vote of the stockholders of
the Company within twelve months after their adoption by the Board. Subject to
such approval, the Plan and any amendments are effective on the date on which
they are adopted by the Board. Options and Rights may be granted prior to
stockholder approval of the Plan or amendments, but each such Option or Right
granted shall be subject to the approval, if required, of the Plan or amendments
by the stockholders. Except as otherwise required to satisfy the requirements
of Rule 16b-3, the day on which any Option or Right granted prior to required
stockholder approval of the Plan or amendments is granted shall be the Date of
Grant for all purposes as if the Option or Right had not been subject to such
approval. No Option or Right granted may be exercised prior to such required
stockholder approval.
14. Term of the Plan
Unless sooner terminated by the Board pursuant to Article 11, the Plan
shall terminate ten years from the date on which the Board approves the most
recent amendment to the Plan that changes either the aggregate number of shares
of Common Stock that may be issued under the Plan or the class of persons
eligible to receive Options or Rights under the Plan, and which amendment
subsequently is approved by the stockholders of the Company. No Options or
Rights may be granted after termination. Termination of the Plan shall not
affect the validity of any Option or Right outstanding on the date of
termination.
15. Indemnification of Committee
In addition to such other rights of indemnification as they may have
as Directors or
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as members of the Committee, the members of the Committee shall be indemnified
by the Company against the reasonable expenses, including attorneys' fees,
actually and reasonably incurred in connection with the defense of any action,
suit or proceeding, or in connection with any appeal therein, to which they or
any of them may be a party by reason of any action taken or failure to act under
or in connection with the Plan or any Option or Right granted hereunder, and
against all amounts reasonably paid by them in settlement thereof or paid by
them in satisfaction of a judgment in any such action, suit or proceeding, if
such members acted in good faith and in a manner which they believed to be in,
and not opposed to, the best interests of the Company.
16. General Provisions
(a) The establishment of the Plan shall not confer upon any Employee
or Key Employee any legal or equitable right against the Company, any Subsidiary
or the Committee except as expressly provided in the Plan.
(b) The Plan does not constitute inducement or consideration for the
employment of any Employee, nor is it a contract between the Company or any
Subsidiary and any Employee or Key Employee. Participation in the Plan shall
not give any Employee or Key Employee any right to be retained in the service or
employ of the Company or any Subsidiary. The Company and its Subsidiaries
retain the right to hire and discharge any Employee at any time, with or without
cause, as if the Plan never had been adopted.
(c) The interests of any Optionee under the Plan are not subject to
the claims of creditors and may not be assigned, alienated or encumbered in any
way.
(d) The Plan shall be governed, construed and administered in
accordance with the laws of the State of New York and the intention of the
Company that Incentive Stock Options granted under the Plan qualify as such
under section 422 of the Code.
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