Annual Report — [x] Reg. S-K Item 405 — Form 10-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10-K405 Form 10-K 34 132K
3: EX-10.29 Exh 10.29 7 21K
4: EX-10.30 Exh 10.30 8 44K
5: EX-10.31 Exh 10.31 7 30K
2: EX-10.5 Exh 10.5 2± 7K
6: EX-11.1 Exh 11.1 2± 10K
7: EX-13.1 Ehxibit 13.1 22± 91K
8: EX-27 Financial Data Schedule (Pre-XBRL) 2 7K
EX-10.31 — Exh 10.31
| EX-10.31 | 1st Page of 7 | TOC | ↑Top | Previous | Next | ↓Bottom | Just 1st |
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BMC WEST CORPORATION
1993 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
(AMENDED TO REFLECT 3 FOR 2 STOCK SPLIT EFFECTIVE MARCH 4, 1994 AND THE ADOPTION
OF RULE 16b-3, WHICH WAS REVISED ON MAY 31, 1996)
1. PURPOSE.
The purpose of the 1993 Non-Employee Director Stock Option Plan (the
"Plan") of BMC West Corporation (the "Company") is to promote the interests of
the Company by attracting and retaining highly qualified independent directors
by providing such individuals with an investment interest in the Company's
future success.
2. DEFINITIONS.
The following definitions shall apply to this Plan:
(a) "ANNUAL GRANT DATE" shall mean, for each fiscal year, the date on
which the stockholders of the Company have their regular annual meeting.
(b) "BOARD" or "BOARD OF DIRECTORS" shall mean the Board of Directors
of the Company.
(c) "BUSINESS DAY" shall mean any day other than a Saturday, Sunday
or Federal or California state holiday.
(d) "CHANGE OF CONTROL." A "Change in Control" of the Company shall
be deemed to have occurred if (i) there shall be consummated (x) any
consolidation or merger of the Company in which the Company is not the
continuing or surviving corporation or pursuant to which shares of the Company's
Common Stock would be converted into cash, securities or other property, other
than a merger of the Company in which the holders of the Company's Common Stock
immediately prior to the merger have the same proportionate ownership of common
stock of the surviving corporation immediately after the merger, or (y) any
sale, lease, exchange or other transfer (in one transaction or a series of
related transactions) of all, or substantially all, of the assets of the
Company, or (ii) the stockholders of the Company approve a plan or proposal for
the liquidation or dissolution of the Company, or (iii) any "person" (as defined
in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act")), shall become the "beneficial owner" (as defined in Rule
l3d-3 under the Exchange Act), directly or indirectly, of fifty (50%) percent or
more of the Company's outstanding Common Stock, or (iv) during any period of two
consecutive years, individuals who at the beginning of such period constitute
the entire Board of Directors of the Company shall cease for any reason to
constitute a majority thereof unless the election, or the nomination for
election by the Company's stockholders, of each new director was approved by a
vote of at least two-thirds of the directors then still in office who were
directors at the beginning of the period.
(e) "ELIGIBLE DIRECTOR" shall mean any person who is a member of the
Board and who is not a full or part-time employee of the Company or of any
parent or subsidiary corporation (as defined in Section 424 of the Internal
Revenue Code of 1986, as amended) of the Company, and who has not been an
employee of the Company or of any parent or subsidiary of the Company within one
(l) year prior to participation in the Plan.
(f) "FAIR MARKET VALUE" when used in reference to the purchase of
Shares pursuant to the exercise of an option shall mean (i) if the Common Stock
is listed on the New York Stock Exchange or any other established stock exchange
or on the NASDAQ National Market, the closing sales price of the Common Stock on
the relevant date as reported in the WALL STREET JOURNAL, (ii) if the Common
Stock is not then listed on an exchange or traded on the NASDAQ National Market,
the average of the closing bid and asked prices per share for the Common Stock
in the over-the-counter market as quoted on NASDAQ on such date, or (iii) if
the Common Stock is not then listed on an exchange or quoted on NASDAQ, an
amount determined in good faith by the Board of Directors of the Company.
(g) "GRANT DATE" shall mean the Initial Grant Date or the Annual
Grant Date, as appropriate.
(h) "INITIAL GRANT DATE" shall mean the later of (i) the date on
which an Eligible Director is first elected as a member of the Board by action
of the stockholders of the Company, (ii) in the case of a director who has been
an employee of the Company or a parent or subsidiary of the Company, the date on
which such director becomes an Eligible Director, and (iii) October 27, 1993.
(i) "OPTION" shall mean an option to purchase Shares granted under
this Plan.
(j) "OPTION AGREEMENT" shall mean the written agreement described in
Section 7.
(k) "SHARES" shall mean shares of the Common Stock of the Company.
3. ADMINISTRATION.
(a) GENERAL. This Plan shall be administered by the Board in
accordance with the express provisions of this Plan.
(b) POWERS OF BOARD. The Board shall have full and complete
authority to adopt such rules and regulations and to make all such other
determinations not inconsistent with the Plan as may be necessary for the
administration of the Plan. Notwithstanding the foregoing, the Company shall
have no authority or discretion as to the persons eligible to receive Options
under the Plan, or the number of Shares covered by Options under the Plan, which
matters are specifically governed by the provisions of this Plan.
4. RESTRICTIONS.
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All Options granted under the Plan shall be subject to the requirement
that, if at any time the Company shall determine, in its discretion, that the
listing, registration or qualification of the Shares subject to Options granted
under the Plan upon any securities exchange or under any state or federal law,
or the consent or approval of any government regulatory body, is necessary or
desirable as a condition of, or in connection with, the granting of such Option
or the issuance, if any, or purchase of Shares in connection therewith, such
Option may not be exercised in whole or in part unless such listing,
registration, qualification, consent or approval shall have been effected or
obtained free of any conditions not acceptable to the Company.
5. SHARES SUBJECT TO PLAN.
(a) AGGREGATE NUMBER. Subject to adjustment in accordance with
Section 7(g), an aggregate of 97,500 Shares is reserved for issuance under this
Plan. Shares sold under this Plan may be unissued Shares or reacquired Shares.
If any Options shall for any reason be canceled, terminate or expire without
having been exercised in full, Shares not purchased thereunder shall be
available again for grant under this Plan.
(b) RIGHTS AS STOCKHOLDER. No Eligible Director and no beneficiary
or other person claiming under or through such Eligible Director shall have any
rights as a stockholder with respect to Shares acquired by exercise of an Option
until the issuance (as evidenced by the appropriate entry on the books of the
Company or a duly authorized transfer agent) of a stock certificate evidencing
the Shares. Subject to Section 7(g), no adjustment shall be made for dividends
or other events for which the record date is prior to the date the certificate
is issued.
(c) RIGHTS WITH RESPECT TO SHARES. No Eligible Director and no
beneficiary or other person claiming under or through such Eligible Director
shall have any right, title or interest in or to any Shares subject to any
Option unless and until such Option is duly exercised pursuant to the terms of
this Plan.
6. NONDISCRETIONARY GRANTS
(a) INITIAL GRANT. On the Initial Grant Date, each Eligible Director
shall automatically receive the grant of an Option to purchase 2,250 Shares.
(b) REGULAR ANNUAL GRANTS. On each Annual Grant Date, immediately
after the annual election of directors, each Eligible Director then in office
shall automatically receive the grant of an Option to purchase 2,250 Shares.
(c) ADJUSTMENT. The number of Shares for which Options are granted
in accordance with this Section 6 and the number of Shares subject to any Option
shall be subject to adjustment in accordance with Section 7(g).
7. TERMS OF OPTION AGREEMENTS.
Upon the grant of each Option, the Company and the Eligible Director shall
enter into an Option Agreement which shall specify the Grant Date, the number of
Shares to which the option
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pertains, the exercise price per share, and shall include or incorporate by
reference the substance of all of the following provisions and such other
provisions consistent with this Plan as the Board may determine:
(a) OPTION TERM. Unless terminated earlier pursuant to the
provisions of Sections 7(f) or 7(h), each Option shall expire and no longer be
exercisable on a date which is ten (10) years after the Grant Date of such
Option.
(b) EXERCISE SCHEDULE. The Option shall be exercisable on the
earlier of the first anniversary of the Grant Date or the day immediately prior
to the date on which the stockholders have their annual meeting following the
Grant Date of the Option, providing that the Eligible Director is still serving
as a director of the Company at such time. Notwithstanding the foregoing, an
Option held by an Eligible Director shall become immediately exercisable in full
upon the death or disability of such Eligible Director, upon retirement after
age sixty-five (65) of such Eligible Director from the Board, upon an
unsuccessful attempt by such Eligible Director to win reelection to the Board,
or upon a Change of Control of the Company. The Initial Grant set forth in
Section 6(a) shall vest on the day of the Company's 1994 annual meeting of the
stockholders.
(c) PURCHASE PRICE. The purchase price of the Shares subject to each
Option shall be the Fair Market Value of Shares on the Grant Date of such
Option, or on the last preceding Business Day if such Grant Date is not a
Business Day.
(d) PAYMENT OF PURCHASE PRICE. The purchase price of Shares acquired
pursuant to an Option shall be paid in full at the time the Option is exercised:
(1) in cash or cash equivalents; (2) by delivery of shares of Common Stock of
the Company, valued at the Fair Market Value on the date of exercise; provided,
however, that Options may not be exercised by the delivery of Common Stock more
frequently than at six-month intervals or (3) by delivery of a properly executed
exercise notice together with such other documentation as the Board and the
broker, if applicable, shall require to effect an exercise of the option and
delivery to the Company of the sale proceeds required to pay the exercise price.
(e) TRANSFERABILITY. No Option shall be transferable otherwise than
by will or the laws of descent and distribution, and an Option shall be
exercisable during the Eligible Director's lifetime only by the Eligible
Director. The transfer by an Eligible Director to a trust created by the
Eligible Director for the benefit of the Eligible Director or the Eligible
Director's family which is revocable at any and all times during the Eligible
Director's lifetime by the Eligible Director and as to which the Eligible
Director is the sole trustee during his or her lifetime, will not be deemed to
be a transfer for purposes of the Plan. Under such rules and regulations as the
Board may establish pursuant to the terms of the Plan, a beneficiary may be
designated with respect to an Option grant in the event of the death of an
Eligible Director. If the estate of the Eligible Director is the beneficiary
with respect to the grant, any rights with respect to such grant may be
transferred to the person or entity (including a trust) entitled thereto under
the will of such Eligible Director or pursuant to the laws of descent and
distribution.
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(f) TERMINATION OF MEMBERSHIP ON THE BOARD. If an Eligible
Director's membership on the Board terminates for any reason, an Option held at
the date of termination may be exercised in whole or in part at any time within
the remaining term of the Option but only to the extent exercisable in
accordance with Section 7(b).
(g) CAPITALIZATION CHANGES. If any change is made in the Shares
subject to the Plan or subject to any Option granted under the Plan, through
merger, consolidation, reorganization, recapitalization, stock dividend,
dividend in property other than cash, stock split, liquidating dividend,
combination of shares, exchange of shares, change in corporate structure, or any
other capital reorganization, the Board shall make appropriate adjustments as to
the maximum number of Shares subject to the Plan, the number of Shares for which
Options may be granted to any Eligible Director, and the number of Shares and
price per Share covered by outstanding Options.
(h) CHANGE OF OWNERSHIP. In the event of (i) a dissolution or
liquidation of the Company or (ii) a merger or consolidation in which the
Company is not the surviving corporation, the Company shall give to the Eligible
Director, at the time of adoption of the plan for liquidation, dissolution,
merger or consolidation, either: a reasonable time thereafter within which to
exercise the Option, prior to the effectiveness of such liquidation,
dissolution, merger or consolidation, at the end of which time the Option shall
terminate; or the right to exercise the Option as to an equivalent number of
shares of stock of the corporation succeeding the Company or acquiring its
business by reason of such liquidation, dissolution, merger or consolidation.
(i) WITHHOLDING TAXES. Whenever Shares are to be issued under the
Plan, the Company shall have the right to require payment to the Company by the
person to receive such Shares of an amount sufficient to satisfy federal, state
and local withholding tax requirements prior to delivery of any certificate or
certificates representing such Shares. Payment of withholding taxes may be made
by delivery of Company stock or options to the Company.
8. USE OF PROCEEDS.
Proceeds from the sale of Shares pursuant to this Plan shall be used by the
Company for general corporate purposes.
9. LEGAL REQUIREMENTS.
Shares shall not be offered or issued under this Plan unless the offer,
issuance and delivery of such Shares shall comply with all applicable provisions
of law. domestic or foreign, Including, without limitation, the Securities Act
of 1933, as amended, and the requirements of any stock exchange upon which the
Shares may then be listed. As a condition precedent to the issuance of Shares
pursuant to a grant under this Plan, the Company may require an Eligible
Director to take any reasonable action to comply with such requirements. Any
certificates representing Shares purchased upon exercise of an Option shall bear
appropriate legends.
10. AMENDMENT AND INTERPRETATION OF PLAN.
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(a) STOCKHOLDER APPROVAL REQUIRED. The Board may amend the Plan at
any time. No amendment adopted without stockholder approval may (i) increase
the number of shares as to which Options may be granted, (ii) reduce the
exercise price below the price provided in the Plan, (iii) modify the
requirements as to eligibility for participation, or (iv) materially increase
the benefits accruing under the Plan.
(b) PROHIBITED AMENDMENTS. No amendment shall (i) change the
nondiscretionary manner in which grants are made under Section 6, or (ii) affect
the rights of the holder of any Option, except with that holder's consent.
(c) INTERPRETATION. Questions of interpretation of any of the
provisions of the Plan shall be resolved by legal counsel for the Company
selected by the Chief Executive Officer of the Company.
11. TERMINATION OR SUSPENSION OF PLAN.
The Board at any time may suspend or terminate this Plan. This Plan,
unless sooner terminated, shall terminate on the fifth anniversary of its
adoption by the Board. No Option may be granted under this Plan while this Plan
is suspended or after it is terminated. Suspension or termination of this Plan
shall not affect the rights of the holder of any Option, except with that
holder's consent.
12. EFFECTIVE DATE; STOCKHOLDER APPROVAL.
This Plan has been approved by the Board and shall become effective on
October 27, 1993, subject to its approval by the stockholders of the Company
within 12 months after the Board approval date, by the affirmative vote of the
holders of a majority of the voting-power of the shares of the Company. Options
may be granted, but not exercised, before such stockholder approval. If the
stockholders fail to approve this Plan within the required time period, any
Options granted under this Plan shall be void, and no additional Options shall
be granted.
13. DIRECTOR STATUS.
Nothing in this Plan or in any instrument executed pursuant hereto shall
confer upon any Eligible Director any right to continue as a member of the Board
of the Company or any parent or subsidiary thereof.
14. OTHER PLANS.
Nothing in this Plan is intended to be a substitute for, or shall preclude
or limit the establishment or continuation of, any other plan, practice or
arrangement for the payment of compensation or benefits to directors generally,
which the Company now has or may hereafter lawfully put into effect, including,
without limitation, any retirement, pension, insurance, stock purchase,
incentive compensation or bonus plan.
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15. APPLICABLE LAW.
This Plan shall be governed by, interpreted under, and construed and
enforced in accordance with the laws of the State of Delaware, excluding choice
of law provisions thereof.
16. SUCCESSORS AND ASSIGNS.
This Plan and any agreement with respect to an Option shall be binding upon
the successors and assigns of the Company and upon each Eligible Director and
such Eligible Director's heirs, executors, administrators, personal
representatives, permitted assignees and successors in interest.
Amended, by approval of the Board, on January ___, 1997.
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Dates Referenced Herein and Documents Incorporated by Reference
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