Exhibit 10.4
FIRST AMENDMENT
TO HAWK
CORPORATION
1997 STOCK OPTION
PLAN
HAWK CORPORATION (the “Company”), having adopted the
Hawk Corporation 1997 Stock Option Plan (the “Original
Plan”) adopted as of November 1997 and effective as of May
1998, hereby amends the Original Plan in accordance with this
FIRST AMENDMENT TO HAWK CORPORATION 1997 STOCK OPTION PLAN ,
effective as of December 31, 2008 (the “Amendment,” and
together with the Original Plan, the “Amended Plan”),
as follows:
1.
Changes to Section 1 of the
Original Plan . The
Company hereby amends Section 1 of the Original Plan as
follows:
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Section 1 of
the Original Plan is redesignated in its entirety as Section 1(a)
of the Amended Plan.
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The following
is added in its entirety as Section 1(b) of the Amended
Plan:
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This Plan and
any Options granted hereunder are intended to be exempt from the
requirements of Section 409A, and shall be interpreted and
administered in a manner consistent with those
intentions. Any provision of this Plan to the contrary
notwithstanding, Grandfathered Awards shall not be governed by the
provisions of this Plan but instead shall continue to be governed
by the provisions of the Hawk Corporation 1997 Stock Option Plan
adopted as of November 1997 and effective as of May 1998 (the
“Original Plan”) as in effect on December 31,
2004.
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2.
Changes to Section 2 of the
Original Plan . The
Company hereby amends Section 2 of the Original Plan as
follows:
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The following
is added in its entirety as Section 2(a) of the Amended
Plan:
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a. "Award" means,
individually or collectively, a grant under the Plan of
Non-Statutory Stock Options or Incentive Stock Options.
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The following
is added in its entirety as Section 2(j) of the Amended
Plan:
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j. “Fair Market
Value” shall mean, as of a given date, the value of a Share
determined as follows (in order of applicability): (i)
if on the Grant Date or other determination date the Share is
listed on an established national or regional stock exchange, is
admitted to quotation on the NYSE Alternext or is publicly traded
on an established securities market, the Fair Market Value of a
Share shall be the closing price of the Share on that exchange or
in that market (if there is more than one such exchange or market
the Committee shall determine the appropriate exchange or market)
on the Grant Date or such other determination date (or if there is
no such reported closing price, the Fair Market Value shall be the
mean between the highest bid and lowest asked prices or between the
high and low sale prices on that trading day) or, (ii) if no sale
of Shares is reported for that trading day, on the next preceding
day on which any sale has been reported. If the Share is
not listed on such an exchange, quoted on such system or traded on
such a market, Fair Market Value shall be the value of the Share as
determined by the determined by such methods or procedures as shall
be established from time to time by the Committee in good faith in
a manner consistent with Section 409A.
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Sections 2(a),
2(b), 2(c), 2(d), 2(e), 2(f), 2(g), 2(h), 2(j), 2(k), 2(l), 2(m),
2(n), 2(o), 2(q), 2(r) and 2(s) of the Original Plan are
redesignated in their entirety as Sections 2(b), 2(c), 2(d), 2(e),
2(f), 2(g), 2(h), 2(i), 2(m), 2(n), 2(o), 2(p), 2(q),
2(s), 2(w), 2(x) and 2(y), respectively, of the Amended
Plan.
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The following
is added in its entirety as Section 2(k) of the Amended
Plan:
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k.
“Grandfathered Options” shall mean all Options granted
under the Plan which were earned and vested on or before December
31, 2004. Grandfathered Options are subject to the
provisions of Section 1.2 above.
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The following
is added in its entirety as Section 2(l) of the Amended
Plan:
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l. “Grant
Date” shall mean, as determined by the Committee, the latest
to occur of: (i) the date as of which the Committee
approves an Award, (ii) the date on which the recipient of an Award
first becomes eligible to receive an Award under this Plan, or
(iii) any other date as may be specified by the
Committee.
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The following
is added in its entirety as Section 2(r) of the Amended
Plan:
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r. “Option
Price” shall mean the price at which a Share may be purchased
by an Optionee pursuant to the exercise of an Option.
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The following
is added in its entirety as Section 2(t) of the Amended
Plan:
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“Original
Plan” has the meaning set forth in Section 1(a).
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The following
is added in its entirety as Section 2(u) of the Amended
Plan:
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“Plan” shall mean this 1997 Stock
Option Plan of the Company, as amended.
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The following
is added in its entirety as Section 2(v) of the Amended
Plan:
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“Section
409A” shall mean Section 409A of the Code and the U.S.
Department of Treasury regulations and other interpretive guidance
issued thereunder.
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3.
Changes to Section 5 of the
Original Plan . The
Company hereby amends Section 5 of the Original Plan as
follows:
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The first
sentence of Section 5(a) is deleted from the Original Plan and is
replaced in its entirety in the Amended Plan by the
following:
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Each Option
shall be evidenced by a written agreement that may contain any term
deemed necessary or desirable by the Committee, subject to the
provisions of Section 409A and provided such terms are not
inconsistent with this Plan or any applicable law.
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The last
sentence of Section 5(b) (exclusive of subsections 5(b)(i), (ii),
and (iii) of the Original Plan) is deleted from the Original Plan
and is replaced in its entirety in the Amended Plan by the
following:
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The Committee
may from time to time in granting Options to Directors,
Officers
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