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LARSON-JUHL CANADA
2000 STOCK APPRECIATION RIGHTS PLAN
As of May 1, 2000,
unless otherwise noted
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LARSON-JUHL CANADA
2000 STOCK APPRECIATION RIGHTS PLAN
TABLE OF CONTENTS
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ARTICLE I - DEFINITIONS...........................................................................................1
ARTICLE II - THE PLAN.............................................................................................3
2.1 Name............................................................................................3
2.2 Purpose.........................................................................................3
2.3 Effective Date..................................................................................3
ARTICLE III - PARTICIPANTS........................................................................................3
ARTICLE IV - ADMINISTRATION.......................................................................................3
4.1 Duties and Powers of the Committee..............................................................3
4.2 Interpretation; Rules...........................................................................4
4.3 No Liability....................................................................................4
4.4 Majority Rule...................................................................................4
4.5 Company Assistance..............................................................................4
ARTICLE V - NUMBER OF SARS TO BE AWARDED UNDER THE PLAN...........................................................4
5.1 Limitations.....................................................................................4
5.2 Adjustment and Ownership Changes................................................................4
ARTICLE VI - STOCK APPRECIATION RIGHTS............................................................................5
6.1 SAR Awards......................................................................................5
6.2 Determination of Price..........................................................................5
6.3 Exercise of SAR.................................................................................5
6.4 Payment of SAR Spread...........................................................................5
6.5 Nontransferibility..............................................................................6
6.6 No Shareholder Rights...........................................................................5
6.7 Termination of Employment or Service............................................................6
6.8 Employment Rights...............................................................................6
6.9 Company Right to Repurchase Options.............................................................6
ARTICLE VII - TERMINATION AND AMENDMENT...........................................................................6
7.1 Termination and Amendment.......................................................................6
7.2 Effect on Recipient's Rights....................................................................6
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ARTICLE VIII - RELATIONSHIP TO OTHER COMPENSATION PLANS...........................................................6
ARTICLE IX - MISCELLANEOUS........................................................................................6
9.1 Replacement or Amended Awards...................................................................6
9.2 Forfeiture for Competition......................................................................7
9.3 Plan Binding on Successors......................................................................7
9.4 Singular, Plural; Gender........................................................................7
9.5 Headings, etc., No Part of Plan.................................................................7
Exhibit A - SAR Agreement.......................................................................................A-1
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LARSON-JUHL CANADA
2000 STOCK APPRECIATION RIGHTS PLAN
ARTICLE I
DEFINITIONS
As used herein, the following terms have the following meanings unless
the context clearly indicates to the contrary:
"Affiliate" of a company shall mean a Parent or Subsidiary of
the company, or another entity under common control with the
company.
"Albecca" shall mean Albecca Inc., a Georgia corporation.
"Board" shall mean the Board of Directors of Albecca.
"Committee" shall mean the committee of the Board designated
by the Board as the "Compensation Committee," which committee
shall have the duties and authority set forth herein in
addition to any other authority expressly granted by the
Board. At any time that the Board shall not have appointed a
committee as described above, any reference herein to the
Committee shall mean the Board.
"Company" shall mean Larson-Juhl Canada Ltd., a Canadian
corporation.
"Director" shall mean a member of the Board.
"Employer" shall mean the entity that employs a Recipient.
"Fair Market Value" on any date shall mean (i) the closing
sales price of the Stock, on such date on the national
securities exchange having the greatest volume of trading in
the Stock during the thirty-day period preceding the day the
value is to be determined or, if such exchange was not open
for trading on such date, the next preceding date on which it
was open; or (ii) if the Stock is not traded on any national
securities exchange, the average of the closing high bid and
low asked prices of the Stock on the over-the-counter market
on the day such value is to be determined, or in the absence
of closing bids on such day, the closing bids on the next
preceding day on which there were bids; or (iii) if the Stock
also is not traded on the over-the-counter market, the fair
market value as determined in good faith by the Committee.
"Initial Public Offering" shall mean an underwritten public
offering of the Stock on a firm commitment basis that results
in gross proceeds to the Company of at least US $15,000,000
and after which the Stock has been listed on, admitted to or
approved for
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trading on a national securities exchange, the NASDAQ Stock
Market or another similar trading market.
"Officer" shall mean a person who constitutes an officer of
Albecca or the Company for the purposes of Section 16 of the
Exchange Act, as determined by reference to such Section 16
and to the rules, regulations, judicial decisions, and
interpretative or "no-action" positions with respect thereto
of the Securities and Exchange Commission, as the same may be
in effect or set forth from time to time.
"Parent" shall mean any corporation or limited liability
company (other than the Employer) in an unbroken chain of
corporations and limited liability companies ending with the
Employer if, at the time of the grant (or modification) of the
SAR, each of the entities other than the Employer owns either
(i) stock possessing 50 percent or more of the total combined
voting power of all classes of stock, in one of the other
corporations or (ii) 50 percent or more of the total combined
voting power of the membership interests in one of the other
limited liability companies, in such chain.
"Plan" shall mean the Company's 2000 Stock Appreciation Rights
Plan, the terms of which are set forth herein.
"Recipient" shall mean a person to whom a SAR has been granted
hereunder.
"SAR" shall mean a stock appreciation right in respect of the
stock, which is the right to receive an amount equal to the
SAR Spread.
"SAR Agreement" shall mean an agreement between the Company
and a Recipient under which the Recipient is awarded a SAR
hereunder, a sample form of which is attached hereto as
Exhibit A (which form may be varied or replaced by the
Committee in granting a SAR).
"SAR Price" shall mean the base value established by the
Committee for a SAR on the date the SAR is granted and which
is used in determining the amount of benefit, if any, paid to
a Recipient.
"SAR Spread" shall mean, with respect to any SAR, an amount
equal to (a) the Fair Market Value of a share of Stock on the
date such SAR is exercised, less (b) the SAR Price of such
SAR, provided that such number is a positive number.
"Stock" shall mean the Class A Common Stock, US $0.01 par
value, of Albecca or, in the event that the outstanding shares
of Stock are hereafter changed into or exchanged for shares of
a different stock or securities of Albecca or some other
entity, such other stock or securities.
"Subsidiary" shall mean any corporation or limited liability
company (other than the Employer) in an unbroken chain of
corporations and limited liability companies beginning with
the Employer if, at the time of the grant (or modification) of
the SAR, each of the corporations and limited liability
companies other than the last corporation in the unbroken
chain owns either (i) stock possessing 50 percent or more of
the total
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combined voting power of all classes of stock in one of the
other corporations or (ii) 50 percent or of the total combined
voting power of all membership interests in one of the other
limited liability companies, in such chain.
"Team Member" shall mean an employee of the Employer.
ARTICLE II
THE PLAN
2.1 Name. This Plan shall be known as the Company's "2000 Stock
Appreciation Rights Plan."
2.2 Purpose. The purpose of the Plan is to advance the interests
of the Team Member, the Company, its Subsidiaries and its shareholders by
affording certain Team Members and Directors of the Company and its
Subsidiaries, as well as key consultants and advisors to the Company or any
Subsidiary, an opportunity to participate in the increase in the value of
Albecca, the Company's Parent. The objective of the issuance of SARs is to
promote the growth and profitability of the Company and its Subsidiaries because
the Recipients will be provided with an additional incentive to achieve the
Company's objectives through participation in its success and growth and by
encouraging their continued association with or service to the Company.
2.3 Effective Date. The Plan shall become effective on May 1,
2000.
ARTICLE III
PARTICIPANTS
The persons eligible to participate in the Plan shall consist of all
persons whose participation in the Plan the Committee determines to be in the
best interests of the Company which may include, but not be limited to, all
Directors and Team Members of the Company or any Subsidiary, as well as key
consultants and advisors to the Company or any Subsidiary.
ARTICLE IV
ADMINISTRATION
4.1 Duties and Powers of the Committee. The Plan shall be
administered by the Committee. The Committee shall select one of its members as
its Chairman and shall hold its meetings at such times and places as it may
determine. The Committee shall keep minutes of its meetings and shall make such
rules and regulations for the conduct of its business as it may deem necessary,
if any. The Committee shall have the power to act by unanimous written consent
in lieu of a meeting, and to meet telephonically. In administering the Plan, the
Committee's actions and determinations shall be binding on all interested
parties. The Committee shall have the power to grant SARs in accordance with the
provisions of the Plan. Subject to the provisions of the Plan, the Committee
shall have the discretion and authority to determine those individuals to whom
SARs will be granted, the number of SARs, such other matters as are specified
herein, and any other terms and conditions of a SAR Agreement. Without
limitation of the foregoing, SARs may be granted subject to conditions based on
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the performance of the Company and/or the Recipient, or any other factor the
Committee deems relevant. The Committee shall also have the discretion and
authority to delegate to any Officer its powers to grant SARs under the Plan to
any person who is a Team Member of the Company but not an Officer or Director.
To the extent not inconsistent with the provisions of the Plan, the Committee
may give a Recipient an election to surrender a SAR in exchange for the grant of
a new SAR, and shall have the authority to amend or modify an outstanding SAR
Agreement, or to waive any provision thereof, provided that the Recipient
consents to such action. In performing its duties hereunder, the Committee shall
act in good faith in a reasonable manner for the benefit of the Company.
4.2 Interpretation; Rules. Subject to the express provisions of
the Plan, the Committee also shall have complete authority to interpret the
Plan, to prescribe, amend, and rescind rules and regulations relating to it, to
determine the form, details and provisions of each SAR Agreement (which may or
may not conform to the provisions of the sample SAR Agreement attached hereto as
Exhibit A), and to make all other determinations necessary or advisable for the
administration of the Plan, including, without limitation, the amending or
altering of the Plan and any SARs granted hereunder as may be required to comply
with or to conform to any federal, provential, state, or local laws or
regulations.
4.3 No Liability. Neither any member of the Board nor any member
of the Committee shall be liable to any person for any act or determination made
in good faith with respect to the Plan or any SAR granted hereunder.
4.4 Majority Rule. A majority of the members of the Committee
shall constitute a quorum, and any action taken by a majority at a meeting at
which a quorum is present, or any action taken without a meeting evidenced by a
writing executed by all the members of the Committee, shall constitute the
action of the Committee.
4.5 Company Assistance. The Company shall supply information to
the Committee on all matters relating to eligible persons, their employment,
death, retirement, disability, or other termination of employment, and such
other pertinent facts as the Committee may require. The Company shall furnish
the Committee with such clerical and other assistance as is necessary in the
performance of its duties.
ARTICLE V
NUMBER OF SARS TO BE AWARDED UNDER THE PLAN
5.1 Limitations. Subject to any adjustment pursuant to the
provisions of Section 5.2 hereof, the maximum number of SARs that may be awarded
hereunder shall be 500,000. The number of SARs that may be awarded under the
Plan may be increased from time to time in accordance with Article VIII.
5.2 Adjustment and Ownership Changes.
(a) If (i) the outstanding shares of Stock are changed
into or exchanged for a different number or kind of shares or other securities
of Albecca by reason of merger, consolidation, reorganization, recapitalization,
reclassification, combination or exchange of shares, stock split, or a
transaction of a similar nature, (ii) there is an increase in the number of
issued and outstanding shares
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through the declaration of a stock dividend, (iii) any spin-off, split-off or
other distribution of assets materially affects the price of Albecca's Stock, or
(iv) there is any assumption and conversion to the Plan by Albecca of an
acquired company's outstanding SARs, then the terms of any outstanding SAR shall
be adjusted accordingly by the Committee.
(b) If Albecca shall be a party to any reorganization
pursuant to which it will not survive, including a merger, consolidation, or
acquisition of the Stock or substantially all the assets of Albecca, the
Committee shall have the right, at its discretion, to declare that all SARs
granted under the Plan shall become exercisable immediately prior to the
happening of such event, notwithstanding the provisions of the respective SAR
Agreements regarding exercisability, or to notify all Recipients that all SARs
granted under the Plan shall be assumed by the successor corporation or
substituted on an equitable basis with SARs issued by such successor
corporation.
(c) If Albecca is to be liquidated or dissolved in
connection with a reorganization described in Section 5.2(b), the provisions of
such Section shall apply. In all other instances, upon the adoption of a plan of
dissolution or liquidation of Albecca, the Committee may, at its discretion,
accelerate the exercisability of any one or more SARs. Whether or not such an
acceleration occurs, all outstanding SARs shall be canceled to the extent they
remain unexercised at the time such transaction is consummated.
(d) The adjustments described in paragraphs (a) through
(c) of this Section 5.2, and the manner of their application, shall be
determined solely by the Committee. The adjustments required under this Article
V shall apply to any successors of Albecca and shall be made regardless of the
number or type of successive events requiring such adjustments.
ARTICLE VI
STOCK APPRECIATION RIGHTS
6.1 SAR Awards. The Committee may grant Awards of SARs under this
Plan upon such restrictions, terms and conditions as the Committee may
prescribe. Each Award shall be governed by a SAR Agreement between the Company
and the Recipient which shall contain the restrictions, terms and conditions
prescribed by the Committee.
6.2 Determination of Price. The SAR Price shall be established by
the Committee in its sole discretion.
6.3 Exercise of SAR. A SAR shall be exercisable at such time as
may be determined by the Committee. Upon exercise of a SAR, the Recipient shall
be entitled, subject to the terms and conditions of this Plan and the SAR
Agreement, to receive an amount equal to the SAR Spread.
6.4 Payment of SAR Spread. Payment of the SAR Spread shall be made
in cash pursuant to the terms and conditions set forth in the SAR Agreement, and
may be paid in installments in the sole discretion of the Committee.
6.5 Nontransferability. No SAR under the Plan shall be
transferable by a Recipient other than by will or the laws of descent and
distribution. During the lifetime of a Recipient, SARs shall be
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exercisable only by such Recipient (or by such Recipient's guardian or legal
representative, should one be appointed).
6.6 No Shareholder Rights. A Recipient shall have no rights as a
shareholder with respect to such SAR. In addition, no adjustment shall be made
for dividends (ordinary or extraordinary, whether in cash, securities or other
property) or distributions except as provided in Article V hereof.
6.7 Termination of Employment or Service. The Committee shall have
the power to specify, with respect to the SARs awarded to a particular
Recipient, the effect upon such Recipient's right to exercise a SAR upon
termination of such Recipient's employment or service under various
circumstances, which effect may include immediate or deferred termination of
such Recipient's rights under a SAR, or acceleration of the date upon which a
SAR may be exercised.
6.8 Employment Rights. Nothing in the Plan or in any SAR Agreement
shall confer on any person any right to continue in the employ of the Company or
any of its Subsidiaries, or shall interfere in any way with the right of the
Company or any of its Subsidiaries to terminate such person's employment at any
time.
6.9 Company Right to Repurchase or Convert SARs. The Company shall
have such rights to repurchase a SAR, or convert a SAR to an option for Stock,
as may be specified in the applicable SAR Agreement.
ARTICLE VII
TERMINATION AND AMENDMENT
7.1 Termination and Amendment. The Board may at any time amend or
terminate the Plan.
7.2 Effect on Recipient's Rights. No such amendment or termination
of the Plan shall affect adversely a Recipient's rights under a SAR Agreement
without the consent of the Recipient or his or her legal representative.
ARTICLE VIII
RELATIONSHIP TO OTHER COMPENSATION PLANS
The adoption of the Plan shall not affect any other stock option,
incentive, or other compensation plans in effect for Albecca, the Company, or
any of their Subsidiaries; nor shall the adoption of the Plan preclude Albecca,
the Company or any of their Subsidiaries from establishing any other form of
incentive or other compensation plan for Team Members or Directors of Albecca,
the Company or any of their Subsidiaries.
ARTICLE IX
MISCELLANEOUS
9.1 Replacement or Amended Awards. At the sole discretion of the
Committee, and subject to the terms of the Plan, the Committee may modify
outstanding SARs or accept the surrender of
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outstanding SARs and grant new SARs in substitution for them. No modification of
a SAR shall adversely affect a Recipient's rights under a SAR Agreement,
however, without the consent of the Recipient or his or her legal
representative.
9.2 Forfeiture for Competition. If a Recipient provides services
to a competitor of Albecca, the Company, or any of their Subsidiaries, whether
as an employee, officer, director, independent contractor, consultant, agent,
investor, financier or otherwise, as determined in the sole discretion of the
Committee, then that Recipient's rights under any SARs outstanding hereunder
shall be forfeited and terminated, subject in each case to a determination to
the contrary by the Committee. The Committee shall cause notice of such
forfeiture to be given to the Recipient, but a delay in the giving of such
notice shall not affect such forteiture.
9.3 Plan Binding on Successors. The Plan shall be binding upon the
successors and assigns of the Company.
9.4 Singular, Plural; Gender. Whenever used herein, nouns in the
singular shall include the plural, and the masculine pronoun shall include the
feminine gender.
9.5 Headings, etc., No Part of Plan. Headings of Articles and
Sections hereof are inserted for convenience and reference; they do not
constitute part of the Plan.
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Exhibit A to
Larson-Juhl Canada
2000 SAR Plan
Form of SAR Agreement
LARSON-JUHL CANADA
SAR AGREEMENT
THIS SAR AGREEMENT (this "Agreement"), entered into as of this 1st day
of May, 2000, is by and between Larson-Juhl Canada, Ltd. a company incorporated
under the laws of the province of Ontario (the "Company"), and ________________
__________________ (the "Recipient").
WHEREAS, on May 1, 2000, the Company has adopted a stock appreciation
rights plan, known as the Company's "2000 Stock Appreciation Rights Plan" (the
"Plan"); and
WHEREAS, the Committee has granted the Recipient a SAR as set forth
below, and in consideration of the awarding of that SAR the Recipient intends to
remain in the employ of the Company; and
WHEREAS, the Company and the Recipient desire to enter into a written
agreement with respect to such SAR in accordance with the Plan.
NOW, THEREFORE, as an employment incentive and also in consideration of
the mutual covenants contained herein, the parties hereto agree as follows.
1. Incorporation of Plan. This SAR is granted pursuant to the
provisions of the Plan and the terms and definitions of the Plan are
incorporated herein by reference and made a part hereof. A copy of the Plan has
been delivered to, and receipt is hereby acknowledged by, the Recipient.
2. Award of SARs. Subject to the terms, restrictions, limitations
and conditions stated herein, the Company hereby evidences its award to the
Recipient, not in lieu of salary or other compensation, of stock appreciation
rights (the "SARs") with respect to the number of shares of Albecca's Class A
Common Stock set forth on Schedule A attached hereto and incorporated herein by
reference. The SARs shall be exercisable in the amounts and at the time
specified on Schedule A. The SARs shall expire and shall not be exercisable on
and after the date, if any, specified on Schedule A, and shall terminate as
provided herein.
3. SAR Price. The SAR Price shall be as specified on Schedule A.
4. Exercise Terms. The Recipient must exercise the SARs as to at
least the lesser of 100 shares or the number of exercisable SARs which remain
unexercised, except as provided on Schedule A hereto.
5. SARs Non-Transferable. No SAR shall be transferable by
Recipient other than by will or the laws of descent and distribution. During the
lifetime of a Recipient, SARs shall be exercisable only by such Recipient (or by
such Recipient's guardian or legal representative, should one be appointed).
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6. Vesting. The SARs shall vest and become exercisable, upon the
earliest of (a) the Recipient's death, (b) the termination of the Recipient's
employment with the Company or any of its Subsidiaries due to the Recipient's
Long Term Disability, (c) immediately prior to the Sale of Albecca or Change in
Control (as hereinafter defined), (d) the Recipient attaining the age of 55 and
the expiration of at least four years since the first award to the Recipient
under the Plan (whether pursuant to this Agreement or another SAR Agreement),
(e) the completion by the Recipient of 25 years of service with the Company and
its Subsidiaries and the expiration of at least three and one-half years since
the first award to the Recipient under the Plan (whether pursuant to this
Agreement or another SAR Agreement), or (f) the date that is three and one-half
years beyond the Date of Award of these SARs.
7. Exercise of SARs. To the extent vested, these SARs may only be
exercised by the Recipient (or by the Recipient's administrators, executors or
personal representatives under Section 17 hereof) by a written notice (in
substantially the form of the Notice of Exercise attached hereto as Schedule B)
signed by the Recipient (or by such administrators, executors or personal
representatives) and delivered or mailed to the Company as specified in Section
17(c) hereof. Any such notice shall (a) specify the number of SARs which the
Recipient (or such administrators, executors or personal representatives, as the
case may be) then elects to exercise hereunder, and (b) contain such other
information as may be reasonably required for the proper administration of the
plan.
8. Adjustment in SARs. The number of SARs awarded hereunder and
other terms hereof are subject to adjustment during the term of this Agreement
in accordance with Section 5.2 of the Plan.
9. Company's Right to Purchase SARs. The Company shall have the
right to purchase the SARs from the Recipient pursuant to the following terms
and conditions:
(a) If the Recipient's employment with the Company or any
of its Subsidiaries terminates for any reason (including death or disability)
other than the Recipient's Willful Misconduct (as defined below) and thereafter
the Recipient is not employed by either Albecca, the Company or any of their
Subsidiaries, the Company shall have the right to purchase from the Recipient
all of the SARs or any portion of the SARs designated by the Committee, and upon
the Company's exercise of such right the Recipient shall sell the SARs or
designated portion thereof to the Company. The purchase price for the SARs or
designated portion thereof shall be the applicable SAR Spread, determined as of
the time the Company exercises such right. The Company shall pay such purchase
price in 10 equal annual installments beginning on the first anniversary of the
SAR Purchase Notice (as defined below), together with interest at the 1-year
U.S. treasury bill rate.
(b) At any time after the Recipient reaches age 60, the
Company shall have the right to purchase from the Recipient all of the SARs or
any portion of the SARs designated by the Committee, and upon the Company's
exercise of such right the Recipient shall sell the SARs or designated portion
thereof to the Company. The purchase price for the SARs or designated portion
thereof shall be the applicable SAR Spread, determined as of the time the
Company exercises such right. The Company shall pay such purchase price in 10
equal annual installments beginning on the first anniversary of the SAR Purchase
Notice, together with interest at the 1-year U.S. treasury bill rate plus 2%.
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(c) If the Recipient's employment status with the Company
or any of its Subsidiaries changes in such a way that the Committee determines,
in its sole discretion, that the Recipient's position with the Company or any of
its Subsidiaries is no longer entitled to "SAR status," then the Company shall
have the right to purchase from the Recipient all of the SARs or any portion of
the SARs designated by the Committee, and upon the Company's exercise of such
right the Recipient shall sell the SARs or designated portion thereof to the
Company. The purchase price for the SARs or designated portion thereof shall be
the applicable SAR Value, determined as of the time the Company exercises such
right. The Company shall pay the first 20% of such purchase price within thirty
days after the SAR Purchase Notice, and shall pay the balance of such purchase
price, if any, in four (4) equal annual installments beginning on the first
anniversary of the SAR Purchase Notice, together with interest at the 1-year
U.S. treasury bill rate.
(d) If exercised, any such purchase right shall be
exercised by the Company giving notice thereof to the Recipient (a "SAR Purchase
Notice"). The Company may prepay in whole or part, at any time and from time to
time, without penalty or premium, any amount owed by the Company to the
Recipient under subsection (a), (b) or (c) above.
(e) Immediately prior to the closing of an Initial Public
Offering, provided Albecca consents, the Company shall, in its sole discretion,
have the right to convert the SARs into options for Stock, on equivalent
economic terms to the SARs, all in accordance with U.S. and Canadian provincial
securities laws.
10. Recipient's Right to Exercise SARs. Recipient shall have the
right to exercise the SARs pursuant to the following terms and conditions:
(a) At any time before the Recipient reaches age 55 or
the Recipient completes 25 years of service with the Company and its
Subsidiaries, the Recipient shall have the right to exercise all or any portion
of the SARs for the SAR Spread, upon giving SAR Exercise Notice (as defined
below), provided that the Recipient shall not have the right to exercise in any
calendar year SARs having a combined SAR Spread at the time of exercise of more
than US $50,000. The Company shall pay the SAR Spread within thirty days after
the SAR Exercise Notice.
(b) After the Recipient reaches age 55 or upon the
Recipient completing 25 years of service with the Company or its Subsidiaries,
the Recipient shall have the right to exercise all (but not less than all) of
the SARs. The Company shall pay the greater of (i) the first US $250,000 of the
SAR Spread or (ii) 1/6 of the SAR Spread within thirty days after the SAR
Exercise Notice, and shall pay the balance (if any) in five (5) equal annual
installments beginning on the first anniversary of the SAR Exercise Notice,
together with interest at the 1-year U.S. treasury bill rate plus 2%.
(c) If the Recipient's employment with the Company or any
of its Subsidiaries terminates for any reason other than the Recipient's Willful
Misconduct (and other than the Recipient's death or Long Term Disability, which
events are dealt with in subsection (d) below), and thereafter the Recipient is
not employed by either Albecca, the Company or any of their Subsidiaries, the
Recipient shall have the right to exercise all (but not less than all) of the
SARs. The Company shall pay the SAR Spread in 10 equal annual installments
beginning on the first anniversary of the SAR Exercise Notice, together with
interest at the 1-year U.S. treasury bill rate.
(d) If the Recipient's employment with the Company or any
of its Subsidiaries
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terminates due to the Recipient's death or Long Term Disability, the Recipient's
administrators, executors or personal representatives, as the case may be, shall
have the right to exercise all (but not less than all) of the SARs. The Company
shall pay the first US $250,000 of the SAR Spread within thirty days after the
SAR Exercise Notice, and shall pay the balance (if any) in five (5) equal annual
installments beginning on the first anniversary of the SAR Exercise Notice,
together with interest at the 1-year U.S. treasury bill rate plus 2%.
(e) The exercise of the SARs by the Recipient (or by the
Recipient's administrators, executors or personal representatives under
subsection (a), (b), (c) or (d) above, as applicable shall be made by giving
notice of the Recipient's intent to exercise to the Company (a "SAR Exercise
Notice"). The Company may prepay in whole or part, at any time and from time to
time, without penalty or premium, any amount owed by the Company to the
Recipient under subsection (a), (b), (c) or (d) above.
(f) Recipients right's under this Section 10 shall
terminate upon a conversion of the SARs into options for Stock as provided in
Section 9 (e) hereof.
11. Date of Award. These SARs were awarded by the Board of
Directors of the Company on the date set forth in Schedule A (the "Date of
Award").
12. Confidentiality. The Recipient shall not during his or her
employment with the Company and any of its Subsidiaries, and for a period of two
years after his or her employment in the case of Confidential Information, and
at any time after his or her employment in the case of Trade Secrets (for as
long as the information constitutes a Trade Secret), for whatever reason use
personally (except in the proper performance of his or her duties with the
Company) or divulge or communicate to any corporation, partnership, trust,
limited liability company, or other business entity or individual, except to
those officers and Team Members of the Company whose responsibility it is to
know the same, or as specifically directed by the Board or a court or other
governmental authority, any Confidential Information or Trade Secrets which may
have been disclosed to the Recipient during his or her employment or which may
otherwise have come to his or her attention after execution of this Agreement.
"Confidential Information" means all competitively sensitive information
relating to the past, current or future business of Albecca, the Company or any
of their Subsidiaries (other than Trade Secrets and other than information in
the public domain on the date hereof or that enters the public domain after the
date hereof through no fault of the Recipient), including, without limitation:
all technical data; research and development information; engineering or other
data; designs, specifications, processes and formulae; manufacturing or planning
procedures, techniques or information; marketing plans, strategies and
forecasts; business and product development plans, strategies and forecasts;
financial statements, budgets, prices, costs and financial projections;
accounting procedures or financial information; names and details of consumers,
customers, suppliers and agents; Team Member details; and secret information;
together with the possible or likely function, purpose or application of that
information whether in the current activities of Albecca, the Company or any of
their Subsidiaries or fields to which the activities of Albecca, the Company or
any of their Subsidiaries may reasonably extend from time to time; any part of
or improvements to that information, and any recommendation, test or report of
Albecca, the Company or any of their Subsidiaries or any consultant or agent in
connection with that information; and whether such information is oral, written,
recorded or stored by electronic, magnetic, electromagnetic or other form or
process or otherwise in a machine readable
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form, translated from the original form, recompiled, made into a compilation,
wholly or partially copied, modified, updated or otherwise altered, or
originated or obtained by, or coming into the possession, custody, control or
knowledge of Albecca, the Company or any of their Subsidiaries either alone or
jointly.
"Trade Secrets" means any information pertaining to the past, current or future
business of Albecca, the Company or any of their Subsidiaries which (i) derives
economic value, actual or potential, from not being generally known to, and not
being readily ascertainable by proper means by, other persons who can obtain
economic value from its disclosure or use, and (ii) is the subject of efforts
that are reasonable under the circumstances to maintain its secrecy.
13. Nonsolicitation. The Recipient acknowledges and recognizes
the highly competitive nature of the Company's business and accordingly agrees
that, to induce the Company to consummate the transactions contemplated by this
Agreement, Recipient shall not, without the prior written consent of the
Company, during Recipient's employment and for a period of two (2) years
thereafter: (i) solicit business substantially similar to the business of the
Company or any of its Subsidiaries from anyone who is or becomes an active or
prospective customer of Albecca, the Company or any of their Subsidiaries with
whom Recipient had direct, material contact with during the last twelve (12)
months of Recipient's employment with the Company or its Subsidiaries; or (ii)
solicit for employment any Team Member of Albecca, the Company or their
Subsidiaries; and Recipient shall not attempt to do any of the things (or
directly or indirectly assist anyone else in doing or attempting to do any of
the things) specified in subsections (i) or (ii) above. The parties agree that
the restrictions set forth in this Section 13 are fair and reasonable in light
of the consideration provided to Recipient, that the restrictions are necessary
to protect the Company's legitimate business interests, and that upon any
violation of this Section 13 the Company may cease making any payments to the
Recipient otherwise required under Section 9 or 10.
14. Severability. The provisions of this Agreement are intended to
be reasonable and not to violate the public policies of the jurisdictions in
which it is to be enforced. If a judicial determination is made that any of the
provisions of this Agreement constitutes an unreasonable or otherwise
unenforceable restriction against the Recipient, such provision shall be
modified to the extent necessary to render such provision reasonable and
enforceable. Further, the provisions of this Agreement shall be deemed severable
and the invalidity or unenforceability of any provision shall not affect the
validity or enforceability of the other provisions hereof.
15. Termination of SARs. All rights of the Recipient under the
SARs shall terminate (a) as to the unvested portion thereof, if the Recipient's
employment with the Company or any of its Subsidiaries terminates for any reason
and thereafter the Recipient is not employed by either the Company or any of its
Subsidiaries, immediately upon such termination (other than termination of
employment due to the Recipient's death or Long Term Disability), (b) as to all
of the SARs, whether or not vested, if the Recipient's employment with the
Company or any of its Subsidiaries terminates due to Willful Misconduct,
immediately upon the later of such termination or the Company's giving notice to
the Recipient of such Willful Misconduct, (c) as to all of the SARs or the
designated portion to be purchased, if the Company gives a SAR Purchase Notice,
immediately upon the giving of the SAR Purchase Notice, (d) as to all of the
SARs, one year after the death of the Recipient or termination of employment of
a Recipient due to the Recipient's Long Term Disability; or (e) as to all of the
SARs, immediately upon the expiration of the SARs. The termination of such
rights shall not relieve the Recipient of any of his or her obligations
hereunder, which shall survive any such termination.
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16. Definitions. For purposes of this Agreement:
(a) "Long Term Disability" means the Recipient qualifies
for the Company's Group Long Term Disability Plan, for the US management group,
as amended from time to time and in effect at the time of the long-term
disability. Notwithstanding anything to the contrary, any payments made to the
Recipient pursuant to the Company's Long Term Disability Plan will not reduce
the amount to be paid to the Recipient pursuant to the terms of this Agreement.
In addition, any amounts paid to the Recipient pursuant to the terms of this
Agreement will not, where legally allowable, reduce any qualifying payments made
to the Recipient pursuant to the Company's Long Term Disability Plan.
(b) "SAR Spread" shall mean, with respect to any SAR, an
amount equal to (a) the Fair Market Value of a share of Stock on the date such
SAR is exercised, less (b) the SAR Price of such SAR.
(c) "Sale of Albecca or Change in Control" means (i) a
merger involving Albecca in which Albecca is not the surviving entity, (ii) a
merger involving Albecca in which Albecca is the surviving entity but the
persons holding equity securities of Albecca immediately before the merger do
not hold the power to elect a majority of the members of the Board of Directors
of Albecca immediately after the merger, (iii) the transfer in a single
transaction or a series of related transactions (other than an Initial Public
Offering) of equity securities of Albecca giving the holder thereof the power to
elect a majority of the members of the Board of Directors of Albecca, or (iv)
the transfer in a single transaction or a series of related transactions of all
or substantially all of the assets of Albecca.
(d) "Willful Misconduct" means the commission of a
felony; theft or embezzlement; breach of confidentiality, non-competition or
non-solicitation restrictions imposed hereunder or otherwise in connection with
employment by the Company or any of its Subsidiaries; or any other action which,
in the opinion of the Committee, was taken with the intent or effect of harming
Albecca, the Company or any of their Subsidiaries.
17. Miscellaneous.
(a) This Agreement shall be binding upon the parties
hereto and their representatives, successors and permitted assigns. If the
Recipient or the Recipient's interests are represented by an administrator,
executor or personal representative, the rights and obligations of the Recipient
hereunder shall become the rights and obligations of such administrator,
executor, or personal representative during the period of such representation,
and all communication by the Company with, and Company performance with respect
to, such administrator, executive or personal representative, shall constitute
communication with and performance with respect to such Recipient.
(b) This Agreement is executed and delivered in and shall
be governed by the laws of the State of Georgia.
(c) Any requests or notices to be given hereunder shall
be deemed given, and any elections or exercises to be made or accomplished shall
be deemed made or accomplished when personally delivered or, if given by fax,
when sent, or if mailed, five days after the date when sent by
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<PAGE> 17
registered or certified mail, postage prepaid, return receipt requested,
addressed, if to the Recipient, at the address set forth below and, if to the
Company, at 3900 Steve Reynolds Boulevard, Norcross, Georgia 30093, Attention:
Chief Executive Officer, with a required copy to the Company at 3900 Steve
Reynolds Boulevard, Norcross, Georgia 30093, Attention: Chief Financial Officer.
(d) This Agreement may not be modified except in a
writing executed by each of the parties hereto.
(e) Recipient agrees that the remedy of Albecca, the
Company and their Subsidiaries at law for breach of any of the covenants set
forth in Sections 12 and 13 hereof will be inadequate. In the event of such a
breach or threatened breach by Recipient, in addition to any other rights or
remedies that Albecca, the Company or their Subsidiaries may have, the Company
or its Subsidiaries shall be entitled to temporary and permanent injunctive
relief without the necessity of proving actual or likely damages or harm and
without waiting for actual damages or harm to be incurred.
(f) To the extent the Company has the right to purchase
the SARs, or any portion thereof, the Company may assign such right to its
shareholders pro rata based on their respective holdings of the Company's equity
securities. To the extent the Company is obligated to pay the SAR Spread upon an
exercise of the SAR, the Company may permit such obligation to be assumed by its
shareholders pro rata based on their respective holdings of the Company's equity
securities or by its subsidiaries.
(g) The descriptive headings of the Sections of this
Agreement are inserted for convenience only and shall not control or affect the
meaning or construction of any of the provisions hereof.
IN WITNESS WHEREOF, the Company has caused this SAR Agreement to be executed on
its behalf, and the Recipient has executed this SAR Agreement, all as of the day
and year first written above.
LARSON-JUHL CANADA, LTD. RECIPIENT
By: By:
--------------------------------- ------------------------------------
Name: Craig Ponzio Name:
Title: President, Secretary and Address:
Director
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<PAGE> 18
SCHEDULE A
TO SAR AGREEMENT
BETWEEN LARSON-JUHL CANADA, LTD.
AND
______________________
Dated: ____________
1. Number of SARs: _________
2. SAR Price: US $_______ per SAR.
3. Date of Award: ________
4. SAR Exercise Period:
The SAR shall expire not later than four years after (a) the
determination by the Committee that the SAR shall expire, notice of
which must be given to Recipient within 90 days after such
determination, or (b) the date upon which such SAR's are converted to
options pursuant to Section 9(e) of this SAR Agreement.
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<PAGE> 19
SCHEDULE B
NOTICE OF EXERCISE
The undersigned hereby notifies Larson-Juhl Canada, Ltd. (the
"Company") of his/her election to exercise ______ of the undersigned's SARs in
the Company pursuant to the SAR Agreement (the "Agreement") between the
undersigned and the Company dated ____________,______.
IN WITNESS WHEREOF, the undersigned has set his hand and seal, this day
of ____________, ______.
RECIPIENT
__________________________________________
Signature
__________________________________________
Name and Position (if other than Recipient)
