Exhibit 4.3
(As Amended 08/09/00)
WINN-DIXIE STORES, INC.
REVISED STOCK PURCHASE PLAN FOR EMPLOYEES
ARTICLE I
Designation and Purpose of the Plan
The Plan shall be known as the "Revised Winn-Dixie Stock Purchase Plan
for Employees" (the "Plan"). The purpose of the Plan is to encourage employees
of Winn-Dixie Stores, Inc. (the "Company") and of any "Subsidiary" (a
corporation in which all of the outstanding shares of capital stock of every
class shall, at the time or times in question, be owned by the Company or any
other Subsidiary of the Company) to purchase and own the Common Stock of
Winn-Dixie Stores, Inc., thereby promoting their increased interest in the
Company's affairs, growth and development.
ARTICLE II
Shares Available for Purchase
Subject to the anti-dilution provisions contained herein, a maximum of
40,173,236 shares of the Company's Common Stock, having a par value of $1.00 per
share, as constituted on November 30, 1995 (the "Stock"), whether presently
authorized and unissued or held in the Company's treasury or hereafter
reacquired by the Company, may be issued and sold upon the exercise of options
granted subsequent to October 2, 1964 pursuant to the Plan ("Options"). Such
40,173,236 shares shall consist of the 36,173,236 shares of the Company's Common
Stock heretofore authorized to be so issued and sold, including shares which
were authorized to be issued and sold upon the exercise of options granted
pursuant to the Company's now terminated Stock Purchase Plan for Employees
(adopted in 1958), as amended (the "1958 Plan"), which were not so issued and
sold, plus an additional 4,000,000 shares.
In the event that the Stock shall be split up, divided or otherwise
reclassified into a greater number of shares of Stock or of any other class of
Common Stock of the Company, the term "Stock" shall thereafter mean the Common
Stock of the Company into which the shares of Stock were so split up, divided or
otherwise reclassified; and the maximum number of shares of stock that may be
issued and sold under the Plan, and the remaining number of shares of Stock that
may thereafter be sold pursuant to the Plan or made subject to Options granted
to any Eligible Employee pursuant to the Plan, shall be correspondingly
increased. In case any dividend payable in shares of Stock is paid to the
holders of outstanding shares of Stock, the remaining number of shares of Stock
which may thereafter be sold pursuant to the Plan, and the remaining number of
shares of Stock which may thereafter be made subject to Options granted to any
Eligible Employee pursuant to the Plan shall be increased by the percentage
which the number of shares of Stock so paid as a dividend bears to the total
number of shares of Stock outstanding immediately prior to the payment of such
dividend; provided, however, that no such increase shall be made with respect to
any dividend aggregating less than 20% of the total number of shares of Stock
outstanding immediately prior to the payment thereof.
ARTICLE III
Eligible Employees
Options may be granted under the Plan only to employees of the Company
or of a Subsidiary, (1) who have an employment date of not less than one year
prior to the date of the offering, (2) who are of legal age to purchase stock in
the state of their residence, and (3) who are actively employed at the date of
the offering. "Actively employed" means on the payroll and not on leave of
absence (including workers' compensation, medical, military or other leaves).
Such employees are herein called "Eligible Employees."
ARTICLE IV
Option Price
The exercise price per share of Stock covered by any Option granted
pursuant to the Plan shall be determined by the Committee referred to in Article
V hereof, but shall be not less than the lesser of (1) 85% of the fair market
value of the Stock at the time such Option is granted or (2) an amount which
under the terms of the Option is not less than 85% of the fair market value of
the stock at the time the Option is exercised.
ARTICLE V
Granting of Options
A committee appointed by the Board of Directors of the Company,
consisting of two or more members of the Board of Directors (the "Committee")
shall, by decision of a majority thereof, determine from time to time in its
sole and final discretion until such time as all shares of Stock available for
purchase under the Plan have been sold, whether or not to grant Options to
Eligible Employees and, if Options are to be granted, the date on which such
Options shall be granted, the option price per share, the period of time during
which the Options can be exercised (not to exceed 27 months or a period of 5
years if the exercise price per share of Stock covered by the Option will be no
less than 85% of the fair market value of such Stock at the time of exercise of
the Option) and such other terms and conditions as the Committee, in its sole
discretion, deems appropriate.
If any Options are granted as aforesaid, Options shall be granted to
all employees who are Eligible Employees as of the date the Options are granted,
upon the following terms and conditions:
1. The Committee shall have the authority to limit the maximum
number of shares to be issued and sold upon the exercise of Options
granted at any time to a number not to exceed the number of shares then
authorized for sale pursuant to the Plan. Each Eligible Employee shall
be granted an Option for the purchase of such maximum number of shares
as the Committee may determine; provided, however, that no Eligible
Employee shall be granted an Option if such Employee, immediately after
the grant of such Option, would own, within the meaning of Section
423(b)(3) of the Internal Revenue Code of 1986, as amended (the
"Code"), stock possessing 5% or more of the total combined voting power
or value of all classes of stock of the Company or of a "parent
corporation" or "subsidiary corporation" of the Company, as defined in
Section 424(e) and (f) of the Code; and provided further, that no
employee shall be granted an Option which would permit such employee's
rights to purchase shares of stock of any class of the Company or of a
"parent corporation" or of a "subsidiary corporation" of the Company
(as defined above) pursuant to all employee stock purchase plans of the
Company and of any such "parent corporation" or "subsidiary
corporation" to accrue at a rate which would exceed an aggregate of
$25,000 of fair market value of such securities (determined at the time
such Option is granted) in any calendar year.
2. The Option price, exercise period, Option payment
provisions and all other terms and conditions of the Options shall be
uniform for all Eligible Employees.
ARTICLE VI
Options Not Transferable
No Option granted to an employee to purchase shares of Stock pursuant
to the Plan may be sold, pledged, assigned or transferred in any manner during
such employee's lifetime, and upon the death of such employee said Option shall
immediately cease and terminate.
ARTICLE VII
Amendment, Suspension and Termination of the Plan
The Board of Directors of the Company shall have the power at any time
to add to, amend or repeal any of the provisions of the Plan, to suspend the
operation of the entire Plan or of any provision or provisions thereof for any
period or periods or to terminate the Plan in whole or in part, provided,
however, that no such addition, amendment, repeal, suspension or termination
shall in any way affect the rights of the holders of outstanding Options to
purchase shares of stock in accordance with the provisions hereof; and provided,
further, that any such addition, amendment or repeal which requires shareholder
approval pursuant to applicable law or the rules of the New York Stock Exchange
shall be subject to approval by the Stockholders of the Company or such
addition, amendment or repeal shall be null and void and any provision so
attempted to be changed shall continue in full force and effect.
ARTICLE VIII
Provisions with Respect to Granting of Options
Options shall be granted pursuant to the Plan only in accordance with
the provisions set forth in Article V and this Article VIII of the Plan.
For the purpose of determining whether an employee has been employed by
the Company and/or one or more Subsidiaries for less than one year, there shall
be included in the term of such employee's employment any period of employment
by any person, firm, organization or corporation all of whose outstanding shares
of capital stock of every class and/or all or substantially all of whose
operating assets and/or business shall have been acquired by the Company and/or
one or more of its Subsidiaries prior to the time as of which such determination
is made, and transfer from the employment of the Company to that of a Subsidiary
or vice versa, or from the employment of one Subsidiary to that of another
Subsidiary, shall not constitute a termination or interruption of the continuity
of employment.
If the Committee shall determine to grant Options as provided in the
Plan, such determination, and the exercise price per share of Stock covered
thereby, shall be communicated to all Eligible Employees within a reasonable
time thereafter in such manner as the Committee in its sole discretion shall
deem advisable.
No option shall be granted pursuant to the Plan unless a Registration
Statement under the Securities Act of 1933, as amended, with respect to the
shares of Stock covered thereby shall have been filed with the Securities and
Exchange Commission or unless an exemption from registration in accordance with
regulations duly promulgated by said Commission under said Act shall then be
applicable, and no Option granted pursuant to the Plan shall be exercisable, and
no shares of Stock shall be sold or issued upon the exercise of any Option,
unless such a Registration Statement shall be in effect and a prospectus with
respect to such shares, which at the time of such exercise, sale or issue, as
the case may be, meets the requirements of Section 10(a) of said Act, shall then
be available for delivery to Eligible Employees or unless an exemption from
registration in accordance with regulations duly promulgated by said Commission
under said Act shall then be applicable.
ARTICLE IX
Exercise of Options
The Committee shall determine upon the granting of Options, the methods
under which Eligible Employees may purchase shares of Stock upon exercise of
Options, which may include, but is not limited to, any or all of the following
three methods:
1. Any Eligible Employee who holds an Option may exercise said
Option at any time during which it is outstanding and not yet expired
in whole at any one time, or in part from time to time (provided that
each exercise shall be for ten or more shares of stock), by delivering
a duly executed subscription agreement to the Company or its duly
authorized agent or representative, such subscription agreement to be
accompanied by payment in full in cash for such shares at the exercise
price per share therefor.
2. Any Eligible Employee who holds an Option may exercise said
Option at any time during which it is outstanding and not yet expired
to the extent of a maximum of 50 shares (but subject to the proviso
that each such exercise shall be in increments of 5 shares but not less
than 10 shares), by delivering a duly executed subscription agreement
to the Company or its duly authorized agent or representative, such
subscription agreement to be accompanied by payment in cash in the
amount of at least $1.00 per share for each share purchased and by the
Eligible Employee's non-interest bearing promissory note for the
balance of the price of the shares to which such note relates at the
exercise price per share therefor. No Eligible Employee may purchase
more than an aggregate of 50 shares pursuant to Options granted whether
at one time or from time to time, through payment by such non-interest
bearing promissory note. Subject to approval by the Committee in its
discretion from time to time at the time of granting such Options, any
Eligible Employee who holds an Option and who has theretofore purchased
the maximum of 50 shares through the delivery of a non-interest bearing
promissory note as provided in paragraph 2 above may exercise said
Option at any time during the month for which it was granted, to the
extent of a maximum of 25 shares (but subject to the provision that
each such exercise shall be for 10,15, 20 or 25 shares), by delivering
a duly executed subscription agreement to the Company or its duly
authorized agent or representative, such subscription agreement to be
accompanied by payment in cash in the amount of at least $1.00 per
share for each share purchased and by the Eligible Employee's
promissory note, bearing interest at the rate determined by the
Committee at the time of granting such Option, for the balance of the
price of the shares to which such note relates at the exercise price
per share therefor. No Eligible Employee may purchase more than an
aggregate of 25 shares pursuant to Options granted after October 31,
1978 whether at one time or from time to time, through payment by such
interest bearing promissory notes.
3. Any Eligible Employee who holds an Option that is
outstanding and not yet expired may authorize a payroll deduction from
his/her pay for each payday during the time he/she holds such Option,
to be deposited in a non-interest bearing account maintained by the
Company for the purpose of funding the Eligible Employee's purchase of
stock upon the exercise of an Option; provided that such Eligible
Employee only may authorize a payroll deduction at the rate of 1% to
10% of his/her base pay, in effect, as of the date such deduction is
authorized by the Eligible Employee. The Eligible Employee may exercise
the Option at any time that it is outstanding and has not yet expired
by delivering a duly executed subscription agreement to the Company or
its duly authorized agent or representative such subscription agreement
to be accompanied by written notice from the Eligible Employee
directing the Company to apply the Eligible Employee's account balance
to the purchase of whole shares of stock pursuant to the exercise of
the Option. Any excess in such account after the payment of the stock
acquired upon the exercise of an Option will be refunded to the
Eligible Employee.
All payroll deductions made for a participant shall be credited to the
participant's account under the Plan which will be maintained by the Company. A
participant may not make any separate cash payment into his/her account. A
participant may elect payroll deductions to fund the purchase of stock pursuant
to the exercise of an Option only with respect to wages not yet earned. A
participant may not change the amount of his/her payroll deductions. Upon the
exercise of the Option, all payroll deductions for the participant shall cease.
If a participant goes on an authorized leave of absence, such participant may
elect to withdraw the balance of his/her account, discontinue payroll deductions
but remain a participant in the Plan during such leave of absence or authorize
deductions to be made from any payments by the Company to the participant, if
any. At any time, a participant may terminate his or her account and receive the
balance of his/her account in full.
Payment for any shares purchased otherwise than through delivery of
promissory notes or the application of payroll deduction accounts as provided in
paragraphs 2 and 3 above, or such other method as the Committee may determine,
shall be made in cash as provided in paragraph 1 above.
The Committee may require at the time of granting the Options that the
shares purchased pursuant to the exercise of an Option can be sold by the
Eligible Employee who purchased such shares or any successor in interest in the
event of such Eligible Employee's death, only by means of their tender to the
Company upon the following terms and conditions or such other terms and
conditions as the Committee may determine:
If such tender shall occur during the period of two years following the
purchase of the shares of Stock so purchased, the Company, if it shall accept
such tender, shall pay for such shares the same price paid to the Company by the
Eligible Employee therefor. If such tender shall occur more than two years after
the purchase of the shares of Stock so purchased, the Company, if it shall
accept such tender, shall pay for such shares the market price of such shares on
the date of the receipt by the Company of their tender to the Company.
In the subscription agreement, such Eligible Employee shall agree with
the Company that certificates for shares of Stock so purchased by such Employee
may bear the following legend:
"The shares of the Common Stock of Winn-Dixie Stores, Inc.
represented by this certificate are subject to the provisions
of Article IX of the Revised Stock Purchase Plan for
Employees, as amended, of Winn-Dixie Stores, Inc. Such shares
may be sold by the holder thereof only by means of their
tender to Winn-Dixie Stores, Inc. for the applicable
consideration set forth in such Article IX, unless the Company
shall not accept the tender of such shares, in which case the
shares may be sold by the holder thereof, free of any
restrictions or limitations."
In any case in which payment is made in part by promissory note, any
certificate representing the shares of Stock purchased shall be issued in the
name of the Eligible Employee so purchasing the same and shall be endorsed by
the Eligible Employee in blank (or accompanied by a duly executed stock power)
and delivered to and pledged with the Company as security for the note, and a
pledge agreement shall be entered into by such Eligible Employee and the
Company. The pledge agreement shall provide that (i) no certificate for pledged
shares of Stock shall be redelivered to the pledgor until the promissory note
(together with all interest thereon, if any) has been paid in full and (ii)
provided that there has been no default under the terms and provisions of the
promissory note, the Company will not cause the certificate for the pledged
shares of Stock to be transferred out of the name of the pledgor and the pledgor
shall have the right to vote such shares of Stock at all meetings of the
stockholders of the Company and shall receive all cash dividends paid on such
shares. The pledge agreement shall contain such other provisions as the Company
may deem advisable.
The principal of the promissory note shall be payable in equal
installments payable weekly or monthly depending upon whether the pledgor is
paid on a weekly or monthly basis, of such amount as may be determined by the
payroll department (which equal installments shall, in each case, be payable
over a period of three years), and the pledgor shall give a written
authorization to such payroll department, on such form or forms as may be
furnished by the Company, authorizing the deduction each week or month, as the
case may be, during the term of the note of the amount of such weekly or monthly
installment. Interest, if any, on the unpaid portion of such promissory note
shall accrue from the date thereof at the rate per annum determined by the
Committee at the time of granting the Option to which such promissory note
relates. The amount of accrued interest payable, if any, on each payment date
shall be added to the amount payable on account of principal, and shall be
included in the payroll deduction referred to in the preceding sentence. If the
pledgor shall cease to be employed by the Company and/or its Subsidiaries, the
pledgor shall continue to make the same payments as were made while the pledgor
was so employed until the promissory note shall be paid in full.
In the event of a default in the prompt payment of accrued interest on
or any installment due on the principal of, any promissory note, unless such
interest or installment shall have been paid prior to the expiration of 10 days
after notice of such default to the pledgor, the principal balance, if not
already due and payable, shall become due and payable and the Company shall
thereafter be entitled:
(a) To collect and receive all dividends on the pledged shares; and
(b) To sell or cause to be sold at such price or prices as the Company
may deem best all or any of the pledged shares, without demand of
performance or notice of intention to sell.
The proceeds of any such sale and any monies collected, received or
otherwise realized by the Company from the pledged shares, shall be applied as
follows:
(a) To the expenses of such sale or realization and all other expenses
of the Company under the pledge agreement;
(b) To the payment of accrued interest, if any, then due and payable
on the note;
(c) To the payment of the principal of the note; and
(d) Any balance thereafter remaining shall be paid to the pledgor or
to whomsoever may be lawfully entitled to receive the same.
In the event that the balance due from the pledgor at the time of any
default exceeds the net proceeds from such sale, the pledgor shall be and remain
liable for such excess.
The date on which a duly executed subscription agreement shall be
received by the Company or its duly authorized agent or representative, in
accordance with any of the above methods, shall be deemed to be the "Date of
Subscription" with respect to the shares subscribed for, for all purposes of the
Plan.
ARTICLE X
Conditions on the Exercise of Options
The exercise of Options shall be subject to the following conditions:
1. Each employee exercising an Option must on each Date of
Subscription be an Eligible Employee.
2. In case there shall not be a sufficient number of shares of
Stock available, either because of the limitations imposed by Article
II hereof, or because the Committee shall have limited the maximum
number of shares to be issued and sold in accordance with the
provisions of subparagraph 1 of the second paragraph of Article V
hereof, to issue all of the shares otherwise issuable upon the
exercise of Options, subscriptions pursuant to the exercise of Options
shall be filled in any manner determined by the Committee.
ARTICLE XI
Pledged Stock
In the case of those shares payment for which was made in whole or in
part by promissory note, said shares shall be immediately redelivered to the
Company and pledged as security for the promissory note as provided in Article
IX hereof.
ARTICLE XII
Rights of Employees
An Eligible Employee shall not have any rights as a stockholder of the
Company by virtue of any Option until the date of issue of the shares of Stock
purchased by such Eligible Employee pursuant to its exercise.
ARTICLE XIII
Interpretation of the Plan
Determinations of the Committee as to any question which may arise with
respect to the interpretation or administration of any provisions of the Plan
shall, unless otherwise determined by the Board of Directors of the Company, be
final. The Company may prescribe administrative rules under the Plan.
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