As filed with the Securities and Exchange Commission on July 15, 1997
Registration No. 333-__________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
BLESSINGS CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Delaware 13-5566477
(State or Other Jurisdiction of (I.R.S. Employer ID No.)
Incorporation or Organization)
200 Enterprise Drive
Newport News, Virginia 23603
(Address of Principal Executive Office) (Zip Code)
BLESSINGS CORPORATION
1997 Long-Term Incentive Plan
(Full Title of the Plan)
Wayne A. Durboraw
Blessings Corporation
200 Enterprise Drive
Newport News, VA 23603
(Name and Address of Agent for Service)
(757) 887-2100
(Telephone Number, Including
Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
================================================================================
Proposed
Title of Proposed Maximum
Securities Amount Maximum Aggregate Amount of
to be to be Offering Price Offering Registration
Registered Registered Per Share(1) Price(1) Fee(1)
================================================================================
Common Stock,
($.71 par value 150,000 $ 10.56 $ 1,584,000.00 $ 480.00
per share)
================================================================================
(1) Pursuant to Rules 457(c) and 457(h), the registration fee was computed using
$10.56 per share of Common Stock, the average of the high and low prices
reported in the consolidated reporting system of the American Stock Exchange on
July 11, 1997.
Exhibit Index can be found on page 8.
II-1
<PAGE>
================================================================================
PART II
INFORMATION REQUIRED IN REGISTRATION
STATEMENT AND NOT REQUIRED IN PROSPECTUS
Item 3: Incorporation of Documents by Reference.
The following documents filed by Blessings Corporation (the "Company"
or the "Registrant") with the Securities and Exchange Commission (the
"Commission"), are incorporated herein by reference and made a part hereof:
(a) The Company's Annual Report on Form 10-K for the Company's
fiscal year ended December 31, 1996 filed pursuant to Section 13(a) of the
Securities Exchange Act of 1934, as amended (the "1934 Act").
(b) All reports filed by the Company pursuant to Section 13(a)
of the 1934 Act since the end of the Company's fiscal year ended December 31,
1996.
(c) The description of the Company's Common Stock registered
under the 1934 Act contained in the Company's Registration Statement on Form
S-8, Registration Statement No. 2-45391, effective September 21, 1972.
All reports and other documents subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act prior to
the filing of a post-effective amendment which indicates that all securities
offered hereby have been sold, or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference into this
Registration Statement and to be part hereof from the date of filing of such
documents.
Any statement contained in a document incorporated into this
Registration Statement by reference shall be deemed to be modified or superseded
for the purposes of this Registration Statement to the extent that a statement
contained in this Registration Statement or in any other subsequently filed
document which also is or is deemed to be incorporated into this Registration
Statement by reference modifies or replaces such statement.
Item 4: Description of Securities.
Not applicable.
Item 5: Interest of Named Experts and Counsel.
Not applicable.
II-2
<PAGE>
Item 6: Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of Delaware provides that a
corporation may indemnify directors and officers as well as other employees and
individuals against expenses (including attorneys fees), judgments, fines and
amounts paid in settlement in connection with specified actions, suits or
proceedings, whether civil, criminal, administrative or investigative, other
than an action by or in the right of the corporation (a "derivative action"), if
they acted in good faith and in a manner they reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe their conduct
was unlawful. A similar standard is applicable in the case of derivative
actions, except that indemnification only extends to expenses (including
attorneys fees) incurred in connection with defense of settlement of such
action, and the statute requires court approval before there can be any
indemnification where the person seeking indemnification has been found liable
to the corporation. The statute provides that it is not exclusive of other
indemnification that may be granted by a corporation's charter, bylaws,
disinterested director vote, stockholder vote, agreement or otherwise.
Article VI of the Company's Bylaws requires indemnification to the full
extent permitted under Delaware law as from time to time in effect. Subject to
any limitations imposed by Delaware law, the Bylaws provide an unconditional
right to indemnification for all expenses, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid in settlement) actually and reasonably incurred by any person in connection
with any actual or threatened proceeding (including, to the extent permitted by
law, any derivative action) by reason of the fact that such person is or was
serving as a director or officer of the Company or, at the request of the
Company, of another corporation, partnership, joint venture, trust or other
enterprise, including an employee benefit plan. The Bylaws also provide that the
Company may, by action of its Board of Directors, provide indemnification to its
employees and agents with the same scope and effect as the foregoing
indemnification of directors and officers.
Officers and directors of the Company are covered by insurance which
(with certain exceptions and within certain limitations) indemnifies them
against losses and liabilities arising from any alleged "wrongful act" including
any alleged error or misstatement or misleading statement, or wrongful act or
omission or neglect or breach of duty.
Section 102(b)(7) of the Delaware General Corporation Law permits a
corporation to provide in its certificate of incorporation that a director of
the corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii)
payments of unlawful dividends or unlawful stock repurchases or redemptions, or
(iv) for any transaction from which the director derived an improper personal
benefit.
Article Twelfth of the Certificate of Incorporation of the Company
provides that to the full extent that the Delaware General Corporation Law, as
it now exists or may hereafter be amended, permits the limitation or elimination
of the liability of directors, a director of the Company shall not be liable to
the Company or its stockholders for monetary damages for breach of fiduciary
duty as a director. Any amendment to or repeal of such Article Twelfth shall not
adversely affect any right or protection of a director of the Company for or
with respect to any acts or omissions of such director occurring prior to such
amendment or repeal.
Item 7: Exemption from Registration Claimed.
Not applicable.
Item 8: Exhibits.
4.1 Certificate of Incorporation of the Company and all
amendments through Amendment dated December 15, 1994 (incorporated herein by
reference to the Company's Form 10-K for the year ended December 31, 1994 filed
with the Commission on or about March 28, 1995).
4.2 Bylaws of the Company, as amended (incorporated herein by
reference to the Company's Registration Statement on Form S-8 filed with the
Commission on or about October 16, 1993).
* 5.1 Opinion of Kaufman & Canoles, P.C.
*15.1 Letter re: unaudited financial information.
*23.1 Consent of Deloitte & Touche LLP.
*23.2 Consent of Kaufman & Canoles (included in opinion filed
as Exhibit 5.1).
*24.1 Power of Attorney (included on the signature pages
hereto).
*99.1 Blessings Corporation 1997 Long-Term Incentive Plan.
* Filed herewith.
Item 9: Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement to include any material
information with respect to the plan of distribution not previously disclosed in
this Registration Statement or any material change to such information in this
Registration Statement.
II-3
<PAGE>
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at the time shall be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed it he Act and
will be governed by the final adjudication of such issue
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Newport News, Virginia, on this day of July 11, 1997.
BLESSINGS CORPORATION
By: /s/Elwood M. Miller
Elwood M. Miller
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints James P. Luke and Wayne A. Durboraw, and
each of them, his true and lawful attorneys-in-fact and agents with full power
of substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same with all
exhibits thereto, and all documents in connection therewith, with the Securities
and Exchange Commission, granting unto said attorneys-in-fact and agents, and
each of them, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises as fully to
all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or either of them, or
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities an on the dates indicated:
Witness our hands and common seals on the date set forth below.
Signature
/s/Leonard Birnbaum July 11, 1997
Leonard Birnbaum, Director
/s/Joseph J. Harkins July 11, 1997
Joseph J. Harkins, Director
<PAGE>
/s/John M. Hogg July 11, 1997
John M. Hogg, Director
/s/James P. Luke July 11, 1997
James P. Luke, Executive Vice
President, Chief Financial Officer,
Secretary and Director
(Principal Financial Officer)
/s/John W. McMackin July 11, 1997
John W. McMackin, Chairman of the
Board, Director
/s/Elwood M. Miller July 11, 1997
Elwood M. Miller, President and Chief
Executive Officer and Director
(Principal Executive Officer)
/s/Richard C. Patton July 11, 1997
Richard C. Patton, Director
/s/Manuel Villarreal G. July 11, 1997
Manuel Villarreal G.,
President and Chief Executive Officer of
NEPSA, Director
/s/Robert E. Weber July 11, 1997
Robert E. Weber, Director
/s/J. Donovan Williamson July 11, 1997
J. Donovan Williamson, Director
/s/Philip C. Williamson July 11, 1997
Philip C. Williamson, Director
/s/Wayne A. Durboraw July 11, 1997
Wayne A. Durboraw, Controller
(Principal Accounting Officer)
<PAGE>
EXHIBIT INDEX
The following exhibits are filed herewith unless otherwise indicated:
Sequentially
Exhibit Numbered
Number Exhibit Page
4.1 Certificate of Incorporation of the Company and all
amendments through Amendment dated December 15, 1994 (incorporated
herein by reference to the Company's Form 10-K for the year ended
December 31, 1994 filed * with the Commission on or about March 28,
1995).
4.2 Bylaws of the Company, as amended (incorporated
herein by reference to the Company's Registration *
Statement on Form S-8 filed with the Commission
on or about October 16, 1993).
**5.1 Opinion of Kaufman & Canoles, P.C. 10
**15.1 Letter re: unaudited financial information. 12
**23.1 Consent of Deloitte & Touche LLP. 14
**23.2 Consent of Kaufman & Canoles (included in opinion
filed as Exhibit 5.1) 10
**24.1 Power of Attorney (included on the signature pages hereto). 8
**99.1 Blessings Corporation 1997 Long-Term Incentive Plan. 16
- ----
* Not filed herewith. In accordance with Rule 12b-32 of the General Rules and
Regulations under the Securities Exchange Act of 1934, the exhibit is
incorporated by reference.
**Filed herewith.
<PAGE>
EXHIBIT 5.1
KAUFMAN & CANOLES
A PROFESSIONAL CORPORATION
ATTORNEYS AND COUNSELORS AT LAW
ONE COMMERCIAL PLACE
POST OFFICE BOX 3037
NORFOLK, VIRGINIA 23514
(757) 524-3000
FAX (757) 624-3169
700 PAVILION CENTER 11817 CANON BOULEVARD
POST OFFICE BOX 626 SUITE 408
VIRGINIA BEACH, VIRGINIA 23451 NEWPORT NEWS, VIRGINIA 23606
E-MAIL: @KAUFCAN.COM
July 15, 1997
Blessings Corporation
200 Enterprise Drive
Newport News, VA 23603
Dear Sirs:
In connection with the registration on Form S-8 ("Registration Statement")
under the Securities Act of 1933, as amended, of 150,000 shares ("Shares") of
Common Stock of Blessings Corporation ("Company"), which may be issued pursuant
to the terms of the Company's 1997 Long-Term Incentive Plan ("Plan"), we hereby
advise you that in our opinion the Shares will be validly issued, fully paid and
non-assessable upon issuance pursuant to the terms of the Plan.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Sincerely,
/s/Kaufman & Canoles
KAUFMAN & CANOLES, a professional
corporation
0421361.01
<PAGE>
EXHIBIT 15.1
July 15, 1997
Blessings Corporation
Newport News, Virginia
We have made a review, in accordance with standards established by the American
Institute of Certified Public Accountants, of the unaudited financial
information of Blessings Corporation and subsidiaries for the periods ended
March 31, 1997 and 1996, as indicated in our report dated April 18, 1997;
because we did not perform an audit, we expressed no opinion on that
information.
We are aware that our report referred to above, which was included in your
Quarterly Report on Form 10-Q for the quarter ended March 31, 1997, is being
used in this Registration Statement.
We also are aware that the aformentioned reports, pursuant to Rule 436(c) under
the Securities Act of 1933, are not considered a part of the Registration
Statement prepared or certified by an accountant or a report prepared or
certified by an accountant within the meaning of Sections 7 and 11 of that Act.
DELOITTE & TOUCHE LLP
Richmond, Virginia
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this Registration Statement of
Blessings Corporation on Form S-8 of our reports dated February 21, 1997,
appearing in and incorporated by reference in the Annual Report on Form 10-K of
Blessings Corporation for the year ended December 31, 1996.
DELOITTE & TOUCHE LLP
Richmond, Virginia
July 15, 1997
<PAGE>
EXHIBIT 99.1
BLESSINGS CORPORATION
1997 LONG-TERM INCENTIVE PLAN
1. Objectives. The Company has established the Plan as an incentive to
attract and retain dedicated and loyal employees and directors of outstanding
ability, to stimulate the efforts of such persons in meeting the Company's
objectives and to encourage ownership of the Company's common stock by employees
and directors.
2. Definitions
2.1 "Award" shall mean the grant of any form of stock option to a Plan
Participant pursuant to such terms, conditions, performance requirements, and
limitations as the Committee may establish in order to fulfill the objectives of
the Plan.
2.2 "Award Agreement" shall mean an agreement between the Company and a
Participant that sets forth the terms, conditions, performance requirements, and
limitations applicable to an Award.
2.3 "Board" shall mean the board of directors of the Company.
2.4 "Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
2.5 "Committee" shall mean the compensation committee of the Board, which
for purposes of making Awards under this Plan shall be comprised solely of two
or more directors that are (i) Non-Employee Directors and (ii) Outside
Directors.
2.6 "Company" shall mean Blessings Corporation, a Delaware corporation, and
its subsidiaries, including subsidiaries of subsidiaries.
2.7 "Disability" shall mean any medically determinable physical or mental
impairment rendering an individual unable to engage in any substantial gainful
activity, which disability can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less than 12
months.
2.8 "Early Retirement," for employee participants, shall mean retirement
from active employment with the Company pursuant to early retirement provisions
of the Company's pension plan. For directors participants that are not
employees, "Early Retirement" shall mean retirement from membership on the Board
with the consent of the Committee.
2.9 "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
2.10 "Fair Market Value" shall mean the average of the high and low prices
of a share of common stock of the Company on the American Stock Exchange
Composite Reporting Tape for the date in question, provided that, if no sales of
a share of common stock were made on the American Stock Exchange on that date,
the average of the high and low prices of the common stock as reported for the
most recent preceding day on which sales of common stock were made on the
American Stock Exchange.
2.11 "Involuntary Separation without Cause" shall mean a termination of
employment by the Company for reasons other than substantial failure to perform
duties, material violation of Company policies, unethical activities,
misconduct, fraud, or commission of an illegal act; provided that, Involuntary
Separation without Cause does not include a resignation or a voluntary
separation from employment, in either case initiated by a Participant.
<PAGE>
2.12 "Non-Employee Director" shall have the meaning given that term under
Rule 16b-3(b)(3) as promulgated by the SEC pursuant to the Exchange Act, or any
successor rule.
2.13 "Outside Director" shall have the meaning given that term under Code
Regulationss. 1.162-27(e)(3)(i), or any successor regulation.
2.14 "Participant" shall mean an employee of the Company or a member of the
Board, including directors that are not employees of the Company, to whom an
Award has been made under the Plan; provided, however, that in Section 8 of the
Plan the meaning of the term Participant shall be limited to employees of the
Company to whom an award of an incentive stock option has been made.
2.15 "Plan" shall mean the Blessings Corporation 1997 Long-Term Incentive
Plan.
2.16 "Retirement" or "Retires" shall mean (i) cessation of active services
as an employee, or for directors who are not employees of the Company, as a
member of the Board, at or after age 65, or (ii) Early Retirement.
2.17 "SEC" shall mean the Securities and Exchange Commission.
3. Effective Date and Duration of the Plan. The effective date of the Plan
is March 12, 1997, subject to approval of the Plan by the shareholders of the
Company at the Company's annual meeting of shareholders to be held on May 20,
1997, or any adjournment thereof. The Plan shall remain in effect until all
Awards under the Plan have been satisfied by the issuance of shares, but no
Award shall be granted more than ten years after the effective date of the Plan.
4. Capital Stock Available for Awards. Subject to adjustment as provided in
Section 14, the number of shares of common stock of the Company for which Awards
may be granted under the Plan shall not exceed 150,000. As soon as possible
after adoption of the Plan by the Company's shareholders, the Company shall take
whatever actions are necessary to file required documents with the SEC and any
other appropriate governmental authorities and stock exchanges to make shares of
stock available for issuance pursuant to Awards. Stock related to Awards that
are forfeited, terminated, expire unexercised, or are settled in such a manner
that all or some of the shares covered by an Award under this Plan are not
issued to a Participant shall become immediately available for Awards under this
Plan.
5. Administration.
5.1 The Plan shall be administered and interpreted by the
Committee. The Committee shall have full and final authority in its discretion:
(i) to make and adopt rules and regulations for the administration of the Plan;
(ii) to conclusively interpret the provisions of the Plan and to decide all
questions of fact arising in its application; (iii) to determine the
Participants to whom Awards shall be made under the Plan; (iv) to determine the
type of Award to be made and the amount, size and terms of each such Award
(including, but not limited to, any exercise price, grant price, or purchase
price, any restriction or condition, any schedule for lapse of restrictions or
conditions relating to transferability or forfeiture, exercisability, or
settlement of an Award, and waivers or accelerations thereof, based in each case
on such conditions as the Committee shall determine); (v) to determine the time
when Awards will be granted; (vi) to prescribe from time to time the form, and
the terms, provisions and conditions not inconsistent with the Plan, of any
Award Agreement; and (vii) to make all other determinations necessary or
advisable for the administration of the Plan. The Committee may designate
persons other than its members to carry out its responsibilities under such
conditions or limitations as it may set other than its authority with regard to
benefits granted to employees who are officers or directors of the Company for
purposes of Section 16 of the Exchange Act.
5.2 No member of the Committee shall be liable for any action
or determination taken or made in good faith with respect to the Plan or any
Award made hereunder, and to the extent permitted by law, all members of the
Committee shall be indemnified by the Company for any liability and expenses
which may be incurred through any claim or cause of action.
6. Eligibility. Participants shall be limited to (i) those officers and
other key employees of the Company who are in positions in which their
decisions, actions and efforts significantly contribute to the success of the
Company, and (ii) directors of the Company, including directors that are not
employees of the Company; provided, however, that only employee-Participants
shall be eligible to receive grants of incentive stock options pursuant to
Section 8 of the Plan.
7. Awards Under the Plan. The Committee shall determine the type or
types of Awards to be made to each Participant and shall set forth in each Award
Agreement the terms, conditions, and limitations applicable to each Award.
Awards may be granted singly, in combination or in tandem. Awards may also be
made in combination or in tandem with, in replacement of, or as alternatives to,
grants or rights under any other option or incentive plan of the Company,
including the plan of any acquired entity. Where both an incentive stock option
and a non-qualified stock option are awarded at one time, such options shall be
deemed to have been awarded in separate grants, shall be clearly identified, and
in no event will the exercise of one such option affect the right to exercise
the other such option.
8. Incentive Stock Options. Incentive stock options, or substitutes
therefor, are options to purchase shares of common stock of the Company which,
in addition to being subject to applicable terms, conditions and limitations
established by the Committee, comply with Section 422 of the Code. Only
employee-Participants shall be eligible to receive grants of incentive stock
options. Incentive stock options shall be evidenced by Award Agreements which
shall contain in substance the following terms and conditions:
8.1 Option Price. The purchase price per share of stock deliverable upon
the exercise of an incentive stock option shall not be less than 100% of the
Fair Market Value of the stock on the day the incentive stock option is granted.
8.2 Exercise of Option. Each Award Agreement pursuant to which incentive
stock options are granted shall state the period or periods of time within which
the incentive stock option may be exercised by the Participant, in whole or in
part, which shall be such period or periods of time as may be determined by the
Committee, provided that the exercise period shall not end later than ten years
after the date of the grant of the incentive stock option.
8.3 Nontransferability. Each Award Agreement shall state that the incentive
stock option is not transferable other than by will or the laws of descent and
distribution, and during the lifetime of the Participant is exercisable only by
the Participant.
8.4 Payment for Shares. Stock purchased pursuant to an
incentive stock option shall be paid for in full in cash or, unless the
Committee determines otherwise at or prior to the time of exercise, common stock
of the Company at Fair Market Value or a combination thereof, in an amount or
having a combined value equal to the aggregate purchase price for the shares
subject to the incentive stock option or portion thereof being exercised.
8.5 Rights Upon Termination of Employment. In the event that a
Participant ceases to be an employee of the Company for any reason other than
death, Disability, Retirement or Involuntary Separation without Cause, all
incentive stock options granted to the Participant shall lapse forthwith or at
such other time as determined by the Committee. In the event employment ceases
because a Participant Retires or is Involuntarily Separated without Cause, prior
to expiration of the Participant's incentive stock option, without having fully
exercised such incentive stock option, the Participant shall have the right to
exercise the incentive stock option during its term within a period of three
months after the date employment so ceased, to the extent that the incentive
stock option was exercisable on the date employment ceased. In the event
employment ceases because a Participant dies or suffers a Disability, prior to
expiration of the Participant's incentive stock option, without having fully
exercised such incentive stock option, the Participant, or the estate of the
Participant, or any person to whom the incentive stock option may have been
transferred by a will or by the laws of descent and distribution, shall have the
right to exercise the incentive stock option during its term within a period of
one (1) year after the date employment so ceased, to the extent that the
incentive stock option was exercisable on the date employment ceased.
8.6 Individual Limitations.
8.6.1 Notwithstanding anything herein to the contrary, to the extent that
the aggregate Fair Market Value (determined as of the time the option is
granted) of stock for which any Participant is granted incentive stock options
that are exercisable for the first time during any calendar year (under all such
plans of the Company) shall exceed $100,000 (such excess to be determined by
taking incentive stock options into account in the order in which granted), such
incentive stock options to such extent shall be treated as options which are not
incentive stock options.
8.6.2 Notwithstanding anything herein to the contrary, no incentive stock
option shall be granted to any individual if at the time the incentive stock
option is to be granted the individual owns stock possessing more than 10% of
the total combined voting power of all classes of stock of the Company or of any
parent or subsidiary corporation unless at the time such incentive stock option
is granted the option price is at least 110% of the Fair Market Value of the
stock subject to the incentive stock option and such incentive stock option by
its terms is not exercisable after the expiration of five years from the date
such incentive stock option is granted.
8.7 Code Compliance. Each Award Agreement pursuant to which
incentive stock options are granted shall contain such other terms, conditions
and provisions as the Committee may determine to be necessary or desirable in
order to qualify such option as an incentive stock option within the meaning of
Section 422 of the Code, or the regulations thereunder. Notwithstanding Section
15, the Board shall have the power without further approval to amend the terms
of the Plan or any Awards or Award Agreements thereunder for such purpose.
9. Non-Qualified Stock Options. Non-qualified stock options, or substitutes
therefore, are options to purchase shares of common stock of the Company which
are not intended to comply with Section 422 of the Code. Non-qualified stock
options shall be evidenced by Award Agreements which shall contain in substance
the following terms and conditions:
9.1 Option Price. The purchase price per share of stock deliverable upon
the exercise of a non-qualified stock option shall be not less than 100% of the
Fair Market Value of the stock on the day the non-qualified stock option is
granted, as determined by the Committee.
9.2 Exercise of Option. Each Award Agreement pursuant to which
non-qualified stock options are granted shall state the period or periods of
time within which the non-qualified stock option may be exercised by the
Participant, in whole or in part, which shall be such period or periods of time
as may be determined by the Committee at the time of grant, provided that the
exercise period shall not end later than ten years after the date of the grant
of the non-qualified stock option.
9.3 Payment for Shares. Stock purchased pursuant to a
non-qualified stock option shall be paid for in full in cash or, unless the
Committee determines otherwise at or prior to the time of exercise, in common
stock of the Company at Fair Market Value or a combination of cash and such
common stock, in an amount or having a combined value equal to the aggregate
purchase price for the shares subject to the non-qualified stock option or
portion thereof being exercised.
9.4 Rights Upon Termination of Employment of
Employee-Participants. In the event that an employee-Participant ceases to be an
employee of the Company for any reason other than death, Disability, Retirement
or Involuntary Separation without Cause, all non-qualified stock options granted
to such Participant shall lapse forthwith or at such other time as determined by
the Committee. In the event employment ceases because an employee-Participant
dies, Retires, suffers a Disability, or is Involuntarily Separated without Cause
prior to expiration of the Participant's non-qualified stock option, without
having fully exercised such non-qualified stock option, the Participant (or the
estate of the Participant, or any person to whom the option may have been
transferred by a will or by the laws of descent and distribution) shall have the
right to exercise the non-qualified stock option during its term within a period
of three months after the date employment so ceased, to the extent that the
non-qualified stock option was exercisable on the date employment ceased. The
Committee, however, in its discretion, may provide that any non-qualified stock
options outstanding but not yet exercisable upon the death, Disability,
Retirement or Involuntary Separation without Cause of the Participant may become
exercisable in accordance with a schedule to be determined by the Committee.
Such privileges shall expire unless exercised within such period of time as may
be established by the Committee.
9.5 Accelerated Vesting and Forfeiture for Non-Employee
Directors. Any other provision of this Plan notwithstanding, all shares of
common stock of the Company available under any non-qualified stock option
granted to a director-Participant that is not an employee of the Company shall
automatically vest on account of (i) death, (ii) Disability, or (iii)
Retirement. In the event a director-Participant who is not an employee of the
Company ceases to be a member of the Board for any other reason, shares of
common stock of the Company subject to a non-qualified stock option which have
not vested on the date of termination shall thereafter cease to be available
under the non-qualified stock option and shall be forfeited by the director.
9.6 Cashless Exercise. To the extent permitted under Section
16 of the Exchange Act and the rules and regulations promulgated thereunder by
the SEC, and with the consent of the Committee, the Company agrees to cooperate
in a "cashless exercise" of a non-qualified stock option. The cashless exercise
shall be effected by the Participant delivering to a registered securities
broker acceptable to the Company instructions to sell a sufficient number of
shares of stock to cover the costs and expenses associated therewith.
10. General Restrictions.
10.1 Conditions on Company's Obligations. The Company's
obligations with respect to each Award under the Plan shall be subject to the
requirement that, if at any time the Committee shall determine that (i) the
listing, registration or qualification of the shares of common stock subject or
related thereto upon any securities exchange or under any state or federal law,
(ii) the consent or approval of any government regulatory body, or (iii) an
agreement by the recipient of an Award with respect to the disposition of shares
of common stock, is necessary or desirable as a condition of or in connection
with the granting of such Award, such Award may not be consummated in whole or
in part unless such listing, registration, qualification, consent, approval or
agreement shall have been effected or obtained free of any conditions not
acceptable to the Committee.
10.2 Per Participant Limitation on Stock Options.
Notwithstanding anything in this Plan to the contrary, no Participant shall
receive incentive stock options and non-qualified stock options that, in the
aggregate, grant the Participant the option to purchase in excess of 10,000
shares of common stock of the Company in any given year the Plan is in effect.
11. Rights To Terminate Employment and Board Membership. Nothing in the
Plan or in any Award Agreement or other agreement entered into pursuant to the
Plan shall confer upon any employee-Participant the right to continue in the
employment of the Company or affect any right which the Company may have to
terminate the employment of such Participant, nor confer upon any director the
right to continue as a member of the Board. So long as an employee-Participant
shall continue to be an employee of the Company, any Award granted to such
Participant shall not be affected by any change of the Participant's duties or
position.
12. Withholding. Whenever the Company proposes or is required to issue or
transfer shares of common stock under the Plan, the Company shall have the right
to require the Participant to remit to the Company an amount sufficient to
satisfy any federal, state and/or local tax withholding requirements prior to
the delivery of any certificate for such shares or, in the discretion of the
Committee, the Company may withhold from the shares to be delivered shares
sufficient to satisfy all or a portion of such tax withholding requirements.
13. Non-Uniform Determination. The Committee's determinations under the
Plan (including without limitation determinations of the persons to receive
Awards, the form, amount and timing of such Awards, the terms, provisions and
conditions of such Awards, the agreements evidencing same, and the establishment
of values and performance targets) need not be uniform and may be made by it
selectively among Participants who receive, or are eligible to receive, Awards
under the Plan, whether or not such persons are similarly situated.
14. Adjustments. In the event of any change in the outstanding common
stock of the Company by reason of a stock dividend or distribution,
recapitalization, merger, consolidation, split-up, combination, exchange of
shares or the like, in which the number of shares held by the Company's
shareholders prior to such event is affected by such event, then the Committee
shall adjust the number of shares of common stock which may be issued under the
Plan and shall provide for an equitable adjustment of any outstanding Award or
the number or kind of shares issuable pursuant to an outstanding Award under the
Plan.
15. Amendment. The Board may amend, alter, suspend or terminate the Plan
or the Committee's authority to grant Awards under the Plan, except that any
such amendment, alteration, suspension or termination shall be subject to the
ratification or approval of the Company's shareholders if such shareholder
ratification or approval is required by any federal or state law or regulation,
including without limitation Section 162(m) of the Code and SEC Rule 16b-3 under
the Exchange Act, or the rules of any stock exchange or automated quotation
system on which the common stock of the Company may then be listed or quoted, or
if the Board otherwise in its discretion determines for any other reason to
submit such changes to the Plan to shareholders for approval or ratification.
The amendment, alteration, suspension or termination of the Plan shall not,
without the consent of a Participant, affect the Participant's rights under an
Award previously granted.
16. Change of Control.
16.1 Notwithstanding any other provision of the Plan, if there is a Change
of Control, as defined below, of the Company, all outstanding stock options
shall become exercisable immediately prior to the consummation of the Change of
Control.
16.2 A "Change of Control" of the Company shall be deemed to have occurred
upon the happening of any of the following events:
(i) The Board of Directors determines, as a result of one or more
transactions or events, that Williamson-Dickie Manufacturing Company no longer
controls the Company; or
(ii) upon the approval by the Company's shareholders of a sale or
disposition of all or substantially all of the Company's assets or a plan of
liquidation or dissolution of the Company.
17. Effect on Other Plans. Participation in the Plan shall not affect an
employee's or director's eligibility to participate in any other benefit or
incentive plan of the Company, and any Awards made pursuant to the Plan shall
not be used in determining the benefits provided under any other plan of the
Company unless specifically provided.
18. Compliance With Exemptive Rules Under Section 16 of the Exchange Act.
It is the intent of the Company that transactions involving equity securities
under the Plan by persons subject to Section 16 of the Exchange Act be exempt
under Rule 16b-3 under the Exchange Act. Accordingly, if any provision of the
Plan or any Award Agreement does not comply with the requirements of Rule 16b-3
as then applicable to such a transaction, such provision shall be construed or
deemed amended to the extent necessary to conform to such requirements with
respect to such transaction.
19. Governing Law. To the extent that federal laws do not otherwise
control, the Plan shall be governed by and construed in accordance with the laws
of the State of Delaware.
