As filed with the Securities and Exchange Commission on September 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
Michael Carlson Compensation Contract
(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 3,000 $13.00 $39,000.00 $100.00
per share)
===============================================================================
(1) Pursuant to Rules 457(c) and 457(h), the registration fee was computed using
$13.00 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
September 8, 1997.
<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.
<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.
<PAGE>
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 Stock Option Agreement.
*99.2 Michael Carlson Compensation Contract.
__________________
* 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.
<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
<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 September 15,
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 September 9, 1997
Leonard Birnbaum, Director
/s/Joseph J. Harkins September 9, 1997
Joseph J. Harkins, Director
<PAGE>
/s/John M. Hogg September 9, 1997
John M. Hogg, Director
/s/James P. Luke September 9, 1997
James P. Luke, Executive Vice
President, Chief Financial Officer,
Secretary and Director
(Principal Financial Officer)
/s/Elwood M. Miller September 9, 1997
Elwood M. Miller, President and Chief
Executive Officer and Director
(Principal Executive Officer)
/s/Richard C. Patton September 9, 1997
Richard C. Patton, Director
/s/Manuel Villarreal G. September 9, 1997
Manuel Villarreal G.,
President and Chief Executive Officer of
NEPSA, Director
/s/Robert E. Weber September 9, 1997
Robert E. Weber, Director
/s/J. Donovan Williamson September 9, 1997
J. Donovan Williamson, Director
/s/Wayne A. Durboraw September 9, 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.
**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 Stock Option Agreement.
**99.2 Michael Carlson Compensation Contract.
- ----
* 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
September 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 3,000 shares ("Shares") of
Common Stock of Blessings Corporation ("Company"), which may be issued pursuant
to the terms of the Michael Carlson Compensation Contract ("Contract"), 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 Contract.
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
<PAGE>
EXHIBIT 15.1
September 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 interim
financial information of Blessings Corporation and subsidiaries for the periods
ended March 31, 1997 and 1996 and June 30, 1997 and 1996, as indicated in our
reports dated April 18, 1997 and July 18, 1997, respectively; 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 Reports on Form 10-Q for the quarters ended March 31, 1997 and June
30, 1997, are being used in this Registration Statement.
We also are aware that the aforementioned reports, pursuant to Rule 436(c)
under the Securities Act of 1933, are not considered a part of the Regulation
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 AUDITORS' 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
September 15, 1997
<PAGE>
EXHIBIT 99.1
BLESSINGS CORPORATION
STOCK OPTION AGREEMENT
In accordance with new SEC Rule 16b-3 effective August 15, 1996, and with,
but not under, the terms and provisions of the Blessings Corporation 1991 Stock
Option Plan (the "1991 Plan") a copy of which is attached hereto and
incorporated herein by reference, Blessings Corporation (the "Company") hereby
grants to Michael Carlson (the "Grantee"), an employee of the Company, the
following:
(a) An option to purchase 3,000 shares of the Company's Common Stock, $.71
par value, at a price of $9.687 per share, subject to adjustment as provided in
the 1991 Plan; and
(b) 900 Stock Appreciation Rights, subject to adjustment as provided in the
1991 Plan.
This grant shall be for a term commencing on the date hereof and ending
on December 1, 2006.
Grantee may exercise any Option in which Grantee is vested in accordance
with the terms of the 1991 Plan by delivering written notice to the Corporate
Secretary of the Company at the Company's office in Newport News, Virginia or
such other address at which the Company may be located at the time, together
with appropriate payment, as provided in such Plan, for the number of shares
covered by such notice with respect to the exercise of an Option.
Optionee acknowledges receipt of a copy of the 1991 Plan, and represents
that he is familiar with its terms and provisions and accepts the option subject
to all of its terms and provisions. Optionee has reviewed the 1991 Plan and the
option in their entirety, and has had an opportunity to obtain the advice of
counsel prior to executing this Agreement. Optionee accepts as binding,
conclusive and final all decisions or interpretations of the Board of Directors
upon any questions arising under the 1991 Plan, but with the understanding that
the option has not been granted under the Plan, and accordingly optionee may be
required to hold for two years before resale, any stock acquired upon exercise
of the option, if such stock is not otherwise registered under the Securities
Act of 1933.
BLESSINGS CORPORATION
By: /s/James P. Luke
James P. Luke
Executive Vice President
Chief Financial Officer
Date: December 2, 1996
ACCEPTED:
/s/Michael C. Carlson
GRANTEE
Date: December 30, 1996
PROVISIONS OF 1991 STOCK OPTION PLAN APPLICABLE
TO MICHAEL CARLSON COMPENSATION CONTRACT
PART I
PURPOSES; DEFINITIONS;
RESERVATION OF SHARES
ARTICLE I
The terms contained herein, the majority of which are identical to the terms of
the Blessings Corporation 1991 Stock Option Plan (the "Plan"), shall apply to
the Michael Carlson Compensation Contract dated December 2, 1996.
ARTICLE II
DEFINITIONS
Certain terms used herein shall have the meaning below stated, subject to the
provisions of Section 7.1.
"Subsidiary" means any domestic or foreign corporation, at least fifty percent
(50%) of the outstanding voting stock or voting power of which is beneficially
owned directly or indirectly, by the Company.
"Board" or "Board of Directors" means the Board of Directors of the Company.
"Code" means the Internal Revenue Code of 1986, as amended.
"Committee" means the committee appointed by the Board to administer the Plan
pursuant to Article VII.
"Common Stock" means, subject to the provisions of Section 9.3, the presently
authorized common stock of the Company, par value $.71 per share.
"Company" means Blessings Corporation, a Delaware corporation.
"Disability" means (subject to Section 6.2) a physical or mental impairment of
sufficient severity such that a Key Employee would be eligible for benefits
under the Company's long term disability plan if the Key Employee had, at the
time of such disability, been a participant under such plan
"Fair Market Value" means the closing price at which the Common Stock of the
Company shall have been sold regular way on the American Stock Exchange on the
date as of which such value is being determined or, if no sales occurred on such
day, then on the next preceding day on which there were such sales or, if at any
time the Common Stock shall not be listed on the American Stock Exchange, the
fair market value as determined by the Committee on the basis of available
prices for such Common Stock or in such manner as may be authorized by
applicable regulations under the Code.
<PAGE>
"Key Employee" means Michael Carlson.
"Option" means a Non
Statutory option to purchase Common Stock, granted by the Company to the Key
Employee pursuant to Section 5.1, which is not an Incentive Stock Option as
described in Section 422A of the Code.
"Plan" means the Blessings Corporation 1991 Stock Option Plan.
"Stock Appreciation Right" means a right, granted by the Company to the Key
Employee pursuant to Section 5.3, to earn additional compensation for services
rendered based upon the appreciation of the Fair Market Value of Common Stock.
ARTICLE III
RESERVATION OF SHARES
Subject to adjustment under the provisions of Section 9.3 hereof, the maximum
number of shares of Common Stock which may be issued and sold to the Key
Employee pursuant hereto is 3,000 shares. Such shares may be either authorized
and unissued shares or shares issued and thereafter acquired by the Company.
Shares issued pursuant hereto shall be subject to all applicable provisions of
the Certificate of Incorporation and Bylaws of the Company in existence at the
time of issuance of such shares and at all times thereafter.
ARTICLE IV
PARTICIPATION
4.1 Eligibility to Receive Options and Stock Appreciation Rights. Options
and Stock Appreciation Rights pursuant hereto may be granted only to the
Key Employee .
4.2 Participation Not Guarantee of Employment. Nothing herein or in the
instrument evidencing the grant of an Option or Stock Appreciation Right shall
in any manner be construed to limit in any way the right of the Company or a
Subsidiary to terminate the Key Employee's employment at any time without regard
to the effect of such termination or any rights such Key Employee would
otherwise have, or give any right to the Key Employee to remain employed by the
Company or a Subsidiary thereof in any particular position or at any particular
rate of compensation.
<PAGE>
PART II
OPTIONS AND STOCK APPRECIATION RIGHTS;
TERMINATIONS OF EMPLOYMENT AND DEATH
ARTICLE V
OPTIONS AND STOCK APPRECIATION RIGHTS
5.1 Grants of Options.
(a) Option Price. The purchase price per share of Common Stock under each
Option shall be determined by the Committee but shall be not less than 100% of
the Fair Market Value per share of such Common Stock on the date the Option is
granted. The Option Price may be subject to adjustment in accordance with the
provisions of Section 9.3 hereof.
(b) Option Agreements. Options and any Stock Appreciation Rights attached to
such Options shall be evidenced by Option agreements in such form and containing
such terms and conditions as the Committee shall approve, which terms and
conditions need not be the same for all Options.
(c) Options Nontransferable. An Option granted to the Key Employee shall by its
terms be nontransferable by the Key Employee otherwise than by will or the laws
of descent and distribution, and, during the lifetime of the Key Employee, shall
be exercisable only by such Key Employee. No transfer of an Option by the Key
Employee by will or by the laws of descent and distribution shall be effective
to bind the Company unless the Company shall have been furnished with written
notice thereof and a copy of the will and/or such other evidence as the
Committee may determine necessary to establish the validity of the transfer.
(d) Substitution and Cancellation. The Committee, in its sole discretion, may
grant to the Key Employee who has been granted an Option pursuant hereto, in
exchange for the surrender and cancellation of such Option, a new Option having
a purchase price lower (or higher) than the purchase price provided in the
Option so surren dered and cancelled and containing such other terms as the
Committee may deem appropriate, subject to Section 5.1 (a).
5.2 Exercise of Options.
(a) Term of Options; Vesting. The term of the Option and any related Stock
Appreciation Right granted pursuant hereto shall not exceed ten (10) years from
the date of grant. An Option granted shall become 100% vested at the earliest of
the following times if the Key Employee is employed by the Company or a
Subsidiary of the Company at such time: (i) the Key Employee's normal retirement
date pursuant to the retirement plan of the Company or its Subsidiary applicable
to the Key Employee, (ii) the Key Employee's death or Disability, (iii) in the
event of a change in control of the Company (as set forth and defined in Section
5.2 (c), or (iv) one year from the date of grant. In its sole discretion, the
Committee may prescribe a shorter time or accelerate the exercisability and
vesting of any Option at any time.
(b) Payment on Exercise. No shares of Common Stock shall be issued on the
exercise of an Option unless paid for in full at the time of purchase as
provided in the next sentence. Payment for shares of Common Stock purchased upon
the exercise of an Option shall be made in cash or, with the consent of the
Committee, in whole or in part in shares of Common Stock valued at the then Fair
Market Value thereof or by delivery to the Com pany of a properly executed
exercise notice together with irrevocable instructions to the Optionee's broker,
which instructions and broker shall be satisfactory to the Company, to promptly
deliver to the Company the total pur chase price for the shares of the Option
being exercised from the sale or loan proceeds for such shares and the Company
will deliver such shares directly to such broker in accordance with such
procedures as the Committee may establish, which alternative forms of payment
may be permitted by the Committee at the time the Option is granted or any time
thereafter during the term of the Option. Such certificates for the shares of
Common Stock so paid for will be issued and delivered to the person entitled
thereto only at the Company's office in Newport News, Virginia. The Key Employee
shall not have any rights as a shareholder with respect to any share of Common
Stock covered by an Option unless and until such Key Employee shall have become
the holder of record of such shares and, except as otherwise permitted in
Section 9.3 hereof, no adjustment shall be made for dividends (ordinary or
extraordinary, whether in cash, securities or other property or distributions or
other rights) in respect of such share for which the record date is prior to the
date on which such Key Employee shall have become the holder of record thereof.
<PAGE>
(c) In the event of a change in control of the Company (as hereafter
defined), all Options then outstanding shall become fully (100%) vested and
shall be exercisable immediately. As used herein, the term "change in control of
the Company" shall be deemed to have occurred if (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.
(d) If the Key Employee desires to exercise all or part of the Key Employee's
currently exercisable Stock Appre ciation Rights in conjunction with the
exercise of any exercisable options the Key Employee shall notify the Secre tary
of the Company, in writing, of such intention and the number of Options and/or
Stock Appreciation Rights which such Key Employee wishes to exercise. (The date
of such notice shall be referred to herein as the "Election Date.")
(e) In the event that the Key Employee exercises Stock Appreciation Rights, such
Key Employee will receive an amount determined pursuant to the provisions of
Section 5.3 (less applicable withholding taxes) within seven days of the
Election Date. In the event that the Key Employee exercises Options, the Key
Employee shall comply with all requirements set forth in the Option agreement in
connection with the purchase of shares of Common Stock.
5.3 Stock Appreciation Rights Attached to Options.
(a) Award. The Committee may award a Stock Appreciation Right with respect
to any shares of Com mon Stock covered by any Option granted pursuant hereto and
such Stock Appreciation Right (which shall not exceed 30% of the number of
shares covered by any such Option) shall be granted only at the time of the
grant of the related Option. A Stock Appreciation Right may be subject to such
limitations and conditions as the Committee may determine in its discretion.
(b) Terms and Conditions. Each Stock Appreciation Right shall be subject to the
same terms and condi tions as the related Option with respect to the date of
expiration, limitations on transferability and eligibility to exer cise;
provided, however, that the Stock Appreciation Right exercised by a person
subject to Section 16 (b) of the Securities Exchange Act of 1934, as amended,
shall not be paid in whole or in part in unless the exercise occurs during the
period beginning on the third business day and ending on the twelfth business
day following the release of the Company's quarterly earnings. A Stock
Appreciation Right may only be exercised at the same time as the related Option
with which it was initially granted, and no Stock Appreciation Right may be
exercised after the related Option becomes non exercisable. Stock Appreciation
Rights shall be payable only in the form of cash.
<PAGE>
(c) Amount of Compensation. The amount of compensation which shall be payable to
a Key Employee pursuant to the exercise of a Stock Appreciation Right shall be
equal to the excess of the Fair Market Value of one share of Common Stock on the
date the appropriate officer of the Company receives notice of the exercise of
such Stock Appreciation Right over the purchase price per share under the
related Option as determined under Section 5.1 (b) hereof multiplied by the
number of Option shares with respect to which the Stock Appreciation Right is
exercised.
ARTICLE VI
TERMINATION OF EMPLOYMENT AND DEATH
6.1 Termination of Employment. Unless earlier terminated in accordance with its
terms, upon termination of the Key Employee's employment with the Company or any
of its Subsidiaries, Options or Stock Appreciation Rights not theretofore vested
and exercisable shall be forfeited. Any vested Option or vested Stock
Appreciation Right shall terminate 90 days after any of the following:
(a) Voluntary termination of employment by the Key Employee, with or
without consent of the Company,
(b) termination of employment of the Key Employee by the Company or any of
its Subsidiaries, with or without cause, or
(c) termination of employment of the Key Employee for any other reason including
retirement under a retirement plan maintained by the Company, or because the
Subsidiary employing such Key Employee ceases to be a Subsidiary of the Company
and such Key Employee does not, prior thereto or contemporaneously therewith,
become employed by the Company or of another Subsidiary.
6.2 Death or Disability of Optionee. If the Key Employee's employment is
terminated as a result of Disability or death, the Key Employee or such Key
Employee's legal representatives, shall be entitled to exercise the Options or
Stock Appreciation Right in whole or in part at any time within one year
following the Disability or death of the Key Employee, but in no event after
expiration of the term of such Option or Stock Appreciation Right.
6.3 Employment. For all purposes herein, and under any Option or Stock
Appreciation Right granted hereunder, "employment" shall be defined in
accordance with the provisions of Section 1.421-7(h) of the Income Tax
Regulations (or any successor regulations).
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PART III
ADMINISTRATION, AMENDMENT AND TERMINATION;
MISCELLANEOUS
ARTICLE VII
ADMINISTRATION
7.2 Liability of Committee. No member of the Committee shall be liable for
anything done or omitted to be done by such member or by any other member of the
Committee in connection with any award hereunder, except for the willful
misconduct or gross negligence of such member. The Committee shall have power to
engage outside consult ants, auditors or other professional help to assist in
the fulfillment of the Committee's duties hereunder at the Company's expense.
7.3 Determinations of the Committee. The Committee shall determine the form of
Option agreements to be issued pursuant hereto and the terms and conditions to
be included therein, provided such terms and conditions are not inconsistent
with the provisions set forth herein. The Committee may, in its discretion or in
accordance with a direction from the Board, waive any provisions of any Option
agreement, provided such waiver is not inconsistent with the provisions set
forth herein.
ARTICLE VIII
AMENDMENT
The terms hereof may be amended at any time and from time to time by
the Board of Directors of the Company. No termination or amendment of the
provisions hereof, without the consent of the Key Employee, may terminate such
holder's Option or Stock Appreciation Right or materially and adversely affect
such holder's rights thereunder.
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.1 Restrictions Upon Grant of Options and Stock Appreciation Rights. The
listing upon the American Stock Exchange or the registration or qualification
under any Federal or State law of any shares of Common Stock to be granted
pursuant hereto (whether to permit the grant of Options or Stock Appreciation
Rights or the resale or other disposition of any such shares of Common Stock by
or on behalf of the Key Employee receiving such shares) may be necessary or
desirable and, in any such event, delivery of the certificates for such shares
of Common Stock shall, if the Board of Directors, in its sole discretion, shall
determine, not be made until such listing, registration or qualification shall
have been completed. In such connection, the Company agrees that it will use its
best efforts to effect any such listing, registration or qualification,
provided, however, that the Company shall not be required to use its best
efforts to effect such registration under the Securities Act of 1933 ("1933
Act"), other than on Form S 8, as presently in effect, or such other forms as
may be in effect from time to time calling for information comparable to that
presently required to be furnished under Form S-8.
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9.2 Restrictions upon Resale of Unregistered Stock. If the shares of Common
Stock that have been transferred to the Key Employee pursuant hereto are not
registered under the 1933 Act, pursuant to an effective registration statement,
such Key Employee, if the Committee shall deem it advisable, may be required to
represent and agree in writing (i) that any shares of Common Stock acquired by
the Key Employee pursuant hereto will not be sold except pursuant to an
effective registration statement under the 1933 Act and (ii) that such Key
Employee is acquiring such shares of Common Stock for such Key Employee's own
account and not with a view to the distribution thereof.
9.3 Adjustments. In the event of any change (through recapitalization, merger,
consolidation, stock dividend, split up combination or exchanges of shares or
otherwise) in the character or amount of the Company's capital stock (or any
other transaction described in Section 425(a) of the Code) after any Option or
Stock Appreciation Right is granted hereunder and prior to the exercise thereof,
(i) the Option, to the extent that it has not been exercised, shall entitle the
holder to such number and kind of securities as such holder would have been
entitled to had such holder actually owned the stock subject to the Option at
the time of the occurrence of such change; and (ii) any outstanding Stock
Appreciation Rights shall be similarly adjusted. If any such event should occur,
the number of Stock Appreciation Rights and shares subject to Option which are
authorized to be issued hereunder, but which have not been issued, shall be
similarly adjusted. If any other event shall occur, prior to the exercise of an
Option granted to the Key Employee hereunder, which shall increase or decrease
the amount of capital stock outstanding and which the Committee, in its sole
discretion, shall determine equitably requires an adjustment in the number of
shares which the holder should be permitted to acquire or the number of Stock
Appreciation Rights such holder should be entitled to exercise, such adjustment
as the Committee shall determine may be made, and when so made shall be
effective and binding for all purposes.
9.4 Withholding of Taxes. The Key Employee, upon exercise of an Option to
purchase Common Stock or Stock Appreciation Rights shall agree to pay to the
Company, or make arrangements (including withholding of shares of Common Stock
purchased upon exercise of the Option at the Fair Market Value thereof)
satisfactory to the Committee regarding payment of any taxes of any kind
required by law to be withheld with respect to the transfer of such Key Employee
of such shares of Common Stock.
9.5 Use of Proceeds. The proceeds from the sale of Common Stock pursuant to
Options granted pursuant hereto shall constitute general funds of the Company
and may be used for such corporate purposes as the Company may determine.
9.6 Other Benefits. Nothing contained herein shall prevent the Company from
establishing other incentive plans in which the Key Employee may also
participate. No award pursuant hereto shall be considered as compensation in
calculating any insurance pension or other benefit for which the recipient is
eligible unless any such insurance, pension or other benefit is granted under a
plan which expressly provides that compensation pursuant hereto (and specifying
the type of such compensation) shall be considered as compensation under such
plan.
9.7 Board Action. Any action authorized to be taken hereunder by the
Committee may be taken by the Board.
