SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST EFFECTIVE AMENDMENT NO. 1
to
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
BROWN-FORMAN CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 61-0143150
(State of incorporation) (I.R.S. Employer Identification No.)
850 DIXIE HIGHWAY, LOUISVILLE, KENTUCKY 40210
(Address of Principal Executive Offices and Zip Code)
Stock Option Grants
Brown-Forman Corporation Non-Employee Director
Compensation Plan
(Full title of the plan)
MICHAEL B. CRUTCHER
Senior Vice President
General Counsel and Secretary
Brown-Forman Corporation
850 Dixie Highway
Louisville, Kentucky 40210
(502) 585-1100
OGDEN NEWELL & WELCH
Attention: James S. Welch
1700 Citizens Plaza
500 West Jefferson Street
Louisville, Kentucky 40202-2874
(502) 582-1601
(Names, addresses and telephone numbers of agents for service)
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Item 4. Description of Securities
- ---------------------------------
The securities to be issued are stock options granted in accordance with the
Brown-Forman Non-Employee Director Omnibus Compensation Plan (the "Omnibus
Plan"). Upon vesting and in accordance with the provisions of the Omnibus Plan
and the terms of the grant made to each grantee, each option entitles the
grantee to purchase one share of the Company's Class A or Class B Common Stock,
as the case may be. The Company's Class A and Class B common stock is registered
pursuant to Section 12 of the Securities Exchange Act of 1934 and is traded on
the New York Stock Exchange. The options, except for transfers by the laws of
descent and distribution, are non-transferable.
Item 8. Exhibits
- ----------------
Exhibit
Number Description of Documents
- ------ ------------------------
99 Brown-Forman Non-Employee Director Compensation
Plan (as amended)
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SIGNATURES
The Registrant
- --------------
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant, Brown-Forman Corporation, certifies that it has reasonable grounds
to believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this Post Effective Amendment No. 1 to the Registration Statement to
be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Louisville, Commonwealth of Kentucky.
Dated: July 16, 1998
BROWN-FORMAN CORPORATION
By: /s/ OWSLEY BROWN II
-----------------------
Owsley Brown II
Chairman and Chief Executive Officer
Director
By: /s/ MICHAEL B. CRUTCHER
-----------------------
Michael B. Crutcher
Attorney-in-fact for Owsley Brown II
(original power of attorney filed with Registration
Statement on Form S-8, File No. 333-38649)
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Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post Effective Amendment No. 1 Registration Statement has been signed below by
the following persons in the capacities and on the date indicated.
/s/ STEVEN B. RATOFF
-------------------------
Steven B. Ratoff
Executive Vice President and Chief Financial Officer
(Principal Financial Officer)
/s/ LAWRENCE K. PROBUS
-------------------------
Lawrence K. Probus
Vice President and Controller
(Principal Accounting Officer)
/s/ BARRY D. BRAMLEY*
-------------------------
Barry D. Bramley
Director
/s/ GEO. GARVIN BROWN III*
-------------------------
Geo. Garvin Brown III
Director
/s/ DONALD G. CALDER*
-------------------------
Donald G. Calder
Director
/s/ OWSLEY BROWN FRAZIER*
-------------------------
Owsley Brown Frazier
Director
/s/ RICHARD P. MAYER*
-------------------------
Richard P. Mayer
Director
/s/ STEPHEN E. O'NEIL*
-------------------------
Stephen E. O'Neil
Director
/s/ WILLIAM M. STREET*
-------------------------
William M. Street
Director
/s/ JAMES S. WELCH*
-------------------------
James S. Welch
Director
* By: /s/ MICHAEL B. CRUTCHER
-----------------------
Michael B. Crutcher,
Attorney-in-fact for each
(original power of attorney
filed with Registration Statement
on Form S-8, File No. 333-38649)
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EXHIBIT INDEX
-------------
Exhibit
Number Description Page
- ------- ----------- ----
99 Brown-Forman Non-Employee Director
Compensation Plan (as amended) 6
5
BROWN-FORMAN NON-EMPLOYEE DIRECTORS' COMPENSATION PLAN
Brown-Forman Corporation
July 24, 1997, As amended May 28, 1998
Unless the context clearly requires otherwise, references to "Sections" and
"Articles" are to sections and articles of this plan, and capitalized terms have
the meaning assigned to them below. All references to statutes or regulations
mean those statutes or regulations as amended from time to time, and any
successors to those statutes or regulations.
ARTICLE 1 - ESTABLISHMENT, OBJECTIVES, AND DURATION
1.1 ESTABLISHMENT: Brown-Forman Corporation, a Delaware corporation (the
"Company"), hereby establishes a compensation plan to be known as the
"Brown-Forman Non-Employee Directors' Compensation Plan" (the "Plan"), as set
out in this document. The Plan permits the Plan Administrator to grant Awards.
The Plan also permits Non-Employee Directors to elect to receive a portion of
their Compensation in Options with terms set by the Plan Administrator.
1.2 OBJECTIVES: The Plan's objectives are:
(a) to compensate the Company's Non-Employee Directors using the
Company's common stock to improve the linkage between the interests of the
Directors and those of the Company's shareholders; and
(b) to allow Directors to share in the Company's success.
1.3 DURATION: Subject to the Board's right to amend or terminate the Plan at any
time pursuant to Article 11, the Plan shall take effect as of the Effective
Date, and remain in effect indefinitely.
ARTICLE 2 - DEFINITIONS
Whenever used in the Plan, the following terms shall have the following
meanings:
2.1 "Award" means, individually or collectively, a grant under this Plan.
2.2 "Award Agreement" means an agreement entered into by the Company and a
Participant setting forth the terms of Awards granted under this Plan.
2.3 "Award Opportunity" means the total Award that a Participant may earn under
the Plan, as established by the Plan Administrator.
2.4 "Beneficial Owner" or "Beneficial Ownership" shall have the meaning ascribed
to such term in Rule 13d-3 under the Exchange Act.
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2.5 "Board" means the Company's board of directors.
2.6 "Change in Control" of the Company means, and shall be deemed to have
occurred upon, any of the following events:
(a) a merger, consolidation, or other reorganization of the Company in
which one or both classes of outstanding Common Stock are converted into or
exchanged for a different class of securities of the Company, a class of
securities of any other issuer (other than a direct or indirect wholly owned
Company subsidiary), cash, or other property;
(b) a sale, lease, or exchange of all or substantially all of the
Company's assets to any other corporation or entity (other than a direct or
indirect wholly owned Company subsidiary);
(c) the adoption by the Company's shareholders of a plan of
liquidation and dissolution; or
(d) as a result of or in connection with a contested election of
directors, the persons who were Directors before such election cease to comprise
a Board majority.
2.7 "Code" means the Internal Revenue Code of 1986.
2.8 "Company" means Brown-Forman Corporation, a Delaware corporation, and the
Company's Subsidiaries, as well as any successor to any of such entities as
provided in Section 14.4.
2.9 "Compensation" means the regular compensation the Company pays to its
Non-Employee Directors for their services as directors. It does not include
per-meeting fees or fees paid to chairmen of Board Committees.
2.10 "Director" means any individual who is a Board member.
2.11 "Disability" shall mean a disability that the Plan Administrator has reason
to believe will be of extended duration, and that results in the Non-Employee
Director relinquishing his/her position on the Board of Directors.
2.12 "Effective Date" means July 24, 1997.
2.13 "Employee" means any non-union employee of the Company.
2.14 "Exchange Act" means the Securities Exchange Act of 1934.
2.15 "Fair Market Value" means the closing sale price on the principal
securities exchange on which the Shares are traded on the relevant date (or, if
no Shares traded on the relevant date, the last previous day on which a sale was
reported).
2.16 "Freestanding SAR" means an SAR granted independently of any Options, as
described in Section 6.4.
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2.17 "Incentive Stock Option" or "ISO" means an option to buy Shares granted
under Section 6.3 which is designated an Incentive Stock Option and which is
intended to meet the requirements of Code Section 422.
2.18 "Indexed Option" means an Option with an exercise price which either
increases by a fixed percentage over time or changes by reference to a published
index.
2.19 "Insider" means an individual who is, on the relevant date, an officer,
Director, or 10% beneficial owner of any class of the Company's equity
securities that is registered pursuant to Section 12 of the Exchange Act, all
as defined under Section 16 of the Exchange Act.
2.20 "Non-employee Director" means a Director who is not an Employee.
2.21 "Nonqualified Stock Option" or "NQSO" means an option to buy Shares
granted under Section 6.3 which is not intended to meet the requirements of Code
Section 422.
2.22 "Option" means an Incentive Stock Option, Indexed Option or a Nonqualified
Stock Option, as described in Section 6.3.
2.23 "Option Price" means the price at which a Participant may buy a Share
under an Option.
2.24 "Participant" means a Non-Employee Director who has outstanding an Award
granted under the Plan. The term "Participant" shall not include Employee
Directors.
2.25 "Performance Period" means such period of time as determined by the Plan
Administrator.
2.26 "Period of Restriction" means the period during which the transfer of
Shares of Restricted Stock is limited in some way (based on the passage of time,
the achievement of performance goals, or upon the occurrence of other events as
determined by the Plan Administrator), and during which the Shares are subject
to a substantial risk of forfeiture, as provided in Section 6.2.
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2.27 "Person" shall have the meaning ascribed to such term in Section 3(a)(9) of
the Exchange Act and used in Sections 13(d) and 14(d) thereof, including a
"group" as defined in Section 13(d) thereof.
2.28 "Plan Administrator" means such persons or committees appointed by the
Board or the Compensation Committee to administer the Plan with respect to
grants of Awards.
2.29 "Plan Year" means the Company's Fiscal Year.
2.30 "Restricted Stock" means an Award granted to a Participant pursuant to
Section 6.2.
2.31 "Retirement" shall mean the relinquishment of the Director's position on
the Board on or after age 60.
2.32 "Shares" means the shares of the Company's Class A or Class B Common Stock,
or any combination of Class A or Class B Common Stock, as the Plan Administrator
determines.
2.33 "Stock Appreciation Right" or "SAR" means an Award, granted alone or in
connection with a related Option, designated as an SAR, pursuant to Section 6.4.
2.34 "Subsidiary" means any corporation, partnership, joint venture, affiliate,
or other entity in which the Company has a majority voting interest, and which
the Plan Administrator designates as a participating entity in the Plan.
2.35 "Tandem SAR" means an SAR granted in connection with a related Option
pursuant to Section 6.4. A holder exercising a Tandem SAR must forfeit the right
to buy a Share under the related Option; conversely, a holder of a Tandem SAR
buying a Share under the Option will have the Tandem SAR canceled
proportionately.
ARTICLE 3 - ADMINISTRATION
3.1 THE PLAN ADMINISTRATOR:
(a) Disinterested Administration: For Non-Employee Directors, the Plan
Administrator shall be a committee comprising two or more Employee Directors. If
for any reason such committee does not qualify to administer the Plan as
contemplated under any Regulation or rule of law, the Board may appoint a new
committee so as to comply with such regulation or rule.
(b) Code Compliance: Awards to Non-Employee Directors are intended to
qualify under appropriate section of the Code.
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3.2 AUTHORITY: Except as limited by law or by the Company's Certificate of
Incorporation or By-laws, and subject to the Plan's terms, the Plan
Administrator shall have full power to:
determine the sizes and types of Awards;
determine the terms and conditions of Awards in a manner consistent
with the Plan;
construe and interpret the Plan and any agreement or instrument
entered into under the Plan;
establish, amend, or waive rules and regulations for the Plan's
administration;
(subject to Article 11) amend the terms and conditions of any outstanding Award
to the extent such terms and conditions are within the Plan Administrator's
discretion;
determine the length of the Performance Period(s) and vesting
periods;
set the percentage of Compensation that Non-Employee Directors may elect to
receive as Options instead of cash, and (subject to Section 6.3) set the terms
of such Options; and
make all other determinations which may be necessary or advisable to administer
the Plan as it applies to Employees.
3.3 DECISIONS BINDING: All determinations and decisions made by the Plan
Administrator pursuant to the Plan and all related Board orders and resolutions
shall be final, conclusive, and binding on all persons, including the Company,
its shareholders, Employees, Participants, and their estates and beneficiaries.
ARTICLE 4 - SHARES SUBJECT TO THE PLAN
No shares are reserved for Plan use. Shares issued under this plan will be
obtained by purchase on the open market.
ARTICLE 5 - ELIGIBILITY AND PARTICIPATION
5.1 EMPLOYEE ELIGIBILITY: No Employee, including Employees who are
Directors, is eligible for participation in this Plan.
5.2 NON-EMPLOYEE DIRECTOR ELIGIBILITY: Directors who are not Employees are
automatically eligible to participate in this Plan.
5.3 ACTUAL PARTICIPATION: The Plan Administrator may from time to time
select, from all eligible Non-Employee Directors, those to whom Awards shall be
granted and shall determine the nature and amount of each Award Opportunity and
Award. All Non-Employee Directors are eligible to convert a portion of their
Compensation into Options under terms set by the Plan Administrator.
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5.4 RIGHTS NOT AFFECTED OR CREATED:
(a) Rights Not Affected: Nothing in the Plan shall interfere with or
limit in any way the Company's right to terminate any Director's position on the
Board at any time, nor confer upon any Participant any right to continue as a
member or officer of the Board.
(b) No Right to Award: A Non-Employee Director's status confers no
right on that Participant to receive an Award under this Plan, or, having
received any Award, to receive a future Award.
5.5 PRO RATA PLAN YEAR OR PERFORMANCE PERIOD PARTICIPATION: The Plan
Administrator may allow Directors who join the Board after the Plan Year or
Performance Period begins to participate under this Article on a full year or
pro rata basis. Such situations include, but are not limited to:
(a) newly added positions to the Board during a Plan Year; or
(b) the replacement of a Director due to disability, retirement, death,
or other termination or removal from the Board during a Plan Year.
5.6 AWARD OPPORTUNITIES:
(a) Timing: As soon as practicable in each Plan Year or Performance
Period, the Plan Administrator shall establish an Award Opportunity for each
Participant.
(b) Measures: An Award Opportunity may be a function of one or more
performance measures and goals selected by the Plan Administrator.
5.7 AWARD DETERMINATIONS:
(a) The Award shall be computed for each Participant as determined by
the Plan Administrator.
(b) Award amounts may vary as the Plan Administrator shall, from time
to time, determine, unless otherwise limited by the Plan.
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ARTICLE 6 - AWARDS OF COMMON STOCK
6.1 GENERALLY:
(a) Grant of Awards: Subject to Article 4, the Plan Administrator, at
any time and from time to time, may, in its discretion, grant or award Options,
Restricted Stock, Freestanding SAR's, Tandem SAR's, or any combination thereof
to Participants in such amounts as the Plan Administrator shall determine. The
Plan Administrator may apply Performance Periods and performance measures, and
may set threshold, target, and maximum goals for each type of Award, as it
chooses.
(b) Source of Shares: The source of Shares delivered to Participants
under this Plan shall be limited to Shares purchased by the Company from time to
time for the purpose of funding the operation of this Plan. The Company shall
maintain a separate accounting of Shares purchased for this purpose.
(c) Termination of Employment: Each Participant's Award Agreement shall
set out the extent to which the Participant may (as the case may be):
(1) receive unvested Restricted Shares;
(2) exercise Options; or
(3) exercise SAR's
following termination of employment with the Company and/or
its Subsidiaries. Under no circumstances will an Award vest prior to one year
from the date of grant.
Such provisions shall be determined in the Plan
Administrator's sole discretion, shall be included in the Award Agreement
entered into with each Participant, need not be uniform among all Awards granted
or issued pursuant to this Article, and may reflect distinctions based on the
reasons for termination of employment.
(d) Other Restrictions: Subject to Article 7, the Plan Administrator
may impose such other conditions and/or restrictions on any Long-Term Incentive
Awards granted pursuant to the Plan as the Plan Administrator deems advisable,
including time-based restrictions on vesting following the attainment of the
performance goals, and/or restrictions under applicable Federal or state
securities laws.
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6.2 RESTRICTED STOCK:
(a) Award Agreement: Each Restricted Stock grant shall be evidenced by
an Award Agreement that shall specify the Period(s) of Restriction, the number
of Shares of Restricted Stock granted, and such other terms as the Plan
Administrator shall determine.
(b) Non-Transferability: Except as provided in this Article, the Shares
of Restricted Stock granted herein may not be sold, transferred, pledged,
assigned, or otherwise alienated until the end of the applicable Period of
Restriction established by the Plan Administrator and specified in the Award
Agreement, or upon earlier satisfaction of any other conditions, as specified by
the Plan Administrator and set out in the Award Agreement. During a
Participant's lifetime, only that Participant may exercise any rights with
respect to the Restricted Stock granted to that Participant.
(c) Other Restrictions on Restricted Stock:
(1) The Company shall keep custody of the certificates
representing Shares of Restricted Stock until all conditions and/or restrictions
applicable to such Shares have been satisfied.
(2) Except as otherwise provided in this Article, Shares of
Restricted Stock covered by each Restricted Stock grant made under the Plan
shall become freely transferable by the Participant after the last day of the
applicable Period of Restriction.
(d) Voting Rights: During the Period of Restriction, Participants
holding Shares of Restricted Stock may exercise full voting rights with respect
to those Shares.
(e) Dividends and Other Distributions:
(1) During the Period of Restriction, Participants holding
Shares of Restricted Stock may be credited with regular cash dividends paid with
respect to the underlying Shares while they are so held. The Plan Administrator
may apply any restrictions to the dividends that it deems appropriate.
(2) If any dividend constitutes a "derivative security" or an
"equity security" pursuant to Rule 16(a) under the Exchange Act, such dividend
shall be subject to a vesting period equal to the remaining vesting period of
the Shares of Restricted Stock with respect to which the dividend is paid.
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6.3 STOCK OPTIONS:
(a) Award Agreement: Each Option grant shall be evidenced by an Award
Agreement that shall specify the Option Price, the Option's duration, the number
of Shares to which the Option pertains, and such other terms as the Plan
Administrator shall determine. The Award Agreement shall also specify whether
the Option is intended to be an ISO, Indexed Option, or an NQSO, and what
Performance Period (if any) applies. Even if an option is designated as an ISO,
it shall be treated as an NQSO to the extent the Fair Market Value of the Shares
with respect to which ISO's are exercisable for the first time by any
Participant exceeds $100,000.
(b) Option Price and Duration: The Option Price for each grant of an
Option under this Plan shall be at least 100% of the Fair Market Value of a
Share on the date the Option is granted. Options may be Indexed Options. Each
Option granted to an Employee shall expire as the Plan Administrator shall
determine at the time of grant - but no Option shall be exercisable later than
the tenth anniversary of its grant.
(c) Exercise of Options: Options granted under this Section shall be
exercisable at such times and be subject to such restrictions and conditions as
the Plan Administrator shall in each instance approve, which need not be the
same for each grant or for each Participant.
(d) Payment:
(1) Options granted under this Section shall be exercised by
the delivery of a written notice of exercise to the Company, setting forth the
number of Shares with respect to which the Option is to be exercised,
accompanied by full payment for the Shares.
(2) The Option Price upon exercise of any Option shall be
payable to the Company in full either:
(A) in cash or its equivalent, or
(B) by tendering previously acquired Shares having
an aggregate Fair Market Value at the time of exercise equal to the total
Option Price (but only if the Shares which are tendered have been held by the
Participant for at least six months before their tender to satisfy the Option
Price); or
(C) by a combination of (A) and (B).
(3) The Plan Administrator also may allow cashless exercise as
permitted under Federal Reserve Board's Regulation T,
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subject to applicable securities law restrictions, or by any other means which
the Plan Administrator determines to be consistent with the Plan's purpose and
applicable law.
(4) As soon as practicable after receipt of a written
notification of exercise and full payment, the Company shall deliver to the
Participant, in the Participant's name, Share certificates in an appropriate
amount based upon the number of Shares bought under the Option(s).
(e) Restrictions on Share Transferability: The Plan Administrator may
impose such restrictions on any Shares acquired pursuant to the exercise of an
Option granted under this Section as it may deem advisable, including, without
limitation, restrictions under applicable Federal securities laws, under the
requirements of any stock exchange or market upon which such Shares are then
listed and/or traded, and under any blue sky or state securities laws applicable
to such Shares.
(f) Non-transferability: During a Participant's lifetime, only the
Participant may exercise any Option granted to such Participant. Participants
may not sell, pledge, assign, or otherwise alienate their Options. Participants
may transfer Options only by will or by the laws of descent and distribution.
6.4 STOCK APPRECIATION RIGHTS ("SAR'S"):
(a) Award Agreement: Each SAR grant shall be evidenced by an Award
Agreement specifying the grant price, the SAR's duration, and such other terms
as the Plan Administrator shall determine.
(b) Grant Prices and Duration of SAR's: The grant price of a
Freestanding SAR shall equal the Fair Market Value of a Share on the date of the
SAR grant. The grant price of Tandem SAR's shall equal the Option Price of the
related Option. The term of an SAR granted under the Plan shall be determined by
the Plan Administrator - but such term shall not exceed ten years.
(c) Exercise of Tandem SAR's:
(1) Tandem SAR's may be exercised for all or part of the
Shares subject to the related Option upon the surrender of the right to exercise
the equivalent portion of the related Option. A Tandem SAR may be exercised only
with respect to the Shares for which its related Option is then exercisable.
(2) Notwithstanding any other contrary Plan provision, with
respect to a Tandem SAR granted in connection with an ISO:
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(A) the Tandem SAR will expire no later than the
expiration of the underlying ISO;
(B) the payout value with respect to the Tandem SAR
may not exceed 100% of the difference between the Option Price of the underlying
ISO and the Fair Market Value of the Shares subject to the underlying ISO at the
time the Tandem SAR is exercised; and
(C) the Tandem SAR may be exercised only when the
Fair Market Value of the Shares subject to the ISO exceeds the Option Price of
the ISO.
(d) Exercise of Freestanding SAR's: Freestanding SAR's may be exercised
upon whatever terms and conditions the Plan Administrator imposes upon them.
(e) Payment of SAR Amount:
(1) Upon exercise of an SAR, a Participant shall be entitled
to receive payment from the Company in an amount determined by multiplying:
(A) the difference between the Fair Market Value
of a Share on the date of exercise and the grant price; by
(B) the number of Shares with respect to which
the SAR is exercised.
(2) The Plan Administrator may allow for payment upon SAR
exercise to be in cash, in Shares of equivalent value, or in some combination of
cash and Shares.
(f) Rule 16b-3 Requirements: Notwithstanding any other Plan term, the
Plan Administrator may impose such conditions on exercise of an SAR (including
limiting the exercise to specified periods) as may be required to comply with
Section 16 of the Exchange Act.
(g) Non-transferability: Except as otherwise provided in an Award
Agreement:
(1) During a Participant's lifetime, only the Participant may
exercise any SAR granted to such Participant.
(2) Participants may not sell, pledge, assign, or otherwise
alienate their SAR's.
(3) Participants may transfer SAR's only by will or by the
laws of descent and distribution.
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ARTICLE 7 - PERFORMANCE MEASURES
7.1 GENERALLY: The Plan Administrator may establish performance goals for each
Plan Year and Performance Period for each type of Award to be awarded or granted
under this Plan. The goals may be expressed as a percentage of corporate,
division, business unit, and/or individual goals or financial measures, or such
other measures as the Plan Administrator shall, from time to time, determine,
unless otherwise limited by the Plan.
7.2 PERFORMANCE THRESHOLD: The Plan Administrator may establish minimum levels
of performance which must be achieved during a Plan Year or Performance Period
before any Awards shall be paid to Participants. Such minimum levels of
performance may be expressed as a percentage of corporate, division, business
unit, and/or individual goals or financial measures, or such other measures as
the Plan Administrator shall, from time to time, determine, unless otherwise
limited by the Plan.
7.3 MAXIMUM AWARDS: Subject to Section 4, the Plan Administrator may establish
guidelines governing the maximum Awards that Participants may earn (either in
the aggregate or among individual Participants) during each Plan Year or
Performance Period. Such guidelines may be expressed as a percentage of
corporate, division, business unit, and/or individual goals or financial
measures, or such other measures as the Plan Administrator shall, from time to
time, determine, unless otherwise limited by the Plan.
ARTICLE 8 - BENEFICIARY DESIGNATION
8.1 Each Participant under the Plan may, from time to time, name any beneficiary
or beneficiaries (who may be named contingently or successively) to whom any
benefit under the Plan is to be paid if the Participant dies before receiving
any or all of such benefit.
8.2 Each such designation shall revoke all prior designations by the same
Participant, shall be in a form prescribed by the Company, and will be effective
only when filed by the Participant in writing with the Company during the
Participant's lifetime.
8.3 Absent such designation, benefits remaining unpaid at the Participant's
death shall be paid to the Participant's estate.
ARTICLE 9 - DEFERRALS AND SPECIAL AWARDS/GRANTS
The Plan Administrator may permit a Participant to defer receipt of the payment
of cash or the delivery of Shares that would otherwise be due to such
Participant by virtue of the satisfaction of any requirements or goals with
respect to Awards, the exercise of an Option or SAR, or the lapse or waiver of
restrictions with respect to Restricted Stock. If any such deferral election is
required or permitted, the Plan Administrator shall establish rules and
procedures for such payment deferrals. Such rules and procedures shall be
consistent with the appropriate provisions of Code where applicable.
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ARTICLE 10 - CHANGE IN CONTROL
10.1 TREATMENT OF OUTSTANDING AWARDS: Upon the occurrence of a Change in
Control, unless otherwise specifically prohibited under applicable laws, or by
the rules and regulations of any governing governmental agencies or national
securities exchanges:
(a) Any and all Options and SAR's granted shall become immediately
exercisable, and shall remain exercisable throughout their entire term.
(b) Any restriction periods and restrictions imposed on Restricted
Shares shall lapse.
(c) The target payout opportunities attainable under all outstanding
Awards shall be deemed to have been earned through the effective date of the
Change in Control. The vesting of all Awards shall be accelerated as of the
effective date of the Change in Control. provided, however, that no payouts will
be accelerated based on Awards granted less than six months before the effective
date of the Change in Control.
(d) Subject to Article 11, the Plan Administrator may modify the Awards
as determined by the Plan Administrator to be appropriate before the effective
date of the Change in Control.
10.2 ACCELERATION OF AWARD VESTING: Notwithstanding any provision of this Plan
or any Award Agreement provision to the contrary, the Plan Administrator may at
any time accelerate the vesting of any Award granted under the Plan to a
Participant, including without limitation acceleration to such a date that would
result in said Awards becoming immediately vested.
10.3 OPTIONAL GROSS-UP FOR EXCISE TAXES: If, for any reason, any part or all of
the amounts payable to a Participant pursuant to this Plan (or otherwise, if the
Company or any of its Subsidiaries pays amounts after there has been a Change in
Control) are deemed to be "excess parachute payments" within the meaning of Code
Section 280G(b)(1), the Plan Administrator may, in its sole discretion, provide
in the Award Agreement that the Company shall pay to such Participant, in
addition to any other amounts the Participant may be entitled to receive
pursuant to this Plan, an amount which after all Federal, state, and local taxes
(of whatever kind) imposed on the Participant with respect to such amount are
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subtracted therefrom, equals the excise taxes imposed on such excess parachute
payments under Code Section 4999.
10.4 TERMINATION, AMENDMENT, AND MODIFICATIONS OF CHANGE IN CONTROL PROVISIONS:
Notwithstanding any other Plan term or any Award Agreement term, this Article
may not be terminated, amended, or modified on or after the date of a Change in
Control to affect adversely any Award already granted under the Plan without the
prior written consent of the Participant with respect to said Participant's
outstanding Awards - but the Board, upon recommendation of the Plan
Administrator, may terminate, amend, or modify this Article at any time and from
time to time before the date of a Change in Control.
ARTICLE 11 - AMENDMENT, MODIFICATION, AND TERMINATION
11.1 GENERALLY:
(a) The Board may at any time and from time to time, alter, amend,
suspend, or terminate the Plan in whole or in part -- but no amendment needing
shareholder approval in order for the Plan to continue to comply with Rule 16b-3
under the Exchange Act shall be effective unless such amendment shall be
approved by the requisite vote of Company shareholders entitled to vote on it.
(b) The Plan Administrator may not cancel outstanding Awards and issue
substitute Awards without the written consent of the Participant holding such
Award.
11.2 OUTSTANDING AWARDS: No termination, amendment, or modification of the Plan
shall adversely affect in any material way any outstanding Award under the Plan
without the written consent of the Participant holding such Award.
ARTICLE 12 - WITHHOLDING
12.1 TAX WITHHOLDING: The Company may deduct or withhold, or require a
Participant to remit to the Company, an amount sufficient to satisfy Federal,
state, and local taxes, domestic or foreign, required by law or regulation to be
withheld with respect to any taxable event arising as a result of this Plan.
12.2 SHARE WITHHOLDING: With respect to withholding required upon the exercise
of Options or SAR's, upon the lapse of restrictions on Restricted Stock, or upon
any other taxable event arising as a result of Awards granted hereunder,
Participants may elect, subject to the approval of the Plan Administrator, to
satisfy the withholding requirement, in whole or in part, by having the Company
withhold Shares having a Fair Market Value on the date the tax is to be
determined equal to the statutory total tax which could be imposed on the
transaction. All such elections shall be irrevocable, shall be made in writing,
shall be signed by the Participant, and shall be subject to any restrictions or
limitations that the Plan Administrator deems appropriate.
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ARTICLE 13 - INDEMNIFICATION
13.1 GENERALLY: The Company shall indemnify and hold harmless each current and
former Director against and from any loss, cost, liability, or expense that may
be imposed upon or reasonably incurred by such Director in connection with or
resulting from any claim, action, suit, or proceeding to which such
Director may be a party or in which such Director may be involved by reason of
any action taken or failure to act under the Plan and against and from any
and all amounts paid by such Director in settlement thereof, with the
Company's approval, or paid by such Director in satisfaction of any judgment in
any such action, suit, or proceeding against such Director - but only if such
Director gives the Company an opportunity, at its own expense, to handle and
defend the same before such Director undertakes to handle and defend it
personally.
13.2 NON-EXCLUSIVITY: This right of indemnification shall not exclude any other
indemnification rights to which such persons may be entitled under the Company's
Certificate of Incorporation of Bylaws, as a matter of law, or otherwise, or any
power that the Company may have to indemnify them or hold them harmless.
ARTICLE 14 - LEGAL CONSTRUCTION
14.1 SEVERABILITY: If any Plan section is held illegal or invalid for any
reason, the illegality or invalidity shall not affect the remaining parts of the
Plan, and the Plan shall be construed and enforced as if the illegal or invalid
provision had not been included.
14.2 REQUIREMENTS OF LAW: The granting of Awards and the issuance of Shares
under the Plan shall be subject to all applicable laws, rules, and regulations,
and to such approvals by any governmental agencies or national securities
exchanges as may be required.
14.3 SECURITIES LAW COMPLIANCE: With respect to Insiders, transactions under
this Plan are intended to comply with all applicable conditions or Rule 16b-3.
To the extent any Plan provision or action by the Plan Administrator fails to so
comply, it shall be deemed void, to the extent permitted by law and deemed
advisable by the Plan Administrator.
14.4 SUCCESSORS: All Company obligations under the Plan with
respect to Awards granted shall be binding on any successor to the
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Company, whether the existence of such successor is the result of a direct or
indirect purchase, merger, consolidation, or otherwise, of all or substantially
all of the Company's business and/or assets.
14.5 GOVERNING LAW: To the extent not preempted by Federal law, the Plan, and
all agreements made under it, shall be construed in accordance with and governed
by the laws of the State of Delaware.
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