As Filed With the Securities and Exchange Commission
on September 25, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
DOLLAR GENERAL CORPORATION
(Exact name of Registrant as Specified in its Charter)
TENNESSEE(State or Other Jurisdiction of Incorporation or Organization)
61-0502302(I.R.S.Employer Identification No.)
DOLLAR GENERAL CORPORATION
104 Woodmont Blvd., Suite 500
Nashville, Tennessee
(Address of Principal Executive Offices)
37205
(Zip Code)
Dollar General Corporation 1998 Stock Incentive Plan
(Full title of the plan)
Robert C. Layne
Corporate Secretary
104 Woodmont Blvd., Suite 500
Nashville, Tennessee 37205
(Name and address of agent for service)
(615) 783-2000
(Telephone number, including area code, of agent for service)
Copy to:
Howard H. Lamar, Esq.
Bass, Berry & Sims PLC
2700 First American Center
Nashville, Tennessee 37238
CALCULATION OF REGISTRATION FEE
Title of Amount to Proposed Proposed Amount of
securities be registered maximum maximum registration
to be registered offering price offering fee
per share price
(1) (1)
Common Stock, 7,500,000 $26.70 $200,250,000 $59,073.75
par value $.50 shares
per share
(1) The offering price is estimated solely for the purpose of
determining the amount of the registration fee. Such estimate has
been calculated in accordance with Rule 457(h) and is based upon
the average of the high and low prices per share of the
Registrant's Common Stock as reported on The New York Stock
Exchange on September 21, 1998.
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents previously filed by Dollar General
Corporation (the "Registrant") with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act")
are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the
fiscal year ended January 30, 1998 filed April 20,
1998;
(b) The Registrant's Quarterly Report on Form 10-Q for
the fiscal quarter ended April 30, 1998 filed June
16, 1998;
(c) The Registrant's Quarterly Report on Form 10-Q for
the fiscal quarter ended July 31, 1998 filed
September 14, 1998; and
(d) The description of the Registrant's Common Stock
contained in the Registrant's Current Report on Form
8-K filed June 8, 1998 as amended by a filing dated
June 11, 1998.
All documents and reports subsequently filed by the
Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act, prior to the filing of a post-effective amendment to
this Registration Statement which indicates that all shares covered
hereby have been sold or which deregisters all such shares then
remaining unsold shall be deemed to be incorporated by reference in
this Registration Statement and to be a part hereof from the date
of filing of such documents. Any statements contained in a
document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or replaced for purposes
hereof to the extent that a statement contained herein (or in any
other subsequently filed document which also is incorporated or
deemed to be incorporated by reference herein) modifies or
replaces such statement. Any statement so modified or replaced
shall not be deemed, except as so modified or replaced, to
constitute a part hereof.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Tennessee Business Corporation Act ("TBCA") provides that
a corporation may indemnify any of its directors and officers
against liability incurred in connection with a proceeding if (a)
such person acted in good faith; (b) in the case of conduct in an
official capacity with the corporation, he reasonably believed such
conduct was in the corporation's best interests; (c) in all other
cases, he reasonably believed that his conduct was at least not
opposed to the best interests of the corporation; and (d) in
connection with any criminal proceeding, such person had no
reasonable cause to believe his conduct was unlawful. In actions
brought by or in the right of the corporation, however, the TBCA
provides that no indemnification may be made if the director or
officer was adjudged to be liable to the corporation. The TBCA
also provides that in connection with any proceeding charging
improper personal benefit to an officer or director, no
indemnification may be made if such officer or director is adjudged
liable on the basis that such personal benefit was improperly
received. In cases where the director or officer is wholly
successful, on the merits or otherwise, in the defense of any
proceeding instigated because of his or her status as a director or
officer of a corporation, the TBCA mandates that the corporation
indemnify the director or officer against reasonable expenses
incurred in the proceeding. The TBCA provides that a court of
competent jurisdiction, unless the corporation's charter provides
otherwise, upon application, may order that an officer or director
be indemnified for reasonable expenses if, in consideration of all
relevant circumstances, the court determines that such individual
is fairly and reasonably entitled to indemnification,
notwithstanding the fact that (a) such officer or director was
adjudged liable to the corporation in a proceeding by or in the
right of the corporation; (b) such officer or director was adjudged
liable on the basis that personal benefit was improperly received
by him; or (c) such officer or director breached his duty of care
to the corporation.
The Registrant's Charter and Bylaws provide that the
Registrant shall indemnify its directors and officers to the
fullest extent permitted by applicable law. The Registrant's
Bylaws provide further that the Registrant shall advance expenses
to each director and officer of the Registrant to the full extent
allowed by the laws of the state of Tennessee, both as now in
effect and as hereafter adopted. Under the Registrant's Charter
and Bylaws, such indemnification and advancement of expenses
provisions are not exclusive of any other right that a director or
officer may have or acquire both as to action in his or her
official capacity and as to action in another capacity.
The Registrant believes that its Charter and Bylaw provisions
are necessary to attract and retain qualified persons as directors
and officers.
The Registrant has in effect a directors' and officers'
liability insurance policy which provides coverage for its
directors and officers. Under this policy, the insurer agrees to
pay, subject to certain exclusions, for any claim made against a
director or officer of the Registrant for a wrongful act by such
director or officer, but only if and to the extent such director or
officer becomes legally obligated to pay such claim.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable
ITEM 8. EXHIBITS
See Exhibit Index (Page II-6)
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:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, as
amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the
Registration Statement (or the most recent post-
effective amendment hereof) which individually or
in the aggregate, represent a fundamental change
in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any
increase or decrease in the volume of securities
offered (if the total dollar value of securities
would not exceed that which was registered) and
any deviation from the low or high and of the
estimated maximum offering range may be reflected
in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price
represent no more than 20 percent change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective registration statement; and
(iii) To include any material information with respect
to the plan of distribution not previously
disclosed in the Registration Statement or any
material change to such information in the
Registration Statement;
provided, however, that paragraphs (A)(1)(i) and
(A)(1)(ii) do not apply if the information required to
be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by
the Registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act, that are incorporated by reference
in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, 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 Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each
filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act 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 that time shall be deemed to be the initial
bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, and
controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, 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 Securities 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 of whether
such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the
final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
as amended, the Registrant 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 Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Nashville, State of Tennessee, on the 14th day of
September, 1998.
DOLLAR GENERAL CORPORATION
By: /s/ Cal Turner, Jr.
Cal Turner, Jr.,
President, Chief
Executive
Officer and Chairman
KNOW ALL MEN BY THESE PRESENTS, each person whose signature
appears below hereby constitutes and appoints Cal Turner, Jr. and
Phil Richards his or her true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him
or her and in his or her name, place and stead, in any and all
capacities, to sign any and all amendments to this Registration
Statement, and to file the same, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents 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 or she might or could do in
person, hereby ratifying and confirming all that said attorneys-in-
fact and agents, 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 and as of the dates indicated.
Signature Title Date
Cal Turner, Jr. President, Chief September 14,1998
Executive Officer and
Chairman
Phil Richards Chief Financial Officer September 14,1998
and Treasurer (Principal
Financial and Accounting
Officer)
Dennis C. Bottorff Director September 14,1998
James L. Clayton Director September 14,1998
Reginald D. Dickson Director September 14,1998
John B. Holland Director September 14,1998
Barbara M. Knuckles Director September 14,1998
Cal Turner Director September 14,1998
David M. Wilds Director September 14,1998
William S. Wire, II Director September 14,1998
Exhibit Index
Exhibit
No. Exhibit Description
4 Dollar General Corporation 1998 Stock Incentive Plan
5 Opinion of Bass, Berry & Sims PLC
23.1 Consent of Deloitte & Touche, LLP
23.2 Consent of Price Waterhouse Coopers
23.3 Consent of Bass, Berry & Sims PLC (included in
Exhibit 5)
24 Power of Attorney (included at pages II-4 and II-5)
=========
EXHIBIT 4
=========
DOLLAR GENERAL CORPORATION
1998 STOCK INCENTIVE PLAN
SECTION 1. Purpose; Definitions
The purpose of the Dollar General Corporation 1998 Stock
Incentive Plan (the "Plan") is to enable Dollar General Corporation
(the "Corporation") to attract, retain and reward key employees of
and consultants to the Corporation and its Subsidiaries and
Affiliates, and directors who are not also employees of the
Corporation, and to strengthen the mutuality of interests between
such key employees, consultants, and directors by awarding such key
employees, consultants, and directors performance-based stock
incentives and/or other equity interests or equity- based
incentives in the Corporation, as well as performance-based
incentives payable in cash. The provisions of the Plan are intended
to satisfy the requirements of Section 16(b) of the Exchange Act,
and shall be interpreted in a manner consistent with the
requirements thereof, as now or hereafter construed, interpreted,
and applied by regulations, rulings, and cases. The Plan is also
designed so that awards granted hereunder intended to comply with
the requirements for "performance-based" compensation under Section
162(m) of the Code may comply with such requirements. The creation
and implementation of the Plan will not diminish or prejudice other
compensation plans or programs approved from time to time by the
Board.
For purposes of the Plan, the following terms shall be
defined as set forth below:
2. "Affiliate" means any entity other than the Corporation
and its Subsidiaries that is designated by the Board as a
participating employer under the Plan, provided that the
Corporation directly or indirectly owns at least 20% of the
combined voting power of all classes of stock of such entity
or at least 20% of the ownership interests in such entity.
3. "Board" means the Board of Directors of the
Corporation.
4. "Cause" has the meaning provided in Section 5(j) of
the Plan.
5. "Change in Control" has the meaning provided in Section
9(b) of the Plan.
6. "Change in Control Price" has the meaning provided in
Section 9(d) of the Plan.
7. "Common Stock" means the Corporation's Common Stock,
$.50 par value per share.
8. "Code" means the Internal Revenue Code of 1986, as
amended from time to time, and any successor thereto.
9. "Committee" means the Committee referred to in Section
2 of the Plan.
10. "Corporation" means Dollar General Corporation, a
corporation organized under the laws of the State of
Tennessee, or any successor corporation.
11. "Disability" means disability as determined under the
Corporation's Group Long Term Disability Insurance Plan.
12. "Early Retirement" means retirement, for purposes of
this Plan with the express consent of the Corporation at
or before the time of such retirement, from active
employment with the Corporation and any Subsidiary or
Affiliate prior to age 65, in accordance with any
applicable early retirement policy of the Corporation
then in effect or as may be approved by the Committee.
13. "Effective Date" has the meaning provided in Section 13
of the Plan.
14. "Exchange Act" means the Securities Exchange Act of
1934, as amended from time to time, and any successor
thereto.
15. "Fair Market Value" means with respect to the Common
Stock, as of any given date or dates, unless otherwise
determined by the Committee in good faith, the reported
closing price of a share of Common Stock on the NYSE or
such other market or exchange as is the principal
trading market for the Common Stock, or, if no such sale
of a share of Common Stock is reported on Nasdaq or
other exchange or principal trading market on such date,
the fair market value of a share of Common Stock as
determined by the Committee in good faith.
16. "Incentive Stock Option" means any Stock Option intended
to be and designated as an "Incentive Stock Option"
within the meaning of Section 422 of the Code.
17. "Immediate Family" means any child, stepchild,
grandchild, parent, stepparent, grandparent, spouse,
sibling, mother-in-law, father-in-law, son-in-law,
daughter-in-law, brother- in-law, or sister-in-law, and
shall include adoptive relationships.
18. "Non-Employee Director" means a member of the Board who
is a Non- Employee Director within the meaning of Rule
16b-3(b)(3) promulgated under the Exchange Act and an
outside director within the meaning of Treasury
Regulation Sec. 162-27(e)(3) promulgated under the Code.
19. "Non-Qualified Stock Option" means any Stock Option that
is not an Incentive Stock Option.
20. "Normal Retirement" means retirement from active
employment with the Corporation and any Subsidiary or
Affiliate on or after age 65.
21. "NYSE" means the New York Stock Exchange.
22. "Outside Director" means a member of the Board who is
not an officer or employee of the Corporation or any
Subsidiary or Affiliate of the Corporation.
23. "Outside Director Option" means an award to an Outside
Director under Section 8 below.
24. "Performance Goals" means performance goals based on one
or more of the following criteria: (i) pre-tax income or
after- tax income; (ii) operating cash flow; (iii)
operating profit; (iv) return on equity, assets,
capital, or investment; (v) earnings or book value per
share; (vi) sales or revenues; (vii) operating expenses;
(viii) Common Stock price appreciation; and (ix)
implementation, management, or completion of critical
projects or processes. Where applicable, the Performance
Goals may be expressed in terms of attaining a specified
level of the particular criteria or the attainment of a
percentage increase or decrease in the particular
criteria, and may be applied to one or more of the
Corporation or any Subsidiary, or a division or
strategic business unit of the Corporation, or may be
applied to the performance of the Corporation relative
to a market index, a group of other companies, or a
combination thereof, all as determined by the Committee.
The Performance Goals may include a threshold level of
performance below which no payment will be made (or no
vesting will occur), levels of performance at which
specified payments will be (or, specified vesting will
occur), and a maximum level of performance above which
no additional payment will be made (or at which full
vesting will occur). Each of the foregoing Performance
Goals shall be determined, to the extent applicable, in
accordance with generally accepted accounting principles
and shall be subject to certification by the Committee;
provided, that the Committee shall have the authority to
make equitable adjustments to the Performance Goals in
recognition of unusual or non-recurring events affecting
the Corporation or any Subsidiary or the financial
statements of the Corporation or any Subsidiary, in
response to changes in applicable laws or regulations,
or to account for items of gain, loss, or expense
determined to be extraordinary or unusual in nature or
infrequent in occurrence or related to the disposal of a
segment of business or related to a change in accounting
principles.
25. "Plan" means this Dollar General Corporation 1998 Stock
Incentive Plan, as amended from time to time.
26. "Restricted Stock" means an award of shares of Common
Stock that is subject to restrictions under Section 7 of
the Plan.
27. "Restriction Period" has the meaning provided in
Section 7 of the Plan.
28. "Retirement" means Normal or Early Retirement.
29. "Section 162(m) Maximum" has the meaning provided in
Section 3(a) hereof.
30. "Stock Appreciation Right" means the right pursuant to
an award granted under Section 6 below to surrender to
the Corporation all (or a portion) of a Stock Option in
exchange for an amount equal to the difference between
(i) the Fair Market Value, as of the date such Stock
Option (or such portion thereof) is surrendered, of the
shares of Common Stock covered by such Stock Option (or
such portion thereof), subject, where applicable, to the
pricing provisions in Section 6(b)(ii), and (ii) the
aggregate exercise price of such Stock Option (or such
portion thereof).
31. "Stock Option" or "Option" means any option to purchase
shares of Common Stock (including Restricted Stock, if
the Committee so determines) granted pursuant to Section
5 below.
32. "Subsidiary" means any corporation (other than the
Corporation) in an unbroken chain of corporations
beginning with the Corporation if each of the
corporations (other than the last corporation in the
unbroken chain) owns stock possessing 50% or more of the
total combined voting power of all classes of stock in
one of the other corporations in the chain.
SECTION 33. Administration.
Except as provided below, the Plan shall be administered
by a Committee of not less than two Non- Employee Directors, who
shall be appointed by the Board and who shall serve at the
pleasure of the Board. The functions of the Committee specified
in the Plan may be exercised by an existing Committee of the
Board composed exclusively of Non-Employee Directors. The
initial Committee shall be the Corporate Governance and
Compensation Committee of the Board. In the event there are not
at least two Non-Employee Directors on the Board, the Plan shall
be administered by the Board and all references herein to the
Committee shall refer to the Board.
The Committee shall have the power to delegate authority to
the Corporation's Chief Executive Officer, or to a committee
composed of executive officers of the Corporation, to grant, on
behalf of the Committee, Non- Qualified Stock Options exercisable
at Fair Market Value on the date of grant, subject to such
guidelines as the Committee may determine from time to time;
provided, however that (i) options may only be granted pursuant to
such delegated authority for the purposes specified by the
Committee, which may include attracting new employees, awarding
outstanding performance, or retaining employees, (ii) the Committee
shall specify the maximum number of shares that may be granted for
purposes of attracting any single new employee at any specified
level and the maximum number that may be granted to any other
employee for any other purpose, (iii) options to purchase no more
than 100,000 shares may be granted in any fiscal year pursuant to
such delegated authority, and (iv) a report of each grant of an
option pursuant to such delegated authority shall be presented to
the Committee at the first meeting of the Committee following such
grant. Options granted pursuant to such delegated authority in
accordance herewith shall be deemed, to the extent permitted under
applicable law, to have been granted by the Committee for all
purposes under the Plan.
The Committee shall have authority to grant, pursuant to the
terms of the Plan, to officers, other key employees and consultants
eligible under Section 4: (i) Stock Options, (ii) Stock
Appreciation Rights, and/or (iii) Restricted Stock.
In particular, the Committee, or the Board, as the case may be,
shall have the authority, consistent with the terms of the Plan:
34. to select the officers, key employees of and
consultants to the Corporation and its Subsidiaries and
Affiliates to whom Stock Options, Stock Appreciation Rights,
and/or Restricted Stock may from time to time be granted
hereunder;
35. to determine whether and to what extent Incentive
Stock Options, Non- Qualified Stock Options, Stock
Appreciation Rights, and/or Restricted Stock, or any
combination thereof, are to be granted hereunder to one or
more eligible persons;
36. to determine the number of shares to be covered
by each such award granted hereunder;
37. to determine the terms and conditions, not
inconsistent with the terms of the Plan, of any award granted
hereunder (including, but not limited to, the share price and
any restriction or limitation, or any vesting acceleration or
waiver of forfeiture restrictions regarding any Stock Option
or other award and/or the shares of Common Stock relating
thereto, based in each case on such factors as the Committee
shall determine, in its sole discretion); and to amend or
waive any such terms and conditions to the extent permitted
by Section 10 hereof;
38. to determine whether and under what circumstances
a Stock Option may be settled in cash or Restricted Stock
under Section 5(l) or (m), as applicable, instead of Common
Stock;
39. to determine whether, to what extent, and under
what circumstances Option grants and/or other awards under
the Plan are to be made, and operate, on a tandem basis vis-
a-vis other awards under the Plan and/or cash awards made
outside of the Plan;
40. to determine whether, to what extent, and under
what circumstances shares of Common Stock and other amounts
payable with respect to an award under this Plan shall be
deferred either automatically or at the election of the
participant (including providing for and determining the
amount (if any) of any deemed earnings on any deferred amount
during any deferral period);
41. to determine the terms, conditions, and
restrictions of any Performance Goals and the number of
Options, Stock Appreciation Rights, or shares of Restricted
Stock subject thereto;
42. to determine whether to require payment of tax
withholding requirements in shares of Common Stock subject to
the award; and
43. to impose any holding period required to satisfy
Section 16 under the Exchange Act.
The Committee shall have the authority to adopt, alter, and
repeal such rules, guidelines, and practices governing the Plan as
it shall, from time to time, deem advisable; to interpret the terms
and provisions of the Plan and any award issued under the Plan (and
any agreements relating thereto); and to otherwise supervise the
administration of the Plan; and, except as expressly set forth
herein or otherwise required by law, all decisions made by the
Committee pursuant to the provisions of the Plan shall be made in
the Committee's sole discretion and shall be final and binding on
all persons, including the Corporation and Plan participants.
SECTION 44. Shares of Common Stock Subject to Plan.
45. As of the Effective Date, the aggregate number of
shares of Common Stock that may be issued under the Plan
shall be 7,500,000 shares (as adjusted for the September 21,
1998 five-for-four common stock split). The shares of Common
Stock issuable under the Plan may consist, in whole or in
part, of authorized and unissued shares or treasury shares.
No officer of the Corporation or other person whose
compensation may be subject to the limitations on
deductibility under Section 162(m) of the Code shall be
eligible to receive awards pursuant to this Plan relating to
in excess of 500,000 shares of Common Stock in any fiscal
year (the "Section 162(m) Maximum").
46. If any shares of Common Stock that have been
optioned cease to be subject to a Stock Option, or if any
shares of Common Stock that are subject to any Restricted
Stock granted hereunder are forfeited prior to the payment of
any dividends, if applicable, with respect to such shares of
Common Stock, or any such award otherwise terminates without
a payment being made to the participant in the form of Common
Stock, such shares shall again be available for distribution
in connection with future awards under the Plan.
47. In the event of any merger, reorganization,
consolidation, recapitalization, extraordinary cash dividend,
stock dividend, stock split or other change in corporate
structure affecting the Common Stock, an appropriate
substitution or adjustment shall be made in the maximum
number of shares that may be awarded under the Plan, in the
number and option price of shares subject to outstanding
Options granted under the Plan, in the Performance Goals, in
the number of shares underlying Outside Director Options to
be granted under Section 8 hereof, in the Section 162(m)
Maximum, and in the number of shares subject to other
outstanding awards granted under the Plan as may be
determined to be appropriate by the Committee, in its sole
discretion, provided that the number of shares subject to any
award shall always be a whole number. An adjusted option
price shall also be used to determine the amount payable by
the Corporation upon the exercise of any Stock Appreciation
Right associated with any Stock Option.
SECTION 48. Eligibility.
Officers, other key employees and Outside Directors of and
consultants to the Corporation and its Subsidiaries and Affiliates
who are responsible for or contribute to the management, growth
and/or profitability of the business of the Corporation and/or its
Subsidiaries and Affiliates are eligible to be granted awards under
the Plan. Outside Directors are eligible to receive awards pursuant
to Section 8 and not pursuant to any other provisions of the Plan.
SECTION 49. Stock Options.
Stock Options may be granted alone, in addition to, or in
tandem with other awards granted under the Plan and/or cash awards
made outside of the Plan. Any Stock Option granted under the Plan
shall be in such form as the Committee may from time to time
approve.
Stock Options granted under the Plan may be of two types:
(i) Incentive Stock Options and (ii) Non- Qualified Stock Options.
Incentive Stock Options may be granted only to individuals who are
employees of the Corporation or any Subsidiary of the Corporation.
No Incentive Stock Option shall be granted on or following the
tenth anniversary of the earlier of (i) the effectiveness of the
Plan or (ii) the date of shareholder approval of the Plan.
The Committee shall have the authority to grant to any
optionee Incentive Stock Options, Non-Qualified Stock Options, or
both types of Stock Options (in each case with or without Stock
Appreciation Rights).
Options granted to officers, key employees, Outside Directors
and consultants under the Plan shall be subject to the following
terms and conditions and shall contain such additional terms and
conditions, not inconsistent with the terms of the Plan, as the
Committee shall deem desirable.
50. Option Price. The option price per share of
Common Stock purchasable under a Stock Option shall be
determined by the Committee at the time of grant but shall be
not less than 100% (or, in the case of any employee who owns
stock possessing more than 10% of the total combined voting
power of all classes of stock of the Corporation or of any of
its Subsidiaries, not less than 110%) of the Fair Market
Value of the Common Stock at grant, in the case of Incentive
Stock Options, and not less than 50% of the Fair Market Value
of the Common Stock at grant, in the case of Non-Qualified
Stock Options.
51. Option Term. The term of each Stock Option shall
be fixed by the Committee, but no Stock Option (Incentive or
Non-Qualified) shall be exercisable more than ten years (or,
in the case of an employee who owns stock possessing more
than 10% of the total combined voting power of all classes of
stock of the Corporation or any of its Subsidiaries or parent
corporations, no Incentive Stock Option shall be exercisable
more than five years) after the date the Option is granted.
52. Exercisability. Stock Options shall be
exercisable at such time or times and subject to such terms
and conditions as shall be determined by the Committee at or
after grant. The Committee may provide that a Stock Option
shall vest over a period of future service at a rate
specified at the time of grant, or that the Stock Option is
exercisable only in installments. If the Committee provides,
in its sole discretion, that any Stock Option is exercisable
only in installments, the Committee may waive such
installment exercise provisions at any time at or after
grant, in whole or in part, based on such factors as the
Committee shall determine in its sole discretion.
53. Method of Exercise. Subject to whatever
installment exercise restrictions apply under Section 5(c),
Stock Options may be exercised in whole or in part at any
time during the option period, by giving written notice of
exercise to the Corporation specifying the number of shares
to be purchased. Such notice shall be accompanied by payment
in full of the purchase price, either by check, note, or such
other instrument as the Committee may accept. As determined
by the Committee, in its sole discretion, at or (except in
the case of an Incentive Stock Option) after grant, payment
in full or in part may also be made in the form of shares of
Common Stock already owned by the optionee for a minimum of
six months or, in the case of a Non-Qualified Stock Option,
shares of Restricted Stock or shares subject to such Option
or another award hereunder (in each case valued at the Fair
Market Value of the Common Stock on the date the Option is
exercised). If payment of the option exercise price of a
Non-Qualified Stock Option is made in whole or in part in the
form of Restricted Stock, such Restricted Stock (and any
replacement shares relating thereto) shall remain (or be)
restricted in accordance with the original terms of the
Restricted Stock award in question, and any additional Common
Stock received upon the exercise shall be subject to the same
forfeiture restrictions, unless otherwise determined by the
Committee, in its sole discretion, at or after grant. No
shares of Common Stock shall be issued until full payment
therefor has been made. An optionee shall generally have the
rights to dividends or other rights of a shareholder with
respect to shares subject to the Option when the optionee has
given written notice of exercise, has paid in full for such
shares, and, if requested, has given the representation
described in Section 12(a).
54. Transferability of Options. No Non-Qualified
Stock Option shall be transferable by the optionee without
the prior written consent of the Committee other than (i)
transfers by the Optionee to a member of his or her Immediate
Family or a trust for the benefit of the optionee or a member
of his or her Immediate Family, or (ii) transfers by will or
by the laws of descent and distribution. No Incentive Stock
Option shall be transferable by the optionee otherwise than
by will or by the laws of descent and distribution and all
Incentive Stock Options shall be exercisable, during the
optionee's lifetime, only by the optionee.
55. Bonus for Taxes. In the case of a Non-Qualified
Stock Option or an optionee who elects to make a
disqualifying disposition (as defined in Section 422(a)(1) of
the Code) of Common Stock acquired pursuant to the exercise
of an Incentive Stock Option, the Committee in its discretion
may award at the time of grant or thereafter the right to
receive upon exercise of such Stock Option a cash bonus
calculated to pay part or all of the federal and state, if
any, income tax incurred by the optionee upon such exercise.
56. Termination by Death. Subject to Section 5(k),
if an optionee's employment by the Corporation and any
Subsidiary or (except in the case of an Incentive Stock
Option) Affiliate terminates by reason of death, any Stock
Option held by such optionee may thereafter be exercised, to
the extent such option was exercisable at the time of death
or (except in the case of an Incentive Stock Option) on such
accelerated basis as the Committee may determine at or after
grant (or except in the case of an Incentive Stock Option, as
may be determined in accordance with procedures established
by the Committee) by the legal representative of the estate
or by the legatee of the optionee under the will of the
optionee, for a period of one year (or such other period as
the Committee may specify at or after grant) from the date of
such death or un til the expiration of the stated term of such
Stock Option, whichever period is the shorter.
57. Termination by Reason of Disability. Subject to
Section 5(k), if an optionee's employment by the Corporation
and any Subsidiary or (except in the case of an Incentive
Stock Option) Affiliate terminates by reason of Disability,
any Stock Option held by such optionee may thereafter be
exercised by the optionee, to the extent it was exercisable
at the time of termination or (except in the case of an
Incentive Stock Option) on such accelerated basis as the
Committee may determine at or after grant (or, except in the
case of an Incentive Stock Option, as may be determined in
accordance with procedures established by the Committee), for
a period of (i) three years (or such other period as the
Committee may specify at or after grant) from the date of
such termination of employment or until the expiration of the
stated term of such Stock Option, whichever period is the
shorter, in the case of a Non-Qualified Stock Option and (ii)
one year from the date of termination of employment or until
the expiration of the stated term of such Stock Option,
whichever period is shorter, in the case of an Incentive
Stock Option; provided however, that, if the optionee dies
within the period specified in (i) above (or other such
period as the Committee shall specify at or after grant), any
unexercised Non- Qualified Stock Option held by such optionee
shall thereafter be exercisable to the extent to which it was
exercisable at the time of death for a period of twelve
months from the date of such death or until the expiration of
the stated term of such Stock Option, whichever period is
shorter. In the event of termination of employment by reason
of Disability, if an Incentive Stock Option is exercised
after the expiration of the exercise period applicable to
Incentive Stock Options, but before the expiration of any
period that would apply if such Stock Option were a Non-
Qualified Stock Option, such Stock Option will thereafter be
treated as a Non-Qualified Stock Option.
58. Termination by Reason of Retirement. Subject to
Section 5(k), if an optionee's employment by the Corporation
and any Subsidiary or (except in the case of an Incentive
Stock Option) Affiliate terminates by reason of Normal or
Early Retirement, any Stock Option held by such optionee may
thereafter be exercised by the optionee, to the extent it was
exercisable at the time of such Retirement or (except in the
case of an Incentive Stock Option) on such accelerated basis
as the Committee may determine at or after grant (or, except
in the case of an Incentive Stock Option, as may be
determined in accordance with procedures established by the
Committee), for a period of (i) three years (or such other
period as the Committee may specify at or after grant) from
the date of such termination of employment or the expiration
of the stated term of such Stock Option, whichever period is
the shorter, in the case of a Non-Qualified Stock Option and
(ii) three months from the date of such termination of
employment or the expiration of the stated term of such Stock
Option, whichever period is the shorter, in the event of an
Incentive Stock Option; provided however, that, if the
optionee dies within the period specified in (i) above (or
other such period as the Committee shall specify at or after
grant), any unexercised Non-Qualified Stock Option held by
such optionee shall thereafter be exercisable to the extent
to which it was exercisable at the time of death for a period
of twelve months from the date of such death or until the
expiration of the stated term of such Stock Option, whichever
period is shorter. In the event of termination of employment
by reason of Retirement, if an Incentive Stock Option is
exercised after the expiration of the exercise period
applicable to Incentive Stock Options, but before the
expiration of the period that would apply if such Stock
Option were a Non-Qualified Stock Option, the option will
thereafter be treated as a Non-Qualified Stock Option.
59. Other Termination. Subject to Section 5(k),
unless otherwise determined by the Committee (or pursuant to
procedures established by the Committee) at or (except in the
case of an Incentive Stock Option) after grant, if an
optionee's employment by the Corporation and any Subsidiary
or (except in the case of an Incentive Stock Option)
Affiliate is involuntarily terminated for any reason other
than death, Disability or Normal or Early Retirement, the
Stock Option shall thereupon terminate, except that such
Stock Option may be exercised, to the extent otherwise then
exercisable, for the lesser of three months or the balance of
such Stock Option's term if the involuntary termination is
without Cause. For purposes of this Plan, "Cause" means (i)
a felony conviction of a participant or the failure of a
participant to contest prosecution for a felony, or (ii) a
participant's willful misconduct or dishonesty, which is
directly and materially harmful to the business or reputation
of the Corporation or any Subsidiary or Affiliate, in each
case as determined by the Committee, in its sole direction.
Unless otherwise determined by the Committee, if an optionee
voluntarily terminates employment with the Corporation and
any Subsidiary or (except in the case of an Incentive Stock
Option) Affiliate (except for Disability, Normal or Early
Retirement), the Stock Option shall thereupon terminate;
provided, however, that the Committee at grant or (except in
the case of an Incentive Stock Option) thereafter may extend
the exercise period in this situation for the lesser of three
months or the balance of such Stock Option's term.
60. Incentive Stock Options. Anything in the Plan to
the contrary notwithstanding, no term of this Plan relating
to Incentive Stock Options shall be interpreted, amended, or
altered, nor shall any discretion or authority granted under
the Plan be so exercised, so as to disqualify the Plan under
Section 422 of the Code, or, without the consent of the
optionee(s) affected, to disqualify any Incentive Stock
Option under such Section 422. No Incentive Stock Option
shall be granted to any participant under the Plan if such
grant would cause the aggregate Fair Market Value (as of the
date the Incentive Stock Option is granted) of the Common
Stock with respect to which all Incentive Stock Options are
exercisable for the first time by such participant during any
calendar year (under all such plans of the Company and any
Subsidiary) to exceed $100,000. To the extent permitted
under Section 422 of the Code or the applicable regulations
thereunder or any applicable Internal Revenue Service
pronouncement:
1. if (x) a participant's employment is
terminated by reason of death, Disability, or
Retirement and (y) the portion of any Incentive Stock
Option that is otherwise exercisable during the post-
termination period specified under Section 5(g), (h) or
(i), applied without regard to the $100,000 limitation
contained in Section 422(d) of the Code, is greater
than the portion of such Option that is immediately
exercisable as an "Incentive Stock Option" during such
post- termination period under Section 422, such excess
shall be treated as a Non- Qualified Stock Option; and
2. if the exercise of an Incentive Stock
Option is accelerated by reason of a Change in Control,
any portion of such Option that is not exercisable as
an Incentive Stock Option by reason of the $100,000
limitation contained in Section 422(d) of the Code
shall be treated as a Non-Qualified Stock Option.
1. Buyout Provisions. The Committee may at any time
offer to buy out for a payment in cash, Common Stock, or
Restricted Stock an Option previously granted, based on such
terms and conditions as the Committee shall establish and
communicate to the optionee at the time that such offer is
made.
2. Settlement Provisions. If the option agreement
so provides at grant or (except in the case of an Incentive
Stock Option) is amended after grant and prior to exercise to
so provide (with the optionee's consent), the Committee may
require that all or part of the shares to be issued with
respect to the spread value of an exercised Option take the
form of Restricted Stock, which shall be valued on the date
of exercise on the basis of the Fair Market Value (as
determined by the Committee) of such Restricted Stock
determined without regard to the forfeiture restrictions
involved.
3. Performance and Other Conditions. The Committee
may condition the exercise of any Option upon the attainment
of specified Performance Goals or other factors as the
Committee may determine, in its sole discretion. Unless
specifically provided in the option agreement, any such
conditional Option shall vest six months prior to its
expiration if the conditions to exercise have not theretofore
been satisfied.
SECTION 4. Stock Appreciation Rights.
5. Grant and Exercise. Stock Appreciation Rights
may be granted in conjunction with all or part of any Stock
Option granted under the Plan. In the case of a Non-
Qualified Stock Option, such rights may be granted either at
or after the time of the grant of such Stock Option. In the
case of an Incentive Stock Option, such rights may be granted
only at the time of the grant of such Stock Option. A Stock
Appreciation Right or applicable portion thereof granted with
respect to a given Stock Option shall terminate and no longer
be exercisable upon the termination or exercise of the
related Stock Option, subject to such provisions as the
Committee may specify at grant where a Stock Appreciation
Right is granted with respect to less than the full number of
shares covered by a related Stock Option. A Stock
Appreciation Right may be exercised by an optionee, subject
to Section 6(b), in accordance with the procedures
established by the Committee for such purpose. Upon such
exercise, the optionee shall be entitled to receive an amount
determined in the manner prescribed in Section 6(b). Stock
Options relating to exercised Stock Appreciation Rights shall
no longer be exercisable to the extent that the related Stock
Appreciation Rights have been exercised.
6. Terms and Conditions. Stock Appreciation Rights
shall be subject to such terms and conditions, not
inconsistent with the provisions of the Plan, as shall be
determined from time to time by the Committee, including the
following:
3. Stock Appreciation Rights shall be
exercisable only at such time or times and to the
extent that the Stock Options to which they relate
shall be exercisable in accordance with the provisions
of Section 5 and this Section 6 of the Plan.
4. Upon the exercise of a Stock Appreciation
Right, an optionee shall be entitled to receive an
amount in cash and/or shares of Common Stock equal in
value to the excess of the Fair Market Value of one
share of Common Stock over the option price per share
specified in the related Stock Option multiplied by the
number of shares in respect of which the Stock
Appreciation Right shall have been exercised, with the
Committee having the right to determine the form of
payment. When payment is to be made in shares, the
number of shares to be paid shall be calculated on the
basis of the Fair Market Value of the shares on the
date of exercise. When payment is to be made in cash,
such amount shall be calculated on the basis of the
Fair Market Value of the Common Stock on the date of
exercise.
5. Stock Appreciation Rights shall be
transferable only when and to the extent that the
underlying Stock Option would be transferable under
Section 5(e) of the Plan.
6. Upon the exercise of a Stock Appreciation
Right, the Stock Option or part thereof to which such
Stock Appreciation Right is related shall be deemed to
have been exercised for the purpose of the limitation
set forth in Section 3 of the Plan on the number of
shares of Common Stock to be issued under the Plan.
7. The Committee, in its sole discretion, may
also provide that, in the event of a Change in Control
and/or a Potential Change in Control, the amount to be
paid upon the exercise of a Stock Appreciation Right
shall be based on the Change in Control Price, subject
to such terms and conditions as the Committee may
specify at grant.
8. The Committee may condition the exercise of
any Stock Appreciation Right upon the attainment of
specified Performance Goals or other factors as the
Committee may determine, in its sole discretion.
SECTION 1. Restricted Stock.
2. Administration. Shares of Restricted Stock may
be issued either alone, in addition to, or in tandem with
other awards granted under the Plan and/or cash awards made
outside the Plan. The Committee shall determine the eligible
persons to whom, and the time or times at which, grants of
Restricted Stock will be made, the number of shares of
Restricted Stock to be awarded to any person, the price (if
any) to be paid by the recipient of Restricted Stock (subject
to Section 7(b)), the time or times within which such awards
may be subject to forfeiture, and the other terms,
restrictions and conditions of the awards in addition to
those set forth in Section 7(c). The Committee may condition
the grant of Restricted Stock upon the attainment of
specified Performance Goals or such other factors as the
Committee may determine, in its sole discretion. The
provisions of Restricted Stock awards need not be the same
with respect to each recipient.
3. Awards and Certificates. The prospective
recipient of a Restricted Stock award shall not have any
rights with respect to such award, unless and until such
recipient has executed an agreement evidencing the award and
has delivered a fully executed copy thereof to the
Corporation, and has otherwise complied with the applicable
terms and conditions of such award.
9. The purchase price for shares of Restricted
Stock shall be established by the Committee and may be
zero.
10. Awards of Restricted Stock must be accepted
within a period of 60 days (or such shorter period as
the Committee may specify at grant) after the award
date, by executing a Restricted Stock Award Agreement
and paying whatever price (if any) is required under
Section 7(b)(i).
11. Each participant receiving a Restricted
Stock award shall be issued a stock certificate in
respect of such shares of Restricted Stock. Such
certificate shall be registered in the name of such
participant (or a transferee permitted by Section 12(h)
hereof), and shall bear an appropriate legend referring
to the terms, conditions, and restrictions applicable
to such award.
12. The Committee shall require that the stock
certificates evidencing such shares be held in custody
by the Corporation until the restrictions thereon shall
have lapsed, and that, as a condition of any Restricted
Stock award, the participant shall have delivered a
stock power, endorsed in blank, relating to the shares
of Common Stock covered by such award.
13. The maximum number of shares eligible for
issuance pursuant to this Section 7 shall be 100,000.
1. Restrictions and Conditions. The shares of
Restricted Stock awarded pursuant to this Section 7 shall be
subject to the following restrictions and conditions:
14. In accordance with the provisions of this
Plan and the award agreement, during a period set by
the Committee commencing with the date of such award
(the "Restriction Period"), the participant shall not
be permitted to sell, transfer, pledge, assign, or
otherwise encumber shares of Restricted Stock awarded
under the Plan. Within these limits, the Committee, in
its sole discretion, may provide for the lapse of such
restrictions in installments and may accelerate or
waive such restrictions, in whole or in part, based on
service, the attainment of Performance Goals, or such
other factors or criteria as the Committee may
determine in its sole discretion.
15. Except as provided in this paragraph (ii)
and Section 7(c)(i), the participant shall have, with
respect to the shares of Restricted Stock, all of the
rights of a shareholder of the Corporation, including
the right to vote the shares, and the right to receive
any cash dividends. The Committee, in its sole
discretion, as determined at the time of award, may
permit or require the payment of cash dividends to be
deferred and, if the Committee so determines,
reinvested, subject to Section 12(e), in additional
Restricted Stock to the extent shares are available
under Section 3, or otherwise reinvested. Pursuant to
Section 3 above, stock dividends issued with respect to
Restricted Stock shall be treated as additional shares
of Restricted Stock that are subject to the same
restrictions and other terms and conditions that apply
to the shares with respect to which such dividends are
issued. If the Committee so determines, the award
agreement may also impose restrictions on the right to
vote and the right to receive dividends.
16. Subject to the applicable provisions of the
award agreement and this Section 7, upon termination of
a participant's employment with the Corporation and any
Subsidiary or Affiliate for any reason during the
Restriction Period, all shares still subject to
restriction will vest, or be forfeited, in accordance
with the terms and conditions established by the
Committee at or after grant.
17. If and when the Restriction Period expires
without a prior forfeiture of the Restricted Stock
subject to such Restriction Period, certificates for an
appropriate number of unrestricted shares shall be
delivered to the participant (or a transferee
permitted by Section 12(h) hereof) promptly.
1. Minimum Value Provisions. In order to better
ensure that award payments actually reflect the performance
of the Corporation and service of the participant, the
Committee may provide, in its sole discretion, for a tandem
performance-based or other award designed to guarantee a
minimum value, payable in cash or Common Stock to the
recipient of a restricted stock award, subject to such
performance, future service, deferral, and other terms and
conditions as may be specified by the Committee.
SECTION 2. Awards to Outside Directors.
3. The provisions of this Section 8 shall apply only
to awards to Outside Directors in accordance with this
Section 8. The Committee shall have no authority to determine
the timing of or the terms or conditions of any award under
this Section 8. No awards shall be made hereunder until
awards are no longer made pursuant to the 1995 Outside
Directors Stock Option Plan.
4. A Non-Qualified Stock Option will be awarded
hereunder pursuant to the following formula: Each Outside
Director shall receive an annual Non-Qualified Stock Option
for the purchase of shares of Common Stock determined by
dividing (i) the annual retainer for an Outside Director
(determined with reference to the rate of annual retainer in
effect on the date the Non-Qualified Stock Option is granted)
by (ii) the Fair Market Value of a share of Common Stock on
the date of the grant, multiplying the result (the quotient)
by three, rounding the resulting number of shares up to the
nearest whole share. In the event an Outside Director serves
as Chairman of the Board, the multiplier in the preceding
sentence shall be four in lieu of three. The exercise price
of each Non- Qualified Stock Option granted hereunder shall
be the Fair Market Value on the date of grant.
5. Each Outside Director Option shall vest and
become exercisable on the first anniversary of the date of
grant if the grantee is still a member of the Board on such
date, but shall not be exercisable before such date except as
provided in Section 9.
6. No Outside Director Option shall be exercisable
prior to vesting. Each Outside Director Option shall expire,
if unexercised, on the tenth anniversary of the date of
grant. The exercise price may be paid in cash or in shares
of Common Stock, including shares of Common Stock subject to
the Outside Director Option.
7. Outside Director Options shall not be
transferable without the prior written consent of the Board
other than (i) transfers by the optionee to a member of his
or her Immediate Family or a trust for the benefit of
optionee or a member of his or her Immediate Family, or (ii)
transfers by will or by the laws of descent and distribution.
8. Recipients of Outside Director Options shall
enter into a stock option agreement with the Corporation
setting forth the exercise price and other terms as provided
herein.
9. Upon termination of an Outside Director's service
as a director of the Corporation, (i) all Outside Director
Options shall be governed by the provisions of Sections 5(g),
5(i), and 5(j) hereof as if Outside Directors were employees
of the Corporation, except that there shall be no discretion
to accelerate the vesting of any Outside Director Options in
connection with the termination of service of any individual
Outside Director.
10. Outside Director Options shall be subject to
Section 9. The number of shares and the exercise price per
share of each Outside Director Option theretofore awarded
shall be adjusted automatically in the same manner as the
number of shares and the exercise price for Stock Options
under Section 3(c) hereof at any time that Stock Options are
adjusted as provided in Section 3(c). The number of shares
underlying Outside Director Options to be awarded in the
future shall be adjusted automatically in the same manner as
the number of shares underlying outstanding Stock Options are
adjusted under Section 3(c) hereof at any time that Stock
Options are adjusted under Section 3(c) hereof.
11. Any applicable withholding taxes shall be paid in
shares of Common Stock subject to he Outside Director Option
valued as the Fair Market Value of such shares unless the
Corporation agrees to accept payment in cash in the amount of
such withholding taxes.
12. The Board, in its sole discretion, may determine
to reduce the size of any Outside Director Option prior to
grant or to postpone the vesting and exercisability of any
Outside Director Option prior to grant.
SECTION 13. Change in Control Provisions.
14. Impact of Event. In the event of:
1. a "Change in Control" as defined in Section
9(b); or
2. a "Potential Change in Control" as defined
in Section 9(c), but only if and to the extent so
determined by the Committee or the Board at or after
grant (subject to any right of approval expressly
reserved by the Committee or the Board at the time of
such determination);
18. subject to the limitations set forth below
in this Section 9(a), the following acceleration
provisions shall apply:
1. Any Stock Appreciation Right, Stock
Option or Outside Director Option awarded under
the Plan not previously exercisable and vested
shall become fully exercisable and vested.
2. The restrictions applicable to any
Restricted Stock in each case to the extent not
already vested under the Plan, shall lapse and
such shares and awards shall be deemed fully
vested.
19. subject to the limitations set forth below
in this Section 9(a), the value of all outstanding
Stock Options, Stock Appreciation Rights, Restricted
Stock and Outside Director Options in each case to the
extent vested, shall, unless otherwise determined Board
or by the Committee in its sole discretion prior to any
Change in Control, be cashed out on the basis of the
"Change in Control Price" as defined in Section 9(d) as
of the date such Change in Control or such Potential
Change in Control is determined to have occurred or
such other date as the Board or Committee may determine
prior to the Change in Control.
20. The Board or the Committee may impose
additional conditions on the acceleration or valuation
of any award in the award agreement.
1. Definition of Change in Control. For purposes of
Section 9(a), a "Change in Control" means the happening of
any of the following:
21. any person or entity, including a "group"
as defined in Section 13(d)(3) of the Exchange Act,
other than the Corporation or a wholly- owned
subsidiary thereof or any employee benefit plan of the
Corporation or any of its Subsidiaries, becomes the
beneficial owner of the Corporation's securities having
35% or more of the combined voting power of the then
outstanding securities of the Corporation that may be
cast for the election of directors of the Corporation
(other than as a result of an issuance of securities
initiated by the Corporation in the ordinary course of
business); or
22. as the result of, or in connection with,
any cash tender or exchange offer, merger or other
business combination, sales of assets or contested
election, or any combination of the foregoing
transactions, less than a majority of the combined
voting power of the then outstanding securities of the
Corporation or any successor corporation or entity
entitled to vote generally in the election of the
directors of the Corporation or such other corporation
or entity after such transaction are held in the
aggregate by the holders of the Corporation's
securities entitled to vote generally in the election
of directors of the Corporation immediately prior to
such transaction; or
23. during any period of two consecutive years,
individuals who at the beginning of any such period
constitute the Board cease for any reason to constitute
at least a majority thereof, unless the election, or
the nomination for election by the Corporation's
shareholders, of each director of the Corporation first
elected during such period was approved by a vote of at
least two-thirds of the directors of the Corporation
then still in office who were directors of the
Corporation at the beginning of any such period.
1. Definition of Potential Change in Control. For
purposes of Section 9(a), a "Potential Change in Control"
means the happening of any one of the following:
24. The approval by shareholders of an
agreement by the Corporation, the consummation of which
would result in a Change in Control of the Corporation
as defined in Section 9(b); or
25. The acquisition of beneficial ownership,
directly or indirectly, by any entity, person or group
(other than the Corporation or a Subsidiary or any
Corporation employee benefit plan (including any
trustee of such plan acting as such trustee)) of
securities of the Corporation representing 5% or more
of the combined voting power of the Corporation's
outstanding securities and the adoption by the
Committee of a resolution to the effect that a
Potential Change in Control of the Corporation has
occurred for purposes of this Plan.
1. Change in Control Price. For purposes of this
Section 9, "Change in Control Price" means the highest price
per share paid in any transaction reported on the New York
Stock Exchange or such other exchange or market as is the
principal trading market for the Common Stock, or paid or
offered in any bona fide transaction related to a Potential
or actual Change in Control of the Corporation at any time
during the 60 day period immediately preceding the occurrence
of the Change in Control (or, where applicable, the
occurrence of the Potential Change in Control event), in each
case as determined by the Committee except that, in the case
of Incentive Stock Options and Stock Appreciation Rights
relating to Incentive Stock Options, such price shall be
based only on transactions reported for the date on which the
optionee exercises such Stock Appreciation Rights or, where
applicable, the date on which a cash out occurs under Section
9(a)(ii).
SECTION 2. Amendments and Termination.
The Board may at any time amend, alter or discontinue the
Plan without shareholder approval to the fullest extent permitted
by the Exchange Act and the Code; provided, however, that no
amendment, alteration, or discontinuation shall be made which would
impair the rights of an optionee or participant under a Stock
Option, Stock Appreciation Right, Restricted Stock or Outside
Director Option theretofore granted, without the participant's
consent.
The Committee may amend the terms of any Stock Option or
other award theretofore granted, prospectively or retroactively,
but, subject to Section 3 above, no such amendment shall impair the
rights of any holder without the holder's consent. The Committee
may also substitute new Stock Options for previously granted Stock
Options (on a one for one or other basis), including previously
granted Stock Options having higher option exercise prices. Solely
for purposes of computing the Section 162(m) Maximum, if any Stock
Options or other awards previously granted to a participant are
canceled and new Stock Options or other awards having a lower
exercise price or other more favorable terms for the participant
are substituted in their place, both the initial Stock Options or
other awards and the replacement Stock Options or other awards will
be deemed to be outstanding (although the canceled Stock Options or
other awards will not be exercisable or deemed outstanding for any
other purposes).
SECTION 3. Unfunded Status of Plan.
The Plan is intended to constitute an "unfunded" plan for
incentive and deferred compensation. With respect to any payments
not yet made to a participant or optionee by the Corporation,
nothing contained herein shall give any such participant or
optionee any rights that are greater than those of a general
creditor of the Corporation. In its sole discretion, the Committee
may authorize the creation of trusts or other arrangements to meet
the obligations created under the Plan to deliver Common Stock or
payments in lieu of or with respect to awards hereunder; provided,
however, that, unless the Committee otherwise determines with the
consent of the affected participant, the existence of such trusts
or other arrangements is consistent with the "unfunded" status of
the Plan.
SECTION 4. General Provisions.
5. The Committee may require each person purchasing
shares pursuant to a Stock Option or other award under the
Plan to represent to and agree with the Corporation in
writing that the optionee or participant is acquiring the
shares without a view to distribution thereof. The
certificates for such shares may include any legend which the
Committee deems appropriate to reflect any restrictions on
transfer. All certificates for shares of Common Stock or
other securities delivered under the Plan shall be subject to
such stop-transfer orders and other restrictions as the
Committee may deem advisable under the rules, regulations,
and other requirements of the Commission, any stock exchange
upon which the Common Stock is then listed, and any
applicable Federal or state securities law, and the Committee
may cause a legend or legends to be put on any such
certificates to make appropriate reference to such
restrictions.
6. Nothing contained in this Plan shall prevent the
Board from adopting other or additional compensation
arrangements, subject to shareholder approval if such
approval is required; and such arrangements may be either
generally applicable or applicable only in specific cases.
7. The adoption of the Plan shall not confer upon
any employee of the Corporation or any Subsidiary or
Affiliate any right to continued employment with the
Corporation or a Subsidiary or Affiliate, as the case may be,
nor shall it interfere in any way with the right of the
Corporation or a Subsidiary or Affiliate to terminate the
employment of any of its employees at any time.
8. No later than the date as of which an amount
first becomes includible in the gross income of the
participant for Federal income tax purposes with respect to
any award under the Plan, the participant shall pay to the
Corporation, or make arrangements satisfactory to the
Committee regarding the payment of, any Federal, state, or
local taxes of any kind required by law to be withheld with
respect to such amount. The Committee may require
withholding obligations to be settled with Common Stock,
including Common Stock that is part of the award that gives
rise to the withholding requirement. The obligations of the
Corporation under the Plan shall be conditional on such
payment or arrangements and the Corporation and its
Subsidiaries or Affiliates shall, to the extent permitted by
law, have the right to deduct any such taxes from any payment
of any kind otherwise due to the participant.
9. The actual or deemed reinvestment of dividends or
dividend equivalents in additional Restricted Stock (or other
types of Plan awards) at the time of any dividend payment
shall only be permissible if sufficient shares of Common
Stock are available under Section 3 for such reinvestment
(taking into account then outstanding Stock Options and other
Plan awards).
10. The Plan and all awards made and actions taken
thereunder shall be governed by and construed in accordance
with the laws of the State of Tennessee.
11. The members of the Committee and the Board shall
not be liable to any employee or other person with respect to
any determination made hereunder in a manner that is not
inconsistent with their legal obligations as members of the
Board. In addition to such other rights of indemnification
as they may have as directors or as members of the Committee,
the members of the Committee shall be indemnified by the
Corporation against the reasonable expenses, including
attorneys' fees actually and necessarily incurred in
connection with the defense of any action, suit or
proceeding, or in connection with any appeal therein, to
which they or any of them may be a party by reason of any
action taken or failure to act under or in connection with
the Plan or any option granted thereunder, and against all
amounts paid by them in settlement thereof (provided such
settlement is approved by independent legal counsel selected
by the Corporation) or paid by them in satisfaction of a
judgment in any such action, suit or proceeding, except in
relation to matters as to which it shall be adjudged in such
action, suit or proceeding that such Committee member is
liable for negligence or misconduct in the performance of his
duties; provided that within 60 days after institution of any
such action, suit or proceeding, the Committee member shall
in writing offer the Corporation the opportunity, at its own
expense, to handle and defend the same.
12. In addition to any other restrictions on transfer
that may be applicable under the terms of this Plan or the
applicable award agreement, no Stock Option, Stock
Appreciation Right, Restricted Stock Award or other right
issued under this Plan is transferable by the participant
without the prior written consent of the Committee, or, in
the case of an Outside Director, the Board, other than (i)
transfers by an optionee to a member of his or her Immediate
Family or a trust for the benefit of the optionee or a member
of his or her Immediate Family or (ii) transfers by will or
by the laws of descent and distribution. The designation of a
beneficiary will not constitute a transfer.
13. The Committee may, at or after grant, condition
the receipt of any payment in respect of any award or the
transfer of any shares subject to an award on the
satisfaction of a six-month holding period, if such holding
period is required for compliance with Section 16 under the
Exchange Act.
SECTION 14. Effective Date of Plan.
The Plan shall be effective as of the date of approval of the
Plan by a majority of the votes cast by the holders of the
Corporation's Common Stock (the "Effective Date").
634208.2
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EXHIBIT 5
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BASS, BERRY & SIMS PLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
ATTORNEYS AT LAW
2700 FIRST AMERICAN CENTER 1700 RIVERVIEW TOWER
NASHVILLE, TENNESSEE 37238-2700 POST OFFICE BOX 1509
TELEPHONE (615) 742-6200 KNOXVILLE, TENNESSEE 37901-1509
TELECOPIER (615) 742-6293 TELEPHONE (423) 521-6200
TELECOPIER (423) 521-6234
September 14, 1998
Dollar General Corporation
104 Woodmont Blvd.
Suite 500
Nashville, TN 37205
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as your counsel in the preparation of a
registration statement on Form S-8 (the "Registration Statement")
relating to the Dollar General Corporation 1998 Stock Incentive
Plan (the "Plan"), filed by you with the Securities and Exchange
Commission covering 7,500,000 shares (as adjusted for the September
21, 1998 five-for-four common stock split) of the Company's common
stock, par value $0.50 per share (the "Shares"), issuable pursuant
to the Plan. In so acting, we have examined and relied upon such
records, documents and other instruments as in our judgment are
necessary or appropriate in order to express the opinion
hereinafter set forth and have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as
originals and the conformity to the original documents of all
documents submitted to us as certified or photostatic copies.
Based upon the foregoing, we are of the opinion that the
Shares, when issued pursuant to and in accordance with the Plan,
will be duly and validly issued, fully paid and nonassessable.
We hereby consent to the use of this opinion as an exhibit to
the Registration Statement.
Very truly yours,
/s/ Bass, Berry & Sims PLC
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EXHIBIT 2.1
===========
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this
Registration Statement of Dollar General Corporation on Form S-8
of our report dated February 24, 1998, appearing in the Annual
Report on Form 10-K of Dollar General Corporation for the year
ended January 30, 1998.
DELOITTE & TOUCHE LLP
Nashville, Tennessee
September 15, 1998
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EXHIBIT 2.2
============
Consent of Independent Accountants
We consent to the incorporation by reference in the
Registration Statements of Dollar General Corporation on Form S-8
(Nos. 33-23796, 33-31827, 33-51589 and 33-51591) of our report
dated March 5, 1997 on our audits of the consolidated financial
statements of Dollar General and Subsidiaries as of January 31,
1997 and for the years ended January 31, 1997 and 1996, which
report is included in the Annual Report on Form 10-K filed April
20, 1998.
September 18, 1998
Price Waterhouse Coopers
