SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
SUPREME INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 75-1670945
(State or other jurisdiction I.R.S. Employer
of incorporation or organization) Identification No.)
65140 U.S. 33 EAST
P.O. Box 237
GOSHEN, INDIANA 46528
(Address, including zip code, of registrant's
principal executive offices)
SUPREME INDUSTRIES, INC.
1998 STOCK OPTION PLAN
(Full title of the plan)
RICE M. TILLEY, JR.
LAW, SNAKARD & GAMBILL, P.C.
3200 BANK ONE TOWER
500 THROCKMORTON STREET
FORT WORTH, TEXAS 76102
(817) 878-6350
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
WITH A COPY TO:
VERNON E. REW, Jr.
LAW, SNAKARD & GAMBILL, P.C.
3200 BANK ONE TOWER
500 THROCKMORTON STREET
FORT WORTH, TEXAS 76102
(817) 878-6307
<TABLE>
CALCULATION OF REGISTRATION FEE
<C> <S> <C> <C> <C> <C> <C> <C>
Proposed Proposed
maximum maximum
Title of offering aggregate Amount of
securities to Amount to price offering registration
be registered be registered per share price fee
Class A Common
Stock (par value
$.10 per share) 42,445(1) $7.88(2) $ 334,467(3) $ 93
Class A Common 674,178(4) $7.13(5) $4,806,889(6) $1,336
Stock (par value
$.10 per share)
</TABLE>
(1) Issuable upon exercise of presently outstanding options issued under
registrant's 1998 Stock Option Plan, as adjusted for the November 1998 and July
1999 5% stock dividends. This Registration Statement also covers such
indeterminable number of additional shares as may become deliverable due to
future adjustments under terms of such Plan.
(2) Computed in accordance with Rule 457(h) solely for the purpose of calcula-
ting the registration fee. Computation based on the weighted average
exercise price (rounded to nearest cent) at which the options outstanding
whose exercise will result in the issuance of the shares being registered
may be exercised.
(3) Calculated in accordance with Rule 457(h) based on the aggregate exercise
price for all presently outstanding options described in note (1) above.
(4) Issuable upon exercise of options not yet granted under the 1998 Stock
Option Plan, as adjusted for the November 1998 and July 1999 5% stock
dividends. This Registration Statement also covers such indeterminable
number of additional shares as may become deliverable due to future
adjustments under terms of such Plan.
(5) Computed in accordance with Rule 457(h) solely for the purpose of calcula-
ting the registration fee. Computation based on the average of the high and
low prices of the Class A Common Stock as reported on the American Stock
Exchange on October 25, 1999, given that the price, at which options to be
granted in the future may be exercised, is not currently determinable.
(6) Calculated in accordance with Rule 457(h) based on the average of the high
and low prices of the Class A Common Stock as reported on the American Stock
Exchange on October 25, 1999, for options not yet granted under the 1998 Stock
Option Plan.
This Registration Statement shall be deemed to cover securities resulting
from stock splits, stock dividends or similar transactions as provided in Rule
416 of the Act.
Part I
Pursuant to the Note to Part I of Form S-8, the information required by
Items 1 and 2 of Form S-8 is not filed as part of this Registration Statement.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, previously filed (File No. 1-8183) with the
Securities and Exchange Commission (the "Commission") pursuant to the Securities
Exchange Act of 1934 (the "Exchange Act"), are, as of their respective dates,
incorporated in this Registration Statement by reference and made a part hereof:
(1) The Annual Report on Form 10-K of Supreme Industries, Inc. (the "Company"
or "Registrant") for the fiscal year ended December 31, 1998;
(2) The Company's Quarterly Report on Form 10-Q for the fiscal quarter ended
March 31, 1999;
(3) The Company's Quarterly Report on Form 10-Q for the fiscal quarter ended
June 30, 1999;
(4) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange
Act since the end of the fiscal year covered by the Annual Report referred
to in (1) above.
All documents filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all of the securities offered have been sold or which
deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference in and a part of this Registration Statement from the
date of filing of such documents.
Any statement contained in a document incorporated, or deemed to be
incorporated, by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
subsequently filed document that also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Certain legal matters in connection with this offering have been passed
upon for the Company by Law, Snakard & Gambill, a Professional Corporation, Fort
Worth, Texas. Rice M. Tilley, Jr. is a shareholder of Law, Snakard & Gambill,
P.C., and a Director and Assistant Secretary of the Company. Mr. Tilley is the
beneficial owner of 21,904 shares of Company's Class A Common Stock and holds
stock options to purchase 2,756 shares of Company's Class A Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Certificate of Incorporation and Bylaws, and Indemnification
Agreements between the Company and each of its directors and officers, provide
that the Company shall indemnify all directors and officers of the Company to
the full extent permitted by the Delaware General Corporation Law. Under such
provisions any director or officer, who in his capacity as such, is made or
threatened to be made, a party to any suit or proceeding, shall be indemnified
if such director or officer acted in good faith and in a manner he or she
reasonably believed to be in, or not opposed to, the best interests of the
Company. The Certificate of Incorporation, Bylaws, such Indemnification
Agreements, and the Delaware General Corporation Law further provide that such
indemnification is not exclusive of any other rights to which such individuals
may be entitled under the Certificate of Incorporation, Bylaws, such
Indemnification Agreements or any Agreement, vote of stockholders or
disinterested directors, or otherwise.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
Exhibit Number Description
4.1 1998 Stock Option Plan.
5.1 Opinion of Counsel as to legality of securities being
registered.
23.1 Consent of Counsel (contained in Exhibit 5.1).
23.2 Consent of Independent Accountants.
24.1 Power of Attorney.
ITEM 9. UNDERTAKINGS
(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933 (the "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 undersigned Registrant hereby undertakes that, for the purposes of
determining any liability under that Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to 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 Act may
be permitted to directors, officers and controlling persons of the Registrant
pursuant to the provisions described in Item 6 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 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, being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing 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 New York, State of New York, on October 25, 1999.
SUPREME INDUSTRIES, INC.
By: /s/ Herbert M. Gardner
Name: Herbert M. Gardner
Title: Chairman of the Board of
Directors, President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed on October 25, 1999, by the following
persons in the capacities indicated.
Signatures Title Date
/s/ Herbert M. Gardner Chairman of the Board October 25, 1999
Herbert M. Gardner and President
(Principal Executive Officer)
/s/ Omer G. Kropf Executive Vice President October 25, 1999
Omer G. Kropf and Director
/s/ William J. Barrett Secretary, Assistant October 25, 1999
William J. Barrett Treasurer, Director
/s/ Robert W. Wilson Executive Vice President, October 25, 1999
Robert W. Wilson Treasurer, Chief Financial
Officer and Assistant
Secretary (Principal
Financial and Accounting
Officer)
/s/ Robert J. Campbell Director October 25, 1999
Robert J. Campbell
/s/ Thomas Cantwell Director October 25, 1999
Thomas Cantwell
/s/ H. Douglas Schrock Director October 25, 1999
H. Douglas Schrock
/s/ Rick L. Horn Director October 25, 1999
Rick L. Horn
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
4.1 1998 Stock Option Plan.
5.1 Opinion of Counsel as to legality of securities
being registered.
23.1 Consent of Counsel (contained in Exhibit 5.1).
23.2 Consent of Independent Accountants.
24.1 Power of Attorney.
Exhibit 4.1
1998 Stock Option Plan
of
Supreme Industries, Inc.
Table of Contents
Page
Article I: Definitions. . . . ...... . . . . . . . . . . . . . . . .1
Sec. 1:1. Act . . . . . . . . . . . . . . . . . . . . . . .1
Sec. 1:2. Affiliates. . . . . . . . . . . . . . . . . . . .1
Sec. 1:3. Agreement . . . . . . . . . . . . . . . . . . . 1
Sec. 1:4. Board of Directors. . . . . . . . . . . . . . . .1
Sec. 1:5. Code. . . . . . . . . . . . . . . . . . . . . . .1
Sec. 1:6. Committee . . . . . . . . . . . . . . . . . . . .2
Sec. 1:7. Eligible Individuals. . . . . . . . . . . . . . .2
Sec. 1:8. Fair Market Value . . . . . . . . . . . . . . . .2
Sec. 1:9. Holder. . . . . . . . . . . . . . . . . . . . . .2
Sec. 1:10.Incentive Stock Options. . . . .. . . . . . . . .2
Sec. 1:11.Nonstatutory Stock Options . . . . . . . .. . . .2
Sec. 1:12.Options. . . . . . . . . . . . . . . . . .. . . .2
Sec. 1:13.Stock. . . . . . . . . . . . . . . . . . .. . . .2
Article II: Stock and Maximum Number of Shares Subject to the Plan .2
Sec. 2:1. Description of Stock and Maximum Shares
Allocated. . . . . . . . . . . . . . . . . . . . 2
Sec. 2:2. Restoration of Shares . . . . . . . . . . . . . .2
Article III: Administration of the Plan . . . . . . . . . . . . . . 3
Sec. 3:1. Stock Option Committee. . . . . . . . . . . . . .3
Sec. 3:2. Duration, Removal, Etc. . . . . . . . . . . . . .3
Sec. 3:3. Meetings and Actions of Committee . . . . . . . .3
Sec. 3:4. Committee's Powers. . . . . . . . . . . . . . . .3
Article IV: Eligibility and Participation . . . . . . . . . . . .. .3
Sec. 4:1. Eligible Individuals. . . . . . . . . . . . . . .3
Sec. 4:2. No Right to Option. . . . . . . . . . . . . . . .4
Article V: Grant of Options and Certain Terms of the Agreements . . 4
Sec. 5:1. Determination of Eligible Individuals . . . . . .4
Sec. 5:2. Date of Grant . . . . . . . . . . . . . . . . . .4
Sec. 5:3. Stock Option Agreement. . . . . . . . . . . . . .4
Sec. 5:4. Forfeiture of Stock . . . . . . . . . . . . . . .4
Sec. 5:5. Cash Awards . . . . . . . . . . . . . . . . . . .5
Article VI: Terms and Conditions of Options . . . . . . . . . .. . . . . 5
Sec. 6:1. Number of Shares. . . . . . . . . . . . . . . . .5
Sec. 6:2. Exercise Price. . . . . . . . . . . . . . . . . .5
Sec. 6:3. Medium and Time of Payment, Method of Exercise,
And Withholding Taxes. . . . . . . . . . . . . . . . . . .6
Sec. 6:4. Terms, Time of Exercise, and Transferability of
Options. . . . . . . . . . . . . . . . . . . . . . . . . 8
Sec. 6:5. Limitation on Aggregate Value of Shares That May
Become First Exercisable During Any Calendar Year Under an
Incentive Stock Option . . . . . . . . . . . . . . . 10
Sec. 6:6. Adjustments Upon Changes in Capitalization,
Merger, Etc.. . . . . . . . . . . . . . . . . . . . .10
Sec. 6:7. Rights as a Shareholder . . . . . . . . . . . . 11
Sec. 6:8. Modification, Extension, and Renewal of Options 11
Sec. 6:9. Furnish Information . . . . . . . . . . . . . . 12
Sec. 6:10.Obligation to Exercise; Termination of
Employment . . . . . . . . . . . . . . . . . . . 12
Sec. 6:11. Agreement Provisions . . . . . . . . . . . 12
Article VII: Duration of Plan . . . . . . . . . . . . . . . . . . 12
Article VIII: Amendment of Plan . . . . . . . . . . . . . . . . . 12
Article IX: General . . . . . . . . . . . . . . . . . . . . . . . 13
Sec. 9:1. Application of Funds. . . . . . . . . . . . . . 13
Sec. 9:2. Right of Company and Affiliates to Terminate
Employment. . . . . . . . . . . . . . . . . . . . . . . 13
Sec. 9:3. No Liability for Good Faith Determinations. . . 13
Sec. 9:4. Information Confidential. . . . . . . . . . . . 13
Sec. 9:5. Other Benefits. . . . . . . . . . . . . . . . . 13
Sec. 9:6. Execution of Receipts and Releases. . . . . . . 13
Sec. 9:7. No Guarantee of Interests . . . . . . . . . . . 14
Sec. 9:8. Payment of Expenses . . . . . . . . . . . . . . 14
Sec. 9:9. Company Records . . . . . . . . . . . . . . . . 14
Sec. 9:10. Information. . . . . . . . . . . . . . . . . . 14
Sec. 9:11. No Liability of Company. . . . . . . . . . . . 14
Sec. 9:12. Company Action . . . . . . . . . . . . . . . . 14
Sec. 9:13. Severability . . . . . . . . . . . . . . . . . 14
Sec. 9:14. Notices. . . . . . . . . . . . . . . . . . . . 14
Sec. 9:15. Waiver of Notice . . . . . . . . . . . . . . . 14
Sec. 9:16. Successors . . . . . . . . . . . . . . . . . . 14
Sec. 9:17. Headings . . . . . . . . . . . . . . . . . . . 15
Sec. 9:18. Governing Law. . . . . . . . . . . . . . . . . 15
Sec. 9:19. Word Usage . . . . . . . . . . . . . . . . . . 15
Sec. 9:20. Remedies . . . . . . . . . . . . . . . . . . . 15
Article X: Approval of Shareholders . . . . . . . . . . . . . . . .15
<PAGE>
1998 Stock Option Plan
of
Supreme Industries, Inc.
This Supreme Industries, Inc. 1998 Stock Option Plan (the "Plan")
provides for the granting of:
(a) Incentive Stock Options (hereinafter defined) to certain key
employees of Supreme Industries, Inc., a Delaware corporation ("Company"),
and/or its Affiliates (hereinafter defined), and
(b) Nonstatutory Stock Options (hereinafter defined) to certain key
employees of Company, and/or its Affiliates, and to certain individuals who
are not employees of Company or its Affiliates.
The purpose of the Plan is to provide an incentive for key employees of
Company and/or its Affiliates, and for individuals who are not employees of
Company and/or its Affiliates but who from time to time provide substantial
advice or other assistance or services to Company and/or its Affiliates, to
remain in the service of Company and/or its Affiliates or continue to provide
such assistance, to extend to them the opportunity to acquire a proprietary
interest in Company so that they will apply their best efforts for the benefit
of Company, and to aid Company in attracting able persons to enter the service
of Company and/or its Affiliates or provide such assistance.
Article I
Definitions
Sec. 1:1. Act. "Act" shall mean the Securities Exchange Act of 1934, as
amended.
Sec. 1:2. Affiliates. "Affiliates" shall mean: (a) any corporation,
other than Company, in an unbroken chain of corporations ending with Company
if each of the corporations, other than Company, owns stock possessing fifty
percent(50%) or more of the total combined voting power of all classes of
stock in one of the other corporations in such chain; and (b) any corporation,
other than Company, in an unbroken chain of corporations beginning with
Company if each of the corporations, other than the last corporation in the
unbroken chain, owns stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
Sec. 1:3. Agreement. "Agreement" shall mean the written agreement
between Company and a Holder evidencing the Option granted by Company and the
understanding of the parties with respect thereto.
Sec. 1:4. Board of Directors. "Board of Directors" shall mean the board
of directors of Company.
Sec. 1:5. Code. "Code" shall mean the Internal Revenue Code of 1986, as
amended.
Sec. 1:6. Committee. "Committee" shall mean the committee designated in
Article III hereof by the Board of Directors to administer this Plan.
Sec. 1:7. Eligible Individuals. "Eligible Individuals" shall mean: (a)
key employees, including officers and/or directors who are also employees of
Company and/or of any of its Affiliates; and (b) individuals who are not
employees of Company and/or of its Affiliates but who from time to time
provide substantial advice or other assistance or services to Company and/or
its Affiliates.
Sec. 1:8. Fair Market Value. "Fair Market Value" shall mean, if the
Stock is traded on one or more established markets or exchanges, the mean of
the opening and closing prices of the Stock on the primary market or exchange
on which the Stock is traded, and if the Stock is not so traded or the Stock
does not trade on the relevant date, the value determined in good faith by the
Board of Directors. For purposes of valuing Incentive Stock Options, the Fair
Market Value of stock shall be determined without regard to any restriction
other thanone which, by its terms, will never lapse.
Sec. 1:9. Holder. "Holder" shall mean an Eligible Individual to whom an
Option has been granted.
Sec. 1:10. Incentive Stock Options. "Incentive Stock Options" shall
mean stock options that are intended to satisfy the requirements of Sec. 422
of the Code.
Sec. 1:11. Nonstatutory Stock Options. "Nonstatutory Stock Options"
shall mean stock options that are not intended to be, or are not denominated
as, Incentive Stock Options.
Sec. 1:12. Options. "Options" shall mean either Incentive Stock
Options or Nonstatutory Stock Options, or both.
Sec. 1:13. Stock. "Stock" shall mean Company's authorized $.10 par
value Class A Common Stock.
Article II
Stock and Maximum Number of Shares Subject to the Plan
Sec. 2:1. Description of Stock and Maximum Shares Allocated. The Stock
which Options granted hereunder give a Holder the right to purchase may be
unissued or reacquired shares of Stock, as the Board of Directors may, in its
sole and absolute discretion, from time to time determine. Subject to the
adjustments in Sec. 6.6 hereof, the aggregate number of shares of Stock to be
issued pursuant to the exercise of all Options granted hereunder may equal,
but may not exceed, 650,000 shares of Company's Stock.
Sec. 2:2. Restoration of Shares. If an Option hereunder expires,
terminates, or is not exercised for any reason during the term of this Plan,
the shares of Stock which were subject to such Option shall be "restored" to
the Plan by again being available for Options granted after the shares'
restoration, effective as of the first day of the year following such
expiration, termination, or non-exercise.
Article III
Administration of the Plan
Sec. 3:1. Stock Option Committee. This Plan will be administered by a
Committee consisting of six members to be appointed by Company's Board of
Directors. The members of the Stock Option Committee must be members of the
Company's Board of Directors.
Sec. 3:2. Duration, Removal, Etc. The members of the Committee shall
serve at the pleasure of the Board of Directors, which shall have the power,
at any time and from time to time, to remove members from the Committee or to
add members thereto. Vacancies on the Committee, however caused, shall be
filled by the Board of Directors.
Sec. 3:3. Meetings and Actions of Committee. The Committee shall elect
one of its members as its Chairman and shall hold its meetings at such times
and places as it may determine. All decisions and determinations of the
Committee shall be made by the majority vote of all of its members present at
a meeting; provided, however, that any decision or determination reduced to
writing and signed by all of the members of the Committee shall be as fully
effective as if it had been made at a meeting duly called and held. The
Committee may make any rules and regulations for the conduct of its business
that are not inconsistent with the provisions hereof and with the Bylaws of
Company.
Sec. 3:4. Committee's Powers. Subject to the express provisions hereof,
the Committee shall have the authority, in its sole and absolute discretion
to:
(a) adopt, amend, and rescind administrative and interpretive rules and
regulations relating to the Plan; (b) determine the terms and provisions of
the respective Agreements (which need not be identical), including provisions
defining or otherwise relating to: (i) subject to Article VI of the Plan, the
term and the period or periods and extent of exercisability of the Options,
(ii) the extent to which the transferability of shares of Stock issued upon
exercise of Options is restricted, (iii) the effect of termination of
employment upon the exercisability of the Options, and (iv) the effect of
approved leaves of absence (consistent with any applicable regulations of the
Internal Revenue Service); (c)accelerate the time of exercisability of any
Option that has been granted; (d) construe the respective Option Agreements
and the Plan; and (e) make all other determinations and perform all other acts
necessary or advisable for administering the Plan, including the delegation of
such ministerial acts and responsibilities as the Committee deems appropriate.
The Committee may correct any defect or supply any omission or reconcile any
inconsistency in the Plan or in any Agreement in the manner and to the extent
it shall deem expedient to carry it into effect, and it shall be the sole and
final judge of such expediency. The determination of the Committee on the
matters referred to in this Sec. 3.4 shall be final and conclusive.
Article IV
Eligibility and Participation
Sec. 4:1. Eligible Individuals. Options may be granted hereunder only
to persons who are Eligible Individuals at the time of the grant thereof.
Notwithstanding any provision contained herein to the contrary, a person may
not receive an Incentive Stock Option hereunder unless he or she is an
employee of Company and/or an Affiliate, nor shall a person be eligible to
receive an Incentive Stock Option hereunder if he or she, at the time such
Option is granted, would own (within the meaning of Secs. 422 and 424 of the
Code) stock possessing more than ten percent (10%) of the total combined
voting power or value of all classes of stock of Company or an Affiliate,
unless at the time such Incentive Stock Option is granted the exercise price
per share is at least one hundred ten percent (110%) of the Fair Market Value
of each share of stock to which the Incentive Stock Option relates and the
Incentive Stock Option is not exercisable after the expiration of five (5)
years from the date it is granted.
Sec. 4:2. No Right to Option. The adoption of the Plan shall not be
deemed to give any person a right to be granted an Option.
Article V
Grant of Options and Certain Terms of the Agreements
Sec. 5:1. Determination of Eligible Individuals. Subject to the express
provisions hereof, the Committee shall determine which Eligible Individuals
shall be granted Options hereunder from time to time. In making grants, the
Committee shall take into consideration the contribution the potential Holder
has made or may make to the success of Company and/or its Affiliates along
with such other considerations as the Board of Directors may from time to time
specify. The Committee shall also determine the number of shares subject to
each of such Options and shall authorize and cause Company to grant Options in
accordance with such determinations.
Sec. 5:2. Date of Grant. The date on which the Committee completes all
action constituting an offer of an Option to an individual, including the
specification of the number of shares of Stock to be subject to the Option,
shall be the date on which the Option covered by an Agreement is granted, even
though certain terms of the Agreement may not be determined at such time and
even though the Agreement may not be executed until a later time. For
purposes of the preceding sentence, an offer shall be deemed made if the
Committee has completed all such action and has communicated the grant thereof
to the potential Holder. In no event, however, may an Optionee gain any
rights in addition to those specified by the Committee in its grant,
regardless of the time that may pass between the grant of the Option and the
actual execution of the Agreement by Company and the Optionee.
Sec. 5:3. Stock Option Agreement. Each Option granted hereunder shall
be evidenced by an Agreement, executed by Company and the Eligible Individual
to whom the Option is granted, incorporating such terms as the Committee deems
necessary or desirable. More than one Option may be granted hereunder to the
same Eligible Individual and be outstanding concurrently hereunder. In the
event an Eligible Individual is granted both one or more Incentive Stock
Options and one or more Nonstatutory Stock Options, such grants shall be
evidenced by separate Agreements, one for each of the Incentive Stock Option
grants and one for each of the Nonstatutory Stock Option grants.
Sec. 5:4. Forfeiture of Stock. Each Agreement may provide for conditions
giving rise to the forfeiture of the Stock acquired pursuant to an Option
granted hereunder and/or such restrictions on the transferability of shares of
Stock acquired pursuant to an Option granted hereunder as the Committee in its
sole and absolute discretion deems proper or advisable. Such conditions
giving rise to forfeiture may include, but need not be limited to, the
requirement that the Holder render substantial services to Company and/or its
Affiliates for a specified period of time. Such restrictions on
transferability may include, but need not be limited to, options and rights of
first refusal in favor of Company.
Sec. 5:5. Cash Awards. In addition, the Board of Directors may authorize
the Committee to grant cash awards payable in connection with the exercise of
an Option upon such terms and conditions as are specified by the Board of
Directors; provided that no such cash award shall be effective unless it
complies with any applicable requirements for exemption from liability
pursuant to Rule 16b-3 promulgated under the Act.
Article VI
Terms and Conditions of Options
All Options granted hereunder shall comply with, be deemed to include,
and shall be subject to, the following terms and conditions:
Sec. 6:1. Number of Shares. Each Agreement shall state the number of
shares of Stock to which it relates. Except to the extent an Agreement
otherwise provides, the following limitations shall apply to the exercise of
each Option:
A. First Year. A Holder may not exercise his or her Option during
the first twelve (12) month period following the date of grant of such Option.
B. After First Year. A Holder may exercise up to (but not more
than) one-third of the total shares of Stock subject to his or her Option at
any time after the first twelve (12) month period following the day of grant
of such Option.
C. After Second Year. A Holder may exercise up to (but not more
than) two-thirds of the total shares of Stock subject to his or her Option at
any time after the first twenty-four (24) month period following the date of
grant of such Option.
D. After Third Year. A Holder may exercise all of the shares of
Stock subject to his or her Option at any time after the first thirty-six (36)
month period following the date of grant of such Option.
E. Senior Status. Notwithstanding the limitations stated above,
if a Holder is sixty-five (65) years of age or older at the time his or her
Option is granted, such Holder may exercise up to (but not more than) one-half
of the total shares of Stock subject to such Option at any time during the
first twelve (12) month period following the date of grant of such Option and
thereafter may exercise all of the shares of Stock subject to such Option.
F. De Minimus Limitation. Subject to the limitations stated
above, each Option may be exercised at one time or on several successive
occasions; however, each Option may not be exercised in an amount less than
one hundred (100) shares at any one time (unless such exercise is being made
as to the entire portion of Stock which may be purchased pursuant to this
Plan).
Sec. 6:2. Exercise Price. Each Agreement shall state the exercise price
per share of Stock. The exercise price per share of stock subject to an
Incentive Stock Option shall not be less than the greater of: (a) the par
value per share of the Stock; or (b) one hundred percent (100%) of the Fair
Market Value per share of Company's Stock on the date of the grant of the
Option. The exercise price per share of stock subject to a Nonstatutory Stock
Option shall not be less than fifty percent (50%) of the Fair Market Value per
share of the Stock on the date of the grant of the Option.
Sec. 6:3. Medium and Time of Payment, Method of Exercise, and Withholding
Taxes.
A. Exercise of Option. Except as otherwise permitted below, the
exercise price of stock covered by an Option shall be payable upon the
exercise of the Option in cash, by certified or cashier's check. Exercise of
an Option shall not be effective until Company has received written notice of
exercise. Such notice must specify the number of whole shares to be purchased
and be accompanied by payment in full of the aggregate exercise price of the
number of shares purchased. Company shall not in any case be required to
sell, issue, or deliver a fractional share with respect to any Option.
1. Stock-for-Stock Exercise. With the consent of the
Committee, the Holder may pay the exercise price with shares of Stock of
Company which have been held by the Holder for at least six (6) months prior
to the date of exercise, or with the consent of the Committee, by a
combination of cash and such shares. Such Stock shall be duly endorsed for
transfer to Company. Such Stock shall be deemed to have a fair market value
on the date of delivery equal to the aggregate purchase price of the shares
with respect to which such Option or portion thereof is being exercised.
2. Cashless Exercise/Sale Method. With the consent of the
Committee, payment in full of the exercise price of the Option may be made
through the Company's receipt of a copy of instructions to a broker directing
such broker to sell the Stock for which the Option is being exercised, to
remit to the Company an amount equal to the aggregate exercise price of such
Option, with the balance being remitted to Holder.
3. Cashless Exercise/Net Method. With the consent of the
Committee, payment in full of the exercise price of the Option may be made,
based on written instructions received from the Holder, by Company's issuance
to the Holder of that number of shares of Stock having a fair market value
equal to only the "profit portion" of his, her, or its Option (i.e., the
excess of the then fair market value of the Stock over the Holder's exercise
price).
B. New Options. In the event that a Holder pays the exercise
price of his Option, in whole or in part, with previously owned shares of
Stock, pursuant to the rules specified above, then, if and to the extent
approved by the Committee, in addition to the shares of Stock purchased
pursuant to the Option exercise, such Holder shall also receive a new Option,
subject to the terms and conditions set forth below and in the Holder's
individual Stock Option Agreement. Upon exercise of the Option with payment in
the form of either shares of Stock or a combination of cash and shares of
Stock, the Committee may, in its sole and absolute discretion, grant the
Holder a new Option for shares of Stock equal to the number of shares that
were delivered by the Holder to Company to pay, in whole or in part, the
exercise price of the previous Option. The exercise price of the new Option
shall be equal to at least 100% of the Fair Market Value per share of the
Stock on the date of the exercise of the previous Option. Provided, however,
the new Option cannot be exercised by the Holder until the later of:
(1) the exercisability dates specified in the individual Option Agreement; or
(2)six (6) months after the date of grant. As a further condition on the
exercisability of the new Option, the shares of Stock received by the Holder
upon exercise of his or her previous Option must be held by the Holder for at
least six (6) months prior to any sale of such shares by the Holder. Any sale
of such shares by a Holder prior to the expiration of the six (6) month
holding period shall render the new Option non-exercisable. Nothing in this
paragraph shall prevent the Committee from granting a Holder another new
Option in the future when the previous new Option is exercised by the Holder
with the payment of previously owned shares of Stock.
C. Withholding.
1. General. The Committee may, in its discretion, require
a Holder to pay to Company at the time of exercise of an Option (or portion
thereof) the amount that Company deems necessary to satisfy its obligation to
withhold Federal, state, or local income or other taxes incurred by reason of
the exercise. Upon the exercise of an Option requiring tax withholding, a
Holder may make a written request to have shares of stock withheld by Company
from the shares otherwise to be received. The number of shares so withheld
shall have an aggregate Fair Market Value on the date of exercise sufficient
to satisfy the applicable withholding taxes. The acceptance of any such
request by a Holder shall be at the sole discretion of the Committee,
including, if deemed necessary by the Committee, approval by the Securities
and Exchange Commission and the satisfaction of any additional requirements
necessary to obtain such approval.
2. Additional Sec. 16b Requirements. Currently, with
respect to Option holders subject to liability under Section 16b of the Act,
such additional requirements include the following: (1) any previously owned
shares of Stock used to satisfy the withholding obligation must have been held
by the taxpayer for at least six (6) months, and any Option shares otherwise
issuable hereunder to be withheld to satisfy such obligations may be so
withheld only if both the exercise of the Option and the election to have
shares withheld are made at least six (6) months after the date of grant; (2)
the Option holder's election must be made: (a) at least six (6) months less
one day prior to the date on which the option exercise becomes taxable, or (b)
within a 10-day "window period" beginning on the third business day following
the release of Company's annual or quarterly financial reports and ending on
the twelfth day thereafter (but in no event later than the date the option
exercise becomes taxable); (3) Company has been subject to the Act's reporting
requirements for more than a year and has filed all reports and statements
required to be filed pursuant to Section 13 of the Act; (4) Company regularly
issues quarterly or annual summary statements of sales and earnings; (5) all
members of the Committee administering the Plan with respect to Option holders
subject to liability under Section 16b of the Act are "disinterested" in
accordance with Rule 16b-3 promulgated under the Act; (6) the Committee will
be empowered to consent to or disapprove an Option holder's withholding
election; and (7) any withholding election will be required to be
irrevocable.
Sec. 6:4. Terms, Time of Exercise, and Transferability of Options.
A. Decrease in Term of Option. In addition to such other terms
and conditions as may be included in a particular Agreement granting an
Option, an Option shall be exercisable during a Holder's lifetime only by him
or her or by his or her guardian or legal representative. An Option shall not
be transferrable other than by will or the laws of descent and distribution.
Each Option shall also be subject to the following terms and conditions
(except to the extent a Holder's Agreement otherwise provides):
1. Termination of Employment or Directorship.
a. Voluntary Termination. If a Holder ceases to be
employed by at least one of the employers in the group of employers consisting
of Company and its Affiliates because the Holder voluntarily terminates his or
her employment with such group of employers and the Holder does not remain or
thereupon become a director of Company or one or more of its Affiliates, or if
a Holder ceases to be a director of at least one of the corporations in the
group of corporations consisting of Company and its Affiliates and the Holder
does not remain or thereupon become an employee of Company or one or more of
its Affiliates, the portion (if any) of an Option that remains unexercised,
including that portion (if any) that pursuant to the Agreement is not yet
exercisable, as of the date of the Holder's termination of employment or
ceasing to be a director, whichever occurs later, shall terminate and cease to
be exercisable as of such date (or ninety [90] days prior thereto if the
Holder elected to exercise his or her Option in anticipation of such
termination [to be determined in the sole discretion of the Committee]).
b. Termination for Cause. If a Holder ceases to be
employed by at least one of the employers in the group of employers consisting
of Company and its Affiliate because any of such entities terminates the
Holder's employment for cause, the portion (if any) of an Option that remains
unexercised, including that portion (if any) that pursuant to the Agreement is
not yet exercisable, at the time of the Holder's termination of employment,
shall terminate and cease to be exercisable immediately upon such termination
(or ninety [90] days prior thereto if the Holder elected to exercise his or
her Option in anticipation of such termination [to be determined in the sole
discretion of the Committee]). A Holder's employment shall be deemed
terminated "for cause" if terminated by the Board of Directors of Company (or
the board of directors of an Affiliate) because of incompetence,
insubordination, dishonesty, other acts detrimental to the interest of Company
and/or its Affiliates, or any material breach by the Holder of any employment,
nondisclosure, noncompetition, or other contract with Company and/or one of
its Affiliates. Whether "cause" exists shall be determined by such Board of
Directors in its sole discretion and in good faith. The exercise of an option
in anticipation of a termination for cause shall be null and void.
c. Termination Without Cause. If a Holder ceases to
be employed by at least one of the employers in the group of employers
consisting of Company and its Affiliates because one or more of such entities
terminates the employment of the Holder for otherwise than for "cause," and
the Holder does not remain or thereupon become a director of Company and/or
one or more of its Affiliates, the Holder shall have the right for thirty (30)
days following such termination to exercise the Option with respect to that
portion thereof that has become exercisable pursuant to Holder's Agreement as
of the date of such termination, and thereafter the Option shall terminate and
cease to be exercisable.
2. Disability. If a Holder ceases to be employed by at
least one of the employers in the group of employers consisting of Company and
its Affiliates by reason of disability (as defined in Sec. 22(e)(3) of the
Code)and does not remain or thereupon become a director of Company or one or
more of its Affiliates, or if the Holder ceases by reason of such disability
to be a director of at least one of the corporations in the group of
corporations consisting of Company and its Affiliates, the Holder shall have
the right for ninety (90) days after the date of termination of employment
with, or cessation of directorship of, such group of employers by reason of
disability, whichever occurs later, to exercise an Option to the extent such
Option is exercisable on the date of his or her termination of employment, and
thereafter the Option shall terminate and cease to be exercisable.
3. Death. If a Holder dies while in the employ of Company
or an Affiliate, or dies while a director of Company or an Affiliate, his or
her Option shall be exercisable by his or her legal representatives, legatees,
or distributees for six (6) months following the date of the Holder's death to
the extent such Option is exercisable on the Holder's date of death, and
thereafter the Option shall terminate and cease to be exercisable.
B. Term of Option. Notwithstanding any other provision of this
Plan, including the provisions of Subsection A above, no Incentive Stock
Option may be exercised after the expiration of ten (10) years from the date
it was granted (or the period specified in Sec. 4.1, if applicable). The
Committee may prescribe in any Agreement that the Option evidenced thereby may
be exercised in full or in part as to any number of shares subject thereto at
any time or from time to time during the term of the Option, or in such
installments at such times during said term as the Committee may prescribe.
Except as provided above and unless otherwise provided in any Agreement, an
Option may be exercised at any time or from time to time during the term of
the Option. Such exercise may be as to any or all whole (but no fractional)
shares which have become purchasable under the Option.
C. Issuance of Stock Certificates. Within a reasonable time, or
such time as may be permitted by law, after Company receives written notice
that the Holder has elected to exercise all or a portion of an Option, such
notice to be accompanied by payment in full of the aggregate exercise price of
the number of shares purchased, Company shall issue and deliver a certificate
representing the shares acquired as a result of the exercise and any other
amounts payable in consequence of such exercise. In the event that a Holder
exercises both an Incentive Stock Option, or portion thereof, and a
Nonstatutory Stock Option, or a portion thereof, separate Stock certificates
shall be issued, one for the Stock subject to the Incentive Stock Option and
one for the Stock subject to the Nonstatutory Stock Option. The number of
shares of Stock transferrable due to an exercise of an Option under this Plan
shall not be increased due to the passage of time, except as may be provided
in an Agreement.
D. Issuance in Compliance With Securities Laws. Nothing herein
or in any Option granted hereunder shall require Company to issue any shares
upon exercise of any Option if such issuance would, in the opinion of counsel
for Company, constitute a violation of the Securities Act of 1933, as amended,
or any similar or superseding statute or statutes, or any other applicable
statute or regulation, as then in effect.
E. Investment Legend. At the time of exercise of an Option,
Company may, as a condition precedent to the exercise of such Option, require
from the Holder of the Option (or in the event of his or her death, his or her
legal representatives, legatees, or distributees) such written
representations, if any, concerning his or her intentions with regard to the
retention or disposition of the shares being acquired by exercise of such
Option and such written covenants and agreements, if any, as to the manner of
disposal of such shares as, in the opinion of counsel to Company, may be
necessary to ensure that any disposition by such Holder (or in the event of
his or her death, his or her legal representatives, legatees, or
distributees), will not involve a violation of the Securities Act of 1933, as
amended, or any similar or superseding statute or statutes, or any other
applicable state or federal statute or regulation, as then in effect.
Certificates for shares of Stock, when issued, may have the following legend,
or statements of other applicable restrictions, endorsed
thereon, and may not be immediately transferable:
The shares of Stock evidenced by this certificate have
been issued to the registered owner in reliance upon written
representations that these shares have been purchased for investment. These
shares may not be sold, transferred, or assigned unless, in the opinion of
Company and its legal counsel, such sale, transfer, or assignment will not be
in violation of the Securities Act of 1933, as amended, applicable rules and
regulations of the Securities and Exchange Commission, and any applicable
state securities laws.
Sec. 6:5. Limitation on Aggregate Value of Shares That May Become First
Exercisable During Any Calendar Year Under an Incentive Stock Option. With
respect to any Incentive Stock Option granted under this Plan, to the extent
that the aggregate Fair Market Value of shares of Stock exceed $100,000, then
such excess over $100,000 shall not be considered as subject to an Incentive
Stock Option, but rather shall be considered as subject to a Nonstatutory
Stock Option. This rule shall be applied by taking shares of Stock subject to
Incentive Stock Options that are purchasable for the first time in the
calendar year into account in the order in which such Incentive Stock Options
were granted.
Sec. 6:6. Adjustments Upon Changes in Capitalization, Merger, Etc.
A. Method of Adjustment. In the event of any change in the number
of outstanding shares of Stock effected without receipt of consideration
therefor by Company (other than as a result of the conversion of Company's
Class B Common Stock into Class A Common Stock) by reason of a stock dividend,
or split, combination, exchange of shares or other recapitalization, merger,
or otherwise, in which Company is the surviving corporation, the aggregate
number and class of the reserved shares, the number and class of shares
subject to each outstanding Option, and the exercise price of each outstanding
Option shall be automatically adjusted to accurately and equitably reflect the
effect thereon of such change (provided that any fractional share resulting
from such adjustment may be eliminated). In the event of a dispute concerning
such adjustment, the decision of the Committee shall be conclusive. The
number of reserved shares or the number of shares subject to any outstanding
Option shall be automatically reduced by any fraction included therein which
results from any adjustment made pursuant hereto.
B. Termination of Option. The following provisions shall apply
unless a Holder's Agreement provides otherwise. A dissolution or liquidation
of Company; a sale of all or substantially all of the assets of Company where
it is contemplated that within a reasonable period of time thereafter Company
will either be liquidated or converted into a nonoperating company or an
extraordinary dividend will be declared resulting in a partial liquidation of
Company (but in all cases only with respect to those employees whom it is
anticipated will lose their employment with Company and its Affiliates as a
result of such sale of assets); a merger or consolidation (other than a merger
effecting a reincorporation of Company in another state or any other merger or
a consolidation in which the shareholders of the surviving corporation and
their proportionate interests therein immediately after the merger or
consolidation are substantially identical to the shareholders of Company and
their proportionate interests therein immediately prior to the merger or
consolidation) in which Company is not the surviving corporation (or survives
only as a subsidiary of another corporation in a transaction in which the
shareholders of the parent of Company and their proportionate interests
therein immediately after the transaction are not substantially identical to
the shareholders of Company and their proportionate interests therein
immediately prior to the transaction) shall cause every Option then
outstanding to terminate, but the Holders of each such then outstanding
Option shall, in any event, have the right, immediately prior to such
dissolution, liquidation, sale of assets, merger, consolidation, or
transaction, to exercise each such Option, to the extent not theretofore
exercised, without regard to the determination as to the periods and
installments of exercisability made pursuant to a Holder's Agreement if (and
only if) such Options have not at that time expired or been terminated.
Sec. 6:7. Rights as a Shareholder. A Holder shall have no right as a
shareholder with respect to any shares covered by his or her Option until a
certificate representing such shares is issued to him or her. No adjustment
shall be made for dividends (ordinary or extraordinary, whether in cash or
other property) or distributions or other rights for which the record date is
prior to the date such certificate is issued (except as provided in Sec. 6.6.
hereof).
Sec. 6:8. Modification, Extension, and Renewal of Options. Subject to
the terms and conditions of and within the limitations of the Plan, the
Committee may modify, extend, or renew outstanding Options granted under the
Plan, or accept the surrender of Options outstanding hereunder (to the extent
not theretofore exercised) and authorize the granting of new Options hereunder
in substitution therefor (to the extent not theretofore exercised). The
Committee may not, however, without the consent of the Holder, modify any
outstanding Incentive Stock Options so as to specify a lower exercise price or
accept the surrender of outstanding Incentive Stock Options and authorize the
granting of new Options in substitution therefor specifying a lower option
price. In addition, no modification of an Option granted hereunder may,
without the consent of the Holder, alter or impair any rights or obligations
under any Option theretofore granted hereunder to such Holder under the Plan,
except as may be necessary with respect to Incentive Stock Options to satisfy
the requirements of Sec. 422 of the Code.
Sec. 6:9. Furnish Information. Each Holder shall furnish to Company all
information requested by Company to enable it to comply with any reporting or
other requirements imposed upon Company by or under any applicable statute or
regulation.
Sec. 6:10. Obligation to Exercise; Termination of Employment. The
granting of an Option hereunder shall impose no obligation upon the Holder to
exercise the same or any part thereof. In the event of a Holder's termination
of employment with Company or an Affiliate, the unexercised portion of an
Option granted hereunder shall terminate in accordance with Sec. 6.4 hereof.
Sec. 6:11. Agreement Provisions. The Agreements authorized under the
Plan shall contain such provisions in addition to those required by the Plan
(including, without limitation, restrictions or the removal of restrictions
upon the exercise of the Option and the retention or transfer of shares
thereby acquired) as the Committee deems advisable. Each Agreement shall
identify the Option evidenced thereby as an Incentive Stock Option or
Nonstatutory Stock Option, as the case may be, and no Agreement shall cover
both an Incentive Stock Option and Nonstatutory Stock Option. Except as
provided by Subsection B of Sec. 6.6, each Agreement relating to an Incentive
Stock Option granted hereunder shall contain such limitations and restrictions
upon the exercise of the Incentive Stock Option to which it relates as is
necessary for the Incentive Stock Option to which such Agreement relates to
constitute an incentive stock option, as defined in Sec. 422 of the Code.
Article VII
Duration of Plan
No Incentive Stock Options may be granted hereunder after the date that
is ten (10) years from the earlier of: (i) the date this Plan is adopted by
the Board of Directors; or (ii) the date this Plan is approved by Company's
shareholders. In addition, with respect to shares of Stock not currently
covered by an outstanding Option, this Plan may be terminated at any time by
the Board of Directors.
Article VIII
Amendment of Plan
The Board of Directors may, insofar as permitted by law, with respect to
any shares at the time are not subject to Options, suspend or discontinue the
Plan or revise or amend it in any respect whatsoever; provided, however, that,
without the approval of the holders of a majority of the outstanding shares of
voting stock of all classes of Company, no such revision or amendment shall:
(a) change the number of shares of the Stock subject to the Plan, (b) change
the designation of the class of employees eligible to receive Options, (c)
decrease the price at which Incentive Stock Options may be granted, (d) remove
the administration of the Plan from the Committee, or (e) without the consent
of the affected Holder, cause the Incentive Stock Options granted hereunder
and outstanding at such time that satisfied the requirements of Sec. 422 of
the Code to no longer satisfy such requirements.
Article IX
General
Sec. 9:1. Application of Funds. The proceeds received by Company from
the sale of shares pursuant to Options shall be used for general corporate
purposes.
Sec. 9:2. Right of Company and Affiliates to Terminate Employment.
Nothing contained in the Plan, or in any Agreement, shall confer upon any
Holder the right to continue in the employ of Company or any Affiliate, or
interfere in any way with the rights of Company or any Affiliate to terminate
his or her employment at any time.
Sec. 9:3. No Liability for Good Faith Determinations. Neither the
members of the Board of Directors nor any member of the Committee shall be
liable for any act, omission, or determination taken or made in good faith
with respect to the Plan or any Option granted under it, and members of the
Board of Directors and the Committee shall be entitled to indemnification and
reimbursement by Company in respect of any claim, loss, damage, or expense
(including attorneys' fees, the costs of settling any suit, provided such
settlement is approved by independent legal counsel selected by Company, and
amounts paid in satisfaction of a judgment, except a judgment based on a
finding of bad faith) arising therefrom to the full extent permitted by law
and under any directors and officers liability or similar insurance coverage
that may from time to time be in effect.
Sec. 9:4. Information Confidential. As partial consideration for the
granting of each Option hereunder, the Holder shall agree with Company that he
or she will keep confidential all information and knowledge that he or she has
relating to the manner and amount of his participation in the Plan; provided,
however, that such information may be disclosed as required by law and may be
given in confidence to the Holder's spouse, tax, and financial advisors, or to
a financial institution to the extent that such information is necessary to
secure a loan. In the event any breach of this promise comes to the attention
of the Committee, it shall take into consideration such breach, in determining
whether to recommend the grant of any future Option to such Holder, as a
factor militating against the advisability of granting any such future Option
to such individual.
Sec. 9:5. Other Benefits. Participation in the Plan shall not preclude
the Holder from eligibility in any other stock option plan of Company or any
Affiliate or any old age benefit, insurance, pension, profit sharing
retirement, bonus, or other extra compensation plans which Company or any
Affiliate has adopted, or may, at any time, adopt for the benefit of its
employees.
Sec. 9:6. Execution of Receipts and Releases. Any payment of cash or any
issuance or transfer of shares of Stock to the Holder, or to his or her legal
representative, heir, legatee, or distributee, in accordance with the
provisions hereof, shall, to the extent thereof, be in full satisfaction of
all claims of such persons hereunder. The Committee may require any Holder,
legal representative, heir, legatee, or distributee, as a condition precedent
to such payment, issuance, or transfer, to execute a release and receipt
therefor in such form as it shall determine.
Sec. 9:7. No Guarantee of Interests. Neither the Committee nor Company
guarantees the Stock of Company from loss or depreciation.
Sec. 9:8. Payment of Expenses. All expenses incident to the
administration, termination, or protection of the Plan, including, but not
limited to, legal and accounting fees, shall be paid by Company or its
Affiliates.
Sec. 9:9. Company Records. Records of Company or its Affiliates
regarding the Holder's period of employment, termination of employment and the
reason therefor, leaves of absence, re-employment, and other matters shall be
conclusive for all purposes hereunder, unless determined by the Committee to
be incorrect.
Sec. 9:10. Information. Company and its Affiliates shall, upon
request or as may be specifically required hereunder, furnish or cause to be
furnished, all of the information or documentation which is necessary or
required by the Committee to perform its duties and functions under the Plan.
Sec. 9:11. No Liability of Company. Company assumes no obligation or
responsibility to the Holder or his or her personal representatives, heirs,
legatees, or distributees for any act of, or failure to act on the part of,
the Committee.
Sec. 9:12. Company Action. Any action required of Company shall be
by resolution of its Board of Directors or by a person authorized to act by
resolution of the Board of Directors.
Sec. 9:13. Severability. If any provision of this Plan is held to be
illegal or invalid for any reason, the illegality or invalidity shall not
affect the remaining provisions hereof, but such provision shall be fully
severable, and the Plan shall be construed and enforced as if the illegal or
invalid provision had never been included herein.
Sec. 9:14. Notices. Whenever any notice is required or permitted
hereunder, such notice must be in writing and personally delivered or sent by
mail. Any notice required or permitted to be delivered hereunder shall be
deemed to be delivered on the date on which it is personally delivered, or,
whether actually received or not, on the third business day after it is
deposited in the United States mail, certified or registered, postage prepaid,
addressed to the person who is to receive it at the address which such person
has theretofore specified by written notice delivered in accordance herewith.
Company or a Holder may change, at any time and from time to time, by written
notice to the other, the address which it or he had theretofore specified for
receiving notices. Until changed in accordance herewith, Company and each
Holder shall specify as its and his or her address for receiving notices the
address set forth in the Agreement pertaining to the shares to which such
notice relates.
Sec. 9:15. Waiver of Notice. Any person entitled to notice hereunder
may waive such notice.
Sec. 9:16. Successors. The Plan shall be binding upon the Holder,
his or her heirs, legatees, and legal representatives, upon Company, its
successors, and assigns, and upon the Committee, and its successors.
Sec. 9:17. Headings. The titles and headings of Sections and
Subsections are included for convenience of reference only and are not to be
considered in construction of the provisions hereof.
Sec. 9:18. Governing Law. All questions arising with respect to the
provisions of the Plan shall be determined by application of the laws of the
State of Delaware except to the extent Delaware law is preempted by federal
law. Questions arising with respect to the provisions of an Agreement that are
matters of contract law shall be governed by the laws of the state specified
in the Agreement, except to the extent Delaware corporate law conflicts with
the contract law of such state, in which event Delaware corporate law shall
govern. The obligation of Company to sell and deliver Stock hereunder is
subject to applicable laws and to the approval of any governmental authority
required in connection with the authorization, issuance, sale, or delivery of
such Stock.
Sec. 9:19. Word Usage. Words used in the masculine shall apply to
the feminine where applicable, and wherever the context of this Plan dictates,
the plural shall be read as the singular and the singular as the plural.
Sec. 9:20. Remedies. Company may recover from a Holder reasonable
attorneys' fees incurred in connection with the enforcement of the terms and
provisions of the Plan and any Agreement whether by an action to enforce
specific performance or for damages for its breach or otherwise.
Article X
Approval of Shareholders
The Plan shall take effect on the date it is adopted by the Board of
Directors. However, if this Plan is not approved by the holders of a majority
of the outstanding shares of Company's Class A and Class B Common Stock at the
Annual Meeting of Shareholders scheduled to be held in 1999, any Options
granted hereunder shall be null, void, and of no force and effect as of their
grant date.
IN WITNESS WHEREOF, Supreme Industries, Inc., acting by and through its
officers hereunto duly authorized has executed this instrument to be effective
the 29th day of October, 1998.
SUPREME INDUSTRIES, INC.
By: /s/ HERBERT M. GARDNER
Herbert M. Gardner,
Chairman of the Board
Exhibit 5.1
Opinion of Counsel
LAW, SNAKARD & GAMBILL
A PROFESSIONAL CORPORATION
3200 BANK ONE TOWER
500 THROCKMORTON
FORT WORTH, TEXAS 76102-3859
AREA (817) 335-7373
METRO 429-2991
FACSIMILE 332-7473
DIRECT DIAL NUMBER
(817) 878-6307
October 27, 1999
Supreme Industries, Inc.
16500 County Road 38
Goshen, IN 46526-0463
Re: Form S-8 Registration Statement
Gentlemen:
We have acted as counsel to Supreme Industries, Inc., a Delaware
corporation, (the "Company") in connection with the proposed offering of the
following shares of the Company's Class A Common Stock, $.10 par value (the
"Common Stock"):
(1) 42,445 shares of Common Stock issuable by the Company upon the
exercise of presently outstanding options granted under the
Company's 1998 Stock Option Plan (the "Plan"), as adjusted for the
November 1998 and July 1999 5% stock dividends; and
(2) 674,178 shares of Common Stock issuable upon exercise of options
not yet granted under the Plan, as adjusted for the November 1998
and July 1999 5% stock dividends.
All of the above shares of Common Stock are offered pursuant to a
Registration Statement on Form S-8 (the "Registration Statement") to which
this opinion is being filed as an exhibit.
In our capacity as counsel to the Company, we have examined and relied
upon the Company's Certificate of Incorporation and Bylaws, as amended, the
Plan, and the records of corporate proceedings with respect to the approval of
the proposed registration and the offering and sale of the shares of Common
Stock thereunder, and have made such other investigations as we have deemed
necessary and prudent for the purposes of the opinions expressed herein.
Based upon the foregoing, but subject to the penultimate paragraph of
this letter, we are of the opinion that:
(1) All of the above described shares of Common Stock have been duly
authorized;
(2) When (a) the Registration Statement shall become effective; (b)
the applicable provisions of the securities laws of the various
states have been complied with; and (c) the 42,445 shares of
Common Stock issuable upon the exercise of presently outstanding
options granted under the Plan and the 674,178 shares issuable
upon exercise of options not yet granted under the Plan have been
issued and paid for in accordance with (i) the terms and
conditions set forth in the Registration Statement and (ii) the
terms and conditions in the Plan and related documents entered or
to be entered into between the Company and a particular optionee,
then, upon delivery of such shares of Common Stock, such Common
Stock will be legally issued, fully paid and nonassessable.
This opinion is limited to the matters expressly set forth herein, and
no opinion is implied or may be inferred beyond the matters expressly so
stated.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the aforesaid Registration Statement and
further consent to the use of our name wherever appearing in the Registration
Statement and any subsequent amendments thereto.
Respectfully Submitted,
/s/ Law, Snakard & Gambill, P.C.
LAW, SNAKARD & GAMBILL, P.C.
Exhibit 23.2
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 29, 1999 relating to the
financial statements and financial statement schedule, which appears in
Supreme Industries, Inc.'s Annual Report on Form 10-K for the year ended
December 31, 1998.
/s/ PriceWaterhouseCoopers LLP
PriceWaterhouseCoopers LLP
South Bend, Indiana
October 25, 1999
Exhibit 23.1
[CONTAINED IN EXHIBIT 5.1]
EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors
of Supreme Industries, Inc., a Delaware corporation (the "Company") hereby
constitutes and appoints Herbert M. Gardner and Robert W. Wilson, or either of
them, his true and lawful attorney in fact and agent, with the full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign a registration statement on Form S-8 and any
and all amendments (including post-effective amendments) thereto, and to file
the same, with all exhibits thereto, and all other documents in connection
therewith, with the Securities and Exchange Commission for the purpose of
registering, under the Securities Act of 1933, shares of Company's Class A
common stock ("Common Stock") issuable upon the exercise of options granted
under the Company's 1998 Stock Option Plan granting unto said attorney in fact
and agent full power and authority to do and perform each and every act and
thing requisite and necessary to be done as fully to all intents and purposes
as he may, might or could do in person, hereby ratifying and confirming all
that said attorney in fact and agent may lawfully do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, the undersigned have executed this Power of Attorney
effective the 25th day of October, 1999.
SIGNATURES TITLE
/s/ Herbert M. Gardner Chairman of the Board
and President, Director
Herbert M. Gardner (Principal Executive
Officer)
/s/ William J. Barrett Secretary, Assistant
Treasurer, Director
William J. Barrett
/s/ Omer G. Kropf Executive Vice President
and Director
Omer G. Kropf
/s/ Robert W. Wilson Executive Vice
President, Treasurer,
Robert W. Wilson Chief Financial Officer,
Assistant Secretary,
and Director
(Principal Financial and
Accounting Officer)
/s/ Robert J. Campbell Director
Robert J. Campbell
/s/ Thomas Cantwell Director
Thomas Cantwell
/s/ H. Douglas Schrock Director
H. Douglas Schrock
/s/ Rick L. Horn Director
Rick L. Horn
