33 -
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
JAMES RIVER CORPORATION OF VIRGINIA
(Exact name of registrant as specified in its charter)
VIRGINIA 54-0848173
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
120 Tredegar Street
Richmond, Virginia 23219
(804) 644-5411
(Address, including zip code and telephone number,
of Principal Executive Offices)
JAMES RIVER CORPORATION OF VIRGINIA
DIRECTOR STOCK OWNERSHIP PLAN
(Full title of the plan)
Clifford A. Cutchins, IV, Esquire
Senior Vice President, General Counsel, Corporate Secretary
James River Corporation of Virginia
120 Tredegar Street
Richmond, Virginia 23219
(804) 644-5411
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
Copy to
Marshall H. Earl, Jr., Esquire
McGuire, Woods, Battle & Boothe, L.L.P.
One James Center
Richmond, Virginia 23219
Approximate date of commencement of proposed sale to the public:
As soon as practicable after the effective date of the
registration statement.
This is page 1 of 25 pages.
Exhibit Index appears on page 12.
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered Share Price Fee
Common Stock
$.10 par
value 100,000 (1) $25.375 (2) $2,537,500 $875.00
Rights to
Purchase
1/1000 of a
share of
Series M
Cumulative
Participating
Preferred
Stock $10,
par value 100,000 (3) N/A N/A $100.00
(1) Represents the maximum number of shares of Common Stock
of James River Corporation of Virginia (the "Company") that may
be offered and sold hereunder.
(2) Estimated solely for purposes of calculating the
registration fee. Based on the average of the high and low
prices for the Common Stock reported on the New York Stock
Exchange on April 1, 1996.
(3) The Rights to purchase 1/1000 of a share of Series M
Cumulative Participating Preferred Stock will be attached to and
will trade with shares of the Common Stock. Value attributable
to such Rights, if any, will be reflected in the market price of
such Common Stock. The fee paid represents the minimum statutory
fee pursuant to Section 6(b) of the Securities Act of 1933.
In addition, this registration statement also covers an
indeterminate amount of Company obligations due certain electing
participants in the Plan.
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PART II.
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
James River Corporation of Virginia (the "Company") hereby
incorporates by reference into this Registration Statement the
documents listed below which have been filed with the Securities
and Exchange Commission.
(a) The Company's Annual Report on Form 10-K for the
year ended December 31, 1995;
(b) The Company's Proxy Statement for the annual
meeting held on April 25, 1996;
(c) The description of the Company's common stock
("Common Stock") included in the Registration Statement on
Form 8-A dated January 3, 1980, incorporating by reference
the description included under the heading "Description of
Common Stock" in Amendment No. 1 to Registration Statement
No. 2-63209, as amended by Amendment No. 4 to Application or
Report on Form 8 dated July 28, 1992, and
(d) The description of the Rights to Purchase Series M
Cumulative Participating Preferred Stock (the "Rights")
included in the Registration Statement on Form 8-A dated
March 3, 1989, as amended by Amendment No. 1 to Application
or Report on Form 8 dated July 28, 1992.
Each document or report subsequently filed by the Company
and the James River Corporation of Virginia Director Stock
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Ownership Plan (the "Plan") with the Commission pursuant to
Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act") after the date of
this Registration Statement, but prior to the filing of a post-
effective amendment to this Registration Statement which
indicates that all securities offered by this Registration
Statement have been sold or which deregisters all such securities
then remaining unsold, shall be deemed to be incorporated by
reference into this Registration Statement. Each document or
report incorporated into this Registration Statement by reference
shall be deemed to be a part of this Registration Statement from
the date of the filing of such document with the Securities and
Exchange Commission until the information contained therein is
superseded or updated by any subsequently filed document which is
incorporated by reference into this Registration Statement.
Item 6. Indemnification of Directors and Officers
Article 10 of the Virginia Stock Corporation Act allows, in
general, for indemnification, in certain circumstances, by a
corporation of any person threatened with or made a party to any
action, suit or proceeding by reason of the fact that he or she
is, or was, a director, officer, employee or agent of such
corporation. Indemnification is also authorized with respect to
a criminal action or proceeding where the person had no
reasonable cause to believe that his or her conduct was unlawful.
Article 9 of the Virginia Stock Corporation Act provides
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limitations on damages by officers and directors, except in cases
of willful misconduct or knowing violation of the criminal law.
Article VI of the Company's Amended and Restated Articles of
Incorporation provides for mandatory indemnification of any
director or officer of the Company who is, was or its threatened
to be made a party to any proceeding by reason of the fact that
he or she is or was a director or officer of the Company or is or
was serving the Company or any other legal entity in any capacity
at the request of the Company while a director or officer of the
Company against all liabilities and expenses incurred in the
proceeding, except such liabilities and expenses as are incurred
because of such director's or officer's willful misconduct or
knowing violation of the criminal law.
The Company's Amended and Restated Articles of Incorporation
also provide that in every instance permitted under Virginia
corporate law in effect from time to time, the liability of a
director or officer of the Company to the Company or its
shareholders shall not exceed one dollar.
The Company maintains a standard policy of officers' and
directors' liability insurance.
Item 8. Exhibits
See Index to Exhibits.
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Item 9. Undertakings
The undersigned registrant hereby undertakes:
(a) (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
thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the
registration statement;
(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
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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) That, for purposes of determining any liability under
the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act,
and each filing of the 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 Securities Act may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the Company 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 Company of expenses incurred or paid by a
director, officer or controlling person of the Company in the
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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 Company 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 Securities Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to
believe that it meets all 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 Richmond and Commonwealth of Virginia on April 2,
1996.
JAMES RIVER CORPORATION OF VIRGINIA
By: /s/ Stephen E. Hare
Stephen E. Hare
Senior Vice President,
Corporate Finance and Chief
Financial Officer
POWER OF ATTORNEY
Know All Men and Women By These Presents that each
individual whose signature appears below constitutes and appoints
Stephen E. Hare and Clifford A. Cutchins, IV, Esquire, and each
of them, such individual's true and lawful attorneys-in-fact and
agents with full power of substitution, for such individual and
in his or her name, place and stead, in any and all capacities,
to sign any and all amendments (including post-effective
amendments) to this registration statement and any registration
statement related to the offering contemplated by this
registration statement that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act of 1933, and to
file the same, with all exhibits thereto, and all documents in
connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and
each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and
about the premises, as fully to all intents and purposes as he or
she might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or any of them, or
their or his or her 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 on April 2, 1996 by
the following persons in the respective capacities indicated
below their names.
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/s/ Miles L. Marsh Chairman of the Board of Directors,
Miles L. Marsh President, and Chief Executive
Officer (Principal Executive
Officer)
/s/ Stephen E. Hare Senior Vice President, Corporate
Stephen E. Hare Finance and Chief Financial Officer
(Principal Financial and Accounting
Officer)
/s/ William T. Burgin Director
William T. Burgin
/s/ Worley H. Clark, Jr. Director
Worley H. Clark, Jr.
/s/ William T. Comfort, Jr. Director
William T. Comfort, Jr.
/s/ William V. Daniel Director
William V. Daniel
/s/ Bruce C. Gottwald Director
Bruce C. Gottwald
/s/ Robert M. O'Neil Director
Robert M. O'Neil
/s/ Joseph T. Piemont Director
Joseph T. Piemont
/s/ Anne M. Whittemore Director
Anne M. Whittemore
/s/ Robert C. Williams Director
Robert C. Williams
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EXHIBITS
TO
JAMES RIVER CORPORATION OF VIRGINIA
REGISTRATION STATEMENT ON FORM S-8
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Exhibit Index
The following exhibits are filed herewith as part of this
Registration Statement:
Exhibit Page
No. No.
5.1 Opinion and Consent of McGuire, Woods,
Battle & Boothe, L.L.P., Counsel to the
Company as to the validity of the
Common Stock offered hereunder 13
23.1 Consent of Independent Accountants 15
24.2 Consent of McGuire, Woods, Battle & Boothe,
L.L.P. (included in Exhibit 5.1)
99.1 James River Corporation of Virginia
Director Stock Ownership Plan 16
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EXHIBIT 5.1
April 2, 1996
Board of Directors
James River Corporation of Virginia
120 Tredegar Street
Richmond, Virginia 23219
Gentlemen:
We have acted as your counsel in connection with the
preparation of a Registration Statement on Form S-8 to be filed
with the Securities and Exchange Commission pursuant to the
Securities Act of 1933, as amended (the "Registration
Statement"), with respect to the offering of up to 100,000 shares
of Common Stock, $.10 par value ("Common Stock") of James River
Corporation of Virginia (the "Company") to be issued pursuant to
the James River Corporation of Virginia Director Stock Ownership
Plan (the "Plan") accompanied by an equivalent number of rights
to purchase 1/1000 of a share of Series M Cumulative Preferred
Stock, $10 par value ("Rights").
We are familiar with the Registration Statement and have
examined such corporate documents and records, including the
Plan, and such matters of law as we have considered appropriate
to enable us to render the following opinion. On the basis of
the foregoing, we are of the opinion that:
The Company is a corporation duly organized and validly
existing under the laws of the Commonwealth of Virginia and has
the power to issue up to 100,000 shares of Company Common Stock
and an equivalent number of Rights that are to be registered with
the Securities and Exchange Commission on a Form S-8 Registration
Statement. We are further of the opinion that the Common Stock
and Rights being registered, when issued in accordance with the
related resolutions of the Board of Directors and the terms of
the Plan, will be duly authorized, validly issued, fully paid and
non-assessable.
We re-affirm our opinion regarding the Rights given to James
River's Board of Directors as confirmed in our letter of February
9, 1989, a copy of which is attached to our opinion filed as
Exhibit 5 to James River's Registration Statement (No. 33-56657)
on Form S-8. In our opinion regarding the Rights, we discussed
whether certain provisions of Section 13.1-638 of the Code of
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Virginia (the "Code") might prohibit the restrictions on transfer
imposed under the agreement governing the Rights. The Code was
amended, effective July 1, 1990, to provide that, notwithstanding
such provisions of Section 13.1-638, the terms of rights issued
by a corporation may include restrictions on transfer by
designated persons or classes of persons.
We consent to the filing of this opinion as Exhibit 5.1 to
the Registration Statement and to the reference to us under the
caption "Legal Opinions" in the Registration Statement.
Very truly yours,
/s/ McGuire, Woods, Battle & Boothe, L.L.P.
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration
statement on Form S-8, pertaining to the James River Corporation
of Virginia Director Stock Ownership Plan, of our report dated
January 25, 1996, except as to the information presented in Note
17, for which the date is January 30, 1996, on our audits of the
consolidated financial statements of James River Corporation of
Virginia and Subsidiaries ("James River") as of December 31,
1995, and December 25, 1994, and for each of the three fiscal
years in the period ended December 31, 1995, which report is
incorporated by reference in James River's Annual Report on Form
10-K for the fiscal year ended December 31, 1995.
Richmond, Virginia
April 3, 1996
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EXHIBIT 99.1
JAMES RIVER CORPORATION OF VIRGINIA
DIRECTOR STOCK OWNERSHIP PLAN
JAMES RIVER CORPORATION OF VIRGINIA (the "Company"), hereby
adopts the James River Corporation of Virginia Director Stock
Ownership Plan.
1. Purpose. The purpose of the Director Stock Ownership
Plan is to increase the level of ownership of the Company's
common stock by non-employee directors. The Plan replaces the
practice of paying director retainer fees solely in cash by
paying 50% of such fees in Company common stock and providing
eligible directors with a means of electing to receive the
balance of retainer fees in Company common stock, all as set
forth in the Plan. The Plan has been adopted by the Board of
Directors of the Company subject to approval by the Company's
shareholders. The Plan is intended to conform to the provisions
of Rule 16b-3 of the Securities Exchange Act of 1934, as amended,
or any replacement rule in effect from time to time ("Rule
16b-3").
2. Definitions. As used in the Plan, the following terms
have the meanings indicated:
(a) "Act" means the Securities Exchange Act of 1934,
as amended.
(b) "Annual Meeting Date" means the date of the annual
meeting of the Company's shareholders as fixed pursuant to
the Company's bylaws.
(c) "Award" means the award of Restricted Stock under
the Plan.
(d) "Award Date" means May 1. The first Award Date
shall be the May 1 next following the date of the 1996
Annual Meeting Date. If the Annual Meeting Date is not in
the month of April, the Award Date shall be the first day of
the month next following the Annual Meeting Date.
(e) "Board" means the Board of Directors of the
Company.
(f) "Change of Control" means:
(i) The acquisition by any unrelated person of
beneficial ownership (as that term is used for purposes
of the Act) of 20% or more of the then outstanding
shares of common stock of the Company or the combined
voting power of the then outstanding voting securities
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of the Company entitled to vote generally in the
election of directors. The term "unrelated person"
means any person other than (x) the Company and its
Subsidiaries, (y) an employee benefit plan or trust of
the Company or its Subsidiaries, and (z) a person who
acquires stock of the Company pursuant to an agreement
with the Company that is approved by the Board in
advance of the acquisition, unless the acquisition
results in a Change of Control pursuant to subsection
(ii) below. For purposes of this subsection, a
"person" means an individual, entity or group, as that
term is used for purposes of the Act.
(ii) As a result of, or in connection with, any
tender or exchange offer, merger or other business
combination, sale of assets or contested election, or
any combination of the foregoing transactions, the
persons who were directors of the Company before such
transactions shall cease to constitute a majority of
the Board of Directors of the Company or any successor
to the Company.
(g) "Code" means the Internal Revenue Code of 1986, as
amended.
(h) "Company" means James River Corporation of
Virginia or any successor corporation.
(i) "Company Stock" means common stock of the Company.
In the event of a change in the capital structure of the
Company (as provided in Section 9), the shares resulting
from such a change shall be deemed to be Company Stock
within the meaning of the Plan.
(j) "Deferred Stock" means hypothetical shares of
Company Stock deferred pursuant to a deferral election
pursuant to Section 7.
(k) "Deferred Stock Account" means an account
maintained on the books of the Company to record Deferred
Stock.
(l) "Disability" or "Disabled" means a physical or
mental condition that prevents a director from performing
services as a member of the Board. The Board shall
determine whether a Disability exists and such determination
shall be conclusive.
(m) "Effective Date" means the date the Plan is
approved by the Company's shareholders.
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(n) "Election Period" means the 120-day period
immediately preceding the first day of a Service Period, or
such other period as may be permissible under Rule 16b-3
promulgated under the Act or may be appropriate under the
Code, as determined by the Board.
(o) "Eligible Director" means a director who is not,
and for at least one year before the date of an Award was
not, an employee of the Company, the Parent or a Subsidiary.
(p) "Fair Market Value" means (i) if the Company Stock
is traded on an exchange, the mean of the highest and lowest
registered sales prices of the Company Stock on the exchange
on which the Company Stock generally has the greatest
trading volume, or (ii) if the Company Stock is traded in
the over-the-counter market, the mean between the closing
bid and asked prices as reported by NASDAQ. Fair Market
Value shall be determined as of the applicable date
specified in the Plan or, if there are no trades on such
date, the value shall be determined as of the last preceding
day on which the Company Stock is traded.
(q) "Parent" means, with respect to any corporation, a
parent of that corporation within the meaning of Code
section 424(e).
(r) "Participant" means any Eligible Director entitled
to receive an Award under the Plan.
(s) "Restricted Stock" means Company Stock awarded
upon the terms and subject to the restrictions set forth in
the Plan.
(t) "Retainer Fees" means the amount of compensation
payable to each Eligible Director with respect to services
rendered to the Company as a director during a Service
Period. Such term does not include fees for attending
meetings of the Board or committees of the Board.
(u) "Rule 16b-3" means Rule 16b-3 promulgated under
the Act. A reference in the Plan to Rule 16b-3 shall
include a reference to any corresponding subsequent rule or
any amendments to Rule 16b-3 enacted after the effective
date of the Plan.
(v) "Service Period" means the period beginning with
the Annual Meeting Date on which an Eligible Director is
elected or reelected to the Board and ending on the day next
preceding the next Annual Meeting Date.
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(w) "Subsidiary" means an entity of which the Company
owns 50% or more of the total combined voting power of all
classes of stock.
(x) "Vesting Period" means the period that begins on
the first date of the Service Period to which an Award
relates and ends on the last day of the Service Period.
Awards made with respect to each Service Period are subject
to a separate Vesting Period.
3. Eligibility. Only Eligible Directors are eligible to
participate in the Plan.
4. Automatic and Elective Share Awards.
(a) As of each Award Date, each Participant will
receive with respect to 50% of the Participant's Retainer Fees
payable with respect to that Service Period the greater of (i)
250 shares of Restricted Stock, and (ii) the number of shares of
Restricted Stock determined by dividing an amount equal to 50% of
the Participant's Retainer Fees payable for the Service Period by
the Fair Market Value of Company Stock as of the Award Date.
(b) Except as provided in (e), by filing an election
in writing with the Company during the Election Period, a
Participant may receive, instead of cash, with respect to the
remaining 50% of the Participant's Retainer Fees payable with
respect to that Service Period, the number of shares of
Restricted Stock determined by dividing an amount equal to the
remaining 50% of the Participant's Retainer Fees for that Service
Period by the Fair Market Value of Company Stock as of the Award
Date. Subject to and as long as required to comply with Rule
16b-3, (i) the election shall be irrevocable with respect to
Retainer Fees for the initial Service Period to which the
election relates and may be made effective until revoked with
respect to Retainer Fees for succeeding Service Periods, (ii) a
revocation of a prior election may be made by filing a writing to
that effect with the Company, and (iii) such revocation shall
only be effective with respect to Retainer Fees earned for the
Service Periods following the date of revocation. The Board may
establish alternative election procedures consistent with and
permissible under Rule 16b-3.
(c) Company Stock shall automatically be awarded under
the Plan as described above. If at any time there may not be
sufficient shares available under the Plan to permit automatic
Awards as described above (after taking into account Company
Stock reserved for issuance with respect to Deferred Stock),
elective awards shall be void and the automatic Awards shall be
reduced pro rata (to zero, if necessary) so as not to exceed the
number of shares then available under the Plan.
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(d) The Company Stock awarded under the Plan shall be
restricted as described in Section 6 below.
(e) The remaining 50% of the Retainer Fees otherwise
payable in cash to a Participant who has previously made an
irrevocable election pursuant to the Company's Directors Deferred
Compensation Plan to defer the receipt of Retainer Fees shall be
governed by the terms of that election and no election under (b)
shall be permissible while such prior election is in effect.
5. Stock. The Company has reserved an aggregate of
100,000 shares of Company Stock for issuance pursuant to the
Plan. The aggregate number is subject to adjustment as provided
in Section 9. In the event of a change in the capital structure
of the Company (as provided in Section 9), the shares resulting
from such change shall be deemed to be Company Stock within the
meaning of the Plan. The aggregate number of shares of Company
Stock reserved shall be reduced by the issuance of shares under
the Plan, and, to the extent permitted by Rule 16b-3, shall be
increased if and to the extent a Participant forfeits Restricted
Stock under the Plan.
6. Restrictions on Company Stock.
(a) All Company Stock granted under the Plan shall be
restricted as described in this Section. Generally, each
Participant shall become vested in Company Stock awarded each
year pursuant to Section 4 at the end of the Vesting Period
applicable to the Award if the Participant continues to be a
member of the Board through the Vesting Period. Each Award is
subject to a separate Vesting Period and all Awards made with
respect to a Service Period become nonforfeitable and
transferrable on the last day of the Service Period to which the
Award relates. In addition, a Participant shall become vested in
such Company Stock during the Vesting Period (i) upon retirement
from the Board of Directors at or after age 65, (ii) if the
Participant dies or becomes Disabled while serving as a member of
the Board of Directors, or (iii) if the Participant ceases to be
a member of the Board of Directors as a result of a Change of
Control. If the Participant ceases to be a member of the Board
of Directors for any reason other than one described in the
preceding sentence during the Vesting Period following the Award
Date, the Participant's right to the Restricted Stock shall be
forfeited.
(b) Shares of Company Stock that are restricted as
described in this Section 6 may not be sold, assigned,
transferred, disposed of, pledged, hypothecated or otherwise
encumbered until the Restricted Stock becomes vested.
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(c) When Restricted Stock is issued, a certificate
representing the shares shall be issued in the name of the
Participant, subject to the restrictions imposed by the Plan.
The Secretary of the Company shall hold the certificates for the
benefit of the Participant. In other respects, the Participant
shall have all the rights of a shareholder with respect to the
shares of Restricted Stock, including, but not limited to, the
right to vote such shares and the right to receive all cash
dividends. Certificates representing Restricted Stock shall bear
a legend referring to the restrictions set forth in the Plan. If
stock dividends or other non-cash distributions are declared on
restricted Company Stock, such stock dividends or other
distributions shall be subject to the same restrictions as the
underlying shares of Company Stock.
7. Deferred Stock.
(a) During the Election Period before the date on
which an Award of Company Stock is to be made pursuant to Section
4(a) or (b), a Participant may elect to defer payment of part or
all of his Award. If a Participant wishes to defer only part of
an Award, the deferral must apply to at least 40% of the
aggregate number of shares covered by the Award pursuant to
Sections 4(a) and (b). A Participant shall designate, at the
time of the deferral, that payment shall be made either (i) as of
the January 1st that is at least three years after the date of
the deferral election, or (ii) when the Participant ceases to be
a member of the Board of Directors or another distribution event
occurs as described below. If a deferral election remains in
effect for successive Service Periods, payment shall be deemed
deferred until the later of (i) the distribution date specified
with respect to Awards made for the first Service Period for
which the deferred election is effective, and (ii) the January
1st that is three years after the first day of the Service Period
to which the deferrals relate. The deferral election shall be
irrevocable as to Awards previously made and shall be made by
filing a written election with the Company during the Election
Period.
(b) If a Participant makes an election pursuant to
(a), the Company shall credit to the Participant's Deferred Stock
Account as of the Award Date the number of hypothetical shares of
Company Stock equal to the number of shares of Company Stock that
otherwise would have been granted pursuant to the Award. No
actual shares of Company Stock or other certificates shall be
issued. A Participant's interest in such Director Deferred Stock
may not be sold, assigned, transferred, pledged, hypothecated or
otherwise encumbered.
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(c) When a cash dividend is paid on Company Stock,
each Participant will be paid in cash an equal amount with
respect to each share of Deferred Stock credited to the
Participant's Deferred Stock Account. Each Director's Deferred
Stock Account shall be adjusted to take into account any stock
dividends or other non-cash distributions pursuant to Section 9
below.
(d) If a Participant who has elected to defer Company
Stock pursuant to this Section 7 continues to be a member of the
Board of Directors through the Vesting Period, the Participant
shall receive payment of the Director's Deferred Stock Account on
the first to occur of: (i) the distribution date specified by
the Participant at the time the deferral election is made, as
described in Section 7(a), or (ii) the date on which the
Participant ceases to be a member of the Board of Directors. In
addition, the Participant shall become entitled to receive
payment of the Participant's Deferred Stock Account if (i) the
Participant retires from the Board of Directors at or after
attaining age 65, (ii) the Participant dies or becomes disabled
while serving as a member of the Board of Directors or (iii) the
Participant ceases to be a member of the Board of Directors as a
result of a Change of Control. If the Participant ceases to be a
member of the Board of Directors for any reason other than one
described in the preceding sentence during the Vesting Period
following the Award Date, the Deferred Stock attributable to that
Award credited to the Participant's Deferred Stock Account shall
be forfeited.
(e) If a Participant has the right to receive payment
of the Participant's Deferred Stock Account pursuant to
subsection (d) above, the Company shall distribute to the
Participant that number of whole shares of Company Stock that is
equal to the number of hypothetical whole shares of Company Stock
that are then credited to the Participant's Deferred Stock
Account, adjusted for mandatory share withholding as provided in
Section 10. The shares of Company Stock so distributed shall not
be subject to the restrictions described in Section 6.
8. Issuance of Company Stock. The Company shall not be
required to issue or deliver any certificate for shares of
Company Stock before (i) approval of the Plan by the Company's
shareholders, (ii) the admission of such shares to listing on any
stock exchange on which the Company Stock may then be listed, or
listing of such shares for trading on the Nasdaq National Market
System, (iii) receipt of any required registration or other
qualification of such shares under any state or federal law or
regulation that the Company's counsel shall determine is
necessary or advisable, and (iv) the Company is satisfied that
all applicable legal requirements have been complied with. The
Company may place on a certificate representing Company Stock any
legend required pursuant to Section 6, and any legend deemed
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necessary by the Company's counsel to comply with federal or
state securities laws. No shares of Company Stock shall be
issued under the Plan unless the Participant pays to the Company,
or makes arrangements satisfactory to the Company regarding the
payment of, any applicable withholding or other taxes. Until the
Participant has been issued a certificate for the shares of
Company Stock acquired, the Participant shall possess no
shareholder rights with respect to the shares.
9. Effect of Stock Dividends and Other Changes in Capital
Structure. Appropriate adjustments shall be made automatically
to the number and kind of shares to be issued under the Plan, and
any other relevant provisions of the Plan if there are any
changes in the Company Stock by reason of a stock dividend, stock
split, combination of shares, spin-off, reclassification,
recapitalization, merger, consolidation or other change in the
Company's capital stock (including, but not limited to, the
creation or issuance to shareholders generally of rights, options
or warrants for the purchase of common stock or preferred stock
of the Company). If the adjustment would produce fractional
shares, the fractional shares shall be eliminated by rounding to
the nearest whole share. The adjustments shall be made in a
manner consistent with Rule 16b-3. Any such adjustments shall
neither enhance or diminish the rights of a Participant.
10. Mandatory Share Reduction for Income Taxes. Whenever
shares of Restricted Stock become distributable under the Plan
without restrictions, the number of shares of Restricted Stock to
be so distributed shall be reduced and the Company shall retain
that number of whole shares of Restricted Stock the Fair Market
Value of which on the date of distribution would be necessary to
satisfy the Company's federal and state income tax obligations
arising in that year if the Participant were then a common law
employee.
11. Administration of the Plan. The Board of Directors
shall be responsible for the proper implementation of the Plan.
The Board of Directors shall not exercise any discretion with
respect to the administration of the Plan, except as may be
permitted by Rule 16b-3. The Board of Directors shall have all
powers vested in it by the terms of the Plan. Any decision of
the Board of Directors with respect to the Plan shall be final
and conclusive. The Board of Directors may act only by a
majority of its members in office, except that the members may
authorize any one or more of their number or any officer of the
Company to execute and deliver documents on behalf of the Board
of Directors. The Board of Directors may consult with counsel,
who may be counsel to the Company, and shall not incur any
liability for action taken in good faith in reliance upon the
advice of counsel.
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12. Expiration and Termination of the Plan. Company Stock
shall be awarded under the Plan until the Plan is terminated by
the Board of Directors or until such earlier date when
termination of the Plan shall be required by law. If not sooner
terminated, the Plan shall terminate automatically on the tenth
anniversary of the Effective Date.
13. Amendments. The Board of Directors may from time to
time make such changes in and additions to the Plan as it may
deem appropriate; provided that, if and to the extent required by
Rule 16b-3, no change shall be made that increases the total
number of shares reserved for issuance under the Plan (except
pursuant to Section 9), changes the class of persons eligible to
receive Company Stock, or materially increases the benefits
accruing to Participants under the Plan, unless such change is
authorized by the shareholders of the Company. If required by
Rule 16b-3, the Plan may not be amended periodically, and in no
event more often than every six months, except for amendments
required to comply with changes in the Internal Revenue Code of
1986, as amended (the "Internal Revenue Code") or the rules
thereunder. The Board may unilaterally amend the Plan as it
deems appropriate to ensure compliance with Rule 16b-3 and to
cause awards of Company Stock pursuant to the Plan to meet the
applicable requirements of the Internal Revenue Code. Except as
provided in the preceding sentence, the termination of the Plan
or any change or addition to the Plan shall not, without the
consent of any Participant who is adversely affected thereby,
alter any Restricted Stock awards previously made to the
Participant pursuant to the Plan.
14. Rights Under the Plan. Title to and beneficial
ownership of all benefits described in the Plan shall at all
times remain with the Company. Participation in the Plan and the
right to receive Restricted Stock under the Plan shall not give a
Participant any proprietary interest in the Company, or any
Subsidiary or any of their assets, nor ensure that the
Participant will be nominated for election to the Board in the
future. No trust fund shall be created in connection with the
Plan (other than a trust fund that does not change the
characterization of the Plan as an "unfunded" plan under the
Internal Revenue Code), and there shall be no required funding of
amounts that may become payable under the Plan. A Participant
shall, for all purposes, be a general creditor of the Company.
The interests of a Participant under the Plan cannot be assigned,
anticipated, sold, encumbered or pledged and shall not be subject
to the claims of his creditors.
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15. Notice. All notices and other communications required
or permitted to be given under the Plan shall be in writing and
shall be deemed to have been duly given if delivered personally
or mailed first class, postage prepaid, as follows: (a) if to
the Company, at its principal business address, to the attention
of the Secretary; (b) if to any Participant, at the last address
of the Participant known to the sender at the time the notice or
other communication is sent.
16. Governing Law/Interpretation. Generally, the Plan
shall be governed by the laws of the Commonwealth of Virginia.
The terms of this Plan are also subject to all present and future
rulings of the Securities Exchange Commission with respect to
Rule 16b-3. If any provision of the Plan would cause the Plan to
fail to meet the requirements of Rule 16b-3, then that provision
of the Plan shall be void and of no effect.
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