<PAGE> 1
As Filed With the Securities and Exchange Commission on April 21, 1997
Registration No. 333-
U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM S-8
----------
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------
LANCE, INC.
(Exact name of registrant as specified in its charter)
North Carolina 56-0292920
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
8600 South Boulevard
Charlotte, North Carolina 28232
(Address of principal executive offices) (Zip Code)
LANCE, INC. 1997 INCENTIVE EQUITY PLAN
(Full title of plan)
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B. CLYDE PRESLAR
Vice President and Chief Financial Officer
Lance, Inc.
8600 South Boulevard
Charlotte, North Carolina 28232
(Name and address of agent for service)
704/554-1421
(Telephone number, including area code,
of agent for service)
Please send copies of all communications to:
A. ZACHARY SMITH III, ESQ.
Kennedy Covington Lobdell & Hickman, L.L.P.
NationsBank Corporate Center, Suite 4200
100 North Tryon Street
Charlotte, North Carolina 28202-4006
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------
Title Amount Proposed maximum Proposed maximum Amount of
of securities to be to be offering price aggregate registration
registered registered per share* offering price* fee
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.83 1/3 par value 1,500,000 shares $17.94 $26,910,000 $8,155
=================================================================================================================
</TABLE>
* Estimated solely for the purpose of calculating the registration fee pursuant
to Rule 457(c) and (h)(1) on the basis of $17.94 per share, the average of
the high and low prices for the Common Stock on April 16, 1997 as reported by
The Nasdaq Stock Market.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
The information required by this Item is omitted from this registration
statement in accordance with the Note to Part I of Form S-8.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The information required by this Item is omitted from this registration
statement in accordance with the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed by Lance, Inc. (the "Company")
with the Securities and Exchange Commission (Commission file number 0-398) and
are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 28, 1996.
(b) None.
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A dated April 23,
1965, as amended by Form 8 dated June 16, 1965, including any
amendment or report filed for the purpose of updating such
description.
All reports and other documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after
the date hereof and prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be part hereof from the date of filing of such reports
and documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Certain legal matters in connection with the issuance of the Common
Stock being offered hereby are being passed upon for the Company by Kennedy
Covington Lobdell & Hickman, L.L.P., NationsBank Corporate Center, Suite 4200,
100 North Tryon Street, Charlotte, North Carolina 28202. At April 11, 1997,
partners and associates of Kennedy Covington Lobdell & Hickman, L.L.P. and their
spouses and minor children owned beneficially an aggregate of 25,533 shares of
the Common Stock of the Company.
2
<PAGE> 3
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The North Carolina Business Corporation Act contains provisions
prescribing the extent to which directors and officers shall or may be
indemnified against liabilities which they may incur in their capacities as
such. Under those provisions, whether indemnification of reimbursement or
expenses is permitted or mandated depends upon several factors, including
whether the action is brought by the corporation or by outsiders and whether the
potential indemnitee is successful in his or her defense.
The statute is not exclusive of any other rights of indemnification
under any bylaw, agreement, vote of shareholders or disinterested directors or
otherwise. The Company's Restated Charter provides that no director of the
Company shall have any personal liability arising out of any action whether by
or in the right of the Company or otherwise for monetary damages for breach of
his or her duty as a director, and the Company's bylaws require the Company to
indemnify the Company's directors to the fullest extent permitted by law.
The North Carolina Business Corporation Act also permits a corporation
to purchase and maintain insurance on behalf of its directors and officers
against liabilities which they may incur in such capacities. The Company has
purchased insurance to provide for indemnification of directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4 Lance, Inc. 1997 Incentive Equity Plan
5 Opinion of Kennedy Covington Lobdell & Hickman, L.L.P.
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Kennedy Covington Lobdell & Hickman, L.L.P.
(contained in Exhibit 5)
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which it offers or sells
securities, 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;
(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 this registration statement;
and
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in this registration statement or any
material change to such information in this
registration statement;
provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the registration statement is
on Form S-3 or Form S-8, and the information required to
be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or
3
<PAGE> 4
furnished to the Commission by the Registrant under the
Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and
the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions of the
North Carolina Business Corporation Act, the Registrant's Restated
Charter or Bylaws, 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, officer or
controlling person in connection with the securities being registered,
the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
4
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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 Charlotte, State of North Carolina, on the 21st day
of April, 1997.
LANCE, INC.
Dated: April 21, 1997
By: /s/ B. Clyde Preslar
----------------------------
B. Clyde Preslar
Vice President
Pursuant to the requirements of the Securities Exchange Act of 1934,
this Annual Report has been signed below by the following persons on behalf of
the Registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Capacity Date
- --------- -------- ----
<S> <C> <C>
/s/ Scott C. Lea Chairman of the Board April 21, 1997
- -------------------------------- and Director
Scott C. Lea
/s/ Paul A. Stroup III President, Chief Executive April 21, 1997
- -------------------------------- Officer and Director
Paul A. Stroup III (Principal Executive Officer)
/s/ B. Clyde Preslar Vice President and Treasurer April 21, 1997
- -------------------------------- (Principal Financial Officer)
B. Clyde Preslar
/s/ James C. Melton Principal Accounting Officer April 21, 1997
- --------------------------------
James C. Melton
/s/ Alan T. Dickson Director April 21, 1997
- --------------------------------
Alan T. Dickson
/s/ J. W. Disher Director April 21, 1997
- --------------------------------
J. W. Disher
/s/ James H. Hance, Jr. Director April 21, 1997
- --------------------------------
James H. Hance, Jr.
/s/ William R. Holland Director April 21, 1997
- --------------------------------
William R. Holland
Director
- --------------------------------
Weldon H. Johnson
/s/ Nancy Van Every McLaurin Director April 21, 1997
- --------------------------------
Nancy Van Every McLaurin
/s/ Robert V. Sisk Director April 21, 1997
- --------------------------------
Robert V. Sisk
</TABLE>
5
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<TABLE>
<S> <C> <C>
/s/ Isaiah Tidwell Director April 21, 1997
- --------------------------------
Isaiah Tidwell
/s/ S. Lance Van Every Director April 21, 1997
- --------------------------------
S. Lance Van Every
/s/ Richard A. Zimmerman Director April 21, 1997
- --------------------------------
Richard A. Zimmerman
</TABLE>
6
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS
Item 8
FORM S-8
REGISTRATION STATEMENT
LANCE, INC.
Commission File Number 0-398
EXHIBIT INDEX
Sequential Page
Exhibit Description Number
- ------- ----------- ------
4 Lance, Inc. 1997 Incentive Equity Plan
5 Opinion of Kennedy Covington Lobdell & Hickman, L.L.P.
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Kennedy Covington Lobdell & Hickman, L.L.P.
(contained in Exhibit 5)
<PAGE> 1
EXHIBT 4
LANCE, INC.
1997 INCENTIVE EQUITY PLAN
i
<PAGE> 2
LANCE, INC.
1997 INCENTIVE EQUITY PLAN
TABLE OF CONTENTS
Section 1. Purpose.........................................................1
Section 2. Definitions.....................................................1
Section 3. Administration..................................................3
Section 4. Duration of and Common Stock Subject to Plan....................4
Section 5. Eligibility.....................................................4
Section 6. Stock Options...................................................4
Section 7. Stock Appreciation Rights.......................................5
Section 8. Restricted Awards...............................................6
Section 9. Performance Awards..............................................7
Section 10. Other Stock-Based and Combination Awards........................9
Section 11. Deferral Elections..............................................9
Section 12. Termination of Employment.......................................9
Section 13. Non-transferability of Awards...................................9
Section 14. Adjustments Upon Changes in Capitalization, Etc................10
Section 15. Change in Control..............................................10
Section 16. Amendment and Termination......................................11
Section 17. Miscellaneous..................................................11
ii
<PAGE> 3
LANCE, INC.
1997 INCENTIVE EQUITY PLAN
SECTION 1. PURPOSE. The purpose of the Lance, Inc. 1997 Incentive
Equity Plan (the "Plan") is to attract and retain managerial and other key
employees, and to reward such employees for making major contributions to the
success of Lance, Inc. (the "Company"). The Plan is designed to meet these
objectives by offering performance-based stock and cash incentives and other
equity-based incentive awards, thereby providing such employees a proprietary
interest in the long term growth and performance of the Company.
SECTION 2. DEFINITIONS. For purposes of the Plan, unless the context
clearly indicates otherwise, the following terms shall have the meanings set
forth below:
(a) "Award" (collectively, "Awards") means an award or grant
made to a Participant under Sections 6 through 10, inclusive, of the
Plan.
(b) "Board" means the Board of Directors of the Company.
(c) "Code" means the Internal Revenue Code of 1986, as in
effect from time to time, or any successor thereto, together with
rules, regulations and interpretations promulgated thereunder.
(d) "Common Stock" means the $.83 1/3 par value Common Stock
of the Company or any security of the Company issued in substitution,
exchange or lieu thereof pursuant to Section 14 hereof.
(e) "Company" means Lance, Inc., a North Carolina corporation,
and any subsidiary corporations within the meaning of Section 424(f) of
the Code, as well as any successor corporation or corporations thereto.
(f) "Compensation Committee" means the committee of the Board
constituted as provided in Section 3 of the Plan.
(g) "Disability" means the inability, by reason of physical or
mental infirmity or both, of an individual to perform satisfactorily
the duties then assigned to such individual or any other duties the
Company is willing to assign to such individual for which compensation
is payable. Disability shall be determined by the Compensation
Committee based upon such evidence as the Compensation Committee shall
deem sufficient and, upon medical evidence, if available, and, in the
discretion of the Compensation Committee, upon certification of such
Disability by an independent qualified physician.
<PAGE> 4
(h) "Exchange Act" means the Securities Exchange Act of 1934,
as amended and in effect from time to time, or any successor statute.
(i) "Fair Market Value," with respect to a share of the Common
Stock at a particular time, shall be that value as determined by the
Compensation Committee which shall be (i) if such Common Stock is
listed on a national securities exchange or traded on the National
Market System, the mean between the highest price and the lowest price
at which the Common Stock shall have been sold regular way on a
national securities exchange or the National Market System on said
date, or, if no sales occur on said date, then on the next preceding
date on which there were such sales of Common Stock, (ii) if the Common
Stock shall not be listed on a national securities exchange or traded
on the National Market System, the mean between the bid and asked
prices last reported by the National Association of Securities Dealers,
Inc. for the over-the-counter market on said date or, if no bid and
asked prices are reported on said date, then on the next preceding date
on which there were such quotations, or (iii) if at any time quotations
for the Common Stock shall not be reported by the National Association
of Securities Dealers, Inc. for the over-the-counter market and the
Common Stock shall not be listed on any national securities exchange or
traded on the National Market System, the fair market value determined
by the Compensation Committee in such manner as it may deem reasonable.
(j) "Incentive Stock Option" means any Stock Option granted
pursuant to the provisions of Section 6 of the Plan that is intended to
be and is specifically designated as an "incentive stock option" within
the meaning of Section 422 of the Code.
(k) "Non-Qualified Stock Option" means any Stock Option
granted pursuant to the provisions of Section 6 of the Plan that is not
an Incentive Stock Option.
(l) "Participant" means an employee of the Company who is
granted an Award under the Plan.
(m) "Performance Award" means an Award granted pursuant to the
provisions of Section 9 of the Plan the vesting of which is contingent
on performance attainment.
(n) "Performance Equity Grant" means an Award of units
representing shares of Common Stock granted pursuant to the provisions
of Section 9 of the Plan.
(o) "Performance Unit Grant" means an Award of monetary units
granted pursuant to the provisions of Section 9 of the Plan.
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(p) "Plan" means the Lance, Inc. 1997 Incentive Equity Plan as
set forth herein, as the same may be hereafter amended and from time to
time in effect.
(q) "Restricted Award" means an Award granted pursuant to the
provisions of Section 8 of the Plan.
(r) "Restricted Stock Grant" means an Award of shares of
Common Stock granted pursuant to the provisions of Section 8 of the
Plan.
(s) "Restricted Unit Grant" means an Award of units
representing shares of Common Stock granted pursuant to the provisions
of Section 8 of the Plan.
(t) "Retirement" means the termination of an employee's
employment with the Company at any time after the last day of the
calendar month immediately preceding the calendar month in which the
employee attains the age of 60 years.
(u) "Stock Appreciation Right" means an Award to benefit from
the appreciation of Common Stock granted pursuant to the provisions of
Section 7 of the Plan.
(v) "Stock Option" means an Award to purchase shares of Common
Stock granted pursuant to the provisions of Section 6 of the Plan.
SECTION 3. ADMINISTRATION.
(a) The Plan shall be administered by those members of the
Compensation/Stock Option Committee of the Board who are "nonemployee directors"
for purposes of Rule 16b-3 under the Exchange Act.
(b) The Compensation Committee is authorized to grant Awards under the
Plan, to construe and interpret the Plan, to promulgate, amend and rescind rules
and regulations relating to the implementation of the Plan, and to make all
other determinations necessary or advisable for the administration of the Plan.
Any determination, decision or action of the Compensation Committee in
connection with the construction, interpretation, administration or application
of the Plan shall be final, conclusive and binding upon all persons
participating in the Plan and any person validly claiming under or through
persons participating in the Plan. The Company shall effect the granting of
Awards under the Plan in accordance with the determinations made by the
Compensation Committee, by execution of instruments in writing in such form as
are approved by the Compensation Committee.
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SECTION 4. DURATION OF AND COMMON STOCK SUBJECT TO PLAN.
(a) Term. The Plan shall be effective on April 18, 1997, subject to
approval by a plurality of the shares voting on approval of the Plan at the
Annual Meeting of Stockholders held on said date or any adjournment thereof. The
Plan shall terminate on March 31, 2007.
(b) Shares of Common Stock Subject to Plan. The maximum number of
shares of Common Stock with respect to which Awards may be granted under the
Plan, subject to adjustment as provided in Section 14 of the Plan, shall be
1,500,000 shares of the total authorized shares of the Common Stock. For the
purpose of computing the total number of shares of Common Stock available for
Awards under the Plan, there shall be counted against the foregoing limitation
the number of shares of Common Stock subject to issuance upon exercise or
settlement of Awards and the number of shares of Common Stock which equal the
value of Restricted Unit Grants and Performance Equity Grants and other
stock-based Awards in each case determined as of the dates on which such Awards
are granted. If any Awards are forfeited, terminated, settled in cash in lieu of
stock, exchanged for other Awards, or expire unexercised, the shares of Common
Stock which were theretofore subject to such Awards shall again be available for
Awards under the Plan to the extent of such forfeiture, termination, settlement,
exchange or expiration. Further, any shares of Common Stock which are used as
full or partial payment to the Company by a Participant of the purchase price of
shares of Common Stock upon exercise of Stock Options shall again be available
for Awards under the Plan, as shall any shares covered by Stock Appreciation
Rights which are not issued as payment upon exercise. Common Stock which may be
issued under the Plan may be either authorized and unissued shares or issued
shares which have been reacquired by the Company. No fractional shares of Common
Stock shall be issued under the Plan.
(c) Individual Award Limit. In no event shall a Participant receive an
Award or Awards during any one calendar year covering in the aggregate more than
150,000 shares of Common Stock.
SECTION 5. ELIGIBILITY. Only managerial and other key employees shall
be eligible to be granted Awards under the Plan. The Compensation Committee
shall, from time to time, (i) determine those managerial and other key employees
to whom Awards shall be granted and the conditions of each such Award or issue
and sale and (ii) grant such Awards. No member of the Compensation Committee
while serving as such shall be eligible to receive any Award hereunder.
SECTION 6. STOCK OPTIONS. Stock Options may be granted under the Plan
in the form of Incentive Stock Options or Non-Qualified Stock Options; and such
Stock Options shall be subject to the following terms and conditions and shall
contain such additional terms and conditions, not inconsistent with the express
provisions of the Plan, as the Compensation Committee shall determine:
(a) Grant. Stock Options may be granted under the Plan on such
terms and conditions not inconsistent with the provisions of the Plan
and in such form as the Compensation Committee may from time to time
approve. Stock Options may be granted alone, in addition to or in
combination with other Awards under the Plan.
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(b) Stock Option Price. The option exercise price per share of
Common Stock purchasable under a Stock Option shall be determined by
the Compensation Committee at the time of grant, but in no event shall
the exercise price of an Incentive Stock Option be less than 100% of
the Fair Market Value of the Common Stock on the date of the grant of
such Incentive Stock Option.
(c) Option Term. The term of each Stock Option shall be fixed
by the Compensation Committee; except that the term of Incentive Stock
Options shall not exceed 10 years after the date the Incentive Stock
Option is granted.
(d) Exercisability. A Stock Option shall be exercisable at
such time or times and subject to such terms and conditions as shall be
determined by the Compensation Committee at the date of grant.
(e) Method of Exercise. A Stock Option may be exercised, in
whole or in part, by a Participant's giving written notice of exercise
to the Company specifying the number of shares to be purchased. Such
notice shall be accompanied by payment in full of the purchase price in
cash or, if acceptable to the Compensation Committee in its sole
discretion, in shares of Common Stock already owned by the Participant,
or by surrendering outstanding Awards denominated in stock or stock
units.
(f) Special Rule for Incentive Stock Options. With respect to
Incentive Stock Options granted under the Plan, the aggregate Fair
Market Value (determined as of the date the Incentive Stock Option is
granted) of the number of shares with respect to which Incentive Stock
Options are exercisable for the first time by a Participant during any
calendar year shall not exceed $100,000 or such other limit as may be
required by the Code.
SECTION 7. STOCK APPRECIATION RIGHTS. Stock Appreciation Rights may be
granted under the Plan subject to the following terms and conditions and shall
contain such additional terms and conditions, not inconsistent with the express
terms of the Plan, as the Compensation Committee shall determine:
(a) Stock Appreciation Rights. A Stock Appreciation Right is
an Award entitling a Participant to receive an amount equal to (or if
the Compensation Committee shall so determine at the time of grant,
less than) the excess of the Fair Market Value of a share of Common
Stock on the date of exercise over the Fair Market Value of a share of
Common Stock on the date of grant of the Stock Appreciation Right, or
such other price as is set by the Compensation Committee, multiplied by
the number of shares of Common Stock with respect to which the Stock
Appreciation Right shall have been exercised.
5
<PAGE> 8
(b) Grant. A Stock Appreciation Right may be granted in
combination with, in addition to or completely independent of a Stock
Option or any other Award under the Plan.
(c) Exercise. A Stock Appreciation Right may be exercised by a
Participant in accordance with procedures established by the
Compensation Committee, except that in no event shall a Stock
Appreciation Right be exercisable within the first six months after the
date of grant. The Compensation Committee may also provide that a Stock
Appreciation Right shall be automatically exercised on one or more
specified dates.
(d) Form of Payment. Payment upon exercise of a Stock
Appreciation Right may be made in cash, in shares of Common Stock, or
any combination thereof, as the Compensation Committee shall determine;
provided, however, that any Stock Appreciation Right exercised upon or
subsequent to the occurrence of a Change in Control (as defined in
Section 15) shall be paid in cash.
SECTION 8. RESTRICTED AWARDS. Restricted Awards may be granted under
the Plan in the form of either Restricted Stock Grants or Restricted Unit
Grants. Restricted Awards shall be subject to the following terms and conditions
and shall contain such additional terms and conditions, not inconsistent with
the express provisions of the Plan, as the Compensation Committee shall
determine:
(a) Restricted Stock Grants. A Restricted Stock Grant is an
Award of shares of Common Stock to a Participant subject to such terms
and conditions as the Compensation Committee deems appropriate,
including, without limitation, restrictions on the sale, assignment,
transfer or other disposition of such shares and the requirement that
the Participant forfeit such shares back to the Company upon
termination of employment prior to vesting.
(b) Restricted Unit Grants. A Restricted Unit Grant is an
Award of units to be paid in cash upon vesting (with each unit having a
value equivalent to the Fair Market Value of one share of Common Stock)
granted to a Participant subject to such terms and conditions as the
Compensation Committee deems appropriate, including, without
limitation, the requirement that the Participant forfeit such units
upon termination of employment prior to vesting.
(c) Grants of Awards. Restricted Awards may be granted under
the Plan in such form and on such terms and conditions as the
Compensation Committee may from time to time approve. Restricted Awards
may be granted alone, in addition to or in combination with other
Awards under the Plan. Subject to the terms of the Plan, the
Compensation Committee shall determine the number of Restricted Awards
to be granted to a Participant and the Compensation Committee may
impose different terms and conditions on any particular Restricted
Award made to any Participant. Each Participant receiving a Restricted
Stock Grant shall be
6
<PAGE> 9
issued a stock certificate in respect of such shares of Common Stock.
Such certificate shall be registered in the name of such Participant,
shall be accompanied by a stock power duly executed by such
Participant, and shall bear an appropriate legend referring to the
terms, conditions and restrictions applicable to such Award; which
certificate evidencing such shares shall be held in custody by the
Company until the restrictions thereon shall have lapsed.
(d) Restriction Period. Restricted Awards shall provide that
in order for a Participant's rights to vest in such Awards, the
Participant must remain in the employment of the Company, subject to
relief for specified reasons, for a period of time commencing on the
date of the Award and ending on such later date or dates as the
Compensation Committee may designate at the time of the Award
("Restriction Period"). During the Restriction Period, a Participant
may not sell, assign, transfer, pledge, encumber or otherwise dispose
of shares of Common Stock received under a Restricted Stock Grant. The
Compensation Committee, in its sole discretion, may provide for the
lapse of restrictions in installments during the Restriction Period.
Upon expiration of the applicable Restriction Period (or lapse of
restrictions during the Restriction Period where the restrictions lapse
in installments), the Participant shall be entitled to receive his or
her Restricted Award or portion thereof, as the case may be.
(e) Payment of Awards. A Participant shall be entitled to
receive payment for a Restricted Unit Grant (or portion thereof) upon
expiration of the applicable Restriction Period. Payment in settlement
of a Restricted Unit Grant shall be made as soon as practicable
following the expiration of the Restriction Period in cash, in shares
of Common Stock equal to the number of units granted under the
Restricted Unit Grant with respect to which such payment is made, or in
any combination thereof, as the Compensation Committee in its sole
discretion shall determine. The Compensation Committee may also, in its
discretion, permit a Participant to elect to receive, in lieu of shares
of unrestricted stock at the conclusion of a Restriction Period, a cash
payment equal to the Fair Market Value of the Restricted Stock vesting
on the date the restrictions expire.
(f) Rights as a Stockholder. A Participant shall have, with
respect to the shares of Common Stock received under a Restricted Stock
Grant, all of the rights of a Stockholder of the Company, including the
right to vote the shares, and the right to receive any cash dividends.
Stock dividends issued with respect to the shares covered by a
Restricted Stock Grant shall be treated as additional shares under the
Restricted Stock Grant and shall be subject to the same restrictions
and other terms and conditions that apply to shares under the
Restricted Stock Grant with respect to which such dividends are issued.
SECTION 9. PERFORMANCE AWARDS. Performance Awards may be granted under
the Plan in the form of either Performance Equity Grants or Performance Unit
Grants. Performance Awards may be subject to the following terms and conditions
and may contain such additional
7
<PAGE> 10
terms and conditions, not inconsistent with the express provisions of the Plan,
as the Compensation Committee shall determine:
(a) Performance Equity Grants. A Performance Equity Grant is
an Award of units (with each unit equivalent in value to one share of
Common Stock as it varies throughout the term of the designated
performance period) to a Participant and may be subject to such terms
and conditions as the Compensation Committee deems appropriate,
including, without limitation, the requirement that the Participant
forfeit such units or a portion of such units in the event certain
performance criteria are not met within a designated period of time.
(b) Performance Unit Grants. A Performance Unit Grant is an
Award of units to be paid in cash upon vesting (with each unit
representing such monetary amount as designated by the Compensation
Committee) to a Participant subject to such terms and conditions as the
Compensation Committee deems appropriate, including, without
limitation, the requirement that the Participant forfeit such units or
a portion of such units in the event certain performance criteria are
not met within a designated period of time.
(c) Grants of Awards. Performance Awards may be granted under
the Plan in such form as the Compensation Committee may from time to
time approve. Performance Awards may be granted alone, in addition to
or in combination with other Awards under the Plan. Subject to the
terms of the Plan, the Compensation Committee shall determine the
number of Performance Awards to be granted to a Participant and the
Compensation Committee may impose different terms and conditions on any
particular Performance Award made to any Participant.
(d) Performance Goals and Performance Periods. Performance
Awards shall provide that in order for a Participant's rights to vest
in such Awards the Company or the Participant, or a combination
thereof, must achieve certain performance goals ("Performance Goals")
over a designated performance period ("Performance Period"). The
Performance Goals and Performance Period shall be established by the
Compensation Committee, in its sole discretion. The Compensation
Committee shall establish Performance Goals for each Performance Period
before, or as soon as practicable after, the commencement of the
Performance Period. The Compensation Committee may also establish a
schedule or formula for such Performance Period setting forth the
portion of the Performance Award which will be earned or forfeited
based on the degree of achievement of the Performance Goals actually
achieved or exceeded. In setting Performance Goals, the Compensation
Committee may use such measures of performance as it deems appropriate.
(e) Payment of Awards. In the case of a Performance Equity
Grant, the Participant shall be entitled to receive payment for each
unit earned in an amount equal to the Fair Market Value of a share of
Common Stock on the date on which
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the Compensation Committee determines the number of units earned by the
Participant. In the case of a Performance Unit Grant, the Participant
shall be entitled to receive payment for each unit earned in an amount
equal to the dollar value of each unit times the number of units
earned. Payment in settlement of a Performance Award shall be made as
soon as practicable following the conclusion of the respective
Performance Period in cash, in shares of Common Stock, or in any
combination thereof, as the Compensation Committee in its sole
discretion shall determine.
SECTION 10. OTHER STOCK-BASED AND COMBINATION AWARDS.
(a) The Compensation Committee may grant other Awards under the Plan
pursuant to which Common Stock is or may in the future be acquired, or Awards
denominated in stock units, including ones valued using measures other than
market value. Such other stock-based Awards may be granted either alone, in
addition to or in combination with any other type of Award granted under the
Plan.
(b) The Compensation Committee may also grant Awards under the Plan in
combination with other Awards or in exchange of Awards, or in combination with
or as alternatives to grants or rights under any other employee plan of the
Company, including the plan of any acquired entity.
(c) Subject to the provisions of the Plan, the Compensation Committee
shall have authority to determine the individuals to whom and the time or times
at which such Awards shall be made, the number of shares of Common Stock to be
granted or covered pursuant to such Awards, and any and all other conditions
and/or terms of the Awards.
SECTION 11. DEFERRAL ELECTIONS. The Compensation Committee may permit a
Participant to elect to defer his or her receipt of the payment of cash or the
delivery of shares of Common Stock that would otherwise be due to such
Participant by virtue of the exercise or earn out of an Award made under the
Plan. If any such election is permitted, the Compensation Committee may
establish rules and procedures for such payment deferrals, including the
possible (a) payment or crediting of reasonable interest on such deferred
amounts credited in cash, and (b) the payment or crediting dividend equivalents
in respect of deferrals credited in units of Common Stock.
SECTION 12. TERMINATION OF EMPLOYMENT. The terms and conditions under
which an Award may be exercised after a Participant's termination of employment
shall be determined by the Compensation Committee.
SECTION 13. NON-TRANSFERABILITY OF AWARDS. No Award under the Plan, and
no rights or interests therein, shall be assignable or transferable by a
Participant except by will or the laws of descent and distribution. During the
lifetime of a Participant, Stock Options and Stock Appreciation Rights are
exercisable only by, and payments in settlement of Awards will be payable only
to, the Participant or his or her legal representative.
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SECTION 14. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, ETC.
(a) The existence of the Plan and the Awards granted hereunder shall
not affect or restrict in any way the right or power of the Board or the
Stockholders of the Company to make or authorize any adjustment,
recapitalization, reorganization or other change in the Company's capital
structure or its business, any merger or consolidation of the Company, any issue
of bonds, other debentures, preferred or prior preference stocks, the
dissolution or liquidation of the Company or any sale or transfer of all or any
part of its assets or business, or any other corporate act or proceeding.
(b) In the event that a dividend shall be declared upon the Common
Stock payable in shares of Common Stock, the number of shares of Common Stock
then subject to any Award and the number of shares reserved for issuance
pursuant to the Plan but not yet covered by an Award shall be adjusted by adding
to each such share the number of shares which would be distributable thereon if
such share had been outstanding on the date fixed for determining the
Stockholders entitled to receive such stock dividend. In the event that the
outstanding shares of Common Stock shall be changed into or exchanged for a
different number or kind of shares of stock or other securities of the Company
or of another corporation, whether through reorganization, recapitalization,
stock split-up, combination of shares, merger or consolidation, then there shall
be substituted for each share of Common Stock subject to any Award and for each
share of Common Stock reserved for issuance pursuant to the Plan but not yet
covered by an Award, the number and kind of shares of stock or other securities
into which each outstanding share of Common Stock shall be so changed or for
which each such share shall be exchanged. In the event there shall be any change
other than as specified above in this Section 14, in the number or kind of
outstanding shares of Common Stock or of any stock or other securities into
which such Common Stock shall have been changed or for which it shall have been
exchanged, then if the Compensation Committee shall in its sole discretion
determine that such change equitably requires an adjustment in the number or
kind of shares theretofore reserved for issuance pursuant to the Plan but not
yet covered by an Award and of the shares then subject to an Award or Awards,
such adjustment shall be made by the Compensation Committee and shall be
effective and binding for all purposes of the Plan and each agreement entered
into with a Participant under the Plan. In the case of any such substitution or
adjustment as provided for in this Section 14, the Award price for each share
covered thereby prior to such substitution or adjustment will be the Award price
for all shares of stock or other securities which shall have been substituted
for such share or to which such share shall have been adjusted pursuant to this
Section 14. No adjustment or substitution provided for in this Section 14 shall
require the Company in any agreement with a Participant to issue a fractional
share and the total substitution or adjustment with respect to each agreement
with a Participant shall be limited accordingly. In the event that the number of
shares of Common Stock subject to an Award is adjusted pursuant to the
provisions of this Section 14, then any Stock Appreciation Rights related to
such Award shall be appropriately and equitably adjusted.
SECTION 15. CHANGE IN CONTROL.
(a) In the event of a Change in Control (as defined below) of the
Company, (i) all Stock Options or Stock Appreciation Rights then outstanding
shall become fully exercisable as of the date
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of the Change in Control, whether or not then exercisable, (ii) all restrictions
and conditions of all Restricted Stock Grants and Restricted Unit Grants then
outstanding shall be deemed satisfied as of the date of the Change in Control,
and (iii) all Performance Equity Grants and Performance Unit Grants shall be
deemed to have been fully earned as of the date of the Change in Control.
(b) "Change in Control" means the acquisition or contracting to acquire
or otherwise control beneficial ownership of in excess of thirty-five percent
(35%) of the then outstanding voting securities of the Company by any person,
corporation or other entity and its "affiliates" (as defined in Rule 13d-5(b)(1)
promulgated under the Exchange Act, as amended from time to time) excluding,
however, for purposes of determining such ownership (but not the number of
shares outstanding) voting securities beneficially owned by members of the Van
Every Family and any trust, custodian or fiduciary account for the benefit of
any one or more members of the Van Every Family. Van Every Family means the
lineal descendants of Salem A. Van Every, Sr. (whether by blood or adoption) and
their spouses.
SECTION 16. AMENDMENT AND TERMINATION. Without further approval of the
Stockholders, the Board may at any time terminate the Plan, or may amend it from
time to time in such respects as the Board may deem advisable, except that the
Board may not, without approval of the Stockholders, make any amendment which
would (i) require Stockholder approval for Incentive Stock Options granted or to
be granted under the Plan to qualify as incentive stock options within the
meaning of Section 422 of the Code or (ii) require Stockholder approval under
applicable law or the rules of any national securities exchange upon which the
Common Stock is listed at the time such amendment is proposed.
SECTION 17. MISCELLANEOUS.
(a) Tax Withholding. The Company shall have the right to deduct from
any settlement, including the delivery or vesting of shares, made under the Plan
any federal, state or local taxes of any kind required by law to be withheld
with respect to such payments or to take such other action as may be necessary
in the opinion of the Company to satisfy all obligations for the payment of such
taxes. If Common Stock is used to satisfy tax withholding, such stock shall be
valued based on the Fair Market Value when the tax withholding is required to be
made.
(b) No Right To Employment. Neither the adoption of the Plan nor the
granting of any Award hereunder shall confer upon any employee of the Company
any right to continued employment with the Company, nor shall it interfere in
any way with the right of the Company to terminate the employment of any of its
employees at any time, with or without cause.
(c) Unfunded Plan. The Plan shall be unfunded and the Company shall not
be required to segregate any assets that may at any time be represented by
Awards under the Plan. Any liability of the Company to any person with respect
to any Award under the Plan shall be based solely upon any contractual
obligations that may be effected pursuant to the Plan. No such obligation of the
Company shall be deemed to be secured by any pledge of, or other encumbrance on,
any property of the Company.
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(d) Payments to Trust. The Compensation Committee is authorized to
cause to be established a trust agreement or several trust agreements whereunder
the Company may make payments of amounts due or to become due to Participants in
the Plan.
(e) Engaging in Competition With Company. In the event a Participant's
employment with the Company is terminated for any reason whatsoever, and within
18 months after the date thereof such Participant accepts employment with any
competitor of, or otherwise engages in competition with, the Company, the
Compensation Committee, in its sole discretion, may require such Participant to
return to the Company the economic value of any Award which is realized or
obtained (measured at the date of exercise, vesting or payment) by such
Participant at any time during the period beginning on that date which is six
months prior to the date of such Participant's termination of employment with
the Company.
(f) Securities Law Restrictions. No shares of Common Stock shall be
issued under the Plan unless counsel for the Company shall be satisfied that
such issuance will be in compliance with applicable Federal and state securities
laws. Certificates for shares of Common Stock delivered under the Plan may be
subject to such stop-transfer orders and other restrictions as the Compensation
Committee may deem advisable under the rules, regulations, and other
requirements of the Securities and Exchange Commission, any stock exchange upon
which the Common Stock is then listed, and any applicable federal or state
securities law. The Compensation Committee may cause a legend or legends to be
put on any such certificates to make appropriate reference to such restrictions.
(g) Award Agreement. Each Participant receiving an Award under the Plan
shall enter into an agreement with the Company in a form specified by the
Compensation Committee agreeing to the terms and conditions of the Award and
such related matters as the Compensation Committee shall, in its sole
discretion, determine.
(h) Costs of Plan. The costs and expenses of administering the Plan
shall be borne by the Company.
(i) Governing Law. The Plan and all actions taken thereunder shall be
governed by and construed in accordance with the laws of the State of North
Carolina.
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Exhibit 5
KENNEDY COVINGTON LOBDELL & HICKMAN, L.L.P.
ATTORNEYS AT LAW
NationsBank Corporate Center
Suite 4200
100 North Tryon Street
Charlotte, North Carolina 28202-4006
Telephone 704/331-7400
Facsimile 704/331-7598
April 21, 1997
Lance, Inc.
Post Office Box 32368
Charlotte, North Carolina 28232
Gentlemen:
You have requested our opinion in connection with the registration
under the Securities Act of 1933, as amended, of 1,500,000 shares of the
$.83-1/3 par value Common Stock (the "Common Stock") of Lance, Inc. (the
"Company"), a North Carolina corporation, by the Registration Statement on Form
S-8 (the "Registration Statement") to be filed by you with the Securities and
Exchange Commission in connection with the Lance, Inc. 1997 Incentive Equity
Plan.
We have made such investigations of law, examined original copies,
certified or otherwise identified to our satisfaction, of such documents,
corporate records, certificates of public officials and other instruments, and
received such statements from officers and representatives of the Company, as we
have deemed necessary for purposes of this opinion.
Based upon the foregoing, we are of the opinion that the 1,500,000
shares of the Common Stock covered by the Registration Statement have been duly
and validly authorized and will be validly issued, fully paid and nonassessable
when issued in accordance with the Lance, Inc. 1997 Incentive Equity Plan and
receipt by the Company of the consideration therefor.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Sincerely,
/s/ KENNEDY COVINGTON LOBDELL & HICKMAN, L.L.P.
<PAGE> 1
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Lance, Inc.:
We consent to incorporation by reference in the Registration Statement of Lance,
Inc. on Form S-8, filed on April 21, 1997 related to the Lance, Inc. 1997
Incentive Equity Plan, of our report dated February 18, 1997 relating to the
consolidated balance sheets of Lance, Inc., and subsidiaries as of December 28,
1996 and December 30, 1995, and the related consolidated statements of income
and retained earnings and cash flows for the three-year period ended December
28, 1996, which report is incorporated by reference in the December 28, 1996
annual report on Form 10-K of Lance, Inc.
Our report refers to the adoption of the provisions of the Financial Accounting
Standards Board's Statement of Financial Accounting (SFAS) No. 121, "Accounting
for the Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed
of," during the fiscal year ended December 30, 1995. Our report also refers to
the adoption of the provisions of the American Institute of Certified Public
Accountants' Statement of Position 93-7, "Reporting on Advertising Costs" and
the provisions of the Financial Accounting Standards Board's Statement of
Financial Accounting Standards (SFAS) No. 115 "Accounting for Certain
Investments in Debt and Equity Securities," during the fiscal year ended
December 31, 1994.
/s/ KPMG PEAT MARWICK LLP
Charlotte, North Carolina
April 21, 1997
