<PAGE> 1
Registration No. 333-
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
WSMP, INC.
(exact name of Registrant as specified in its charter)
POST OFFICE BOX 399
CLAREMONT, NORTH CAROLINA 28610
(704)459-7626
(address and telephone number of Registrant's principal executive offices)
NORTH CAROLINA 56-0945643
(State of Incorporation) (I.R.S. Employer
Identification No.)
WSMP, INC. 1997 INCENTIVE STOCK OPTION PLAN
(Full Title of Plan)
MATTHEW V. HOLLIFIELD
WSMP, INC.
P. O. BOX 399
CLAREMONT, NORTH CAROLINA 28610
(704)459-7626
(Name, address, and telephone number of agent for service of process)
Copy to:
J. R. SIMPSON II
Simpson Aycock, P.A.
204 East McDowell Street
Morganton, North Carolina 28655
(704)437-9744
--------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
Title of Proposed Maximum Proposed Amount of
Securities to Amount to Offering Price Maximum Aggregate Registration
be Registered Be Registered Per Share(1) Offering Price(1) Fee
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 500,000 $15.50 7,750,000 $2,422
- ------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated pursuant to Rule 457(h) solely for the purpose of calculating the
registration fee based upon the mean of the closing bid and asked quotations
for the Common Stock on July 24, 1997, as reported by NASDAQ.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I of Form S-8 to be contained in the
Section l0(a) prospectus is omitted from this Registration Statement in
accordance with Rule 428 under the Securities Act of l933, as amended (the
"Securities Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents filed by WSMP, Inc. ("WSMP") with the
Securities and Exchange Commission are incorporated in this Registration
Statement by reference, except to the extent that any statement or information
therein is modified, superseded or replaced by information contained in any
other subsequently filed document incorporated by reference.
1. The Registrant's latest annual report filed pursuant to Section
l3(a) or l5(d) of the Securities Exchange Act of l934, as amended (the
"Exchange Act").
2. All other reports filed pursuant to Section l3(a) or l5(d) of the
Exchange Act since the end of the fiscal year covered by the annual reports
referred to in (l), above.
3. The description of the common stock of the Registrant (the "Common
Stock") contained in a Registration Statement filed under the Exchange Act,
including any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Registrant or the Plan
pursuant to Section l3(a), l3(c), l4 and l5(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all shares of
Common Stock offered hereby have been sold or which deregisters all shares of
Common Stock then remaining unsold, shall be deemed to be incorporated by
reference herein and to be part hereof from the date of the filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable
1
<PAGE> 3
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS
There are no provisions in the Registrant's Restated Articles of
Incorporation, and no contracts between the Registrant and its directors and
officers nor resolutions adopted by the Registrant, relating to
indemnification. However, in accordance with the provisions of the North
Carolina Business Corporation Act (the "Act"), the Registrant has by resolution
of its Board of Directors provided that, in addition to the indemnification of
directors and officers otherwise provided by the Act, the Registrant shall to
the fullest extent allowed by law, indemnify its directors, executive officers
and certain other designated officers against any and all liability and
litigation expenses, including reasonable attorney's fees, arising out of their
status or activities as directors or officers, except for liability or
litigation expense incurred on account of activities that were at the time
known or reasonably should have been known by such director or officer to be
clearly in conflict with the best interests of the Registrant. As authorized by
statute, the Registrant also maintains insurance on behalf of its directors and
officers against liability asserted against such persons in such capacity
whether or not such directors or officers have the right to indemnification
pursuant to statute, resolution or otherwise.
In addition to the above-described provisions, Section 55-8-50 through
55-8-58 of the Act contain provisions prescribing the extent to which directors
and officers shall or may be indemnified. Section 55-8-51 of the Act permits a
corporation, with certain exceptions, to indemnify a present or former director
against liability if (i) he conducted himself in good faith, (ii) he reasonably
believed that his conduct in his official capacity with the corporation was in
its best interests and in all other cases his conduct was at least not opposed
to the corporation's best interest, and (iii) in the case of any criminal
proceeding, he had no reasonable cause to believe his conduct was unlawful. A
corporation may not indemnify a current or former director in connection with a
proceeding by or in the right of the corporation in which the director was
adjudged liable to the corporation or in connection with a proceeding charging
improper personal benefit to him. The above standard of conduct is determined
by the Board of Directors, or a committee thereof or special legal counsel or
the shareholders as prescribed in Section 55-8-55.
Sections 55-8-52 and 55-8-56 of the Act require a corporation to
indemnify a director of officer in the defense of any proceeding to which he
was a party because of his capacity as a director or officer against reasonable
expenses when he is wholly successful in his defense, unless the articles of
incorporation provide otherwise. Upon application, the court
2
<PAGE> 4
may order indemnification of the director or officer if he is adjudged fairly
and reasonably so entitled under Section 55-8-54. Section 55-8-56 allows a
corporation to indemnify and advance expenses to an officer, employee or agent
who is not a director to the same extent as a director or as otherwise set
forth in the corporation's articles of incorporation or bylaws or by resolution
of the Board of Directors.
In addition, Section 55-8-57 permits a corporation to provide for
indemnification of directors, officers, employees or agents, in its articles of
incorporation or bylaws or by contract or resolution, against liability in
various proceedings and to purchase and maintain insurance policies on behalf
of these individuals.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable
ITEM 8. EXHIBITS
5 Opinion and Consent of Simpson Aycock, P. A.
23.1 Consent of Deloitte & Touche.
23.2 Consent of Simpson Aycock, P.A., is included with their
opinion filed as Exhibit 5.
24 Power of attorney of certain officers and directors of the
Registrant.
99 WSMP, Inc. l997 Incentive Stock Option Plan.
ITEM 9. UNDERTAKINGS.
(A) The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by section 10(a)(3)
of the Securities Act of 1993;
(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;
3
<PAGE> 5
(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;
(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 l933, each filing of the
Registrant's Annual Report pursuant to Section l3(a) or Section l5(d) of the
Securities Exchange Act of l934 (and, where applicable, each filing of the
Plan's annual report pursuant to Section l5(d) of the Securities Exchange Act
of l934), 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 l933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the 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
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of l933, 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 Claremont, State of North Carolina, on this 30th
day of July, 1997.
WSMP, INC.
By:/s/David R. Clark*
-----------------------------
David R. Clark
President
Pursuant to the requirements of the Securities Act of l933, this
Registration Statement has been signed by the following persons in the
capacities indicated on July 30, 1997.
<TABLE>
<CAPTION>
Signature Capacity
--------- --------
<S> <C>
/s/Richard F. Howard* Chairman of the Board of
- --------------------------------- Directors, Secretary of the Corporation
Richard F. Howard
/s/James C. Richardson, Jr.* Vice Chairman of the Board of
- --------------------------------- Directors
James C. Richardson, Jr. (Principal Executive Officer)
/s/David R. Clark* President and Director
- --------------------------------- (Principal Operating Officer)
David R. Clark
/s/Matthew V. Hollifield* Vice-President of Finance
- --------------------------------- (Principal Financial and
Matthew V. Hollifield Accounting Officer)
/s/James M. Templeton* Director
- ---------------------------------
James M. Templeton
</TABLE>
5
<PAGE> 7
/s/Bobby G. Holman* Director
- ---------------------------------
Bobby G. Holman
/s/William R. McDonald* Director
- ---------------------------------
William R. McDonald
/s/Lewis C. Lanier* Director
- ---------------------------------
Lewis C. Lanier
/s/Richard F. Hendrickson* Director
- ---------------------------------
Richard F. Hendrickson
/s/E. Edwin Bradford* Director
- ---------------------------------
E. Edwin Bradford
Pursuant to the requirements of the Securities Act of l933, the Plan
has duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Claremont, State of
North Carolina, on the 30th day of July, 1997.
WSMP, INC. 1997 INCENTIVE STOCK OPTION PLAN
By:/s/ Richard F. Howard*
----------------------------------------
Richard F. Howard
*
by: /s/ J. R. Simpson II
-------------------------------------
J. R. Simpson II
Attorney in Fact
6
<PAGE> 8
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Sequentially
Number Exhibit Numbered Page
- ------ ------- -------------
<S> <C> <C>
5 Opinion and Consent of Simpson Aycock, P.A.
23.1 Consent of Deloitte & Touche.
23.2 Consent of Simpson Aycock, P. A., is included
with their opinion filed as Exhibit 5.
24 Power of Attorney of certain officers and
directors of the Registrant.
99 WSMP, Inc. l997 Incentive Stock Option Plan
</TABLE>
7
<PAGE> 1
EXHIBIT 5
[SIMPSON AYCOCK, P.A. LETTERHEAD]
July 30, 1997
WSMP, Inc.
P. O. Box 399
Claremont, North Carolina 28610
Re: Registration Statement on Form S-8
WSMP, Inc. 1997 Incentive Stock Option Plan
Gentlemen:
We have represented WSMP, Inc. (the "Company") in connection with the
Company's offering of participation in its WSMP, Inc. 1997 Incentive Stock
Option Plan (the "Plan") and the offer for sale thereunder of 500,000 shares of
its Common Stock (such shares hereinafter being referred to collectively as the
"Shares"). We have assisted the Company in the preparation of a registration
statement on Form S-8 under the Securities Act of 1933, as amended (the "Act"),
filed with the Securities and Exchange Commission on July 30, 1997, (the
"Registration Statement"). This opinion is being rendered pursuant to the
requirements of Item 8 of Form S-8 and Rule 601(a) and Rule 601(b)(5) of
Regulation S-K under the Act.
We have examined and are familiar with the records relating to the
organization of the Company, including its certificate of incorporation, bylaws
and all amendments thereto, and the records of all proceedings taken by the
Board of Directors and shareholders of the Company pertinent to the rendering
of this opinion.
Based on the foregoing, and having regard for such legal
considerations as we deem relevant it is our opinion that, when sold pursuant
to the provisions of the Plan, the Shares will be legally issued, fully paid
and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Yours very truly,
SIMPSON AYCOCK, P.A.
James R. Simpson II
JRS:mjs
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
WSMP, Inc. on Form S-8 of our report dated May 19, 1997, appearing in and
incorporated by reference in the Annual Report on Form 10-K of WSMP, Inc. for
the year ended February 28, 1997.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Hickory, North Carolina
July 29, 1997
<PAGE> 1
EXHIBIT 24
NORTH CAROLINA
CATAWBA COUNTY POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned corporation,
being WSMP, Inc., a North Carolina corporation, hereinafter referred to as the
"Company", the WSMP, Inc. 1997 Incentive Stock Option Plan, hereinafter
referred to as the "Plan", and the undersigned individuals, do hereby in the
capacity shown below, individually appoint David R. Clark, Matthew V.
Hollifield, and James R. Simpson II, and each of them, the agent and
attorney-in-fact for each of the undersigned, to execute and deliver, for and
on behalf of the undersigned, a Registration Statement to be filed by the
Company in 1997 on Form S-8, with the Securities and Exchange Commission
pursuant to the provisions of the Securities Act of 1933, as amended, and
covering the Company's registration of the Plan and 500,000 shares of its
common stock, and any and all amendments and post-effective amendments to such
Registration Statement.
This Power of Attorney may be executed in multiple counterparts, each
of which shall be deemed an original, but which taken together shall constitute
one instrument.
IN WITNESS WHEREOF, the undersigned corporation has caused this Power
of Attorney to be signed in its corporate name by its President and attested by
its Secretary and its corporate seal to be hereunto affixed, the Plan has
caused this Power of Attorney to be signed by a member of its administering
Committee hereunto duly authorized, and the undersigned individuals have set
their hands and seals to the foregoing Power of Attorney, this 15th day of May,
1997.
<PAGE> 2
WSMP, INC.
By:/s/ David R. Clark
------------------------------
President
ATTEST:
/s/ Richard F. Howard
- ------------------------------------
- --------- Secretary
(corporate seal)
WSMP, INC.
1997 INCENTIVE STOCK OPTION PLAN
By:/s/ Richard F. Howard
--------------------------------
Chairman of the Board of Directors
<TABLE>
<CAPTION>
<S> <C>
/s/ Richard F. Howard /s/ James C. Richardson, Jr.
- -------------------------------- -------------------------------------
Richard F. Howard, Chairman James C. Richardson, Jr., Vice
of the Board of Directors, Chairman of the Board of Directors
Secretary of the Company (Principal Executive Officer)
/s/ Matthew V. Hollifield /s/ David R. Clark
- -------------------------------- -------------------------------------
Matthew V. Hollifield, Vice David R. Clark, President and
President of Finance Director
(Principal Accounting Officer, (Principal Operating Officer)
Principal Financial Officer)
/s/ James M. Templeton /s/ Lewis C. Lanier
- --------------------------------- -------------------------------------
James M. Templeton, Director Lewis C. Lanier, Director
/s/ Richard F. Hendrickson /s/ William R. McDonald
- --------------------------------- -------------------------------------
Richard F. Hendrickson, William R. McDonald, Director
Director
/s/ E. Edwin Bradford /s/ Bobby G. Holman
- --------------------------------- -------------------------------------
E. Edwin Bradford, Director Bobby G. Holman, Director
</TABLE>
<PAGE> 3
STATE OF NORTH CAROLINA
COUNTY OF BURKE
I, Martha J. Stewart, Notary Public for said County and State,
certify that Richard F. Howard personally appeared before me this day and
acknowledged that he is Secretary of WSMP, Inc., a North Carolina corporation,
and that by authority duly given and as the act of the corporation, the
foregoing instrument was signed in its name by David R. Clark, its President,
sealed with its corporate seal and attested by him as its Secretary.
Witness my hand and seal, this the 15th day of May, 1997.
/s/ Martha J. Stewart
-----------------------------
NOTARY PUBLIC
My Commission Expires: 6-1-2001
---------------------
STATE OF NORTH CAROLINA
COUNTY OF BURKE
I, Martha J. Stewart, a Notary Public, do hereby certify that the
aforesaid individuals personally appeared before me this day and acknowledged
the due execution of the foregoing instrument for the purposes therein
contained.
Witness my hand and seal, this 15th day of May, 1997.
/s/ Martha J. Stewart
-----------------------------------
Notary Public
My commission expires: 6-1-2001
----------------------
<PAGE> 1
EXHIBIT 99
WSMP, INC.
1997 INCENTIVE STOCK OPTION PLAN
1. PURPOSE OF THE PLAN
This Incentive Stock Option Plan (hereinafter called the "Plan") for
WSMP, INC. (hereinafter called the "Company") is intended to advance the
interests of the Company by providing officers and other key employees who have
substantial responsibility for the direction and management of the Company with
additional incentive for them to promote the success of the business, to
perform at increasing levels of effectiveness, to increase their proprietary
interest in the success of the Company with the interest and outlook of an
owner, and to encourage them to remain in its employ. The above aims will be
effectuated through the granting of certain stock options. It is intended that
options issued under the Plan and designated by the Committee under Section
3(b) will qualify as Incentive Stock Options (hereinafter called "ISOs") under
Section 422 of the Internal Revenue Code of 1986, and the terms of the Plan
shall be interpreted in accordance with this intention.
2. ADMINISTRATION OF THE PLAN
The Board of Directors shall appoint a Stock Option Plan Committee
(hereinafter called the "Committee") which shall consist of the members of the
Executive Compensation Committee, none of which shall be eligible to
participate in this Plan. Subject to the provisions of the Plan, the Committee
shall have plenary authority, in its discretion: (a) to determine the employees
of the Company and its subsidiaries (from among the class of employees eligible
under Section 3 to receive options under the Plan) to whom options shall be
granted; (b) to determine the time or times at which options shall be granted;
(c) to determine the option price of the shares subject to each option, which
price shall not be less than the minimum specified in Section 5; (d) to
determine (subject to Section 7) the time or times when each option shall
become
<PAGE> 2
exercisable and the duration of the exercise period; and (e) to interpret the
Plan and to prescribe, amend, and rescind rules and regulations relating to it.
The Board may from time to time appoint members of the Committee in
substitution for members previously appointed and may fill vacancies, however
caused, in the Committee; provided, however, that at all times at least one
member shall be a Director of the Company. The Committee shall select one of
its members as its chairman and shall hold its meetings at such times and
places as it shall deem advisable. All action of the Committee shall be taken
by unanimous vote of its members. Any action may be taken by a written
instrument signed by all the members of the Committee, and action so taken
shall be fully as effective as if it had been taken by a unanimous vote of the
members at a meeting duly called and held. The Committee may appoint a
secretary to keep minutes of its meetings and shall make such rules and
regulations for the conduct of its business as it shall deem advisable.
3. ELIGIBILITY AND LIMITATION ON OPTIONS GRANTED UNDER THE PLAN
(a) Options will be granted only to persons who are key employees of
the Company or a subsidiary corporation of the Company. The term "key
employees" shall include officers, executives, supervisory personnel, and store
managers, as well as other employees of the Company or a subsidiary corporation
of the Company. The term "subsidiary corporation" shall, for the purposes of
this Plan be defined in the same manner as such term is defined in Section
425(f) of the Internal Revenue Code.
(b) At the time of the grant of each option under this Plan, the
Committee shall determine whether such option is to be designated as an ISO or
as a non-statutory stock option. If an option is to be so designated as an ISO,
then no option granted to any employee, who at the time of such grant, owns
stock possessing more than ten (10%) percent of the total combined voting power
of
Page 2
<PAGE> 3
all classes of stock of the Company or any of its subsidiaries, may be
designated as an ISO, unless at the time of such grant, the option price is
fixed at not less than one hundred ten (110%) percent of the fair market value
of the stock subject to the option, and the exercise of such option is
prohibited by its terms after the expiration of five (5) years from the date
such option is granted.
(c) If an option is to be designated as an ISO, it must be granted
within ten (10) years from the earlier of the date this plan is adopted and the
date this Plan is approved by the shareholders.
(d) The aggregate fair market value of the stock for which any
employee may exercise options designated as ISOs in any calendar year (under
this or any other stock option plan established by the Company or a subsidiary
corporation of the Company) shall not exceed $100,000.
4. SHARES OF STOCK SUBJECT TO PLAN
There will be reserved for use upon the exercise of options to be
granted from time to time under the Plan (subject to the provisions of Section
12) an aggregate of 500,000 shares of the Common Stock of the Company
(hereinafter called the "Common Stock"), which shares may be in whole or in
part, as the Board of Directors of the Company (hereinafter called the "Board")
shall from time to time determine, authorized but unissued shares of the Common
Stock or issued shares of the Common Stock which shall have been reacquired by
the Company. Any shares subject to an option under the Plan, which option for
any reason expires or is terminated unexercised as to such shares, may again be
subjected to an option under the Plan.
5. OPTION PRICE
The purchase price under each option issued shall be determined by
the Committee at the time the option is granted, but
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<PAGE> 4
in no event shall such purchase price be less than 100 percent of the fair
market value of the Company's Common Stock on the date of grant (or less than
110% of the fair market value of the Common Stock, if issued pursuant to
Section 3(b)).
The term "fair market value" shall be defined as the closing market
price of said Common Stock on the National Association of Securities Dealers
Automated Quotation (NASDAQ) System on the date of the grant of the option, or,
if there be no sales on such date, on the most recent date upon which such
stock was traded.
6. DILUTION OR OTHER CAPITAL ADJUSTMENT
In the event that additional shares of Common Stock are issued
pursuant to a stock split or a stock dividend, the number of shares of Common
Stock then covered by each outstanding option granted hereunder shall be
increased proportionately with no increase in the total purchase price of the
shares then so covered, and the number of shares of Common Stock reserved for
the purpose of the Plan shall be increased by the same proportion.
In the event that the shares of Common Stock of the Company from time
to time issued and outstanding are reduced by a combination of shares, the
number of shares of Common Stock then covered by each outstanding option
granted hereunder shall be reduced proportionately with no reduction in the
total price of the shares then so covered, and the number of shares of Common
Stock reserved for the purposes of the Plan shall be reduced by the same
proportion.
In the event that the Company should transfer assets to another
corporation and distribute the stock of such other corporation without the
surrender of Common Stock of the Company, and if such distribution is not
taxable as a dividend and no gain or loss is recognized by reason of Section
355 of the Internal Revenue Code of 1986, or some similar section, then the
total purchase price of the shares covered by each outstanding option shall be
reduced by an amount which bears the same ratio to the
Page 4
<PAGE> 5
total purchase price then in effect as the market value of the stock
distributed in respect of a share of the Common Stock of the Company, immediate
following the distribution, bears to the aggregate of the market value at such
time of a share of the Common Stock of the Company and the stock distributed in
respect thereof.
In the event of any other change in corporate structure or
shares of the Company or the resulting entity, or other spin-off, split-up,
sale or division of business or addition to business of the Company, the
Committee shall make such equitable adjustment, if any, as it deems appropriate
in the number, option price, and kind of shares authorized by this Plan or in
the number, option price and kind of shares covered by the options granted.
All such adjustments shall be made by the Committee, whose
determination upon the same shall be final and binding upon the optionee. No
fractional shares shall be issued, and any fractional shares resulting from the
computations pursuant to this Section 6 shall be eliminated from the respective
option. No adjustment shall be made for cash dividends or the issuance to
stockholders of rights to subscribe for additional Common Stock or other
securities.
7. PERIOD OF OPTION AND CERTAIN LIMITATIONS ON RIGHT TO EXERCISE
(a) All options issued under the Plan shall be for such period as the
Committee shall determine, but for not more than ten (10) years from the date
of grant thereof.
(b) The period of the option, once it is granted, may be reduced only
as provided for in Section 9 in connection with the termination of employment
or death of the optionee or in Section 7(c) in the case of less than
satisfactory performance.
(c) Subject to Section 9 herein, the period during which each option
may be exercised shall be fixed by the Committee at the time such option is
granted, but such exercise period shall begin not less than one year from the
date of grant and shall expire not
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<PAGE> 6
later than ten years from the date the option is granted.
Subject to the foregoing, the Committee may, in its sole discretion,
(i) prescribe longer time periods and additional requirements with respect to
the exercise of an option and (ii) terminate in whole or in part such portion
of any option as has not yet become exercisable at the time of termination if
it determines that the optionee is not performing satisfactorily the duties to
which he was assigned on the date the option was granted or duties of at least
equal responsibility. No option may be exercised unless the optionee is at the
time of such exercise in the employ of the Company or of a subsidiary
corporation of the Company and shall have been continuously so employed since
the grant of his option. Absence or leave approved by the management of the
Company shall not be considered an interruption of employment for any purpose
under the Plan.
(d) Each option granted under the Plan may be exercised only after
one year of continued employment by the Company or one of its subsidiaries
immediately following the date the option is granted and, except as provided in
Section 9, only during the continuance of the optionee's employment with the
Company or one of its subsidiaries. Subject to the foregoing limitations and
the terms and conditions of the option agreement, each option shall be
exercisable in whole or in part in installments at such time or times as the
Committee may prescribe and specify in the applicable option agreement.
(e) The exercise of any option shall also be contingent upon receipt
by the Company of cash or certified bank check to its order in an amount equal
to the full option price of the shares being purchased, or at the discretion of
the Committee, by surrender of other shares of common stock of the Company
having a fair market value at date of exercise equal to the purchase price of
the option being exercised.
(f) No optionee or his legal representative, legatees, or
distributees, as the case may be, will be, or will be deemed to be, a holder of
any share subject to an option unless and until
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<PAGE> 7
certificates for such shares are issued to him or them under the terms of the
Plan. No adjustment shall be made for dividends or other rights for which the
record date is prior to the date such stock certificate is issued.
(g) In no event may an option be exercised after the expiration of
its term.
(h) Exercise of an option shall result in a decrease in the number of
shares of Common Stock which thereafter may be available under the Plan by the
number of shares as to which the option is exercised.
(i) Notwithstanding any provision herein to the contrary, any options
which have been granted by the Committee may be designated at that time by the
Committee to be immediately exercisable in full upon the occurrence of any of
the following events:
(1) Any agreement of merger or consolidation of the Company
with or into any other corporation which is required by law to be approved by
shareholders;
(2) Any sale, lease, transfer, spin-off, split-up, or other
disposition or division by the Company of all or any substantial part of the
assets of the Company to any other corporation, person or entity; or
(3) Any issuance or delivery of securities of the Company
in exchange or payment for any securities, properties or assets of any other
persons in a transaction in which the authorization or approval of the
shareholders of the Company is required by law. If such options have previously
been designated as ISOS, and if exercised in full would exceed the annual
limits for ISOs as set forth in Section 3(d), then to the extent such options
exceed such limits, they shall be redesignated as non-statutory stock options.
(j) Notwithstanding anything herein to the contrary, options shall
always be granted and exercised in such a manner as to conform to the
provisions of Rule 16b-3, or any replacement rule, adopted pursuant to the
provisions of the Securities Exchange Act of 1934 as the same now exists or
may, from time to time, be amended.
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(k) The Committee may, in the Committee's sole discretion, accelerate
the vesting schedule for outstanding options, or designate outstanding options
to be immediately exercisable in full.
8. ASSIGNABILITY
Each option granted under this Plan shall be transferrable only by
will or the laws of descent and distribution and shall be exercisable, during
his lifetime, only by the employee to whom the option is granted. Except as
permitted by the preceding sentence, no option granted under the Plan or any of
the rights and privileges thereby conferred shall be transferred, assigned,
pledged, or hypothecated in any way (whether by operation of law or otherwise),
and no such option, right, or privilege shall be subject to execution,
attachment or similar process. Upon any attempt so to transfer, assign, pledge,
hypothecate, or otherwise dispose of the option, or of any right or privilege
conferred thereby, contrary to the provisions hereof, or upon the levy of any
attachment or similar process upon such option, right or privilege, the option
and such rights and privileges shall immediately become null and void.
9. EFFECT OF TERMINATION OF EMPLOYMENT OR DEATH
(a) In the event of the termination of employment of an optionee
either by reason of (i) a discharge for cause or (ii) voluntary separation on
the part of the optionee and without consent of his employing company or
companies, any option or options theretofore granted to him under this Plan to
the extent not theretofore exercised by him shall forthwith terminate.
(b) In the event of the termination of employment of an optionee
(otherwise than by reason of the optionee's death) any option or options
granted to him under the Plan to the extent not theretofore exercised shall be
deemed cancelled and terminated forthwith, except that, subject to the
provisions of section (a) of this Section, such optionee may exercise any
options theretofore granted
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to him, which have not then expired and which are otherwise exercisable within
the provisions of Section 7(c) hereof, within three (3) months after such
termination.
(c) In the event that an optionee shall die while employed by the
Company or by any subsidiary corporation of the Company any option or options
granted to him under this Plan and not theretofore exercised by him or expired
shall be exercisable by the estate of the optionee or by any person who
acquired such option by bequest or inheritance from the optionee in full,
notwithstanding Section 7(c), at any time within one (1) year after the death
of the optionee. References hereinabove to the optionee shall be deemed to
include any person entitled to exercise the option after the death of the
optionee under the terms of this Section.
10. LISTING AND REGISTRATION OF SHARES
Each option shall be subject to the requirement that if at any time
the Stock Option Committee shall determine, in its discretion, that the
listing, registration, or qualification of the shares covered thereby upon any
securities exchange or under any state or federal law or the consent or
approval of any governmental regulatory body, is necessary or desirable as a
condition of, or in connection with, the granting of such option or the issue
or purchase of shares thereunder, such option may not be exercised in whole or
in part unless and until such listing, registration, qualification, consent, or
approval shall have been effected or obtained free of any conditions not
acceptable to the Committee.
11. EXPIRATION AND TERMINATION OF THE PLAN
Options may be granted under the Plan at any time or from time to
time as long as the total number of shares optioned or purchased under this
Plan does not exceed 500,000 shares of Common Stock. The Plan may be abandoned
or terminated at any time by the Board of Directors of the Company except with
respect to any options then outstanding under the plan. No option shall be
granted pursuant to the Plan after ten (10) years from the effective date of
the Plan.
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12. AMENDMENT OF PLAN
The Board of Directors may at any time and from time to time modify
and amend the Plan (including such form of option agreement) in any respect;
provided, however, that no such amendment shall: (a) increase (except in
accordance with Section 6) the maximum number of shares for which options may
be granted under the Plan either in the aggregate or to any individual
employee; or (b) reduce (except in accordance with Section 6) the minimum
option prices which may be established under the Plan; or (c) extend the period
or periods during which options may be granted or exercised; or (d) change the
provisions relating to the determination of employees to whom options shall be
granted and the number of shares to be covered by such options; or (e) change
the provisions relating to adjustments to be made upon changes in
capitalization; or (f) change the method for the selection of the Committee as
provided by Section 2 hereof, unless such change be approved by the
shareholders of the Company. The termination or any modification or amendment
of the Plan shall not, without the consent of an employee, affect his rights
under an option theretofore granted to him. Notwithstanding the foregoing, the
Board of Directors of the Company may amend the Plan without shareholder
approval to the extent necessary to cause ISOs granted under the Plan to meet
the the requirements of Section 422 of the Internal Revenue Code.
13. APPLICABILITY OF PLAN TO OUTSTANDING STOCK OPTIONS
This Plan shall not affect the terms and conditions of any
non-qualified stock options heretofore granted to any employee of the Company
or a subsidiary corporation of the Company under any other plan relating to
non-qualified stock options; nor shall it affect any of the rights of any
employee to whom such a non-qualified stock option was granted.
14. EFFECTIVE DATE OF PLAN
This Plan shall become effective on the later of the date of its
adoption by the Board of Directors of the Company or its
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approval by the vote of the holders of a majority of the outstanding shares of
the Company's Common Stock. This Plan shall not become effective unless such
shareholder approval shall be obtained within twelve (12) months before or
after the adoption of the Plan by the Board of Directors.
WSMP, INC.
By: /s/ David R. Clark
-----------------------------------
President
ATTEST:
/s/ Richard Howard
- --------------------------------
Secretary
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