<PAGE> 1
Registration No. 333-32455
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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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)
----------
JAMES E. HARRIS
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
---------------------------------------
CALCULATION OF ADDITIONAL REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Additional Proposed Maximum Proposed Maximum Amount of
Securities to Amount to Offering Price Aggregate Additional
Be Registered Be Registered Per Share (1) Offering Price (1) Reg. Fee
- - - ------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 500,000 $18.00 $9,000,000 $2,813.00
- - - ------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated pursuant to Rule 457(b) solely for the purpose of calculating
the additional registration fee for the additional shares being
registered, based upon the average high and low prices for the
Common Stock on April 27, 1998, as reported by The NASDAQ Stock Market.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Information required by Part I of Form S-8 to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933, as amended (the "Securities Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF 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therein is modified, superseded or replaced by information contained in any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
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
2. All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the annual reports
referred to in (1), 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 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to 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.
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ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
The consolidated financial statements of the Company and its
subsidiaries as of February 28, 1997, and February 23, 1996, and for each of the
three years in the period ended February 28, 1997, and the related supplemental
schedules, incorporated herein by reference, have been audited by Deloitte &
Touche, LLP, independent auditors, as stated in their reports which are
incorporated herein by reference, and have been so incorporated in reliance upon
such reports given upon the authority of that firm as experts in accounting and
auditing.
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
believes 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 or officer in the defense of any proceeding to which he was
a part 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 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.
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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.
The exhibits filed herewith are set forth on the Exhibit Index filed as
part of this Registration Statement.
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.
(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 by 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 14(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of the
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.
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(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 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.
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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 Claremont, State of North Carolina, on this 1st day
of May, 1998.
WSMP, INC.
By: /s/ David R. Clark*
-----------------------------------
David R. Clark, President
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities indicated
on May 1, 1998.
SIGNATURE CAPACITY
- - - --------- --------
/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 (Principal Executive
James C. Richardson, Jr. Officer)
/s/David R. Clark* President and Director
- - - ---------------------------------- (Principal Operating Officer)
David R. Clark
/s/James E. Harris* Executive Vice President
- - - ---------------------------------- (Principal Financial Officer)
James E. Harris
Director
- - - ----------------------------------
James M. Templeton
Director
- - - ----------------------------------
Bobby G. Holman
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/s/William R. McDonald* Director
- - - ----------------------------------
William R. McDonald
/s/Lewis C. Lanier* Director
- - - ----------------------------------
Lewis C. Lanier
/s/E. Edwin Bradford* Director
- - - ----------------------------------
E. Edwin Bradford
Pursuant to the requirements of the Securities Act of 1933, 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 1st day of May, 1998.
WSMP, INC. 1997 INCENTIVE STOCK OPTION PLAN
By: /s/Richard F. Howard*
---------------------------------
Richard F. Howard
*By: /s/ James R. Simpson II
------------------------------
James R. Simpson II
Attorney-in-Fact
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INDEX TO EXHIBITS
Exhibit Sequentially
Number Exhibit Numbered Page
- - - ------ ------- -------------
5 Opinion and Consent of Simpson Aycock, P.A., incorporated *
by reference from the Registrant's original Registration
Statement on Form S-8, Exhibit 5 thereto.
23.1 Consent of Deloitte & Touche, incorporated by *
reference from the Registrant's original Registration
Statement on Form S-8, Exhibit 23.1 thereto.
23.2 Consent of Simpson Aycock, P.A., is included with their *
opinion filed as Exhibit 5.
24 Power of Attorney incorporated by reference from Registrant's *
original Registration Statement on Form S-8.
24.1 Amendment to Power of Attorney
99(a) WSMP, Inc. 1997 Incentive Stock Option Plan, as
amended and restated February 23, 1998.
99(b) First Amendment to WSMP, Inc. 1997 Incentive Stock
Option Plan
- - - ----------
* Incorporated by reference.
7
<PAGE> 1
EXHIBIT 24.1
NORTH CAROLINA
AMENDMENT TO
CATAWBA COUNTY POWER OF ATTORNEY
WHEREAS, 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 certain of the Company's Officers and
Directors, did on May 15, 1997, execute a Power of Attorney to 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 them, to execute and
deliver, for and on behalf of each of them, a Registration Statement 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 (now 1,000,000) shares of its common stock, and any and
all amendments and post-effective amendments to such Registration Statement; and
WHEREAS, the Registration Statement was duly filed on July 30,
1997, as Registration No. 333-32455; and
WHEREAS, that since the execution of said Power of Attorney, the
undersigned has become Executive Vice President of the Company and its principal
financial officer; and wishes to join in the execution of said Power of
Attorney;
NOW, THEREFORE
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby
individually appoints David R. Clark, Matthew V. Hollifield and James R. Simpson
II, and each of them, the agent and attorney-in-fact for the undersigned, to
execute and deliver for and on behalf of the undersigned, any and all amendments
and post-effective amendments to the Registration Statement on Form S-8 for
Registration No. 333-32455.
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IN WITNESS WHEREOF, the undersigned individual has set his hand and
seal to the foregoing Amendment to Power of Attorney, this 30th day of
April, 1998.
/s/ James E. Harris
---------------------------------
James E. Harris
Executive Vice President and
Chief Financial Officer
STATE OF NORTH CAROLINA
COUNTY OF CATAWBA
I, Amy M. Howard, a Notary Public, do hereby certify that the aforesaid
individual 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 30th day of April, 1998.
/s/ Amy M. Howard
-----------------------------------
Notary Public
My commission expires: 7/28/2002.
<PAGE> 1
EXHIBIT 99(a)
WSMP, INC.
1997 INCENTIVE STOCK OPTION PLAN
(AS AMENDED AND RESTATED FEBRUARY 23, 1998)
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
<PAGE> 2
times when each option shall become 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; and shall include persons who would be key employees when hired but who
have not yet become employees of the Company, and whose options are granted
contingent upon becoming an employee. The term "subsidiary corporation" shall,
for the purposes of this Plan be defined in the same manner as such term is
defined in Section 424(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
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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 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 1,000,000 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.
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5. OPTION PRICE
The purchase price under each option issued shall be determined by
the Committee at the time the option is granted, but 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
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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 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
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shall begin not less than one year from the date of grant and shall expire not
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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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
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now exists or may, from time to time, be amended.
(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
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that, subject to the provisions of section (a) of this Section, such optionee
may exercise any options theretofore granted 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 1,000,000 shares of Common Stock. The Plan may be abandoned or
terminated at any time by the
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<PAGE> 10
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.
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 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
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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 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/ James E. Harris
- - - -----------------------------
Secretary
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<PAGE> 1
EXHIBIT 99(b)
FIRST AMENDMENT
TO
WSMP, INC. 1997 INCENTIVE STOCK OPTION PLAN
THIS AMENDMENT, dated February 23, 1998, to the WSMP, Inc 1997
Incentive Stock Option Plan (the "Plan"):
Pursuant to a resolution of its Board of Directors duly adopted on
February 23, 1998, WSMP, Inc. hereby amends the Plan as follows:
1. Section 3(a) is hereby amended by modifying the second sentence
thereof, which presently reads as follows:
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.
so that after amendment, it shall read as follows:
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; and shall
include persons who would be key employees when hired but who have not
yet become employees of the Company, and whose options are granted
contingent upon becoming an employee.
2. Section 4 is hereby amended by changing the number "500,000" to the
number
<PAGE> 2
"1,000,000" in the third line thereof.
3. Section 11 is hereby amended by changing the number "500,000" to the
number "1,000,000" in the third line thereof.
4. This amendment shall be effective as of the 23rd day of February,
1998, nunc pro tune.
5. As herein modified, the Plan shall remain in full force and effect.
This the 23rd day of February, 1998.
WSMP, Inc.
By: /s/ David R. Clark
----------------------------
______ President
ATTEST:
/s/ James E. Harris
- - - ---------------------------------
_____ Secretary
(corporate seal)
