<PAGE> 1
As filed with the Securities and Exchange Commission on April 6, 2000
File No.333-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
WALL STREET DELI, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 63-0514240
(State or Other Jurisdiction of (IRS Employer
Incorporation or Organization) Identification No.)
One Independence Plaza, Suite 100
Birmingham, Alabama 35209
(Address of principal executive offices)
WALL STREET DELI, INC.
INCENTIVE AWARD PLAN
(Full Title of Plan)
Jeffrey V. Kaufman, President
One Independence Plaza, Suite 100
Birmingham, Alabama 35209
(205)870-0020
(Name, address and telephone number, including area code, of agent for service)
Copies to
Carolyn L. Duncan, Esq.
RITCHIE & REDIKER, L.L.C.
312 North 23rd Street
Birmingham, Alabama 35203
(205) 251-1288
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------
Proposed
Title of Each Class of Amount Proposed Maximum
Securities to be to be Maximum Offering Aggregate Amount of Regis-
Registered registered Price Per Share (1) Offering Price (1) tration Fee (1)
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$.05 per share 750,000 $1.5625 $1,171,875.00 $ 309.38
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
===============================================================================
(1) Determined in accordance with Rule 457(h) under the Securities Act of
1933, based on $1.5625, the average of the high and low sale prices quoted on
the NASDAQ National Market System on April 3, 2000.
===============================================================================
Page 1 of 16
Exhibit Index Appears on Page 3
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are incorporated by reference into this
Registration Statement and are deemed to be a part hereof from the date of the
filing of such documents:
(1) The Registrant's Annual Report on Form 10-K for its fiscal
year ended July 3, 1999.
(2) All reports filed by the Registrant pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") since July 3, 1999.
(3) The description of Common Stock contained in the Registrant's
registration statement filed December 28, 1983 under Section
12 of the Exchange Act, registration statement number
33-61700 on Form S-2 filed April 27, 1993, and the
description of Common Stock Purchase Rights contained in the
registration statement on Form 8-A filed March 1, 2000.
(4) All other documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act prior to the filing of a post-effective
amendment which indicates that all securities offered
pursuant to this Registration Statement have been sold or
which deregisters all securities that remain unsold.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's Certificate of Incorporation (the "Certificate")
eliminates, subject to certain exceptions, the personal liability of directors
to the Registrant or its stockholders for monetary damages for breaches of
fiduciary duties as directors. The Certificate does not provide for the
elimination of or limitation on the personal liability of a director for (i)
any breach of the director's duty of loyalty to the Registrant or its
stockholders, (ii) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) certain unlawful
dividends or redemptions as provided under Section 174 of the Delaware General
Corporation Law, or (iv) any transaction from which the director derived an
improper personal benefit. This provision of the Certificate will limit the
remedies available to a stockholder in the event of breaches of any director's
duties to such stockholder or the Registrant.
Under Section 145 of the Delaware General Corporation Law, a
corporation may indemnify a director, officer, employee or agent of the
corporation (or other entity if such person
Page 2 of 16
<PAGE> 3
is serving in such capacity at the corporation's request) against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him if he acted in good faith and in a
manner he reasonably believed to be in, or not opposed to the best interests of
the corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. In the case of an action
brought by or in the right of a corporation, the corporation may indemnify a
director, officer, employee or agent of the corporation (or other entity if
such person is serving in such capacity at the corporation's request) against
expenses (including attorneys' fees) actually and reasonably incurred by him if
he acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the corporation, except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty to the Corporation unless and only to
the extent that the court in which such action or suit was brought shall
determine that despite the adjudication of liability but in view of all
circumstances, such person is fairly and reasonably entitled to indemnity for
such expenses as the court shall deem proper. The Registrant's Bylaws provide
that expenses (including attorneys' fees) incurred by an officer or director in
defending any civil, criminal, administrative or investigative action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that he is
not entitled to be indemnified by the Registrant.
ITEM 8. EXHIBITS
The exhibits included as part of this Registration Statement are as
follows:
<TABLE>
<CAPTION>
Exhibit Number Description Page
- -------------- ----------- ----
<S> <C> <C>
4(a) Restated Certificate of Incorporation (incorporated by *
reference from Exhibit 3.1(b) to the Registrant's annual
report on Form 10-K for the fiscal year ended June 27,
1998)
4(b) Bylaws (incorporated by reference from the Registrant's *
Proxy Statement for the Special Shareholders Meeting held
on September 25, 1986)
5(a) and Opinion and Consent of Counsel to Registrant 7
23(a)
23(b) Consent of Independent Certified Public Accountants 8
99(a) Wall Street Deli, Inc. Incentive Award Plan 9
</TABLE>
* Incorporated herein by reference as indicated
Page 3 of 16
<PAGE> 4
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, 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 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) The undersigned Registrant hereby undertakes to deliver or
cause to be delivered with the prospectus, to each person to whom the
prospectus is sent or given, the latest annual report to security holders that
is incorporated by reference in the prospectus and furnished pursuant to and
meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities
Exchange Act of 1934; and, where interim financial information required to be
presented by Article 3 of Regulation S-X are not set forth in the prospectus,
to deliver, or cause to be delivered to each person to whom the prospectus is
sent or given, the latest quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim financial information.
(d) 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.
Page 4 of 16
<PAGE> 5
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 Birmingham, State of Alabama on April 6, 2000.
WALL STREET DELI, INC.
By /s/ Jeffrey V. Kaufman
----------------------------------------
Jeffrey V. Kaufman
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Jeffrey V. Kaufman as attorney-in-fact,
having the power of substitution, for him in any and all capacities, to sign
any amendments to this Registration Statement on Form S-8 and to file the same,
with exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
said attorney-in-fact, or his substitute or substitutes, may do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
/s/ Jeffrey V. Kaufman President, Chief Executive March 30, 2000
- -------------------------- Officer and Director
JEFFREY V. KAUFMAN
/s/ Thomas J. Sandeman Chief Financial Officer March 30, 2000
- --------------------------
THOMAS J. SANDEMAN
/s/ Alan V. Kaufman Chairman of the Board March 30, 2000
- --------------------------
ALAN V. KAUFMAN
/s/ Robert G. Barrow Director March 30, 2000
- --------------------------
ROBERT B. BARROW
/s/ Aaron Beam, Jr. Director March 30, 2000
- --------------------------
AARON BEAM, JR.
/s/ William M. Byrne Director March 30, 2000
- --------------------------
WILLIAM M. BYRNE
/s/ Jake L. Netterville Director March 30, 2000
- --------------------------
JAKE L. NETTERVILLE
</TABLE>
Page 5 of 16
<PAGE> 6
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-----------------------
EXHIBITS
TO
FORM S-8
WALL STREET DELI, INC.
INCENTIVE AWARD PLAN
Page 6 of 16
<PAGE> 1
EXHIBIT 5(a) and 23(a)
April 6, 2000
Wall Street Deli, Inc.
One Independence Plaza, Suite 100
Birmingham, Alabama 35209
Re: Form S-8 Registration Statement -
Wall Street Deli, Inc. Incentive Award Plan
Gentlemen:
As counsel for Wall Street Deli, Inc., a Delaware corporation (the
"Company"), we have participated in the preparation of the referenced Form S-8
Registration Statement relating to the Company's Incentive Award Plan (the
"Plan") and the proposed offer and sale pursuant thereto of up to 750,000
shares of the Company's common stock, $.05 par value (hereinafter referred to
as "Common Stock"). In connection with the preparation of said Registration
Statement, we have examined certificates of public officials and originals or
copies of such corporate records, documents and other instruments relating to
the authorization and issuance of such shares of Common Stock pursuant to the
Plan as we have deemed relevant under the circumstances.
On the basis of the foregoing, it is our opinion that:
1. The Company was duly organized and incorporated and is
validly existing under the laws of the State of Delaware, with an authorized
capitalization consisting of 20,000,000 shares of Common Stock, par value $.05
per share.
2. The proposed offer and sale pursuant to the Plan of up to
750,000 shares of Common Stock have been duly authorized by the Board of
Directors of the Company, and such shares, when issued in accordance with the
terms and conditions of the Plan, will be legally issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to said
Registration Statement.
Yours very truly,
RITCHIE & REDIKER, L.L.C.
By: /s/ Carolyn L. Duncan
-----------------------
Carolyn L. Duncan
Page 7 of 16
<PAGE> 1
EXHIBIT 23(b)
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Wall Street Deli, Inc.
Birmingham, Alabama
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of our report dated August 26, 1999, relating to the consolidated
financial statements of Wall Street Deli, Inc. appearing in the Company's
Annual Report on Form 10-K for the fiscal year ended July 3, 1999.
BDO SEIDMAN, LLP
Memphis, Tennessee
April 6, 2000
Page 8 of 16
<PAGE> 1
EXHIBIT 99(a)
WALL STREET DELI, INC.
INCENTIVE AWARD PLAN
AS AMENDED THROUGH DECEMBER 8, 1999
Page 9 of 16
<PAGE> 2
WALL STREET DELI, INC.
INCENTIVE AWARD PLAN
As adopted by the Board of Directors on April 30, 1997
and approved by the shareholders on November 6, 1997
and as amended by the shareholders on December 8, 1999
1. PURPOSE.
The purposes of the Incentive Award Plan (the "Plan") are to provide
long-term incentives and rewards to those employees largely responsible for the
success and growth of Wall Street Deli, Inc. and its subsidiaries and divisions
(the "Company"), to assist the Company in attracting and retaining executives
with experience and ability on a basis competitive with industry practices, and
to associate the interests of such key employees with those of the Company's
shareholders.
2. ADMINISTRATION OF THE PLAN.
(a) Committee. The Plan shall be administered by the Compensation
Committee of the Board of Directors of the Company (the "Committee"). The Board
of Directors shall appoint at least two of its members to the Committee. Except
as may otherwise be provided in Rule 16b-3 of the Securities Exchange Act of
1934, as amended (the "1934 Act"), no person shall be appointed as a member of
the Committee who is not "disinterested" as defined in Rule 16b-3 of the 1934
Act.
(b) Committee Actions. Each member of the Committee shall serve
at the pleasure of the Board of Directors, which may fill any vacancy, however
caused, in the Committee. The Committee shall select one of its members as a
chairman and shall hold meetings at the times and in the places as it may deem
advisable. All actions the Committee takes shall be made by majority decision.
Any action evidenced by a written instrument signed by all of the members of
the Committee shall be as fully effective as if the Committee had taken the
action by majority vote at a meeting duly called and held.
(c) Committee Powers. The Committee shall have all the powers
vested in it by the terms of the Plan, such powers to include exclusive
authority (within the limitations described herein) to (i) select the employees
to be granted awards under the Plan ("Participants"), (ii) determine the type,
size and terms of awards to be made to each Participant, including whether or
not such awards shall be issued for any consideration and, if issued for
consideration, the amount and type of consideration, (iii) determine the
consideration to be paid upon exercise of an ISO or NSO, as defined herein,
(iv) determine the time when awards will be granted and (v) establish
objectives and conditions for awards, including any holding period for awards
or securities awarded, the effects of termination of employment or disability
on awards, vesting requirements and the form of payment of awards. The
Committee may, in its sole discretion, delegate such of its powers as it deems
appropriate, except that the Committee may not delegate its authority with
regard to any matter or action affecting an officer or other person subject to
Section 16 of the 1934 Act.
(d) The Committee shall have full power and authority to
administer and interpret the Plan and to adopt such rules, regulations,
agreements, guidelines and instruments for the administration of the Plan and
for the conduct of its business as the Committee deems necessary or advisable.
The Committee's interpretations of the Plan, and all actions taken and
determinations made by the Committee pursuant to the
Page 10 of 16
<PAGE> 3
powers vested in it hereunder, shall be conclusive and binding on all parties
concerned, including the Company, its shareholders and any employee of the
Company.
3. ELIGIBILITY.
(a) Active full-time and part-time key employees of the Company,
its subsidiaries and divisions, whether or not directors of the Company, shall
be eligible to participate in the Plan; directors of the Company who are not
employees are not eligible. The Committee, or its delegate, shall designate
Participants from among such eligible key employees.
(b) Subject to the limits set forth in this Plan, the Committee
at any time may grant additional awards to Participants to whom the Committee
had previously granted awards, so that a Participant may hold more than one
award at the same time.
4. AWARDS.
(a) Types. The Committee may authorize awards under the Plan of
any one or a combination of: nonqualified stock options ("NSO"), incentive
stock options ("ISO"), stock appreciation rights ("SAR"), and restricted stock.
The Committee may make any other type of award which it shall determine is
consistent with the objectives and limitations of the Plan. All Incentive Stock
Options ("ISOs") awarded hereunder are intended to comply with Internal Revenue
Code of 1986, as amended ("Code"), Sections 422 and 424 and all provisions of
the Plan and all ISOs granted shall be construed to effectuate that intent.
Each award shall be subject to the terms and conditions set forth herein and as
determined by the Committee. Committee determinations as to eligibility, form,
amount and timing of awards, and other terms and conditions need not be uniform
and may be made selectively among Participants who receive or are eligible for
awards hereunder, whether or not such individuals are similarly situated.
(b) Guidelines. The Committee may adopt from time to time
policies for its implementation of the Plan. Such policies may include, but
need not be limited to, the type, size and term of awards to be made to
Participants who are eligible key employees and the conditions for payment of
such awards. All awards shall be evidenced by a written agreement between the
Participant and the Company in the form and containing the terms and conditions
authorized by the Committee.
(c) Multiple Awards. A Participant may be granted multiple awards
under the Plan.
5. TERMS OF STOCK OPTIONS.
The Committee may grant options qualifying as ISOs under the Code and
NSOs (collectively "Stock Options"), and such Stock Options shall be subject to
the following terms and conditions and such other terms and conditions as the
Committee may prescribe:
(a) Option Price. The option price per share with respect to each
Stock Option shall be determined by the Committee, but shall not be less than
100% of the fair market value of the Common Stock on the date the Stock Option
is granted, as determined by the Committee. Unless otherwise determined by the
Committee, fair market value shall be deemed to be the mean between the highest
and lowest sales prices of the Common Stock on the Consolidated Transaction
Reporting System on the date the Stock Option is granted.
Page 11 of 16
<PAGE> 4
(b) Period of Option. The period of each Stock Option shall be
fixed by the Committee.
(c) Payment. The option price shall be payable at the time the
Stock Option is exercised in cash or, at the discretion of the Committee, in
whole or in part in the form of shares of Common Stock already owned by the
grantee (based on the fair market value of the Common Stock on the date the
option is exercised as determined by the Committee). No shares shall be issued
until full payment therefor has been made. A grantee of a Stock Option shall
have none of the rights of a stockholder until the shares are issued.
(d) Exercise of Option. The shares covered by a Stock Option may
be purchased in such installments and on such exercise dates as the Committee
may determine. Any shares not purchased on the applicable exercise date may be
purchased thereafter at any time prior to the final expiration of the Stock
Option. In no event (including those specified in paragraphs (e), (f) and (g)
of this section below) shall any Stock Option be exercisable after its
specified expiration period.
(e) Termination of Employment. Upon the termination of a
Participant's employment (for any reason other than retirement, death or
termination for deliberate, willful, or gross misconduct), Stock Option
privileges for such Participant shall be limited to the shares that were
immediately exercisable at the date of such termination. The Committee,
however, in its discretion may provide that any Stock Options outstanding but
not yet exercisable upon the termination of a Participant's employment may
become exercisable in accordance with a schedule to be determined by the
Committee. Such Stock Option privileges shall expire unless exercised within
such period of time after the date of such termination of employment as may be
established by the Committee. If a Participant's employment is terminated for
deliberate, willful or gross misconduct, as determined by the Company, all
rights under the Stock Option shall expire upon receipt of the notice of such
termination.
(f) Retirement. Upon retirement of the Participant, Stock Option
privileges for such Participant shall apply to those shares immediately
exercisable at the date of retirement. The Committee, however, in its
discretion, may provide that any Stock Options outstanding but not yet
exercisable upon the retirement of the Participant may become exercisable in
accordance with a schedule to be determined by the Committee. Stock Option
privileges shall expire unless exercised within such period of time as may be
established by the Committee.
(g) Death. Upon the death of a Participant, Stock Option
privileges for such Participant shall apply to those shares that were
immediately exercisable at the time of death. The Committee, however, in its
discretion, may provide that any Stock Options outstanding but not yet
exercisable upon the death of a Participant may become exercisable in
accordance with a schedule to be determined by the Committee. Such privileges
shall expire unless exercised by legal representatives within a period of time
as determined by the Committee but in no event later than the date of the
expiration of the Stock Option.
(h) Limits on Incentive Stock Options. Except as may otherwise be
permitted by the Code, the Committee shall not grant, in the aggregate under
all plans of the Company, a Participant ISOs that are first exercisable during
any one calendar year to the extent that the aggregate fair market value of the
Common Stock with respect to which such ISOs are granted, at the time the ISOs
are granted, exceeds $100,000.
Page 12 of 16
<PAGE> 5
6. TERMS OF STOCK APPRECIATION RIGHTS
The Committee may, in its discretion, grant a stock appreciation right
to receive the appreciation in the fair market value of shares of Common Stock
("SAR") either singly or in combination with an underlying Stock Option granted
hereunder. Such SARs shall be subject to the following terms and conditions and
such other terms and conditions as the Committee may prescribe:
(a) Time and Period of Grant. If an SAR is granted with respect
to an underlying Stock Option, it may be granted at the time of the Stock
Option grant or at any time thereafter but prior to the expiration of the Stock
Option grant. If an SAR is granted with respect to an underlying Stock Option,
at the time the SAR is granted the Committee may limit the exercise period for
such SAR, before and after which period no SAR shall attach to the underlying
Stock Option. In no event shall the exercise period for an SAR granted with
respect to an underlying Stock Option exceed the exercise period for such Stock
Option. If an SAR is granted without an underlying Stock Option, the period of
exercise of the SAR shall be set by the Committee.
(b) Value of SAR. If an SAR is granted with respect to an
underlying Stock Option, the Participant will be entitled to surrender the
Stock Option which is then exercisable and receive in exchange therefor an
amount equal to the excess of the fair market value of the Common Stock on the
date the election to surrender is received by the Company over the Stock Option
price multiplied by the number of shares covered by the Stock Option which are
surrendered. If an SAR is granted without an underlying Stock Option, the
Participant will receive upon exercise of the SAR an amount equal to the excess
of the fair market value of the Common Stock on the date the election to
surrender such SAR is received by the Company over the fair market value of the
Common Stock on the date of grant multiplied by the number of shares covered by
the grant of the SAR.
(c) Payment of SAR. Payment of an SAR shall be in the form of
shares of Common Stock, cash, or a combination thereof. The form of payment
upon exercise of an SAR shall be determined by the Committee either at the time
of grant of the SAR or at the time of exercise of the SAR.
7. TERMS OF RESTRICTED STOCK.
The Committee may issue shares of Common Stock to a Participant which
shares shall be subject to the following terms and conditions and such other
terms and conditions as the Committee may prescribe for the award of restricted
stock ("RS"):
(a) Requirement of Employment. A Participant awarded an RS must
remain in the employment of the Company during a period designated by the
Committee ("Restriction Period"). If the Participant leaves the employment of
the Company prior to the end of the Restriction Period, the RS shall terminate
and the shares of Common Stock shall be returned immediately to the Company;
provided that the Committee may, at the time of the grant, provide for the
employment restriction to lapse with respect to a portion of the RS at
different times during the Restriction Period. The Committee may, in its
discretion, also provide for such complete or partial exceptions to the
employment restriction as it deems equitable.
(b) Restrictions on Transfer and Legend of Stock Certificates.
During the Restriction Period, the Participant may not sell, assign, transfer,
pledge, or otherwise dispose of the shares of Common Stock. Each certificate
for shares of Common Stock issued hereunder shall contained a legend giving
appropriate notice of the restrictions in the grant.
Page 13 of 16
<PAGE> 6
(c) Custody of Certificates. The Committee may require, under
such terms and conditions as it deems appropriate or desirable, that the
certificates for shares of Common Stock delivered under the Plan may be held in
custody by a bank or other institution, or that the Company may itself hold
such shares in custody until the Restriction Period expires or until
restrictions thereon otherwise lapse, and may require, as a condition of any
award of RS that the Participant shall have delivered a stock power endorsed in
blank relating to the RS.
(d) Lapse of Restrictions. All restrictions imposed under the RS
shall lapse upon the expiration of the Restriction Period if the conditions as
to employment set forth above have been met. The Participant shall then be
entitled to have the legend removed from the certificates.
(e) Dividends. The Committee shall, in its discretion, at the
time of the award of RS, provide that any dividends declared on the Common
Stock during the Restriction Period shall either be (i) paid to the
Participant, or (ii) accumulated for the benefit of the Participant and paid to
the Participant only after the expiration of the Restriction Period.
8. SHARES OF STOCK SUBJECT TO THE PLAN.
(a) Aggregate Shares. The shares that may be delivered or
purchased under the Plan shall not exceed an aggregate of 750,000 shares of
Common Stock. Shares to be delivered or purchased under the Plan may be either
shares of authorized but unissued Common Stock or treasury shares.
(b) Reacquired Shares. In the event of a lapse, expiration,
termination or cancellation of any award granted under the Plan without the
issuance of shares or payment of cash, or if shares are issued as RS hereunder
and are reacquired by the Company pursuant to rights reserved upon the issuance
thereof, the shares subject to or reserved for such award may again be used for
new awards hereunder; provided that in no event may the number of shares issued
hereunder exceed the total number of shares reserved for issuance.
9. DILUTION AND OTHER ADJUSTMENTS.
In the event of any change in the outstanding shares of Common Stock
by reason of any split, stock dividend, recapitalization, merger,
consolidation, combination or exchange of shares or other similar corporate
change, such equitable adjustments shall be made in the Plan and the awards
thereunder as the Committee determines are necessary and appropriate,
including, if necessary, an adjustment in the maximum number or kind of shares
subject to the Plan or which may be or have been awarded to any Participant.
Such adjustment shall be conclusive and binding for all purposes of the Plan.
10. MISCELLANEOUS PROVISIONS.
(a) Rights as Shareholder. A Participant under the Plan shall
have no rights as a holder of Common Stock with respect to awards of Stock
Options or SARs hereunder, unless and until certificates for shares of Common
Stock are issued to the Participant.
(b) Assignment or Transfer. No awards under the Plan or any
rights or interests therein shall be assignable or transferable by a
Participant except by will or the laws of descent and distribution. During
Page 14 of 16
<PAGE> 7
the lifetime of a Participant, awards hereunder are exercisable only by, and
payable only to, the Participant or if the Participant is disabled, by the
participant's duly appointed guardian or legal representative.
(c) Requirements for Transfer. No shares of Common Stock shall be
issued or transferred under the Plan until all legal requirements applicable to
the issuance or transfer of such shares have been complied with to the
satisfaction of the Committee. The Committee shall have the right to condition
any issuance of shares of Common Stock made to any Participant upon such
Participant's written undertaking to comply with such restrictions on his
subsequent disposition of such shares as the Committee or the Company shall
deem necessary or advisable as a result of any applicable law, regulation or
official interpretation thereof, and certificates representing such shares may
be legended to reflect any such restrictions.
(d) Withholding Taxes. The Company shall have the right to deduct
from all awards hereunder paid in cash any federal, state, local or foreign
taxes required by law to be withheld with respect to such awards and, with
respect to awards paid in stock or upon exercise of stock options, to require
the payment (through withholding from the participant's salary or otherwise) of
any such taxes. Alternatively, the Company may issue or transfer the number of
shares of Common Stock under an award net of the number of shares sufficient to
satisfy the withholding tax requirements. For withholding tax purposes, the
shares of Common Stock shall be valued on the date the withholding obligation
is incurred. The obligation of the Company to make delivery of awards in cash
or Common Stock shall be subject to currency or other restrictions imposed by
any government.
(e) No Rights to Awards. No employee or other person shall have
any claim or right to be granted an award under the Plan.
(f) Compliance with Section 16(b). Transactions under this Plan
and each award to a person subject to Section 16 of the 1934 Act are intended
to comply with Rule 16b-3 (or its successors) under the 1934 Act, and the
Committee shall impose such minimum holding periods, requirements on the timing
of elections and other restrictions on any award as it may deem needed for such
compliance. To the extent any provision of this Plan, agreements entered into
pursuant thereto or any action by the Committee fails to comply with Rule 16b-3
(or its successors) under the 1934 Act, it shall be deemed null and void, to
the extent permitted by law and deemed advisable by the Committee.
(g) Costs and Expenses. The cost and expenses of administering
the Plan shall be borne by the Company and not charged to any award nor to any
Participant receiving an award.
(h) The Right of the Company to Terminate Employment. No
provision in the Plan or any award shall confer upon any employee any right to
continue in the employment of the Company or any subsidiary or division of the
Company or to continue performing services for or to interfere in any way with
the right of the Company or any subsidiary or division of the Company to
terminate his employment or of the right of shareholders of the Company to
remove such employee or person as a director at any time for any reason.
(i) Approval of Shareholders, etc. The Company shall submit the
Plan to its shareholders for approval within 12 months of the adoption of the
Plan by the Board of Directors; provided further that unless shareholder
approval is obtained within said twelve-month period, both the Plan and all
outstanding awards shall be rendered immediately void and of no effect.
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<PAGE> 8
11. AMENDMENTS AND TERMINATION.
The Committee may at any time terminate or from time to time amend
the Plan in whole or in part, but no such action shall adversely affect any
rights or obligations with respect to any awards theretofore made under the
Plan.
Unless the holders of at least a majority of the outstanding shares
of Common Stock of the Company shall have first approved thereof, no amendment
of the Plan shall be effective that would increase the maximum number of shares
which may be delivered under the Plan or to any one individual or extend the
maximum period during which awards may be granted under the Plan or make such
other changes in the Plan which would require shareholder approval pursuant to
Rule 16b-3 under the 1934 Act.
With the consent of the Participant affected, the Committee may amend
outstanding agreements evidencing awards under the Plan in a manner not
inconsistent with the terms of the Plan.
12. EFFECTIVE DATE AND TERM OF PLAN.
The Plan shall become effective on the date it is approved by the
Board of Directors of the Company. No awards shall be made under the Plan after
April 30, 2007. The Plan will continue in effect for existing awards so long as
any such award is outstanding.
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