Registration No. 333-
As filed with the Securities and Exchange Commission on October 17, 1997
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
BEN & JERRY'S HOMEMADE, INC.
(Exact Name of Registrant as Specified in Its Charter)
Vermont 03-02675-43
(State or other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
30 Community Drive
South Burlington, Vermont 05403-6828
(Address of Principal Executive Offices, including Zip Code)
1995 EQUITY INCENTIVE PLAN
(Full Title of the Plan)
Perry D. Odak
Chief Executive Officer
Ben & Jerry's Homemade, Inc.
30 Community Drive
South Burlington, Vermont 05403-6828
(802) 651-9600
(Name, Address and Telephone Number of Agent for Service)
Please send copies of all communications to:
Howard K. Fuguet, Esquire
Ropes & Gray
One International Place
Boston, MA 02110
(617) 951-7000
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CALCULATION OF REGISTRATION FEE
Title of securities to be registered; Amount to be registered; Proposed maximum
offering price per share(1) ; Proposed maximum aggregate offering price(1);
Amount of registration fee
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Class A Common Stock, par value $0.033 per share
400,000 shares
$14.50
$5,446,440
$1,650.45
<PAGE>
(1) Of the 400,000 shares of Class A Common Stock, par value $0.033 per share,
registered hereunder, 177,000 shares are subject to outstanding options at an
exercise price of $12.63 per share and 37,000 shares are subject to outstanding
options at an exercise price of $13.89 per share. The $14.50 per share maximum
offering price for the remaining 186,000 shares not subject to outstanding
options on the date hereof has been estimated solely for the purpose of
determining the registration fee pursuant to Rule 457(h) on the basis of the
average of the high and low prices of Ben & Jerry's Homemade, Inc. Common Stock
reported on the NASDAQ National Market System on October 13, 1997.
(2)The registration fee consists of (a)$677.43 payable in respect of 177,000
shares subject to options at an exercise price of $12.63, plus (b) $155.74
payable in respect of 37,000 shares subject to options at an exercise price of
$13.89, plus (c) $817.28 payable in respect of 186,000 shares at an assumed
exercise price of $14.50 per share not yet subject to outstanding options on the
date hereof.
The date of this Registration Statement is October 17, 1997 Exhibit Index on
Page 6
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Note: The document(s) containing the information required by Item 1 of
this Form S-8 and the statement of availability of Registrant information, and
other information required by Item 2 of this Form will be sent or given to
eligible employees as specified by Rule 428(b)(1) under the Securities Act of
1933. In accordance with Rule 428 and the requirements of Part I of Form S-8,
such documents are not being filed with the Securities and Exchange Commission
("Commission") either as part of this Registration Statement or as prospectuses
or prospectus supplements pursuant to Rule 424. The registrant shall maintain a
file of such documents in accordance with the provisions of Rule 428. Upon
request, the registrant shall furnish to the Commission or its staff a copy or
copies of all of the documents included in such file.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates the following document herein by
reference:
(a) The Registrant's latest annual report on Form 10-K, filed pursuant to
Section 13(a) or 15(d) of the Securities and Exchange Act of 1934 as amended
(the "Exchange Act"), filed with the Commission on March 28, 1997 and amended on
Form 10-K/A, filed with the Commission on May 9, 1997 (No. 0-13544).
(b) 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 registrant referred to in
(a) above.
(c) The description of the Registrant's Class A Common Stock contained in the
Company's Registration Statement on Form S-1, filed pursuant to Section 12 of
the Exchange Act (No. 33-17516).
(d) The Registrant's Registration Statement on Form S-8 in connection with the
Registrant's 1995 Equity Incentive Plan, filed with the Commission on November
17, 1995 (No. 33-64421).
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15 of the Exchange Act prior to the filing of a
post-effective amendment to this Registration Statement that indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold shall be deemed incorporated herein by reference from the date
of filing of such documents.
Item 8. Exhibits.
5.1 Opinion of Downs Rachlin & Martin.
5.2 Opinion of Ropes & Gray.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Downs Rachlin & Martin is contained in its opinion filed as
Exhibit 5.1 hereto.
23.3 Consent of Ropes & Gray is contained in its opinion filed as Exhibit 5.2
hereto.
24 Powers of Attorney - included on signature page of this Registration
Statement.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of South Burlington, State
of Vermont, on October 17, 1997.
BEN & JERRY'S HOMEMADE, INC.
By:
Perry D. Odak
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Perry D. Odak and Frances Rathke, and each of them singly, his true and lawful
attorney-in-fact and agent with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this Registration
Statement on Form S-8 to be filed by Ben & Jerry's Homemade, Inc., and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission making such changes in
this Registration Statement as the person(s) so acting deems appropriate, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or their
substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to
the requirements of the Securities Act of 1933, as amended, this Registration
Statement on Form S-8 has been signed below by the following persons in the
capacities indicated.
Signature Capacity Date
/s/Perry D. Odak Chief Executive Officer, Director October 17, 1997
Perry D. Odak (Principal Executive Officer)
/s/Frances Rathke Chief Financial Officer and Secretary October 17, 1997
Frances Rathke (Principal Financial and Accounting Officer)
/s/Elizabeth Bankowski Director October 17, 1997
Elizabeth Bankowski
/s/Bennett R. Cohen Director October 17, 1997
Bennett R. Cohen
/s/ Pierre Ferrari Director October 17, 1997
Pierre Ferrari
/s/Jeffrey Furman Director October 17, 1997
Jeffrey Furman
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/s/Jerry Greenfield Director October 17, 1997
Jerry Greenfield
/s/Jennifer Henderson Director October 17, 1997
Jennifer Henderson
/s/Frederick A. Miller Director October 17, 1997
Frederick A. Miller
/s/Henry Morgan Director October 17, 1997
Henry Morgan
Director October __, 1997
Andrew S. Patti
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EXHIBIT INDEX
Number Title of Exhibit
5.1 Opinion of Downs Rachlin & Martin.
5.2 Opinion of Ropes & Gray.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Downs Rachlin & Martin is contained in its opinion filed as
Exhibit 5.1 hereto.
23.3 Consent of Ropes & Gray is contained in its opinion filed as Exhibit 5.2
hereto.
24 Powers of Attorney - included on signature page of this Registration
Statement.
<PAGE>
Downs Rachlin & Martin, PC
Courthouse Plaza
199 Main Street
Burlington, Vermont 06401-0190
October 17, 1997
Ropes & Gray
One International Place
Boston, Massachusetts 02110
Ladies and Gentlemen:
This opinion is furnished to you in connection with a registration statement on
Form S-8 and all exhibits thereto (the "Registration Statement"), filed with the
Securities Exchange Commission (the "Commission") under the Securities Act of
1933, as amended, for the registration of 400,000 shares of Class A Common
Stock, $0.033 par value (the "Shares"), of Ben & Jerry's Homemade, Inc. (the
"Company"). The Shares are to be sold pursuant to the Company's 1995 Equity
Incentive Plan (the "Plan").
For purposes of this opinion, we have examined and relied upon the Registration
Statement and copies of the Plan and such other documents as we deemed
appropriate.
For purposes of our opinion, we have assumed that (i) any consideration received
by the Company upon the issuance or exercise of any award granted under the Plan
will at least be equal to the par value of the Shares issuable upon the exercise
of any stock options or subject to any other award, (ii) the number of shares to
be issued upon any such exercise or issuance, together with the total number of
shares of the Company's Common Stock previously outstanding, will not exceed the
authorized number of shares of Common Stock specified in the Company's Articles
of Association as then in effect, and (iii) upon issuance of the Shares, the
Company will deliver certificates or otherwise reflect the issuance in its stock
records.
Based upon the foregoing, we are of the opinion that the Shares have been duly
authorized and, when the Shares have been issued and sold and consideration
received therefor by the Company in accordance with the terms of the Plan, will
be validly issued, fully paid and non-assessable.
We hereby consent to your filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
DOWNS RACHLIN & MARTIN, PC
By:/s/Downs Rachlin & Martin
<PAGE>
(Ropes & Gray Letterhead)
October 17, 1997
Ben & Jerry's Homemade, Inc.
30 Community Drive
South Burlington, Vermont 05403-6828
Ladies and Gentlemen:
This opinion is furnished to you in connection with a registration statement on
Form S-8 and all exhibits thereto (the "Registration Statement"), filed with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended, for the registration of 400,000 shares of Class A Common
Stock, $0.033 par value (the "Shares"), of Ben & Jerry's Homemade, Inc. (the
"Company"). The Shares are to be sold pursuant to the Company's 1995 Equity
Incentive Plan (the "Plan").
We have acted as counsel for the Company and are familiar with the actions taken
by the Company in connection with the Plan. For purposes of this opinion we have
examined and relied upon the Registration Statement, a copy of the Plan and such
other documents as we deem appropriate. We have relied with respect to matters
governed by the laws of the State of Vermont upon the opinion to us of Downs
Rachlin & Martin. Said opinion is satisfactory in form and scope, and although
we have made no independent investigation of such matters, we are of the opinion
that you and we may properly rely thereon as to all matters covered thereby.
For purposes of our opinion, we have assumed that (i) any consideration received
by the Company upon the issuance or exercise of any award granted under the Plan
will at least be equal to the par value of the Shares issuable upon the exercise
of any stock options or subject to any other award, and (ii) the number of
shares to be issued upon any such exercise or issuance, together with the total
number of shares of the Company's Common Stock previously outstanding, will not
exceed the authorized number of shares of Common Stock specified in the
Company's Articles of Association as then in effect. Based upon the foregoing,
we are of the opinion that the Shares have been duly authorized and, when the
Shares have been issued and sold and consideration received
therefor by the Company in accordance with the terms of the Plan, will be
validly issued, fully paid and non-assessable.
We hereby consent to your filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/Ropes & Gray
Ropes & Gray
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Exhibit 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8) of Ben & Jerry's Homemade, Inc. for the registration of 400,000 additional
shares of Class A Common Stock under the 1995 Equity Incentive Plan of our
report dated January 27,1997, with respect to the consolidated financial
statements and schedule of Ben & Jerry's Homemade, Inc. included in its Annual
Report (Form 10-K) for the year ended December 28, 1996, filed with the
Securities and Exchange Commission.
ERNST & YOUNG LLP
Boston, Massachusetts
October 16, 1997
<PAGE>
EXHIBIT 10.29
BEN & JERRY'S HOMEMADE, INC.
1995 EQUITY INCENTIVE PLAN
1. PURPOSE
The purpose of this 1995 Equity Incentive Plan (the "Plan") is to
advance the interests of Ben & Jerry's Homemade, Inc. (the "Company") by
enhancing its ability to attract and retain employees and other persons or
entities who are in a position to make significant contributions to the success
of the Company and its subsidiaries through ownership of shares of the Company's
Class A Common Stock ("Stock").
The Plan is intended to accomplish these goals by enabling the Company
to grant Awards in the form of Options, Stock Appreciation Rights, Restricted
Stock or Unrestricted Stock Awards, Deferred Stock Awards, Cash or Stock
Performance Awards, Loans or Supplemental Grants, or combinations thereof, all
as more fully
described below.
2. ADMINISTRATION
The Board may, in its discretion, delegate some or all of its powers
with respect to the Plan to a committee, shall consist of at least three
directors. Notwithstanding the foregoing sentence, the committee, if one is
appointed, may consist of at least two directors if permissible pursuant to Rule
16b-3 under the 1934 Act. A majority of the members of the committee shall
constitute a quorum, and all determinations of the committee shall be made by a
majority of its members. Any determination of the committee under the Plan may
be made without notice or meeting of the committee by a writing signed by a
majority of the committee members.
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The Board of Directors has determined that the Plan will be administered
by the Compensation Committee of the Board of Directors of the Company (the
"Committee"). The Committee will have authority, not inconsistent with the
express provisions of the Plan and in addition to other authority granted under
the Plan, to (a) grant Awards at such time or times as it may choose; (b)
determine the size of each Award, including the number of shares of Stock
subject to the Award; (c) determine the type or types of each Award; (d)
determine the terms and conditions of each Award; (e) waive compliance by a
Participant (as defined below) with any obligations to be performed by the
Participant under an Award and waive any term or condition of an Award; (f)
amend or cancel an existing Award in whole or in part (and if an Award is
cancelled, grant another Award in its place on such terms as the Committee shall
specify), or settle any award by paying the cash value of the Stock otherwise
issuable, except that the Committee may not, without the consent of the holder
of an Award, take any action under this clause with respect to such Award if
such action would adversely affect the rights of such holder; (g) prescribe the
form or forms of instruments that are required or deemed appropriate under the
Plan, including any written notices and elections required of Participants, and
change such forms from time to time; (h) adopt, amend and rescind rules and
regulations for the administration of the Plan; and (i) interpret the Plan and
decide any questions and settle all controversies and disputes that may arise in
connection with the Plan. Such determinations and actions of the Committee, and
all other determinations and actions of the Committee made or taken under
authority granted by any provision of the Plan, will be conclusive and will bind
all parties. Nothing in this paragraph shall be construed as limiting the power
of the Board or the Committee to make adjustments under Section 7.3 or Section
8.6.
3. EFFECTIVE DATE AND TERM OF PLAN
The Plan, having been adopted by the Board of Directors on April 21,
1995, will become effective on the date on which it is approved by the
stockholders of the Company. Grants of Awards under the plan may be made prior
to that date (but after Board adoption of the Plan), subject to such stockholder
approval of the Plan.
No Award may be granted under the Plan after April 21, 2005, but Awards
previously granted may extend beyond that date.
<PAGE>
4. SHARES SUBJECT TO THE PLAN
Subject to the adjustment as provided in Section 8.6 below, the
aggregate number of shares of Stock that may be delivered under the Plan will be
900,000. If any Award requiring exercise by the Participant for delivery of
Stock terminates without having been exercised in full, or if any Award payable
in Stock or cash is satisfied in cash rather than Stock, the number of shares of
Stock as to which such Award was not exercised or for which cash was substituted
will be available for future grants.
Stock delivered under the Plan may be either authorized but unissued
Stock or previously issued Stock acquired by the Company and held in treasury.
No fractional shares of Stock will be delivered under the Plan.
5. ELIGIBILITY AND PARTICIPATION
Those eligible to receive Awards under the Plan ("Participants") will be
key persons in the employ of the Company or any of its subsidiaries
("Employees") and other key persons, entities or employees (including without
limitation non-Employee directors of the Company or a subsidiary of the Company)
who, in the opinion of the Committee, are in a position to make a significant
contribution to the success of the Company or its subsidiaries. A "subsidiary"
for purposes of the Plan will be a corporation in which the Company owns,
directly or indirectly, stock possessing 50% or more of the total combined
voting power of all classes of stock.
Options for no more than 200,000 shares can be granted to any individual
in any one year under the Plan.
6. TYPES OF AWARDS
6.1. OPTIONS
(a) Nature of Options. An Option is an Award entitling the recipient on
exercise thereof to purchase Stock at a specified exercise price.
Both "incentive stock options," as defined in Section 422 of the
<PAGE>
Internal Revenue Code of 1986, as amended (the "Code") (any Option intended to
qualify as an incentive stock option being hereinafter referred to as an "ISO"),
and Options that are not incentive stock options, may be granted under the Plan.
ISOs shall be awarded only to Employees. Once an ISO has been granted, no action
by the Committee that would cause the Option to lose its status as an incentive
stock option under the Code will be effective without the consent of the Option
holder.
(b) Exercise Price. The exercise price of an Option will be
determined by the Committee, subject to the following:
(1) The exercise price of an ISO shall not be less than 100% (110% in the
case of an ISO granted to a ten-percent shareholder) of the fair market value of
the Stock subject to the Option, determined as of the time the Option is
granted. A "ten-percent shareholder" is any person who at the time of grant
owns, directly or indirectly, or is deemed to own by reason of the attribution
rules of Section 424(d) of the Code, stock possessing more than 10% of the total
combined voting power of all classes of stock of the Company or of its parent or
subsidiary corporation.
(2) In no case may the exercise price paid for Stock be less than the par
value per share of the Stock.
(3) The Committee may reduce the exercise price of an Option at any time
after the time of grant, but in the case of an Option originally awarded as an
ISO, only with the consent of the Participant.
(c) Duration of Options. The latest date on which an Option may be
exercised will be the tenth anniversary (fifth anniversary, in the case of an
ISO granted to a ten-percent shareholder) of the day immediately preceding the
date the Option was granted, or such earlier date as may have been specified by
the Board at the time the Option was granted.
(d) Exercise of Options. An Option will become exercisable at such time or
times, and on such conditions, as the Committee may specify. The Committee may
at any time and from time to time accelerate the time at which all or any part
of the Option may be exercised.
Any exercise of an Option must be in writing, signed by the
<PAGE>
proper person and delivered or mailed to the Company, accompanied by (1) any
documents required by the Committee and (2) payment in full in accordance with
paragraph (e) below for the number of shares for which the Option is exercised.
(e) Payment for Stock. Stock purchased on exercise of an Option must be
paid for as follows: (1) in cash or by check (acceptable to the Company in
accordance with guidelines established for this purpose), bank draft or money
order payable to the order of the Company, or (2) through the delivery of shares
of Stock (which in the case of Shares acquired from the Company, have been
outstanding for at least six months) having a fair market value on the last
business day preceding the date of exercise equal to the purchase price, or (3)
by delivery of an unconditional and irrevocable undertaking by a broker to
deliver promptly to the Company sufficient funds to pay the exercise price, or
(4) if so permitted by the instrument evidencing the Option (or in the case of
an Option which is not an ISO, by the Committee on or after grant of the
Option), by delivery of a promissory note of the Option holder to the Company,
payable on such terms as are specified by the Board, or (5) by any combination
of the permissible forms of payment; provided, that if the Stock delivered upon
exercise of the Option is an original issue of authorized Stock, at least so
much of the exercise price as represents the par value of such Stock must be
paid in cash. In the event that payment of the Option price is made under (2)
above, the Committee may provide that the Option holder be granted an additional
Option covering the numbers of shares surrendered, at an exercise price equal to
the fair market value of a share of Stock on the date of surrender.
(f) Discretionary Payments. If the market price of shares of Stock subject
to an Option (other than an Option which is in tandem with a Stock Appreciation
Right as described in Section 6.2 below) exceeds the exercise price of the
Option at the time of its exercise, the Committee may cancel the Option and
cause the Company to pay in cash or in shares of Common Stock (at a price per
share equal to the fair market value per share) to the person exercising the
Option an amount equal to the difference between the fair market value of the
Stock which would have been purchased pursuant to the exercise (determined on
the date the Option is cancelled) and the aggregate exercise price which would
have been paid. The Committee may exercise its discretion to take such action
only if it has received a written request from the person exercising the Option,
but such a request will not be binding on
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the Committee.
6.2. Stock Appreciation Rights.
(a) Nature of Stock Appreciation Rights. A Stock Appreciation Right is an
Award entitling the recipient on exercise of the Right to receive an amount, in
cash or Stock or a combination thereof (such form to be determined by the
Committee), determined in whole or in part by reference to appreciation in Stock
value.
Except as provided below, a Stock Appreciation Right entitles the
Participant to receive, with respect to each share of Stock as to which the
Right is exercised, the excess of the share's fair market value on the date of
exercise over its fair market value on the date the Right was granted. The
Committee may provide at the time of grant that the amount the recipient is
entitled to receive will be adjusted upward or downward under rules established
by the Committee to take into account the performance of the Stock in comparison
with the performance of other stocks or an index or indices of other stocks. The
Committee may also grant Stock Appreciation Rights providing that following a
Change in Control of the Company, as defined in Exhibit A, the holder of such
Right will be entitled to receive, with respect to each share of Stock subject
to the Right, an amount equal to the excess of a specified value (which may
include an average of values) for a share of Stock during a period preceding
such Change in Control over the fair market value of a share of Stock on the
date the Right was granted.
(b) Grant of Stock Appreciation Rights. Stock Appreciation Rights may be
granted in tandem with, or independently of, Options granted under the Plan. A
Stock Appreciation Right granted in tandem with an Option which is not an ISO
may be granted either at or after the time the Option is granted. A Stock
Appreciation Right granted in tandem with an ISO may be granted only at the time
the Option is granted.
(c) Rules Applicable to Tandem Awards. When Stock
Appreciation Rights are granted in tandem with Options, the
following will apply:
(1) The Stock Appreciation Right will be exercisable only at such time or
times, and to the extent, that the related Option is exercisable and will be
exercisable in accordance with
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the procedure required for exercise of the related Option.
(2) The Stock Appreciation Right will terminate and no longer be
exercisable upon the termination or exercise of the related Option, except that
a Stock Appreciation Right granted with respect to less than the full number of
shares covered by an Option will not be reduced until the number of shares as to
which the related Option has been exercised or has terminated exceeds the number
of shares not covered by the Stock Appreciation Right.
(3) The Option will terminate and no longer be exercisable upon the
exercise of the related Stock Appreciation Right.
(4) The Stock Appreciation Right will be transferable only with the related
Option.
(5) A Stock Appreciation Right granted in tandem with an ISO may be
exercised only when the market price of the Stock subject to the Option exceeds
the exercise price of such option.
(d) Exercise of Independent Stock Appreciation Rights. A Stock Appreciation
Right not granted in tandem with an Option will become exercisable at such time
or times, and on such conditions, as the Committee may specify. The Committee
may at any time accelerate the time at which all or any part of the Right may be
exercised.
Any exercise of an independent Stock Appreciation Right must be in writing,
signed by the proper person and delivered or mailed to the Company, accompanied
by any other documents required by the Committee.
6.3. Restricted and Unrestricted Stock.
(a) Nature of Restricted Stock Award. A Restricted Stock Award entitles the
recipient to acquire, for a purchase price to be specified by the Committee, but
in no event less than par value, shares of Stock subject to the restrictions
described in paragraph (d) below ("Restricted Stock").
(b) Acceptance of Award. A Participant who is granted a Restricted Stock
Award will have no rights with respect to such Award unless the Participant
accepts the Award by written instrument delivered or mailed to the Company
accompanied by
<PAGE>
payment in full of the specified purchase price, if any, of the shares covered
by the Award. Payment may be by certified or bank check or other instrument
acceptable to the Committee.
(c) Rights as a Stockholder. A Participant who receives Restricted Stock
will have all the rights of a stockholder with respect to the Stock, including
voting and dividend rights, subject to the restrictions described in paragraph
(d) below and any other conditions imposed by the Committee at the time of
grant. Unless the Committee otherwise determines, certificates evidencing shares
of Restricted Stock will remain in the possession of the Company until such
shares are free of all restrictions under the Plan.
(d) Restrictions. Except as otherwise specifically provided by the Plan,
Restricted Stock may not be sold, assigned, transferred, pledged or otherwise
encumbered or disposed of, and if the Participant ceases to be an Employee or
otherwise suffers a Status Change (as defined at Section 7.2 below) for any
reason, must be offered to the Company for purchase for the amount of cash paid
for the Stock, or forfeited to the Company if no cash was paid. These
restrictions will lapse at such time or times, and on such conditions, as the
Committee may specify. Upon lapse of all restrictions, Stock will cease to be
Restricted Stock for purposes of the Plan. The Committee may at any time
accelerate the time at which the restrictions on all or any part of the shares
will lapse.
(e) Notice of Election. Any Participant making an election under Section
83(b) of the Code with respect to Restricted Stock must provide a copy thereof
to the Company within 10 days of the filing of such election with the Internal
Revenue Service.
(f) Other Awards Settled with Restricted Stock. The Committee may, at the
time any Award described in this Section 6 is granted, provide that any or all
the Stock delivered pursuant to the Award will be Restricted Stock.
(g) Unrestricted Stock. The Committee may, in its sole discretion, approve
the sale to any Participant of shares of Stock free of restrictions under the
Plan for a price which is not less than the par value of the Stock.
6.4. Deferred Stock Awards.
<PAGE>
A Deferred Stock Award entitles the recipient to receive shares of Stock
to be delivered in the future. Delivery of the Stock will take place at such
time or times, and on such conditions, as the Committee may specify. The
Committee may specify that a Deferred Stock Award may be forfeited if certain
conditions are or are not satisfied. The Committee may at any time accelerate
the time at which delivery of all or any part of the Stock will take place. At
the time any Award described in this Section 6 is granted, the Committee may
provide that, at the time Stock would otherwise be delivered pursuant to the
Award, the Participant will instead receive an instrument evidencing the
Participant's right to future delivery of Stock.
6.5. Performance Awards; Performance Goals.
(a) Nature of Performance Awards. A Performance Award entitles the
recipient to receive, without payment, an amount in cash or Stock or a
combination thereof (such form to be determined by the Committee) following the
attainment of Performance Goals. "Performance Goals" are goals which may be
related to personal performance, corporate performance, departmental performance
or any other category of performance deemed by the Committee to be important to
the success of the Company. The Committee will determine the Performance Goals,
the period or periods during which performance is to be measured and all other
terms and conditions applicable to the Award.
(b) Other Awards Subject to Performance Condition. The Committee may, at
the time any Award described in this Section 6 is granted, impose the condition
(in addition to any conditions specified or authorized in this Section 6 or any
other provision of the Plan) that Performance Goals be met prior to the
Participant's realization of any payment or benefit under the Award.
6.6. Loans and Supplemental Grants.
(a) Loans. The Company may make a loan to a Participant ("Loan"), either
on the date of or after the grant of any Award to the Participant. A Loan may be
made either in connection with the purchase of Stock under the Award or with the
payment of any Federal, state and local income tax with respect to income
recognized as a result of the Award. The Committee will have full authority to
decide whether to make a Loan and to determine the amount, terms and conditions
of the Loan, including the interest
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rate (which may be zero), whether the Loan is to be secured or unsecured or with
or without recourse against the borrower, the terms on which the Loan is to be
repaid and the conditions, if any, under which it may be forgiven. However, no
Loan may have a term (including extensions) exceeding ten years in duration.
(b) Supplemental Grants. In connection with any Award, the Committee may
at the time such Award is made or at a later date, provide for and grant a cash
award to the Participant ("Supplemental Grant") not to exceed an amount equal to
(1) the amount of any federal, state and local income tax on ordinary income for
which the Participant may be liable with respect to the Award, determined by
assuming taxation at the highest marginal rate, plus (2) an additional amount on
a grossed-up basis intended to make the Participant whole on an after-tax basis
after discharging all the Participant's income tax liabilities arising from all
payments under this Section 6. Any payments under this subsection (b) will be
made at the time the Participant incurs Federal income tax liability with
respect to the Award.
7. EVENTS AFFECTING OUTSTANDING AWARDS
7.1. Death and Total or Permanent Disability.
If a Participant dies or is totally or permanently disabled, the
following will apply:
(a) All Options and Stock Appreciation Rights held by the Participant
immediately prior to death or total or permanent disability, as the case may be,
to the extent then exercisable, may be exercised by the Participant's executor
or administrator or the person or persons to whom the Option or Right is
transferred by will or the applicable laws of descent and distribution, at any
time within the one year period ending with the first anniversary of the
Participant's death, or total or permanent disability, as the case may be (or
such shorter or longer period as the Committee may determine), and shall
thereupon terminate. In no event, however, shall an Option or Stock Appreciation
Right remain exercisable beyond the latest date on which it could have been
exercised without regard to this Section 7. Except as otherwise determined by
the Committee, all Options and Stock Appreciation Rights held by a Participant
immediately prior to death or total or permanent disability, as the case may be,
that are not then exercisable shall terminate at the date of death or total or
permanent disability, as the case may be.
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(b) Except as otherwise determined by the Committee, all Restricted
Stock held by the Participant must be transferred to the Company (and, in the
event the certificates representing such Restricted Stock are held by the
Company, such Restricted Stock will be so transferred without any further action
by the Participant) in accordance with Section 6.3 above.
(c) Any payment or benefit under a Deferred Stock Award, Performance
Award, or Supplemental Grant to which the Participant was not irrevocably
entitled prior to death or total or permanent disability, as the case may be,
will be forfeited and the Award canceled as of the time of death, or total or
permanent disability, as the case may be, unless otherwise determined by the
Committee.
7.2. Termination of Service (Other Than By Death or
Disability).
If a Participant who is an Employee ceases to be an Employee for any
reason other than death or total or permanent disability, as the case may be, or
if there is a termination (other than by reason of death or total or permanent
disability, as the case may be) of the consulting, service or similar
relationship in respect of which a non-Employee Participant was granted an Award
hereunder (such termination of the employment or other relationship being herein
referred to as a "Status Change"), the following will apply:
(a) Except as otherwise determined by the Committee, all Options and
Stock Appreciation Rights held by the Participant that were not exercisable
immediately prior to the Status Change shall terminate at the time of the Status
Change. Any Options or Rights that were exercisable immediately prior to the
Status Change will continue to be exercisable for a period of three months (or
such longer period as the Board may determine), and shall thereupon terminate,
unless the Award provides by its terms for immediate termination in the event of
a Status Change. If the Status Change results from a discharge for cause, all
Awards will terminate if the Committee so determines in its discretion either
before or after such termination of employment. In no event, however, shall an
Option or Stock Appreciation Right remain exercisable beyond the latest date on
which it could have been exercised without regard to this Section 7. For
purposes of this paragraph, in the case of a Participant who is an Employee, a
Status Change shall not be deemed to have resulted by reason of (i) a sick leave
or
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other bona fide leave of absence approved for purposes of the Plan by the
Committee, so long as the Employee's right to reemployment is guaranteed either
by statute or by contract, or (ii) a transfer of employment between the Company
and a subsidiary or between subsidiaries, or to the employment of a corporation
(or a parent or subsidiary corporation of such corporation) issuing or assuming
an option in a transaction to which section 424(a) of the Code applies.
(b) Except as otherwise determined by the Committee, all Restricted
Stock held by the Participant at the time of the Status Change must be
transferred to the Company (and, in the event the certificates representing such
Restricted Stock are held by the Company, such Restricted Stock will be so
transferred without any further action by the Participant) in accordance with
Section 6.3 above.
(c) Any payment or benefit under a Deferred Stock Award, Performance
Award, or Supplemental Grant to which the Participant was not irrevocably
entitled prior to the Status Change will be forfeited and the Award cancelled as
of the date of such Status Change unless otherwise determined by the Committee.
7.3. Certain Corporate Transactions.
In the event of a consolidation or merger in which the Company is not
the surviving corporation or which results in the acquisition of substantially
all the Company's outstanding Stock by a single person or entity or by a group
of persons and/or entities acting in concert, or in the event of the sale or
transfer of substantially all the Company's assets or a dissolution or
liquidation of the Company (a "covered transaction"), all outstanding Awards
will terminate as of the effective date of the covered transaction, and the
following rules shall apply:
(a) Subject to paragraphs (b) and (c) below, the Committee may in its
sole discretion, prior to the effective date of the covered transaction, (1)
make each outstanding Option and Stock Appreciation Right exercisable in full,
(2) remove the restrictions from each outstanding share of Restricted Stock, (3)
cause the Company to make any payment and provide any benefit under each
outstanding Deferred Stock Award, Performance Award, and Supplemental Grant
which would have been made or provided with the passage of time had the
transaction not occurred and the
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Participant not suffered a Status Change (or died), and (4) forgive all or any
portion of the principal of or interest on a Loan.
(b) If an outstanding Award is subject to performance or other
conditions (other than conditions relating only to the passage of time and
continued employment) which will not have been satisfied at the time of the
covered transaction, the Committee may in its sole discretion remove such
conditions. If it does not do so, however, such Award will terminate as of the
date of the covered transaction notwithstanding paragraph (a) above.
(c) With respect to an outstanding Award held by a participant who,
following the covered transaction, will be employed by or otherwise providing
services to a corporation which is a surviving or acquiring corporation in such
transaction or an affiliate of such a corporation, the Committee may, in lieu of
the action described in paragraph (a) above, arrange to have such surviving or
acquiring corporation or affiliate grant to the Participant a replacement award
which, in the judgment of the Committee, is substantially equivalent to the
Award.
8. GENERAL PROVISIONS
8.1. Documentation of Awards.
Awards will be evidenced by such written instruments, if any, as may be
prescribed by the Board from time to time. Such instruments may be in the form
of agreements to be executed by both the Participant and the Company, or
certificates, letters or similar instruments, which need not be executed by the
Participant but acceptance of which will evidence agreement to the terms
thereof.
8.2. Rights as a Stockholder, Dividend Equivalents.
Except as specifically provided by the Plan, the receipt of an Award
will not give a Participant rights as a stockholder; the participant will obtain
such rights, subject to any limitations imposed by the Plan or the instrument
evidencing the Award, upon actual receipt of Stock. However, the Committee may,
on such conditions as it deems appropriate, provide that a Participant will
receive a benefit in lieu of cash dividends that would have
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been payable on any or all Stock subject to the Participant's Award had such
Stock been outstanding. Without limitation, the Committee may provide for
payment to the Participant of amounts representing such dividends, either
currently or in the future, or for the investment of such amounts on behalf of
the Participant.
8.3. Conditions on Delivery of Stock.
The Company will not be obligated to deliver any shares of Stock
pursuant to the Plan or to remove restriction from shares previously delivered
under the Plan (a) until all conditions of the Award have been satisfied or
removed, (b) until, in the opinion of the Company's counsel, all applicable
federal and state laws and regulation have been complied with, (c) if the
outstanding Stock is at the time listed on any stock exchange, until the shares
to be delivered have been listed or authorized to be listed on such exchange
upon official notice of notice of issuance, and (d) until all other legal
matters in connection with the issuance and delivery of such shares have been
approved by the Company's counsel. If the sale of Stock has not been registered
under the Securities Act of 1933, as amended, the Company may require, as a
condition to exercise of the Award, such representations or agreements as
counsel for the Company may consider appropriate to avoid violation of such Act
and may require that the certificates evidencing such Stock bear an appropriate
legend restricting transfer.
If an Award is exercised by the Participant's legal representative, the
Company will be under no obligation to deliver Stock pursuant to such exercise
until the Company is satisfied as to the authority of such representative.
8.4. Tax Withholding.
The Company will withhold from any cash payment made pursuant to an
Award an amount sufficient to satisfy all federal, state and local withholding
tax requirements (the "withholding requirements").
In the case of an Award pursuant to which Stock may be delivered, the
Committee will have the right to require that the Participant or other
appropriate person remit to the Company an amount sufficient to satisfy the
withholding requirements, or make other arrangements satisfactory to the
Committee with regard to such requirements, prior to the delivery of any Stock.
If and to
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the extent that such withholding is required, the Committee may permit the
Participant or such other person to elect at such time and in such manner as the
Committee provides to have the Company hold back from the shares to be
delivered, or to deliver to the Company, Stock having a value calculated to
satisfy the withholding requirement.
If at the time an ISO is exercised the Committee determines that the
Company could be liable for withholding requirements with respect to a
disposition of the Stock received upon exercise, the Committee may require as a
condition of exercise that the person exercising the ISO agree (a) to inform the
Company promptly of any disposition (within the meaning of section 424(c) of the
Code) of Stock received upon exercise, and (b) to give such security as the
Committee deems adequate to meet the potential liability of the Company for the
withholding requirements and to augment such security from time to time in any
amount reasonably deemed necessary by the Committee to preserve the adequacy of
such security.
8.5. Nontransferability of Awards.
No Award (other than an Award in the form of an outright transfer of
cash or Unrestricted Stock) may be transferred other than by will or by the laws
of descent and distribution, and during a Participant's lifetime an Award
requiring exercise may be exercised only by him or her (or in the event of the
Participant's incapacity, the person or persons legally appointed to act on the
Participant's behalf).
8.6. Adjustments in the Event of Certain Transactions.
(a) In the event of a stock dividend, stock split or combination of
shares, recapitalization or other change in the Company's capitalization, or
other distribution to common stockholders other than normal cash dividends,
after the effective date of the Plan, the Committee will make any appropriate
adjustments to the maximum number of shares that may be delivered under the Plan
under Section 4 above.
(b) In any event referred to in paragraph (a), the Committee will also
make any appropriate adjustments to the number and kind of shares of stock or
securities subject to Awards then outstanding or subsequently granted, any
exercise prices relating to Awards and any other provision of Awards affected by
such
<PAGE>
change. The Committee may also make such adjustments to take into account
material changes in law or in accounting practices or principles, mergers,
consolidations, acquisitions, dispositions or similar corporate transactions, or
any other event, if it is determined by the Committee that adjustments are
appropriate to avoid distortion in the operation of the Plan.
8.7. Employment Rights, Etc.
Neither the adoption of the Plan nor the grant of Awards will confer
upon any person any right to continued retention by the Company or any
subsidiary as an Employee or otherwise, or affect in any way the right of the
Company or subsidiary to terminate an employment, service or similar
relationship at any time. Except as specifically provided by the Committee in
any particular case, the loss of existing or potential profit in Awards granted
under the Plan will not constitute an element of damages in the event of
termination of an employment, service or similar relationship even if the
termination is in violation of an obligation of the Company to the Participant.
8.8. Deferral of Payments.
The Committee may agree at any time, upon request of the Participant, to
defer the date on which any payment under an Award will be made.
8.9. Past Services as Consideration.
Where a Participant purchases Stock under an Award for a price equal to
the par value of the Stock the Committee may determine that such price has been
satisfied by past services rendered by the Participant.
8.10. Fair Market Value
For purposes of the Plan, fair market value of a share of Stock on any
date will be the average of the bid and asked prices in the over-the-counter
market with respect to such Stock, as reported by the National Association of
Securities Dealers, Inc. Automated Quotation System or such other similar system
then in use; or, if on any such date such Stock is not quoted by any such
organization, the average of the closing bid and asked prices with respect to
such Stock, as furnished by a professional market maker making a market in such
Stock selected by the Committee; or if
<PAGE>
such prices are not available, the fair market value of such Stock as of such
date as determined in good faith by the Committee; or, where necessary, in order
to achieve the intended Federal income tax result, the value of a share of Stock
as determined by the Committee in accordance with the applicable provisions of
the Code.
9.EFFECT, DISCONTINUANCE, CANCELLATION, AMENDMENT AND
TERMINATION
Neither adoption of the Plan nor the grant of Awards to a Participant
will affect the Company's right to grant to such Participant cash or Stock
awards that are not subject to the Plan, to issue to such Participant Stock as a
bonus or otherwise, or to adopt other plans or arrangements under which Stock be
issued to Employees. The Committee may at any time discontinue granting Awards
under the Plan.
The Board may at any time or times amend the Plan (and the Committee may
amend any outstanding Award) for any purpose which may at the time be permitted
by law, or may at any time terminate the Plan as to any further grants of
Awards, provided that (except to the extent expressly required or permitted by
the Plan) no such amendment will, without the approval of the stockholders of
the Company, (a) increase the maximum number of shares available under the Plan,
(b) change the group of persons eligible to receive Awards under the Plan, (c)
extend the time within which Awards may be granted, or (d) amend the provisions
of this Section 9, and no amendment or termination of the Plan may adversely
affect the rights of any Participant (without the Participant's consent) under
any Award previously granted.
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