As Filed Electronically with the Securities and Exchange Commission on
December 16, 1996
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 25049
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
INTERSTATE/JOHNSON LANE, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 56-1470946
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
INTERSTATE TOWER
P.O. BOX 1012
CHARLOTTE, NORTH CAROLINA 28201-1012
(Address of Principal Executive Offices) (Zip Code)
INTERSTATE/JOHNSON LANE, INC. RESTATED STOCK AWARD PLAN
(Full Title of the Plan)
MICHAEL D. HEARN
SECRETARY
INTERSTATE/JOHNSON LANE, INC.
INTERSTATE TOWER
P.O. BOX 1012
CHARLOTTE, NORTH CAROLINA 28201-1012
(Name and Address of Agent For Service)
(704) 379-9000
(Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Proposed Maximum Proposed
Securities Amount Offering Price Maximum Amount
to be to be Per Share Aggregate of
Registered Registered Offering Price Registration Fee
<S> <C> <C> <C>
Common Stock,
par value $0.20 per 800,000 (1) $13.00(2) $10,400,000 $3,151.52
share
</TABLE>
(1) The registrant has previously registered on registration statements on Form
S-8 (Nos. 33-25323, 33-42743 and 33-56177) 1,000,000 shares of Common
Stock for issuance under the Plan. This registration statement is being
filed to register additional shares of Common Stock for issuance under
the Plan.
(2) Represents the average of the high and low prices of the Common Stock
as reported in the consolidated reporting system on December 13, 1996.
<PAGE>
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The contents of the following are incorporated herein by reference:
1. Registration Statement on Form S-8 (No. 33-25323) filed on November 7,
1988;
2. Registration Statement on Form S-8 (No. 33-42743) filed on September 13,
1991; and
3. Registration Statement on Form S-8 (No. 33-56177) filed on October 26,
1994.
Item 8. Exhibits
Exhibit
Number Description
4.1 Interstate/Johnson Lane, Inc. Stock Award Plan (as
amended through October 21, 1996).
4.2 Form of Subscription Agreement to be used in
conjunction with Stock Award Plan.
23.1 Consent of Coopers & Lybrand L.L.P.
2
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Charlotte, State of North Carolina, on December 13,
1996.
INTERSTATE/JOHNSON LANE, INC.
BY: /s/ Parks H. Dalton
Parks H. Dalton, Chairman of the Board
of Directors
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 date indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Parks H. Dalton Chairman of the Board December 13, 1996
Parks H. Dalton of Directors and Director
/s/ James H. Morgan President, Chief Executive December 13, 1996
James H. Morgan Officer and Director
/s/ Edward C. Ruff Chief Financial Officer December 13, 1996
Edward C. Ruff (Principal Accounting and
Financial Officer) and Director
/s/ Claude S. Abernathy, Jr. Director December 13, 1996
Claude S. Abernathy, Jr.
/s/ John B. Ellis Director December 13, 1996
John B. Ellis
</TABLE>
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<PAGE>
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
4.1 Interstate/Johnson Lane, Inc. Stock Award Plan
(as amended through October 21, 1996).
4.2 Form of Subscription Agreement to be used in
conjunction with Stock Award Plan.
23.1 Consent of Coopers & Lybrand L.L.P.
EXHIBIT 4.1
INTERSTATE/JOHNSON LANE, INC.
RESTATED STOCK AWARD PLAN
OCTOBER 21, 1996
ARTICLE I
PURPOSE; EFFECTIVE DATE; DEFINITIONS
1.1 Purpose. The Interstate/Johnson Lane, Inc. Restated Stock Award
Plan ("Restated Plan"), is intended to secure for Interstate/Johnson lane, Inc.
and its shareholders the benefits of the incentive inherent in common stock
ownership by the employees and outside directors of the Company who are largely
responsible for the Company's future growth and continued financial success and
to afford such persons the opportunity to obtain or increase a proprietary
interest in the Company on a favorable basis and, thereby, to have an
opportunity to share in its success.
1.2 Effective Date. Subject to the approval of the Board and of the
Company's shareholders if required pursuant to Section 7.9 below, this Restated
Plan shall be effective as of October 21, 1996. The original effective date of
this Restated Plan was October 19, 1987; it was first amended on October 1,
1991; and it was subsequently restated as of October 27, 1992 and again
restated as of October 25, 1994.
1.3 Definitions. Throughout this Restated Plan, the following
terms shall have the meanings respectively indicated:
(a) "Act" shall mean the Securities Exchange Act of 1934,
as amended;
(b) "Benefits" shall mean any one or more of the
following three awards that may be offered by the Committee to Employees under
this Restated Plan:
(i) Options,
(ii) Stock Appreciation Rights,
(iii) Restricted Stock, or
(iv) Unrestricted Stock;
(c) "Board" shall mean the Board of Directors of
Interstate/Johnson Lane, Inc.;
(d) "Code" shall mean the Internal Revenue Code of 1986,
as amended, and any successor revenue laws of the United States;
(e) "Committee" shall mean any committee of directors of
the Company designated by the Board to administer this Restated Plan;
<PAGE>
(f) "Common Stock" shall mean the common stock of
Interstate/Johnson Lane, Inc. par value $.20 per share;
(g) "Company" shall mean Interstate/Johnson Lane, Inc.
and any of its Subsidiaries;
(h) "Employee" shall mean any person engaged or proposed
to be engaged as an officer or employee of the Company;
(i) "Option" shall mean an option to purchase shares of
common Stock granted by the Committee to an Employee pursuant to this Restated
Plan;
(j) "Option Agreement" shall mean an agreement between
the Company and an Employee whereby an Option is granted;
(k) "Option Shares" shall mean the shares of Common Stock
purchased upon the exercise of an Option;
(l) "Restated Plan" shall mean this Interstate/Johnson
Lane, Inc. Restated Stock Award Plan, and any amendments hereto;
(m) "Restricted Stock" shall mean Common Stock (i) granted to
Employees under Section 6.1 of this Restated Plan, subject to such restrictions
as the Committee may determine, and (ii) issued to Outside Directors under
Section 6.2 of this Restated Plan in each case as evidenced in a Restricted
Stock Agreement;
(n) "Restricted Stock Agreement" shall mean an agreement
between the Company and an Employee or Outside Director pursuant to which
Restricted Stock is issued to the Employee
or Outside Director pursuant to this Restated Plan;
(o) "Restriction Period" shall mean the time period
during which the Restricted Stock is subject to the restrictions set forth in
the Restricted Stock Agreement;
(p) "SAR Agreement" shall mean an agreement between the
Company and an Employee pursuant to which a Stock Appreciation Right is issued
to the Employee pursuant to this
Restated Plan;
(q) "Stock Appreciation Rights" shall mean the right to
receive cash or Common Stock, granted pursuant to Article V of this Restated
Plan and a SAR Agreement;
(r) "Subsidiary" shall mean a subsidiary corporation of
Interstate/Johnson Lane, Inc., as defined in Sections 424(f) and 424(g) of the
Code;
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<PAGE>
(s) "Unrestricted Stock" shall mean Common Stock granted
under Article VI of this Plan that is not Restricted Stock; and
(t) "Unrestricted Stock Agreement" shall mean an
agreement between the Company and an Employee pursuant to which Unrestricted
Stock is issued to the Employee pursuant to this Plan.
ARTICLE II
ADMINISTRATION
2.1 Committee Administration. This Restated Plan, with respect to
grants and awards to Employees hereunder, shall be administered by the
Committee, which shall be appointed by the Board from time to time.
2.2 Committee Composition and Powers. The Committee shall consist of
not less than two persons who shall be members of the Board and shall be subject
to such terms and conditions as the Board shall prescribe. Each Committee member
shall be a "non-employee director" within the meaning of Rule 16b-3 promulgated
under the Act. Once designated, the Committee shall continue to serve until
otherwise directed by the Board. From time to time, the Board may increase the
size of the Committee and appoint additional members thereof, remove members
(with or without cause) and appoint new members in substitution therefor, fill
vacancies however caused, and remove all members of the Committee.
A majority of the entire Committee shall constitute a quorum and the
action of a majority of the members present at any meeting at which a quorum is
present shall be deemed the action of the Committee. In addition, any decision
or determination reduced to writing and signed by all of the members of the
Committee shall be fully as effective as if it had been made by a majority vote
at a meeting duly called and held. Subject to the provisions of this Restated
Plan, to the provisions of the Company's by-laws, and to any terms and
conditions prescribed by the Board, the Committee may make such rules and
regulations for the conduct of its business as it shall deem advisable. The
Committee shall hold meetings at such times and places as it may determine.
The interpretation and construction by the Committee of any provisions
of this Restated Plan, with respect to grants and awards to Employees hereunder,
or of any Benefit granted under it shall
be final unless otherwise determined by the Board.
2.3 Limitation on Receipt of Benefits by Committee Members. No person
while a member of the Committee shall be eligible to receive Benefits under this
Restated Plan, provided, however, that (i) to the extent applicable, a Committee
member may receive shares of Restricted Stock in lieu of cash compensation
pursuant to the formula provisions of Section 6.2 hereof; and (ii) a member of
the Committee may exercise Options (but not Stock Appreciation Rights) granted
prior to his becoming a member of the Committee.
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<PAGE>
2.4 Good Faith Determinations. No member of the Board, the board
of directors of any subsidiary or the Committee shall be liable for any action
or determination made in good faith with respect to this Restated Plan or any
Benefit granted under it.
ARTICLE III
ELIGIBILITY; TYPES OF BENEFITS; SHARES SUBJECT TO RESTATED PLAN
3.1 Eligibility. The Committee shall from time to time determine and
designate the Employees of the Company to receive Benefits under this Restated
Plan and the number of Options, Stock Appreciation Rights and shares of
Restricted Stock to be awarded to each such Employee, or the formula or other
basis on which such Benefits shall be awarded to Employees. In making any such
award, the Committee may take into account the nature of services rendered by an
Employee, commissions or other compensation earned by the Employee, the capacity
of the Employee to contribute to the success of the Company, and other factors
that the Committee may consider relevant.
3.2 Types of Benefits. Benefits under this Restated Plan may be granted
in any one or any combination of (a) Options; (b) Stock Appreciation Rights; (c)
Restricted Stock; and (d) Unrestricted Stock, as described in this Restated
Plan.
The Committee may: (a) give Employees a choice between two Benefits or
combinations of Benefits; (b) award Benefits in the alternative so that
acceptance of or exercise of one Benefit cancels the right of an Employee to
another; and (c) award Benefits in any combination or combinations and subject
to any condition or conditions consistent with the terms of this Restated
Plan that the Committee in its sole discretion may determine.
3.3 Shares Subject to this Restated Plan. Subject to the provisions of
Section 4.1(e) (relating to adjustment for changes in Common Stock), the maximum
number of shares that may be issued under this Restated Plan shall not exceed in
the aggregate 2,800,000 shares of Common Stock. Such shares may be authorized
and unissued shares, or authorized and issued shares that have been reacquired
by the Company as treasury stock. If any Options granted under this Restated
Plan shall for any reason terminate or expire or be surrendered without having
been exercised in full, the shares not purchased under such Options shall be
available again for grant under this Restated Plan. Upon the forfeiture (in
whole or in part) of Restricted Stock, the shares of Common Stock forfeited
shall be available again for grant under this Restated Plan.
ARTICLE IV
NONSTATUTORY STOCK OPTIONS
4.1 Grant; Terms and Conditions. The Committee from time to time
may grant nonstatutory stock options under this Restated Plan to the Employees,
which grant shall be evidenced by Option Agreements, which Option Agreements
shall be in such form and contain such provisions as the Committee shall from
time to time approve consistent with this Restated Plan. The
4
<PAGE>
Option Agreements need not be identical, but each Option Agreement by
appropriate language shall include the substance of all of the following terms
and conditions:
(a) Number of Shares. Each Option Agreement shall state
the number of shares to which it pertains.
(b) Option Price. Each Option Agreement shall state the
Option exercise price, which shall be determined by the Committee in its sole
discretion.
(c) Medium and Time of Payment. The Option shall be exercised
by the optionee by delivering to the Secretary of the Company, on any business
day during the term of the Option (the "Exercise Date"), (i) a written notice
specifying the number of Option Shares the optionee then desires to purchase
(the "Notice"), and (ii) payment in full in an aggregate amount in United States
dollars equal to the Option exercise price for the number of Option Shares
specified in the Notice (the "Total Option Price"). The payment of the Total
Option Price may be made (1) in cash or by check made payable to the order of
the Company, (2) with shares of Common Stock owned by the optionee, (3) by
permitting the Company to retain Option Shares otherwise issuable pursuant to
the Option, or (4) by any combination of the foregoing. In the case of clause
(2) or (3), the Common Stock or the Option Shares, as the case may be, shall be
valued at fair market value on the Exercise Date. In addition, in the case of
clause (3), the Corporation may retain that number of Option Shares otherwise
issuable pursuant to the Option having a fair market value equal to the amount
of any federal, state or local income, employment or other withholding taxes
applicable to the income recognized by such optionee and attributable to the
exercise of the Option (the "Withholding Taxes"). In all cases, the Notice shall
state that the optionee acknowledges that payment of the Total Option Price and
any Withholding Taxes is his or her absolute and personal liability enforceable
by the Corporation against him or her or his or her estate.
(d) Term and Exercise of Options. The term of each Option
shall be determined by the Committee. The Committee in its sole discretion may
impose a minimum on the number of shares which must be purchased at any one
time, which minimum (if any) shall be stated in the Option Agreement. During the
lifetime of the optionee, the Option shall be exercisable only by him and shall
not be assignable or transferable by him and no person shall acquire any rights
therein. An Option may be transferred (unless the Committee otherwise
prescribes) by will or the laws of descent or distribution.
(e) Recapitalization; Reorganization. Subject to any required
action by the shareholders of the Company, the maximum number of shares of
Common Stock that may be issued under this Restated Plan pursuant to Section 3.3
above, the number of shares of Common Stock covered by each outstanding Option,
the number of shares of Common Stock to which each Stock Appreciation Right
relates, and the per share exercise price under each outstanding Option, shall
be proportionately adjusted for any increase or decrease in the number of issued
shares of Common Stock resulting from a subdivision or consolidation of shares
or the payment of a stock dividend (but only on the Common Stock) or any other
increase or decrease in the number of such shares effected without receipt of
consideration by the Company.
5
<PAGE>
Subject to any required action by the shareholders, if the
Company is the surviving corporation in any merger, each outstanding Option
shall pertain to and apply to the securities or other consideration that a
holder of the number of shares of Common Stock subject to the Option would have
been entitled to receive in the merger. A dissolution, liquidation or
consolidation of the Company or a merger in which the Company is not the
surviving corporation, other than a merger effected for the purpose of changing
the Company's domicile, shall cause each outstanding Option to terminate,
provided that each optionee shall, in such event, have the right immediately
prior to such dissolution, liquidation, merger or consolidation, to exercise his
Option in whole or in part without regard to any installment provision contained
in his Option Agreement but subject, however, to the restriction that if a Stock
Appreciation Right has been granted in connection with an option neither the
Option nor the Stock Appreciation Right shall be exercisable within six (6)
months after their grant except in the event of death or disability of the
optionee. In the case of a merger effected for the purpose of changing the
Company's domicile, each outstanding Option shall continue in effect in
accordance with its terms and shall apply to the same number of shares of common
stock of such surviving corporation as the number of shares of Common Stock to
which it applied immediately prior to such merger, adjusted for any increase or
decrease in the number of outstanding shares of common stock of the surviving
corporation effected without receipt of consideration.
In the event of a change in the Common Stock as presently
constituted, which change is limited to a change of all of the authorized shares
with par value into the same number of shares with a different par value or
without par value, the shares resulting from any such change shall be deemed to
be the Common Stock within the meaning of this Restated Plan.
The foregoing adjustments shall be made by the Committee,
whose determination shall be final, binding and conclusive.
Except as expressly provided in this subsection, the optionee
shall have no rights by reason of (i) any subdivision or consolidation of shares
of any class, (ii) any stock dividend, (iii) any other increase or decrease in
the number of shares of stock of any class, (iv) any dissolution, liquidation,
merger, or consolidation or spin-off, split-off or split-up of assets of the
Company or stock of another corporation, or (v) any issuance by the Company of
shares of stock of any class, or securities convertible into shares of stock of
any class. Moreover, except as expressly provided in this subsection, the
occurrence of one or more of the above-listed events shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number or price
of shares of Common Stock subject to the option (or the number of shares with
respect to a related Stock Appreciation Right).
The grant of an Option pursuant to this Restated Plan shall
not affect in any way the right or power of the Company to make adjustments,
reclassifications, reorganizations or changes of its capital or business
structure or to merge or to consolidate or to dissolve, liquidate or sell, or
transfer all or any part of its business or assets.
(f) Rights as a Shareholder. Subject to Section 7.10 of
this Restated Plan, an optionee or a transferee of an Option shall have no
rights as a shareholder with respect to any shares
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<PAGE>
covered by his Option until the date of the issuance of a stock certificate to
him for those shares upon payment of the exercise price. No adjustments shall be
made for dividends (ordinary or extraordinary, whether in cash, securities or
other property) or distributions or other rights for which the record date is
prior to the date such stock certificate is issued, except as provided in
subsection 4.1(e).
(g) Modification, Extension and Renewal of Options. Subject to
the terms and conditions and within the limitations of this Restated Plan, the
Committee may modify, extend or renew outstanding Options granted under this
Restated Plan, or accept the surrender of outstanding Options (to the extent not
theretofore exercised) and authorize the granting of new Options in substitution
therefor (to the extent not theretofore exercised). No modification of an Option
shall, without the consent of the optionee, alter or impair any rights or
obligations under any Option theretofore granted under this Restated Plan.
(h) Exercisability and Term of Options. Options granted
pursuant to this Restated Plan are not intended to constitute "incentive stock
options" under Section 422 of the Code. Every Option Agreement shall provide
that unless an Option has earlier terminated, Options granted pursuant to this
Restated Plan shall be exercisable at any time on or after the date of exercise
set forth in the Option Agreement and before the date that is ten (10) years and
one (1) month after the date of grant; provided, however, an Option shall
terminate and may not be exercised if the Employee to whom it is granted ceases
to be employed by the Company except that the Option Agreement may, at the
discretion of the Committee, provide: (1) that if such Employee's employment
terminates for any reason other than conduct that in the judgment of the
Committee involves dishonesty or action by the Employee that is detrimental to
the best interest of the Company, the Employee may at any time within three
months after termination of his employment exercise his Option but only to the
extent the Option was exercisable by him on the date of termination of his
employment; (2) that if such Employee's employment terminates on account of
total and permanent disability, the Employee may at any time within one year
after termination of his employment exercise his Option but only to the extent
the Option was exercisable on the date of his termination of employment; or (3)
that if such Employee dies while in the employ of the Company, or within the
three or twelve month period following termination of his employment as
described in (1) or (2) above, his Option may be exercised at any time within
twelve months following his death by the person or persons to whom his rights
under the Option shall pass by will or by the laws of descent and distribution,
but only to the extent that such Option was exercisable by him on the date of
his termination of employment. Each Option Agreement may provide for
acceleration of exercisability in the event of retirement, death or disability.
Notwithstanding anything to the contrary in this subsection, an Option may not
be exercised by anyone after the expiration of its term.
4.2 Other Provisions. The Option Agreements authorized under this
Restated Plan shall contain such other provisions, including, without
limitation, restrictions upon the exercise of the Option and the consideration
to be received by the Company as payment for the Common Stock, as the Committee
shall deem advisable. (For example, the Committee could provide as to any Option
for a vesting schedule whereunder the optionee would be able to exercise his
Option as to (for
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<PAGE>
example) one-third of his Option Shares after a period of (for example) one year
from the date of grant of the Option, another one-third after two years, and so
on.)
ARTICLE V
STOCK APPRECIATION RIGHTS
5.1 Grant of Stock Appreciation Rights. The Committee may, in its
discretion, from time to time grant Stock Appreciation Rights to Employees who
are granted Options under this Restated Plan. Such Stock Appreciation Rights
shall relate to and be granted only in conjunction with specific Options and, if
granted, shall be granted at the time of the grant of the related Option. Stock
Appreciation Rights may be granted with respect to all or a specified portion of
the shares covered by the related Option. It is contemplated that the Committee,
in determining whether or not to grant Stock Appreciation Rights relating to an
Option, will give consideration to the circumstances of the Employee and
generally will grant Stock Appreciation Rights in connection with Options only
in those instances where the failure to grant Stock Appreciation Rights might
make exercise of an Option significantly burdensome to the Employee.
5.2 Exercise. Stock Appreciation Rights shall entitle the holder of the
related Option, upon exercise in whole or in part of the Stock Appreciation
Rights, to receive payment in the amount and form determined pursuant to
subsection 5.3(d). Stock Appreciation Rights may be exercised only at times and
to the extent the related Option is then exercisable. The exercise of Stock
Appreciation Rights shall result in a termination of the Stock Appreciation
Rights with respect to the number of shares covered by the exercise and shall
further result in a termination of the related Option with respect to the number
of shares covered by the exercise.
5.3 Terms and Conditions. The Committee may from time to time grant
Stock Appreciation Rights under this Restated Plan to the Employees which grants
shall be evidenced by SAR Agreements, which SAR Agreements shall be in such form
and contain such provisions as the Committee shall from time to time approve
consistent with this Restated Plan. The SAR Agreements need not be identical,
but each SAR Agreement by appropriate language shall include the substance of
all of the following additional terms and conditions:
(a) No Stock Appreciation Right shall be exercisable
before September 30, 1988.
(b) Stock Appreciation Rights shall be exercisable at such
time or times and to the extent, but only to the extent, that the Option to
which they relate is then exercisable.
(c) Stock Appreciation Rights shall not be exercisable during
the first six months after their date of grant. Such rights shall not be
transferable other than by will or by the laws of descent and distribution and
shall be exercisable during the optionee's lifetime only by the
optionee.
(d) Upon exercise of Stock Appreciation Rights, the optionee
shall be entitled to receive therefor payment, in the sole discretion of the
Committee, in the form of shares of Common
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Stock (rounded down to the next whole number so that no fractional shares are
issued), cash or any combination thereof. The amount of such payment shall be
equal in value to the difference between the Option exercise price per share of
the related Option and the fair market value per share of the shares of Common
Stock on the date the Stock Appreciation Right is exercised multiplied by the
number of shares with respect to which the Stock Appreciation Right shall have
been exercised.
(e) No Stock Appreciation Right may be exercised on a date on
which the fair market value (as determined above) of the Common Stock is less
than or equal to the exercise price
per share of the related Option.
(f) Stock Appreciation Rights granted under this Restated Plan
will expire or terminate no later than the expiration or termination date of the
related Option.
(g) Any exercise by an officer or director of the Company of a
Stock Appreciation Right may be made only during the ten-day period beginning on
the third business day following the release for publication of any quarterly or
annual statement of sales and earnings by the Company and ending on the 12th
business day following the date of such release, or such other period of time as
may be provided under Rule 16b-3 of the Securities and Exchange Commission or
successor rule or regulation. "Officer" for the purposes of this subsection
shall mean only officers who are subject to the Act.
5.4 Effect on Related Stock Option. The number of shares with respect
to which Stock Appreciation Rights are exercised (rather than the number of
shares issued by the Company upon such exercise) shall be deemed for the purpose
of Section 3.3 to have been issued under an Option granted pursuant to this
Restated Plan and shall not thereafter be available for the granting of further
Options under this Restated Plan.
ARTICLE VI
RESTRICTED AND UNRESTRICTED STOCK
6.1 Grants of Restricted Stock to Employees. The Committee from time to
time may award Restricted Stock to any Employee eligible to receive Benefits
under this Restated Plan. Each Employee who is awarded Restricted Stock shall
enter into a Restricted Stock Agreement with the Company in a form specified by
the Committee agreeing to the terms and conditions of the award and such other
matters consistent with this Restated Plan as the Committee in its sole
discretion shall determine. Such conditions may include, but shall not be
limited to, the deferral of a percentage of the Employee's annual cash
compensation, not including dividends paid on Restricted Stock, if any, to be
applied toward the purchase of Restricted Stock upon such terms and conditions,
including such discounts or forfeitures of compensation deferrals, as may be set
forth in the Restricted Stock Agreement.
Restricted Stock awarded to Employees may not be sold, transferred,
pledged or otherwise encumbered during a Restriction Period commencing on the
date of the award and ending at such later date or dates as the Committee may
designate at the time of the award. The Employee shall
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<PAGE>
have the entire beneficial ownership and most of the rights and privileges of a
shareholder with respect to Restricted Stock awarded to him, including the right
to receive dividends and the right to
vote such Restricted Stock.
If an Employee ceases to be employed by the Company prior to the
expiration of the Restriction Period, he shall forfeit all of his Restricted
Stock with respect to which the Restriction Period has not yet expired;
provided, however, the Restricted Stock Agreements, at the discretion of the
Committee and pursuant to such terms and conditions as it may impose, may
provide: (1) that if such Employee's employment terminates for any reason other
than conduct that in the judgment of the Committee involves dishonesty or action
by the Employee that is detrimental to the best interests of the Company, the
Restricted Stock shall not be forfeited; (2) that if such Employee's employment
terminates on account of total and permanent disability, the Employee shall not
forfeit his Restricted Stock; or (3) that if such Employee dies while employed
by the Company, his Restricted Stock is not forfeited.
Subject to Section 7.10 of this Restated Plan, each Employee who is
awarded Restricted Stock may, but need not, be issued a stock certificate in
respect of such shares of Restricted Stock. Each certificate registered in the
name of an Employee, if any, shall bear an appropriate legend referring to the
terms, conditions, and restrictions applicable to such award as specifically set
forth in the Restricted Stock Agreement.
The Committee shall require that any stock certificate issued in the
name of an Employee evidencing shares of Restricted Stock be held in the custody
of the Company until the expiration of the Restriction Period applicable to such
Restricted Stock and that, as a condition of such issuance of a certificate for
Restricted Stock, the Employee shall have delivered a stock power, endorsed in
blank, relating to the shares covered by such certificate. In no event shall the
Restriction Period end prior to the payment by the Employee to the Company of
the amount of any federal, state or local income or employment tax withholding
that may be required with respect to the Restricted Stock.
If any change is made in the Common Stock by reason of any merger,
consolidation, reorganization, recapitalization, stock dividend, split up,
combination of shares, exchange of shares, change in corporate structure, or
otherwise, any shares received by an Employee with respect to Restricted Stock
shall be subject to the same restrictions applicable to such Restricted Stock
and the certificates representing such shares shall be deposited with the
Company.
6.2 Issuance of Restricted Stock to Outside Directors. During the term
of the Restated Plan, and subject to the availability of shares of Common Stock
pursuant to Section 3.3 hereof, each member of the Board of Directors of
Interstate/Johnson Lane, Inc. who is not an employee of the Company (an "Outside
Director") shall receive shares of Restricted Stock under the Restated Plan in
lieu of the annual cash retainer that would otherwise be payable to such Outside
Director in consideration of his service as a director of Interstate/Johnson
Lane, Inc. On the date on which any such retainer would have been payable, the
director shall receive shares of Restricted Stock equal in number to the amount
of such retainer divided by the closing price of the Common Stock on such date.
Such shares of Restricted Stock shall not be sold, transferred, pledged,
assigned or in any
10
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manner disposed of for or during the six month period following the date such
shares of Restricted Stock are issued and any director who is issued shares of
Restricted Stock shall not be entitled to delivery of stock certificates
representing such shares until the expiration of such six month Restriction
Period. Such shares of Restricted Stock shall also be subject to the terms and
conditions generally applicable to Restricted Stock as outlined in Section 6.1
above, except that there shall be no forfeiture of shares in the event of
termination of an Outside Director's service as a member of the Board. Each
Outside Director who is issued Restricted Stock pursuant to this Section 6.2
shall enter into a Restricted Stock Agreement with the Company confirming the
terms and conditions of such issuance as stated herein.
6.3 Grants of Unrestricted Stock to Employees. The Committee from time
to time may award Unrestricted Stock to any Employee eligible to receive
Benefits under this Restated Plan. Each Employee who is awarded Unrestricted
Stock shall enter into an Unrestricted Stock Agreement with the Company in a
form specified by the Committee agreeing to the terms and conditions of the
award and such other matters consistent with this Restated Plan as the Committee
in its sole discretion shall determine. Such conditions may include, but shall
not be limited to, the deferral of a percentage of the Employee's annual cash
compensation, not including dividends paid on the Unrestricted Stock, if any, to
be applied toward the purchase of Unrestricted Stock upon such terms and
conditions, including such discounts or forfeitures of compensation deferrals,
as may be set forth in the Unrestricted Stock Agreement.
Upon the issuance of Unrestricted Stock to an Employee hereunder, the
Employee shall have the entire beneficial ownership and all the rights and
privileges of a shareholder with respect to the Unrestricted Stock awarded to
him or her, including the right to receive dividends and the right to vote such
Unrestricted Stock.
Subject to Section 7.10 of this Restated Plan, each Employee who is
awarded Unrestricted Stock may, but need not, be issued a stock certificate in
respect of such shares of Unrestricted
Stock.
ARTICLE VII
MISCELLANEOUS
7.1 Withholding Taxes. An Employee granted an Option, Restricted Stock,
Unrestricted Stock or Stock Appreciation Rights under this Restated Plan shall
be conclusively deemed to have authorized the Company to withhold from the
salary, commissions or other compensation of such Employee funds in amounts
equal to the federal, state and local income, employment or other withholding
taxes applicable to the income recognized by such Employee and attributable to
the Options, Option Shares, Restricted Stock, Unrestricted Stock or Stock
Appreciation Rights acquired pursuant to this Restated Plan at the time as may
be required by law; provided, however, that in lieu of the withholding of
federal, state and local taxes as herein provided, the Company may require that
the Employee (or other person exercising such Option or Stock Appreciation
Rights, or holding such Restricted Stock or Unrestricted Stock) pay the Company
an amount equal to the federal, state and local withholding taxes on such income
at the time such withholding is required or such other time as shall be
satisfactory to the Company.
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7.2 Amendment, Modification, Suspension or Discontinuance of Restated
Plan. The Board may from time to time alter, amend, suspend or discontinue this
Restated Plan or revise it in any respect whatsoever for the purpose of
maintaining or improving the effectiveness of this Restated Plan as an incentive
device, or conforming this Restated Plan to applicable governmental regulations
or to any change in applicable law or regulations, or for any other purpose
permitted by law; provided, however that no such action by the Board shall
adversely affect any Benefit theretofore granted under this Restated Plan
without the consent of the holder so affected; and provided further that, to the
extent necessary to comply with the rules and regulations of any stock exchange
upon which the Common Stock is listed, the Board may not increase the number of
shares of Common Stock authorized under Section 3.3 of this Restated Plan
without the approval of the shareholders of Interstate/Johnson Lane, Inc.
Anything herein to the contrary notwithstanding, the provisions or Section 6.2
hereof shall not, directly or indirectly, be amended more than once ever six
months other than to comport with changes in the Code, the Employee Retirement
Income Security Act of 1974, as amended from time to time, or the rules
thereunder.
7.3 Governing Law. This Restated Plan and all rights and
obligations hereunder shall be construed in accordance with and governed by the
laws of the State of North Carolina.
7.4 Designation. This Restated Plan may be referred to in other
documents and instruments as the "Interstate/Johnson Lane, Inc. Restated Stock
Award Plan."
7.5 Indemnification of Committee. In addition to such other rights of
indemnification as they may have as directors or as members of the Committee,
the members of the Committee shall be indemnified by the Company against the
reasonable expenses, including attorneys' fees actually and necessarily incurred
in connection with the defense of any action, suit or proceeding, or in
connection with any appeal therein, to which they or any of them may be a party
by reason of any action taken or failure to act under or in connection with this
Restated Plan or any Benefit granted thereunder, and against all amounts paid by
them in settlement thereof (provided such settlement is approved by independent
legal counsel selected by the Company) or paid by them in satisfaction of a
judgment in any such action, suit or proceeding, except in relation to matters
as to which it shall be adjudged in such action, suit or proceeding that such
Committee member is liable for negligence or misconduct in the performance of
his duties, provided that within 60 days after institution of any such action,
suit or proceeding, a Committee member shall in writing offer the Company the
opportunity, at its own expense, to handle and defend the same.
7.6 Reservation of Shares. The Company during the term of this Restated
Plan, shall at all times reserve and keep available, and will seek or obtain
from any regulatory body having jurisdiction any requisite authority in order to
issue such number of shares of its Common Stock as shall be sufficient to
satisfy the requirements of this Restated Plan. Inability of the Company to
obtain from any regulatory body having jurisdiction, the authority deemed by the
Company's counsel to be necessary to the lawful issuance of any shares of its
Common Stock hereunder shall relieve the Company of any liability in respect of
the nonissuance or sale of such stock as to which such requisite authority shall
not have been obtained.
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7.7 Application of Funds. The proceeds received by the Company from the
sale of Common Stock pursuant to Options will be used for general corporate
purposes.
7.8 No Obligation to Exercise. The granting of an Option shall
impose no obligation upon the optionee to exercise that Option.
7.9 Approval of Shareholders. No Benefit shall be granted pursuant to
this Restated Plan unless and until this Restated Plan has been approved, to the
extent such approval is required by law or by any self-regulatory organization,
by the shareholders of the Company.
7.10 Uncertificated Shares. Each Employee who exercises an Option to
acquire Common Stock or any person who is awarded Restricted Stock may, but need
not, be issued a stock certificate in respect of the Common Stock so acquired. A
"book entry" (i.e., a computerized or manual entry) shall be made in the records
of the Company to evidence the issuance of shares of Common Stock where no
physical certificate is issued. Such Company records, absent manifest error,
shall be binding on all parties. In all instances where the date of issuance of
shares may be deemed significant but no certificate is issued in accordance with
this Section 7.10, the date of the book entry shall be the relevant date for
such purposes.
13
EXHIBIT 4.2
1996 SUBSCRIPTION AGREEMENT
Pursuant to the
INTERSTATE/JOHNSON LANE, INC.
RESTATED STOCK AWARD PLAN
This Subscription Agreement ("Agreement") is entered into as of the
20th day of December, 1996, between Interstate/Johnson Lane, Inc., a Delaware
corporation (which, together with its subsidiaries, is referred to herein as the
"Company"), and _______________________(the "Employee").
WHEREAS, the Company and its stockholders previously have approved the
Interstate/Johnson Lane, Inc. Restated Stock Award Plan (the "Plan"), pursuant
to which the Company may, from time to time, make awards of Common Stock (as
hereinafter defined) to and enter into stock purchase agreements with certain of
its eligible employees as defined in the Plan;
WHEREAS, the Plan has been amended and restated, effective October 21,
1996;
WHEREAS, pursuant to the Plan, the Company has determined to allow the
Employee to subscribe to and purchase a certain number of shares of Common Stock
subject to the restrictions and provisions of this Subscription Agreement and
the Election Form;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the parties hereby agree as
follows:
1. Definitions.
For purposes of this Agreement, the following terms shall have
the meanings indicated:
(a) "Act" shall have the meaning indicated in Section 10
hereof.
(b) "Board" shall mean the Board of Directors of
Interstate/Johnson Lane, Inc.
(c) "Change in Control" shall mean the occurrence of any of
the following: (i) any person, within the meaning of Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934 (the "1934 Act"), shall become the
beneficial owner, within the meaning of Rule 13d-3 under the 1934 Act, of shares
of stock of Interstate/Johnson Lane, Inc. having 25% or more of the total number
of votes that may be cast for election of members of the Board, unless the
transaction(s) by which such 25% or more was acquired was approved or ratified
by a vote of at least two-thirds of the members of the Board of
Interstate/Johnson Lane, Inc.; or (ii) for any period of twelve consecutive
calendar months beginning after the date of award, a majority of the Board shall
fail to consist of individuals who were directors on the first day of such
period
<PAGE>
and/or individuals whose election as directors was approved or recommended by a
majority of the members of the Board in office at the time of their election.
(d) "Code" shall mean the Internal Revenue Code of 1986, as
amended, and any successor revenue laws of the United States.
(e) "Committee" shall mean any committee of directors of
the Company designated by the Board to administer the Plan.
(f) "Common Stock" shall mean the common stock of
Interstate/Johnson Lane, Inc., par value $.20 per share.
(g) "Company" shall mean Interstate/Johnson Lane, Inc.
and any of its Subsidiaries.
(h) "Deferral Account" shall mean an unfunded memorandum
deferral account established in the Company's records for the Employee for the
purpose of recording the Employee's monthly after-tax payroll withholdings under
Section 5(a) or pre-tax deferrals of
compensation under Section 5(b).
(i) "Disability" shall mean the inability or failure of the
Employee to perform those duties traditionally assigned to and performed by such
Employee for the Company because of the Employee's then existing physical or
mental condition, impairment or incapacity. The fact of Disability shall be
determined by the Committee, which may consider such evidence as they consider
desirable under the circumstances, the determination of which shall be final and
binding upon all parties.
(j) "Election Form" shall mean the provisions of Section
15 hereof.
(k) "Employee" shall mean the individual executing this
Agreement.
(l) "Plan" shall mean the Interstate/Johnson Lane, Inc.
Restated Stock Award Plan as amended and restated as of October 21, 1996 and any
subsequent amendments thereto.
(m) "Restricted Stock" shall mean Common Stock awarded by the
Committee to the Employee under Article VI of the Plan and pursuant to Sections
5 and 6 of this Agreement.
(n) "Restricted Period" shall mean the period beginning on the
date Restricted Stock is awarded to the Employee hereunder and ending on the
first anniversary date of such date; provided, that in no event shall the
Restricted Period end with respect to the Restricted Stock until the payment by
the Employee to the Company of the amount of any federal, state or local income
withholding or other employment tax required with respect thereto pursuant to
Section 9 below. The Committee, in its sole discretion, may alter the one-year
Restricted Period for a previously granted award (provided that the Committee
may not extend the Restricted
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Period for a previously granted award without the prior written consent of the
Employee affected thereby), and may provide for the lapse of such restrictions
in installments and accelerate or waive such restrictions in whole or in part
based on such factors and such circumstances as the Committee may determine, in
its sole discretion, pursuant to a written agreement with or written
notification to the Employee.
(o) "Retirement from the Industry" or "Retired from the
Industry" shall mean, with respect to the Employee, the permanent retirement of
the Employee from all aspects of the securities industry, as determined by the
Committee. The Employee shall not be eligible to be considered to have Retired
from the Industry unless he or she has given advance written notification to the
Committee prior to his or her termination of employment, furnished the Committee
with such verification as the Committee may request, and executed such
confirmations and documentation that he or she has Retired from the Industry as
the Committee may request (including, without limitation, affidavits, a
confidentiality agreement and covenant not to compete, and permission for the
Committee to investigate further). In all events where the Employee wishes to be
considered Retired from the Industry, issuance of Common Stock under this
Subscription Agreement shall be delayed for a minimum of one year during which
time the Employee's actions must be consistent with an intent to remain
permanently retired from all aspects of the securities industry.
(p) "Subscription Agreement" or "Agreement" shall mean this
Agreement between the Company and the Employee in which the Employee subscribes
for and agrees to purchase Common Stock pursuant to the Plan. This Agreement
shall constitute a Restricted Stock Agreement or Unrestricted Stock Agreement
(as applicable pursuant to Section 5) for purposes
of the Plan.
(q) "Subscription Stock Price" shall mean the greater of (i)
the average of the closing prices of Common Stock on the New York Stock Exchange
on each trading day during the period beginning November 18, 1996 and ending
November 29, 1996, and (ii) $11.00.
(r) "Subsidiary" shall mean any subsidiary corporation of
Interstate/Johnson Lane, Inc. as defined in Sections 424(f) and 424(g) of the
Code.
(s) "Termination" shall mean the cessation of the employment
relationship between the Company and the Employee for any reason. A leave of
absence granted in accordance with the Company's usual procedures, which does
not operate to interrupt continuous employment for other benefits granted by the
Company shall not be considered a termination of employment under this
Agreement. A period of related employment ("Related Employment") during which
the Employee is employed by an employer which is not the Company shall not be
considered a termination of employment under this Agreement, provided that (i)
such employment is undertaken by the Employee at the request of the Company,
(ii) immediately prior to undertaking such employment, the Employee was an
officer or employee of the Company or was engaged in Related Employment, and
(iii) such employment is recognized by the Committee, in its sole discretion, as
Related Employment for purposes of this Agreement. The death or
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Disability of the Employee during a period of Related Employment shall be
treated, for purposes of this Agreement, as if the death or onset of Disability
had occurred while the Employee was an officer or employee of the Company.
3. Subscription Amount and Price. The Employee subscribes for and
agrees to purchase, over an approximately five year period, that number of
shares of Common Stock set forth on the Election Form incorporated herein, for
which he shall pay the Subscription Stock Price per share.
4. Purchase Terms. The Employee agrees to pay the total subscription
amount in part through five consecutive annual payments which shall be
accumulated through either (i) monthly after-tax payroll withholdings or (ii)
monthly pre-tax deferrals of compensation (as described below in Sections 5(a)
and 5(b) and as elected by the Employee on the Election Form), such monthly
withholdings to begin on or as soon as administratively practicable following
January 1, 1997. The amount of such monthly withholdings or deferrals shall be
determined by the Company based upon a ten year amortization of the total
purchase price determined in accordance with Section 3. The difference between
the total subscription amount and the total of the five consecutive annual
payments shall be paid by the Employee in lump sum (and not through payroll
deduction) on January 15, 2002. Unless otherwise determined by the Committee,
the Employee shall not be permitted to prepay any amounts owed pursuant to this
Agreement nor shall he be permitted to accelerate or alter the payment terms
specified herein.
5. Deferral Account and Type of Stock. All amounts which have been
withheld from pay or deferred by the Employee pursuant to either Section 5(a) or
Section 5(b) as specifically elected by the Employee on the Election Form, less
amounts applied toward the purchase of Common Stock, shall be reflected in the
Employee's Deferral Account and shall not be credited with interest or earnings.
This Deferral Account shall be an unfunded memorandum account maintained for the
purpose of determining, subject to the maximum number of shares which may be
awarded pursuant to this Agreement, the number of shares of Common Stock that
the Employee shall be entitled to receive hereunder. If the Employee elects
Section 5(a), the shares of Common Stock that are issued annually over the five
year period of this Agreement to the Employee shall be unrestricted. If the
Employee elects Section 5(b), the shares of Common Stock that are issued
annually over the five year period of this Agreement to the Employee shall be
shares of Restricted Stock. Regardless of whether the Employee elects Section
5(a) or 5(b), the Common Stock issued following the final lump sum payment owed
pursuant to this Agreement shall be unrestricted.
(a) After-Tax Purchase Program. If so elected by the Employee
on the Election Form, the Employee hereby agrees to make monthly installment
payments to be applied toward the subscription amount through withholdings from
his or her after-tax total base compensation (which consists of fixed
semi-monthly or monthly pay and/or commission) for the approximately five year
term of this Agreement in the amount determined pursuant to Section 4 above. To
be effective, this Agreement (including the Election Form contained in this
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Agreement) must be executed by the Employee and received by the Committee or its
designee prior to the date on which such monthly payments are to commence.
(b) Deferred Compensation Program. If so elected by the
Employee on the Election Form, the Employee hereby agrees to make monthly
deferrals of his pre-tax total base compensation (which consists of fixed
semi-monthly or monthly pay and/or commission) for the approximately five year
term of this Agreement in the amount determined pursuant to Section 4 above. To
be effective, this Agreement (including the Election Form contained in this
Agreement) must be executed by the Employee and received by the Committee or its
designee prior to the date on which such deferrals are to commence. The total
amount of such deferrals shall reduce all amounts otherwise payable to the
Employee during the relevant period.
6. Issuance of Common Stock. Subject to the limitations of the terms
and conditions of the Plan and this Agreement, the Company shall award to the
Employee as of January 15, 1998 and as of each January 15 thereafter through
January 15, 2002 that number of shares of Common Stock (which shall consist of
Restricted Stock, if applicable pursuant to Section 5)
determined as follows:
Number of Shares Balance in Deferral Account as of January 15
--------------------------------------------
Awarded as of each January 15 = Subscription Stock Price
The Company shall award to the Employee on January 31, 2002 the
remaining and unissued shares of Common Stock subscribed for purchase by the
Employee following the Employee's payment of the lump sum amount determined
pursuant to Section 4 which is due on January 15, 2002.
Subject to Section 7(c) below, at the time that the Employee's Deferral
Account is applied to purchase Common Stock under this Agreement, the Company
may issue in the name of each Employee who is awarded Common Stock a stock
certificate evidencing the shares of Common Stock. A computerized "book entry"
shall be made in the records of the Company to evidence an award of shares of
Common Stock to an Employee where no certificate is issued in the name of the
Employee. Such Company records, absent manifest error, shall be binding on
participating Employees. Each certificate registered in the name of an Employee
shall bear an appropriate legend referring to the terms, conditions, and
restrictions applicable to such awards as set forth in Section 7 below. All
Common Stock, whether evidenced by book entry or by certificate, shall be
subject to this Agreement.
7. Special Provisions Applicable to Restricted Stock.
(a) No Transfer. The Employee shall not sell, transfer,
assign, convey, pledge, encumber or in any manner dispose of the Restricted
Stock either voluntarily or involuntarily during the Restricted Period.
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(b) Legend. Any stock certificate evidencing Restricted
Stock shall contain the a restrictive legend such as the following:
The transfer or encumbrance of the shares of stock represented
by this certificate is restricted under the terms of a
Subscription Agreement dated __________________, pursuant to
the Interstate/Johnson Lane, Inc. Restated Stock Award Plan,
as Amended and Restated as of October 21, 1996, copies of
which Subscription Agreement and Plan are on file at the
principal office of the Company.
(c) No Delivery of Certificate. Any such stock certificates
representing awarded Restricted Stock shall be held by the Company, and the
Employee shall not be entitled to delivery thereof until the expiration of the
Restricted Period. As a condition of any award of Restricted Stock, the Employee
shall have delivered to the Company a stock power, endorsed in blank, relating
to the shares covered by such award.
(d) Transfer After Lapse of Restrictions Subject to Applicable
Law. After the lapse of the restrictions under this Agreement and receipt of the
Restricted Stock, the Employee may transfer his or her Restricted Stock, subject
to any applicable federal or state laws that restrict such transfer, including a
sale of such Restricted Stock to the Company.
(e) Rights as Shareholder. Notwithstanding the transfer
restrictions and forfeiture provisions herein applicable to the Restricted Stock
during the Restricted Period, upon the award of Restricted Stock the Employee
shall have the entire beneficial ownership of the Restricted Stock and, subject
to the Plan and this Subscription Agreement, shall be entitled to exercise the
rights and privileges of a shareholder with respect to the Restricted Stock,
including the right to receive dividends and the right to vote such Restricted
Stock.
8. Effects of Termination or Change in Control. The occurrence
of the following events prior to the fulfillment of the Employee's obligations
under this Agreement shall result in the following actions being taken:
(a) Termination of Employment. Upon the Termination of the
Employee for any reason, the Employee shall be required to fulfill his
obligations under this Agreement by making monthly after-tax cash payments to
the Company in accordance with the terms and conditions of this Agreement. If
the Employee has been issued Restricted Stock pursuant to this Agreement, the
Employee shall forfeit all rights to ALL Restricted Stock then issued and
outstanding to the Employee hereunder with respect to which the Restricted
Period has not expired, unless the Employee's Termination was due to the
Employee's death, Disability or Retirement from the Industry. Notwithstanding
the foregoing, the Company may in its sole discretion forfeit all of the
terminated Employee's rights to purchase any additional Common Stock under this
Agreement and return the Employee's withholdings or deferrals made to date
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<PAGE>
under this Agreement and not yet used to purchase Common Stock, paid in cash
less applicable income and payroll taxes, without interest or earnings.
(b) Change in Control. Upon a Change in Control or upon
dissolution or liquidation of the Company (regardless of whether the Employee is
terminated as a result of such event), subject to the payment of applicable
withholding taxes, (i) the restrictions with respect to Restricted Stock then
issued and outstanding to the Employee hereunder shall lapse and the Employee
(or his personal representative) shall be entitled to the Restricted Stock free
of the transfer restrictions hereunder, and (ii) the Employee (or his personal
representative) shall be entitled to the cash withholdings or deferrals, made to
date under this Agreement and not yet used to purchase Common Stock, paid as if
he had terminated employment on the business day immediately preceding the date
of the Change of Control in accordance with the termination of employment
provisions of paragraph (a).
9. Payment of Withholding Taxes. With respect to Restricted Stock,
within 10 days prior to (i) the date on which the forfeiture restrictions set
forth in Section 7 above shall lapse with respect to the Restricted Stock or
(ii) the date on which the Employee makes an election under Section 83(b) of the
Code, or (iii) as soon as reasonably possible following death, and in each case
as a condition to the expiration of the Restricted Period and to delivery of
certificates for Restricted Stock issued pursuant to this Agreement, the
Employee shall pay to the Company the amount of any federal, state or local
income tax withholding or other employment tax with respect to the Restricted
Stock for which the forfeiture restriction set forth in Section 7 shall lapse.
With respect to Common Stock that is not Restricted Stock, within 10 days prior
to issuance of such Common Stock to the Employee pursuant to this Agreement, the
Employee shall pay to the Company the amount of any federal, state or local
income tax withholding or other employment tax with respect to such Common
Stock. In the case of an Employee who has elected to make pre-tax compensation
deferrals pursuant to Section 5(b) above, if any amounts in the Employee's
Deferral Account are returned to the Employee pursuant to Section 8(a), the
Company shall have the right to deduct from any payments made under the Plan any
federal, state, local or other taxes required by law to be withheld with respect
to such payments. The determination of the amount of any federal, state or local
income tax withholding or other employment tax due in such event shall be made
by the Company and shall be binding on the Employee. If the amount requested is
not paid, the Company may refuse to deliver share certificates and if
applicable, the Restricted Period shall not lapse. Payment to the Company by the
Employee of any required amount of withholding for tax purposes shall be made in
United States dollars by cash or check payable to the order of the Company or,
unless the Committee in its sole discretion shall determine otherwise and unless
such amounts become due as a result of an Employee's election under Section
83(b) of the Code, in whole or in part by an election by the Employee, in
accordance with rules adopted by the Committee from time to time, to have the
Company withhold shares otherwise issuable pursuant to the Plan having a fair
market value equal to such tax liability. Any required payment of withholding
taxes to the Company by the Employee shall be made by the Employee prior to
payment by the Company to the Employee of cash withholdings or deferrals or
Common Stock pursuant to this Agreement.
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<PAGE>
10. No Registration Rights.
(a) Anything in this Agreement to the contrary
notwithstanding, if, at any time specified herein for the issuance of Common
Stock under this Agreement, any law, regulation or requirements of any
government or authority having jurisdiction in the premises shall require either
the Company or the Employee to take any action in connection with the shares
then to be issued, the issuance of such shares shall be deferred until such
action shall have been taken. Nothing in this Agreement shall be construed to
obligate the Company at any time (including during or after the Restricted
Period, if applicable) to file or maintain the effectiveness of a registration
statement under the Securities Act of 1933 (the "Act") or under the securities
laws of any jurisdiction, or to take or cause to be taken any action which may
be necessary in order to provide an exemption from the registration requirements
of the Act under Rule 144 or any other exemption with respect to the Common
Stock or otherwise for resale or distribution by the Employee (or by the
executor or administrator of such Employee's estate or a person who acquired
such Common Stock or other rights by bequest or inheritance or by reason of the
death of such Employee) as a result of the receipt of Common Stock hereunder.
(b) The Employee hereby represents to the Company that he is
acquiring the Common Stock pursuant to this Agreement for investment for his own
account and not with a view to the resale or distribution of any part thereof,
as such terms are defined in the rules and regulations of the Securities and
Exchange Commission promulgated under the Act, and hereby agrees that none of
such Common Stock will be sold, transferred or otherwise disposed of unless: (i)
a registration statement under the Act shall at the time of disposition be
effective with respect to the Common Stock sold, transferred, or otherwise
disposed of; (ii) the Company shall have received an opinion of counsel or other
information and representations satisfactory to it to the effect that
registration under the Act is not required, by reason of the application of Rule
144 or otherwise, for such sale, transfer or other disposition; or (iii) a
"no-action" letter shall have been received from the staff of the Securities and
Exchange Commission to the effect that such sale, transfer, or other disposition
may be made without registration. In the discretion of the Committee, the person
receiving stock certificates shall be required at the time of such receipt to
reaffirm the foregoing representation to the Company.
11. General Assets. The Company's obligations under this Agreement are
purely contractual, and the parties do not intend that the amount payable
hereunder be held by the Company in trust for the Employee or a beneficiary or
as a segregated fund. Title to any assets which the Company may earmark or
credit to any particular deferral account for purposes of designating or setting
aside amounts to satisfy its obligations under this Agreement shall at all times
remain in the Company and be subject to the Company's creditors. The Employee or
his beneficiary shall not have any property interest whatsoever in any asset or
amount attributable to the Deferral Account, and nothing contained in this
Agreement (or action taken pursuant to this Agreement) shall create or be
construed to create a trust of any kind or a fiduciary relationship between the
Company and Employee, his beneficiary or any other person. Nothing in this
Section 11, however, shall prevent or impede the Employee from enforcing his
contractual rights under this Agreement as a general unsecured creditor of the
Company.
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<PAGE>
12. Resolution of Disputes. Any dispute or disagreement that arises
under, or as a result of, or pursuant to, this Agreement shall be determined by
the Committee in its absolute and uncontrolled discretion, and any such
determination or other determination by the Committee under or pursuant to this
Agreement and any interpretation by the Committee of the terms of this Agreement
shall be final, binding and conclusive on all parties affected thereby;
provided, however, that the Board shall have the right, in its absolute and
uncontrolled discretion, to overrule or modify any determination or
interpretation made by the Committee, and, in such event, the determinations or
interpretations of the Board shall be final, binding and conclusive on all
parties affected thereby.
13. Non-Transferability of Employee's Rights. The Employee's rights and
interests under the Plan and this Agreement may not be assigned or transferred
in whole or in part either directly or by operation of law or otherwise (except
in the event of the Employee's death, but then only to the extent otherwise
provided for in this Agreement) including, but not by way of limitation,
execution, levy, garnishment, attachment, pledge, bankruptcy or in any other
manner, and no such right or interest of the Employee in his Common Stock or
Deferral Account shall be subject to any obligation or liability of the
Employee.
14. Miscellaneous.
(a) Binding on Successors and Representatives. This Agreement
shall be binding, not only upon the parties hereto, but also on their heirs,
executors, administrators, personal representatives, successors and assigns
(including any transferee of a party to this Agreement); and the parties agree,
for themselves and their successors, assigns and representatives, to execute any
instrument which may be necessary legally to effect the terms and conditions of
this Agreement.
(b) Entire Agreement; Relationship to Plan. This Agreement
(which includes the Election Form), together with the Plan, constitute the
entire agreement of the parties with respect to the Deferral Account and the
Common Stock to be awarded pursuant to this Agreement and supersedes any
previous agreements, whether written or oral, with respect thereto. This
Agreement has been entered into in compliance with the terms of the Plan, and
wherever a conflict may arise between the terms of this Agreement and the terms
of the Plan, the terms of the Plan shall control.
(c) Amendment. Neither this Agreement nor any of the terms and
conditions herein set forth may be altered or amended verbally, and any such
alteration or amendment shall only be effective when reduced to writing and
signed by each of the parties, or their respective successors and assigns.
(d) Construction of Terms. Any reference herein to the
masculine shall include the feminine or neuter, and any reference herein to the
singular or plural shall be construed as plural or singular whenever the
context requires.
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<PAGE>
(e) Notices. All notices, requests and amendments under
this Agreement, shall be in writing, and notices shall be deemed to have been
given when personally delivered or sent by prepaid registered mail:
(i) if to the Company, at the following address:
Interstate/Johnson Lane, Inc.
Interstate Tower
P. O. Box 1012
Charlotte, North Carolina 28201-1012
Attention: Michael D. Hearn, Secretary
or at such other address as the Company
shall designate by notice.
(ii) if to the Employee, to the Employee's
address appearing in the Company's
employment records, or at such other address
as the Employee shall designate by notice.
(f) Governing Law. This Agreement is entered into in the State
of North Carolina and shall be governed by the laws of the State of North
Carolina and the parties hereby consent to the jurisdiction of the Superior
Court of Mecklenburg County, North Carolina for purposes of adjudicating any
issue hereunder.
(g) Severability. The invalidity or unenforceability of any
particular provision of this Agreement shall not affect the other provisions
hereof, and this Agreement shall be construed in all respects as if such invalid
or unenforceable provisions were omitted.
(h) Employment. Nothing in this Agreement or the Plan shall be
interpreted as altering the employment relationship between the Company and the
Employee, which relationship has been and shall continue, at the option of the
Company, to be employment of the Employee at the will of the Company.
(i) Headings. Titles and headings to sections in this
Agreement are inserted for reference only and are not intended to be a part of
or to affect the meaning or interpretation of this Agreement.
15. Employee Election. By completing the following Election Form
and executing this Agreement, the Employee hereby makes the indicated elections
pursuant to this Agreement.
(a) Number of shares of Common Stock Available for
Purchase: [* * *]
Subject to the terms and conditions of this Agreement between
Interstate/Johnson Lane, Inc. ("IJL") and me dated as of December 20,
1996, I hereby irrevocably subscribe
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<PAGE>
for and agree to purchase ______________ shares of Common Stock.
([OPTION: number of shares elected can be no less than 2,500 and no more
than * * *]).
(b) Elect either Option 1 or Option 2.
[ ] 1. I hereby irrevocably elect to participate in the After-Tax
Purchase Program pursuant to Section 5(a) of this Agreement and to have
withheld from my after-tax compensation each month for the five year
period beginning January 1, 1997 and ending December 31, 2001 an amount
based upon a ten-year amortization of the total purchase price for the
shares of Common Stock I have subscribed for and agreed to purchase
under Section 15(a) above. I understand that this amount of my
compensation will be withheld from all payroll checks on an after-tax
basis, reflected in an unfunded memorandum deferral account on IJL's
books and applied towards shares of Common Stock to be awarded in five
annual installments as of each January 15 beginning January 15, 1998.
I further understand and agree to make a lump sum "balloon" payment to
IJL on January 15, 2002 equal to the difference between the total
purchase price for the shares of Common Stock I have subscribed for and
agreed to purchase and the total of my monthly after-tax payments made
as of that date to be applied toward the remaining and unissued shares
of Common Stock, as more particularly described elsewhere in this
Agreement.
[ ] 2. I hereby irrevocably elect to participate in the Deferred
Compensation Program pursuant to Section 5(b) of this Agreement and to
have deferred from my pro-tax compensation each month for the five
year period beginning January 1, 1997 and ending December 31, 2001 an
amount based upon a ten-year amortization of the total purchase price
for the shares of Common Stock I have subscribed for and agreed to
purchase under Section 15(a) above. I understand that this amount of my
compensation will be withheld from all payroll checks on a pre-tax
basis, reflected in an unfunded memorandum deferral account on IJL's
books and applied towards shares of Common Stock to be awarded in five
annual installments as of each January 15 beginning January 15, 1998. I
further understand and agree to make a lump sum "balloon" payment to
IJL on January 15, 2002 equal to the difference between the total
purchase price for the shares of Common Stock I have subscribed for and
agreed to purchase and the total of my monthly pre-tax deferrals made
as of that date to be applied toward the remaining and unissued shares
of Common Stock, as more particularly described elsewhere in this
Agreement.
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<PAGE>
* * * * * * * * * * * * * * * * * * * *
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
INTERSTATE/JOHNSON LANE, INC.
By:
Title:
EMPLOYEE:
[SEAL]
Name Printed
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
Interstate/Johnson Lane, Inc. on Form S-8 of our report dated October 24, 1995
on our audits of the consolidated financial statements and financial statement
schedules of Interstate/Johnson Lane, Inc. as of September 30, 1995 and 1994 and
for the years ended September 30, 1995, 1994 and 1993, which report was included
in the Interstate/Johnson Lane, Inc. Annual Report on Form 10-K for the year
ended September 30, 1995. We also consent to the reference to our Firm under the
caption "Experts."
/s/ Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
Charlotte, North Carolina
December 13, 1996
