Registration No. 33-________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
AMERICAN WOODMARK CORPORATION
(Exact name of registrant as specified in its charter)
VIRGINIA 54-1138147
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3102 Shawnee Drive, Winchester, Virginia 22601
(Address of Principal Executive Offices) (Zip Code)
AMERICAN WOODMARK CORPORATION
1996 STOCK OPTION PLAN
(Full title of the plan)
James J. Gosa
President and CEO
American Woodmark Corporation
3102 Shawnee Drive
Winchester, Virginia 22601
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (540) 665-9116
Copy to
R. Gordon Smith
McGuire, Woods, Battle & Boothe, L.L.P.
One James Center
Richmond, Virginia 23219
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of the registration statement.
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CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
Proposed Proposed
Title of Maximum Maximum Amount of
Securities to Amount to be Offering Price Aggregate Registration
be Registered Registered Per Share Offering Price Fee
- --------------- -------------- -------------- -------------- ---------------
American 750,000 $7.6875 (2) $5,765,625.00 $1,988
Woodmark shares (1)
Corporation
Common Stock,
$1.00 par value
(1) Represents the maximum number of shares of Common Stock of American Woodmark
Corporation (the "Company") that may be offered and sold hereunder.
(2) Estimated solely for purposes of calculating the registration fee. Based
on the average of the high and low prices for the Common Stock reported on
NASDAQ on September 19, 1996.
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PART II - INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The Company and the American Woodmark Corporation 1996 Stock Option Plan
(the "Plan") hereby incorporate by reference into this Registration Statement
the documents listed below which have been filed with the Securities and
Exchange Commission.
(a) The Company's Annual Report on Form 10-K filed with the Commission on
July 17, 1996 for the Company's fiscal year ended April 30, 1996.
(b) All reports filed pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act"), as amended since the end of
the fiscal year covered by the prospectus referred to in (a) above.
(c) The description of the Common Stock contained in the Company's
Registration Statement Form 8-A filed with the Commission on July 15,
1986 pursuant to Section 12 of the Exchange Act.
Each document or report subsequently filed by the Company and the Plan with
the Commission pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange
Act after the date of this Registration Statement, but prior to the filing of a
posteffective amendment to this Registration Statement which indicates that all
securities offered by this Registration Statement have been sold or which
deregisters all such securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement. Each document or
report incorporated into this Registration Statement by reference shall be
deemed to be a part of this Registration Statement from the date of the filing
of such document with the Commission until the information contained therein is
superseded or updated by any subsequently filed document which is incorporated
by reference into this Registration Statement.
Item 6. Indemnification of Directors and Officers
Article 10 of the Virginia Stock Corporation Act allows, in general, for
indemnifications, in certain circumstances, by a corporation of any person
threatened with or made a party to any action, suit, or proceeding by reason of
the fact that he or she is, or was, a director, officer, employee, or agent of
such corporation. Indemnification is also authorized with respect to a criminal
action or proceeding where the person had no reasonable cause to believe that
his conduct was unlawful. Article 9 of the Virginia Stock Corporation Act
provides limitations on damages payable by officers and directors, except in
cases of willful misconduct or knowing violation of criminal law or any federal
or state securities law.
The Registrant's Articles of Incorporation provide for mandatory
indemnification of its directors and officers against liability incurred by them
in proceedings instituted or threatened against them by third parties, or by or
on behalf of the Registrant itself, relating to the manner in which they
performed their duties unless they have been guilty of willful misconduct or a
knowing violation of the criminal law.
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Item 8. Exhibits
The following exhibits are filed herewith as part of this Registration
Statement:
(a) Exhibit 5 - Opinion and Consent of McGuire, Woods, Battle & Boothe,
L.L.P., Counsel to the Company as to the validity of the Common Stock
offered hereunder
(b) Exhibit 23 (23.1) - Consent of Ernst & Young LLP, Independent Auditors
(c) Exhibit 23 (23.2) - Consent of McGuire, Woods, Battle & Boothe, L.L.P.
(Exhibit 23.2/Consent of legal counsel is included in Exhibit 5)
(d) Exhibit 28 - American Woodmark Corporation 1996 Stock Option Plan
Item 9. Undertakings
The undersigned registrant hereby undertakes or acknowledges:
To file, during any period in which offers or sales are being made, a post-
effective amendment to this registration statement:
(a) (1) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(i) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement;
(ii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed by the registrant pursuant to section 13 or section
15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a posteffective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) That, for purposes of determining any liability under the Securities Act
of 1933, each filing of the registrant's annual report pursuant to
section 13(a) or section 15(d) of the Securities Exchange Act of 1934,
and each filing of the Plan's annual report pursuant to section 15(d) of
the Securities Exchange Act of 1934 that is incorporated by reference in
the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
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(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or paid
by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion
of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8, and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Winchester, Commonwealth of Virginia, on
September 20, 1996.
AMERICAN WOODMARK CORPORATION
(Registrant)
By: /s/JAMES J. GOSA
James J. Gosa
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities indicated on September 20, 1996.
/s/WILLIAM F. BRANDT, JR. /s/JOHN T. GERLACH
William F. Brandt, Jr. John T. Gerlach
Chairman of the Board Director
/s/JAMES J. GOSA /s/DANIEL T. CARROLL
James J. Gosa Daniel T. Carroll
President and Chief Executive Director
Officer
Director
/s/KENT B. GUICHARD /s/C. ANTHONY WAINWRIGHT
Kent B. Guichard C. Anthony Wainwright
Vice President, Finance and Director
Chief Financial Officer
(principal financial and
accounting officer)
/s/RICHARD A. GRABER /s/MARTHA M. DALLY
Richard A. Graber Martha M. Dally
Director Director
/s/DONALD P. MATHIAS
Donald P. Mathias
Director
EXHIBIT 5 & EXHIBIT 23.2
September 20, 1996
Board of Directors
American Woodmark Corporation
3102 Shawnee Drive
Winchester, Virginia 22601
Gentlemen:
We have acted as your counsel in connection with the preparation of a
Registration Statement on Form S-8 to be filed with the Securities and Exchange
Commission pursuant to the Securities Act of 1933, as amended (the "Registration
Statement"), with respect to the offering of up to 750,000 shares of Common
Stock, $1.00 par value per share of American Woodmark Corporation (the
"Company") to be issued pursuant to the American Woodmark Corporation 1996 Stock
Option Plan (the "Plan").
We are familiar with the Registration Statement and have examined such
corporate documents and records, including the Plan, and such matters of law as
we have considered appropriate to enable us to render the following opinion. On
the basis of the foregoing, we are of the opinion that:
The Company is a corporation duly organized and validly existing under the
laws of the Commonwealth of Virginia and has the power to issue up to 750,000
shares of Company Common Stock, $1.00 par value, that are to be registered with
the Securities and Exchange Commission on a Form S-8 Registration Statement. We
are further of the opinion that the Common Stock being registered, when issued
in accordance with the related resolutions of the Board of Directors and the
terms of the Plan, will be duly authorized, validly issued, fully paid and non-
assessable.
We consent to the filing of this opinion as Exhibit 5 to the Registration
Statement and to the reference to us under the caption "Legal Opinions" in the
Registration Statement.
Very truly yours,
/s/ MCGUIRE, WOODS, BATTLE &
BOOTHE, L.L.P.
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the 1996 Stock Option Plan of our report dated June 7,
1996, with respect to the financial statements of American Woodmark Corporation
incorporated by reference in its Annual Report (Form 10-K) for the year ended
April 30, 1996 and the related financial statement schedule included therein,
filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Baltimore, Maryland
September 20, 1996
EXHIBIT 28
AMERICAN WOODMARK CORPORATION
1996 STOCK OPTION PLAN
AMERICAN WOODMARK CORPORATION (the "Company") hereby adopts
this American Woodmark Corporation 1996 Stock Option Plan.
1. PURPOSE
The purpose of the American Woodmark Corporation 1996 Stock
Option Plan (the "Plan") is to further the long term stability
and financial success of the Company by attracting and retaining
key management employees and employees of the Company and its
Subsidiaries who can contribute to the financial success of those
corporations through the use of stock incentives. It is believed
that ownership of Company Stock will further the identification
of those individuals' interests with those of the Company's
shareholders and stimulate the efforts of those employees upon
whose judgment, interest and efforts the Company and its
Subsidiaries is and will be largely dependent for the successful
conduct of their business.
The Plan has been adopted by the Board of Directors of the
Company subject to approval by the Company's shareholders.
2. DEFINITIONS
As used in the Plan, the following terms have the meanings
indicated:
(a) "Act" means the Securities Exchange Act of 1934, as
amended.
(b) "Applicable Withholding Taxes" means the aggregate amount
of federal, state and local income and payroll taxes that the
Company is required to withhold in connection with any exercise
of an Option.
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(c) "Award" means the award of a nonstatutory Option.
(d) "Beneficiary" means the person or persons entitled to
receive a benefit pursuant to an Option upon the death of a
Participant.
(e) "Board" means the Board of Directors of the Company.
(f) "Change of Control" means:
(i) The acquisition by any unrelated person of beneficial
ownership (as that term is used for purposes of the Act) of
50% or more of the then outstanding shares of common stock of
the Company or the combined voting power of the then
outstanding voting securities of the Company entitled to vote
generally in the election of directors. The term "unrelated
person" means any person other than (x) the Company and its
Subsidiaries, (y) an employee benefit plan or trust of the
Company or its Subsidiaries, and (z) a person who acquires
stock of the Company pursuant to an agreement with the
Company that is approved by the Board in advance of the
acquisition, unless the acquisition results in a Change of
Control pursuant to subsection (ii) below. For purposes of
this subsection, a "person" means an individual, entity or
group, as that term is used for purposes of the Act.
(ii) Any tender or exchange offer, merger or other business
combination, sale of assets or any combination of the
foregoing transactions, and the Company is not the surviving
corporation.
(iii) A liquidation of the Company.
(g) "Code" means the Internal Revenue Code of 1986, as
amended.
(h) "Committee" means the committee appointed to administer
the Plan as provided in Section 13.
(i) "Company" means American Woodmark Corporation.
(j) "Company Stock" means common stock of the Company. In
the event of a change in the capital structure of the Company
(as provided in Section 12), the shares resulting from such a
change shall be deemed to be Company Stock within the meaning
of the Plan.
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(k) "Corporate Change" means a consolidation, merger,
dissolution or liquidation of the Company or a Subsidiary, or
a sale or distribution of assets or stock (other than in the
ordinary course of business) of the Company or a Subsidiary;
provided that, unless the Committee determines otherwise, a
Corporate Change shall only be considered to have occurred
with respect to Participants whose business unit is affected
by the Corporate Change.
(l) "Date of Grant" means the date as of which an Option is
made by the Committee.
(m) "Disability" or "Disabled" means the inability to perform
the job for which a Participant was employed because of a
physical or mental condition. The Committee shall determine
whether a Disability exists and such determination shall be
conclusive.
(n) "Fair Market Value" means (i) if the Company Stock is traded
on an exchange, the mean of the highest and lowest registered
sales prices of the Company Stock on that date on the
exchange on which the Company Stock generally has the
greatest trading volume, or (ii) if the Company Stock is traded
in the over-the-counter market, the mean between the high and
low prices on that date as reported on the NASDAQ National
Markets Transactions Tape. Fair Market Value shall be
determined as of the applicable date specified in the Plan
or, if there if are no trades on such date, the value shall
be determined as of the last preceding day on which the
Company Stock is traded.
(o) "Insider" means a person subject to Section 16(b) of the
Act.
(p) "Nonstatutory Stock Option" means an Option that does not
meet the requirements of Code section 422, or that is
otherwise not intended to be an Incentive Stock Option and is
so designated.
(q) "Option" means a right to purchase Company Stock granted
under the Plan, at a price determined in accordance with the
Plan.
(r) "Parent" means, with respect to any corporation, a parent
of that corporation within the meaning of Code section
424(e).
(s) "Participant" means any employee who receives an Option
under the Plan.
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(t) "Replacement Feature" means a feature of an Option, as
described in the Participant's stock option agreement, that
provides for the automatic grant of a Replacement Option in
accordance with the provisions of Section 7(b).
(u) "Replacement Option" means an Option granted to a
Participant equal to the number of shares of already owned
Company Stock that are delivered by the Participant to
exercise an Option, as described in Section 7(b).
(v) "Rule 16b-3" means Rule 16b-3 of the Act. A reference in
the Plan to Rule 16b-3 shall include a reference to any
corresponding subsequent rule or any amendments to Rule 16b-3
enacted after the effective date of the Plan.
(w) "Subsidiary" means an entity of which the Company owns 50%
or more of the total combined voting power of all classes of
stock.
3. GENERAL
Only Nonstatutory Stock Options may be granted under the Plan.
4. STOCK
Subject to Section 13 of the Plan, there shall be reserved
for issuance under the Plan an aggregate of 750,000 shares of
Company Stock, which shall be authorized, but unissued, shares.
Shares allocable to Options granted under the Company s 1986
Stock Option Plan or under this Plan that expire or otherwise
terminate unexercised may again be subjected to an Option under
this Plan. For purposes of determining the number of shares that
are available for Options under the Plan, such number shall, if
permissible under Rule 16b-3, include the number of shares
surrendered by a Participant or retained by the Company (a) in
connection with the exercise of an option or (b) in payment of
Applicable Withholding Taxes.
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5. ELIGIBILITY
(a) Any employee of the Company or a Subsidiary who, in the
judgment of the Committee, has contributed or can be expected to
contribute to the profits or growth of the Company and directors
of the Company who are employees and are not members of the
Committee are eligible to receive Options under the Plan. The
Committee shall have the power and complete discretion, as
provided in Section 13, to select eligible employees to receive
Options and to determine for each employee the terms and
conditions applicable to the Option and the number of shares to
be allocated as part of the Option. The Committee is expressly
authorized to award an Option to a Participant conditioned upon
the surrender for cancellation of an existing Option.
(b) The grant of an Option shall not obligate the Company or
any Subsidiary to pay an employee any particular amount of
remuneration, to continue the employment of the employee after
the grant or to make further grants to the employee at any time
thereafter.
6. STOCK OPTIONS
(a) Whenever the Committee deems it appropriate to grant
Options, notice shall be given to the Participant stating the
number of shares for which Options are granted, the Option price
per share, and the conditions to which the grant and exercise of
the Options are subject. This notice, when duly accepted in
writing by the Participant, shall become a stock option agreement
between the Company and the Participant.
(b) The Committee shall establish the exercise price of
Options. The exercise price of an Option shall be not less than
100% of the Fair Market Value of the shares of Company Stock
covered by the Option on the Date of Grant.
(c) An employee may not receive awards of Options under the
Plan with respect to more than 100,000 shares of Company Stock
during any calendar year.
(d) Options may be exercised in whole or in part at such times
as may be specified by the Committee in the Participant's stock
option agreement. The Committee may impose such vesting
conditions and other requirements as the Committee deems
appropriate, and the Committee may include such provisions
regarding a Change of Control or Corporate Change as the
Committee deems appropriate.
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(e) The Committee shall establish the term of each Option in
the Participant's stock option agreement. The term of the Option
shall not be longer than ten years from the Date of Grant. No
Option may be exercised after the expiration of its term or,
except as set forth in the Participant's stock option agreement,
after the termination of the Participant's employment. The
Committee shall set forth in the Participant's stock option
agreement when, and under what circumstances, an Option may be
exercised after termination of the Participant's employment or
period of service.
(f) If a Participant dies and if the Participant's stock
option agreement provides that part or all of the Option may be
exercised after the Participant's death, then such portion may be
exercised by the personal representative of the Participant's
estate during the time period specified in the stock option
agreement.
(g) The Committee may, in its discretion, grant Options
containing a Replacement Feature as described in Section 7(b) and
may amend previously granted Nonstatutory Stock Options to
provide such a Replacement Feature.
7. METHOD OF EXERCISE OF OPTIONS
(a) Options may be exercised by giving written notice of the
exercise to the Company, stating the number of shares the
Participant has elected to purchase under the Option. Such
notice shall be effective only if accompanied by the exercise
price in full in cash; provided that, if the terms of an Option
so permit, the Participant may (i) deliver Company Stock that the
Participant has owned for at least six months (valued at Fair
Market Value on the date of exercise), or cause shares of Company
Stock (valued at their Fair Market Value on the date of exercise)
to be withheld in satisfaction of all or any part of the exercise
price, (ii) deliver a properly executed exercise notice together with
irrevocable instructions to a broker to deliver promptly to the
Company, from the sale or loan proceeds with respect to the sale
of Company Stock or a loan secured by Company Stock, the amount
necessary to pay the exercise price and, if required by the
Committee, Applicable Withholding Taxes, or (iii) deliver an interest
bearing promissory note, payable to the Company, in payment of
all or part of the exercise price, together with such collateral
and subject to such terms as may be required by the Committee at
the time of exercise. The interest rate under any such
promissory note shall be equal to the minimum interest rate
required at the time to avoid imputed interest to the Participant
under the Code.
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(b) If a Participant exercises an Option that has a
Replacement Feature by delivering already owned shares of Company
Stock, the Participant shall automatically be granted a
Replacement Option. The Replacement Option shall be subject to
the following provisions:
(i) The Replacement Option shall cover the number of shares
of Company Stock delivered by the Participant to exercise
the Option;
(ii) The Replacement Option will not have a Replacement
Feature;
(iii) The exercise price of shares of Company Stock covered by a
Replacement Option shall be not less than 100% of the Fair
Market Value of such shares on the date the Participant
delivers shares of Company Stock to exercise the Option; and
(iv) The Replacement Option shall be subject to the same restrictions
on exercisability as those imposed on the underlying Option and
such other restrictions as the Committee deems appropriate.
(c) Notwithstanding anything herein to the contrary, Options
shall always be granted and exercised in such a manner as to
conform to the provisions of Rule 16b-3.
8. APPLICABLE WITHHOLDING TAXES
Each Participant shall agree, as a condition of receiving an
Option, to pay to the Company, or make arrangements satisfactory
to the Company regarding the payment of, all Applicable
Withholding Taxes with respect to the Option. Until the
Applicable Withholding Taxes have been paid or arrangements
satisfactory to the Company have been made, no stock certificates
shall be issued to the Participant. As an alternative to making
a cash payment to the Company to satisfy Applicable Withholding
Tax obligations, the Committee may establish procedures
permitting the Participant to elect (a) deliver shares of
already owned Company Stock or (b) have the Company retain that
number of shares of Company Stock that would satisfy all or a
specified portion of the Applicable Withholding Taxes. Any such
election shall be made only in accordance with procedures
established by the Committee and, in the case of an Insider, in
accordance with Rule 16b-3.
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9. NONTRANSFERABILITY OF OPTIONS
(a) In general Options, by their terms, shall not be
transferable by the Participant except by will or by the laws of
descent and distribution or except as described below. Options
shall be exercisable, during the Participant's lifetime, only by
the Participant or by his guardian or legal representative.
(b) Notwithstanding the provisions of (a) and subject to
federal and state securities laws, the Committee may grant
Options that permit, or amend to permit, a Participant to
transfer the Options to one or more immediate family members, to
a trust for the benefit of immediate family members or to a
partnership whose only partners are immediate family members.
Consideration may not be paid for the transfer of Options. The
transferee of an Option shall be subject to all conditions
applicable to the Option prior to its transfer. The agreement
granting the Option shall set forth the transfer conditions and
restrictions. The Committee may impose on any transferable
Option and on stock issued upon the exercise of an Option such
limitations and conditions as the Committee deems appropriate.
Except to the extent otherwise permitted by Rule 16b-3, Options
that are intended to be exempt from Section 16(b) of the Act
pursuant to Rule 16b-3 may not be transferable except by will or
by the laws of descent and distribution.
10. EFFECTIVE DATE OF THE PLAN
This Plan shall be effective May 14, 1996 subject to
approval by the Company's shareholders. Until the Plan has been
approved by the Company s shareholders and all applicable federal
and state securities laws have been complied with and the shares
of Company Stock have been listed on the stock exchange or
exchanges where traded, no Options shall be exercisable and no
Option shall be made that would result in the issuance of shares
of Company Stock.
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11. TERMINATION, MODIFICATION, CHANGE
If not sooner terminated by the Board, this Plan shall
terminate at the close of business of May 13, 2006. No Options
shall be made under the Plan after its termination. The Board
may terminate the Plan or may amend the Plan in such respects as
it shall deem advisable; provided, that, if and to the extent
required by Rule 16b-3, no change shall be made that materially
increases the total number of shares of Company Stock reserved
for issuance pursuant to Options granted under the Plan (except
pursuant to Section 12), materially expands the class of persons
eligible to receive Options, or materially increases the benefits
accruing to Participants under the Plan, unless such change is
authorized by the shareholders of the Company. Notwithstanding
the foregoing, the Board may unilaterally amend the Plan and
Options as it deems appropriate to ensure compliance with Rule
16b-3 and to cause Incentive Stock Options to meet the
requirements of the Code and regulations thereunder. Except as
provided in the preceding sentence, a termination or amendment of
the Plan shall not, without the consent of the Participant,
adversely affect a Participant's rights under an Option
previously granted to him.
12. CHANGE IN CAPITIAL STRUCTURE
(a) In the event of a stock dividend, stock split or combination
of shares, spin-off, reclassification, recapitalization
merger or other change in the Company's capital stock
(including, but not limited to, the creation or issuance to
shareholders generally of rights, options or warrants for the
purchase of common stock or preferred stock of the Company), the
number and kind of shares of stock or securities of the Company
to be issued under the Plan (under outstanding Options and
Options to be granted in the future), the exercise price of
Options, and other relevant provisions shall be appropriately
adjusted by the Committee, whose determination shall be binding
on all persons. If the adjustment would produce fractional
shares with respect to any Option, the Committee may adjust
appropriately the number of shares covered by the Option so as to
eliminate the fractional shares.
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(b) In the event the Company distributes to its
shareholders a dividend, or sells or causes to be sold to a
person other than the Company or a Subsidiary shares of stock in
any corporation (a "Spinoff Company") which, immediately before
the distribution or sale, was a majority owned Subsidiary of the
Company, the Committee shall have the power, in its sole
discretion, to make such adjustments as the Committee deems
appropriate. The Committee may make adjustments in the number
and kind of shares or other securities to be issued under the
Plan (under outstanding Options and Options to be granted in the
future), the exercise price of Options, and other relevant
provisions, and, without limiting the foregoing, may substitute
securities of a Spinoff Company for securities of the Company.
The Committee shall make such adjustments as it determines to be
appropriate, considering the economic effect of the distribution
or sale on the interests of the Company's shareholders and the
Participants in the businesses operated by the Spinoff Company.
The Committee's determination shall be binding on all persons.
If the adjustment would produce fractional shares with respect to
any Option, the Committee may adjust appropriately the number of
shares covered by the Option so as to eliminate the fractional
shares.
(c) If a Change of Control or Corporate Change occurs, the
Committee may take such actions with respect to outstanding
Options as the Committee deems appropriate. These actions may
include, but shall not be limited to, accelerating the vesting
and payment of Options, releasing restrictions on Options, and
accelerating the expiration dates of Options. The effectiveness
of such acceleration or release of restrictions shall be
conditioned upon the consummation of the applicable Change of
Control or Corporate Change.
(d) Notwithstanding anything in the Plan to the contrary,
the Committee may take the foregoing actions without the consent
of any Participant, and the Committee's determination shall be
conclusive and binding on all persons for all purposes. The
Committee shall make its determinations consistent with Rule
16b-3 and the applicable provisions of the Code.
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13. ADMINISTRATION OF THE PLAN
(a) The Plan shall be administered by a Committee
consisting of two or more outside directors of the Company, who
shall be appointed by the Board. The Board may designate the
Compensation Committee of the Board, or a subcommittee of the
Compensation Committee, to be the Committee for purposes of the
Plan. If and to the extent required by Rule 16b-3, all members
of the Committee shall be "disinterested persons" as that term is
defined in Rule 16b-3, and the Committee shall be comprised
solely of two or more "outside directors" as that term is defined
for purposes of Code section 162(m). If any member of the
Committee fails to qualify as an "outside director" or (to the
extent required by Rule 16b-3) a "disinterested person," such
person shall immediately cease to be a member of the Committee
and shall not take part in future Committee deliberations. The
Committee from time to time may appoint members of the Committee
and may fill vacancies, however caused, in the Committee.
(b) The Committee shall have the authority to impose such
limitations or conditions upon an Option as the Committee deems
appropriate to achieve the objectives of the Option and the Plan.
Without limiting the foregoing and in addition to the powers set
forth elsewhere in the Plan, the Committee shall have the power
and complete discretion to determine (i) which eligible employees
shall receive an Option, (ii) the number of shares of Company
Stock to be covered by each Option, (iii) whether to include a
Replacement Feature in an Option and the conditions of any
Replacement Feature, (iv) the Fair Market Value of Company
Stock, (v) the time or times when an Option shall be granted,
(vi) whether an Option shall become vested over a period of time,
according to a performance-based vesting schedule or otherwise,
and when it shall be fully vested, (vii) the terms and
conditions under which restrictions imposed upon an Option shall
lapse, (viii) whether a Change of Control or Corporate Change
exists, (ix) when Options may be exercised, (x) whether to
approve a Participant's election with respect to Applicable
Withholding Taxes, (xi) conditions relating to the length of
time before disposition of Company Stock received in connection
with an Option is permitted, (xii) notice provisions relating to
the sale of Company Stock acquired under the Plan, and (xiii) any
additional requirements relating to Options that the Committee
deems appropriate.
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(c) The Committee shall have the power to amend the terms
of previously granted Options so long as the terms as amended are
consistent with the terms of the Plan. The consent of the
Participant must be obtained with respect to any amendment that
would adversely affect the Participant's rights under the Option,
except that such consent shall not be required if such amendment
is for the purpose of complying with Rule 16b-3 or any
requirement of the Code applicable to the Option.
(d) The Committee may adopt rules and regulations for
carrying out the Plan. The Committee shall have the express
discretionary authority to construe and interpret the Plan and
the Option agreements, to resolve any ambiguities, to define any
terms, and to make any other determinations required by the Plan
or an Option agreement. The interpretation and construction of
any provisions of the Plan or an Option agreement by the
Committee shall be final and conclusive. The Committee may
consult with counsel, who may be counsel to the Company, and
shall not incur any liability for any action taken in good faith
in reliance upon the advice of counsel.
(e) A majority of the members of the Committee shall
constitute a quorum, and all actions of the Committee shall be
taken by a majority of the members present. Any action may be
taken by a written instrument signed by all of the members, and
any action so taken shall be fully effective as if it had been
taken at a meeting.
14. ISSUANCE OF COMPANY STOCK
The Company shall not be required to issue or deliver any
certificate for shares of Company Stock before (i) the admission
of such shares to listing on any stock exchange on which the
Company Stock may then be listed, (ii) receipt of any required
registration or other qualification of such shares under any
state or federal law or regulation that the Company's counsel
shall determine is necessary or advisable, and (iii) the Company
shall have been advised by counsel that all applicable legal
requirements have been complied with. The Company may place on a
certificate representing Company Stock any legend required to
reflect restrictions pursuant to the Plan, and any legend deemed
necessary by the Company's counsel to comply with federal or
state securities laws. The Company may require a customary
written indication of a Participant's investment intent. Until a
Participant has been issued a certificate for the shares of
Company Stock acquired, the Participant shall possess no
shareholder rights with respect to the shares.
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15. RIGHTS UNDER THE PLAN
Title to and beneficial ownership of all benefits described
in the Plan shall at all times remain with the Company.
Participation in the Plan and the right to receive payments under
the Plan shall not give a Participant any proprietary interest in
the Company or any Subsidiary or any of their assets. No trust
fund shall be created in connection with the Plan, and there
shall be no required funding of amounts that may become payable
under the Plan. A Participant shall, for all purposes, be a
general creditor of the Company. The interest of a Participant
in the Plan cannot be assigned, anticipated, sold, encumbered or
pledged and shall not be subject to the claims of his creditors.
16. BENEFICIARY
A Participant may designate, on a form provided by the
Committee, one or more beneficiaries to receive any payments
under Options of Restricted Stock or Incentive Stock after the
Participant's death. If a Participant makes no valid
designation, or if the designated beneficiary fails to survive
the Participant or otherwise fails to receive the benefits, the
Participant's beneficiary shall be the first of the following
persons who survives the Participant: (a) the Participant's
surviving spouse, (b) the Participant's surviving descendants,
per stirpes, or (c) the personal representative of the
Participant's estate.
17. NOTICE
All notices and other communications required or permitted
to be given under this Plan shall be in writing and shall be
deemed to have been duly given if delivered personally or mailed
first class, postage prepaid, as follows (a) if to the Company -
at its principal business address to the attention of the
Secretary; (b) if to any Participant - at the last address of the
Participant known to the sender at the time the notice or other
communication is sent.
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18. INTERPRETATION
The terms of this Plan and Options granted pursuant to the
Plan are subject to all present and future regulations and
rulings of the Secretary of the Treasury or his delegate relating
to the qualification of Incentive Stock Options under the Code or
compliance with Code section 162(m), to the extent applicable,
and they are subject to all present and future rulings of the
Securities Exchange Commission with respect to Rule 16b-3. If
any provision of the Plan or an Option conflicts with any such
regulation or ruling, to the extent applicable, the Committee
shall cause the Plan to be amended, and shall modify the Option,
so as to comply, or if for any reason amendments cannot be made,
that provision of the Plan and/or the Option shall be void and of
no effect.
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