As filed with the Securities and Exchange Commission on March 8, 2000.
Registration File No. 333-_________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CAROLINA FIRST CORPORATION
(Exact name of registrant as specified in its charter)
South Carolina 57-0824914
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
102 South Main Street
Greenville, South Carolina 29601
(864) 255-7900
(Address, Including Zip Code, of Principal Executive Offices)
CAROLINA FIRST CORPORATION
AMENDED AND RESTATED FORTUNE 50 PLAN
(Full Title of the Plan)
William S. Hummers III, Executive Vice President
Carolina First Corporation
102 South Main Street
Greenville, South Carolina 29601
(864) 255-7913
(Name, address, and telephone number, including area code, of agent for service)
Copies to:
William P. Crawford, Jr., Esq.
Wyche, Burgess, Freeman & Parham, P.A.
Post Office Box 728
Greenville, South Carolina 29602-0728
(864) 242-8200
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount to Offering Price Aggregate Amount of
to be Registered be Registered Per Share(1) Offering Price (1) Registration Fee(1)
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 200,000 shares $15.4375 $3,087,500 $815.10
=================================================================================================================================
<FN>
(1) Pursuant to Rule 457(c) and (h), the average of the high and low prices
reported on the Nasdaq National Market System on March 6, 2000 (as
published in the Wall Street Journal) is used for purposes of calculating
the registration fee.
</FN>
</TABLE>
THE EXHIBIT INDEX IS ON PAGE ___ OF THIS REGISTRATION STATEMENT.
<PAGE>
PART I:
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not included in this registration statement (the "Registration Statement")
but provided or to be provided to Carolina First Corporation's ("Carolina First"
or the "Company") Carolina First Corporation Amended and Restated Fortune 50
Plan (the "Plan") participants pursuant to Rule 428(b) of the Securities Act of
1933, as amended (the "Securities Act").
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not included in this Registration Statement but provided or to be provided
to Plan participants pursuant to Rule 428(b) of the Securities Act.
PART II:
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents or portions thereof are hereby incorporated by
reference:
The Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1998, Commission File No. 0-15083.
The Company's Quarterly Report on Form 10-Q for the quarters ending March
31, 1999, June 30, 1999 and September 30, 1999, Commission File No.
0-15083.
The Company's Current Reports on Form 8-K dated February 17, 1999, April 6,
1999, July 16,1999, August 16, 1999 and January 18, 2000.
All other reports filed by the Company pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934, as amended, since the end of the
Company's 1998 fiscal year.
The description of the Company's common stock contained in (the
registrant's Form 8-A) filed with the Securities and Exchange Commission on
or about October 22, 1986, Commission File No. 000-15083.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be part thereof from the date of filing of
such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The law firm of Wyche, Burgess, Freeman & Parham, P.A., located in
Greenville, South Carolina, is counsel to the registrant in connection with this
Registration Statement and has passed on certain aspects of the legality of the
common stock covered hereby. As of December 31, 1999, attorneys of Wyche,
Burgess, Freeman & Parham, P.A., beneficially owned in the aggregate
approximately 29,000 of the outstanding shares of common stock of the
registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Reference is made to Chapter 8, Article 5 of Title 33 of the 1976 Code of
Laws of South Carolina, as amended, which provides for indemnification of
officers and directors of South Carolina corporations in certain instances in
connection with legal proceedings involving any such persons because of being or
having been an officer or director. Carolina First's Bylaws provide that the
Corporation shall indemnify any individual made a party to a proceeding because
he is or was a Director of the Corporation against liability incurred in the
proceeding to the fullest extent permitted by law, and that the Corporation
shall pay for or reimburse the reasonable expenses incurred by a Director who is
a party to a proceeding in advance of final disposition of the proceeding to the
fullest extent permitted by law. Carolina First has entered into indemnification
agreements with each of its Directors, which make the above-referenced Bylaws
provisions the basis of a contract between Carolina First and each director.
Chapter 8, Article 5 of Title 33 of the 1976 Code of Laws of South
Carolina, as amended, also permits a corporation to purchase and maintain
insurance on behalf of a person who is or was an officer or director of the
corporation. Carolina First maintains directors' and officers' liability
insurance.
Reference is made to Chapter 2 of Title 33 of the 1976 Code of Laws of
South Carolina, as amended, respecting the limitation in a corporation's
articles of incorporation of the personal liability of a director for breach of
the director's fiduciary duty. Reference is made to Carolina First's Articles of
Amendment filed with the South Carolina Secretary of State on April 18, 1989
which state: "A director of the corporation shall not be personally liable to
the corporation or any of its shareholders for monetary damages for breach of
fiduciary duty as a director, provided that this provision shall not be deemed
to eliminate or limit the liability of a director (i) for any breach of the
director's duty of loyalty to the corporation or its shareholders, (ii) for acts
or omissions not in good faith or which involve gross negligence, intentional
misconduct, or a knowing violation of laws, (iii) imposed under Section 33-8-330
of the South Carolina Business Corporation Act of 1988 (improper distribution to
shareholder), or (iv) for any transaction from which the director derived an
improper personal benefit."
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
Exhibit
4.1 Articles of Incorporation: Incorporated by reference to Exhibit 3.1 of
Carolina First's Registration Statement on Form S-4, Commission File No.
33-57389.
4.2 Articles of Amendment dated June 1, 1997. Incorporated by reference to
Exhibit 3.2 of Carolina First's Registration Statement on Form S-4 filed on
July 30, 1997, Commission File No. 333-32459.
4.3 Amended and Restated Bylaws of Carolina First, as amended and restated as
of December 18, 1996: Incorporated by reference to Exhibit 3.1 of Carolina
First's Current Report on Form 8-K dated December 18, 1996, Commission File
No. 0-15083.
4.4 Specimen Carolina First Common Stock certificate: Incorporated by reference
to Exhibit 4.1 of Carolina First's Registration Statement on Form S-1,
Commission File No. 33-7470.
4.5 Amended and Restated Shareholder Rights Agreement: Incorporated by
reference to Exhibit 4.1 of Carolina First's Current Report on Form 8-K
dated December 18, 1996, Commission File No. 0-15083.
5.1 Opinion of Wyche, Burgess, Freeman & Parham, P.A. regarding legality of
shares of Carolina First.
23.1 Consent of KPMG LLP.
23.2 Consent of Wyche, Burgess, Freeman & Parham, P.A.: Contained in Exhibit
5.1.
24.1 The Power of Attorney: Contained on the signature page of the initial
filing of this Registration Statement.
99.1 Carolina First Corporation Amended and Restated Fortune 50 Plan
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20 percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 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 post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions,
or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Greenville, State of
South Carolina, on March 8, 2000.
CAROLINA FIRST CORPORATION
By: /s/ William S. Hummers, III
---------------------------------
William S. Hummers III,
Executive Vice President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Mack I. Whittle, Jr. and William S.
Hummers III, and each of them, as true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution for him or her and in his or
her name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this registration statement,
and to file the same, with all annexes thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in and about the premises, as fully to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all which said
attorneys-in-fact and agents or any of them, or their or his or her substitute
or substitutes, may lawfully do, or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and as of the dates indicated:
Signature Title Date
/s/ William R. Timmons, Jr. Chairman of the Board March 8, 2000
- -----------------------
William R. Timmons, Jr.
/s/ Mack I. Whittle, Jr. President, Chief Executive Officer March 8, 2000
- --------------------- and Director
Mack I. Whittle, Jr. (Principal Executive Officer)
/s/ William S. Hummers III Executive Vice President, Director March 8, 2000
- ---------------------- (Principal Accounting and
William S. Hummers III Financial Officer)
/s/ M. Dexter Hagy Director March 8, 2000
- --------------------
M. Dexter Hagy
/s/ Eugene E. Stone IV Director March 8, 2000
- ---------------------
Eugene E. Stone IV
/s/ Earle Russell, Jr. Director March 8, 2000
- ---------------------
H. Earle Russell, Jr.
/s/ Judd B. Farr Director March 8, 2000
- ---------------------
Judd B. Farr
/s/ Charles B. Schooler Director March 8, 2000
- ---------------------
Charles B. Schooler
<PAGE>
/s/ Elizabeth P. Stall Director March 8, 2000
- --------------------
Elizabeth P. Stall
/s/ David C. Wakefield III Director March 8, 2000
- ----------------------
David C. Wakefield III
/s/ Vernon E. Merchant, Jr. Director March 8, 2000
- ----------------------
Vernon E. Merchant, Jr.
/s/ C. Claymon Grimes, Jr. Director March 8, 2000
- ----------------------
C. Claymon Grimes, Jr.
/s/ Samuel H. Vickers Director March 8, 2000
- ----------------------
Samuel H. Vickers
<PAGE>
INDEX TO EXHIBITS CONTAINED HEREIN
EXHIBIT
- -------
5.1 Opinion of Wyche, Burgess, Freeman & Parham, P.A. regarding legality of
shares of Carolina First.
23.1 Consent of KPMG LLP.
23.2 Consent of Wyche, Burgess, Freeman & Parham, P.A.: Contained in Exhibit
5.1.
24.1 The Power of Attorney: Contained on the signature page of the initial
filing of this Registration Statement.
99.1 Carolina First Corporation Amended and Restated Fortune 50 Plan
EXHIBIT 5.1
[Wyche, Burgess, Freeman & Parham Letterhead]
March 8, 2000
Carolina First Corporation
102 South Main Street
Greenville, South Carolina 29601
Re: Opinion re Legality of shares issued pursuant to the Registration
Statement on Form S-8 of Carolina First Corporation Amended and
Restated Fortune 50 Plan
Ladies and Gentlemen:
The opinion set forth below is rendered with respect to the 200,000 shares,
$1.00 par value, of common stock of Carolina First Corporation (the "Company"),
that will be registered with the Securities and Exchange Commission by the
above-referenced Registration Statement on Form S-8 pursuant to the Securities
Act of 1933, as amended, in connection with the Company's Amended and Restated
Fortune 50 Plan (the "Plan"). We have examined the Company's Articles of
Incorporation, and all amendments thereto, and the Company's By-Laws, as
amended, and reviewed the records of the Company's corporate proceedings. We
have made such investigation of law as we have deemed necessary in order to
enable us to render this opinion. With respect to matters of fact, we have
relied upon information provided to us by the Company and no further
investigation. With respect to all examined documents, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals, the conformity to authentic originals of all documents submitted
to us as copies and the accuracy and completeness of the information contained
therein.
Based on and subject to the foregoing and subject to the comments,
limitations and qualifications set forth below, we are of the opinion that upon
satisfaction of the exercisability and other conditions set forth in the Plan
and in the applicable stock option agreement or letter and payment of the
applicable exercise price, shares of the Company's common stock covered by the
above-referenced Registration Statement that are issued after the date hereof
under and in compliance with the terms of the Plan will be legally issued, fully
paid to the Company and non-assessable.
The foregoing opinion is limited to matters governed by the laws of the
State of South Carolina in force on the date of this letter. We express no
opinion with regard to any matter that may be (or that purports to be) governed
by the laws of any other state or jurisdiction or any political subdivision of
the State of South Carolina. In addition, we express no opinion with respect to
any matter arising under or governed by the South Carolina Uniform Securities
Act, as amended, any law respecting disclosure or any law respecting any
environmental matter.
This opinion is rendered as of the date of this letter and applies only to
the matters specifically covered by this opinion, and we disclaim any continuing
responsibility for matters occurring after the date of this letter.
Except as noted below, this opinion is rendered solely for your benefit in
connection with the above-referenced Registration Statement on Form S-8
respecting shares of the Company's common stock to be issued under the Plan and
may not be relied upon, quoted or used by any other person or entity, other than
participants in the Plan, or for any other purpose without our prior written
consent.
We consent to the use of this opinion as an exhibit to the above-referenced
Registration Statement on Form S-8 respecting shares of the Company's common
stock to be issued under the Plan. We also consent to the use of our name under
the heading "Item 5: Interests of Named Experts and Counsel."
Very truly yours,
/s/ WYCHE, BURGESS, FREEMAN & PARHAM, P.A.
------------------------------------------
WYCHE, BURGESS, FREEMAN & PARHAM, P.A.
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Carolina First Corporation:
We consent to the use of our report incorporated herein by reference.
KPMG LLP
--------
KPMG LLP
Greenville, South Carolina
March 7, 2000
EXHIBIT 99.1
CAROLINA FIRST CORPORATION AMENDED AND RESTATED FORTUNE 50 PLAN
---------------------------------------------------------------
ARTICLE I
PURPOSE OF THE PLAN
The Carolina First Corporation Amended and Restated Fortune 50 Plan is intended
to enhance the profitability and value of the Company by providing
performance-based incentives and additional equity ownership opportunities to
Eligible Employees of the Company and its subsidiaries.
ARTICLE II
DEFINITIONS OF TERMS AND RULES OF CONSTRUCTION
2.1 GENERAL DEFINITIONS. As used herein, the following capitalized terms
have the following respective meanings.
(a) "AWARD" means any Option granted to an Eligible Employee pursuant to
Section 6.1 of the Plan, including all rights and interests that arise out
of or are otherwise related to such Option.
(b) "AWARD TERM SHEET" means the document provided to or otherwise made
available to a Participant which describes the Award granted to the
Participant and sets forth the terms, conditions and restrictions specific
to the Award.
(c) "BOARD" means the Company's board of directors.
(d) "COMMITTEE" means a committee of the Company comprised of the Chief
Executive Officer, the Chief Financial Officer and the Chief Human
Resources Executive, or any other committee designated by the Board to
administer the Plan.
(e) "COMMON STOCK" means the Company's common stock, par value $1.00 per
share.
(f) "COMPANY" means Carolina First Corporation and its successors.
(g) "DATE OF GRANT" means the date of grant of an Award under the Plan as
set forth on an Award Term Sheet.
(h) "DISABILITY" means a disability which would entitle a Participant to
receive a disability benefit under the Company's Long-Term Disability Plan,
as from time to time in effect, whether or not the Participant is then
participating in such Plan.
(i) "ELIGIBLE EMPLOYEE" means any person employed by the Company or one of
its subsidiaries who works at least twenty hours per week.
(j) "FAIR MARKET VALUE" means the average of the bid and ask prices at
closing of a share of Common Stock as reported on the Nasdaq National
Market for a given date or, in the absence of sales on a given date, such
average for the immediate preceding day on which such sales were reported.
(k) "OPTION" means an option granted under the Plan to purchase shares of
Common Stock and having such terms, conditions and restrictions as the
Committee determines.
(l) "ORIGINAL ELIGIBLE EMPLOYEE" means any person who was an Eligible
Employee continuously from October 1, 1999 through the Date of Grant for
such person.
(m) "ORIGINAL OPTION PRICE" means $19.8125.
(n) "PARTICIPANT" means an Eligible Employee who is granted an Award under
the Plan.
(o) "PLAN" means this Carolina First Corporation Amended and Restated
Fortune 50 Plan, as amended from time to time.
(p) "RETIREMENT" means early retirement from the Company and its Affiliates
after reaching age 55 or retirement from the Company and its Affiliates
after age 65, as long as the Eligible Employee has given at least five
consecutive years of service to the Company at the time of early retirement
or retirement.
(q) "SHARE" means a share of Common Stock.
2.2 OTHER DEFINITIONS. Other capitalized terms used herein and not defined
above are defined where they first appear.
2.3 CONFLICTING PROVISIONS. In the event of any conflict or other
inconsistency between the terms of the Plan and the terms of any Award Term
Sheet, the terms of the Plan will control.
ARTICLE III
SHARES AVAILABLE FOR AWARDS UNDER THE PLAN
3.1 NUMBER OF SHARES. An aggregate of up to 500,000 Shares are available
for Awards and as a basis for calculating awards under the Plan. Shares issued
with respect to Awards may be new issue Common Stock or Common Stock purchased
by the Company for use in the Plan, or any combination thereof, as the Company
determines.
3.2 REUSAGE OF SHARES. Shares identified with Awards that for any reason
terminate or expire unexercised will thereafter be available for other Awards
under the Plan. Shares unissued upon termination of the Plan and all awards
granted hereunder shall become authorized but unissued shares of the Company.
3.3 ADJUSTMENTS. Any change in the number of outstanding shares of Common
Stock occurring by reason of a stock split, stock dividend, spin-off, split-up,
recapitalization or other similar event will be reflected proportionally in (a)
the aggregate number of Shares available for Awards under the Plan, (b) the
number of Shares identified as Awards then outstanding, and (c) the purchase
price of Awards then outstanding. The number of Shares, if any, identified with
an Award, after giving effect to any such adjustment, will be rounded down to
the nearest whole Share.
ARTICLE IV
PARTICIPATION IN THE PLAN
The Committee will have sole discretionary authority to select Participants
from among Eligible Employees and determine the Award or Awards each Participant
will receive. In making such selections and determinations, the Committee will
consider such factors as it deems relevant to effect the purpose of the Plan. No
Eligible Employee will be entitled to receive any additional Awards or otherwise
further participate in the Plan solely because the Eligible Employee previously
was granted an Award.
ARTICLE V
ADMINISTRATION OF THE PLAN
Subject to the terms of the Plan, the Committee will have sole
discretionary authority to determine the category or categories of Eligible
Employees to whom Awards will be granted, the type and amount of each Award to
be granted to each Eligible Employee in such category or categories, the date of
issuance and duration of each Award, the purchase price of each Award, and such
other Award terms, conditions and restrictions as the Committee deems advisable.
Notwithstanding anything in the Plan to the contrary, the Committee may delegate
any or all of its authority under the Plan to such officers of the Company as
the Committee may designate from time to time. All decisions of the Committee
and any such officers made pursuant to the authority granted herein or delegated
by the Committee will be final and binding on all parties.
ARTICLE VI
AWARDS
6.1 TYPES. The Committee may grant Options under the Plan having such
terms, conditions and restrictions as the Committee determines.
6.2 PRICE. For Original Eligible Employees, the purchase price will be the
Original Option Price. For all other Eligible Employees, the purchase price will
be the higher of the Original Option Price and the Fair Market Value on the date
the Option is granted.
6.3 EXERCISE TERM. The Committee will determine the term of each Award,
provided that (a) no Award will be exercisable after ten years from the Date of
Grant and (b) no Award will be exercisable unless a registration statement for
the Shares, if any, underlying the Award is then in effect under the Securities
Act of 1933, as amended, or unless in the opinion of legal counsel registration
under such act is not required.
6.4 PAYMENT OF PURCHASE PRICE. Under exercise of an Option that requires a
payment from the Participant to the company, the amount due the Company may be
paid by cash or such other method as the Committee determines.
6.5 AWARD TERM SHEET. Each Award will be evidenced by an Award Term Sheet
in such form and not inconsistent with the Plan as the Committee may approve
from time to time. The Committee may include in each Award Term Sheet such terms
and conditions it deems necessary or advisable, including the following: the
terms, conditions and restrictions of the Award; the purchase price and
acceptable methods of payment of the purchase price; the Award's duration; the
effect on the Award of the Participant's death, Disability, Retirement or other
termination of employment; and the restrictions against transfer, if any, on the
Award or the Shares subject to the Award.
6.6 WITHHOLDING TAXES. The Company and its subsidiaries have the right to
withhold, at any time any distribution is made under the Plan, whether in cash
or in Shares, or at the time any Award is exercised, all amounts necessary to
satisfy federal, state and local withholding requirements related to such
distribution or exercise. Any required withholding may be satisfied by cash or
the Company's withholding of Shares having a Fair Market Value equal to the
amount required to be withheld, as provided in the Award Term Sheet.
ARTICLE VII
MISCELLANEOUS PROVISIONS
7.1 TERMINATION OF EMPLOYMENT.
7.1.1 DUE TO DEATH, DISABILITY OR RETIREMENT. If a Participant ceases
to be an Eligible Employee by reason of the Participant's death, Disability
or Retirement, all of the Participant's Awards will immediately become
exercisable and will continue to be exercisable until the earlier of three
(3) months after such death, Disability or Retirement or the Awards' stated
expiration date.
7.1.2 OTHER THAN DUE TO DEATH, DISABILITY OR RETIREMENT. Except as
otherwise determined by the Committee, if a Participant ceases to be an
Eligible Employee for any reason other than death, Disability or
Retirement, all of the Participant's Awards consisting of unexercised,
vested shares will continue to be exercisable until the earlier of three
(3) months after such eligibility ceases or the Awards' stated expiration
date. All of the Participant's Awards consisting of unvested shares will
immediately terminate without notice of any kind.
7.1.3 INTERCOMPANY TRANSFERS. Transfers to a Participant's employment
between the Company and a subsidiary or between subsidiaries will not by
itself constitute termination of the Participant's Eligible Employee status
for purposes of any Award.
7.2 NONTRANSFERABILITY. Except as otherwise determined by the Committee,
(a) an Award may be exercised during a Participant's lifetime only by the
Participant or the Participant's legal guardian or legal representative, and (b)
no Award may be assigned, hypothecated or otherwise transferred by the
Participant to whom it was granted other than by will or pursuant to the laws of
descent and distribution.
7.3 "CHANGE IN CONTROL." For the purposes of the Plan, a "Change in
Control" of the Company shall be deemed to have occurred if the conditions set
forth in any one of the following paragraphs shall have been satisfied.
(i) any person, as defined in Section 3(a)(9) of the Exchange Act, as
such term is modified in Sections 13(d) and 14(d) of the Exchange Act
(other than (A) any employee plan established by the Company, (B) the
Company or any of its affiliates (as defined in Rule 12b-2 promulgated
under the Exchange Act), (C) an underwriter temporarily holding securities
pursuant to an offering of such securities, or (D) a corporation owned,
directly or indirectly, by shareholders of the Company in substantially the
same proportions as their ownership of the Company) (a "Person"), is or
becomes the beneficial owner (as defined in Rule 13d-3 promulgated under
the Exchange Act), directly or indirectly, of securities of the Company
(not including in the securities beneficially owned by such person any
securities acquired directly from the Company) representing 25% or more of
the combined voting power of the Company's then outstanding voting
securities;
(ii) during any period of up to two consecutive years (not including
any period prior to the effective date of this amendment) individuals who,
at the beginning of such period, constitute the Board cease for any reason
to constitute at least a majority thereof, provided that any person who
becomes a director subsequent to the beginning of such period and whose
nomination for election is approved by at least two-thirds of the directors
then still in office who either were directors at the beginning of such
period or whose election or nomination for election was previously so
approved (other than a director (A) whose initial assumption of office is
in connection with an actual or threatened election contest relating to the
election of the director of the Company, as such terms are used in Rule
14a-11 of Regulation 14A under the Exchange Act or (B) who was designated
by a Person who has entered into an agreement with the Company to effect a
transaction described in clause (i), (iii) or (iv) hereof) shall be deemed
a director as of the beginning of such period;
(iii) the shareholders of the Company approve a merger of
consolidation of the Company with any other corporation (other than (A) a
merger of consolidation that would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity or any parent thereto, in combination
with the ownership of any trustee or other fiduciary holding securities
under an employee benefit plan of any Corporation) at least 51% of the
combined voting power of the voting securities of the Company or such
surviving entity or any parent thereof outstanding immediately after such
merger or consolidation, or (B) a merger of consolidation effected to
implement a recapitalization of the Company (or similar transaction) in
which no Person is or becomes a beneficial owner (as defined in clause (i)
above), directly or indirectly, or securities of the Company (not including
in the securities beneficially owned by such Person any securities acquired
directly from the Company representing 25% or more of the combined voting
power of the Company's then outstanding voting securities)); or
(iv) the shareholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition of
the Company of all or substantially all of the Company's assets, other than
a sale or disposition by the Company of all or substantially all of the
Company's assets to an entity, at least 75% of the combined voting power of
the voting securities of which are owned by persons in substantially the
same proportions as their ownership of the Company immediately prior to
such sale.
Upon the occurrence of an event constituting a "Change of Control" of the
Company, all Awards will become immediately exercisable in full and all
conditions or restrictions to the receipt thereof will immediately terminate.
7.4 NO EMPLOYMENT CONTRACT. Neither the adoption of the Plan nor the grant
for any Award will (a) confer upon any Eligible Employee any right to continued
employment with the Company or any subsidiary or (b) interfere in any way with
the right of the Company or any subsidiary to terminate at any time the
employment of any Eligible Employee.
7.5 AMENDMENT OF PLAN. The Committee may at any time suspend, terminate or
amend the Plan without necessity of notice in its sole discretion.
7.6 DURATION OF THE PLAN. The Plan will become effective upon its approval
by the Board and any necessary shareholder approval, unless earlier terminated
by the Board, will remain in effect until all Shares available for issuance
under the Plan have been issued or is sooner terminated by the Committee. Awards
may be made subject to receipt of shareholder approval at the next annual
meeting of the Company's shareholders.
