As filed with the Securities and Exchange Commission on September 30, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------
Tredegar Corporation
(Exact Name of Registrant as Specified in Its Charter)
VIRGINIA 54-1497771
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
1100 Boulders Parkway
Richmond, Virginia 23225
(Address of Principal Executive Offices)
-------------------
AMENDED AND RESTATED INCENTIVE PLAN
(Full Title of the Plan)
-------------------
Norman A. Scher, Executive Vice President
Nancy M. Taylor, Vice President, General Counsel and Secretary
Tredegar Corporation
1100 Boulders Parkway
Richmond,
(Name and Address of Agent For Service)
(804) 330-1000
(Telephone Number, Including Area Code, of Agent For Service)
With copies to:
C. Porter Vaughan, III, Esq.
Hunton & Williams
951 East Byrd Street
Richmond, Virginia 23219
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount Of
To Be To Be Price Per Offering Registration
Registered Registered Share Price Fee
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 2,857,450(1) $21.50(1)(2) $32,410,175.00(1)(2) $9,010.03(1)
</TABLE>
(1)Pursuant to Rule 429(b) under the Securities Act of 1933, this registration
statement covers 1,350,000 shares of common stock registered pursuant to
Registration Statement No. 333-12985 and being carried forward, and for which a
filing fee of $5,227.37 was previously paid.
2)Estimated solely for the purpose of determining the Registration Fee pursuant
to Rule 457(h) and based on the average of the high and low sale prices of the
Common Stock on the New York Stock Exchange on September 23, 1999.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Not required to be filed with the Securities and Exchange Commission
(the "Commission").
Item 2. Registrant Information and Employee Plan Annual Information.
Not required to be filed with the Commission.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Tredegar Corporation (the "Company")
with the Commission (File No. 1-10258) are incorporated herein by reference and
made a part hereof: (i) the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1998; (ii) the Company's Quarterly Report on Form 10-Q
for the quarter ended March 31, 1999; (iii) the Company's Quarterly Report on
Form 10-Q for the quarter ended June 30, 1999; (iv) the Company's Current Report
on Form 8-K, as amended, filed with the Commission on May 25, 1999; (v) the
Company's Current Report on Form 8-K, as amended, filed with the Commission on
June 22, 1999; (vi) the Company's Form 10, as amended, dated May 17, 1989,
containing a description of the Company's Common Stock (the "Common Stock"); and
(vii) the description of the Preferred Stock Purchase Rights, contained in the
Registration Statement on Form 8-A, filed with the Commission on June 16, 1999,
as amended.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), after the date of this Registration Statement and prior to the filing of
a post-effective amendment that indicates that all securities offered have been
sold or that deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document that is
incorporated by reference herein modifies or supersedes such earlier statement.
Any such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
As permitted by the Virginia Stock Corporation Act, the Amended and
Restated Articles of Incorporation of the Company (the "Articles") eliminate all
liability of the Company's directors and officers for monetary damages to the
Company or its shareholders except in the event of willful misconduct or a
knowing violation of the criminal law or any federal or state securities law.
The Articles also require indemnification of any person against liability
incurred in connection with any proceeding to which that person is made a party
by reason of (i) his service to the Company as a director or officer or (ii) his
service as director, officer, trustee or partner to some other enterprise at the
request of the Company, except in either case in the event of willful misconduct
or a knowing violation of the criminal law.
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<PAGE>
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No.
4.1 Amended and Restated Articles of Incorporation of the Company
(incorporated herein by reference from Exhibit 3.1 of the Company's
Annual Report on Form 10-K for the year ended December 31, 1989).
4.1.1 Articles of Amendment to Amended and Restated Articles of Incorporation
of the Company (incorporated herein by reference from Exhibit 3.1 of
the Company's Quarterly Report on Form 10-Q for the quarter ended June
30, 1998).
4.1.2 Articles of Amendment to Amended and Restated Articles of Incorporation
of the Company (incorporated herein by reference from Exhibit 3.1 of
the Company's Quarterly Report on Form 10-Q for the quarter ended June
30, 1999).
4.2 Bylaws of the Company (incorporated herein by reference from Exhibit
3.2 of the Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1998).
5 Opinion of Hunton & Williams as to the legality of the securities being
registered.
23.1 Consent of Hunton & Williams (included in the opinion filed a Exhibit
5 to the Registration Statement).
23.2 Consent of PricewaterhouseCoopers LLP
24 Powers of Attorney (contained herein).
99.1 Rights Agreement, dated as of June 30, 1999, by and between the Company
and American Stock Transfer & Trust Company, as Rights Agent (filed as
Exhibit 99.1 to the Registration Statement on Form 8-A, as filed with
the Securities and Exchange Commission on June 16, 1999, as amended,
and incorporated herein by reference).
99.2 Amended and Restated Incentive 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, as amended (the "Securities Act");
(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 infor-
mation set forth in the registration state-
ment. 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 20 percent change in
the maximum aggregate offering price set
forth in the "Calculation of Registration
Fee" table in the effective registration
statement;
II-2
<PAGE>
(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.
2. That, for the purpose of determining any liability under
the Securities Act, 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, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) 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 may be permitted to directors, officers and controlling persons
of the registrant pursuant to the provisions described under Item 6 above, or
otherwise, the registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities
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 Securities
Act and will be governed by the final adjudication of such issue.
POWERS OF ATTORNEY
Each person whose signature appears below hereby authorizes each of the
agents for service named in the Registration Statement, as attorney-in-fact, to
sign on his or her behalf individually and in each capacity stated below and to
file all amendments, including any post-effective amendment, to the Registration
Statement and Tredegar Corporation hereby confers like authority to sign and
file on its behalf.
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<PAGE>
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 County of Chesterfield, Commonwealth of Virginia, on this
23rd day of August, 1999.
TREDEGAR CORPORATION
By /s/ John D. Gottwald
John D. Gottwald, President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on this 23rd day of August, 1999.
Signature Title
/s/ John D. Gottwald President and Director
(John D. Gottwald) (Principal Executive Officer)
/s/ N. A. Scher Executive Vice President, Chief
(Norman A. Scher) Financial Officer and Director
(Principal Financial Officer)
/s/ D. Andrew Edwards Vice President, Treasurer and
(D. Andrew Edwards) Corporate Controller
(Principal Accounting Officer)
/s/ Austin Brockenbrough, III Director
(Austin Brockenbrough, III)
/s/ Phyllis Cothran Director
(Phyllis Cothran)
/s/ Richard W. Goodrum Director
(Richard W. Goodrum)
/s/ Floyd D. Gottwald, Jr. Director
(Floyd D. Gottwald, Jr.)
/s/ William M. Gottwald Director
(William M. Gottwald)
II-4
<PAGE>
/s/ Richard L. Morrill Director
(Richard L. Morrill)
/s/ Emmett J. Rice Director
(Emmett J. Rice)
/s/ Thomas G. Slater, Jr. Director
(Thomas G. Slater, Jr.)
II-5
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
4.1 Amended and Restated Articles of Incorporation of the Company
(incorporated herein by reference from Exhibit 3.1 of the
Company's Annual Report on Form 10-K for the year ended
December 31, 1989).
4.1.1 Articles of Amendment to Amended and Restated Articles of
Incorporation of the Company (incorporated herein by
reference from Exhibit 3.1 of the Company's Quarterly Report
on Form 10-Q for the quarter ended June 30, 1998).
4.1.2 Articles of Amendment to Amended and Restated Articles of
Incorporation of the Company (incorporated herein by
reference from Exhibit 3.1 of the Company's Quarterly Report
on Form 10-Q for the quarter ended June 30, 1999).
4.2 Bylaws of the Company (incorporated herein by reference from
Exhibit 3.2 of the Company's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1998).
5 Opinion of Hunton & Williams as to the legality of the
securities being registered.
23.1 Consent of Hunton & Williams (included in the opinion filed
as Exhibit 5 to the Registration Statement).
23.2 Consent of PricewaterhouseCoopers LLP
24 Powers of Attorney (contained herein).
99.1 Rights Agreement, dated as of June 30, 1999, by and between
the Company and American Stock Transfer & Trust Company, as
Rights Agent (filed as Exhibit 99.1 to the Registration
Statement on Form 8-A, as filed with the Securities and
Exchange Commission on June 16, 1999, as amended, and incor-
porated herein by reference).
99.2 Amended and Restated Incentive Plan
Exhibit 5
September 28, 1999
The Board of Directors
Tredegar Corporation
1100 Boulders Parkway
Richmond, VA 23225
Tredegar Corporation
Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as Virginia counsel to Tredegar Corporation, a Virginia
corporation (the "Company"), in connection with the preparation and filing of a
registration statement under the Securities Act of 1933, as amended, with
respect to 2,857,450 shares of the Company's Common Stock, without par value
(the "Shares"), to be offered pursuant to the Company's Amended and Restated
Incentive Plan (the "Plan").
In rendering this opinion, we have relied upon, among other things, our
examination of the Plan and of such records of the Company and certificates of
its officers and of public officials as we have deemed necessary. In connection
with the filing of such registration statement, we are of the opinion that:
1. The Company is duly incorporated, validly existing and in good
standing under the laws of the Commonwealth of Virginia; and
2. The Shares have been duly authorized and, when issued in accordance
with the terms of the Plan and any related Agreement (as defined in the Plan),
will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to such registration statement.
Very truly yours,
/s/ Hunton & Williams
Hunton & Williams
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 12, 1999, relating to the
financial statements, which appears on page 34 of Tredegar Corporation's Annual
Report on Form 10-K for the year ended December 31, 1998.
PricewaterhouseCoopers LLP
/s/PricewaterhouseCoopers LLP
Richmond, Virginia
September 29, 1999
Exhibit 99.2
TREDEGAR INDUSTRIES, INC.
AMENDED AND RESTATED INCENTIVE PLAN
<PAGE>
Tredegar Industries, Inc.
Amended and Restated Incentive Plan
ARTICLE I DEFINITIONS.........................................................1
1.01. Administrator..................................................1
1.02. Affiliate......................................................1
1.03. Agreement......................................................1
1.04. Board..........................................................1
1.05. Code...........................................................1
1.06. Committee......................................................1
1.07. Common Stock...................................................1
1.08. Company........................................................1
1.09. Deferred Stock Benefit.........................................1
1.10. Exchange Act...................................................2
1.11. Fair Market Value..............................................2
1.12. Incentive Award................................................2
1.13. Option.........................................................2
1.14. Participant....................................................2
1.15. Plan...........................................................2
1.16. Stock Award....................................................2
1.17. Ten Percent Shareholder........................................2
ARTICLE II PURPOSES...........................................................4
ARTICLE III ADMINISTRATION....................................................5
ARTICLE IV ELIGIBILITY........................................................6
ARTICLE V STOCK SUBJECT TO PLAN...............................................7
5.01. Shares Issues..................................................7
5.02. Aggregate Limit................................................7
5.03. Reallocation of Shares.........................................7
ARTICLE VI OPTIONS............................................................8
6.01. Award..........................................................8
6.02. Option Price...................................................8
6.03. Maximum Option Period..........................................8
6.04. Nontransferability.............................................8
6.05. Transferable Options...........................................8
6.06. Employee Status................................................9
6.07. Exercise.......................................................9
6.08. Payment........................................................9
6.09. Installment Payment............................................9
6.10. Shareholder Rights............................................10
6.11. Disposition of Stock..........................................10
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<PAGE>
ARTICLE VII STOCK AWARDS.....................................................11
7.01. Award.........................................................11
7.02. Vesting.......................................................11
7.03. Performance Objectives........................................11
7.04. Employee Status...............................................11
7.05. Shareholder Rights............................................11
ARTICLE VIII INCENTIVE AWARDS................................................13
8.01. Award.........................................................13
8.02. Terms and Conditions..........................................13
8.03. Nontransferability............................................13
8.04. Transferable Incentive Awards.................................13
8.05. Employee Status...............................................14
8.06. Shareholder Rights............................................14
ARTICLE IX ADJUSTMENT UPON CHANGE IN COMMON STOCK............................15
ARTICLE X COMPLIANCE WITH LAW AND APPROVAL OF REGULATORY BODIES..............16
ARTICLE XI GENERAL PROVISIONS................................................17
11.01. Effect on Employment and Service.............................17
11.02. Unfunded Plan................................................17
11.03. Rules of Construction........................................17
ARTICLE XII AMENDMENT........................................................18
ARTICLE XIII DURATION OF PLAN................................................19
ARTICLE XIV EFFECTIVE DATE OF PLAN...........................................20
ii
<PAGE>
Tredegar Industries, Inc.
Amended and Restated Incentive Plan
ARTICLE I
DEFINITIONS
1.01. Administrator
Administrator means the Committee and any delegate of the Committee
that is appointed in accordance with Article III.
1.02. Affiliate
Affiliate means any "subsidiary" or "parent" corporation (within the
meaning of Section 424 of the Code) of the Company.
1.03. Agreement
Agreement means a written agreement (including any amendment or
supplement thereto) between the Company and a Participant specifying the terms
and conditions of a Stock Award, an Incentive Award or an Option granted to such
Participant.
1.04. Board
Board means the Board of Directors of the Company.
1.05. Code
Code means the Internal Revenue Code of 1986, and any amendments
thereto.
1.06. Committee
Committee means the Executive Compensation Committee of the Board.
1.07. Common Stock
Common Stock means the common stock of the Company.
1.08. Company
Company means Tredegar Industries, Inc.
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1.09. Deferred Stock Benefit
Deferred Stock Benefit means a benefit under a nonqualified deferred
compensation plan that is settled by the issuance of Common Stock including, by
way of example and not of limitation, the deferral of income attributable to the
exercise of an Option or the vesting or transferability of a Stock Award.
1.10. Exchange Act
Exchange Act means the Securities Exchange Act of 1934, as amended and
as in effect on the date of this Agreement.
1.11. Fair Market Value
Fair Market Value means, on any given date, the closing price of a
share of Common Stock as reported on the New York Stock Exchange composite tape
on such date, or if the Common Stock was not traded on the New York Stock
Exchange on such day, then on the next preceding day that the Common Stock was
traded on such exchange, all as reported by such source as the Administrator may
select.
1.12. Incentive Award
Incentive Award means an award which, subject to such terms and
conditions as may be prescribed by the Administrator, entitles the Participant
to receive a cash payment from the Company or an Affiliate.
1.13. Option
Option means a stock option that entitles the holder to purchase from
the Company a stated number of shares of Common Stock at the price set forth in
an Agreement.
1.14. Participant
Participant means an employee of the Company or an Affiliate, including
an employee who is a member of the Board, or an individual who provides services
to the Company or an Affiliate, who satisfies the requirements of Article IV and
is selected by the Administrator to receive a Stock Award, an Option, an
Incentive Award or a combination thereof.
1.15. Plan
Plan means the Tredegar Industries, Inc. Amended and Restated Incentive
Plan.
1.16. Stock Award
Stock Award means Common Stock awarded to a Participant under Article
VIII.
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<PAGE>
1.17. Ten Percent Shareholder
Ten Percent Shareholder means any individual owning more than ten
percent (10%) of the total combined voting power of all classes of stock of the
Company or of an Affiliate. An individual shall be considered to own any voting
stock owned (directly or indirectly) by or for his brothers, sisters, spouse,
ancestors or lineal descendants and shall be considered to own proportionately
any voting stock owned (directly or indirectly) by or for a corporation,
partnership, estate or trust of which such individual is a shareholder, partner
or beneficiary.
3
<PAGE>
ARTICLE II
PURPOSES
The Plan is intended to assist the Company and its Affiliates in
recruiting and retaining individuals with ability and initiative by enabling
such persons to participate in the future success of the Company and its
Affiliates and to associate their interests with those of the Company and its
shareholders. The Plan is intended to permit the grant of both Options
qualifying under Section 422 of the Code ("incentive stock options") and Options
not so qualifying and the grant Stock Awards and Incentive Awards and the
settlement of Deferred Stock Benefits. No Option that is intended to be an
incentive stock option shall be invalid for failure to qualify as an incentive
stock option. The proceeds received by the Company from the sale of Common Stock
pursuant to this Plan shall be used for general corporate purposes.
4
<PAGE>
ARTICLE III
ADMINISTRATION
The Plan shall be administered by the Administrator. The Administrator
shall have authority to grant Stock Awards, Incentive Awards and Options upon
such terms (not inconsistent with the provisions of this Plan) as the
Administrator may consider appropriate. Such terms may include conditions (in
addition to those contained in this Plan) on the exercisability of all or any
part of an Option or on the transferability or forfeitability of a Stock Award
or Incentive Award. Notwithstanding any such conditions, the Administrator may,
in its discretion, accelerate the time at which any Option may be exercised or
the time at which a Stock Award may become transferable or nonforfeitable or the
time at which an Incentive Award may be settled. In addition, the Administrator
shall have complete authority to interpret all provisions of this Plan; to
prescribe the form of Agreements; to adopt, amend, and rescind rules and
regulations pertaining to the administration of the Plan; and to make all other
determinations necessary or advisable for the administration of this Plan. The
express grant in the Plan of any specific power to the Administrator shall not
be construed as limiting any power or authority of the Administrator. Any
decision made, or action taken, by the Administrator in connection with the
administration of this Plan shall be final and conclusive. Neither the
Administrator nor any member of the Committee shall be liable for any act done
in good faith with respect to this Plan or any Agreement, Option, Stock Award or
Incentive Award. All expenses of administering this Plan shall be borne by the
Company.
The Committee, in its discretion, may delegate to one or more officers
of the Company or the Executive Committee of the Board, all or part of the
Committee's authority and duties with respect to grants and awards to
individuals who are not subject to the reporting and other provisions of Section
16 of the Exchange Act. The Committee may revoke or amend the terms of a
delegation at any time but such action shall not invalidate any prior actions of
the Committee's delegate or delegates that were consistent with the terms of the
Plan.
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<PAGE>
ARTICLE IV
ELIGIBILITY
Any employee of the Company or an Affiliate (including a corporation
that becomes an Affiliate after the adoption of this Plan) or a person who
provides services to the Company or an Affiliate (including a corporation that
becomes an Affiliate after the adoption of this Plan) is eligible to participate
in this Plan if the Administrator, in its sole discretion, determines that such
person has contributed significantly or can be expected to contribute
significantly to the profits or growth of the Company or an Affiliate. Directors
of the Company who are employees of the Company or an Affiliate may be selected
to participate in this Plan.
6
<PAGE>
ARTICLE V
STOCK SUBJECT TO PLAN
5.01. Shares Issues
Upon the award of shares of Common Stock pursuant to a Stock Award the
Company may issue shares of Common Stock from its authorized but unissued Common
Stock. Upon the exercise of any Option the Company may deliver to the
Participant (or the Participant's broker if the Participant so directs), shares
of Common Stock from its authorized but unissued Common Stock.
5.02. Aggregate Limit
The maximum aggregate number of shares of Common Stock that may be
issued under this Plan pursuant to the exercise of Options, the grant of Stock
Awards and the settlement of Deferred Stock Benefits is 1,843,325 shares. The
maximum aggregate number of shares that may be issued under this Plan as Stock
Awards is 300,000 shares. Shares of Common Stock issued in settlement of
Deferred Stock Benefits attributable to the deferral of Option and Stock Award
gain shall be counted toward the foregoing limits only once; provided, however,
that shares of Common Stock issued in settlement of Deferred Stock Benefits that
constitute earnings on such deferrals shall be counted separately toward the
foregoing limits. The maximum aggregate number of shares that may be issued
under this Plan and the maximum number of shares that may be issued as Stock
Awards shall be subject to adjustment as provided in Article IX.
5.03. Reallocation of Shares
If an Option is terminated, in whole or in part, for any reason other
than its exercise, the number of shares of Common Stock allocated to the Option
or portion thereof may be reallocated to other Options, Stock Awards and
Deferred Stock Benefits to be granted or issued under this Plan. If a Stock
Award is forfeited, in whole or in part, for any reason, the number of shares of
Common Stock allocated to the Stock Award or portion thereof may be reallocated
to other Options, Stock Awards and Deferred Stock Benefits to be granted or
issued under this Plan.
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<PAGE>
ARTICLE VI
OPTIONS
6.01. Award
In accordance with the provisions of Article IV, the Administrator will
designate each individual to whom an Option is to be granted and will specify
the number of shares of Common Stock covered by such awards; provided, however,
that no individual may be granted Options in any calendar year covering more
than 450,000 shares of Common Stock.
6.02. Option Price
The price per share for Common Stock purchased on the exercise of an
Option shall be determined by the Administrator on the date of grant, but shall
not be less than the Fair Market Value on the date the Option is granted.
Notwithstanding the preceding sentence, the price per share for Common Stock
purchased on the exercise of any Option that is an incentive stock option
granted to an individual who is a Ten Percent Shareholder on the date such
option is granted, shall not be less than one hundred ten percent (110%) of the
Fair Market Value on the date the Option is granted.
6.03. Maximum Option Period
The maximum period in which an Option may be exercised shall be
determined by the Administrator on the date of grant, except that no Option that
is an incentive stock option shall be exercisable after the expiration of ten
years from the date such Option was granted. In the case of an incentive stock
option that is granted to a Participant who is a Ten Percent Shareholder on the
date of grant, such Option shall not be exercisable after the expiration of five
years from the date of grant. The terms of any Option that is an incentive stock
option may provide that it is exercisable for a period less than such maximum
period.
6.04. Nontransferability
Except as provided in Section 6.05, each Option granted under this Plan
shall be nontransferable except by will or by the laws of descent and
distribution. Except as provided in Section 6.05, during the lifetime of the
Participant to whom the Option is granted, the Option may be exercised only by
the Participant. No right or interest of a Participant in any Option shall be
liable for, or subject to, any lien, obligation, or liability of such
Participant.
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<PAGE>
6.05. Transferable Options
Section 6.04 to the contrary notwithstanding, if the Agreement
provides, an Option that is not an incentive stock option may be transferred by
a Participant to the Participant's children, grandchildren, spouse, one or more
trusts for the benefit of such family members or a partnership in which such
family members are the only partners; provided, however, that Participant may
not receive any consideration for the transfer. In addition to transfers
described in the preceding sentence the Administrator may grant Options that are
not incentive stock options that are transferable on other terms and conditions
as may be permitted under Securities Exchange Commission Rule 16b-3 as in effect
from time to time. The holder of an Option transferred pursuant to this section
shall be bound by the same terms and conditions that governed the Option during
the period that it was held by the Participant.
6.06. Employee Status
For purposes of determining the applicability of Section 422 of the
Code (relating to incentive stock options), or in the event that the terms of
any Option provide that it may be exercised only during employment or within a
specified period of time after termination of employment, the Administrator may
decide to what extent leaves of absence for governmental or military service,
illness, temporary disability, or other reasons shall not be deemed
interruptions of continuous employment.
6.07. Exercise
Subject to the provisions of this Plan and the applicable Agreement, an
Option may be exercised in whole at any time or in part from time to time at
such times and in compliance with such requirements as the Administrator shall
determine; provided, however, that incentive stock options (granted under the
Plan and all plans of the Company and its Affiliates) may not be first
exercisable in a calendar year for stock having a Fair Market (determined as of
the date an Option is granted) exceeding $100,000. An Option granted under this
Plan may be exercised with respect to any number of whole shares less than the
full number for which the Option could be exercised. A partial exercise of an
Option shall not affect the right to exercise the Option from time to time in
accordance with this Plan and the applicable Agreement with respect to the
remaining shares subject to the Option.
6.08. Payment
Unless otherwise provided by the Agreement, payment of the Option price
shall be made in cash or a cash equivalent acceptable to the Administrator. If
the Agreement provides, payment of all or part of the Option price may be made
by surrendering shares of Common Stock to the Company. If Common Stock is used
to pay all or part of the Option price, the sum of the cash and cash equivalent
and the Fair Market Value (determined as of the day preceding the date of
exercise) of the shares surrendered must not be less than the Option price of
the shares for which the Option is being exercised.
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6.09. Installment Payment
If the Agreement provides, and if the Participant is employed by the
Company on the date the Option is exercised, payment of all or part of the
Option price may be made in installments. In that event the Company shall lend
the Participant an amount equal to not more than ninety percent (90%) of the
Option price of the shares acquired by the exercise of the Option. This amount
shall be evidenced by the Participant's promissory note and shall be payable in
not more than five equal annual installments, unless the amount of the loan
exceeds the maximum loan value for the shares purchased, which value shall be
established from time to time by regulations of the Board of Governors of the
Federal Reserve System. In that event, the note shall be payable in equal
quarterly installments over a period of time not to exceed five years. The
Administrator, however, may vary such terms and make such other provisions
concerning the unpaid balance of such purchase price in the case of hardship,
subsequent termination of employment, absence on military or government service,
or subsequent death of the Participant as in its discretion are necessary or
advisable in order to protect the Company, promote the purposes of the Plan and
comply with regulations of the Board of Governors of the Federal Reserve System
relating to securities credit transactions.
The Participant shall pay interest on the unpaid balance at the minimum
rate necessary to avoid imputed interest or original issue discount under the
Code. All shares acquired with cash borrowed from the Company shall be pledged
to the Company as security for the repayment thereof. In the discretion of the
Administrator, shares of stock may be released from such pledge proportionately
as payments on the note (together with interest) are made, provided the release
of such shares complies with the regulations of the Federal Reserve System
relating to securities credit transactions then applicable. While shares are so
pledged, and so long as there has been no default in the installment payments,
such shares shall remain registered in the name of the Participant, and he shall
have the right to vote such shares and to receive all dividends thereon.
6.10. Shareholder Rights
No Participant shall have any rights as a shareholder with respect to
shares subject to his Option until the date of exercise of such Option.
6.11. Disposition of Stock
A Participant shall notify the Company of any sale or other disposition
of Common Stock acquired pursuant to an Option that was an incentive stock
option if such sale or disposition occurs (i) within two years of the grant of
an Option or (ii) within one year of the issuance of the Common Stock to the
Participant. Such notice shall be in writing and directed to the Secretary of
the Company.
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ARTICLE VII
STOCK AWARDS
7.01. Award
In accordance with the provisions of Article IV, the Administrator will
designate each individual to whom a Stock Award is to be made and will specify
the number of shares of Common Stock covered by such awards; provided, however,
that no Participant may receive Stock Awards in any calendar year for more than
75,000 shares of Common Stock.
7.02. Vesting
The Administrator, on the date of the award, may prescribe that a
Participant's rights in the Stock Award shall be forfeitable or otherwise
restricted for a period of time or subject to such conditions as may be set
forth in the Agreement. If a Stock Award is not nonforfeitable and transferable
upon its grant, the period of restriction shall be at least three years;
provided, however, that the minimum period of restriction shall be at least one
year in the case of a Stock Award that will become transferable and
nonforfeitable on account of the satisfaction of performance objectives
prescribed by the Administrator.
7.03. Performance Objectives
In accordance with Section 7.02, the Administrator may prescribe that
Stock Awards will become vested or transferable or both based on objectives
stated with respect to the Company's, an Affiliate's or an operating unit's
return on equity, earnings per share, total earnings, earnings growth, return on
capital, return on assets, or Fair Market Value. If the Administrator, on the
date of award, prescribes that a Stock Award shall become nonforfeitable and
transferable only upon the attainment of performance objectives stated with
respect to one or more of the foregoing criteria, the shares subject to such
Stock Award shall become nonforfeitable and transferable only to the extent that
the Administrator certifies that such objectives have been achieved.
7.04. Employee Status
In the event that the terms of any Stock Award provide that shares may
become transferable and nonforfeitable thereunder only after completion of a
specified period of employment, the Administrator may decide in each case to
what extent leaves of absence for governmental or military service, illness,
temporary disability, or other reasons shall not be deemed interruptions of
continuous employment.
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7.05. Shareholder Rights
Prior to their forfeiture (in accordance with the applicable Agreement
and while the shares of Common Stock granted pursuant to the Stock Award may be
forfeited or are nontransferable), a Participant will have all rights of a
shareholder with respect to a Stock Award, including the right to receive
dividends and vote the shares; provided, however, that during such period (i) a
Participant may not sell, transfer, pledge, exchange, hypothecate, or otherwise
dispose of shares of Common Stock granted pursuant to a Stock Award, (ii) the
Company shall retain custody of the certificates evidencing shares of Common
Stock granted pursuant to a Stock Award, and (iii) the Participant will deliver
to the Company a stock power, endorsed in blank, with respect to each Stock
Award. The limitations set forth in the preceding sentence shall not apply after
the shares of Common Stock granted under the Stock Award are transferable and
are no longer forfeitable.
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ARTICLE VIII
INCENTIVE AWARDS
8.01. Award
The Administrator shall designate Participants to whom Incentive Awards
are made. All Incentive Awards shall be finally determined exclusively by the
Administrator under the procedures established by the Administrator; provided,
however, that no Participant may receive an Incentive Award payment in any
calendar year that exceeds the lesser of (i) 75% of the Participant's base
salary (prior to any salary reduction or deferral elections) as of the date of
grant of the Incentive Award or (ii) $250,000.
8.02. Terms and Conditions
The Administrator, at the time an Incentive Award is made, shall
specify the terms and conditions which govern the award. Such terms and
conditions shall prescribe that the Incentive Award shall be earned only to the
extent that the Company, an Affiliate or an operating unit, during a performance
period of at least one year, achieves objectives based on return on equity,
earnings per share, total earnings, earnings growth, return on capital, return
on assets or Fair Market Value. Such terms and conditions also may include other
limitations on the payment of Incentive Awards including, by way of example and
not of limitation, requirements that the Participant complete a specified period
of employment with the Company or an Affiliate or that the Company, an
Affiliate, or the Participant attain stated objectives or goals (in addition to
those prescribed in accordance with the preceding sentence) as a prerequisite to
payment under an Incentive Award. The Administrator, at the time an Incentive
Award is made, shall also specify when amounts shall be payable under the
Incentive Award and whether amounts shall be payable in the event of the
Participant's death, disability, or retirement.
8.03. Nontransferability
Except as provided in Section 8.04, Incentive Awards granted under this
Plan shall be nontransferable except by will or by the laws of descent and
distribution. No right or interest of a Participant in an Incentive Award shall
be liable for, or subject to, any lien, obligation, or liability of such
Participant.
8.04. Transferable Incentive Awards
Section 9.03 to the contrary notwithstanding, the Administrator may
grant transferable Incentive Awards to the extent that, and on such terms and
conditions as may be permitted by, Securities Exchange Commission Rule 16b-3 as
in effect from time to time. The holder of an Incentive Award transferred
pursuant to this section shall be bound by the same terms and conditions that
governed the Incentive Award during the period that it was held by the
Participant.
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8.05. Employee Status
If the terms of an Incentive Award provide that a payment will be made
thereunder only if the Participant completes a stated period of employment, the
Administrator may decide to what extent leaves of absence for governmental or
military service, illness, temporary disability or other reasons shall not be
deemed interruptions of continuous employment.
8.06. Shareholder Rights
No Participant shall, as a result of receiving an Incentive Award, have
any rights as a shareholder of the Company or any Affiliate on account of such
award.
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ARTICLE IX
ADJUSTMENT UPON CHANGE IN COMMON STOCK
The maximum number of shares as to which Options, Stock Awards and
Deferred Stock Benefits may be granted or issued under this Plan, the terms of
outstanding Options, Stock Awards and Incentive Awards and the per individual
limitations on the number of shares for which Options and Stock Awards may be
granted shall be adjusted as the Committee shall determine to be equitably
required in the event that (a) the Company (i) effects one or more stock
dividends, stock split-ups, subdivisions or consolidations of shares or (ii)
engages in a transaction to which Section 424 of the Code applies or (b) there
occurs any other event which, in the judgment of the Committee necessitates such
action. Any determination made under this Article IX by the Committee shall be
final and conclusive.
The issuance by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, for cash or property,
or for labor or services, either upon direct sale or upon the exercise of rights
or warrants to subscribe therefor, or upon conversion of shares or obligations
of the Company convertible into such shares or other securities, shall not
affect, and no adjustment by reason thereof shall be made with respect to, the
maximum number of shares as to which Options, Stock Awards and Deferred Stock
Benefits may be granted or issued, the per individual limitations on the number
of shares for which Options and Stock Awards may be granted or the terms of
outstanding Options, Stock Awards or Incentive Awards.
The Committee may make Stock Awards and may grant Options in
substitution for performance shares, phantom shares, stock awards, stock
options, stock appreciation rights, or similar awards held by an individual who
becomes an employee of the Company or an Affiliate in connection with a
transaction described in the first paragraph of this Article IX. Notwithstanding
any provision of the Plan (other than the limitation of Section 5.02), the terms
of such substituted Stock Awards or Option grants shall be as the Committee, in
its discretion, determines is appropriate.
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ARTICLE X
COMPLIANCE WITH LAW AND APPROVAL OF REGULATORY BODIES
No Option shall be exercisable, no Common Stock shall be issued, no
certificates for shares of Common Stock shall be delivered, and no payment shall
be made under this Plan except in compliance with all applicable federal and
state laws and regulations (including, without limitation, withholding tax
requirements), any listing agreement to which the Company is a party, and the
rules of all domestic stock exchanges on which the Company's shares may be
listed. The Company shall have the right to rely on an opinion of its counsel as
to such compliance. Any share certificate issued to evidence Common Stock when a
Stock Award is granted or for which an Option is exercised may bear such legends
and statements as the Administrator may deem advisable to assure compliance with
federal and state laws and regulations. No Option shall be exercisable, no Stock
Award shall be granted, no Common Stock shall be issued, no certificate for
shares shall be delivered, and no payment shall be made under this Plan until
the Company has obtained such consent or approval as the Administrator may deem
advisable from regulatory bodies having jurisdiction over such matters.
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ARTICLE XI
GENERAL PROVISIONS
11.01. Effect on Employment and Service
Neither the adoption of this Plan, its operation, nor any documents
describing or referring to this Plan (or any part thereof) shall confer upon any
individual any right to continue in the employ or service of the Company or an
Affiliate or in any way affect any right and power of the Company or an
Affiliate to terminate the employment or service of any individual at any time
with or without assigning a reason therefor.
11.02. Unfunded Plan
The Plan, insofar as it provides for grants, shall be unfunded, and the
Company shall not be required to segregate any assets that may at any time be
represented by grants under this Plan. Any liability of the Company to any
person with respect to any grant under this Plan shall be based solely upon any
contractual obligations that may be created pursuant to this Plan. No such
obligation of the Company shall be deemed to be secured by any pledge of, or
other encumbrance on, any property of the Company.
11.03. Rules of Construction
Headings are given to the articles and sections of this Plan solely as
a convenience to facilitate reference. The reference to any statute, regulation,
or other provision of law shall be construed to refer to any amendment to or
successor of such provision of law.
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ARTICLE XII
AMENDMENT
The Board may terminate this Plan from time to time. The Committee may
amend this Plan from time to time; provided, however, that the approval of the
Board shall be required to amend Article IV or Sections 5.02 or 6.02 hereof; and
provided, further, that no amendment may become effective until shareholder
approval is obtained if (i) the amendment increases the aggregate number of
shares of Common Stock that may be issued under the Plan or (ii) the amendment
changes the class of individuals eligible to become Participants. No amendment
shall, without a Participant's consent, adversely affect any rights of such
Participant under any outstanding Stock Award, Option or Incentive Award
outstanding at the time such amendment is made.
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ARTICLE XIII
DURATION OF PLAN
No Stock Award, Option or Incentive Award may be granted under this
Plan after February 24, 2009. Stock Awards, Options and Incentive Awards granted
before that date shall remain valid in accordance with their terms. Deferred
Stock Benefits may be issued at any time; provided that a sufficient number of
shares of Common Stock remains available pursuant to Section 5.02.
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ARTICLE XIV
EFFECTIVE DATE OF PLAN
Options and Incentive Awards may be granted under this Plan upon its
adoption by the Board, provided that no Option or Incentive Award shall be
effective or exercisable unless this Plan is approved by a majority of the votes
entitled to be cast by the Company's shareholders, voting either in person or by
proxy, at a duly held shareholders' meeting within twelve months of such
adoption. Stock Awards may be granted and Deferred Stock Benefits may be issued
under this Plan upon the later of its adoption by the Board or its approval by
shareholders in accordance with the preceding sentence.
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