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EXHIBIT 10.2
SECOND AMENDED AND RESTATED
1995 INCENTIVE AND NONQUALIFIED STOCK OPTION PLAN FOR
MANAGEMENT EMPLOYEES OF BUCKEYE TECHNOLOGIES INC.
BUCKEYE TECHNOLOGIES INC., a Delaware corporation (the "Company"),
hereby amends and restates this Incentive and Nonqualified Stock Option Plan for
management employees of Buckeye Technologies Inc. and Subsidiaries. The purposes
of this Plan are as follows:
(1) To further the growth, development and financial success of the
Company by providing additional incentives to certain key management employees
of the Company and its Subsidiaries who have been or will be given
responsibility for the management or administration of the Company's business
affairs, by assisting them to become owners of capital stock of the Company and
thus to benefit directly from its growth, development and financial success.
(2) To enable the Company to obtain and retain the services of the type
of managerial employees considered essential to the long range success of the
Company by providing and offering them an opportunity to become owners of
capital stock of the Company under Options.
ARTICLE I.
DEFINITIONS
1.1 General. Whenever the following terms are used in this Plan they
shall have the meaning specified below unless the context clearly indicates to
the contrary.
1.2 Board. "Board" shall mean the Board of Directors of the Company.
1.3 Code. "Code" shall mean the Internal Revenue Code of 1986, as
amended.
1.4 Committee. "Committee" shall mean the Compensation Committee of the
Board, appointed as provided in Section 6.1.
1.5 Common Stock. "Common Stock" shall mean the common stock, par value
$.01 per share, of the Company.
1.6 Company. "Company" shall mean Buckeye Technologies Inc. and those
corporations, if any, which are from time to time, its Subsidiaries.
1.7 Director. "Director" shall mean a member of the Board.
1.8 Employee. "Employee" shall mean any employee (as defined in
accordance with the regulations and revenue rulings then applicable under
Section 3401(c) of the Code) of the
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Company or any of its Subsidiaries whether such employee is so employed at the
time this Plan is adopted or becomes so employed subsequent to the adoption of
this Plan.
1.9 Exercise Price. "Exercise Price" shall have the meaning given in
Section 4.2.
1.10 Fair Market Value. "Fair market value" of any shares of Common
Stock of the Company for purposes of the Plan shall be (a) the last price at
which shares of the Company were traded on the New York Stock Exchange on the
specified date or, if there were no trades on that day, then on the last day
prior to such date during which there were trades, or (b) solely in the case of
any Options granted on the date of the initial public offering of the Common
Stock of the Company, the price at which the Common Stock is sold to the public.
1.11 Incentive Stock Option. "Incentive Stock Option" shall mean any
portion of an Option which (i) is not specifically designated by the Committee
at the time of the grant as a Nonqualified Stock Option, (ii) can be expected at
the time of grant to satisfy the requirements for treatment as an incentive
stock option under Section 422 of the Code, (iii) continues at all times
thereafter to satisfy the requirements for treatment as an incentive stock
option under Section 422 of the Code, and (iv) is exercised by either a citizen
or resident alien of the United States (as defined in the Code and the
regulations thereunder).
1.12 Nonqualified Stock Option. "Nonqualified Stock Option" shall mean
any portion of the Option which is not an Incentive Stock Option.
1.13 Option. "Option" shall mean an option granted under the Plan to
purchase Common Stock.
1.14 Optionee. "Optionee" shall mean an Employee to whom an Option is
granted under the Plan.
1.15 Plan. "Plan" shall mean the 1995 Incentive and Nonqualified Stock
Option Plan for Management Employees of the Company and Subsidiaries, as amended
or restated from time to time.
1.16 Pronouns. The masculine pronoun shall include the feminine and
neuter and the singular shall include the plural, where the context so
indicates.
1.17 Stock Option Agreement. "Stock Option Agreement" shall mean a
Stock Option Subscription Agreement between the Optionee and the Company.
1.18 Subsidiary. "Subsidiary" shall mean any corporation (other than
the Company) in an unbroken chain of corporations beginning with the Company if
each of the corporations, or if each group of commonly controlled corporations,
other than the last corporation in an unbroken
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chain then owns stock possessing fifty percent (50%) or more of the total
combined voted power of all classes of stock in one of the other corporations in
such chain.
ARTICLE II.
SHARES SUBJECT TO PLAN
2.1 Shares Subject to Plan. The shares of stock subject to Options
shall be shares of Common Stock of the Company. The aggregate number of shares
of Common Stock which may be issued upon exercise of Options under the Plan
shall not exceed four million nine hundred thousand (4,900,000) shares, subject
to adjustment as provided in Section 4.6 hereof.
2.2 Unexercised Options. If any Option expires or is canceled without
having been fully exercised, the number of shares subject to such Option but as
to which such Option was not exercised prior to its expiration or cancellation
may again be optioned hereunder, subject to the limitations of Section 2.1.
ARTICLE III.
GRANTING OF OPTIONS
3.1 Eligibility. Any management Employee of the Company shall be
eligible to be granted Options. The determination by the Committee of the status
of an employee as a member of management shall be conclusive.
3.2 Granting of Options. The Committee shall from time to time, in its
absolute discretion:
(i) determine which Employees are key management Employees and
select from such Employees (including those to whom Options have been
previously granted under the Plan) such of them as in its opinion shall
be granted Options; and
(ii) determine the number of shares to be subject to such
Options granted to such selected management Employees; and
(iii) determine the terms and conditions of such Options,
consistent with the Plan; and
(iv) establish such conditions as to the manner of exercise of
such Options as it may deem necessary, including but not limited to
requiring Optionees to enter into agreements regarding transferability
and other restrictions with respect to shares issuable upon exercise of
such Options.
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3.3 Expiration of Time to Make Grants. No Option may be granted under
this Plan after the expiration of ten (10) years from the date the Plan is
adopted by the Board or the date the stockholders of the Company approve this
Plan, if earlier.
ARTICLE IV.
TERMS OF OPTIONS
4.1 Option Agreement. Each Option shall be evidenced by a written Stock
Option Agreement, which shall be executed by the Optionee and an authorized
officer of the Company, and which shall contain such terms and conditions as the
Committee shall determine, consistent with the Plan.
4.2 Exercise Price. The purchase price under each Option shall be
determined by the Committee at the time the Option is granted, but in no event
shall such purchase price be less than one hundred percent (100%) of the Fair
Market Value of the shares of Common Stock of the Company on the date of grant.
4.3 Commencement of Exercisability. Subject to the provisions of
Section 7.2, Options shall become exercisable at such times and in such
installments (which may be cumulative) as the Committee shall provide in the
terms of each individual Stock Option Agreement; provided, however, that by a
resolution adopted after an Option is granted the Committee may, on such terms
and conditions as it may determine to be appropriate and subject to Section 7.2,
accelerate the time at which such Option or any portion thereof may be
exercised.
4.4 Expiration of Options. No Option may be exercised to any extent by
anyone after, and every Option shall expire no later than, the expiration of ten
(10) years from the date the Option was granted. Subject to the provisions of
this Section 4.4, the Committee shall provide, in the terms of each individual
Stock Option Agreement, when the Option expires and becomes unexercisable.
4.5 No Right to Continue in Employment. Nothing in this Plan or in any
Stock Option Agreement hereunder shall confer upon any Optionee any right to
continue in the employ or service of the Company or shall interfere with or
restrict in any way the rights of the Company, which are hereby expressly
reserved, to discharge any Optionee at any time for any reason whatsoever, with
or without good cause.
4.6 Adjustments in Outstanding Options. If the outstanding shares of
Common Stock subject to Options are, from time to time, changed into or
exchanged for a different number or kind of shares of capital stock or other
securities of the Company, or of another corporation, by reason of a
reorganization, merger, consolidation, recapitalization, reclassification, stock
split-up, stock dividend, combination of shares or otherwise, the Committee
shall make an appropriate adjustment in the aggregate number and kind of shares
which may be issued pursuant to Section 2.1 hereof and the number and kind of
shares as to which all outstanding Options, or
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portions thereof then unexercised, shall be exercisable. Such adjustment in an
outstanding Option shall be made without change in the total price applicable to
the Option or the unexercised portion of the Option (except for any change in
the aggregate price resulting from rounding-off of share quantities or prices)
and with any necessary corresponding adjustment in Exercise Price per share. No
fractional shares shall be issued, and any fractional shares resulting from
computations pursuant to this Section 4.6 shall be eliminated from the
respective Options. Any such adjustment made by the Committee shall be final and
binding upon all Optionees, the Company and all other interested persons.
ARTICLE V.
EXERCISE OF OPTIONS
5.1 Persons Eligible to Exercise. Except with respect to an Option
which is specifically made transferable pursuant to Section 7.1, (i) during the
lifetime of the Optionee, only the Optionee or the Optionee's guardian or
conservator may exercise an Option granted to such Optionee, or any portion
thereof, and (ii) after the death of the Optionee, any exercisable portion of an
Option may, prior to the time when such portion becomes unexercisable under the
terms of Section 4.4 or the Optionee's Stock Option Agreement, be exercised by
the Optionee's personal representative or by any person empowered to do so under
the deceased Optionee's will or under the then applicable laws of descent and
distribution.
5.2 Partial Exercise. At any time prior to the time when any
exercisable Option or exercisable portion thereof expires or becomes
unexercisable under the terms of Section 4.4 or the Optionee's Stock Option
Agreement, such Option or portion thereof may be exercised in whole or in part;
provided, however, that the Company shall not be required to issue fractional
shares.
5.3 Manner of Exercise. An exercisable Option, or any exercisable
portion thereof, may be exercised solely by delivery to the Secretary of the
Company or his or her office of all of the following prior to the time when such
Option or such portion becomes unexercisable under the terms of Section 4.4 or
the Optionee's Stock Option Agreement:
(i) Notice in writing signed by the Optionee or other person
then entitled to exercise such Option or portion thereof, stating that
such Option or portion thereof is exercised; and
(ii) Full payment of the Exercise Price (as hereinafter
provided) for the shares with respect to which such Option or portion
thereof is thereby exercised, together with payment or arrangement for
payment of federal income or other tax, if any, required to be withheld
by the Company with respect to such shares; and
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(iii) In the event that the Option or portion thereof shall be
exercised pursuant to Section 5.1 by any person or persons other than
the Optionee, appropriate proof of the right of such person or persons
to exercise the Option or portion thereof; and
(iv) Such representations and documents as the Committee deems
reasonably necessary or advisable to effect compliance with all
applicable provisions of the Securities Act of 1933, as amended, and
any other federal, state or foreign securities laws or regulations. The
Committee may, in its absolute discretion, also take whatever
additional actions it deems appropriate to effect such compliance,
including, without limitation, placing legends on share certificates
and issuing stock-transfer orders to transfer agents and registrars.
The Exercise Price shall be payable in cash, by check, by tendering
shares of Common Stock of the Company, or by any combination thereof, as time to
time determined by the Committee. Any shares of Common Stock acceptable to the
Committee in payment of the Exercise Price may be tendered by either actual
delivery of the certificates or by such other procedures as the Committee may
establish from time to time and shall be valued at Fair Market Value as of the
date of exercise.
5.4 Rights as Stockholders. The holders of Options shall not be, nor
have any of the rights or privileges of, stockholders of the Company in respect
of any shares purchasable upon the exercise of any part of an Option, unless and
until certificates representing such shares have been issued by the Company to
such holders. No adjustment shall be made for cash dividends for which the
record date is prior to the date such stock certificate is issued.
ARTICLE VI.
ADMINISTRATION
6.1 Stock Option Committee. The Committee shall consist of at least
three (3) Directors. Appointment of Committee members by the Board shall be
effective upon acceptance of appointment, and Committee members may resign at
any time by delivering written notice to the Board. Vacancies in the Committee
shall be filled by the Board. Committee members shall be appointed by and shall
serve at the pleasure of the Board, and the Board may from time to time remove
members from, or add members to, the Committee and shall fill any vacancy on the
Committee. No person shall be eligible to serve on the Committee unless such
person is then a "non-employee director" within the meaning of paragraph (b) of
Rule 16b-3 which has been adopted by the Securities and Exchange Commission
under the Securities Exchange Act of 1934, as such Rule or its equivalent is
then in effect.
6.2 Duties and Powers of Committee. It shall be the duty of the
Committee to conduct the general administration of the Plan in accordance with
its provisions. The Committee shall have the power to interpret the Plan and the
Options and to adopt such rules for the administration, interpretation, and
application of the Plan as are consistent herewith and to
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interpret, amend or revoke any such rules. Any such interpretation and rules
shall be consistent with the basic purpose of the Plan to grant Options. The
Board may, in its absolute discretion, at any time and from time to time,
exercise any and all rights and duties of the Committee under the Plan.
6.3 Majority Rule. The Committee shall act by a majority of its members
in office and the Committee may act either by vote at a telephonic or other
meeting or by a memorandum or other written instrument signed by a majority of
the Committee. The Secretary of the Company shall keep minutes of all meetings
of the Committee. The Committee shall make such rules of procedure for the
conduct of its business as it shall deem advisable.
6.4 Compensation; Professional Assistance; Good Faith Actions. Members
of the Committee shall not receive compensation for their services as members in
addition to the compensation otherwise payable to them as members of the Board,
but all expenses and liabilities they incur in connection with the
administration of the Plan shall be borne by the Company. The Committee may
employ attorneys, consultants, accountants, appraisers, brokers or other
persons. The Committee, the Company and the officers and Directors of the
Company shall be entitled to rely upon the advice, opinions or valuations of any
such persons. No member of the Committee shall be personally liable for any
action, determination or interpretation made in good faith with respect to the
Plan or the Options, and all members of the Committee shall be fully protected
by the Company in respect to any such action, determination or interpretation.
ARTICLE VII.
MISCELLANEOUS PROVISIONS
7.1 Transferability of Options. The Committee may grant Nonqualified
Stock Options which are transferable to the extent expressly provided in the
Stock Option Agreement. Except as expressly provided therein, no Option or
interest or right therein shall be subject to disposition by transfer,
alienation, anticipation, pledge, encumbrance, assignment or any other means,
whether such disposition be voluntary or involuntary or by operation of law or
by judgment, levy, attachment, garnishment or any other legal or equitable
proceeding (including bankruptcy), and any attempted disposition thereof shall
be null and void and of no effect; provided, however, that nothing in this
Section 7.1 shall prevent transfers by will or by the applicable laws of descent
and distribution to the extent contemplated hereby.
7.2 Amendment, Suspension or Termination of the Plan. The Plan may be
wholly or partially amended or otherwise modified, suspended or terminated at
any time or from time to time by the Committee. Notwithstanding the foregoing,
without approval of the Company's stockholders given within twelve (12) months
before or after the action by the Committee, no action of the Committee or the
Board may increase any limit imposed in Section 2.1 on the maximum number of
shares which may be issued upon exercise of Options, reduce the minimum option
price requirements in Section 4.2 or extend the limit imposed in Section 3.3 on
the period during which Options may be granted. Neither the amendment,
suspension nor termination of
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the Plan shall, without the consent of the holder of the Option, alter or impair
any rights or obligations under any Option theretofore granted. No Option may be
granted during any period of suspension nor after termination of the Plan.
7.3 Effect of Plan Upon Other Options and Compensation Plans. The
adoption of the Plan shall not affect any other compensation or incentive plans
in effect for the Company. Nothing in this Plan shall be construed to limit the
right of the Company (a) to establish any other forms of incentives or
compensation for Employees of the Company; or (b) to grant or assume options
otherwise than under the Plan in connection with any proper corporate purpose,
including, but not by way of limitation, the grant or assumption of options in
connection with the acquisition by purchase, lease, merger, consolidation or
otherwise, of the business, stock or assets of any corporation, firm or
association.
7.4 Application of Proceeds. The proceeds received by the Company from
the sale of its shares of Common Stock under the Plan will be used for general
corporate purposes.
7.5 Titles. Titles are provided for convenience only and are not to
serve as a basis for interpretation or construction of the Plan.
7.6 Interpretation. Any Options granted under this Plan as Incentive
Stock Options are intended to satisfy all requirements of Section 422 of the
Code insofar as possible, and the provisions of this Plan and all Stock Option
Agreements shall be construed in accordance with that intention. If any
provision of this Plan or any Stock Option Agreement shall be inconsistent or in
conflict with any applicable requirement for an Incentive Stock Option, then
such requirement shall be deemed to override and supersede the inconsistent or
conflicting provision; provided, however, the foregoing provision shall not
limit the Company from granting to any Optionee Options which are in excess of
the amount which may be treated as Incentive Stock Options, and any Options so
granted in excess of the limitations in Section 422(d) of the Code shall be
treated as Nonqualified Stock Options; provided further, however, if the normal
date of exercise of the Option is accelerated because of a sale of the Company
or other similar event as provided in any Stock Option Agreement or because of
the exercise of the Committee's discretion under Section 4.3, such acceleration
shall nevertheless occur even if it shall cause all or a part of the Option to
no longer be an Incentive Stock Option. Any required provision for an Incentive
Stock Option that is omitted from this Plan or the Stock Option Agreement shall
be incorporated herein by reference and shall apply retroactively, if necessary,
and shall be deemed a part of this Plan and any Stock Option Agreement entered
into under this Plan to the same extent as though expressly set forth herein.
The Committee may amend this Plan or amend the terms of any Stock Option
Agreement in any manner that may be required in order for the Options granted
under this Plan to comply with the applicable requirements for Incentive Stock
Options, and, if necessary, any such amendments shall apply retroactively to the
adoption of this Plan.
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7.7 Effective Date. This Plan first became effective on October 27,
1995, the date of its adoption by the Board, and was approved on November 17,
1995 by the vote of the holders of a majority of the outstanding shares of the
Company's Common Stock. This Plan was first amended and restated on August 12,
1997 and effective with respect to Options granted on or after the date of its
adoption by the Board. Pursuant to Section 7.2, the first amendment and
restatement did not require approval by the shareholders of the Company. This
Plan was further amended and restated to increase the number of shares subject
to the Plan effective on the date of the approval of such increase by the
shareholders of Buckeye Technologies Inc. on November 4, 1999.
I hereby certify that the foregoing Plan was amended and restated
effective on the date of shareholder approval.
Executed on this 4th day of November, 1999.
/s/ Sheila Jordan Cunningham
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Secretary
Corporate Seal
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