As filed with the Securities and Exchange Commission on June 5, 1998
Registration No. 33-86040
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
The Talbots, Inc.
(Exact name of Registrant as specified in its charter)
Delaware 41-1111318
(State or Other Jurisdiction of (IRS Employer Identification No.)
Incorporation or Organization)
175 Beal Street
Hingham, Massachusetts 02043
(781) 749-7600
(Address, including zip code, and
telephone number, including area code, of
Registrant's principal executive offices)
The Talbots, Inc. Amended and Restated
1993 Executive Stock Based Incentive Plan
Edward L. Larsen
The Talbots, Inc.
175 Beal Street
Hingham, Massachusetts 02043
(781) 749-7600
(Name, address, including zip code, and
telephone number, including area code, of
agent for service)
Copies to:
Warren J. Casey, Esq.
Pitney, Hardin, Kipp & Szuch
200 Campus Drive
Florham Park, New Jersey 07932
(973) 966-6300
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CALCULATION OF REGISTRATION FEE
- ---------------------------------- -------------------- --------------------- -------------------- ------------------
Proposed Maximum Proposed Maximum
Title of Each Class of Amount to be Offering Price Per Aggregate Offering Amount of
Securities to be Registered Registered Unit(1) Price(1) Registration Fee
- ---------------------------------- -------------------- --------------------- -------------------- -------------------
<S> <C> <C> <C> <C>
Common Stock, par
value $0.01 per Share........... 3,310,000(2) 27.875 92,266,250.00 27,218.54
======================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee. Such
estimate has been computed in accordance with Rule 457(h) based upon the
maximum estimated offering price of the Common Stock of the Talbots, Inc.
on June 3, 1998.
(2) A total of 5,960,000 shares of common stock are to be registered under the
1993 Executive Stock Based Incentive Plan. Of the 5,960,000 shares to be
registered, 2,650,000 shares were registered on November 7, 1994 pursuant
to Registration Statement 33-86040. 3,310,000 additional shares are
subject to be registered pursuant to this Amendment.
Purpose of Amendment
This post-effective amendment No. 1 to Registration Statement on Form
S-8 is being filed for the purpose of registering the additional shares made
available under the plan as a result of the amendment to the 1993 Executive
Stock Based Incentive Plan (the "Amended Plan") that was approved by the
shareholders of The Talbots, Inc. on May 21, 1998. The Amended Plan, attached
hereto as Exhibit 10.47, increased the number of shares of Common Stock, par
value $0.01 per share, authorized under the plan from 2,650,000 shares to
5,960,000 shares.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form
S-8 will be sent or given to employees of The Talbots, Inc. (the "Registrant")
or its affiliates as specified by Rule 428(b)(1) under the Securities Act of
1933, as amended (the "Securities Act"). Such documents are not being filed with
the Securities and Exchange Commission (the "Commission") either as part of this
Registration Statement or as prospectuses or prospectus supplements, pursuant to
Rule 424 under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant with the Commission are
incorporated herein by reference:
1. The Registrant's Annual Report on Form 10-K for
Registrant's fiscal year ending January 31, 1998
filed with the Commission on May 1, 1998.
2. The Registrant's Registration Statement on Form S-1
(No. 33-69082), which Registration Statement became
effective November 18, 1993.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities and Exchange Act of 1934, as
amended (the "Exchange Act"), 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 a part hereof from the date
of filing of such documents. Any statement contained in a document incorporated
or deemed to be 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 which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such 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. The common stock, $0.01 par value per share, of the
Registrant is registered under Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Act permits the
Registrant to indemnify officers, directors or employees against expenses
(including attorney's fees), judgments, fines and amounts paid in settlement in
connection with legal proceedings "if [as to any officer, director or employee]
he acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the corporation, and, with respect to any
criminal act or proceeding, had no reasonable cause to believe his conduct was
unlawful," provided that with respect to actions by, or in the right of, the
corporation against, such individuals, indemnification is not permitted as to
any matter as to which such person "shall have been adjudged to be liable to the
corporation, unless, and only to the extent that, the Court of Chancery or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability, but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper." Individuals who are successful in the defense of such action
are entitled to indemnity for such expenses reasonably incurred in connection
therewith.
Section 6.4 of Article VI of the By-laws of the Registrant provides in
effect that the Registrant shall indemnify its directors, officers and employees
to the extent permitted by Section 145 of the General Corporation Law of the
State of Delaware.
A U.S. Purchase Agreement among Merrill Lynch & Co., Goldman, Sachs &
Co., Morgan Stanley & Co. Incorporated and the Registrant, and an International
Purchase Agreement among Merrill Lynch International Limited, Goldman Sachs
International Limited, Morgan Stanley International and the Registrant, each
dated November 18, 1993, provide for indemnification of the directors and
certain officers of the Registrant by certain underwriters against certain civil
liabilities, including liabilities under the Securities Act.
Employment agreements between the Registrant and Arnold B. Zetcher and
Mark Shulman provide for indemnification of Mr. Zetcher and Mr. Shulman as
officers and directors of the Registrant.
A policy of directors' and officers' liability insurance is maintained
by the Registrant which indemnifies directors and officers for losses as a
result of claims based upon certain acts or omissions as directors and officers
of the Registrant.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit Number Description of Document
*4.1 --Certificate of Incorporation, as amended, of the Registrant.
*4.2 --By-laws of the Registrant.
*4.3 --Form of Common Stock certificate of the Registrant.
5.1 --Undertaking of the Registrant.
5.2 --Opinion of Pitney, Hardin, Kipp & Szuch.
10.47 --Amended and Restated 1993 Executive Stock Based Incentive
Plan
23.1 --Consent of Deloitte & Touche LLP.
24 --Powers of Attorney (set forth on signature page of the
Registration Statement).
* Incorporated by reference to the Registrant's Registration Statement on
Form S-1 (Registration No. 33-69082).
Item 9. Undertakings.
1. The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement 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.
(b) That, for purposes 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.
(c) 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.
2. 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 that is incorporated by reference in
this 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.
3. 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>
POWER OF ATTORNEY
Each person whose signature to the Registration Statement appears below
hereby appoints Arnold B. Zetcher and Edward L. Larsen, and each individually,
as his attorney-in-fact to sign on his behalf individually and in the capacity
stated below and to file all subsequent amendments to the Registration
Statement, which amendments may make such changes and additions to this
Registration Statement as such attorney-in-fact may deem necessary or
appropriate.
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to believe that it
meets all the requirements for filing on Form S-8 and had duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereto
duly authorized, in the Town of Hingham, State of Massachusetts, on this 4th
day of June, 1998.
THE TALBOTS, INC.
EDWARD L. LARSEN
By:_________________________________
Edward L. Larsen
Senior Vice President, Finance,
Chief Financial Officer and Treasurer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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<S> <C> <C>
** President and Chief Executive June 4, 1998
- ----------------------------------------- Officer and Director
Arnold B. Zetcher
EDWARD L. LARSEN Senior Vice President, June 4, 1998
- ----------------------------------------- Finance, Chief Financial Officer
Edward L. Larsen and Treasurer (Principal Financial
and Accounting Officer)
** Chairman of the Board of June 4, 1998
- ----------------------------------------- Directors
Takuya Okada
** Director June 4, 1998
- -----------------------------------------
Eiji Akiyama
** Director June 4, 1998
- -----------------------------------------
Mashuru Isogai
** Director June 4, 1998
- -----------------------------------------
Elizabeth T. Kennan
** Director June 4, 1998
- -----------------------------------------
Motoya Okada
Director
- -----------------------------------------
Mark Shulman
** Director June 4, 1998
- -----------------------------------------
Mark H. Willes
</TABLE>
** Executed by Edward L. Larsen as attorney-in-fact pursuant to powers of
attorney contained in Registration Statement on Form S-8 No. 33-86040 filed
on November 7, 1994.
<PAGE>
INDEX TO EXHIBITS
Exhibit Number Description of Document
*4.1 --Certificate of Incorporation, as amended, of the Registrant.
*4.2 --By-laws of the Registrant.
*4.3 --Form of Common Stock certificate of the Registrant.
5.1 --Undertaking of the Registrant.
5.2 --Opinion of Pitney, Hardin, Kipp & Szuch.
10.47 --Amended and Restated 1993 Executive Stock Based Incentive
Plan
23.1 --Consent of Deloitte & Touche LLP.
24 --Powers of Attorney (set forth on signature page of the
Registration Statement).
* Incorporated by reference to the Registrant's Registration Statement on
Form S-1 (Registration No. 33-69082).
Exhibit 5.2
June 5, 1998
The Talbots, Inc.
175 Beal Street
Hingham, Massachusetts 02043
Ladies and Gentlemen:
We refer to the Amendment No. 1 to the Registration Statement
on Form S-8 (the "Registration Statement") by The Talbots, Inc. (the "Company")
relating to 5,960,000 shares of the Company's Common Stock, par value $.01 per
share (the "Securities") to be offered pursuant to the Company's 1993 Executive
Stock Based Incentive Plan (the "Plan").
We have examined originals, or copies certified or otherwise
identified to our satisfaction, of such corporate records, documents,
agreements, instruments and certificates of public officials of the State of
Delaware and of officers of the Company as we have deemed necessary or
appropriate in order to express the opinion hereinafter set forth.
Based upon the foregoing, we are of the opinion that, when the
Registration Statement has become effective under the Securities Act of 1933, as
amended (the "Act"), and the Securities have been duly issued as contemplated by
the Registration Statement and the Plan and for the consideration determined in
accordance with the terms of the Plan, the Securities will be validly issued,
fully paid and nonassessable.
The foregoing opinion is limited to the Federal laws of the
United States and the General Corporation Law of the State of Delaware, and we
are expressing no opinion as to the effect of the laws of any other
jurisdiction.
We hereby consent to the use of this opinion as an Exhibit to
the Registration Statement. In giving such consent, we do not thereby admit that
we come within the category of persons whose consent is required under Section 7
of the Act, or the Rules and Regulations of the Securities and Exchange
Commission thereunder.
Very truly yours,
PITNEY, HARDIN, KIPP & SZUCH
Exhibit 10.47
The Talbots, Inc.
Amended and Restated 1993 Executive Stock Based Incentive Plan
1. Purpose. The purpose of the Amended and Restated 1993
Executive Stock Based Incentive Plan (the "Plan") is to advance the interests of
The Talbots, Inc. (the "Company") and its shareholders by providing incentives
to certain key employees of the Company and its affiliates and to certain other
key individuals who perform services for these entities, including those who
contribute significantly to the strategic and long-term performance objectives
and growth of the Company and its affiliates.
2. Administration. The Plan shall be administered solely by
the Compensation Committee (the "Committee") of the Board of Directors (the
"Board") of the Company, as such Committee is from time to time constituted, or
any successor committee the Board may designate to administer the Plan; provided
that if at any time Rule 16b-3 or any successor rule ("Rule" 16b-311) under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), so permits
without adversely affecting the ability of the Plan to comply with the
conditions for exemption from Section 16 of the Exchange Act (or any successor
provision) provided by Rule 16b-3, the Committee may delegate the administration
of the Plan in whole or in part, on such terms and conditions, and to such
person or persons as it may determine in its discretion, as it relates to
persons not subject to Section 16 of the Exchange Act (or any successor
provision). The membership of the Committee or such successor committee shall be
constituted so as to comply at all times with the applicable requirements of
Rule 16b-3.
The Committee has all the powers vested in it by the terms of
the Plan set forth herein, such powers to include exclusive authority (except as
may be delegated as permitted herein) to select the key employees and other key
individuals to be granted awards under the Plan ("Awards"), to determine the
type, size and terms of the Award to be made to each individual selected, to
modify the terms of any Award that has been granted, to determine the time when
Awards will be granted, to establish performance objectives, to make any
adjustments necessary or desirable as a result of the granting of Awards to
eligible individuals located outside the United States and to prescribe the form
of the instruments embodying Awards made under the Plan. The Committee is
authorized to interpret the Plan and the Awards granted under the Plan, to
establish, amend and rescind any rules and regulations relating to the Plan
(including, but not limited to, vesting requirements, if any), and to make any
other determinations which it deems necessary or desirable for the
administration of the Plan. The Committee (or its delegate as permitted herein)
may correct any defect or supply any omission or reconcile any inconsistency in
the Plan or in any Award in the manner and to the extent the Committee deems
necessary or desirable to carry it into effect. Any decision of the Committee
(or its delegate as permitted herein) in the interpretation and administration
of the Plan, as described herein, shall be within its sole and absolute
discretion and shall be final, conclusive and binding on all parties concerned.
The Committee may act only by a majority of its members in office, except that
the members thereof may authorize any one or more of their members or any
officer of the Company to execute and deliver documents or to take any other
ministerial action on behalf of the Committee with respect to Awards made or to
be made to Plan participants. No member of the Committee and no officer of the
Company shall be liable for anything done or omitted to be done by him, by any
other member of the Committee or by any officer of the Company in connection
with the performance of duties under the Plan, except for his own willful
misconduct or as expressly provided by statute. Determinations to be made by the
Committee under the Plan may be made by its delegates.
3. Participation. (a) Affiliates. If an Affiliate (as
hereinafter defined) of the Company wishes to participate in the Plan and its
participation shall have been approved by the Board upon the recommendation of
the Committee, the board of directors or other governing body of the Affiliate
shall adopt a resolution in form and substance satisfactory to the Committee
authorizing participation by the Affiliate in the Plan with respect to its key
employees or other key individuals performing services for it. As used herein,
the term "Affiliate" means any entity in which the Company has a substantial
direct or indirect equity interest, as determined by the Committee in its
discretion.
An Affiliate participating in the Plan may cease to be a
participating company at any time by action of the Board or by action of the
board of directors or other governing body of such Affiliate, which latter
action shall be effective not earlier than the date of delivery to the Secretary
of the Company of a certified copy of a resolution of the Affiliate's board of
directors or other governing body taking such action. If the participation in
the Plan of an Affiliate shall terminate, such termination shall not relieve it
of any obligations therefor incurred by it under the Plan, except as may be
approved by the Committee.
(b) Participants. Consistent with the purpose of the
Plan, the Committee shall have exclusive power (except as may be delegated as
permitted herein) to select the key employees and other key individuals
performing the services for the Company and its Affiliates who may participate
in the Plan and be granted Awards under the Plan. Eligible individuals may be
selected individually or by groups or categories, as determined by the Committee
in its discretion. No non-employee director of the Company or any of its
Affiliates shall be eligible to receive an Award under the Plan.
4. Awards under the Plan. (a) Types of Awards. Awards under
the Plan may include, but need not be limited to, one or more of the following
types, either alone or in any combination thereof: (i) "Stock Options," (ii)
"Stock Appreciation Rights," (iii) "Restricted Stock," (iv) "Performance Grants"
and (v) any other type of Award deemed by the Committee in its discretion to be
consistent with the purposes of the Plan (including, but not limited to, Awards
of or options or similar rights granted with respect to unbundled stock units or
components thereof, and Awards to be made to participants who are foreign
nationals or are employed or performing services outside the United States.)
Stock Options, which include "Nonqualified Stock Options" and "Incentive Stock
Options" or combinations thereof, are rights to purchase common shares of the
Company having a par value of $0.01 per share and stock of any other class into
which such shares may thereafter be changed (the "Common Shares"). Nonqualified
Stock Options and Incentive Stock options are subject to the terms, conditions
and restrictions specified in Paragraph 5. Stock Appreciation Rights are rights
to receive (without payment to the Company) cash, Common Shares, other Company
securities (which may include, but need not be limited to, unbundled stock units
or components thereof, debentures, preferred stock, warrants, securities
convertible into Common Shares or other property, and other types of securities
including, but not limited to, those of the Company or an Affiliate, or any
combination thereof ("Other Company Securities")) or property, or other forms of
payment, or any combination thereof, as determined by the Committee, based on
the increase in the value of the number of Common Shares specified in the Stock
Appreciation Right. Stock Appreciation Rights are subject to the terms,
conditions and restrictions specified in Paragraph 6. Shares of Restricted Stock
are Common Shares which are issued subject to certain restrictions pursuant to
Paragraph 7. Performance Grants are contingent awards subject to the terms,
conditions and restrictions described in Paragraph 8, pursuant to which the
participant may become entitled to receive cash, Common Shares, Other Company
Securities or property, or other forms of payment, or any combination thereof,
as determined by the Committee.
(b) Maximum Number of Shares that Shall be Issued.
There shall be issued under the Plan (as Restricted Stock, in payment of
Performance Grants, pursuant to the exercise of Stock Options or Stock
Appreciation Rights, or in payment of or pursuant to the exercise of such other
Awards as the Committee, in its discretion, may determine) an aggregate of not
more than 5,960,000 Common Shares and Other Company Securities, subject to
adjustment as provided in Paragraph 15 hereof. For purposes of this Paragraph
4(b), Other Company Securities shall be counted against the maximum number of
Common Shares as required by Rule 16b-3. Common Shares and, to the extent they
constitute equity securities, Other Company Securities issued pursuant to the
Plan may be either authorized but unissued shares, treasury shares, reacquired
shares or any combination thereof. Unless prohibited by Rule 16b-3, any Common
Shares or Other Company Securities subject to repurchase or forfeiture rights
that are reacquired by the Company pursuant to such rights or any Common Shares
or Other Company Securities previously counted against the maximum number of
shares set forth above in respect of any Award that is canceled, terminated or
expires unexercised in whole or in part will be available for issuance under new
Awards. In addition, to the extent prohibited by Rule 16b-3, any Common Shares
or Other Company Securities withheld by or tendered to the Company in connection
with the payment of the exercise price of an Award or the satisfaction of the
tax withholding obligations upon the exercise or vesting of an Award will be
available for issuance under new Awards.
(c) Rights with respect to Common Shares and Other
Securities.
(i) Unless otherwise determined by the Committee in
its discretion, a participant to whom an Award of Restricted
Stock has been made (and any person succeeding to such a
participant's rights pursuant to the Plan) shall have, after
issuance of a certificate for the number of Common Shares
awarded and prior to the expiration of the Restricted Period
or the earlier repurchase of such Common Shares as herein
provided, ownership of such Common Shares, including the right
to vote the same and to receive dividends or other
distributions made or paid with respect to such Common Shares
(provided that such Common Shares, and any new, additional or
different shares, or Other Company Securities or property, or
other forms of consideration which the participant may be
entitled to receive with respect to such Common Shares as a
result of a stock split, stock dividend or any other change in
the corporation or capital structure of the Company, shall be
subject to the restrictions hereinafter described as
determined by the Committee in its discretion), subject,
however, to the options, restrictions and limitations imposed
thereon pursuant to the Plan. Notwithstanding the foregoing, a
participant with whom an Award agreement is made to issue
Common Shares in the future, shall have no rights as a
shareholder with respect to Common Shares related to such
agreement until issuance of a certificate to him.
(ii) Unless otherwise determined by the Committee in
its discretion, a participant to whom a grant of Stock
options, Stock Appreciation Rights, Performance Grants or any
other Award is made (and any person succeeding to such a
participant's rights pursuant to the Plan) shall have no
rights as a shareholder with respect to any Common Shares or
as a holder with respect to other securities, if any, issuable
pursuant to any such Award until the date of the issuance of a
stock certificate to him for such Common Shares or other
instrument of ownership, if any. Except as provided in
Paragraph 15, no adjustment shall be made for dividends,
distributions or other rights (whether ordinary or
extraordinary, and whether in cash, securities, other property
or other forms of consideration, or any combination thereof)
for which the record date is prior to the date such stock
certificate or other instrument of ownership, if any, is
issued.
5. Stock Options. The Committee may grant Stock Options either
alone, or in conjunction with Stock Appreciation Rights, Performance Grants or
other Awards, either at the time of grant or by amendment thereafter; provided
that an Incentive Stock Option may be granted only to an eligible employee of
the Company or its parent or subsidiary corporation. Each Stock Option (referred
to herein as an "Option") granted under the Plan shall be evidenced by an
instrument in such form as the Committee shall prescribe from time to time in
accordance with the Plan and shall comply with the following terms and
conditions, and with such other terms and conditions, including, but not limited
to, restrictions upon the Option or the Common Shares issuable upon exercise
thereof, as the Committee, in its discretion, shall establish:
(a) The option price may be equal to or greater than the fair
market value of the Common Shares subject to such option at the time the Option
is granted, as determined by the Committee; provided, however, that in the case
of an Incentive Stock Option granted to such an employee who owns stock
representing more than ten percent of the voting power of all classes of stock
of the Company or of its parent or subsidiary (a "Ten Percent Employee"), such
option price shall not be less than 110% of such fair market value at the time
the Option is granted; but in no event will such option price be less than the
par value of such Common Shares.
(b) The Committee shall determine the number of Common Shares
to be subject to each Option. The number of Common Shares subject to an
outstanding Option may be reduced on a share-for-share or other appropriate
basis, as determined by the Committee, to the extent that Common Shares under
such Option are used to calculate the cash, Common Shares, Other Company
Securities or property, or other forms of payment, or any combination thereof,
received pursuant to exercise of a Stock Appreciation Right attached to such
option, or to the extent that any other Award granted in conjunction with such
option is paid.
(c) The Option may not be sold, assigned, transferred,
pledged, hypothecated or otherwise disposed of, except by will or the laws of
descent and distribution, and shall be exercisable during the grantee's lifetime
only by him. Unless the Committee determines otherwise, the Option shall not be
exercisable for at least twelve months after the date of grant, unless the
grantee ceases employment or performance of service before the expiration of
such twelve-month period by reason of his disability as defined in Paragraph 12
or his death.
(d) The Option shall not be exercisable:
(i) in the case of any Incentive Stock Option granted
to a Ten Percent Employee, after the expiration of five years
from the date it is granted, and, in the case of any other
option, after the expiration of ten years from the date it is
granted. Any Option may be exercised during such period only
at such time or times and in such installments as the
Committee may establish;
(ii) unless payment in full is made for the shares
being acquired thereunder at the time of exercise; such
payment shall be made in such form (including, but not limited
to, cash, Common Shares, or any combination thereof) as the
Committee may determine in its discretion; and
(iii) unless the person exercising the Option has
been, at all times during the period beginning with the date
of the grant of the option and ending no later than the date
which is three months prior to the date of such exercise,
employed by or otherwise performing services for the Company
or an Affiliate, or a corporation, or a parent or subsidiary
of a corporation, substituting or assuming the option in a
transaction to which Section 425(a) of the Internal Revenue
Code of 1986, as amended, or any successor statutory provision
thereto (the "Code"), is applicable, except that
(A) in the case of any Nonqualified Stock Option, if
such person shall cease to be employed by or otherwise
performing services for the Company or an Affiliate solely by
reason of a period of Related Employment as defined in
Paragraph 14, he may, during such period of Related
Employment, exercise the Nonqualified Stock Option as if he
continued such employment or performance of service; or
(B) if such person shall cease such employment or
performance of services by reason of his disability as defined
in Paragraph 12 or early, normal or deferred retirement under
a qualified retirement program of the Company or an Affiliate
(or such other plan or arrangement as may be approved by the
Committee, in its discretion, for this purpose) while holding
an option which has not expired and has not been fully
exercised, such person, at any time within three years (or
such other period determined by the Committee) after the date
he ceased such employment or performance of services (but in
no event after the option has expired), may exercise the
Option with respect to any shares as to which he could have
exercised the Option on the date he ceased such employment or
performance of services, or with respect to such greater
number of shares as determined by the Committee; or
(C) if any person to whom an Option has been granted
shall die holding an option which has not expired and has not
been fully exercised, his executors, administrators, heirs or
distributees, as the case may be, may, at any time within one
year (or such other period determined by the Committee) after
the date of death (but in no event after the option has
expired), exercise the option with respect to any shares as to
which the decedent could have exercised the option at the time
of his death, or with respect to such greater number of shares
as determined by the Committee.
(D) in the case of any Nonqualified Stock Option, if
such person shall cease such employment or performance of
services by reason of his "termination without cause" (as such
term is defined in the employment agreement then in effect
between the Company and such person, or if there exists no
such employment agreement or no such defined term in any such
employment agreement, then as determined by the Committee in
its discretion) by the Company or an Affiliate while holding
an Option which has not expired and has not been fully
exercised, such person, at any time within three years (or
such other shorter period as may be determined by the
Committee in its discretion or as may be expressly set forth
in any such employment agreement) after the date he ceased
such employment or performance of services (but in no event
after the Option has expired), may exercise the Option with
respect to any share as to which he could have exercised the
Option on the date he ceased such employment or performance of
services, or with respect to such greater number of shares as
determined by the Committee.
(e) In the case of an Incentive Stock Option, the amount of
aggregate fair market value of Common Shares (determined at the time of grant of
the option pursuant to subparagraph 5 (a) of the Plan) with respect to which
incentive stock options are exercisable for the first time by an employee during
any calendar year (under all such plans of his employer corporation and its
parent and subsidiary corporations) shall not exceed an amount to be determined
by the Committee.
(f) It is the intent of the Company that the Nonqualified
Stock Options granted under the Plan not be classified as Incentive Stock
Options, that the Incentive Stock Options granted under the Plan be consistent
with and contain or be deemed to contain all provisions required under Section
422 and the other appropriate provisions of the Code and any implementing
regulations (and any successor provisions thereof), and that any ambiguities in
construction shall be interpreted in order to effectuate such intent.
6. Stock Appreciation Rights. The Committee may grant Stock
Appreciation Rights either alone, or in conjunction with Stock Options,
Performance Grants or other Awards, either at the time of grant or by amendment
thereafter. Each Award of Stock Appreciation Rights granted under the Plan shall
be evidenced by an instrument in such form as the Committee shall prescribe from
time to time in accordance with the Plan and shall comply with the following
terms and conditions, and with such other terms and conditions, including, but
not limited to, restrictions upon the Award of Stock Appreciation Rights or the
Common Shares issuable upon exercise thereof, as the Committee, in its
discretion, shall establish:
(a) The Committee shall determine the number of Common Shares
to be subject to each Award of Stock Appreciation Rights. The number of Common
Shares subject to an outstanding Award of Stock Appreciation Rights may be
reduced on a share for-share or other appropriate basis, as determined by the
Committee, to the extent that Common Shares under such Award of Stock
Appreciation Rights are used to calculate the cash, Common Shares, Other Company
Securities or property, or other forms of payment, or any combination thereof
received pursuant to exercise of an option attached to such Award of Stock
Appreciation Rights, or to the extent that any other Award granted in
conjunction with such Award of Stock Appreciation Rights is paid.
(b) The Award of Stock Appreciation Rights may not be sold,
assigned, transferred, pledged, hypothecated or otherwise disposed of, except by
will or the laws of descent and distribution, and shall be exercisable during
the grantees' lifetime only by him. Unless the Committee determines otherwise,
the Award of Stock Appreciation Rights shall not be exercisable for at least
twelve months after the date of grant, unless the grantee ceases employment or
performance of services before the expiration of such twelve-month period by
reason of his disability as defined in Paragraph 12 or his death.
(c) The Award of Stock Appreciation Rights shall not be
exercisable:
(i) in the case of any Award of Stock Appreciation
Rights that are attached to an Incentive Stock option granted
to a Ten Percent Employee, after the expiration of five years
from the date it is granted, and, in the case of any other
Award of Stock Appreciation Rights, after the expiration of
ten years from the date it is granted. Any Award of Stock
Appreciation Rights may be exercised during such period only
at such time or times and in such installments as the
Committee may establish;
(ii) unless the option or other Award to which the
Award of Stock Appreciation Rights is attached is at the time
exercisable; and
(iii) unless the person exercising the Award of Stock
Appreciation Rights has been at all times during the period
beginning with the date of the grant thereof and ending no
later than the date which is three months prior to the date of
such exercise, employed by or otherwise performing services
for the Company or an Affiliate, except that
(A) in the case of any Award of Stock
Appreciation Rights (other than those attached to an Incentive
Stock Option), if such person shall cease to be employed by or
otherwise performing services for the Company or an Affiliate
solely by reason of a period of Related Employment as defined
in Paragraph 14, he may, during such period of Related
Employment, exercise the Award of Stock Appreciation Rights as
if he continued such employment or performance of services; or
(B) if such person shall cease such
employment or performance of services by reason of his
disability as defined in Paragraph 12 or early, normal or
deferred retirement under a qualified retirement program of
the Company or an Affiliate (or such other plan or arrangement
as may be approved by the Committee, in its discretion, for
this purpose) while holding an Award of Stock Appreciation
Rights which has not expired and has not been fully exercised,
such person may, at any time within three years (or such other
period determined by the Committee) after the date he ceased
such employment or performance of services (but in no event
after the Award of Stock Appreciation Rights has expired),
exercise the Award of Stock Appreciation Rights with respect
to any shares as to which he could have exercised the Award of
Stock Appreciation Rights on the date he ceased such
employment or performance of services, or with respect to such
greater number of shares as determined by the Committee; or
(C) if any person to whom an Award of Stock
Appreciation Rights has been granted shall die holding an
Award of Stock Appreciation Rights which has not expired and
has not been fully exercised, his executors, administrators,
heirs or distributees, as the case may be, may, at any time
within one year (or such other period determined by the
Committee) after the date of death (but in no event after the
Award of Stock Appreciation Rights has expired), exercise the
Award of Stock Appreciation Rights with respect to any shares
as to which the decedent could have exercised the Award of
Stock Appreciation Rights at the time of his death, or with
respect to such greater number of shares as determined by the
Committee.
(D) in the case of any Award of Stock
Appreciation Rights (other than those attached to an Incentive
Stock Option), if such person shall cease such employment or
performance of services by reason of his "termination without
cause" (as such term is defined in the employment agreement
then in effect between the Company and such person, or if
there exists no such employment agreement or no such defined
term in any such employment agreement, then as determined by
the Committee in its discretion) by the Company or an
Affiliate while holding an Award of Stock Appreciation Rights
which has not expired and has not been fully exercised, such
person, at any time within three years (or such other shorter
period as may be determined by the Committee in its discretion
or as may be expressly set forth in any such employment
agreement) after the date he ceased such employment or
performance of services (but in no event after the Award of
Stock Appreciation Rights has expired), may exercise the Award
of Stock Appreciation Rights with respect to any share as to
which he could have exercised the Award of Stock Appreciation
Rights on the date he ceased such employment or performance of
services, or with respect to such greater number of shares as
determined by the Committee.
(d) An Award of Stock Appreciation Rights shall entitle the
holder (or any person entitled to act under the provisions of subparagraph 6 (c)
(iii) (C) hereof) to exercise such Award or to surrender unexercised the Option
(or other Award) to which the Stock Appreciation Right is attached (or any
portion of such option or other Award) to the Company and to receive from the
Company in exchange therefor, without payment to the Company, that number of
Common Shares that have an aggregate, value equal to (or, in the discretion of
the Committee, less than) the excess of the fair market value of one share, at
the time of such exercise, over the exercise price (or option price, as the case
may be) per share, times the number of shares subject to the Award or the Option
(or other Award), or portion thereof, which is so exercised or surrendered, as
the case may be. The Committee shall be entitled in its discretion to elect to
settle the obligation arising out of the exercise of a Stock Appreciation Right
by the payment of cash or Other Company Securities or property, or other forms
of payment, or any combination thereof, as determined by the Committee, equal to
the aggregate value of the Common Shares it would otherwise be obligated to
deliver. Any such election by the Committee shall be made as soon as practicable
after the receipt by the Committee of written notice of the exercise of the
Stock Appreciation Right. The value of a Common Share, Other Company Securities
or property, or other forms of payment determined by the Committee for this
purpose shall be the fair market value thereof on the last business day next
preceding the date of the election to exercise the Stock Appreciation Right,
unless the Committee, in its discretion, determines otherwise.
(e) A Stock Appreciation Right may provide that it shall be
deemed to have been exercised at the close of business on the business day
preceding the expiration date of the Stock Appreciation Right or of the released
option (or other Award), or such other date as specified by the Committee, if at
such time such Stock Appreciation Right has a positive value. Such deemed
exercise shall be settled or paid in the same manner as a regular exercise
thereof as provided in subparagraph 6 (d) hereof.
(f) No fractional shares may be delivered under this Paragraph
6, but in lieu thereof a cash or other adjustment shall be made as determined by
the Committee in its discretion.
7. Restricted Stock. Each Award of Restricted Stock under the
Plan shall be evidenced by an instrument in such form as the committee shall
prescribe from time to time in accordance with the Plan and shall comply with
the following terms and conditions, and with such other terms and conditions as
the Committee, in its discretion, shall establish:
(a) The Committee shall determine the number of Common Shares
to be issued to a participant pursuant to the Award, and the extent, if any, to
which they shall be issued in exchange for cash, other consideration, or both.
(b) Common Shares issued to a participant in accordance with
the Award may not be sold, assigned, transferred, pledged, hypothecated or
otherwise disposed of, except by will or the laws of descent and distribution,
or as otherwise determined by the Committee, for such period as the Committee
shall determine, from the date on which the Award is granted (the "Restricted
Period"). The Company will have the option to repurchase the shares subject to
the Award at such price as the Committee shall have fixed, in its discretion,
when the Award was made or amended thereafter, which option will be exercisable
(i) if the participant's continuous employment or performance of services for
the Company and its Affiliates shall terminate for any reason, except solely by
reason of a period of Related Employment as defined in Paragraph 14, or except
as otherwise provided in subparagraph 7(c), prior to the expiration of the
Restricted Period, (ii) if, on or prior to the expiration of the Restricted
Period or the earlier lapse of such repurchase option, the participant has not
paid to the Company an amount equal to any federal, state, local or foreign
income or other taxes which the Company determines is required to be withheld in
respect of such shares, or (iii) under such other circumstances as determined by
the Committee in its discretion. Such repurchase option shall be exercisable on
such terms, in such manner and during such period as shall be determined by the
Committee when the Award is made or as amended thereafter. Each certificate for
Common Shares issued pursuant to a Restricted Stock Award shall bear an
appropriate legend referring to the foregoing repurchase option and other
restrictions and to the fact that the shares are partly paid, shall be deposited
by the Award Holder with the Company, together with a stock power endorsed in
blank, or shall be evidenced in such other manner permitted by applicable law as
determined by the Committee in its discretion. Any attempt to dispose of any
such Common Shares in contravention of the foregoing repurchase option shall be
null and void and without effect. If Common Shares issued pursuant to a
Restricted Stock Award shall be repurchased pursuant to the repurchase option
described above, the participant, or in the event of his death, his personal
representative, shall forthwith deliver to the Secretary of the Company the
certificates for the Common Shares awarded to the participant, accompanied by
such instrument of transfer, if any, as may reasonably be required by the
Secretary of the Company. If the repurchase option described above is not
exercised by the Company, such option and the restrictions imposed pursuant to
the first sentence of this subparagraph 7(b) shall terminate and be of no
further force and effect.
(c) If a participant who has been in continuous employment or
performance of services for the Company or an Affiliate since the date on which
a Restricted Stock Award was granted to him shall, while in such employment or
performance of services, die, or terminate such employment or performance of
services by reason of disability as defined in Paragraph 12 or by reason of
early, normal or deferred retirement under a qualified retirement program of the
Company or an Affiliate (or such other plan or arrangement as may be approved by
the Committee in its discretion, for this purpose) and any of such events shall
occur after the date on which the Award was granted to him and prior to the end
of the Restricted Period of such Award, the Committee may determine to cancel
the repurchase option (and any and all other restrictions) on any or all of the
Common Shares subject to such Award; and the repurchase option shall become
exercisable at such time as to the remaining shares, if any.
8. Performance Grants. The Award of a Performance Grant
("Performance Grant") to a participant will entitle him to receive a specified
amount determined by the Committee ("Actual Value"), if the terms and conditions
specified herein and in the Awards are satisfied. Each Award of a Performance
Grant shall be subject to the following terms and conditions, and to such other
terms and conditions, including but not limited to, restrictions upon any cash,
Common Shares, Other Company Securities or property, or other forms of payment,
or any combination thereof, issued in respect of the Performance Grant, as the
Committee, in its discretion, shall establish, and shall be embodied in an
instrument in such form and substance as is determined by the Committee.
(a) The Committee shall determine the value or range of values
of a Performance Grant to be awarded to each participant selected for an Award
and whether or not such a Performance Grant is granted in conjunction with an
Award of Options, Stock Appreciation Rights, Restricted Stock or other Award, or
any combination thereof, under the Plan (which may include, but need not be
limited to, deferred Awards) concurrently or subsequently granted to the
participant (the "Associated Award"). As determined by the Committee, the
maximum value of each Performance Grant (the "Maximum Value") shall be: (i) an
amount fixed by the Committee at the time the Award is made or amended
thereafter, (ii) an amount which varies from time to time based in whole or in
part on the then current value of a Common Share, Other Company Securities or
property, or any combination thereof, or (iii) an amount that is determinable
from criteria specified by the Committee. Performance Grants may be issued in
different classes or series having different names, terms and conditions. In the
case of a Performance Grant awarded in conjunction with an Associated Award, the
Performance Grant may be reduced on an appropriate basis to the extent that the
Associated Award has been exercised, paid to or otherwise received by the
participant, as determined by the Committee.
(b) The award period ("Award Period") in respect of any
Performance Grant shall be a period determined by the Committee. At the time
each Award is made, the Committee shall establish performance objectives to be
attained with the Award Period as the means of determining the Actual Value of
such a Performance Grant. The performance objectives shall be based on such
measure or measures of performance, which may include, but need not be limited
to, the performance of the participant, the Company, one or more of its
subsidiaries or one or more of their divisions or units, or any combination of
the foregoing, as the Committee shall determine, and may be applied on an
absolute basis or be relative to industry or other indices, or any combination
thereof. The Actual Value of a Performance Grant shall be equal to its Maximum
value only if the performance objectives are attained in full, but the Committee
shall specify the manner in which the Actual Value of Performance Grants shall
be determined if the performance objectives are met in part. Such performance
measures, the Actual Value or the Maximum Value, or any combination thereof, may
be adjusted in any manner by the Committee in its discretion at any time and
from time to time during or as soon as practicable after the Award Period, if it
determines that such performance measures, the Actual Value or the Maximum
Value, or any combination thereof, are not appropriate under the circumstances.
(c) The rights of a participant in Performance Grants awarded
to him shall be provisional and may be canceled or paid in whole or in part, all
as determined by the Committee, if the participant's continuous employment or
performance of services for the Company and its Affiliates shall terminate for
any reason prior to the end of the Award Period, except solely by reason of a
period of Related Employment as defined in Paragraph 14.
(d) The Committee shall determine whether the conditions of
subparagraph 8(b) or 8(c) hereof have been met and, if so, shall ascertain the
Actual Value of the Performance Grants. If the Performance Grants have no Actual
Value, the Award and such Performance Grants shall be deemed to have been
canceled and the Associated Award, if any, may be canceled or permitted to
continue in effect in accordance with its terms, if the Performance Grants have
an Actual Value and:
(i) were not awarded in conjunction with an
Associated Award, the Committee shall cause an amount equal to
the Actual Value of the Performance Grants earned by the
participant to be paid to him or his beneficiary as provided
below; or
(ii) were awarded in conjunction with an Associated
Award, the Committee shall determine, in accordance with
criteria specified by the Committee (A) to cancel the
Performance Grants, in which event no amount in respect
thereof shall be paid to the participant or his beneficiary,
and the Associated Award may be permitted to continue in
effect in accordance with its terms, (B) to pay the Actual
Value of the Performance Grants to the participant or his
beneficiary as provided below, in which event the Associated
Award may be canceled or (C) to pay to the participant or his
beneficiary as provided below, the Actual Value of only a
portion of the Performance Grants, in which event all or a
portion of the Associated Award may be permitted to continue
in effect in accordance with its terms or be canceled, as
determined by the Committee.
Such determinations by the Committee shall be made as promptly as practicable
following the end of the Award Period or upon the earlier termination of
employment or performance of services, or at such other time or times as the
Committee shall determine, and shall be made pursuant to criteria specified by
the Committee.
Payment of any amount in respect of the Performance Grants
which the Committee determines to pay as provided above shall be made by the
Company as promptly as practicable after the end of the Award Period or at such
other time or times as the Committee shall determine, and may be made in cash,
Common Shares, Other Company Securities or property, or other forms of payment,
or any combination thereof or in such other manner, as determined by the
Committee in its discretion. Notwithstanding anything in this Paragraph 8 to the
contrary, the Committee may, in its discretion, determine and pay out the Actual
Value of the Performance Grants at any time during the Award Period.
9. Deferral of Compensation. The Committee shall determine
whether or not an Award shall be made in conjunction with deferral of the
participant's salary, bonus or other compensation, or any combination thereof,
and whether or not such deferred amounts may be:
(i) forfeited to the Company or to other
participants, or any combination thereof, under certain
circumstances (which may include, but need not be limited to,
certain types of termination of employment or performance of
services for the Company and its Affiliates),
(ii) subject to increase or decrease in value based
upon the attainment of or failure to attain, respectively,
certain performance measures and/or
(iii) credited with income equivalents (which may
include, but need not be limited to, interest, dividends or
other rates of return) until the date or dates of payment of
the Award, if any.
10. Deferred Payment of Awards. The Committee may specify that
the payment of all or any portion of cash, Common Shares, Other Company
Securities or property, or any other form of payment, or any combination
thereof, under an Award shall be deferred until a later date. Deferrals shall be
for such periods or until the occurrence of such events, and upon such terms, as
the Committee shall determine in its discretion. Deferred payments of Awards may
be made by undertaking to make payment in the future based upon the performance
of certain investment equivalents (which may include, but need not be limited
to, government securities, Common Shares, other securities, property or
consideration, or any combination thereof), together with such additional
amounts of income equivalents (which may be compounded and may include, but need
not be limited to, interest, dividends or other rates of return, or any
combination thereof) as may accrue thereon until the date or dates of payment,
such investment equivalents and such additional amounts of income equivalents to
be determined by the Committee in its discretion.
11. Amendment of Awards Under the Plan. The terms of any
outstanding Award under the Plan may be amended from time to time by the
Committee in its discretion in any manner that it deems appropriate (including
but not limited to, acceleration of the date of exercise of any Award and/or
payments thereunder); provided that no such amendment shall adversely affect in
a material manner any right of a participant under the Award without his written
consent unless the Committee determines in its discretion that there have
occurred or are about to occur significant changes in the participant's
position, duties or responsibilities, or significant changes in economic,
legislative, regulatory, tax, accounting or cost/benefit conditions which are
determined by the Committee in its discretion to have or to be expected to have
a substantial effect on the performance of the company, or any subsidiary,
affiliate, division or department thereof, on the Plan or on any Award under the
Plan.
12. Disability. For the purposes of this Plan, a participant
shall be deemed to have terminated his employment or performance of services for
the Company and its affiliates by reason of disability, if the Committee shall
determine that the physical or mental condition of the participant by reason of
which such employment or performance of services terminated was such at that
time as would entitle him to payment of monthly disability benefits under the
Long Term Disability Benefit Plan in effect as of the date of adoption of this
Plan, or, if the participant is not eligible for both benefits under such plan,
under any similar disability plan of the Company or an Affiliate in which he is
a participant. If the participant is not eligible for benefits under any
disability plan of the Company or an Affiliate in which he is a participant, he
shall be deemed to have terminated such employment or performance of services by
reason of disability if the Committee shall determine that his physical or
mental condition would entitle him to benefits under the Company's Long Term
Disability Benefit Plan if he were eligible therefor.
13. Termination of a Participant. For all purposes under the
Plan, the Committee shall determine whether a participant has terminated
employment by or the performance of services for the Company and its Affiliates;
provided, however, that transfers between the Company and an Affiliate or
between Affiliates, and approved leaves of absence shall not be deemed such a
termination.
14. Related Employment. For the purposes of this Plan, Related
Employment shall mean the employment or performance of services by an individual
for an employer that is neither the Company nor an Affiliate, provided that (i)
such employment or performance of services is undertaken by the individual at
the request of the Company or an Affiliate, (ii) immediately prior to an
undertaking of such employment or performance of services, the individual was
employed by or performing services for the Company or an Affiliate or was
engaged in Related Employment as herein defined and (iii) such employment or
performance of services is in the best interests of the Company and is
recognized by the Committee, in its discretion, as Related Employment for
purposes of this Paragraph 14. The death or disability of an individual during a
period of Related Employment as herein defined shall be treated, for purposes of
this Plan as if the death or onset of disability has occurred while the
individual was employed by or performing services for the Company or an
Affiliate.
15. Dilution and Other Adjustments; Change in Control.
(a) In the event of any change in the outstanding Common
Shares of the Company by reason of any stock split, stock dividend, split-up,
split-off, spin-off, recapitalization, merger, consolidation, rights offering,
reorganization, combination or exchange of shares, a sale by the Company of all
or part of its assets, any distribution to shareholders other than a normal cash
dividend, or other extraordinary or unusual event, if the Committee shall
determine, in its discretion, that such change equitably requires the adjustment
in the terms of any Award or the number of Common Shares available for Awards,
such adjustment may be made by the Committee and shall be final, conclusive and
binding for all purposes of the Plan.
(b) With respect to Restricted Stock Awards, restrictions on
said Restricted Stock Awards shall lapse upon a Change in Control Event. With
respect to Stock Options and Stock Appreciation Rights, said Stock Options and
Stock Appreciation Rights shall become immediately exercisable and fully vested
upon a Change in Control Event. With respect to Performance Grants, upon a
Change in Control Event, payment shall be made with respect to a Performance
Grant based on the assumption that the performance achievement specified in the
Award would have been attained by the end of the performance cycle. With respect
to all other Awards, the effect of a Change in Control Event thereon shall be as
determined from time to time by the Committee. For purposes of this Plan, a
"Change in Control Event" shall mean: (i) the acquisition (including as a result
of a merger) by any "person" (as such term is used in sections 3(a)(9), 13(d)
and 14(d) of the Exchange Act, or persons "acting in concert" (which for
purposes of this Plan shall include two or more persons voting together on a
consistent basis pursuant to an agreement or understanding between them to act
in concert and/or as a "group" within the meaning of Sections 13 (d) (3) and 14
(d) (2) of the Exchange Act), other than the Company or any of its subsidiaries,
or JUSCO (U.S.A.), Inc. or any of its subsidiaries or "affiliates" (as such term
is defined in Rule 12b-2 under the Exchange Act) (collectively, an "Acquiring
Person"), of beneficial ownership (within the meaning of Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company representing
more than 25 percent of the combined voting power of the then outstanding
securities of the Company entitled to then vote generally in the election of
directors of the Company, and no other stockholder is the beneficial owner
(within the meaning of Rule 13d-3 under the Exchange Act), directly or
indirectly, of a percentage of such securities higher than that held by the
Acquiring Person; or (ii) individuals, who, as of 1993, constitute the Board
(the "Incumbent Board") cease for any reason to constitute at least a majority
of the Board; provided that any individual becoming a director subsequent to
November 18, 1993, whose election, or nomination for election by the Company's
stockholders, was approved by a vote of at least two-thirds of the directors
then comprising the Incumbent Board shall be considered as though such
individual were a member of the incumbent Board, but excluding, as a member of
the Incumbent Board, any such individual whose initial assumption of office is
in connection with an actual or threatened election contest relating to the
election of the directors of the Company (as such terms are used in Rule 14a-11
of Regulation 14A under the Exchange Act) and further excluding any individual
who is an "affiliate", "associate" (as such terms are defined in Rule 12b-2
under the Exchange Act) or designee of an Acquiring Person having or proposing
to acquire beneficial ownership (within the meaning of Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company representing
more than 10 percent of the combined voting power of the then outstanding
securities of the Company entitled to then vote generally in the election of
directors of the Company.
16. Designation of Beneficiary by Participant. A participant
may name a beneficiary to receive any payment in which he may be entitled in
respect of any Award under the Plan in the event of his death, on a written form
to be provided by and filed with the Committee, and in a manner determined by
the Committee in its discretion. The Committee reserves the right to review and
approve beneficiary designations. A participant may change his beneficiary from
time to time in the same manner, unless such participant has made an irrevocable
designation. Any designation of beneficiary under the Plan (to the extent it is
valid and enforceable under the applicable law) shall be controlling over any
other disposition, testamentary or otherwise, as determined by the Committee in
its discretion. If no designated beneficiary survives the participant and is
living on the date on which any amount becomes payable to such participant's
beneficiary, such payment will be made to the legal representative of the
participant's estate, and the term "beneficiary" as used in the Plan shall be
deemed to include such person or persons. If there is any question as to the
legal right of any beneficiary to receive a distribution under the Plan, the
Committee in its discretion may determine that the amount in question be paid to
the legal representatives of the estate of the participant, in which event the
Company, the Board and the Committee and the members thereof will have no
further liability to anyone with respect to such amount.
17. Financial Assistance. If the Committee determines that
such action is advisable, the Company may assist any person to whom an Award has
been granted in obtaining financing from the Company under The Talbots Inc.
Stock Purchase Assistance Plan (or other program of the Company or one of its
Affiliates approved pursuant to applicable law), or from a bank or other third
party, on such terms as are determined by the Committee, and in such amount as
is required to accomplish the purposes of the Plan, including, but not limited
to, to permit the exercise of an Award, the participation therein, and/or the
payment of any taxes in respect thereof. Such assistance may take any form that
the Committee deems appropriate, including, but not limited to, a direct loan
from the Company or an Affiliate, a guarantee of the obligation by the Company
or an Affiliate, or the maintenance by the Company or an Affiliate of deposits
with such bank or third party.
18. Miscellaneous Provisions.
(a) No employee or other person shall have any claim or right
to be granted an Award under the Plan. Determinations made by the committee
under the Plan need not be uniform and may be made selectively among eligible
individuals under the Plan, whether or not such eligible individuals are
similarly situated. Neither the Plan nor any action taken hereunder shall be
construed as giving any employee or other person any right to continue to be
employed or perform services for the Company or any Affiliate, and the right to
terminate the employment of or performance of service by any participant at any
time and for any reason is specifically reserved.
(b) No participant or other person shall have any right with
respect to the Plan, the Common Shares reserved for issuance under the Plan or
in any Award, contingent or otherwise, until written evidence of the Award shall
have been delivered to the recipient and all the terms, conditions and
provisions of the Plan and the Award applicable to such recipient (and each
person claiming under or through him) have been met.
(c) Except as may be approved by the Committee where such
approval shall not adversely affect compliance of the Plan with Rule 16b-3 under
the Exchange Act, a participant's rights and interest under the Plan may not be
assigned or transferred, hypothecated or encumbered in whole or in part either
directly or by operation of law or otherwise (except in the event of a
participant's death) including, but not by way of limitation, execution, levy,
garnishment, attachment, pledge, bankruptcy or in any other manner, provided,
however, that any option or similar right (including, but not limited to, a
Stock Appreciation Right) offered pursuant to the Plan shall not be transferable
other than by will or the laws of descent and distribution and shall be
exercisable during the participant's lifetime only by him.
(d) No Common Shares, Other Company Securities or property,
other securities or property, or other forms of payment shall be issued
hereunder with respect to any Award unless counsel for the Company shall be
satisfied that such issuance will be in compliance with applicable federal,
state, local and foreign legal, securities exchange and other applicable
requirements.
(e) It is the intent of the Company that the Plan comply in
all respects with Rule 16b-3 under the Exchange Act, that any ambiguities or
inconsistencies in construction of the Plan be interpreted to give effect to
such intention and that if any provision of the Plan is found not to be in
compliance with Rule 16b-3, such provision shall be deemed null and void to the
extent required to permit the Plan to comply with Rule 16b-3.
(f) The Company and its Affiliates shall have the right to
deduct from any payment made under the Plan any federal, state, local or foreign
income or other taxes required by law to be withheld with respect to such
payment. It shall be a condition to the obligation of the Company to issue
Common Shares, Other Company Securities or property, other securities or
property, or other forms of payment, or any combination thereof, upon exercise,
settlement or payment of any Award under the Plan, that the participant (or any
beneficiary or person entitled to act) pay to the Company, upon its demand, such
amount as may be requested by the Company for the purpose of satisfying any
liability to withhold federal, state, local or foreign income or other taxes. If
the amount requested is not paid, the Company may refuse to issue Common Shares,
Other Company Securities or property, other securities or property, or other
forms of payment, or any combination thereof. Notwithstanding anything in the
Plan to the contrary, the Committee may, in its discretion, permit an eligible
participant (or any beneficiary or person entitled to act) to elect to pay a
portion or all of the amount requested by the Company for such taxes with
respect to such Award, at such time and in such manner as the Committee shall
deem to be appropriate (including, but not limited to, by authorizing the
Company to withhold, or agreeing to surrender to the Company on or about the
date such tax liability is determinable, Common Shares, Other Company Securities
or property, other securities or property, or other forms of payment that would
otherwise be distributed, or have been distributed, as the case may be, pursuant
to such Award to such person, having a fair market value equal to the amount of
such taxes).
(g) The expenses of the Plan shall be borne by the Company.
However, if an Award is made to an individual employed by or performing services
for an Affiliate,
(i) if such Award results in payment of cash to the
participant, such Affiliate shall pay to the Company an amount
equal to such cash payment; and
(ii) if the Award results in the issuance by the
Company to the participant of Common Shares, Other Company
Securities or property, other securities or property, or other
forms of payment, or any combination thereof, such Affiliate
shall pay to the Company an amount equal to the fair market
value thereof, as determined by the Committee, on the date
such shares, Other Company Securities or property, other
securities or property, or other forms of payment, or any
combination thereof, are issued (or, in the case of the
issuance of Restricted Stock or of Common Shares, Other
company Securities or property, or other securities or
property, or other forms of payment subject to transfer and
forfeiture conditions, equal to the fair market value thereof
on the date on which they are no longer subject to applicable
restrictions), minus the amount, if any, received by the
Company in respect of the purchase of such Common Shares,
Other Company Securities or property, other securities or
property or other forms of payment, or any combination
thereof.
(h) The Plan shall be unfunded. The Company shall not be
required to establish any special or separate fund or to make any segregation of
assets to assure the payment of any Award under the Plan, and the rights to the
payment of Awards shall be no greater than the rights of the Company's general
creditors.
(i) By accepting any Award or other benefit under the Plan,
each Participant and each person claiming under or through him shall be
conclusively deemed to have indicated his acceptance and ratification of, and
consent to, any action taken under the Plan by the Company, the Board or the
Committee or its delegates.
(j) Fair market value in relation to Common Shares, Other
Company Securities or property, other securities or property or other forms of
payment of Awards under the Plan, or any combination thereof as of any specific
time shall mean such value as determined by the Committee in accordance with
applicable law.
(k) The masculine pronoun includes the feminine and the
singular includes the plural wherever appropriate.
(l) The appropriate officers of the Company shall cause to be
filed any reports, returns or other information regarding Awards hereunder or
any Common Shares issued pursuant hereto as may be required by Section 13 or
15(d) of the Exchange Act (or any successor provision) or any other applicable
statute, rule or regulation.
(m) The validity, construction, interpretation, administration
and effect of the Plan, and of its rules and regulations, and rights relating to
the Plan and to Awards granted under the Plan, shall be governed by the
substantive laws, but not the choice of law rules, of the Commonwealth of
Massachusetts.
19. Plan Amendment or Suspension. The Plan may be amended or
suspended in whole or in part at any time and from time to time by the Board,
but no amendment shall be effective unless and until the same is approved by
shareholders of the Company where the failure to obtain such approval would
adversely affect the compliance of the Plan with Rule 16b-3 under the Exchange
Act and with other applicable law. No amendment of the Plan shall adversely
affect in a material manner any right of any participant with respect to any
Award theretofore granted without such participant's written consent, except as
permitted under Paragraph 11.
20. Plan Termination. This Plan shall terminate upon the
earlier of the following dates or events to occur:
(a) upon the adoption of a resolution of the Board terminating
the Plan; or
(b) ten years from the date the Plan is initially approved and
adopted by the shareholders of the Company in accordance with Paragraph 22
hereof; provided, however, that the Board may, prior to the expiration of such
ten-year period, extend the term of the Plan for an additional period of up to
five years for the grant of Awards other than Incentive Stock Options. No
termination of the Plan shall materially alter or impair any of the rights or
obligations of any person, without his consent, under any Award theretofore
granted under the Plan, except that subsequent to termination of the Plan, the
Committee may make amendments permitted under Paragraph 11.
21. Registration Rights. The Company covenants and agrees as
follows:
(a) Definitions. For purposes of this Paragraph 21:
(i) the term "register," "registered," and
"registration" refer to a registration effected by preparing
and filing a registration statement or similar document in
compliance with the Securities Act of 1933, as amended (the
"Act"), and the declaration or ordering of effectiveness of
such registration statement or document;
(ii) the term "Registrable Securities" means any
Common Shares issuable pursuant to the grant of Restricted
Stock or pursuant to the exercise of Stock Options.
(iii) the term "Form S-8" means such form under the
Act as in effect on the date hereof or any successor
registration statement form under the Act subsequently adopted
by the Securities and Exchange Commission (the "SEC") which
permits inclusion or incorporation of substantial information
by reference or other documents filed by the Company with the
SEC to the same extent as Form S-8 on the date hereof.
(b) Form S-8 Registration. The Company shall use its best
efforts to effect as soon as practicable the registration on Form S-8 of all
Common Shares issuable pursuant to awards of Restricted Stock or pursuant to
exercise of Stock options granted hereunder in connection with such
registration, the Company shall, as expeditiously as reasonably practicable:
(i) Prepare and file with the SEC within 180 days of
the Company's initial public offering, a Form S-8 registration
statement with respect to the Registrable Securities, and use
its best efforts to cause such registration statement to
become effective and to keep such registration statement
effective until the resale restrictions under the Form S-8
registration statement for all shares of Restricted Stock
granted hereunder are no longer in effect and the earlier to
occur of (A) the issuance of all shares authorized for
issuance hereunder, or (B) the exercise in full of all Stock
Options awarded hereunder which shall have been outstanding on
the date this Plan shall terminate, or (C) the expiration of
the unexercised portion of all Stock Options awarded hereunder
which shall have been outstanding on the date this Plan shall
terminate.
(ii) Prepare and file with the SEC such amendments
and supplements and appendices to such registration statement
and to amend and supplement the prospectus used in connection
with such registration statement as may be necessary to comply
with the provisions of the Act with respect to the grant of
the issuance of the Registrable Securities covered by such
registration statement.
(iii) Prepare and file with the New York Stock
Exchange, Inc. (the "Exchange") an additional listing
application for the listing, upon official notice of issuance,
of such Registrable Securities for trading on the Exchange and
use its best efforts to cause such additional listing
application to be approved by the Exchange.
(c) Expenses. All expenses incurred in connection with the
registration, filings and listing application described in clause (b) of this
Paragraph 21 shall be borne by the Company, including (without limitation) all
registration and filing fees, printers, and accounting fees, and fees and
disbursements for counsel for the Company.
22. Shareholder Adoption. The Plan shall be submitted to the
shareholders of the Company for their approval and adoption at a meeting to be
held on or before May 30, 1993 or at any adjournment thereof. The Plan shall not
be effective and no Award shall be made hereunder unless and until the Plan has
been so approved and adopted. The shareholders shall be deemed to have approved
and adopted the Plan only if it is approved and adopted at a meeting of the
shareholders duly held by vote taken, or approved and adopted by written consent
of shareholders, in each case in the manner required by the laws of the State of
Delaware.
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Post-Effective Amendment
No. 1 to Registration Statement No. 33-86040 of The Talbots, Inc. and its
subsidiaries on Form S-8 of our reports dated March 11, 1998, appearing in and
incorporated by reference in the Annual Report on Form 10-K of The Talbots, Inc.
and its subsidiaries for the year ended January 31, 1998.
DELOITTE & TOUCHE LLP
Deloitte & Touche LLP
Boston, Massachusetts
June 5, 1998
