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United States Securities and Exchange Commission
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
O'SULLIVAN INDUSTRIES HOLDINGS, INC.
(Exact name of Registrant as specified in its charter)
Delaware 43-1659062
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
1900 Gulf Street, Lamar, Missouri 64759-1899
(Address of Principal Executive Offices) (ZIP Code)
O'SULLIVAN INDUSTRIES HOLDINGS, INC.
AMENDED AND RESTATED 1994 INCENTIVE STOCK PLAN
(Full Title of the Plan)
ROWLAND H. GEDDIE, III
Vice President, General Counsel and Secretary
O'Sullivan Industries Holdings, Inc.
1900 Gulf Street
Lamar, Missouri 64759-1899
(Name and Address of Agent for Service)
417-682-3322
(Telephone number, including area code, of agent for service)
_______________________________
CALCULATION OF REGISTRATION FEE
-------------------------------
Title of Securities to be Registered: Common Stock,
par value $1.00 per share
Amount to be Registered: 500,000
Proposed Maximum Offering Price per Share<Fn1>: $11.25
Proposed Maximum Aggregate Offering Price: $5,675,000
Amount of Registration Fee: $1,704.55
Title of Securities to be Registered: Preferred Stock Purchase Rights<Fn2>
Amount to be Registered: 500,000
Proposed Maximum Offering Price per Share<Fn2>: -0-
Proposed Maximum Aggregate Offering Price: -0-
Amount of Registration Fee: -0-
[FN]
1. The number of shares registered has been computed on the basis
of the issuer's estimate of the aggregate number of shares which
will be needed for grants and awards over the remainder of the ten
year life of the O'Sullivan Industries Holdings, Inc. Amended and
Restated 1994 Incentive Stock Plan. The registration fee was
calculated in accordance with Rule 457(c) upon the basis of the
average of the high and low prices of the Common Stock as reported
on the New York Stock Exchange Composite Transactions System on
February 10, 1997.
[/FN]
[FN]
2. One Preferred Stock Purchase Right automatically trades with
each share of Common Stock and is evidenced by the certificate for
the Common Stock.
[/FN]
<PAGE>
EXPLANATORY NOTES
Pursuant to Instruction E of the General Instructions to
Form S-8, the contents of Registration Statement on Form S-8, File
No. 33-75438, are hereby incorporated by reference.
As permitted by the rules of the Securities and Exchange
Commission (the "Commission"), this Registration Statement omits
the information specified in Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Commission by
O'Sullivan Industries Holdings, Inc. (the "Company," "O'Sullivan"
or the "Registrant") (File No. 1-12754) are incorporated in this
Registration Statement on Form S-8 (the "Registration Statement")
by reference:
1. The Company's Annual Report on Form 10-K for the fiscal
year ended June 30, 1996;
2. The Company's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1996; and
3. The descriptions of the Company's common stock, par value
$1.00 per share ("Common Stock"), and preferred stock
purchase rights contained in the Company's Registration
Statement on Form 8-A filed on January 13, 1994, as
amended.
All documents subsequently filed by O'Sullivan with the
Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "1934 Act") and
prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in the 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, that 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
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable
Item 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS
The Company's Certificate of Incorporation and By-laws provide
that the Company shall indemnify, to the fullest extent authorized
by the Delaware General Corporation Law (the "DGCL"), each person
who is involved in any litigation or other proceeding because such
person is or was a director or officer of the Company or its
subsidiaries or is or was serving as an officer or director of
another entity at the request of the Company, against all expense,
loss or liability reasonably incurred or suffered in connection
therewith. The Certificate of Incorporation and By-laws provide
that the right to indemnification includes the right to be paid
expenses incurred in defending any proceeding in advance of its
final disposition; provided, however, that if Delaware law
requires, such advance payment will only be made upon the delivery
to the Company of an undertaking, by or on behalf of the director
or officer, to repay all amounts so advanced if it is ultimately
determined that such director or officer is not entitled to
indemnification. If the Company does not pay a proper claim for
indemnification in full within 30 days after a written claim for
such indemnification is received by the Company, the Certificate of
Incorporation and By-laws authorize the claimant to bring an action
against the Company and prescribe what constitutes a defense to
such action.
Section 145 of the DGCL permits a corporation to indemnify any
director or officer of the corporation against expenses (including
attorney's fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection with any action,
suit or proceeding brought by reason of the fact that such person
is or was a director or officer of the corporation, if such person
acted in good faith and in a manner that he reasonably believed to
be in or not opposed to the best interests of the corporation and,
with respect to any criminal action or proceeding, if he had no
reason to believe his conduct was unlawful. In a derivative action
(i.e., one brought by or on behalf of the corporation),
indemnification may be made only for expenses actually and
reasonably incurred by any director or officer in connection with
the defense or settlement of such an action or suit, if such person
acted in good faith and in a manner that he reasonably believed to
be in or not opposed to the best interests of the corporation,
except that no indemnification shall be made if such person shall
have been adjudged to be liable to the corporation, unless and only
to the extent that the court in which the action or suit was
brought shall determine that the defendant is fairly and reasonably
entitled to indemnity for such expenses despite such adjudication
of liability.
Pursuant to Section 102(b)(7) of the DGCL, Article Tenth of
the Company's Certificate of Incorporation eliminates the liability
of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, except for
liabilities arising (i) from any breach of the director's duty of
loyalty to the corporation or its stockholders, (ii) from acts or
omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) under Section 174 of the DGCL,
or (iv) from any transaction from which the director derived an
improper personal benefit.
In addition, the Plan provides that the Registrant will
indemnify the members of the Compensation Committee for all costs
and expenses and, to the extent permitted by applicable law, any
liability incurred in connection with defending against, responding
to, negotiation for the settlement of or otherwise dealing with any
claim, cause of action or dispute of any kind arising in connection
with any actions in administering the O'Sullivan Industries
Holdings, Inc. Amended and Restated 1994 Incentive Stock Plan, as
amended, or in authorizing or denying authorization to any
transaction thereunder.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended (the "Securities Act") may be
permitted to directors, officers and controlling persons of the
Registrant pursuant to the DGCL and the foregoing provisions or
otherwise, the Registrant has been advised
that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful defense
of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication
of such issue.
The Registrant carries directors' and officers' liability
insurance policies under which all of the directors and executive
officers of the Registrant are insured against loss imposed upon them
with respect to their legal liability for breach of their duty to the
Registrant. Excluded from coverage under said policy are fines and
penalties imposed by law upon such directors and officers or other
matters which may be deemed uninsurable such as material acts of
active and deliberate dishonesty committed by the insureds with
actual dishonest purpose and intent. In addition, the Registrant
has entered into indemnification agreements with its directors and
certain officers for indemnification to the fullest extent
permitted by applicable law.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable
Item 8. EXHIBITS
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Exhibit No. Description
4.1 Certificate of Incorporation of O'Sullivan
Industries Holdings, Inc. (the "Company"), including
Certificate of Designation for Series A Preferred
Stock (incorporated by reference from Exhibit 3.1 to
Registration Statement on Form S-1 (File
No. 33-72120))
4.2 By-laws of the Company (incorporated by reference
from Exhibit 3.2 to Registration Statement on
Form S-1 (File No. 33-72120))
4.3 Specimen Certificate for shares of Common Stock
(incorporated by reference from Exhibit 4.1 to
Amendment No. 3 to Registration Statement on
Form S-1 (File No. 33-72120))
4.4 Rights Agreement dated as of February 1, 1994,
between the Company and The First National Bank of
Boston (incorporated by reference from Exhibit 4.4
to Quarterly Report on Form 10-Q for the quarter
ended March 31, 1994 (File No. 1-12754))
4.5 O'Sullivan Industries Holdings, Inc. 1994 Amended
and Restated Incentive Stock Plan
4.5(a) Amendment to O'Sullivan Industries Holdings, Inc.
Amended and Restated Incentive Stock Plan
4.6 Form of Restricted Stock Agreement among Tandy
Corporation, the Company and each of Messrs.
D. F. O'Sullivan and T. E. Riegel (incorporated by
reference from Exhibit 4.2 to Amendment No. 2 to
Registration Statement on Form S-1 (File No. 33-72120))
4.7 Form of Nonqualified Stock Option Agreement between
the Company and certain members of management
4.8 Form of Nonqualified Stock Option Agreement between
the Company and non-employee directors
4.9 Form of Incentive Stock Option Agreement between the
Company and certain members of management
5 Opinion of Blackwell Sanders Matheny Weary &
Lombardi L.C.
23.1 Consent of Price Waterhouse LLP, independent
accountants
23.2 Consent of Blackwell Sanders Matheny Weary &
Lombardi L.C., counsel (included in Exhibit 5)
</TABLE>
Item 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(a)(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration
statement:
(i) to include any prospectus required by section 10(a)(3) of
the Securities Act;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the registration statement
(or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
registration statement; and/or
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to section 13 or
section 15(d) of the 1934 Act that are incorporated by reference in
the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(4) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act,
each filing of the Registrant's annual report pursuant to section
13(a) or section 15(d) of the 1934 Act and that is incorporated by
reference in the Registration Statement shall be deemed to be a new
Registration Statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(5) The undertaking regarding indemnification of officers and
directors is included as part of Item 6, which is incorporated into
this Item 9 by reference.
<PAGE>
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 has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Lamar, State of Missouri, on the
11th day of February, 1997.
O'SULLIVAN INDUSTRIES HOLDINGS, INC. (Registrant)
By: Daniel F. O'Sullivan
Chairman of the Board and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this report has been signed below by the following persons on
behalf of the Registrant and in the capacities and on the date
indicated.
February 11, 1997 Daniel F. O'Sullivan
Chairman of the Board
and Chief Executive Officer
(Principal Executive Officer)
Richard D. Davidson
President, Chief Operating Officer and Director
Tyrone E. Riegel
Executive Vice President and Director
Terry L. Crump
Vice President-Finance and Chief Financial Officer
(Principal Financial and Accounting Officer)
William C. Bousquette
Director
Charles G. Hanson
Director
Stewart M. Kasen
Director
Thomas M. O'Sullivan, Sr.
Director
Ronald G. Stegall
Director
<PAGE>
INDEX TO EXHIBITS
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Exhibit No. Description
4.1 Certificate of Incorporation of O'Sullivan
Industries Holdings, Inc. (the "Company"), including
Certificate of Designation for Series A Preferred
Stock (incorporated by reference from Exhibit 3.1 to
Registration Statement on Form S-1 (File
No. 33-72120))
4.2 By-laws of the Company (incorporated by reference
from Exhibit 3.2 to Registration Statement on
Form S-1 (File No. 33-72120))
4.3 Specimen Certificate for shares of Common Stock
(incorporated by reference from Exhibit 4.1 to
Amendment No. 3 to Registration Statement on
Form S-1 (File No. 33-72120))
4.4 Rights Agreement dated as of February 1, 1994,
between the Company and The First National Bank of
Boston (incorporated by reference from Exhibit 4.4
to Quarterly Report on Form 10-Q for the quarter
ended March 31, 1994 (File No. 1-12754))
4.5 O'Sullivan Industries Holdings, Inc. 1994 Amended
and Restated Incentive Stock Plan
4.5(a) Amendment to O'Sullivan Industries Holdings, Inc.
Amended and Restated Incentive Stock Plan
4.6 Form of Restricted Stock Agreement among Tandy
Corporation, the Company and each of Messrs.
D. F. O'Sullivan and T. E. Riegel (incorporated by
reference from Exhibit 4.2 to Amendment No. 2 to
Registration Statement on Form S-1 (File No. 33-72120))
4.7 Form of Nonqualified Stock Option Agreement between
the Company and certain members of management
4.8 Form of Nonqualified Stock Option Agreement between
the Company and non-employee directors
4.9 Form of Incentive Stock Option Agreement between the
Company and certain members of management
5 Opinion of Blackwell Sanders Matheny Weary &
Lombardi L.C.
23.1 Consent of Price Waterhouse LLP, independent
accountants
23.2 Consent of Blackwell Sanders Matheny Weary &
Lombardi L.C., counsel (included in Exhibit 5)
</TABLE>
EXHIBIT 4.5
O'SULLIVAN INDUSTRIES HOLDINGS, INC.
AMENDED and RESTATED 1994 INCENTIVE STOCK PLAN
The O'Sullivan Industries Holdings, Inc. 1994 Incentive Stock
Plan, as amended to date, is hereby further amended and restated to
read as follows, effective September 20, 1996:
1. Purpose.
The purpose of this Plan is to strengthen O'Sullivan
Industries Holdings, Inc. (the "Company") by providing an incentive
to its key employees, consultants and advisors and directors and
thereby encouraging them to devote their abilities and industry to
the success of the Company's business enterprise. It is intended
that this purpose be achieved by extending to directors, key
employees, consultants and advisors of the Company and its
subsidiaries an added long-term incentive for high levels of
performance and unusual efforts through the grant of Incentive
Stock Options, Non-Qualified Stock Options, Stock Appreciation
Rights, Restricted Stock, Performance Units and Performance Shares
(as each term is hereinafter defined).
2. Definitions.
For purposes of the Plan:
2.1 "Adjusted Fair Market Value" means, in the event of a
Change in Control, the greater of (i) the highest price per Share
paid to holders of the Shares in any transaction (or series of
transactions) constituting or resulting in a Change in Control or
(ii) the highest Fair Market Value of a Share during the 90 day
period ending on the date of a Change in Control.
2.2 "Agreement" means the written agreement between the
Company and an Optionee or Grantee evidencing the grant of an
Option or Award and setting forth the terms and conditions thereof.
2.3 "Award" means a grant of Restricted Stock, a Stock
Appreciation Right, a Performance Award or any or all of them.
2.4 "Board" means the Board of Directors of the Company.
2.5 "Cause" means the commission of an act of fraud or
intentional misrepresentation or an act of embezzlement,
misappropriation or conversion of assets or opportunities of the
Company or any Subsidiary.
2.6 "Change in Capitalization" means any increase or
reduction in the number of Shares, or any change (including, but
not limited to, a change in value) in the Shares or exchange of
Shares for a different number or kind of shares or other securities
of the Company, by reason of a reclassification, recapitalization,
merger, consolidation, reorganization, spin-off, split-up, issuance
of warrants or rights or debentures, stock dividend, stock split or
reverse stock split, cash dividend, property dividend, combination
or exchange of shares, repurchase of shares, change in corporate
structure or otherwise.
2.7 A "Change in Control" shall mean the occurrence during
the term of the Plan of:
(a) An acquisition (other than directly from the
Company) of any voting securities of the Company (the "Voting
Securities") by any "Person" (as the term person is used for
purposes of Section 13(d) or 14(d) of the Securities Exchange
Act of 1934, as amended (the "1934 Act")) immediately after
which such Person has "Beneficial Ownership" (within the
meaning of Rule 13d-3 promulgated under the 1934 Act) of 15%
or more of the combined voting power of the Company's then
outstanding Voting Securities; provided, however, in
determining whether a Change in Control has occurred, Voting
Securities which are acquired in a "Non-Control Acquisition"
(as hereinafter defined) shall not constitute an acquisition
which would cause a Change in Control. A "Non-Control
Acquisition" shall mean an acquisition by (i) an employee
benefit plan (or a trust forming a part thereof) maintained by
(A) the Company or (B) any corporation or other Person of
which a majority of its voting power or its voting equity
securities or equity interest is owned, directly or
indirectly, by the Company (for purposes of this definition,
a "Subsidiary"), (ii) the Company or its Subsidiaries, or
(iii) any Person in connection with a "Non-Control
Transaction" (as hereinafter defined).
(b) The individuals who, as of February 1, 1994,
are members of the Board (the "Incumbent Board"), cease for
any reason to constitute at least two-thirds of the Board;
provided, however, that if the election, or nomination for
election by the Company's stockholders, of any new director
was approved by a vote of at least two-thirds of the Incumbent
Board, such new director shall, for purposes of this Plan, be
considered as a member of the Incumbent Board; provided
further, however, that no individual shall be considered a
member of the Incumbent Board if such individual initially
assumed office as a result of either an actual or threatened
"Election Contest" (as described in Rule 14a-11 promulgated
under the 1934 Act) or other actual or threatened solicitation
of proxies or consents by or on behalf of a Person other than
the Board (a "Proxy Contest") including by reason of any
agreement intended to avoid or settle any Election Contest or
Proxy Contest; or
(c) Approval by stockholders of the Company of:
(i) A merger, consolidation or reorganization
involving the Company, unless
(A) the stockholders of the Company,
immediately before such merger, consolidation or
reorganization, own, directly or indirectly immediately
following such merger, consolidation or reorganization,
at least 60% of the combined voting power of the
outstanding voting securities of the corporation
resulting from such merger or consolidation or
reorganization (the "Surviving Corporation") in
substantially the same proportion as their ownership of
the Voting Securities immediately before such merger,
consolidation or reorganization,
(B) the individuals who were members of the
Incumbent Board immediately prior to the execution of the
agreement providing for such merger, consolidation or
reorganization constitute at least two-thirds of the
members of the board of directors of the Surviving
Corporation,
(C) no Person other than the Company, any
Subsidiary, any employee benefit plan (or any trust
forming a part thereof) maintained by the Company, the
Surviving Corporation, or any Subsidiary, or any Person
who, immediately prior to such merger, consolidation or
reorganization had Beneficial Ownership of 15% or more of
the then outstanding Voting Securities has Beneficial
Ownership of 15% or more of the combined voting power of
the Surviving Corporation's then outstanding voting
securities, and
(D) a transaction described in clauses (A)
through (C) shall herein be referred to as a "Non-Control
Transaction";
(ii) A complete liquidation or dissolution of the
Company; or
(iii) An agreement for the sale or other
disposition of all or substantially all of the assets of the
Company to any Person (other than a transfer to a Subsidiary).
Notwithstanding the foregoing, a Change in Control shall not
be deemed to occur solely because any Person (the "Subject Person")
acquired Beneficial Ownership of more than the permitted amount of
the outstanding Voting Securities as a result of the acquisition of
Voting Securities by the Company which, by reducing the number of
Voting Securities outstanding, increases the proportional number of
shares Beneficially Owned by the Subject Person, provided that if
a Change in Control would occur (but for the operation of this
sentence) as a result of the acquisition of Voting Securities by
the Company, and after such share acquisition by the Company, the
Subject Person becomes the Beneficial Owner of any additional
Voting Securities which increases the percentage of the then
outstanding Voting Securities Beneficially Owned by the Subject
Person, then a Change in Control shall occur.
2.8 "Code" means the Internal Revenue Code of 1986, as
amended.
2.9 "Committee" means the Compensation Committee of the Board
consisting solely of at least two (2) Non-Employee Directors
appointed by the Board to administer the Plan and to perform the
functions set forth herein.
2.10 "Company" means O'Sullivan Industries Holdings, Inc.
2.11 "Director Option" means an Option granted pursuant to
Section 5.
2.12 "Disability" means a physical or mental infirmity which
impairs the Optionee's ability to perform substantially his or her
duties for a period of one hundred eighty (180) consecutive days.
2.13 "Division" means any of the operating units or divisions
of the Company designated as a Division by the Committee.
2.14 "Eligible Employee" means any Director, officer or other
key employee or consultant or advisor of the Company or a
Subsidiary designated by the Committee as eligible to receive
Options or Awards subject to the conditions set forth herein.
2.15 "Employee Option" means an Option granted pursuant to
Section 6.
2.16 "Exchange Act" means the Securities Exchange Act of 1934,
as amended.
2.17 "Fair Market Value" on any date means the average of the
high and low sales prices of the Shares on such date on the
principal national securities exchange on which such Shares are
listed or admitted to trading, or if such Shares are not so listed
or admitted to trading, the arithmetic mean of the per Share
closing bid price and per Share closing asked price on such date as
quoted on the National Association of Securities Dealers Automated
Quotation System or such other market in which such prices are
regularly quoted, or, if there have been no published bid or asked
quotations with respect to Shares on such date, the Fair Market
Value shall be the value established by the Board in good faith
and, in the case of an Incentive Stock Option, in accordance with
Section 422 of the Code.
2.18 "Grantee" means a person to whom an Award has been
granted under the Plan.
2.19 "Incentive Stock Option" means an Option satisfying the
requirements of Section 422 of the Code and designated by the
Committee as an Incentive Stock Option.
2.20 "IPO" means the initial public offering of the Company's
common stock.
2.21 "Non-Employee Director" means a director who is a
"non-employee director" of the Company or any Subsidiary as defined
in Rule 16b-3(b)(3) under the Exchange Act, or any successor
provision.
2.22 "Non-Qualified Stock Option" means an Option which is not
an Incentive Stock Option.
2.23 "Option" means a Employee Option, a Director Option, or
either or both of them.
2.24 "Optionee" means a person to whom an Option has been
granted under the Plan.
2.25 "Outside Director" means a Director of the Company who is
not an employee of the Company or any Subsidiary.
2.26 "Parent" means any corporation which is a parent
corporation (within the meaning of Section 424(e) of the Code) with
respect to the Company.
2.27 "Performance Awards" means Performance Units, Performance
Shares or either or both of them.
2.28 "Performance Cycle" means the time period specified by
the Committee at the time a Performance Award is granted during
which the performance of the Company, a Subsidiary or a Division
will be measured.
2.29 "Performance Shares" means Shares issued or transferred
to an Eligible Employee under Section 10.
2.30 "Performance Unit" means Performance Units granted to an
Eligible Employee under Section 10.
2.31 "Restricted Stock" means Shares issued or transferred to
an Eligible Employee pursuant to Section 9.
2.32 "Retirement" means voluntary termination of service as a
Director at age 65 or older.
2.33 "Stock Appreciation Right" means a right to receive all
or some portion of the increase in the value of the Shares as
provided in Section 8.
2.34 "Plan" means the O'Sullivan Industries Holdings, Inc.
1994 Incentive Stock Plan.
2.35 "Shares" means the common stock, par value $1.00 per
share, of the Company.
2.36 "Subsidiary" means any corporation which is a subsidiary
corporation (within the meaning of Section 424(f) of the Code) with
respect to the Company.
2.37 "Successor Corporation" means a corporation, or a parent
or subsidiary thereof within the meaning of Section 424(a) of the
Code, which issues or assumes a stock option in a transaction to
which Section 424(a) of the Code applies.
2.38 "Ten-Percent Stockholder" means an Eligible Employee,
who, at the time an Incentive Stock Option is to be granted to him
or her, owns (within the meaning of Section 422(b)(6) of the Code)
stock possessing more than 10% of the total combined voting power
of all classes of stock of the Company, or of a Parent or a
Subsidiary.
3. Administration.
3.1 The Plan shall be administered by the Committee, which
shall hold meetings at such times as may be necessary for the
proper administration of the Plan. No member of the Committee
shall be liable for any action, failure to act, determination or
interpretation made in good faith with respect to this Plan or any
transaction hereunder, except for liability arising from his or her
own willful misfeasance, gross negligence or reckless disregard of
his or her duties. The Company hereby agrees to indemnify each
member of the Committee for all costs and expenses and, to the
extent permitted by applicable law, any liability incurred in
connection with defending against, responding to, negotiation for
the settlement of or otherwise dealing with any claim, cause of
action or dispute of any kind arising in connection with any
actions in administering this Plan or in authorizing or denying
authorization to any transaction hereunder.
3.2 Subject to the express terms and conditions set forth
herein, the Committee shall have the power from time to time to:
(a) determine those individuals to whom Employee Options
shall be granted under the Plan and the number of Incentive Stock
Options and/or Non-Qualified Stock Options to be granted to each
Eligible Employee and to prescribe the terms and conditions (which
need not be identical) of each Employee Option, including the
purchase price per Share subject to each Employee Option, and make
any amendment or modification to any Agreement consistent with the
terms of the Plan; and
(b) select those Eligible Employees to whom Awards shall
be granted under the Plan and to determine the number of Stock
Appreciation Rights, Performance Units, Performance Shares, and/or
Shares of Restricted Stock to be granted pursuant to each Award,
the terms and conditions of each Award, including the restrictions
or performance criteria relating to such Performance Units or
Performance Shares, the maximum value of each Performance Unit and
Performance Share and make any amendment or modification to any
Agreement consistent with the terms of the Plan.
3.3 Subject to the express terms and conditions set forth
herein, the Committee shall have the power from time to time:
(a) to construe and interpret the Plan and the Options
and Awards granted thereunder and to establish, amend and revoke
rules and regulations for the administration of the Plan,
including, but not limited to, correcting any defect or supplying
any omission, or reconciling any inconsistency in the Plan or in
any Agreement, in the manner and to the extent it shall deem
necessary or advisable to make the Plan fully effective, and all
decisions and determinations by the Committee in the exercise of
this power shall be final, binding and conclusive upon the Company,
its Subsidiaries, the Optionees and Grantees and all other persons
having any interest therein;
(b) to determine the duration and purposes for leaves of
absence which may be granted to an Optionee or Grantee on an
individual basis without constituting a termination of employment
or service for purposes of the Plan;
(c) to exercise its discretion with respect to the
powers and rights granted to it as set forth in the Plan; and
(d) generally, to exercise such powers and to perform
such acts as are deemed necessary or advisable to promote the best
interests of the Company with respect to the Plan.
4. Stock Subject to the Plan.
4.1 The maximum number of Shares that may be made the subject
of Options and Awards granted under the Plan is 2,500,000. Upon a
Change in Capitalization the maximum number of Shares shall be
adjusted in number and kind pursuant to Section 12. The Company
shall reserve for the purposes of the Plan, out of its authorized
but unissued Shares or out of Shares held in the Company's
treasury, or partly out of each, such number of Shares as shall be
determined by the Board.
4.2 Upon the granting of an Option or an Award, the number of
Shares available under Section 4.1 for the granting of further
Options and Awards shall be reduced as follows:
(a) In connection with the granting of an Option or an
Award (other than the granting of a Performance Unit denominated in
dollars), the number of Shares shall be reduced by the number of
Shares in respect of which the Option or Award is granted or
denominated.
(b) In connection with the granting of a Performance
Unit denominated in dollars, the number of Shares shall be reduced
by an amount equal to the quotient of (i) the dollar amount in
which the Performance Unit is denominated, divided by (ii) the Fair
Market Value of a Share on the date the Performance Unit is
granted.
4.3 Whenever any outstanding Option or Award or portion
thereof expires, is canceled or is otherwise terminated for any
reason without having been exercised or payment having been made in
respect of the entire Option or Award, the Shares allocable to the
expired, canceled or otherwise terminated portion of the Option or
Award may again be the subject of Options or Awards granted
hereunder.
4.4 Notwithstanding anything contained in this Section 4, the
number of Shares available for Options and Awards at any time under
the Plan shall be reduced to such lesser amount as may be required
pursuant to the methods of calculation necessary so that the
exemptions provided pursuant to Rule 16b-3 under the Exchange Act
will continue to be available for transactions involving all
current and future Options and Awards. In addition, during the
period that any Options and Awards remain outstanding under the
Plan, the Committee may make good faith adjustments with respect to
the number of Shares attributable to such Options and Awards for
purposes of calculating the maximum number of Shares available for
the granting of future Options and Awards under the Plan, provided
that following such adjustments the exemptions provided pursuant to
Rule 16b-3 under the Exchange Act will continue to be available for
transactions involving all current and future Options and Awards.
5. Option Grants for Outside Directors.
5.1 Grant. Director Options shall be granted to each Outside
Director on the first trading day of September of each year that
the Plan is in effect. Each Director Option granted shall be in
respect of 1,000 Shares. The purchase price of each Director
Option shall be as provided in Section 5.2, and such Options shall
be evidenced by an Agreement containing such other terms and
conditions not inconsistent with the provisions of this Plan as
determined by the Board; provided, however, that such terms shall
not vary the timing of awards of Director Options, including
provisions dealing with forfeiture or termination of such Director
Options.
5.2 Purchase Price. The purchase price for Shares under each
Director Option shall be equal to 100% of the Fair Market Value of
such Shares on the trading date immediately preceding the date of
grant.
5.3 Vesting. Subject to Section 7.4, each Director Option
shall become exercisable with respect to one-third (1/3) of the
Shares subject thereto effective as of each of the first, second
and third anniversaries of the grant date; provided, however, that
the Optionee continues to serve as a Director as of such dates.
Notwithstanding the foregoing, if a Director's service terminates
by reason of his death, Disability or Retirement, all Director
Options then held by the Director which had been granted more than
one year prior to his termination shall be fully vested. If an
Optionee ceases to serve as a Director for any reason, the Optionee
shall have no rights with respect to that portion of a Director
Option which has not then vested pursuant to the two preceding
sentences and the Optionee shall automatically forfeit that portion
of the Director Option which remains unvested.
5.4 Duration. Each Director Option shall terminate on the
date which is the 10th anniversary of the grant date, unless
terminated earlier as follows:
(a) If an Optionee's service as a Director terminates
for any reason other than Retirement, resignation, removal from the
Board due to Disability, death or Cause, the Optionee may, for a
period of three (3) months after such termination, exercise his or
her Option to the extent, and only to the extent, that such Option
or portion thereof was vested and exercisable as of the date the
Optionee's service as a Director terminated, after which time the
Option shall automatically terminate in full.
(b) If an Optionee's service as a Director terminates by
reason of the Optionee's Retirement or by resignation or removal
from the Board due to Disability, the Optionee may, for a period of
12 months after such termination, exercise his or her Option to the
extent, and only to the extent that such Option or portion thereof
was vested and exercisable, as of the date the Optionee's service
as a Director terminated, after which time the Option shall
automatically terminate in full.
(c) If an Optionee's service as a Director terminates
for Cause, the Option granted to the Optionee hereunder shall
immediately terminate in full and no rights thereunder may be
exercised.
(d) If an Optionee dies while a Director or within three
(3) months after termination of service as a Director as described
in clause (a) or (b) of this Section 5.4, the Option granted to the
Optionee may be exercised at any time within 12 months after the
Optionee's death by the person or persons to whom such rights under
the Option shall pass by will, or by the laws of descent or
distribution, after which time the Option shall terminate in full;
provided, however, that an Option may be exercised to the extent,
and only to the extent, that the Option or portion thereof was
exercisable on the date of death or earlier termination of the
Optionee's services as a Director.
6. Option Grants for Eligible Employees.
6.1 Authority of Committee. Subject to the provisions of the
Plan and to Section 4.1 above, the Committee shall have full and
final authority to select those Eligible Employees who will receive
Options (each an "Employee Option"), the terms and conditions of
which shall be set forth in an Agreement; provided, however, that
no person shall receive any Incentive Stock Options unless he or
she is an employee of the Company, a Parent or a Subsidiary at the
time the Incentive Stock Option is granted.
6.2 Purchase Price. The purchase price or the manner in
which the purchase price is to be determined for Shares under each
Employee Option shall be determined by the Committee and set forth
in the Agreement; provided, however, that the purchase price per
Share under each Incentive Stock Option shall not be less than 100%
of the Fair Market Value of a Share on the date the Incentive Stock
Option is granted (110% in the case of an Incentive Stock Option
granted to a Ten-Percent Stockholder) and the purchase price per
Share under each Non-Qualified Stock Option shall not be less than
the Fair Market Value of a Share on the date the Non-Qualified
Stock Option is granted.
6.3 Maximum Duration. Employee Options granted hereunder
shall be for such term as the Committee shall determine, provided
that an Incentive Stock Option shall not be exercisable after the
expiration of 10 years from the date it is granted (five (5) years
in the case of an Incentive Stock Option granted to a Ten-Percent
Stockholder) and a Non-Qualified Stock Option shall not be
exercisable after the expiration of ten (10) years from the date it
is granted. The Committee may, subsequent to the granting of any
Employee Option, extend the term thereof but in no event shall the
term as so extended exceed the maximum term provided for in the
preceding sentence.
6.4 Vesting. Subject to Section 7.4 hereof, each Employee
Option shall become exercisable in such installments (which need
not be equal) and at such times as may be designated by the
Committee and set forth in the Agreement. To the extent not
exercised, installments shall accumulate and be exercisable, in
whole or in part, at any time after becoming exercisable, but not
later than the date the Employee Option expires. The Committee may
accelerate the exercisability of any Option or portion thereof at
any time.
6.5 Modification or Substitution. The Committee may, in its
discretion, modify outstanding Employee Options or accept the
surrender of outstanding Employee Options (to the extent not
exercised) and grant new Options in substitution for them.
Notwithstanding the foregoing, no modification of an Employee
Option shall adversely alter or impair any rights or obligations
under the Employee Option without the Optionee's consent.
7. Terms and Conditions Applicable to All Options.
7.1 Non-Transferability. No Option granted hereunder shall
be transferable by the Optionee to whom granted otherwise than
(a) by will or the laws of descent and distribution, or (b) to an
immediate family member of the Optionee or to a charitable
organization. The terms of such Option shall be final, binding and
conclusive upon the beneficiaries, executors, administrators,
heirs, successors, transferees, donees and other assigns of the
Optionee.
7.2 Method of Exercise. The exercise of an Option shall be
made only by a written notice which is received by the Secretary of
the Company at the Company's principal executive office, specifying
the number of Shares to be purchased and accompanied by payment
therefor and otherwise in accordance with the Agreement pursuant to
which the Option was granted. The purchase price for any Shares
purchased pursuant to the exercise of an Option shall be paid in
full upon such exercise by any one or a combination of the
following: (i) cash or (ii) transferring Shares to the Company
upon such terms and conditions as determined by the Committee. The
written notice pursuant to this Section 7.2 may also provide
instructions from the Optionee to the Company that upon receipt of
the purchase price in cash from the Optionee's broker or dealer,
designated as such on the written notice, in payment for any Shares
purchased pursuant to the exercise of an Option, the Company shall
issue such Shares directly to the designated broker or dealer. Any
Shares transferred to the Company as payment of the purchase price
under an Option shall be valued at their Fair Market Value on the
day preceding the date of exercise of such Option. If requested by
the Committee, the Optionee shall deliver the Agreement evidencing
the Option to the Secretary of the Company who shall endorse
thereon a notation of such exercise and return such Agreement to
the Optionee. No fractional Shares (or cash in lieu thereof) shall
be issued upon exercise of an Option and the number of Shares that
may be purchased upon exercise shall be rounded to the nearest
number of whole Shares.
7.3 Rights of Optionees. No Optionee shall be deemed for any
purpose to be the owner of any Shares subject to any Option unless
and until (i) the Option shall have been exercised pursuant to the
terms thereof, (ii) the Company shall have issued and delivered the
Shares to the Optionee or his designated broker or dealer and
(iii) the Optionee's name or the name of his designated broker or
dealer shall have been entered as a stockholder of record with
respect to the Shares on the books of the Company, whereupon, the
Optionee shall have full voting, dividend and other ownership
rights with respect to such Shares.
7.4 Effect of Change in Control. Notwithstanding anything
contained in the Plan or an Agreement to the contrary, in the event
of a Change in Control, (i) all Options outstanding on the date of
such Change in Control shall become immediately and fully
exercisable through the expiration of the Option and (ii) an
Optionee will be permitted to surrender for cancellation within
60 days after such Change in Control, any Option or portion of an
Option to the extent not yet exercised and the Optionee will be
entitled to receive a cash payment in an amount equal to the
excess, if any, of (x) (A) in the case of a Non-Qualified Stock
Option, the greater of (1) the Fair Market Value, on the date
preceding the date of surrender, of the Shares subject to the
Option or portion thereof surrendered or (2) the Adjusted Fair
Market Value of the Shares subject to the Option or portion thereof
surrendered or (B) in the case of an Incentive Stock Option, the
Fair Market Value, on the date preceding the date of surrender, of
the Shares subject to the Option or portion thereof surrendered,
over (y) the aggregate purchase price for such Shares under the
Option or portion thereof surrendered; provided, however, that in
the case of an Option granted within six (6) months prior to the
Change in Control to any Optionee who may be subject to liability
under Section 16(b) of the Exchange Act, such Optionee shall be
entitled to surrender for cancellation his or her Option during the
60 day period commencing upon the expiration of six (6) months from
the date of grant of any such Option.
8. Stock Appreciation Rights. The Committee may, in its
discretion, either alone or in connection with the grant of an
Option, grant Stock Appreciation Rights in accordance with the Plan
and the terms and conditions of which shall be set forth in an
Agreement. If granted in connection with an Option, a Stock
Appreciation Right shall cover the same Shares covered by the
Option (or such lesser number of Shares as the Committee may
determine) and shall, except as provided in this Section 8, be
subject to the same terms and conditions as the related Option.
8.1 Time of Grant. A Stock Appreciation Right may be granted
(i) at any time if unrelated to an Option, or (ii) if related to an
Option, either at the time of grant, or at any time thereafter
during the term of the Option.
8.2 Stock Appreciation Right Related to an Option.
(a) Exercise. Subject to Section 8.6, a Stock
Appreciation Right granted in connection with an Option shall be
exercisable at such time or times and only to the extent that the
related Option is exercisable, and will not be transferable except
to the extent the related Option may be transferable. A Stock
Appreciation Right granted in connection with an Incentive Stock
Option shall be exercisable only if the Fair Market Value of a
Share on the date of exercise exceeds the purchase price specified
in the related Incentive Stock Option Agreement.
(b) Amount Payable. Upon the exercise of a Stock
Appreciation Right related to an Option, the Grantee shall be
entitled to receive an amount determined by multiplying (A) the
excess of the Fair Market Value of a Share on the date preceding
the date of exercise of such Stock Appreciation Right over the per
Share purchase price under the related Option, by (B) the number of
Shares as to which such Stock Appreciation Right is being
exercised. Notwithstanding the foregoing, the Committee may limit
in any manner the amount payable with respect to any Stock
Appreciation Right by including such a limit in the Agreement
evidencing the Stock Appreciation Right at the time it is granted.
(c) Treatment of Related Options and Stock Appreciation
Rights Upon Exercise. Upon the exercise of a Stock Appreciation
Right granted in connection with an Option, the Option shall be
canceled to the extent of the number of Shares as to which the
Stock Appreciation Right is exercised, and upon the exercise of an
Option granted in connection with a Stock Appreciation Right or the
surrender of such Option, the Stock Appreciation Right shall be
canceled to the extent of the number of Shares as to which the
Option is exercised or surrendered.
8.3 Stock Appreciation Right Unrelated to an Option. The
Committee may grant to Eligible Employees Stock Appreciation Rights
unrelated to Options. Stock Appreciation Rights unrelated to
Options shall contain such terms and conditions as to
exercisability (subject to Section 8.6), vesting and duration as
the Committee shall determine, but in no event shall they have a
term of greater than 10 years. Upon exercise of a Stock
Appreciation Right unrelated to an Option, the Grantee shall be
entitled to receive an amount determined by multiplying (A) the
excess of the Fair Market Value of a Share on the date preceding
the date of exercise of such Stock Appreciation Right over the Fair
Market Value of a Share on the date the Stock Appreciation Right
was granted, by (B) the number of Shares as to which the Stock
Appreciation Right is being exercised. Notwithstanding the
foregoing, the Committee may limit in any manner the amount payable
with respect to any Stock Appreciation Right by including such a
limit in the Agreement evidencing the Stock Appreciation Right at
the time it is granted.
8.4 Method of Exercise. Stock Appreciation Rights shall be
exercised by a Grantee only by a written notice received by the
Corporate Secretary or the President of the Company at the
Company's principal executive office, specifying the number of
Shares with respect to which the Stock Appreciation Right is being
exercised. If requested by the Committee, the Grantee shall
deliver the Agreement evidencing the Stock Appreciation Right being
exercised and the Agreement evidencing any related Option to the
Corporate Secretary or President of the Company who shall endorse
thereon a notation of such exercise and return such Agreement to
the Grantee.
8.5 Form of Payment. Payment of the amount determined under
Sections 8.2(b) or 8.3 may be made in the discretion of the
Committee, solely in whole Shares in a number determined at their
Fair Market Value on the date preceding the date of exercise of the
Stock Appreciation Right, or solely in cash, or in a combination of
cash and Shares. If the Committee decides to make full payment in
Shares and the amount payable results in a fractional Share,
payment for the fractional Share will be made in cash.
Notwithstanding the foregoing, no payment in the form of cash may
be made upon the exercise of a Stock Appreciation Right pursuant to
Sections 8.2(b) or 8.3 to an officer of the Company or a Subsidiary
who is subject to liability under Section 16(b) of the Exchange
Act, unless the exercise of such Stock Appreciation Right occurs
after the optionee has cleared such exercise pursuant to the
Company's pre-trading clearance policy.
8.6 Restrictions. Except as provided in Section 8.8, no
Stock Appreciation Right or portion thereof may be exercised before
the date which is six (6) months after the date of grant.
8.7 Modification or Substitution. Subject to the terms of
the Plan, the Committee may modify outstanding Awards of Stock
Appreciation Rights or accept the surrender of outstanding Awards
of Stock Appreciation Rights (to the extent not exercised) and
grant new Awards in substitution for them. Notwithstanding the
foregoing, no modification of an Award shall adversely alter or
impair any rights or obligations under the Agreement without the
Grantee's consent.
8.8 Effect of Change in Control. Notwithstanding anything
contained in this Plan to the contrary, in the event of a Change in
Control, all Stock Appreciation Rights shall become immediately and
fully exercisable. Notwithstanding Sections 8.3 and 8.5, upon the
exercise of a Stock Appreciation Right unrelated to an Option or
any portion thereof during the 60 day period following a Change in
Control, the amount payable shall be in cash and shall be an amount
equal to the excess, if any, of (A) the greater of (x) the Fair
Market Value, on the date preceding the date of exercise, of the
Shares subject to the Stock Appreciation Right or portion thereof
exercised and (y) the Adjusted Fair Market Value, on the date
preceding the date of exercise, of the Shares over (B) the
aggregate Fair Market Value, on the date the Stock Appreciation
Right was granted, of the Shares subject to the Stock Appreciation
Right or portion thereof exercised; provided, however, that in the
case of a Stock Appreciation Right granted within six (6) months
prior to the Change in Control to any Grantee who may be subject to
liability under Section 16(b) of the Exchange Act, such Grantee
shall be entitled to exercise his Stock Appreciation Right during
the 60 day period commencing upon the expiration of six (6) months
from the date of grant of any such Stock Appreciation Right.
9. Restricted Stock.
9.1 Grant. The Committee may grant to Eligible Employees
Awards of Restricted Stock, and may issue Shares of Restricted
Stock in payment in respect of vested Performance Units (as
hereinafter provided in Section 10.2), which shall be evidenced by
an Agreement between the Company and the Grantee. Each Agreement
shall contain such restrictions, terms and conditions as the
Committee may, in its discretion, determine and (without limiting
the generality of the foregoing) such Agreements may require that
an appropriate legend be placed on Share certificates. Awards of
Restricted Stock shall be subject to the terms and provisions set
forth below in this Section 9.
9.2 Rights of Grantee. Shares of Restricted Stock granted
pursuant to an Award hereunder shall be issued in the name of the
Grantee as soon as reasonably practicable after the Award is
granted provided that the Grantee has executed an Agreement
evidencing the Award, the appropriate blank stock powers and, in
the discretion of the Committee, an escrow agreement and any other
documents which the Committee may require as a condition to the
issuance of such Shares. If a Grantee shall fail to execute the
Agreement evidencing a Restricted Stock Award, the appropriate
blank stock powers and, in the discretion of the Committee, an
escrow agreement and any other documents which the Committee may
require within the time period prescribed by the Committee at the
time the Award is granted, the Award shall be null and void. At
the discretion of the Committee, Shares issued in connection with
a Restricted Stock Award shall be deposited together with the stock
powers with an escrow agent (which may be the Company) designated
by the Committee. Unless the Committee determines otherwise and as
set forth in the Agreement, upon delivery of the Shares to the
escrow agent, the Grantee shall have all of the rights of a
stockholder with respect to such Shares, including the right to
vote the Shares and to receive all dividends or other distributions
paid or made with respect to the Shares.
9.3 Non-Transferability. Until any restrictions upon the
Shares of Restricted Stock awarded to a Grantee shall have lapsed
in the manner set forth in Section 9.4, such Shares shall not be
sold, transferred or otherwise disposed of and shall not be pledged
or otherwise hypothecated, nor shall they be delivered to the
Grantee.
9.4 Lapse of Restrictions.
(a) Generally. Restrictions upon Shares of Restricted
Stock awarded hereunder shall lapse at such time or times and on
such terms and conditions as the Committee may determine, which
restrictions shall be set forth in the Agreement evidencing the
Award.
(b) Effect of Change in Control. Notwithstanding
anything contained in the Plan, unless the Agreement evidencing the
Award provides to the contrary, in the event of a Change in
Control, all restrictions upon any Shares of Restricted Stock shall
lapse immediately and all such Shares shall become fully vested in
the Grantee.
9.5 Modification or Substitution. Subject to the terms of
the Plan, the Committee may modify outstanding Awards of Restricted
Stock or accept the surrender of outstanding Shares of Restricted
Stock (to the extent the restrictions on such Shares have not yet
lapsed) and grant new Awards in substitution for them.
Notwithstanding the foregoing, no modification of an Award shall
adversely alter or impair any rights or obligations under the
Agreement without the Grantee's consent.
9.6 Treatment of Dividends. At the time the Award of Shares
of Restricted Stock is granted, the Committee may, in its
discretion, determine that the payment to the Grantee of dividends,
or a specified portion thereof, declared or paid on such Shares by
the Company shall be (i) deferred until the lapsing of the
restrictions imposed upon such Shares and (ii) held by the Company
for the account of the Grantee until such time. In the event that
dividends are to be deferred, the Committee shall determine whether
such dividends are to be reinvested in shares of Stock (which shall
be held as additional Shares of Restricted Stock) or held in cash.
If deferred dividends are to be held in cash, there may be credited
at the end of each year (or portion thereof) interest on the amount
of the account at the beginning of the year at a rate per annum as
the Committee, in its discretion, may determine. Payment of
deferred dividends in respect of Shares of Restricted Stock
(whether held in cash or as additional Shares of Restricted Stock),
together with interest accrued thereon, if any, shall be made upon
the lapsing of restrictions imposed on the Shares in respect of
which deferred dividends were paid, and any dividends deferred
(together with any interest accrued thereon) in respect of any
Shares of Restricted Stock shall be forfeited upon the forfeiture
of such Shares.
9.7 Delivery of Shares. Upon the lapse of the restrictions
on Shares of Restricted Stock, the Committee shall cause a stock
certificate to be delivered to the Grantee with respect to such
Shares, free of all restrictions hereunder.
10. Performance Awards.
10.1 Performance Objectives. Performance objectives for
Performance Awards may be expressed in terms of (i) earnings per
Share, (ii) pre-tax profits, (iii) net earnings or net worth,
(iv) return on equity or assets, (v) any combination of the
foregoing, or (vi) any other standard or standards deemed
appropriate by the Committee at the time the Award is granted.
Performance objectives may be in respect of the performance of the
Company and its Subsidiaries (which may be on a consolidated
basis), a Subsidiary or a Division. Performance objectives may be
absolute or relative and may be expressed in terms of a progression
within a specified range. Prior to the end of a Performance Cycle,
the Committee, in its discretion, may adjust the performance
objectives to reflect a Change in the Capitalization, a change in
the tax rate or book tax rate of the Company or any Subsidiary, or
any other event which may materially affect the performance of the
Company, a Subsidiary or a Division, including, but not limited to,
market conditions or a significant acquisition or disposition of
assets or other property by the Company, a Subsidiary or a
Division.
10.2 Performance Units. The Committee, in its discretion, may
grant Awards of Performance Units to Eligible Employees, the terms
and conditions of which shall be set forth in an Agreement between
the Company and the Grantee. Performance Units may be denominated
in Shares or a specified dollar amount and, contingent upon the
attainment of specified performance objectives within the
Performance Cycle, represent the right to receive payment as
provided in Section 10.2(b) of (i) in the case of Share-denominated
Performance Units, the Fair Market Value of a Share on the date the
Performance Unit was granted, the date the Performance Unit became
vested or any other date specified by the Committee, (ii) in the
case of dollar-denominated Performance Units, the specified dollar
amount or (iii) a percentage (which may be more than 100%) of the
amount described in clause (i) or (ii) depending on the level of
performance objective attainment; provided, however, that the
Committee may at the time a Performance Unit is granted, specify a
maximum amount payable in respect of a vested Performance Unit.
Each Agreement shall specify the number of the Performance Units
to which it relates, the performance objectives which must be
satisfied in order for the Performance Units to vest and the
Performance Cycle within which such objectives must be satisfied.
(a) Vesting and Forfeiture. A Grantee shall become
vested with respect to the Performance Units to the extent that the
performance objectives set forth in the Agreement are satisfied for
the Performance Cycle.
(b) Payment of Awards. Payment to Grantees in respect
of vested Performance Units shall be made within 60 days after the
last day of the Performance Cycle to which such Award relates
unless the Agreement evidencing the Award provides for the deferral
of payment, in which event the terms and conditions of the deferral
shall be set forth in the Agreement. Subject to Section 10.4, such
payments may be made entirely in Shares valued at their Fair Market
Value as of the last day of the applicable Performance Cycle or
such other date specified by the Committee, entirely in cash, or in
such combination of Shares and cash as the Committee in its
discretion, shall determine at any time prior to such payment;
provided, however, that if the Committee in its discretion
determines to make such payment entirely or partially in Shares of
Restricted Stock, the Committee must determine the extent to which
such payment will be in Shares of Restricted Stock and the terms of
such Restricted Stock at the time the Award is granted.
10.3 Performance Shares. The Committee, in its discretion,
may grant Awards of Performance Shares to Eligible Employees, the
terms and conditions of which shall be set forth in an Agreement
between the Company and the Grantee. Each Agreement may require
that an appropriate legend be placed on Share certificates. Awards
of Performance Shares shall be subject to the following terms and
provisions:
(a) Rights of Grantee. The Committee shall provide at
the time an Award of Performance Shares is made, the time or times
at which the actual Shares represented by such Award shall be
issued in the name of the Grantee; provided, however, that no
Performance Shares shall be issued until the Grantee has executed
an Agreement evidencing the Award, the appropriate blank stock
powers and, in the discretion of the Committee, an escrow agreement
and any other documents which the Committee may require as a
condition to the issuance of such Performance Shares. If a Grantee
shall fail to execute the Agreement evidencing an Award of
Performance Shares, the appropriate blank stock powers and, in the
discretion of the Committee, an escrow agreement and any other
documents which the Committee may require within the time period
prescribed by the Committee at the time the Award is granted, the
Award shall be null and void. At the discretion of the Committee,
Shares issued in connection with an Award of Performance Shares
shall be deposited together with the stock powers with an escrow
agent (which may be the Company) designated by the Committee.
Except as restricted by the terms of the Agreement, upon delivery
of the Shares to the escrow agent, the Grantee shall have, in the
discretion of the Committee, all of the rights of a stockholder
with respect to such Shares, including the right to vote the Shares
and to receive all dividends or other distributions paid or made
with respect to the Shares.
(b) Non-Transferability. Until any restrictions upon
the Performance Shares awarded to a Grantee shall have lapsed in
the manner set forth in Sections 10.3(c) or 10.4, such Performance
Shares shall not be sold, transferred or otherwise disposed of and
shall not be pledged or otherwise hypothecated, nor shall they be
delivered to the Grantee. The Committee may also impose such other
restrictions and conditions on the Performance Shares, if any, as
it deems appropriate.
(c) Lapse of Restrictions. Subject to Section 10.4,
restrictions upon Performance Shares awarded hereunder shall lapse
and such Performance Shares shall become vested at such time or
times and on such terms, conditions and satisfaction of performance
objectives as the Committee may, in its discretion, determine at
the time an Award is granted.
(d) Treatment of Dividends. At the time the Award of
Performance Shares is granted, the Committee may, in its
discretion, determine that the payment to the Grantee of dividends,
or a specified portion thereof, declared or paid on actual Shares
represented by such Award which have been issued by the Company to
the Grantee shall be (i) deferred until the lapsing of the
restrictions imposed upon such Performance Shares and (ii) held by
the Company for the account of the Grantee until such time. In the
event that dividends are to be deferred, the Committee shall
determine whether such dividends are to be reinvested in shares of
Stock (which shall be held as additional Performance Shares) or
held in cash. If deferred dividends are to be held in cash, there
may be credited at the end of each year (or portion thereof)
interest on the amount of the account at the beginning of the year
at a rate per annum as the Committee, in its discretion, may
determine. Payment of deferred dividends in respect of Performance
Shares (whether held in cash or in additional Performance Shares),
together with interest accrued thereon, if any, shall be made upon
the lapsing of restrictions imposed on the Performance Shares in
respect of which the deferred dividends were paid, and any
dividends deferred (together with any interest accrued thereon) in
respect of any Performance Shares shall be forfeited upon the
forfeiture of such Performance Shares.
(e) Delivery of Shares. Upon the lapse of the
restrictions on Performance Shares awarded hereunder, the Committee
shall cause a stock certificate to be mailed to the Grantee with
respect to such Shares, free of all restrictions hereunder.
10.4 Effect of Change in Control. Notwithstanding anything
contained in the Plan or any Agreement to the contrary, in the
event of a Change in Control:
(a) With respect to the Performance Units, the Grantee
shall (i) become vested in a percentage of Performance Units as
determined by the Committee at the time of the Award of such
Performance Units and as set forth in the Agreement and (ii) be
entitled to receive in respect of all Performance Units which
become vested as a result of a Change in Control, a cash payment
within 10 days after such Change in Control in an amount as
determined by the Committee at the time of the Award of such
Performance Unit and as set forth in the Agreement.
(b) With respect to the Performance Shares, all
restrictions shall lapse immediately on all or a portion of the
Performance Shares as determined by the Committee at the time of
the Award of such Performance Shares and as set forth in the
Agreement.
(c) The Agreements evidencing Performance Shares and
Performance Units shall provide for the treatment of such Awards
(or portions thereof) which do not become vested as the result of
a Change in Control, including, but not limited to, provisions for
the adjustment of applicable performance objectives.
10.5 Non-Transferability. No Performance Awards shall be
transferable by the Grantee otherwise than by will or the laws of
descent and distribution.
10.6 Modification or Substitution. Subject to the terms of
the Plan, the Committee may modify outstanding Performance Awards
or accept the surrender of outstanding Performance Awards and grant
new Performance Awards in substitution for them. Notwithstanding
the foregoing, no modification of a Performance Award shall
adversely alter or impair any rights or obligations under the
Agreement without the Grantee's consent.
11. Effect of a Termination of Employment. The Agreement
evidencing the grant of each Employee Option and each Award shall
set forth the terms and conditions applicable to such Employee
Option or Award upon a termination or change in the status of the
employment of the Optionee or Grantee by the Company, a Subsidiary
or a Division (including a termination or change by reason of the
sale of a Subsidiary or a Division), as the Committee may, in its
discretion, determine at the time the Employee Option or Award is
granted or thereafter.
12. Adjustment Upon Changes in Capitalization.
(a) In the event of a Change in Capitalization, the
Committee shall conclusively determine the appropriate adjustments,
if any, to the (i) maximum number and class of Shares or other
stock or securities with respect to which Options or Awards may be
granted under the Plan, (ii) the number and class of Shares or
other stock or securities which are subject to Director Options
issuable under Section 5; (iii) the number and class of Shares or
other stock or securities which are subject to outstanding Options
or Awards granted under the Plan, and the purchase price therefor,
if applicable; and (iv) the maximum award amount.
(b) Any such adjustment in the Shares or other stock or
securities subject to outstanding Incentive Stock Options
(including any adjustments in the purchase price) shall be made in
such manner as not to constitute a modification as defined by
Section 424(h)(3) of the Code and only to the extent otherwise
permitted by Sections 422 and 424 of the Code.
(c) Any stock adjustment in the Shares or other stock or
securities subject to outstanding Director Options (including any
adjustments in the purchase price) shall be made only to the extent
necessary to maintain the proportionate interest of the Optionee
and preserve, without exceeding, the value of such Director Option.
(d) If, by reason of a Change in Capitalization, a
Grantee of an Award shall be entitled to, or an Optionee shall be
entitled to exercise an Option with respect to, new, additional or
different shares of stock or securities, such new additional or
different shares shall thereupon be subject to all of the
conditions, restrictions and performance criteria which were
applicable to the Shares subject to the Award or Option, as the
case may be, prior to such Change in Capitalization.
13. Effect of Certain Transactions. Subject to Sections 7.7,
8.8, 9.4(b) and 10.4, in the event of (i) the liquidation or
dissolution of the Company or (ii) a merger or consolidation of the
Company (a "Transaction"), the Plan and the Options and Awards
issued hereunder shall continue in effect in accordance with their
respective terms and each Optionee and Grantee shall be entitled to
receive in respect of each Share subject to any outstanding Options
or Awards, as the case may be, upon exercise of any Option or
payment or transfer in respect of any Award, the same number and
kind of stock, securities, cash, property, or other consideration
that each holder of a Share was entitled to receive in the
Transaction in respect of a Share.
14. Termination and Amendment of the Plan. The Plan shall
terminate on the day preceding the tenth anniversary of the date of
its adoption by the Board and no Option or Award may be granted
thereafter. The Board may sooner terminate the Plan and the Board
may at any time and from time to time amend, modify or suspend the
Plan; provided, however, that:
(a) No such amendment, modification, suspension or
termination shall impair or adversely alter any Options or Awards
theretofore granted under the Plan, except with the consent of the
Optionee or Grantee, nor shall any amendment, modification,
suspension or termination deprive any Optionee or Grantee of any
Shares which he or she may have acquired through or as a result of
the Plan; and
(b) To the extent necessary under applicable law, no
amendment shall be effective unless approved by the stockholders of
the Company in accordance with applicable law and regulations.
15. Non-Exclusivity of the Plan. The adoption of the Plan by
the Board shall not be construed as amending, modifying or
rescinding any previously approved incentive arrangement or as
creating any limitations on the power of the Board to adopt such
other incentive arrangements as it may deem desirable, including,
without limitation, the granting of stock options otherwise than
under the Plan, and such arrangements may be either applicable
generally or only in specific cases.
16. Limitation of Liability. As illustrative of the
limitations of liability of the Company, but not intended to be
exhaustive thereof, nothing in the Plan shall be construed to:
(i) give any person any right to be granted an Option or
Award other than at the sole discretion of the Committee;
(ii) give any person any rights whatsoever with respect to
Shares except as specifically provided in the Plan;
(iii) limit in any way the right of the Company to
terminate the employment of any person at any time; or
(iv) be evidence of any agreement or understanding, expressed
or implied, that the Company will employ any person at any
particular rate of compensation or for any particular period of
time.
17. Regulations and Other Approvals; Governing Law.
17.1 Except as to matters of federal law, this Plan and the
rights of all persons claiming hereunder shall be construed and
determined in accordance with the laws of the State of Delaware
without giving effect to conflicts of law principles.
17.2 The obligation of the Company to sell or deliver Shares
with respect to Options and Awards granted under the Plan shall be
subject to all applicable laws, rules and regulations, including
all applicable federal and state securities laws, and the obtaining
of all such approvals by governmental agencies as may be deemed
necessary or appropriate by the Committee.
17.3 The Plan is intended to comply with Rule 16b-3
promulgated under the Exchange Act and the Committee shall
interpret and administer the provisions of the Plan or any
Agreement in a manner consistent therewith. Any provisions
inconsistent with such Rule shall be inoperative and shall not
affect the validity of the Plan.
17.4 The Board may make such changes as may be necessary or
appropriate to comply with the rules and regulations of any
government authority, or to obtain for Eligible Employees granted
Incentive Stock Options the tax benefits under the applicable
provisions of the Code and regulations promulgated thereunder.
17.5 Each Option and Award is subject to the requirement that,
if at any time the Committee determines, in its discretion, that
the listing, registration or qualification of Shares issuable
pursuant to the Plan is required by any securities exchange or
under any state or federal law, or the consent or approval of any
governmental regulatory body is necessary or desirable as a
condition of, or in connection with, the grant of an Option or
Award or the issuance of Shares, no Options or Awards shall be
granted or payment made or Shares issued, in whole or in part,
unless listing, registration, qualification, consent or approval
has been effected or obtained free of any conditions as acceptable
to the Committee.
17.6 Notwithstanding anything contained in the Plan or any
Agreement to the contrary, in the event that the disposition of
Shares acquired pursuant to the Plan is not covered by a then
current registration statement under the Securities Act of 1933, as
amended, and is not otherwise exempt from such registration, such
Shares shall be restricted against transfer to the extent required
by the Securities Act of 1933, as amended, and Rule 144 or other
regulations thereunder. The Committee may require any individual
receiving Shares pursuant to an Option or Award granted under the
Plan, as a condition precedent to receipt of such Shares, to
represent and warrant to the Company in writing that the Shares
acquired by such individual are acquired without a view to any
distribution thereof and will not be sold or transferred other than
pursuant to an effective registration thereof under said Act or
pursuant to an exemption applicable under the Securities Act of
1933, as amended, or the rules and regulations promulgated
thereunder. The certificates evidencing any of such Shares shall
be appropriately amended to reflect their status as restricted
securities as aforesaid.
17.7 Limitation on Awards and Options. Notwithstanding the
foregoing, the Committee shall not grant share-based Awards and
Options relating to more than 250,000 Shares to any Eligible
Employee during any fiscal year of the Company. For the purposes
of this Section, the grant of an Option to purchase Shares and a
Stock Appreciation Right in connection therewith shall be deemed to
relate to the same Shares. The 250,000 limit shall be subject to
adjustment as provided in Section 12. In addition, the Committee
shall not grant dollar-based awards under this Plan in excess of
$250,000 to any Eligible Employee during any fiscal year of the
Company.
18. Miscellaneous.
18.1 Multiple Agreements. The terms of each Option or Award
may differ from other Options or Awards granted under the Plan at
the same time, or at some other time. The Committee may also grant
more than one Option or Award to a given Eligible Employee during
the term of the Plan, either in addition to, or in substitution
for, one or more Options or Awards previously granted to that
Eligible Employee.
18.2 Withholding of Taxes. (a) The Company shall have the
right to deduct from any distribution of cash to any Optionee or
Grantee, an amount equal to the federal, state and local income
taxes and other amounts as may be required by law to be withheld
(the "Withholding Taxes") with respect to any Option or Award. If
an Optionee or Grantee is to experience a taxable event in
connection with the receipt of Shares pursuant to an Option
exercise or payment of an Award (a "Taxable Event"), the Optionee
or Grantee shall pay the Withholding Taxes to the Company prior to
the issuance, or release from escrow, of such Shares. In
satisfaction of the obligation to pay Withholding Taxes to the
Company, the Optionee or Grantee may make a written election (the
"Tax Election") to have withheld a portion of the Shares then
issuable to him or her having an aggregate Fair Market Value, on
the date preceding the date of such issuance, equal to the
Withholding Taxes. Notwithstanding the foregoing, the Committee
may, by the adoption of rules or otherwise, modify the provisions
of this Section 18.2 or impose such other restrictions or
limitations on Tax Elections as may be necessary to ensure that the
Tax Elections will be exempt transactions under Section 16(b) of
the Exchange Act.
(b) If an Optionee makes a disposition, within the
meaning of Section 424(c) of the Code and regulations promulgated
thereunder, of any Share or Shares issued to such Optionee pursuant
to the exercise of an Incentive Stock Option within the two-year
period commencing on the day after the date of the grant or within
the one-year period commencing on the day after the date of
transfer of such Share or Shares to the Optionee pursuant to such
exercise, the Optionee shall, within 10 days of such disposition,
notify the Company thereof, by delivery of written notice to the
Company at its principal executive office.
(c) The Committee shall have the authority, at the time
of grant of an Employee Option or Award under the Plan or at any
time thereafter, to award tax bonuses to designated Optionees or
Grantees, to be paid upon their exercise of Employee Options or
payment in respect of Awards granted hereunder. The amount of any
such payments shall be determined by the Committee. The Committee
shall have full authority in its absolute discretion to determine
the amount of any such tax bonus and the terms and conditions
affecting the vesting and payment thereof.
19. Effective Date. The effective date of the Plan shall be
January 22, 1994.
SEC\EDGAR\PlanAmd.wpd
EXHIBIT 4.5(a)
FIRST AMENDMENT TO O'SULLIVAN INDUSTRIES HOLDINGS, INC.
AMENDED AND RESTATED 1994 INCENTIVE STOCK PLAN
THIS FIRST AMENDMENT to the O'Sullivan Industries
Holdings, Inc. Amended and Restated 1994 Incentive Stock Plan is
adopted effective November 14, 1996.
W I T N E S S E T H:
WHEREAS, the O'Sullivan Industries Holdings, Inc. 1994
Incentive Stock Plan was approved and adopted by the Board of
Directors of O'Sullivan Industries Holdings, Inc. (the "Company")
on January 22, 1994 and was approved by the sole stockholder of the
Company on January 26, 1994; and
WHEREAS, the O'Sullivan Industries Holdings, Inc. 1994
Incentive Stock Plan was amended and restated (as so amended and
restated, the "Plan") effective September 20, 1996 by action of the
Board of Directors of the Company, which amendment and restatement
was approved by the stockholders of the Company at the annual
meeting held on November 14, 1996; and
WHEREAS, the Board of Directors of the Company wishes to
make certain additional amendments to the Plan;
NOW, THEREFORE, the Plan is hereby amended as follows:
1. Section 4.1.
(a) The first sentence of Section 4.1 of the Plan is hereby
amended to read as follows: "The maximum number of Shares that
may be made the subject of Options and Awards granted under
the Plan is 2,000,000."
(b) A new sentence is hereby added as the second sentence of
Section 4.1, to read as follows: "Of the 2,000,000 Shares
subject to the Plan, no more than an aggregate of 300,000
Shares shall be the subject of grants of Restricted Stock or
Performance Units."
2. Section 6.5. The last sentence of Section 6.5 of the Plan is
hereby amended to read as follows:
Notwithstanding the foregoing, (i) no modification of
an Employee Option shall adversely alter or impair any
rights or obligations under the Employee Option
without the Optionee's consent, and (ii) no
modification or surrender of an outstanding option and
the grant of new options in substitution for them
which results in a Purchase Price (as defined in
Section 6.2 hereof) that is lower than the Purchase
Price of the originally issued Option shall be
effective until authorized by the stockholders of the
Corporation.
All other terms and provisions of the Plan and all
Awards and Options granted under the Plan shall remain in full
force and effect. Capitalized terms used herein without
definition shall have the respective meanings assigned to them
in the Plan.
SEC\EDGAR\1PlanAmd.wpd
EXHIBIT 4.7
FORM OF ANNUAL GRANT NONQUALIFIED STOCK OPTION
___________________________________________________________
O'SULLIVAN INDUSTRIES HOLDINGS,INC.
AMENDED AND RESTATED 1994 INCENTIVE STOCK PLAN
NONQUALIFIED STOCK OPTION AGREEMENT
NSO # 94-__________________
THIS AGREEMENT, made as of the ____ day of _________, _____
(the "Grant Date"), between O'Sullivan Industries Holdings, Inc.,
a Delaware corporation (the "Company"), and ___________________
(the "Optionee").
WHEREAS, the Company has adopted the O'Sullivan Industries
Holdings, Inc. 1994 Amended and Restated Incentive Stock Plan (the
"Plan") in order to provide an additional incentive to certain
officers and employees of the Company and its subsidiaries; and
WHEREAS, the Compensation Committee of the Company has
determined that options are to be granted to selected key employees
to further the purposes of the Plan, as provided therein;
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant of Option.
1.1 The Company hereby grants to the Optionee the right and
option (the "Option") to purchase all or any part of an aggregate
of _____________ whole shares of common stock, par value $1.00 per
share, of the Company ("Shares") subject to, and in accordance
with, the terms and conditions set forth in this Agreement.
1.2 The Option is not intended to qualify as an Incentive
Stock Option within the meaning of Section 422 of the Code.
1.3 This Agreement shall be construed in accordance and
consistent with, and subject to, the provisions of the Plan (the
provisions of which are incorporated herein by reference) and,
except as otherwise expressly set forth herein, the capitalized
terms used in this Agreement shall have the same definitions as set
forth in the Plan.
2. Purchase Price.
The price at which the Optionee shall be entitled to purchase
Shares upon the exercise of the Option shall be $_________ per
Share (the "Purchase Price").
3. Duration of Option.
The Option shall be exercisable to the extent and in the
manner provided in Section 4 hereof for a period of 10 years from
the Grant Date (the "Exercise Term"); provided, however, that the
Option may be earlier terminated as provided in Section 6 hereof.
4. Exercisability of Option.
Unless otherwise provided in this Agreement or the Plan, the
Option shall entitle the Optionee to purchase, in whole at any time
or in part from time to time, one-fifth of the total number of
Shares covered by the Option after the expiration of one year from
the Grant Date and an additional one-fifth of the total number of
Shares covered by the Option after the expiration of each of the
second, third, fourth and fifth anniversaries of the Grant Date,
and each such right of purchase shall be cumulative and shall
continue, unless sooner exercised or terminated as herein provided,
during the remaining period of the Exercise Term. Any fractional
number of Shares resulting from the application of the formula set
forth in this Section 4 shall be rounded to the next higher whole
number of Shares in the first (and second if necessary) year, but
no more than the number granted shall result from the rounding up.
5. Manner of Exercise and Payment.
5.1 Subject to the terms and conditions of this Agreement and
the Plan, the Option shall be exercised by timely delivery of
written notice to the Company, in person or by certified mail
return receipt requested to the Secretary of the Company at its
principal executive office. Such notice shall state that the
Optionee is electing to exercise the Option and the number of
Shares in respect of which the Option is being exercised and shall
be signed by the person or persons exercising the Option. If
requested by the Committee, such person or persons shall
(i) deliver this Agreement to the Secretary of the Company who
shall endorse thereon a notation of such exercise and (ii) provide
satisfactory proof as to the right of such person or persons to
exercise the Option.
5.2 The notice of exercise described in Section 5.1 shall be
accompanied by the full Purchase Price for the Shares in respect of
which the Option is being exercised, in cash or by certified or
cashier's check, or, in the discretion of the Committee, in whole
or in part by transferring Shares to the Company having a Fair
Market Value on the day preceding the date of exercise equal to the
cash amount for which such Shares are substituted.
5.3 Upon timely receipt of notice of exercise and full
payment for the Shares in respect of which the Option is being
exercised, the Company shall, subject to Section 17 of the Plan,
take such action as may be necessary to effect the transfer to the
Optionee of the number of Shares as to which such exercise was
effective.
5.4 The Optionee shall not be deemed to be the holder of, or
to have any of the rights of a holder with respect to, any Shares
subject to the Option until (i) the Option shall have been
exercised pursuant to the terms of this Agreement and the Optionee
shall have paid the full Purchase Price for the number of Shares in
respect of which the Option was exercised, (ii) the Company shall
have issued and delivered the Shares to the Optionee and (iii) the
Optionee's name shall have been entered as a stockholder of record
with respect to the Shares on the books of the Company, whereupon
the Optionee shall have full voting and other ownership rights with
respect to such Shares.
6. Termination of Employment.
6.1 Termination of Option. The Option shall expire and
become null and void upon the happening of whichever of the
following events shall first occur: (a) the Optionee ceases to be
employed by the Company or any of its subsidiaries for any reason
other than death, Disability, retirement at age 55 or older
("Retirement") or for any reason within two years following a
Change in Control, (b) a period of 12 months shall have elapsed
since the Optionee's death, Disability, Retirement or termination
for any reason within two years following a Change in Control or
(c) the Exercise Term expires. Except as provided in Section 6.2
below, only those portions of the Option exercisable as of the date
of termination of the Optionee's employment may be exercised,
whether such termination is by retirement or otherwise.
6.2 Acceleration of Exercise Dates. Notwithstanding the
provisions of Section 4 above relating to the exercise of the
Option in installments: (a) upon the Optionee's death, Disability
or Retirement the Committee may, in its discretion, permit the
Option to be immediately exercisable, for the entire number of
Shares covered hereby, and (b) upon any Change in Control of the
Company the Option shall become exercisable as provided below in
Section 7(i). No portion of the Option shall be exercisable after
expiration of the Option as provided in Section 6.1.
7. Effect of Change in Control.
Notwithstanding anything contained in this Agreement to the
contrary, in the event of a Change in Control, (i) the Option shall
become immediately and fully exercisable through the expiration of
the Option as provided in Section 6.1 and (ii) the Optionee will be
permitted to surrender for cancellation within 60 days after such
Change in Control, the Option or any portion of the Option to the
extent not yet exercised and the Optionee shall be entitled to
receive immediately a cash payment in an amount equal to the
excess, if any, of (A) the greater of (1) the Fair Market Value, on
the date preceding the date of the surrender, of the Shares subject
to the Option or portion of the Option surrendered or (2) the
Adjusted Fair Market Value of the Shares subject to the Option or
the portion of the Option surrendered, over (B) the aggregate
Purchase Price for such Shares under the Option or portion of the
Option surrendered; provided, however, that if the Option was
granted within six months prior to the Change in Control and the
Optionee may be subject to liability under Section 16(b) of the
Exchange Act, the Optionee shall be entitled to surrender
for cancellation the Option or any portion of the Option during the
60 day period commencing upon the expiration of six months from the
Grant Date and receive the amount described above with respect to
such surrender for cancellation.
8. Non-transferability.
The Option shall not be transferable other than by will or by
the laws of descent and distribution. During the lifetime of the
Optionee, the Option shall be exercisable only by the Optionee or
the Optionee's personal representative.
9. No Right to Continued Employment.
Nothing in this Agreement or the Plan shall be interpreted or
construed to confer upon the Optionee any right with respect to
continuance of employment by the Company, nor shall this Agreement
or the Plan interfere in any way with the right of the Company to
terminate the Optionee's employment at any time.
10. Adjustments.
In the event of a Change in Capitalization, the Committee may
make appropriate adjustments to the number and class of Shares or
other stock or securities subject to the Option and the Purchase
Price for such Shares or other stock or securities. The
Committee's adjustment shall be made in accordance with the
provisions of Section 12 of the Plan and shall be effective and
final, binding and conclusive for all purposes of the Plan and this
Agreement.
11. Effect of Certain Transactions.
Subject to Section 7 hereof, upon the effective date of
(i) the liquidation or dissolution of the Company or (ii) a merger
or consolidation of the Company (a "Transaction"), the Option shall
continue in effect in accordance with its terms and the Optionee
shall be entitled to receive in respect of all Shares subject to
the Option, upon exercise of the Option, the same number and kind
of stock, securities, cash, property or other consideration that
each holder of Shares was entitled to receive in the Transaction.
12. Withholding of Taxes.
The Company shall have the right to deduct from any
distribution of cash to the Optionee, an amount equal to the
federal, state and local income taxes and other amounts as may be
required by law to be withheld (the "Withholding Taxes") with
respect to the Option. If the Optionee is to experience a taxable
event in connection with the receipt of Shares pursuant to an
Option exercise (a "Taxable Event"), the Optionee shall pay the
Withholding Taxes to the Company prior to the issuance, or release
from escrow, of such Shares. In satisfaction of the obligation to
pay Withholding Taxes to the Company, the Optionee may make a
written election (the "Tax Election"), which may be accepted or
rejected in the discretion of the Committee, to have withheld a
portion of the Shares then issuable to the Optionee having an
aggregate Fair Market Value, on the date preceding the date of such
issuance, equal to the Withholding Taxes, provided that if the
Optionee may be subject to liability under Section 16(b) of the
Exchange Act either: (i) (A) the Tax Election is made at least six
months prior to the date of the Taxable Event and (B) the Tax
Election is irrevocable with respect to all Taxable Events of a
similar nature occurring prior to the expiration of six months
following a revocation of the Tax Election, or (ii) (A) the
Optionee makes the Tax Election at least six months after the date
the Option was granted, (B) the Option is exercised during the 10
day period beginning on the third business day and ending on the
12th business day following the release for publication of the
Company's quarterly or annual statement of sales and earnings (a
"Window Period") and (C) the Tax Election is made during the Window
Period in which the related Option is exercised or prior to such
Window Period and subsequent to the immediately preceding Window
Period.
13. Optionee Bound by the Plan.
The Optionee hereby acknowledges receipt of a copy of the Plan
and agrees to be bound by all the terms and provisions thereof.
The Optionee hereby acknowledges receipt of the Prospectus for the
Plan dated February 16, 1994.
14. Modification of Agreement.
This Agreement may be modified, amended, suspended or
terminated, and any terms or conditions may be waived, but only by
a written instrument executed by the parties hereto.
15. Severability.
Should any provision of this Agreement be held by a court of
competent jurisdiction to be unenforceable or invalid for any
reason, the remaining provisions of this Agreement shall not be
affected by such holding and shall continue in full force in
accordance with their terms.
16. Governing Law and Forum.
The validity, interpretation, construction and performance of
this Agreement shall be governed by the laws of the state of
Delaware without giving effect to the conflicts of laws principles
thereof. Any suit brought under this Agreement may be brought in
the appropriate state or federal court for Barton County, Missouri,
or for the county wherein the Optionee maintains his residence.
Any suit brought by the Company under this Agreement may only be
brought in the county wherein the Optionee maintains his residence
unless the Optionee consents to suit elsewhere.
17. Successors in Interest.
This Agreement shall inure to the benefit of and be binding
upon any Successor Corporation. This Agreement shall inure to the
benefit of the Optionee's legal representatives. All obligations
imposed upon the Optionee and all rights granted to the Company
under this Agreement shall be final, binding and conclusive upon
the Optionee's heirs, executors, administrators, personal
representatives and successors.
18. Resolution of Disputes.
Any dispute or disagreement which may arise under, or as a
result of, or in any way relate to, the interpretation,
construction or application of this Agreement shall be determined
by the Committee. Any determination made hereunder shall be final,
binding and conclusive on the Optionee and Company for all
purposes.
19. Entire Agreement.
This Agreement, together with the documents incorporated
herein by reference, represents the entire agreement between the
parties with regards to the subject matter hereof and this
Agreement may not be modified by any oral or written agreement
unless same is in writing, signed by both parties and has been
approved by the Committee.
20. Effective.
To be effective this Agreement must be executed by the
Optionee and received by the Secretary of the Company within 30
days of your receipt of this Agreement. Please retain one copy of
this Agreement for your records.
O'SULLIVAN INDUSTRIES HOLDINGS, INC.
By:_____________________________________
ATTEST:
________________________________________
________________________________________
(Optionee's Signature)
(Optionee's Social Security No. )
<PAGE>
EXHIBIT A
NOTICE OF EXERCISE OF NONQUALIFIED STOCK OPTION
AMENDED AND RESTATED 1994 INCENTIVE STOCK PLAN
O'SULLIVAN INDUSTRIES HOLDINGS, INC.
1. I hereby exercise the Option granted to me by
Nonqualified Stock Option Agreement #__________ dated _______,
_____, as to ______________ shares of the Common Stock subject
thereto.
2. I deliver herewith a certified or bank cashier's check
for $__________ [and/or certificate
No.(s) __________________________________ for an aggregate of
______________ shares of outstanding common stock of O'Sullivan
Industries Holdings, Inc.] in full payment for said shares at the
Option price of $________ per share.
3. I have enclosed (if stock certificates are tendered,
but not otherwise) a properly executed form of stock power for the
transfer of any shares of O'Sullivan Industries Holdings, Inc.
stock tendered in payment. If the stock certificates are for more
shares than are required for full payment, a certificate for the
excess shares is to be returned to me.
4. My social security number is ______________
5. My name* and address on the Company's records should
be as follows:
Name:_____________________________________
Address:___________________________________
__________________________________________
SIGNED this ____ day of ___________________, ______.
________________________________________
(Optionee's Signature)
* If joint ownership with spouse is desired, insert both names.
Registration will be as joint tenants with right of survivorship.
If joint ownership is not desired, show Optionee name only.
SEC\EDGAR\NSOPros.wpd
EXHIBIT 4.8
FORM OF ANNUAL GRANT TO NON-EMPLOYEE DIRECTOR
OF NONQUALIFIED STOCK OPTION
_______________________________________
O'SULLIVAN INDUSTRIES HOLDINGS,INC.
AMENDED AND RESTATED 1994 INCENTIVE STOCK PLAN
NONQUALIFIED STOCK OPTION AGREEMENT
FOR NON-EMPLOYEE DIRECTOR
NSO # 94-_____
THIS AGREEMENT, made as of the ____ day of _________, _____
(the "Grant Date"), between O'Sullivan Industries Holdings, Inc.,
a Delaware corporation (the "Company"), and
________________________________________ ( "Optionee").
WHEREAS, the Company has adopted the O'Sullivan Industries
Holdings, Inc. Amended and Restated 1994 Incentive Stock Plan (the
"Plan") in order to provide an additional incentive to its non-employee
directors and certain officers and employees of the Company and its
subsidiaries; and
WHEREAS, the Plan provides for the automatic grant of options
to non-employee directors on September 1 of each year;
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant of Option.
1.1 The Company hereby grants to the Optionee the right and
option (the "Option") to purchase all or any part of an aggregate
of ______ whole shares of common stock, par value $1.00 per share,
of the Company ("Shares") subject to, and in accordance with, the
terms and conditions set forth in this Agreement.
1.2 The Option is not intended to qualify as an Incentive
Stock Option within the meaning of Section 422 of the Code.
1.3 This Agreement shall be construed in accordance and
consistent with, and subject to, the provisions of the Plan (the
provisions of which are incorporated herein by reference) and,
except as otherwise expressly set forth herein, the capitalized
terms used in this Agreement shall have the same definitions as set
forth in the Plan.
2. Purchase Price.
The price at which the Optionee shall be entitled to purchase
Shares upon the exercise of the Option shall be $________ per Share
(the "Purchase Price").
3. Duration of Option.
The Option shall be exercisable to the extent and in the
manner provided in Section 4 hereof for a period of 10 years from
the Grant Date (the "Exercise Term") and shall accordingly
terminate at the close of business on the tenth anniversary of the
date of grant of the Option; provided, however, that the Option may
be earlier terminated as provided in Section 6 hereof.
4. Exercisability of Option.
Unless otherwise provided in this Agreement or the Plan, the
Option shall entitle the Optionee to purchase, in whole at any time
or in part from time to time, one-third of the total number of
Shares covered by the Option after the expiration of one (1) year
from the Grant Date and an additional one-third of the total number
of Shares covered by the Option after the expiration of each of the
second and third anniversaries of the Grant Date, and each such
right of purchase shall be cumulative and shall continue, unless
sooner exercised or terminated as herein provided, during the
remaining period of the Exercise Term. Any fractional number of
Shares resulting from the application of the formula set forth in
this Section 4 shall be rounded to the next higher whole number of
Shares in the first (and second if necessary) year, but no more
than the number granted shall result from the rounding up.
5. Manner of Exercise and Payment.
5.1 Subject to the terms and conditions of this Agreement and
the Plan, the Option shall be exercised by timely delivery of
written notice to the Company, in person or by certified mail
return receipt requested to the Secretary of the Company at its
principal executive office. Such notice shall state that the
Optionee is electing to exercise the Option and the number of
Shares in respect of which the Option is being exercised and shall
be signed by the person or persons exercising the Option. If
requested by the Committee, such person or persons shall
(i) deliver this Agreement to the Secretary of the Company who
shall endorse thereon a notation of such exercise and (ii) provide
satisfactory proof as to the right of such person or persons to
exercise the Option.
5.2 The notice of exercise described in Section 5.1 shall be
accompanied by the full Purchase Price for the Shares in respect of
which the Option is being exercised, in cash or by certified or
cashier's check, or in whole or in part by transferring Shares to
the Company having a Fair Market Value on the day preceding the
date of exercise equal to the cash amount for which such Shares are
substituted.
5.3 Upon timely receipt of notice of exercise and full
payment for the Shares in respect of which the Option is being
exercised, the Company shall, subject to Section 17 of the Plan,
take such action as may be necessary to effect the transfer to the
Optionee of the number of Shares as to which such exercise was
effective.
5.4 The Optionee shall not be deemed to be the holder of, or
to have any of the rights of a holder with respect to any Shares
subject to the Option until (i) the Option shall have been
exercised pursuant to the terms of this Agreement and the Optionee
shall have paid the full Purchase Price for the number of Shares in
respect of which the Option was exercised, (ii) the Company shall
have issued and delivered the Shares to the Optionee, and (iii) the
Optionee's name shall have been entered as a stockholder of record
with respect to the Shares on the books of the Company, whereupon
the Optionee shall have full voting and other ownership rights with
respect to such Shares.
6. Termination of Service as a Director.
6.1 Termination of Option.
(a) If the Optionee's service as a Director terminates
for any reason other than Retirement, resignation, removal from the
Board due to Disability, death or Cause, he may, for a period of
three months after such termination, exercise the Option to the
extent, and only to the extent, that such Option or portion thereof
was vested and exercisable as of the date the Optionee's service as
a Director terminated, after which time the Option shall
automatically terminate in full.
(b) If the Optionee's service as a Director terminates
by reason of his Retirement or by resignation or removal from the
Board due to Disability, he may, for a period of twelve months
after such termination, exercise the Option to the extent, and only
to the extent that the Option or portion thereof was vested and
exercisable, as of the date his service as a Director terminated,
after which time the Option shall automatically terminate in full.
(c) If the Optionee's service as a Director terminates
for Cause, the Option shall immediately terminate in full and no
rights thereunder or hereunder may be exercised.
(d) If the Optionee dies while a Director or within
three months after termination of service as a Director as
described in clause (a) or (b) of this Section 6.1, the Option may
be exercised at any time within twelve months after his death by
the person or persons to whom such rights under the Option shall
pass by will, or by the laws of descent or distribution, after
which time the Option shall terminate in full; provided, however,
that the Option may be exercised to the extent, and only to the
extent, that the Option or portion thereof was exercisable on the
date of death or earlier termination of the Optionee's services as
a Director.
6.2 Acceleration of Exercise Dates. Notwithstanding the
provisions of Section 4 above relating to the exercise of the
Option in installments, upon any Change in Control of the Company
the Option shall become exercisable as provided below in Section
7(i). No portion of the Option shall be exercisable after
expiration of the Option as provided in Section 6.1.
7. Effect of Change in Control.
Notwithstanding anything contained in this Agreement to the
contrary, in the event of a Change in Control, (i) the Option shall
become immediately and fully exercisable through the expiration of
the Option as provided in Section 6.1 and (ii) the Optionee will be
permitted to surrender for cancellation within 60 days after such
Change in Control, the Option or any portion of the Option to the
extent not yet exercised and the Optionee shall be entitled to
receive immediately a cash payment in an amount equal to the
excess, if any, of (A) the greater of (1) the Fair Market Value, on
the date preceding the date of the surrender, of the Shares subject
to the Option or portion of the Option surrendered or (2) the
Adjusted Fair Market Value of the Shares subject to the Option or
the portion of the Option surrendered, over (B) the aggregate
Purchase Price for such Shares under the Option or portion of the
Option surrendered; provided, however, that if the Option was
granted within six (6) months prior to the Change in Control and
the Optionee may be subject to liability under Section 16(b) of the
Exchange Act, the Optionee shall be entitled to surrender
for cancellation the Option or any portion of the Option during the
60 day period commencing upon the expiration of six (6) months from
the Grant Date and receive the amount described above with respect
to such surrender for cancellation.
8. Non-transferability.
The Option shall not be transferable other than by will or by
the laws of descent and distribution. During the lifetime of the
Optionee, the Option shall be exercisable only by the Optionee or
the Optionee's personal representative.
9. No Right to Continued Service as a Director.
Nothing in this Agreement or the Plan shall be interpreted or
construed to confer upon the Optionee any right with respect to
continuance of service as a Director of the Company, nor shall this
Agreement or the Plan interfere in any way with the right of the
Company to terminate the Optionee's service as a Director of the
Company at any time.
10. Adjustments.
In the event of a Change in Capitalization, the Committee may
make appropriate adjustments to the number and class of Shares or
other stock or securities subject to the Option and the Purchase
Price for such Shares or other stock or securities. The
Committee's adjustment shall be made in accordance with the
provisions of Section 12 of the Plan and shall be effective and
final, binding and conclusive for all purposes of the Plan and this
Agreement.
11. Effect of Certain Transactions.
Subject to Section 7 hereof, upon the effective date of
(i) the liquidation or dissolution of the Company or (ii) a merger
or consolidation of the Company (a "Transaction"), the Option shall
continue in effect in accordance with its terms and the Optionee
shall be entitled to receive in respect of all Shares subject to
the Option, upon exercise of the Option, the same number and kind
of stock, securities, cash, property or other consideration that
each holder of Shares was entitled to receive in the Transaction.
12. Withholding of Taxes.
The Company shall have the right to deduct from any
distribution of cash to the Optionee, an amount equal to the
federal, state and local income taxes and other amounts as may be
required by law to be withheld (the "Withholding Taxes") with
respect to the Option. If the Optionee is to experience a taxable
event in connection with the receipt of Shares pursuant to an
Option exercise (a "Taxable Event"), the Optionee shall pay the
Withholding Taxes to the Company prior to the issuance, or release
from escrow, of such Shares. In satisfaction of the obligation to
pay Withholding Taxes to the Company, the Optionee may make a
written election (the "Tax Election"), which may be accepted or
rejected in the discretion of the Committee, to have withheld a
portion of the Shares then issuable to the Optionee having an
aggregate Fair Market Value, on the date preceding the date of such
issuance, equal to the Withholding Taxes, provided that if the
Optionee may be subject to liability under Section 16(b) of the
Exchange Act either: (i) (A) the Tax Election is made at least six
(6) months prior to the date of the Taxable Event and (B) the Tax
Election is irrevocable with respect to all Taxable Events of a
similar nature occurring prior to the expiration of six (6) months
following a revocation of the Tax Election, or (ii) (A) the
Optionee makes the Tax Election at least six (6) months after the
date the Option was granted, (B) the Option is exercised during the
10 day period beginning on the third business day and ending on the
12th business day following the release for publication of the
Company's quarterly or annual statement of sales and earnings (a
"Window Period") and (C) the Tax Election is made during the
Window Period in which the related Option is exercised or prior to
such Window Period and subsequent to the immediately preceding
Window Period.
13. Optionee Bound by the Plan.
The Optionee hereby acknowledges receipt of a copy of the Plan
and agrees to be bound by all the terms and provisions thereof.
The Optionee hereby acknowledges receipt of the Prospectus for the
Plan dated February 16, 1994.
14. Modification of Agreement.
This Agreement may be modified, amended, suspended or
terminated, and any terms or conditions may be waived, but only by
a written instrument executed by the parties hereto.
15. Severability.
Should any provision of this Agreement be held by a court of
competent jurisdiction to be unenforceable or invalid for any
reason, the remaining provisions of this Agreement shall not be
affected by such holding and shall continue in full force in
accordance with their terms.
16. Governing Law and Forum.
The validity, interpretation, construction and performance of
this Agreement shall be governed by the laws of the state of
Delaware without giving effect to the conflicts of laws principles
thereof. Any suit brought under this Agreement may be brought in
the appropriate state or federal court for Barton County, Missouri,
or for the county wherein the Optionee maintains his residence.
Any suit brought by the Company under this Agreement may only be
brought in the county wherein the Optionee maintains his residence
unless the Optionee consents to suit elsewhere.
17. Successors in Interest.
This Agreement shall inure to the benefit of and be binding
upon any Successor Corporation. This Agreement shall inure to the
benefit of the Optionee's legal representatives. All obligations
imposed upon the Optionee and all rights granted to the Company
under this Agreement shall be final, binding and conclusive upon
the Optionee's heirs, executors, administrators, personal
representatives and successors.
18. Resolution of Disputes.
Any dispute or disagreement which may arise under, or as a
result of, or in any way relate to, the interpretation,
construction or application of this Agreement shall be determined
by the Committee. Any determination made hereunder shall be final,
binding and conclusive on the Optionee and Company for all
purposes.
19. Entire Agreement.
This Agreement, together with the documents incorporated
herein by reference, represents the entire agreement between the
parties with regards to the subject matter hereof and this
Agreement may not be modified by any oral or written agreement
unless same is in writing, signed by both parties and has been
approved by the Committee.
20. Effective.
To be effective this Agreement must be executed by the
Optionee and received by the Secretary of the Company within 30
days of the Optionee's receipt of this Agreement. Please retain
one copy of this Agreement for the Optionee's records.
O'SULLIVAN INDUSTRIES HOLDINGS, INC.
By:_____________________________________
ATTEST:
________________________________________
________________________________________
(Optionee's Signature)
(Optionee's Social Security No. )
<PAGE>
EXHIBIT A
NOTICE OF EXERCISE OF NONQUALIFIED STOCK OPTION
AMENDED AND RESTATED 1994 INCENTIVE STOCK PLAN
O'SULLIVAN INDUSTRIES HOLDINGS, INC.
1. I hereby exercise the option granted to me by
Nonqualified Stock Option Agreement NSO # 94_______ dated the ____
day of _________, ______, as to __________ shares of the Common
Stock subject thereto.
2. I deliver herewith a certified or bank cashier's check
for $________________ [and/or certificate
No.(s) __________________________________ for an aggregate of
______________ shares of outstanding common stock of O'Sullivan
Industries Holdings, Inc.] in full payment for said shares at the
option price of $_______ per share.
3. I have enclosed (if stock certificates are tendered, but
not otherwise) a properly executed form of stock power for the
transfer of any shares of O'Sullivan Industries Holdings, Inc.
stock tendered in payment. If the stock certificates are for more
shares than are required for full payment, a certificate for the
excess shares is to be returned to me.
4. My social security number is: __________________
5. My name* and address on the Company's records should be
as follows:
Name: _____________________________________________
Address: _______________________________________________
__________________________________________________
SIGNED this ____ day of ________________, ______.
(NAME PRINTED OR TYPED)
___________________________________
Signature
* If joint ownership with spouse is desired, insert both names.
Registration will be as joint tenants with right of survivorship.
If joint ownership is not desired, show Optionee name only.
SEC\EDGAR\DirPros.wpd
EXHIBIT 4.9
FORM OF ANNUAL GRANT INCENTIVE STOCK OPTION
______________________________________________________
O'SULLIVAN INDUSTRIES HOLDINGS, INC.
AMENDED AND RESTATED 1994 INCENTIVE STOCK PLAN
INCENTIVE STOCK OPTION AGREEMENT
ISO # 94-___________
THIS AGREEMENT, made as of the ____ day of __________, ______
(the "Grant Date"), between O'Sullivan Industries Holdings, Inc.,
a Delaware corporation (the "Company"), and ____________________
(the "Optionee").
WHEREAS, the Company has adopted the O'Sullivan Industries
Holdings, Inc. Amended and Restated 1994 Incentive Stock Plan (the
"Plan") in order to provide an additional incentive to certain
officers and employees of the Company and its subsidiaries; and
WHEREAS, the Compensation Committee of the Company has
determined that options are to be granted to selected key employees
to further the purposes of the Plan, as provided therein;
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant of Option.
1.1 The Company hereby grants to the Optionee the right and
option (the "Option") to purchase all or any part of an aggregate
of ____________ whole shares of common stock, par value $1.00 per
share, of the Company ("Shares") subject to, and in accordance
with, the terms and conditions set forth in this Agreement.
1.2 The Option is intended to qualify as an Incentive Stock
Option within the meaning of Section 422 of the Code.
1.3 This Agreement shall be construed in accordance and
consistent with, and subject to, the provisions of the Plan (the
provisions of which are incorporated herein by reference) and,
except as otherwise expressly set forth herein, the capitalized
terms used in this Agreement shall have the same definitions as set
forth in the Plan.
2. Purchase Price.
The price at which the Optionee shall be entitled to purchase
Shares upon the exercise of the Option shall be $________ per Share
(the "Purchase Price").
3. Duration of Option.
The Option shall be exercisable to the extent and in the
manner provided in Section 4 hereof for a period of 10 years from
the Grant Date (the "Exercise Term"); provided, however, that the
Option may be earlier terminated as provided in Section 6 hereof.
4. Exercisability of Option.
Unless otherwise provided in this Agreement or the Plan, the
Option shall entitle the Optionee to purchase, in whole at any time
or in part from time to time, one-third of the total number of
Shares covered by the Option after the expiration of one year from
the Grant Date and an additional one-third of the total number of
Shares covered by the Option after the expiration of each of the
second and third anniversaries of the Grant Date, and each such
right of purchase shall be cumulative and shall continue, unless
sooner exercised or terminated as herein provided, during the
remaining period of the Exercise Term. Any fractional number of
Shares resulting from the application of the formula set forth in
this Section 4 shall be rounded to the next higher whole number of
Shares in the first (and second if necessary) year, but no more
than the number granted shall result from the rounding up.
5. Manner of Exercise and Payment.
5.1 Subject to the terms and conditions of this Agreement and
the Plan, the Option shall be exercised by timely delivery of
written notice to the Company, in person or by certified mail
return receipt requested to the Secretary of the Company at its
principal executive office. Such notice shall state that the
Optionee is electing to exercise the Option and the number of
Shares in respect of which the Option is being exercised and shall
be signed by the person or persons exercising the Option. If
requested by the Committee, such person or persons shall
(i) deliver this Agreement to the Secretary of the Company who
shall endorse thereon a notation of such exercise and (ii) provide
satisfactory proof as to the right of such person or persons to
exercise the Option.
5.2 The notice of exercise described in Section 5.1 shall be
accompanied by the full Purchase Price for the Shares in respect of
which the Option is being exercised, in cash or by certified or
cashier's check, or, in the discretion of the Committee, in whole
or in part by transferring Shares to the Company having a Fair
Market Value on the day preceding the date of exercise equal to the
cash amount for which such Shares are substituted.
5.3 Upon timely receipt of notice of exercise and full
payment for the Shares in respect of which the Option is being
exercised, the Company shall, subject to Section 17 of the Plan,
take such action as may be necessary to effect the transfer to the
Optionee of the number of Shares as to which such exercise was
effective.
5.4 The Optionee shall not be deemed to be the holder of, or
to have any of the rights of a holder with respect to, any Shares
subject to the Option until (i) the Option shall have been
exercised pursuant to the terms of this Agreement and the Optionee
shall have paid the full Purchase Price for the number of Shares in
respect of which the Option was exercised, (ii) the Company shall
have issued and delivered the Shares to the Optionee and (iii) the
Optionee's name shall have been entered as a stockholder of record
with respect to the Shares on the books of the Company, whereupon
the Optionee shall have full voting and other ownership rights with
respect to such Shares.
6. Termination of Employment.
6.1 Termination of Option. The Option shall expire and
become null and void upon the happening of whichever of the
following events shall first occur: (a) the Optionee ceases to be
employed by the Company or any of its subsidiaries for any reason
other than death, Disability, retirement at age 55 or older
("Retirement") or for any reason within two years following a
Change in Control, (b) a period of 12 months shall have elapsed
since the Optionee's death, Disability, Retirement or termination
for any reason within two years following a Change in Control or
(c) the Exercise Term expires. Except as provided in Section 6.2
below, only those portions of the Option exercisable as of the date
of termination of the Optionee's employment may be exercised,
whether such termination is by retirement or otherwise.
6.2 Acceleration of Exercise Dates. Notwithstanding the
provisions of Section 4 above relating to the exercise of the
Option in installments: (a) upon the Optionee's death, Disability
or Retirement the Committee may, in its discretion, permit the
Option to be immediately exercisable, for the entire number of
Shares covered hereby, and (b) upon any Change in Control of the
Company the Option shall become exercisable as provided below in
Section 7(i). No portion of the Option shall be exercisable after
expiration of the Option as provided in Section 6.1.
7. Effect of Change in Control.
Notwithstanding anything contained in this Agreement to the
contrary, in the event of a Change in Control, (i) the Option shall
become immediately and fully exercisable through the expiration of
the Option as provided in Section 6.1 and (ii) the Optionee will be
permitted to surrender for cancellation within 60 days after such
Change in Control, the Option or any portion of the Option to the
extent not yet exercised and the Optionee shall be entitled to
receive immediately a cash payment in an amount equal to the
excess, if any, of (A) the greater of (1) the Fair Market Value, on
the date preceding the date of the surrender, of the Shares subject
to the Option or portion of the Option surrendered or (2) the
Adjusted Fair Market Value of the Shares subject to the Option or
the portion of the Option surrendered, over (B) the aggregate
Purchase Price for such Shares under the Option or portion of the
Option surrendered; provided, however, that if the Option was
granted within six months prior to the Change in Control and the
Optionee may be subject to liability under Section 16(b) of the
Exchange Act, the Optionee shall be entitled to surrender
for cancellation the Option or any portion of the Option during the
60 day period commencing upon the expiration of six months from the
Grant Date and receive the amount described above with respect to
such surrender for cancellation.
8. Non-transferability.
The Option shall not be transferable other than by will or by
the laws of descent and distribution. During the lifetime of the
Optionee, the Option shall be exercisable only by the Optionee or
the Optionee's personal representative.
9. No Right to Continued Employment.
Nothing in this Agreement or the Plan shall be interpreted or
construed to confer upon the Optionee any right with respect to
continuance of employment by the Company, nor shall this Agreement
or the Plan interfere in any way with the right of the Company to
terminate the Optionee's employment at any time.
10. Adjustments.
In the event of a Change in Capitalization, the Committee may
make appropriate adjustments to the number and class of Shares or
other stock or securities subject to the Option and the Purchase
Price for such Shares or other stock or securities. The
Committee's adjustment shall be made in accordance with the
provisions of Section 12 of the Plan and shall be effective and
final, binding and conclusive for all purposes of the Plan and this
Agreement.
11. Effect of Certain Transactions.
Subject to Section 7 hereof, upon the effective date of
(i) the liquidation or dissolution of the Company or (ii) a merger
or consolidation of the Company (a "Transaction"), the Option shall
continue in effect in accordance with its terms and the Optionee
shall be entitled to receive in respect of all Shares subject to
the Option, upon exercise of the Option, the same number and kind
of stock, securities, cash, property or other consideration that
each holder of Shares was entitled to receive in the Transaction.
12. Withholding of Taxes.
The Company shall have the right to deduct from any
distribution of cash to the Optionee, an amount equal to the
federal, state and local income taxes and other amounts as may be
required by law to be withheld (the "Withholding Taxes") with
respect to the Option. This Option is an Incentive Stock Option;
however, if the Optionee is to experience a taxable event in
connection with the receipt of Shares pursuant to an Option
exercise or a subsequent disqualifying disposition (a "Taxable
Event"), the Optionee shall pay the Withholding Taxes to the
Company prior to the issuance, or release from escrow, of such
Shares. In satisfaction of the obligation to pay any such
Withholding Taxes to the Company, the Optionee may make a written
election (the "Tax Election"), which may be accepted or rejected in
the discretion of the Committee, to have withheld a portion of the
Shares then issuable to the Optionee having an aggregate Fair
Market Value, on the date preceding the date of such issuance,
equal to the Withholding Taxes, provided that if the Optionee may
be subject to liability under Section 16(b) of the Exchange Act
either: (i) (A) the Tax Election is made at least six months prior
to the date of the Taxable Event and (B) the Tax Election is
irrevocable with respect to all Taxable Events of a similar nature
occurring prior to the expiration of six months following a
revocation of the Tax Election, or (ii) (A) the Optionee makes the
Tax Election at least six months after the date the Option was
granted, (B) the Option is exercised during the 10 day period
beginning on the third business day and ending on the 12th business
day following the release for publication of the Company's
quarterly or annual statement of sales and earnings (a "Window
Period") and (C) the Tax Election is made during the Window Period
in which the related Option is exercised or prior to such Window
Period and subsequent to the immediately preceding Window Period.
If the Optionee exercises the Option in whole or in part and
subsequently makes a disqualifying disposition of all or any part
of such shares, the Company shall have the right to deduct from any
distribution of cash to the Optionee an amount equal to the
federal, state and local income taxes and other amounts as may be
required by law to be withheld.
13. Optionee Bound by the Plan.
The Optionee hereby acknowledges receipt of a copy of the Plan
and agrees to be bound by all the terms and provisions thereof.
The Optionee hereby acknowledges receipt of the Prospectus for the
Plan dated February 16, 1994.
14. Modification of Agreement.
This Agreement may be modified, amended, suspended or
terminated, and any terms or conditions may be waived, but only by
a written instrument executed by the parties hereto.
15. Severability.
Should any provision of this Agreement be held by a court of
competent jurisdiction to be unenforceable or invalid for any
reason, the remaining provisions of this Agreement shall not be
affected by such holding and shall continue in full force in
accordance with their terms.
16. Governing Law and Forum.
The validity, interpretation, construction and performance of
this Agreement shall be governed by the laws of the state of
Delaware without giving effect to the conflicts of laws principles
thereof. Any suit brought under this Agreement may be brought in
the appropriate state or federal court for Barton County, Missouri,
or for the county wherein the Optionee maintains his residence.
Any suit brought by the Company under this Agreement may only be
brought in the county wherein the Optionee maintains his residence
unless the Optionee consents to suit elsewhere.
17. Successors in Interest.
This Agreement shall inure to the benefit of and be binding
upon any Successor Corporation. This Agreement shall inure to the
benefit of the Optionee's legal representatives. All obligations
imposed upon the Optionee and all rights granted to the Company
under this Agreement shall be final, binding and conclusive upon
the Optionee's heirs, executors, administrators, personal
representatives and successors.
18. Resolution of Disputes.
Any dispute or disagreement which may arise under, or as a
result of, or in any way relate to, the interpretation,
construction or application of this Agreement shall be determined
by the Committee. Any determination made hereunder shall be final,
binding and conclusive on the Optionee and Company for all
purposes.
19. Entire Agreement.
This Agreement, together with the documents incorporated
herein by reference, represents the entire agreement between the
parties with regards to the subject matter hereof and this
Agreement may not be modified by any oral or written agreement
unless same is in writing, signed by both parties and has been
approved by the Committee.
20. Effective.
To be effective this Agreement must be executed by the
Optionee and received by the Secretary of the Company within 30
days of your receipt of this Agreement. Please retain one copy of
this Agreement for your records.
O'SULLIVAN INDUSTRIES HOLDINGS, INC.
By:_____________________________________
ATTEST:
________________________________________
________________________________________
(Optionee's Signature)
(Optionee's Social Security No. )
<PAGE>
EXHIBIT A
NOTICE OF EXERCISE OF INCENTIVE STOCK OPTION
AMENDED AND RESTATED 1994 INCENTIVE STOCK PLAN
O'SULLIVAN INDUSTRIES HOLDINGS, INC.
1. I hereby exercise the Option granted to me by Incentive
Stock Option Agreement #_________ dated _____________, _____, as
to_______________ shares of the Common Stock subject thereto.
2. I deliver herewith a certified or bank cashier's check
for $__________ [and/or certificate
No.(s) __________________________________ for an aggregate of
______________ shares of outstanding common stock of O'Sullivan
Industries Holdings, Inc.] in full payment for said shares at the
Option price of $_______ per share.
3. I have enclosed (if stock certificates are tendered, but
not otherwise) a properly executed form of stock power for the
transfer of any shares of O'Sullivan Industries Holdings, Inc.
stock tendered in payment. If the stock certificates are for more
shares than are required for full payment, a certificate for the
excess shares is to be returned to me.
4. My social security number is _________________
5. My name* and address on the Company's records should be
as follows:
Name:______________________________________
Address:___________________________________
___________________________________________
SIGNED this ____ day of ___________________, ______.
________________________________________
(Optionee's Signature)
* If joint ownership with spouse is desired, insert both names.
Registration will be as joint tenants with right of survivorship.
If joint ownership is not desired, show Optionee name only.
SEC\EDGAR\ISOPros.wpd
EXHIBIT 5
Law Offices
Blackwell Sanders Matheny Weary & Lombardi L.C.
2300 Main Street - Suite 1100
Kansas City, Missouri 64108
P.O. Box 419777 - 64141-6777
(816) 274-6800
February 11, 1997
O'Sullivan Industries Holdings, Inc.
1900 Gulf Street
Lamar, Missouri 64759
Gentlemen:
We refer to the Registration Statement of O'Sullivan
Industries Holdings, Inc. (the "Registrant") on Form S-8 to be
filed with the Securities and Exchange Commission for the purpose
of registering under the Securities Act of 1933, as amended, an
additional 500,000 shares of the Registrant's Common Stock, $1.00
par value (the "Common Stock"), to be issued under the O'Sullivan
Industries Holdings, Inc. Amended and Restated 1994 Incentive
Stock Plan (the "Plan").
We are familiar with the proceedings to date with respect to
such proposed sale and have examined such records, documents and
matters of law and satisfied ourselves as to such matters of fact
as we have considered relevant for the purposes of this opinion.
Based upon the foregoing, it is our opinion that the
additional 500,000 shares of Common Stock to be issued under the
Plan have been duly authorized, and, when purchased in accordance
with the Plan, will be legally issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5
to the Registration Statement.
Very truly yours,
Blackwell Sanders Matheny Weary & Lombardi L.C.
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated August 19,
1996 (except Note 11 as to which the date is September 4, 1996),
appearing on page 16 of O'Sullivan Industries Holdings, Inc.'s
Annual Report on Form 10-K for the year ended June 30, 1996.
PRICE WATERHOUSE LLP
Fort Worth, Texas
February 7, 1997
